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|Past position:||Wisconsin Supreme Court|
|Past term:||August 2004-July 2008|
|Home State:||Chicago, IL|
|Undergraduate:||Lawrence University '73|
|Law School:||U. of Wisconsin '77|
Louis Bennett Butler, Jr. (b. 1952) is a former justice on the Wisconsin Supreme Court, having served on the court from August 2004-July 2008. Justice Butler was appointed to the Supreme Court by Governor Jim Doyle (D) in August 2004, becoming the first African-American Supreme Court justice in Wisconsin history. He subsequently lost his seat in a highly publicized Supreme Court race with Michael Gableman. Butler is one of five Wisconsin Supreme Court justices to lose a bid for re-election. 
On May 20, 2009, Butler was recommended by Senators Herb Kohl and Russ Feingold to replace John C. Shabaz to the Western District of Wisconsin. On September 30, 2009, Butler was nominated by President Obama to the United States District Court for the Western District of Wisconsin. However, Butler's nomination was returned to the President on December 24, 2009. He was renominated for the seat and again the nomination was returned to the president. 
Federal judgeship nomination
|Court:||Western District of Wisconsin|
|Progress:||Returned 808 days after nomination.|
|Nominated:||September 30, 2009|
|ABA Rating:||Unanimously Well Qualified|
|Hearing:||November 4, 2009|
|Reported:||September 23, 2010 Dec. 3, 2009, Feb. 4, 2010|
|Returned:||December 17, 2011|
On March 30, 2009, the Federal Nominating Commission of the Wisconsin State Bar selected Butler as a finalist to replace John C. Shabaz on the United States District Court for the Western District of Wisconsin. On May 20, 2009, Butler was formally recommended by U.S. Senators Russ Feingold and Herb Kohl for the seat.  Butler was nominated by Barack Obama on September 30, 2009,  but the nomination was returned to the President on December 24, 2009. The President renominated Judge Butler on January 20, 2010,  and the Senate Judiciary Committee again recommended approval to the Senate with a 12 - 7 vote. 
Wisconsin Representative Jim Sensenbrenner (R) has panned the nomination, noting that Butler is the first Wisconsin Supreme Court justice to have been voted off of the court in 41 years. "Mr. Butler lost a statewide election, held by the people of Wisconsin, to continue serving on Wisconsin's Supreme Court. Now, the man who was voted off the bench in Wisconsin is being given a promotion, a lifetime appointment and a pay raise." Sensenbrenner also took issue with the way that the Commission handled the recommendation process, saying that "Senator Kohl and Senator Feingold sent this nomination to the White House with no input from individuals on the other side of the aisle". 
Sens. Feingold and Kohl are standing by their recommendation, saying Butler has "the qualifications, experience and intellect that will serve him well" as a federal judge.  Progressive Wisconsin paper The Capital Times call Butler the "best choice" for the Western District of Wisconsin. 
The Concerned Women for America have issued a memo saying that Butler's nomination ought to be rejected by the Senate. Among the reasons they indicate for his unsuitability are "a far-left agenda of personal beliefs and political ideology", opposition to the rights of gun owners and his being twice rejected by the voters of Wisconsin for the state Supreme Court. Signatories to the memo include former Attorney General Edwin Meese, President of Americans for Tax Reform Grover Norquist and former Indiana Congressman David McIntosh. 
Judiciary Committee hearing
Butler faced a confirmation hearing from the Senate Judiciary Committee on November 4, 2009 and you can find his Committee Questionnaire Available Here. Republicans on the committee had pointed questions for him, citing concerns that he may issue rulings slanted by judicial activism. As Senator Jeff Sessions put it, some "of his speeches and cases, on the surface, show pretty significant activist tendencies". Senator John Cornyn of Texas, a former Texas Supreme Court Justice, accused Butler of disregarding legal precedent on medical malpractice caps. Democrats on the Committee defended Butler, saying he "possesses all the best qualities that we look for in a judge: intelligence, diligence, humility and integrity."  The Committee voted 12-7 to support Butler's nomination, with Democrats voting for and Republicans voting against.  The Senate as a whole voted not to confirm Butler and returned the nomination to President Obama.
Nomination returned to President
On August 5, 2010, the Senate returned the nomination of Butler to President Obama for a second time, refusing to debate and offer a vote before the body adjourned for its month-long recess.  Obama re-nominated Butler once again on September 13, 2010. 
Judiciary Committee vote
- For more information, read: Wislawjournal.com, "Butler confirmation still up in the air," September 27, 2010
Butler's nomination was returned to the President at the end of the 111th Congress. President Obama resubmitted the nomination on January 5, 2011. Butler's nomination was returned to the president on December 17, 2011.
Legal education and experience
Born in Chicago, Justice Butler was raised on the city’s south side. He earned his bachelor’s degree from Lawrence University in Appleton in 1973 and his law degree from the University of Wisconsin Law School in 1977.
After serving as an assistant state public defender from 1979 to 1992, Justice Butler was appointed to the Milwaukee Municipal Court. He served as a municipal judge until 2002, when he was elected to Branch 9 of the Milwaukee County Circuit Court.
Butler before the U.S. Supreme CourtHear audio of Butler before the Supreme Court in Ellis T. McCoy, Etc., v. Court of Appeals of Wisconsin, District 1.
"During the oral arguments, Justice Scalia asked if he thought it was appropriate for state paid lawyers to file frivolous appeals."
Butler: I can’t imagine a client paying a lawyer to go in and argue that his case is wholly frivolous.
Justice Scalia: What we’ve got a is case where the paying client, if he’s got a conscientious lawyer, would say to him you’re going to waste your money. I’m telling you that in advance. It’s not worth the five thousand dollars to file this. Of course, if you want to throw your money away, I’ll file your papers for you. What you’re saying is the poor defendant is entitled to have the state waste the same amount of money.
Butler: That’s correct.
Butler: If you liken this to a trial situation, this would be akin to a lawyer coming in a on the eve of the trial evaluating the case, telling the client, it’s obvious that you’re guilty, it’s obvious that we don’t have a prayer, we ought to plead and take the best deal possible and the client says no I want a trial and the lawyer says no I’m going to plead you guilty.
Justice Rehnquist: Mr. Butler, I think there is a good deal of difference between a trial situation where the burden of proof is always on the government and any competent attorney knows that he represents a defendant simply by putting the government to its proof, just by cross examining. On the other hand on appeal, you get into situations, which I dare say you’ve confronted some yourself having filed two Anders briefs, the burden of proof is no longer on the government, the burden of proof is on the appellant and there’s virtually nothing to complain about. Everything that you asked the trial court to do, the trial court did. The jury still returned a verdict of guilty.
Butler: It is precisely because in an appellate situation that the burden is now on the defendant, precisely because a defendant now needs a lawyer to act as a sword to overturn that appeal. It is for that very reason that role of counsel becomes critical in appeal. It’s critical at that point. He needs more help there so that he can come in and try to overturn the appeal.
The Supreme Court concluded:
We also do not find that the Wisconsin Rule burdens an indigent defendant’s right to effective representation on appeal or to due process on appeal. We have already rejected the contention that by filing a motion to withdraw on the ground that the appeal is frivolous counsel to an indigent defendant denies his or her client effective assistance of counsel or provides a lesser quality of representation than an affluent defendant could obtain. If an attorney can advise the court of his or her conclusion that an appeal is frivolous without impairment of the client’s fundamental rights, it must follow that no constitutional deprivation occurs when the attorney explains the basis for that conclusion. A supported conclusion that the appeal is frivolous does not implicate Sixth or Fourteenth Amendment concerns to any greater extent than does a bald conclusion. [486 U.S. 429, 444]
Wisconsin Supreme Court Races
In 2004, Butler became the first Wisconsin Supreme Court justice to be appointed by a Democratic Governor. Under the Wisconsin Constitution, the appointment did not require legislative approval.
At the time of the appointment, Governor Jim Doyle said: "I have known Judge Butler for many years. He is exceptionally qualified and highly intelligent. He is known for his fairness, his sense of justice, and his lifelong commitment to public service."
Butler was appointed to take Justice Diane Sykes's vacated seat, as she had been appointed by President George W. Bush to serve as a federal judge to the United States Seventh Circuit Court of Appeals. He was sworn in on August 25, 2004.
Justice Butler sought to renew his seat on the Wisconsin Supreme Court in 2008. He was challenged by Burnett County Circuit Court Judge Michael Gableman, who won. See the page Wisconsin Supreme Court Race (2008) for further detail.
Due to advertising tactics used on his behalf during the 2008 campaign, Justice Butler faced complaints filed with the state's Judicial Commission.
Awards, Memberships and Civic Activities
Justice Butler is the recipient of numerous awards. In 2006, he was named “Humanitarian of the Year” by the American Federation of Teachers, Local 212. In 2005, he won the NAACP Foot Soldiers’ Award and the Outstanding Citizen’s Award from the Wisconsin Council of Deliberations, Prince Hall Masons. He also received the 2002 and 2004 Trail Blazer Award presented by Alpha Kappa Alpha Sorority.
Justice Butler is a permanent member of the faculty of the National Judicial College in Reno, where judges from around nation take continuing education classes, and serves as a member of the bench in the Southwestern Law School Moot Court Competition in Los Angeles. He also was an adjunct assistant professor of law at Marquette Law School. Justice Butler is a member of the State Bar of Wisconsin, Milwaukee Bar Association, NAACP, Wisconsin Association of African-American Lawyers, Community Brainstorming Conference, Personnel Review Board, and James E. Doyle Chapter of the American Inns of Court.
Since Butler joined the bench, much has been written about the advancement of judicial activism on the state's highest court. Rick Esenberg wrote for the Wisconsin Policy Research Institute:
"Public commentary about the Wisconsin Supreme Court as "activist" began in earnest following the 2004-2005 term, the first following the resignation of Justice Sykes...and her replacement by Justice Louis Butler....Susan Steingrass, a law professor at the University of Wisconsin, observed that '[i]t's an interesting court to watch now. Nothing's for sure....' Joseph Kearney [dean of Marquette University Law School] observed that 'by any measure, this was an extraordinary year at the Wisconsin Supreme Court.' According to Kearney, '[f]rom tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches.'"
- Audio from 3/28/08 debate: Wisconsin Public Radio (Real Player needed)
- Video from 3/25/08 debate: State Bar of Wisconsin
- Campaign Videos: Justice Butler's Campaign Videos can be viewed on JUSTICE BUTLER'S HOMEPAGE, HERE
Letter to the Milwaukee Journal Sentinel:
- Re: But they owe public a debate
- Published: January 21, 2000
In Wisconsin, justices of the Supreme Court are elected to 10-year terms. It is the people, not an appointive system, who determine who should sit on the high court. Inherent in the peoples’ right to vote is the need for an educated electorate. In order for the residents of our state to make an educated decision on April 4, it is the candidates’ responsibility to demonstrate who we are, why we are running, whether we are qualified and how we approach analyzing the law.
It is not a true election process if the voters have to guess candidates’ qualities and credentials. Nor should people have to depend on 30-second sound bites on television to determine who is qualified. Voters are entitled to a meaningful debate as a basic necessity of democracy.
That is why I agree with the fundamental premise of the Jan. 17 Journal Sentinel editorial “Voters need more than this.” Voters need to know whether we have the ability to interpret the law — not what we want the law to be, but what the law is.
So what does the judicial code say? The words of the judicial code of ethics preclude public comment about cases that are “pending or impending” if the comments could affect the outcome of the case. This requirement ends “upon final disposition,” when the case is over.
Furthermore, as judges we are not permitted to commit ourselves in advance with respect to “any particular case or controversy,” and we should not administer the office with bias or favor.
Legal commentary on the code acknowledges that we are entitled to our personal views on political questions, and the code allows us to speak and participate in other extra-judicial activities concerning the law.
Nothing in the code prohibits judges from commenting on legal issues or past cases. What does it say about a judge’s approach to interpreting the Constitution if he or she interprets this code as prohibiting us from discussing any legal issue?
The Jan. 19 letter to the editor from Thomas Shriner, in support of an approach that bars discussion of all legal issues, should be tempered by the fact that he served on the very judicial selection panel that recommended the finalists for appointment to the Supreme Court by the governor and has since endorsed the interim justice appointed by the governor, Diane Sykes.
Judges are not above the law nor are we a privileged class. No one is entitled to a job on the high court. The people determine who should serve and the people have a right to evaluate our abilities.
After all, if we cannot talk about the law, what criteria can a voter use to make his or her decision? While it is our responsibility to keep the election clean and dignified, this can be done while we educate the public in our ability to analyze the law.
Of course, my 20 years of legal experience, which includes my background as a trial judge, my extensive trial and appellate experience, and the fact that I teach judges across the nation, is important. But voters deserve to know more.
It is still an election — an election for the Supreme Court of Wisconsin. We must debate issues and debate in public forums. That is democracy in action.
For my part, I am willing to discuss all issues relevant to this election and allowed by the code. This includes discussions of the law and of past cases. This includes issues concerning campaign finance reform. This includes issues of open government.
I will not hide from the voter or from my opponent under a veil of secrecy that has no support in the wording of the code. While we must be prudent, I will discuss issues concerning justice for this state. And I encourage my opponent to do the same.
It’s the public’s right, and we owe it to the people we seek to serve.
Louis B. Butler Municipal Judge, Milwaukee
- "I have trouble when different organizations take the time to write judges on whether a decision is in their interest ... I'm appalled talk show hosts give out the names and addresses of judges."
- "Attacks on judges are an attack on the legal system and justice itself."
- "Do you really want a court that is afraid to act because of popular opinion?"
- "We are duty bound to protect our judges' integrity and the legal system."
- "A judge's decision is to be to be fair, impartial and not according to a whim or fear of the latest opinion poll.
- "Intimidation by extreme rhetoric and the threat of physical violence threatens judges as well as the Constitution itself."
Liability Expansion Rating
Notable rulings of Louis Butler
On Criminal Justice
Justice Louis B. Butler, Jr. dissented from the majority opinion, instead concluding that a criminal defendant who was convicted by a jury of being selling illegal narcotics was entitled to a new trial, because it was mentioned during the trial that a recipient of the illegal narcotics had died of a drug overdose from their ingestion, and that this information likely had an unduly prejudicial effect on the jury.
Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, that Article I, Section 8 of the Wisconsin Constitution provided greater protection to criminal defendants than does the identically worded Fifth Amendment to the United States Constitution. In so holding the Majority found that a bloody sweatshirt was inadmissible as evidence in a murder case because the defendant told police officers of its location prior to being read his Miranda rights. The Court stated "[w]e conclude that the fruit of the poisonous tree doctrine applies under the circumstances of this case under Article I, Section 8 of the Wisconsin Constitution. Where physical evidence is obtained as the direct result of an intentional violation of Miranda rights, we conclude that Wisconsin Constitution requires that the evidence must be suppressed.
Justice Butler concurred in the majority opinion, and wrote a separate concurring opinion, noting that a prisoner was entitled to raise the argument that he had received ineffective assistance of counsel at his trail sixteen (16) years after that trial was over.
On Class Actions & Class Action Abuse
Justice Butler authored the majority opinion, which, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, concluded that Retail buyer of used automobile was entitled to award of "reasonable costs," in pursuing claim under statute prohibiting unsavory practices in the retail sale or lease of a motor vehicle, and not just “taxable costs” as specified in the rule actually governing the matter in civil actions, even though such costs would possibly exceed the total recovery under the statute. The dissent heavily criticized the Majority decision, noting that it ignored the plain-language of the statute in order to obtain a plaintiff-friendly result.
In this lead-paint liability case from 2005, Justice Butler authored the 4-2 majority opinion (concurring Justices Abrahamson, Bradley and Crooks), over the vigorous dissents of Justices John P. Wilcox and David Prosser (Justice Roggensack did not participate). In the decision, the court ruled:
On Employer and Employee Rights
Justice Butler authored the majority opinion, which concluded, over vigorous dissent, that Wisconsin employers were required to extend "clemency" to employees who were absent from work for medical reasons, even where many of the absences are unrelated to medical reasons. In doing so, the Majority effectively eviscerates any employer attendance requirements. According to the dissent, authored by David T. Prosser, the Majority's rule "requires an employer to suspend its attendance requirements even if an employee fails to submit medical documentation confirming that his absence was disability related."
Justice Butler concurred in the Majority opinion, but wrote separately. In this separate opinion, Justice Butler lables auto title companies as "predatory lenders," and notes that the interest rates the charge to consumers with low credit ratings are "ridiculous, unreasonable and unconscionable."
On Tort Reform
Justice Butler concurred in the Majority Opinion, written by Justice Shirley S. Abrahamson, but wrote a separate concurring opinion as well. The Majority held, in a medical malpractice action, that the recently-passed $350,000 cap, adjusted for inflation, on non-economic damages in medical malpractice actions not involving wrongful death of the patient (1) was not rationally related to legislative objective of compensating victims fairly; (2) was not rationally related to legislative objective of lowering medical malpractice insurance premiums;(3) statute was not rationally related to legislative objectives of keeping Wisconsin Patients Compensation Fund's annual assessments to health care providers at low rate and enabling Fund, which provided excess liability coverage for health care providers, to operate on sound financial basis; (4) was not rationally related to legislative objective of lowering overall health care costs for consumers of health care; and (5) was not rationally related to legislative objective of ensuring quality health care by creating an environment in which health care providers were likely to move into, or less likely to move out of, Wisconsin.
- Butler Profile from the Wisconsin Supreme Court
- Wall Street Journal:Opinion "The White House Butler", November 19, 2009
- Supreme Court debate is bitter
- Money keeps flowing in Supreme Court race
- Wisconsin Bar Brawl
- Voter Information Sheet: Wisconsin Family Council
- Wisconsin Supreme Court Unbound: An Activist Majority in the Balance
- Wisconsin Manufacturers and Commerce Election Handout
- Alabama North
- Judge Butler's Webpage
- ↑ Milwaukee Journal Sentinel, "Supreme Court race still too close to call, Prosser has narrow lead", April 6, 2011
- ↑ United States Senate, Committee on the Judiciary, Judicial Nomination Materials: 111th Congress
- ↑ "Louis Butler recommended to Replace Shabaz", May 20, 2009
- ↑ "Chicago Tribune" Ex-Wis. Supreme Court justice up for federal job, September 30, 2009
- ↑ White House Press Release "NOMINATIONS SENT TO THE SENATE: 9/30/09
- ↑ Senator Feingold Press Release "KOHL, FEINGOLD LAUD PRESIDENT OBAMA'S NOMINATION OF LOUIS BUTLER TO WESTERN DISTRICT JUDGESHIP", October 1, 2009
- ↑ Wisconsin State Journal "Butler nomination to federal court will likely change judicial style", October 1, 2009
- ↑ Milwaukee Journal-Sentinel "Butler nomination for U.S. district judge draws heat", October 2, 2009
- ↑ Judicial Nomination Materials: 111th Congress
- ↑ The Cap Times, "Plain Talk: Butler deserves better than he’s getting in confirmation process", January 18, 2010
- ↑ Point of Law.com, "President renominates previously blocked judicial candidates", January 21, 2010
- ↑ State Bar of Wisconsin "Senate Judiciary Committee recommends Louis Butler as Western District judge", February 4, 2010
- ↑ Wisconsin State Journal, "Obama again nominates Butler for U.S. District Judge," September 13, 2010
- ↑ Sensenbrenner Press Release "Sensenbrenner Statement on Nomination of Louis Butler as U.S. District Judge", October 1, 2009
- ↑ Milwaukee Journal-Sentinel "Butler nomination for U.S. district judge draws heat", October 2, 2009
- ↑ Feingold Press Release "KOHL, FEINGOLD LAUD PRESIDENT OBAMA'S NOMINATION OF LOUIS BUTLER TO WESTERN DISTRICT JUDGESHIP", October 1, 2009
- ↑ Capitol Times "Butler is the right choice", October 5, 2009
- ↑ Concerned Women for America Press Release "Senate Should Reject Nomination of Louis Butler to District Court in Wisconsin", December 14, 2009
- ↑ "Point of Law" Senate Judiciary OKs Louis Butler of Wisconsin for federal bench, December 4, 2009
- ↑ Milwaukee Journal Sentinel "Butler faces pointed queries at confirmation hearing", November 5, 2009
- ↑ Milwaukee Journal Sentinel:All Politics Blog "Key Senate panel endorses Butler judicial nomination", December 3, 2009
- ↑ "Point of Law" Senate sends Justice, judicial nominees back to White House, December 27, 2009
- ↑ [United States Senate, Committee on the Judiciary, Judicial Nomination Materials: 111th Congress
- ↑ Judicial Nomination Materials
- ↑ San Jose Mercury News, "Democrats: GOP now blocking picks for lower courts," September 23, 2010
- ↑ 112th Congress Nomination Materials
- ↑ Justice Butler's Bio
- ↑ Spent Tax Dollars to Try to Enable More Frivolous Appeals
- ↑ Spent Tax Dollars to Try to Enable More Frivolous Appeals
- ↑ Governor Doyle Announces Appointment of Judge Louis Butler to Wisconsin Supreme Court
- ↑ Butler, Gableman embattled in harsh ad war across state
- ↑ vs. Restraint: Where is Wisconsin's Court Headed?
- ↑ Butler Quotes: thinkexist.com
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