Wednesday, April 02, 2008

Not quite a post mortem

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.


Anonymous said...

It's quiet this morning.

Terrence Berres said...

"GWC, in particular, adopted a brain dead strategy that probably hurt Butler far more than it helped."

A woman called in to the WMCS morning show today and specifically mentioned the "bobblehead" ad as probably counterproductive. It may have undercut later complaints about ads criticizing Justice Butler and attempts to portray him as taking the high road.

Anonymous said...

"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."

You and me both!

I would like to add that as our forefathers, I belive that if there is one area of goverment that we don't want to take the people out of, it is judicial elections. Additionally, public financing would only give incumbants an additional advantage that should be shot down.

hot fuzz said...

I can still hear the crickets chirping . . .

Dad29 said...

Another Member of the Bar strongly urges appointment.

In the long run, I don't think it will make all that much difference--except that people will have to wait much longer to replace turkeys.

Haven't decided whether that long a wait is good or not.

Joe C. said...

I think last year's comments on appointment are worth repeating here:

"A reasonable compromise between proponents of the elective and appointive systems may be to
continue to elect circuit court judges, while allowing all appellate court judges to be appointed, either by
the governor or a legislative committee. The public, desirous of access and efficiency in the circuit court
system, where expeditious disposition of a high quantity of cases would be a prized characteristic, may be
best served by an elected judiciary. In contrast, the public may want to appoint professionally
accomplished lawyers to the appellate courts that will construct well-reasoned arguments and offer clear
guidance to the lower courts. To compensate for the countermajoritarian influence of the appointed
Supreme Court, the public could be further empowered by an “advice and consent” referendum on the
appointments. This hybrid system might promote an effective and competent judiciary, while accounting
for the appointive system’s greater alignment with the restraint, representation, participation, and rights
theories of judicial review."

Anonymous said...

It's quiet now, but soon the air will be filled with whining about hanging chads or some similar nonsense.

Reaganite said...

Dad29, thanks for posting the link to my post.

Joe C, before coming here, I posted a recommendation almost precisely along the lines you suggest.

Prof. Esenberg, thank you for your tireless discourse on the election that just ended.

PS Your link to Charlie's blog is out-of-date.

Rick Esenberg said...


Thanks. Everything tends to be out of date on that side of the page since I update it about once a year.

Anonymous said...

joe c -

your premise that Judicial appointments work at the Federal level is flawed. One of the biggest decisions (based on lies and deception)ever handed down that has claimed nearly 50 million innocent lifes, namely Roe v. Wade, was handed down by appointed judges.

I don't believe that would have happened had they been elected.

Republicrat said...

previous anon --

I don't intend to get into any deep discussion about judicial independence, but I think you just proved joe c.'s point.

Judicial appointments at the federal level work precisely because they insulate judges from the will of the majority (of voters). They grant judges the independence necessary to protect the rights of minorities or to protect the rights supported only by a minority of voters.

You are likely right that, were justices of the U.S. Supreme Court elected, Roe v. Wade never would have been decided in the manner it was. Had the justices been worried about the will of the majority, they may have been less likely to decide the case according to their own constitutional interpretations (we could debate their "interpretations" endlessly, but I don't care to do so -- that's not the point of this comment, and I probably agree with you anyway).

You see that as a broken system, I presume. But this is exactly how our founders desired it. They didn't want a popularly elected body to be tasked with protecting individual rights against government overreaching.

(This is not to say that an elective system is not possible: Wisconsin's system has many protections built in to protect judicial independence.)

Reaganite said...

But Joe C's proposal contains a safeguard against excesses such as Roe v. Wade. Joe calls it a referendum; in my proposal, I call it a retention election. Whatever you call it, it allows the voters to throw the rascals out, but puts the replacement on some sort of merit system.

Does anyone know if Gableman is qualified? Does he have the raw intelligence to handle the legal arguments that come before him? What qualifiacations does he have, other than he is not Butler? HWill he really be a textualist, or did he say that to get elected?

Yet, despite these questions that we should have, we just elected him for 10 years. I am glad we did, because the devil we don't know will not be much worse than the one we already had.

But I know, despite graduating from a top law school, editing Law Review, working at a large law firm, building my own firm, and practicing law for 20 years, that I am not qualified, based on what I know about Gableman (and I have spent a lot time trying to get information), to determine whether he is qualified.

Keep the good part of what we currently have - the retention election - but make the appointment process the norm, but make it a more rigorous appointment thatn we currently have.

This is better than the federal system, in which the judges are so insulated that they can do just about anything, with the only constraints being their own moral compasses (if any), impeachment (almost impossible) or public uprising.

By the way, non-Article 3 federal judges (e.g., Bankruptcy Judges) do not have lifetime appointments. They tend to be a much higher breed of judges than our state court judges.

Reaganite said...

I should also note that the retention election system is in effect in Utah and has worked well.

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