OTR Interviews

All Eyes on Wisconsin: Supreme Court Election Could Become Key to Collective Bargaining Law

This is a rush transcript from "On the Record," April 4, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: If you think the union fight in Wisconsin is rough, you haven't seen anything! The meanest, dirtiest and most vicious race is ending tomorrow as voters go to the polls in Wisconsin not to pick a Wisconsin politician, but to pick a Wisconsin supreme court justice. Now, this race for the supreme court has been twisted into a referendum on Governor Scott Walker and his collective bargaining bill. Big union bosses are pouring into the campaign for JoAnne Kloppenburg. And likewise, other special interest groups are pouring dough into the reelection campaign of Justice Prosser.

Now, we invited both candidates to discuss this heated race with us. Kloppenburg declined, but Justice David Prosser went "On the Record."


VAN SUSTEREN: Justice Prosser, nice to see you, sir.


VAN SUSTEREN: Well, there's a hot election tomorrow for the Wisconsin supreme court, and many voters -- or many viewers probably don't realize that in Wisconsin, judges are elected. And this is one hot race. And let me ask you, is this -- is this about the supreme court or is this more about Governor Walker and collective bargaining?

PROSSER: Well, it certainly should be about the supreme court, about the qualifications of the candidates and about the independence of the candidates, but I think it has turned into sort of a referendum on Governor Walker and a referendum on some of the collective bargaining legislation.

I'm hoping to break through that kind of appeal and get people to focus on the real issues. After all, Greta, this is going to be a 10-year term. So even if the case comes before the court and is decided in the next few months, we're going to live with the next justice for the next 10 years.

VAN SUSTEREN: I take it that neither you nor your opponent has said publicly how you would rule on the case that's not even before you, but the collective bargaining case, so that -- I mean, is that fair? I mean, neither one of you has given an opinion.

PROSSER: Well, neither of us has given a formal opinion. And in fact, I have tried to stay away and create an independence between myself and the executive branch and the legislature. But my opponent's FaceBook page has listed so many comments saying that her candidacy is linked to stopping the bill and opposing Governor Walker that I think it gives all the signals that she's prepared to vote probably to kill the bill.

VAN SUSTEREN: In looking at judges' races -- and I've followed judges' races in Wisconsin for a number of years -- it's sort of -- this one seems to be unbelievably hostile. And a good example, I guess, is the ad in which -- it was a third-party ad, it wasn't your opponent -- but going after you for a decision in the late 1970s not to prosecute a priest in Appleton who was later prosecuted. And then the victim of the child abuse by the priest came on and said it was unfair to you. And then your opponent wouldn't condemn the ad.

PROSSER: That sums it up very well. I knew this family, and when they came to me and told me about the abuse, I was very sensitive and I did not want to betray the mother, who was a classmate of mine. And I wanted to take all conscientious care of the two kids involved.

This was never a matter of my not believing the two boys or trying to sweep something under the rug. It was a question of having really kind of ambiguous information, ambiguous evidence that I didn't think would go well at trial. It would have been the credibility of two young boys against a fairly prominent priest.

So my goal was to try to get the priest out of the parish, to get the priest treatment. And I honestly never suspected that he was a serial offender. That was not something that was in people's consciousness back then.

Political ads can be very tough and very nasty, but I think in a more human element, when ads go certain boundaries, cross certain lines, the people who benefit from those ads really ought to disavow them, draw a distance between them. And she's not willing to do that.

VAN SUSTEREN: All right, now -- now your situation. On February 10th -- and this shows -- I actually am surprised how dysfunctional the Wisconsin supreme court looks. But on February 10th, there was an incident in which the court of which you are a member privately discussing a request to remove a justice particular from a case. And in a fit of temper, you screamed at the chief justice, Shirley Abrahamson, that she is a bitch and threatening to destroy her.

Now, there is no record of this on February 10th. February 18th, another justice, a woman justice named Justice Ann Walsh Bradley, she sends an e-mail around, confirming that fit of temper that you had, in which you called her a bitch and threatened to destroy her -- sent it not just to you but to others, and then she later released it to the newspaper.

What in the world is going on in the Wisconsin supreme court that you're saying that kind of stuff to each other and snitching on each other and giving e-mails out and disclosing the private conversations of the state supreme court? What is going on?

PROSSER: Well, there's a lot to try to untangle there. We're talking about an incident that occurred more than a year ago. We're talking about something where multiple controversies came to a head at the same time. It was an explosive situation. I said something I should not have said and that I regret and that I apologized for.

On the other hand, I want people to understand that I didn't simply go into a private conversation and suddenly pop out with this ill-advised statement without any provocation. Things had been building up for a long time.

So what you ought to know, Greta, is that this was in February 2010. I think seven or eight days after the incident, there is a memorialization of a conversation. It is not an accurate memorialization of the total events that occurred. And then...

VAN SUSTEREN: I should just add -- I should just add at that point, Justice -- at that point, I think they were trying to trap you. I mean, I'm not trying to defend you for calling a supreme court justice a bitch, but the fact that they put it -- memorialized it meant they were setting a trap on you on that one.

PROSSER: They were not only setting a trap, they were kind of massaging the record and changing the record. I have to tell you, it was not good behavior on my part. But I have to say this is not all my fault. There was some provocation here, the whole series of incidents that led up to an explosion.