John Nichols: Scott Walker reduced to name-calling to defend struck-down Act 10

Wisconsin once had governors who could argue their briefs on merit. But no more.

Late Friday, a well-regarded Wisconsin jurist -- who before his appointment to the bench spent 15 years working for Democratic and Republican attorneys general as a top lawyer with the state Department of Justice -- issued a thoughtful 27-page assessment of Scott Walker's signature legislative initiative, Act 10.

The decision, grounded in a nuanced reading of state and federal law, and specifically focused on constitutional concerns, displayed immense respect for Walker's positions and those of the public-employee unions with which the governor has sparred over the past 18 months. The outcome of a lawsuit brought by Madison Teachers Inc. — the union representing educators in Madison schools — and Laborers Local 61 — a union representing Milwaukee public employees — the decision concluded that substantial portions of Walker's anti-labor Act 10 "single out and encumber the rights of those employees who choose union membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions."

That entirely appropriate legal analysis led to the judge's determination that the governor's law did, indeed, "violate the Wisconsin and United States Constitution and (are thus) null and void."

The decision renews collective bargaining rights for teachers and municipal employees, and lays the legal groundwork for the restoration of rights for the state employees who have been so battered by Walker's policies.

What was Walker's response to a decision that referenced not just the constitutions that are touchstones of governance and jurisprudence but also a century and a half of Wisconsin case law? Within minutes of the release of the ruling, when the ablest attorneys in the state were only beginning to review it, Walker sputtered: "Sadly a liberal activist judge in Dane County wants to go backward and take away the lawmaking responsibilities of the Legislature and the governor."

Instead of responding with a constitutionally grounded defense of a law that legislators and lawyers warned last year would not stand judicial scrutiny, the governor engaged in cheap-shot invective that is as ignorant as it is shameful.

The irony of Walker's wrongheaded response could not be greater. This week, he is touring the state to "celebrate" the 225th anniversary of the U.S. Constitution.

On Thursday, Walker kicked off his tour feting the ratification with a visit to an elementary school in Franklin. "Our commitment to freedom and opportunity laid out in the Constitution has made America the greatest and most prosperous nation on Earth and has served as a model for countless other nations around the world," Walker said.

Instead of using the Constitution as a prop for his latest campaign tour, the governor might want to take a few minutes to read it. If he did, Walker would recognize that it is the duty of the judicial branch to check and balance the authoritarian excesses of the executive branch. That is how a great state, and a great nation, maintain what James Madison intended — the rule of law, as opposed to the rule of misguided men.

John Nichols is the associate editor of The Capital Times. jnichols@madison.com

About the columnist

John Nichols

John Nichols, associate editor of The Capital Times, is the author of seven books on politics and the media. He writes about electoral politics and public policy for The Nation magazine, and is a contributing writer for The Progressive and In These Times.

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