Typically, the Wisconsin Supreme Court race is non-partisan. But the recent battles over collective bargaining and Scott Walker’s budget proposals have changed this sleepy little race pitting a right-leaning incumbent against a liberal-leaning Assistant Attorney General into a political ground zero.
Justice David Prosser has served on the state’s highest bench since 1998, appointed then by Tommy Thompson and elected to the seat in 2000. He is a former Outagamie County District Attorney and state representative who insists he is not the cause of the personal discord among members of the Supreme Court.
“My election on April 5th will dissapate the conflict because it’s about whether I should be reelected,” he told an audience at Marquette University during a televised debate. “When I win it will go away.”
JoAnne Kloppenburg, a career litigator and state prosecutor managing environmental suits, says Prosser is the problem. She said a campaign statement that he would be receptive to Gov. Walker’s ideas shows he wants to make the court partisan and is projecting his views, while she would be truly independent and impartial.
That was the crux of the one-hour debate Tuesday evening, and the crux of this campaign.
Prosser sees his vast experience as a prosecutor, representative and justice as the only reason voters need to send him back for a second 10-year term.
“I have had the privilege to serve on the Supreme Court. I love the work and I have proven I can do the job,” he said in his opening statement. “I have taken part in 900 decisions, written 200 majority opinions, worked on compromises, reviewed attorney discipline cases, spoken to the public about the court and worked successfully with the legislature.”
It is that close working relationship with the legislature and former colleague Walker that concerns Kloppenburg.
“I’ve been privileged to serve as a prosecutor and have worked under Republicans and Democrats,” she said. “But judges must be independent and impartial, willing to approach cases with an open mind and without pre-judgment. We must move away from personal quarrels and be independent, impartial and fair.”
Following their opening exchange, the candidates answered questions from a panel consisting of former Wisconsin Supreme Court Justice and current Marquette University Law Professor Janine Jeske; Milwaukee Journal Sentinel reporter Patrick Marley and WisPolitics editor J.R. Ross.
Many of the questions focused on third party involvement in the race and the perception that both candidates have already conveyed what their votes would be in cases arising from Gov. Walker’s budget proposal and budget repair bill.
In December, Prosser’s campaign manager released a press memo stating the justice would be a complement to the new administration. Kloppenburg has used this to her advantage, saying the statement shows the incumbent will vote with Walker.
“I will be independent and impartial,” she said. “It doesn’t help when there are partisan blocks on the court. I’m working to close the divide. I will be impartial as I have set aside my personal political beliefs for the last 20 years.”
Prosser explained he never saw the press release issued by his campaign manager and has disavowed what it said.
“What is troubling is her campaign repeatedly attributes that to me, while her entire Facebook page is devoted to gaining votes for a potential case,” Prosser said. ”Attacks on the governor and the legislators and linking me to that (press release) is totally inappropriate and makes it questionable if she could even sit on those potential cases.”
Kloppenburg defended the commentators on Facebook, saying those are their words, not hers, and that it shows they understand the importance of the future of the court.
She added that she has not taken any position publicly on budget issues or attended any rallies. She said people on the campaign trail have told her they are supporting her, not because of any potential ruling, but because she is impartial.
Prosser said he is also independent and hasn’t taken a position on any of the issues currently working through the Dane County courts. He said his campaign is focusing on his record as an independent justice for the past 12 years and being tough on crime if the law is followed.
He cited a case from Walworth County that involved criminal evidence collected under a faulty warrant. He said his opinion to throw out the evidence was not viewed favorably by conservatives or police officers.
Prosser also came out in favor of judicial activism, in certain cases such as the decision find the raid of the medical malpractice fund unconstitutional.
“That fund was set up 30 years ago for a specific purpose – to protect people injured by doctors,” he explained. “It was called a trust, and to firm it up the legislature said it can’t be used for anything else. Then another legislature needed money and took $200 million and put it into something else. That is not right and was a total violation of the law.”
But Kloppenburg said it was inappropriate for him to cite the medical malpractice fund case as an example of his independence, because it is unclear if he ruled on the actual point of law or simply against a Democratic governor.
Kloppenburg was reluctant to note any cases where she may have agreed with Prosser, other than those where he ruled in her favor as a state prosecutor. She said it would be presumptious to guess how she would have voted on a case where she had not heard the arguments, read the materials or taken part in the discussion.
But she was not reluctant to share a case where she disagreed with Prosser: the ethics ruling on Justice Michael Gableman last year. She said the case should have been allowed to go to trial, where the facts could have been decided independently. Instead, she claims Prosser voted for the tie on the Supreme Court and to let Gableman remain on the court, without any definitive answer to the questionable campaign ads he ran.
Prosser said the facts in the Gableman case were stipulated and the three-judge panel picked by Chief Justice Shirley Abrahamson unanimously recommended dismissing the case.
“There was no need to go to trial,” Prosser said.
Prosser added that the Gableman ad was distasteful and it probably violated the second sentence of the Supreme Court rule which deals with misleading statements, but not the first sentence.
“People need to get over it,” he added.
In a final question, the candidates were asked to name a U.S. Supreme Court Justice who they admire – a example of what is important to them philosophically.
Kloppenburg named Associate Justice John Paul Stevens as her favorite and the evolution of his opinions.
“I found it interesting to read how he has developed his view on the constitutionality of the death penalty,” she said. “It shows we can’t ever set our ideas in concrete and we must be open to the parties before us and the other justices. We always have to keep an open mind.”
Prosser cited Chief Justice William Rehnquist and Associate Justice Hugo Black. He recalled his days working for the Department of Justice and how Renhquist complimented him on an brief he wrote.
“I think he was wonderful in his clarity and orderliness of his opinions,” Prosser said. “And Black, I just loved his style of writing and cleanness of his opinion.”
In closing, Prosser said impartiality on the court is vitally important, but his opponent doesn’t understand what that means.
“She’s been an advocate her entire career,” he said. “Look at my record. I can go left or right, I am not predictable. I can truly be an honest broker of the law.”
Kloppenburg repeated her mantra of independent and impartiality in her closing, adding that she does not look at the world through a partisan lens.
“I will represent the people of Wisconsin. I will not prejudge matters but approach each case with an open mind and hot how it will favor one political party or the other.”
The Supreme Court election is April 5. For more information on voting locations or voter registration, please visit the Milwaukee County Election Commission.