Fighting the Last War in Supreme Court Race

The three challengers to Justice David Prosser seem to want Justice Michael Gableman the issue. Oh, to be sure, that's not what they say. It's not Gableman, it's the fact that Justice Prosser joined two other justices in voting to affirm a unanimous three judge panel recommending that Gableman not be disciplined for his infamous Reuben Mitchell ad.

Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."

Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.

Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it  . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.

I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?

I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.

There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)

Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.

There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.