Vol. 81, No. 5, May
Gutter Politics and the Wisconsin Supreme Court
The system is broken - a fair, impartial, and independent supreme
court may soon be a thing of the past.
by Thomas J. Basting
Every month for this past year as I sat down to write this column, I
my own opinion and focused instead on current issues important to State
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
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
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
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
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
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
Justice Butler on the court.
While that ad was widely seen as a new low for Wisconsin Supreme
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
ads. They spent the money because they know that negative ads work.
Another thing we know is that very little of this vast
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
message while less than half that percentage felt they offered valuable
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'
This perception goes right to the heart of public confidence in a fair
judiciary. If the public doesn't trust the courts, our democracy is
A final fact we know about the 2008 election is that nothing
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
selecting supreme court justices.
Given this reality and given the essential importance of
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,
and impartial court will endure. There are other steps to be taken while
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
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.