Bruce Murphy
Murphy’s Law

Shirley Abrahamson Against the World

Chief Justice’s fight against a constitutional change to demote her is a minor issue. So why such a juicy battle involving so many conservatives?

By - Apr 16th, 2015 12:09 pm
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Shirley Abrahamson,

Shirley Abrahamson,

Shirley Abrahamson is not going gently into that good night. The chief justice of the Wisconsin Supreme Court, now 81, has been embattled with her colleagues on the court almost since she was first appointed in 1976. And her legal suit — trying to overturn a constitutional amendment that was approved on April 7 by voters — is just the latest example of her take-no-prisoners style.

For 126 years, the justice with the longest tenure has served as chief justice in Wisconsin and that has been Abrahamson since 1996. But Republican legislators twice passed a constitutional amendment that would let justices vote for their choice as chief justice. Given that the court has a conservative majority, the liberal Abrahamson would be displaced. Proponents of the measure have said it’s about displacing seniority with democracy, but declined to make it effective in 2019, when Abrahamson’s term ends, leaving no doubt this was a get-Shirley amendment. As did the haste of Republican lawmakers to get this provision passed. She got the message, and quickly filed suit in federal court, arguing the amendment should not be allowed to go into effect until 2019.

Abrahamson comes from an era when those few women who got ahead in business or law had to over-prove their merit, and she has been doing it ever since. She was the only woman on the supreme court for years, and in the late 1980s, a series by the Milwaukee Journal reported that the six male justices so disliked her they were conspiring to turn down cases she wanted to hear.

Meanwhile, Abrahamson ran rings around her colleagues with an incredible work ethic and brilliantly written opinions. She has long been considered one of the most gifted state supreme court justices in America. She was considered for the U.S. Supreme Court by the Clinton administration and has won many awards, including the first annual Dwight Opperman Award for Judicial Excellence by the American Judicature Society in 2004.

As one of her former law clerks told Milwaukee Magazine in a 1987 story, Abrahamson “will spar over issues and concepts till the cows come home.” And once she is convinced of something, he added, she won’t change her mind. “She’d go to the pillory first.”

Abrahamson’s combative style has alienated both liberal and conservative males on the court, but her women colleagues have generally liked her better. Justice Ann Walsh Bradley, a liberal, has been quite friendly with her, and former Justice Janine Geske, a moderate appointed to the court by Republican Gov. Tommy Thompson, says “I certainly got along with the chief.” Abrahamson reportedly also had a good relationship with conservative former Justice Diane Sykes.

But Abrahamson and Justice Pat Roggensack don’t get along, and the latter, who is very ambitious, pushed legislators to pass the constitutional amendment, as did her fellow conservative Justice Michael Gableman. And Roggensack’s former campaign manager, Brandon Scholz was also treasurer for a group that backed the constitutional amendment.

The impact of the change will not be great. The court has a 5-2 conservative majority on most issues and 4-3 on a few high-profile issues, and the majority has also successfully demanded operational changes which makes its decision-making less public. None of that will change.

Proponents of the proposal have argued it will make the court less dysfunctional, but that seems unlikely. Abrahamson will still be combative, Roggensack is no shrinking violet and Justice David Prosser has anger issues that the four most conservative judges have refused to face. Prosser had a famous altercation with Bradley, and while other justices disagree as to whether he tried to choke her, Prosser himself admitted he had his hands on her neck and could feel the warmth of her body. (What a description!) Justice Patrick Crooks, a moderate conservative, told investigators of the incident that Prosser “explodes and storms out of a room” several times a year and his blow-ups go back more than a decade. Crooks met with the court’s human resources director to convey his concern about Prosser’s behavior.

Yet, while the change in selecting the chief justice would likely have little impact, it is being fought over like a world war. Abrahamson’s suit argues that when she ran for reelection in 2009, her campaign committee was called the “Chief Justice Shirley Abrahamson Reelection Committee,” and her campaign advertising ended with the tagline, “Wisconsin’s Chief”… making it clear to voters this was a vote to continue her in the office of chief justice,” not just as a justice. The recently passed amendment, her suit notes, did not give any indication that the change in how to select the chief justice would be “retroactive,” neutralizing their vote making her chief justice for another ten-year term.

But Washington D.C. based attorney David B. Rivkin, Jr., who filed a motion to dismiss Abrahamson’s suit, notes there were many news stories about the amendment explaining it would displace her as chief justice, so voters should have known this. The entrance of Rivkin into this dispute is quite revealing. He has been the attorney hired by conservative Eric O’Keefe, whose Wisconsin Club for Growth was targeted by the stalled John Doe probe investigating alleged coordination between the election campaign of Gov. Scott Walker and independent advocacy groups like Club for Growth and Wisconsin Manufacturers and Commerce.

O’Keefe has argued that the John Doe investigation is an abusive infringement of his freedom of speech and has paid Rivkin to instigate a legal reign of terror, filing various lawsuits against Milwaukee County District Attorney John Chisholm, who launched the Doe probe, and the state Government Accountability Board, which was also involved for a time in the investigation. O’Keefe also sits on the board of and probably helps fund the Citizens for Self Governance, which paid Rivkin to represent the Milwaukee based group, Citizens for Responsible Government, in a suit that claimed Chisholm and company engaged in “domestic spying.”

Now the CRG, a longtime ally of Walker, is being represented by Rivkin in his filing contesting Abrahamson’s suit, and asking to intervene in the case so they can make arguments against it. Rivkin is once again being paid by the Citizens for Self Governance, according to Chris Kliesmet of CRG.

But U.S. District Judge James Peterson, who is handling the Abrahamson suit, refused to let CRG participate in the case. He found that Attorney General Brad Schimel, who is representing the state, would adequately represent the opposition to Abrahamson’s suit.

The rapid entrance of O’Keefe’s lawyer Rivkin into this dispute may tell us a lot. I have been told there are Republicans who have theorized that Abrahamson is behind the John Doe probe, which might be the ultimate in weird conspiracy theories. But Abrahamson, as chief justice, does have the power to assign judges and justices for cases below the Supreme Court level and to designate and assign reserve judges — and that could affect which judges get involved in something like the Doe probe. This might help explain O’Keefe’s interest in this dispute and also explain why it’s so important that the constitutional change not be pushed back to 2019.

Meantime, an even more fanciful theory was hatched by the conservative Wisconsin Reporter, an online publication whose funding came from another group O’Keefe ran, and which has written nearly 200 stories bashing the John Doe probe. The publication wrote a story implying that Abrahamson might be getting a special deal from the lawyer (Robert Peck) that she hired, whom the publication noted is on the board of Justice at Stake, which gets funding from wealthy liberal George Soros. “If Abrahamson cannot explain her use of Peck’s services it could raise ethical questions,” the publication charged.

Peck, founder and president of the Center for Constitutional Litigation, is an expert in constitutional law based in Washington D.C.. When I emailed him to ask if Abrahamson is getting a special deal, this was his response. “She is a paying client, not a pro bono client. I am not giving any bargain deal. Moreover, the suggestion that I have any connection to Soros is absurd. I do sit on the board of Justice at Stake, along with the former chief justices of Arizona and Indiana (both of whom are Republicans with conservative reputations), and many others. Retired Justice Sandra Day O’Connor is honorary chair of the board. I am friends with most of the chief justices throughout the country from my service on the board of the National Center for State Courts. That is how I know Chief Justice Abrahamson.”

And if Abrahamson wins, her legal costs in hiring Peck will have to be repaid by the State of Wisconsin.

It is truly remarkable what a huge cast of characters has gotten involved to make sure this small change in the Supreme Court’s operation was made, which will have little impact other than to punish Abrahamson and give Roggensack a victory over her.

Meanwhile, there is no concern whatsoever about the astonishing conflict of interest for the four most conservative members of the Supreme Court. As I’ve written, all four have declined to recuse themselves from deciding whether the John Doe probe should be shut down, despite the fact the two parties to the case, the Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce, are parties to the case who could potentially face criminal charges. These two groups together spent $7.6 million to help elect these four justices, providing 76 percent of the support for Prosser, 69 percent of support for Gableman, 59 percent of the spending for Ziegler and 48 percent for Roggensack. If these justices vote to kill the Doe, the clear message will be that “justice” was purchased for $7.6 million.

But the good news is that Shirley will have been punished for being so outspoken.

Update April 17, 10:10 a.m: Justice Patrick Crooks, the most unpredictable member of the supreme court, came out late yesterday bashing Abrahamson for fighting the constitutional change and said she has become “a laughingstock.” It’s unusual for Crooks to be outspoken. But Crooks also said he was interested in becoming the new chief justice and framed himself as an alternative to Roggensack. Back in 1999, Crooks was part of a bloc of four justices that aggressively challenged Abrahamson’s leadership.

Categories: Murphy's Law, Politics

13 thoughts on “Murphy’s Law: Shirley Abrahamson Against the World”

  1. TF says:

    I’m impressed that she’s carrying on the fight. The voters may well have “spoken,” but I’ll take the equality promised by an independent judiciary over the faux “freedom” of the corporatists any day of the week. Someday, when our state leaves this second Gilded Age, we’ll be thankful that Shirley Abrahamson made her stand for a fair society.

  2. 2fs says:

    Does Wisconsin have specific provisions regarding recalling state supreme court justices? Because the fact remains that the citizens of the state of Wisconsin re-elected Shirley Abrahamson, knowing she was and would remain Chief Justice. A simple vote on a referendum does not seem sufficient to undo the will of the voters in a standard election. Otherwise, why not propose a referendum altering, say, the governor’s power, or any other elected official’s?

    I do not think the referendum or its proponents were sufficiently clear about its taking effect more or less immediately. And given that most such structural changes take place at a set date, typically as of the next election, it’s reasonable to assume many of those who voted in favor of the referendum assumed something similar.

    And as Murphy notes: the provision that the referendum, if passed, take place immediately makes quite clear this was legislation directed at a particular individual. Article I, Section 10 of the US Constitution prohibits states from passing laws against particular individuals (“bills of attainder”) – that would seem to apply to the “immediately” provision of this law.

  3. tim haering says:

    She’s too old to be doing the job They all are. Their staff are obviously doing all the heavy lifting. “I watch the young ones coming and it’s on their legs I:m running.” As much as WI envies MN, the short-sighted pushers for peer-selected CJ should have pushed an amendment forcing justices to retire at 70. I’d go for that. Then we cold throw all the bums out.

  4. PaulS says:

    What is most astonishing to me is just how inept the WI right wing is at lying. It’s like watching a herd of pimply seventh grade boys convince one another that they’ve kissed a girl…except the prices are extremely high and the costs include savaging the state. As Mr Murphy suggests: “And the stakes are so low.”

    Keep in mind that the gist of 200 false articles–how much does that effort cost?–explodes with a single email and Mr Peck’s simple response. It should not be lost on anyone, by the way, that the ‘paper of record’ could have easily sent, received, and written about that email, were there any journalists over there.

    Cudos to Murphy again–we’d have no press to speak of without you.

  5. daniel golden says:

    I find it most amusing that the Wisconsin Reporter, O’Keefe’s conservative mouthpiece, is concerned about Shirley getting “a special deal” on her legal fees from her attorney. Where was their selective outrage when the ethical train wreck Justice Gableman received over 100,000 dollars of free legal services from the Michael Best firm while Gableman was defending himself against ethics charges the Judicial Council lodged against him for the racist and dishonest campaign he ran against Louis Butler. If the free legal services Gableman received from this right wing law firm didn’t concern the Wisconsin Reporter, how about the fact Gableman did not disclose this donation to opposing counsel when he heard cases involving the Michael Best firm?

  6. Bruce Murphy says:

    Daniel, I should note that the Wisconsin Reporter was trying to suggest the Abrahamson’s hiring of Peck was in some way comparable to the Gableman situation.

  7. Wisconsin Conservative Digest says:

    I have had the pleasure of working for, running campaigns, helping at least a dozen Justices and eve more unsuccessful candidates for SCourt over the last 50 years. All of them,l, left and right regards Shirley as a “total witch”. Her personal nasty attitudes and way she does things makes them all made from bill Blabitch to Lou Ceci and on. That takes a lot of doing to have everyone hate you.

  8. PMD says:

    Wow the always pleasant and friendly and mature WCD doesn’t like Shirley. Shocking.

  9. The Bystander says:

    Donhal:

    So do you and your associates consider any assertive, dominate woman in a LEADERSHIP position that has beliefs that you dislike to be a “total witch” ? Please note the dog whistle use of the rhyme for bitch and the unattributed quotation marks” ) Please tell us exactly who “regards” the Chief Justice as a “total witch”.

  10. Bill Kurtz says:

    I’m still waiting for the puff of white smoke from Wisconsin Manufacturers and Commerce headquarters announcing the new chief justice.

  11. Wisconsin Conservative Digest says:

    I do give credit to Shirley for being a hard worker, you have to really work at it to get everyone to hate you except ditzy Bradley.

  12. wisconsin Conservative Digest says:

    Anyone that served with her. No I have encouraged women to get involved for decades as my kids have done. Milwaukee is dominated by a white, male, liberal, racist, leadership group. Those are your real sexists, count them up.

  13. Willard T. says:

    I’m a liberal who is appalled by what the GOP is doing to this state. I would like nothing more to see Walker gone, a Democratic majority in both houses, and a liberal majority in the State Supreme Court.

    That said, it’s fairly obvious that this is a losing fight for Abrahamson, and her argument—that she was elected “as Chief Justice” b/c her campaign materials said so—carries little legal weight. Similarly, having read many of her opinions over the years, I’m not very impressed with her jurisprudence (or perhaps that of her clerks, which is saying the same thing really). Too many of her arguments rest on plainly dubious interpretations of law, and—should they happen to be in the majority, which is almost never these days—would provide a filmsy foundation for whatever social principle Abrahamson wishes to uphold (and which I’m likely to share). It’s also pretty obvious that, as far as the general dysfunction on the SC goes, it takes two to tango. Prosser is a nutcase, Roggensack is petty and mean, Gableman is—to put it kindly—horse manure. But Abrahamson is childish, vindictive, prone to spats and name-calling.

    I have no illusions that getting rid of Shirley as Chief Justice will make any positive change. But neither am I inclined to lionize her, or to pretend she’s any less partisan—or much better of a judge—than the folks who are her ideological opposite.

    I don’t really see how the Democrats (along with the very few remaining moderate Republicans) can ever hope to reclaim this state when so many of their exemplars are so lacking.

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