Bench Memos

Defeating Governor Walker, ‘By Any Means Necessary’

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.

Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law & Liberty. The views expressed here are his own.

Most Popular

Elections

Trouble in the Workers’ Paradise

Representative Alexandria Ocasio-Cortez is precisely the sort of campaign surrogate you want, especially if you are Bernie Sanders: She is young, energetic, charismatic, popular (with the people she needs to be popular with, anyway), and, happily, currently ineligible to run for the presidency ... Read More
Elections

Trouble in the Workers’ Paradise

Representative Alexandria Ocasio-Cortez is precisely the sort of campaign surrogate you want, especially if you are Bernie Sanders: She is young, energetic, charismatic, popular (with the people she needs to be popular with, anyway), and, happily, currently ineligible to run for the presidency ... Read More
Law & the Courts

Bill Barr Derangement Syndrome

Can the republic survive Attorney General William Barr? That’s the question that has seized the media and center-left, which have worked themselves into a full-blown panic over an attorney general who is, inarguably, a serious legal figure and one of the adults in the room late in President Trump’s first ... Read More
Law & the Courts

Bill Barr Derangement Syndrome

Can the republic survive Attorney General William Barr? That’s the question that has seized the media and center-left, which have worked themselves into a full-blown panic over an attorney general who is, inarguably, a serious legal figure and one of the adults in the room late in President Trump’s first ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More
Elections

RIP Bloomberg 2020

I thought that Bloomberg’s confused half-defense of stop-and-frisk was going to be his low point. Well. His torturous response on his lawsuits and NDAs was truly awful -- beyond incompetent. I wouldn’t be surprised if this were the end of Bloomberg 2020. Read More
Elections

RIP Bloomberg 2020

I thought that Bloomberg’s confused half-defense of stop-and-frisk was going to be his low point. Well. His torturous response on his lawsuits and NDAs was truly awful -- beyond incompetent. I wouldn’t be surprised if this were the end of Bloomberg 2020. Read More