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Wisconsin Fight Goes to Court
And Walker’s big win could ride on a single judicial election.


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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.

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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.”



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