There are some things that are going to require public discussion in the wake of our recent Supreme Court election, but now is not the time to do much more than note them. I know that I get readers across the political spectrum here and, for those who supported Justice Butler, the morning after your candidate is defeated is tough. You lost. You're angry. You're not interested in a discussion of the issues that arise in the wake of an election.
But a few things.
First, it is not uncommon to blame a defeat on the other side's perfidy. We should have won, but they cheated. This reaction is almost always wrong. Not that the voters always get it right, but there is usually some substantive reason why one side or the other wins an election. In this case, I think what happened was a reaction to what has been going on at the court. I think through all the nonsense, something of that got through.
Second, there are people who believe that this should not have happened. For them, judicial independence means decisional independence. Fred Kessler essentially said this last night on WPR in support of his amendment to appoint the Supreme Court. I have mixed feelings on this issue, but, when we appoint judges, there is, at least now, no such thing as decisional or ideological independence. Fred's proposal shifts the politics to another forum. It doesn't eliminate it.
Third, this is not to say that there weren't all sorts of problems in the campaign. The tone was ugly - on both sides. It was often cringe-worthy. But the idea that this is caused by money or third parties or "the right" is silly. It is part of our political culture and, if I can be permitted, bloggers who call the other side "deranged," "one-trick caged orangutangs," "WMC stooges" and "racists" might do well to reflect on that. Eliminating money from the process won't stop venemous political converation, it will just make sure that no one hears it. In judicial elections, that will simply mean that incumbency amounts to an appointment for life.
Fourth, we are now going to see cures that are worse than the disease. To the extent that they are constitutional, the bills pending in the state Senate would do nothing to change anything. They won't accomplish what they want to and, if they did, they would completely undermine the rationale for judicial elections. Appointment would be a more rational choice.
Judicial speech police aren't any better. The WJCIC was poorly conceived and executed. But even if it hadn't been, it would have been the flop that it proved to be. Part of it is that it can't be heard above the noise. Part of it is that it doesn't need to be. People understand that negative ads are exaggerations and they take them with a grain of salt. But the back and forth of these ads often tells them something as well. I'd prefer we all chose to play by a more civil set of rules, but the fact that we don't doesn't necessarily mean that the public can't or isn't discerning about the candidates' mudslinging.
Fifth, I don't know that anybody ran a good campaign here. It's hard to argue with a campaign that did something that no one has done for over 40 years but, in this instance, I think that Gableman gave Butler an opening that he might otherwise not have had. But the Butler campaign didn't believe that its preferred message would work so they didn't take it, choosing instead to fight a battle that they couldn't win. Even if they had chosen otherwise, I think the third parties supporting Butler would have made it difficult. GWC, in particular, adopted a brain dead strategy that probably hurt Butler far more than it helped.
One last note. I didn't endorse anyone (yeah, I contributed you can look it up) and tried to limit myself to issues that I thought were important. I talk about that stuff when there isn't an election and will continue after the election. I have consistently said that Justice Butler is an honest and intelligent jurist.
Because I did not endorse, I did not have much to say about Mike Gableman and I won't now either. I've met the man twice at different functions - a talk at MULS and a political dinner - and had one semi-lengthy discussion with him. He is a decent and intelligent man. He'll do fine.