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Friday, December 19, 2014 |  Madison, WI: 25.0° F  Overcast
The Daily
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Mud is flying in Supreme Court race
Gableman's tactics against Butler are tried if not true
Michael Gableman, top, and Louis Butler, bottom.
Michael Gableman, top, and Louis Butler, bottom.

Michael Gableman says he'd like to keep his bid for state Supreme Court focused on "the sharp contrasts" between himself and his opponent, Justice Louis Butler.

Those contrasts, as the Burnett County judge presents them, are between a "judicial activist" who coddles criminals and legislates from the bench - that's Butler - and a "judicial conservative" who would fairly apply the law and give a fair shake to all litigants. That's Gableman.

In this and other ways, Gableman's campaign seems more intent on scoring points than telling the truth.

Consider its mailing asserting that Butler "provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County."

Here's the problem: The offender, Richard A. Brown, was never released. Will Gableman admit this mailing is incorrect?

Nope. Instead, he insists: "He did provide the vote, and the natural result of the vote was the release of Brown."

But the ad says that Brown was released, even though he's still incarcerated. Gableman says this owes to "intervening factors," if not for which Brown would have been released.

Butler insists even this is false - that the issue was conditional and supervised release, not outright release. The Supremes ruled the state failed to meet the required standard of evidence in denying this to Brown, with the majority opinion saying the courts should not serve as "rubber stamps" for the government.

Does Gableman disagree with the court's analysis? If so, how? Is he saying he'd never under any circumstances overrule the state or affirm the rights of offenders?

These are valid questions. But the judge refuses to critique the Brown decision, saying this would be "improper," as though lying about it is not.

The good news for Gableman is that the April 1 election will probably hinge less on the candidates' character than on 30-second ads. Observers predict spending, most by outside groups, will top last year's record-breaking total of $5.8 million.

In the last three Supreme Court elections - Sykes vs. Butler, Roggensack vs. Brunner, Ziegler vs. Clifford - the conservatives have prevailed, using tough-on-crime rhetoric backed by special-interest cash.

Gableman, whose campaign is managed by Darren Schmitz, former head of the state Republican Party, is using the same playbook. He says the people he meets are frustrated by "justices and judges scrupulously honoring the rights of criminals and criminal defendants, not victims."

The Coalition for America's Families, a conservative group, has run an ad claiming Butler "sided with criminals nearly 60% of the time" in cases before the court. The group's president says the former public defender is "creating loopholes to be exploited by rapists and murderers."

Butler's campaign denies this, saying he's voted to uphold convictions in 97% of the criminal cases that have come before the court. Even on the much smaller set of cases that produce written opinions, Butler has "ruled in favor of a criminal appeal only about one-third of the time," comparable to other justices.

Similarly, Butler cites a Wisconsin Law Journal analysis showing that, during the court's last session, he voted with the majority 85% of the time, second most often among the seven justices. That, he says, establishes his credentials as a "centrist," not a flaming radical.

Gableman is also getting help from Club for Growth Wisconsin, a conservative group connected to millionaire money, and Wisconsin Manufacturers & Commerce, which pumped more than $2 million into last year's Supreme Court race. Butler, meanwhile, is backed by groups including One Wisconsin Now, which has dug up dirt on Gableman (like how he was appointed outside of the usual process after giving money to then-Gov. Scott McCallum's campaign), and the Greater Wisconsin Committee, which uses such information in attack ads.

Both candidates have urged third parties to stay out of the race, without bothering to correct their misstatements. Gableman's pledge, which his campaign drafted itself, calls on him to "publicly repudiat[e] dishonest negative ads made by independent groups against our opponent."

No repudiation has issued from Gableman regarding the Coalition of America's Families ad, even after it was revised due to inaccuracies. The campaign, protests Schmitz, can't control what outside parties do.

While Gableman refuses to say what he thinks was wrong with the court's ruling in Brown, purportedly to avoid signaling how he would vote on similar matters, he has no qualms about weighing in on other cases.

For instance, Gableman rips the court's ruling in State v. Knapp, a 2005 case disallowing evidence obtained as the result of deliberate police wrongdoing. He says the court applied the doctrine of New Federalism, which he defines as "the rights of defendants unbound by anything but the personal, political views of the majority of the court."

When pressed, Gableman concedes New Federalism simply holds that states should look to their own constitutions as well as the U.S. Constitution in deciding cases. Butler says the U.S. Supreme Court has repeatedly encouraged this, and that Wisconsin's ruling in Knapp was consistent with U.S. Supreme Court precedent.

Gableman also blasts the court's 2005 ruling in Thomas v. Mallett, which held that a young man allegedly damaged from eating paint chips as a toddler could sue, even though he wasn't sure which of several companies made the paint. Gableman says this ruling defied "years of precedent" as well as "common sense."

This echoes the claims of Wisconsin Manufacturers & Commerce, which has pretty much said the case should drive any business with any sense from the state, while opening the floodgates to greedy trial lawyers filing frivolous lawsuits.

Butler, who wrote the majority opinion in a 4-2 ruling, says the court was merely applying its own precedent regarding risk assessment. No flood of litigation ensued as a result, and last November a jury rejected the lad's claim in the Thomas case.

As Butler sees it, WMC is more intent on disparaging the state's business climate to further its political objectives than on promoting business, its stated mission. He says it's even ignored a report that shows the state's perceived litigation climate has improved.

But such messages will likely get lost as WMC pours millions into the race, in hopes of electing its own brand of justice.

Michael Gableman

Age: 41

Bio: Born West Allis, grew up in New Berlin; law degree from Hamline. Taught school, worked as a prosecutor in three counties, appointed Burnett County circuit court judge in 2002, elected to a six-year term in 2003.

Key endorsements: A majority of the state's sheriffs and district attorneys.

Significant book: Team of Rivals: The Political Genius of Abraham Lincoln, by Doris Kearns Goodwin.

Little-known fact: "Working on a treadmill so hard I can now do five miles per hour at an incline."

On the plus side: Helped establish a drug and alcohol court in Burnett County, where those who follow the rules receive reduced jail time and rounds of applause ("I know it sounds corny"); also a restorative justice program, inmate community service and a truancy court.

Louis Butler

Age: 56

Bio: Born and raised on the South Side of Chicago; law degree from UW-Madison. Worked 13 years as an assistant state public defender, 10 as a Milwaukee municipal judge, and two on Milwaukee County circuit court. Ran unsuccessfully for Supreme Court in 2000, appointed by Gov. Jim Doyle in 2004.

Key endorsements: Several large police associations.

Significant book: The U.S. Constitution. That's his answer, and he's sticking to it.

Little-known fact: Likes to play Bid Whist, a card game similar to bridge.

On the plus side: If elected, Butler would become only the second African American - and the first since 1978 - to be elected to statewide office in Wisconsin. He says race should not be a factor: "It's my hope that we've gotten beyond that."

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