- The Washington Times - Monday, April 4, 2011

An ordinarily humdrum vote on whether to retain a Wisconsin state Supreme Court justice has exploded into a bare-knuckles referendum on Gov. Scott Walker’s recently signed law curbing the power of public-employee unions.

Wisconsin voters will decide Tuesday whether to hand another 10-year term to Justice David Prosser Jr., 68, a former Republican legislator and part of the court’s conservative majority, or replace him with the more liberal Assistant Attorney General JoAnne Kloppenburg.

How big is the race? Spending on the election is expected to top $3.5 million, most of it coming from out-of-state groups. The state’s airwaves are filled with the kinds of attack ads usually reserved for bitterly partisan contests. No less a political luminary than Sarah Palin weighed in Friday with a tweet saying, “Wisconsin, please remember to vote for Justice Prosser on April 5.”

At stake is the balance of the power on the court. With Justice Prosser on the bench, conservatives enjoy a 4-3 advantage, but a Kloppenburg victory would swing the balance in favor of the liberal wing.

How the court goes is likely to determine the fate of the state’s collective-bargaining law. State District Court Judge Maryann Sumi already has placed a hold on the law until a legal challenge can be decided, but the state’s high court is expected to have the final say.

The battle over union authority “has clearly elevated the visibility of the election,” said George Lightbourn, president of the Wisconsin Policy Research Institute. “Spring elections usually elicit a yawn; this is certainly getting a lot more than that.”

The Tea Party Express has spent $200,000 to depict Ms. Kloppenburg, 57, as a rubber stamp for the unions, but it’s Justice Prosser who has taken the worst of the heat. The liberal Greater Wisconsin Committee has plowed $1 million into ads that depict him as a pedophile-coddler, a hothead and a potty mouth.

The most controversial of the ads accuses Justice Prosser of refusing to prosecute a child-molesting priest when he served in the district attorney’s office more than 30 years ago. At the time, Mr. Prosser concluded that the state lacked sufficient evidence to win a conviction.

“A priest sexually abuses children for 30 years across Wisconsin. A mother tells DA David Prosser her two young sons were sexually assaulted. What does Prosser do? Prosser refuses to prosecute; doesn’t even ask the police to investigate,” the ad says.

The Prosser camp countered with a statement from Troy Merryfield, who along with his brother was abused by the priest, calling the ad “offensive, inaccurate and out of context.”

In an ad released Friday, Mr. Merryfield absolves Justice Prosser of any blame, and he also has released a public letter calling on Ms. Kloppenburg to disavow the ad.

“Kloppenburg’s allies want to use our pain for their own gain,” Mr. Merryfield says in the spot.

Kloppenburg campaign spokeswoman Melissa Mulliken pointed out that the campaign had nothing to do with the ad. “Like it or not, independent groups have a constitutional right to run these ads, and we don’t control them,” she said.

The Greater Wisconsin Committee weighed in with another attack ad over the weekend trumpeting the news that last year Justice Prosser called Chief Justice Shirley Abrahamson “a total b!*ch” and threatened to “destroy” her.

In this case, however, Justice Prosser already had acknowledged that he said it, and while he says he “probably overreacted,” he also insists it was “entirely warranted,” given the behavior of the court’s liberal wing.

Another ad campaign contends that “Prosser is Walker” in an attempt to link the justice to the Republican governor, whose job-performance rating has dropped since the contentious battle with the Legislature over collective bargaining.

Even so, the Milwaukee Journal Sentinel endorsed Justice Prosser, calling him “the least predictable of the current conservatives on the court” and saying that he had proved his judicial independence over the course of his tenure on the bench.

Prosser has consistently been in the middle of the court,” said the April 2 editorial. “He is a reliable judicial conservative, but he’s also independent.”

The editorial also called the Kloppenburg campaign’s efforts to equate Justice Prosser with the governor as “grossly unfair.”

No polling on the race has been released, but internal surveys reportedly show the race in a dead heat. That could be bad news for Justice Prosser, who was expected to coast to re-election until the state capital erupted over the collective-bargaining fight.

“It is deeply unfortunate that the race for Wisconsin Supreme Court has turned into a referendum on Gov. Scott Walker and his policies,” the Green Bay Press Gazette said in a March 30 editorial endorsing Ms. Kloppenburg. “We urge readers to take a long-term, critical approach to their choice in Tuesday’s election.”

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