Prosser Candid About Court Dysfunction

In an extraordinarily rare moment of candor, recently retired Wisconsin Supreme Court Justice David Prosser shared, for the first time in an even quasi-public setting, his version of an infamous 2011 incident where fellow Justice Ann Walsh Bradley accused Prosser of choking her. Prosser’s account came in a Q&A session with Will McKinley of the Wisconsin Media Check Foundation. The conversation focused on media bias. Prosser spoke on the condition that his entire presentation be off the record. However, Media Trackers was invited to the event and Prosser did agree to an on the record interview with us afterward.

In June 2011, just more than two months after Prosser won a bitter re-election that went to a recount, Bradley accused Prosser of putting her in a choke hold during an argument in her office. The incident was first reported by Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism. The originally reporting gave Bradley’s version of events, virtually undisputed. Subsequent reporting by other media outlets told a much different version; that Bradley was the aggressor. As Prosser was depicted in the media as “intemperate” and a “hot-head” he remained largely silent, issuing only this statement to the Milwaukee Journal-Sentinel:

“Once there’s a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment.”

Prosser’s faith in the truth coming out was misplaced. For the most part Bradley’s narrative became accepted by the media as fact. Prosser told Media Trackers he remained silent because he felt it would bring embarrassment to the court to share the sordid details. Bradley had no such reservations about sharing her side of the story. We asked Prosser if he regrets the decision to do what he felt was the right thing:

“My thought was that I felt very privileged to be a member of the Supreme Court. I didn’t want to create any more controversy, even if it came at the expense, to some degree, of my own reputation. It isn’t good to have justices on the court making accusations against each other. In retrospect, I certainly thought at different times about doing things differently but I didn’t.

Prosser said he likely will tell the full story on the record one day, most likely in writing. He said he wants to make sure he gets every detail right.

Prosser was equally candid with us in sharing how his relationship with former Chief Justice Shirley Abrahamson soured after he actively campaigned for her against Appeals Court Judge Ralph Adam Fine in 1989:

“I supported her, I campaigned for her. She said to me I should never expect any favors, that she didn’t owe me anything because of this experience. But for several years, while we often voted differently, we got along well. When she came to power; had four solid (liberal)votes, I think there was a radical change in the way she operated the court.

Prosser believes it was this change in Abrahamson that led to what would become known as the “dysfunctional” Wisconsin Supreme Court.

“It wasn’t simply that there were a lot of liberal decisions…but the way the court was operated was quite different. People who didn’t agree with the chief justice were going to be singled out and embarrassed if possible.  And that created a lot of tension. She actively sought an opponent for me in 2011 (JoAnne Kloppenberg). She tried to embarrass me on multiple occasions leading up to that election, and afterward.”

As Donald Trump did in the presidential campaign, Prosser raised concerns about the landmark 1964 U.S. Supreme Court ruling, New York Times Co. vs. Sullivan, which made it very difficult for public figures to sue for libel. Prosser believes that in today’s media world the high bar set in the case needs reexamination.

“Well, it has created real problems for public officials. If false things are said about public officials, I mean truly false, and there is a serious animus by people who say those things, there is virtually no remedy now…We have to devise some sort of way so that the public gets the truth and that people can kind of reclaim their reputations.”

Prosser acknowledges that politics has become even more of a blood sport since he first entered the arena and that media bias as gotten worse. And he believes the coarsening of public discourse will discourage qualified people from running for public office.

“Well, I think there is a real concern that a lot of very good people will take that position, that public life has become such a challenge that they just don’t want to undertake the agonizing experience of going through a very negative campaign and being constantly subjected to criticism. “

Prosser says for him the satisfaction of accomplishment in public office balanced things out and he hopes that will always be the case in our country.

You can hear our entire interview with David Prosser here: