Sunday, June 26, 2011

Sad Days at the Wisconsin Supreme Court

A few months ago, I was talking to a reporter at Reuters who asked "what's going to happen next with you people in Wisconsin?" I told him that I had no idea but it would probably be some bizarre thing that no one saw coming. The next day Kathy Nickolaus had a press conference.

And now it happens again with our embattled Supreme Court. What a mess.

Let's clear away the obvious. The idea of David Prosser strangling Ann Walsh Bradley seems fantastical. But I wasn't there and if Justice Prosser did assault Justice Bradley - "put her in a chokehold" as the allegation has it, he should resign. However, it is equally the case that if Justice Bradley assaulted Justice Prosser - "charged him with raised fists" as the allegation has it (also a bit hard to picture), she should resign. Whether criminal charges should be issued is, of course, another matter and depends on how serious the altercation was. My guess is that - even if something untoward happened - it doesn't rise to the level that would normally result in prosecution.

But, of course, it's not clear that either one of them did what is alleged. The initial report by Bill Lueders was an embarrassingly bad piece of work. Deciding what happened will require resolving conflicting accounts and that resolving them will involve taking testimony from members of the Court other than just Justices Prosser and Bradley. That, for a variety of reasons, is going to make handling any potential disciplinary or criminal proceedings a nightmare. If there are conflicting versions corresponding to ideological stances, God help us all. Addressing that in the context of our politically charged environment in a way that does not become yet another major fissure in out state seems impossible.

But the worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. Either way.

But there are other threats to the institution. Lawyers have been worried about the divisions on the Court for some time now. It's one thing to disagree, but disagreement ought not to undermine civility and respect. No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters. I include myself among this reluctant group.

Someone - maybe more than some one - needs to step up and lead. Leadership requires more than scoring debating points and calling out your colleagues' character and bona fides. Substantive differences among members of the Court are real and important, but they are not unprecedented and are not existential. The damage being done to the Court as an institution may be.

It easy for us on the outside to think we know who is at fault. It is easy for us to think the matter is somehow resolved by a call to just "get along." The fact is that, like a damaged marriage, relationships within a collegial body can ultimately be repaired only by the members of that body. I don't pretend to know what that will take. I do hope that there will be some serious soul searching among members of the Court.

16 comments:

Anonymous said...

These Justices have a history of hiding the injustices of the Courts they are responsible for.

They hide behind their robes with (only)a concern for appearance over justice.

They care not for the institution or the people for whom they are to serve according to the law.

In my opinion, they are a disgrace that has hurt the legal profession more then helped it.

This should be used to investigate their past and replace them all if warranted.

Anonymous said...

Rick,

You are absolutely correct. This is one of your best posts.

There is a need for leadership within the Bar and within the Court. The leadership within the Court need not come from the Chief, although it would be nice if it did.

If no one within the Court can take the lead, are there more members of the bar (preferably from both sides of the political spectrum) who could act to minimize the further damage to the institution? I have wondered whether former Justice Geske, herself an established mediator, might be the right person for the job of at least starting the "intervention." Has anyone spoken to her about this?

gnarlytrombone said...

The initial report by Bill Lueders was an embarrassingly bad piece of work

Perhaps we can decide he doesn't get an 'A' on this one.

Anonymous said...

Add another name to the recall list.

John Foust said...

Does this mean we need to wait for your next post to learn exactly what was so "embarrassingly bad" about Lueder's piece? Because you didn't mention why.

Dad29 said...

So.

When, exactly, did the Court's "collegiality" begin to unravel?

When Ziegler was elected and the Court went 4-3 Conservative. It stepped up when Gabelman won.

So we can conclude that the "non-collegiality" began as soon as Shirley lost her majority.

Now we can deduce who is fomenting the riots, disorder, assaults, and character assassinations.

And it ain't the majority.

What we witness here is the normal course of revolutions. The vanquished are resisting with any means at their disposal.

Shirley was "collegial" when she got her way all the time. That's not hard to do, is it?

gnarlytrombone said...

Now we can deduce who is fomenting the riots, disorder, assaults, and character assassinations.

Heh. Ace reporter Christian Schneider has "sources" unanimously anonymously psychedelically fingering the CJ "managing the press operation from behind the scenes."

The Birchers have finally got their revenge on National Review.

Rick Esenberg said...

Dad

I'm afraid that it goes beyond that. When the Chief ran for reelection in 1999, a majority of the Court endorsed her opponent. Not the kind of thing that makes for convivial decision conferences. The vituperative writing, too, extends back before the Ziegler-Clifford race.

Foust

You don't need me to explain. The Journal Sentinel started to unravel it within a few hours and Ed Morrissey sums it up nicely. http://hotair.com/archives/2011/06/26/hit-job-on-prosser/

Gnarly

Thanks for watching, man!

Anon 10:19

Thanks. I don't think that would work. I think that people need to reexamine their roles and understand that their legacy is not, in the end, going to turn solely on the outcome of hotly contested cases.

Tom said...

On AM620 this evening, former Justice Steinmetz unequivocally fingered the CJ as the source of all the contentiousness.

Anonymous said...

We clearly need to reduce terms and elections to two years for the courts.

Anonymous said...

"The vanquished are resisting with any means at their disposal."

This explains Prosser's refusal to seek anger management as well as the phony Democrats running in the recall elections. You're spot on, Pappy29!

Terrence Berres said...

Perhaps the court has bridged at least one divisive issue by selecting briefs and boxers.

Anonymous said...

The most obvious place to look to for leadership on a high court is its chief justice, but that's not helpful here. And it's not a matter of ideology, as the late-Justice Bablitch's long-running feud with the Chief Justice shows.

Tom said...

Whoops, it was Justice Callow, not Justice Steinmetz

Geo Mitchell said...

The Chief has fostered a venomous environment. This is the latest manifestation.

Leuders' piece indeed is an embarrassment.

Anonymous said...

Is the Chief Justice beginning to experience dementia? Perhaps the insanity of the court emanates from the top.