Gableman Plays the Race Card

Now it all makes sense...The WMC/Gableman effort to conduct a pre-emptive strike against the independent WJCIC...Judge Gableman’s hyper-active mannerisms, red face and nervous smile at the MBA forum on Wednesday, when he knew what was coming later in the week...the relative silence recently of the wing-nut bloggers who knew the other shoe was about to drop...

It was all a precursor to this – the most racist, unfair ad in the history of Wisconsin politics that started running on Friday. To his slight credit, it comes from the Gableman campaign itself, which chose not to hide behind the WMC or other surrogates and sponsors. To his never-ending shame (if he had any sense of it), the ad shows Michael Gableman to be a racist pig who will do anything to get himself elected on behalf of his wealthy patrons.

You thought Willie Horton was the scariest, ugliest black man used in a political campaign to scare the bejesus out of a mostly-white electorate? Meet the new "winner", Rubin Lee Mitchell, a former client of Justice Butler’s back when he was doing his usual exemplary legal work as an appellate lawyer at the State Public Defenders office over 20 years ago. Mitchell’s menacing mug shot is shown right next to that of the first African-American to serve on the Wisconsin Supreme Court. Black guy gets black guy off..."Can Wisconsin families feel safe with Louis Bulter on the Supreme Court?"

Except that Butler did not get Mitchell off. Butler’s effort to get Mitchell a new trial on his sexual assault case (because of testimony that the victim was a virgin) was successful at the Court of Appeals. The very same Louis Butler then lost the argument in the Supreme Court, which reversed the Court of Appeals decision. State v. Mitchell, 424 N.W.2d 698, 144 Wis. 2d 596 (1988). The Supremes (in a decision by now-Chief Justice Abrahamson) agreed with Butler that the "virgin" testimony was inadmissible, but found the error to be harmless, meaning he would have been convicted anyway.

Although you wouldn’t know it from Gableman’s manipulative, disgusting ad, Mitchell's conviction was not reversed and he served his entire sentence. Eleven years after the case in which Butler represented him, Mitchell committed a new offense. "Butler found a loophole," says Gableman’s female, near-tears narrator. "Mitchell went on to molest another child." The listener is led to believe that the "loophole" (more about that language later) was successful, got Mitchell out and was able to reoffend because of Butler’s efforts. The implication is a deliberate lie, and Gableman knows it.

And here is where we get to the racist part. Louis Butler was doing appellate work for at least 10 years at the SPD and, given the heavy caseload carried by SPD attorneys and his legal talent, I’m guessing there are at least five or six people Butler actually did succeed in getting released who then reoffended in one way or another – and that’s a conservative estimate. So why do you think the WMC/Gableman oppo-researchers chose to highlight Mitchell – someone who Butler did not get released in the first place? It was because there was no one of Butler’s past clients who was blacker and scarier, whose image would look "better" next to that of Wisconsin’s historic first black justice. The Gableman backers had this ad designed years ago – all they needed to do was plug in the mugshot of the scariest-looking black guy they could find on Butler’s client roles.

The ad serves other purposes for the Gableman campaign, such as the second use of the word "loophole" in a Gableman ad. The campaign usually saves the "Loophole Louie" epithet for their mainstream radio surrogates like Charlie Sykes. Given their "anything goes" disposition, I give it a week before the campaign itself starts using it. And, by the way, when is a legal argument a "loophole"? Butler’s argument was that the "virgin" testimony was not allowed by the Rape Shield Law, which it clearly wasn’t. How is it a "loophole" to argue that the state overreached when it offered the testimony? Is every legal argument offered by a criminal defendant a "loophole"? I think "loophole" is kind of a phony concept anyway, but if there is one, it would be something like pointing out that the police made some technical mistake in a search warrant application or something like that. Arguing simple fairness against a prejudicial statement in a rape trial is not seeking a "loophole" – it is seeking a fair trial. Is a "fair trial" itself a "loophole"?

But I digress. It was interesting to see how the Journal Sentinel editors wimped out on the Gableman outrage this morning. The short story in the second section practically commends Gableman for "coming out swinging" in the headline. The story quotes both campaigns, with too much sympathy given to the Gableman flack (veteran Republican shill Mark Graul claimed "the ad highlighted Mitchell's case because of his sex offenses, not because he is black", apparently with a straight face). The AP had a much more emphatic headline ("Records show new ad misleads about Butler's role in case") and much beefier substance. The AP got an essential quote from the universally-respected Janine Geske: "‘The ad seems to say he got him off. For God sakes, that's terrible,’ said Geske, who was a justice in the 1990s and is neutral in the race. ‘This ad is awful on so many levels, from misportraying the role of the Supreme Court, misportraying the role of the public defender, appealing to the fear of citizens. We're sinking to new lows.’"

All true, except for the "we" part. "We" are not sinking to new lows – the WMC/Gableman campaign is. In an excellent post, Michael Mathias wonders out loud this morning what Federalist Society member, WMC-video star and first-year law professor Rick Esenberg and other Gableman apologists will have to say about all this. I know exactly what Esenberg will say, if he says anything at all. [An update on right-wing silence here.]Last week, when the WMC front-group, the phony Coalition for America’s Families (the surrogate of the surrogate) put out a couple of ads, one of which featured a laughing Justice Butler practically superimposed over the bodies of murder victims, Esenberg feigned regret and then made the usual excuses. He blamed all the ugliness on the fact of judicial elections themselves. "So I think that the best course is to let those who are interested speak." He will also pooh-pooh the obvious racist design of the ad, and call people complaining about it unduly hysterical.

A couple of other entities are going to have their say on this as well. The WJCIC should comdemn the racist Gableman ad in no uncertain terms. [UPDATE: And so they did.] And I think, given the clearly misleading and inflammatory nature of the ad, I think it’s time for a referral to the Judical Commission. From SCR 60.06:

• 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 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.

WMC/Gableman have danced around the fine line in judicial campaigns, and now they have stepped over it. Expressions of outrage and concern are not enough. WMC/Gableman has just made a deliberately racist attack against Wisconsin's first African-American justice of the Supreme Court. If the Supreme Court rules regarding the conduct of judicial campaigns in Wisconsin mean anything, the time for swift enforcement is now.