Frederica Freyberg:

The Dane County Sheriff's Department continues to investigate that alleged physical altercation between two Wisconsin Supreme Court justices. The news has been reported worldwide and led to questions about whether the state's highest court can do its job as the chief interpreter of the law in the state. Adam Schrager, again, listened to a discussion this week between former justices and prominent lawyers about the future of the Wisconsin Supreme Court.  

Jon Wilcox:

I'm here tonight basically because I truly believe in the Supreme Court.

Adam Schrager:

Former justices Jon Wilcox and Janine Geske say they're worried the public is losing faith in their former colleagues.

Janine Geske:

What has to happen is that the court has to find ways to be respectful and disagree respectfully, not physically, not abusively.

Adam Schrager:

The two joined lawyers Jim Troupis and Lester Pines, both of whom have argued cases before the Supreme Court, at a Society of Professional Journalists event on the UW-Madison campus.

Man:

We've seen really a marked lack of civility.

Adam Schrager:

The Supreme Court's made a concerted effort recently to demand Wisconsin lawyers are more respectful of the process and each other. The panelists all believe they should practice what they preach.

Jim Troupis:

Language counts. Words count. They hurt. They cause injury in a family. They cause injury on the court.

Janine Geske:

We have big egos. That's how we got where we got. We have strong feelings about the law and how it needs to be interpreted. You suddenly have to do these joint decisions. And everything the court does is in groups.

Adam Schrager:

Imagine 60 to 70 hours a week with partners you haven't chosen and you may not like.  Mix in complex topics and Geske says you have a recipe for problems.

Janine Geske:

It's like bringing all the new in-laws together at Thanksgiving, giving them a couple glasses of wine maybe, and then discussing the most controversial issues you can think of, and see if you can get an agreement by the end of dinner.

Adam Schrager:

The former justices say the fractured relationships on the court aren't new.  

Jon Wilcox:

This contention on the court, this court, has been around for many years.

Adam Schrager:

But now that the public's witnessing them, that adds a challenge that they hope the current Supreme Court understands.  

Janine Geske:

The judiciary, in particular our Supreme Court, is very critical to our democracy in this state and to our government. People have to have faith in the court.  

Frederica Freyberg:

But has faith in the court been tarnished beyond repair? What role has extreme partisan politics played, even among justices who are supposed to be nonpartisan? Are the lines in the sand among court members merely a reflection of deep polarity across the political spectrum? These are questions for heavy-duty political scientists. We have one, UW-M Professor of Governmental Affairs, Mordecai Lee.  Thanks for being here.

Mordecai Lee:

Thanks for inviting me.

Frederica Freyberg:

We love having you on the air, but every time we talk to you, you kind of have a more incredulous tone than the last time about what's going on with Wisconsin politics. What about now, in the midst of dual investigations into Supreme Court justices and their behavior?  

Mordecai Lee:

You know, I'm afraid I'm starting to come across as the grouchy old man on "Saturday Night Live," when I’m always talking about, “Well, in the old days,” and so on and so forth. But I have to admit that when I open the paper on Sunday morning, you know, I'm sort of used to Sci-Fi stories, but what I saw on Sunday morning was Poli Sci-Fi. I mean, this is just so unbelievable, so fantastic, that, you know, two justices having fisticuffs in the court chambers. It did sound like fiction as opposed to reality.

Frederica Freyberg:

Do you think that that incident such as it was is some kind of symptom of where we've come to be this polarized in our politics?

Mordecai Lee:

Absolutely. In a sense, this is the perfect storm or the perfect example of what's been going on. It's only been in the last 10 or 15 years or so that Supreme Court candidates really came out of the closet in terms of their judicial philosophies, in terms of their political ideologies, in terms of the special interest groups that were parts of their constituencies. We've gotten to the point where the most recent Supreme Court race was a de facto Republican versus a de facto Democrat. The money that was being poured into the races is just astounding. In the good old days, people talked about judicial temperament or judicial philosophy. Now they're just overtly politicians raising money from their stakeholders.

Frederica Freyberg:

In a larger sense, overall this kind of polarized politics, how did this happen?

Mordecai Lee:

I think I've got a two-word answer, and I think the answer is talk radio. We have to go back to when under the Reagan administration, radio stations were free from what’s called the fairness doctrine or equal time doctrine. Then, all of a sudden, this new market came into being, talk radio, who was always right of center. After all, for some reason left of center talk radio is not commercially viable. But it seems to me that what talk radio did is that, to maintain its audience it had to focus on, I guess you'd say angry white men. And it had to keep them angry. It had to keep them feeling victimized. So it started representing a form of the Republican Party that was much more ideological, and it viewed compromise as a bad thing, compromise as evil, compromise as selling out. I think that we in Wisconsin sort of, we held it back for a couple of years, but now I think our politics have been nationalized. So now we've got the exact same thing in Wisconsin, where both parties are very ideological, both parties refuse to compromise. And so we've got this sort of awful binary politics going on.

Frederica Freyberg:

Does it seem to you that Wisconsin is setting a high bar in this regard for the rest of the country?

Mordecai Lee:

I'm afraid so. I think the tipping point came about six months ago. Up to then, we were sort of lagging behind, lagging behind, for example, the Newt Gingrich approach to politics when he was Speaker of the House, where it was sort of total war, it was sort of kill your opponent unto the death. And I think we sort of resisted it until the most recent developments. And it's over the last six months that Wisconsin leapt ahead and became the icebreaker in terms of these trends.

Frederica Freyberg:

Do you feel like citizens favor this polarization, because it’s easy to align one’s-self with these distinct persuasions, or do you think that citizens are actually more moderate?  

Mordecai Lee:

Gosh, you know, it sort of depends on how a question might be asked in a public opinion poll. But if you're asking me for my sense of the electorate, it's that about one-third are hard right, one-third are hard left, and one-third of sort of independent, swing voters in the middle. The problem with what's happened to Wisconsin politics is that it's become kind of a battle of the bases. There's the republican base. There's the democratic base. It's almost like politicians don't care anymore about the independents or the swing voters. I think that's going to be what we're going to see in the recall elections, a battle of the bases. They're ignoring the swing voters. I think it's gotten pretty bad, and I think a form of the electorate is feeling alienated.

Frederica Freyberg:

Mordecai Lee, thanks very much. Have a great holiday weekend.

Mordecai Lee:

Thank you. You too.