Candidate right that Wisconsin does not require judges to recuse because of past legal work

As the race for control of Wisconsin’s Supreme Court picks up steam, there’s a word you’ve probably heard: Recusal. 

Recusal refers to a justice’s decision to sit out a case because they have a connection to the lawsuit or lawyers that affects their ability to rule fairly. 

Dane County Court Judge Susan Crawford, the liberal candidate in the race, was asked by WISN-TV’s "Upfront" during its Feb. 9, 2025 episode if she should recuse herself from any case before the Supreme Court involving abortion. 

Crawford, as a private attorney, represented Planned Parenthood in challenging a state law that required physicians providing abortion services to get admitting privileges at a nearby hospital.

"The law does not require judges to automatically recuse just because they have done some kind of legal work in the past as a lawyer," Crawford said.

Crawford’s involvement in the case happened about a decade ago: A federal appeals court panel found the law unconstitutional in 2015. 

Because recusal is bound to come up in the remaining weeks of campaigning, let’s take a look at what the standards are in Wisconsin. Legal experts will also explain why there are often gray areas.

Let’s start with laying out what the Code of Judicial Conduct says about recusal, and if it mentions anything about stepping away because of previous work as a lawyer.

Here are just a few of the situations where the code says a justice should recuse. 

• The judge was a material witness in the case.
• The judge, their spouse or minor children have an economic interest in the case.
• The judge’s spouse or relative is a lawyer in the case. 

But there’s another one that relates to Crawford’s claim: "The judge served as a lawyer in the matter in controversy."

Wait — does "matter in controversy" mean Crawford would be disqualified from participating in anything related to abortion?

That’s not the case, explained Charles Geyh, a professor at the Indiana University Maurer School of Law who specializes in judicial ethics. The "matter" refers to a specific lawsuit, not a broad issue. 

"You can certainly see where if you expanded it to include the issue, that would get crazy pretty quickly. Lawyers who are active litigators may be addressing bazillions of issue areas," Geyh said. 

Howard Schweber, a professor emeritus of political science and legal studies at the University of Wisconsin-Madison, noted many judges previously worked as criminal prosecutors or defenders.

"It would be absurd to suggest that those judges must recuse themselves from any case involving a crime," Schweber said. 

But sometimes it’s not quite so straightforward. Schweber sees recusal decisions as a spectrum. 

At the most obvious end is recusing because you’d make money if you rule a certain way. At the other end is recusing because of a philosophical belief you have. 

If a justice worked for Planned Parenthood on the particular issue in a lawsuit now before the Supreme Court, recusal would be appropriate, Schweber said. But simply working for Planned Parenthood is less so. 

"It’s unfortunately really quite difficult to be much more specific than that, because there’s an element of judgment involved," Schweber said. 

Crawford’s campaign provided much of the same background when PolitiFact Wisconsin reached out, citing a report on recusal from the State Democracy Research Initiative at UW’s Law School.

"Notably, Judge Crawford’s representation of Planned Parenthood of Wisconsin was not the same action that is now before the court. Recusal is not required simply for having represented a party in previous actions," her campaign said.

For context, Planned Parenthood of Wisconsin has asked the Supreme Court to recognize a constitutional right to bodily autonomy, including abortion.

Schweber said working on a particular issue like the constitutionality of Act 10 would be a stronger case for recusal. "It’s further down that spectrum of possibilities," Schweber said.  

Another way to look at the spectrum: Conservative Justice Brian Hagedorn recused from the current Act 10 case because he helped create the law and defended it as former Gov. Scott Walker’s chief legal counsel.

Crawford also addressed Act 10 in the interview — she represented teachers challenging the law. Crawford said she’d consider the parties bringing the lawsuit and which part of Act 10 is being litigated.

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That gets into a second major idea that supports Crawford’s claim.

In Wisconsin, Supreme Court justices decide for themselves if they’d be biased on a certain issue and if they should recuse. The other justices can’t overrule their decision.

So, it would be up to Crawford to make the final call about whether to step away from a case involving a group she represented or an issue she worked on in the past.

"If you work for Planned Parenthood, you can assume that you’re not hostile to the goals of Planned Parenthood," Geyh said.

"But even then, there is no rule that says once you stop doing that and you put on your judicial hat, that you are somehow compromised in your ability to be fair and impartial," he said.

Because justices rule on their own bias, some have called for stricter standards. Geyh is on board with that idea but cautioned that partisan interests could "manufacture" new rules to get a justice off a case.

Crawford and her conservative opponent, Waukesha County Court Judge Brad Schimel, were asked by WISN if they would back imposing recusal rules for the Supreme Court.

Schimel said he would want to see what the rules would be before deciding whether to support them. 

Crawford said she thinks the current judicial code is a "workable system, but I also welcome any opportunities to strengthen and improve a system like that."

Crawford said Wisconsin does not "require judges to automatically recuse just because they have done some kind of legal work in the past as a lawyer."

Legal experts interviewed by PolitiFact Wisconsin agreed — it would be a slippery slope if justices weren’t allowed to participate in cases that broadly relate to their past work. 

The judicial code requires recusal if the justice worked as a lawyer in the "matter in controversy." That refers to a particular lawsuit, not a broad issue like abortion. But there can be gray areas.

Ultimately, it’s up to Crawford to determine whether she’d be impartial in a case, the same as any other justice on the bench.

We rate her claim True.