My column for the West Bend Daily News is online. Here you go:
In a somewhat unexpected development, Wisconsin Supreme Court Justice David Prosser has announced his retirement. He will leave the bench in July. The jostling immediately began to find a suitable replacement.
Prosser has served on the Supreme Court for 18 years. Prior to being on the court, Prosser was a private attorney, district attorney and served for 18 years in the Wisconsin Assembly — including two years as speaker of that body. He was appointed to the bench in 1998 by Gov. Tommy Thompson and was elected twice thereafter.
While Prosser has not publicly stated a reason for his resignation, it is not hard to imagine that at 73 years old and after 44 years of public service, he wants to enjoy many years of well-earned retirement. It is also not hard to imagine that the contentious political climate of the court in the past few years in which Prosser was maliciously maligned made the decision to retire an easy one.
From 1998 to 2011, Prosser served with distinction and was respected by all. When Prosser was appointed, the Wisconsin Supreme Court had a liberal majority with Prosser finding himself on the more moderate side of the bench. He was elected unopposed in 2001 with 99.53 percent of the vote.
The court maintained its liberal majority until 2008, when Justice Michael Gableman defeated liberal incumbent Justice Louis Butler. Since then, Prosser has sat on the more moderate end of the conservative majority of the court. That was enough to draw withering fire from Wisconsin liberals when Prosser ran for re-election in 2011.
Prosser became the first target for Wisconsin’s liberals rebelling against newly elected Gov. Scott Walker. Prosser’s re-election effort was in the first election after Walker came into office and signed the Act 10 reform. Since Prosser was identified with the conservative majority of the court and his defeat would swing the court back to a liberal majority that would strike down Act 10, Wisconsin’s liberals and unions pulled out all the stops to defeat Prosser. They unfairly attacked Prosser and made him a proxy for Walker.
They lost. Prosser won. It was the first defeat for Walker’s opponents in a political war that continues to rage.
Since Prosser’s re-election in 2011, Wisconsin’s voters have continued to strengthen the conservative majority on the court to five of the seven justices. Because of this, Prosser’s retirement will not shift the balance of the court. By law, Prosser’s replacement will be appointed by Walker and will not stand for election until 2020. That is a lot of time for the voters of Wisconsin to get to know Prosser’s replacement and decide whether or not he or she is worthy of election.
The process for the appointment has already begun with several people submitting their names to Walker for consideration and several more expected to do so before the May 19 deadline. Many names being floated are current judges like Wisconsin Court of Appeals judges Mark Gundrum, Thomas Hruz and Brian Hagedorn. Others are judges on lower courts like county judges Randy Kischnick and Jim Troupis.
This will be an incredibly important appointment for Walker. Wisconsin rarely fails to re-elect an incumbent Supreme Court justice with Butler being the only incumbent to lose re-election in the past 48 years. It is fairly likely that whomever Walker appoints will serve on the court until he or she is ready to retire.
Walker is entitled to appoint whomever he chooses and will surely spend an inordinate amount of time considering his choice. He will have time to deeply consider his choice. He should not appoint someone who has run for the court and the voters have already rejected. He should appoint someone who has demonstrated sound judgment. He should appoint someone who is young enough to give many years of service to the court if the voters want it. And most of all, he should appoint someone with a deeply conservative judicial philosophy.
Prosser has served the citizens of Wisconsin for more than two generations in two branches of state government, having stood for election 13 times. He deserves our gratitude and respect for his honorable service. Thank you, Justice Prosser — may you enjoy all that Wisconsin has to offer in your well-earned retirement.