In The News
Voters get to reclaim justice April 2
By Dominique Paul Noth
Editor, Milwaukee Labor Press
Posted March 28, 2013
The gloves have come off - at least on the ruling conservative side in these supposedly "nonpartisan" judicial elections of Tuesday, April 2.
72-year-old incumbent Patience Roggensack is fighting to retain her Wisconsin Supreme Court seat for another 10 years, which requires hiding her loss of judicial balance. She has clearly won the money game and dominated the primary, but in straw polls she is falling behind her opponent as the community realizes her unethical record and absorbs how dissembling and self-serving are her arguments. It will come down to turnout – though beating her will have to reflect the true Wisconsin voice that emerged last November.
Roggensack is now the lynchpin enabler protecting colleagues accused of judicial corruption and unethical behavior. Without her they couldn't survive and the legislature would have to return to common sense – and there are legislative ideas moving that even Republicans are balking at and can only survive through an acquiescent high court ignoring legitimate constitutional questions.
In recent interviews she has been forced to agree with her opponent that the current situation on the court is horrible. Her new argument is reduced to her “experience” at avoiding taking a principled stand, which is the clear lesson all the years on the bench really taught her.
No wonder her handlers have called in the hard right troops to protect her flank. The big money that supported Gov. Walker in his campaigns, the GOP insiders who run that party's machinery, have taken her over – in a nonpartisan election! -- to emphasize who she is really beholden to.
In her desperation to keep the conservative quarters of the state on her side, even though many of them are far more thoughtful voters than she gives them credit for, Roggensack goes beyond normal politics, letting her minions demean the articulate and practiced legal scholar and Marquette University professor facing her, Ed Fallone, whose measured tone and precise thinking has politely exposed her weaknesses in the few public debates her handles were forced to allow.
Similar gloves-are-off tactics are taking over Milwaukee County's Branch 45 race. Any semblance of nonpartisanship has been abandoned by Walker's appointment to the bench, a leader of the young Republican lawyers and the Federalist Society. Now Rebecca Bradley is calling in the money chips – including radio ads from the Club for Growth and other extremist supporters in the Walker machinery.
In a typical secret money technique they are demeaning her opponent using transparent open money to criticize Bradley’s shady financial sources –outside Milwaukee and probably Wisconsin, and closely tied to the Republican party and to the Roggensack campaign, my investigations reveal.
Their ads exaggerated or invent how many cases Bradley has actually handled in four months on the bench, counting every slip of paper ever filed in Branch 45, which she can hardly take credit for (except in TV commercials). She is also using the names of well-known people who may have endorsed her in early days out of faith connections and expectation of good behavior -- and must now be appalled at where her money is coming from. I’m thinking of how E. Michael McCann, retired and respected DA, must feel, since a core of his character was opposition to hidden outside partisan money flooding into local judicial races, which is what Rebecca Bradley has been counting on for the past four weeks.
Why is she doing this? Because she's opposed by the most qualified and experienced prosecutor running who has emerged as a quite persuasive presence in forums. Janet Protasiewicz, not only labor's candidate, is openly supported by popular current DA John Chisholm and championed by many business leaders and community groups. As a student before becoming a lawyer, her smarts charmed the late Clement Zablocki into hiring her. (Wisconsin recalls Zablocki as the powerful House member from the South Side who pushed for veterans rights and has a major VA hospital named in his honor.)
Then she worked her way through two law schools before racking up an impressive conviction rate as assistant DA. Her endorsements range across the political spectrum. And if we want to compare courtroom experience, she has been serving the public for 25 years in thousands of cases as a prosecutor.
Walker's pick for Branch 45 lacks anywhere near that hands-on experience and shocked interviewers by declaring Clarence Thomas her model justice.
"There is nothing detestable about having a right-wing philosophy," one Protasiewicz supporter told me. "But it is detestable to use political opportunism to push right-wing money to back her campaign rather than ideas and it would be detestable and shocking to Milwaukee values to impose her as a judge. I think Walker just wants a reliable stooge."
In the Roggensack case, also reliant on GOP money, it's campaign strategy to keep to the bare minimum of debates and public TV interviews with her opponent (sometimes not even in the same room at the same time, certainly ducking live telecasts) so she spends most of her time in the protected GOP banquets to make her pitch. Things went badly the last time she actually mingled with real people at a Voces de la Frontera gala last November.
What are she and the Tea Party worried about? It became clear when they started describing Marquette University law professor Fallone - who actually made his bones listening to all sides and teaching future legal leaders - as "the liberals' candidate." She herself referred to him openly as the "working people's candidate," suggesting he would lean to that side in his decisions.
Usually the next step in this game is to seek out if he ever "palled around" (an echo of the Palin attack on Obama) with people who once were in trouble with the law, and sure enough her campaign reached back to 2002 when it took two whole days for him to disown a reformed Latino leader who has messed up his personal life. This “guilt by association” reach into the past attack is so basically anti-American that you can hardly believe journalists fell for it or that the Roggensack camp pointed them that way.
But it distracted a compliant press from her actual behavior on the bench. You learn more about her ethical conflict if you look at who justices get money from and how they treat the rich in court -- and boy has she’s been there and done that.
All of which amused Fallone in a recent interview. After all, no one is calling Roggensack what she has clearly become - "the business people's judge." As Fallone suggests, all he wants to be known as is the "people's candidate," willing to listen civilly and fairly to all sides of an issue before making up his mind, which is what he teaches students and what assuredly he lives by, as a long series of his online blogs reveal.
Frankly it is the lack of such listening openly to all sides, instead placing bets with the folks whose money brung you to the table, that explains so much of the bickering and throttling that the court uses to silence opposite views on the bench.
It is this dysfunction that Roggensack's removal can end. That makes April 2 just about the most consequential election Wisconsin faces.
If justices are supposed to be above political corruption, why is so much money associated with right-wing campaigns flooding in to support these candidates? Can the voters be bought? Again?
In his campaign Fallone has doubled down with such hard realities, asking voters just to think. He has years of university blogs to measure the caution of his approach to the law.
He wants judges to be elected by voters, he has stated. But he also wants the court to overturn what he has appropriately dubbed "The Roggensack Rule" -- the media calls it “Legalized Bribery” -- that allows uncontrolled big money to dominate judicial campaigns. Roggensack wrote the rule that okayed justices sitting on cases directly involving companies that provided big political donations.
"The issue isn't the public's ability to participate in the elections of justices," Fallone noted. "Voters do that by voting. The issue is whether Supreme Court justices will be perceived as just your common ordinary politician, thought to be willing to dance with the folks whose big money brought them to the ball."
Similarly, Protasiewicz is being encouraged to take off the wraps and let the public see the personal appeal, lawyerly balance and convincing family values that have led her to succeed, not hide behind the platitudes that dominate her opponent's radio interviews.
That is why her campaign managers moved swiftly to raise enough money to counterattack the right-wing blitz, with TV commercials for Protasiewicz. These emphasize the big money against her, her roots in the community and her personality, directness in court and natural compassion for fair treatment. The ads didn’t have time to detail her extraordinary effectiveness in the courtroom.
Such ads were once unusual for a local judicial race but now deemed by insiders as necessary when the Sykes-Belling-JS thumb so tilts the conversation scale to give more space to Bradley and Roggensack than to Protasiewicz and Fallone.
Judges are not exactly Brangelina in terms of celebrity status to drive up public interest. Judicial races just don't have nor should they have that sort of Pitt-Jolie oomph. So they have to work harder to counter incumbency and well-oiled party machinery.
Yet today's extreme right has become so obsessed with calling Fallone a liberal pawn that they misquote his writings.
When he criticized the US Supreme Court's Citizens United decision as "particularly poorly reasoned decision that has disastrous consequences for our democracy,” he agreed that "involuntary money for campaign purposes, in the form of dues" from unions was not health for democracy either. The right has now seized on that as hypocrisy because of the $40,000 his campaign has raised from unions, but those came from contributions earmarked for political action, hardly a case of "involuntary" money.
The New York Times in a recent editorial called the behavior within our state supreme court "shameful" and picked out Roggensack for showing "astounding disregard for legal ethics and every litigant's right to impartial justice."
Fellow justice Ann Walsh Bradley, after sitting quietly for 18 months to let the justice system work, became disgusted with Roggensack's re-election oriented comments that everything was hunky-dory on the court. So she issued a history of events and pointedly itemized Roggensack's dissembling.
After Roggensack at public forums continued to defend her behavior in the Prosser event and characterized her role as “pulling Bradley away” in the confrontation, something no other witness has said, Walsh Bradley went further in a March 25 interview, accusing Roggensack of outright dissembling for political purposes.
"If she is not able to sit on the Wisconsin Judicial Commission case against Justice Prosser because she could not be fair and impartial, how in heaven's name could she be fair and impartial sitting on her own contrived solution?" asked Walsh Bradley. "She's part of the problem of why it's stalled."
In Branch 45, involving an unrelated Bradley (Rebecca, Walker’s appointment to the bench), similar issues of honesty are underway. Protasiewicz told labor delegates that she would love to just discuss accomplishments and future actions on the bench, but feels like "I'm running against the entire Walker campaign machine just to get a fair hearing."
She remains confident that Milwaukee County voters prefer fairness and will hear her out before they vote April 2.