The tragedy that wasn't

Ann Althouse says that the Wisconsin Supreme Court election was not a tragedy. Voters, she says, are reacting to the fact that judges are ideological.

I agree with a qualification. Judges are ideological although not quite in the sense that legislators and the executive are. For example, I am pro-life but the constitution does not require the state to restrict abortion.

This is because everyone recognizes that there are some limitations on judicial discretion and part of the problem with the Wisconsin Supreme Court is that it approached a series of high profile cases in a way that suggested that are not many,

But even after that, there are questions on which reasonable judges may differ and, in these cases, differences of philosophy (which can be related to, although are not identical to, political ideology) may matter.

The ads were mostly (although not all) nonsense that hinted at these differences but the election wasn't simply a product of the ads. It was a product of the court's recent direction and Justice Butler's perceived role in that movement.

Right before the election, the blogger formerly known as Illusory Tenant related the story of his piano student. He had learned about a variety of cases from listenting to Charlie Sykes and, IT conceded, a good portion of what he had learned was fairly accurate. (My sense is that the overwhelming majority of what Charlie said was accurate.) But, or so I gather from the post, IT swung him over to Butler by advancing a set of arguments in favor of Justice Butler's approach to these matters.

The moral of the story (one that Tom/IT did not draw)was that people did get some accurate information and that, unlike his coverted piano student, don't buy into this view of the role of the courts. Rejecting that view is not a product of a lack of understanding. I understand it but largely reject it. We ought not presume that voters are incapable of the discernment that we credit to ourselves.

One of the problems with the Butler campaign was that it never tried to do what IT did with his piano student. Rather, it tried to pretend that he was what he is not. This is very hard to do in politics even in a low interest, low turn out election. I don't think that voters came to believe that Louis Butler is indifferent to victims or had no business representing criminal defendants. They did get the message that he is more liberal on these issues than other members of the court and that is accurate.

In response, Butler said that he has ruled for widows and orphans, an unusually frank appeal to judicial activism. A mistep - polls show that voters don't like judicial activism. The GWC tried to slam the jail house door harder than anyone else, stepping on the Butler's campaign's complaints about such ads and legitimizing them. In the end, it didn't have enough to move the public's (accurate) perception about the differences between the candidates on these issues.

Across the blogosphere, folks on the left are what doing what they have done for my entire adult life when they lose. They convince themselves that they - and the public - got hosed.

Perhaps that is why they continue to lose.