Four years after Walker’s email declared that Johnson and the Wisconsin Club for Growth were vital to electing Prosser and Gableman, these two justices cast decisive votes in a state Supreme Court decision that shut down an investigation targeting the actions of Walker, Johnson and others. That investigation sought to determine whether the governor and his allies engaged in a conspiracy to illegally coordinate campaign activities in the recall fights of 2011 and 2012. The opinion in that 2015 high court ruling, which was written by Gableman, was so sweeping that the Milwaukee Journal Sentinel reported it could “reshape how campaigns are run in Wisconsin because it makes clear campaigns can work closely with outside groups, allowing more political money to flow without the names of donors being disclosed.”
Prosser and Gableman were asked to recuse themselves from the John Doe case, but both refused to do so. In light of Walker’s assertion in his email to Rove — and all the information that has been made available over the past several years with regard to the John Doe inquiry — it is now evident that the refusal put the justices at odds with established law. The U.S. Supreme Court has determined that the due process clause of the U.S. Constitution’s 14th Amendment requires jurists to recuse themselves when there is evidence of actual bias and when so-called “extreme facts” create a “probability of bias.” That standard was established in the 2009 case of Caperton v. A.T. Massey Coal Co., which established that major campaign activity on behalf of a jurist by a party to a case that comes before the jurist creates an appearance of a conflict of interest so “extreme” that the jurist’s failure to recuse himself constitutes a violation of due process protections.