MADISON — When voters choose a Supreme Court justice April 5, everything from the future of collective bargaining powers to control of state government could be at stake.

David Prosser a member of the court since 1998, is vying with Assistant Attorney General JoAnne Kloppenburg for a 10-year term on the bench.

Until recently, the race had garnered little attention. But it has become the newest battleground for the fight over collective bargaining and the budget that has developed between, on one side, Gov. Scott Walker and the GOP legislative majority, and on the other, labor unions and Democrats.

“I wouldn’t have really thought about the Supreme Court elections if not for being here in Madison, seeing the JoAnne Kloppenburg literature and seeing people fired up about how important this election is,” community organizer Blanca Martin said outside the Capitol on March 11, where she was protesting. “Whether or not the budget repair bill passed, that issue alone would make me want to vote.”

Political and legal experts say the judicial election results could have a long-lasting impact on the state.

Officially, the judicial race is non-partisan, and both candidates have vowed political impartiality.

But Prosser, a former Republican Assembly speaker, often aligns himself with the court’s 4-3 conservative majority. He was appointed by Republican Gov. Tommy Thompson in 1998 and was elected to a full term in 2001.

Kloppenburg appears to be getting significant support from union members and Democratic constituencies.

Some of Prosser’s critics contend a Kloppenburg win could propel the court in a more liberal direction, just as several critical issues are expected to come before the court.

Lawmakers are due to redraw Congressional and legislative district lines this year, based on the results of the 2010 Census, and any legal challenges could wind their way up to the high court.

The same could be true for challenges involving the recall efforts against 16 state senators, eight Democrats and eight Republicans.

Recall elections easily could swing the balance of power in the state Senate, where Republicans hold a slim 19-14 majority.

And there is the possibility that the ongoing legal battles over the recent passage of Walker’s budget repair bill, which eliminates some collective bargaining powers for about 300,000 state and local public employees, could reach the Supreme Court.

But it’s possible that battle may be resolved before either Prosser’s or Kloppenburg’s term begins Aug. 1.

“It’s very clear it (the budget repair bill) could make its way pretty soon to the Supreme Court,” University of Wisconsin-Madison political scientist David Canon said.

Beyond that, the Supreme Court could play a role in deciding any number of cases, such as a homicide case already in the legal system, in which Dale and Leilani Neumann said they relied upon their religious beliefs, not medical intervention, to treat their daughter.

Madeline “Kara” Neumann died March 23, 2008, from complications from undiagnosed diabetes. The Neumanns were convicted of second-degree reckless homicide but have sought new trials and could appeal their convictions.

No one can predict for sure, however, how Kloppenburg is likely to view these or other issues.

A Wisconsin assistant attorney general since 1989, Kloppenburg has never been a judge.

“Prosser has a record of how he has written decisions, but with

(Kloppenburg) it’s not clear (how she will rule) because she has not been a judge so she has no history on writing opinions,” said Janine Geske, a former Wisconsin Supreme Court justice who now teaches law at Marquette University. “There is no way to predict what it (the Supreme Court makeup) may finally look like.”

Prosser easily won the Feb. 15 primary, with 55 percent of the vote.

With 25 percent, Kloppenburg took a distant second to win a spot in the general election.

UW-Madison political scientist Ken Mayer, however, warned against drawing the conclusion that Prosser will win, and win easily.

The political climate “could have a significant effect because turnout in spring elections will be low, nothing approaching 70 percent you will see in presidential elections,” Mayer said. “And when you have a highly motivated group, they’re more likely to affect these elections.

My guess is unions will be very organized to turn out large numbers of people. It is much more likely to be a much closer race now.”

Howard Schweber, who teaches law at UW-Madison, doesn’t know if that will change the election results.

“There is a great deal of attention being paid to the election because people expect challenges to Gov. Walker’s bills to go to the Supreme Court and therefore the outcome is directly related to the success or failure of Gov. Walker’s efforts,” Schweber said. “I’m not certain Prosser will lose, though.”

Kloppenburg and Prosser are scheduled to meet in a series of debates this week.


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