Thursday, January 24, 2008

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 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.


Rick Esenberg said...

I can tell you that WMC had absolutely nothing to do with that op-ed.

But we ought to get clearer about that you think is so uncontroversial about the WJCIC's position: Do you believe that is inappropriate for a judicial candidate to criticize decisions written or joined by his or her opponent?

Mike Plaisted said...

Sure, whatever you say, Rick. I'll be sure to check with you when I want to know what WMC is or is not responsible for. But it is in the nature of WMC surrogacy and the right-wing legal world (one in the same, really) that is gunning for Justice Butler that WMC doesn't need to ask for it to have its synchophants like you pave its path to the gutter. If you can cast aspersions and impugn the goals of those who would insist on a respectful, traditional judicial campaign, it is only the WMC that is standing on the side, smiling while they prepare their attack ads.

Can candidates criticize judicial opinions? Sure, in terms of the legal reasoning used, in ways that accept and respect the good will and honest disagreement with the justice. It is a much different thing, though, to try to raise the hackles of whoever was on the losing side of the legal argument, implying that the opinion was the result of a desire by the justice to find for the winner, regardless of the legal soundness of its case. It should not be part of a legal campaign to imply or say directly that a justice favors one type of litigant over another (i.e.: Schmitz' nonsense about favoring defendants over law enforcement).

Judicial races are different because when they are over, the voters should feel that the result is an independent judge, not that their "side" or another has prevailed. But, I know -- that's the last thing WMC wants.

Rick Esenberg said...

So we don't like the fact that Schmitz said that a candidate "sides" with criminal defendants. I think that's calling the game pretty close but let's see if we can't establish a set of rules for how people should talk.

What if he had said that candidate X (I want to get away from the race itself) "frequently misreads the law to expand the rights of criminal defendants and impair the function of law enforcement."

Would that be OK? Remember you can't respond by saying that X doesn't misread the law because that would be injecting yourself into a substantive disagreement between the candidates and the WJCIC claims only to be refereeing the fight, not scoring it.

Mike Plaisted said...


I see these distinctions are difficult for you as you try to pave the way for WMC's no-holds-barred campaign against Butler, to which you have already gladly contributed. You can split hairs all you want to get where you want to go.

I think the better question is: do you think your friend Charlie Sykes' use of the phrase "Loophole Louie" every time he mentions Butler is fair comment? I mean, that's the level you are trying to get to -- why not just jump in?

Rick Esenberg said...

I don't let my students pass, but there is no way for me to force you to answer my question. I can see why you don't want to.

As for yours, I prefer to say that it is undignified than to say that it is unfair. The message that it's intended to convey does relate to a view of Justice Butler's jurisprudence, so in that sense, I guess it's fair. It's not personal and, fairly undestood, it doesn't suggest a lack of impartiality (as opposed to a lack of what those who use it regard to be the proper understanding relevant constitutional provisions).

But it is not something that I would say because I try not to use terms like, oh just to pick one out, "wing nuts." In addition, I don't like the term here because, being an attorney and law professor, I am going to want to treat judges and justices with more dignity than I might afford a regular old politician. I have said from the outset that I think Louis Butler is a smart and honest jurist with whom I happen to often disagree.

So, I am not going to use the term and, yes, I wish others would not. On the other hand, I recognize that politics ain't bean bag and other people (like you for example) choose to play it more aggressively than I do. Part of that has to do with what I do when I am not blogging and part with my own personality. I don't expect everyone (particularily those who have to communicate to a broader audience than the people who read my blog) to be like me and, a lot of the time, I am glad they are not.

Mike Plaisted said...

Alright, Rick, now that you were so gracious as to put your imprimatur on the use of the "Loophole Louie" slur, I'll answer your damn question:

If Candidate Y says that Candidate X "frequently misreads the law" in order to "expand the rights of criminal defendants and impair the function of law enforcement", I would say that is unfair comment in a judicial campaign -- it is unjustly impugning the integrety of the bench to say that a Justice takes sides and uses the law to reach a desired result for one side of the other. Tell us why the law has been "misread" (you can always start with the dissent) and tell us what the proper reading is.

We are not talking about standard political discussion or standard non-bean-bag politics. When I talk about wing-nuts, there is a specific definition I have applied -- those who get on GOP (or, in this case, WMC) talking-points and use their radio and blog platforms to drive the propaganda campaigns for others. I wouldn't use that word or any other perjorative to describe Gableman in a judicial campaign, nor would I endorse others to do so, as you have (worse) with Sykes.

It is always interesting when you pretend to be above-it-all, but always find a way to make excuses and end up approving the most heated rhetoric of your fellow-travelers, whether it be Sykes, Schmitz or whoever else makes you "glad". I think your pose as an impartial acedemic is fairly thin and, especially when you approve name-calling, getting thinner.

Rick Esenberg said...

Geez, I said that I wish they wouldn't use it. I just prefer to call it undignified than unfair.

Impartiality does not mean not having a point of view. Saying that a candidate misreads the law to expand the rights of criminal defendants is to criticize that candidate's point of view.

Here's where we get back to Sykes and Schmitz. Expecting people to jump into legal discourse and not to try to characterize that discourse in a way that people will understand is both unrealistic and inconsistent with the notion of electing judges.

Look at the way in which the popular press and politicians discuss the opinions of Scalia and Thomas. They oppose the "rights of women" or "workers." If you apply these standards, then this type of talk impugns the integrity of the judiciary. Granted, they aren't running for election, but isn't the principle the same?

Mike Plaisted said...

Yeah, yeah, I know...your position (for this election, anyway) is that, if you are going to elect judges, anything goes. That runs contrary to the Supreme Court Rules, but, hey, what do they know? Comparing that with the criticism of the right-wing of the US Supremes (not to mention the right-wing's heated rhetoric about Souter's unexpected independence) misses the point of the election itself and the SCRs that don't exist for political comments about life-time appointments.

You say you "wish" they wouldn't name-call and then say you are "glad" some do. You can't have it both ways, and, in any event, "wish" is a ridiculous dodge. Is it OK with you if someone starts barking about "WMC Mike Gableman"? Do you "wish" they wouldn't? Is that unfair, or just undignified? Can you see why we don't want to get into this in judicial elections?

Whatever, Rick. It's clear where this election is heading and your efforts to protect the WMC and its surrogates from criticism when it does. I'll be on your ass every step of the way, but good luck with that. Winning can't be that worth it when you have to destroy the independence of the judiciary to do it.

Display Name said...

Aww, Mike, you're deranged. Rebecca Bradley is president of the Milwaukee Federalists and the other op-ed authors are directors there, and that has nothing to do with Esenberg or WMC or the GOP. They're just interested in a non-partisan election. Why try to connect the dots?

Anonymous said...

The Federalist Society is to the law what the KKK was to race relations. They are elitists who distrust the public and believe the courts are the sole province of the rich elite.

Reaganite said...

This whole thing is funny.

A large percentage of Wisconsin lawyers were taught by Legal Realists, Crits and adherents to the Law and Society Movement. Many lawyers, as students, bought all or parts of these approaches to legal reasoning. They believe in a "fair result" approach to the law.

Of course their perception of fairness is dictated by their own ethos. Now, when someone else describes "fair approach," they yell foul.

How about we agree that, if judges want to be judged as independent and impartial interpreters of the law, they act that way while on the bench?