Why Gableman Is Stepping Down
And how will that affect the race for Supreme Court?
The announcement that Supreme Court Justice Michael Gableman will not run for reelection in 2018 was good news for anyone who wants justices with integrity. Gableman is the most ethically challenged justice on the Supreme Court, and surely ranked among the worst in the court’s history. Indeed, his transgressions were so blatant that either of the two challengers running against him could have run some powerful attack ads. That may well explain why Gableman is stepping down, though there are different theories on that, as well as the likely impact on the election.
Gableman was a relative nobody, with a bureaucratic job as an administrative law judge in Appleton, from which he never could have run for the Supreme Court. But in August 2002, he was the surprise choice of Republican Gov. Scott McCallum to be appointed Burnett County Circuit Court Judge. Normally, a governor picks the candidate from a list of finalists determined by a judicial review panel. But McCallum overruled the panel and chose Gableman, who wasn’t a finalist and hadn’t even applied for the job.
Why? Gableman, it turned out, had made calls — on government time — to help organize a campaign fundraiser for McCallum, made two separate donations of $1,250 each to McCallum and took off from his job to attend the fundraiser, yet charged the state for working that day. The Office of Lawyer Regulation later investigated Gableman for making long-distance phone calls from his government office to solicit donors for McCallum.
In 2008 Gableman ran against the respected incumbent Supreme Court Justice Louis Butler and won an upset victory with the help of a sleazy, racially charged ad against Butler, who is African American. The ad charged that Butler “found a loophole” to get a convicted child molester, Reuben Lee Mitchell, off on a technicality and that Mitchell went on to commit another crime. This was a blatant lie: Butler’s appeal was actually unsuccessful, Mitchell served 11 years in jail, and committed a crime after his release.
Given the many years Butler served as public defender, Gableman could have probably found a suspect whom Butler did help go free and later committed a crime so why would Gableman chose a case he had to lie about? Perhaps because Mitchell was black and by choosing him, Gableman could remind voters that Butler is too, and by intimation equate the two.
Normally a candidate doesn’t want to be associated with an ad so vicious and misleading and leaves it to some third party group to run it, but Gableman so wanted to win that his campaign did the ad. This resulted in a complaint by the state Judicial Commission accusing Gableman of knowingly running an untruthful ad. The commission found Gableman sat on the ad for a week, considering revisions, before deciding to release the ad with no changes.
Adding greatly to the sleaze factor is that Gableman got free legal representation for two years — from 2008-2010 — from the law firm Michael Best & Friedrich LLP to help him fight the Judicial Commission complaint. The value of that free help has been estimated to be as high as $100,000.
Yet Gableman, even while getting this free help, heard cases involving the firm without disclosing this massive conflict, ruling in favor of the firm’s clients at least five times. One of those cases was Act 10, where Michael Best represented the state in arguing the law stripping collective bargaining rights was constitutional, and Gableman wrote the decision agreeing. Dane County District Attorney Ismael Ozanne later challenged this decision, citing all the free legal help Gableman got, and the court again once again deadlocked 3-3 on this complaint.
Gableman consistently voted against efforts to reform the court, including a proposal that would have required justices to recuse from cases involving major campaign donors. Instead he sided with fellow conservative judges to accept verbatim a proposal written by the Wisconsin Manufacturers & Commerce (WMC) which stated that a campaign donation by itself could never require a recusal.
Gableman later wrote the horrendous decision shutting down the John Doe investigation of illegal campaign coordination between Gov. Scott Walker and the Wisconsin Club for Growth and WMC, though these two groups spent $2.3 million on the judge’s 2008 campaign, or 63 percent of all money spent to elect him. The opposing lawyer asked that Gableman recuse himself, but he declined, without bothering to offer any explanation. This is a man who clearly lacks any ethical compass.
After his 2008 election, Gableman made it clear he aimed to serve for multiple terms. So why would someone so cravenly ambitious decide not to run for reelection? One theory is that Gableman wants to earn even more money, say with the kind of elite firm — like Michael Best? — that handles many cases before the state’s highest court, and might pay highly for a former justice who can offer insights into its internal dynamics. But Gableman is not the sort of person who would resign before securing such a job.
A more likely explanation is the WMC and other big conservative groups consider Gableman too toxic and too vulnerable to attack ads. As one GOP insider told me, Gableman has probably gotten the message that the money won’t be there should he run for reelection. In short, even the conservative groups who helped elect him realize Gableman is too ethically stained to stand before the electorate.
So far all media accounts have suggested Gableman will serve out his full term. For Republicans a far better scenario is that Gableman resigns now so Walker can appoint a replacement who can then run as an incumbent. Odds are that conservative insiders will be leaning on some law firm to offer Gableman a huge salary so he can quit early.
As for who Walker might appoint, I’m told that former Republican legislator and state Court of Appeals Judge Mark Gundrum is a possible choice. Another possibility is state Court of Appeals Judge Brian Hagedorn, who served for several years as Gov. Walker’s chief legal counsel. Two other possibilities are Ellen Nowak, chair of the state Public Service Commission, and Milwaukee attorney Michael Brennan, a former circuit court judge, who has chaired Walker’s judicial selection advisory committee.
All four are conservatives and all four have never run for state-wide office. But whatever their relative strengths, one thing is clear: they are beacons of ethical purity compared to Gableman.
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