In the most expensive judicial election in American history, the candidates are wielding the issue of judicial recusal as a shield and a sword.
Wisconsin’s April 1 Supreme Court election has seen more than $64 million in spending from the likes of Elon Musk and George Soros, according to AdImpact, since the winning party will control a 4-3 court as it takes on abortion, labor rights, and election rules in a swing state where one high court vote blocked Trump from carrying the 2020 presidential election.
Both candidates—Judge Susan Crawford, a circuit judge running on a liberal platform, and Brad Schimel, a Republican former state attorney general and current trial court judge endorsed by Trump—have faced and declined calls to recuse themselves from high-profile cases that align with the big-money interests bolstering their campaigns.
The refusals raise questions about the ethical boundaries for Supreme Court justices in Wisconsin and throughout the country.
Crawford is touting her legal work as chief legal counsel to former Gov. Jim Doyle (D), representation of Planned Parenthood, and a lawsuit she brought on behalf of a Madison teachers union challenging the state’s union regulations, known as Act 10.
That union representation has come under the spotlight because she’s refused to promise she will recuse in a case over Act 10. She argued her suit—filed in 2011—challenged different provisions in the 50-page bill. However, court records reviewed by Bloomberg Law show she also sued to invalidate the entire law, arguing that the bill violated state constitutional limits on special session legislation.
“There’s a spectrum when it comes to recusal,” said Bryna Godar of the University of Wisconsin Law School State Democracy Research Initiative. “Some of these issues, like Judge Crawford and Act 10, fall into an area that is difficult to parse.”
Candidates’ attempts to explain away potential conflicts indicates their candidacy depends not only on their qualifications but also their ability to rule in these important cases which have spurred record donations, said Douglas Keith, senior counsel in the Brennan Center for Justice’s Judiciary Program.
“This is a moment where it is just so important that the public be confident that their judges are doing something different than raw politics—it is really important that the rules around these courts change to reflect this new reality,” Keith said.
Crawford declined to be interviewed over her stance on recusal. In response, her campaign said her suit was “challenging the legislative process of enacting the law” rather than “a facial challenge to the substance of the Act,” and pointed to the state’s limited recusal requirements. In a statement, they turned the tables back on their opponent.
“Brad Schimel openly supports the 1849 abortion ban and has already said how he’d rule on any Act 10 case—proof that he’s an extremist running to push his own agenda, not follow the law or uphold our Constitution,” Crawford’s campaign spokesman, Derrick Honeyman, said in an email.
Abortion
Schimel told Bloomberg Law that he’s a conservative originalist who got into the race because he disagreed with how liberal Justice Janet Protasiewicz openly campaigned on her legal positions in 2023.
“It’s the whole reason we got into the race—the leftist majority on the Supreme Court is imposing its own will—its own values—on the people of Wisconsin,” he said in an interview.
Schimel—who has said there is no state constitutional right to abortion—has declined to pledge he’d recuse if abortion cases reached the court, and Democrats have latched on to Schimel’s views in their campaign.
While he said the 1849 law—which he has called “valid"—is “out of step” with the “will of current voters in Wisconsin,” he said originalism would guide how he’d rule.
Two suits pending before the state high court are challenging that law, and a state constitutional right to abortion could be a live issue in Wisconsin for years to come.
“I certainly don’t need to recuse on [abortion cases] because I have plainly said at all stages of this that while I have personal views regarding public issues, my personal views are utterly irrelevant. I will follow the law in the state of Wisconsin and not apply my personal views,” he said.
Ethics of Recusal
The rules around recusal are lenient in most states, including Wisconsin, leaving judges with latitude to decide whether to recuse.
On representation concerns like Crawford’s, judges must recuse only if they “acted as counsel to any party in the same action,” according to research by the University of Wisconsin Law School’s State Democracy Research Initiative. Judges aren’t required to step aside if they represented one of the parties before them, so long as the legal theory of the case is different.
On legal viewpoints, like Schimel’s abortion stance, judges are free to express themselves so long as they don’t make hard commitments to rule a particular way.
These rules mean candidates can campaign on legal issues, and then decide on recusal once seated, Godar said.
Ethics rules were changed in 2010 to explicitly say judges need not recuse due to an endorsement or any lawful contribution to their campaigns.
Though Musk has plowed millions into a Schimel-supporting group as Tesla filed a lawsuit challenging state dealership laws, Schimel would be permitted to hear that challenge.
Similarly, the Democratic Party of Wisconsin raised and transferred millions of dollars into Crawford’s campaign, and Crawford has refused to commit to recusing from cases brought by the party.
The increasing public debate around judicial ethics is the price of voters choosing the judges, said Emory University School of Law Professor Michael J. Broyde.
“If we believe judges should be popularly elected then we must allow campaigns in which the issues are discussed,” he said. “We’re getting what we want.”
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