As everyone knows by now, Burnett County judge Mike Gabelman beat incumbent Justice Louis Butler in a race for a seat on the Wisconsin Supreme Court last night. Butler should have known he was in trouble when he got a call from Paula Abdul telling him he “looked gorgeous.”
Interestingly, the people who seem to be most stunned about Gableman’s victory seem to be Gableman’s own supporters. While people who backed Gableman certainly agreed with his stated judicial philosophy, he never demonstrated a grasp of the issues most important to the Court. This was due, in part to the race’s misleading focus on criminal justice issues. It is also due to the fact that Gableman often eschewed actual debate with Butler in favor of calling him a “judicial activist.” In the candidates’ final debate, Gableman answered virtually every question with the words “judicial activism,” rather than explaining any of his own positive philosophy. (He crossed the line the next day at the dry cleaners – when asked if he wanted extra starch, he accused the dry cleaner of legislating from the ironing board.)
Yet despite any misgivings supporters had about Gabelman’s electability or the campaign he ran, the bottom line is that he won. So it’s hard to argue tactics – clearly his campaign knew what they were doing. But it doesn’t make it any less shocking that what was essentially a second-tier candidate ended up on the Supreme Court in a year that was supposed to be dominated by liberals.
So now the blueprint for winning a Supreme Court seat is pretty much set. Criminal justice, criminal justice, criminal justice. The best advice I can give Chief Justice Shirley Abrahamson for her 2009 race is to get a picture of her beating a homeless crack addict with a billy club, ASAP.
As for Butler, he actually seems like a good guy. In debates he was composed, knowledgable, and personable. Yet for all of his charm, he never seemed to grasp the problems voters might have with a justice
that disregarded the plain meaning of the law as often as he did. In his final TV ad, he bragged about ruling in favor of widows of men killed in the Miller Park construction accident. He stood up for children “hurt by unsafe products.” (Presumably the ridiculous lead paint case.)
While it’s wonderful that these widows and children were able to get some kind of relief, it still leaves one question: what was the law? Being a justice isn’t about handing out Christmas presents to the aggrieved. It’s about interpreting the statues as written by the Legislature. Certainly, I would be appreciative if Louis Butler could get me in a hot tub with Natalie Portman. But I’m fairly sure there’s no law authorizing such a meeting. (Mental note to self: begin lobbying Legislature for such a law.)
Voters likely saw that Butler’s presence created a Court majority run wild. In fact, his mere presence on the Court was an affront to the voters. After Butler lost to Justice Diane Sykes by a 2-to-1 margin initially, Governor Doyle ignored the will of the electorate and appointed Butler to the bench anyway. This was the judicial equivalent of mooning the voters.
Butler is smart and capable, and his punishment will be to move to a high-class law firm and make five times as much money as he made on the Supreme Court. So while it may hurt his feelings that he lost to Fred Flintstone now, he’ll do just fine. (In the final debate, you could see on Butler’s face that he couldn’t believe they got this guy to run against him.)
But now that he’s on the Court, Gableman will have to prove that he was worthy of all the support he received. He has to display an intelligence and grasp of the issues that seemed to be lacking in his campaign. In short, he has to bloom where the voters planted him.