Wisconsin case law, particularly State v. American T.V. & Appliance of Madison, Inc., interprets this as a subjective standard. The statute asks what this particular judge believes about her own ability to act impartially or about the appearance of her impartiality. It is up to the judge—not the parties, and not even the rest of the court—to make that determination.

2. The justice’s self-assessment

Justice Protasiewicz directly addresses this statutory question. She notes:

• Her press release expressed “beliefs about judicial independence, the rule of law, and Gableman’s fitness to hold judicial office.”
• It did “not address the matters now before the court,” which are:
  • whether the stipulated facts support the ten SCR violations alleged, and
  • whether the stipulated three-year suspension is appropriate discipline.

She then states explicitly:

“I am confident that I can, in fact and appearance, act impartially in this attorney disciplinary proceeding.”

Under American T.V. & Appliance, that subjective determination is dispositive under § 757.19(2)(g). The statute does not set forth an externally reviewable “reasonable person” standard; it entrusts the judge with the final word on her own ability to be impartial and to appear impartial.

E. Synthesis: Principles Emerging from the Order

Taken together, the reasoning yields several key principles for Wisconsin recusal law:

1. Presumption of impartiality remains robust – Citing State v. Herrmann, the order reaffirms that Wisconsin judges are presumed to act fairly and impartially. Litigants bear a real burden in overcoming that presumption, particularly where they rely on generalized statements or political rhetoric rather than direct evidence of bias.
2. Campaign speech ≠ automatic recusal trigger – Prior judicial or campaign speech, even strongly worded criticism of a person’s conduct or fitness for office, does not require recusal unless it:
   • constitutes a pledge, promise, or commitment about how the judge will rule in a specific case, or
   • otherwise approaches the extraordinary “serious risk of actual bias” recognized in Caperton (e.g., extreme financial support).
3. SCR ch. 60 is not a recusal code – Alleged violations of judicial conduct rules initiate a separate disciplinary track and do not, standing alone, disqualify a judge from sitting on a pending matter.
4. § 757.19(2)(g) is a subjective self-recusal standard – The statute does not empower litigants to force recusal based entirely on their perception of bias. Instead, it requires the judge to introspect and decide whether she can act impartially and appear impartial. If the judge concludes she can, the statute offers no external override.
5. Issue-based criticism of conduct vs. adjudication of misconduct – The order draws a functional distinction between:
   • Political critique that someone’s public or political behavior makes them “unfit for the bench,” and
   • A legal judgment that specific conduct, under SCR ch. 20, warrants a particular professional sanction.
   The former does not predetermine, or even necessarily imply, the latter.

IV. Precedents Cited and Their Influence

A. State v. Herrmann, 2015 WI 84

Herrmann is cited for the foundational proposition that judges are presumed to be fair, impartial, and free from prejudice (¶24). This presumption is an important structural constraint—it means the moving party must show more than discomfort or political disagreement to justify recusal.

In this case, that presumption bolsters Justice Protasiewicz’s self-assessment of impartiality. Because Gableman offers no evidence beyond the existence of a campaign press release, and because the content of that release falls within the scope of permitted judicial speech under existing federal law, the presumption remains unrebutted.

B. State v. Henley, 2011 WI 67

Henley is cited for two functions:

• Procedural: each justice “alone” decides a motion for his or her own recusal (¶26). This reinforces the subjective nature of recusal determinations under Wisconsin law and explains why this is a single-justice order rather than a full-court opinion.
• Substantive: it echoes the role of SCR ch. 60 as a disciplinary code, not a disqualification statute.

By emphasizing individual responsibility, Henley underscores that litigants cannot leverage judicial-campaign controversies to compel reassignments simply by invoking appearance-of-bias language.

C. State v. American T.V. & Appliance of Madison, Inc., 151 Wis. 2d 175 (1989)

This case plays a central role in two respects:

1. Interpretation of § 757.19(2)(g) – The decision establishes that this statutory ground for recusal is subjective: the judge must determine whether she can act impartially. There is no external “reasonable observer” test built into the statute.
2. Separation of SCR ch. 60 from disqualification decisions – It confirms that alleged judicial-ethics violations are addressed through the Judicial Commission and do not automatically strip a judge of authority to act in pending cases.

Justice Protasiewicz relies heavily on these principles to reject the notion that a litigant’s perception of bias, however genuine, can itself compel recusal under § 757.19(2)(g) or that alleged SCR violations bar participation in ongoing cases.

D. In re Murchison, 349 U.S. 133 (1955)

Murchison provides the classic due-process formulation: “A fair trial in a fair tribunal is a basic requirement of due process” (at 136). It is cited to ground the analysis in federal constitutional doctrine. The question is not whether a litigant is uncomfortable, but whether the tribunal meets this basic fairness standard.

E. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)

As already discussed, Caperton is the seminal modern case on due-process-based recusal. It is invoked to illustrate how extraordinary the circumstances must be before the Constitution itself compels a judge’s disqualification: extreme and disproportionate campaign support from a party with a direct, personal stake in a pending case.

Justice Protasiewicz uses Caperton as a limiting case, underscoring that:

• the Supreme Court has never held that campaign speech, untethered to such extreme financial support, triggers due-process recusal, and
• there is no “Caperton for campaign rhetoric” line of cases extending the doctrine in that direction.

F. Republican Party of Minn. v. White, 536 U.S. 765 (2002)

White is cited to recognize that the First Amendment protects judicial candidates’ rights to express their views on disputed legal and political issues. Judges, before and after taking the bench, routinely:

• write articles,
• give speeches,
• teach, and
• issue judicial opinions

that express their perspectives on law and policy. That practice, taken alone, does not compromise due process.

This precedent supports Justice Protasiewicz’s position that her campaign commentary about the 2020 election and judicial independence falls within the ambit of constitutionally protected judicial-candidate speech and cannot, without more, be treated as proof of bias.

G. FTC v. Cement Institute, 333 U.S. 683 (1948)

The order invokes Cement Institute to reinforce that prior expression of a view about the legality of certain conduct does not automatically disqualify a decision-maker. Commissioners, and by analogy judges, are not blank slates; they are expected to bring informed legal judgment to the bench.

By analogy, Justice Protasiewicz’s prior statements about the “Big Lie” and its implications for democracy do not alone show an inability to assess the legal sufficiency of OLR’s counts or the appropriateness of a three-year suspension.

H. Duwe v. Alexander, 490 F. Supp. 2d 968 (W.D. Wis. 2007)

Duwe supplies the critical doctrinal distinction between:

• impermissible pledges, promises, or commitments about how a judge will rule in an identifiable category or particular case, and
• permissible expressions of belief or opinion about law, policy, or the judiciary.

Justice Protasiewicz applies this distinction directly:

• Her press release expressed opinions on judicial independence and the rule of law.
• It said nothing like “If elected, I will vote to suspend Michael Gableman’s license” or “I will always find that election-challenge lawyers committed misconduct.”

Because the statement falls on the “opinion” side rather than the “pledge” side of the Duwe line, it does not create a due-process recusal obligation.

I. Miller v. Carroll, 2020 WI 56

Although Miller is not described in detail, the order notes that:

• It cited Caperton and dealt with recusal, but
• It did not involve campaign speech,
• It did not hold that campaign statements alone can mandate recusal, and
• Gableman failed to explain how Miller extends Caperton to his situation.

Thus, Miller fails to supply the doctrinal bridge Gableman needs to transform campaign commentary into a constitutional or statutory basis for Justice Protasiewicz’s disqualification.

V. Clarifying Complex Legal Concepts

A. “Appearance of Bias” vs. Due Process Violations

The phrase “appearance of bias” is used in multiple ways in recusal debates. This order helps clarify two levels:

1. Constitutional level (Due Process Clause) – Only very extreme circumstances—like those in Caperton—amount to a constitutional violation. There must be a “serious risk of actual bias,” measured by objective and reasonable perceptions. Mere appearance of bias in the colloquial sense is not enough.
2. Statutory/ethical level – States can (and often do) adopt recusal standards that go beyond the constitutional minimum. Wisconsin’s § 757.19(2)(g) speaks of situations where it “appears” the judge cannot act impartially, but—crucially—asks the judge herself to make that determination.

Thus, even if a litigant sincerely believes there is an “appearance of bias,” that belief only triggers recusal if:

• the constitutional standard of “serious risk of actual bias” is met (not so here), or
• the judge, applying § 757.19(2)(g), subjectively concludes that such an appearance exists and warrants self-disqualification (again, not so here).

B. Subjective vs. Objective Recusal Standards

There is often confusion between:

• Subjective standards – ask: “Does this judge believe she can be impartial and appear impartial?”
• Objective standards – ask: “Would a reasonable observer, knowing all the facts, question this judge’s impartiality?”

This order reaffirms that, under Wisconsin law:

• § 757.19(2)(g) is subjective: the judge’s own determination controls.
• There is no free-floating “reasonable observer” standard written into that statutory provision.

This is a policy choice with significant implications. It limits the ability of litigants to use recusal motions as strategic tools and reinforces judicial independence. At the same time, it places a heavy burden of self-policing on judges to step aside when appropriate—even if doing so is unpopular or politically costly.

C. Stipulation in Attorney Discipline Proceedings

In April 2025, Gableman entered into a stipulation that:

• he “cannot successfully defend against the allegations of misconduct contained in the Complaint,”
• the allegations “provide an adequate factual basis” for findings of violations of the SCRs alleged in all ten counts, and
• a three-year suspension is the appropriate level of discipline.

In disciplinary practice, a stipulation of this kind:

• removes from controversy the factual and legal sufficiency of the misconduct allegations,
• narrows the court’s role primarily to whether the proposed sanction protects the public, the courts, and the legal profession, and
• typically signals some acceptance of responsibility, though the referee and court are not bound to accept the stipulated sanction.

This context matters: Justice Protasiewicz is not being asked to adjudicate disputed facts about whether Gableman engaged in certain acts during the election investigation. Those are established by stipulation. Rather, she is reviewing professional-misconduct determinations and the appropriateness of the agreed-upon three-year suspension.

D. The Distinct Roles of OLR and the Judicial Commission

The order also implicitly teaches the difference between:

• Office of Lawyer Regulation (OLR) – responsible for investigating and prosecuting alleged violations of the Rules of Professional Conduct by attorneys (SCR ch. 20). Its cases are captioned like this one and proceed before referees, with ultimate review by the Wisconsin Supreme Court.
• Judicial Commission – responsible for investigating and prosecuting alleged violations of the Code of Judicial Conduct by judges (SCR ch. 60). Its proceedings are separate and distinct from OLR cases and can result in judicial discipline.

When Gableman cites SCR 60.03 and 60.05(1)(a), he is implicitly suggesting that Justice Protasiewicz’s campaign conduct may violate judicial ethics. The order effectively responds: even if that were so (a question not decided here), the proper forum is the Judicial Commission, not this recusal motion. SCR-based allegations cannot be used as a backdoor mechanism to force a justice off a case.

VI. Potential Impact and Broader Significance

A. Implications for Judicial Campaign Speech in Wisconsin

By holding that pointed campaign criticism of a future litigant does not, without more, require recusal, this order:

• gives judicial candidates somewhat clearer guidance that they may express strong views about:
  • the rule of law,
  • the integrity of elections, and
  • other officials’ or candidates’ fitness for judicial office,
  without necessarily disqualifying themselves from all future cases involving those individuals.
• emphasizes, however, that candidates should avoid explicit pledges about how they will rule in particular cases or definable categories of cases, because such promises could trigger recusal obligations under federal due process doctrine (as elaborated in Duwe and Caperton).

In an era of increasingly politicized judicial elections, the decision thus:

• leans toward protecting a robust sphere of judicial candidate speech (consistent with White), and
• resists transforming campaign rhetoric into an automatic disqualification tool.

B. Impact on Attorney-Discipline Proceedings Arising from Political Controversies

Many modern attorney-disciplinary matters arise from highly charged political or public events (e.g., election litigation, public misinformation campaigns). This order signals that:

• Justices who publicly criticized or commented on such events during campaigns are not automatically barred from hearing later disciplinary cases related to them.
• Attempts by disciplined attorneys to disqualify justices based solely on general campaign criticism are unlikely to succeed unless:
  • there was a specific pledge about how the justice would rule in that particular disciplinary case, or
  • there are additional facts approaching the extraordinary circumstances of Caperton.

This preserves the court’s ability to adjudicate politically sensitive attorney-discipline matters without being systematically hollowed out by recusal demands.

C. Reinforcement of the Subjective Nature of § 757.19(2)(g)

By explicitly reasserting that § 757.19(2)(g) is a subjective standard controlled by the judge’s own assessment, the order:

• confirms that Wisconsin continues to place substantial trust in judicial self-regulation concerning recusal,
• limits litigants’ ability to obtain mandatory recusal orders based on their own perceptions or public controversy, and
• may fuel ongoing debates—both academic and political—about whether Wisconsin’s recusal rules provide sufficient external safeguards for public confidence in the judiciary.

D. Separation Between SCR ch. 60 and Immediate Case Disqualification

The order reiterates that alleged ethical violations by a justice are to be handled through the Judicial Commission and do not, without further legal basis, strip that justice of authority in existing cases. This is significant because:

• It prevents litigants from weaponizing judicial-discipline allegations for tactical advantage in litigation, and
• It keeps separate the institutional processes of:
  • judging specific cases, and
  • disciplining judges.

VII. Conclusion

Justice Protasiewicz’s order in Office of Lawyer Regulation v. Michael J. Gableman articulates and applies a clear set of principles at the intersection of judicial campaign speech and recusal:

• Judges are presumed impartial; the burden to prove otherwise lies with the party seeking recusal.
• The Due Process Clause compels recusal only in rare, extreme cases—generally involving extraordinary financial support or direct, case-specific commitments—not merely because a judge expressed critical views about a litigant’s conduct or fitness during a campaign.
• SCR ch. 60, the Code of Judicial Conduct, operates through the Judicial Commission’s disciplinary process and does not itself disqualify a judge from presiding in a pending case.
• Under Wis. Stat. § 757.19(2)(g), recusal for “appearance of bias” is a subjective determination entrusted to the judge, not a tool that litigants can wield unilaterally.

Applied to the facts, these principles support the conclusion that Justice Protasiewicz’s 2022 campaign press release—criticizing the “Big Lie,” defending judicial independence, and asserting that Kelly and Gableman were “not fit to be on the bench”—does not require her recusal from Michael Gableman’s attorney-disciplinary proceeding. The press release expressed opinions, not promises, and did not address the specific legal questions now before the court, particularly after Gableman’s stipulation to misconduct and to a three-year suspension.

In its broader legal context, the order stands as a significant Wisconsin precedent clarifying that campaign criticism, without a specific commitment about case outcomes, does not by itself create a constitutional or statutory basis for judicial disqualification in later related attorney-disciplinary proceedings. It reinforces the balance, drawn by both state and federal law, between the realities of judicial elections, the imperative of judicial independence, and the enduring requirement of a fair and impartial tribunal.