There’s a simple rule in Wisconsin regarding judicial elections. You can’t make a campaign ad that knowingly misrepresents your opponent. While you’d imagine that reasonable people might disagree about what constitutes misrepresentation, one expects that judges wouldn’t really get anywhere close to the line.
But not so in the election between Justice Michael Gableman and Louis Butler. Gabelman made a controversial ad and won the election, and then all hell broke loose. People argued he violated judicial codes of conduct, it went to the State Supreme Court, Gabelman had to recuse himself, and then the court split 3 -3 and issued two different decisions. So, you know, all the trappings of anarchy.
Of course race is involved. Because people don’t generally lose their minds and start acting like idiots in this country unless race is involved somehow…
The Wisconsin State Journal explains the ad that started the controversy:
During his 2008 campaign for the court, Gableman approved the ad showing the face of his opponent, Louis Butler, the state’s first African American justice, next to the face of a black rapist he represented years earlier as a public defender. The ad said Butler found a “loophole” and the man went on to rape again.
Okay, get clear in your mind what you think it means for a public defender to find a loophole for a criminal who then gets out and commits another crime.
Now, here’s what actually happened with Butler’s client:
Butler had won the man a new trial from the appeals court based on a procedural error, but the decision was overturned by the Supreme Court. The man served his full prison term before being released and committing another offense.
During the Kagan confirmation hearings, we heard a lot of talk about how judges need to be objective. How they should be open-minded. How they should not bring politics or personal bias into their chambers. But when you look at the rule, the ad, and the facts, can you really say that there is an objectively correct legal answer?
If you can, maybe you should run for state supreme court justice in Wisconsin. Because those guys are at each others’ throats:
In opinions made public at 10:30 p.m. Wednesday, the court split 3-3 on whether Justice Michael Gableman violated the judicial code of conduct when he ran a potentially misleading and race-baiting campaign ad in 2008…
Chief Justice Shirley Abrahamson and two others seen as the court’s liberal bloc said Gableman knowingly made a false statement suggesting his opponent helped free a sex offender who went on to rape again. They said a judicial panel wrongly recommended dismissing the case, and directed the Wisconsin Judicial Commission to seek a jury trial.
Three justices seen as Gableman’s conservative colleagues said the ad was distasteful, but the words themselves were “objectively true.” They ruled Gableman’s speech was protected by the First Amendment and directed the commission to dismiss its complaint.
Exactly as expected, a potentially interesting legal issue breaks down along party lines. What’s going to happen next? Nobody knows:
“I can’t quite fathom where it would go next. You can’t even say who won or who lost,” said former justice Janine Geske, now a law professor at Marquette University. “That is a real anomaly and I don’t believe there’s any precedent for them on how to handle that. It’s a quandary.”
Maybe this is what would have happened with Bush v. Gore had any of the Justices been forced to recuse themselves? As Carl von Clausewitz might have said: law is politics by other means.
UPDATE: Judicial elections in Wisconsin have an interesting history. To learn more, check out the podcast of Lat’s interview of Judge Diane Sykes (a current member of the Seventh Circuit and former member of the Wisconsin Supreme Court).
Supreme Court deadlocks in Gableman ethics case [Wisconsin State Journal]