Reviewing the WIsconsin Judicial Integrity Committee

The Wisconsin Judicial Campaign Integrity Committee has released its response to One Wisconsin Now's complaint about some campaign literature put out by Supreme Court candidate Mike Gableman.

In a three paragraph statement, the following words are the only one that purport to address the Gableman communication: "While the Committee has decided that no formal action is necessary ...."

What does this mean? The committee is not empowered to take any "formal action" or to do anything other than what any other citizen can do. Does the committee mean to say that it thinks that Gableman communication does not violate the rules? Or does it mean to say that it might, but its not bad enough to warrant further action?

Having said as little as it did about the actual issue it was asked to comment upon, the statement goes on, at some length, about the nature of the judiciary and campaigns that seems to be intended as an indirect criticism of the Gableman piece. If so, it must be rooted, not in a belief that he has violated any rules, but in a sense of the committee that his literature was not to their taste.

The money line seems to be that "advertisements that state or imply that a candidate who has been or will be biased in favor of a particular party to the legal system undermine public trust and confidence in a fair and impartial judiciary."

Did Gableman do that? One can certainly read the statement to imply that but, with all due respect, if you are going to assume the mantle of an impartial arbiter of the propriety of campaign discourse, it behooves you to be clear about such things. If you think a candidate did something that he should not, say so and explain why. Don't try to sneak in an elbow.

As for the statement as it applies to the Gableman literature, you can always argue that the statement was crude. This is going to be true of many advertisements in judicial campaigns because a full and complete explication of the issues is going to be beyond the limitations of most forms of campaign communication and, perhaps, beyond the understanding (or, maybe more accurately, the interest) of the general public.

Having said that, it seems to me that one of the ways in which judicial candidates can differ is in their philosophy regarding the scope of procedural protections for criminal defendants. This doesn't mean that a one candidate is always going to side with the prosecution and the other with the defense (to be specific, Justice Butler has not done that), but that they have different views of the proper balance to be struck in those cases where people can differ over what the statutes and Constitution require. For example, I think it's fair to say, that one of the ways in which former Chief Justice Rehnquist differed from former Justice Brennan was in their conceptions of the precise nature of the 4th and 5th amendments.

There are traps in the public discussion of such issues because lay people are likely to undervalue the rights of the accused, but we in Wisconsin have decided to elect judges. If the committee means to suggest that the identification and discussion of these differences is beyond the pale of appropriate campaign discourse, we are going to be left with a somewhat sterile debate.

And, in light of the prospect of substantial money being spent on this race, what are the implications of the statement for arguments that a candidate will be beholden to the interests that contribute to, or spend money on behalf of, his campaign? Does that undermine confidence and trust in the judiciary? Will OWN follow the committee's advise on that issue?

It is possible that the statement reflects a divided committee and is a compromise of competing views. I would have argued against a compromise statement. If an issue brought to the attention of the group is such that the members differ, then it seems to be more candid and instructive to say so rather than to forge a false unanimity. If intelligent and reasonable lawyers disagree on what a standard requires, then I think it informs the public to say so.