Wisconsin GOP's impeachment plan: Another MAGA coup against democracy

Republicans in the Badger State hatch an ingenious plot to thwart voters — but ultimately, they will pay the price

Published September 8, 2023 10:00AM (EDT)

Janet Protasiewicz, 60, is sworn in for her position as a State Supreme Court Justice at the Wisconsin Capitol rotunda in Madison, Wis. on August 1, 2023. (Sara Stathas for The Washington Post via Getty Images)
Janet Protasiewicz, 60, is sworn in for her position as a State Supreme Court Justice at the Wisconsin Capitol rotunda in Madison, Wis. on August 1, 2023. (Sara Stathas for The Washington Post via Getty Images)

MAGA Republicans in Wisconsin are gearing up to impeach newly elected state Supreme Court Justice Janet Protasiewicz, just five weeks after she took her seat on the court and before she has cast her first vote. They want to stop her from doing what the majority of Wisconsin voters elected her to do.

Their plan is nothing less than a coup attempt, an effort to sideline a duly elected judge not because she has committed an impeachable offense but because of what she might do — namely, join her liberal colleagues in throwing out gerrymandered state legislative maps and legalizing abortion in Wisconsin. 

Impeachments of federal or state judges are rare. The National Conference of State Legislatures offers the following examples:

In 1994, a state Supreme Court justice became the first Pennsylvania judge to be impeached in 183 years. In 2000, the New Hampshire House held an impeachment proceeding — something that the House had not done in 210 years…. The Illinois House has impeached only two people in the state's history — a judge in 1832-33 and a governor in 2008-9.

Even with these limited precedents, our country has never seen anything quite like what is unfolding in Wisconsin.

On Wednesday, the state Democratic Party unveiled a $4 million initiative aimed at mobilizing voters to press Republicans in the state legislature to back down from their planned coup. 

Some of the Republican legislators may well come to understand that there are serious consequences when you seek to silence someone who just won a landslide victory in a statewide election by pledging to defend democracy in her state.  

Significantly, the Republican initiative is about more than trying to take out one political opponent in one state. Rather, it is part of a cross-national MAGA assault on truth, government institutions, the law and the vote itself.

The threat in Wisconsin mirrors the House Freedom Caucus' preparations to impeach Joe Biden without factual support and the evidence-free stunt hearings being held in Congress by Reps. Jim Jordan and James Comer.

They are all designed to protect Republican power built on systems that perpetrate minority rule

Both the national and Wisconsin MAGA strategies also seek to undermine public trust in government and in the critical checks and balances that restrain political power. The more disillusioned citizens become with politics — "Both sides do it, I'm throwing up my hands!" — the more power can be wielded by those with their hands on the controls.

As Republicans in Wisconsin move forward with their plans, however, they would be wise to contemplate what may happen in 2024. 

Protasiewicz's resounding victory last April tells us that a large statewide majority in Wisconsin — typically a "purple" state where votes are evenly divided between the two major parties — favors democracy. There's considerable evidence that same statewide majority will turn against MAGA Republicans when issues like abortion and gerrymandering are squarely framed and propel Democratic victories in statewide elections, whether for president, governor or secretary of state.

It might well also produce the kind of blowback that could curtail Republican control in the state legislature and finally roll back the gerrymandered district maps that have given the GOP large majorities in Madison.

More on that in a moment. Here's the background: Wisconsin Republican legislators know that those gerrymandered maps are the source of their power — and know that Protasiewicz's presence on the state Supreme Court threatens it. 

In her election campaign last winter and spring, Protasiewicz said, "I can't tell what I would do in a particular case, but I can tell you my values, and the maps are wrong."

As part of Republicans' campaign for Dan Kelly, her MAGA-aligned opponent, the Wisconsin GOP filed and publicized a trumped-up complaint alleging that Protasiewicz's campaign statements had violated the ethical rules that govern judges.

On Tuesday, Protasiewicz released a May 31 letter from the Wisconsin Judicial Commission, an independent, nonpartisan group, dismissing that complaint. The commission's ruling is consistent with a 2002 U.S. Supreme Court decision that judicial candidates have a First Amendment right to campaign by expressing their positions on legal issues of public concern.

Having failed in their ethics gambit before Wisconsin's judicial commission, GOP legislators apparently won't take the voters' verdict on Protasiewicz for an answer. Evidently, their plan is to put Protasiewicz into permanent legal limbo, rendering her ineligible to make decisions on the bench, quite likely without even trying to convict her of an impeachable offense.

There are two principal reasons for this scheme. First, the Wisconsin constitution provides that "no judicial officer shall exercise his [or her] office" after being impeached, unless and until that person is acquitted at trial. 

Second, while it only takes a majority vote for impeachment vote in the state House, where Republicans hold a 29-seat edge, they almost certainly don't have the votes to convict Protasiewicz in a state Senate trial, where a two-thirds vote would be required. Every single Senate Republican would have to vote to convict her, and as the GOP is well aware, Protasiewicz carried six state Senate districts currently held by Republicans. If even one of those GOP senators decided to abide by the letter of the Wisconsin constitution, which says that impeachment is only permitted in cases of "corrupt conduct in office or for the commission of a crime or misdemeanor," she would be acquitted. 

Protasiewicz has clearly committed no crime, and the Judicial Council's letter establishes a lack of any evidence of corruption. According to University of Wisconsin law professor Robert Yablon, the last impeachment of a Wisconsin judge occurred in 1853, and that was the result of a "bribery scandal," as the New York Times reports. 

So the GOP legislators have evidently hit upon an especially ingenious form of injustice: Impeach Protasiewicz and never hold a trial.

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What they apparently fail to understand is that it's always a mistake to use chicanery to thwart the will of the voters. 

Their scheme might backfire in several different ways. If Protasiewicz is impeached, she could file suit seeking a judicial order to compel a trial. She would likely win in the less partisan lower courts.

If her case went to the state Supreme Court, which without her vote would be equally divided between Republicans and Democrats, a 3-3 tie would leave a lower court's decision standing. For that matter, a vote in her favor is not inconceivable. In December 2020, conservative Justice Brian Hagedorn, who remains on the Court, joined the three liberal justices in a 4-3 vote to dismiss Donald Trump's challenge to Joe Biden's electoral victory in Wisconsin. 

In either case, Protasiewicz would be freed from her Republican-constructed purgatory and able to vote on upcoming cases, including those on gerrymandering and abortion rights. 

While all these scenarios play out, we need to recognize that what we are seeing in Wisconsin mirrors the tactics of MAGA forces in the U.S. Congress who now threaten Biden with impeachment. 

To that threat, Sen. John Fetterman, the Pennsylvania Democrat known for plain speaking, has called their bluff: "Go ahead. Do it, I dare you. If you can find the votes, go ahead, because you're going to lose. It's a loser. Sometimes you just gotta call their bullshit."

His words echo in Wisconsin, where Trump's allies and imitators are again showing their true, anti-democratic colors. They should be careful what they wish for. If Wisconsin Republicans push forward with their cynical scheme, the voters will deliver their own verdict next year.

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

MORE FROM Austin Sarat

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Commentary Impeachment Janet Protasiewicz Law Maga Republicans Wisconsin