Wisconsin Judge David Prosser Interview: “Understanding” Will Repair the State Supreme Court

In Wisconsin, state supreme court judges are elected in campaigns permitting corporate money and out of state money. Republican judge David Prosser was appointed to the top court of the state by Republican governor Tommy Thompson in 1998 when there was a retirement opening. David Prosser then won two elections.

He won his second election for a ten-year term in 2011 in a hotly contested and bitterly fought election by a razor thin margin when about 14,000 votes suddenly appeared in his favor. David Prosser opposed a recount. The 2011 Wisconsin Supreme Court election was the most expensive in state history.

Since then, David Prosser himself has retired, permitting his seat to be filled through another appointment by Governor Scott Walker, his ally. Generally, appointments lead to incumbencies, and incumbencies are widely favored in elections [PDF]. David Prosser both came and went from the Wisconsin Supreme Court with the benefit of this classic advantage.

Last weekend, David Prosser appeared on a local ABC-TV affiliate for an interview. The program was called Upfront with host Mike Gousha. In the interview, David Prosser was asked about the “tone” of elections and pressed to provide suggestions for changes that would improve the credibility of the state’s top court. He had plenty of complaints, but no solutions.

Gousha: I want to get your take on elections, judicial elections, Wisconsin Supreme Court elections, because you went through the fire in 2011 and survived a very close election, very close, recount involved. As you look at elections today, how comfortable are you with the tone, with the amount of money that’s spent, with the way the campaigns are run? What do you think about that today?

Prosser: Well if I said I was comfortable with those things, that would not be true. I am quite uncomfortable. Some of the problems long preceded my historic election in 2011. Money was in the campaigns long before my 2011 election. I think the tone of the campaign is really unfortunate. You want people who really are going to be impartiable — impartial and not totally predictable on the court, people who you have confidence in. The attack on the integrity of the court or the reputation of the court precedes the 2011 election by a number of years and that’s very unfortunate.

While some of the “problems” may have preceded the 2011 election, in fact, campaign funding increased four-fold over the prior supreme court election, and also eclipsed spending in supreme court contests in other states. The 2011 Wisconsin Supreme Court election was a major political event, coming on the heels of a winter occupation of the state capitol and a petition for a recall election of governor Scott Walker (who won the recall vote later that year).

Gousha: You say “unfortunate.” Does it need to change? You hear some people, I think even former justice [and Republican appointee Janine] Geske who you replaced on the Supreme Court says she’s now at the point where she favors a different type of selection process, in other words merit selection, where we appoint justices rather than have them elected. Are you at that point?

Prosser: No.

Gousha: You’re not — you still favor an election?

Prosser: I think elections need to change and to improve. But after all we’ve had judicial elections since 1848. For years and years judicial elections worked pretty, pretty well. I think what happened here is that, in the nineties people decided they wanted utter predictability from supreme court justices, and they started to pour money on behalf of candidates that they were certain they knew how they were gonna vote. That’s a mistake. That was a mistake. And when those views seem to prevail in a particular way, there was an automatic reaction to go the other way.

In reality, Super PACs were created just a year earlier by the 5-4 US Supreme Court Citizens United decision which allowed unlimited spending by “outside” groups. That’s when the big change occurred. Those groups spent over three million dollars on David Prosser.

Gousha: How would we improve elections from your perspective?

Prosser: Well I think — I don’t know the exact answer.

Gousha: One 16 year term for example as the state bar has proposed?

Prosser: No. I understand what they’re thinking. I don’t they’re getting at the real problem. A 15 or 17 or 16 year election doesn’t necessarily change the nature of the candidates. It’s going to make the stakes in any individual election a lot higher. As long as there are elections, even more money will be poured in. I mean, if you can’t get rid of somebody for 16 years — holy cow, the stakes are a lot higher. So I don’t think that’s quite the answer.

Prosser: The court is a vital institution of Wisconsin government. It is a great institution. It has great history. And what you need is every member of the court to understand that they are not the court themselves, that they are less then the institution. And that they all ought to be talking to each other, respecting each other and trying to build up the reputation of the institution instead of building up their reputation or tearing down somebody else’s reputation.

Despite his complaints and his use of the most outside money in the history of Wisconsin Supreme Court elections, David Prosser thinks that the only thing we need to change is our “understanding.”

Understanding starts with the self. David Prosser may have done a better job preserving the integrity of the Wisconsin Supreme Court by avoiding a highly-publicized altercation: David Prosser was accused of choking Wisconsin Supreme Court judge Ann Walsh Bradley when she asked him to leave her office.