A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.