More Power for Pat?

The Wisconsin Supreme Court is a veritable fortress for incumbents. In its 161 history, through more than 120 elections, just two justices seeking reelection have been defeated. One was Samuel Crawford in 1855, thrown out for writing a controversial opinion saying the state must enforce the Fugitive Slave Act. The other loser was Chief Justice George Currie in 1967, who had joined an opinion saying it was legal for the Milwaukee Braves to move to Atlanta. Sports fans didn’t forgive that one. (Another four justices in state history, including Louis Butler in 2008, were appointed to the court and lost their bid for election.)

So the chances that challenger Ed Fallone would defeat incumbent Pat Roggensack, first elected in 2003, were slim indeed. Perhaps that’s why Roggensack’s campaign manager Brandon Scholz, a veteran of many notable GOP campaigns, was so confident, jubilantly predicting Fallone couldn’t win.

“My guess is that when Fallone got in the race he thought he would get a lot of national money,” Scholz observed in an interview three weeks before the election. But the reality is that Wisconsin has a bad track record for liberals in recent high court races, with conservative groups outspending their counterparts. And that was before Act 10 destroyed public unions in Wisconsin, leaving WEAC and AFSCME with depleted treasuries, in no position to spend as much as conservative groups like the Wisconsin Manufacturers and Commerce.

“I’ve been on a daily watch to see if WEAC or AFSCME would engage in third party spending,” Scholz told me. “That hasn’t happened.”

With those groups sitting out, any national liberal groups knew they would not only have to outspend conservative heavyweights like Club for Growth, but would to have to outspend the in-state groups, too. That left Fallone’s race as a high-risk venture, too iffy to attract national dollars. He probably would have needed an $800,000 to $1 million campaign fund to both build his name recognition and run effective attack ads against Roggensack, Scholz estimated. But Fallone raised less than half of that.

As a result, conservative groups didn’t even have to spend that much on Roggensack. The ironic result was a low-spending campaign. Roggensack simply played the incumbent’s game, noting her many endorsements from judges, sheriffs, district attorneys and law enforcement unions, stressing her bench experience, and giving the media little access. She was too busy, I was told, to grant me more than a 10 minute interview, and she simply blew off the Shepherd Express.

The result is a victory for the four-person conservative bloc — led by Roggensack — that controls that court. And when liberal justice Ann Walsh Bradley runs for reelection in 2015, she may face a conservative challenger with far more money than she can raise, given the demise of public unions in Wisconsin.

The fact that a little-known challenger was able to get 43 percent of the vote with a campaign that started late and lacked money may bespeak an electorate which polls show has an awareness of the court’s troubles. Many might have felt there was merit to Fallone’s claim that the court has become dysfunctional.

Roggensack says she will work hard to overcome the court’s divisions, but she failed at that in the past and offered no new solutions during the campaign. She led the way in refusing to refer the case involving Justice David Prosser’s physical encounter with Bradley to state appeals court judges, as prosecutor Frank Gimbel had proposed, and as such cases are commonly handled. So there will never be a hearing of the evidence against Prosser.

And Roggensack was all over the map as to whether judges should recuse themselves in cases involving campaign donors. She told me a $1,000 donation was too low to require a recusal and she might consider doing so if a donation was as high as $10,000, but by late in the campaign she dropped that to $1,000. The reality is, as a result of the ruling she wrote — and the conservative bloc supported — no donation by itself can require a recusal, so judges can ignore the issue should they so choose.

Roggensack also wrote another rule that has closed all administrative hearings of the high court, leaving no way for the media and the public to objectively judge how the court’s members relate to each other and govern fellow justices.

All of which suggests the court will continue to have internal squabbles that hurt its prestige. Not long after the Prosser-Bradley affair, Hofstra Law School professor James Sample, who has written and been quoted frequently about state supreme courts, offered a glum assessment. For decades, Wisconsin had a reputation as one of the “premier” state Supreme Courts, he told the Milwaukee Journal Sentinel, adding that “Wisconsin’s court has gone from being this national model to a national punch line.”

If Roggensack is serious about trying to restore the court’s reputation, she certainly has her work cut out for her.

This column originally ran in the Madison weekly Isthmus.