What the Cap Times Did Not Tell Us About the Wisconsin Supreme Court

One of my professional interests and charges is to follow the Wisconsin Supreme Court. About now, it’s a fascinating beat. Last month, the Capital Times covered the Court’s December 7 administrative conference. As Daniel Suhr pointed out on this blog, the article leaves a bit to be desired.

The article spends a great deal of time emphasizing the testiness that was on display during a public administrative conference held by the Court on December 7. That’s fine as far as it goes. The conference was certainly contentious and, at times, less than congenial. Part of that is due to the Court’s decision to hold its administrative conferences in public, thereby putting sausage making on display.

But it’s not just that. There have been many other indications of bad feeling on the Court, and that contention is not new. When the Chief Justice ran for reelection in 1999, a majority of the Court (crossing ideological divides) endorsed her opponent. That must have made for a few frosty decision conferences. The Court’s decisions and the concurrences and dissents of the individual justices have exhibited a certain heat for quite some time.

I do wish that the justices could find a way to dial down the heat that seems to characterize their deliberations. 

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Accurate & Balanced Reporting on the Wisconsin Supreme Court

The Wisconsin Supreme Court has received a fair bit of coverage from the news and editorial desks of the state’s media outlets over the past five years. Sometimes the editorial writers have criticized particular decisions in cases, sometimes particular campaign statements, and sometimes the overall structure of the court. This morning’s news story by the Madison Capital Times is the latest to decry the course of the court:

[W]hat’s certain is that the political divisions in the court, once kept behind closed doors, are now on public display. Until recently, one could hardly imagine a public meeting where one justice would accuse the chief justice of posing for ‘holy pictures,’ then addressing her as ‘kiddo,’ while another rudely dismisses a colleague’s argument as ‘ridiculous.’ ‘It’s a shame because they’re just acting like schoolchildren,’ former Justice William Bablitch says.

It’s a shame that people have such short memories, and that the Capital Times story was written in an utterly one-sided way. 

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The Wages of Speech

thumbnailCAJKLY1BApparently, the Wisconsin Supreme Court is not the only one sharply divided on an array of issues and fighting over questions of recusal. In Michigan, the Supreme Court voted 4-3 to require that individual justices who have denied a motion to recuse themselves explain the reason in writing and to permit the Court to overrule the refusal to step aside. A Detroit Free Press columnist says that the Michigan court has been characterized by “back-biting, name-calling and playground-level cruelty” and adoption of the rule did draw sharply worded dissents. Sound familar?

Locally, there appears to be a concerted effort (spurred, in part, by an internal memo circulated within the State Public Defender’s office) to seek the recusal of Justice Michael Gableman in a number of criminal cases because he has allegedly expressed a general bias against criminal defendants. Justice Gableman has refused to step aside (the rationale for the motions would apply in every criminal case), and it is unclear whether the Court can compel him to do so.

I think the controversy raises some interesting questions about the interaction between campaign speech and recusal. I am writing a paper on the topic and thought I’d test drive a few of the arguments here as applied to our local controversy.

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