Wisconsin Supreme Court Elections, Past and Future

The April Fool 2008 Wisconsin Supreme Court election campaign was publicly conducted as an anti-criminal crusade. The contest was framed as between a law-and-order challenger and a liberal, criminal coddling incumbent. But honest, intelligent people across the political spectrum who have closely observed recent Supreme Court elections know that the real contest was about something else.

Challenger Gableman won, backed by three well-funded special interest groups, with unidentified members. Incumbent Butler lost, also backed by special interest groups. But Gableman backers had 2,250,000 dollars while Butler backers had just half that sum available for phony issue ads.

Phony issue ads present a “loophole” of unlimited size by which corporations, as well as other groups and individuals can influence an election, without any disclosure requirements. This loophole is not available to the candidates themselves, or to independent (PAC) expenditures. (So we can’t know who, specifically, funded those phony issue ads. But corporations backed Gableman and unions backed Butler.) Those groups spent more than 90 percent of all the money spent on TV ads. Those groups have explicitly named their special interests. But none of those interests include safe streets and protection of citizens from criminals. The real contest underlying these recent judicial elections is corporate power vs. government of, by, and for the people. And the corporations have been winning.

Scott McCallum appointed attorney Gableman as Burnett County Circuit Court Judge right after Gableman hosted and organized a fundraiser, and made a substantial personal contribution to Republican Governor McCallum’s election campaign. Gableman used a government supplied office phone and facilities in this partisan campaign effort. Gableman had never lived in the tiny population Burnett County. But McCallum subsequently appointed Gableman despite two other qualified persons being recommended for that office by the judicial merit selection panel, and despite Gableman having missed the application deadline.

Jim Doyle appointed Judge Butler to the Supreme Court after Butler was named the top candidate by the non-partisan judicial merit selection process. Louis Butler has been an excellent, well-respected judge longer than Michael Gableman has been a mediocre lawyer.

Judge Gableman’s campaign “benefited” from the sleazy, distracting, outright fabrications of the phony issue ads run by three secretive front groups, with much funding coming from unidentified out of state connections. But that’s not all. Gableman himself ran disgusting ads promulgating lies and misinformation that discredited the judiciary, the legal profession, and the citizens of Wisconsin.

Justice Butler’s campaign “benefited” from phony issue ads that might be characterized as sleazy that were run by front groups. But they did not employ lies or intentionally misinform voters. The Butler campaign itself ran no sleazy, misleading ads. The campaigns were not equivalent, or even on a par in terms of integrity.

In Burnett County (where Gableman was a Circuit Court judge) on the April Fools Day election, the 2400 people who voted there favored Gableman by a higher percentage than any other county in the state. But other than the relative handful of people in Burnett County, the three Wisconsin counties that turned the coldest of shoulders to incumbent Justice Butler were Washington, Ozaukee, and Waukesha. Those three counties rejected Justice Butler by a vote of 2 to 1. That is about the same percentage that those three counties regularly turn their backs on popular three-term Senator Russ Feingold, and that is the same percentage by which voters in those three counties twice approved the Administration of George W. Bush, while Bush lost statewide. The margin of votes that Waukesha County, alone, bestowed upon the dull, mediocre party hack Judge Gableman, was more than enough to hand the Wisconsin Supreme Court seat to him. If Waukesha County had not voted on April Fools Day, Justice Butler would have been re-elected.

Not many voters know that the extremely intelligent, thoughtfully moderate, Justice Butler comes from a law enforcement family. Indeed, a close relative of Justice Butler was a police officer who had been killed in the line of duty. Justice Butler was the first African-American ever to hold office in Wisconsin as a Supreme Court Justice. He voted with the majority on the Court 85 percent of the time (which is the second highest percentage among the seven sitting Justices). Justice Butler voted to uphold criminal convictions in 97 percent of the cases considered by the Supreme Court. Justice Butler is not, by any means, an out-lying, criminal-coddling maverick. Justice Butler was attacked by the phony issue ad groups because of rulings in which he joined with the majority in preserving individual citizens’ rights with respect to corporations.

When third-stringer Gableman takes office, it will be the first time ever that not one Justice of the Supreme Court will have professional/judicial experience rooted in Milwaukee (which is Wisconsin’s largest city, with one-sixth of the population of the entire state). It will be the first time since Martin Luther King was assassinated that voters have turned out a sitting Wisconsin Supreme Court Justice.

When Justice Butler lost this election, Wisconsin lost the opportunity to thank him appropriately for his careful, reflective, impartial, independent work on behalf of the people of the state. When the electorate succumbed to the multi-million dollar attack of the sleazy, misleading, lying, phony issue ads, funded in secret from unknown corporate sources, and to the disgusting lies from Gableman himself, Wisconsin lost the opportunity to have the proud honor of electing a Supreme Court Justice who would have been one of the most qualified, most deserving, most intelligent and thoughtful Justices that Wisconsin has ever had, as well as the first African-American Justice ever elected by the people to that office here.

Now that the Wisconsin Supreme Court has fallen under corporate control, and the technique has been tested and expanded, we can expect Supreme Court Chief Justice Shirley Abrahamson, the first woman on the high court, serving since 1976, to have the re-election fight of her life next year. Like Justice Butler, she has solid credentials, an impeccable professional reputation, and adamantly upholds and respects judicial impartiality, integrity, and independence. And like Justice Butler, it is highly unlikely that her intelligence and experience and careful judgment will be nearly matched, much less exceeded by whoever is picked and propped up to oppose her. She has the utmost respect of all her peers.

But those attributes didn’t matter when Justice Butler was unseated by third-stringer Gableman on April Fools Day. Chief Justice Abrahamson could be in trouble. In fact, she has hardly a chance against these tactics that have no ethics or principles, but have unlimited money from unidentified sources. Except for one thing. Chief Justice Abrahamson is white. Even if we are unable to secure needed campaign finance reforms in time (due to partisan and corporate funded opposition), bushels of anonymous corporate funding may have a harder time hijacking the next Supreme Court election from the people, when racism and baseless fear won’t be as easily provoked and exploited. But that shouldn’t make anyone feel any better.