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There are at least five fairly unassailable observations to be made about the story regarding Justice David Prosser’s comments to Chief Justice Shirley Abrahamson.

First, he shouldn’t have said what he said. If he has not, he should apologize to the Chief (although we are talking about something that happened over a year ago). Whether she needs to apologize to him is between them. I wasn’t there.

On the other hand, for those of you are about to get the vapors, grow up. If you don’t think this kind of stuff isn’t said from time to time, you need to get out more. David Prosser is hardly the only public official who has lost his religion with an opponent or colleague.

Second, the story raises no concerns about Justice Prosser’s qualifications to serve on the Court or his abilities as a Justice. He should not have lost his temper – whether goaded or otherwise – but I guess I will leave it to the reader to ask, whether he or she is the one to cast that stone. If Prosser had a temper problem that was impairing the administration of justice in this state, I hardly think we’d need a leaked e-mail exchange about a decision conference – something that is supposed to be confidential – to let us know. I know what happens and the stories that are told about imperious and cantakerous judges. There are no such stories about David Prosser.

Third, the story does provide some insight into the personal divisions on the Court but not simply because Justice Prosser lost his temper. Members of a collegial court ought not to get involved in each other’s election campaigns. It makes working together rather difficult.
Beyond that, what happens at conference is confidential and justices ought to respect that. There is no logical stopping point here. Do we really want each member of the Court running to the press in the guise of correcting public “misperceptions” about their colleagues.

Fourth, Joanne Kloppenburg’s claim that her election would somehow ease the division on the court is hard to credit. I am sure that she would like that, but let’s look at the facts. If Prosser loses, it will be because partisans turned the race into a referendum on Governor Walker among their base. They will have done so, moreover, with Ms. Kloppenburg’s tacit consent and encouragement. Along the way, one Justice turned on another by releasing information that is normally kept within the Court. Unfortunately, the only thing that a Kloppenburg election would do is change the composition of the division.

Fifth, there is no reason to blame David Prosser for division on the court. Discord is not new to the court and it is not necessarily related to ideology. Shortly after Shirley Abrahamson became Chief Justice, four of her colleagues endorsed her opponent in her 1999 race for reelection. One of the four was her ideological cohort, the late Justice William Bablitch. Much of what causes this discord happens outside of public view and those of us on the outside, while certainly right to call and hope for an end to the bickering, should be careful about assigning blame.

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