And I assume for both of our sakes,
we're not showing shoes.
Okay, we're rolling.
We're ready. All right.
Well, I guess we wanted to talk a
little about recusal.
Can you give me a sense of how
important recusal is in terms
of Supreme Court justices and
the appearance for the public to
understand that they will take
themselves away if they have a bias?
Well, recusal is important in
the sense that it is part of
this big-picture notion that
people are entitled to unbiased
adjudicators, meaning people who
will decide their case based on the
law and the facts rather than
based on their personal interests
and prejudices.
And so the recusal standards that we
have are meant to implement that
rule.
And, you know, what we
see is instances in which...
Justices, judges will step aside
if they have a situation that would
qualify as one where there
is a risk of
actual bias or the
appearance of bias.
So the appearance of bias appears to
be the big sticking point for a lot
of people, especially politically,
lately. Justice Perse, when
she ran for office, started talking
about her values in a way that
was new for a Supreme Court justice
to come out and say what they felt
about things, not how they would
rule on them.
In some people's eyes, they blurred
that line that used to exist.
How has that changed the public's
perception of when someone should
recuse themselves?
Yeah, well, so, you know, the
recusal standards go
back a long way, and there are
some types of recusal that are
long-established, fairly clear-cut.
You know, judges need to step aside
from a case if they've been
personally involved in the case, if
they have a relative who has been,
if the have a financial interest in
the state, in the, in case.
But what we're seeing more of these
last few years is
requests for justices to
step side because of things they
said on the campaign trail and
or because of support,
financial support that they received
from the campaign.
Now the recusal rules
themselves are actually quite
permissive when it comes to both
money and campaign statements.
The expectation is that,
under the current rules, that
judges and justices won't step aside
because of their
discussions of issues or values on
the campaign trail or because of
money they've received.
And as more of that
happens, right, as we have.
Record-breaking judicial elections
in terms of the money pouring in,
as we have justices who are being
more candid about their views and
values, then more of these requests
to recuse come.
But in reality, most of them get
denied, and under the rules, as
they're currently written, probably
ought to be denied because the
recusal standards are relatively
narrow standards.
When it comes to, so we've seen,
especially with Justice Prose, which
has seen legislative Republicans
ask her to recuse herself on
gerrymandering lawsuits
multiple times, and she has not
stepped aside, even though she said
the maps were rigged when she was
running for office.
We've also seen more recently,
former Justice Gabelman and now
James Troupas,
asking justices to recused
themselves from their cases, saying
that they had made statements that
showed they were personally biased.
At what point are we getting from,
there's a legitimate request for a
justice to take a look and examine
recusal versus a political
statement saying this is rigged.
If it goes against me, it's
because they're unfair.
Yeah, you know, that is a concern.
I haven't run the numbers on this,
but my strong sense is that
the volume of recusal requests that
we've seen over the past year or two
are more than we've ever seen before
in Wisconsin.
And the nature of those requests
really tends to be quite political.
It is coming in
the last couple of years, maybe
unsurprisingly, because we now have
a Supreme Court with a liberal
majority. It's coming mostly from
conservative litigants who are
expressing concerns about whether
those justices can be fair.
And by the way, this flips the
script really on what we saw a
decade ago when you had a
conservative majority on the court.
And although the volume of recusal
motions was not as high, when
they came it was more often from
liberal litigates and their
allies.
Thank you.
What is the effect of those
motions? You know, there have been
concerns expressed by the justices
themselves that these motions are
really weaponized right now.
And they're not about actually
trying to assess whether under the
rules as they exist, someone has to
step aside, but instead they're
drawing attention away from the
legal issues to political
ones. They're drawing a attention
away from the decisions and putting
it on the decision makers.
And from the perspective of the
justices, that's a much less
comfortable place for them to be.
From their perspective, they
take an oath to be impartial.
They take an oath to put that aside.
And I think they would love to
see fewer of these motions.
Now, another perspective on that
might be these motions are
really a symptom of a broader
problem or problems,
the changing nature of our judicial
campaigns, where you do
have...
Candidates who are being more candid
about their views.
And by the way, the U.S.
Supreme Court has invited that.
It has said that candidates have a
First Amendment right to express
themselves in that way on the
campaign trail.
And so candidates not only in
Wisconsin, but across the country,
are increasingly speaking out in
these ways.
And the amount of money has
really proliferated.
And so it may be that, you know,
you need to do something about those
root causes before you're
actually able to address the volume
of recusal motions.
Much of this fits into this broader
thing we've seen in the Trump
era but in the last decade at least
of attacks on the
impartial view of the judiciary
from how people view the Supreme
Court all the way down to federal
courts every which way it's
it's become this you know
zero-sum game of partisan lens
of all decisions coming out of the
judiciary.
I think that that's an accurate
reflection of what we're seeing.
And again, there are multiple causes
of that. One is that state courts
are seeing more high stakes
politicized issues than
they used to. And some of that,
again, traces to the US Supreme
Court. The US Supreme court has
said, if you want to litigate about
partisan gerrymandering, if you
wanna litigated about abortion, the
places to do that are actually in
state court now, not federal court.
Right and so,
you know what?
And that sort of naturally makes the
state courts these venues
for these issues that
divide people ideologically.
Uh, and contributing to that even
more is the fact that our state
Supreme Court has, in recent years,
been closely ideologically divided.
And so that does seem to
incentivize, uh, this rise and
recusal request.
Uh, you know, maybe the goal is
actually to try to change the
composition of the court in a way
that you think will help you, but at
the very least, uh it is an
attempt maybe to raise some doubts
about whether we should
give credence to the legal decision
that this body is issuing.
And from the perspective
of people who would
want there to be independent
courts that stand apart from
politics and the political branches,
their job today is harder.
This is maybe a tough question
for you to answer, but
in the sense of,
you know, a decade plus ago, we
didn't have as much politicization
of the courts, or as many recusal
attempts in this effort to shade
any decisions from the courts as
being politicized.
We do now, from the public's
perception, are
the courts more political
in actuality, or is it simply
that they have been politicized as
far as the viewpoint of the public
looking at their decisions.
You know, it may be some of
both, right? There are sort of data
points that we can look at, for
example, when we have, formally
speaking, nonpartisan
courts in Wisconsin.
But if you look at the patterns of
contributions to those races,
they have become more
ideologically polarized.
If you look in voting patterns in
those races they have also become
more ideologically polarized.
So does that have an effect?
On who is sitting on the court and
the work that they are doing in
their view of their role, perhaps
it does. Now, by the same token,
I think that if you ask
the folks who are sitting on court
right now, across the ideological
spectrum, they truly do
view themselves as having a
distinctive role that they ought to
play, and one that does stand
apart from partisan politics.
You know, they may come into the job
with certain judicial philosophies,
certain views and viewpoints, and
that may shape the way that they
approach particular cases, but
nevertheless, they would say we
still are doing something
distinctive and important that needs
to happen in our system.
So I guess kind of zero-sum,
when people in the public that don't
follow the courts that closely hear
this person, Jim Trupas,
ask for multiple justice recuse
themselves, saying they're biased,
and then whether they do or they
don't, they sit on the case, same
with Gabelman, should they
put, is it up to them
to put a value judgment on whether
the justice should have recused or
not, or should that flavor how
they view anything that comes out of
those cases?
Right, well, you know, from the
perspective of the justices,
formally speaking, the way that the
rules are structured, it is up to
the individual justice to look at
that request recuse and
make a decision based on
how that request maps on to the
recusal rules as they exist.
You know, form the perspective a
member of the public, it's
understandable that given the nature
of the system we have, right, the
increasingly politicized system, the
fact that so much politicized
money is pouring in.
That they may reasonably have
some concerns about how
these cases are being decided.
You know, at the same time, I
think the onus is on them to
try to look behind the politics
and engage with the legal issues and
listen to the justices, read their
opinions.
And I do think that there is
something different that judges
still are doing.
They are forced to reason through
issues and apply law in
ways that the other actors
in our system don't really have to
do. And that does put some
constraining effect on them,
and an important constraining
effect.
And if you would sum up some
of the ideas that people have had to
change the recusal system because
there had been Proposals when the
liberals were not the majority they
had some proposals and I'm sure the
conservatives will have some
proposals now But what are some of
these ideas that could make the
recusal a little more?
Transparent or clear as to when
someone should or should not sit out
Sure, I mean, you know, there are
different ways that we could go on
this, and the current Chief Justice,
Jill Korofsky, she's expressed
openness to revisiting
the recusal rules.
So what are some of the options?
One is to change how
we handle requests for recusal that
are based on contributions
or financial support to
campaigns. The rule as it exists
now, which is a rule that the
conservative majority of the court
created about 15 years ago—
We're getting a
strobe party effect.
Back here.
Why would it be doing this?
It went once to red and then back
and I thought we might be okay and
then it went to green and then to
purple.
Yeah, what the heck?
I just wanted to give this whole
thing a dance party.
Yeah, the lights are living
this up
That was great, you were doing,
that was.
Yeah, where do we need to go back
to? Actually.
Actually, if you don't mind starting
over, I think that's probably
easiest. So I'll just rephrase the
question. What are some of the ideas
for how we could improve the
recusal process and what are the
likelihoods, I guess, in the end,
that some of that could actually
happen?
Yeah, so there are several
types of reforms that we might think
about, and the current Chief
Justice, Jill Korofsky, she has
indicated openness to revisiting
these rules.
So the current rules that we have
are in part the product
of the conservative majority
of the Wisconsin Supreme Court in
2010.
And one of the things they did was
actually say in the rules that
the mere fact that who have received
financial support.
In the form of a contribution or
other financial support to your
campaign is not a reason to recuse.
And so one change, and this has
actually been proposed recently by a
group of retired judges, would
be to get rid of that presumption
against recusal and instead
require the justices
who have received campaign funds to
do a more in-depth analysis about
whether those contributions require
their recusal.
There are some states that create an
even brighter line rule we're above
a certain threshold of contribution
or financial support.
A justice would have to step
aside. And the benefit of that
kind of thing is it does create a
brighter line.
What are other reforms?
You know, the majority of states do
handle things the way Wisconsin does
in terms of leaving it in the
hands of the individual justice to
decide whether they should recuse.
But there are some states that
actually assign the decision-making
on recusal to someone else.
And so it's possible that that could
be worth considering.
You know, they're are
questions more generally about
whether we ought to change the way
that judicial elections are financed
in Wisconsin.
We did in the past have a
system of public financing.
Is that something that could be
restored? And would that at least
remove some of the questions about
whether the financial backing that
justices are receiving are affecting
their decision-making?
One challenge with that is that
judicial election have gotten so
expensive that it would require a
lot of public money to make it
worthwhile for justices to opt
in to that kind of system.
So, you know, it wouldn't surprise
me at all if in the coming months we
get more discussion of these
possible recusal reforms, and I
think there's even more that
folks might think about.
Anything else that you want to add
along these lines?
Great, thank you so much for making
the walk over. I appreciate it.
That was great. Happy to do it.