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.
23 comments:
Whine, whine, whine, whine.
The Wisconsin 'Tragedy'
April 3, 2008
Governor Jim Doyle called the result of Wisconsin's state Supreme Court election "a tragedy." It's surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court's ultra-liberal justices and in the process helped toughen the standards for judicial accountability.
The election was a referendum on Louis Butler and the high court's sharp political turn. Justice Butler was appointed by Governor Doyle, a Democrat, to fill a vacancy in 2004. This gave liberals a majority and Justice Butler proceeded to indulge the legal theories of the tort bar and activist left, for instance laying waste to Wisconsin's medical malpractice laws and endorsing a "risk contribution" liability standard for lead paint that made the question of guilt or innocence irrelevant.
But Mr. Butler was required to stand for election, and on Tuesday he narrowly lost to district court Judge Michael Gableman. Mr. Gableman's 10-year term will begin in August and probably tip the balance of the court to a 4-3 conservative majority.
Closely watched nationally, the election became a proxy war between third parties, with business interests lining up behind Mr. Gableman and trial lawyers and organized labor plumping for Mr. Butler. The hotly contested race supposedly shows the need for "merit selection" or public financing in judicial elections. But both sides leveraged roughly the same amount of money, and voters had a choice of two distinct legal philosophies.
The Wisconsin result should reverberate through the 39 states that elect some or all of their appellate-level judges. Mr. Butler is the first incumbent justice to be ousted in more than four decades there. A seat on the bench is not a sinecure, and justices who abuse or contort the law must sometimes answer for their actions.
With the Supreme Court race in our rear view mirror, the usual hysterics are taking place with regard to how we select our justices. According to Jay Heck from Common Cause, “This was the most nasty, negative, demoralizing statewide election in Wisconsin history. . . . This is about as low as you can go.”
Consider me among those not “demoralized.”
The election of conservative Judge Mike Gableman has set the media on fire. Much of the reaction resembles the state being hit by a hurricane, not the state electing a conservative Supreme Court justice. The Wisconsin Democracy Campaign’s Mike McCabe, who must have a heck of a cell phone plan with all the calls he gets from state newspapers, said “”Wisconsin is in the midst of a hostile takeover of its court system.”
This article from the Milwaukee Journal Sentinel goes on to quote SEVEN individuals who think we should completely overhaul our system of electing judges. Not content with just that pitch for campaign finance reform, the paper today also ran an editorial describing the Supreme Court race, titled “Tawdry and Despicable.”
Naturally, had Butler won, we wouldn’t be hearing any of these calls for blowing up the system - everything from eliminating free speech to publicly funding elections to doing away with elections altogether. Everything would be golden until next year, when the balance of the Court would be up again.
But there are some interesting facts that the Journal Sentinel seems to leave out. Take, for instance, the results of the last four Wisconsin Supreme Court races:
2000: Conservative woman defeats liberal man (Sykes v. Butler)
2003: Conservative woman defeats liberal man (Roggensack v. Brunner)
2007: Conservative woman defeats liberal woman (Ziegler v. Clifford)
2008: Conservative man defeats liberal man (Gableman v. Butler)
Could it be possible that Wisconsin voters simply prefer conservative justices? Is there even a remote chance that the people who voted wanted their justices to adhere to a strict reading of state law?
In fact, it could be that all those “scary” ads had little to do with the race. The Sykes and Roggensack races were low-profile elections, yet the conservatives won in each case (Sykes by a nearly 2 to 1 margin).
Consider also the 2006 elections, when Republican J.B. Van Hollen won the race for Wisconsin Attorney General amid a Democratic tidal wave. How could this be? Could it be possible that voters are actually sophisticated enough to know what they want from specific elected offices? If voters knew what they were doing, that would ruin the whole fairy tale about how they are unduly influenced by campaign advertising, and how they’re not qualified to pick judges.
Put simply, you want a conservative to keep bad people from doing things to you, but you want a liberal when you want to do things to bad people. (Oil companies, pharmaceutical companies, Dick Cheney)
Yet the state media can’t comprehend the fact that in electing Gableman, they were only doing what they have done for the past decade - electing a conservative. It doesn’t matter how much people spend or how much press coverage there is of the race.
Had Gableman lost the election, conservatives certainly would have been bummed out. But how many would be calling for an overhaul of the electoral system? Answer: none. When Democrats and liberals are elected, the Right lives to fight another day. Fortunately, they have enough class to refrain from insulting the will of the people.
From the WSJ's "Political Diary":
Wisconsin Precedent
Judicial activism suffered a real blow yesterday when trial lawyers
lost control of Wisconsin's state supreme court. Nationally, legal
eagles will take notice because Wisconsin was recently found to be the
eighth most cited state supreme court in the country. That means its
rulings play a larger role in shaping court decisions elsewhere than
courts in bigger states such as New York or Texas.
Voters certainly knew what they were doing yesterday when they turfed
out Justice Louis Butler -- no Wisconsin supreme court justice had
been defeated in more than 40 years and only three in the state's
entire history. The court now flips from a 4-to-3 liberal majority on
most legal issues to a majority likely to be conservative at least for
the next three years -- and perhaps much longer.
The 51% victory of Mike Gableman, a district court judge, will no
doubt be attributed to an advertising campaign waged by third-party
business groups. They did much to publicize a nickname Justice Butler
acquired as a Milwaukee public defender: "Loophole Louie." But both
sides spent heavily to promote their favored candidates. Business
groups got involved in the first place because Wisconsin's supreme
court had gained national notoriety for overturning its own precedents
and creating new law out of whole legal cloth. Justice Butler, in
particular, had become the fulcrum for a new majority that seemed to
embrace "junk" science in the courtroom. In one of its rulings, the
court held that a lead paint manufacturer could be held liable for an
injury even if the injured person had not been exposed to its
products. In another case, it eliminated caps on noneconomic damages
in medical malpractice lawsuits.
Business groups had good reason for fearing that the
guilty-until-proven-innocent approach to product liability being
trailblazed by Wisconsin would spread to other states. They aren't
alone: An American Bar Association poll conducted a few years ago
found that a majority of Americans also are losing respect for those
who sit on the bench: 56% said judges believe they can do whatever
they want.
What voters in even liberal Wisconsin -- which hasn't voted for a
Republican at the presidential level since 1984 -- showed is that they
will plump for judicial restraint when presented with a clear choice.
Given that 38 states elect appellate-level judges, the lesson from
Wisconsin's election this week could have national implications.
-- John Fund
Better unbound than unhinged.
Get a grip.
Since I'm not hearing anything but insults and right-wing press releases, I'm guessing I've got this pretty much right.
Why do you constantly refer to Rick Essenberg as "first-year law professor?" I'm assuming it's to marginalize him in some way, but I want to hear it from you. For someone who criticizes conservative radio all the time, you don't seem hesitant to mimic its tactics.
A couple of thoughts on your extensive comments. First, I think the fact that other conservative judges weren't jumping to their feet to challenge Justice Butler is based both on deference to Justice Butler and the fact that a sitting justice hasn't been defeated in 40 years. I'm pretty sure that is going to change, and you'll have at least a moderately well-known conservative run against the Chief. I'm personally pretty happy that the justices won't be getting a free pass every ten years and will instead have a decent challenger.
Second, I don't think everyone necessarily shares your glowing praise of Justice Butler's jurisprudence based on my own anecdotal conversations. The same thing goes for the Chief, who obviously is very intelligent, but has certainly taken positions that will be scrutinized. What are you basing this on? Is it just conversations with other like-minded lawyers or the criminal defense bar? I could very well just be hanging out with the wrong crowd.
Finally, clearly outside groups and Judge Gableman used the crime issue against Justice Butler, and clearly the outside groups were more concerned with Ferdon and the lead paint case than crime (These were the reasons I voted for Gableman, by the way). So what? Can you really argue that Justice Butler wouldn't exercise his discretion differently than a conservative justice would? WEAC was perfectly happy to try and portray Judge Gableman as soft on crime, but I didn't see a post on your blog decrying that clear falsehood.
I enjoy your blog, and you're getting too bent out of shape in my opinion. It's not like Wisconsin voters put back into office a governor who robs Peter to pay Paul by transfering money between different funds or breaks clear no tax raise pledges. Oh, wait .....
Jason: Thanks for writing. At least your comments are original and not a re-print from the Wall Street Journal.
I am not so much needling Esenberg, although he does seem a bit full of himself (aren't we all?), as much as I am those who are riding his professorial credentials to puff up their arguments. Ever since he got his appointment, everyone from Sykes to the WMC have bragged about how they have a law professor on their side and I just try to give it all a little bit of perspective. Of course, this tack does have a limited shelf-life - "second-year professor" doesn't have quite the same zing.
I think one of the many differences between Gableman and Butler as a justice is that Butler does have an open mind and Gableman certainly will not. It's not so much the excercise of discretion -- the Supreme Court really doesn't have much of that -- as it is whether the justice is results-oriented or law-oriented. One of the things Gableman never talked about -- never, in the whole campaign -- is exactly what was wrong with Butler's reasoning in any given case. His complaint was that the result was wrong, whether in a crimnal or the lead paint case.
I think what we should expect is that a justice should read the facts and the law and then determine the result - not the other way around. Gableman - especially since he is now bought by the WMC - is hardly intellectually curious or legally astute. And he will hardly be impartial -- in fact, he's promised to be just the opposite.
You might not have liked some of Butler's results, but he came to them honestly. I'm not going to like Gableman's results because he is so clearly in-the-bag.
UW Law Professor Ann Althouse:
Should the people directly affect judicial ideology through elections, or is it better to restrict them to picking the governor and then allow the governor's ideology to affect judicial appointments? Are there many people who prefer a chief executive — governor or, at the federal level, President — with one political ideology but want judges with another? For example, you might want a liberal governor because you favor his taxing and spending policies and want him to veto socially conservative bills but still want the judges to adhere to a conservative approach to things like expanding tort liability and requiring the recognition of gay marriage. If you do, then it's a problem to let the governor's ideology flow into judicial appointments.
Do we like the way it's easier to believe that a governor (or President) has picked judges because of their neutral qualifications or is it better to have elections that make people see the ideology of judges? It's hard to picture elections ever moving us closer to choosing judges because of their lofty credentials and adherence to neutral principles, but it's not fair to blame the voters if they are savvy enough to see that candidates are ideological and to vote with their eyes open.
Mike,
I would have commented sooner, but Coleman had the Bentley in the shop today and I just refuse to be carted around in the five year old Lincoln, so we had to venture out of our gated community and buy a rather pedestrian looking SUV at a retail establishment.
How absolutely dreadful.
In any event, I am not at all bothered by your commentary. Your stereotypical portrait of those who voted for Gableman not only makes you look like a whiny fool, it can not dampen the enthusiasm that those of us at the club are currently sharing.
Perhaps some day, my good man, some knowledge will, dare I say, trickle down to you and you'll be able to comprehend that what has happened in the last few days is not an example of court stacking (paging FDR) but rather an example of a wonderful little thing called democracy.
I do pity you poor souls though. All this angst you are feeling over my little one dollar bet with my brother Mortimer.
Oh, and along with a tutorial in economics, a crash course in the demographic breakdown of conservative voters in Wisconsin, and a seminar in the electoral process, may I suggest you brush up on your math skills? Butler forces outspent by 3:1???
Rubbish, I say.
Carry on, my good man.
If people are concerned about the role of WMC in the elections, perhaps it's time to look at that organization's board of directors (see WMC website). Maybe a letter to the editor in a smaller community would help flush out the role played by those active in this right-wing business crew. It's one thing to be a middle of the road chamber of commerce type and another to be outed as an extremist, which is exactly what WMC is. Better yet, how about some of the supposed liberals in the bigger law and professional service firms that are members of WMC running for the board and trying to influence from within?
I say, good show, Fraley, my boy.
I am not the one with contempt for the voters. It is your side that regularly pushes hot-buttons like racist imagery and crime (all the better when they are together) so you can get your stereotypical podunk in Clintonville out of the bar for a little votin' before going off to the shootin' range. Ah, for one glimpse at your "demographic breakdown of conservative voters". I have faith that people are smart enough to believe the truth when they see it. You only have faith in lies.
And, I'm just guessing about the spending breakdown. is 2-to-1 that much more even for you to make any difference?
And, Anony, Paul Soglin is trying to wake up various companies on the WMC board. I assume the right-wing agenda of the staff will continue, especially with their recent record of "success" at stacking the court with supplicants.
This is new, you know. No one entity has ever tried a hostile takeover of the Supreme Court, through elections or otherwise. This is the rich man's revolution in slow motion.
Of course, if the Teachers Unions, Trial Lawyers and Casino Interests were to try and pack the court (which they tried desperately to do), that would be Democracy at work, and a good thing for Wisconsin, right?
You guys sure are entertaining when you cry.
WEAC's fairly lame attempt to provide some defense late in the game individual contributions by "trial lawyers" (by which you mean the plaintiffs bar, as opposed to the business-side trial lawyers, who gave far more to Gableman and the WMC effort) and "casino interests", whatever that means, are nothing compared with WMC's effort to stack the court as part of a national court-stacking campaign by business interests.
You know what's going on - I am sick of the right-wing playing dumb about what they are doing. One of Gableman's four scripted talking points he was given was that Butler should just admit he was a "judicial activist" and have it out about that. Likewise, the WMC and its apologists should just come out and admit they are trying to stack the court in their favor and defend that. Instead, they hide behind phony constructs like "activist", "traditionalist", "conservative" and "liberal".
It's all working for you, Patrick, as the right-wing follows the Karl Rove playbook -- create rank partisanship as long as you are able to get one more vote than you need.
What I am sick of is the habit every liberal has of bringing up the 2000 presidential election everytime there is an election result that they don't like!! The only thing the "activist" US Supreme Court did was reverse the decision of the ACTIVIST Florida Supreme Court which told Florida to keep recounting the votes until Al Gore won.
We are not full of ourselves. But when you suggest that we played a major role in destroying the world that us, you do puff us a bit.
That should be the world that "was." The one that is now "lost."
Frankly, I find that kind of power rather...exciting.
Hope is alive.
Our spirit will not be demolished, by an April Fool election. There have been worse days and better, and there will be worse and better to come.
Much respect and gratitude is due to Justice Butler for his service; for his integrity, impartiality, and independence; for his admirable alloy of professionalism and humanity; and for his example and his tough forbearance. Thank you, Justice Louis Butler and thank you Senator Lena Taylor for inspiring, informative, hopeful election campaigns.
Many thanks to all those who defended so well the shining promise of justice and democracy. Thanks for the inspiration, and the solidarity, and the future.
Wow...you people are really dramatic. This was an election. Yeah it hurts but it is not the end of the world. It is hardly a tragedy. A 21 year old co-ed being murdered on the UW campus is a tragedy. Put it in perspective. Go ahead - complain, be angry or sad, plan a new strategy...but don't hold a funeral.
Mikey,
Quit the liberal whining, it's quite unbecoming of an "Attorney". As you so clearly are a moonbat of the left wing fringe. Bush was not appointed in 2000, he won. The Supreme Court upheld election law, they did not create new law like liberal activist judges try to do. Oops, kinda like Butler assigning blame to paint companies, simply because they used lead in paint 40 years ago. The smear ads used by both sides had absolutely 0 affect on the outcome, this was a referendum on conservative versus liberal values, and a Doyle APPOINTED lackee lost, Butler was REJECTED by same electorate in 2000. Get over it loser
Love to commiserate with you Mike, but I'm off to the country club to drink more champagne with right-wing talk show hosts.
Get a life.
Both sides ran crappy ads...not just the Gableman campaign. I can remember the anti-Gableman ads that ran without even a bit of fine print identifying who paid for it.
One thing I did notice that no one else apparently did was your assumption that WMC is not entitled to support anyone. Why is that Mike? Why is a money-grubbing business evil, but a money-grubbing trial lawyer is not? Why does WEAC need a dog in this fight? The only benefit they haven't gotten for their teachers is a company car.
Butler got the job by Doyle appointment. The electorate disagreed. Be careful Mikey, with comments like "far-flung Burnett County" you are letting your true condescending liberal elitist colors show.
Oh...and one more thing...do you have any Grey Poupon?
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