Two things are certain about next Tuesday's primary election for Wisconsin Supreme Court. First, the statewide vote will narrow the field of candidates from four to two for the April 5 general election. Second, the election will be decided by a sliver of the electorate, including some voters who know little or nothing about the issues or aspirants.
It's what we in America like to call democracy.
Justice David Prosser Jr., a 12-year veteran of the court, is seeking reelection to another 10-year term; in 2001, he ran unopposed. This time, for reasons that make this election unusual if not historic, he is facing three challengers: Assistant Attorney General JoAnne Kloppenburg, Milwaukee-based public defender Marla Stephens and Madison attorney Joel Winnig.
The Wisconsin State Journal highlights this election to advance its editorial push for merit selection. This system, used in other states, sets up panels to cull qualified Supreme Court finalists, with the governor or other authority making the final pick.
In making its case, the paper strongly suggests Prosser was unqualified, noting that the former Republican Assembly speaker had no judicial experience when Gov. Tommy Thompson tapped him to fill a midterm vacancy. It laments that most Wisconsin justices take a similar route to the court, "with zero oversight from lawmakers or the public." Then special-interest spending leverages outcomes for whatever elections do occur.
What kind of system is that?
In fact, the exact opposite spin could be put on this primary. This is the first election since Wisconsin approved public financing of state Supreme Court campaigns, and three of the four candidates, Prosser included, have agreed to accept the money - and the spending limits that come with it.
Each qualifying candidate will get $100,000 for the primary and $300,000 for the general election - plus matching funds if Stephens, the lone public-financing holdout, spends more than these grants. Stephens says she does not plan to do so pre-primary.
That means the Feb. 15 primary will occur on a relatively level playing field, with each contender having roughly equal resources. (Whether this will hold true for the general election is unclear, as court challenges or the GOP Legislature could yet kill public financing.)
If Wisconsin voters - especially those in Dane County, where a heavier-than-usual turnout is expected for the heated county exec race - deserve the right to pick Supreme Court justices, now is their chance to prove it.
The following thumbnails are drawn from interviews, candidate websites, other articles and Wisconsin Eye's video of a candidate forum in Milwaukee on Jan. 27.
David T. Prosser Jr.
Bio: Chicago native, raised in Appleton; single; DePauw University and UW Law School grad; former Outagamie County DA, U.S. Justice Department official and congressional aide; state Assembly rep from 1979 to 1996; appointed to the Supreme Court in 1998; reelected in 2001.
Justice he admires: "I admire all my colleagues. Each has strengths and admirable qualities that I wish I had."
Favorite TV crime or legal drama: The Good Wife.
Even Prosser acknowledges "legitimate questions" about his qualifications when Gov. Thompson picked him in 1998. But he's since participated in "900 cases that led to published decisions," including 130 he wrote himself. "I'm not an unknown quantity anymore."
A self-described "judicial conservative," Prosser works hard and is meticulous, but he's not known as a great legal mind. His comments on possibly curtailing access to online court records are notably uninformed, suggesting the problem is over inaccurate information. He agrees there's "divisiveness" on the court, as shown by recent clashes, but insists he's not the source. Instead, he blames Chief Justice Shirley Abrahamson.
Prosser has been skewered by his rivals for declining to discipline fellow Justice Mike Gableman over a misleading campaign ad (the court deadlocked 3-3). But Prosser notes that a judicial panel recommended dismissal and, besides, "We're talking about the First Amendment, which should be strictly construed in favor of free speech."
Prosser's challengers also make much of a press release in which his campaign manager said Prosser's reelection was about "protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Walker] administration and Legislature." They suggest he intends to rubberstamp the GOP's agenda.
But Prosser says the newly hired campaign manager issued this release "without clearing it or showing it to me." He vows to "review legislation impartially," upholding whatever is constitutional and in keeping with legislative intent. He even turns this campaign faux pas into a dig at his rivals: "Some judicial candidates would be willing, even eager, to substitute their views for the views of the Legislature."
Marla J. Stephens
Bio: Native of Milwaukee, now lives in Shorewood; husband, two kids and a dog; UW-Milwaukee and Marquette Law School grad; assistant state public defender since 1988, and director of its appellate division since 1996; longtime member of the Judicial Council of Wisconsin.
Justice she admires: Shirley Abrahamson.
Favorite TV crime or legal drama: The Wire.
Marla Stephens sees a need "to restore impartiality and integrity" to the Supreme Court. She'll "make the court work for people, not just parties and special interests." She vows to be "a nonpartisan advocate."
But Stephens says no one should infer from this or her background as public defender how she'll rule: "What I'm talking about is being an advocate for fair and impartial justice." She also feels her background as an administrator and on the Judicial Council (a body that advises the court system) uniquely qualify her to be a peacemaker: "I know how to focus in on what is important and get to some kind of consensus."
Stephens laments the divisions on the current court. That said, she believes Gableman "lied" during his 2008 campaign and that his colleagues, including Prosser, "should have had the courage to tell the people of this state that what he did was wrong."
Some voters might prefer that Stephens openly align with the court's left-center faction (Abrahamson, Ann Walsh Bradley, Patrick Crooks), rather than insist she'd be above the fray.
Bio: Born and raised in Connecticut, in Madison since 1985; husband and three kids; Peace Corps volunteer in Botswana in late 1970s; Yale and UW Law School grad; interned for Abrahamson and clerked for federal Judge Barbara Crabb; state assistant attorney general since 1989, specializing in environmental issues.
Justice she admires: Shirley Abrahamson.
Favorite TV crime or legal drama: "I don't watch any of them; I have enough law and order at work."
All of Prosser's challengers share his lack of prior experience as a judge. But of the three, Kloppenburg, a longtime Justice Department lawyer who's tried cases, handled appeals and appeared before the Supreme Court, is probably the most qualified.
She also purports to have the edge in terms of her ability to be impartial and independent. "My judicial philosophy is to ensure that people get a fair day in court," she says, vowing to listen to all sides and arrive at decisions that make sense. The other candidates in the race, she charges, have all "said they will prejudge cases in a way that's consistent with their ideological views."
Actually, they would all dispute this.
Kloppenburg rips Prosser for the words of his campaign manager, without making clear that's who said them. She charges that Stephens has pledged to be an "advocate" on the court, without the qualifying words and sentiments. And she blasts Winnig for saying he'd be progressive.
"All of those approaches to the job are wrong," Kloppenburg says. "I don't want judges advocating when I appear before them. I don't want them importing their personal and political beliefs into my case. I will be a justice...that puts that all aside."
That's a nice rap, and perhaps Kloppenburg believes it. But all Supreme Court candidates - from Abrahamson to Gableman and including the ones in this race - deny bringing bias to the bench, and it's always untrue.
Bio: Born and raised in Wausau, lives in Madison; wife and two kids; Eagle Scout; high school class valedictorian; UW-Madison and UW Law School grad; Madison attorney for more than three decades, specializing in family law.
Justice he admires: Shirley Abrahamson, then Ann Walsh Bradley, then Patrick Crooks.
Favorite TV crime or legal drama: CSI Miami.
Joel Winnig says he's spent his entire career "fighting for working people." And while he pledges that, as a Supreme Court justice, he'll call 'em as he sees 'em, based on the facts and legal precedents, he does suggest an affinity with the court's "liberal" wing, as when he says that Chief Justice Abrahamson "is right more often than she's in the majority."
Winnig may be the most earnest candidate, and the most personable. He says he's running out of deep concern over how the integrity of the court has been compromised, especially by Gableman's campaign. But he dissents from those who say "the race is about divisiveness," expressing respect for Prosser and belief in his own ability "to work with everyone on the court."
Though he claims to have handled the broadest array of cases, Winnig's résumé as a lawyer in private practice is comparatively thin. And his pronouncements tiptoe to the edge of goofy, as when he said at the Jan. 27 forum, "If there is anyone here with more joy in their heart today about their purpose in life, they should stand up and testify...."
No one did.