MADISON, Wis. – Wisconsin's conservative-controlled Supreme Court handed Republicans their newest weapon to weaken any Democratic governors in the battleground state, ruling this week that political appointees don't have to leave their posts until the Senate confirms their successor.
The court's decision — in the case of a conservative who refused to step down from an environmental policy board for more than a year after his term expired — marks another loss for Democratic Gov. Tony Evers as he faces reelection in November. Republicans have worked to reduce Evers' powers since even before he took office and have refused to confirm many of his appointees. This week's ruling gives them the ability to block them simply by declining to hold a nomination vote.
“Most people on the street would say when a term ... expires, there’s an opening. The Supreme Court has said that commonsense understanding is not right," University of Wisconsin-Madison political science professor Barry Burden said. The ruling "raises the question of why is there a term at all? Maybe we just say a person serves for life the way a U.S. Supreme Court justice does.”
Republicans are likely to control the Legislature for years to come largely due to gerrymandered districts.
After Evers was elected in 2018 but before he took office, they passed laws during a lame-duck session that temporarily stripped him of his power to appoint members of the state’s economic development agency and gave legislators the ability to block executive branch agencies’ rules and policies.
So far, the Senate has refused to confirm about 42% of Evers' 299 appointees, according to Evers' office. What's more, the Senate took the rare step in 2019 of voting not to confirm Evers' agriculture secretary, Brad Pfaff, after Pfaff criticized GOP lawmakers for not providing enough money to help farmers with mental health problems. Pfaff had to step down.
The struggle over appointments took a turn in the spring of 2021 when Fred Prehn's term on the Department of Natural Resources policy board ended. Evers appointed his successor, a move that would have given his appointees a one-member majority on the board and his administration the power to shape environmental policy.
Prehn, who was appointed by former Republican Gov. Scott Walker, refused to step down. He has since cast the deciding vote to increase the quota for the state's wolf hunt and to scrap limits in well water on a group of chemicals known as PFAS, an abbreviation for perfluoroalkyl and polyfluoroalkyl substance,
Democratic Attorney General Josh Kaul sued to force Prehn off the board. The state Supreme Court's four-justice conservative majority ruled Wednesday that a vacancy must exist before a governor can fill it — and that a “vacancy” occurs only if the incumbent dies, resigns or is removed for misconduct.
The decision essentially prevents a governor from replacing the previous governor's appointees without Senate confirmation.
The ruling left Democrats stunned.
“Today, I remind the Wisconsin Supreme Court and the Republican Party of this state that we do still live in a democracy, a very basic function of which is the peaceful and respectful transfer of power, even — and most especially — when you lose,” Evers said. “(His appointees) should be considered on their merit, and should have the opportunity to serve the people of our state, regardless of whether or not they were appointed by a Democrat or share the same ideas as Republicans in the Legislature.”
Kaul called the decision another symptom of the breakdown of democracy.
“What this (ruling) is doing is allowing the Legislature to not represent the people of Wisconsin, to expand its authority and control an executive branch agency,” Kaul said.
Adam Gibbs, a spokesman for Senate Majority Leader Devin LeMahieu, didn't respond to messages.
Prehn isn't the only Republican appointee who has refused to leave. The 13-member Wisconsin Technical College Board has three members whose terms ended in May 2021.
Nicholas Fleisher, president of the Wisconsin chapter of the American Association of University Professors, said the Prehn decision also adds another layer of politics to University of Wisconsin System Board of Regents, 16 of whom are appointed by the governor to seven-year terms. She said it could hurt the board's credibility nationwide.
“Like so much else in our (government) systems, there are certain norms, decorum and shame involved in making these systems work,” he said. “Those things are obviously out the window."
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