The classless, gloating radio and blog wing-nuts are having great fun this week grinding the salt of Louis Butler’s defeat into the open wounds of Wisconsin’s lost independent judiciary. When they aren’t childishly calling us whining losers, they are feigning outrage that anyone who tried to protect the state from WMC’s stack-the-court campaign would imply that the result of the Supreme Court election was anything but a reasoned choice of one "judicial philosophy" over another.
But they know what they did and what they do. The popping of champagne corks in country clubs, gated-community mansions and right-wing radio studios could be heard throughout the state – or at least in the North Shore and western suburbs – and throughout the nation, where the attack on the independent judiciary is driven (and funded) by the same devious greed-heads who brought you Junior Bush and the war in Iraq.
Governor Doyle and Justice Butler himself have talked in recent days about the "tragedy" of the election results, and, indeed, it is. I think it’s the worst thing to happen in electoral politics since the ultimate "activist" 5-4 U.S. Supreme Court ruling in Bush v. Gore stopped the recount ordered by the Florida courts, thereby appointing Bush as president by judicial fiat (to everyone’s eternal loss). Tuesday’s results here were tragic for different reasons – the election was not "stolen" in any way that I’m aware of. Wisconsin’s electoral tragedy lies in the result – another success in the continuing court-stacking campaign by WMC and national right-wing business interests. This was a power-grab accomplished not with a sudden dramatic event, but in slow-motion, through the course of a long, deceitful, racist campaign conducted with the sole purpose of installing another willing supplicant on the Court in the place of a talented, independent voice.
Let’s start at the beginning. If job-hopping McCallum fund-raiser Michael Gableman had decided on his own to run for the Supreme Court on his decidedly unaccomplished record in far-flung Burnett County and was left to his own meager devices, he would have had the same success as the-guy-that-ran against Milwaukee mayor Tom Barrett did on Tuesday. But, of course, that’s not how Gableman got involved. It has never been denied that Gableman was recruited by the WMC – supposedly their seventh or eighth option, if he was on the original list at all.
Any "conservative" with any accomplishment or dignity apparently passed on the WMC invitation this year, probably in deference to Justice Butler (who is universally well-liked and respected in the legal community), his fine reputation as one of the most talented jurists ever to sit on the Wisconsin Supreme Court and his not unimportant historical status as the Court's first African-American. But the WMC, still feeling their oats after their successful installation of the ethically-challenged Annette Zeigler the year before, were not to be deterred just because Butler was a respected person of substance and stature or because they couldn’t find anyone who was qualified. They dragged Gableman out of his deserved obscurity, dressed him up and sent him out with a limited set of talking points. Gableman was all too willing to play along.
In the meantime, WMC surrogates went forth to poison the well of what passed for intellectual debate about the recent work of the Supreme Court generally and Justice Butler in particular. The Court was frighteningly "unbound", claimed a first-year Marquette law professor in a national Federalist Society-funded "white paper" that circulated predictably through the right-wing echo chamber. That professor spouted the same phony dire message in a video that was circulated throughout the nut-right bloggosphere and that was played at various WMC meetings with business people throughout the state.
While all this is going on, that same professor took an active part in the WMC’s campaign to make a pre-emptive strike against a State Bar committee that was created to try to keep the judicial campaign on a properly judicial keel. Knowing the virulent ads that were planned, a fair, judicial tone was the last thing the WMC wanted. By the time the shit really started to fly, the independent WJCIC was perceived and treated like Butler partisans by, at least, the Journal Sentinel, which only cited the committee if they were criticizing advertising by third-party groups friendly to Butler.
Finally, in a stroke of sheer genius, the most repulsive ad of this or any other campaign in Wisconsin – the racist Willie-Horton knock-off – was issued under the name of the Gableman campaign itself, thus limiting the focus on WMC’s primary role, which surely would have been more of an issue if the racist ad came from them. Gableman, having no shame or sense of judicial decorum, was all too happy to claim it as his own.
Given the fact that WMC and its nationally-funded surrogates probably outspent Butler-supporting third-parties by at least 3-to-1 and the hours and days of free advertising against Butler on mainstream radio for the entire campaign (Charlie Sykes even brags about how he uses his publicly-licensed soapbox to facilitate his undue influence on elections), it’s a wonder how the race got so close.
WMC, in the end, got what it paid for. When public-interest litigants come into the Supreme Court chambers in the fall to argue in a case involving a business, they will find at least two justices on either sides of the bench – Zeigler and Gableman – who might as well have a big yellow sticky-pad on their forehead that simply says "NO". And, no doubt, we’ll be right back here this time next year, after they have a crack at putting some lackey in the place of distinguished Chief Justice Shirley Abrahamson. It’s all too easy for them. Why stop now?
In the end, people get the government and – in this case – the justice they deserve. Some of the same people who believed the lies of the WMC and its surrogates may find themselves injured by the deliberate or negligent acts of a corporation; or damaged by a malpracticing doctor; or wrongly accused and convicted of a crime. They might find themselves before the Supreme Court, trying to right a wrong or correct an injustice. With Justice Butler there, they would have found someone who they could not predict, but at least someone who would give them an independent review of the facts and the law and a fair shake. Now, with Zeigler and Gableman, they have a known quantity – they’ll know what to expect. They should expect and they will get exactly nothing.
When that happens, I’m tempted to say "don’t come crying to me". But, it’s my job and my passion to help those who come crying to me. When it comes time for that crucial case analysis – what are your chances? – it might not be pretty. But, as bad as it may be with a WMC court stacked against you, I won’t make it worse. I promise not to ask how you voted this week, in the sad turning-point election in the once-proud history of the Wisconsin Supreme Court.