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Wisconsin provides a potent example of how the new politics of judicial elections can undermine a court and the public’s confidence in it. The rise of money and political pressure triggered a chain of events that led The New York Times editorial board to call the Wisconsin Supreme Court “a study in judicial dysfunction.”1

After years of quiet races, groups on both sides of the political aisle have dominated several recent Wisconsin judicial elections in an effort to influence the sharply divided court’s makeup. Interest groups have spent more than $8.6 million from 2007–2011 on television ads and other electioneering.

While spending gradually accelerated over the last decade, 2007 was “the year it went from elections to the Supreme Court to auctions for the Supreme Court,” according to Mike McCabe, director of the Wisconsin Democracy Campaign.2 The outside money in Wisconsin elections—along with the $6.9 million raised by the candidates from 2007–2011 and $800,000 in public financing in the 2011 election—paid for some of the nation’s nastiest attack ads and other bruising campaign tactics as the composition of the court shifted from liberal to conservative.

Wisconsin’s 2011 election exemplified this race to the bottom. The contest between Justice David Prosser and challenger JoAnne Kloppenburg, largely fueled by special interest attack ads, quickly became nasty. Outside groups poured money into a competition that many sought to recast as a referendum on Governor Scott Walker, whose plan to end collective bargaining for most state workers was about to come before the court. Prosser narrowly won the race, following a recount, maintaining the court’s conservative majority.

Many of the harshest ads were run against Justice Prosser, including one by the Greater Wisconsin Committee that accused him of covering up molestation by a priest when Prosser was a district attorney. Another Greater Wisconsin Committee ad described him as a “rubber stamp” for Governor Walker. Kloppenburg was not immune from attack either, including an ad by Citizens for a Strong America that described her as “so extreme she even put an 80 year old farmer in jail for refusing to plant native vegetation on his farm.” Total spending reached more than $5.1 million in 2011.

Internal disputes among justices—from personality clashes to battles over recusal rules—have also torn apart the court. Justice Prosser hurled an expletive at Chief Justice Shirley Abrahamson and threatened to “destroy” her during a private court session in 2010.3 In 2011, Justice Ann Walsh Bradley accused Justice Prosser of angrily grabbing her around the throat during a meeting.4 He admitted touching her neck but described it as unintentional. These occurrences, and the media attention they have generated, have had an effect: “In a very short period of time, we have gone from having a Supreme Court that was a national model to a Supreme Court that is really fodder for late-night comics,” said Howard Schweber, a political science and law professor at the University of Wisconsin-Madison.5

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TV ad by Greater Wisconsin Committee opposing Justice David Prosser

Copyright 2011 Kantar Media/CMAG

With Wisconsin’s high court remaining bitterly divided both personally and ideologically, it is perhaps unsurprising that public confidence has plummeted. A 2011 poll of Wisconsin voters by 20/20 Insight found that Wisconsin voters’ confidence in their Supreme Court had fallen to just 33 percent, down from 52 percent only three years earlier.6

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TV ad by Citizens for a Stronger America opposing JoAnne Kloppenburg

Copyright 2011 Kantar Media/CMAG


State in Focus: Wisconsin Notes

  1. Editorial, A Study in Judicial Dysfunction, N.Y. Times, Aug. 19, 2011, http://www.nytimes.com/….
  2. Mary Spicuzza & Clay Barbour, Justices Split by Politics, Personality, Wisconsin State Journal, June 30, 2011, http://host.madison.com/….
  3. Patrick Marley, Supreme Court Tensions Boil Over: Prosser Says He Was Goaded Into Insulting Chief Justice, Milwaukee Journal-Sentinel, Mar. 19, 2011, http://www.jsonline.com/….
  4. Jason Stein & Bruce Vielmetti, Prosser Admits Touching Bradley’s Neck; Says She Suffered No Harm, Milwaukee Journal-Sentinel, Aug. 26, 2011, http://www.jsonline.com/….
  5. Todd Richmond, Wis. Supreme Court Argument Leads to Investigation, Star Tribune (Minneapolis), June 27, 2011, http://www.startribune.com/….
  6. 20/20 Insight LLC, Wisconsin Registered Voters Frequency Questionnaire 2 (2011), available at http://www.justiceatstake.org/media/cms/WI_Merit_Poll_Results_734DCFE0AA5C8.pdf; American Viewpoint, Wisconsin Statewide Questionnaire (Jan. 2-3, 2008), available at http://www.justiceatstake.org/….