Supreme Court Election

2008 Wisconsin Supreme Court Race
By Jim Hough

The Hamilton Consulting Group

March 2008

Election of Judges/Justices - A Perspective

To any observer, most members of the state and U.S. supreme courts are categorized as judicial liberals or judicial conservatives, and they are generally “predictable” as to their respective approaches to certain categories of cases. Those not easily fitting such labels are viewed as “swing votes” on key decisions.

Since most states, including Wisconsin, have opted to elect members of the judiciary, the voters have the same right as in other elections to learn about the candidates, their philosophies and views - short of commitments to vote certain ways on future issues to come before the court. This admonition has come directly from the United States Supreme Court and was recently reinforced by federal district Judge John Shabazz.

Polls consistently show that the vast majority of people cannot name members of our Supreme Court and do not even know how many members are on the Court. While debates and various forum opportunities exist to allow candidates to express their views, newspaper, radio and television ads by candidates and groups supporting their candidacies are as appropriate as in any other election - perhaps even more appropriate, since there is generally less free media coverage. While not always pretty, these are rights of free expression guaranteed by the First Amendment.

To provide a different (public funding) means of financing judicial campaigns is not justified and clearly favors incumbents at the expense of providing more complete information to voters.

The 2008 Wisconsin Supreme Court election has witnessed a very disturbing development as the State Bar of Wisconsin created a self-appointed “watchdog” group that issues “opinions” on advertisements by or on behalf of the candidates, empowering the “committee” to apply unavoidably subjective judgments on candidates and independent ads; make public pronouncements that are used as negatives against specific candidates, inferring ethical judgments from this “anointed” committee; and, potentially unduly influencing the election process. This also raises First Amendment concerns and it takes more to dismiss legitimate First Amendment concerns than for a lawyer’s organization to simply say they do not exist.

On Monday, March 24, the Wall Street Journal, in an editorial on the Wisconsin Supreme Court race, included the following:

“Refereeing all this is a supposedly bipartisan "watchdog" group known as the Wisconsin Judicial Campaign Integrity Committee, formed in December. Chaired by Tom Basting, president of the Wisconsin Bar Association, the group claims to represent the interest of fair and impartial courts. They want both candidates to sign a "Code of Judicial Conduct" campaign pledge, which Mr. Gableman has so far declined to do.

So who are these self-appointed guardians of fairness? Of the committee's eight members, seven are Democrats -- either political leaders or donors to Governor Doyle. Three are reported to have ties to Justice Butler's campaign. And in emails collected by the Wisconsin Club for Growth in February, committee members were quoted as calling Judge Gableman's campaign aides "mercenaries" and suggesting campaign strategies that might benefit Justice Butler.”

If the State Bar and others are legitimately concerned about issues surrounding the election of judges and justices, the answer is to work toward changing the system to one more tightly drawn for appointing judges and justices. That is a different system. As long as we embrace the election of judges and justices, however, we must abide by the election process, the right of free expression and the importance of developing, as best as possible, an informed electorate.

The Candidates in 2008: Justice Louis Butler and Judge Mike Gableman
The 2008 Wisconsin Supreme Court election pits incumbent Justice Louis Butler against challenger Mike Gableman, a sitting Circuit Court Judge in the race for a 10-year term on the Court. Justice Butler was appointed to the Supreme Court by Gov. Jim Doyle in 2004 to fill a vacancy created by the appointment and confirmation of Justice Diane Sykes as a member of the U.S. Circuit Court of Appeals for the 7th Circuit in Chicago.

Under Wisconsin law, Justice Butler was not required to run for election until this year. The Wisconsin Constitution provides that no more that one Supreme Court member can be elected in the same year and 2008 is the first “open” year for Justice Butler. Butler previously ran for the Court but lost to Diane Sykes.

Justice Butler has an undergraduate degree from Lawrence University and his law degree from the University of Wisconsin Law School. He is a former public defender (13 years), municipal judge (10 years) and circuit judge (2 years).

Judge Gableman is a 1988 graduate of Ripon College who received his law degree in 1993 from Hamline University Law School. In addition to teaching in the Milwaukee Public School System and a brief stint in private practice, he served as an assistant district attorney for 3 years, district attorney for 3 years, and has been on the circuit court since 2002.

(Please see side-by-side bios.)

Some Comparisons
Both men are well liked and have contributed significantly to their chosen profession and to their communities.

Louis Butler spent 13 years as a public defender representing persons charged with crime who could not afford to retain their own counsel. Mike Gableman spent six years prosecuting persons alleged to have committed crimes. Both roles are honorable and necessary functions within our system of justice, although likely to nourish different perspectives on the administration of criminal justice.

Louis Butler had four years of trial court experience, with years on the municipal court and two years as a circuit court Judge. Mike Gableman is in his sixth year on the circuit court bench.

The Big Issues
The campaigns focus on crime and law and order, as public safety issues always resonate with voters - as well they should. The criminal law field is not our area of expertise and we refer you to the candidates’ websites for lists of endorsements and discussion of decisions and philosophies in the criminal law area.

On the civil justice side, the question of judicial philosophy leads to a debate over whether recent high profile decisions - particularly from 2005 - constitute “legislating from the bench” and setting public policy, as opposed to providing deference to the Legislature and following precedent of previous decisions.

As a trial judge, there are no appellate court decisions from which Judge Gableman can be quoted. Justice Butler, on the other hand, participated and was in the majority for significant decisions relating to the standards for punitive damages, caps on medical malpractice non-economic damage awards, and expanded liability to companies within an industry without the need to prove that the companies manufactured, sold or distributed the product alleged to have caused the injury (risk contribution). Critics from the civil justice and business communities suggest that all were examples of the Court’s substituting its public policy preferences for that of the Legislature or previous decisions.

The “risk contribution” decision that Justice Butler authored has been termed by a former law school dean and expert in mass torts as “the single most radical departure from traditional tort law in this country in decades.”

Justice Butler’s defense, in his ads, is that he has ruled against big corporations where they have harmed Wisconsin citizens.

The election is Tuesday, April 1, 2008.