Wisconsin Chief Justice Counters GOP Gambit with U.S. Constitution

By Dominique Paul Noth

When most of us lose an argument, or an election, there is a tendency to lash out in spite--and an equal tendency on the part of media to expect that any lawsuit after losing an election will just be sour grapes.

Wisconsin just witnessed a prime example of expecting the petty and being outmaneuvered. A novice political class in power that lives on the petty and a media that expects pettiness now look ridiculously naïve. They forgot that Shirley Abrahamson is a principled shrewd cookie who relies on the slow pace of the courts rather than pumped up pressure of legislative politicians.

No matter which party was in power over the last 40 years, Abrahamson brought a devotion to judicial temperament even as the Wisconsin Supreme Court around her got nastier. She never indulged as her opponents do in public tongue-lashing or throttling, and she wasn't spiteful, just a shrewd stubborn chess player executing her backup plan. Maybe that's what really drives them crazy.

Both the GOP and much of the media tried to paint her lawsuit filed in federal district court a day after a statewide ballot decision on April 7 as the desperate act of a sore loser caught in a rigged partisan game, rather than seeing how long it had been in the works, what it really was and how on pure grounds of constitutional rights it is likely to succeed eventually through various appeals, according to practically every legal expert I interviewed. Even liberal commentators presumed the April 7 chief justice vote was a victory for the GOP--until Shirley struck. And she may have struck deliberately before injury to freeze action against her as she works her case through the courts.

I asked a D.C.-based lawyer who has represented corporate clients before the U.S. Supreme Court for his opinion and he emailed me: "I've long ago given up on guessing how federal courts will rule, but Abrahamson is on such firm and gently delivered constitutional footing that I suspect she will keep the chief justice title long after your Scott Walker has departed from the political stage." Her current term expires in July of 2019.

I contacted Madison-based lawyers on all sides, who had won cases in state and federal courts, and they pronounced the Abrahamson argument to retain her title until the end of her term as "strong and finely argued," "a veteran jurist who hasn't lost a step," "solid case," and "more than convincing on legal principles" and that last one from a lawyer who has often argued the other side of her decisions.

They also noted she had brought heavyweights into the battle. The lawsuit was filed April 8 on her behalf by the D.C. based Center for Constitutional Litigation and its president, Robert Peck, one of the nation's most experienced litigators and legal scholars on key issues.

Several who don't agree with her politically praised the acumen of the argument and now say they had warned the GOP and its Wisconsin Manufacturers and Commerce legal strategists to stay far away from "even touching Shirley's reputation."

"When they sold this to other Republicans as a chance to dump Shirley, I begged them to reconsider," said the lawyer who regularly works for WMC clients and the state GOP. "She is going to kill them if there is a hint of retribution in their actions."

To a limited degree the lawyer succeeded; there is no "do it now" language in the resolution, which also never names her and never openly told voters it would affect her status. But that has let ferocious right-wingers complain that she is not obeying them with her lawsuit.

During the campaign the GOP thought they would beat her down by turning loose the big money ad buyers to falsely equate seniority (which all US institutions use) with royalty and even a cartoon crown to suggest promotion by experience is anti-democratic. That was the purpose of the $600,000 from Wisconsin Manufacturers and Commerce needed to squeak the resolution through by 431,954 votes out of 824,295 cast statewide.

Her lawsuit argues that, while avoiding telling voters the real target in a nifty bit of linguistic evasion, several of the named defendants among other public officials and legislative analysts had openly speculated that the "amendment will apply retroactively and be implemented immediately against Abrahamson."

Her federal suit seeks to halt any such effort as a violation of the U.S. Constitution and asked not only for injunctive relief but a temporary restraining order (now denied because the law is not yet in force) to prevent other justices from trying to feather their nest. This looks like another legal maneuver though characterized by the right-wing and the readily duped media as sour grapes.

Two veteran journalists came up with the same "Wow!" about hearing the details and wondering why so many of their colleagues hadn't even read her lawsuit before attacking it. "She takes no prisoners, does she?" they said in almost exactly the same words and tone.

I then shared with several notable litigators in and out of the state the typical media editorial that the suit was simply a loser's last-minute spite. "BS" said one. "This was in the work for months if not years. She must have been lying low a long time getting this ready."

"This is a good case," another wrote back. "Tell the JS to stick to reporting, not political commentary. They're out of their league."

"Why should she give up?" said Atty. Lester Pines, a notable successful lawyer on a range of criminal and civic issues. "This amendment was directed at her personally. It had nothing to do with good public policy."

Others argued that she moved quickly so as to get a quick blockage in federal district court and gather evidence to prove injury, and if the GOP attempts to appoint a new chief justice that could be the evidence she needs, lawyers argued. Sure enough, the federal court blocked her initial move within hours saying she had to wait for injury and allow new evidence to gather. Which keeps her central case alive and the next move on the chess board difficult for the state GOP.

Misreading the purpose and the unfolding maneuvers, similar hate-Shirley reactions came when TV and radio audiences, mainly of WTMJ, suggested bluntly in comments and phone calls after news stories and diatribes that at age 81 in the face of the voters, Abrahamson should just "roll over and die" (direct quote) and accept the will of the people.

"They apparently don't live in the real America," one state judge told me, hardly a liberal. "If something the people vote in proves an error, if something in the state constitution is ruled unconstitutional"--the judge could have been referring to the recent US dismissal of Wisconsin's marriage amendment--"they may not like being overruled by the constitution but it is the law."

Abrahamson is not defying the voters but the ambiguity of the amendment. Her lawsuit seeking federal injunctive relief is a calculated response to a threat that was hovering since 2013 over two legislative sessions before going to the voters without ever officially circling her name or discussing the timing of any change. That allowed the GOP to publicly argue that it was not about Shirley, but privately tell big business supporters that it would take her down.

Several legislators cited state Sen. Tom Tiffany as one example of a politician assuring the press and centrist lobbying groups it was not about Shirley while assuring WMC supporters it definitely was. And sure enough he has continued that game, flying in the face of the historical record that reveals voters in 2009 knew darn well they were re-electing a chief justice until 2019.

Even their own right-wing commentators took their leaders to task for not admitting this was the "Get Shirley" amendment. Now the GOP has to admit to their bankroll they have failed to even dent Shirley. In any event she has a full voting power on the court into July of 2019. The balance of power has not shifted at all with the easy re-election of Justice Ann Walsh Bradley and even if Abrahamson doesn't win her case as many think she will, she has made it clear that, come hell or high water, she ain't going anywhere.

Whatever system Abrahamson herself may prefer is not the aim of her case. Wisconsin has chosen its chief justice from both parties over 126 years based on continuous longevity in office. Other states do. Others don't. Many now appoint rather than elect justices. In Wisconsin April 7 the voters changed the process so that every two years the sitting justices pick a chief among themselves. That doesn't change the conservative-liberal tilt of the court but it does muddy collegiality rather than improve it as voters were told.

The chief justice is paid $8,000 more a year as hardly an honorary title. She is administrative head of the entire complicated state court system, working with court director, staff, chief judges and administrators for continuity of programs and methods. Hardly something likely to be enhanced with a revolving door of chief justices, unless you are a special interest frequently in court like big businesses looking to disrupt any opposition.

The chief justice promotes volunteers, public assistance for those without attorney, interpreters, family and children courts' public understanding, education programs and legislative-judicial seminars plus encouraging outreach. Even those ticked off by her progressive beliefs acknowledge that Abrahamson has provided a broad experienced grasp of the duties and future needs.

Rotating the fate of justice among conservatives assumes their politics make them collegial and it sure hasn't. Law clerks current and former have stories to tell. The WMC's chosen heir as chief justice, Patricia Roggensack, "can be a more difficult piece of work than Shirley ever was," one told me. Michael Gableman is openly scoffed at by his colleagues as a lesser intellectual who needs "simple things explained to him at length." David Prosser is seen as an unpredictable gadfly "bouncing off the walls of procedure." And so forth.

"Be careful what you wish for," one Democratic legislator laughed. "They may soon come to admire Shirley's ability to wrangle rattlesnakes."

And her ability to seize on legal holes in regulations and publicity postures as she just did. Such as the continuing argument that Wisconsin voters didn't know what they were voting for back in April 2009.

As the lawsuit details with evidence, "Wisconsin's Chief" was a central statement in every piece of campaign literature and even in ads run on conservative talk radio. "Fair. Independent. Wisconsin's Chief" was the slogan and voters would have to be living in a cave to not know they were choosing the chief justice for the next 10 years.

Her campaign committee was called the "Chief Justice Shirley Abrahamson Re-election Committee," and the tagline "Wisconsin's Chief" was everywhere.

"It was clear that a vote for her was a vote to continue her in the office of chief justice," the lawsuit details. "She campaigned extensively and expended substantial resources for re-election on that theme of continuity in the chief justice position and would not have sought re-election if there was a question she would not continue in that role."

This is only one basis for the argument that taking away her title would violate Fourth Amendment protections that a state legislature or even state voters can't remove.

Any trickery on the voters happened April 7 when her name was not on the ballot and the voters were sold a mixed bill of goods" but not in 2009. It is the voters' own fault, some say, if they are ignorant or deluded, but how far should the sheep let themselves be sheared? Naming it the Get Shirley amendment might have increased support by 10,000 votes in our current political gridlock but it could have also aroused 50,000 votes in opposition to such rank ageism against the state's most admired jurist, once in contention with Ruth Bader Ginsburg for a seat on the US Supreme Court, according to Bill Clinton historians. In fact her win for a fourth term in 2009 earned huzzahs for Wisconsin across the country.

The closeness of the vote suggests many did catch on, but many didn't. It still took $12 in ad expenditure for every winning vote to succeed against grassroots efforts for a no vote. Many voters told me they were unaware of the implications of voting yes ("I thought it was just good housekeeping," one told me.)

$12 for each vote to concoct a winning margin with puny turnout? Hardly a come-on for taxpayers to give more money to WMC projects. And this case also confirms why JS PolitiFacts with all those easy pickings out there remains a journalistic laughingstock.

PolitiFacts called it mostly false when Abrahamson supporters said a vote yes would "take the choice of chief justice away from the people" because the term "chief justice" in never on the ballot and, writer Tom Kertscher argued, "there's no way to know how many (voters) felt that way (in 2009), since there was no actual vote on who would be chief."

But if he had dipped into the literature of the times and even the newspaper's own archives as the astute Abrahamson did for her lawsuit, the phrase Wisconsin's Chief or chief justice haunted every appearance or reference. It's an insult to say the voters didn't notice, though there is much anecdotal evidence that on April 7 many did not even think they were voting to dump Shirley.

There are now two roadblocks to instant change for the GOP. One has the first name Shirley. The other is the US Constitution.

"They knew this lawsuit was coming and it would be formidable--how could they not?" noted Atty. Ann S. Jacobs, president of the Wisconsin Association of Justice whose debate on these issues with Rick Esenberg for the extreme right is still available on WisconsinEye. Esenberg echoed that "who knew they were voting for chief justice" argument now debunked in the lawsuit.

Going to court to uphold basic US constitutional principles is an unusual change of behavior in Wisconsin politics. But it sure helps the public identify who the real chief justice is.

This article was originally published at Dom's Domain Politics