On Wisconsin primary election day
Rick Esenberg doesn't care for the fact that the three challengers to incumbent Wisconsin Supreme Court Justice David Prosser — their fate will be decided today — have raised the specter of Prosser's colleague Michael Gableman, whose own electoral shenanigans have contributed mightily to the much-publicized rifts among the court.
While Prof. Esenberg enjoys relitigating the Gableman affair* as much as anyone, he just doesn't remember it very well. Esenberg seems to think that Justice Prosser and his two conservative allies in the matter, Justice Roggensack and Justice Ziegler, found that Gableman's notorious 2008 teevee ad was "misleading." They didn't.
Far from deeming the 30-second spot misleading, what they actually found is that "each statement in the advertisement is true" (¶24).
The worst the three justices would say about it was that it was "distasteful," and even then that wasn't a conclusion they could arrive at sua sponte. They had to "acknowledge" that it was distasteful. From whence the said acknowledgment was derived, we aren't told.
What is true is that all three of Prosser's challengers have invoked Gableman. One of them, Joel Winnig, has invoked him in a manner unlikely to heal whatever discord exists on the court: he's called Gableman "a cancer" who "continues to pollute" the Supreme Court.
That's not helpful, especially as collegiality on the court has been and will continue to be — up until the general election in April — an issue.
The other two, JoAnne Kloppenburg and Marla Stephens, have been more circumspect and the point of my observation to which Prof. Esenberg took up cudgels is that the Milwaukee Journal-Sentinel did a disservice to the latter candidates when it lumped them together with Winnig. And, in its illogical endorsement of Prosser, the paper continued to ignore the distinction. More on that later, perhaps.
As for today's primary, from which surely Prosser and one of the three challengers will emerge, Kloppenburg and Stephens are the two most viable candidates. They are equally experienced, capable, and temperate. Both would make fine State Supreme Court justices.
As a question of pure politics, however, Stephens's experience has been with the State public defender's office, whereas Kloppenburg is an assistant attorney general, a member of the executive branch tasked with enforcing the law as set forth by the legislature.
Gableman's advertisement demonstrated the depths to which the right-wing smear machine will stoop to defame any lawyer who has spent time ensuring the constitutional rights of criminal defendants are zealously protected. Indeed, it's getting cranked down already, with the appearance of a phony "unbiased" front group directed by a former foot soldier to the mildly deranged evangelist Pat Robertson.
Prof. Esenberg's pal the wing-nut howler Charlie Sykes, who has a 50-thousand-watt platform to help disseminate those smears, is in on the scam as well. It's a depressing reality, but Marla Stephens would face less easily surmountable obstacles than JoAnne Kloppenburg.
* And why not. It's a fascinating case from a variety of perspectives.
Plus it remains pending to this very day.