In April of 2016, State Supreme Court Justice David Prosser announced his retirement, having served only half of his current 10-year term. This left a five-year opening on Wisconsin’s highest court, and by State law is filled by appointment by the sitting Governor.
Prosser’s announcement came only weeks after a highly competitive race was completed to fill another vacant seat left by the death of Justice Patrick Crooks. In that race, Justice Rebecca Bradley (recently appointed to the court) won a 10-year appointment to the court by the narrowest of margins, 52% to 48%. Kloppenburg received more than 925,000 votes in her unsuccessful bid.
The vacancy for any Supreme Court seat in the State of Wisconsin is filled by appointment until the end of that seat’s normal term at which point a state-wide election is held. In the meantime, an appointment is made at the sole discretion of the sitting governor, in this case Republican Governor Scott Walker. With solid partisan bonifides, Gov. Walker has followed the course of so many governors before him in choosing a replacement with similar partisan affinity. Democrats have done this, Republicans have done this, and in this case the nod went to Mr. Daniel Kelly.
Kelly’s resume stood out with a two clear voids: he had never held a position as a judge at any level, and he had never run for elected office. The appointment had all of the hallmarks of cronyism, as Kelly had worked for the Republican Party of Wisconsin as an attorney defending the now unconstitutional 2011 gerrymandering case. He also defended Gov. Walker in a case involving campaign finance violations, represented Republican Congressman Mark Green in his failed bid for Governor, and has been a donor to various Republican candidates. An experienced attorney, but hardly the kind of resume for our state’s highest court.
But with a bi-partisan Governor (see No. 3 – Good Government requires an Independent Governor), Gov. Walker missed an opportunity to truly represent the voters of the state by appointing the most recent losing candidate, Joanne Kloppenburg. The case is clear: Kloppenburg’s 900,000 votes in the month before the appointment clearly reflected her acceptance by a significant number of state residents, she was well-qualified (having served on the state court of appeals), and she was experienced (more than 25 years on the bench).
So what disqualified her from the appointment? Partisanship. Kloppenburg was supported by democrats during her past candidacies, and that weighed heavily in Gov. Walker’s decision.
As an executive of the State of Wisconsin, the governor is obligated to represent the interests of the residents of our state (all of them), and appointments to both the State Supreme Court and the Wisconsin Court of Appeals must be done objectively, without party bias and with a duty of loyalty to the residents of our state and not out of loyalty to the sitting governor’s political party. In fulfilling this loyalty, the sitting governor should appoint the candidate who participated in the most recent supreme court election.
It’s good governance, good policy, ensures proper vetting by the voters of the State of Wisconsin, and ends the misguided and divisive practice of political cronyism.