Supreme Court ads

Some people commenting on wholly unrelated posts want to know what I think of the Mike Gableman ad commenting on Louis Butler's representation of Reuben Mitchell back when he was in the public defender's office.

I'll get to it but I also want to catch up on a few other ads.

The Greater Wisconsin Committee has put out an ad criticizing Gableman for not obtaining sufficiently weighty sentences as a prosecutor and pronouncing insufficiently weighty sentences as a judge. I haven't caught any bloggers on the left objecting to the ad which would have made them all apoplectic had it been directed at the incumbent. How can we possibly tell whether these defendants deserved more? You can't assess the propriety of an outcome without some background. The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee - funded by trial lawyers, unions and casinos - has absolutely no interest in electing someone who is "tough on crime.

Then Justice Butler's campaign came out with this ad, saying that the Court's work is about "right and wrong" and trumpeting his decisions against businesses and in favor of, literally, widows and children. This strikes me as a good ad for those who favor a results oriented court. The court's business is not about "right" and "wrong" but about what the law does and does not permit. Moreover, were I in favor of aggressive use of the judicial code to police campaign ads, I could argue that the ad misleads the public about the role of the courts and suggests a bias against the interests of a class of parties. One would think that the WJCIC would ride on this one.


Finally, there is the Gableman ad. I am very disappointed that the campaign ran that ad. If the point of the ad is that criminal defense lawyers are "unsafe" as judges, it works against one of the presuppositions of our adversarial system of justice (albeit a presupposition that the general public tends to be uncomfortable with). There are criminal defense lawyers who come to have a certain type of guerrilla complex and see themselves as called to throw monkey wrenches into an unfair system. They shouldn't become judges. But that's a far cry from making an argument for a client.

I don't think it's fair to criticize a lawyer for his or her clients. It wasn't fair when the Senate Democrats did it to Miguel Estrada and it's not fair here. It was Butler's job to look for "loopholes" on Mitchell's behalf. I have nothing to do with the Gableman campaign, but I would have rather strongly counselled against this ad. If one wants to criticize Justice Butler's approach to criminal cases, there are far better ways to do it.

Now, I understand that I am also supposed to say that the ad is racist, but I am not going to do that. There is this proposed convention that, if someone is going to make crime an issue, it ought not to be done by depicting a black offender. If the issue is going to be made concrete by reference to something or someone, we should find a scary looking white guy instead.

I understand why someone would argue that this could have special appeal to someone with racist notions about blacks and crime.I also appreciate the argument that linking blacks to crime, even if the incident portrayed is accurate, can contribute to racially retrograde attitudes.

While I think all of this suggests a certain circumspection on these matters, I am not prepared to say that anytime a candidate for office depicts a black offender in the course of making an argument about public safety, he or she has committed a racist act or given comfort to racists. I am not prepared to pronounce, without more, on the state of someone else's soul.