Tuesday, January 22, 2008

More on the WJCIC

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.


Anonymous said...

How can we, as voters, short of pulling up each decision and trying to interpret them ourselves, become informed of each candidate's judicial history and philosophy if past rulings cannot be critically looked at and questioned?

In this case, I would expect rulings from both Butler and Gableman to be analyzed. Having a candidate simply state, "I hold X philosophy" isn't going to cut it, especially if their record shows otherwise.

Anonymous said...

I wonder if the WJCIC will require that one of the candidates publicly disavow your blog posting on the grounds that is unfair/false/offensive/etc?

Anonymous said...

After reading the article Sunday morning, it was the first time I was moved in a long time to think that there are lawyers that are willing to speak out on important issues.

It wasn't long ago that a survey said that confidence in goverment was at an all time low. I think stifling free speech would only make it worse.

The public should hear it all and I hope that you and your "colleagues and friends" are not the only ones taking this position.

Anonymous said...

Nothing in that pledge proscribes speech to a degree any greater than do the SCRs already (which are more restrictive against the incumbent, incidentally).

Furthermore, sub 5. would have the effect of initiating more speech, not less.

Attempts to characterize this committee's activities as "stifling speech" are disingenuous at best.

Most astonishingly, none of the four lawyer signatories appears to know what an ad hominem fallacy is.

Anonymous said...

it -

In the last election, Ziegler attack Clifford as being a liberal and a supporter of trial lawyers, while Clifford attack Ziegler as being an unethical rule breaker.

Which one was fallicious? And, which one should the committee challenge or stifle?

Anonymous said...

Anony, I wasn't following the campaign that closely, so I can't speak to specific accusations. But, Ziegler did violate the ethics guidelines in her former incarnation as a circuit judge, and that certainly goes to the question of her suitability for higher office.

As for Clifford, it depends on the context. If Clifford makes an argument and her opponent attempts to discount that argument simply by pointing out Clifford is a liberal and a trial lawyer (horror of horrors) and that her argument must be discounted on those bases, then that is pretty much a textbook ad hominem fallacy.

Anyway, I don't see anything in this agreement prohibiting logical fallacies. (If it did, the entire right-wing blogosphere would be effectively silenced.)

Frankly, I don't see what all the fuss is about. Whether anybody signs the agreement or not, both Butler and Gableman are, by definition, bound by the SCRs. And, as I said, the agreement imposes no heightened restrictions beyond those of the SCRs. It's simply an acknowledgment, and a reminder, to keep it clean.

Terrence Berres said...

As the headline writer for the op-ed noted, an element of the controversy comes from the WJCIC being a project of the State Bar.

The minutes of the August 17, 2007 meeting of the State Bar's Professionalism Committee included this in State Bar President Thomas Basting's presentation on a Judicial Campaign Oversight Committee.

"These oversight committees are 501c3s, are independent, and are non-profits with no affiliation to the bar or Supreme Court.


"Any campaign oversight committee / task force formed would be a separate, independent, permanent group. Its funding would come from a variety of sources; such as grants."

Anonymous said...

Notwithstanding "its" ad hominem attacks on them, I think the op ed writers have a point. And it's always worth making a fuss when someone tries to limit political speech and keep information from the voters, especially when it's the head of the state lawyers' guild, who should know better.

Anonymous said...

from anony 6:23

it -

Your response could be easily argued that your candidates argument is allowable but that the opponents argument is not.

I think that we should know if we are placing honorable people into honorable positions, or, if the honorable position has been dishonored by its holder.

It hasn't gone unnoticed that lawyers, who should know the judges best of all are silent during campaigns. Now we have the State Bar setting up shop to monitor speech?

I think all should be done to make it possible to allow lawyers to speak up during the campaigns because that is what the public wants to hear.

Regarding the SCR's, I thought some of them were ruled unconstitutional and that judicial candidates had much freedom to discuss there personal positions. Have those been corrected?

Rick Esenberg said...

The larger problem is accepting the authority of this committee as arbiters of what this agreement or the SCRs require. I would think that application of the SCRs to ban saying what Schmitz said would be unconstitutional.

Anonymous said...

Notwithstanding "its" ad hominem attacks on them ...

Wha? I said they didn't appear to understand what ad hominem is, otherwise they wouldn't have (1) made a parallel reference to "scurrilous smears" or (2) used the expression "ad hominem attacks" which, according to the most charitable reading, is redundant.

An ad hominem would be: "They are silk stockinged, white collar corporate counsel, therefore their arguments are worthless." Unless you consider "silk stockinged, white collar corporate counsel" a scurrilous smear. I don't, but I suppose others might.

it -
Your response could be easily argued that your candidates argument is allowable but that the opponents argument is not.

Er, wha? No, I said that pointing out Ziegler's ethical lapses is merely a statement of the record, and then, in contrast, I gave an example of an ad hominem.

Anonymous said...

So, what good comes with electing our judges???