The Attack on Wisconsin's Independent Judiciary

Wisconsin Manufacturers and Commerce (WMC) and its surrogates continue to get their chorus of quacking ducks in a row in preparation for their forthcoming scorched-earth attacks on Supreme Court Justice Louis Butler. The latest part of that coordinated effort comes from a bunch of Milwaukee business lawyers, who wrote an op-ed piece in the Journal Sentinel last week. They stand opposed to the work of the Judicial Campaign Integrity Committee, a usually-uncontroversial State Bar effort that seeks to encourage candidates for the Supreme Court to follow traditional limitations designed to prevent judicial elections from becoming the sort of free-for-all that can happen in other types of politics in legislative and executive races. In doing so, they are attempting to pave WMC’s the road to the gutter.

The JCIC was formed by the State Bar with the charge to try to persuade the candidates to avoid false, unfair or otherwise offensive tactics and statements. Apparently, the four signatories to the op-ed opposing the work of the committee support false, unfair or otherwise offensive propaganda in a judicial race. Their op-ed is a preemptive strike to protect Michael Gabelman’s campaign, WMC and various other fellow-travelers from criticism by a distinguished committee when they go after Justice Butler in ways unheard of in a Wisconsin judicial race, which they clearly plan to do. Apparently, in that campaign, they intend to lie, they want to be unfair and they plan on being offensive. Why else would they oppose the innocuous goals of the committee?

The committee first piped up after it was informed by One Wisconsin that the Gableman campaign sent letters to various sheriffs and district attorneys around the state, criticizing nine close (mostly 4-3) cases decided by the Supremes where Justice Butler was in the majority, and implying that the cases would be decided differently with Gableman on the bench. The JCIC – in the calm, even-handed tone of internal legal-world controversies – mildly reminded candidates, their supporters and voters "that judges are not elected to ‘represent’ the interests of any specific group or political agenda, as is commonly expected of candidates for non-judicial office. Rather, their role is to administer justice in a fair and impartial manner."

This friendly reminder was hardly controversial, but it was too much for Gableman campaign manager and long-time Republican hack Darrin Schmitz, who showed his disdain for the necessary niceties of judicial campaigns by blurting out his ignorant – and false – opinion that Justice Butler "consistently sides with criminals over law enforcement". This led to another expression of dismay from the chair of the JCIC, Thomas Basting, who wrote that Schmitz’ comment was "precisely the kind of campaign rhetoric that I and other members of WJCIC hoped we would not hear or read." Basting asked that Gablemen "repudiate this rhetoric and join us in promoting public confidence in a fair and impartial judiciary."

Rather than repudiate his campaign manager’s stupid comment, Gableman remained silent. Meanwhile, the WMC and its surrogates took to the mainstream radio airwaves, the blogs and the Journal Sentinel not to address the important issues raised by the JCIC, but rather to attack to committee itself. According to the business lawyers’ op-ed, the JCIC has no business trying to turn a judicial race into a namby-pamby contest of such outdated matters such as qualifications and impartiality, or, as WMC video-star Rick Esenberg calls it smarmily, "the mystification of judicial campaigns". Speaking of the pledge that the JCIC asked both campaigns to sign, the op-ed signatories opine that "much of the pledge is devoted to preserving the judiciary's image. However noble this goal, it should not be at the expense of free speech." They would let the hounds of partisan politics howl in judicial races and let the voters sort it out. "False advertisements or ad hominem attacks are never appropriate. But Wisconsin citizens are smart enough to distinguish between fair criticism and scurrilous smears."

Well, let’s have at it, then. There is this little matter, however, of the Supreme Court Rules regarding the behavior of judicial candidates. The WMC surrogates try to minimize the Rules to merely precluding candidates from offering opinions on cases that might come before them in the future. However, the rules require much more. From SCR 60.06:

• A candidate for judicial office shall not appeal to partisanship and shall avoid partisan activity in the spirit of a nonpartisan judiciary.
• A judge, candidate for judicial office, or judge-elect should not manifest bias or prejudice inappropriate to the judicial office. Every judge, candidate for judicial office, or judge-elect should always bear in mind the need for scrupulous adherence to the rules of fair play while engaged in a campaign for judicial office.
• A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
• A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

I suppose this sort of direction is just quaint piffle to the WMC surrogates, although it is actually in the Rules that govern the judiciary – including the obvious restrictions on "free speech". Has Gableman, in his sheriff/DA letter, "appealed to partisanship"? Did it adhere to the "rules of fair play"? By criticizing Justice Butler and pretty much promising a different result, did he make commitments "that are inconsistent with the impartial performance" of his proposed future duties? Did the comments of his highly-partisan campaign manager "misrepresent the...qualifications, present position, or other fact concerning ...an opponent"? The language of the Rules are, if you want them to be, vague, but the intent is clear. From the preamble to the Rules: Intrinsic to all provisions of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.

The State Bar committee is simply offering its assistance in evaluating campaign behavior in light of the rules – on-the-fly, in real time. Although the op-ed complains that "the Bar should not try to regulate speech", the committee can’t regulate anything – it is only offering its input for public consumption; part of the process of the public being "smart enough" to evaluate the opposing claims of the candidates. I guess the WMC is concerned that input by the JCIC might make those voters too smart. The alternative, I suppose, is filing a complaint with the Judicial Commission if Gableman is clearly on the wrong side of the rules, in which case we could end up with another ethically-challenged justice taking the bench under a cloud -- notably, the least of WMC's concerns.

The problem that the WMC surrogates have with the JCIC, however, has nothing to do with noble concern about the abridgement of "free speech". In preparation for what they know is coming from the WMC and others, they are trying to change the expectations Wisconsinites have always had for clean, respectful judicial elections. They are trying to destroy the image and expectation of an independent judiciary. They are trying to promote Gableman as being on "your" side and paint Butler as being, well, not on your side. If they are successful, we lose a lot more than the dynamic, historic presence of Louis Butler on the Supreme Court. We will lose not only the appearance of an independent judiciary, but the independent judiciary itself.