by Ruth Conniff, Wisconsin Examiner
August 10, 2023
To hear Chief Justice Annette Ziegler and her right-wing allies describe it, you would think the new progressive majority on Wisconsin’s highest court was destroying a collegial institution, running roughshod over the integrity of the Court and threatening the very rule of law itself.
“My colleagues’ unprecedented dangerous conduct is the raw exercise of overreaching power,” Zielger declared in a press release last week. “It is shameful,” she added. “I fear this is only the beginning.” On Monday she told rightwing talk radio host Dan O’Donnell, “It’s nothing short of a coup, really.”
The subject of all this caterwauling was the new majority’s decision to fire the conservative chief justice’s right-hand man, Randy Koschnick, the director of state courts, replacing him with an appointee of former Republican Gov. Scott Walker who will answer to the whole court, not just to Ziegler. According to Justice Rebecca Dallet, Ziegler spent months rebuffing the majority’s efforts to get her to choose a date at the start of the term to discuss Court business. The new majority called a meeting anyway. At that meeting the justices revised Court rules “to make Court decision-making more inclusive, timely, and responsive” according to Dallet — and effectively to prevent the chief from slow-walking the calendar, preventing cases she doesn’t want to hear from coming up.
None of this amounts to a constitutional crisis. Right-wingers’ claims that a “rogue majority” is violating the constitution doesn’t stand up to a simple reading of the clause they cite, Article VII Section 4 of the Wisconsin Constitution: “The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.” (Emphasis added) The same section clarifies that “any 4 justices shall constitute a quorum for the conduct of the court’s business.”
The four progressives who now make up the majority went ahead and conducted court business without Ziegler only after she refused to join them. Instead of participating, Ziegler chose to air her grievances on talk radio.
Her temper tantrum is reminiscent of losing Wisconsin Supreme Court candidate Dan Kelly’s bitter, self-pitying concession speech on election night, which catapulted him into the Hall of Fame for sore losers.
Like Kelly, Ziegler can’t stand losing power and is publicly sulking about it. Kelly refused to congratulate Janet Protasiewicz, after she beat him in a romp, sniping that she was not “a worthy opponent” and sweeping off stage by calling down a curse on the entire state: “I wish Wisconsin the best of luck, because I think it’s going to need it.” Ziegler refuses to meet with her colleagues now that she’s in the minority and claims that she should still be able to make the rules.
“Look, the conservatives sowed this,” Jay Heck, executive director of Common Cause-Wisconsin, observes of the bad blood on the Court. “They sowed discord.”
Republicans pushed through a constitutional amendment in 2015 changing court procedures just so they could oust the late, nationally esteemed Chief Justice Shirley Abrahamson. After they’d changed the rules so that chief justices are elected by the majority instead of chosen by seniority, conservatives on the Court went even further and pushed out Abrahamson before the end of her term. Ziegler was elected to her first two-year term as chief by her conservative colleagues in 2021 and in March 2023 they gave her a second term in a secret vote whose breakdown they refused to disclose.
It’s been a long time since civility and decorum reigned. Ethically challenged one-term Justice Michael Gableman, before he landed his lucrative taxpayer-funded gig as chief inspector for election deniers, used to sneer and bloviate at his much smarter colleagues on the bench.
The unseemliness of the Gableman era has been topped only by the vitriolic Justice Rebecca Bradley, who compared Wisconsin’s stay-at-home order at the beginning of the COVID-19 pandemic to the internment of Japanese Americans during World War II, and who regularly launches ad hominem attacks on anyone who disagrees with her.
Not just in tone, but in the way it conducts its business, the Wisconsin Supreme Court has become a more partisan and less open, less collegial institution on conservatives’ watch. A conservative majority took public meetings on court business behind closed doors and rejected recusal rules for justices whose campaign donors bring cases before them.
“What’s happening now is a direct result of conservatives’ decision they’d take all this underground and not meet in public,” says Heck.
Given their track record, “If conservatives were the new majority there would be no question about what they’d do,” Heck adds. “They’d name a conservative chief justice and say, ‘We have a 4-3 majority, try to stop us.’”
Unlike the conservatives who pushed out Abrahamson, however, the new progressive majority has stopped short of trying to replace Ziegler.
Still, Heck has heard from people who worry that the new majority is being too bold and assertive. “Progressives are not really like that. We’re always saying, ‘Let’s do the right thing and the fair thing,’” he says.
Where’s the coup?
It took people aback when, the day after Protasiewicz was sworn in, the news broke about the abrupt firing of Koschnick — “a nice fellow, hail-fellow-well-met, jolly kind of guy,” according to retired Dane County Circuit Court Judge Rick Niess, who says he got along fine with Koschnick.
Still, Niess says, “This was an at-will position that he accepted, knowing full well he could be booted any day.”
“He serves exclusively at the pleasure of the Supreme Court, which is ruled by a majority. And to suggest that he didn’t see this coming is, in my mind, too fantastical to even contemplate,” Niess adds. “It’s one of the biggest non-issues the Court faces right now.”
Koschnick had to know his days were numbered. After all, he “executed the policies that the majority, largely in secret, adopted,” Niess adds.
And he was deeply enmeshed in right-wing politics. For example, when the Court offered Wisconsin judges money and continuing education credits to attend a Federalist Society convention in 2018, Niess and a few other judges met with Koschnick. “We said this is a corruption of the court,” Niess recalls, pointing out that convention sessions focused on “such lofty matters as barriers to getting more Trump appointees.” “And he admitted, well, you know, I’m a part of it. I’m a member of the Federalist Society. What do you do with that?”
There’s more at stake here than the whims of a ruling clique of justices.
Ziegler, who is hurling accusations about a “coup,” voted to support Donald Trump’s effort to invalidate 220,000 ballots after the 2020 election— part of a coordinated effort to overturn the results of that election. It was a close call, with conservative Justice Brian Hagedorn casting the single vote that decided the case, joining the court’s three progressives to reject Trump’s claim.
The stakes are high again for Republicans and their allies this year, with a challenge to Wisconsin’s gerrymandered maps, which have locked in disproportionate Republican control of the state Legislature for more than a decade.
Wisconsin voters, who chose progressive justices by big margins in the last two statewide Supreme Court elections, overwhelmingly oppose gerrymandering. But they haven’t had a voice because of the GOP’s iron grip on the state Legislature. That’s the real backdrop to the current clawing and screaming by right-wingers about progressives gaining power.
Ziegler is right to fear that it’s only the beginning.
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