Thursday, June 30, 2011

Torvik & Gillette on Prosser v. Bradley

This post introduces a new feature:  Conversations™-- in which Torvik and Gillette discuss current events with utter seriousness.

TORVIK:  Mr. Gillette, I wanted to get your take on this bizarre Wisconsin Supreme Court fracasMore detail – or is it spin? – is emerging.  What's your gut feeling on this?

GILLETTE:  It is clearly spin.  As for what actually happened, I assume either Prosser or Bradley is lying.  It would seem one of them has engaged in behavior that is inexplicable, either lying about being attacked by a coworker or a man attacking a 60-year-old woman.  I did agree with that hack Alex Pareene that Althouse’s take on the episode/defense of Prosser is stupid.  What is your take on it?

TORVIK:  My gut instinct is to believe that Bradley charged him.  That is not to say attacked him, but got into his space, up into his face, and he pushed her away.  The original story of Prosser choking Bradley because Bradley wanted him to leave her office made no sense.  It just doesn't play:
"Hey, get out of my office right now!"

"No!"  [goes over and chokes her] 

The Prosser story at least makes sense to me, because it doesn't require either party to be psycho.  People getting in each other's faces is something that happens without either party being psycho; people going over and choking someone for no reason, not so much.

As you know, I'm on record saying that the whole court should resign.

GILLETTE:  Given what I know of him, allowing Walker to appoint an entire new supreme court is a bad idea.

I am not sure that charging him, if that is what happened, gives him license to push her.  Why shouldn’t he just back up?  Generally I think that putting hands on a woman, without consent, is a bad idea.  That said, I agree that your scenario seems more plausible.

TORVIK: I don't disagree that it's a "bad idea" to push a woman who charges at you, but only from a PR standpoint.  This is an area where I agree with Althouse -- giving women special rights to instigate violence undermines feminism.  In any event, it's defensible to use reasonable force to defend yourself, and if all he did was extend his arms to ward off someone coming into his space, that's appropriate.  The picture I got in my mind from that National Review article was Prosser standing in the doorway leaning up against the door jamb.  Obviously that's just a detail my brain has filled in.  But that could make backing up impractical.

My guess is that it's not so clean as that, and that both people were in the wrong.  But for me that makes "who started it?" a pretty important issue.  In other words, who was the aggressor?  Who was standing still or backing up, and who was moving forward?  The fact that Bradley was, by all accounts, trying to eject Prosser from her office suggests pretty strongly what the answer to that question is...

I agree that the politics of the "whole court resigning" thing are impossible -- it's not a realistic proposal.  But it's what should happen. They are really damaging the institution of the judiciary in the United States.

GILLETTE:  For the sake of Althouse, although I disagree that my position undermines feminism, let’s say it is a bad idea to put hands on someone weaker than you.  Despite Althouse’s ridiculous discussion of the ages/sizes of the justices, I am pretty confident that Prosser is stronger than Bradley.  Someone coming “into your space” does not justify you actually pushing them.  I don’t buy that.  If he doesn’t like being approached in the door jamb, step back into the hall.

TORVIK:  Well, I hope we can agree that assigning fault – other than the "a pox on both their houses" conclusion – depends on tiny little details that we don't have (which has always been Althouse's point, by the way).  If someone has charged across the room at me and is in my space and still moving towards me, I am going to rightly conclude that that person is attacking me.  And I am going to be justified in defending myself by taking the minimal resistance of a push-away, whether or not that person is weaker or more feminine than me.  If, on the other hand, the person has stopped two feet in front of me, and is just yelling at me, I have no reasonable belief that she's attacking me, and pushing her would be aggressive and unjustified.  Did Prosser have to move forward in order to push Bradley?  Or did he do it as he was backing up or standing still?  These details make all the difference.

But it cannot be the general rule that it is a bad idea to put your hands on someone weaker (or less of a man) than you.  That would mean that the stronger person is always in the wrong whenever there is an altercation, which is ridiculous.  No, the only thing going on here is the chivalry argument that a man must never defend himself against a woman.  I reject that.  There is no easy solution that gets us to Prosser is at fault because he is stronger or a man.  

By the way, I am by no means a small man or a wimp, but I have been defeated in arm wrestling by a woman.  I bring this up because your "stronger is wronger" argument makes me think that the "trial" in this case could be decided by an arm-wrestling match between Prosser & Bradley – whoever wins the arm wrestling match is at fault!

The ideological flip is an interesting experiment here.  Imagine that instead of Bradley and Prosser, we had Michelle Bachman charging across a room to confront, oh, Charles Schumer, who pushes her away.  I think everyone's interpretation of these kinds of events is colored by ideology, mainly by our bias about "who's crazy?"

GILLETTE:  We do agree that assigning fault isn’t possible without details that will probably never come to light.  From the article you sent, it sounds like the ideological divide on the Wisconsin Supreme Court applies even to the facts of the meeting. 

The problem I have with your scenario (person charging across a room, in my space and still moving towards me in apparent physical attack ) in the context of Prosser and Bradley is that it is almost as loony as the scenario that Prosser attacked Bradley.  I do not believe that a sixty-year-old justice of the supreme court was about to attack one of her co-justices or that she reasonably appeared to be under the circumstances.  That would be incredibly irrational.  If Prosser believed that, and that is why he pushed her, he was being irrational.  Context matters.  A person being charged by a complete stranger in a roughneck bar would reasonably think that the charging stranger was going to engage in a physical attack.  Given that I have never heard of fisticuffs breaking out at the Wisconsin Supreme Court before, I don’t think a justice would reasonably conclude that they were under threat of physical attack.  If this were Schumer and Bachman, my conclusion would be the same.  (Although, there is some history of physical violence between senators and members of congress.)  

I guess my view is better stated as this:  one should not be the first person to resort to physicality.  If Bradley didn’t touch Prosser, than Prosser should not have touched Bradley.  Unlike Jesus or Gandhi,   I do believe one can respond to a push with a punch (or whatever).

As for your won-loss record at arm wrestling, the less said about that the better.  I will assume there were extenuating factors that you omitted to make your point.

TORVIK:  Yeah, I assume that girl was on steroids.  It was the 90s, after all.  And she was very large.  Bradley-esque, even.

GILLETTE:  I was crediting you with being very drunk.  Perhaps PEDs would also explain it.

TORVIK:  That’s right, I was very drunk.  Exactly.


  1. Pardon me for arriving at this exchange late. Question: how are your conclusions altered by the reports that this altercation occurred in Bradley's office, and that she had already told Prosser to get out?

    Given that reports also say that Prosser was joined by three like-minded collegues; and that their purpose was to criticize CJ Abrahamson who was Bradley's guest, does that affect your conclusions (if those facts are borne out...).

    If Prosser might be justified by Bradley's intrusion into his "personal space" how does Prosser's unwelcome intrusion into Bradley's office get a pass?

    A agree the whole lot of them need marriage counseling, and Prosser needs anger management counseling.

    sean s. MU Law, 2012.

  2. Hi Sean:

    My thoughts are not changed by the facts you point out, because I assumed them to be true. I was aware that reports say the altercation took place in Bradley's office, with almost the entire Court present, and that Bradley had already told Prosser to leave.

    I don't know the etiquette of one justice being in another's office. But his presence there does not seem inappropriate to me as long as the other justices were there and the topic of discussion was court business (as seems undisputed). Maybe Prosser was being an intransigent jerk and refusing to leave after repeated requests, daring Bradley to do something about it. Maybe he was standing next to her chanting, "I'm not touching you!" As I said above, those details make a difference to me. But ultimately all I really care about is who incited the physicality of the altercation, and what exactly the physicality was (e.g, there's a big difference between push in the upper chest and a two-handed choke).


Comments on posts older than 30 days are moderated because almost all of those comments are spam.