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Charlie Sykes: Sykes Writes

BY ANY MEANS NECESSARY

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MU Law professor Rick Esenberg looks at the assault against Justice David Prosser...

The attacks on Prosser go beyond ideology. Litigation has been brought challenging the new law and a lower court judge has temporarily halted publication of the law. That case is on its way to the state supreme court. Others may follow. “By any means necessary” has come to mean turning a supreme-court election into a referendum on a particular case.

This is, of course, a fool’s game. I follow the jurisprudence of the Wisconsin Supreme Court for a living. I have no idea how Justice Prosser will vote on challenges to the collective-bargaining law which turn, not on a judgment about the law itself, but about the way in which it was passed. While I don’t think that the legal arguments of the challengers are particularly strong, I can think of reasons why they may actually appeal to a judicial conservative. Such a judge may be inclined to strictly construe procedural limitations on legislation involving tax dollars.

But the larger problem is the scandal of making a judge’s election or defeat turn on the way he or she decides — or might decide — a particular case. In last term’s Caperton decision, the Supreme Court held that a judge whose campaign had benefitted from millions of dollars spent by the president of a company with a significant pending case may not sit on that case. In Wisconsin, we are about to see Caperton raised to a new level.

Not only are public-employee unions attempting to choose their court, they are doing so by making an electoral issue of the very matter that the court will be asked to decide. There are reasons that we don’t hold votes on pending court cases. They are rooted in due process and the rule of law. But in a world that chooses “any means necessary,” these are mere inconveniences. It is time, after all, to “get even.”

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