Former justice advises Vos against impeachment, Senate lacks votes to remove
MADISON, Wis. (CBS 58) -- A former State Supreme Court Justice, who was tapped by Assembly Speaker Robin Vos to review the possibility of impeaching the newest member on the court, is advising him against the unprecedented move.
In an email to Vos, former Supreme Court Justice David Prosser detailed how he believes there are no grounds for impeaching liberal Justice Janet Protasiewicz because she has not committed any "corrupt conduct" since taking the oath of office on Aug. 1.
"To sum up my views, there should be no effort to impeach Justice Protasiewicz on anything we know now," Prosser wrote in an email to Vos Friday. "Impeachment is so serious, severe and rare that it should not be considered unless the subject has committed a crime, or the subject has committed indisputable 'corrupt conduct' while 'in office.'"
Impeachment is a tool lawmakers have, but it's often used against government officials for corruption in office or for crimes and misdemeanors, under state law.
Prosser's email was obtained by American Oversight, a liberal watchdog group, who filed a lawsuit seeking records about a panel of former justices Vos said he asked to review the prospect of impeaching Protasiewicz.
Prosser sent the email the same day Protasiewicz said she would not recuse from a redistricting lawsuit challenging the state's legislative maps that currently give Republicans an advantage in the Legislature.
Some Republicans have discussed impeaching Protasiewicz if she didn't step off redistricting challenges because they expressed doubts she can be impartial after she called the maps "rigged" and accepted $10 million from the Democratic Party of Wisconsin.
It's unclear whether there is still an appetite among some Republicans, including Vos, to move forward with impeachment. On Monday, Vos was mum on the issue.
In his first public comments since Protasiewicz announced she'd hear the redistricting case, Vos declined to say whether he'd pursue impeachment.
Instead, Vos said the U.S. Supreme Court will "have the last word" on whether Protasiewicz should have recused.
"Justice Protasiewicz should have recused herself," Vos said in a statement. "We think the United States Supreme Court precedent compels her recusal, and the United States Supreme Court will have the last word here."
Anthony Chergosky, an assistant political science professor at University of Wisconsin La Crosse, said he believes Vos is running out of options to try and preserve the current GOP-drawn legislative maps that are frequently labeled by experts as the most gerrymandered in the county.
"We don't know what the odds are in having the U.S. Supreme Court intervene in [Protasiewicz's refusal to recuse], but that's pretty much the only card left for Speaker Vos and legislative Republicans who want to see the currently maps remain in place," Chergosky said.
"Prosser's email also really takes the wind out of the impeachment sails and at this point politically, it's hard to see how impeachment could be possible," he added.
The state Supreme Court is scheduled to hear oral arguments on the redistricting case Nov. 21.
Protasiewicz defeated conservative Dan Kelly by 11 points in April, an election that gave liberals a 4-3 majority on the court for the first time in 15 years.
"Impeachment that appears to be solely partisan will likely backfire," Prosser wrote, noting there should be evidence to persuade officials that impeachment is legitimate.
Prosser also pointed out if Protasiewicz were impeached and convicted, Democratic Gov. Tony Evers would appoint a successor who "might be more problematic."
If the Assembly voted to impeach, and the Senate did not act right away to convict, Protasiewicz would be in a holdover position and unable to sit on any cases. This possibility could cause headaches for the high court as it would mean the ideological balance of the court would be evenly split 3-3.
Senate Lacks Votes to Convict
While a handful of Assembly Republicans have floated impeachment, some GOP senators are against the move.
Sen. Duey Stroebel (R-Saukville) said he opposes impeaching Protasiewicz.
"I'm not sure what good that would do because I believe she could step down at any time and the governor could appoint a replacement," Stroebel said.
The question now is whether there is still an appetite among Republicans & Vos to move forward with impeachment.
— Emilee Fannon (@Emilee_Fannon) October 10, 2023
GOP Leader @SenatorDevin told @CBS58 last month he's not interested in talking about it and last week @SenStroebel said he doesn't support impeaching Protasiewicz. https://t.co/rv6sr8sfN8pic.twitter.com/1QAA2u9ATc
Stroebel's opposition means Republicans would not have enough votes in the Senate to convict and remove Protasiewicz should Assembly Republicans move forward with impeachment. This year, the GOP-controlled chamber gained a supermajority, the vote threshold required to impeach office holders in the Senate.
Other top Republicans don't seem interested in using those powers either, including Senate Majority Leader Devin LeMahieu (R-Oostburg).
LeMahieu told CBS 58 last month he doesn't "want to talk about impeachment" and earlier this year downplayed the idea in an interview with WISN saying the individual "would have to do something very serious" to be impeached.
See Prosser's email to Vos below: