The Supreme (Steel-Cage) Court

I have tried to avoid commenting on whatever happened between two members of the state Supreme Court June 13 until I could get an original take beyond:

  1. Justice Prosser should resign.
  2. Justice Bradley should resign.
  3. Chief Justice Abrahamson should resign.
  4. All of the above.

Before I begin: Proving that either it’s a small world or I’ve been around a long time, I have met most of the principals in this rasslin’ match. I have heard Shirley Abrahamson talk about what the Supreme Court does on a couple occasions, and although I don’t particularly care for her politics, I found her very personable, and she deserves credit for trying to show taxpayers what the Supreme Court does. (I also took a UW genetics class taught by her husband. For six weeks, until I concluded either I needed to drop the class, or I would fail the class.) I was at David Prosser’s victory party when he lost to Democrat Jay Johnson in the 1996 Eighth Congressional District election. (Victory parties by losing candidates are not much fun.) I have jousted with Bill Lueders, who broke the story Saturday, on Wisconsin Public Radio. I haven’t met Ann Walsh Bradley, but I have met her husband, Mark, who heads one of the state’s biggest law firms (as Marketplace Magazine readers know).

First point: The lack of criminal charges having been filed immediately after the incident means whatever happened did not rise to the level of criminal activity (i.e. assault or misdemeanor or felony battery charges). Neither Prosser nor Bradley will get awards for good workplace conduct or self-control, but ordinary police or sheriff’s departments are able to recommend charges to district attorneys sooner than two weeks after incidents take place. (Which makes one wonder why we have a Capitol Police Department.)

That brings to mind a second question: Who cares if Justice A cannot get along with Justice B? Regular readers know that I dabble in and have a broader interest in sports broadcasting. Over time, I have read rumors about how some nationally known sports broadcasters have a reputation for being difficult to work with. (Examples can be read in Those Guys Have All the Fun: Inside the World of ESPN. Or follow the career arc of Keith Olbermann of CNN, ESPN, Fox, MSNBC and, for now, Current TV.) And every such rumor makes me yawn, because I can think of no media consumer who cares whether the two news anchors get along, or if the editor and reporter don’t speak to each other, or if the radio show host and news person swear at each other off-microphone, or whatever — they care about what they are watching or listening to or reading, not the personalities on the other side of the fourth wall. Put it this way: I didn’t vote for Justice Prosser April 5 because of whether he got along with his coworkers.

Speaking of the media: It is not uncommon for the initial story (Prosser’s chokehold on Bradley) to be at odds with subsequent versions (Bradley lunged at Prosser first) of that same story. The former summarizes the Wisconsin Center for Investigative Journalism’s first report, published online by the Milwaukee Journal Sentinel earlier Saturday; the second summarizes the story the Journal Sentinel’s own reporters did Saturday. Without the Internet, TV and radio (that is, those radio stations that actually have bodies in their newsrooms on weekends), the electronic media would have reported version one, and the newspapers would have reported version two Sunday.

Everyone must be a discerning media consumer, which is why it is important to point out that Lueders, who broke the story (or was given the story by Supreme Court sources), appears to have sources on only one side of the political spectrum willing to talk to him, based on his initial reporting. For its reputation as a liberal newspaper, the Journal Sentinel appears to have sources on both sides of the political spectrum willing to talk to them. Regardless of whether a reporter expresses his or her own opinions on the stories he or she covers, it is important to have enough credibility to be able to get information on all sides, not just the side that supports your own agenda.

To me, this is the state judicial recipe variation of the toxic cocktail that is politics at an increasing number of levels, and particularly in Wisconsin. (Even local, and if you don’t believe me, you should have been in Ripon around the last mayoral election. Or observe politics in Waukesha.) Background reporting about Prosser v. Bradley has demonstrated that the mid-June outburst was only the latest symptom of the festering feud between the liberal and conservative wings of the state Supreme Court.

Political observers have this gauzy idealism that the Supreme Court impartially judges the burning constitutional issues of the day. Not to call that view naïve, but if that was ever the case, it hasn’t been the case for decades. That is the fault of the judicial system as a whole, because over the past century or so the judicial system has increasingly legislated from the bench (for instance, Roe v. Wade, a bad decision regardless of how you feel about abortion rights) and taken on issues properly decided by the legislative branch. (However you feel about same-sex marriage, at least it was legalized by the legislative process in six states, not their courts.)

Everyone knows who are the conservatives (Prosser, Roggensack, Ziegler and Gableman), who are the liberals (Abrahamson and Bradley, who was marketed as a moderate when she was first named to the Supreme Court), and who is the turncoat (Crooks, who claimed to be a conservative when he lost to Bradley in 1995 and beat Court of Appeals Judge Ralph Adam Fine in 1996). And like everything else in politics, it is the result, only the result and nothing but the result that counts.

Regarding my multiple-choice question at the start of this blog: When a Supreme Court justice resigns before his or her term ends, the governor appoints a replacement (something to keep in mind for those espousing choice 1), but that replacement serves only until the next scheduled judicial election when no other justice is standing for election. If a justice were to resign today, the appointed replacement by Gov. Scott Walker would serve only until April 2012. And regarding choice 3, this irony: The Chief Justice in Wisconsin is the longest serving justice. Should Abrahamson resign, the next longest serving justice is … Bradley, elected in 1995. (Followed by Crooks; the three liberals are also the three longest serving justices.)

All of this is also another symptom of government’s increasing its tentacles into all aspects of our lives, which has increased the stakes in elections and the political process, which has increased political spending and nastiness of political campaigns and politics generally. Gov. Lee Sherman Dreyfus had two beliefs that seem contradictory today, but are not. On the one hand, he believed the federal government’s role was “defending our shores, delivering our mail and staying the hell out of our lives.” On the other hand, he also believed that “there are some questions the government has no business asking.” Unfortunately, neither side of the political aisle is following Dreyfus’ advice.

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