hearts and minds

April 6, 2008

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.


  1. Excellent piece, Clyde. What is most disturbing is that WMC and the other special interests, including WEAC, are able to elect our judiciary through their cash contributions. How’s that for a clean justicial system?

    The state Supreme Court justices are now for sale, along with the state legislature that refuses to reform the system because they don’t want to also be reformed.

    Aren’t our politicians the best?

    Comment by MoneyedPoliticians — April 6, 2008 @ 5:31 am | Reply

  2. Don’t forget to mention the (partisan national based) Club for Growth (COG), and the (partisan national) Coalition for America’s Families (CFAF) along with Wisconsin Manufacturers and Commerce (WMC), Jack. Those three groups all are comprised of unidentified members, largely including corporations. Together, these Gableman backers spent twice as much on phony issue ads as did the Butler backing (Milwaukee based) phony issue ad group, Greater Wisconsin Committee (GWC). Issue ad groups are not required to identify their members or who contributes to them. And corporations can anonymously contribute unlimited amounts to these unregulated groups. Talk about a “loophole”! This new loophole destroys Wisconsin’s long-standing prohibition of corporations funding election campaigns.

    The Wisconsin Education Association Council (WEAC) did not engage in the 2008 Supreme Court campaign as a phony issue ad group. WEAC engaged (as did other groups, like the National Rifle Association) as a registered and regulated political action committee (PAC). Corporations cannot legally contribute to independent expenditure (PAC) groups. And these PACs must quickly disclose expenditures, who their contributers are, and must identify themselves and the candidate they are endorsing.

    You and I might not like PACs, but they are not the biggest problem now. Saying that PACs (rather than phony issue ad groups) are the problem with Wisconsin elections now misses the mark like saying that personal injury malpractice suits (rather than insurance industry mismanagement and profiteering) are the reason for health care costs in the USA being twice (per capita) the cost of health care in any of the 30 or 40 other countries in the world that have better health care outcomes than we have here. The big problem with election campaigns is the phony issue ad loophole.

    Check the hyperlinks I provided in the text of the above article to see definitions and particulars identifying and comparing “issue ad” groups and “independent expenditure” groups.

    Comment by clyde winter — April 7, 2008 @ 12:56 pm | Reply

  3. I’m not the best one to argue about the “who’s and why’s” of phoney issue ads, Clyde, except to say that whoever they are, they ARE NOT the voters or taxpayers of Wisconsin. This world is filled with people who want to transfer wealth from your pocket to theirs, either by ripping you off in the health care system or stacking the deck with judges that will make probusiness/antipublic decisions. That’s why they’re rich and we aren’t.

    That’s the problem. The system is corrupt and the state’s politicians are willing to give the special interests a pass, because, don’cha know, they don’t want to also have meet the same ethical guidelines. The corrupt political system gives them a 9-to-1 advantage, and the cleaning up the system would reduce that to 5-to-5. The last thing in the world they want is a level playing field.

    We either have to live with it, or force a major turnover in November.

    Comment by MoneyedPoliticians — April 7, 2008 @ 2:05 pm | Reply

  4. Milwaukee absolutely has to be better organized in these elections. Butler lives in Milwaukee, and the turnout here was tepid, leaving him vulnerable to higher turnouts for his opponent in the suburbs.

    Where was the Democratic Party in this campaign? Where were traditional allies, like Citizen Action? I got minimal literature at the door from these groups.

    I saw no organized effort by Milwaukee’s legislative delegation on Butler’s behalf.

    None of this is sufficient.

    Comment by Jim Rowen — April 7, 2008 @ 3:23 pm | Reply

  5. Judicial elections are supposedly (and certainly should be) non-partisan. That doesn’t mean that partisans can’t or shouldn’t vote and sound off, of course.

    But more to your well-taken point, James, I wonder, “Where were the people in those suburbs who want and value an impartial, independent judiciary, with integrity (not to mention excellent competence)?”

    “Where were the people in those suburbs who demand that the Constitution and Bill of Rights be respected and defended, and who admire the character and the inspiring precedent and example of a man like Justice Butler?”

    “Finally, where are the people in those suburbs whose values are repeatedly violated and trampled by the legislators who supposedly represent them; legislators who grin and twiddle their thumbs every shoo-in election?”

    Comment by clyde winter — April 7, 2008 @ 4:44 pm | Reply

  6. … friends, blogging is not enough – we need to find ways of reaching out, way out, into the broader community. So here are some thoughts:

    1) We need serious, major, public education on the role of appellate judges in our system. Rather than pouring however much money its spending on its campaign for “branding” attorneys, perhaps the state bar could spend more to support more public education efforts. WMC aside, in reality the Supreme Court’s role in criminal sentencing – and especially in “stopping crime” – is limited. That’s the job of prosecutors (and police), not the appellate courts. Obviously, that’s not how far too large a segment of the public sees the court’s role. Lawyers – get on your state bar representatives and push them to put money into this. Nonlawyers – think of other groups, community groups, etc., who could help with this effort!

    2) We need to look at turnout. And then look at it again. And again. Turnout in the city of Milwaukee was abysmal – and that could have made the difference. Turnout on college campuses – which were flooded with voters for Obama just weeks ago – was also low. WHY? Does this relate to #1? Is there a need for more education on what judicial elections mean (and NOT just about criminal justice) and why people need to get out and vote in them?

    3) Apropos to #2 – why, exactly, do we have these elections in April? Turnout is almost uniformly low, whoever’s running,whatever’s on the ballot.

    Which, it seems to me, poses a greater burden (and less likelihood of participation) on some people in the community than others – low wage workers, for example, who don’t want to take time off and lose pay, or inner city residents with no transportation to the polls. (And who knows what’s up with the college students). Certainly it’s easier to get turnout in November – that’s when (at least every other year) the perceived “big ticket” items – governor, president, senator, etc – are on the ballot. And it seems to me that more turnout, of more sectors of our community, is likely to achieve a better result – not always, of course, but hopefully to militate against some of the right-wing hysteria that drove too many voters to the polls on Tuesday. So – why couldn’t the judicial elections also be held in November (heck, go ahead and add in school boards, county execs, mayors, whatever)? The Wisc constitution only says the judges take office in August. It doesn’t appear to require elections in April (see Art 7, Sec 4). Would that get more people to the polls? would getting more people to the polls lead to a more fair and representative outcome?

    Comment by PurpleAvenger — April 7, 2008 @ 6:25 pm | Reply

  7. Very well-written and I couldn’t agree more. That election was both a travesty and a tragedy for the people of Wisconsin.

    Comment by Rich S — April 7, 2008 @ 11:03 pm | Reply

  8. Jim Rowen writes: “Where was the Democratic Party in this campaign?” Jim should be aware that under the current rules Justice Butler was not allowed to be a member of the Democratic Party, and it would have been a displinary offense for him to seek it’s support.

    I suspect Justice Butler would have won if working class Democrats had known that he was the standard-bearer of the progressive principals of the Democratic Party. True, they might not agree with him on all criminal justice issues (I don’t), but they know which party represents their interests on issues involving the right to organize unions, the right to bargain collectively, the right to a safe workplace, etc.

    By depriving him of the right to affiliate with a party, these rules cost him the election. The fact is that better than 75% of the State Supreme Court’s work has nothing to do with criminal justice issues. It involves issues of corporate liability for torts, worker’s rights, etc. That is why corporate America is willing to spend millions to defeat a progressive justice; and that is why the current rules of judicial conduct hamstring a progressive justice from belonging to the union movement, the progressive movement, the Democratic Party,

    We don’t want justices with closed minds. I would have been disappointed if Justice Butler didn’t side with big business when the facts of the case warranted it.

    But he was prevented from letting the voters know that he stands with the people, not the special interests, by unconstitutional rules of judicial conduct that even prevented him from asking people for money for his campaign.

    That is why I am challenging those rules in federal court. If Justice Butler had been able to ask for money for his campaign, he could have told the voters that the State Supreme Court has relatively little do do with criminal justice issues (most of those cases are decided in the Court of Appeals). That the major issues facing the State Supreme Court involve corporate liability for things like personal injuries.

    But the voice of truth was silenced. Let us hope by the time Chief Justice Abrahamson stands for election, free speech will prevail and the truth will be known.

    Comment by John Siefert — April 7, 2008 @ 11:30 pm | Reply

  9. […] closely observed … wisconsin-supreme-court-elections-past-and-future […]

    Pingback by wisconsin supreme court election — April 18, 2008 @ 5:14 pm | Reply

  10. Points of disagreement

    1. The public seldom gets to know much about candidates until just before an election. They are then fed (bombarded) with information which may or may not be honest and accurate. The public is seldom aware of ways to verify such information.

    2. The public has difficulty knowing if the ads they see/hear are by the candidates and their supporters, or if they are by “third party” groups.

    3. In judicial elections in particular, the public has little access to what an incumbent or his/her challenger have done or are doing.

    4. If any candidate does wrong, while in office or running for office, they should be held accountable. The public is seldom aware of such wrongs and those in law and politics who do know seldom choose to act.

    5. The public has little access to information on how much influence corporations have on elections. Political Action Committees have great influence at the Federal level too, but the public is not informed of their actions and can do little to change the situation.

    6. Note the following quote from Mr. Winter: “Not many voters know that the extremely intelligent, thoughtfully moderate Louis 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.” The preceding quote means nothing. Mr. Butler was running on “his” actions, not his relative’s actions or occupations. As Mr. Butler should be able to attest to, even good families sometimes produce “bad apples.” Also, Mr. Winter’s reference to Mr. Gableman as “a mediocre third stringer” is unsubstantiated in the editorial and is an open show of bias.

    7. Mr. Winter refers to a “racist” ad in which Mr. Butler’s picture is shown next to the picture of a convicted African-American rapist. I was concerned about the accuracy of the information, which the news media verified was incorrect, rather than any racist intent. I think you’ll find that most voters were fed up with the total negativity of the campaigns and had little thought about racist positions. The failure of both candidates to have any control over the ads that were run was surprising since both of them specialize in law.

    8. To Mr. Winter: Mr. Butler, like Governor Doyle, supports the gay agenda. I was unable to find any information on Mr. Gableman’s position on this issue. I personally didn’t like either candidate. Rather than totally withhold my vote I decided to vote for the “lesser of two evils.” Mr. Gableman got my vote. My vote was not based on race or ability. I suspect you’ll find that many in the state were in the same position as I was when it came time to vote.

    Comment by Larry L — April 30, 2008 @ 12:04 pm | Reply

  11. My column, “Human and Civil Rights, Law, and the Wisconsin Supreme Court” addresses criticisms raised in the previous comment, and corrects some of its factual errors. It will be posted May 1.

    Comment by clydewinter — April 30, 2008 @ 12:47 pm | Reply

  12. […] reader last week commented (comment #9) on my article regarding the Wisconsin Supreme Court election. While I cannot concur with all of his points, I […]

    Pingback by Human and Civil Rights, Law, and the Wisconsin Supreme Court « hearts and minds — May 1, 2008 @ 11:52 am | Reply

  13. […] a recent historical note relevant to this analysis, remember when Justice Louis Butler was running for re-election to the Supreme Court against mediocre partisan hack…? (Gableman was publicly endorsed by Republican County Sheriff Maury Straub and Republican Caucus […]

    Pingback by Why Feingold is out in Wisconsin « hearts and minds — November 19, 2010 @ 12:47 pm | Reply

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