By Rick Esenberg
Wednesday, March 13, 2013
In Wisconsin, the Left is at it again. An election for
the state supreme court threatens to become a last-gasp effort to overturn
Governor Scott Walker’s historic collective-bargaining reforms.
Two years ago, liberals poured millions of dollars into
another supreme-court election, in which Madison lawyer Joanne Kloppenburg just
barely failed to unseat incumbent justice David Prosser. This year, the target
is Justice Patience Drake Roggensack, an unassuming former court-of-appeals
judge who until recently had been considered a moderating and conciliatory
voice on a sharply divided court.
It’s a tall order to defeat an incumbent justice. In the
history of Wisconsin, it has happened only twice. The first time, in 1855,
Samuel Crawford was defeated by Orasmus Cole. Crawford’s mistake was to follow
then-regnant U.S. Supreme Court precedent and vote to uphold the
constitutionality of the Fugitive Slave Act. In free Wisconsin, that was
unpopular. And in 1966, chief justice George Currie was defeated by Milwaukee County
judge Robert Cannon. Currie’s sin was to vote with a 4–3 majority to lift an
injunction against the Milwaukee Braves’ move to Atlanta. We like baseball.
So history would suggest that Roggensack is pretty likely
to survive, but the recent Prosser race is something of a cautionary tale. By
turning a judicial race into a referendum on Scott Walker, the Left came within
a few thousand votes of turning Prosser out.
Roggensack is being challenged by Marquette University
Law School professor Ed Fallone. I have debated Fallone in a number of fora and
I think it’s fair to say, with no slight intended, that he is a bright and
capable member-in-good-standing of the law-professor Left.
Although he claims to have essentially no ideological
preferences, neither his supporters nor opponents appear to have much doubt
that they exist.
Both sides know that this race may be the last chance to
derail Governor Walker’s collective-bargaining measures. A county judge in
Madison has held that the Walker reform violates the U.S. Constitution and the
state constitution. The decision is poorly reasoned and unlikely to survive
appeal — unless the composition of the state supreme court changes. Fallone has
not said how he would rule in the case, but he has called the constitutional
challenge at issue serious. Further, he has written in support of just about
every legal challenge to Walker’s agenda.
But in his campaign, he has chosen not to emphasize any
particular legal issues, which is hardly surprising. Collective-bargaining
reform has become much more popular in Wisconsin than it was at the time of its
passage, and a campaign strategy that sends the signal that a judicial
candidate seeks to move the supreme court to the left is probably a loser.
Instead, Fallone’s main argument for his candidacy is that he will somehow
bring peace to a court that has bickered publicly and even seen a physical
altercation among its members.
That theme is unlikely to excite the body politic, which
has tended to observe judicial elections by doing something other than voting.
Fallone got little traction in the nonpartisan primary held to narrow the field
to two, trailing Roggensack by a margin of more than two to one. But turnout
was low, less than half of what is common for a statewide judicial race and
under a quarter of the total vote in the Prosser–Kloppenburg race. If Fallone
can mobilize whatever is left of anti-Walker sentiment, he may yet make a race
of it.
But he may have a hard time doing that: After spending
tens of millions of dollars in the Prosser race and multiple recall elections,
including a failed attempt to unseat Governor Walker, Wisconsin’s Left is
tapped out, and its supporters around the country may be unwilling to throw
good money after bad. There are no final victories in politics, but the Battle
of Wisconsin may be nearing its end.
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