by The Badger Project, The Badger Project
August 31, 2023
Wisconsin Supreme Court Justice Rebecca Bradley, left, has criticized new Justice Janet Protasiewicz for not recusing herself from cases on gerrymandering.
By Peter Cameron, THE BADGER PROJECT
Earlier this month, right-wing Wisconsin Supreme Court Justice Rebecca Bradley denounced the court’s left-wing majority in her dissent on a minor decision in a redistricting case.
“Despite receiving nearly $10 million from the Democrat Party of Wisconsin and declaring the maps "rigged," (new Justice Janet) Protasiewicz has not recused herself from the case,” Bradley wrote earlier this month, using a pejorative term for the Democratic Party often used by Republicans. “These four (left-wing) justices will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz's many promises to the principal funder of her campaign.”
Bradley is right about the huge sums of cash Protasiewicz received from the Democratic Party of Wisconsin, which gave her about $10 million in her 2023 campaign.
But she left out an important nugget of information: Bradley voted against a rule that would have forced the state high court justices to recuse themselves in cases involving their campaign donors.
The issue dates back to 2017, when a group of retired judges asked the Wisconsin Supreme Court to enact a ban barring justices from ruling on cases involving an individual or organization that had donated to a justice’s campaign.
Ed Miller, a UW-Stevens Point political science professor emeritus
At the time, a 5-2 conservative majority controlled the court. Bradley joined her right-wing colleagues, which included current Chief Justice Annette Ziegler, to kill the proposed recusal rule.
The petition “asks us to infringe the First Amendment rights of the people of Wisconsin who wish to participate in judicial elections, either through supporting a candidate directly or speaking out on issues in a judicial race,” Bradley wrote in her opinion. “The people of Wisconsin, like everybody else in this country, have a First Amendment Right to do that. They have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose, without being penalized for exercising their free speech rights. . . . In my mind, this petition is somewhat shocking in its disregard for the Wisconsin Constitution and the United States Constitution, particularly the First Amendment.”
Bradley’s stance on Protasiewicz’s recusal is “inconsistent,” Ed Miller, a political science professor emeritus at UW-Stevens Point, and a longtime watcher of the Wisconsin Supreme Court, wrote in an email.
“Often people think that the court is not a political body,” he added. “In fact, it is and always has been.”
Bradley did not respond to a request for comment sent to the court’s public information officer.
During the campaign, Protasiewicz promised to recuse herself from cases involving the Democratic Party of Wisconsin, which had already donated large sums to her campaign.
The Wisconsin Supreme Court is currently considering two different redistricting cases. The Democratic Party of Wisconsin is not a direct participant in either, although the party has a vested interest in the cases’ outcomes. Many experts say Wisconsin is one of the most gerrymandered states in the country, in favor of the Republicans who drew the maps.
State law allows individuals to donate up to $20,000 per election to a candidate for the Wisconsin Supreme Court. But a legal loophole in Wisconsin permits unlimited donations to political parties, and parties also have no limits on how much they can donate to candidates. So huge sums can circumvent campaign finance limits by flowing through parties to candidates.
Former Wisconsin Supreme Court Justices Janine Geske and Louis Butler both signed the donor recusal petition back in 2017.
The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.
This story was funded in part by a grant from the Jon and Martha Hove Donor Advised Fund at the Community Foundation of Dunn County.
This article first appeared on The Badger Project and is republished here under a Creative Commons license.
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The Clairvoyance of Rebecca Bradley
Justice Rebecca Bradley is one of the candidates for Supreme Court Justice in Tuesday's primary election. Her rather rapid advance through the court system hierarchy has been largely the responsibility of Governer Walker, as she has been appointed by him three times, most recently to the state Supreme Court. Past experience with the governor's atititude toward the courts suggests that he is somewhat less interested in fairness than in getting conservative outcomes.
The upcoming election is partly a referndum on whether her appointment to the Supreme Court was the right decisioin, or if another judge may have been better suited. A recent decision by the State Supreme Court throws some light on whether Bradley will be a fair and impartial judge, or if she will join the current group of conservative judges on the court who generally vote together on any issue.
The recent decision in State of Wisconsin v. Charles V. Matalonis is to my mind a pecululiar decision. In this case the court ruled 4-3 that in this case a warrant was not needed for a house search that resulted in a marijuana bust because the police were working as community caretakers at the time that they searched the house. This seems a big stretch, as it would mean that warrantless searches can occur if the police believe they are working in a community caretaker role rather than investigating a crime. Clearly police serve both roles, but they really should be able to make up their minds which they are doing at any given time. In any case, in this instance it appears that the police were acting beyond their roles as caretakers, which even Justice Prosser saw while writing his own dissent.
Even more disturbing to me, Justice Bradley voted with the majority in this case even though she did not hear the original arguments of the trial. Is this the sort of "interpreting the law rather than inventing it" that she is promising? As Justice Abrahamson argued in her own dissent in this case, this appears to be an unprecedented move on the part of Justice Bradley. Since there's no precedent it is hard to say that this ruling is wrong due to Bradley voting - but it's clearly unseemly, and smacks of joining in with her friends on a ruling even though she didn't participate in the fact-finding.
Because of this lack of judgment, her shortage of judicial experience, and her past record as a judge, I am going to support Judge JoAnne Kloppenburg in the election on Tuesday, and I suggest that you consider doing the same.
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