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A slightly different take on Prosser-Kloppenburg

If the new vote tally coming out of Waukesha County holds, JoAnne Kloppenburg's self-declaration of victory would seem even more premature than it did at the time. (And isn't it a bit unseemly for a prospective state-supreme court justice to be declaring victory with such a razor-thin margin? These are, after all, the monitors of due process, and a recount here was inevitable. Of course, unseemliness for the judiciary is also a bit inherent in such judicial campaigns overall -- one of the several critiques raised against this method of selecting judges. (But see also here, here, and here.))

I did want to clarify one small point of disagreement with Carter, though: unlike Carter, I tend to agree with Glenn Reynolds (citing Vincent Vernuccio) more than Greg Sargent here -- and Sargent's piece strikes me as a pretty weak political analysis. And that's even if Kloppenburg is ultimately able to prevail after all the inevitable legal wrangling and wind up on top at the end of the day.

Now, I fully agree with Carter that "a victory is a victory is a victory." And for Wisconsin, this election will have major, major implications (even if, as Carter notes, the outcome of Walker's reforms hinge less on it than Kloppenburg's supporters seem to believe).

But critically, Sargent, Reynolds, and Vernuccio are really writing about national, not Wisconsin, political implications. By mobilizing so agressively on what would have otherwise been a sleepy state supreme court race, organized labor was trying to scare the dickens out of anyone who'd try to emulate Scott Walker's approach in wrestling with public financing problems.

And on this score, like Glenn, I'm less than impressed. The unions did indeed go "all in" -- and in a low-turnout election in which their voter mobilization played a disproportionate role, they effectively eked out a tie.

Sargent writes about "a massive and astonishingly fast swing of support away from Prosser and in Kloppenburg's favor" and cites Prosser's primary-vote margin and Wisconsin's historic tendency not to reject incumbent justices as evidence for a big electoral shift here. Poppycock, in my view. Voters in general know not a lick about state supreme court races. They don't pay any attention whatsoever unless the races become highly contested with lots of outside dollars. It's not like Justice Prosser has wide name recognition or a big reservoir of public support on the Wisconsin streets.

Now, to be sure, those Republicans in Wisconsin facing recall elections do have some reason for concern: labor is mad, and they've shown a capacity to mobilize voters with disproportionate impact in a low-turnout race. But as for national implications, all this election shows is that the Left pushed a supreme court election into a virtual tie, after making the governor's controversial plan the defining feature of an otherwise-ignored supreme court race -- in a state that last supported a Republican for president in 1984. If the Democrats generally or the unions specifically read too much into this for the national political scene, then in my view they're deluding themselves.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.