By Todd Richmond
MADISON, Wis. (AP) — Everything was going according to plan for state Supreme Court Justice David Prosser.
He emerged from a four-way primary in February as the top vote-getter by far. His surviving challenger, little-known Assistant Attorney General JoAnne Kloppenburg, got just 28 percent of the vote compared to Prosser’s 55 percent.
That same night, protesters surged into the state Capitol to rally against Republican Gov. Scott Walker’s plan to strip most public workers of nearly all their collective bargaining rights. One of the nastiest and prolonged political fights Wisconsin has ever seen followed as protesters camped out in the Capitol and tens of thousands descended on Madison to rally against the bill.
Walker eventually won, signing the bill into law earlier this month. But his victory could cost Prosser his job when voters go to the polls April 5.
Democrats looking to strike back at Republicans at the ballot box have set their sights squarely on the conservative-leaning Prosser. In a span of weeks they’ve energized Kloppenburg’s campaign by equating Prosser to Walker and raising questions about his demeanor, trying to bring anger at the governor to bear on the 12-year incumbent justice.
Sitting justices rarely lose re-election, although Michael Gableman defeated incumbent Justice Louis Butler in a rare upset in 2008.
A Kloppenburg win over Prosser would tilt the court’s ideological balance to the left and set the stage for overturning the law. A legal challenge from Democrats is already before the court, although the justices haven’t decided whether to address it.
A Prosser loss also would send a message to the governor and Republican legislators that they’re all vulnerable as recall efforts against them build.
“I’ve never seen anything like it,” said Mordecai Lee, a University of Wisconsin-Milwaukee political scientist. “A month ago this was a sleepy race. … Now it’s a symbolic referendum on Walker’s collective bargaining bill and an attempt to influence potential court decisions about it.”
The seven-member court is officially nonpartisan. But Prosser still is seen as part of a conservative four-justice majority that bickers constantly with liberal-leaning Chief Justice Shirley Abrahamson and her close ally, Justice Ann Walsh Bradley. Prosser’s campaign manager issued a statement in December saying Prosser would serve as a complement to Walker and conservatives.
Kloppenburg has tried repeatedly to paint Prosser as a partisan judge, but she hasn’t engaged him directly on the collective bargaining law. She has said that would be inappropriate because she could end up ruling on legal challenges to it if she wins a spot on the court.
But she doesn’t have to attack him directly. Her Facebook page is loaded with comments from people trying to mobilize get-out-the-vote efforts for her and criticizing Walker and Republicans. Protesters at rallies against the law tote Kloppenburg signs and say a vote for her is the next step in the battle against the measure. The liberal-leaning group Greater Wisconsin Committee launched a television ad last week that blasts Prosser as a Walker clone and the Wisconsin AFL-CIO has endorsed Kloppenburg.
“I can’t speak for them,” Kloppenburg said. “(Their support) just highlights for people the role of the court. They now are a whole lot more familiar with the role of the court as a co-equal branch (of government) and that partisanship doesn’t belong there.”
Prosser, a former Republican legislator who worked alongside Walker in the state Assembly in the 1990s, has acknowledged he is a political conservative, but has tried to distance himself from it.
He has said he never approved his campaign manager’s statements and most people see him as an unpredictable moderate. He said in an interview he has tried to sever his ties to the Republican Party and has become an unpredictable moderate.
“There’s really a sort of comprehensive effort to take the focus off the real issues here, which is the experience of the candidates, the judicial philosophy of the candidates, and put it on absurd things like Prosser equals Walker or stop this or stop that piece of legislation by electing JoAnne Kloppenburg,” Prosser said.
Still, Prosser has engaged in that very strategy. He contends Kloppenburg has aligned herself so closely with the collective bargaining law’s opponents that she shouldn’t rule on those statutes as a justice.
“This is a direct assault on judicial independence,” Prosser said.
Playing out alongside the collective bargaining debate are questions about Prosser’s temper and history as a prosecutor.
Emails emerged last week that revealed Prosser called Abrahamson a “bitch” last year and promised to “destroy” the chief justice.
Kloppenburg said the emails raise questions about whether Prosser might base legal decisions on personal vendettas against other justices rather than on the law.
Prosser said he regrets the remarks. But he contends the court’s liberals provoked him during a discussion on whether Gableman should recuse himself from a number of criminal cases. They released the emails to embarrass him before the election, he said, but added the acrimony will cease after he’s re-elected and the liberals have no more reason to hurt him.
“I’m very passionate about the issues that I believe in,” Prosser said. “The chief justice is very passionate and the chief justice would like to take the court in a different direction than I would take and other members of the court would take.”
The Greater Wisconsin Committee, meanwhile, has launched an ad accusing Prosser of protecting sex offenders. The ad points to a decision Prosser made as Outagamie County district attorney in the late 1970s not to prosecute a priest accused of molesting two boys. The priest was later convicted in 2004.
Prosser called the ad “despicable.” He said the case came down to the boys’ credibility and he didn’t think he could win a conviction. He also didn’t have all of the facts at the time, he said.
But the collective bargaining battle has overshadowed all of that, UW-Milwaukee’s Lee said.
“(The voters have) got only one issue they care about,” he said.
The election is April 5.