Defeating Governor Walker, ‘By Any Means Necessary’

by Rick Esenberg

Jean-Paul Sartre called for the eradication of class “by any means necessary” and Malcolm X brought it into the lexicon of the American Left. We in Wisconsin have seen it on placards and banners around our state capitol. We are now learning just what it means. In addition to fugitive legislators, intimidation, and boycotts, “any means necessary” apparently includes an unapologetic politicization of the race for a seat on the Wisconsin Supreme Court, which currently has a narrow (4–3) conservative majority.

As opponents of Governor Walker’s collective-bargaining reforms move into the courts, an organized campaign seeks to persuade the public that a vote for incumbent Justice David Prosser is a vote for Walker. A recent letter to members of a local teachers’ union claims that a vote for Prosser’s opponent will “swing the balance to our side.” It is time, the letter says, “to get even.” A television ad flashes images of the siege at our capitol and headlines regarding claims that the new collective bargaining law is “illegal,” while calling for an “impartial” judiciary.

Justice Prosser is a former Republican legislator who has served on the court for 13 years. He is best described as moderately conservative. A recent analysis by the Wisconsin Law Journal showed that he is the least predictable of the four justices generally seen to comprise the court’s conservative majority. He received overwhelming public support in his election to his current term. Although late last year, an aide suggested that he would serve as a complement to the newly elected Republican legislature and governor, Prosser has disavowed the remark and his record of 13 years establishes his independence.

The attacks on Prosser go beyond ideology. Litigation has been brought challenging the new law and a lower court judge has temporarily halted publication of the law. That case is on its way to the state supreme court. Others may follow. “By any means necessary” has come to mean turning a supreme-court election into a referendum on a particular case.

This is, of course, a fool’s game. I follow the jurisprudence of the Wisconsin Supreme Court for a living. I have no idea how Justice Prosser will vote on challenges to the collective-bargaining law which turn, not on a judgment about the law itself, but about the way in which it was passed. While I don’t think that the legal arguments of the challengers are particularly strong, I can think of reasons why they may actually appeal to a judicial conservative. Such a judge may be inclined to strictly construe procedural limitations on legislation involving tax dollars.

But the larger problem is the scandal of making a judge’s election or defeat turn on the way he or she decides — or might decide — a particular case. In last term’s Caperton decision, the Supreme Court held that a judge whose campaign had benefitted from millions of dollars spent by the president of a company with a significant pending case may not sit on that case. In Wisconsin, we are about to see Caperton raised to a new level.

Not only are public-employee unions attempting to choose their court, they are doing so by making an electoral issue of the very matter that the court will be asked to decide. There are reasons that we don’t hold votes on pending court cases. They are rooted in due process and the rule of law. But in a world that chooses “any means necessary,” these are mere inconveniences. It is time, after all, to “get even.”

— Rick Esenberg is visiting assistant professor at Marquette University Law School and president of the Wisconsin Institute for Law & Liberty.