Saturday, August 20, 2011

Should Prosser have recused?

The New York Times editorial board has weighed in on the dysfunction at the Wisconsin Supreme Court.  The only interesting aspect of the editorial, to me, was the Times' assertion that Justice Prosser should have recused himself from the collective bargaining case because "his vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending."

I think this is quite wrong. Prosser's reelection became a focal point for "left-leaning" folks around the country because it was the only thing going after Wisconsin's new Republican majority pushed through the anti-public-union measures earlier this year.  In other words, people wanted to send a message to Republicans that they'd overreached, and Prosser was their sacrificial lamb. "Right-leaning" folks responded in kind, which is why "anti-union" forces contributed to his campaign.

Prosser won. But everybody knew how he was going to vote on that particular case the moment it was filed. (Leave aside for the moment that the case was pretty clear on the merits, ideology aside.)  The fact that pro-union groups turned Prosser's reelection into a proxy war over the collective bargaining bill does not make any reasonable person question his impartiality (at least not any more than they would had the proxy war never occurred).

Moreover, the idea that Prosser is somehow beholden, or even seemingly beholden, to those campaign contributors is absurd. This is not the House of Representatives, where another election is right around the corner, and raising campaign cash is a full time job. Prosser is 68-years old and was just reelected to a ten-year term. The chances of him ever needing to raise or spend another dollar of campaign funds are nil -- even if his term isn't cut short for supposedly choking Justice Bradley.

Indeed, if it were the law that Prosser had to recuse in that case, it would only increase the partisanship and gamesmanship involved in judicial elections. It would give some issue advocates a no-lose opportunity: make an issue out of an upcoming case and (assuming the other side responds) at the very least you get rid of Justice you don't like for that particular case. The other side would have a no-win.  For example, it would have presented the anti-union forces with an impossible choice -- by seeking to participate in democracy (by influencing the likelihood of Prosser's election), they would undermine the democratic result they sought to achieve (Prosser's ability to decide the question at issue).

In short, there was an election. Deal with it.

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