And I assume for both of our sakes, we're not showing shoes.
Yeah.
We're wrong.
We're ready.
All right.
Well, I guess we wanted to talk a little bit 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 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 Persay, 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 and trying to, 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 they have a financial interest in the state, in the case.
But what we're seeing more of these last few years is requests for justices to step
aside 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.
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 Gableman and now James Troopis asking justices
to recuse themselves from their cases, saying that they had made statements that showed
they were personally biased.
But 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 litigants and their allies.
So 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 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.
You know, from their perspective, they take an oath to be impartial.
They take an oath to put that aside.
And you know, I think they would love to see fewer of these motions.
Now another perspective on that might be these motions are really symptom of a broader problem
or problems.
You know, 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 US 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.
How 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 become this zero
sum game of partisan lens of all decisions coming out of the judiciary.
I think that that's, you know, an accurate reflection of what we're seeing.
You know, 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 want to litigate about abortion, the places to do that are actually in state court
now, not federal court, right?
And so, you know, what that sort of naturally makes the state courts these venues for these
issues that divide people ideologically 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 this rise in recusal requests.
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, 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, you know, of people who would want there to be independent
courts that stand apart from politics and the political branches, you know, their job today
is harder.
So, and this is maybe a tough question for you to answer, but in the sense of long, you
know, 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, you know, 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 at 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.
And the same token, I think that if you ask the folks who are sitting on the 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, like Jim Troop has asked, for multiple justice recues themselves,
saying they're biased.
And then they, whether they do or they don't, they sit on the case, same with Gableman.
Should they put, is it up to them to put a value judgment of whether the justice should
have recused or not or how, should that flavor, how they view anything that comes out of those
cases?
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 recues and make a decision
based on how that request maps on to the recusal rules as they exist.
From the perspective of a member of the public, it's understandable that given the nature
of the system we have, 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 the ideas that could make the recusal a little more transparent
or clear as to when someone should or should not set up?
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 a recusal that are based on contributions
or financial support to campaigns.
The rule is it exists now, which is a rule that the conservative majority of the court
created about 15 years ago.
So we're getting up started as a strobe party effect here.
Why would it be doing that?
It went once to read and then back and I thought, we might be okay.
And then it went to green and then to purple and, yeah, what the heck, I wonder if it like
just wanted to give this whole thing a dance party, yeah, yeah, with the lights that lift
this up.
I apologize.
That was great.
Yeah, where do we need to go back to you?
Actually, if you, who you want mine starting over, I think that's probably easiest.
So I'll just kind of rephrase the question, like what are some of the ideas for how we
could improve the recusal process and what are the likelihoods, I guess, to the end that
some of that could actually happen?
Yeah.
So, you know, there are several types of reforms that we might think about and the current
chief justice, Jill Korowski, 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 you
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 where 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, there 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 or affecting their decision-making?
One challenge with that is that judicial elections have gotten so expensive that 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, you know, there's even more that
folks might think about.
All right.
Anything else that you want to add along these lines?
No, I don't think so.
All right.
Great.
Thank you so much for making a walk over.
I appreciate it.
That was great.
Happy to do it.
Yeah.
Grab that back.