Appleton, Wis. — When the waitress arrives, pad in hand, David Prosser orders a “Wisconsin Club,” a heaping pile of turkey breast, lettuce, and sliced tomato. A few minutes later, she brings it out, and he takes one small bite before leaving it cold for the rest of the hour. The doggy bag is a usual occurrence for the state supreme-court justice: once Prosser starts talking, he doesn’t stop. He speaks in whispers, and you have to lean in to hear, but his obvious passion for the law and politics makes you gladly inch your chair closer, to catch all the riffs.
Prosser, 68 years-old, is an unassuming fellow: Strands of swiftly brushed gray hair stray atop Reagan-era spectacles, the thin-rimmed type with a metal top bar between the frames. In every sense, and to his delight, he easily blends in with the crowd at this hotel restaurant, just another Midwestern lawyer in a dark suit. Although he once served as a high-power legislator, court life has been a perfect fit. His younger brother, Hugh, puts it this way: “David was never a rah-rah politician. He doesn’t like to bring attention to himself.”
That’s about right. When he greets voters on the trail, Prosser, who faces a tough reelection fight tonight against JoAnne Kloppenburg, an environmental lawyer, ducks his shoulders and grins sheepishly, almost uneasy about barging into people’s personal space to make his case. But he does it anyway, against the advice of his better angels. And the approach is surprisingly effective: Most people find interactions with politicians quite awkward. When the pol himself is awkward, in a geeky-grandpa way, the exchange gains levity, and there is no collapsing into the usual quip-handshake dance.
Prosser relishes the role of elder wonk. Skills aside, however, his reentry into heated electoral politics, after a 12-year absence, has hardly been a joyride. This once-sleepy campaign for a seat on the seven-member bench became a proxy battle for progressives, who hope to topple Gov. Scott Walker’s budget-repair bill by flipping the court’s 4-3 conservative majority. If Prosser falls, the fate Walker’s bill could potentially be decided by four black-robed lefties, a foreboding future.
Knowing this, Kloppenburg rode the increased interest into contention while Prosser, for his part, mostly stuck to his original plan, which was to highlight his experience. But as the pressure grew in the final days, and political eyes once again turn toward the Badger State, Prosser did not hesitate to criticize his opponent for playing into the hand of activists who are itching to shake up the judiciary.
Prosser grins when he reflects on how, after decades in public life, he is now immersed in a race that has gone national, with voters nationwide curious about whether Walker’s bill faces legal life or death in coming months. He has taken the bumps of the high-stakes race in stride, from the third-party ads that denigrate his character, to the television spots portraying him as Walker’s shadowy tool. Though he does not like how things have played out, he takes quiet satisfaction in the fact that he has survived a brutal campaign, and pulled no punches.
In many ways, he was prepared for the unexpected onslaught. For two decades, Prosser served in the state legislature in Madison, after a brief period as a congressional staffer and a short stint as a district attorney in Outagamie County. In 1996, after watching Newt Gingrich lead the Republican revolution, he decided to jump from his influential slot in Madison to run for a U.S. House seat. After he lost that race — a personal and political disaster — he hit a wall. He was in his early 50s, and had already had a long political career at the state level, and stumbled in reaching federal office. What he would do next, he did not know.
“When I didn’t get elected to Congress, I was in a little state of depression,” he admits. “Nobody likes to be rejected. I mean, I was the speaker of the assembly. I thought I was far better qualified. The main issue they threw at me was that I supported building the new Brewers stadium.” He pauses, and scowls at the memory.
He soon enlisted for the state tax commission, going about low-profile drudgework. Then governor Tommy Thompson, a Republican, shocked Prosser with a job offer in 1998: he appointed him to the state’s high court, praising his intellect and conservative instincts.
For Prosser, the appointment was a new lease on life. “My outlook was, ‘my God, I have been given a second chance,’” he says. “How many people lose a congressional race and the result, in a relatively short period, is that you find yourself on the supreme court?”
Once Prosser arrived to his chambers, memories from his experience as a district attorney flooded back.#more# “When I was a district attorney, it was a new experience for me,” he recalls. “I didn’t fully appreciate how people everywhere interacted with each other. In other words, I was kind of shocked by domestic abuse. I had never been to a death scene, whether it was an automobile accident or someone was murdered in a sandwich shop out in the north end of town. Life was rough: It was almost hard to anticipate all of the fact patterns, all of the really destructive human relations in society.”
The brutal nature of cases was a blast of cold water for a pol somewhat softened by the ways of Madison. “I felt incredibly blessed that I was given this opportunity,” he says. “I wanted to prove that I could be a scholar, that I could be respected as a judge, not as a partisan.”
Over the last decade — he ran unopposed in 2001 — Prosser has appreciated the opportunity to serve, but part of his reason for wanting to run again, he says, is because he wants to keep the court from becoming an all-powerful entity in state government. He enjoys the law, to be sure, but the thought of Chief Justice Shirley Abrahamson running things, pushing the court’s power to the limit, disturbs him.
“More and more, I think the court has tried to grab power, and increase the power of the chief justice, in so many different areas,” he says. “I get very, very concerned about that.”
Prosser is also unwilling to retire simply because he feels bullied by Abrahamson, with whom he has had numerous public and private disagreements. “If the chief justice were a little less abusive, I would have no problem getting along with her. I don’t want her job. I really do not want that job. I don’t want to control anything. I’m not an activist in rulemaking or internal procedure. But when things are done, when she beefs up her staff with public money, grabbing stuff here and there, that’s not the way a court should be run.”
“Voters tend to favor at least moderately conservative judges,” he continues. “They want people who are judges, who have a demonstrated capacity to be impartial — judges who are not so full of themselves. That’s my record: I’m a little unpredictable, and I don’t mind that at all.”
As he prepares to watch returns, Prosser does not shy away from calling it like he sees it. “Some people want to send a message — ‘Prosser equals Walker’ or ‘stop the bill.’ But I think the message to the country, if [Kloppenburg] is elected, will be: Wisconsin has gone insane,” he sighs. “Wisconsin would be putting a Green Party environmentalist on the supreme court over a relative political moderate at the same time the governor is trying to attract new business to the state. Are they crazy? Are they absolutely crazy?”
Tonight we shall see.