Thursday, December 16, 2010

Prosser's Pitch

Justice is supposed to be colorblind. But Wisconsin Supreme Court Justice David Prosser clearly can see red. His recent announcement of the hiring of a Republican operative to run his campaign for reelection caused a bit of a stir because Prosser sure made it sound like he sees Scott Walker and the Fitzgerald brothers as teammates.

Maybe it was just clumsy wording and should be taken with a grain of salt. What's clear is that the spell checker was turned off, because Prosser obviously meant to say he would complement the governor-elect and legislative Republicans, not compliment them.

Of greater concern is what we've been hearing for several weeks now about what Prosser is saying as he makes the rounds looking for support for his reelection bid. A prominent outstate attorney provided the Democracy Campaign on condition of anonymity an account of one such pitch Prosser made earlier this month.

Here is that account:

I am writing to you anonymously to inform you of comments that were made by Justice Prosser in his stump speech to Wisconsin Association for Justice at its board meeting on December 2, 2010. In his comments, Justice Prosser indicated that he wished the trial lawyers to know that if the race led to him being attacked from the "left," that he would move to the right and the trial lawyers would suffer for it. He stated that it would be in the best interest of the trial lawyers if he stayed in the middle. In fact, he said "don't force me to run a campaign that is not down the middle and honorable." When asked to explain that, he indicated that if the left demonizes him, it will push him to the right. He said he would do whatever was necessary and would side with those who were supporting him so he would not be retired as a Justice.

It was evident to those in the room that he was issuing a threat that if he was not supported by the trial lawyers, then they could expect that the decisions he renders will be against the interests that the trial lawyers espouse on behalf of injured consumers. It appears clear by his comments that he would prejudge any issue that came against him from someone who did not support him in the campaign.

It should be noted that Justice Prosser's comments to the Wisconsin Association
for Justice had been made privately to other individuals who reported that he was contacting them for support. In his contact, he would indicate that if he was not supported by those on what he considers the "left," he would move to the right in his decision making if he were to be re-elected. He further indicated that he wished he didn't have to do that but would do so if necessary so that he would be re-elected. These comments are not in keeping with the judicial code of ethics. These are clearly questionable campaign tactics for someone who seeks to sit on the Wisconsin Supreme Court.


A Concerned Attorney

The political class will no doubt see the alleged conduct as benign and the lawyer's reaction to it overwrought. Some might even question why anyone in the legal community would be surprised or taken aback. After all, Prosser is a former Assembly speaker who agreed to serve as a character witness for Scott Jensen and was prepared to testify that he did the same things Jensen was criminally charged for. And as a Supreme Court justice he voted for new judicial ethics rules written by Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association allowing judges to rule on cases involving their biggest campaign supporters.

Still, for anyone who believes justice and the law should be colorblind, a fact remains. David Prosser sees red.


Tom McCann said...

I love whistle blowers. Wikileaks is being attacked by governments and the media, but sunshine is a nice detergent when the government has something to hide. In a democracy it is good to kno when we are being lied to and when our elected officials are selling out to the highest bidder.

Anonymous said...

"These comments are not in keeping with the judicial code of ethics." Who enforces it? Only the U.S. Supreme Court? If so, forget about it, given the current composition of the Court.

Tom Worley

Mike McCabe said...

The ultimate enforcement authority for the state judicial ethics code is the Wisconsin Supreme Court. The state Judicial Commission plays a role in investigating and prosecuting violations, but in the end the buck stops with the state Supreme Court.

Anonymous said...

I was present at the meeting that December 2nd meeting, and I think that the "concerned attorney" misinterpreted Justice Prosser's comments. Keep in mind that Justice Prosser had to get up and speak after an opponent got up and made incredibly disrespectful and accusatory comments. What I heard Justice Prosser say is that he doesn't want to "run from the right". He wants support from both sides of the aisle. He never said or intimated that his decisions on the bench would in any way be influenced by the source of his contributions. He was trying, as all candidates do, to seek support from all sides. People may support or oppose his judicial philosophies, which is fine, but I think it would be wrong to claim that what he said was unethical.

Anonymous said...

Sorry about the typo in that last post. Please delete "the meeting" in the first sentence.

Anonymous said...

This state's judiciary needs a lot of work.