Wisconsin Supreme Court Race Heats Up
Justice David Prosser, Assistant Attorney General JoAnne Kloppenburg face off April 5
During the primary election campaign, votes taken by Justice David Prosser—a former Republican Assembly speaker who typically votes with three conservatives on the high court to form a majority—came under attack by his three opponents.
Challengers took aim at Prosser's vote to dismiss ethics charges filed against Justice Michael Gableman, a fellow conservative, for his race-baiting and misleading campaign ad, as well as Prosser's vote to approve lax ethical rules for judges presiding in cases that involve campaign donors. Those rules—adopted verbatim by a court split 4-3 with conservatives in the majority—had been written by Wisconsin Manufacturers & Commerce (WMC) and the Wisconsin Realtors Association, who support conservative judicial and political candidates.
And, finally, Prosser's challengers argued that the former legislator was too partisan on the bench, the proof being a statement issued in December by Prosser's campaign in the wake of Republican electoral victories last November: "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 administration and Legislature."
Despite those assertions, Prosser won 55% of the primary election vote. He will face Assistant Attorney General JoAnne Kloppenburg on April 5.
The race for this nonpartisan office has, however, been impacted by the uproar over Walker's attack on collective bargaining and the unprecedented recall efforts around the state. A vote for Prosser, the saying goes, is really a vote for Walker, because Prosser and his fellow conservatives on the bench will likely turn a blind eye to possible abuses by the Walker administration and not function as an independent branch of government.
Prosser and Kloppenburg spoke at length to the Shepherd Express in separate interviews last week. Here are excerpts from our discussions; more excerpts can be found on the Daily Dose blog at expressmilwaukee.com.
Justice David Prosser
Shepherd: Why are you running for re-election?
Prosser: I've served on the court 12-and-a-half years. I enjoy the work very much. I think I do a good job. I think I bring a unique perspective to the court, as the only former legislator on the court and as a person who is frequently the centrist, deciding vote on the court. Very often I hear from colleagues, "You think differently than the rest of us do." And I think that's a nice compliment.
Shepherd: Much has been made of the statement your campaign issued about how you should be re-elected to protect the conservative majority and complement the new Republican administration. What do you say to the notion that this statement proves that you're a partisan on the bench?
Prosser: That would be a compelling piece of evidence if I had ever seen that statement before it was issued, if I had approved it or if I approved it now. I had never seen that statement. I had not approved the statement. The first time I had ever heard of that statement was when I saw my opponent's news release attacking that statement. It came as a complete shock to me.
Shepherd: The political landscape has changed a lot in the past few weeks. How do you think that's affected this race?
Prosser: I went to a meeting last April in Waupaca County. At that meeting I ran into Congressman Steve Kagen from my hometown of Appleton. I went up to him and I said, "Congressman, how are you?" And his immediate response startled me. He said, "Boy, do you have a target on your back."
I really was taken aback. I didn't have the temerity to ask him what he meant by that. But what I think he was talking about was what was going on in some of these rules hearings and other things. They were trying to set me up to look bad, to make me vulnerable to appearing to be insensitive to ethical issues, that sort of thing. The recusal rules, all sorts of stuff. [...]
Now all of a sudden we have all of this controversy and people who would like a different makeup on the court for any reason are all rallying behind the idea that we have to send the governor a message, we have to defeat Justice Prosser, who is a tool of Koch Industries and Scott Walker. That's sort of the mantra. Well, this is ridiculous! I had no hand in this, had no forewarning. There are some things I disagree with. I haven't really read the bill, studied the bill, I don't approve of the bill. If there is litigation, I'll give it a fair hearing, like any bill.
Shepherd: What do you make of your opponent, Assistant Attorney General JoAnne Kloppenburg?
Prosser: Well, JoAnne Kloppenburg is a fine attorney. I think she has honors as an attorney. She's practiced very well in the Department of Justice in a relatively narrow area of law, environmental enforcement. She has championed some things that I have strongly disagreed with. But she has championed some very good things as well. I think that she is very liberal. The evidence of that is the contributions she has made politically, her affinity for the chief justice, her support of the Green Party candidate for the Assembly in Madison, and her entire record as an enforcer of environmental laws and attorney for the DNR. That's certainly a legitimate point of view. But I think she is a lot less candid about her political background and her political inclinations than I am.
Shepherd: You aren't raising money for your campaign because you're using the new public financing system. How's it working out?
Prosser: Oh, dear. What I would say is that some parts of it are actually a godsend; other parts are a total nightmare. And I doubt that it would survive a constitutional challenge, or at least parts of it. And I would think it needs to be revised. [...]
So the burden of raising all of that money has been eliminated. Now, what's the downside? You get a grant. And when the government starts handing out money to people, it draws candidates like food draws ants. And so suddenly we have three candidates who probably wouldn't be particularly credible as candidates if they didn't have a grant. They're now on the ballot. It has sort of disadvantaged me.
Shepherd: Do you regret taking part in it?
Prosser: No, no, not at all.
Shepherd: Why did you do it?
Prosser: Because, well, the first thing, it actually did relieve me of that enormous burden of raising money. The second thing is that I would have been roasted alive if I didn't take the public funding. I would have been attacked in every editorial page in the state.
Shepherd: Gov. Scott Walker is proposing to change the system so that the funds aren't guaranteed to be $100,000 for each primary candidate and $300,000 for each general election candidate. What do you think of the change?
Prosser: That's a total waste of time. I think there has to be a fundamental question answered. When you have an incumbent judge running, do you want to set up a system that encourages challengers to run against that judge? Whether the judge is moderate, liberal, conservative—whatever the judge. Do we want to set up a system that encourages people to challenge the judge? Encourages it by giving them money to run?
OK. I'm not sure I am in favor of that system. I do believe in accountability. Absolutely. That's why we have judicial elections—to hold judges accountable. They're paying attention. They don't lose touch. They are quite sensitive to what's going on in society. That doesn't mean that they necessarily tailor their decisions to contemporary pressure or something like that, but they better darn well be interested and informed on what's going on, how people feel. You want judges to be accountable, but do you want to make them accountable by encouraging people to run against them by giving them money?
Shepherd: Why are you running for a seat on the state Supreme Court?
Kloppenburg: I am running to restore people's confidence that everyone who comes before the court gets a fair day in court. My pledge to be independent and impartial is another way to say that I will be the kind of justice that any person would want to hear their case.
Shepherd: You've worked for the Department of Justice for more than 20 years as a litigator and prosecutor. Do you think, if you are elected, that it will be difficult to change your point of view to the neutral one required by a Supreme Court justice?
Kloppenburg: Not at all. For one thing, I've been in court at all different levels so much over the last 20 years that I am very comfortable in the judicial system. Another thing is that I, as an assistant attorney general, have had to keep my personal and political beliefs at bay to do what the Department of Justice determines is in the best interest of the people of Wisconsin. We are there to do justice. We're not there to win at all costs. I advocate fiercely for the state of Wisconsin and the people of the state, but I'm also mindful of what is fair and just in every case.
Shepherd: The political landscape has changed in the past few weeks. How does that impact this race?
Kloppenburg: I think it's made it more visible. There are two things that it has brought home to people around the state. One is that elections really do matter. Just because this is an election in April, that doesn't mean that it should be ignored. This election, like all elections, is very important. Then there's also—the Supreme Court can be pretty remote for most folks. And I think that what has been taking place over the last month is that the profile of the Supreme Court has been raised and people have a better understanding of how important the Supreme Court is as a third branch of government that acts as a check and balance on overreaching by other branches of government.
Shepherd: Do you agree with the notion that a vote for Justice Prosser is a vote for Scott Walker?
Kloppenburg: That certainly is a perception that some people have. I have to turn to Justice Prosser's own words. His campaign, on Dec. 8, issued a press release saying that his re-election would preserve the conservative majority on the court and would "complement" the work of the new governor and the Legislature. His campaign's own words have suggested, has telegraphed, how he is going to rule. And that inclination, in his own words, is to support the governor and the Legislature. He has since said himself that he has the most partisan background of all of the justices on the court. And he has bragged about his accessibility to the current Legislature and its leaders and to the governor. So his own words call into question the extent to which he can be an impartial arbiter of what the other two branches of government do.
Shepherd: What is the biggest difference between you and Justice Prosser?
Kloppenburg: The biggest difference is that I'm truly committed to being independent and impartial and fair and that he sees the court as operating in a partisan way. People have to have confidence in the court. If they perceive it to be less than independent and impartial, then there needs to be new blood on the court. I can provide that new blood.
Shepherd: You don't have to raise money because you're accepting public financing for your campaign, as is Justice Prosser. How's it working out?
Kloppenburg: Wonderfully. It has democratized the whole judicial election process. By that I mean that it has forced me as a candidate to reach out to literally thousands of people who have never really paid much attention to either the Supreme Court or the spring elections. Instead of going to the same big donors who give a lot of money, you go out to the people of the state. Especially because I have no connection to any pre-existing political organization, I had to go out and do a real grassroots outreach.
Because we don't have to focus on raising money, we can focus on getting our message out and then using this money in a way that enables us to do it in the best way possible. There is a way for people to make history by showing that public financing works, because my understanding is that in the budget bill this financing system, as it's currently configured, is eliminated.
Shepherd: Are you bracing for an onslaught of independent ads that will drown out your message?
Kloppenburg: Third parties have a First Amendment right to [fund unlimited ads]. So we just have to be ready for it. We have to be proactive and foreshadow it and say it's going to come. I think that by being ready for it when it does come, the message will be a little diluted because we've told people, "Don't let these third party interests take the race away from you."
For example, when the Club for Growth ad came out supporting Justice Prosser, the incumbent, before the primary—they spent hundreds of thousands of dollars on an ad supporting Justice Prosser—we immediately e-mailed our thousands of supporters around the state and said, "Here's one. It's here! Call it out for what it is. Let your friends know about it." It happened to be from Club for Growth from Washington, D.C. We told our supporters, "We don't need Washington, D.C., to tell Wisconsin how to elect judges."