The Wisconsin Policy Research Institute

Shortly after Gov. Jim Doyle handed Gary Sherman an early Christmas gift and made him a member of the District IV Court of Appeals, the state representative made a promise.
“I will never forget that the business of courts is trying to solve the real problems of real people,” said the Democratic politician from Port Wing.

I, for one, have a feeling Rep. Sherman intends to solve all sorts of problems – unfortunately.

Judges, to borrow the famous words of Chief U.S. Supreme Court Justice John Roberts, are supposed to accept “a certain humility.” They are, as Roberts put it, “servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.”

They also – usually – have ample respect for the law and what it means and accomplishes in this country. We are, after all, as Roberts so eloquently reminded us, “a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world.”

Though not, it seems, of Gary Sherman.

Last May, during a Joint Finance Committee discussion (1:04 mark) of whether Wisconsin police should be forced to collect data on the race of drivers they pull over, Rep. Sherman made it clear that he believes our criminal justice system is badly warped.

“I want to say a couple of things,” said the man who is now about to take a seat on one of our highest state courts. “The first is that the nature of our demographics is changing. There are minority people living everywhere in Wisconsin today and the more that people live in an area where people aren’t accustomed to people who are different than they are living there the more likely it is that perceptions will influence people’s behavior. I think it is really all about perceptions. A person doesn’t really have to accuse police officers of behaving badly to understand that this can occur simply because the types of perceptions that people have influence their behavior.

“There are lots of situations in the criminal justice system where there is unbelievably disparate behavior – unbelievably disparate treatment – of different categories of people,” he added. “The Supreme Court has repeatedly done studies, repeatedly had committees and commissions to talk about the disparate treatment of women in the criminal justice system, the disparate treatment of minorities in the criminal justice system, and it doesn’t necessarily come from overt prejudice. You know, it comes from seeing the same behavior performed by two different people and reaching two different conclusions about identical behavior by two different people. This is a real thing. It happens all the time. It’s why eyewitness testimony is so unreliable in court as a basis for conviction.”

Gary Sherman firmly believes, in other words, that our justice system is riddled with error and prejudice. He suggests that police are inherently, if not overtly, biased. He suggests that the whole classes of people are treated differently and unfairly by those “in the criminal justice system.” He suggests that prejudice makes eyewitness testimony essentially worthless.

There’s undoubtedly a party in the cell blocks tonight.
But there is also a question.

Why does Gary Sherman want to be part of the system he believes is so fundamentally flawed? Why would he want to be a “servant,” as all good judges are supposed to be, of a law that he considers so unbelievably inequitable? Why would he want to umpire a game he sees as so badly rigged?

Unless, of course, he feels he can help “solve” all the problems he sees. Unless he wants to pitch or bat.
It is not supposed to be a judge’s job, Roberts reminds us, to pitch or bat.

Gary Sherman didn’t call me back and didn’t respond to a request for more specific information about which supposed Supreme Court studies and commissions and committees he was alluding to that day last May in Joint Finance.

But forget that for a moment. Forget too, if you want, the fact that Gary Sherman is from Port Wing, a place about 150 miles away from the northernmost edge of District IV. Forget the fact that Gov. Doyle bypassed people like Dane County District Attorney Brian Blanchard, Dodge County Circuit Judge Andrew Bissonnette and Richland County Circuit Judge Edward Leineweber and opted to give the plum to the politician instead. Forget the rumors that this appointment is just one hand greasing the other for one of the million things Gary Sherman has been in a position to do for Jim Doyle over the years. This wouldn’t be the first time something like that has happened.

But don’t forget Gary Sherman’s view of the criminal justice system and the courts that are part of it because – as he has so plainly forewarned us – he is not going to.

-December 14, 2009

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