Here & Now | PBS Wisconsin

Wisconsin Republicans Threaten to Impeach New Liberal Justice Janet Protasiewicz

Former Wisconsin Supreme Court Justice Janine Geske discusses the creation of a panel of conservative former justices to consider legal issues related to impeaching liberal Justice Janet Protasiewicz.

Anchored by Frederica Freyberg, Here & Now is Wisconsin’s weekly in-depth news and public affairs program where civic and political leaders provide context to the issues at the forefront of life in Wisconsin.

Legislative Republicans are continuing to threaten impeachment for Wisconsin Supreme Court Justice Janet Protasiewicz if she doesn’t recuse herself from any redistricting lawsuits — former Justice Janine Geske provides her perspective on the politics of the bench. A tenant advocacy group is asking the state Supreme Court to create a rule requiring eviction records to be removed from an online case search website after one year – Carmen Ayers from Legal Action of Wisconsin says old records make it difficult for tenants to find housing even if they were never legally evicted, while Chris Mokler with the Wisconsin Apartment Association says changing the rule will make it harder for landlords.

Janine Geske
Former justice, Wisconsin Supreme Court

  • Geske was not asked to be a part of a panel of former state Supreme Court justices advising Assembly Speaker Robin Vos on the legal process of impeaching Justice Janet Protasiewicz. One panelist is former Justice David Prosser — Geske said she would not have participated even if asked. During her campaign, Protasiewicz called Wisconsin’s electoral maps “rigged,” and Republicans say she has prejudged the issue and must recuse herself from any redistricting lawsuit. The standard for impeaching a judge in Wisconsin is corrupt conduct in office, or committing a crime or misdemeanor, which Geske said does not exist in this matter, and does not see a legitimate reason to impeach Protasiewicz.
  • Geske: “The first thing is whether or not it was appropriate for her to make those statements during the campaign. There is a United States Supreme Court case that’s not very old. It is absolutely on point, that says a judicial candidate can offer his or her opinions on political and legal issues. That case, interestingly enough, was brought by the Republican Party of Minnesota and written by the conservatives on the U.S. Supreme Court. But anyway, so there’s nothing inappropriate in what she said. So then the question is, can she recuse or should she recuse herself on the case? Well, recusal in Wisconsin is different than a lot of other states because our court, a couple of years ago, enacted a statute or a rule that says campaign contributions, first of all, cannot be a reason to have to recuse yourself. And secondly, a judge decides himself or herself whether or not they ought to recuse themselves. So there’s no way there’s any corrupt conduct in this, even if she decides to sit on the case.”
Premiere: September 22, 2023 | 0:05:59
TRANSCRIPT

>> WISCONSIN SUPREME COURT JUSTICE JANET PROTASIEWICZ REMAINS UNDER THE THREAT OF IMPEACHMENT BY ASSEMBLY SPEAKER ROBIN VOS WHO HAS NOW CREATED A SECRET PANEL OF FORMER SUPREME COURT JUSTICES TO STUDY THE LEGAL ISSUES SURROUNDING THE PROCESS OF IMPEACHMENT.

WE ARE JOINED NOW BY FORMER JUSTICE JANINE GESKE.

THANKS FOR YOUR TIME TODAY.

>> HAPPY TO BE HERE.

>> WE SHOULD START BY ACKNOWLEDGING, YOU ARE NOT ONE OF THE FORMER JUSTICES RECITE BY THE ASSEMBLY SPEAKER, BUT WOULD YOU HAVE JOINED THIS PANEL IF HE HAD ASKED FOR YOUR INPUT ON THIS ISSUE?

>> NO.

I DON'T UNDERSTAND HOW SUPREME COURT JUSTICES OUGHT TO BE GIVING AN OPINION AS TO WHETHER ONE OF THEIR FORMER COLLEAGUES SHOULD BE IMPEACHED.

IT'S A VERY BIZARRE PROCESS AND I WOULD NOT HAVE CONSENTED TO THAT.

>> NOW, THIS HAS TO DO WITH COMMENTS THAT JANET PROTASIEWICZ MADE BEFORE SHE WAS ELECTED WHERE SHE CALLED THE CURRENT ELECTORAL MAPS RIGGED.

AND APPARENTLY, THE LINKAGE THAT WE'RE SUPPOSED TO MAKE IS REPUBLICANS ARE SAYING IF SHE AGREES TO HEAR A REDISTRICTING CASE BUT DOES NOT RECUSE HERSELF, THAT THAT WOULD CONSTITUTE CORRUPT CONDUCT IN OFFICE.

IS THAT WHAT YOU'RE READING IN TERMS OF WHAT THEY NEED TO DO TO REACH THIS THRESHOLD FOR IMPEACHMENT?

>> I THINK THAT'S THEIR VERSION OF THE ARGUMENT, YES.

>> SO WHAT DO YOU MAKE OF THAT?

HOW DO WE DEFINE CORRUPT CONDUCT IN OFFICE?

BECAUSE WE'RE NOT TALKING ABOUT A CRIME OR A MISDEMEANOR, WHICH ARE THE OTHER ELEMENTS OF P.P.E.

IMPEACHMENT.

>> LET ME PEEL THIS BACK.

THE FIRST THING IS WHETHER OR NOT IT WAS APPROPRIATE FOR HER TO MAKE THOSE STATEMENTS DURING THE CAMPAIGN AND THERE IS A UNITED STATES SUPREME COURT CASE THAT'S NOT VERY OLD, IT IS ABSOLUTELY ON POINT, THAT SAYS A JUDICIAL CANDIDATE CAN OFFER HIS OR HER OPINIONS ON POLITICAL AND LEGAL ISSUES.

THAT CASE, INTERESTINGLY ENOUGH, WAS BROUGHT BY THE REPUBLICAN PARTY OF MINNESOTA AND WRITTEN BY THE CONSERVATIVES OF THE U.S. SUPREME COURT.

BUT ANYWAY, SO THERE'S NOTHING APPROPRIATE IN WHAT SHE SAID.

SO THEN THE QUESTION IS, CAN SHE RECUSE -- SHOULD SHE RECUSE HERSELF ON THE CASE.

WELL, RECUSAL IN WISCONSIN IS DIFFERENT THAN A LOT OF OTHER STATES BECAUSE OUR COURT, A COUPLE OF YEARS AGO, ENACTED A STATUTE OR A RULE THAT SAYS CAMPAIGN CONTRIBUTIONS, FIRST OF ALL, CANNOT BE REASON TO HAVE TO RECUSE HERSELF.

AND SECONDLY, A JUDGE DECIDES HIMSELF OR HERSELF WHETHER OR NOT THEY OUGHT TO RECUSE THEMSELVES.

SO THERE'S NO WEIGHT OF ANY CORRUPT CONDUCT IN THIS, EVEN IF SHE DECIDES TO SIT ON THE CASE.

>> SO FORMER JUSTICE DAVID PROSSER IS THE ONLY JUSTICE TO PUBLICLY SAY THAT THEY ARE A PART OF THIS PROCESS.

DO YOU TRUST THAT HE'LL BE ABLE TO DELIVER A REPORT BASED ON HIS READING OF THE LAW?

OR WHAT SHOULD WE MAKE OF ANYTHING THAT COMES OUT OF THIS?

>> WELL, I HAVE RESPECT FOR JUSTICE PROSSER.

HE AND I SERVED TOGETHER.

YOU KNOW, BUT PART OF IT IS THE APPEARANCE.

RIGHT?

THAT'S WHAT'S IMPORTANT AT THE SUPREME COURT AND IMPORTANT IN THIS PROCESS, AND, YOU KNOW, JUSTICE PROSSER CLEARLY WAS ALIGNED WITH THE REPUBLICAN PARTY AND, YOU KNOW, FIRST OF ALL, I DON'T THINK THE JUSTICES SHOULD BE DOING THIS, NECESSARILY, BUT, YOU KNOW, IT WOULD BE NICE TO PICK SOMEBODY LIKE LOUIS BUTLER, WHO IS ON THE OTHER SIDE OF THE SPECTRUM.

I DON'T KNOW WHO -- I'VE GOT TO GUESS AS TO WHO THE SECOND PERSON IS AND DON'T KNOW WHO THE THIRD PERSON IS, BUT I SUSPECT THEY'RE GOING TO BE ALL ALIGNED WITH SORT OF THE SAME PHILOSOPHICAL VIEW AS THE REPUBLICAN PARTY.

>> SO WITH THIS VAGUE CONCEPT OF CORRUPT CONDUCT IN OFFICE AND THIS IMPEACHMENT ELEMENT HAS NOT BEEN TESTED IN THE COURTS IN PASS FAKE, OBVIOUSLY, FOR MORE THAN A CENTURY, SO IS IT LIKELY THAT ANY ATTEMPT BY REPUBLICANS IN THE LEGISLATURE TO BRING THE IMPEACHMENT PROCESS FORWARD WOULD END UP BACK BEFORE A COURT?

WE'VE ALREADY SEEN ONE LAWSUIT REGARDING THAT.

COULD THIS BE A FEDERAL COURT ISSUE ABOUT THE FIRST AMENDMENT RIGHTS?

HOW DOES THIS GET RESOLVED?

>> WELL, THIS IS WHAT I FEAR.

I FEAR THAT THEY WILL VOTE ON IMPEACHMENT, AND WHEN YOU ARE IMPEACHED UNDER OUR CONSTITUTION, THE JUSTICE CAN NO LONGER SIT ON CASES UNTIL THERE'S A VOTE WHETHER TO ACQUIT OR CONVICT.

AND I FEAR THAT THEY MAY DELAY THAT VOTE AND THERE BE KNOCKING HER OFF THE COURT AND HAVING ONLY SIX MEMBERS OF THE COURT.

THAT'S WHERE I THINK THERE -- THERE IS AN INFRINGEMENT FROM THE LEGISLATIVE BRANCH ON THE JUDICIAL BRANCH.

THEY'RE TRYING TO IMPACT A PARTICULAR CASE WHEN TAKING THESE ACTIONS.

IF THEY WOULD BE SUCCESSFUL AT IMPEACHING HER, THEN THE QUESTION IS WHETHER THEY GET A TWO-THIRDS VOTE TO BE ABLE TO CONVICT HER.

YOU KNOW, IF THEY CONVICTED HER, THEN IT WOULD HIT THE COURTS, BUT ULTIMATELY COULD ALSO GO TO THE SUPREME COURT BECAUSE IT INVOLVES FIRST AMENDMENT RIGHTS.

SO I DON'T THINK IT'S GOING TO GET THAT FAR.

I THINK THE REPUBLICAN LEGISLATURE WANTS TO GET HER OFF THAT CASE ONE WAY OR THE OTHER AND THIS IS THE MEANS THAT THEY'RE USING.

>> SO WE'VE GOT LESS THAN A MINUTE HERE, BUT NO MATTER, WHAT IT TIES THE REPUTATION OF THE COURTS EVEN CLOSER TO THE POLITICAL PARTIES.

WHAT IS THE OUTCOME IN TERMS OF VOTERS VIEWING THE SUPREME COURT AS INDEPENDENT TODAY?

>> WELL, YOU KNOW, FIRST OF ALL, JUSTICE PROTASIEWICZ OBVIOUSLY WON HER ELECTION HANDEDLY, HAD 11% ABOVE HER OPPONENT, AND I THINK, YOU KNOW, NOW THE PEOPLE ARE SAYING, WHY CAN'T SHE SIT ON A CASE WHEN WE JUST ELECTED HER TO THE POSITION.

BUT THE PROBLEM IS, WE ARE MISSING -- MESSING WITH POLITICAL PARTIES AND PARTISAN VIEWS ON THE COURT AND IT IS IMPORTANT THAT THE COURT CONTINUE TO APPEAR UNBIASED, IMPARTIAL, AND NON-POLITICAL WHEN IT MAKES ITS DECISIONS.

>> ALL RIGHT.