I had what I think was an illuminating exchange with the increasingly vitriolic local blogger Mike Plaisted at his site. He thinks that it was unfair for a Gableman campaigmn official to say that Justice Louis Butler "consistently sided with criminal defendants" in a series of cases. This, he says, draws into question Justice Butler's impartiality.
I disagree. I assume that Butler's ruling on matters of criminal procedure stem from his view of the pertinent constitutional provisions. I may disagree with those views but my criticism would not be that he isn't impartial.
Still, how do we frame that disagreement? I have blogged about the tension between the demands of the judiciary and our state's choice to elect judges. There is no easy resolution of that tension which is one of the reasons that I dislike truth commissions who suggest that there is.
But seeking to clarify what may or may not be permitted, I asked Brother Plaisted whether it would be permissible if someone had said that candidate X "frequently misreads the law to expand the rights of criminal defendants and impair the function of law enforcement."
After a bit of prodding (I'm getting used to it), Plaisted's answer was "no." Apparently, by his reading of the rule governing conduct in judicial elections, one can discuss the legal niceties of a particular case (what restrictions would be placed on that is unclear), but cannot categorize a judicial candidate's philosophy or perspective on a particular issue.
I find that to be an extraordinary position. Were the state to attempt to enforce that, it would be clearly unconstitutional. Even as an unenforceable aspiration, it seems ill advised and inconsistent with the way in which lawyers regard judges and in which judges function.
A judge does not approach each case anew with no preconceived notions of the law. If Louis Butler or Michael Gableman had no opinions about the 4th or 5th amendments, it would mean that they had not thought about them and were, for that reason, unqualified for the high court. (Happily, this is not the case.) To be open to the arguments in a new case is not to pretend that one has no views on the legal issues involved.
Differing views on those legal issues matter and it seems to me that it is fair to debate them.
Let's change the hypothetical. Imagine that Justice Thomas served on the Wisconsin Supreme Court and was running for reelection. His opponent releases a statement saying that "Justice Thomas consistently misreads the law to prohibit race-based measures to improve the lot of minorities."
I would not agree with that statement but I would not regard it as beyond the scope of proper campaign discourse because it "questioned" Justice Thomas' "impartiality." What it questions is Justice Thomas view of equal protection.
I am perfectly aware that criminal cases are a source of difficulty in judicial elections because the public will tend to undervalue the procedural rights of defendants. To use an example pertinent to the current election, some people may criticize Justice Butler for his decision in State v. Anderson, a 4-3 decision in which a new trial was ordered for a man convicted of brutally raping and murdering a young woman in Madison. Fair enough (three justices did go the other way), although, based on what I know of the case, I probably would have agreed with Justice Butler. I don't know that the guy is innocent, but it looks like he deserved a new trial. Even a conservative may side with the claims of a criminal defendant.
But that can hardly mean that the question of a judges' views on the rights of criminal defendants is off the table.
I really don't see an alternative to an open and robust debate of the issues.
The argument that this type of close restriction of campaign speech is required for an independent judiciary (and that term is quite clearly going to be a talking point)is a bit of a non sequitur. We obviously don't believe that the judiciary ought to be independent from the public in the sense that the public can't evaluate how it has decided cases. If we felt that way, we wouldn't elect judges.