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 consideration. 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.

This latter group of Justices are pretty clearly concerned about judge shopping and frustration of the will of the voters. In their view, 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.
There is, of course, a certain tension between an across the board rule that the Court cannot force the removal of a sitting justice and the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Company.  In that case, a majority of the Court held that the there can be a justiciable due process duty to recuse, although it emphasized – repeatedly – that such cases would be rare. As the writings of Justices Prosser, Roggensack and Ziegler make clear the type of bias alleged by Allen was very different than the type alleged in Caperton where the problem was the relationship between a judge and a particular party.

While Justices Prosser, Roggensack and Bradley clearly thought that Allen’s due process claim was facially deficient, they seem to be saying that, even in a case like Caperton, the Court would lack authority to remove a peer justice. The remedy for the failure of an individual justice to step aside would presumably be a cert petition. It will be interesting to see if that’s the position they take should a true Caperton like case ever arise.

I too 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.

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 his 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. 
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 based upon campaign speech that is said to reveal a bias against a class of litigants who have a common set of interests – say criminal defendants or insurance companies – 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. It may be a cure that is worse than the disease.

An earlier version of this post was posted at Shark and Shepherd.