The progressive website ThinkProgress is reporting that one or more of the four conservative justices on the Wisconsin Supreme Court have been involved in illegal coordination between their official campaign organizations and right-wing political organizations, according to a legal brief filed by Francis Schmitz, the special prosecutor in the John Doe II investigation into violations of campaign finance laws by Republican Wisconsin Governor Scott Walker. The name(s) of the justice(s) involved in the illegal coordination, the political groups involved in the illegal coordination, and the names of other individuals implicated were redacted because of Wisconsin state laws that govern John Doe investigations prohibiting the disclosure of identities until and unless charges are filed. Schmitz has asked for two of the justices to recuse themselves from the case, but the identities of those justices were redacted in the publicly-available version of the brief.
This development comes at the same time that the Wisconsin Supreme Court is hearing a case in which the conservative majority on the bench will probably decide to strike down the John Doe II probe, which is a flagrant conflict of interest, given that all four of the conservatives on the Wisconsin Supreme Court bench have benefited from money spent by right-wing groups that are implicated in the investigation. However, none of the four conservatives have shown any indication that they will recuse themselves from the case. Personally, I believe that all four of the conservatives on the Wisconsin Supreme Court bench, David Prosser, Michael Gableman, Patience Roggensack, and Annette Ziegler, should recuse themselves from all cases involving the John Doe II probe that are brought before the Wisconsin Supreme Court.
During the midst of the Great Depression, then-Democratic President Franklin Delano Roosevelt was stymied by a conservative-led U.S. Supreme Court that struck down many of FDR’s New Deal programs. On February 5, 1937, FDR unveiled a court-packing scheme, titled the Judicial Procedures Reform Bill of 1937, that, in part, would have allowed FDR to pack the bench of the U.S. Supreme Court (SCOTUS) by appointing either six new justices or a number of new justices equal to the number of current justices who were older than 70 1/2 years of age, whichever was lesser, which would have resulted in a SCOTUS bench consisting of up to 15 members and, more than likely, a solid pro-New Deal majority. Nearly two months after FDR’s court-packing plan was unveiled, then-SCOTUS Associate Justice Owen Roberts, the usual swing vote on the New Deal-era SCOTUS who had previously sided with the “Four Horsemen”, as the anti-New Deal justices were known as, sided with the pro-New Deal justices in a 5-4 decision upholding the State of Washington’s minimum wage law. That decision also effectively ended any chance of FDR’s court-packing scheme from becoming law and kept the SCOTUS bench at nine members, which it remains today.
Nearly eight decades after FDR’s federal court-packing scheme failed, Wisconsin Republicans are attempting to pack the Wisconsin Supreme Court (SCOWI) with conservative justices. However, the Republicans in Wisconsin are not trying to increase the number of justices on the bench of Wisconsin’s highest court (currently seven), and they aren’t stymied by liberal justices who are using the court to block Republican Governor Scott Walker’s far-right political agenda (in fact, Walker’s conservative allies have a solid majority on the court and have rubber-stamped every part of Walker’s agenda that has come before the court, including the union-busting Act 10 law). Instead, they’re “stymied” (note the quotation marks) by SCOWI Chief Justice Shirley Abrahamson, who is a liberal chief justice on a conservative-controlled court by virtue of being the most senior member of the court, and their efforts to pack Wisconsin’s highest court so that all seven spots on the SCOWI bench are held by far-right justices is a three-pronged effort:
- Enact a state constitutional amendment that would allow SCOWI justices to elect their own chief justice, which, if enacted, would result in one of the conservative justices, probably Patience Roggensack, becoming chief justice. This amendment will go before Wisconsin voters on April 7, and “yes” votes from a majority of voters would be required to ratify the amendment and effectively remove Abrahamson from the chief justice’s chair on the SCOWI bench. I’ve endorsed a “no” vote on this amendment.
- Enact a state law that would set a mandatory retirement age of 70 years for state judges in Wisconsin. This would automatically remove Abrahamson, as well as Patrick Crooks, the lone moderate on the SCOWI bench, from the bench entirely, and their replacements would be appointed by Walker, who would appoint far-right justices to replace Abrahamson and Crooks on the bench. Given that Republicans control both houses of the Wisconsin State Legislature, and Walker would almost certainly sign a judicial mandatory retirement bill into law, it’s not a matter of if a judicial mandatory retirement bill will be enacted, but when it will enacted.
- Defeat liberal SCOWI justice Ann Walsh Bradley, the other of the three justices who usually side against Walker and his cohorts on the SCOWI bench, in this year’s state supreme court election. Conservatives are running James Daley, a Rock County circuit court judge, against Bradley, however, Daley is not a strong candidate, having repeatedly flip-flopped on the proposed chief justice amendment that will be on the ballot at the same time he is, so there’s a good chance that Bradley could win re-election.
The proposed Wisconsin Supreme Court Chief Justice amendment is about more than simply removing Shirley Abrahamson from the chief justice’s chair on Wisconsin’s highest court. It’s the first prong of Wisconsin Republicans’ three-prong court-packing scheme designed to completely remove liberals and moderates from Wisconsin’s highest court and replace them with right-wing extremists who will rubber-stamp Scott Walker’s destructive agenda and oppose all efforts by Wisconsin Democrats to implement progressive policies designed to make Wisconsin a better place to live if and when Democrats regain control of the governor’s office and/or the state legislature. Wisconsinites can oppose the first and third prongs of the GOP’s court-packing scheme by voting for Ann Walsh Bradley for Wisconsin Supreme Court and voting “no” on the chief justice amendment on April 7, which will send a strong message to the Republicans that control Wisconsin’s state government that they won’t support the second prong of their court-packing scheme. The state court-packing scheme that Republicans are trying to implement in Wisconsin is even more ridiculous than FDR’s federal court-packing scheme that he proposed nearly eight decades ago.