On Abrahamson's Victory and Butler's Loss

Despite encouragement from well-meaning friends and family, I didn’t do any posts on the Supreme Court race just concluded. There simply was nothing I could have added to IT Tom Foley’s remarkable performance during the campaign. He had Randy Koschnick nailed from the beginning and continued the beat-down for months. If there was an award for advocacy blogging, Tom would win hands down. I am envious of his skill at developing a funny, informative and legally-sophisticated internet presence and can’t wait to see where he goes from here.

Chief Justice Shirley Abrahamson’s long, historic career continues, which is a tribute to Wisconsin voters, who, left to their own devices for a change, provided a deserved thumping to the reprehensible Koschnick. Koschnick’s wing-nut-hugging, blatantly partisan campaign was a disgrace, especially for those in the community of former public defender staff attorneys. Apparently, he was in the bargaining unit when I helped organize my former colleagues into a union and bargained their first contract with the state in 1999. I can’t imagine anyone in the defense bar, inside or outside the agency, who did or would have supported his ridiculous campaign.

Koschnick may be wondering, though, what happened to the support I’m sure he expected by the out-of-state interests who bought the last two Supreme Court elections by funneling money through the WMC and other right-wing conduits. Building on and adding to the template dutifully followed by the ethically-challenged Michael Gableman, Koschnick said and did all the right(-wing) things, only to turn around in February and find no one behind him. Not even those who recruited him were willing to stick their necks out in the end, deciding to sit it out and let the Chief stay in place without much of a fight.

I think that decision is an interesting one, especially considering the opponents, the current make-up of the court and what happened to Louis Butler last year.

Last year’s race was ostensibly about which candidate was most friendly to heinous criminals and most hostile to the suffering rich business community. Cases were evaluated by legal-issue nincompoops like Jessica McBride (Hey, Jess! Where ya been? How’s that private blog working for you?) who determined that Justice Butler was "pro-criminal" and other such nonsense.

Looking at the cases to fight back what I knew was a smear campaign (again, IT doing it much better), I noticed that Shirley Abrahamson came off looking much "worse" in this kind of deceptively irrelevant score-keeping. She dissented – often alone – in many cases in which Butler affirmed convictions with the majority. It was fairly obvious that she was the most consistently rights-protecting, freedom-loving (read: "liberal") member of the court. I remember reading the cases back then and thinking, if they can mess up Louis on this kind of ignorant analysis, the Chief would be much more vulnerable.

Likewise the competition. Gableman was an extremely unaccomplished blank-slate coming into the campaign, which is just the way his handlers at the WMC wanted him. He had not distinguished himself in any way as a District Attorney or as judge. In comparison, Randy Koschnick was a legal dynamo, who at least, I assume, litigated effectively while in the PD’s office – including not shying away from tough cases like the Ted Oswald defense. Unlike Gableman – who said nothing of substance during the campaign and, in the one forum I saw, sat quietly like an embarrassed red-faced blow-up doll while important issues were discussed all around him – Koschnick was not afraid to spew his right-wing nonsense, even identifying himself as a Republican after the unfortunate Siefert decision allowed judges in Wisconsin to do so.

So, with a more vulnerable record, advancing age and a stronger opponent than Butler had, why did the bad guys with all the money who have succeeded in stacking the court 4-3 to their advantage not take out Abrahamson too? It’s not like their majority is all that secure – it’s obvious at this point Gableman committed such a severe violation of judicial ethics with his racist Willie-Horton ad against Butler he may well be removed (but probably not – I have an inadequate "60 day suspension" in the office pool) and their majority is otherwise one health issue from flipping the other way on a Doyle appointment.

I think the decision to stay out this year says more about what was going on last year than it does about the relative merits of Abrahamson or Koschnick. In the contest against Louis Butler, the WMC king-makers saw a particular vulnerability that didn’t exist this year with Abrahamson – and that is race. I think an appointed white justice with the kind of extraordinary talent Butler had (and has, as he’ll prove when he gets a well-deserved appointment to the federal bench later this year) would have drawn nothing but token opposition and they would have looked ahead to doing the "liberal" and "elderly" thing in earnest on Abrahamson this year.

Instead, they found a willing cipher in Gableman who was willing to allow them to work the racist angles to get their damn pro-business majority. Shirley Abrahamson, who made history decades ago as the first woman on our Supreme Court, is rightly still on the court. Louis Butler, who made history this decade as the first African-American on our Supreme Court, is not. The WMC and other right-wing power-grabbers were willing to exploit latent and blatent racism to accomplish their selfish goals of establishing predictable pro-business justices. They could not allow an impartial court, and took out the black guy to end it.