Why removing a state Supreme Court justice from office is not an easy task, slim chances of success
MADISON, Wis. (CBS 58) -- The idea of removing a state Supreme Court justice from office has been tossed around by some Republicans before, but now it's back in the spotlight after liberals flipped control of the court.
While the Legislature can now use impeachment powers, the process is much more complex and difficult than some may think.
Why Now?
Many conservatives are still reeling from a flurry of actions taken by liberals on the court after Justice Janet Protasiewicz was sworn into office last week, securing a 4-3 liberal majority.
In a matter of days, the new court fired the director of state courts, stripped administrative powers away from the chief justices and proposed a series of changes to how the court operates.
These actions were widely criticized by Republicans which erupted into disputes between justices on the court. In a tweet, Rep. Shae Sortwell (R-Two Rivers) responded by saying "impeachment needs to be on the table."
After listening to the WI Supreme Court Chief Justice Ziegler's radio interview accusing her fellow Justices of being lawless & unconstitutional over the last week, I think impeachment needs to be on the table if they won't back down from their attack on our WI Constitution
— Shae Sortwell (@shaesortwell) August 7, 2023
Rep. Dan Knodl, who won a special election for the 8th Senate District, restored Republicans' powers to remove government officials from office by gaining a supermajority.
Before April's election, Knodl was one of the first Republicans to signal support for using that authority against then-candidate Janet Protasiewicz, a former Milwaukee County judge, and other judicial officials that serve in the area.
Since then, Knodl has not said whether he would seek to remove Protasiewicz from office now that she's on the high court.
Methods for Removal
There are two methods for removing a judge or justice from office. One option allows the Legislature to impeach and convict "based on specific reasons: corrupt conduct in office or for the commission of a crime or misdemeanor," according to a memo by the Wisconsin Legislative Council.
The procedure starts in the Assembly where members could vote to impeach an elected official by a majority vote. Then, it moves on to the Senate where they hold a trial of the article(s) of impeachment.
Since no crimes have been committed by justices, UW-Madison Political Science Professor Barry Burden said the more reasonable route for Republicans would be challenging misconduct issues, known as "removal by address" in the state constitution.
For example, Republicans could try to make the argument that Justice Protasiewicz "pre-judged" cases by talking about issues that will come before the court, such as abortion access and redistricting. However, using this method requires a two-thirds majority in both chambers, which the Assembly doesn't have without Democratic votes.
"It seems like a more targeted process for justices because it mentions things like ethics in office, dereliction of duty, failure to perform in an adequate manner," Burden said. "So, if Republicans have particular grievances that would match with that process, but garnering the two-thirds that would be required in both chambers would be very difficult."
Republicans have a 64 to 35 majority in the Assembly. The Republican majority in the Senate is 22-11.
Slim Chances for Success
If the Legislature were to make history by removing a Supreme Court justice from office, their success would likely be moot. That's because Gov. Tony Evers has the power to appoint a new justice to serve.
No one has ever been impeached and convicted in Wisconsin. It's been 170 years since a Wisconsin judge faced an impeachment trial, which was unsuccessful after the Senate acquitted Levi Hubbbel, who represented Wisconsin's 2nd Judicial Circuit.
Earlier this year, Senate Majority Leader Devin LeMahieu downplayed using their impeachment powers. During an interview with WISN, LeMahieu said the individual would "have to do something very serious" and that he's not trying to implement the process "as a regular occurring event."
That's why some law experts say these powers are more like a tool for Republicans that could maybe become problematic in a highly partisan environment.
"That kind of environment encourages gamesmanship, that kind of hardball and pushing new things to get your way and I think that's a bit of what we are seeing here," said Howard Schweber, associate professor of political science and law at UW-Madison.