Vos backs down from impeaching Protasiewicz, while hinting the US Supreme Court could intervene

A conservative former justice advised Rep. Robin Vos not to pursue impeachment for “partisan politics,” but the Speaker telegraphed potential US Supreme Court interference in Wisconsin’s political maps—again.

Assembly Speaker Robin Vos appears to have temporarily backed away from his threat to impeach progressive state Supreme Court Justice Janet Protasiewicz, after a former conservative justice advised him against the effort. But Vos also indicated a possible ace in the hole: assistance from a US Supreme Court dominated by right wing justices who have already stepped in once before to ensure the state’s political maps favor Republicans.

Former Justice David Prosser released an email that he sent to Vos last week, advising him that attempting to impeach a sitting justice must be reserved for a crime or corrupt conduct rather than “unreasonable partisan politics.” Prosser turned the email over to the liberal watchdog group American Oversight as part of an open records request.

“To sum up my views,” Prosser wrote, “there should be no effort to impeach Justice Protasiewicz on anything we know now. Impeachment is so serious, severe, and rare that it should not be considered unless the subject has committed a crime, or the subject has committed indisputable ‘corrupt conduct’ while ‘in office.’” 

Prosser said Protasiewicz’s opinions about the current legislative and congressional district maps being gerrymandered did not rise to the level of corrupt conduct. Republicans tried to make the case that her comments required her to recuse herself from a new legal challenge to the current maps and that she should be impeached if she refused to step down from helping decide the case.

Protasiewicz was elected to the court in April by a substantial margin and gave progressives control of the court for the first time in more than 15 years. 

On the same day Prosser sent his email, Protasiewicz and the three other progressive justices who control the court decided they will take up the maps challenge directly, bypassing lower courts and increasing the odds that new maps could be ready for the fall 2024 elections.

Late Tuesday, Gov. Tony Evers filed a motion to become an intervenor in the legal challenge. While it was originally brought by several progressive groups, Evers and state Attorney General Josh Kaul say they should be allowed to join the original plaintiffs in pursuing the case because the governor is a proper party in reapportionment matters and that his intervention is warranted in this case.

Vos released a statement Monday that did not focus on impeaching Protasiewicz, but he did indicate an alternate path to potentially keeping the gerrymandered maps in place.

“Justice Protasiewicz should have recused herself,” Vos said. “We think the United States Supreme Court precedent compels her recusal, and the United States Supreme Court will have the last word here.”

Vos did not specify what he expected the US Supreme Court to consider. Wisconsin’s recusal rules for justices could form the basis of a Republican appeal. 

More ominously, a Republican appeal could involve asking the nation’s highest court to second-guess the state’s highest court and overrule its decision on the state’s gerrymandered maps—a level of judicial activism once considered rare, but something Wisconsin has already experienced.

In March 2022, the conservative justices on the US Supreme Court threw out a legislative map submitted by Gov. Tony Evers and agreed upon by the Wisconsin Supreme Court, claiming the state court approved a map that had too many Black-majority Assembly districts—seven instead of six. The ruling forced the state Supreme Court to choose a different map, one submitted by Republicans that had previously been vetoed by Evers. Republicans did not have enough votes in the Legislature at the time to overrule Evers’ veto, but the US Supreme Court essentially carried out the override for them.

In a scathing dissent, liberal Justices Sonia Sotomayor and Elena Kagan slammed the conservative justices’ “unprecedented” action to overturn a state’s map, something normally done only “for [state] decisions in violation of settled law.” 

“This Court’s intervention is not only extraordinary but also unnecessary,” they wrote.

The Associated Press contributed to this story.