June 24, 2019
Perspective By M.D. Kittle
In celebrating Wisconsin Supreme Court Justice Shirley Abrahamson’s 43-year career on the state’s high court, Democratic Gov. Tony Evers last week, like so many others on the left, lionized Wisconsin’s first lady of jurisprudence.
“Justice Shirley Abrahamson will be remembered for many things — her wit, her passion for our judicial and legal institutions, and for instilling that same passion in so many who came after her,” Evers said on his Facebook account.
As she prepares to retire, the liberal justice will be remembered by many for shredding the constitutional rights of her political enemies on the right, and for prizing her judicial power over the will of the voters.
“The way she behaved and comported herself, in my opinion, was nauseating and embarrassing to the legal profession,” said Adam Jarchow, a practicing Wisconsin attorney and former Republican state lawmaker.
Jarchow’s pointed take on Abrahamson didn’t fit into the applause and praise of last week’s ceremony, where former Democratic Gov. Jim Doyle joined a lineup of former and present politicians and judges to fete the justice’s career.
The parade of praisers included a message from U.S. Supreme Court Justice Ruth Bader Ginsburg.
“She has been ever mindful of the people, all of the people, law exists, or should exist, to serve,” Ginsburg said.
Unless those people happened to be conservatives.
Abrahamson’s fingerprints are all over the so-called “John Doe II” investigation, a politically charged probe into dozens of conservative organizations launched by Milwaukee County District Attorney John Chisholm, a highly partisan Democrat.
Abrahamson appointed Judge Barbara Kluka to preside over the secret probe. Soon after, Kluka was rubber-stamping subpoenas and warrants for John Doe prosecutors who conducted pre-dawn raids on the homes and offices of several Wisconsin residents. Investigators also seized millions of documents, much of the materials personal information from the probe’s conservative targets. The investigation’s secrecy order came with jail time and hefty fines for witnesses and targets who dared to say anything publicly about the raids or the probe.
All in the name of alleged campaign finance violations.
“Unlike most citizens, my family, my colleagues and I were subjected to the secret seizure of our phone, bank, tax and email records, armed pre-dawn raids of our homes, an unconstitutional gag order, vicious and unfounded accusations by prosecutors and the ‘accidental’ release of private, illegally seized documents by a federal court,” wrote Deborah Jordahl, one of the John Doe targets, in a 2017 open letter.
In 2015, the Wisconsin Supreme Court’s conservative majority declared the probe, launched in August 2012, unconstitutional. The ruling, written by Justice Michael Gableman, noted that the government officials involved, “Instigated a ‘perfect storm of wrongs,’” on people who were “wholly innocent of any wrongdoing.”
Abrahamson wrote the dissenting opinion, asserting the “majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment.”
The justice’s defense of Wisconsin’s “labyrinthian” campaign finance laws was not shared by multiple courts, including a previous federal court decision. Seventh Circuit Court of Appeals Judge Diane Sykes described Wisconsin’s campaign finance system as a “dizzying array of statutes and rules” that are “labyrinthian and difficult to decipher.” Sykes, coincidentally, was among last week’s invited speakers celebrating Abrahamson’s Supreme Court career.
“The John Doe was despicable and indefensible. I think those are (Abrahamson’s) defining traits in that case,” Jarchow said. “We had regular citizens whose homes had been raided, whose property had been taken, and for what? Because someone alleged there was a campaign finance law they didn’t like?”
“The way (Abrahamson) treated that was beyond disgusting from a civil liberties standpoint,” Jarchow added.
Abrahamson, Supreme Court observers say, had a tendency to interpret the law with a legal cudgel, beating liberal concepts into her decisions.
Constitutional law expert Rick Esenberg said Abrahamson was an effective advocate for a set of views associated with the “legal left.” Said views see legal language as “indeterminate” and prefers legal standards that are “both ambiguous and wildly ambitious,” much like Wisconsin’s old campaign finance statutes and rules.
“It seeks to maximize the power of the state subject only to limited protections for groups thought to need them,” Esenberg said of Abrahamson’s judicial philosophy. “In my view, it is based on a badly dated cultural critique and an underdeveloped and incomplete analysis of the limits of the law and the natures of our state and federal constitution.”
Esenberg, president of the Milwaukee-based Wisconsin Institute for Law and Liberty, said Abrahamson’s approach to the law was not evil; it’s just “wrong and it has resulted in some bad and counterproductive law.”
Here’s something else Abrahamson will be remembered for: her unwillingness to give up the reins of power.
In April 2015, Wisconsin voters supported a constitutional amendment that allows state Supreme Court justices to choose the court’s leader. The change amended the long-held practice of seniority deciding the court’s Chief Justice, and ended Abrahamson’s lengthy reign. The conservative-led court voted for Justice Patience Roggensack to replace the long-standing chief.
Abrahamson quickly sued — the people of the state of Wisconsin. She claimed the amendment wasn’t clear on when the change in leadership should occur. The case dragged out until November, when the embittered justice finally dropped her lawsuit.
“She was one of the most divisive people in the history of the state. I’m forever proud that my maiden floor speech (in the Assembly) was in favor of the constitutional amendment that allowed her colleagues to fire her from being Chief Justice,” Jarchow tweeted last week.
She was one of the most divisive people in the history of the state. I’m forever proud that my maiden floor speech was in favor of the constitutional amendment that allowed her colleagues to fire her from being Chief Justice. https://t.co/fCHvQ7cN00
— Adam Jarchow (@AdamJarchow28) June 18, 2019
While Abrahamson was a “super lawyer and someone who could be quite charming,” Esenberg said, “she was probably not a good fit for Chief Justice.” She clung to her strongly held views of “how things ought to be done,” not a very effective management style.
“Thus her tenure as Chief was often marked with tension — sometimes even with persons who agreed with her,” Esenberg said.
Those kind of memories, however, have mostly been glossed over by the press and the politicians as the first woman to hold a seat on the Wisconsin Supreme Court rides off into the sunset.