Wisconsin Supreme Court elections (2008)

From Judgepedia

Judges Michael Gableman and Louis Butler faced each other in a hotly-contested race for the Wisconsin Supreme Court that was decided in Gableman's favor when Wisconsin voters went to the polls on April 1, 2008. With more than 97% of precincts reporting, Gableman led Butler by about 20,000 votes, according to unofficial vote tallies. That lead gave him 51% of the vote to Butler's 49%. Judge Gableman will serve a 10-year term on the bench.

The defeat of Louis Butler represents the first time since 1967 that a challenger has defeated an incumbent Supreme Court Justice for a seat on Wisconsin's highest court. Wisconsin Supreme Court Justice George Currie was ousted that year after he allowed the Milwaukee Braves baseball team to relocate to Atlanta.^[1]

When Gableman takes his seat on Aug. 1, it will be the first time in 110 years there hasn't been a justice from Milwaukee on the Wisconsin Supreme Court.^[2]

National interest and perceptions

The race attracted significant attention and dollars from outside Wisconsin. It was seen as a contest between a judicial conservative and a judicial activist.

The campaign was characterized by extensive television advertising campaigns paid for by independent groups. As of March 16, 4,789 campaign ads had been aired in the race.^[3] Supporters of both candidates used the word "mud-slinging" to characterize the messages conveyed in many of the TV spots.^[4],^[5]

Reactions to Gableman's victory

• The National Assocation of Manufacturers said that the victory is "very good news", characterizing the race as one between "judicial restraint (Gableman), versus a sitting, appointed judge who had a record of expanding the grounds for civil lawsuits (Butler)."^[6] Walter Olson said of Gableman's victory, "The result may be to tip the balance on the court away from the steady expansion of liability that has characterized its recent decisions in areas like lead paint and medical malpractice."^[7]

• The Capital Times, a liberal Wisconsin newspaper, expressed extreme disappointment in the outcome of the race, using its own harsh language as it simultaneously deplored the harsh language used during the election campaign, maintaining, "No one has ever come to the state Supreme Court in so dishonest and dishonorable a manner as Mike Gableman. He ran a shameful campaign and deserves no praise or respect in victory."^[8] Wisconsin Governor James Doyle, who appointed Butler to his seat on the state's high court, used the word "tragedy" to describe attacks on Butler during the divisive election campaign.^[9] In an editorial, the Wall Street Journal lambasted Doyle's reaction, saying, "It's surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court's ultra-liberal justices and in the process helped toughen the standards for judicial accountability."^[10]

• National legal pundit Ann Althouse said, "This was a fight known mainly for the nasty ads put out by groups supporting the candidates, but the bottom line is that the balance on the court has changed."^[11]

• State representative Fred Kessler, a Democrat, said that the result of the election means that the state should change how it selects judges.^[12] During the election campaign, Butler and Gableman concurred in their opposition to Kessler's reform ideas, arguing that it is important to let the people have a say in the selection process.

• According to U.S. News and World Report, reform efforts now center on the role rising costs of elections have on the judicial system. Bills proposing public financing of elections have been commenced and will have problems making their way out of the Republican-controlled House.^[13]

Judicial Philosophy

Louis Butler

• Justice Butler says that he embraces "being one who listens to the arguments, not having an agenda" and that "Our job is to evaluate the case before us, interpret the facts, apply the law to them and come down with a decision that closely approximates justice..."^[14]

• According to the Wisconsin Manufacturers & Commerce, Justice Butler is considered an "activist" judge, authoring a ruling that eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of "fungible" products.^[15]

Michael Gableman

• According to Gableman, he is running as a "judicial conservative" and he stands for following the law, regardless of whether the law is based on liberal or conservative principles, and that he desires the same law-based, non-partisan court that Wisconsin citizens desire.^[16]

• At a debate in Dodgeville, Gableman indicated that the reason he entered the race is because he saw a pattern of decisions influenced by personal opinion, and noted "People have to be confident that as judges and justices we're not going to make the law, we're going to apply it."^[17]

Contributions

As of March 25, 2008, Butler had financially outpaced Gableman by nearly double. The Butler campaign reported that it had $228,328 cash on hand, compared to Gableman's $120,738. "From February 5 to March 17, Butler said he had taken in $221,210 and had spent $244,710. He has raised a total of more than $651,000.Gableman pulled in $149,794 in the same period and spent $114,606. His campaign said he has raised a total of more than $276,000 in his bid to unseat Butler."^[18]

• Some notable contributors to Butler's campaign have been the AFL-CIO, AFSCME Councils 40 + 48, American Federation of Teachers, United Northeast Teachers organization, and numerous contributions from personal injury law firm Habush, Habush & Rottier, which has twelve offices throughout Wisconsin.^[19][20]

Spending by independent groups

The campaign has been marked by high levels of spending from independent groups, compared to the amounts that each candidate is spending through his own campaign committee. A report issued on March 26 showed that more than $2,000,000 has been spent by independent groups who have no contribution limits or legal duty to disclose donors. The independent groups supporting both sides in the race have cumulatively spent more than nine times as much on television ads as the candidates have themselves.^[21]

Independent groups include the Greater Wisconsin Committee (GWC) supporting Butler. GWC spent $603,000 through March 24. Meanwhile, the Club for Growth, the Coalition for America’s Families and Wisconsin Manufacturers & Commerce had cumulatively spent $1.2 million through the same date supporting Gableman.^[22] WEAC, the state's largest teacher's union, entered the fray with a TV ad buy in late March.^[23] The political action arm of the National Rifle Assocation spent $73,000 on pro-Gableman mailings.^[24]

Candidate Responses to League of Women Voters

As part of a voter's guide for Wisconsin residents,^[25] the League of Women Voters posed the following questions to each of the candidates:

1. What educational, occupational, civic and community experiences have you had that you believe qualify you for this elective office?

2. Describe in lay terms the duties of a Wisconsin Supreme Court Justice. Are there duties you think should be added to or removed from the list?

3. What legislative or procedural changes might improve the operations of the court?

4. What are the advantages and disadvantages of the current campaign finance rules for electing Justices to the Supreme Court? Should there be changes? How would you as a Supreme Court Justice advocate for the independence of the courts?

Responses from Louis Butler

1. I earned a bachelor’s degree and an honorary doctorate degree in humanities from Lawrence University in Appleton, as well as a juris doctor degree from the University of Wisconsin Law School. In addition to 15 years of experience on the bench, including almost 4 as a Supreme Court Justice, I am involved with the Milwaukee Branch of the NAACP and the Community Brainstorming Conference in Milwaukee. I have served on the Board of Directors for Legal Action of Wisconsin and MATA media communications. I am a member of the State Bar of Wisconsin, Milwaukee Bar Association, and the Wisconsin Association of African-American Lawyers. [WORD LIMIT]

2. First, the Court engages in dispute resolution between parties who have been unwilling or unable to resolve their disputes. The process I go through is to look first at the U.S. Constitution, then the Wisconsin Constitution, state statutes where the legislature has spoken, our common law where the legislature has not spoken, and our prior precedent. The Court is also charged with then administration of the justice system within Wisconsin. The structure is analogous to a corporation, with the chief justice as the chair of the board, the other justices as the board of directors, and the director of state courts as the chief operating officer. [WORD LIMIT]

3. As the court has recently stated publicly, the court system would benefit greatly if the legislature would pass realistic, meaningful public financing of Supreme Court elections as a means of protecting a nonpartisan, neutral, detached and impartial judiciary. Meeting the court’s budgetary needs as a whole would also improve the operations of the court. We have recently started meeting regularly with various legislative committees in an effort to improve relations between the court and the legislature.

4. I am generally supportive of realistic, meaningful public financing in Supreme Court elections. I have grave concern about the tone and content of last year’s race for the Supreme Court, in that out-of-state special interest money poured in, negatively affecting the integrity of the Court and our state’s tradition of electing judges. If we do not protect our system of electing judges, interest groups with deep pockets will be able to effectively buy seats on our highest court, as they are attempting to do around other parts of the country. Instead of decisions then being based on the facts of a given case and the law that applies to those facts, the danger is that the decision will be made based on the interests involved [WORD LIMIT].

Responses from Michael Gableman

1. I have been a Circuit Court Judge since 2002. Prior to serving on the bench, I was a criminal prosecutor, first serving as an assistant district attorney in Langlade and Marathon Counties, and then as District Attorney of Ashland County. I was Deputy Corporation Counsel of Forest County and worked in private practice. Prior to entering law school, I taught for two years, including one year teaching in Milwaukee Public Schools. Judicial decisions significantly impact the safety and prosperity of our state. My broad legal and life experience have prepared me to serve effectively on the Supreme Court.

2. The Court has the responsibility to review cases and make decisions that ultimately impact the health, safety and prosperity of our state. Education, job creation and criminal justice have all been impacted by the Supreme Court. The Court also promulgates rules for lower courts and rules in regard to the conduct of both attorneys and judges. A judge, or justice, should fairly and impartially apply the plain language of the law to the facts of each case. It is not the appropriate role of the courts to legislate from the bench. That is for the governor and the legislature.

3. I have worked to make our Court more responsive to the needs of the public, always mindful of the need to prudently and effectively conserve public resources. I have led the establishment of an Inmate Community Service Program, an expedited Truancy Court, a Restorative Justice Program, and a Drug and Alcohol Court. I have also made public presentations regarding the issues of domestic abuse and the cycle of violence. I would continue to promote programs that would effectively, efficiently, and economically address the needs of the people of this State.

4. First off, it is the highest responsibility of every judge to remain impartial, fair and independent. Campaigns should never impact that sacred duty. As to changes to the finance rules, I am certainly open to ideas to improve the process, but setting those rules is the purview of the legislature – not the courts. What I can control is my own campaign. Wisconsinites can be sure my campaign will not resort to dishonest attack ads. We will instead remain focused on the honest differences between my opponent, who is a good man, and me so that voters can make a fair and informed choice on April 1.

Newspaper endorsements

Endorsements for Butler

On March 26, the Daily Telegram endorsed Butler, saying, "Gableman’s camp would have voters equate the position of Supreme Court justice with that of district attorney. They want people to believe Butler is a friend of violent criminals who lurk behind every dark corner with a knife in one hand and a gun in the other. It’s nonsense."^[26]

Endorsements for Gableman

The Beloit Daily News endorsed Gableman on March 26, saying, "As a state known for high taxes and below-average growth, household income and educational levels, it's not the time to stoke an anti-business reputation."^[27]

Post Election Analysis

• In the Wall Street Journal John Fund wrote "for the first time in over four decades,Wisconsin voters turned out an incumbent justice of their state supreme court."^[28]

• The Wisconsin Democracy Campaign reports that the recent Supreme Court election cost nearly $6 million to unseat incumbent Justice Louis B. Butler. ^[29]

March 2008 Debates

Video From March 25, 2008 Debate

State Bar of Wisconsin

Audio From March 28, 2008 Debate

Wisconsin Public Radio (Real Player needed)

See also

• Wisconsin Supreme Court
• Michael Gableman
• Louis Butler

2008 Elections Results

In a tightly contested race, Michael Gableman became the first person since 1967 to unseat an incumbent justice by defeating Louis Butler 51 percent to 49 percent^[30].

Gableman won the majority of counties in Wisconsin including conservative strongholds of Green Bay, Oshkosh, Fond du Lac, Appleton, and Manitowoc. Gableman had wins in the majority of the Five County Metro Area of Milwaukee including Waukesha, Ozaukee County, Washington County, and Racine County. Despite Butler had very strong vote totals in Madison and Milwaukee and narrowly winning swing regions of Janesville, Beloit, La Crosse, and Eau Claire, Gableman's narrow victory of the swing county of Racine County played a huge role in his victory along with healthy margins in victory in counties where conservative candidates perform strong in elections^[30]. Also, Gableman had very strong support from the law enforcement community from Sheriffs and District Attorneys in which helped translate his message well to voters^[31].

Butler was able to improve off of Linda Clifford's poor showing in 2007 when Annette Ziegler won 65 of Wisconsin's 72 counties. Butler won 13 counties in 2008, but his wins in Dane County, Milwaukee County, and Eau Claire County kept the election close^[30]. In 2007, Annette Ziegler won Milwaukee County by over 10,000 votes, in 2008 Butler with his name recognition being coupled with being a Milwaukee native won Milwaukee County helped win Milwaukee County by a sizeable margin of close to 30,000 votes despite Gableman was a native of the suburb of Greendale^[30].

2008 Wisconsin Supreme Court Election Totals

• Michael Gableman 425,101 51.19%
• Louis Butler(Inc.) 402,798 48.50%
• Others 2,551 0.30%

External links

• Butler, Gableman say they are comfortable with chances on Tuesday
• The Wisconsin 'Tragedy'
• Supreme Court debate is bitter
• Wisconsin Bar Brawl
• WSJ Op-ed "Wisconsin Bar Brawl" Wall Street Journal,
• Judge Butler Earns Low Rating for Liability Expansion (Judicial Evaluation Institute)
• Voter Information Sheet: Wisconsin Family Council
• Campaign finance filings
• Transcript of March 25, 2008 debate
• Candidates both answer questionnaire from Wisconsin Taxpayers Alliance
• Louis Butler campaign website
• Michael Gableman campaign website
• Wisconsin Judgement Day: The Sequel
• Another sordid campaign
• Rendering justice, with one eye on re-election, New York Times, May 25, 2008

References