Supreme Court Candidates Debate: Testy Talk About Collegiality

Four thoughts in the aftermath of the debate Monday evening at Eckstein Hall between incumbent Wisconsin Supreme Court Justice David Prosser and his challenger in the April 5 election, Assistant Attorney General JoAnne Kloppenburg:

First: As a news reporter, I’ve never covered a race for a Supreme Court seat. I was struck by how awkward the debate is, compared to the plain old partisan races I’ve covered fairly often. It’s similar to confirmation hearings for U.S. Supreme Court justices: Basically, if you have something substantial to say, you can’t and shouldn’t say it. You can’t say what you would do with any potential upcoming issues. Frequently, you can’t (or won’t) comment on past actions, although Prosser did talk about some past cases and said he was glad to run on his record. So you end up standing there, saying repeatedly that you are independent and nonpartisan and will judge each case fairly and with an open mind. Which both Kloppenburg and Prosser did. But it is very clear that Prosser is being backed by conservatives and Republican-oriented groups and Kloppenburg is being backed by liberals and Democratic-leaning groups. Do all these people and groups know something the candidates don’t know? Are they wrong? Or is this a curious exercise in avoiding talking about the issues, even though everyone seems to know what you’d say if you did?

Two: I’ve been at some testy and tense debates and joint appearances by candidates in various races, but this one was way up the list, if it wasn’t the champion on my personal list.

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Scattered Thoughts

As we are all aware, these past couple of weeks have been a time of historic change for the state of Wisconsin.  The debate surrounding the changes proposed by Governor Walker in the Budget Repair Bill has been amazing for me to witness.  Rather than give my personal opinions regarding the content of the bill, I thought I would share of the ancillary thoughts that have run through my head because of the current political times.

First, these changes have occurred during a great time in my life.  I consider myself lucky to be able to observe such historic legislative action while enrolled here at Marquette.  We as law students are unique within the political discussion because we have access to such great legal minds.  For example, two weeks ago Professor Paul Secunda spoke to students about the then-proposed Budget Repair Bill.  Professor Secunda reserved time to answer very well thought-out and informed student questions regarding things like: the potential legal avenues of those opposed to the bill, the effect that Wisconsin’s labor reforms could have on a national level, and what specific items within the bill actually mean to citizens and public employees within the state. 

The presentation by Professor Secunda is just one of the many opportunities we have as legal scholars to advance our personal knowledge on very important political issues.  This Marquette University Faculty Blog has provided a forum for other Professors and local attorneys to provide their opinions and thoughts regarding the reform.  These forums provide an outlet for legal thinkers as well as a resource for students like me.

Ultimately, while the bill has been passed (although currently subject to a temporary restraining order) by the Legislature, discussions regarding the changes have only just begun.  As a participant in this emotional and heated discussion, I consider myself lucky to have been in law school during these changes.

Second, the changes to public sector labor law have made me think back to some of the statements made by Justice Antonin Scalia during his presentation at Marquette in the fall. 

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The Unitary Governor

“The executive power shall be vested in a governor” proclaims Article V, Section 1 of the Wisconsin Constitution. Over the course of the past two decades, there has been a tremendous amount of legal scholarship about the “unitary executive theory,” based on the executive vesting clause of Article 3, Section 1 of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.” Thus far, this scholarship and its accompanying cases (see especially Justice Scalia’s dissent in Morrison v. Olson) has focused entirely on the presidency, but the legal principles are virtually identical.

All of this bears on two recent news stories: first, regarding Governor Walker’s bill requiring executive review of administrative rulemaking, and second, the budget repair bill’s adjustment of several positions in the executive branch from civil service to gubernatorial appointment.  The February bill on administrative rules requires that all regulations from state agencies be reviewed by the governor’s office before entering into force. Democrats opposed this bill on the grounds that it violates the “separation of powers,” the proper relationship between the executive, legislative, and judicial branches. State Senator Lena Taylor objected that the bill “breaks down the wall of independence around independent agencies.”  More recently, this week Democrats slammed the budget repair bill’s reclassification of several positions from civil service to gubernatorial appointment.

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