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奥颈蝉肠辞苍蝉颈苍鈥檚 April 2023 state Supreme Court election was historic. It was the nation鈥檚 , with in total spending, and it for an off-cycle spring election.

Janet Protasiewicz, a Milwaukee circuit court judge and self-described progressive, won an 11-percentage-point victory, shifting the court鈥檚 at a moment when major legal clashes over abortion and redistricting are looming.

奥颈蝉肠辞苍蝉颈苍鈥檚 Republican-controlled legislature is that Protasiewicz recuse from鈥攖hat is, excuse herself from鈥攃onsidering two recently filed lawsuits that challenge the state鈥檚 legislative maps, which heavily favor the GOP, as unlawful partisan gerrymanders. They argue that she cannot be fair because during her campaign in the nonpartisan judicial race, she received from the state Democratic Party and criticized the state鈥檚 Republican-drawn maps as 鈥�.鈥�

For their part, the state and spent millions backing Protasiewicz鈥檚 opponent, who once defended a prior version of the maps in court.

Legislators are Protasiewicz if she hears the cases.

As this controversy unfolds, it is important to know the law and practice of judicial recusal and impeachment in Wisconsin and beyond鈥攁 topic that , of state courts and constitutions, have .

In short, recusal is rare, and impeachment is even rarer.

The United States Constitution . Additionally, every state has binding rules that prohibit judges from hearing cases involving situations deemed to pose an unacceptable risk of bias, such as when the judge is related to a party in the case or has a personal financial stake in the outcome.

Judges, however, are rarely required to recuse because of views expressed while campaigning or because they received campaign support from someone interested in a case.

When it comes to campaign statements, the U.S. Supreme Court that judicial candidates have a First Amendment right to offer their opinions on disputed legal and political issues. Judges, the court recognized, are not blank slates. Whether on the campaign trail or elsewhere, they commonly develop and express views on issues, including ones they later encounter in court. Yet the law presumes that they remain able to adjudicate evenhandedly. Judicial candidates go too far only when they directly promise to make a particular ruling in a case.

As for campaign funds, the U.S. Supreme Court has that a judge violated due process鈥攖he Constitution鈥檚 guarantee of fundamental fairness鈥攂y hearing a case involving a financial backer. That 2009 case involved a West Virginia Supreme Court justice whose campaign received most of its support from the head of a coal company who had recently lost a $50 million jury verdict. Shortly after taking office, the justice cast the deciding vote to wipe out that verdict on appeal.

that, taken together, those facts required recusal. But the majority repeatedly stressed that it was 鈥渁n exceptional case鈥� involving 鈥渁n extraordinary situation鈥� with facts that were 鈥渆xtreme by any measure.鈥�

The decision has turned out to be one of a kind. We are not aware of any subsequent case, in any court, finding that due process barred a judge from hearing a case because an interested party supported the judge鈥檚 campaign.

奥颈蝉肠辞苍蝉颈苍鈥檚 鈥攅ssentially the official, legally enforceable rule book for the state鈥檚 judges鈥攃onfirms that judges are generally allowed to hear cases involving campaign supporters. It states that 鈥渁 judge shall not be required to recuse 鈥� based solely on 鈥� the judge鈥檚 campaign committee鈥檚 receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.鈥� The Wisconsin Supreme Court to the code in 2010, after two of the largest financial backers of the state鈥檚 conservative justices filed petitions proposing the change. The court to revisit this rule in 2017.

In Wisconsin and nationwide, themselves based on their campaign statements and financial supporters.

In 奥颈蝉肠辞苍蝉颈苍鈥檚 five most recent contested Supreme Court elections, the winning candidates all had . Yet none of those justices has ever recused on that basis, or even been formally asked to do so. In , justices in North Carolina, Ohio, Pennsylvania, and elsewhere have participated despite financial and other ties to one or the other major political party.

Judicial Impeachment Uncommon, Reserved for Serious Wrongdoing

At and , lawmakers have the power to impeach judges. That authority, however, is traditionally limited to extreme circumstances and has been exercised sparingly.

In Wisconsin, judges鈥攁nd other officials鈥攃an be impeached only for 鈥�.鈥� The state Assembly can impeach by majority vote, but it takes a two-thirds majority in the state Senate to convict. Republicans currently hold nearly two-thirds of the seats in the Assembly and exactly two-thirds in the Senate.

Only once in 奥颈蝉肠辞苍蝉颈苍鈥檚 175-year history has . That was in 1853, when Milwaukee Circuit Court Judge Levi Hubbell faced 11 articles of impeachment. Allegations ranged from accepting a $200 bribe鈥攁bout $8,000 today鈥攆rom a litigant to ruling on loans and debts he purchased through middlemen and taking the court鈥檚 money for personal use. Following a trial, the state Senate acquitted him.

Most states have likewise had no more than one or two judicial impeachments in their histories, and Congress has impeached only . Since the 1990s, , , and are the only states to have impeached a judge, and only the Pennsylvania judge was convicted and removed.

Most past judicial impeachments, whether they have resulted in conviction or not, have involved allegations of criminal acts or other flagrant misdeeds. None rested on a judge鈥檚 nonrecusal from a case involving campaign statements or supporters.

Impeachment threats have been than actual impeachments, so it remains to be seen whether Wisconsin lawmakers will indeed follow through.

Protasiewicz or her allies could challenge an attempted impeachment in state court, as has happened in . has already been filed. With little governing precedent, it is uncertain exactly how events might unfold.

The stakes could hardly be higher. The impeachment of a recently elected justice based on lawful campaign conduct and a legally grounded decision not to recuse would negate the people鈥檚 votes for Protasiewicz, in our view striking a blow to the principle of judicial independence.

It could also be a setback for efforts to overhaul 奥颈蝉肠辞苍蝉颈苍鈥檚 electoral maps, which rate as among the in the country.

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