The editor’s opinion from Marketplace, Northeast Wisconsin’s business magazine. (Obligatory disclaimer: Most hyperlinks go to outside sites, and we’re not responsible for their content. And like fresh watermelon, peaches, pineapple, grapefruit, tomatoes and sweet corn, hyperlinks can go bad after a while.)

April 8, 2008

Ab abusu ad usum non valet consequentia*

If your judgment is based on election results, you could say Gov. James Doyle was the April Fool after the April 1 election:

The constitutional amendment prohibiting the “Frankenstein veto,” which allowed governors to create new words out of existing sentences in bills passed by the Legislature, passed with 71 percent of the vote.

State Sen. Lena Taylor (D–Milwaukee), Doyle’s hand-picked candidate to run against Milwaukee County Executive Scott Walker, got just 41 percent of the vote in heavily Democratic Milwaukee County.

And, in the most superficially surprising result of all, Supreme Court Justice Louis Butler, appointed by Doyle in 2004, lost to Burnett County Circuit Judge Mike Gableman. Butler is the first Supreme to lose an election in 41 years, and is now 0-for-2 in Supreme Court elections.

Perhaps the hangover of going 0-for-3 spurred Doyle’s overwrought reaction to Butler’s defeat: It is a tragedy that such a fine judge and good human being was trashed during the campaign.” A tragedy is when people die in an unexpected manner, as Doyle, a former district attorney, should know. The only thing that died Tuesday was “Loophole Louie” Butler’s judicial career. (At least one assumes so, although Doyle still could appoint Butler to some other vacant judicial bench, I suppose.)

Liberals may not be able to grasp that voters prefer non-liberal judges. The Wisconsin Policy Research Institute blog points out the result of four Supreme Court elections this decade:

2000: Liberal Butler, a Milwaukee municipal judge at the time, loses to Justice Diane Sykes, who now is a federal judge.

2003: Conservative Justice Patience Roggensack defeats Barron County Circuit Judge Ed Brunner.

2007: Conservative Justice Annette Ziegler defeats liberal lawyer Linda Clifford.

2008: Gableman defeats Butler.

This was a hugely important election for business (and not just in Wisconsin; according to the University of California–Davis Law Review, Wisconsin’s is the eighth most cited state supreme court by other judicial bodies, higher than the supreme courts in New York, Texas or Florida). The court will now have a majority of at least 4–3 (with Justices David Prosser of Appleton, Roggensack and Ziegler joining Gableman) that actually follows the law and legal precedents.

Justices Patrick Crooks of Green Bay and Ann Walsh Bradley used to be considered moderate to conservative, but then they joined Butler and Chief Justice Shirley Abrahamson in the reprehensible 4–3 decision that eliminated the individual causation requirement for liability in lawsuits against manufacturers of “fungible products.” In English, this means the court eliminated the requirement that, to quote the Wall Street Journal, “a particular manufacturer’s lead paint be linked to an injury before a consumer can sue,” allowing the plaintiff to sue paint manufacturers and lead pigment suppliers if he could merely prove the companies had sold products in Wisconsin. This version of the Supremes also eliminated caps on noneconomic damages (that is, “pain and suffering”) in medical malpractice cases, superseding the state law that set a $450,000 noneconomic-damages ceiling.

As one of the three justices who ruled correctly noted, “The end result of the majority opinion is that the defendants … can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

With four justices whom Sykes said in 2006 had abandoned “some familiar and long-accepted principles that normally operate as constraints on the court's use of its power,” no wonder business interests spent an estimated $1.86 million on the Butler–Gableman race. According to the Wisconsin Democracy Campaign, contributions for Gableman, collected by the candidate and other groups, totaled $2.57 million, and contributions for Butler totaled $2.25 million. The difference can be argued as being necessary to overcome Butler’s incumbency advantage.

Judges are supposed to be referees, not legislators. If judges are going to let their God complexes get out of hand and anoint themselves as a super-legislature with more powers than the other two branches of government, then the campaigns for the bench will be exactly like races for the Legislature or governor. The real way to get “big money” (which means more money than your side spends) out of politics is to reduce the stakes in elections by reducing the size and scope of government, period.

This race also should be a reminder to candidates that any candidate who is perceived as being soft on crime, regardless of the race, will be subject to capital punishment of his or her political career when facing a competitive candidate who takes the opposite position. (Then again, there are always exceptions.) To voters, there is no such thing as being too tough on crime, particularly after 40 years of holding anyone and anything except criminals responsible for crime.

Proof of this comes from the debate over the “truth in sentencing” debate in the late 1990s. Previously, if a criminal was sentenced to 10 years in prison, that person would be first eligible for parole after 2½ years, one-fourth of the convict’s sentence, and the convict was required (absent “extenuating circumstances”) to be released after six years and eight months, two-thirds of the sentence. The plan hatched in Madison was to (1) eliminate traditional parole and (2) reduce sentences so that our hypothetical convict would be sentenced to six years and eight months.

The old system was replaced with “determinate sentencing,” where all convicts whom the judge wanted to send to prison were given two sentences, a prison term of at least one year, followed by a term of extended supervision of at least one-fourth the length of the prison sentence. Determinate sentencing eliminated parole, but sentences weren’t reduced.

I appeared on Wisconsin Public Television’s old WeekEnd show around the time of this debate, with two other people who were horrified that the Legislature might not go through with part two of this proposal and make criminals actually serve their entire sentences. I said then that it was obvious that people wanted criminals in prison, not out committing more crimes, and I predicted then that no elected official would pay any political price for not reducing sentences. I believe that prediction has been proven repeatedly. Voters don’t care if, as one report estimated, the price of more criminals in prison for longer sentences balloons; every criminal in prison is one less person who will commit a crime outside prison. By extension, the voting public also clearly lacks faith in rehabilitation of criminals. And, as Butler’s two Supreme Court race losses may demonstrate, voters also have little patience for those who work to free criminals from legitimate convictions and sentences, even if that’s how the system is supposed to work.

And speaking of the system, those who didn’t like the results of the April 1 election are now calling for the system by which justices are elected to be changed to require only public financing or even replace elections with appointments, as if the system by which U.S. Supreme Court justices are selected is superior. (Just ask Justice Robert Bork about that.) How is giving governors the authority to appoint Supreme Court justices substantially different from giving governors the authority to appoint Supreme Court justices to fill unexpired terms, as Wisconsin’s governors have now? Proposals for “merit selection” are antidemocratic and elitist and inevitably give lawyers (specifically, according to criticism in Missouri, liberal lawyers) more say in the process than those paying for the court system, the taxpayer. As Marquette University Law Prof. Richard Esenberg puts it, “We are now going to see cures that are worse than the disease.”

Esenberg also gets the last word here: “Across the blogosphere, folks on the left are what doing what they have done for my entire adult life when they lose. They convince themselves that they — and the public — got hosed. Perhaps that is why they continue to lose.”

* “The consequences of abuse do not apply to general use.”

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