Wisconsin's GOP counties love Kloppenburg

Because #wiunion GTFOTV State-wide, is why

Contrary to Governor Scott K. Walker's absurdist claim that 'Wisconsin is divided between Madison and the rest of the State,'* Assistant Attorney General JoAnne Kloppenburg posted some of her biggest advances in Republican strongholds during the Supreme Court election on Tuesday. Walker also denies the election had anything to do with his disastrous legislative projects, which have attracted more civil lawsuits than a Chevrolet Corvair at a McDonald's drive-thru.

Meanwhile others among the more imaginative of the nut-right are attempting to forward the claim that incumbent Supreme Court Justice David Prosser was the victim of poor voter turnout in Republican-dominated counties. (They're also making utterly baseless charges of "voter fraud,"** but the Brawler can handle those.)

Then there's a bizarre item in the lefty Capital Times of all places, the less said about the better. T'aint no big deal, the piece's sources therewith assert, that the Fitz Van Walker administration just handed the Supreme Court to an army of motivated punks, thugs, slobs, and hippies,*** a spectacular political failure for the ages.

Those speluncean zanies

The only explanation I can come up with is that a feature expedition article for Spelunker's Quarterly made its way over to the Capital Times, in which local GOP mandarin Mark Jefferson spun so hard and drilled so far into Earth's crust he ran right into UW professor Howard Schweber down amongst the deepest strata of psychological denial.

It's funny because not too long ago, the local conservative intelligentsia, Journal Communications, Inc. products Charlie Sykes, Patrick McIlheran, and Rick Esenberg, were telling anybody within fearshot that incumbent Justice David Prosser would cake-walk back onto his politically conservative high chair, and so thoroughly convincing was his 55-point majority in the winter primary.

It might be recalled that on February 15, Scott Walker was just getting underway with his various assaults on the Wisconsin constitution and on the duly enacted laws of the State. In fact this space predicted that liberal success in the Supreme Court would be contingent on the degree Walker and his fellow desperadoes were inclined to test the patience of the good people of the Badger State.

Turns out them desperadoes was pretty darned inclined.

[Search this blog: CAPITOL KAOS]

The February 15, 2011 primary

Prosser won the February 15 primary against three opponents: Kloppenburg, Assistant State Public Defender Marla Stephens, and Madison attorney Joel Winnig. In terms of political disposition, I don't believe there was anything to choose among the three candidates.

(This space had also recommended JoAnne Kloppenburg as the most politically viable to go against Prosser, as the wing-nut sleaze machine would have made mince meat out of Atty. Stephens, who has devoted her career to enforcing the Bill of Rights, and that is an unpardonable offense to conservatives, as we well learned in 2008.)

Indeed, Atty. Stephens almost immediately threw her wholehearted support behind Atty. Kloppenburg. As far as I know Atty. Winnig retreated to the shadows and endorsed no candidate. Nevertheless, it seems to me sound reasoning to treat the trio's primary vote in the aggregate. And thus did Justice Prosser win the State, 55-45.

And so did Kloppenburg and her energetic supporters have their work set to that gap-closing, and they did indeed succeed in clawing back Prosser's margin. How they did it is as plain as the Arabic numerals.

Gotcher numbers right cheer

Kloppenburg pulled off the biggest flip in Milwaukee Co., which went 54-46 to Prosser in the primary — about the same as his Statewide figures — to 57-43 in favor of Kloppenburg. She couldn't have won the election without turning that margin in particular. But on account of a disappointing turnout in Milwaukee and the slender overall margin of Kloppenburg's victory, she clearly couldn't have won on that accomplishment alone, and that is where the predominantly Republican territories throughout the State came to her rescue.

Since the February primary, Kloppenburg gained in 22 of the State's 24 largest counties, only dropping a couple points in Marathon Co., which went from 51-49 Prosser to 54-46, and Sheboygan Co., where Prosser profited by one, closing out Tuesday with a 63-37 romp.

More impressively, Kloppenburg added eight, five, and nine points respectively amongst the State's three most notorious**** Republican county-enclave-bunkers: Waukesha (3),***** Washington (7), and Ozaukee (14). In addition the AAG picked up six points in Racine Co. (5), ten in Jefferson Co. (18), 11 in Fond Du Lac Co. (16), and a startling 14 points in Winnebago Co. (8), where Kloppenburg choppenburg'd Prosser's margin from 66-34 in February to 52-48.

Kloppenburg Republicans FTW: WMC, AFP, WTF, LOL

Other of the more populous Justice Prosser-won counties where JoAnne Kloppenburg produced significant headway were: Dodge (19), 11 points.; Outagamie (6), 11 points.; Kenosha (12), nine points; Walworth (17), four points; and Wood (22), three points.

That is, all over the State, not just in Madison, and especially in counties otherwise heavily dominated by Republican voters.

So anybody who you catch peddling Republican Governor Scott Walker's terrified apologetica is handing you a phony bill of goods which must be rejected outright. When that guy tweets "Mmm. Burgers" or "O hai Scotty here look a sandwich kthxbai," the implied relaxation is a façade, 'cause there's a hellhound on your trail.

* "The 'backlash' is largely a Dane County phenomenon," rejoins Marquette professor of law and local right-wing media celebrity Rick Esenberg — who apparently never wearies of being almost irretrievably incorrect — and claims, without a scintilla of evidence, that "the Kloppenburg margin is driven almost entirely by votes in a county [Dane] that had become an ideological fever swamp ... "

Sidesplitting stuff, and just so, so wrong. And the guy has been on the radio and the teevee and the op-ed pages and the internets trafficking this and related nonsense nearly continuously lately.

It shocks the conscience, truly.

** Issuing from — who else — the medium wave jackanapes C. Sykes in tandem with the ludicrous Wall Street Journal pundit J. Fund.

*** Those aren't my epithets, those are actual conservative Republican epithets, perhaps most famously "slobs," which was coined by Assistant Majority Senate Leader Glenn Grothman, the Louie Gohmert of Wisconsin politics. However the author uses them here (just in case it wasn't obvious) as terms of endearment.

**** The three were the only three counties not swept by Chief Justice Shirley Abrahamson in the last State Supreme Court election of April, 2009, and proving once and for all, as the wing-nut never tires of not telling you, that Wisconsin absolutely will not abide a liberal judge.

***** The figures in parentheses represent the rank, by all 72 Wisconsin counties, in number of total votes cast on Tues., April 5.

Wisconsin: Kloppenburg doubts your vote

JoAnne Kloppenburg, explaining her decision to seek a recount:

There are legitimate and widespread questions about the conduct of this election — most visibly in Waukesha County, but also in counties around the state.

I suppose we'll be learning more about these legitimate and widespread questions in the days to come. It might be recalled that Kloppenburg emerged early the morning of April 6 the unofficial winner of the Wisconsin Supreme Court election by a couple of hundred votes out of nearly 1.5 million cast. I don't think there's any question the incumbent, Justice David Prosser, would have called for a recount had it not been for the eventual emergence of the fact that WaukCo. failed to report 14,000-odd ballots into the unofficial totals.

Those put Justice Prosser ahead by 7,316 votes. But not for that and those, it seems highly likely Kloppenburg's legitimate and widespread questions would have remained unasked.* Apart from a couple of instances — Winnebago County and maybe Eau Claire County — the difference between the unofficial and canvassed totals throughout Wisconsin's other 71 counties is negligible. They're probably not going to change when they're counted a fourth or an eighth time. And Kloppenburg might be better off leaving Winnebago County alone. She beat down Prosser's 66% in the February 15 primary to a Scott Walker-mandate-quality 52% on April 5. (Beyond WTMJ 620's reach, there are a great many devotees of Charlie Sykes's podcasts there.)

Prosser has already charged that Kloppenburg is not so much on a mission to discover Kloppenburg votes but to discredit Prosser ones.

Kloppenburg:

With a margin this small — less than one half of one percent — the importance of every vote is magnified. And doubts about each vote are magnified as well.

That's a weird thing to say. I'm not following the logic here. Votes are important in any event. That a divided number of them is around 50% doesn't make them any more or less so. It's just an Arabic numeral.

So the assertion that they are any more or less important makes for a questionable premise. Even if one accepts it, it doesn't follow that "doubts" about every individual vote are "magnified." Indeed, Kloppenburg's strange claim cries out for Justice Prosser's response, that Atty. Kloppenburg is off on a hunt for deficient Prosser ballots.

It's difficult to conceive Kloppenburg is doubting Kloppenburg votes.

And the word "magnifying" conjures that famous image of the guy in Florida counting the pulp fibers attaching a perforation to a hanging chad. I fear this is going be an unpleasant experience for everybody.

* She declared victory.

Kloppenburg not partisan, activist, nor advocate

JoAnne Kloppenburg, the assistant attorney general who's running for the Wisconsin Supreme Court, distinguishes herself from her opponents in an interview Monday with Steven Walters:

Kloppenburg: What is a campaign issue is what [incumbent Justice David Prosser] has said in his campaign. He said that he is the conservative candidate and will be the conservative justice. His campaign said that he will complement the work of the new governor and the legislature and that of the four candidates he is best able to work with the legislature.

The court is a separate and co-equal branch of government and at times it is a check on the legislature at the same time that it might, it reviews legislation and it may support the legislature or it may not, but you don't know ahead of time. For him to telegraph how he's inclined to rule is a real problem and is a real issue in this campaign.

In addition to Justice Prosser, we have Joel Winnig who talked about how he will work to change laws.

Walters: Yes, he has a very activist view of justice.*

Kloppenburg: An activist is someone who prejudges cases, like Justice Prosser, or who says he's going to change laws, like Joel Winnig. If you want to do that, you run for the legislature, you don't run for the court. And then Marla Stephens has said she'll be an advocate for the court. I've litigated cases around the State; in fact ... as a litigator, I'm the one who advocates. The judge needs to be impartial and independent.

Kloppenburg also said of Michael Gableman's notorious 2008 child molester teevee ad, "any reasonable person would call that ad to be a lie," and the perception created by the Supreme Court's 3-3 split in the subsequent ethics case against Gableman was that it was drawn along partisan lines and that it had damaged the court's reputation.

Nevertheless Kloppenburg agreed with three of those justices, in that the case against Gableman should have moved forward rather than letting it hang out there pending without any resolution:**

I have not read the full record, and I think that the justices who would have moved the case forward would have called for a trial in order that more facts could be brought out.

In fact it's not at all clear from the State statutes that the Wisconsin Judicial Commission, which brought the complaint against Gableman, retained a legal option to present its case to a jury. For that reason the Commission announced it would suspend prosecuting its complaint in the wake of the 3-3 split, but has never joined any motion requesting that the complaint be formally dismissed.

The primary election takes place February 15, which will most likely reduce the slate of candidates to Justice Prosser and one of the three current challengers. JoAnne Kloppenburg leads the fundraising race.

Link to the full interview is here (30 min.).

* I like how reporter Walters jumps in there to fire this shot.

** The court had convened on Gableman's motion for summary judgment (dismissal) which Gableman failed to win. There it sits.

Brookfield's bursting bags-o-ballots bingo

She thinks we are all idiots. — MJS reader comment

Here they are, the famous votes of City of Brookfield, Waukesha County, Wisconsin, those 14,000 or so not included in the running Associated Press totals posted on election night, Tuesday, April 5.*

The results were four votes off compared to the final canvass, which included a total of 14,315 votes. Official canvass for Brookfield: Prosser, 10,859; Kloppenburg, 3,456. Numbers from the recount: Prosser, 10,862; Kloppenburg, 3,457.

These are the votes that Kloppenburg tried to prevent from being counted (which is puzzling as how else are you going to check the canvassed figures, or check the canvassed figures against the figures reported to the Associated Press to make sure if everybody's story squares up). Because it's a decount, obviously, and the only way Kloppenburg can hope to make up anywhere near 7,000 votes is to keep Prosser's votes from being counted, because there's not going to be any extra Kloppenburg votes. Not enough people voted for her.

So you have to decount and not recount, the inglorious approach.

The Kloppenburg objections, it has been reported, arose when it was discovered that so many Brookfieldians voted for Prosser, sacks stuffed with ballots were literally bursting at the seams. Brad Blog composed a 9K-word theorem and a D-Kos diarist had to be sedated.

Nevertheless the ballots were adjudged fit to be re- and not de-counted, and four additional ones were discovered among the 14,000-plus. Statistically notable is that 75% of them were Prosser's, which matches his score throughout the county: 74%. Not an exact match but close enough for government work, as the apt saying goes.

That is, a tiny sample but remarkably accurate, it turns out.

Lord only knows where the darkest of suspicions fomented or, more to the point, where those darkest suspicions persisted unabated by the considerably more parsimonious explanation of gross ineptitude on the part of the top ranking Waukesha County elections official.

When a tearful Waukesha County Clerk Kathy Nickolaus appeared on a local Journal Communications, Inc. teevee outlet, we believed her d-Based tale of "human error" not out of heartfelt empathy but because she'd pulled likewise egregious stunts so many times before.

And when Kloppenburg's campaign manager Melissa Mulliken filed a complaint with the Government Accountability Board alleging — with nary a scintilla of evidence — a late night meeting between Justice Prosser and Governor Scott Walker and conspiracies involving "conservative bloggers," the jig was up, and only the most credulous of the foil-hatted imagined voting fraud instead of voting farce.

So next time eschew the Roundy's ballot bags for the brand name.**

* The individual City of Brookfield tally was reported by a different WaukCo. election official to a different, local internets reporter, so the bags-o-ballots always existed, and always had been cast. They weren't stuffed into or out of the bags days after the April 5 fact.

** Roundy's aluminum foil remains on the approved vendors list, and works as well as any other to repel the brain-controlling mindwaves.

A-Rod mans the Kloppenburg conspiracy boats

Only about four days after they sunk

Local right-wing blogger Aaron Rodriguez, who can't spell JoAnne Kloppenburg either, tips the tin-foil haberdashery:*

In comes the next theory. Brian Schultz, a political scientist from Minnesota, theorizes that a lengthy recount could keep Prosser off the bench long enough so the Supreme Court rule on the law [sic] without him. Such a vote would result in a 3-3 split stopping the bill from going into effect. Kloppenburg's campaign denies that this is their intent, but why else call for a recount when the lead is insurmountable?

Oy. Where to start. There's no such person as Brian Schultz, political scientist from Minnesota. It's David A. Schultz, law professor from Minnesota (Hamline University, to be exact). While Rodriguez's item is date stamped April 22, the Wisconsin Reporter story appeared on April 21, erroneously identifying a "Brian" Schultz. Blessed Cursed with the editor's eye as we are, @gnarlytrombone, @folkbum, and myself quickly determined the error, ID'd the proper suspect, and notified the Wisconsin Reporter, which corrected the story posthaste.

All in a moment's work. You're welcome, media consuming universe.

Second, the recount will be complete by May 9 (it will be substantially complete long before then) which leaves Justice Prosser substantial time to deliberate. Thirdly, maybe the Kloppenburg campaign believes the lead is surmountable. In which case why not simply dismiss the liberals as delusional, which is what most rightblarghers do most of the time anyway; the problem is the quality of their factchecking is on roughly par with the example shown above.**

Or, y'know, it could be Kloppenburg is exercising her statutory rights.

Fourth, there is this (April 22, 7:23 a.m.).

Finally, and most importantly, there is nothing preventing Prosser and his three hard-right conservative allies from granting the secretary of administration's petition for supervisory writ and vacating Judge Sumi's injunction faster than you can gobble down a Culver's royale with cheese. But for all the recalcitrance and sneering on the right, it doesn't seem to be such an easy question, does it?

The District IV Court of Appeals in Madison, a more than capable reviewing crew, passed it over several weeks ago. What does that tell you? It tells me Judge Sumi has gotten it right, which this space has been arguing not since November 2010,** but it feels like it.

Of course this space came to that conclusion independently, so it's gratifying to be affirmed by a most conservative judge, one so conservative that even she herself was almost invariably affirmed by the most conservative justice on the Wisconsin Supreme Court.

That's like, conservative to the power of three.

Mr. Rodriguez might want to throw that tidbit into the calculus as well. Now can we put this silly conspiracy theory to bed, please?

Oh and also?

Let's call a spade a spade; voter fraud is usually a problem for Democrats ...

Really, seriously, incredibly unfortunate cliché there, Bucky.

If you knew the first thing about Milwaukee politics. Again: Oy.

h/t WisOpinion.

* Apparently this is what he gets up to when he's not suggesting that my good friend Chris Liebenthal was committing federal felonies. (That whole comments thread is worth reading. Lots of yuks there.)

** I'm sorry but the failure to check proper names is unforgivable, particularly in this case, where you're purporting to criticize a candidate for Wisconsin Supreme Court who has been campaigning actively at least since November of 2010. Not only is it unmitigatable disheveledness, it tells a reader you have no idea what you're talking about, because you couldn't possibly have been following the election until about five minutes ago, when you decided to throw together a cheap, partisan hack-piece. Life is rough, but that's how it looks and that's exactly what any conscientious reporter or editor will tell you.

You don't misspell proper names. You just don't.

Prosser: Publicly funded candidates not credible

But for the fact Prosser is himself a publicly funded candidate

Sez the incumbent conservative Supreme Court justice of his challenger, Assistant Attorney General JoAnne Kloppenburg:

[S]uddenly we have three candidates who probably wouldn't be particularly credible as candidates if they didn't have a grant.

Funny, because Prosser applied for and accepted the same public grants as Kloppenburg so that's sure a curious measure of credibility.

Incidentally there were only two of those three primary challengers who partook of Wisconsin's public campaign financing scheme. Marla Stephens, who has thrown her support behind Kloppenburg, did not so partake, thus apparently JoAnne Kloppenburg has the wholehearted endorsement of the most credible candidate of them all, and one who might presumably recognize credibility when she sees it in others.

Meanwhile local wing-nut ringmaster Charlie Sykes has reportedly deemed Kloppenburg "a complete mediocrity." If I was her, I'd put that endorsement at the top of my Facebook in 48-point boldface.

Famous last words and a bipartisan laughing stock

"Waukesha County could not save Prosser."

That would be yours truly, tapping away one recent Wednesday morning. How morbidly wrong your scribe now appears to be.

I was correct at the time, however, around the previous midnight hour when overwhelmingly Republican Waukesha County finally reported 100% [sic] of its election returns (WaukCo. had been sitting on the AP's results page at 25% for a couple of nailbiting hours).

Armed with an MS Excel file of February's primary results* and comparing in realtime how Assistant Attorney General JoAnne Kloppenburg was improving her general election score dramatically in county after Wisconsin county (every one of which — contra Scott Walker's ludicrous averments, made now even more so in the wake of a rogue election official's enormous bungle — was not Dane County) it was rapidly becoming apparent that the election would hinge on the ferocity of Kloppenburg's clobbering in Waukesha Co. (for the per se clobbering was never in doubt). Sure enough as Tuesday evening turned to Wednesday morning it had grown clear enough that Prosser's Wauk-klopbering was not severe enough to carry the State.

Forfeit a couple Hun

Kloppenburg had previously accomplished her initially required milestone event, reversing Milwaukee County from 54-46 Prosser to roughly 55-45 K-Burg, the 100% [sic] returns from Waukesha County only put Prosser ahead by a couple of hundred votes and based on what was left and Kloppenburg's rising fortunes throughout the rest of the State's most populous counties,** Election Central here reckoned Justice Prosser would quickly forfeit those couple hun, and remain behind the point of no returns, and start packing his bags for July 31.

Which is pretty much exactly what happened until Kathy Nickolaus, a WaukCo. Republican Party True Believer with an apparently lengthy and documented history of extraordinary incompetence, suddenly "discovered" circa 14K ballots from Brookfield yesterday afternoon.

Now it's gotten so bad somebody's had to retain Ben Ginsberg, Esq., of Washington, DC (favorite place in the whole wide world of the "Tea Party" crowd, courted early and often by Justice Prosser, who today happens to be the somebody that's retained Mr. Ginsberg).

Separation of utterances

You may remember one Brian Nemoir, Justice David Prosser's campaign manager, who uttered the now-infamous December 8, 2010 statement of compliance pledging Prosser's fealty to the recently-elected GOP legislative and executive branches of government.

In my view Prosser should have loudly and forcefully jettisoned Nemoir on December 9, 2010, perhaps by figuratively having him rolled over by one of Scott Walker's old federal stimulus-funded, Canadian-made Milwaukee County Transit System motorcoaches.

Instead, Prosser distanced himself over time from the pledge to varying degrees, for the longest while saying little more than, 'Those aren't the words I would have used,' which struck me as particularly unsatisfying because if there's anybody who knows how many different ways there are to say the exact same thing, it's a lawyer.

The Prosser campaign's December pledge of fealty to the Fitz Van Walker regime remained firmly affixed to the candidate's hide right up until two days before the election, when Journal Communications, Inc. ran it all by us one more time in the course of its incoherent endorsement of the politically conservative Supreme Court justice.

Waukesha ha ha

"Waukesha County" is a punchline among liberals — its mere mention invokes the equivalent velocity of eye-rolling as, for example, does "Charlie Sykes" — and even candidate Kloppenburg made a Waukesha County crack at an appearance in Shorewood (an administrative suburb of Milwaukee but in fact an integral part of Milwaukee).

Funny thing is, it's even a punchline among conservative Republicans.

During one especially candid conversation with a Dane County Republican (that would be yer proverbial hen's tooth) official from a couple of weeks ago (I don't have the link handy; I'll dig it up and post it later) Nemoir's mal-spelled renunciation of the bedrock American constitutional doctrine of separation of powers presented itself.

Quipped Justice Prosser: 'Well I guess there's just a little too much Waukesha County in Brian Nemoir.' Yep, we are knowing the feeling.

* Why the expert wag professors and lawyers insist on comparing Tuesday's results with last November's — or those of the 2008 presidential election, fer the luvva gawd — is beyond your humble correspondent's ken. The political landscape has been altered so substantively by Fitz Van Walker's sundry lawless antics that those prior contests are all but meaningless to the present one. The most directly relevant and of most recent and timely vintage of temperature-taking of the public's attitude toward the Wisconsin Supreme Court general election is, obviously, the Wis. S. Ct. primary election. Or it could be also that the local press has roughly only two of each expert wag professor and lawyer in its desk Rolodex.

More likely the latter, as The Truth is Out Here, and not necessarily anywhere within Journal Communications, Inc. County and environs.

** And a touch of intuition, the poli scientist's ancient Chinese secret.

eta: Jay Bullock debunks once again the Opéra Bouffe that is WPRI.

Oh noes: Is Kloppenburg lying about our Shark?

Alleges local right-wing perfesser of the law Rick Esenberg:

I understand the Kloppenburg campaign has been claiming that I "work for" [Wis. S. Ct. Justice David] Prosser. Not true. I have nothing to do with the Prosser campaign or the recount effort.

Prof. Rick proffers no evidence. I wonder how many layers of hearsay it would contain, if he had any. Maybe Kloppenburg got Esenberg mixed up with James Troupis, who is working for Prosser, because both Esenberg and Troupis were working for State Senate Republican majority leader Scott Fitzgerald, which you'd never know when Journal Communications, Inc. proffers Rick Esenberg as the disinterested academic observer.

Which he most certainly is not. He is a partisan political operator.

By the way, can somebody explain to me how come a Journal-Sentinel reader might have published by that organ a reference to Kloppenburg as "Kloppenpig," which subsequently receives 82 122 (as of this writing) "thumbs up," more than almost any other comment in this thread, but when another J-S reader calls the organ's right-wing calumnist Patrick McIlheran a "dick" (with good cause), the latter observation disappears with nary the opportunity to garner even one solitary "thumb up"?

Apparently you get to write your own rules in a one-newspaper town.

Not an endorsement so much as a sad reality

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.

Wisconsin SC projection still looking good

Update: Ashland County swings 'er to K-Burg

Notably, Ashland County is the former criminal-prosecuting stomping grounds of Gableman, J., and then of Sean "Starving on 170K" Duffy.

eta 1205 CST: Prosser cannot win the one remaining JeffCo precinct by enough to overcome KloJo's current lead. You heard it here first.

Note: JDP dropped nine points in JeffCo between 02/15 and 04/05.
_____________________________________________

Just call me Nate Silver, Jr.

According to the Associated Press, the Wisconsin Supreme Court votes not yet included in the tally are from the following counties:

Ashland 36-64 [eta 1030 CST 100%: 70-30 KloJo]
Crawford 42-58 [eta 1030 CST 100%: 59-41 KloJo]
Dane 31-69 [eta 1030 CST 100%: 73-27 KloJo]
Dunn 45-55 [eta 1030 CST 100%: 56-44 KloJo]
Jefferson 67-33 [eta 1030 CST: One precinct to go]
Juneau 59-41 [eta 1030 CST 100% 52-48 KloJo]
Milwaukee 54-46* [eta 1130 CST: 100% 57-43 KloJo]
Sauk 46-54 [eta 1030 CST 100%: 56-44 KloJo]
Taylor 56-44 [eta 1030 CST 100% 61-39 JDP)

All but Jefferson, Juneau, and Taylor counties — and the latter two are relatively small — are Kloppenburg country. Figures denote Prosser-Liberals from the February 15 primary. Note the asterisk beside MKE: As predicted by this here blog, KloJo would only win the Supreme Court if she could draw down Milwaukee County, which she lost in the primary by the same margin Prosser won the State.**

And indeed, Milwaukee County was the key for Atty. Kloppenburg, as she and her supporters turned it 57-43 to her favor during the general election campaign, with two of 486 precincts yet to count.

IOW I wasn't just guessing. Waukesha County could not save Prosser.

Turnout could have been better in MKE County, however, relative to the State. So a few more of you punks, thugs, and hippies*** out there yesterday and this sucker would have been in the books by now.

** And yes obviously I'm giving all of the three liberal candidates' primary vote to Kloppenburg. Some right-wing commentators (and elite DC pundit Dave Weigel, who should know better) reported the primary results as 55-25, Prosser-Kloppenburg, which is silly and pointless. All three of Prosser's challengers could rightfully be counted as one liberal bloc, as ideologically indistinguishable as they were.

*** Slobs also - sorry!

Ann Althouse's legal research 101

Ruh roh: Inexplicably popular Wisconsin blogger/reported professor of law Ann Althouse is in horrified semi-dudgeon over a remark made by State Supreme Court candidate JoAnne Kloppenburg:

At a forum at the Waukesha County Courthouse [Thursday]:

"Justice Prosser has sent a clear message that he will favor the agenda of Gov. (Scott) Walker and the Republican Legislature," Kloppenburg said. "I will apply the law to the facts of the cases before me and decide them without prejudice."

What is her basis for attributing a "clear message" like that to Prosser? If she doesn't have a solid basis for that statement — and I can't see what it is — how is that supposed to jibe with her self-image as a dutiful applicant of law to fact?

Ever the keen observer, Prof. Althouse* proceeds to link to a column by the Isthmus's Bill Lueders which clearly describes Kloppenburg's "basis" and further provides Kloppenburg's own statement:

In a press release on 12/8/2010, the Prosser Campaign promised that returning the incumbent to the bench would "[protect] the conservative judicial majority" on the Court which would then be able to "act as a common sense compliment [sic] to both the new administration and legislature."

Twice, right there in Althouse's own link, yet: "I can't see what it is."

It's old news anyway.

Pro Tip: Read own links before engaging the fauxtrage.

* That comments thread is hilarious.

Wing-nut law prof handicaps Kloppenburg

Jurisprudence alert

I now place the odds of [S. Ct. candidate JoAnne Kloppenburg] conceding without court action at less than 50/50.

Says William Jacobson. When last we encountered Prof. Jacobson, he was claiming Wisconsin Sec. of State Doug La Follette was "likely wrong" when the latter said 2011 Wisconsin Act 10 was not law (La Follette was entirely correct) and claiming the fellow in Buffalo, NY who rang up Scott Walker impersonating Tea Partying billionaire David Koch was guilty of a Wisconsin felony. Impressive track record.

Of course Jacobson doesn't bother contemplating what grounds Kloppenburg might have for a lawsuit.* That Kloppenburg will seek, through the courts, to "have the entire election thrown out" is the latest conservative Republican wet dream, popularized obviously by Journal Communications, Inc.'s marquee radio and teevee personality Charlie Sykes and his various ill-informed disciples for weeks now and most recently by our own local law-prof-to-the-wing-nuts Rick Esenberg. In former times I might have been surprised to see the latter embracing the speculative cacophony, but not any more.

Cut from the same cloth, the lot of 'em.

* The substance of his comment is to make fun of her name, which is apparently what passes for conservative legal scholarship these days.

Hamline law professor lectures Kloppenburg

In making this wild and baseless claim:

An expert in legal politics says AAG JoAnne Kloppenburg may have launched a recount of votes from the April 5 State Supreme Court race to ultimately sway the outcome of a legal challenge to Gov. Scott Walker's union reform efforts. David A. Schultz, a law professor at Hamline University in Minnesota, said Kloppenburg's recount in her contest against Justice David Prosser could be an attempt to stall matters until crucial issues come before the court. The next justice is scheduled to be sworn in August 1, but a protracted legal dispute could delay the winner from taking office.

Naturally the wing-nut elements, led as usual by Charlie Sykes, are citing to this thoroughly unsupported suggestion approvingly.

Because ridiculous conspiracy theories are their stock in trade and their foolishness knows no physical or psychological boundaries.

Only one very large problem: In 2001 Justice Prosser was elected to a 10-year term, which doesn't expire until July 31, 2011. In other words, Justice Prosser already "took office" ten years ago. Apparently the MN "expert in legal politics" is not aware Justice Prosser is an incumbent, a sitting member of the court that has been working and hearing oral arguments throughout the month of April. There is one petition before the court related to Gov. Scott Walker's budget bill shenanigans, filed on April 7, asking the court to invalidate the temporary restraining order issued by Judge Maryann Sumi.*

There is no law or rule that I'm aware of preventing the court from accepting the petition this afternoon, together with Justice Prosser's participation.** Yet here is a professor of law suggesting that an assistant attorney general is deliberately stalling the process of litigation through the appellate courts. It's a serious charge, made without a scintilla of evidence, and is especially irresponsible issuing from a professor of law. On the other hand, it is Hamline University.

That's Mike Gableman's alma mater.

* There is/was another that was kicked upstairs by the District IV Court of Appeals, but it was filed on behalf of Secretary of State Doug La Follette by the Department of Justice, whose ability to represent the interests of the named plaintiff has been questioned to the point of ineffective assistance of counsel thanks to the DoJ's performance in the aforementioned Dane County circuit court.

** Then-State assemblyman Prosser in 1983 filed an amicus brief in one of the cases that would play a defining role*** in the Supreme Court's review of Judge Sumi's disposition, but the brief is not directly related to the central question of whether the judicial branch may undertake to enforce constitutional and statutory provisions against the internal [sic] operations of the legislative branch.

Now that might be an interesting tidbit for a law professor to point out, but in fact it was this blog that did, nearly a month ago. We've since navigated the microfiche machine to obtain one of about three extant copies of the brief in the entire State of Wisconsin. So now you know just where to come for all yer law perfessin' requirements.

*** It's also manifestly unavailing to the Fitz Van Walker cause, IMO.

Stop the turd. Now I am the turd?

Good grief:

Incumbent Wisconsin Supreme Court Justice David Prosser criticized comments made by people on challenger Assistant Attorney General JoAnne Kloppenburg's Facebook page. Prosser quoted one of the Facebook comments: "Stop the turd, vote Kloppenburg." "Now, am I the turd?" Prosser said.*

Shortly after the debate, Kloppenburg posted to Twitter:

Be sure to suggest our Facebook page to your friends ...

Touché.

The election is April 5.

* I'm thinking the turd was Scott Walker.

Speaking of JRN's marquee radio personality

Happy birthday Chuckles

Skimming the iniquitous den that is the Milwaukee Journal-Sentinel's comments section, one finds innumerable references by the "Family Values" conservative Republican set to JoAnne Kloppenburg's alleged physical resemblance to that of a character in The Wizard of Oz, as if that had anything to do with anything at all, even if it were the case.

You know where those come from, right?

Good guess:

Its that time. Joanne Kloppenburg has formally announced the launch of the flying monkeys.

That was on April 6, and JRN's Charlie Sykes hasn't let up since:

Kloppenburg calls forstate-funded flying monkeys...to be released throughout state... Message to Waukesha... "...and your little dog too!"

That's from yesterday. "Blogfather" Charlie Sykes is 12 years old.

Got your so-called frivolousness right here

Justice David Prosser's attorney, the Republican-for-hire James Troupis, claims a potential recount requested by the campaign of Supreme Court challenger JoAnne Kloppenburg would be "frivolous."

As noted at this space previously (and which is surely common knowledge by now), there is a Wisconsin statute that explicitly addresses the current situation, where the difference between Prosser's and Kloppenburg's vote totals is 0.488603046756558%:

If the difference between the votes cast for the leading candidate and those cast for the petitioner is not more than 0.5% of the total votes cast for the office, the petitioner is not required to pay a fee. — Wis. Stat. § 9.01(1)(ag)1.

So how in the world could something expressly contemplated and authorized by State statute possibly be frivolous? Answer: It cannot.

By definition.

Personally I believe a recount would be ultimately unavailing to Kloppenburg and moreover destructive to the general political cause, but one thing a recount most certainly would not be is frivolous (which is a legal term of art and as such I would expect its legal understanding to inhere when the term is uttered by a lawyer).

Furthermore the irony of Counselor Troupis's charge is explosive.

His lawsuit filed in Oconto County, which purported to seek a remedy that would stand in clear violation of separation of powers doctrine, in actuality sought obiter dicta from the court which counsel could then provide to Senate GOP leader Scott Fitzgerald as justifying the arrest by State law enforcement officials of 14 Democratic Senators, including one who was at the time six months pregnant.

Despite receiving neither the remedy nor the clear dicta, plaintiff's counsel then pretended that they did obtain the latter, and set to preparing and presenting to Fitzgerald the said legal memorandum — the advice in which even Fitz himself later described as "comical"* — on that questionable basis. All of which describes a situation that, for all practical purposes, is an example of frivolousness incarnate.

Compounding that irony is the fact that Marquette law professor Rick Esenberg, Troupis's co-counsel in the Oconto County matter, was recently featured on Wisconsin Public Radio crying about Dane County Circuit Judge Maryann Sumi's alleged violation of — wait for it — separation of powers doctrine. I have no idea why this is, but the only place I ever read about any of these things is on this here blog.

Joy Cardin never calls me (despite WPR's election website frequently linking here, for which I am grateful, as it generates loads of views).

P.S. Your humble scribe won't claim by his presence there to lend WPR in turn added cachet, but I gotta admit it's darnedly tempting.

* Proving even to this observer at least a tenuous grasp on reality.

Shorter Kloppenburgs

Quick impressions of candidate for Wisconsin Supreme Court JoAnne Kloppenburg's interview with the Appleton Post-Crescent yesterday.

Themes: David Prosser is an unreconstructed partisan / Michael Gableman / rules for judicial recusal. Prosser has failed to lead the court out of internecine turmoil. Kloppenburg's record is 6-1 (with one pending) in Supreme Court arguments. Reminds us Wisconsin Manufacturers & Commerce- and Wisconsin Realtors Association-drafted rules for recusal were adopted verbatim by Prosser et al. Response to viewer question: Hasn't got in touch with her boss, Attorney General J.B. Van Hollen, for endorsement yet (doesn't have his personal phone number). Doesn't care who Prosser contributes to or who supports him, Kloppenburg's perceptions of Prosser are formed from his own statements. In re ongoing political uproar out of Madison: Voters don't want me to prejudge current events at the Capitol, but some statements Prosser has made indicate his prejudgment. Quoting Prosser: "You can take the man out of the legislature, but you can't take the legislature out of the man." Judges shouldn't rule in fear of being swept from office by third-party special interest groups (citing Iowa's recent experience over SS marriage).

Video here (approx 40 min).

And, from last week, a candidates' forum in Waukesha (audio only) with Justice Prosser on hand to offer rebuttals to some of the above.

Wisconsin Supreme Court: As I was saying

It was highly irresponsible for the Milwaukee Journal-Sentinel to have portrayed Supreme Court candidates Marla Stephens and JoAnne Kloppenburg as parties to the inflammatory denunciations of Justice Michael Gableman articulated by a third candidate, Joel Winnig.

There are impressionable, easily duped minds among us who swallowed the Journal-Sentinel's negligently misleading headline hook, line, and sinker including — not at all surprisingly — top Wisconsin conservative blogger Boots (or is he Sabers?) who refers to all three Supreme Court challengers collectively as "jokers" and "tools" that all collectively put forth "stupid and irresponsible BS."*

Both Kloppenburg and Stephens have raised the Gableman case in a legitimate and substantive manner, and the ongoing controversy is relevant because the incumbent Justice David Prosser joined an opinion (or "writing," as it has come to be known) exonerating Gableman from any wrongdoing based on an arguably misguided take on the relationship between the First Amendment and accepted principles of ethical conduct among members of the judiciary.

Winnig's comments on the other hand are easily distinguishable, whereas Stephens's and Kloppenburg's disagreements with the "writing" are no different than might be their views of any other prior decision of the court. The Journal-Sentinel should in fairness clarify these distinctions, if only for the benefit of the impressionable right.

* I assume that stands for "bullshit" and not "Boots & Sabers."

For it was I, Sykes, who won the Supreme Court

At least that's what the medium wave howler is claiming here.*

Sad, in a way.

So you could argue that Kloppenburg lost the election not in Waukesha, but in Milwaukee County, which failed to deliver her the votes she needed. — JRN marquee talent Charlie Sykes

I guess you could, as that's what I've been saying since February 16.

What is sad, though, is Sykes's mincing triumphalism, because what he doesn't tell you is that if his special theory has validity, then the dissembling shouter managed to impede Justice Prosser's progress in almost every single one of the Wisconsin counties he mentions, by:

Milwaukee: 11 points
Racine: 6 points
Waukesha: 8 points
Washington: 5 points
Ozaukee: 9 points
Dodge: 11 points
Fond Du Lac: 11 points
Jefferson: 10 points
Walworth: 4 points

That's how much Prosser conceded, between the general election on April 5 and the primary election on February 15, which is when Sykes commenced his 50K-watt campaign of ludicrous propagandas.

The only place which Charlie Sykes mentions that Justice Prosser didn't lose major ground during his springtime political campaign was Sheboygan County, where the politically conservative jurisprude held 'er to 63%. Journal Communications, Inc. counts ShebCo. as being within its "listening area," but maybe not so much after all.

And it's noteworthy that Sykes doesn't mention Kenosha County, equally within Sykes's 620 kHz calls-to-prayer, where Kloppenburg gained so many points (nine), she managed to wrest Prosser's victory in the primary clean from his learned hands (he went from 56% to 47%). Apparently that's a mite too inconvenient for Charlie Sykes's theory which, as noted above, is a "special" and not "general" theory.

"Special," as in, just like the theory's fabricator. Besides, ShebCo. has (mercifully) a pantload of alternatives to Sykes, as it's a wee bit closer to the considerable Green Bay market than it is to Milwaukee.

Sykes's ultimately self-defeating sense of false pride (Jeez, doesn't anybody around here read the Book of Proverbs anymore?) is part of the narrative that insists Scott Walker is super-beloved and Prosser's unimpressive 0.488603046756558% margin of victory is a resounding validation of all things conservative, Republican, and possibly even Ayn Randian (except for that bit about abortion. Oh, and Proverbs).

Charlie Sykes's right-hand wing-nut** media compadre and widely respected academic heavyweight Richard Esenberg has — naturally — taken to its weak peddling as well, albeit even less coherently. Prof. "Shark" dismisses a certain argument as "not being helpful" in spite of neither being able to bring himself to link to the argument's source nor even come close to explaining why exactly it is "not helpful."

I mean, obviously, it's not helpful to him. We knew that ages ago.

* Although the poor sod can't even manage to get his raw numbers correct. AAG JoAnne Kloppenburg won 8296 votes in Ozaukee County, not 8246 (and Charlie Sykes actually lives in Ozaukee County).

** Or is it right-wing hand-nut.

P.S. Charlie Sykes didn't win a Pulitzer Prize again today.

eta: Jay Bullock on Sykes's baseless self-aggrandizement habit.

Prosser assails Kloppenburg's statutory rights

Wisconsin Supreme Court Justice David Prosser has set up a classy website here, to criticize the challenger to his seat, JoAnne Kloppenburg, for exercising her statutory right to a Statewide recount of April 5's Supreme Court ballots. Yes, you read that correctly.

Justice Prosser terms Kloppenburg exercising that right a "disaster."

So are they justices or politicians? More the latter, don't you think?

(Neither of them are very good politicians, if you ask me.)