In announcing his plans to retire in mid-term from the Wisconsin Supreme Court, Justice David Prosser didn’t state a reason but did make a request.
In his letter to Gov. Scott Walker, Prosser urged that his successor: a) be committed to the judiciary and b) grasp that “promoting the reputation and integrity of the institution is more important than the promotion of any individual.”
Think about that a moment. It’s hard to imagine a lower bar for state constitutional office. Yet it’s a bar that some members of Wisconsin’s fractured court apparently think some of their colleagues fail to meet. Prosser, whom the Judicial Commission unsuccessfully sought to discipline for grabbing a fellow justice by the neck, gets much of the blame for the court’s high level of dysfunction even as he sees himself as the victim in the machinations of others. (Prosser did not respond to an interview request.)
A former GOP state Assembly speaker and 18-year court veteran, Prosser was last elected to a 10-year term by a razor-thin margin decided by a recount in 2011, during the height of protests over Walker’s gutting of union rights for public employees.
Walker’s staff apparently received advance word of Prosser’s resignation. Records obtained by Isthmus show that Brian Schimming, a state housing agency director and a close associate of Prosser, texted Walker chief of staff Rich Zipperer the night before the justice’s announcement, asking “to chat on non work related matter that will land on your plate Weds, pls call.”
Walker, who gets to name Prosser’s successor, will undoubtedly use this opportunity to continue the court’s 5-2 conservative majority. Had Prosser, 73, served out his full term, through 2021, the race to replace him would have been wide open. But now Walker’s pick can warm the seat before facing voters in 2020, the next year without a scheduled Supreme Court election.
Sen. Tim Carpenter, D-Milwaukee, last week said he will introduce bills to require Senate confirmation of Supreme Court picks and mandate that appointees face voters in the next spring election. But Carpenter has since abandoned plans to seek the latter change after learning that the state constitution limits Supreme Court races to one per year. He still plans to pursue legislation to let the Senate approve high court picks to “provide more accountability to the appointments.” While the constitution does give this power to the governor, Carpenter believes his change would not require a state constitutional amendment. However, it would be politically difficult to pass.
Walker’s office is now accepting applications for the seat through May 19. Spokesman Jack Jablonski says the Judicial Selection Advisory Committee will screen applicants and make recommendations to the governor, who “then conducts his interviews and makes his selection.” Prosser is stepping down on July 31; new judicial terms begin Aug. 1.
Rick Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty, a conservative legal group, says no judicial candidate will have all of the experience that might be relevant to the job. He urges Walker to seek someone who, like Prosser, is known for taking “a scholarly approach to the law.” But he adds that Walker, like other governors, will pick a justice “who has a compatible judicial philosophy.”
In others words, Dean Strang, you can just fuhgeddaboudit.
Over the last 50 years, only 10 Wisconsin Supreme Court justices were initially elected, while 11 got the job through gubernatorial appointment. Prosser himself was appointed by GOP Gov. Tommy Thompson in 1998 to fill a seat vacated in mid-term by another Thompson appointee, Janine Geske. Once a justice is appointed, he or she is rarely defeated.
But despite the advantage of incumbency conferred by being appointed to a seat before having to face election, Steve Hurley, a prominent local defense attorney, notes that there is also a downside, especially given the timeline of the present appointment: “In four years, you create a record that can be used against you.”
Here is a rundown of possible Prosser successors as identified by sources and in news accounts:
Jim Troupis: After years of service to conservatives — he represented Prosser in the 2011 recount and helped legislative Republicans redraw voter boundaries to their advantage — this longtime Madison attorney was appointed last year to an open seat on the Dane County bench. He did not seek reelection and in fact left that post Monday, three months before the end of his appointment, to attend to family matters. Troupis did not respond to an email asking if he had foreknowledge of Prosser’s intent, but he did tell WisPolitics.com he is likely to apply. He also applied for Crooks’ seat last fall.
Mark Gundrum: Alone among the publicly named likely contenders, Gundrum is, like Prosser, a former state lawmaker. He headed up a task force that passed a series of criminal justice reforms meant to reduce the incidence of wrongful convictions. He also compiled 100% ratings from Wisconsin Right to Life. Gundrum, if picked, would become only the second justice in state Supreme Court history, after Rebecca Bradley, to have both trial and appellate court experience, having been elected to Waukesha County circuit court in 2010 and appointed by Walker to a state appellate court in 2011.
Brian Hagedorn: If Walker wants a pick that some people will take as a poke in the eye, this would be it. Hagedorn served as the governor’s chief legal counsel from 2011 to 2015, defending the state’s Act 10 changes. He has rock-solid conservative credentials, having graduated from the Evangelical Christian Trinity International University, served as president of the conservative Federalist Society at Northwestern University School of law and clerked for Supreme Court Justice Michael Gableman; he was appointed by Walker to an appellate court seat last year. Hagedorn did not respond to an inquiry about whether he will seek the seat.
Christopher Guess
Randy Koschnick: This one-time public defender with 17 years as a Jefferson County judge ran a failed but refreshingly candid campaign against then-Chief Justice Shirley Abrahamson, openly billing himself as conservative. He says he’ll seek Prosser’s seat, telling Isthmus he didn’t do so for the Crooks opening last fall because “the timing wasn’t right to run a statewide campaign in 2015 and 2016,” but that he and his wife are “prepared for me to run in 2020, should I be appointed this time.” Koschnick’s daughter, Katie Ignatowski, is now Walker’s chief legal counsel but would step aside from the selection process.
Thomas Hruz: Appointed by Walker to an appeals court bench in 2014, this one-time law clerk to Prosser and former fellow at the Wisconsin Institute for Law and Liberty tells Isthmus “a number of people have reached out to me...encouraging me to apply. At this time I am considering it.” Former Justice Geske once called him “an ethical, dedicated, well-respected and scholarly attorney.”
Ellen Nowak: The chair of the state Public Service Commission, to which she was appointed by Walker in 2011, tells Isthmus she is “considering” applying for the seat. Nowak previously served as chief of staff to GOP Assembly Speaker John Gard from 2001 to 2006 and worked as deputy director of School Choice Wisconsin.
Claude Covelli: This respected Madison attorney with more than four decades of experience, primarily regarding tort litigation, applied last fall for Crooks’ seat and was interviewed by the selection committee and governor. “Yes I am going to file an application” for Prosser’s seat, he told Isthmus on Tuesday.
Also mentioned as potential applicants: Milwaukee attorney Mike B. Brennan, who chairs Walker’s judicial selection committee, and former GOP state Attorney General J.B. Van Hollen, neither of whom responded to inquiries from Isthmus.
[Editor's note: This article was corrected to include a correct picture of Jim Troupis.]
