The following is a guest post from James Sample:
My basic reaction to Justice Protasiewicz’s opinion is one bordering on intractable depression. It’s both necessary and impossible to disaggregate the interwoven components of the entire Wisconsin political milieu. The matter is a function of myriad interrelated questions, five (ish) of which I set out in wholly incomplete form below:
(1) Should the baseline for Protasiewicz’s recusal analysis be a fresh, de novo consideration of the recusal merits or should it be contextualized by recent Wisconsin practices and shenanigans (See various recent Wisconsin judicial controversies involving, inter alia, Justice (now Chief) Ziegler, Justice Gableman, Justice Prosser, Justice Rebecca Grassl Bradley)? Phrased differently, recent judicial ethics practices in Wisconsin are widely considered to be egregious by comparison to judicial ethics norms generally; should those practices be relied on as precedent, and if so, or if not, what are the consequences?
(2) Whatever the merits or demerits of judicial elections, if one stipulates, as one must, to an elected judiciary, especially in a state in which gerrymandering is as partisan and skewed as just about anywhere in the country, is it proper or improper to view the campaign process and judicial election itself as a kind of mini-referenda on the anti-democratic redistricting? Particularly given that the legislature’s gerrymandering, by definition makes it difficult for voters to meaningfully register their displeasure with legislators insulated by that same gerrymandering, is it not arguable that crediting and making manifest the consequences of Justice Protasiewicz’s relatively convincing judicial-electoral win is the best of the bad democratic options? Is it not arguable that the anti-democratic aspects of partisan gerrymandering would be exacerbated by yet further muting the voters who (at least theoretically) opposed that gerrymander via their judicial election votes?
That is to say, if one believes in judicial elections (and clearly, much to the dismay of most scholars, many people and states do), perhaps then the case exists to be made that a Protasiewicz recusal in this case would deny Wisconsin the attributes of the judicial selection system that, rightly or wrongly, is the one with which they are stuck. Balancing that “attribute” against the due process and impartiality interests inherent in the judicial role is no easy task, and one as to which reasonable minds can differ.
(2a) While I find Protasiewicz’s opinion to be unpersuasive, she is correct that there is a meaningful distinction between a private individual (Don Blankenship for example) with a direct pecuniary interest (same), spending exorbitantly and disproportionately in a judicial campaign (as he did), where that exorbitant spending still amounted to pennies on his own ROI dollar (as it would have, absent Caperton), for that private individual’s litigation-specific pecuniary interests, and a political party with numerous and diffuse supporters, numerous and diffuse interests, and in a (nominally and frankly falsely) non-partisan campaign.
Does that difference in degree justify Protasiewicz’s conclusion that she need not recuse? There is no doubt that the majority in Caperton repeatedly emphasizes the extreme facts, so she is not wrong to advance this line of reasoning, even if one disagrees (as I mostly do) with her conclusion.
(3) While it is arguably politically savvy on her part, given Speaker Vos and his fellow barbarians at the impeachment gates, to lead with Justice Alito (and to repeatedly cite Chief Justice Roberts’ dissent in Caperton), does this “savvy” not also reinforce a sense that we are in a national judicial ethics race to the bottom?
An opinion by a non-recusing jurist that leads off by citing Justice Alito as an ethics exemplar, is an avalanche hurtling down democracy mountain towards judicial ethics oblivion. Whatever one thinks of Protasiewicz’s decision, credit her with this: it is a clear illustration of the fact that the sorry state of judicial ethics in the U.S. Supreme Court has consequences that extend to courthouses far beyond Washington, D.C..
(4) Is it possibly the case that while Protasiewicz might be required to recuse in just about every state other than Wisconsin, she may nonetheless not be required to do so in Wisconsin? It bears noting that Wisconsin law on judicial disqualification does differ in certain respects from most other states and from the federal judiciary. In most states, and in the federal judiciary, the rule is that a judge shall disqualify whenever the judge’s impartiality “might reasonably be questioned.” (See 28 U.S.C. s. 455).
In Wisconsin, by contrast, that exact language has not been adopted. Instead, Wisconsin law lists six specific circumstances in which recusal is required, and then, its seventh category “catch-all” provision is markedly different from the more widely applicable standard. Wisconsin’s catch-all provision requires recusal when the judge “determines that, for any reason, he or she cannot, or it appears that he or she cannot, act in an impartial manner.” (Wis. Stat. § 757.19(2)(g)). Despite the inclusion of the “or it appears that” language which seems to call for an objective component in the inquiry, historical practice in Wisconsin is that the standard is to “place the determination of partiality solely upon the judge.” (State v. Harrell, 199 Wis. 2d 654, 664, 546 N.W.2d 115 (1996)). Thus, while the vast majority of judicial ethics scholars would argue that Wisconsin’s practice on this score is uniquely egregious, and perhaps even that Wisconsin courts have historically misread the Wisconsin law (by ignoring the appearance language), it does offer Justice Protasiewicz more than a fig leaf of cover.
(5) What of Republican Party of Minnesota v. White?
Protasiewicz selectively relies on Republican Party of Minnesota v. White in a self-serving, and not entirely credible fashion. While I happen to agree with her campaign trail statements about the Wisconsin redistricting (and recognize the extraordinary state and national stakes in the case) those statements were much stronger than the statements that were at issue in White. (She used words like “rigged” and “unfair” in describing the scheme). No, her statements didn’t rise to the pledge or promise (as opposed to announce) level, but there is also little doubt that that they come much, much closer than did the statements at issue in White. Would a rose by any other name effectively be a pledge or promise?
Justice Scalia’s opinion in White emphasized the distinction between announcing views on issues (copacetic) and parties (less so). Given the zero-sum game of a two-party system, and the zero-sum game of redistricting, it strains credulity to assert that the support of the Democratic Party of Wisconsin for Candidate Protasiwiecz, can truly be disaggregated from her forcefully stated opposition to the redistricting plan that, should it be upheld, would severely and intentionally disadvantage that same Democratic Party of Wisconsin. I.e., here it is entirely arguable that the “issue” and the “party” are, for practical purposes, one and the same.
(5a) Finally, Justice Protasiwiecz’ own subjective belief that she can magically transform from Candidate Protasiwiecz – who forcefully and repeatedly expressed clear hostility and opposition to the legislature’s redistricting scheme – to Justice Protasiwiecz – who is an ostensibly blank slate – highlights a fundamental tension of judicial elections.
To this end, she writes: “I simply expressed my personal opinions as permitted by [White]. When I put on my robe, I put my personal opinions aside.”
Necessary. And impossible.