Politics & Policy

Scott Walker and the State Supreme Court

The Wisconsin governor braces for the results of today's vote.

Madison, Wis. — One month ago, Gov. Scott Walker’s office was surrounded by yelping protesters. Some huddled outside on the snow-covered sidewalks; others twirled under the capitol’s white-granite rotunda, singing labor ditties deep into the night.

These days, there is a refreshing quiet in Walker’s first-floor workspace, with only the click-clack of keyboards and the murmur of telephone conversations heard above the hush. But as he leaned back in his chair on Monday evening, street lamps glowing through the window, Walker noted that the détente in the capitol belies the heated political debate still simmering in the Badger State.

The governor’s budget-repair bill, passed last month while 14 Democratic state senators hid in Illinois, is being challenged in the courts. At first, a circuit-court judge raised questions about how it was passed, and put a hold on implementation. The Walker administration promptly appealed that ruling. The appellate panel threw up its hands, kicking the bill last month to the state’s supreme court.

With Walker’s bill at the high court’s door, all eyes are on the seven-member bench. The court currently has a 4–3 conservative majority, but that edge could flip today, when Justice David Prosser, a respected former GOP legislator, faces JoAnne Kloppenburg, an environmental lawyer, at the polls.

The governor, ever calm, shrugs off the proxy battle. He sees today’s contest as one of many hurdles ahead for both his bill and his administration.

“It’s pretty clear that [the Left’s] focus is on Prosser,” he says. “The immediacy of the reaction to the [budget fight] is one of his challenges. Yet being upset about a vote is not a reason to put someone on the supreme court.”

Liberals disagree. And Kloppenburg, sensing an opening, has waged an intense campaign in recent weeks, tying Prosser to Walker in every stump speech. Her tack has largely paid off: GOP sources tell me that she has soared in internal polling. Indeed, after finishing a distant second in February’s nonpartisan primary, she now finds herself the latest cause célèbre for Wisconsin progressives, who would like nothing better than to knock Walker by tilting the upper court to the left.

At a Madison rally on Sunday, Kloppenburg was cheered on by hundreds of activists decked in anti-Walker paraphernalia. American courts, she said, should “act as an independent check and balance on the executive and legislative branches.” The crowd roared. “We can make history together,” she added. “This is, truly, an incredible grassroots effort. And we are not quite done.”

Walker has not been impressed with Kloppenburg’s campaign. Her refusal to disavow a third-party ad that claims Prosser enabled a pedophile priest, he says, is troubling. “The people who were victimized decades ago have been so horrified by the Greater Wisconsin Committee’s ad that they literally have gone on television. I can’t even fathom what they’re going through,” he says. “It shows you how out of whack the [GWC] is.”

Still, with April judicial elections usually sleepy affairs, the question is not about mudslinging, but whether conservative voters will head to the polls with the same fervor as the Madison rabble-rousers.

“Two weeks ago, I was extremely worried about Prosser,” Walker says. “A little bit less so now. But I know that it all comes back to turnout.” Kloppenburg supporters, he acknowledges, “clearly have a real big motivator: anger.”

That said, Walker is confident that he still has a strong, if quiet, base of support throughout the state. Last November, Walker topped Democrat Tom Barrett with 52 percent of the vote. Those backers, he believes, have not suddenly abandoned his camp.

For Walker, patience is a virtue. “I told the lawmakers that voted for the [budget bill] to give it three, four, or five months,” Walker explains.

Renewed support, he hints, might be even closer than that. “I had lunch with a number of lawmakers [on Monday], and they are telling me that in the last three weeks, they have seen a marked change,” he says. “They say fewer people are protesting and the average citizen who maybe was worked up about it has moved on. Their life did not come to an end. Things didn’t fall apart.”

“I think the more time goes by, the more it sinks in, people will realize that something had to happen, and that it is more about spending,” he says.

Looking ahead, regardless of whether Prosser falls, Walker pledges to fight on. He chuckles that Wednesday headline writers will likely have a field day, most dubbing the race a referendum on his leadership.

Unsurprisingly, Walker does not see it that way, and is managing expectations within his inner circle.

“For the people who are angry, it is a referendum in their mind. But the average voter doesn’t view it as that,” he says. “The challenge is, spring elections have notoriously low voter turnout, so you could have a very, very small sliver of Wisconsin voters electing the next supreme-court justice. In that small sliver, you could have an area dominated by angry voters.”

As he prepares to watch tonight’s returns, Walker says that he is ready for whatever happens next. Should Kloppenburg end up in a black robe by summer, and the budget-repair bill is overturned, Walker pledges to re-pass the legislation.

As he leans forward at his desk, Walker makes a final promise: If an activist, partisan court tangles with the people’s business, he will punch back.

“If you believe in the separation of powers, the courts should be about calling balls and strikes, as Justice Roberts once said,” he says. “They shouldn’t be about putting the rulebook together. That is what the governor and the legislature do.”

“In the worst-case scenario, if you had something like that, you’d have to come back and pass it in a different way,” he adds. “In the end, the bigger question, if it ultimately got to the court, is whether the justices will draw it out and hope the legislature will act.”

Walker, for the moment, won’t show more of his cards, though he asserts that his bill will survive whatever the Left throws at it, from supreme-court politicking to state-senate recalls.

The former Milwaukee County executive simply looks southeast to explain why he thinks he’ll end up winning this nonstop, bruising budget battle. Indiana governor Mitch Daniels, he says, has shown him the way.

“This is a state that has the guts to do what it takes,” he tells me. “People forget that Mitch Daniels did in 2005 pretty much what we are doing right now. His approval ratings were considerably lower than mine. But by the time he was up for reelection, he won with 58 percent of the vote and today both of his state’s chambers are Republican. That’s worth remembering.”

Robert Costa is a political reporter for National Review.

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