Lady MacBeth of the Supreme Court
Pat Roggensack has shamed herself and the high court in the ugly way she’s handled her elevation to chief justice.
There was something unseemly about Supreme Court Justice Patience (Pat) Roggensack contacting state legislators and urging them to support a constitutional amendment that would allow members of the court to elect the chief justice. Court watchers assumed such a vote would result in Roggensack’s selection, so her lobbying looked Shakespearean, the younger justice looking to kill the queen.
It also contrasted with Chief Justice Shirley Abrahamson, who served based on having the longest tenure on the court and now stood to be displaced, yet desisted from lobbying, saying: “My position is that it is important not to politicize the court.”
Still, the constitutional change Roggensack and Republicans supported was easily defended as a more democratic way to run the court, which left Roggensack sitting on high ground. And after the constitutional referendum passed and Abrahamson filed suit in federal court to fight the change, it was Shirley who took a beating, as a Milwaukee Journal Sentinel editorial and other media commentators criticized her for not accepting the will of the voters. All Roggensack had to do was wait for a likely federal court decision in her favor, and watch Queen Abrahamson twist in the wind.
But there is little patience in Roggensack, it appears, and she couldn’t wait to stick it to Shirley. The court’s four conservative judges, including Roggensack, took a vote just hours after state election officials certified the results of the spring election, with Roggensack casting the deciding vote to make her the new chief justice.
Moderate conservative Justice Patrick Crooks urged the four justices to hold off a vote as the federal judge handling Abrahamson’s lawsuit suggested they should do. But they declined.
Justice David Prosser, one of the four conservatives who voted for Roggensack, suggested the change in titles should come on August 1, when the court’s new term begins, but Roggensack immediately issued a statement calling herself the chief justice. There was no reason for such haste, as the the court is not even scheduled to meet again until early June.
Former Supreme Court Justice Janine Geske, a moderate who had been appointed to the court by Republican Gov. Tommy Thompson, questions Roggensack’s judgment. “I keep hoping that there will be some sense of peace and process at the court,” she tells me. Rather than a hasty email vote to choose Roggensack, Geske expected some sense of public ceremony: “I expected the justices would meet and discuss a process to select a chief justice. That discussion should have been in public outlining what the position entails and what the court was hoping that person would accomplish. I also was quite shocked that the group that voted (for chief justice) did not wait at least until May 15 when they are next in federal court.”
As all this went on, Abrahamson simply held her fire and made no statements to the press, while her attorney told the federal judge she still properly holds the office of chief justice. This prompted the Milwaukee Journal Sentinel to do a story with the droll headline, “Will the real chief justice please stand.”
“I intend to work with people on a consensus basis, rather than a dictatorial basis,” Roggensack told Sykes, in an obvious dig at Abrahamson. Just one week earlier, Roggensack said her key task as chief justice was “to begin repairing damage that has been done to the reputation of the Wisconsin Supreme Court,” and so she does this by sullying her fellow justice, and letting the world know the bickering on the court is not about to stop.
Not finished, Roggensack dumped on the Journal Sentinel for its story, saying “That is poking fun at the Wisconsin Supreme Court, trying to make a joke at our highest judicial institution. And you know that does a disservice to our state.”
What in the world was Roggensack thinking? Sykes looks for every opportunity to bash the Journal Sentinel as the supposedly liberal “dead tree edition” and here she was playing along with that game. The JS may not have quite the clout it once did, but it’s still the biggest newspaper in the state, and it’s crazy to pick a fight with it.
The newspaper, in its account, noted that Roggensack was making her announcement on a talk show “which promotes Republican campaigns and conservative causes.” This was the woman announcing herself as the highest judicial officer in the state, and doing it through a show that is devoted to bashing half or more of the politicians and voters of the state. As any media advisor would have advised her, if she wanted to slap the newspaper, then do an interview with the Wisconsin State Journal, Associated Press or Wisconsin Public Radio, all of whom would have jumped to give her coverage, and then wrap yourself in the will of the people and don’t even mention the Journal Sentinel.
Instead, the message sent by Roggensack is that she is only comfortable speaking to a conservative zealot and only cares about voters on the far right side of the spectrum. “For Roggensack to choose a very partisan radio show to make her announcement about being a consensus builder is really a bad first step to rebuilding the court’s reputation,” Geske says.
Roggensack’s decision to get in bed with Sykes looks all the worse given the high-profile case the court is being asked to adjudicate. As I’ve written, Roggensack and the three conservative judges who support her have declined to recuse themselves from deciding whether the John Doe investigation 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 Justice Michael Gableman, 59 percent of the spending for Justice Annette 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. That message will resonate all the louder now that Roggensack has let the entire state know she is only comfortable discussing court affairs with a talk show host who had repeatedly assailed the John Doe investigators as police-state thugs conducing a “a partisan witch hunt.”
Talk about snatching defeat from the jaws of victory. Roggensack was sitting pretty. She had the majority of the people behind her. She could have made a show of conducting the vote for the new chief justice as an exercise in democracy, could had announced she was reaching out to all people, all parties, and all members of the justice system in Wisconsin. And she could have left Abrahamson looking like a poor loser, leaving voters to conclude that Shirley was indeed the cause of discord on the court.
Instead, Roggensack has confirmed the worst possible view of the court and its ruling conservatives, a view that’s likely be cemented after its decision on the John Doe. Take it from Lincoln Caplan, a senior research scholar at Yale Law School and the author of five books about the law, who wrote this in a recent New Yorker feature story:
“The Wisconsin Supreme Court should be seen as above the fray, beyond price, and wholly independent. Instead, contrary to the ideal that (U.S. Supreme Court Chief Justice) John Roberts described in the Florida case, all of the Wisconsin justices look a lot like politicians, in particular the conservatives, who came to the bench with the support of powerful and aggressive political groups. Those justices’ integrity is compromised, as plainly as if they had personally solicited every dollar that helped elect them—and that helped drag the standing of their court so low.”