I have not commented before about the Wisconsin Supreme Court’s “decision” in the John Doe II case — I am still trying to pull together all my thoughts about it. But this morning I must register my astonishment at the excerpts of the letter to attorneys written by Justice Prosser revealed in this Wisconsin Public Radio news story.
He claims that had he recused himself, in a way that would have satisfied the U.S. Supreme Court holding in Caperton v. A.T. Massey Coal Co. (556 U.S. 868) (2009), the recusal would have undermined Supreme Court elections in the state of Wisconsin. Caperton held that the Due Process clause of the Fourteenth Amendment requires a judge to recuse himself not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when “extreme facts” create a “probability of bias.”
Prosser apparently claims that Caperton doesn’t apply in Wisconsin, because Wisconsin Supreme Court rules on recusal, written by Wisconsin Manufacturers and Commerce do not require recusal based on money spent by independent groups. Conveniently, those rules were put in place by the four justices who are the biggest recipients of the “independent groups'” largesse, and took effect just in time for the closest Supreme Court election in Wisconsin’s history, between Justice Prosser and Joanne Kloppenburg.
Justice Prosser was supported in that election, in 2011, by Wisconsin Manufacturers and Commerce and Wisconsin Club for Growth, who spent, respectively, $1.1 million and over $500,000, to secure his election. Both WMC and WCfG were prominently linked to the Walker campaign in the recall election in 2012; the John Doe II investigation focused on coordination between those organizations and the Walker campaign. If receipt of more than $1.6 million in electoral support, in an election decide by less than 0.5 percent of the vote, from organizations under investigation does not constitute “extreme facts,” I don’t know what would for Justice Prosser.
Justice Prosser’s recusal would not “undermine Supreme Court elections” in the State of Wisconsin. Had and Justice Gableman had the moral strength to recuse themselves, they would have gone far toward re-establishing the trust that Wisconsin citizens used to have in their Supreme Court. They went the other way, however.
Justice Prosser claims that, “The people of Wisconsin knew who they were voting for. The special prosecutor should be expected to live with the results.”
Actually, no. The people of Wisconsin voted for an individual, not someone beholden to special interests. David Prosser did not run for election saying he would put the interests of WMC and Wisconsin Club for Growth above the interests of Wisconsin citizens in clean government.
Back in 2011, no one in Wisconsin expected the Supreme Court conservatives to demonstrate such willingness to destroy the public’s faith in impartial justice. We know better now, of course. We have learned the hard way.