By Bill Lueders
Wisconsin Center for Investigative Journalism
News of a physical altercation between two state Supreme Court justices has, ironically, brought the people of Wisconsin together. Everyone, it seems, agrees there is something terribly wrong with our state Supreme Court.
“There are some real troubles that I think are very serious in terms of the relationship and conduct of the Supreme Court,” Gov. Scott Walker told Wisconsin Public Radio, which together with the Wisconsin Center for Investigative Journalism broke the story. “In a free society, there’s got to be confidence in the judiciary, and certainly the fact that there’s that kind of tension there I don’t think is healthy for anybody.”
Justice Ann Walsh Bradley says Justice David Prosser “put his hands around my neck in anger in a chokehold”; others have portrayed the contact as defensive, as Bradley rushed toward Prosser “with fists raised.” The Wisconsin Judicial Commission and Dane County Sheriff’s Office are investigating.
The incident, not surprisingly, has drawn national attention. And it isn’t the sort of attention the Department of Tourism will be using in its brochures.
“There have been appellate courts that have been notoriously fractious . . . but nothing like this,” Hofstra Law School professor James Sample told the Milwaukee Journal Sentinel. “Wisconsin’s court has gone from being this national model to (being) a national punch line.”
Some of those weighing in on this discord are identifying a culprit: The vast sums of money that get poured into state Supreme Court elections.
In the 2011 high court race between incumbent Prosser and challenger JoAnne Kloppenburg, the nonprofit watchdog group Wisconsin Democracy Campaign reported that about three dozen special interest groups poured an estimated $4.5 million into the race, 83 percent of the reported total of $5.4 million.
That mirrors the spending in the 2008 Supreme Court race, when Justice Louis Butler was ousted by challenger Judge Michael Gableman. In that race, outside special interests accounted for a record $4.8 million of nearly $6 million total.
“In (these two races), special interest groups did almost all of the talking,” says Mike McCabe, executive director of Wisconsin Democracy Campaign. And much of it was trash talking, as these groups — unaccountable to the public and beyond the control of the candidates themselves — focus on attacking opposing candidates.
“They get down in the gutter and that drags the entire race down into the gutter,” says McCabe, suggesting these groups bear some responsibility for the misleading ad Gableman ran in 2008, over which the Judicial Commission filed a complaint. (The Supreme Court deadlocked 3-3 on whether to impose discipline.) “The special interest groups take the low road and set the tenor for these races.”
This influx of heavy outside spending also makes the court more polarized, as interest groups tend to back candidates on the far ends of the political spectrum. As McCabe puts it, “They’re looking for people who will support a very rigid ideological agenda.”
The consequence is a court so polarized that its members are at each other’s throats — perhaps literally.
What can be done about it?
The Wisconsin State Journal, in an editorial, calls the Supreme Court fracas “yet another reason for sweeping reform of Wisconsin’s judicial selection process. Nasty judicial elections are hurting the quality of the court and driving much of its rancor.”
The paper supports a constitutional change to have Supreme Court nominees selected by panels based on merit, “rather than electing them in wildly expensive and chaotic elections that soil the reputations of even the winners while scaring away many experienced and esteemed judges.” This is how things are done in about half of the states. Walker told the paper the idea is “worth looking at.”
This is a controversial solution that takes control for picking justices away from the people. But other measures seem not to have worked.
In the last election, when both Prosser and Kloppenburg accepted newly available public financing and agreed to spending limits, the special interests rushed in to fill the gap. And the budget just passed by the Legislature and signed by Walker eliminated all public financing for state political campaigns, and raised the limit for individual contributions to Supreme Court candidates from $1,000 to $10,000.
Looks like the Wisconsin Supreme Court may resemble the Wild Wild West for some time to come.