For years, so-called “good government” groups had been fighting to “level” the playing field in judicial elections.  They always believed that public financing of elections virtually eliminated advantages for certain candidates.  Last session, such a framework was passed into law.  (Perhaps not-so-ironically, this occurred when conservatives were elected to a majority on the Wisconsin Supreme Court and Democrats controlled the Legislature and Governorship.)

Liberals celebrated the new “fairness” in Court elections.  In last week’s Isthmus newspaper (to which I contribute a column), editor Bill Lueders asked aloud whether this month’s Supreme Court primary was the “fairest election ever.”

Said Lueders:

That means the Feb. 15 primary will occur on a relatively level playing field, with each contender having roughly equal resources. (Whether this will hold true for the general election is unclear, as court challenges or the GOP Legislature could yet kill public financing.)

On Tuesday night, we saw the results of the “fairest election ever.”  Incumbent Justice David Prosser dominated his opponents, receiving 55% of the vote in a four-way primary.  Prosser will now face his closest challenger, JoAnne Kloppenburg, who received 25% of the vote, in the spring general election.

So why did Prosser win by such a large margin in a primary election in which spending was equal?  Perhaps it was due to Wisconsin residents’ preference for conservatives on the Supreme Court.  But it likely had a lot to do with Prosser’s status as an incumbent.

And this is how, as argued on this blog previously, public financing harms challengers.  If spending is level, races will almost always favor the incumbent, as being in office had enormous advantages.  Incumbents have name recognition, voter contacts, and a record on which to run.

In order to overcome that advantage, challengers often need to spend more money to get their message out.  But when each candidate has only a $100,000 grant to spend, it is much more difficult to overcome the natural advantages of incumbency.

So while liberals may have thought the Supreme Court election was “fair,” it was anything but.  The most equitable way to conduct elections is to allow fundraising that translates into increased political speech.  Otherwise, voters will be inclined to support the guy they know.

The Wisconsin Supreme Court is disgusted with how political the institution has become.  In fact, they are so repulsed by the political tone the Court has taken, they are trying to fix it by using the most powerful tool they have:

POLITICS.

Generally, we think of “politics” as the act of trying to get someone elected.  But three liberals on the Wisconsin Supreme Court are doing the opposite – essentially trying to get one of their colleagues un-elected.  Their shady effort to force Justice Mike Gableman to recuse himself from criminal cases is merely a veiled attempt by his ideological opponents on the Court to nullify the election in which the conservative Gableman beat liberal Justice Louis Butler in 2008.

It’s not as if liberals exactly take any hints from the voters, anyway.  In 2000, Butler lost to conservative Diane Sykes in a race for the Supreme Court.  Shortly thereafter, when a seat opened up, Democratic Governor Jim Doyle appointed Butler to the Court, ignoring the previous popular vote.  When the voters threw Butler off the Court in 2008 in favor of Gableman, the Obama administration appointed Butler to a federal judgeship.  (Maybe if Butler loses one more time, he’ll be ready for a U.S. Supreme Court nomination.)

Clearly, elections are of minimal importance to liberal jurists.  And we’re seeing that phenomenon in action with the Court’s actions to essentially overturn Gableman’s victory over Butler.

During the Butler/Gableman campaign, Gableman ran an ill-advised ad that accused Butler of being soft on crime.  The ad dealt with Butler’s time as child molester Reuben Lee Mitchell’s defense attorney, accusing Butler of freeing his client so he could then go on to molest another child.  In fact, Mitchell served out his entire term and only molested another child after his initial term was over.

The discretion in airing the ad was questionable – especially since the candidate himself ran it.  (We normally associate those types of ads with third parties, which will be discussed shortly.)  But Gableman didn’t show any bias against criminal defendants, and he didn’t break the cardinal rule of judicial elections by commenting on any future issues that may come before the Court.  He was merely doing what Supreme Court candidates do these days, by painting himself as a jurist who upholds the criminal laws as written.  (It should also be noted that Butler himself ran ads bragging that he’s “protected the public from criminals” and saying “if you rob someone, you should be punished.”*  Chances of recusal motions being filed from criminal defendants if Butler had won: zero point zero.)

In fact, just a year later, Chief Justice Shirley Abrahamson ran her own campaign, having clearly learned the lessons of modern judicial campaigns.  Abrahamson’s television ads featured Dane County Sheriff Dave Mahoney driving around in his squad car, informing the viewer of Abrahamson’s work “protecting Wisconsin families.”  While much more vague than Gableman’s appeal, it was clearly meant to send a similar message: Shirley’s on the side of law enforcement.  (See the ad here.)

However, nobody seems to care what legally intemperate statements Abrahamson made during her campaign – including her claim that she’s “helping homeowners work out solutions to home foreclosure” and “protecting consumers from abuse.”  One would imagine any bank or business interest appearing before the Court might object to Abrahamson’s depiction of their industry as predatory.  (Furthermore, even ex-gubernatorial candidate Barb Lawton – BARB LAWTON! – has pointed out that a quarter of Abrahamson’s donors will come before the court in some fashion.  If you’re a lefty and Barb Lawton calls you out, you have done something historically objectionable.**)

Yet it’s the Gableman campaign’s TV ads that are now keeping defense attorneys up late at night, filing motions for him to recuse himself in criminal cases.  Such was the case last week when Assistant State Public Defender Ellen Henak filed a motion attempting to force Gableman from participating in a case dealing with how sentencing credits are counted in Wisconsin versus other states.  While standing in front of the Court, Henak nailed herself to a cross of fabrication, arguing that the Court was “forcing” her to move ahead with oral arguments against her will.

While the substance of the case is fairly run-of-the-mill procedural stuff, the Court’s public reaction to it has been unprecedented.  The tumult began the week prior to oral arguments, when three of the Court’s liberal justices issued a public statement urging postponement of the case until Gableman’s situation was rectified.  This is the first time many long-time Court observers can remember justices serving as their own press secretaries and discussing a case openly before it even hits their chamber.  Three conservative justices then responded via the media themselves, saying Gableman’s case before a three-member panel has been taking too long.

Of course, Gableman took part in the oral arguments for the case last week.  He simply has no choice – if he recuses himself from a criminal case just once, then defense attorneys across the state will smell blood in the water and grab hold of that loophole as long as he’s on the court.  The legal toothpaste will then be out of the tube.  In fact, it is rumored that some notable defense attorneys are already urging criminals to automatically file recusal requests as soon as their case gets to the Supreme Court, simply to tighten Gableman’s briefs (so to speak).

In the mean time, all the usual suspects arguing for public funding of Court elections have been coming out of the woodwork, saying that all this unrest is somehow the result of too much money in Supreme Court elections.  In fact, this argument has exactly nothing to do with the Court’s current conundrum.  Gableman’s ad was run by the candidate himself, not the “shady” third parties that taxpayer financed elections are supposed to thwart.  If Gableman had been handed a $200,000 check by the taxpayers of Wisconsin, he likely would have run the same ad.  Abrahamson would probably have used the money to continue to paint herself as tough on crime.  Using the Gableman brouhaha to argue for public financing is like a doctor removing your pancreas if you’re complaining of an ear ache.

So it is clear that politics has taken hold of the Wisconsin Supreme Court.  But it has nothing to do with elections.  Instead, it has to do with the desire of three of the Court’s justices to nullify the results of a popular election when it comes to criminal matters before the court.  And there’s no amount of campaign finance reform that can undo the desire of individual justices to politicize the institution by trumping up phony ethics charges.

***

*-Butler’s harsh “anti-robbing people” stance clearly lost him the much-sought-after “Flamboyant French Safe Cracker” demographic.

**-Lawton also claims that special interests spent less on the Abrahamson/Koschnick race than the Butler/Gableman race because of the “diminishing of the stature of the court.”  This is Olympic-level goofballery.  Special interests spent less because Abrahamson has been on the Court for 30 years, and her race with Koschnick was never close.

In other news, WPRI has obtained a behind-the-scenes video of the justices settling their battle behind closed doors:

It appears I have kept my decades-long streak of displeasing the ladies alive.

Today, the League of Women Voters issued a release critical of my column of last week, where I argue that trying to make legislative districts \”electorally competitive\” actually gives Assembly Democrats an eight-seat head start come election time. Otherwise, African-American votes are diluted and civil rights litigation hilarity ensues. In effect, this gives Democrats an eight seat \”handicap,\” a golf metaphor that appears to be lost on Andrea Kaminski, the author of the LWV release.

In their release, the LWV argues… well… actually, I\’m not exactly sure what they\’re arguing. Their main talking point seems to be that I don\’t have anything to write about. They\’re probably right in that respect. Maybe we can set up a public debate where we argue the merits of my workload. Other than that, they don\’t seem to make any point that refutes anything I said in the column. For the sake of clarity, let me boil it down:

• When you make electoral competitiveness a standard for legislative redistricting, it is impossible to make inner-city districts competitive. Doing so would require diluting the African-American vote, a strategy of segregationists.

• As a result, there are at least eight Assembly districts (and at least two Senate districts) that will be exempt from the competitiveness standard. This gives Democrats an eight-seat head start in legislative elections.

Ms. Kaminski reiterates her support for having an \”independent\” board drawing district lines, since the Legislature can\’t be trusted to do so. In fact, the courts actually set the boundaries every decade. The Legislature generally writes their plan, then it goes to court, where judges eventually draw the lines. It has been this way in every redistricting since at least 1974.

In any event, I am honored to now be Public Enemy #1 over at the League of Women Voters. They are welcome to get in line – it forms on the left.

Yesterday, the U.S. Supreme Court held arguments on the so-called “Millionaire’s Amendment” section of the McCain-Feingold campaign finance law. The provision in question limits how much a candidate can spend on their own campaign, presumably to prevent them from being corrupted by… their own money.

During oral arguments, Justice Scalia ridiculed the notion that laws can somehow “level the playing field” for campaigns. Scalia sarcastically suggested we should next require that the more eloquent candidate talk with pebbles in his mouth, in order to guarantee more egalitarian elections.

If that sounds familiar, it’s because I made a very similar point in a column early this year. To wit:

For instance, we need to eliminate Barack Obama’s good looks from the equation. From now on, Obama should be forced to wear a ridiculous, bushy fake mustache when he gives speeches. We’ll see if women voters are as enthusiastic about his message of hope when he looks like Borat. (Although, admittedly, he might earn my vote if he did so.)

Next, we need to equalize the market for celebrity endorsements. When Chuck Norris endorses Mike Huckabee, every other candidate in the field will be assigned a taxpayer-financed washed-up action star to serve as their campaign spokesman. Jean-Claude Van Damme, we need your cell phone number – looks like John Edwards is cratering!

Under my plan, candidates will be barred from playing instruments while on the campaign trail. Everyone remembers Bill Clinton’s thrust in popularity after he played the saxophone on late night television. Mike Huckabee recently showed up on Jay Leno playing the bass guitar. (Less memorable was Steve Forbes’ performance of Black Sabbath’s “Paranoid” on the triangle.) Whether a candidate can play a few notes on an instrument doesn’t tell me what I need to know about their position on CAFTA.

Finally, we need to get rid of all these troublesome catchwords that seem to be getting people so excited. Obama should be limited to two uses of the word “hope” per speech. Huckabee should only be allowed to refer to God as “the man who lives in the clouds,” and will be limited to using the following joke, written by my four year-old daughter:

Q: “What did the fish say to the seaweed?”

A: “Fish can’t talk!”

All of these important reforms will give real people a chance to run for office. Real ugly, dull, uninformed people.

So since I don’t expect anyone else to toot my horn, I will take this opportunity to do it myself. Or, at least before Wisconsin amends its Constitution to ban tooting your own horn.

I hate to beat a dead horse (see previous post), but come on, Wisconsin State Journal.

Here\’s yesterday\’s headline with regard to the State Supreme Court race:

Gableman Won\’t Retract Letters

The dust-up is about a letter sent by Judge Mike Gableman that references a vote cast by Justice Louis Butler to free a convicted sex offender. Butler claims the charge is unfair, since the individual was never freed. Gableman counters that the fact the offender was never released had nothing to do with Butler\’s vote – in fact, the sex offender was retained in spite of Butler\’s vote, not because of it.

Either way, it\’s pretty clear what the State Journal thinks about the dispute. Naturally, it\’s incumbent on Gableman to \”retract\” the letters, since the paper likely thinks they\’re so unfair. The presumption of wrongdoing is always with the conservative candidate, who then must \”retract\” whatever point they were trying to make. The headline could have easily been written thusly:

\”Butler Defends Vote to Release Sex Offender\”

Fat chance of that. Anyway, lest this become just another conservative sour-grapes screed about the \”liberal media,\” (too late, I know), there is a broader point to all this.

The State Journal has been breathlessly editorializing about how Wisconsin should do away with elected judges, and go to a \”merit based\” system, with judges being picked by some \”impartial\” board. (Perhaps as \”impartial\” as the State Bar.) They believe that the political process is clearly much too crude to pick \”qualified\” judges, despite not being able to offer a single example of how any sitting justice isn\’t \”qualified.\” Say what you will about the jurisprudence of Louis Butler and Annette Ziegler, but they are both most certainly qualified to be on the high court.

The irony here is, when given a chance to actually cover a Supreme Court race, the State Journal does nothing but cover the most political of issues in the campaign. In a sense, they are themselves contributing to the disinformation that they so fervently decry. We can\’t elect judges because they get such bad information during a campaign, but they get such bad information during a campaign because that\’s all they\’re willing to cover.

Where are the stories analyzing Mike Gableman\’s philosophy as a judge? Where are the stories analyzing Louis Butler\’s reasoning in lead paint lawsuits? It\’s not like there\’s not an extensive paper trail on both these guys that might serve as a blueprint for their future jurisprudence. Instead, it\’s easier to sit back and wait for their press releases to hit your inbox.

In a sense, the State Journal is right – the public does get slanted, ill-informed facts during a judicial campaign. Only it\’s not the candidates and interest groups that are spreading the misinformation.

I\’m just about finished with Jeffrey Toobin\’s \”The Nine: Inside the Secret World of the Supreme Court,\” which purports (as the title suggests) to be an inside look at what makes the U.S. Supreme Court tick.  It\’s an entertaining read, but can hardly be considered a serious examination of the Court, given the baseless opinions Toobin offers, and the factual errors even I was able to pick out.

For instance, on page 234, Toobin criticizes Justice John Paul Stevens thusly:

\”His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989.  In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because \’it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgeling Colonies into a world power.  It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.\’\”

Naturally, Toobin thinks that \”out-of-character\” for the reliably liberal Stevens means \”wrong.\”  Fair enough.  But he is actually incorrect in saying that Stevens \”sided with the conservatives\” in the case.  (In fact, since he acknowledges that the Texas v. Johnson case is a \”famous\” case, he should have figured people could easily look it up.)

In Texas v. Johnson, the majority opinion was written by the liberal Justice Brennan, who was joined by justices Marshall, Blackmun, Scalia, and Kennedy.  Dissenting were Chief Justice Rehnquist and justices O\’Connor (the hero of Toobin\’s book), White, and Stevens.  Of the \”conservatives\” on the Court, Scalia and Rehnquist split (I, personally, happen to agree with Scalia).  Even the moderate Republican appointees, O\’Connor and Kennedy, split.  So in his rush to paint conservatives as willing to suppress free speech rights, Toobin gets his votes exactly wrong.

There are a number of these errors in the book that intend to make the Court\’s conservatives look like intellectual lightweights, guided solely by partisanship.  Toobin\’s treatment of the 2000 Bush v. Gore case is particularly troublesome, as he repeatedly asserts that the Court badly mismanaged the case – without even paying lip service to the arguments for the Court agreeing to take it up.  It\’s almost as if he forgot the national circus that the repeated vote counting in Florida caused, and he can\’t conceive of the Supreme Court\’s role in wanting to rectify the situation.  And he broadly asserts that the reason the Court took it up was purely partisan – without offering even a shred of evidence.  Justices Scalia and Thomas are particularly portrayed as buffoonish, while much more ink is given to the \”deep thinking\” and \”thoughfulness\” of Breyer, O\’Connor and Souter.

A number of Toobin\’s errors have been chronicled in depth on other blogs. 

That all being said, it is a good read, especially if you want a perspective on the big cases of the past 15 years.  But I hate being stuck in a situation where I have about 100 pages of a book left to read, and I\’m not exactly sure whether I\’m going to be getting factual information the rest of the way home.  I feel obligated to finish, since I\’ve invested the time to get this far, but I\’m skeptical of what I\’m being told (from what I understand, I\’m about to learn how Samuel Alito is the root of all evil in the U.S. judicial system, so I\’m bracing myself.)

SIDE NOTE:  Toobin advances the tired and commonly-used idea that conservatives on the court are exercising their own brand of \”conservative judicial activism.\”  I would suggest reading Rick Esenberg\’s Wisconsin Interest piece on \”activism\” versus \”restraint\” if you inexplicably have found yourself making this argument.

Between members of the U.S. Supreme Court, there has recently been a spirited debate about the role foreign law should play in instructing our High Court.  Justices such as Stephen Breyer argue that foreign law has a place in influencing U.S. decisions, while Antonin Scalia believes that foreign law shouldn\’t play a role in how we interpret our laws.

After reading this story, Scalia\’s case just got stronger.

Court says baby can\’t be named \’Friday\’

ROME (AP) — What\’s in a name? If the name is Friday, shame and ridicule, according to Italian judges who forbade a couple from naming their child like the character in \”Robinson Crusoe.\”

\”They thought that it recalled the figure of a savage, thus creating a sense of inferiority and failing to guarantee the boy the necessary decorum,\” the couple\’s lawyer, Paola Rossi, said Wednesday. The couple are considering appealing the decision to Italy\’s highest court, she said.

Mara and Roberto Germano, whose son was born on Sept. 3, 2006, had the boy named and baptized Venerdi, Italian for Friday. Even though the boy was not born on a Friday – it was Sunday – his parents liked the name, said Rossi.

\”They wanted an unusual name, something original, and it did not seem like a shameful name,\” Rossi said in a telephone interview. \”We think it calls to mind the day of the week rather than the novel\’s character.\”

Since city hall officials are obliged by law to report odd names, the matter ended up before judges in Genoa, the northern Italian city where the couple live.

Last month, an appeals court stated that Friday falls into the category of the \”ridiculous or shameful\” names that are barred by law, as it recalled the native servant in Daniel Defoe\’s novel.

The judges wrote that naming somebody Friday would bar him from \”serene interpersonal relationships\” and would turn the boy into the \”laughing stock of his group,\” according to a report in La Repubblica this week.