On April 1, Wisconsinites will (hopefully) go to the polls to vote on a number of state and local issues and candidates. Included on their ballots will be a decision over whether to elect a new or incumbent Wisconsin Supreme Court Justice. On the one hand, your choice is current Justice Louis Butler, and on the other hand you have Burnett County Judge Michael Gableman.

A great deal of sound and fury has been coming from the blogosphere over which candidate deserves the seat more. Recent television ads have only added to the noise. Newspapers and officials across the state are declaring their support for one or the other, and the debate rages on. For the uninitiated (or those who have better things to do with their time than endlessly surf blogs), the whole mess probably seems, well, messy. So, in the interest of clearing the air a little bit and helping to create a more informed voting populace, I will be attempting to lay out the facts, events and controversies in as concise a manner as possible. Yes, I’m a masochist.

First, the basics:

Justice Butler was appointed to the Supreme Court by Gov. Jim Doyle in August 2004, becoming the first African-American Supreme Court justice in Wisconsin history.

His term expires July 31, 2008.

Next, we have Michael Gableman:

Judge Gableman was appointed Burnett County Circuit Court in 2002 and was overwhelmingly elected to the bench in 2003 with 78% of the vote.

Judge Gableman resides in Webster, and has been a member of a variety of community service groups, including the Knights of Columbus (Past Grand Knight-Ashland Council), Masons, Fraternal Order of Moose, and Rotary International.

And now, the controversy:

The Gableman campaign has accused Butler of everything from being too lenient with criminals during his time as a defense lawyer, to being an activist judge. Groups backing Butler have accused Gableman of distorting his own conviction numbers, and of airing “racist” attack ads against Butler. This is just to name a few of the offenses, perceived and real, that have come up during this campaign.

A great deal of money is being spent by interest groups on both sides to support their candidate and denigrate the other. According to a recent article in the Milwaukee Journal Sentinel, “The candidates themselves - Justice Louis Butler and Burnett County Circuit Judge Michael Gableman - spent less than $87,000 on television ads through March 16, according to one study.

“But four independent groups that don't have to report to the state where their money is coming from or how much it is spending, funneled nearly $1.5 million into TV ads, said the report from the Brennan Center for Justice at New York University's School of Law.

“That is roughly double what both candidates combined have raised throughout the entire race, reports filed Monday with the state showed.”

The sheer amount of money and lack of disclosure over from whom it’s coming has lead to a number of people and organizations going so far as to call for Supreme Court Justices to be appointed instead of elected (as has been the case for 150 years). For example, the Wisconsin State Journal declined to endorse either candidate, instead calling for this sort of merit selection process, wherein a nominating committee gives a list of finalists to the governor and lets him/her choose.

So far, anti-Butler groups have outspent the anti-Gableman groups:

Three anti-Butler groups - Wisconsin Manufacturers & Commerce, Wisconsin Club for Growth and the Coalition for America's Families - spent about $974,000 on TV ads through March 16, according to the Brennan Center study that used data from TNS Media Intelligence. That compares with about $520,000 spent by the anti-Gableman group the Greater Wisconsin Committee.

It’s hard to quantify the amount of digital effort that’s been exerted by bloggers on behalf of one or the other candidate, though. The blogosphere has been in a tizzy for several months now, debating back and forth about various accusations and claims made by either side.

Some of the most prolific writing comes from anonymous lefty blogger the Illusory Tenant and Milwaukee criminal defense lawyer Mike Plaisted, as well as righty bloggers Marquette Law Professor Rick Esenberg and Milwaukee Journal Sentinel editorial columnist Patrick McIlheran. There are more—many, many more—so feel free to click some links and conduct some searches. Just be warned: it can be a bit overwhelming.

Going back to the allegedly “racist” ad aired by the Gableman campaign, it is worth noting that the State Bar Association's judicial campaign integrity committee, after review, called it "highly offensive and deliberately misleading," "disgraceful" and "contemptible." The main claim of the ad was that, while serving as a defense lawyer, Butler pushed for and won the release “onto the streets” of a man convicted of rape, who then went on to offend again. In truth, that man served his entire sentence and was not released as a result of any efforts by Butler.

The Wisconsin Judicial Campaign Integrity Committee (WJCIC) even went so far as to release a statement (view/download the 2-page pdf here) condemning the ads as being misleading and harmful to the election process. From that document:

The WJCIC believes that the tone and content of Judge Gableman’s advertisement are unbecoming a sitting judge and a candidate for our state’s highest court. We also believe this disgraceful and deliberately misleading ad is a gross violation of the pledge Judge Gableman made Wisconsin voters on February 21, 2008 to “refrain from personal negative attacks on my opponent.”

There has also been much bickering back and forth over exactly how many criminal convictions Butler upheld during his time on the bench, and over what types of cases Gableman has successfully prosecuted in the past.

According to a WISC-TV analysis of a pro-Gableman group’s claims:

"Criminals threaten our communities. Oddly enough, so do some judges who return them to the street," the ad says. "But not Judge Michael Gableman. He's a former prosecutor who has gone toe to toe with the arsonists, sexual predators, domestic abusers and white-collar criminals who belong in jail."

In felony sexual assault of children cases, Gableman got 11 convictions out of 31 cases, and 15 cases were pleaded to misdemeanors.

Butler’s campaign claims he has a 70-75 percent rate of convictions upheld, while Gableman’s campaign claims that the number should be much lower. The rest of this debate involves a lot of nitpicking at numbers and what the definition of “is” is.

All told, the current campaign has devolved into quite the mess, and the beleaguered cries for either public financing of the races (which, to me, makes more sense) or merit based appointments make sense in light of all this. But where does that leave the voters?

In this case, my recommendation would be to ignore the television ads all-together and instead spend a little time going over the actual records of each candidate. Then compare those records to what the job description of a state Supreme Court Justice actually entails. I’ll give you a hint: it has less to do with prosecuting criminals and more to do with examining, applying and upholding the law of the land.

Good luck!

Handy Resources:

Judge Michael Gableman’s Campaign Website

Friends of Justice Louis Butler’s Website

Louis Butler’s Court System Biography

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