Robin Vos pulls back Protasiewicz impeachment talk as Assembly Republicans remain quiet

MADISON – Assembly Speaker Robin Vos is softening his tone on whether Republican lawmakers will carry out threats of impeaching the state Supreme Court's newest justice as members of his caucus, who must initiate the proceeding, remain noncommittal on doing so.

Update: Vos endorses turning election maps over to nonpartisan agency to bypass redistricting lawsuits

Behind-the-scenes battles between state Supreme Court justices and court employees have escalated in the month since Justice Janet Protasiewicz was sworn in after winning her April election with an 11-point margin — an unusually lopsided election in a state known for hotly contested statewide races.

At the same time, Republican lawmakers have raised the prospect of impeaching Protasiewicz if she does not step away from challenges to the state's electoral maps that are currently under the court's consideration, noting that she called the maps "rigged" on the campaign trail and received about $10 million from the Democratic Party of Wisconsin.

But in recent days, the first legislative leader to raise the possibility of impeachment is pulling back.

"Hopefully it never comes to impeachment," Vos said in an interview last week with conservative radio host Dan O'Donnell.

"I'm not predicting we're going to impeach because I don't know that we will. But I do think that the idea that somebody is going to blatantly break the rules and then have no consequence — you know, the Constitution really only allows for a few remedies if somebody makes a big mistake like this."

"We have an election that lasts 10 years. That's where people are put into office, and they're only removed in extremely rare circumstances. I think it's only happened once in Wisconsin, if somebody goes way outside the bounds," Vos said.

"And not recusing on cases that you pre-decided means that for the next 10 years, your judgment has to be called into question that you're not independent. I don't think Justice Protasiewicz wants that to be her legacy so I don't think we'll ever have to get to impeachment."

Vos said if Protasiewicz does not recuse from lawsuits involving the state's electoral maps, "we might have to do an investigation."

"We're going to have to learn as we go because this is really uncharted territory," Vos said. "She can keep her honor and integrity and give the Democrats a darn good chance of winning the case, which I don't like but the reality is the reality and then we move forward from there."

In August, Vos said was more direct, saying Assembly lawmakers would consider impeachment if Protasiewicz did not recuse from a case she "prejudged."

"It has to be where they violate the oath of office, right? Justice Protasiewicz who prejudged cases doesn't recuse herself, right? That could be something we would consider," he told WSAU host Meg Ellefson on Aug. 11.

At the same time, none of the 64 Republican members of the Assembly committed to voting to "yes" to impeach Protasiewicz when surveyed by the Milwaukee Journal Sentinel in recent days. All 35 Democratic members have pledged to vote no, and one Republican — Rep. Scott Johnson of Jefferson — has joined in that decision.

In a statement, Johnson said he did not vote for Protasiewicz and hopes she will recuse herself from the redistricting cases, but he will not vote in favor of impeachment.

"The people of Wisconsin have historically shown that they do not support uprooting a duly elected official on the sheer basis of political disagreement. Our court has shifted in a new direction, which is the consequence of an election," Johnson said.

Democrats present united front against impeachment

In a joint statement from the Assembly and Senate's Democratic caucuses, the minority party pledged to do "everything in our power to prevent this egregious effort to undermine our democracy."

“Legislative Republicans have threatened to nullify more than a million votes for a duly elected justice in order to hold onto their power and deny Wisconsinites access to reproductive rights. This is an affront to democracy, and it will not stand," the Democrats said.

Most Assembly Republicans — 51 of 64 — did not respond to the Journal Sentinel's inquiries.

Reps. Scott Allen, David Armstrong, Barbara Dittrich, Tony Kurtz, Adam Neylon, Treig Pronschinske, Peter Schmidt and David Steffen responded but declined to comment. Two lawmakers said they're "waiting on more information."

“Our office has requested more information to determine of there is a case to be rendered. No decisions at this time," said Rep. Jerry O'Connor, R-Fond du Lac.

Rep. Paul Melotik, R-Grafton, said he currently has no position "as no crime has been committed."

"As facts roll in he will look at them and decide the best path," Melotik spokesman Nathan Anfinson said in an email.

Assembly Speaker Tyler August, R-Lake Geneva, said in a Sunday episode of WISN-TV's "Upfront" that neither he nor Vos, R-Rochester, has polled members of the GOP caucus on impeachment.

"I think it's because both myself and the Speaker and the members of our caucus, we believe she's going to recuse herself because it's the reasonable and right thing to do," August said.

Since Vos first raised the idea of impeaching Protasiewicz, Democrats have launched a $4 million ad campaign against Republican lawmakers. The Republican Accountability Project, a national anti-Trump group focused on voting issues, also announced a six-figure ad buy on Monday to pressure 20 lawmakers to back off impeachment.

Under Wisconsin law, a "civil officer" can be impeached for corrupt conduct in office or for committing a crime.

Vos has said it's "common sense" that Protasiewicz should not rule on a case she has "prejudged," referring to the redistricting lawsuits.

Protasiewicz said on the campaign trail that she would step away from cases in which the Democratic Party is a plaintiff or defendant. The party is neither one of those in the redistricting cases. Additionally, Wisconsin's Code of Judicial Ethics contains a unique provision that says a judge "shall not be required" to recuse based solely on an endorsement or campaign contribution.

Wisconsin's rules require recusal in situations including when the judge or an immediate family member has a significant financial interest in the case's outcome, or if the judge has made “pledges, promises, or commitments” to rule in a particular way.

In the 2007 case Duwe v. Alexander, a Wisconsin federal district court ruled that there is a “very real distinction between a judge committing to an outcome before the case begins … and a judge disclosing an opinion and predisposition before the case."

It is up to the individual justice to decide whether to recuse from a case.

If lawmakers were to try to impeach Protasiewicz, proceedings would begin in the state Assembly, where a simple majority must vote to impeach before the state Senate can take it up. From there, the Senate can conduct a trial based on the evidence. If two-thirds of the senators present vote to convict, the official is removed from office.

In the case of a judicial officer, once the Assembly votes to impeach, the official cannot perform the duties of their office without being acquitted by the Senate. That leaves open the possibility the Senate could sit on the Assembly action without scheduling a trial, effectively sidelining Protasiewicz and leaving the court evenly divided at 3-3 on ideological lines.

State laws offer another path to remove a sitting judge or justice: removal by address. Under that procedure, the "address" must specify "charges against a judge alleging misconduct or that the judge is not physically or mentally qualified to exercise the judicial functions of the judge's office." The judge may then present a defense to the Legislature, and could be removed with a vote from two-thirds of all members elected in each chamber.

Daniel Bice of the Milwaukee Journal Sentinel contributed to this report.

Jessie Opoien and Molly Beck can be reached at jessie.opoien@jrn.com and molly.beck@jrn.com.

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This article originally appeared on Milwaukee Journal Sentinel: Robin Vos pulls back Janet Protasiewicz impeachment talk