Thanks to Walter and the good folks at the Manhattan Institute for the opportunity to blog here. I am a former litigation partner at Foley & Lardner and currently on the faculty at Marquette University Law School. As readers of Point of Law are aware, in last term's Caperton decision, the United States Supreme Court identified a somewhat ill defined duty for a judge to recuse herself whenever "the average judge in [the same] position is "unlikely" to be neutral, or whether there is an unconstitutional "potential for bias." Justice Kennedy, writing for a slim five justice majority, rejected the dissent's suggestion that the newly formulated rule would lead to a blizzard of recusal motions, repeatedly emphasizing that such circumstances would be rare.
Here in Wisconsin, the snow flies. Two years ago, Michael Gableman defeated the incumbent Louis Butler. During the course of the election, Gableman and the independent groups supporting him made much of the fact that Justice Butler had been a public defender widely referred to as "Loophole Louie." One of the ads produced by the Gableman ad was extremely misleading, claiming that Butler had "found" a loophole for a child rapist who had gone on to rape again.
In fact, Butler was the man's lawyer and, although he "found a loophole, the court concluded it was harmless error. Butler's client did go on to offend again but only after serving his sentence for the first offense. The ad was universally condemned - including by Justice Gableman's conservative supporters. It represented extremely poor judgment although it is not, in my view, the measure of the man.
Criminal defense lawyers have now filed motions seeking to recuse Justice Gableman in criminal cases because he is claimed to have demonstrated "bias" against criminal defendants and their lawyers. But the calls for recusal are not limited to criminal cases.
In both the Gableman-Butler race and a race one year earlier in which Justice Annette Ziegler was elected to the Court, independent groups spent heavily - far more than the candidates themselves. One was a business advocacy group known as Wisconsin Manufacturers Commerce. It spent somewhere around two million dollars on the race. There were public calls for Justice Ziegler to recuse herself in a pre-Caperton case in which WMC was not a party, but had a filed an amicus brief.
I am something of an agnostic on judicial elections, but, if we are to have them and they are going to be something other than a clash of meaningless platitudes and endorsements (often fueled by subterranean politics), judicial candidates are going to need room to discuss issues in the (often too simple) way that the public can understand or will attend to. A broad reading of Caperton is in tension with that need and with the Court's recent endorsement of robust free speech rights for judicial candidates in Republican Party v. White.
And there is a back story to this. Aggressive recusal standards are often promoted by individuals and organizations who oppose judicial elections, preferring some type of merit selection system. There is an ideological cast to this because merit selection tends to be dominated by bar associations which themselves tend to be dominated by political liberals.
More to come.