April 5, 2008

"Wisconsin is in many ways a liberal state... but its electorate showed this week that it favors judicial restraint over activism."

John Fund at the Wall Street Journal comments on the defeat of Wisconsin Supreme Court Justice Louis Butler:
[T]he liberal majority on Wisconsin's Supreme Court [has] made so many suspect calls [beginning] immediately after Justice Diane Sykes stepped down to join a federal appeals court. Democratic Gov. Jim Doyle replaced her with Mr. Butler, a former Milwaukee judge and public defender who had lost to Ms. Sykes by a 2-1 margin in a nonpartisan race in 2000. Justice Butler soon wrote the infamous decision in Thomas v. Mallet, which created a guilty-until-proven-innocent approach to product liability. Wisconsin became the only state to adopt a "collective liability" theory in lead paint cases: Whether a company actually produced the lead paint that harmed a claimant was irrelevant to its guilt or innocence....

... Louis Butler's bid this year for a full 10-year term was bound to be contentious. Teacher unions, trial lawyers and Indian tribes (which had benefited from the court's controversial expansion of casino gambling) poured money into third-party ads attacking [his opponent] Judge Gableman. They were matched by business groups such as Wisconsin Manufacturers & Commerce, which ran ads noting that Justice Butler had earned the nickname "Loophole Louie" from fellow public defenders for winning reversals of his clients' criminal convictions. Justice Butler made the mistake of embracing the nickname, claiming it was "affectionate." Voters weren't amused.
Fund's bottom line is in favor of judicial elections as "a check on the judiciary."
If judges are umpires [as Chief Justice of the United States John Roberts once said], the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.


The Drill SGT said...

I didn't follow the election, but based only on the WSJ article, think that Butler was a poor choice.

In talking about judges, I think one needs to distinguish between 2 concepts often called "conservative.

Judical Restraint is not the same as a Conservative Agenda.

I think the WI voters were more for the former than the later in this election.

rhhardin said...

Judicial restraint would be deferring to the legislature.

Conservative agenda would be deferring to the constitution.

Peter V. Bella said...

...the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.

As long as they are replaced by like minded abusers? From the tone of some of the comments on the last post on this, one would think that Butler was martyred instead of losing due to his abuse of power.

amn said...

It works for Fund to claim victory for his judicial philosophy from this election. However, I have a hard time believing that one can infer much about the electorate's judicial philosophy from judicial elections. It's not a coincidence that the ads in these campaigns have centered on who will put criminals away for longer.

amn said...
This comment has been removed by the author.
Latino said...

The "Loophole Louie" thing is telling. Ordinary people have a hard time accepting the exclusionary rule. They do not comprehend why reliable evidence should be excluded to punish the police.

Peter V. Bella said...

Let's just throw the bums out and replace them with our own bums.

Roadkill said...

Upstate Wisconsin is full of outdoor sportsmen and women who cherish their 2nd amendment rights. The NRA, sportsman's clubs, and other pro-gun rights groups were active in pointing out Butler's anti-gun record which, while popular with the Madison liberals, contributed to his statewide loss to Gableman.

AlphaLiberal said...

As someone who actually lives in Wisconsin and observed the debates and ads, this is just nonsense from Mr. Fund.

Gableman and his patrons at Wisconsin Manufacturers and Commerce (WMC) NEVER made the case that Butler was a "judicial activist." There was no such reasoned dialog.

Gableman just repeated his talking points, which were accusations free of any supporting evidence or logic, over and over.

In the ads, Wisconsonites were bombarded with messages like the black Butler will release black criminals (Supreme Court almost never releases criminals), that Butler was anti-cop (despite law enforcement endorsements to the contrary and that law enforcement is not relevant to Supreme Ct) and so forth.

As Paul Soglin says, "propaganda works". The outside money interests, mostly on Gableman's side, spent more than the candidates and distorted this race.

If anyone thinks this race was decided on the basis of the merits of the legal arguments, they're hopelessly naive.

Peter V. Bella said...

AlphaLiberal said...
If anyone thinks this race was decided on the basis of the merits of the legal arguments, they're hopelessly naive.

Since when are elections decided on the merits of any legal arguments? There are no legal arguments or illegal arguments. He was running for public office, not arguing a case in court.

The court of public opinion has nothing to do with "legal" arguments. One guy ran a better campaign than the other. Accept the loss and move on.

AlphaLiberal said...

One guy ran a better campaign than the other.
Are you in Wisconsin? Why is your opinion relevant?

Accept the loss and move on.
No, thank you. I choose to learn and understand what happened.

But I didn't return here to argue with you...

George M. Spencer said...

Here is video of both candidates, speaking after the results were in.

It was a close race, apparently.

Judge Butler is not an especially graceful loser, at least based on his taped comments.

AlphaLiberal said...

Here's a bigger story that demonstrates how big business abused our electoral process to fill their pockets:

TDS CEO resigns from WMC board
David Wittwer, president and chief executive officer of TDS Telecom, the Madison-based parent company of TDS Metrocom, has resigned from the board of directors of the Wisconsin Manufacturers & Commerce (WMC), the state's largest business lobbying group.

Wittwer and other members of the WMC board have been feeling pressure because of the partisan political stances and expenditures by the organization.

Critics say the WMC has bought the Wisconsin Supreme Court.

The WMC spent an estimated $2.2 million on television commercials that criticized former Wisconsin Supreme Court candidate Linda Clifford last summer. Clifford ultimately was defeated by the WMC-backed candidate, Annette Ziegler, who was then reprimanded for failing to recuse herself from cases involving companies with whom she had financial ties.

My phone company! I will send him a thank you note and ask a few hundred others to do the same.

(Given that Ann Althouse is ignoring the WMC role and pushing the WSJ/Club for Growth propaganda, someone needs to bring some balance here!)

AlphaLiberal said...

Judge Butler is not an especially graceful loser, at least based on his taped comments.

Huh. So you think someone who has been lied about for months and faced a big business avalanche of negative and false advertising would be happy about his loss?

The last thing he should worry about is being a "graceful loser." He should work to reveal the national campaign by big business to buy state Supreme Courts.

And, Paul Soglin really nails the "get over it" bull-loney.

Peter V. Bella said...

AlphaLiberal said...
But I didn't return here to argue with you...

No, you came to rant and rage about a sore loser who thought he was entitled to an elected position.

Evidently, a majority of voters thought otherwise. You win some you lose some. It isn't supposed to be fair.

Peter V. Bella said...

And, Paul Soglin really nails the "get over it" bull-loney.

Oh my, a former politician and mayor. A partisan hack; just like the opposition.

Simon said...

Fund writes: "The Wisconsin supreme court also expanded the U.S. Supreme Court's interpretation of search and seizure law. Justice Butler wrote a majority opinion finding that the state constitution provided greater protection to suspected criminals, even though its wording virtually mirrored that of the U.S. Constitution." What's exceptional about that? State constitutions can of course afford greater protections than can the federal Constitution. Even if the language is identical, that can't be dispositive - the original understanding of the Fourth Amendment, for example, would be draw from the common law and the experience of the colonies, while the original understanding of identical language in a state Constitution adopted in this century would likely be drawn from how the Fourth Amendment had theretofore been understood. As Justice Stevens well put it in South Dakota v. Neville, we should be cautious before assuming "that a provision of a State Constitution is intended to be a mere shadow of the comparable provision in the Federal Constitution...."

Simon said...

"law enforcement is not relevant to Supreme Ct"

I would think, though, that the court is very relevant to law enforcement, unless the Wisconsin Constitution says nothing about criminal procedure and the Wisconsin court never decides cases involving federal law relating to criminal procedure. Can you elaborate on what you're saying?

Bruce Hayden said...


It is not exceptional that a state may find broader protection under almost identical wording. But then Butler shouldn't have been surprised when he was turned out of office for doing so, if that went against the will of the people, as it apparently did.

Simon said...

AlphaLiberal said...
"As someone who actually lives in Wisconsin and observed the debates and ads, this is just nonsense from Mr. Fund. "

It's funny, though, that an out-of-stater like Fund thinks enough of the citizens of Wisconsin to think that they thought for themselves, whereas you, a Wisconsin resident, are advancing the theory that Wisconsin voters are stupid, manipulable, and just did whatever campaign financiers ordered them to do. And in any event, while WMC may have spent money backing Justice Gableman, I have little doubt that Mr. Butler had financial backing of his own - unless Butler took not a cent from trial lawyers associations and unions, I don't see how there's much credibility in Butler's backers criticizing who bankrolled Gableman.

Simon said...

Bruce, if the metric was what the people want, now, then as Joe alluded to in his comment above, the exclusionary rule would be in its grave. Judges are frequently in the position of enforcing countermajoritarian rights, which is one of the better reasons why their ever being on a ballot is incompatible with the traditional judicial role in our system of government. I have no idea if Justice Butler's ruling in that case was right, but it's deeply troubling if the worst that could be said of him wasn't that his decisions were wrong, but rather, that they were unpopular.

Bruce Hayden said...

For all those who are delighting in the benefits of judicial elections, one big problem with such a system is that lawyers are almost invariably the big contributors to judicial campaigns. Nothing against lawyers (being one, in family of such, and hanging around them most days at work), but the ramifications of that are often far worse than putting someone as far out of the mainstream as Butler on the Supreme Court. In particular, it is the lawyers with the most at stake who typically spend the most. Thus, the big contingency fee tort attorneys, and in particular, class action guys, who have billions of fees on the line, are the ones who have the money and desire to shift judicial balance.

Also, you should look at the case of District Judge Elizabeth Halverson in Las Vegas to see an egregious case of judges being elected. Google that, and you will find a litany of judicial malfeasance, ranging from requiring office staff to act as her personal servants, swearing in staff and ex-husband to track down what people are saying about her, sleeping on the bench during a trial, through abusing almost everyone around her, including calling a number of people "faux Jews". The judicial grievance was quite humorous to read. And, not surprisingly, much of the advertising that got her elected seems to have come from attorneys. Last I knew, she was suspended with pay, but was running for reelection.

Bruce Hayden said...


Define right and wrong here. My view is that a supreme court has a lot of leeway in defining its constitution. For the most part, the constitution means what they say it means.

So, I don't buy into the argument that the opinion on the meaning of that text was right but the judge got booted because it was unpopular.

Indeed, as alluded to above, there are many who think that the federal exclusionary rule is bad. Not that you don't have to place constraints on the police to keep them honest, but rather, this is a really bad way of doing it.

Let us take a fairly famous hypothetical. Let us assume that OJ really did kill those two people, and that Mark Furhman went over the fence illegally, and maybe even was involved in planting evidence. Both are plausible, given the facts we saw during that infamous trial. The evidence found was not suppressed, though many found the police story far from credible. But if it had been, there was a real possibility of a vicious multiple murderer going free because of police malfeasance. (In the end, I think that he went free because his side out-lawyered the other side).

In real life, people who do really bad stuff that they should go to prison for, walk free because of the exclusionary rule. I don't see that as the best way to keep police honest, though I see problems with the other proposed solutions I have seen too.

In the end though, why shouldn't the people of the state determine, at least to some extent, where to balance here? How many guilty should go free to prevent police from cheating? Or, worse, just screwing up?

Agnostic Monk said...


What is your view as a law professor? Is a conservative justice better for Wisconsin?
The disappearance of jobs and industy is coloring my opinion. I consider myself a liberal but a business friendly one.

Agnostic Monk said...


I wish American liberals would just let go off the gun issue which is a dead-end. I've been in this country nearly ten years now and have found that for many Americans owning and using a gun trumps being an American or anything else for that matter.

mtrobertsattorney said...

Re: J. Butler's decision that language in the Wisconsin Constitution provides greater protection for suspected criminals than does virtually identical language in the U.S. Constitution

Whether J. Butler's decision is reasonable or not depends entirely on the quality of his legal reasoning. I have not read his opinion. But if he was able to trace this expanded notion back to the time the Wisconsin Constitution was adopted (sometime around 1848 I think), then his decision is arguably on firm grounds.

On the other hand, if he relied on something analogous to "emanations from penumbras", it's no wonder the folks were a bit frightened of his judicial philosophy.

Sloanasaurus said...

in any event, while WMC may have spent money backing Justice Gableman, I have little doubt that Mr. Butler had financial backing of his own - unless Butler took not a cent from trial lawyers associations and unions

In fact much of Butler's money comes fromm constituents who are plugged into the government and dependent on the government for their money. Groups like the teachers union are the pinnacle of corruption. They get paid by the government and then use the money to go back and lobby the same government. That is classic corruption.

Wisconsin is in danger of becoming a dying state such as Ohio. The longer liberals are in charge of Wisconsin, the more regulation, unions, and taxes there will be and the less likely a business will want to move to or stay in Wisconsin. That means the private industry jobs will go somewhere else (like Texas and Alabama), leaving Wisconsin an empty shell. Getting rid of liberals like Butler is one way to keep Wisconsin competitive.

hdhouse said...

General Bullshit in Wisconsin. I got hold of the TV ads. Everyone looked like lying weasel politicians trying to fit into judicial clothe.

hdhouse said...

Geeze Sloanasaurus, i've been gone for a month and you are still pumped up full of shit.

blake said...

Alpha's back!!

Hey, Alpha, how are those John McCain plagiarism charges coming? Isn't it scandalous that Althouse (a law professor no less!) refuses to talk about that! Where's the cruel neutrality?

Sloanasaurus said...

i've been gone for a month and you are still pumped up full of shit.

I do it for your benefit hd.

But, since you are so hot to trot; tell me why teachers unions getting 100% of their salaries with government money and then using government money to turn around and lobby the government is not corrupt?

tituszenmasterextra said...

As someone who lived in Wisconsin for 17 years and entire family is there and has traveled throughout the state I would not call Wisconsin "a liberal state". It is a purple state that has been very close in the past two election for president.

Madison is liberal.

But when I have traveled to Eau Claire, Lacrosse, Janesville, Green Bay, Appleton, Oshkosh, Wausau, Racine and Kenosha they are not "liberal cities". They are blue collar working class. You won't find typical liberal things-fabulous cafes, restaurants, NY Times readers. You will find supper clubs, Green Bay Packer gere and hunters and people that fish.

Milwaukee, to me, seems like a large city that has really no characteristics.

Wisconsin is predominately a rural state with large farms, mostly a white population, fish frys, lots of lakes, deep fried cheese curds, beer drinkers, a rather "heavy" population and tons of snow and cold. Not exactly what I would call a liberal bastion of politics.

And the city of Madison which has like 250,000 people only has two gay bars. That is just not right-and not liberal. They should have at least 6 for that size city.

tituszenmasterextra said...

Fellow republicans, All About Eve is on TCM.

Eve Harrington is such a bitch I love her.

I am going out with friends tonight for dindin and drinks and dancing.

tituszenmasterextra said...

Eve Harrington is from Wisconsin-I didn't know that.

tituszenmasterextra said...

Eve was a farm girl who moved to Miwaukee to be a secreatry in a brewery-I didn't know that.

Trooper York said...

A little know fact is that she was good friends with Laverne and Shirley, until she got drunk one night and made out with the Big Ragu.

tituszenmasterextra said...

When I was like 5 watching Laverne and Shirley I had the hots for Carmine. Him and Billy Crystal in Soap.

Simon said...

Bruce, to be clear, I'm not saying that Butler got it right. I'm saying that if he got it wrong, that's a reason to boot him (stipulating the extant system in Wisconsin, for better or worse), but that if he had gotten it right and that result were unpopular, that wouldn't be a good reason to boot him. And it would become invidious, because judges might hesitate to reach results that the federal or Wisconsin constitutions demand because they're up for election and such results will be unpopular.

As to the exclusionary rule, personally, I'm sanguine. It's problematic, to be sure, but it seems to be the best way to vindicate and protect the interests and rights at stake - imperfect, but effective. That said, I'm not a liberal about this, and I think the court's efforts to place limits on (and carve out exceptions to) the rule are for the most part reasonable (I wasn't dismayed by Hudson, for example). I understand why people find the prospect of the guilty going free because of a procedural error troubling, but honestly, I don't think that the First Amendment would be ratified today, either.

Peter V. Bella said...

hdhouse said...
Everyone looked like lying weasel politicians trying to fit into judicial clothe.

Hey, what have liars and weasels ever done to you? How dare you compare them to low life politicians. That sir is hate speech!

Welcome back House!!!

Swifty Quick said...

I don't know much about Wisconsin, but I've lived and practiced in a couple of very liberal places in two states, and I've never seen a judge lose an election because he had a reputation of being too hard on criminals. But I have seen them lose for doing things from the bench that the public perceived as too soft on criminals. As a consequence I've seen some judges who I knew to be very liberal become very hard-hearted.

tituszenmasterextra said...

I have a trick at my house tonight and it is really hot.

I just took a break.

Talk to you tomorrow.

tituszenmasterextra said...

I really like this guy.

I want to see him again which is really weird.

The rare clumbers are furious.

tituszenmasterextra said...

OK, never mind. The thing just threw up all over my bathroom and onto my rugs.

Now you understand why I don't have people come over to my house.

Now I cant get him up and I want him out now.

He keeps on saying I am sorry. I am like get up and get out.

Oh fellow republicans the pain.

dave in boca said...

In many ways, Wisconsin [and Minnesota & Michigan, all three states where I've lived and gone to school] are a southern peninsula of Canada, but not quite the passive loo-zers that Ontario generates like mice.

Butler reminded me a bit of Canada's oxymoronic "Human Rights Commission" where guilt is taken for granted and the only recourse is negotiating the price of exoneration.

Luckily, the saner half of the state won out---Madison must have been on spring break!!