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ALG Editor’s Note: In the following featured column from the National Review’s Robert Costa, the fate of Wisconsin’s new law restricting collective bargaining for public sector pensions and health care benefits may come down to the election of a state supreme court justice:
By Robert Costa
As the dust settles in Madison, Wisconsin Republicans face a troubling coda: Gov. Scott Walker’s budget-repair bill is being tripped up in the courts. Union heavies smell blood. And the unruly parade of lefty activists and hulking Teamsters that occupied the state capitol for weeks is back for a bruising final round.
On paper, at issue is whether senate Republicans violated the state’s open-meeting laws. In mid-March, after a three-week stalemate, GOP lawmakers hustled Walker’s bill to the floor. The senate clerk approved the maneuver. But 14 Democratic state senators, on the lam in Illinois, howled in absentia. So did their comrades in Dane County government, who quickly filed suit. A sympathetic county judge put the brakes on implementation.
The Walker administration, appalled, immediately urged a state appeals court to strike down the circuit court’s ruling. But the appellate panel threw up its hands last week and kicked the bill to the state supreme court. Meanwhile, the nonpartisan state legislative bureau, following protocol, published the bill on Friday, sending Democrats into a tizzy.
With fresh legal questions being raised daily, the bill’s status is as murky as a Charlie Sheen tweet. But the tedious tangle over quorum rules and publication guidelines is merely a proxy for enraged progressives. The governor has beaten them at the polls and in the legislature. To topple his signature law, they need a black-robed coup.
Pressure is mounting on the seven-member high court to weigh in. If they do, the bill risks being overturned. For the moment, judicial conservatives hold a 4–3 edge. But that could flip come April 5, when incumbent justice David Prosser, a former GOP legislator, battles JoAnne Kloppenburg, an environmental lawyer and veteran state attorney, for a ten-year term.
The Prosser–Kloppenburg bout has political implications beyond the fate of Walker’s bill. Numerous GOP state senators are facing recalls, and Walker himself could face one next year. If Prosser falls, it will be a heavy blow to Republicans, especially for the backbenchers who stood with Walker, many of whom had hoped to emerge from the fiery budget debate with their careers intact. State lawmakers will also soon redraw legislative districts based upon updated Census data. Republicans control both chambers and the governor’s office, making liberal challenges to reapportionment decisions all the more likely.
“This is for all the marbles,” says Charlie Sykes, a prominent conservative talk-radio host in Milwaukee. “Scott Walker could survive losing the state senate. But it would be devastating if he were to lose in the supreme court. If Prosser loses, almost everything that Walker enacted could be overturned.” The high court, he worries, has a long history of activism, especially when liberals hold the majority.
Prosser, a gruff 68-year-old who has sat on the bench since 1998, has been blindsided by the national spotlight. In February, he coasted in a nonpartisan, multicandidate primary with 55 percent of the vote, more than double that of Kloppenburg, who finished second. Prosser saw a relatively smooth path to victory, especially against a little-known, left-leaning lawyer in a sleepy, springtime skirmish. Besides, Walker, in his second month at the reins, was popular with voters, as were conservatives, who swept the state’s November elections.
Then Madison erupted. Within hours of the primary, Walker began to unveil his budget agenda. The governor and statehouse Republicans went to the mats against the public-sector unions on collective bargaining, not yielding in their stand against unchecked labor power. Democrats, depressed after their poor 2010 showing, suddenly began to show alarming signs of life. Swarms of protesters, huddled like carolers, screamed outside of Walker’s office deep into the night; dreadlocked undergraduates gleefully papered the capitol’s marble halls with anti-Walker messages scrawled onto cardboard posters.
Amidst the melee, the supreme-court race drew scant notice during the first week of rallies, with only a few signs, mostly toted by graybeard professors, urging the throngs to “Vote Kloppenburg.” After the bill was signed by Walker, however, union brass and local Democrat friendlies, bitter and seeking a cause du jour, immediately jumped into the fray.
The buzz did not end at the Dane County border. Voices from the liberal blogosphere, at Firedoglake and the Daily Kos, sat up and started to alert their audiences. Their brethren in Wisconsin began to organize on the ground. Prosser, a tad surprised at the sudden interest, dug in and prepared for the onslaught. “At this point, I do not think that we have the choice as to whether our race is nationalized,” says Brian Nemoir, Prosser’s campaign manager.
Yet Prosser’s ability to respond to the rising interest has been hamstrung. He, along with Kloppenburg, is the recipient of public funds — $300,000 for the general election, to be exact — and both have pledged not to spend a dime more. “Looking back, that was one decision they should not have done,” says one state GOP strategist. “Their ability to respond to charges, and build up a stronger internal organization, has been severely limited.”
But it is a different story for special-interest groups. The Greater Wisconsin Committee, a leftist organizing group with deep union ties, has funneled $3 million into anti-Prosser advertising, taking relentlessly to the airwaves. “They are the Left’s biggest political player in the state,” says Brett Healy, the president of the MacIver Institute, a Wisconsin-based think tank. “They run the ads that no one else wants to run.”
Indeed. The GWC is airing ads that tie Prosser to the budget bill. “Prosser equals Walker” is the usual theme. But those political attacks are fluff compared with the group’s latest smear, a dimly-lit, creepy spot that casts Prosser as soft on pedophilia. That ad alleges that Prosser, as a local district attorney three decades ago, failed to properly prosecute a Catholic priest accused of molesting several boys. Prosser, according to those who know him, is said to be furious about the ad, angry with its inaccuracies and how it sullies his name.
At a debate late last week, Prosser, his displeasure barely concealed, urged Kloppenburg to ask the GWC to pull the ad. “It is the worst ad that has ever been run in a judicial campaign,” he asserted. Kloppenburg would not budge. “Like it or not, third parties have a right to run ads of their choosing,” she replied.
Prosser fired back: “If some third party ran an ad supporting me and attacking you, and it was despicable, and it was a lie, I would stand up and ask that the ad be pulled,” he argued. “You are not willing to do that, even at the request of the victim in the ad?”
Prosser noted that Troy Merryfield, one of the abuse victims, has spoken out against the clip, and in support of Prosser’s decision to not prosecute at the time.
“I do not appreciate myself or my case being used for political advantage, especially in today’s climate of dirty politics,” Merryfield wrote in a recent statement. “In 1979, as a prosecutor, Prosser made a decision to not file charges against [Rev. John] Feeney due to his concern about the emotional toll that a jury trial would have on my brother and me due to our young age at the time.” Prosser, he added, had his full support.
Regardless, the hit left a mark. Two sources with knowledge of internal GOP polling tell us that Prosser and Kloppenburg are near even, a bad sign for the incumbent. “She has driven his negatives up,” one source says. “It will be hard to drive hers up. Her lack of judicial experience should hurt her, but it also makes her harder to pin down. The question now is: Does the Right have enough resources to counter the Greater Wisconsin Committee’s millions? And even if they do, is it too late? It is going to be touch-and-go for these last few days.”
Brian Nemoir, Prosser’s top aide, reiterates that the campaign will highlight Kloppenburg’s judicial inexperience. Keeping the focus on that, and off Walker, is a must. Her environmental-law record and her associations with leading liberal lights such as Chief Justice Shirley Abrahamson, Prosser’s main ideological foe on the court, who once hired Kloppenburg as an intern, will be detailed in campaign material.
Prosser will also make Kloppenburg’s not-so-subtle ties to the anti-Walker movement a constant refrain. This tack, Nemoir says, is crucial in pointing out how Kloppenburg’s campaign is being used by liberal interests to manipulate Wisconsin law.
Nemoir points to a recent meeting with the Capital Times, where Kloppenburg ruminated on the state of Wisconsin politics, as a trouble spot for state attorney. “The events of the last few weeks have put into sharp relief how important the Supreme Court is as a check on overreach in the other branches of government,” Kloppenburg said in conversation with editors.
“Overreaching?” Nemoir exclaims. That statement, he argues, is a “wink and nod” to the assembling anti-Walker forces aligning behind her campaign. “You would have to be a complete idiot to think that she is referencing anything else. It is a nod to those who are supporting her.”
Perhaps, but for both candidates, avoiding a dip into the budget-bill swamp is getting tricky. Neither wants to risk recusal. Prosser is also being forced to address the roiling political scene, albeit indirectly. At the Friday debate, he was asked to comment on how courts should address cases dealing with legislative procedure (hint, hint). “You have to look with clear eyes whether some procedure was violated, whether there is a real emergency, what was done,” he said. “I pledge, as I have for the last twelve and a half years, that as a justice, that I will look at these things impartially.”
Prosser’s independent cred increasingly is the backbone of his message, especially as portions of the electorate sour on Walker’s bill and the GOP in general. To bolster his cause, he has enlisted strong bipartisan backing from the political establishment. Two former Badger State governors, Tommy Thompson, a Republican, and Patrick Lucey, a Democrat, serve as his campaign chairmen. Four former Supreme Court justices are in his camp, as are a bevy of district attorneys, sheriffs, and lawmakers.
Prosser’s kitchen cabinet has been an asset, says Sheriff David Clarke, Milwaukee’s top law-enforcement official and self-described “Kennedy Democrat.” He says that Prosser may find support from more Democrats — and cops — than most liberal politicos realize. “I have been in law enforcement for 33 years in this county,” he says. “I don’t like activist judges who tend to legislate from the bench.”
Kloppenburg, he sighs, “has tipped her hand that she will be an activist judge by her associations and some of her coded language in the debates.” He wants none of that.
Nevertheless, despite cross-party support, Prosser’s reputation has a few nicks. He is known, friends say, for both his sharp mind and his quick temper. In any other year, Prosser’s prickly nature would be shrugged off, but Kloppenburg’s allies are doing everything they can to make an issue out of Prosser’s past outbursts. Last week, leaked e-mails of Prosser’s calling Chief Justice Abrahamson an expletive and threatening to “destroy” her were published. Prosser attributed the harsh words to heated internal court communications and apologized. He added, in interviews, that though he was wrong to have used salty language, he was participating in the give-and-take of a court known for its activism and dysfunction.
State GOP operatives say they are confident that Prosser can overcome any slams against his character. As a former assembly speaker and justice for more than a decade, he will be able to dodge the small punches. “He had so much support before this all started,” chimes Rep. Michelle Litjens, a Republican in the state assembly. “He is seen as a very fair, levelheaded, and balanced individual. People supported him before, and I know they will stick with him.”
Republicans are taking nothing for granted. Mark Jefferson, the executive director of the state GOP, acknowledges that the race has become high-stakes drama. Party leaders, he tells me, will be reaching out to voters via social-media tools, such as Facebook and Twitter, to campaign for Prosser, since they cannot give directly to his campaign per campaign-finance rules.
With the state Republican apparatus mostly sitting on its hands and wallets, the Wisconsin Club for Growth is planning to step in with more than $300,000 to boost Prosser. They did the same for him during the primary, playing a major role in generating early momentum. Wisconsin Manufacturers & Commerce (WMC), a chamber of commerce–type group, will also be instrumental in helping Prosser compete financially with the GWC and its progressive offshoots.
James Buchen, vice president of WMC, says that his organization is prepared to spend millions to lift Prosser’s campaign. “We can’t quite match the $3 million from [the GWC], but we will come very close,” he says. “There is quite of bit of energy on the right — the silent majority, if you will. So this could go either way.”
As the campaign hurtles toward the finish line, “turnout could carry the day,” observes Gary Marx, the executive director of the Judicial Crisis Network. “The Left is making this a blood feud; they are making this about vengeance.”
Any enthusiasm gap, he says, will only be widened, since the April ballot is sparse. “This resembles a special election; it stands alone. Republicans will need to remember the basic blocking and tackling of grassroots politics — mail, phone, and radio.”
According to state-election figures, nonpartisan spring elections usually draw less than 20 percent of the electorate: 18 percent in 2009, 19 percent in 2008, 19 percent in 2007, and 12 percent in 2006. To win, GOP officials say Prosser will need to draw strong numbers from emerging conservative pockets in Waukesha, Washington, Ozaukee, and Racine counties. If voters from these areas don’t show, but liberals pile into voting booths in Dane County and Madison proper, Kloppenburg could cruise to victory.
“Look, this race is not a referendum on the governor or a specific piece of legislation,” Brian Nemoir says. “It has a much broader scope. supreme-court judges are elected to ten-year terms on purpose. Their elections are not intended to be snapshot responses to the current political environment.”
For Team Prosser, and nervous conservatives, that is the hope.
Robert Costa is a political reporter for National Review.
