Pat Roggensack On the Warpath
Supreme Court chief justice slams Journal Sentinel, Janine Geske, and others.
Wisconsin Supreme Court Chief Justice Pat Roggensack is offended by what people are saying about the court she runs. She is offended by the Milwaukee Journal Sentinel, by widely respected jurist Janine Geske, and by ex-legislator Spencer Black.
Roggensack took shots at all of them on Tuesday in a speech at the Marquette University Law School. She was chosen to give the school’s annual Hallows lecture, “one of the flagship events of the year,” as its Dean, Joseph Kearney, dubbed it, and chose to use this prestigious occasion to mete out punishment to those who dare use “tough talk” to describe state’s high court. And as the court has repeatedly embarrassed itself in the last decade, it has naturally been met with considerable criticism, giving Roggensack one heck of a lot of ground to cover.
Roggensack’s central point was such tough talk can reduce the public’s confidence in the courts and thus their institutional legitimacy. Public support for the courts has always been a concern within the judiciary; as Roggensack and others have noted, the courts have no power to enforce their decisions and must depend upon their institutional authority, which springs from the country’s support of the courts as a co-equal branch of government.
That support is endangered by the decline of civility in the age of the internet and the rise of legal bloggers writing about the courts, Roggensack suggested. But that reasonable sounding introduction to the alleged problem soon fell apart as she got into the details. For starters, if legal bloggers (most of whom tend to dry and wonky) are such a problem, why wasn’t she able to provide any examples? And isn’t the decline of civility largely due to the rise of partisanship in America, of which the Roggensack’s uber conservative court, whose every decision seems in lockstep with the state’s Republican majority, is a prime example?
In reality, Roggensack’s speech was really about going after those who’ve dared to criticize the court she runs. Yet Roggensack was coy, leaving out the names of her afflictors and the entire context of their remarks. Given that Roggensack’s entire premise was that any criticisms of her court should analyze the legal reasoning, it’s a violation of her own standard to skip the rationales behind the tough talk she decries.
Thus she zapped a “former Democratic legislator” — that would be Spencer Black — for this statement: “I hesitate to call Wisconsin’s current Supreme Court a ‘kangaroo court’ only because that might be deemed an insult to marsupials.”
As Roggensack conceded, the statement was “at least” amusing, but it was actually part of an entire column for the Cap Times where Black offered the dictionary definition of kangaroo court, and then proceeded to explain why that was an accurate description. His language was certainly “tough,” but so were his specific complaints about the court, none of which were addressed by Roggensack. Is that why she didn’t disclose his name nor the fact he wrote an entire column?
The chief justice also noted a Journal Sentinel editorial blasting a high court decision ruling that Brad Schimel’s training videos (from his days as Waukesha District Attorney) should be protected from a public records request. The decision overruled lower court decisions and added a limitation to the state open records law while noting Democrats had a “partisan purpose” in seeking the videos. By that standard any member of either party would not be able to request open records.The editorial slammed the opinion as emanating from the same “swamp” that led legislators to try to eviscerate the state open records law. The phrasing is clunky and undermines the point, but again, it helps to consider the context for it. (And yes the JS did cover the speech and note its slap at the newspaper — though the article didn’t run in the print edition.)
Roggensack went on to criticize the paper’s coverage of key federal court rulings that tell readers whether the judges were appointed by Democratic or Republican presidents. I’d say the paper is doing its job, providing helpful context to readers who would likely demand this information if it wasn’t provided. Indeed, Roggensack herself noted that justices often have philosophies aligned with presidents who appoint them.
But Roggensack’s most slippery criticism was of her fellow jurists. Thus she criticized “my colleagues Justice Shirley Abrahamson and Justice Ann Walsh Bradley (who) characterized another justice’s opinion as ‘traveling through another dimension . . . into a . . . land whose [only] boundaries are that of imagination.’ ”
Actually, it’s a funny line. And it was part of a criticism not just of Justice Michael Gableman, but of Roggensack as chief justice, for giving Gableman what was termed a “lead opinion” when the court’s justices were so badly divided they could come to no consensus.
But Roggensack’s most biting attack came against MU Law School professor and former Supreme Court Justice Janine Geske, who was in the audience for this speech. Roggensack criticized “careless statements by former justices” including “one who gives many interviews and has an opinion on everything and never has anything complimentary about the Supreme Court.”
And what was the dastardly quote from this unnamed font of opinions that everyone in the audience surely knew was Geske? “I think people lose faith that the court is anything but a political machine,” she told the Cap Times. Geske’s point was that the court has become so ideological “it is almost like electing a representative court.”
Absent from Roggensack’s entire speech was any admission that the court itself — and her leadership — might have merited some criticism, and might better explain why it’s considered among the worst of the nation’s state high courts.
This is a court which for years had a conservative majority made up of Roggensack, Gableman, Annette Ziegler and David Prosser, who together benefitted from $8.4 million in campaign spending by the conservative Wisconsin Manufacturers and Commerce (WMC) and Wisconsin Club for Growth, with each getting anywhere from 48 percent to 76 percent of all support from these two groups. As Prosser later wrote, he couldn’t have been elected without this help.
More recently, 54 retired judges including that pesky Geske, wrote a letter petitioning the court to adopt a stricter recusal rule. Roggensack and the court have never bothered to respond, though Wisconsin has been rated among the four worst states in the weakness of its recusal rule. Another study gave Wisconsin an “F” for its judicial disclosure rules, while noting the ethical problems of Gableman, who got off with a slap on the wrist from the Roggensack majority for his transgressions.
The infamous incident where Prosser was accused on strangling Bradley (he admitted only to putting his hands on her neck) would have been far less controversial if the Roggensack majority had simply referred the case to an appeals court after a prosecutor found probable cause Prosser violated the state Judicial Code of Conduct. Instead the Roggensack majority chose in this instance to recuse themselves — and not from ruling on the case but from referring it a more objective court.
The Roggensack court has also closed its once-public hearings to consider changes to its administrative rules. Roggensack lobbied state legislators to pass a constitutional amendment to change a more-than-century-old procedure so she could replace Abrahamson as chief justice, and later went on conservative talk radio to blast the Journal Sentinel for its coverage and imply that Abrahamson ran things on a “dictatorial basis.”
In short, it appears the Roggensack herself is not above “tough talk” about the court, but only condemns it when it’s aimed at her. That sort of double standard only adds to the credibility problem of her and the court she leads.
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