Wednesday, April 04, 2007

Reflections on the supreme court race

This is likely to leave the court where it was. It is unlikely to make it a more conservative court because Justice Wilcox was the court's most conservative member.

Reports in the paper and by bloggers like Jim Rowen suggest that this a conservative one-two punch, with targeting Justice Louis Butler (who is up for reelection next year) as the lights out cross.

While I believe that Justice Butler is an intelligent and capable jurist, I have profound differences with him on matters of judicial philosophy and constitutional interpretation. He has authored and joined in some opinions, which apart from their merits (with which I disagree), would be effective campaign fodder.

But this does not guarantee that he will face strong opposition (look at what happened with Justice Crooks) or that he is in trouble. Incumbency is extremely powerful on the court. Only one sitting justice has ever been defeated for reelection and that was the guy who voted to let the Milwaukee Braves move to Atlanta.

Linda Clifford blames her defeat on money. That sounds a bit like sour grapes, but I can imagine how disappointed she is. I tend to give defeated candidates a lot of room on election night.

But is she right? It does not seem like the Clifford campaign was underfunded. It got its message out, but that message was all about Annette Ziegler. Having received the "gift"of the West Bend cases in January, she seems to have made the mistake of thinking that she could ride it to victory. So we heard about that, tendentious statistics about sex offenders and phone calls. (The latter had to be one of the dumbest attack ads ever; didn't her people realize that most - or at least many - voters make personal calls at work?)

Everyone hates negative ads. Everyone runs them because they work and our silly campaign finance laws tend to drive money toward them. But do they work to the exclusion of all else? What we never heard was a case for Linda Clifford.

Such a case would have been difficult because it would have gone against the conventions of judicial campaigns. She would have had to run as "the friend of the people" on the court, promising (however implicitly) to look out for them.

While there is polling that supports such an approach, it also runs against popular (and legal) notions of what judges are supposed to do. My recollection is that Walt Kelley tried something like this in '97 and it did not work.

I also think Mark Graul and Ziegler did a great job of staying on message. "Clifford is not a judge." While I believe that Clifford was right on the essential irrelevance of this (although I suspect Annette Ziegler sincerely disagrees), it has great value as a campaign theme.


Dad29 said...

Let us pray that the State's conservatives can find a solid oppponent to Justice Butler.

REALLY solid.

Anonymous said...

I do not believe that voters would have chosen the unethical Supreme Court candidate had it not been for the fear of the marriage amendment being overturned and potential pro-life legislation possibly being blocked.

No candidate could have won against those issues. But, it is very troubling to think of what we have to accept for that conjecture.

Rick Esenberg said...


The first seems to have little support in the record. No one made that an issue. Remember, the only basis for overturning the marriage amendment would have to be federal. That would be subject to review by the U.S. Supreme Court.

I would love to be persuaded that judicial restraint was the issue in this case. Although I certainly think it was an issue (a dispositive one for me), I'll wait to see some numbers before I claim too much.

Ben Masel said...

Pretty good analysis. Clifford never made a case to vote FOR her. Should have pushed Privacy.

Anonymous said...

Rick - the Christian right made both a big issue and Ziegler would never have won without their vote.

Ask Grothman if you don't believe me.