Spin Doctoring and the Judiciary

I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law.

As a result of those, I began to think again about the past judicial election, in which Butler lost his seat on the Wisconsin Supreme Court by about 20,000 votes to Michael Gableman. To summarize for those who didn’t follow this story in the news, Gableman attacked Butler with a flood of negative advertising, including one ad in which he suggested that Butler found a loophole that allowed a rapist to go free and molest another child. This was effective in getting Gableman the victory, but the “loophole” ad in particular has since been proven to be misleading, resulting in the appointment of a panel to review whether sanctions and/or impeachment is necessary. Of course, as we’ve seen in this presidential election, attack ads are nothing new. But somehow it feels different when it’s a judicial election, and particularly so when the attacks are as misleading as these were. And yet, at the same time, it’s almost shocking in that it doesn’t surprise me anymore (and I’m the same person who was heartbroken when the first McCain attack ads started rolling!). Hence, it begs revisiting the old question: is it better to appoint judges or to elect them?

There have been a wealth of studies done on this subject; a quick Google search on the topic turned up academic papers on the matter here and here. The general consensus in these papers can be summed up in arguably my favorite quote from the first link:

In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. Politicians want to satisfy the voting public, and this might mean deciding cases expeditiously and in great number. Professionals are more concerned about their reputation among other lawyers and judges, and are more interested in delivering well-crafted opinions that these others will admire.

Now, not all elected judges aren’t partisan hacks or ideological puppets. In fact, while lawyers will inevitably complain about this judge being too lenient or that judge being too strict, I’ve never heard any accusations that any of the judges I’ve seen are simply fulfilling some political mandate. Furthermore, there’s a lot to be said for judicial accountability to some degree; if a judge is giving disproportionately lenient or harsh sentences, or is acting with disregard for rules of evidence or procedure, I believe that that judge should be forced to answer for his or her decisions.

But despite all that, the fact that it is now noteworthy when a judge makes the right decisions even when they are unpopular speaks volumes about the fatal flaw of an elected judiciary. When judges need to be repeatedly re-elected, we’re going to see them err toward the side that bolsters their future candidacy, even when it’s not the right decision. After all, no one ever lost an election for being “tough on crime,” and to do otherwise in our era of instant information is tantamount to political suicide. But the other — and perhaps far worse — problem is that situations like the Butler-Gableman election are going to inevitably sour some brilliant legal minds from seeking a place on a judiciary that would benefit greatly from their presence. How many public defenders are going to try for seats on the bench when they see what’s happened to Butler? Could Supreme Court justices like Louis Brandeis and Thurgood Marshall have survived the election gauntlet? If Earl Warren hadn’t been life-appointed, would he have made it through the election cycle past Brown v. Board of Education without Eisenhower trying to throw him off the bench?

The greatest decisions of our nation’s history have come when a judge has stood up and said, “I don’t care what the people say; this is wrong, and we need to do something about it.” But our system makes the judiciary a “king of the hill” game, where judges need to glad-hand and tout the things people want to hear in order to get on the bench, then need to do enough to keep the people happy so that they can stay there. If we ask the people to vote on judges — at least when it comes to positions like the Wisconsin Supreme Court — we have to expect the kind of partisan maneuvering that is present in any other election. And where does that leave us? With a brilliant and eloquent legal mind off the bench, a new justice being sworn in while facing potential impeachment, and a black eye for the Wisconsin judiciary.

This Post Has 2 Comments

  1. Daniel R. Suhr


    You say, “[S]ituations like the Butler-Gableman election are going to inevitably sour some brilliant legal minds from seeking a place on a judiciary that would benefit greatly from their presence.”

    Admittedly, this is the case – but this has always been the case for all elected offices. Good people don’t run for Congress or State Assembly because they want to put their records and their families through the meat-grinder.

    And appointment is no panacea: there are plenty of good people who do not seek or who turn down nominations to the federal judiciary because they do not want Senate Judiciary Committee staffers and activist-lawyers from interest groups rifling through their records.

    As President Bush, who has eight years of experience making judicial nominations, said recently: “The broken confirmation process has other consequences that Americans never see. Lawyers approached about being nominated will often politely decline because of the uncertainty and delay and ruthlessness that now characterizes the confirmation process. Some worry about the impact a nomination might have on their children, who would hear their dad or mom’s name dragged through the political mud. This situation is unacceptable, and it’s bad for our country. A judicial nomination should be a moment of pride for nominees and their families — not the beginning of an ugly battle. And the confirmation process should befit the greatest democracy in the world — and not look like a bad episode of Survivor.” (Remarks in Cincinnati, Ohio, October 6, 2008).

    So we all can, and should, call for more decent and cordial campaign and confirmation processes. But as long as judges wield tremendous power in our system and over our society, people will care about who are judges are, and they will investigate them by whatever manner of selection. Perhaps the answer, as Justice Prosser has recently suggested, is instead to seek a system where judges exercise greater judicial restraint.

    “A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections.” Donohoo v. Action Wisconsin, 2008 WI 110, 63 (Prosser, J., concurring).

  2. Jerry Elbridge

    Andrew asks whether it is “better to appoint judges or to elect them,” and he points to this “Butler-Gableman” situation as an example of the failure of the democratic process. But a review of the history shows that the situation is actually an example of the failure of the appointment process, not the democratic one.

    In 2000, then municipal court judge Louis Butler, Jr. challenged incumbent Justice Diane Sykes for her seat on the Wisconsin Supreme Court. Justice Sykes defeated Judge Butler by approximately 65% to 35% of the vote, or by roughly a 2-1 margin. With such an overwhelming vote, a reasonable observer might conclude that the people of Wisconsin had rejected the notion of Judge Butler as a Justice on their Supreme Court. Unfortunately, Governor Doyle was not one of these reasonable observers.

    In 2004 when President Bush nominated Justice Sykes to the Seventh Circuit, a vacancy appeared on the Wisconsin Supreme Court. Exercising his power as governor, Doyle appointed none other than Judge Butler to fill Justice Sykes’ seat – the same man who the people of Wisconsin had already rejected for the same position four years earlier in that overwhelming vote.

    Yet people are surprised to learn that four years later when Justice Butler ran to retain his seat, the people again voted for somebody else. The election was fierce and dirty, but in the end Judge Gableman narrowly defeated Justice Butler by approximately 51% to 49% of the vote.

    Critics point to the negative campaign ads and the closeness of the race to show that somehow the people of Wisconsin had been robbed of their precious Justice Butler. To further support their conclusion, commentators pointed to the fact that the Butler-Gableman election was the first time in four decades that a sitting Wisconsin Supreme Court Justice lost reelection, as if this makes it self-evident that the election was tainted. But the same might be offered as justification for just how little the people approved of Justice Butler; after all, he was the first incumbent justice of the Wisconsin Supreme Court to lose office over the course of the past four decades.

    Yet while criticizing Justice Gableman might be the Milwuakee Bar Association’s favorite cocktail party conversation starter, the conventional wisdom ignores the painful truth that Justice Butler was not only never elected, but that he was also rejected for the position before he was appointed to the position. Was there nobody else?

    Marquette University has a number of brilliant legal minds. As is the case with legal academia, some lean to the right, but most lean to the left. In appointing the rejected Judge Butler to the position, Governor Doyle showed not only disdain for the voters of Wisconsin, but also for the lawyers, scholars, and judges already serving in Wisconsin. Certainly Doyle could have at least chosen somebody new – Ed Fallone, Dan Blinka, and Peter Rofes come to mind. Any of the professors at Marquette would have sufficed, provided they fit within Doyle’s apparently narrow ideological spectrum.

    Yet when people talk of the campaign between Butler and Gableman, they call this the failure of the democratic process. They use this as an example for why the electorate simply is not sophisticated enough to recognize the qualities that make a quality jurist. They say that the position is too technical for the voter to understand – the decision should be left to the experts.

    Indeed, the same justifications for discounting the voters’ input in judicial elections could apply to the whole host of elected positions in this country, from President down to our county officials. To be fair, Justice Sykes was first appointed by Governor Thompson before she ran for the first time in 2000. But at least in that case the people approved of Thompson’s decision – or at least they disliked Butler so much in 2000 that they tolerated the decision. Either way, she was elected. Butler was not.

    Sadly, it seems that for some democracy is only good when their handpicked candidate wins. In all other times, they think that the voters were either too stupid, too naïve, or both, to know who to vote for. And so when their candidate loses, they claim deception, racism, or worse.

    Perhaps some positions are too important to leave to campaign slogans and sound bites. But once we start carving out those special elections that are too important for the voters to have a say in them, we’ll soon realize that our democracy means a lot less than we thought it did.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.