The high drama over Wisconsin's Director of State Courts

The new liberal majority fired the state court director, and Wisconsin conservatives re-discover their affection for public employees (but only to defend a far-right social conservative)

On Tuesday, August 1, Janet Protasiewicz was sworn in as the newest Associate Justice of the Wisconsin Supreme Court, flipping the court from a thin conservative majority to an equally thin liberal majority. Protasiewicz’s inauguration was quickly followed by a lawsuit challenging the constitutionality of the state’s legislative districts—and more lawsuits from left-leaning groups are likely in the queue.

Almost immediately, the new liberal majority attracted controversy for its decision to fire Randy Koschnick, the Director of State Courts. Two of the conservative justices on the court, Chief Justice Annette Ziegler and Associate Justice Rebecca Bradley, both criticized the majority’s move as a partisan-fueled power grab, as have other Republicans and conservative commentators in the state.

First, it’s very touching that Wisconsin Republicans are so concerned about their state’s public employees.

But the coverage of Koschnick’s firing has mostly focused on the controversy itself or has offered Koschnick an uncritical opportunity to tell his version of what happened. There’s been little commentary about the mechanics of his firing—how and why it happened, whether it was constitutional, et cetera—or how the Director of State Courts is situated within the state’s system of separated powers. So I wanted to explain the constitutional and structural setup at issue here.

My conclusion here is that are really no arguments that any Wisconsin Republican—much less Ziegler or Bradley—could make with a straight face to argue that Koschnick’s firing is unconstitutional, unprecedented, or inappropriate in this case.

So what’s this all about?

In the mid-twentieth century, states began reorganizing their court systems. Many states had extremely fractured judiciaries with way too many trial courts, confusing and overlapping jurisdiction, and unclear hierarchy. In some cases, these changes required constitutional amendments—as did Wisconsin’s. In 1977, Wisconsin voters approved a massive rewrite of Article VII, the state constitution’s judicial branch article. The revision to Section 2 established a “unified court system” with the Supreme Court at the top, exercising “administrative authority” over lower courts. And in Section 4, the Chief Justice of the Court was designated as the

administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.

In 1978, acting under this new authority, the court adopted the Rules of Judicial Administration, which are codified in Chapter 70 of the Supreme Court Rules. Rule 70.01 creates the Director of State Courts, which is designated as the “chief nonjudicial officer of the court system in the state.” The Director is “hired by and serve[s] at the pleasure of the supreme court, under the direction of the chief justice,” and has a lot of responsibilities in managing the day-to-day operations of the court system. It’s an important job!

Randy Koschnick was appointed as the Director of State Courts since 2017. Prior to his appointment, he was a Jefferson County Circuit Court judge from 1999 to 2017—and before that, he challenged the late former Chief Justice Shirley Abrahamson for re-election in 2009 and unsuccessfully sought a Supreme Court appointment from Governor Scott Walker in 2016.

According to Koschnick, Justice Jill Karofsky called him on Monday, the day before Protasiewicz’s swearing-in to advise him that he was being let go, and was not told why.

The response from the conservatives on the court was swift. Chief Justice Annette Ziegler said that the firing was made “without regard for the Constitution,” and criticized her “colleagues’ unprecedented dangerous conduct” as “the raw exercise of overreaching power.” Justice Rebecca Bradley retweeted a conservative commentator’s article about the firing and added:

Political purges of court employees are beyond the pale. Four or five justices secretly voting on court matters without the court actually meeting breaches universal judicial norms. This abuse of power is unprecedented and illegitimate. It should be condemned by all judges.

So let’s take these critiques one by one.

First, Chief Justice Annette Ziegler’s specific claim is that the firing was made “without regard for the Constitution.” Truthfully, I have zero idea what she’s talking about. The Wisconsin Constitution does not mention the Director of State Court. State statutes don’t even mention the Director of State Courts; it’s a position created by the judiciary through its own rules. What the Wisconsin Constitution does say is exactly what I quoted above—the administrative authority of the court, including that of the Chief Justice, is exercised “pursuant to procedures adopted by the supreme court.” Rule 70.01 is one of those rules. It provides that the Director of State Courts “serve[s] at the pleasure of the supreme court, under the direction of the chief justice” (emphasis mine).

Ziegler’s argument that there are some state constitutional considerations here is baffling. The Wisconsin Constitution says that court administration is determined by rules set by the Court itself. The Court adopted rules establishing the Director of State Courts, which say that the Director serves at the pleasure of the Court, not the Chief Justice. These rules have been in place since 1978 and weren’t modified to accommodate Koschnick’s firing.

What’s more, though Ziegler asserts that she has some role here—her statement says that “[a]s Chief Justice, I contemplated actions I might take to stop this unauthorized action”—but there’s really nothing to speak of. Both the constitution and the Court’s rules repeatedly frame the administrative power as something that is exercised by the Court, and through the Chief Justice under rules set by the Court.

There is nothing—literally, nothing—even plausibly unconstitutional about what the majority did here. It acted pursuant to authority granted to it by the Wisconsin Constitution under rules that have been in place since 1978.

Second, both Ziegler and Bradley claim that the new liberal majority is on a massive power trip. They’ve been beating this drum for some time now, but one of the things that was interesting to me is that the third conservative justice on the court, Brian Hagedorn, hasn’t publicly said anything about Koschnick’s firing. And if you read Bradley’s claim literally, note that she refers to “[f]our or five justices secretly voting”! This could be a hint—or an accusation—that Hagedorn participated in the firing, too. Harsh words for the third member of the conservative bloc!

Of course, this sort of wild accusation would be extremely on-brand for Bradley—and is also hard to take seriously. A few months ago she wrote a bizarre dissent in which she suggested that Hagedorn “should revisit the judicial oath and resign if unwilling to fulfill it.” Just a few weeks ago, the Wisconsin Supreme Court denied a request by the State Bar to create a Diversity, Equity, Inclusion, and Access credit that attorneys could use to fulfill their continuing legal education requirements. Bradley drafted an opinion agreeing with the result, and it was . . . a lot. Among many, many, many other things, she wrote that DEIA “is a disguise for dangerous identity politics,” favorably quoted Ben Shapiro’s book (titled “How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument”), and referred to “woke corporate nonsense.” (Honestly, I am underplaying how unhinged this was; it is genuinely difficult to summarize it and I strongly recommend reading it in full.)

In any event, Ziegler and Bradley are the wrong messengers to warn about a power trip, and they’ve picked the wrong poster child for their claim. The conservative majority on the court has repeatedly jumped at any chance to stymy Democratic Governor Tony Evers and empower the gerrymandered Republican majority. They allowed Walker appointees to hold their positions on state boards past their terms, undermined decades of precedent to trim the governor’s line-item veto power, repeatedly overturned his pandemic emergency orders, and had no problem with Republicans gerrymandering themselves into permanent legislative majorities.

The court itself has also had no problem weaponizing its own powers to sideline liberals and elevate conservatives. In 2021, Ziegler removed Lisa Neubauer, the Chief Judge of the Wisconsin Court of Appeals, from her role as chief judge. Neubauer is one of the state’s most prominent liberal jurists—she ran for the Supreme Court in 2019 and narrowly lost to Hagedorn—and her termination was questioned by the three liberals on the court.

And pretending that Randy Koschnick is some completely nonpartisan, career public servant being unfairly targeted by the liberals is . . . a weird choice. When he ran for the Supreme Court in 2009 against Abrahamson, he campaigned as a conservative—which is really underselling it. He repeatedly attacked Abrahamson as a “judicial activist,” and posted every decision that Abrahamson ever made against law enforcement on his website. He went out of his way to earn the endorsement of the NRA, Wisconsin Right to Life, and other hard-right groups. When asked by the Oshkosh Northwestern what the last book he read was, he cited Ann Coulter’s “Godless: The Church of Liberalism.” He was—and still is—an elder at the Crosspoint Community Church, which has a long record of anti-abortion and anti-gay advocacy. At the time of his 2009 campaign, he was a member of the Promise Keepers. As reported by the Capital Times during the campaign:

Koschnick also has been active with the Promise Keepers, a Christian conservative men's group that urges men to take control of their households and uphold biblical notions of patriarchy.

Some insight into the group's social agenda can be gleaned from the late Rev. Jerry Falwell, the founder of the Moral Majority, who once told Promise Keepers at a rally at his Liberty University in Lynchburg, Va.: “America's anti-biblical feminist movement is at last dying, thank God, and is possibly being replaced by a Christ-centered men's movement.”

While Koschnick said he hasn't attended a Promise Keepers event in “three to five years,” phone records from his desk phone at the Jefferson County Courthouse obtained by The Capital Times through an open records request show he has maintained more recent contact with the group. The record shows a three-minute, 22-second call from his desk phone to the group's Colorado headquarters on Feb. 25, 2008. Flaherty, his spokesman, characterized the call as “personal.”

Frankly, I have zero qualms about removing someone with these extreme views from his role as a nonpartisan judicial administrator. His replacement is also not some wild-eyed liberal—she’s a Scott Walker appointee.

And there’s not much else to say. There’s no plausible argument that Koschnick’s firing was unconstitutional, illegal, or even contrary to the court’s self-imposed rules. The criticisms by Ziegler and Bradley are incorrect or inconsistent. And the metamorphosis of Koschnick into some totally nonpartisan administrator ignores his very public record from his 2009 Supreme Court campaign.

But if this is how the first days of the liberal majority have gone—and they haven’t even issued any decisions yet!—the next few years are going to be wild.