Tuesday, March 22, 2011

Getting the Prosser Story Straight

There are at least five fairly unassailable observations to be made about the story regarding Justice David Prosser's comments to Chief Justice Shirley Abrahamson.

First, he shouldn't have said what he said. If he has not, he should apologize to the Chief (although we are talking about something that happened over a year ago). Whether she needs to apologize to him is between them. I wasn't there.

On the other hand, for those of you are about to get the vapors, grow up. If you don't think this kind of stuff isn't said from time to time, you need to get out more. David Prosser is hardly the only public official who has lost his religion with an opponent or colleague.

Second, the story raises no concerns about Justice Prosser's qualifications to serve on the Court or his abilities as a Justice. He should not have lost his temper - whether goaded or otherwise - but I guess I will leave it to the reader to ask, whether he or she is the one to cast that stone. If Prosser had a temper problem that was impairing the administration of justice in this state, I hardly think we'd need a leaked e-mail exchange about a decision conference - something that is supposed to be confidential - to let us know. I know what happens and the stories that are told about imperious and cantakerous judges. There are no such stories about David Prosser.

Third, the story does provide some insight into the personal divisions on the Court but not simply because Justice Prosser lost his temper. Members of a collegial court ought not to get involved in each other's election campaigns. It makes working together rather difficult.
Beyond that, what happens at conference is confidential and justices ought to respect that. There is no logical stopping point here. Do we really want each member of the Court running to the press in the guise of correcting public "misperceptions" about their colleagues.

Fourth, Joanne Kloppenburg's claim that her election would somehow ease the division on the court is hard to credit. I am sure that she would like that, but let's look at the facts. If Prosser loses, it will be because partisans turned the race into a referendum on Governor Walker among their base. They will have done so, moreover, with Ms. Kloppenburg's tacit consent and encouragement. Along the way, one Justice turned on another by releasing information that is normally kept within the Court. Unfortunately, the only thing that a Kloppenburg election would do is change the composition of the division.

Fifth, there is no reason to blame David Prosser for division on the court. Discord is not new to the court and it is not necessarily related to ideology. Shortly after Shirley Abrahamson became Chief Justice, four of her colleagues endorsed her opponent in her 1999 race for reelection. One of the four was her ideological cohort, the late Justice William Bablitch. Much of what causes this discord happens outside of public view and those of us on the outside, while certainly right to call and hope for an end to the bickering, should be careful about assigning blame.


Todd said...

If you don't think this kind of stuff isn't said from time to time, you need to get out more.

You've called your coworker a "bitch" to her face and threatened to destroy her?

Or you've been around someone who called his coworker a "bitch" and threatened to destroy her?

I haven't. And if I did, I'd expect the guy to be fired.

Moreover, how can you credit a guy who explodes like that and then blames somebody else? I'm sorry you made me explode at you.

What kind of man refuses to take responsibility for his own mistakes?

Anonymous said...

"No such stories about David Prosser"? Read Dave Zweifel's January 5 column in the Cap Times.

jimspice said...

"First, he shouldn't have said what he said."

Prosser would disagree. After all, she MADE him do it. He was powerless.

illusory tenant said...

Fifth, while it's improper to make this election about Gableman, it's perfectly appropriate to make it about Abrahamson. Fixed it for you.

Anonymous said...

This just in: Court of Appeals certifies Ozanne v. Fitzgerald to the Supreme Court. Now let's see what happens.

Rick Esenberg said...

I haven't. But these are separately elected public officials and there are all sorts of other things that go on in that context that makes the "co-worker" example inapplicable. As for the rest of it, I can't say because I wasn't there. Is it better to be passive aggressive and manipulative (and I'm not saying that happened because there is no way to know) than it is to explode and get it over with? That's not clear to me. What is clear to me is that the reaction to this would be flipped if the politics ran the other way and that suggests to me that its not that important.

Anonymous said...

Maybe Prosser has a Don Steinmetz problem with Shirley. Steinmetz was asked by all of his colleagues to take an anger management class-unfortunately his anger was really that he couldn't abide a Chief Justice who was 1. a woman, 2. from New York and 3. a da.m New York Jew. But as Prosser said the animosity would subside when he was reelected.

LawGirl said...

I agree with your post here, but feel that it is also significant that he's not the one who put the ugliness in writing. His was a face-to-face exchange, not behind her back and not from the comfort of his laptop. The justice (was it Roggensack? The details are getting fuzzy from 3 days out . . . ) who put it in an email to him acted inappropriately, too. It was clearly meant to preserve "evidence" of something that happened in a personal exchange that got overheated in the moment. She, on the other hand, had time and distance from the event to consider whether to put it in writing, and chose poorly.

I'm disgusted with the timing of this, too. It should have come out immediately after, if this is relevant to the public at all. This is one thing SCOTUS has over elected justices. At least they don't have the temptation to get involved in campaigns against each other.