Monday, February 15, 2010

The Neverending Supreme Court Election

I had a couple of writing deadlines so I'm a bit late to the game on the Wisconsin Supreme Court's extraordinary decision (or, more accurately, nondecision) in Allen v. State. The Court was not split on whether Justice Gableman should recuse himself in all criminal cases. No Justice held that he should. Three did not reach the issue and three, essentially, expressed the view that he is not required to do so.

Rather, the principal division was over whether the question of an individual's Justice recusal could be submitted to the Court as a whole. Chief Justice Abrahamson and Justices Bradley and Crooks wanted more briefing on the issue but it seems fairly evident that they believe that a majority of the justices considering the issue can force a fellow Justice off a case if they believe (or are willing to say) that there is either a statutory or constitutional requirement for that Justice to recuse herself.

Justices Prosser, Roggensack and Ziegler disagreed. They believe that the only issue before the Court is whether the justice at who a recusal motion is directed has given it the proper considertation. They went on to conclude that Justice Gableman had done so and made it clear that they thought Allen's motion was pretty weak tea.

These latter group of Justices are pretty clearly concerned about judge shopping and frustration of the will of the voters. Recusal based on generalized allegations of bias against a broad class of litigants defined in a way that is not inextricable from judicial and legal philosophy would open a Pandora's Box filled with opportunities for lawyers to sprawl litigation in an attempt to manipulate the system.

This is the reason that Justices Prosser, Roggensack and Ziegler wanted the Court to act more quickly than it did. They believed that the repeated recusal motions and cheerleading for them in the Public Defender's office, on the blogs and in the press was undermining public confidence in the Court and putting undue political pressure on some Justices.

As I have blogged before, I believe that the Gableman ad on Rueben Mitchell was a bad thing. I said it before the election and, in fact, my criticism was cited in at least one of the briefs filed by Rob Henak in support of recusal. But I don't think that Justice Gableman is required to recuse himself because of those and other ads or the comments made by lawyer offering his interpretation of the ad. As I have said, "tough on crime" campaigning is quite common in judicial campaigns. Almost all political advertising is oversimplified and much of it is unfair and misleading. Beyond that, the problem with the ad is not that it demonstrates Justice Gableman's "bias" against criminal defendants.

But, to the question at hand, I am skeptical that there is any judicially manageable standard for policing campaign speech through mandated recusal. This is particularly so when the allegation of bias is not on some basis (e.g, race) wholly unrelated to judicial and legal philosophy. Some judges have less expansive views of the rights of criminal defendants than others. That was the case in the race between Justices Gableman and Butler. It seems to me that, if we are going to elect judges, then candidates are entitled to address those differences. While I don't believe that the Mitchell ad was an appropriate way to do that, I don't think the remedy is that Justice Gableman should never sit on criminal cases.

The fact of the matter is that Justice Gableman does not have a record of "never" ruling in favor of criminal defendants - even those accused of heinous crimes. (Indeed, the Greater Wisconsin Committee ran ads accusing him of being soft on sex offenders.)But he is almost certainly a tougher justice for defendants than some other members of the Court and that should help us see the problem.

An aggressive regime of mandatory recusal is going to be seen as - in fact is likely to be - an effort to judge shop. In the context of an elected Supreme Court in which certain indivuals are selected by the voters to be the final judicial arbiters of Wisconsin law, that is extremely problematic.

I suspect that I'll get commenters again emphasizing what was wrong with the Gableman ad. They are essentially arguing for an approach somewhat akin to Justice Potter Stewart's standard for identifying obscenity. They know it when they see it and they are sure they have seen it. I am not completely dismissive of that. But when the question is as politically charged as it is here, such a rule will to often come down - or appear to come down - to who has the votes to "see" an ad in a way that will change the composition of the Court and, perhaps, the outcome of a case.

None of this is intended to endorse or excuse misleading or inaccurate campaign ads. But, as a general matter, the remedy for bad speech is good speech and the ultimate arbiter of the matter is the voters.


Anonymous said...

The issue is whether judicial bias is a justiciable issue, one that can be decided by judges other than the one accused of having it. Caperton would appear to decide that issue squarely in favor of justiciability. The dissenting justices in Caperton complained that the issue was not judicially manageable. They lost. Bound as it is by the United States Supreme Court on questions of federal law, the Wisconsin Supreme Court is obligated to decide whether or not allowing Justice Gableman to hear criminal cases would deprive criminal defendants of due process. How it decides that question is another issue.

Grant said...

They know it when they see it and they are sure they have seen it

It's not that flippin' difficult. We've had an objective means of evaluating this form of BS for 25 centuries.

Rick Esenberg said...


That's certainly the argument that the Chief Justice made. But Justices Roggensack, Prosser and Ziegler apparently do not believe that the remedy for an unconstitutional failure to recuse is removal by peer Justices. Allen could, in their view, raise such a claim in a cert petition.

This raises a couple of interesting questions. Justices Roggensack, Prosser and Ziegler also made clear that they didn't think Allen's claim was no where near Caperton which they read (correctly, I think) as requiring, at least in this case, a particularized bias based in a Justice's self interest. If Allen had made such a claim, would they have subjected a refusal to step aside to plenary review by the entire Court. The writings suggest not.

And what, if anything, does this tell us about the view of these three justices on the ability of the Court to remove a Justice for violating the Judicial Code. Perhaps they would argue that there is a standard there that is absent here.

Grant said...

Here's a hypothetical. I write a blog post containing the statement "Rick Esenberg is a hypocrite when it comes to marital fidelity. Just last week he was seen entering the Hotel Astor with a known prostitute."

"How dare, you, sir," you insist. "You are an unprincipled scoundrel."

I reply, "Everything in that post is factually correct. You criticized David Vitter and Larry Craig and did not criticize Bill Clinton and John Edwards. And last week I saw you walk into the Hotel Astor at the same time as Denise Herbelgrozten. I have photos. You may not know who she is, but she is indeed a prostitute."

I move on to my next post, "Rick Esenberg: the case of the Charnequeira." I have a hard time believing you would think the remedy would be more speech.

George Mitchell said...

Rick's response to Anon is helpful. Grant seems to be asking for help.

Anonymous said...

Rick, does it not at least bother you a little that two of the three Justices claiming that the Court as a whole does not have the authority to protect its legitimacy by ordering recusal (a conclusion contrary to clear authority from the 1800s holding that it has not only the authority but the obligation to do so), have a direct personal interest in the decision? Justice Roggansak currently is facing a motion to the Court as a whole challenging her failure to recuse herself on statutory grounds and Justice Ziegler likely again will face a challenge where WMC's interests are at stake. The third, Justice Prosser, is up for election next year and no doubt hopes to be in the same position as Justice Ziegler when it comes to WMC's larges.

Display Name said...

Denise? I thought she was a lobbyist.

Rick Esenberg said...

I think that you are conflating the questions of discipline and recusal. In the hypo you propose, you would probably be liable to me for defamation of character - assuming that I was not, in fact, in the company of a - I believe the term is - sex worker.

You may or may not have a defense depending on whether you could show I was a public figure and that you did not act with knowledge of the falsity of your statement or with reckless disregard for its truth or falsity.

The question in Allen is not whether Justice Gableman lied. That is an issue in the disciplinary proceeding. The issue here is whether he has demonstrated a bias such that his recusal is mandated.

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