The Tragedy of David Prosser
Recusal ruling adds to his image as the symbol of a dysfunctional Supreme Court.
David Prosser was a longtime Republican legislator who rose to Assembly Speaker and was pretty widely respected, but his tenure as Supreme Court Justice has become increasingly tragic. The court’s reputation and prestige has sunk ever lower and Prosser, who has served on the court since 1998, has become the poster boy for that decline. His most recent ruling, explaining (after the fact) why he didn’t recuse himself from the decision shutting down the John Doe probe of Gov. Scott Walker and third party advocacy groups, makes Prosser look all the more foolish. It’s almost like he can’t help himself from confessing his sins.
In his ruling, Prosser concedes that he became a justice under a certain shadow: “Because I came to the court with a partisan background in legislative service and did not have formal judicial experience, I have assumed that many persons would be skeptical about my opinions, especially if those opinions related to political controversies.” He notes that he therefore sought to ground his opinions in facts and avoid unsupported conclusions, but the resulting decisions were once rapped as showing “microvision, not macrovision” by legal observers in a Milwaukee Magazine story. Prosser, who has never married and has no children, was also described in the story as “an absolutely Shakespearean figure” who haunts the court’s chambers at all hours and on off-days.
In June 2011, Prosser had his infamous altercation with Justice Ann Walsh Bradley where he was accused of choking her. It’s clear by all accounts, even Bradley’s, that Prosser applied no pressure with his hands, but both Bradley and Prosser agree his hands were on her neck. Prosser told officers investigating the incident that he “remembers the warmth on the side of Justice Bradley’s neck in his hands.”
It’s a bizarre phrase. Even in trying to offer a defense, Prosser indicts himself, letting investigators know his hands were on Bradley’s neck long enough to feel the warmth of her body.
Justice Patrick Crooks told investigators the problems of Prosser’s blow-ups (he “explodes and storms out of a room” three or four times a year, Crooks said) went back more than a decade. Crooks also told investigators that he and Bradley met with the court’s human resources officer as well as the director of the state courts, A. John Voelker, months before the incident “because they felt there was an escalation” in Prosser’s aggression.
Yet Prosser saw no need to apologize and essentially blamed the whole thing on Bradley, accusing her of sensationalizing the incident with “scurrilous charges.”
There is a similar, self-justifying tone to Prosser’s ruling explaining his refusal to recuse. On a human level, you can empathize with him and his honesty, but the more he tries to rationalize the deeper the hole he digs for himself.
All four justices who ruled that the John Doe probe should be shut down were heavily beholden to two parties to the case, the Wisconsin Manufacturers and Commerce (WMC) and Wisconsin Club for Growth; together the justices got $8.4 million in support from these two groups for their last campaigns. But no one was more beholden than Prosser, for whom the $2.6 million spent by these two groups represented an incredible 76 percent of all the spending to support his election.
Under the circumstances, Francis Schmitz, special prosecutor for the John Doe probe, filed a request that Prosser and Justice Michael Gableman (69 percent of spending to elect him came from the WMC and Club for Growth) recuse themselves from the Supreme Court decision on the legality of the Doe investigation, given their huge conflict of interest.
Gableman hasn’t bothered to respond, even though he wrote the majority decision. Prosser cares deeply about these issues and his reputation, and thus filed this ruling as to why he didn’t recuse.
The result is bizarre indeed. Prosser admits “it can be argued that” the support he received was “significant and disproportionate.” But we need to know, he stresses, that because of changes in Wisconsin’s campaign finance law (designed to reduce spending in Supreme Court races), he had no choice but to depend on third party spending. Thus he concedes Schmitz’s contention that the WMC and Club for Growth “were actively involved in the Justice Prosser re-election campaign,” but wants us to know this was “before my campaign manager was hired.”
But we must understand, Prosser notes, that he couldn’t otherwise have run a successful campaign, which “was proven by the [primary candidate running against him] who failed to qualify for public funding. She had no money for television and her candidacy did not survive the primary.” In short, Prosser would probably have been defeated without the help from the third party groups whose legal fate he assures us he can objectively decide.
Prosser goes on to load the case against him, writing that he was the victim of “misrepresentations… made in the context of substantial hostility to Governor Walker over issues in which I had no part,” which meant he needed the spending by WMC and Club for Growth to combat this. The justice does a better case proving he has a conflict than Schmitz did.
It would be hard to imagine a situation that more closely fits the Caperton ruling case by the United States Supreme Court, which ruled that recusals are required when “there is a serious risk of actual bias——based on objective and reasonable perceptions——when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign…”
The impact of the WMC and Club for Growth spending on Prosser’s behalf wasn’t just significant and disproportionate, it was decisive, as Prosser clearly explains.
But Prosser argues his situation was different than Caperton, where the donation to the judge came when there was a “pending or imminent” case involving the donor. In his case, Prosser writes, “although one organization whose affiliate made expenditures [presumably the WMC] occasionally appears before the Wisconsin Supreme Court as amicus curiae, there was no likelihood that this organization would be a party in litigation before the court in the foreseeable future.”
No likelihood? But the WMC has been very interested in any cases with an impact on businesses, which is why it has spent millions to get justices it favors elected. In fact the WMC actually helped write the rules on recusals the court has adopted.
Moreover, even if Prosser couldn’t have foreseen the WMC would be a party to future cases he ruled on, the fact is that it did become such a party and given its significant and disproportionate influence on his election, Prosser should have recused.
Prosser, however, seems to think the issue isn’t whether he should recuse, but whether he should have relied on the WMC and Wisconsin Club for Growth to gain election. He piles on the almost agonized justifications for why he had to rely on these groups and then concludes with this: “The people of Wisconsin knew who they were voting for. The special prosecutor should be expected to live with the results.”
But the special prosecutor isn’t arguing that Prosser shouldn’t have been elected. Indeed, Schmitz is a longtime Republican who voted for Walker in the 2012 recall and might have voted for Prosser, for all we know. Schmitz is arguing that in light of how Prosser was elected, he should have recused himself from this particular case.
But Prosser is so consumed with justifying the way he was elected, he seems to miss the central point of Schmitz’s argument. Prosser’s ruling is more like a confession of how compromised and conflicted both he and the court he serves on have become. It’s certainly a tragedy for him, but more importantly for democracy in this state.