Wisconsin's Nasty Spring Election: Impartiality with Its Sleeves Rolled

The partisan divide on display in Wisconsin— which is eroding the neighborliness found in small communities across the state—is also infecting the nation. The political fervor finds an America acting out an increasingly satirical reverse version of Mao’s Cultural Revolution, such as in Maine, where lawmakers have removed a historical mural simply because it depicted the state’s labor history.

Meanwhile, with an election approaching on April 5, Wisconsin finds itself in an absolute fit over partisanship.

The same partisans that are pushing Attorney General JB Van Hollen to challenge the federal heath care reform bill in the courts are criticizing the lawsuits that challenge Governor Walker’s budget bill. The same partisans who blame Wisconsin’s economic woes on the last eight years of a Democratic governor also blame President Obama for America’s current economic crisis.

Walker’s supporters are scurrying to separate the upcoming state supreme court election from the partisan politic gut punch. After using no nuance whatsoever to gin up support, by characterizing union workers as thuggish tapeworms infecting the intestinal tract of society, the pro-Walker camp is insisting on absolute ideals of impartiality and nonpartisanship in the April 5th supreme court election. And so conservative incumbent David Prosser is trying desperately to pull free the lynchpin that until quite recently hitched his wagon to the Governor’s train.

Like germs, partisanship can now be found wherever the paranoid happen to want to find it—even with the Green Bay Packers Super Bowl win, the one thing in the state that all Wisconsinites probably agree should be bipartisan. In February, Walker attended the event in Texas not on the state dime, but at the cost of his campaign. While the spin is that this saved the “broke” state money (the state still paid for his security), what partisans see is an opportunity for the Governor to legally fundraise and politic without accountability, while at the same time pretending to represent the Green Bay Packers and all the people of Wisconsin.

It’s become so bad that pretty much anything labeled independent or nonpartisan should pretty much be assumed to be a lie. For example, the effort in Green Bay to recall Democratic Senator David Hansen is billed as independent. On the Green Bay Tea Party website, a banner bills the recall as an “independent effort by a group of Wisconsin’s citizens.” Except, RecallDaveHansen.com, the website of the “independent” recall, shares a registration address with that of the Kewaunee County Republican Party and Party Chairman Ron Hauer, who does normal “independent” citizen things like attend the January swearing-in ceremony of Senator Ron Johnson in Washington D.C.

After Dane County judge Maryann Sumi ordered a restraining order that blocked the publishing of Walker’s bill pending a hearing, Red State noted that Sumi’s son operates a company handling political campaigns. They concluded “Clearly, both Sumi and her son are activists, which is why Sumi should be removed from the entire Wisconsin matter.”

Forget for a moment that the same Red State was mum when the Wisconsin state patrol was called in to handle Madison protesters, an organization under the control of Walker appointee Stephen Fitzgerald, the father of the two most powerful Republicans in the legislature and primary supporters of the bill. What Red State is essentially arguing here is that a parent should be held accountable for any of the work or politics of their children. Shades of Milo Radulovich.

The voices decrying Judge Sumi as an activist are the same voices saying Supreme Court Judge David Prosser is a judicial independent campaigning against an activist… even though both Sumi and Prosser were appointed to their respective court positions by the same Republican Governor, Tommy Thompson, in the same year (1998).

This insistence on impartiality despite all evidence to the contrary is most on display in the campaign of incumbent state Supreme Court Justice David Prosser.

In December, Prosser’s campaign released a statement declaring that “Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and legislature.”

“I never saw that statement. I wouldn’t have written it that way.” That was Prosser’s excuse for that statement in a recent Wisconsin Public Television interview. That’s typical of the kind of statement he’s been making recently in an attempt to distance himself from the Walker administration before the election.

A day after Prosser released the “compliment” statement, he met with the Wisconsin Federation of Republican Women. His schedule has seen him at Republican-only events ever since. On an interview with the Dane County GOP on a show called “Who’s Right?” the host says things like “We need you on the court… especially if this budget repair bill is coming up on the supreme court for a vote,” while Prosser winks.

In February he was the keynote speaker “on behalf of” the Outagamie County Republican Party at its annual Lincoln Day dinner. A video posted on the Rock County Republican Party Facebook Page shows Prosser at its dinner mocking his challenger about how, as a prosecutor for the Dept. of Natural Resources, she has wasted her time… charging those violating environmental regulations. Prosser said: “She’s very concerned about individuals who violate the rules on docks.” The crowd laughs. “And she wants some people not to have any docks at all!” The crowd laughs more.

There are legitimate questions about the depth of experience of challenger and Assistant Attorney General JoAnne Kloppenburg. Kloppenburg has no judicial experience, a point Prosser’s campaign has repeatedly made. That’s how people become judges: they were previously not judges. At the time of his appointment in 1998, Prosser had only four years of any kind of official justice experience under his belt, two of them in Washington D.C.

Prosser’s dismissive, mocking posture is sadly typical. In February, responding to ethics concerns about the court by one of his challengers, Prosser said, “I think Joel has been smoking some of the stuff he wants to legalize.”

At the Walworth County GOP Lincoln Day Dinner, Prosser raised the specter of Jesse Jackson, and, in typical fashion, mocked him by addressing the crowd “My brothers and sisters…”

Prosser’s scorn for what is essentially a prosecutor doing her job is stunning, considering Prosser’s own history as a prosecutor. In 2008, Prosser was forced to recuse himself from a case involving sexually abused minors and the Catholic Church because, while serving as district attorney of Outagamie County in 1979, Prosser had refused to prosecute a Green Bay priest accused of sexually molesting two brothers. His reasoning? It would have been too hard on the boys. (In 2004 the priest, then 81, was imprisoned after abusing an unknown further number of children.) In 2008, the victim told the Journal Sentinel, “[Prosser] said it would be too embarrassing for a kid my age and said what jury would believe a kid testifying against a priest? Then he said, what really makes it bad is that [the priest's] brother, Joe, sang on the Lawrence Welk show and everybody watched that back then.”

So which former district attorney would you rather have on the high court bench: the anal retentive prosecutor charging people with extending their lake docks two feet longer than allowed by the law or the guy who doesn’t prosecute a child molester because the priest’s brother was once on the Lawrence Welk Show?

Last week, emails leaked in which it was revealed that Prosser had, in addition to saying he would destroy her, called Chief Justice Shirley Abrahamson a “bitch.” Prosser had good reason to question the motivations behind the timing of the leaked emails, but he did not deny his behavior. In fact, his she-made-me-do-it justification at times tilted scarily near “she deserved it.”

After calling the chief justice a “bitch,” Prosser went on Wisconsin Public Television to say, no kidding, that his most satisfying case was one which involved “a victory for a young woman who had been sexually harassed in the workplace.”

Despite Prosser’s complete lack of compunction about insulting others, he himself is extremely sensitive to insult. During a recent debate he made a long point of getting to the bottom of whether or not a comment posted to a challenger’s Facebook page by some unknown user referred to him as a “turd.”

Prosser is the first to admit that his background is far from impartial. In the interview with WPT, he admitted, “I have the most partisan background of any member of the court,” adding, “so when I became a member of the court I wanted to leave that behind and be known as a truly impartial justice.” In all of his recent speaking engagements, Prosser has addressed his past years of stringent partisanship in this fashion, declaring that, essentially, when he was appointed to the high court he just gave up his prior belief system—as if a career as a Republican lawmaker was just a substance abuse problem from which he recovered.

That’s funny, because in 1990, after Wisconsin Circuit Court Judge Patricia McMahon ruled that a law placing a 60-day waiting period on welfare was unconstitutional, then-Minority Leader Prosser, who also happened to be sponsor of that portion of the law, accused Judge McMahon of judicial bias… because she had years earlier worked with the plaintiffs, Legal Action of Wisconsin.

This level of the respect for the impartiality of the judicial system was standard for Prosser before he himself became part of it and began pitching himself as impartial. As with the McMahon case, if a ruling didn’t go Prosser’s way, he wouldn’t submit a legal argument for his case, but instead would raise accusations of bias. For example, also in 1990, when the Wisconsin Supreme Court ruled to uphold a campaign finance law that limited campaign contributions, then Rep. Prosser called the court “tainted,” saying, “I question whether there was an impartial hearing.”

Prosser was a right wing fundamentalist before right wing fundamentalism was what America had for breakfast with its Corn Flakes. In 1996, as assembly speaker, Prosser shepherded a bill through the legislature that would have required a 24-hour waiting period for women seeking an abortion. Beside maybe being unconstitutional, the bill’s exemption for cases of rape and incest required a two hour wait—and only if a criminal complaint had been filed. Except, such a report is only issued by a district attorney and can take weeks to file, basically nullifying the bill’s rape and incest exemption. Prosser’s response to reporters’ questions about the legal knot? “It was just a mistake.”

This circumventing of the legal right to abortion was a good compliment to the lawmaker’s earlier support for an age-old “blue law” that made adultery a Class A misdemeanor. In 1989, he reasoned that adultery “is very likely to jeopardize the future of the marriage, to humiliate the non-offending spouse, to take away money from the family unit or lead to abortion.” Get that? A sitting state supreme court judge argued that adultery equals abortion.

Few have noted that Walker and Prosser served together in the legislature for three years as part of the Republican majority.

Prosser now will not directly answer specific questions about his beliefs on the grounds that he doesn’t want to prejudge a case. That’s fine: his beliefs on all of the most important kinds of cases are already part of the public record. For example, in 1994 he said that, yes, he did support the death penalty.

In numerous interviews and at debates, Prosser has invited potential voters to review his judicial record. But on Prosser’s own campaign site, the only judicial achievement he openly highlights is a ruling (made rightly) against former Democratic Governor Doyle. The “Judicial Record” section of Prosser’s own campaign site is still “under construction”—a dozen days before the election.

When Prosser was appointed to the court in 1998, he had not served one minute as a judge. When Prosser was appointed, he had not even served as a organ of any courtroom in 20 years. Prosser served as the Outagamie district attorney from only 1977 and 1978. Prior to that, he served two years as an adviser in the Dept. of Justice. Prosser was elected to the Wisconsin State Assembly in 1979 and never again served in any justice capacity whatsoever. After leaving elected government in 1996, Prosser made judgments for the Wisconsin Tax Appeals Commission, a state agency that resolves taxpayer disputes with the state, but he was not a judge. This means Prosser’s official entire justice system experience consist of just the two years.

Prosser is now warning that out of state money is flooding in to support his opponent.

Following the huge pooch-screw judicial elections in 2007 and 2008, in which more than ten million dollars came in from God-knows-where for seats on the court, a new campaign finance scheme promotes public funding. For three candidates, the new finance law grants $100,000 for the primary and $300,000 for those advancing to the general election. If candidates with private funding spend heavily against publicly-funded candidates, the law supplies more money. As Prosser has pointed out, it’s a law of best intentions that provides zero incentives to not accept public funding.

Until Walker’s shenanigans launched the supreme court election into the spotlight, Prosser was trouncing his opponents in outside party spending. For example, during the primary election—when all publicly-funded candidates had $100,000 to spend—Prosser benefited from $408,000 worth of supporting ads bought by the Club for Growth. That spending by the organization (founded by the Koch brothers) alone accounted for 69 percent of all TV ad spending during the primary. What’s more, the Brennan Center for Justice notes: “Club for Growth paid an average of about $400 for each of its ads, while Winnig paid less than $200 per ad, and Kloppenburg less than $150 per ad—indicating that Club for Growth’s ads were disproportionately placed in larger markets or during programming with larger audiences than the ads placed by Prosser’s challengers.”

The Club for Growth’s Prosser ads proclaimed that the man who let a known child molester go free instead of embarrass a Laurence Welk Show performer has “helped keep dangerous criminals behind bars.”

Spending by the Club for Growth did not trigger matching amounts for Prosser’s publicly-funded challengers, because it was very careful not to use the trigger words “support, “vote for,” or “elect.” (It did not go unnoticed that the Club for Growth’s Prosser ad was not dissimilar to a 2008 Club for Growth ad supporting conservative supreme court judge Michael Gableman, which hinted at the misinformation campaign regarding Gableman’s challenger. Eventually Gableman was accused of violating the state’s judicial ethics code, a charge from which he was eventually released after a deadlocked state supreme court decision—in which, surprise, Prosser sided with Gableman.)

There’s also money from Wisconsin Manufacturers and Commerce, a Chamber of Commerce lobbying organization that heavily funded the Walker campaign. Sensing Prosser’s campaign suddenly in danger, it has opened its significantly thick wallet to spend in support of Prosser. (The new Koch Industries head lobbyist has previously been a lobbyist for WMC.) Prosser was also a guest of honor in March 2010, along Walker, at a Tea Party event sponsored by Americans for Prosperity.

Kloppenburg herself has suddenly seen a lot of financial support from outside groups as well. In a March 22nd fundraising email to members, the WMC warned of “The Greater Wisconsin Committee” purchasing millions of dollars of TV time to attack Prosser. The WMC letter called the committee “a union front group,” while the Wall Street Journal called it a “liberal front group.” Both descriptions are largely true.

In the end, any candidate who truly believes in his or her heart that today’s Wisconsin Supreme Court is a fully impartial body, devoid of politics, probably does not lay claim to the perceptive mental powers required to sit on the state’s most challenging court.

The whole election is a turd sandwich, and Wisconsin is being forced to take a bite. No matter how you chew, it tastes the same. Prosser’s campaign itself has summed it up better than anyone. A February 9th email to Wispolitics subscribers quoted Brian Nemoir, Prosser’s campaign manager, saying “This election is about a 4-3 commonsense conservative majority vs. a 3-4 liberal majority, and nothing more.”

And if Prosser goes down as a result of a referendum on Walker, it will hardly be some great victory for democracy. Many who vote for JoAnne Kloppenburg will know nothing about her beyond the fact that she is not David Prosser.

A final review of the behavior of all involved leaves only one conclusion: If candidates for the court, incumbent or otherwise, are only going to pay lip service to impartiality and nonpartisanship, why should the electorate be expected to act any differently?



Abe Sauer can be reached at abesauer at gmail dot com.