Litigation

WI Election ?Proxy Fight? Bad for the Bench?

By Peter Hardin

Increasingly, pundits are framing next month’s Wisconsin Supreme Court election as a referendum on Republican Gov. Scott Walker’s bid to curb collective bargaining by public employees.

As a headline in the Milwaukee Biz Blog of BizTimes summed up this view, “Voters will decide fate of Walker’s bill April 5.”

But is this the right way to choose judges, and to preserve fair and impartial courts? That’s the question asked by Christopher Murray in a Washington Examiner commentary, entitled “Wisconsin has become ‘exhibit A’ for not electing judges.” Here is the heart of his argument:

“Regardless of how one feels about the [Wisconsin] Budget Repair Bill, making a judicial election a proxy fight for that (or any other) bill serves to further politicize the bench.  It will delegitimize whatever rulings the court passes down in the future and will subject judges? motivations to second guessing.

“While we expect legislators and executives to defend their actions to voters and the press, the image of judges on the stump, holding fundraisers, and taking to the airwaves to advertise their campaign should give all voters pause….Wisconsin voters should insist not on a particular ruling, but rather a new process for selecting those called upon to deliver it.”

Incumbent Justice David Prosser, a former Republican legislator, is facing a challenge from JoAnne Kloppenburg, an assistant attorney general, in an election that is unusual for a number of reasons. Moreover, emotions around it have run high since the legislature passed the governor’s “budget repair” initiative.

Both court candidates qualified for public financing under a new state law aimed at reducing the influence of special interest spending in court elections. And personal rifts on the deeply divided court have burst into public view, as a newspaper article this past weekend reported on Justice Prosser once calling the chief justice a “bitch” (see Gavel Grab) – and more recently acknowledging it.

Now barnyard talk from the edges of the election is getting noticed in national news media. In a debate, Justice Prosser alluded to a comment on his challenger’s Facebook page.  “Stop the turd, vote Kloppenburg.”

“Now, am I the turd?” Justice Prosser asked. “That’s totally inappropriate.” His remarks made for an unusual judicial election headline in a Huffington Post commentary by Mary Bottari of the Wisconsin-based Center for Media and Democracy. The headline declared, “Will ‘Bitches’ and ‘Turds’ Decide the Fate of Wisconsin?”

The candidates attended a luncheon forum Tuesday. It was the topic of an Associated Press article entitled, “Wis. justice says he doesn’t start fights on court.” Justice Prosser contended liberal-leaning justices were orchestrating the infighting to weaken his re-election chances.

In addition, he questioned whether his opponent could decide legal challenges to the contentious new law, saying she had aligned herself with Walker’s critics.

According to the AP, Kloppenburg  “said the depth of the controversy over the law underscores the need for impartial judges –something Prosser clearly is not.”

Full post as published by The Gavel on March 23, 2011 (boomark / email).