Fallone takes on right-wing judge

Louis Weisberg, Staff writer

Marquette University law professor Ed Fallone hopes to accomplish what JoAnne Kloppenburg came close to doing last year – replacing a conservative Wisconsin Supreme Court Justice who’s up for retention.

And just as last year, when right-wing Justice David Prosser narrowly fought back Kloppenburg’s challenge, Fallone’s race will be viewed largely as a referendum on Republican Gov. Scott Walker and his tea party agenda.

Although Justice Patience Roggensack positioned herself as a moderate during her successful 2003 race for the state’s highest court, a decade of decisions since then have aligned with the court’s 4-3 conservative majority.

The state’s far-right extremist groups, including the anti-gay Wisconsin Family Action and Wisconsin Right to Life, which opposes women’s reproductive choice, are backing Roggensack. 

Fallone, on the other hand, has received the endorsement of Fair Wisconsin and Equality Wisconsin – Wisconsin’s leading LGBT advocacy groups – as well as other progressive organizations and leaders.

Among Fallone’s many prominent backers is former U.S. Sen. Russ Feingold, who also teaches at Marquette.

“In addition to his intellectual know-how, Ed has a proven commitment to fair treatment in our justice system,” Feingold wrote. “His work in the community and on campus has helped working people obtain legal representation when they otherwise wouldn’t be able to afford a lawyer. Ed is exactly the kind of fair-minded person we need making legal decisions on the Wisconsin Supreme Court. And we have a lot of work to do to get out in front of the out-of-state billionaires and corporate interests who are willing to spend millions to buy their way out of facing an impartial judge.”

Special interest spending for Roggensack by big-money groups began during her primary campaign against Fallone and Milwaukee attorney Vince Megna. Fallone and Roggensack were the top two vote getters in that Feb. 19 election, allowing them to proceed to the April 2 run-off race.

Fueled by donations from corporate-funded groups, Roggensack has maintained a three-to-one spending advantage over Fallone. The Koch-brothers-backed Club for Growth pumped more than $400,000 into TV ads for Roggensack during her primary race alone. Roggensack’s campaign spent only $90,000 on television commercials during the primary.

Roggensack has been strongly criticized for joining the Supreme Court’s 4-3 right-wing majority in ruling that justices should not recuse themselves from cases involving contributors to their campaigns. In contrast, Fallone supports requiring justices to step aside in cases involving parties who had made political donations to members of the court.

Roggensack contends that disqualifying herself from hearing cases involving her big-money backers would be unfair to the thousands of other citizens who voted for her. But in what many say is a hypocritical contradiction, Roggensack joined the court’s other right-wing justices in recusing herself from a case concerning her judicial colleague Justice David Prosser.

A man of notoriously flaming temperament, Prosser allegedly put his hands around Justice Ann Walsh Bradley’s neck during an altercation in June 2011. 

In recusing herself, Roggensack helped to halt the state Judicial Commission’s investigation of an ethics violation against Prosser.

Despite the distinctly partisan differences between the two judicial candidates’ backers, Fallone told WiG he believes nothing related to politics has a place in a judicial race.

“As I talk to voters around the state, even those who complain about the court leaning too far in a conservative direction don’t think the solution is too push the court in a liberal direction,” Fallone said. “They want to elect candidates who won’t be too political.”

Fallone denied that he has any agenda that he’d try to advance as a Supreme Court justice.

“I don’t think of myself as swinging the balance of the court one way or the other on ideological ground,” he said. “It’s a mistake for judges to embrace overarching philosophies of the law. If you think there is one big theory that explains the law, you end up as a judge trying to pigeonhole cases into to your particular theory. Parties in a case want an independent judge.”

Fallone said he’s proud of his endorsements from Equality Wisconsin and Fair Wisconsin.

“Throughout my career I’ve recognized and advocated for equal treatment under the law for all persons,” he said. “I’ll continue to promote equality under the law as one of my primary motivations.”

In 2010, when Marquette rescinded its offer to a lesbian scholar who’d been selected as dean of the School of Arts and Sciences, Fallone was chairman of the university’s academic senate, which condemned the decision. He did not, however, join with about 100 other faculty members who signed a full-page ad that appeared in the Milwaukee Journal Sentinel criticizing the university’s leadership.