The court is split, but on what?

I am not sure what Ed Garvey thinks he knows in suggesting that Mike Gableman's colleagues are split three to three.

Split on what?

What to do with the recommendation in the pending disciplinary action? It hasn't been made yet.

Whether to require him to recuse himself in criminal cases? It would surprise me if there are even two votes for that. And, if I'w wrong, how many votes will there be for the proposition that the Chief Justice who ran an ad in which she was promoted as "law enforcement's ally" ought to step down in criminal cases?

Whether to recuse himself in what Garvey calls "cases involving WMC?" If, by that, he means cases in which WMC has taken a position or filed an amicus brief, I doubt there would be even one vote. And, if there is, then how many cases will require require recusal because of the interests of public employee unions, casinos, plaintiffs lawyers, etc.? Who needs a Supreme Court anyway?

Ed seems to think that the Gableman campaign's now infamous "loophole" ad won the election. I doubt that. It was, as I understand it, a very small buy (the campaign had little money) and most of the times that it was ever ran was in the context of the controversy around it. I suspect that hurt Gableman (some politicos have told me that they think it stopped his momentum and almost beat him)in that the average voter simply apprehends that a candidate has been accused of doing something wrong.

Garvey finishes with the white whale of "reform." We should have public financing. But, as I explain in a forthcoming piece in the Harvard Journal of Law & Public Policy, public financing schemes are not likely to work because independent money will swamp the publicly funded candidates (just as it has swamped the privately financed campaign of the candidates under our present system).

If you want to hear a better discussion of these issues (from the perspective of both the right and left) come to Marquette University Law School on October 30.

In fact, maybe Ed should come too.