Thursday, April 03, 2008

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.


Brett said...

It's great that we can impute intelligence to Wisconsin voters and then speculate on why voters did what they did. But let's step down from our academic towers and talk about people's experience with this particular election.

When it came time to discussing this election with every one of my (nonlawyer) close friends and Wisconsin family members, I was shocked to hear that the first words out of their mouths was "Oh, Loophole Louie? Why would I vote for him? He's too soft on crime." Frankly, I was shocked at how effective the television campaign waged by third parties and Gableman HIMSELF poisoned the voters. (As an aside, here's a query I posted on the Wisconsin Law Journal website regarding Gabelman's ad--the one universally condemned, including by Charlie Sykes--to which I never received a response. If Gableman is a "judicial conservative" who gives everyone a "fair shake" by "applying the plain language of the law," why did he justify his own ad based on the ad's purpose while ignoring the plain language of the ad? Foreshadowing or ineptness?). I wonder what the Northern part of the state's reaction was when the NRA said Justice Butler was going to take guns away from people and curb hunting rights. This election was a travesty, despite the gloss some currently are trying to gild.

Getting back on point, the people I talked to undoubtedly had heard of "strict constructionist" (courtesy of the the 2004 presidential race) and of a "judicial activism" (courtesy of the same). But, Gableman's self-described philosophy of "judicial conservative-ism" never came up in the discussions. Frankly, the television ads were driving people's decisions (until, like Illusory Tenant, I got to talking to them).

Let me qualify this with the obvious: this was my experience. I'm sure there are some "diamonds in the rough" that cast their vote differently based on a modicum of thought. I use the word "modicum" deliberately (and please give the word "modicum" a "fair shake" by "applying the plain language of the word" and not "legislating" from your computer). What were other people's experiences with nonlawyer voters?

Anonymous said...

"For example, I am pro-life but the constitution does not require the state to restrict abortion."

As a justice would you allow abortion? If I recall there were laws on the books from the 1800's that made abortion illegal. Would you have said that those laws are unconstitutional? I think that is why a persons ideals are important and should be known.

As for the election, why is it that the liberals always want to change the system when they lose? The system is fine.

Brett said...

And for the record, I'm not a "liberal." But if the system should be changed, it should be changed precisely because we just got Gableman-ed (a word I'm using to denote electing the mediocre). Unlike the US Supreme Court upon which sit the likes of Roberts and Scalia (say what you will about them but they're brilliant), we get the exceptionally average (and that's spinning matters) courtesy of WMC's scrapping the bottom of the barrel. I'd take a smart "judicial conservative" over Gableman any day. With the former, you at least have a shot at intellectual honesty.

Anonymous said...

brett -

I don't think that we are going to see Gableman demonstrating arbitrary law as I believe Butler had no problem with.

If people exist like Roberts and Scalia in Wisconsin, we may need him/her for next years election.

Brett said...

Anonymous: I don't want to get sidetracked here, because I genuinely want to hear what other people's experiences were with respect to the effects of the deplorable television ad campaign. But if you'd like to debate the merits or the wisdom of any of Justice Butler's decisions, please direct me to an appropriate forum.

Anonymous said...

I think that what really sticks in the craw for me is the fact that WMC put up -- and the electorate chose -- a mental midget. He had a couple stock paragraphs which is mouthed in response to any question asked. I listened to him do this at three separate venues in one week. The bobblehead was mean because it was too close to the truth.

At some point this fall after the Supreme Court has heard the oral arguments in a case, the Chief Justice will call for a show of hands and the poker chip with the newly-minted Justice will be chosen and he will have to write the majority opinion. This is a terrifying prospect.

Admit it -- we were sold an intellectual cipher. At least WMC should have found an automoton with a brain. At long last have they no shame? Apparently not.

Anonymous said...


Anonymous said...

The Greater Wisconsin Committee and WEAC adds were just as disgusting. I was turned off from the beginning from the "bobble-head" adds from GWC that implied that Gableman was able to buy his Burnett County seat for a $1500 donation. Which was the very first commercial I saw for the race. But it seems that the Butler supporters don't think those adds at all contributed to the negative nature of the entire campaign.

What disturbs me the most is that all these groups think that I am the "mental midget".

I voted against Butler because of his siding with over-ruling the medical malpractice limit and the lead paint decision. Period.

Anonymous said...

"I voted against Butler because of his siding with over-ruling the medical malpractice limit and the lead paint decision. Period."

Fair comment, but why didn't WMC run its campaign on those two cases? Because it is likely that neither would resonate with the voters like "crime" did.

It is true that the third party ads were disgusting and deceptive. ALL of them were trash, without exception.

I challenge anyone to find fault with the television ads which the Butler campaign rain (other than the fact that they apparently didn't work!), but take a look at the ad which Gableman which featurer side by side head shots of the sitting Justice and a Black man convicted of rape. Which Black man is the rapist and which is the Supreme Court Justice? Hard to tell, and that was the leit motif of this particular advertisement.

The bobblehead Justice was quoted in one of the newspapers on Wednesday of being "proud" of the campaign that was run on his behalf. This is likely evidence of how dense he really is.

If WMC and its cohorts were going to politically assasinate Justice Butler, didn't they have an obligation to replace him with a qualified candidate? It's not the defeat of Louis Butler that is so offensive -- it's what they chose to replace him with. That's te ultimate disrespect for the institution.

Anonymous said...

I think the real deception was that Butler was somehow a messiah to those who think they're intellectually superior to all others including Gableman.

Butlers supposed intellect didn't mask his ultra-liberal leanings. Conservative saw this and voted him out.

reddess said...


I am insulted by your (and others) belief that "nonlawyers" voted the way that they did based on the ads. This implies that we (the general public) are incapable of understanding the issues important to a judicial race. As a nonlawyer, I can assure you that this is not the case. Those of us not of the legal world, really can understand the concepts of judicial restraint vs judicial activism.

Blaming the voters for not "getting it right" is just a convenient way to explain Butler's loss. Maybe he lost because the majority of voters do understand.

Brett said...


I bathed my prior posts with a fair amount of sarcasm, so please forgive me for coming off as insulting. What my post ultimately concerned was my experience with ordinary voters and how the television ad campaigns seriously affected them. I outlined my experience and am interest in hearing the experience of others.

I think some posts from one of the many "anonymous" have struck a cord that runs parallel to my experience: Why, oh why, was WMC running (misleading) criminal ads?? Answer: because they work.

I recognize that there were third party ads that were pro-Butler. But a bobble head, ethics charges, and an accusation on two sex assault sentencing pales in comparison to the Butler-loves-criminals-and-finds-loophole ads that saturated the airwaves.

If we're going to have a frank discussion on television ads, then let's talk about other's experiences in why ordinary voters voted the way they did. Again, I'm sure there are some out there that thought "activism" is bad and "Butler is an activist because others said so" (reddress, have you read any of Butler's opinions for yourself?), but I want to know what other people found regarding the effectiveness of the television ad campaign waged against Butler.

Nick said...

Of course they don't continue to lose. See "Congressional Election of 2006" for proof. There is also a good chance they will gain more seats in '08 and also the White House.

Brett said...

Where's the associate professor's insights?

3rd Way said...

The average citizens only familiarity with these candidates came through the ads they saw during American Idol or from what they heard on AM radio. Do you really think Joe Average takes the time to go out and research judicial candidates?

Do you seriously think that even 25% of the people that selected this judge would be able to tell you which candidate had a more constructionist philosophy?

It has been claimed on this site numerous times by numerous people that the electorate's support for Obama is based on emotion and not on an understanding of issues. That might be true, but I reject the assertion that when the electorate supports a liberal candidate their support is based on ignorance and when they supported this conservative candidate the decision was based on a thorough evaluation of issues that are far more complex and abstract than ones we are faced with in a presidential election.

WMC and right wing radio duped the average voter that went to the polls to elect their local alderman into thinking they should reject a soft on crime appointed judge in favor of someone that looked more like them. The least qualified candidate won by outspending and going lower. Everyone closely following this race knows that is the truth. Denial of that might make you feel better about it, but deep down you know it is true.

Anonymous said...

Brett -

I highly doubt that you and your friends will make it to the high court, anyday.

Dad29 said...

A quibble:

This is very hard to do in politics even in a low interest, low turn out election

I think that a "low turnout" election makes it almost impossible for the leopard to change his spots via advertising (or any other way.)

Those who DO turn out are, I think, committed by virtue of being better informed. They are not 'the herd' who shows up only for Presidentials.

3rd Way said...

I disagree Daddio. I think your point would be true if the election was judicial only, but people were going to the polls to vote for aldermen, referenda, county positions among other things. The supreme court race was probably somewhere near the bottom on many voters list of priorities.

This election was disheartening. I would give up my vote and let you members of the bar decide who would make the best judge if that would assure that monied interests weren't allowed to swing the vote with scare tactics and irrelevant issue ads.

Brett said...

Anonymous 9:45 a.m.

Thanks for the ad hominem attack against me and my "friends," whomever they might be.

If by stating I'll never "make it to the high court" you were suggesting that I'll never see this state's highest court, I already have.

If you were stating that I'll never work there, well, let me just say that there are different capacities of working for the high court.

And if you were stating that I'll never argue a case there, well you're already wrong.

Now, with all that aside, can anyone shed light on their REALWORLD experiences with the television ads and the voting populace? Pontificating on what voters MUST have done is a ridiculous exercise if we're to seriously weigh the effect tv ads had on real people. My experience may be the minority, though I suspect that's not true. Come on, anyone?

Rick Esenberg said...

I would give up my vote and let you members of the bar decide who would make the best judge if that would assure that monied interests weren't allowed to swing the vote with scare tactics and irrelevant issue ads.

This assumes that we would have some neutral way to do it. That's just not true.

I think that there was a lot of nonsense in the ads. But if you look at polling about what people say they want in judicial elections (judicial restraint, judges who are "stricter" on criminal justice issues), they got what they wanted. If you poll on the five cases that Judge Sykes highlighted in her 2006 Hallows lecture, the public disagrees with the result in four of them.

Of course, judges need to make unpopular decisions, but the notion that the recent direction of the court is somehow "compelled" by the law is just wrong.

Anonymous said...

brett -

it appears that your arrogance blinds you from the implicit meaning of the ad hominem, to bad that such a simple thing went over your head.

Brett said...

Anonymous 11:12,

I hope you're joking. If not, the joke's on you.

Brett said...

If there's no neutral way to appoint judges, then the federal judiciary is a sham.

And besides, professor, you're dissembling. The question is not whether voters "got what they wanted" when comparing Federalist Society polls to the voting results, but why did they vote the way they did. With that second question, there's a disconnect between your premises and the conclusion you're trying to draw. You know this.

grumps said...

Fair Reddess, I suggest that you are neither typically informed or motivated when it comes to matters judicial.

When the man on the street knows a sitting Justice of the SCoW by a 20 year-old nickname and when they fail to make the connection between the Loophole and the Constiutution then I believe a fair case has been made for the effect of the commercials versus any general knowledge on the part of the voter.

Dad, you are a least half right. Spring elections tend to bring out voters who have made an attempt at separating the candidates on soe basis and voters who are very motivated. Those two subsets are not always the same. When the top of the card elections are nominally non-partisan that leaves the undercard to those who "care" on either side of an issue.

Nick, well said.

Anonymous said...

People should lose the right to vote because ads might influence who they vote for. This is the liberal argument?

Our forefathers knew what options they had for judicial elections and gave people the right to vote.

To want to change that simply because Butler lost is nothing more than sour grapes.

Anonymous said...

For such an accomplished attorney, you don't spell very well. Look up the different uses of the word "to" and "too." It should help in your work.

Brett said...

Anonymous 12:35,

I never said I was accomplished. But I am now humbled at how unaccomplished I must be. For that, you have my g-r-a-t-i-t-u-d-e (did I spell that right? Probably not)

3rd Way said...

If WEAC comes out next year and immediately cuts down Abrahamson's opponent at the knees with the worst ads they can dream up you guys have no right to complain if she wins.

grumps said...

I heard that Shirley's opponent eats puppies. I also heard that his sister is a proselyte on a street full of churches and his brother matriculated on stage in front of people.

3rd Way said...

I like the puppy eater meme. We could get the PETA and Humane Society people involved.

WMC's next candidate is screwed.

Dad29 said...

I would give up my vote and let you members of the bar decide who would make the best judge if that would assure that monied interests weren't allowed to swing the vote

3Way--you think that the Aggrievement Bar (PI's) are not 'monied interests' who will 'swing the vote' if the Bar Ass'n handles the appointments?

Step away from your KoolAid, fella.

3rd Way said...

The point of my flippant comment was that bar members are more qualified than the lay person to determine a judicial candidates ability to serve.

If a monied interest is going to sway an electorate I would prefer it to be an electorate of lawyerly types that should be smart enough to see through meaningless tripe about loopholes.

Terrence Berres said...

Query: might the determination that a loan's arbitration provision is unconscionable be based, in part, on the lender's name being "Loophole Louie's Loan Co."? See Wisconsin Auto Title Loans Inc. v. Jones, 2006 WI 53, ¶ 46.

Anonymous said...

The idea that only attorneys are competent to asses a judge's ability to serve is only true in the strictly legal sense, but it fails in two ways.

1) It supposes that lawyers don't take into account their personal feelings and/or political leanings when evaluating the law.

2) It means that the public who is governed by those judges will have no way to determine their rulers - and THAT should bother everyone.

I see all this banter about the ads and so forth, and little of substance on here. No one is saying that Butler was a good justice, but apparently he's smarter than Gableman, so therefore voting for Gableman is unacceptable.

I mean, the other candidate might be a trainwreck for the state, but you should have elected him!

The ads should have been more on point, there's enough damage Butler and Co. did to the state for more than a few of them. But the ads didn't make my decision for me.

I did. I even read a few court decisions here and there. I'm no lawyer, but I have more than a passing acquaintance with legal matters, and I thought about it and made up my own mind.

Too bad so many elites are lined up to tell me I was wrong, because I'm going to do it again.

Anonymous said...

The long range plan by Prof. Esenberg after his legal career, writing for the Journal, doing the Eric Von program and teaching is his own appointment by our next Republican governor to the Supreme Court.

Those of you laughing at the Menal Midget Gableman, stop laughing and think about what I'm telling you.

3rd Way said...

The long range plan by Prof. Esenberg... is his own appointment by our next Republican governor to the Supreme Court.

Do you have a taste for puppies too Rick?

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