This year’s race for the Wisconsin Supreme Court has only begun to take shape. But it is not too early to recognize that the decision made in this contest will be a definitional one with regard to Wisconsin’s future.
There will be a three-way primary on Feb. 19 among Justice Patience Roggensack, a member of the activist majority on the high court that has aligned itself with Republican Gov. Scott Walker; lemon-law lawyer Vince Megna, a fiery figure who has declared his intention to run the nonpartisan race as a declared Democrat; and Marquette University School of Law professor Ed Fallone, who is running an old-school Wisconsin judicial campaign in the tradition of former Chief Justice Nathan Heffernan and former Justice Janine Geske.
The top two finishers will face one another in the April 2 runoff, which promises to be the most important election between now and the 2014 gubernatorial race.
Why is the Supreme Court election so critical?
Wisconsin has three branches of state government: the executive, the legislative and the judicial. At this point, all three are controlled by Walker and politicians associated with him. The Legislature is somewhat delicately balanced, especially the state Senate, where relatively moderate Republicans can put the brakes on the governor’s most extreme initiatives. The Supreme Court has a less-delicate balance, and its reputation as an independent and supposedly nonpartisan branch of government has suffered as a result.
The seven-member court has four justices — including Roggensack — who were elected with the active support of the same political forces that have given Walker control of the executive and legislative branches. These justices form an activist majority that has as its purpose the advancement of the governor’s agenda via the courts.
The three-member court minority consists of Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and Patrick Crooks. They come from different judicial and ideological places, and from different regions of the state. They sometimes break with one another on issues of law. But they are united in their commitment to maintaining an independent, nonpartisan judiciary.
Needless to say, that endeavor has not been easy in this hyper-partisan era.
It is no secret that Roggensack is supported by the Walker-aligned Republican establishment. Indeed, the most frequent spokesperson for her re-election campaign has been the former director of the state Republican Party. If recent partisan and nonpartisan contests offer any indication, the incumbent will enjoy substantial support from the out-of-state interests that have made Wisconsin their political playground — including the Koch brothers (via Americans for Prosperity and related groups) and Michigan’s DeVos family (via various groups, including the American Federation for Children).
Since Roggensack is likely to have Walker and his billionaires’ club on her side, there’s a presumption that the campaign against her must counter the justice’s partisanship with equal measures of partisanship.
But is this smart politics?
Perhaps not. Perhaps Wisconsin is ready for a restoration of some standards, some principles, when it comes to our judiciary. If so, then the right campaign against Roggensack might not be one grounded in the same excesses that have made the high court such a mess. It might be one that reasserts an understanding of the importance of an independent judiciary accountable to the law and to the citizens of Wisconsin, as opposed to politicians and out-of-state special-interest groups.
To be sure, Roggensack’s opponent will need money.
Judicial races have become expensive endeavors in Wisconsin, costing millions of dollars when all the spending by campaigns and political action committees is accounted for.
Roggensack’s eventual challenger will have to have support from a lot of folks who identify as Democrats and independents, as well as from labor unions and civil rights, farm and community groups that have been at odds with the Walker agenda.
But those groups ought not back a Roggensack challenger with the same approach as Walker operatives and out-of-state interests that simply want to buy a justice who can be counted on to vote, reliably and unquestioningly, for an anti-labor, anti-public education, anti-public services, anti-voting rights program.
They can and should set a higher standard, investing their resources and energy in a campaign that is about more than partisan games. The point should be to attract not just Democrats and independents but also responsible Republicans, all Wisconsinites who are tired of the crude, win-at-any-cost politics that Walker, Senate Majority Leader Scott Fitzgerald, Justice David Prosser and their mandarins have brought to the state.
If Wisconsin is going to renew its tradition not just of judicial integrity but of honorable and functional governance in the executive and legislative branches, the process has to begin somewhere. And the best place to begin is with the 2013 Supreme Court race.
The political high ground needs to be reoccupied. No one expects Roggensack, who has embraced the extreme judicial activism of the court’s majority, to seek that higher ground. She has had plenty of opportunities to act in an independent — or at least responsible — manner, but she has consistently chosen to act as a member of Prosser’s partisan caucus on the court. The question now is whether the campaign against Roggensack will speak to the better instincts of Wisconsinites. If it does, that campaign can and will offer the alternative that Wisconsin needs at this point, and that could restore a measure of checks and balances to state government.
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