The Situation of Judges

Below we have mashed up three articles about the recent, highly contentious Wisconsin Supreme Court election — “Big money, nasty ads highlight Wisconsin judicial race” by Bill Mears for CNN, “Life, liberty and the pursuit of a fair judiciary” from The Economist, and “Gableman victorious” by Stacy Forster and Patrick Marley for the Milwaukee Journal Sentinel — and sprinkled in several illustrative Youtube videos of campaign ads.

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Justice is meant to be impartial. To this end, Britain’s judges are appointed for life. In America federal judges are as well. But in 39 states some or all judges must face election and re-election, often with unbecoming hoopla. An election to the Supreme Court of the state of Wisconsin has just involved about $5.5m and more than 12,000 aired advertisements. Habeas circus, one might say.

Michael Gableman defeated Louis Butler, an incumbent on Wisconsin’s Supreme Court, on April 1st, and the cacophony has not yet subsided.

The scuffle has revealed two worrying traits of America’s judicial elections.

First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University’s Brennan Center. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush’s Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state’s highest court. The most expensive judicial race in America’s history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.

In Wisconsin the signs are troubling. The state’s new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state’s business lobby. In one ruling in 2005, the Supreme Court overturned the state’s caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.

In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In Wisconsin’s April election, one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers’ union spent more than $4.5m.

“What’s remarkable about this race is how dominant the outside groups have been,” said J.R. Ross, editor at WisPolitics.com. “They’ve outspent the candidates themselves 10-to-1 on TV ads. They’re essentially drowning out the messages of Butler and Gableman.

“Wisconsin is the current hot spot in the culture wars that have played in the courts in recent years,” said Rebecca Kourlis, founder and director of the Institute for the Advancement of the American Legal System, which works to improve the civil justice system. “More and more money is being poured into these judicial races, more planning on how candidates position themselves for a political audience. These elections have simply gotten out of control.”

[Gableman] raised far less in campaign funds than Butler, but benefited from support by such third-party groups as Wisconsin Manufacturers & Commerce, the state’s biggest business lobby; the Coalition for America’s Families, which advocates for what it calls conservative causes; and Wisconsin Club for Growth, [see their 30-second ad below] which supports lower taxes.

The Brennan Center for Justice estimates the three groups had spent a combined $1.4 million on ads.

The Greater Wisconsin Committee, a group that says it backs progressive causes, ran pro-Butler and anti-Gableman ads. The Wisconsin Education Association Council, the state’s largest teacher’s union, ran an anti-Gableman spot.

Gableman is supported by a coalition of sheriff’s and district attorneys, and Wisconsin Right to Life.

Butler has the nod from a number of judges, law enforcement groups and the state AFL-CIO.

This year’s flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn’t. Mr Gableman’s campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC’s advertisements were about crime.

Unlike some states, Wisconsin does not require candidates to list themselves by party. Butler was appointed to the state high court in 2004 by Democratic Gov. Jim Doyle. He runs on his judicial and life experience. The only African-American on the bench, Butler, 56, has been a longtime judge.

He was previously a public defender, and that is where the current attack ads have focused. His opponent ran his first TV commercial suggesting Butler’s appellate defense of a child rapist led to the defendant’s early release. But the man had, in fact, served his entire sentence.

Butler said the integrity of the judicial system had been challenged by the negativity of the campaign and said reform was needed.

Gableman, who was criticized widely for an ad attacking Butler’s work as a public defender, said that voters deserved to know about the backgrounds of the candidates and that he was “very proud of the fact we ran a positive campaign.

“You don’t get a more stark contrast or clear contrast than that between a prosecutor and criminal defense attorney,” Gableman said. “Therefore, I don’t view it as a negative ad. I view it as an ad that illustrates the real differences of our professional backgrounds.”

A conservative group, Coalition for America’s Families, ran its own spot criticizing Butler for writing an opinion overturning another rapist’s conviction. The group also claimed he had “sided with criminals nearly 60 percent of the time,” a statistic it has not substantiated.

Factcheck.org, a self-described “consumer advocate” for voters, called the ad “distorted.”

Gableman eventually called on the coalition to stop the ads.

Gableman, also a longtime state judge, calls himself a judicial conservative. He is a former prosecutor and campaigns on a tough law-and-order agenda.

A left-leaning group — Greater Wisconsin Committee — ran an ad suggesting Gableman got his job only because of political payback. The ad implied the judge was named to his current seat after a $1,250 campaign donation to then-Republican Gov. Scott McCallum, who appointed him. The ad was attacked by a non-partisan state monitoring committee. McCallum denounced the group as well, saying Gableman is well-qualified for the bench.

Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges’ rulings.

The stakes in Wisconsin and nationwide are high, and are fueling renewed calls for reform on how judges are selected. The 19 states that held state Supreme Court elections last year shattered previous campaign cycle spending records — $34.4 million in all — which have increased steadily in the past decade.

The idea of judges running for elected office may seem like a strange concept, but it is the law in 21 states that have some sort of contested system for top judges. Thirty states — along with the federal system — appoint their judges, often under a merit selection system in which the governor gets the final say.

All 21 states will hold elections for Supreme Court seats this fall, but the early race in Wisconsin is considered a political bellwether of the tenor and sway outside partisan groups will have on how these campaign will be run.

The seven Wisconsin Supreme Court justices, including Butler, have already signed a letter saying they support the creation of a system of public financing for state Supreme Court campaigns.

The state Senate this session passed a bill that would have set up a system of public financing, but it did not advance in the Assembly

The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol’s giant dome. It is getting hard to tell the difference between them.

A study released last October by the non-partisan Annenberg Public Policy Center found people in states with no partisan elections for judges had a higher level of trust and confidence in the judiciary. But two-thirds of those surveyed also preferred electing judges directly to having them appointed.

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For Situationist related posts, see “The Situation of Judging – Part I,” and “The Situation of Judging – Part II.”