Don Daugherty and a group of lawyers who I am proud to call colleagues and friends have written an excellent op-ed on the Wisconsin Judicial Campaign Integrity Committee. I commend it.
When the WJCIC was formed, I had two concerns. One was that, like many "independent" watchdog groups, it would not play down the middle. The other, and this has a lot to do with its connection to the bar association, is that it would advocate the mystification of judicial campaigns, portraying judges as engaged in a technical exercise about which the public can have no real opinion. On this view, judicial campaigns are mostly about qualifications and endorsements.
I agree that there is something about judicial campaigns that is different. Judges aren't representatives and they are not supposed to respond to majority sentiment. They do engage in the exercise of professional judgment which, while not as inaccessible to the public as particle physics, is not fully understood by most nonlawyers. They must often follow constitutional values embodying things like freedom of speech and procedural protections for criminal defendants that the public wants in principle, but undervalues in practice.
For a lot of people, this cuts against electing judges. But we in Wisconsin have chosen otherwise, so any discussion of "integrity" in judicial campaigns must begin with the recognition that we have decided to vote on judges.
Having decided that, it seems to be that we have to allow candidates and interested parties to talk about what matters in the selection of judges and, as any lawyer or law professor will tell you, judging - particularly at the Supreme Court level - is not merely a technical exercise. Different judges can - in good faith and with acceptable professional acumen - differ on what their role is and in how the law ought to be interpreted. When we in the profession talk about who we would like to see elected or appointed, those differences (once we get past basic honesty and competence) are what distinguishes one candidate from another. Judicial campaigns would be sterile and meaningless if candidates and their supporters could not talk about such things. There are huge differences between, say, Antonin Scalia and Ruth Bader Ginsburg, but qualifications are not among them. Both are wildly qualified. If we were to have to choose between them in an election, we'd have to discuss their differing philosophies.
And there will always be a certain amount of messiness involved in that. We must talk about these issues with voters who, as I said earlier, probably lack the training and interest to fully understand them. To some extent, this is true of all political campaigns, and, in those campaigns and in judicial campaigns, political people find that they have to express themselves in ways that people will understand. This often results in a certain degree of oversimplification and hyperbole. Republicans have "declared war on the middle class." Democrats are "soft on terror."
This isn't a good thing but the best remedy for it is to allow the candidates to defend themselves from unfair attacks and to explain disputed claims. "Truth squads," unless they are going to limit themselves to the misstatement of objectively ascertained facts and other egregious errors, are unlikely to be evenhanded (as much as they might think they are) and will not allow enough leeway for robust debate.
What the WJCIC (or at least its chair) has done so far is to take the otherwise acceptable notion that campaigns ought not "to lead voters to believe that a candidate will decide issues or cases in a predetermined manner" and try to turn it into a gag. Criticizing a candidate's judicial philosophy will certainly involve suggestions that he or she has a view on certain legal issues or on approaches to judging and it is inevitable that such criticism may imply that he or she is more likely than not to rule in a certain way on those issues.
But that's not the same thing as suggesting that he or she won't decide cases impartially or carefully listen to the lawyers' arguments.
Let's move to the particular controversy. One Wisconsin Now filed a complaint over some Gableman campaign literature that took Butler to task for his rulings in a series of criminal cases. The WJCIC said that "no formal action" was required, but added a discourse about not suggesting that a candidate will rule for any particular participant in the litigation process.
That addendum was curious and troubling for reasons I sketch here, but understandable in terms of the interests of the campaigns. Anybody with a cursory knowledge of the court and these campaigns knows that Justice Butler is going to be criticized as prone to take a more liberal view of the rights of criminal defendants.
We know that it is coming because, as an observation and not a criticism, there is no knowledgeable person that could, in candor, disagree with that. Whether that is a bad thing or not is another matter. It does not stem from a lack of impartiality but, I have to believe, from Justice Butler's own view of what the law and justice requires.
But, this is a view that other impartial, smart and honest jurists may not share. It's the kind of difference that we ought to debate and not stifle.
Gableman's campaign manager, Darren Schmitz, reacts to the WJCIC statement by treating it as a vindication (it really wasn't, but that's what political guys do) and saying that Justice Butler "consistently rules" in favor of criminal defendants. The chair of the WJCIC then issues a statement calling upon him to take it back, reiterating its rule about not accusing judges of favoring one side or the other and arguing that this undermines public confidence in the judiciary.
I think what Scmitz meant to say - and the manner in which I suspect most people would take it - is that, in cases where there was some disagreement (and those are the cases that are going to get up to the Court), Justice Butler frequently sides with the rights claims of criminal defendants. Maybe he should have used those precise words. Maybe he should have said that Justice Butler has a more expansive and liberal view of the rights of criminal defendants.
I do not know that either alternative formulation would have satisfied the WJCIC. I do share its concern that the rhetoric in judicial campaigns tends to oversimplify things and attribute bad faith to people who are acting, however erroneouusly, in good faith.
But this seems to me an inevitable byproduct of choosing to elect judges. Politics ain't beanbag. While it is tempting to think that we can wring all of the messiness out of the process, there is unlikely to be anything like an evenhanded referee.
People have suggested that the WJCIC's composition is not balanced. But apart from that, this episode suggests that, for a group claiming to be a neutral watchdog enforcing objective standards of integrity, they are slicing the loaf awfully thin.
On the most hostile interpretation, Schmitz' statement is a bit like a claim by Democrats that the Republicans have changed our tax system to "favor" the wealthy. This is literally false. The system remains progressive.What it is meant to convey is that they have changed it to be more friendly to the wealthy. I'm not sure, however, that I want speech police telling them that they have crossed some line of acceptable behavior.
Part of the reason that I do not is that I doubt that the WJCIC - or any other group - is really capable of being evenhanded and thorough in enforcing such a rigorous standard. I suspect that Gableman is going to be called a tool of WMC and corporate interests. (One Wisconsin Now has already said that he is partisan. Doesn't that violate the "rules"?) Is the WJCIC going to be equally vigilant on those charges? If so, I suspect that those lawyers on the committee are going to have some fairly punk billable hours for the first quarter.
Our tradition generally holds that the remedy for bad speech is more speech. While the WJCIC has no authority over anybody, it is annointing itself as a dispassionate and honest broker. The problem is that, the more intrusive you get, the less likely that is to be so.