"The Left’s Recusal Gambit/A prosecutor and his allies try to rig a judicial appeal in Wisconsin."

That's the title of a Wall Street Journal editorial that follows on a recent NYT editorial titled "Elusive Justice in Wisconsin."

From the WSJ:

If you’re a special prosecutor who keeps losing on the law, try rigging the judges. That’s the gambit in Wisconsin, where special prosecutor Francis Schmitz has filed a motion prodding judges to recuse themselves.
The case is Mr. Schmitz’s appeal of his failing secret investigation of conservative groups under Wisconsin’s John Doe law. In January 2014 Judge Gregory Peterson quashed subpoenas to groups like the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce because they “do not show probable cause” of “any violations of the campaign finance laws.”

The state Supreme Court is hearing the appeal of that decision and two related cases brought by targets of the investigations, and Mr. Schmitz wants at least one and as many as four state Supreme Court justices to bow out. The reason? Their campaigns benefitted from independent expenditures by some of the groups Mr. Schmitz is harassing.

From the NYT:

This should not be a hard call, but under a pitifully weak rule in Wisconsin’s code of judicial conduct, judges do not have to recuse themselves over independent spending related to their campaigns.

Thankfully, the United States Supreme Court has taken a stronger stand. In 2007, a justice on the West Virginia Supreme Court provided the tiebreaking vote to overturn a $50 million jury verdict against a coal company whose chief executive had recently spent $3 million supporting the justice’s election. (Another justice recused himself after the public saw photos of him vacationing with the same executive in the French Riviera.)

That was certainly the right result. The Supreme Court’s 2010 Citizens United ruling made the problem of money in judicial races and other elections substantially worse....

The WSJ talks about that Supreme Court case, Caperton v. Massey Coal and finds 3 obviously important distinctions:

In Caperton, Justice Anthony Kennedy’s opinion for a 5-4 majority judged recusal to be necessary because the expenditures were made when the case involving Massey Coal was already pending and were thought to have been made to insure the justice would sit on the case. The expenditures in Wisconsin were made long before the John Doe-related challenges were filed. Until late 2013 none of the conservative groups knew they were targets of the secret probe.

Caperton was also based on the notion that the $3 million expenditure created a risk of bias that violated a citizen’s Fifth Amendment’s right of due process. That doesn’t apply in Wisconsin because the supposedly injured party would be government prosecutors acting in their official capacity.

There’s also a double standard at work here. Liberals didn’t ask Wisconsin Justice Shirley Abrahamson to recuse herself from hearing legal challenges to Governor Scott Walker’s union reforms, despite her union backing. In her 2009 re-election, Ms. Abrahamson received direct contributions from unions including AFSCME Wisconsin Special Account, Wisconsin State AFL-CIO, State Employee PAC, and dozens more. Ms. Abrahamson voted to overturn Mr. Walker’s reforms in two cases.

The NYT had nothing to say about any of those 3 distinctions. It just lobbed the argument that goes like this: Citizens United!!!! And if that's the sort of argument that convinces you, I'll bet you can't explain the free speech doctrine that determined the outcome in the case. And, you know... if you can't, I demand that you abstain from voting in the next election.