Monday, March 17, 2008

Supreme Court ads

Some people commenting on wholly unrelated posts want to know what I think of the Mike Gableman ad commenting on Louis Butler's representation of Reuben Mitchell back when he was in the public defender's office.

I'll get to it but I also want to catch up on a few other ads.

The Greater Wisconsin Committee has put out an ad criticizing Gableman for not obtaining sufficiently weighty sentences as a prosecutor and pronouncing insufficiently weighty sentences as a judge. I haven't caught any bloggers on the left objecting to the ad which would have made them all apoplectic had it been directed at the incumbent. How can we possibly tell whether these defendants deserved more? You can't assess the propriety of an outcome without some background. The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee - funded by trial lawyers, unions and casinos - has absolutely no interest in electing someone who is "tough on crime.

Then Justice Butler's campaign came out with this ad, saying that the Court's work is about "right and wrong" and trumpeting his decisions against businesses and in favor of, literally, widows and children. This strikes me as a good ad for those who favor a results oriented court. The court's business is not about "right" and "wrong" but about what the law does and does not permit. Moreover, were I in favor of aggressive use of the judicial code to police campaign ads, I could argue that the ad misleads the public about the role of the courts and suggests a bias against the interests of a class of parties. One would think that the WJCIC would ride on this one.

Finally, there is the Gableman ad. I am very disappointed that the campaign ran that ad. If the point of the ad is that criminal defense lawyers are "unsafe" as judges, it works against one of the presuppositions of our adversarial system of justice (albeit a presupposition that the general public tends to be uncomfortable with). There are criminal defense lawyers who come to have a certain type of guerrilla complex and see themselves as called to throw monkey wrenches into an unfair system. They shouldn't become judges. But that's a far cry from making an argument for a client.

I don't think it's fair to criticize a lawyer for his or her clients. It wasn't fair when the Senate Democrats did it to Miguel Estrada and it's not fair here. It was Butler's job to look for "loopholes" on Mitchell's behalf. I have nothing to do with the Gableman campaign, but I would have rather strongly counselled against this ad. If one wants to criticize Justice Butler's approach to criminal cases, there are far better ways to do it.

Now, I understand that I am also supposed to say that the ad is racist, but I am not going to do that. There is this proposed convention that, if someone is going to make crime an issue, it ought not to be done by depicting a black offender. If the issue is going to be made concrete by reference to something or someone, we should find a scary looking white guy instead.

I understand why someone would argue that this could have special appeal to someone with racist notions about blacks and crime.I also appreciate the argument that linking blacks to crime, even if the incident portrayed is accurate, can contribute to racially retrograde attitudes.

While I think all of this suggests a certain circumspection on these matters, I am not prepared to say that anytime a candidate for office depicts a black offender in the course of making an argument about public safety, he or she has committed a racist act or given comfort to racists. I am not prepared to pronounce, without more, on the state of someone else's soul.


illusory tenant said...

There are criminal defense lawyers who come to have a certain type of guerrilla complex ... They shouldn't become judges.

And what of someone who runs the utterly bogus campaign Gableman has? He should become a State Supreme Court Justice?

I would have replied sooner but was overcome with the wistful disappointment of it all, and needed to fetch a tissue and collect myself.

*daubs away tear*

Jay Bullock said...

Hasn't Gableman's own campaign--not to mention Gableman's enablers at WMC and that "Family" group--made "tough on crime" a central theme in this campaign? Was he not the one who opened the door to attacks based on criminal cases and their outcomes?

When Gableman brags about prosecuting arson, for example, he's just asking for a response that notes that he prosecuted exactly one arson case and that said arsonist was acquitted. (I haven't seen the ad--I love my TiVo!--so I don't know specifically what GWC is leveling at Gableman.)

It seems to me that if Gableman started the crime conversation, he should have expected a response on just exactly that. If he was not confident in his own record as a tough-on-crime prosecutor and judge, he shouldn't have opened that line of attack against his opponent.

And this is some more pot-calling-the-kettle-blackness:
The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee - funded by trial lawyers, unions and casinos - has absolutely no interest in electing someone who is "tough on crime."

You can say that because WMC's only interest in Gableman is the way he'd rule on the relative handful of criminal matters before the court? Riiiiiight. (And to suggest that union members--of which I am one--casino operators or plaintiff's attorneys have no more interest in crime-free places to do their business than WMC does is both ridiculous and personally insulting.)

illusory tenant said...

Not to worry Jay. It's just a small disappointment, a tactical error. Here are the criteria Prof. Esenberg has already laid out as undergirding his endorsement of Judge Lisa Neubauer:

1. Intelligence - the capacity to truly understand the law.

2. Diligence - a demonstrated willingness to work hard.

3. Integrity - both judicial and personal integrity.

Those are also why Esenberg won't be explicitly endorsing either candidate for the Supreme Court. He knows darn well that Butler more than satisfies all of the above but he doesn't like Butler's rulings as they supposedly affect the business community.

And they're also the same reasons why he could never endorse Gableman with a straight face.

Anonymous said...

"The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee - funded by trial lawyers, unions and casinos - has absolutely no interest in electing someone who is 'tough on crime.'"

Hey, Ricky, how did you get the inside information on just who is funding the Greater Wisconsin Committee? Like the equally creepy garbage being spewn by WMC, no one knows where the (likely) corporate money behind these phony-baloney ads come from.

These ads are not "express advocacy" so the scum who run them don't have to tell who is paying for them, but does anyone believe that these creepy groups will keep running this garbage beyond April Fools Day -- the date of the spring election? If you believe it, I have a bridge to sell you cheap!

Great commentary by others on why you aren't making an endorsement, Ricky, because you know that by whatever standard is used, "Judge" Gobble-Gobble-Gobbleman can't meet it. He is an intellectual cipher!

Rick Esenberg said...


I won't be endorsing anyone because I have recieved certain support from the Federalist Society in commenting on issues before the court. If people think that my views point to one candidate or the other, that's fair but I decided a long time ago - before there was even a challenger - that I wouldn't endorse. Gableman could be a clone of the sainted Nino Scalia and I wouldn't endorse.

Anonymous said...

I think the choice is clear when it comes down to which candidate is more interested in our courts being fair and inpartial and it's not Butler.

Outside of all the special interests, this is what people are most interested in. Gableman is not beholden to all the judges as Butler seems to be. Moreover, Gableman is the only one that claims he'll give people a fair shake. Something we need in the courts.

Anonymous said...


Others may have great commentary on why Rick won't endorse; unfortunately the same can't be said about your post.
Need a little therapy to deal with the fact that you are a hostile fool, fool?

Anonymous said...

anon 1:02 -

What do you have against people wanting our courts to be fair and inpartial?

Anonymous said...

Based on your denouncement of Gableman's use of race to stir up racism.

You are supporting Justice Butler's re-election.

or are you forgiving Gabelman.

Display Name said...

There's a Butler event at the Cafe Carpe in Fort Atkinson on Thursday night starting at 5:30. I'll buy a round.