The Wisconsin Supreme Court is disgusted with how political the institution has become.  In fact, they are so repulsed by the political tone the Court has taken, they are trying to fix it by using the most powerful tool they have:


Generally, we think of “politics” as the act of trying to get someone elected.  But three liberals on the Wisconsin Supreme Court are doing the opposite – essentially trying to get one of their colleagues un-elected.  Their shady effort to force Justice Mike Gableman to recuse himself from criminal cases is merely a veiled attempt by his ideological opponents on the Court to nullify the election in which the conservative Gableman beat liberal Justice Louis Butler in 2008.

It’s not as if liberals exactly take any hints from the voters, anyway.  In 2000, Butler lost to conservative Diane Sykes in a race for the Supreme Court.  Shortly thereafter, when a seat opened up, Democratic Governor Jim Doyle appointed Butler to the Court, ignoring the previous popular vote.  When the voters threw Butler off the Court in 2008 in favor of Gableman, the Obama administration appointed Butler to a federal judgeship.  (Maybe if Butler loses one more time, he’ll be ready for a U.S. Supreme Court nomination.)

Clearly, elections are of minimal importance to liberal jurists.  And we’re seeing that phenomenon in action with the Court’s actions to essentially overturn Gableman’s victory over Butler.

During the Butler/Gableman campaign, Gableman ran an ill-advised ad that accused Butler of being soft on crime.  The ad dealt with Butler’s time as child molester Reuben Lee Mitchell’s defense attorney, accusing Butler of freeing his client so he could then go on to molest another child.  In fact, Mitchell served out his entire term and only molested another child after his initial term was over.

The discretion in airing the ad was questionable – especially since the candidate himself ran it.  (We normally associate those types of ads with third parties, which will be discussed shortly.)  But Gableman didn’t show any bias against criminal defendants, and he didn’t break the cardinal rule of judicial elections by commenting on any future issues that may come before the Court.  He was merely doing what Supreme Court candidates do these days, by painting himself as a jurist who upholds the criminal laws as written.  (It should also be noted that Butler himself ran ads bragging that he’s “protected the public from criminals” and saying “if you rob someone, you should be punished.”*  Chances of recusal motions being filed from criminal defendants if Butler had won: zero point zero.)

In fact, just a year later, Chief Justice Shirley Abrahamson ran her own campaign, having clearly learned the lessons of modern judicial campaigns.  Abrahamson’s television ads featured Dane County Sheriff Dave Mahoney driving around in his squad car, informing the viewer of Abrahamson’s work “protecting Wisconsin families.”  While much more vague than Gableman’s appeal, it was clearly meant to send a similar message: Shirley’s on the side of law enforcement.  (See the ad here.)

However, nobody seems to care what legally intemperate statements Abrahamson made during her campaign – including her claim that she’s “helping homeowners work out solutions to home foreclosure” and “protecting consumers from abuse.”  One would imagine any bank or business interest appearing before the Court might object to Abrahamson’s depiction of their industry as predatory.  (Furthermore, even ex-gubernatorial candidate Barb Lawton – BARB LAWTON!has pointed out that a quarter of Abrahamson’s donors will come before the court in some fashion.  If you’re a lefty and Barb Lawton calls you out, you have done something historically objectionable.**)

Yet it’s the Gableman campaign’s TV ads that are now keeping defense attorneys up late at night, filing motions for him to recuse himself in criminal cases.  Such was the case last week when Assistant State Public Defender Ellen Henak filed a motion attempting to force Gableman from participating in a case dealing with how sentencing credits are counted in Wisconsin versus other states.  While standing in front of the Court, Henak nailed herself to a cross of fabrication, arguing that the Court was “forcing” her to move ahead with oral arguments against her will.

While the substance of the case is fairly run-of-the-mill procedural stuff, the Court’s public reaction to it has been unprecedented.  The tumult began the week prior to oral arguments, when three of the Court’s liberal justices issued a public statement urging postponement of the case until Gableman’s situation was rectified.  This is the first time many long-time Court observers can remember justices serving as their own press secretaries and discussing a case openly before it even hits their chamber.  Three conservative justices then responded via the media themselves, saying Gableman’s case before a three-member panel has been taking too long.

Of course, Gableman took part in the oral arguments for the case last week.  He simply has no choice – if he recuses himself from a criminal case just once, then defense attorneys across the state will smell blood in the water and grab hold of that loophole as long as he’s on the court.  The legal toothpaste will then be out of the tube.  In fact, it is rumored that some notable defense attorneys are already urging criminals to automatically file recusal requests as soon as their case gets to the Supreme Court, simply to tighten Gableman’s briefs (so to speak).

In the mean time, all the usual suspects arguing for public funding of Court elections have been coming out of the woodwork, saying that all this unrest is somehow the result of too much money in Supreme Court elections.  In fact, this argument has exactly nothing to do with the Court’s current conundrum.  Gableman’s ad was run by the candidate himself, not the “shady” third parties that taxpayer financed elections are supposed to thwart.  If Gableman had been handed a $200,000 check by the taxpayers of Wisconsin, he likely would have run the same ad.  Abrahamson would probably have used the money to continue to paint herself as tough on crime.  Using the Gableman brouhaha to argue for public financing is like a doctor removing your pancreas if you’re complaining of an ear ache.

So it is clear that politics has taken hold of the Wisconsin Supreme Court.  But it has nothing to do with elections.  Instead, it has to do with the desire of three of the Court’s justices to nullify the results of a popular election when it comes to criminal matters before the court.  And there’s no amount of campaign finance reform that can undo the desire of individual justices to politicize the institution by trumping up phony ethics charges.


*-Butler’s harsh “anti-robbing people” stance clearly lost him the much-sought-after “Flamboyant French Safe Cracker” demographic.

**-Lawton also claims that special interests spent less on the Abrahamson/Koschnick race than the Butler/Gableman race because of the “diminishing of the stature of the court.”  This is Olympic-level goofballery.  Special interests spent less because Abrahamson has been on the Court for 30 years, and her race with Koschnick was never close.

In other news, WPRI has obtained a behind-the-scenes video of the justices settling their battle behind closed doors: