I’ve noted over the last several weeks the effort in Wisconsin to amend the state’s constitution and end the practice whereby the most senior justice of the state’s supreme court is Chief Justice. AJR 49 and SJR 36 would instead provide that the justices of the court, after each new election, would select a Chief Justice.
For the most part the effort has broken down on party lines, with Republicans in favor and Democrats opposed. When AJR 49 was brought to the floor on March 6, however, 20 Democrats introduced a floor amendment that would have gutted the existing proposal and replaced with mandatory judicial recusal.
A justice of the supreme court, court of appeals judge, and circuit court judge shall disqualify himself or herself from any civil or criminal action or proceeding when any of the following situations occurs:
(1) When a reasonable person would question whether the justice or judge can act in an impartial manner.
(2) When a justice or judge has received, as a candidate for judicial office and within the past 4 years, campaign financial support from a party to the action or proceeding in an amount of $ 1,000 or more, including campaign contributions, independent contributions made on behalf of the justice or judge, and independent contributions made against the justice’s or judge’s opponent. A justice or judge who is required to disqualify himself or herself under this subsection may disclose on the record the basis of the justice’s or judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the justice or judge, whether to waive disqualification. If, following disclosure under this subsection, the party who is opposed to the party that provided campaign financial support to the justice or judge determines that the justice or judge should not be required to disqualify himself or herself and if the parties and the lawyers of the parties all agree, the parties may waive disqualification of the justice or judge and the justice or judge, if willing, may participate in the action or proceeding. The agreement or waiver shall be incorporated into the record of the action or proceeding.
In the span of about 30 seconds the amendment was offered up and approved on a unanimous consent request before Assembly leaders realized what had happened. It was then advanced to engrossment (i.e. past the point where a simple majority could amendment it; another unanimous consent would have been required). The bill was ultimately tabled and effectively killed in the Assembly. The Senate version remains alive but as Wisconsin Public Radio notes, with a week left, it is hard to see how the amendment would gain passage.