Wisconsin Lawyer
Vol. 81, No. 5, May 2008

President's Message

Gutter Politics and the Wisconsin Supreme Court

by Thomas J. Basting Sr.

Every month for this past year as I sat down to write this column, I avoided stating my own opinion and focused instead on current issues important to State Bar members. But this month I can't do that. This month I need to write from my heart and state my opinion about the lessons learned from the two most recent Wisconsin Supreme Court election campaigns. So as you read this, keep in mind that it is my opinion, not the official words of the State Bar or the Wisconsin Judicial Campaign Integrity Committee (WJCIC).

I created the ad hoc WJCIC in response to the very negative tone of the 2007 supreme court campaign. Accordingly, one of the first steps after the committee's formation last December was to ask both 2008 supreme court candidates to sign a pledge that, in essence, affirmed their intention to take the high road with their own ads and to condemn misleading campaign materials produced by independent supporters. Incumbent Justice Louis Butler signed the agreement but his opponent, Judge Michael Gableman, did not. Instead the Gableman campaign accused the committee of being biased in favor of Justice Butler. I want to take this opportunity to state again that the committee had no such bias and its record - which includes sharp critiques of advertisements both for and against Justice Butler - demonstrates that fact.

In accord with the agreement he signed, Justice Butler took charge of his campaign and conducted it fairly and honestly. He immediately denounced all third-party advertisements and asked all of the shadowy third-party issue ad groups to stand down. None of Justice Butler's own campaign ads were ever criticized by the WJCIC or other neutral observers.

Judge Gableman turned his campaign over to political operatives who apparently had honed their "slash and burn" political skills over the years in bitter executive and legislative branch election campaigns. The campaign circulated a letter over the signature of former Lieutenant Governor Margaret Farrow alleging that Justice Butler had provided the deciding vote in a sexual predator criminal case that resulted in the "release of the predator into Milwaukee County." That allegation proved to be unquestionably false. Later, the Gableman campaign ran a disgraceful, deliberately misleading ad cast in an offensive, race-baiting style to negatively attack Justice Butler's role as a former public defender. The ad again falsely suggested that a dangerous criminal was released as a result of Justice Butler's work and asked if Wisconsin families are safe with Justice Butler on the court.

While that ad was widely seen as a new low for Wisconsin Supreme Court election activities, several third-party groups released a blizzard of mostly negative ads that virtually defined the election process for most (potential) voters.

So what have we learned?

We know that in both 2007 and 2008 third-party "issue advocacy groups" poured millions of dollars into both campaigns, mainly to sponsor thousands of 30-second negative ads. They spent the money because they know that negative ads work.

Another thing we know is that very little of this vast expenditure enlightened voters. In fact, a St. Norbert College survey of 400 likely Wisconsin voters completed in early April revealed that 61 percent of respondents felt that issue ads distort the message while less than half that percentage felt they offered valuable information. Even more troubling was the fact that 78 percent of respondents to a January survey said they believe campaign contributions made to judges can influence the judges' decisions. This perception goes right to the heart of public confidence in a fair and impartial judiciary. If the public doesn't trust the courts, our democracy is threatened.

A final fact we know about the 2008 election is that nothing that happened really reversed the trends we saw in 2007. The fact that only 20 percent of the registered voters even bothered to vote is further evidence that the voting public is turned off and confused by - certainly not motivated or informed by - our current process for selecting supreme court justices.

Given this reality and given the essential importance of maintaining public confidence in fair courts, I am reluctantly forced to conclude that we need to have a very serious debate about amending the Wisconsin Constitution to create a merit selection process that will ensure that Wisconsin's tradition of a competent, qualified, independent, fair, and impartial court will endure. There are other steps to be taken while that multi-year process unfolds (more on that next month), but the paramount concern should be to avoid eventually having to rewrite our civics books to reflect a new third branch of state government: the Executive Branch; the Legislative Branch; and the Third-Party-Not-Accountable-to-Anyone-But-Us-Special-Interest-Issue-Advertisers Branch.

Be courageous. Stand up for fair and impartial courts. As lawyers, it is our obligation (and our privilege) in a free society to do so.

Wisconsin Lawyer