Wisconsin's judicial conservatives, who claim to hate loopholes, have come up with the best loophole ever.
Two sets of rules
The U.S. Supreme Court invented all those dreaded legal technicalities and loopholes — hated by conservatives everywhere — when I was growing up.
That’s a bit of an overstatement, of course. Legal protections were actually part of the first 10 amendments to the U.S. Constitution, popularly known as the Bill of Rights.
But it wasn’t until 1966 under Chief Justice Earl Warren, a former Republican governor appointed by a Republican president, that the Supreme Court finally started enforcing those constitutional rights.
In the case of Ernesto Miranda, the court ruled police couldn’t interrogate suspects without first warning them they had a right not to incriminate themselves under the 5th Amendment and a right to an attorney under the 6th Amendment.
Conservatives were so outraged, billboards and bumper stickers all over America advocated: “Impeach Earl Warren.”
The difference between the impeachment of Warren favored by conservatives and the recall of Wisconsin Governor Scott Walker by progressives is that Warren was targeted for upholding rights and Walker for destroying them.
Now, however, when conservative public officials in Wisconsin are accused of wrongdoing, they come up with every legal technicality and loophole imaginable to escape punishment.
Wisconsin Supreme Court Justice David Prosser created a doozy. The charge against Prosser is the most violent of the mountain of unethical and unprofessional conduct charges against three of the four members of the Republican majority on the state’s highest court.
The Wisconsin Judicial Commission charged Prosser with unprofessional conduct for putting his hands around the throat of Justice Ann Walsh Bradley during an argument.
But Prosser has come up with a technical loophole big enough to drive a whole fleet of monster trucks through while singing “The Star-Spangled Banner.” If your conduct is vile enough and committed in front of almost everyone else on the court, you can’t be punished.
Here’s the way it works. In Wisconsin, the only official body that can punish a Supreme Court justice for unethical or unprofessional conduct is the Wisconsin Supreme Court itself.
The state Judicial Commission charged Prosser with ethics violations and appointed Franklyn Gimbel, a noted criminal defense attorney and former federal prosecutor, as special prosecutor.
But here’s the Get Out of Jail Free card. Because Prosser put his hands around Bradley’s throat in the presence of four other justices, six of the seven members of the Supreme Court are directly involved as the perpetrator, the victim or witnesses. Therefore, they can’t judge the case.
Prosser even came up with another reason why Justice N. Patrick Crooks, the only justice not present during the physical altercation, can’t sit on the case, either.
Crooks saw another incident of obnoxious, unprofessional behavior by Prosser included in the charges against him. That was the time Prosser screamed at Chief Justice Shirley Abrahamson that she was a “total bitch” and threatened to destroy her.
Prosser should at least have been respectful enough to address his superior as Madame Total Bitch.
Prosser claims all members of the court are required to recuse themselves because of their direct involvement in the case. Under his legal theory, the court wouldn’t be able to discipline Prosser even if he had attacked Bradley with an ax.
Do you remember how the original “Catch-22” worked?
In Joseph Heller’s satiric, anti-war novel, a bombing squadron in World War II had to keep flying an ever-increasing number of increasingly dangerous bombing missions. But anyone who wanted to get out of flying any more missions could do so simply by pleading insanity.
But here was Catch-22. If anyone wanted to get out of flying any more bombing missions, it proved he wasn’t crazy. Request denied. All the characters kept admiring the beauty of Catch-22.
Who knew the angry, volatile Prosser was capable of inventing a defense for his unacceptable judicial conduct as absurd and as difficult to get around as one of the classic comic literary inventions of all time?
Why was it even necessary for Prosser to go public with such tortured logic to avoid being brought to justice? The four-member Republican majority could simply have ignored the law, as they’ve so often done in the past.
If Prosser and the three other Republicans refuse to take any action against Prosser’s offensive behavior, the court is powerless to act.
That already appears to be happening. Nearly two months after Prosser was charged, the court still has not been able to appoint a three-judge appeals court panel to hear evidence, decide guilt and recommend any appropriate punishment.
The Wisconsin Supreme Court can discipline every other lawyer and judge in the state for vile, unethical or unprofessional conduct. But, according to Prosser, it cannot discipline him because he brazenly engaged in his behavior in full view of the other justices on the court.
That Catch-22 is a real beauty, all right.
May 13, 2012
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Joel McNally lives in Milwaukee, is a FightingBob.com contributing editor, and is a syndicated columnist who writes for the Capital Times, the Shepherd Express and other newspapers.