Wisconsin Supreme Court Justice David Prosser has departed from the state’s best judicial values and traditions to identify himself as a candidate who will make decisions based on his political ideology rather than the law.
His opponent, veteran Assistant Attorney General JoAnne Kloppenburg, would be an independent voice on the court rather than a supporter of the governor’s agenda.
In announcing his candidacy for a new term, Prosser identified himself as a judicial activist who would work to advance the policies of Republican Gov. Scott Walker. In the first announcement from his re-election effort, the message was clear: “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 complement to both the new administration and Legislature.”
Although Prosser has stepped back from that statement, his campaign later said that the April court election is about locking in a “conservative majority” on the court “and nothing more.”
These are unprecedented statements in the history of the Wisconsin judiciary.
We believe they argue for the removal of Prosser from the court, as do recent actions suggesting he has abandoned any pretense of respect for judicial integrity.
But that is an issue that must be decided by the voters.
Wisconsin has a great tradition of electing judges, which places the critical decisions about how to constitute the courts in the hands of citizens. The point of this tradition, which is deeply rooted in the state’s history and values, is to take politics out of the process. Unlike in other states, where politicians and legal insiders cut backroom deals -- using the so-called “merit selection” method of appointing jurists -- Wisconsin’s judicial elections let the people choose justices and then hold them to account.
April 5 will be Prosser’s accountability moment.
A former Assembly speaker, Prosser mentored Scott Walker after the younger man was elected to the Assembly. Wisconsin is not a large state, so relationships of this sort frequently develop.
Most judges resolve conflicts of interest by recusing themselves from specific cases and establishing strict standards. Unfortunately, Prosser has not done this. Instead of abandoning his past role as a partisan legislative leader, he has now positioned himself as a partisan leader on the court.
Consider his involvement in the legal wrangling over Justice Michael Gableman’s violations of the state’s code of conduct for jurists. The Wisconsin Judicial Commission determined that Gableman and his allies purposely engaged in actions that violated the Code of Judicial Conduct and that “the prosecution of this matter was appropriate and a constitutional application of that valid rule.” However, Prosser blocked that prosecution.
Why? Prosser and Gableman have each benefited from the aid of the out-of-state political interests that backed Walker’s election. Acting as a partisan, Prosser provided Gableman ethical cover in order to tip the balance of the court so as to align it with the Washington-based interests that have guided Walker’s agenda. Prosser’s moves suggest a steady determination to make the high court a judicial rubber stamp for the governor.
For Wisconsinites who prefer the ancient model of governing that put all power in a monarch, Prosser is the right choice. He is running as an explicit supporter of the governor. That is his right. But it is also the right of the voters to set a higher standard.
And they have an opportunity to do so by electing a highly qualified and highly regarded candidate who would re-establish the court as an independent branch of government.
Kloppenburg is not a politician. She is one of the most experienced and well-regarded lawyers in the state; an instructor at the University of Wisconsin Law School; and an advocate with a broad background of arguing cases before circuit courts, the Court of Appeals and the Wisconsin Supreme Court.
But her real strength is her nonpartisan record and commitment to judicial integrity.
Kloppenburg offers a reminder that it is still possible to disregard politics and to respect, honor and maintain the rule of law. As a litigator and prosecutor with the Wisconsin Department of Justice since 1989, she has served with two Democratic attorneys general (Jim Doyle and Peg Lautenschlager) and two Republican attorneys general (Don Hanaway and J.B. Van Hollen).
In this campaign, Kloppenburg has gone out of her way to reject special-interest money and to highlight her commitment to judicial ethics and the code of conduct. She says: “Supreme Court justices should not act as advocates for any cause or group nor as legislators. Rather, Wisconsin residents deserve to have confidence that judges are impartial and independent decision-makers who apply the law fairly and clearly based on the law and the facts. That is what my background and broad legal experience have prepared me to do. That is the kind of justice I will be.”
That is the traditional Wisconsin view, and the standard that voters have respected and defended through most of the state’s history when electing judges.
Now we need to defend that standard once more. This race provides a stark choice between a partisan judicial activist who would make the court an extension of the governor’s office and a respected legal scholar, litigator and prosecutor who would restore the court’s independence.
JoAnne Kloppenburg embraces the higher and better standard that Wisconsinites have always demanded of their Supreme Court justices. She is the clear choice for voters who favor an independent judiciary.
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