State Supreme Court’s Gableman and loophole logic

On Dec. 1, Gov. Jim Doyle signed a bill that will provide public funds for candidates running for a seat on the Wisconsin Supreme Court. Eighteen days earlier, a three-judge panel recommended dismissal of an
ethics complaint lodged against the campaign of Justice Michael Gableman. There is no doubt that these events are related. But unfortunately, I doubt the public financing solution is adequate to the Gableman problem.

Until very recently, non-partisan elections were the norm from Wisconsin. No longer. The state followed a 2002 U.S. Supreme Court ruling, which made it unconstitutional to demand that judges refrain from joining political parties. Gableman’s case has made it all too clear that this change — the advent of partisanship — has undermined judicial elections.

The complaint brought against Gableman concerned a television ad regarding his opponent, Justice Louis Butler. The ad stated that when Louis Butler was a public defender, he “worked to put criminals on the street.” It highlighted the case of “Reuben Lee Mitchell, who raped an 11-year-old girl with learning  disabilities. Butler found a loophole. Mitchell went on to molest another child.”

Butler did indeed argue that evidence about the girl should not have come up in the trial. In making that case, Butler was, of course, doing his job, representing his client. But Butler did not get his client out of prison. The State Supreme Court ruled that even though Butler was correct, the error was not enough to overturn his client’s conviction. Mitchell did go on to molest another child, but it was three years after he had been released on parole. Despite the ad’s inescapable implication, Butler’s “loophole” had precisely nothing to do with Mitchell’s later crime.

Why then did the panel recommend dismissal of the complaint? Because while the impression of the ad was misleading, none of the statements in the ad are objectively untrue. And since they are not, the majority (who write as if they can’t wait to take a shower) could not vote to recommend discipline. The irony is palpable. Gableman exploited a loophole to lead people to untrue conclusions about Butler’s alleged exploitation of a loophole. Yet after all that, and with breathtaking gall, his attorney called the decision a “complete vindication of Justice Gableman’s position that the ad was truthful and violated no canons of ethics.”

While his colleagues on the bench will have the final say, Gableman may hope that this issue is now behind him. It is not. His campaign will forever tarnish his time on the bench. And, of course, it will be the only issue if he chooses to run for re-election.

But the rest of us haven’t put the matter behind us, either. Gableman’s actions are more likely to become the norm for judicial elections rather than the exception.

Of course, public financing is meant to restore the former standards. At the signing, Doyle said, “It really requires us to conduct campaigns in ways that assure people of the state that justice is not political.” The new law presumes that if the state holds the purse strings, candidates will not have to beg for the millions they need to run for office. They might therefore be able to hold themselves to a higher standard.

But Gableman’s behavior gives us strong reason to be dubious. Had public financing been in place in 2008, we may well have seen fewer television ads, but can one believe that this ad would have disappeared altogether? And after the Gableman campaign, the incentives to follow his model — to present a negative, even unfair, portrait of your opponent — will remain overwhelming.

But if public financing isn’t enough, then what should we do? Well, if partisan elections are the only kind we can have, then perhaps we shouldn’t have judicial elections at all. Many states have merit selection or selection/election systems. Wisconsin would do well to consider such a model.

Of course, merit selection wouldn’t make partisanship go away. All judges have a point of view and no selection process would change that. But merit selection better preserves the very ideals Doyle articulated: that justice is different from politics, and that judges are not politicians. Partisan elections destroy those distinctions and deny the legitimacy of even aspiring to such ideals. Gableman’s behavior illustrates with crystal clarity that if you have partisan elections, partisanship is what you are going to get. Justice suffers in that equation. I fear that will be true no matter who pays for it.