Liberal Justices Do Some Good Stuff

Over the last week I’ve been heavily critical of the new liberal majority on the Wisconsin Supreme Court. It looks to me as if they sacked a perfectly competent courts administrator to put in place their own political appointee, loyal to them.

But now they’ve done some things that are worth praising. They’ve changed a host of court rules, four of which are especially noteworthy.

First, they’ve reopened their administrative meetings, which conservatives had closed to the public back in 2012. Good for them. Transparency is always a good thing. However, I have to point out that they opened things up only after they met behind closed doors to fire the courts administrator and to change these very rules that I’m lauding them for today.

Second, they’re moving toward tightening up rules on recusals when justices have a conflict of interest. This kind of thing has come under scrutiny lately, mostly because of what’s been reported about the U.S. Supreme Court and its members’ casual disregard for cozy relationships with high-powered people, some of whom have had business before the Court. Anyway, attention to this is a good thing.

Now, a cynical person (and I am not a cynical person!) might suspect that this might have something to do with getting Justice Janet Protasiewicz out of the box she put herself in by promising to recuse herself from cases involving the Democratic Party, which gave a bunch of money to her campaign. Since the Party has a clear interest in the redistricting case it would appear that she would have to recuse herself. And the national party has filed a suit over voting drop boxes, another case Protasiewicz would have to sit out if she honors her own promise. So, my guess is she’ll either say that she won’t recuse herself from these cases because the new recusal guidelines are still a work in progress or the rules will be written to provide her with some clever out. She might say that the Party isn’t a formal plaintiff in the redistricting case and it’s the national party that filed the drop box suit while her money came from the state party. What Protasiewicz will not do under any circumstances is take her own recusal promise seriously.

Third, they’ve essentially stripped the conservative Chief Justice of her power. They did that by saying that she must be joined by two other justices, selected by a majority of the Court, in making key decisions. The liberals will elect two of their own and then outnumber Chief Justice Annette Ziegler. This is a blatant power play, but it gives Ziegler and the conservatives a taste of their own medicine. Recall that legislative Republicans moved to strip the incoming Democratic Governor and Attorney General of some of their powers during a lame duck session after the 2018 elections. Ironically, Ziegler even complains now that the Court liberals are acting inappropriately in August when they should have waited until the Court business term formally begins in September. I didn’t hear her making the same argument during that lame duck session in late 2018 when Republicans acted before Evers could take office and be in a position to veto their bills.

And fourth, they’ve made it harder for the conservatives to slow down cases, particularly that redistricting case. That’s important because the liberals will want to deal with it ASAP so that new maps can be in place for the 2024 elections.

The measure of whether or not a rule is good is the reversal test. Imagine how you’d feel about it if the other guys were doing it. How does that shoe feel on the other foot? I’d say that three of the four moves pass that test. More transparency, clearer rules on recusals and making it harder for justices to run out the clock are good regardless of who is in the majority. Adding the two justices to weaken the Chief is purely aimed at Ziegler and, while I have no sympathy for her, it doesn’t have much justification beyond that.

I still don’t understand why the liberals found it necessary to act within moments of taking power. It seems like it would have made sense to bask in their new found authority for a few weeks before actually exercising it. But they did what they did. Some of it was bad and some of it was good. Now they’ll move on to the substance of their job.