Marquette University Law School Marquette Law Scholarly Commons
Faculty Publications Faculty Scholarship
1-1-2002 The rP int Media and Judicial Elections: Some Case Studies from Wisconsin Joseph D. Kearney Marquette University Law School, [email protected]
Howard B. Eisenberg
Follow this and additional works at: http://scholarship.law.marquette.edu/facpub Part of the Law Commons Publication Information Joseph D. Kearney & Howard B. Eisenberg, The rP int Media and Judicial Elections: Some Case Studies from Wisconsin, 85 Marq. L. Rev. 593 (2002)
Repository Citation Kearney, Joseph D. and Eisenberg, Howard B., "The rP int Media and Judicial Elections: Some Case Studies from Wisconsin" (2002). Faculty Publications. Paper 32. http://scholarship.law.marquette.edu/facpub/32
This Article is brought to you for free and open access by the Faculty Scholarship at Marquette Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW
Volume 85 Spring 2002 Number 3
THE PRINT MEDIA AND JUDICIAL ELECTIONS: SOME CASE STUDIES FROM WISCONSIN
JOSEPH D. KEARNEY* & HOWARD B. EISENBERG**
INTRODUCTION AND OVERVIEW ...... 594 I. INTRODUCTORY INFORMATION FOR THE STUDY ...... 598 A. Judicial Selection in Wisconsin ...... 598 B. Methodology of the Study ...... 602 II. THE ABRAHAMSON-ROSE SUPREME COURT RACE ...... 607 A. The Candidates and the Campaign in Brief ...... 609 B. Newspaper Coverage of the Campaign ...... 612 C. An Empirical Assessment of the Information in the N ew spapers ...... 636 1. N ews A rticles ...... 639 2. E ditorials ...... 655 3. O pinion Pieces ...... 662 4. Letters to the Editor ...... 666 5. A dvertisem ents ...... 670 III. COUNTY RACES FOR THE CIRCUIT COURT ...... 673 A .Lincoln County ...... 674 B. Colum bia County ...... 683 C. Jefferson County ...... 692 D. Fond du Lac County ...... 704 E. La Crosse County ...... 710 F. Waukesha County ...... 718
Associate Professor of Law, Marquette University Law School
G .M ilwaukee County ...... 731 1. Patricia McMahon's Defense of Her Branch 18 Seat Against Andrew Shaw ...... 731 2. The Race for the Newly Created Branch 47 ...... 736 3. The Race for Branch 22 Between Incumbent William Haese and Challenger Peter Earle ...... 742 4. The Race for Branch 19 Between Incumbent John McCormick and Challenger James Flynn ...... 746 H .D iscussion ...... 749 IV.SOME OBSERVATIONS AND SUGGESTIONS FOR FURTHER R ESEA RCH ...... 760 A .O bservations ...... 761 B . A ssessm ent ...... 770 C. Suggestions for Further Research ...... 776
INTRODUCTION AND OVERVIEW The optimal means of judicial selection remains a subject of endless debate. The variety of approaches employed around the Nation attests to the essentially unresolvable nature of the matter. Some jurisdictions require judges to be chosen through contested elections; others through gubernatorial appointment followed by retention elections; still others through a so-called merit-selection process; and so 1 on. Notwithstanding this variety of approaches, the vast majority of jurisdictions have settled upon one common point. Specifically, outside of the federal government, where judges possess life tenure during "good [b]ehaviour," 2 most jurisdictions require their judges to stand for election at some point. This is true even of most states that have eschewed the direct electoral system in the first instance and have
1. For summaries of the manner in which judges are selected around the Nation, see ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 262-67 (4th ed. 1998); PATRICK M. MCFADDEN, ELECTING JUSTICE: THE LAW AND ETHICS OF JUDICIAL ELECTION CAMPAIGNS 5-6, 9, 177-88 (1990); Steven P. Croley, The MajoritarianDifficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689 (1995); Daniel Deja, How Judges Are Selected: A Survey of the Judicial Selection Process in the United States, 75 MICH. B.J. 904 (1996). 2. U.S. CONST. art. III, § 1. Only seven federal judges have been removed from office through impeachment by the House of Representatives and conviction by the Senate. See Sambhav N. Sankar, Disciplining the ProfessionalJudge, 88 CAL. L. REV. 1233, 1249 & n.93 (2000). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS instead vested initial-selection power in governors or commissions In these circumstances, one would expect that those debating modes of judicial selection would inquire into the types of information available to voters in these elections. And, in fact, there have been some studies that have addressed how much information voters have when they pull the lever or punch out the chad in judicial elections. These studies have tended to demonstrate that voters know fairly little about the individuals seeking judicial office.4 In our judgment, however, the question of the amount of information actually possessed by voters can be only part of the inquiry. We do not doubt that demonstrating that voters are ill-informed in making judicial selections constitutes a significant contribution to the ongoing debate about how judges should be picked. At the same time, it is also important to ask how much information about candidates is available to those voters interested in seeking it out. In other words, the extent of any voter ignorance must be assessed against the backdrop of the type and amount of information within the reach of voters. No one questions, after all, whether Americans should have the right to elect most of their state and federal representatives, even though it is widely accepted here, too, that many voters are fairly ignorant of the candidates' policies.5 Society simply accepts that many voters know very little about the political candidates between whom they must choose, even while it would not tolerate a system in which such knowledge were
3. See MCFADDEN, supra note 1, at 177-88 (setting forth appendix with table summarizing initial-selection and retention processes in each state). 4. See, e.g.,. Herbert Jacob, Judicial Insulation-Elections, Direct Participation, and Public Attention to the Courts in Wisconsin, 1966 Wis. L. REV. 801; R. Neal McKnight et al., Choosing Judges: Do Voters Know What They're Doing?, 62 JUDICATURE 94 (1978); Glenn R. Winters, How Much Do Voters Know or Care About Judicial Candidates?,38 J. AM. JUD. SOC'Y 141 (1955). Of course, the debates associated with judicial elections extend well beyond the amount of voter knowledge. Recently, for example, campaign tactics and financing have come under considerable scrutiny and have prompted some calls for change. See William Glaberson, States Taking Steps to Rein In Excesses of Judicial Politicking,N.Y. TIMES, June 15, 2001, at Al; William Glaberson, Justices Urge Stricter Rules for Judicial Elections, N.Y. TIMES, Jan. 26, 2001, at A16; William Glaberson, A Bipartisan Effort to Remove Politicsfrom JudicialRaces, N.Y. TIMES, Oct. 23, 2000, at A18. 5. See generally ANGUs CAMPBELL ET AL., THE AMERICAN VOTER 188, 215 (1960); ERIC R.A.N. SMITH, THE UNCHANGING AMERICAN VOTER 1, 9,109-10,167,190 (1989); L. SANDY MAISEL, PARTIES AND ELECrIONS IN AMERICA 96-97,101 (2d ed. 1993); RICHARD G. NIEMI & HERBERT F. WEISBERG, CLASSICS IN VOTING BEHAVIOR 13, 43, 47 (1993); David P. Baron, Electoral Competition with Informed and Uninformed Voters, 88 AM. POL. SCI. REV. 33 (1994); Larry M. Bartels, Uninformed Votes: Information Effects in Presidential Elections, 40 AM. J. POL. SCI. 194, 194-98 (1996); Richard R. Lau & David P. Redlawsk, Voting Correctly,91 AM. POL. SCI. REV. 585,586 (1997). MARQUETTE LAW REVIEW [85:593 nearly impossible to obtain for those actually interested in obtaining it.6 Because this latter question-concerning how much and what type of information voters have available in judicial elections, as opposed to the question of how much information such voters actually possess-has not received substantial attention, we have sought to address this gap in the literature. We have done so by focusing on print media coverage of the 1999 judicial elections in Wisconsin. We have selected this particular approach for several reasons. First, we believe that the print media generally supply the most extensive coverage of judicial elections, as assessed on the basis of scope and depth of coverage.7 Thus, if even the print media's coverage were judged to be inadequate, the same conclusion could be said generally to apply, a fortiori, to the electronic media (e.g., television and radio broadcasting). One could then conclude that media coverage of judicial campaigns is adequate only if one were willing to regard the two types of media (print and electronic), though themselves inadequate, as somehow in the aggregate providing enough information. On the other hand, if the print media were found to supply sufficient information about judicial candidates, then that would demonstrate that a voter interested in making an informed ballot choice for judge would have the means to do so. Thus, whichever conclusion one reaches regarding the adequacy of the print media's coverage of judicial campaigns will itself constitute information of the greatest importance concerning the overall adequacy of media coverage of the campaigns.
6. It should be noted that one reason that society may accept such voter ignorance in legislative and executive branch races does not apply in most judicial races. Specifically, the fact that candidates in legislative and executive branch races almost always run under the banners of political parties means that voters who are generally ignorant of a particular candidate's positions may nonetheless be able to infer them based on the candidate's party. In other words, knowledge of political-party affiliation (which usually appears on the ballot along with a candidate's name) frequently acts as a proxy for other information about a candidate in legislative and executive branch races. Cf WILLIAM H. FLANIGAN & NANCY H. ZINGALE, POLITICAL BEHAVIOR OF THE AMERICAN ELECTORATE 53, 70, 165-66, 183 (9th ed. 1998); WARREN E. MILLER & J. MERRILL SHANKS, THE NEW AMERICAN VOTER 100, 117, 496, 512 (1996); NIEMI & WEISBERG, supra note 5, at 214-17; Angus Campbell et al., The Impact and Development of Party Identification, in NIEMI & WEISBERG, supra note 5, at 224-31; Thomas E. Mann & Raymond E. Wolfinger, Candidates and Partiesin Congressional Elections, in NIEMI & WEISBERG, supra note 5, at 190. By contrast, in the vast majority of instances, judicial races are formally non-partisan, and the voter who is ignorant about a candidate in such races cannot fall back upon party affiliation. 7. See infra text following note 34. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Second, it is a straightforward (albeit time-consuming) matter to reassemble newspaper and other printed coverage after the fact. By contrast, tracking all media coverage-both print and electronic-would require a massive, ex ante campaign that covered every moment and media source beginning some time well before the election and lasting right up to it.8 While such a project might be a valuable one, it would require an extraordinary investment of resources. Finally, as to the specific elections chosen, the 1999 judicial elections in Wisconsin provide a reasonable variety for study. As described in further detail below, there were eleven contested judicial races in Wisconsin. These races provide hierarchical, geographic, and demographic diversity. Specifically, there were contested races for one of the state's seven supreme court seats and ten of its trial court judgeships. The Wisconsin Supreme Court campaign was conducted statewide. The ten other races took place in judicial trial districts ranging from the state's largest (in Milwaukee County) to one of its smaller (in Lincoln County) and encompassed districts that variously are primarily urban, primarily suburban, and largely rural. Although one of our goals is to recount the type and amount of print media coverage of these various campaigns, we do not merely report on each contested judicial election in an isolated and narrative manner. In addition, we discuss the extent to which the newspapers' coverage of the judicial campaigns communicated information widely regarded as relevant to a reasonable voter's electoral determination. Specifically, on the basis of others' writings in the area of judicial selection, we first devise a catalogue of qualities or characteristics desirable in a judge. These qualities and types of associated information range from the strictly factual (e.g., biographical information) to the more subjective (e.g., impartiality, honesty). We then determine the amount of such information that is contained in the newspapers covering each race. Specifically, we set forth tables tracking both that information and other aspects of the newspapers' coverage. This Article is organized as follows. Part I sets forth background information, first concerning judicial elections in Wisconsin and then concerning the methodology that we employed in conducting our study. Part II addresses the 1999 Wisconsin Supreme Court election, which matched incumbent Chief Justice Shirley S. Abrahamson against challenger Sharren B. Rose. In addition to a narrative account of the
8. For an explanation of why such coverage cannot be reconstructed on an after-the-fact basis, see infra note 34 and accompanying text. MARQUETTE LAW REVIEW [85:593 newspaper coverage of the race, it includes both the aforementioned tables and a discussion of the nature and extent of the coverage. Part III similarly discusses the ten contested circuit court elections, which occurred in seven different counties. We examine these counties in ascending order of size (Lincoln, Columbia, Jefferson, Fond du Lac, La Crosse, Waukesha, and Milwaukee), and conclude the section with a general discussion of print media coverage of these lower court races. Finally, Part IV offers some overarching observations about the nature and extent of print media coverage of judicial elections and some suggestions for further research.
I. INTRODUCTORY INFORMATION FOR THE STUDY A. JudicialSelection in Wisconsin The State of Wisconsin has always employed elections as its central means of judicial selection. This has been true of the supreme court since its establishment in 1852, of the intermediate court of appeals since its creation in 1977, and of the state's various trial courts throughout this time.9 Wisconsin currently uses a contested electoral system (as opposed to the retention election system used by some states) in which a primary is held if more than two candidates are running for the same judgeship, followed by a general election between the top two vote- getters."0 The process has been formally non-partisan, in that candidates do not run as nominees of particular political parties. Wisconsin's courts are organized in a traditional geographic manner. The state's courts of general jurisdiction are constituted as follows."
9. For the current provisions mandating judicial elections, see WIS. CONST. art. VII, § 4 (supreme court), § 5(2) (court of appeals), and § 7 (circuit court). For a summary of the original debate in Wisconsin over appointment versus election of judges, see JOSEPH A. RANNEY, TRUSTING NOTHING TO PROVIDENCE: A HISTORY OF WISCONSIN'S LEGAL SYSTEM 52-53 (1999). Ranney also describes a substantial but unsuccessful proposal in the 1930s in Wisconsin to adopt the "Missouri Plan," under which sitting judges face not an opponent but a "yes/no" retention vote. See id. at 598. 10. See WIS. STAT. § 8.11(2), (3) (1999-2000). 11. For purposes of both our summary in the text here and our empirical study, we leave aside the municipal courts that serve some political subdivisions in the state, primarily for the purpose of collecting fines for violations of local ordinances. Although judges of these courts are elected, races for municipal courts are not appropriate candidates for this Article for several reasons. First, municipal courts are not courts of general jurisdiction, as are Wisconsin's circuit and appellate courts. This characteristic means that any findings that we might make about campaigns for municipal judgeships would have reduced relevance to campaigns for general-jurisdiction courts in other states. Second, even within Wisconsin, the duties of municipal courts vary substantially, just as do the ordinances that they exist to enforce. This characteristic would render not very meaningful any comparisons of races for 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 599
The trial courts possess general subject matter jurisdiction over both criminal and civil proceedings. 2 These courts are divided into circuits which are determined by county lines. Each circuit consists of a single
county, with three exceptions (which are two-county circuits);13 Wisconsin's seventy-two counties thus comprise sixty-nine circuits. Where the size of a circuit's caseload warrants (and the legislature has been so persuaded), the circuit will have more than one judge, each said to serve in a different "branch" of the circuit court.14 The circuit courts are grouped into ten administrative districts, each of which is superintended by a chief judge selected by the supreme court from the district's circuit judges.'5 The chief judge has certain authority to assign judges and manage caseflow.'6 In practical terms, however, each of the judges predominantly presides over cases in the county in which he or she was elected (or appointed). Some of the circuit courts are further divided into administrative units (e.g., a probate division or juvenile division). While these units may colloquially be termed "courts" (e.g., probate court or juvenile court), each is in fact a division of the circuit court, and a judge assigned to probate one day could, in theory, be assigned to the criminal division the next 7 There currently are 241 circuit judgeships throughout the state.' 8 Judges are required to have been licensed to practice law in Wisconsin for at least five years prior to taking office and are constitutionally prohibited from holding any other public office during the duration of their judicial terms.19 Each circuit judge is elected by voters in the particular county comprising that circuit; circuit judges serve six-year
municipal judgeships throughout the state. (For a general overview of the sources of authority for the creation of municipal courts, some of these courts' duties, and some differences between these courts and Wisconsin's circuit courts, see City of Sun Prairie v. Davis, 226 Wis. 2d 738,595 N.W.2d 635 (1999).) 12. See Wis. CONST. art. VII, § 8; WIS. STAT. § 753.03 (1999-2000). 13. See Wis. STAT. § 753.06 (1999-2000). 14. Id. § 753.061. More than half of the sixty-nine circuit courts have two or more branches. See id. § 753.06. 15. See id. § 757.60; Wis. SUP. Cr. R. 70.18. 16. See generally WIS. SUP. Cr. R. 70.18-.24. 17. As a practical matter, such arbitrary reassignment does not occur, primarily because the Wisconsin Supreme Court by rule has required the chief judge of each district to prepare and file with the chief justice a formal "plan for the rotation of judicial assignments in multijudge circuits within the district." WIS. SUP. Cr. R. 70.23(3). 18. See Wis. STAT. § 753.06 (1999-2000). As of August 1, 1999, there were 240. See id. 19. See WIS. CONST. art. VII, §§ 10(1), 24(1). These particular requirements apply equally to judges of the court of appeals and justices of the supreme court. MARQUETTE LAW REVIEW [85:593 terms and may run for re-election an unlimited number of times? If a vacancy occurs, the governor has authority to appoint someone to fill the seat pending a special election.2' The court of appeals is an intermediate appellate body with the authority to review final judgments and orders of the circuit courts.22 This body, too, is organized geographically (as opposed to by subject matter), with the state's sixty-nine circuit courts assembled into four appellate districts.2 Milwaukee County alone constitutes District I, which has four judges. District II consists of the other twelve southeasternmost counties in the state. It is headquartered in Waukesha County and has four judges. District III is essentially comprised of the northern half of the state; with three judges, it contains thirty-five counties and operates out of Wausau. Finally, twenty-four counties in the central and southwestern portions of Wisconsin constitute District IV of the court of appeals, which ftmnctions out of Madison and has five judges. The supreme court selects one of the court of appeals' judges to serve as chief judge.24 Like circuit court judges, judges of the court of appeals are elected to six-year terms. The races are district-wide, and no more than one court of appeals race may occur in each district in any year. Although the elections are designed to be contested, a contest is the exception: between 1990 and 1998, for example, only fifteen percent of court of appeals elections were contested." Here, too, the governor has the authority to fill any seats facing mid-term vacancies, pending a special election. 26
20. See id. § 7. In the three two-county circuits, see supra text accompanying note 13, the judges are elected by the voters of both counties. 21. See id. § §; WIS. STAT. §§ 8.50(4)(f), 17.19(2) (1999-2000). 22. See WIS. STAT. § 808.03(1) (1999-2000). The court also has discretion to hear interlocutory appeals. See id. § 808.03(2). There further is a limited provision for a case to bypass the court of appeals and proceed directly to the supreme court. See id. § 808.05. 23. See id. H8 752.03(4), .11, .13, .15, .17, .19. 24. See id. § 752.07. 25. See STATE OF WISCONSIN COMMITTEE ON JUDICIAL SELECTION, FINAL REPORT 19 (2001), available at http://www.courts.state.wi.us/media/pdf/JudicialSelectionRpt2001. pdf (last visited Feb. 24, 2002) [hereinafter FINAL REPORT]. Of the twenty-six elections during this time period, incumbents ran uncontested eighteen times and faced an opponent only twice, and in the six elections not involving an incumbent, four saw only one candidate and only two saw more than one candidate. See id. Thus, only four of the twenty-six elections were contested. 26. See authorities cited supra note 21. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
The Wisconsin Supreme Court is a seven-member body at the top of this hierarchy. It is the appellate court of last resort for all civil and criminal matters in the stateV Justices of the supreme court serve ten- year terms and are elected in statewide races.2 The governor may fill any mid-term vacancy by appointment, although any justice so named must stand for election either at the expiration of the term or in the first year where there would not otherwise be a supreme court election, whichever comes first.29 Four of the current seven supreme court justices were the beneficiaries of such a gubernatorial appointment. Finally, some aspects of Wisconsin's judicial election system are constant across these three levels of courts. First, in an attempt to ensure non-partisan races, the state constitution provides that "[t]here shall be no election for a justice or judge at the partisan general election for state or county officers, nor within 30 days either before or after such election."30 The state has further provided by legislation for judicial elections to occur on the first Tuesday of April. Second, there are no term limits or mandatory retirement age for judges. Although the state constitution permits the legislature to impose the latter (so long as the age is at least seventy years), there is no such requirement today.
27. The Wisconsin Supreme Court also has the authority to hear original actions. See WIS. CONST. art. VII, § 3(2); WIs. STAT. §§ 751.05,809.70 (1999-2000). The court's docket is entirely discretionary. See WIS. STAT. §§ 808.10, 809.60-.62, 809.70 (1999-2000). 28. This is not an inevitable policy choice. For example, Illinois also geographically divides its state into intermediate-appellate-court districts, but further uses these districts for elections to its state supreme court. See ILL. CONST. art. VI, § 2. 29. See WIS. CONST. art. VII, § 9; Wis. STAT. §§ 8.50(4)(f), 17.19(2) (1999-2000). Under this principle, for example, Diane S. Sykes, who was appointed by Governor Tommy G. Thompson in the fall of 1999 when Donald W. Steinmetz retired with six months remaining in his ten-year term, was required to stand for election to that seat almost immediately (viz., in the spring of 2000). By contrast, David T. Prosser, Jr., appointed by Governor Thompson one year earlier in the fall of 1998 to fill the vacancy created by Justice Janine P. Geske's resignation four years into her ten-year term, did not stand for election until the spring of 2001. That is because Chief Justice Abrahamson's seat was up for election in the spring of 1999 and Justice Sykes's in the spring of 2000, and there may only be one race each year. The seat to which Justice Prosser had been appointed, therefore, was not up until the year after those elections. 30. WIS. CONST. art. VII, § 9. 31. See WIS. STAT. § 5.02(21) (1999-2000). 32. See WIS. CONST. art. VII, § 24(2). MARQUETTE LAW REVIEW [85:593
B. Methodology of the Study Our project undertook to measure the amount and nature of information concerning judicial candidates that is available through the print media. Some elaboration of this decision is appropriate before we describe the study in more detail. The reason for our excluding other media is not that their coverage of judicial campaigns is not potentially important. Several factors nonetheless combined to suggest the particular inquiry that we .have undertaken. First, a similarly systematic study of all media attention to judicial campaigns would necessarily require a massive undertaking organized and plotted out several months before the elections actually occurred?3 This is not an entirely self-evident point. Indeed, we initially thought that it might be feasible to reconstruct a substantial amount of the coverage of the various campaigns by the electronic media. This subsequently proved to be impossible, not only because of large practical difficulties in obtaining and processing videotapes or audiotapes from television and radio stations, but also because some proxies for that type of inquiry turned out to be inadequate. In particular, even though television and radio stations (as holders of licenses to use the broadcast spectrum) are required by the Federal Communications Commission (FCC) to prepare reports of their programming that serves the "public interest," we concluded upon examination that these reports were not reliable accounts of the type or even amount of programming that addressed judicial campaigns?'
33. This would be even more true of a study that looked at the still-broader category of all information about candidates, which would include both information available through the various media and information directly available from the candidates themselves. Such a study undoubtedly would have to incorporate some other categories of information as well, such as the candidates' reputations in the community. 34. The FCC generally requires each radio and television station to prepare quarterly reports that set forth the programming during the previous quarter that the station has broadcast on community affairs. See generally Deregulation of Radio, 49 Fed. Reg. 19,019 (May 4, 1984); 47 C.F.R. § 73.3526. In reviewing a number of Wisconsin stations' reports (which are required by law to be available to the public for inspection), we discovered that these reports contain substantially varying amounts of detail. While one can learn from some television stations' reports a great deal, for example, about the type, number, and length of stories run on their evening newscasts, many other stations prepare only barebones reports from which little information about the stations' coverage of current events can be gleaned- and certainly not enough to form the basis for an academic study. We suspect that the paucity of information in these reports derives from the fact that broadcast licenses now tend to be routinely renewed and not subjected to extensive comparative hearings before the FCC. See generally Lili Levi, Not With a Bang But a Whimper: Broadcast License Renewal and the Telecommunications Act of 1996, 29 CONN. L. REV. 243 (1996) (tracing decline of comparative hearings, both before and after the 1996 Act). Simply put, there is little 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Second, we concluded, based on our own experience and inquiries made of others, that the print media provide more extensive coverage of judicial campaigns than do the electronic media. This is a significant supposition for our purposes. If we are correct and newspapers generally provide a greater amount of independent coverage of judicial campaigns than do radio and television stations-and we have little doubt that we are-the results of our study assessing the print media will themselves be significant. On the one hand, if the print media coverage is inadequate, there is little possibility that the problem is being remedied by electronic media. On the other hand, if the print coverage is determined to be adequate, then there is less need to concern oneself with what additional information may be available from other sources. Finally, there can be no question that a significant portion of the voting public reads newspapers,35 so the information available there is almost by definition important to at least a significant portion of the electorate. Our study analyzes the eleven contested judicial elections that occurred in Wisconsin in 1999. These contests consisted of one supreme court race (between incumbent Chief Justice Shirley S. Abrahamson and challenger Sharren B. Rose) and ten elections for the circuit court. These latter ten elections took place in seven different counties. Milwaukee County, the most populous of the state's seventy-two counties, was the site of four races. There was one contested race in each of the counties of Waukesha (which is number three in terms of population), La Crosse (number thirteen), Fond du Lac (number fourteen), Jefferson (number twenty-one), Columbia (number twenty- eight), and Lincoln (number forty-two)." Several of these races attracted more than two candidates, which meant that a primary was required to select the two candidates who would face off in the general electionf The supreme court contest and three of the Milwaukee
incentive for stations to invest substantial resources in preparing the reports. 35. See STEPHEN ANSOLABEHERE ET AL., THE MEDIA GAME 39 (1993); W. LANCE BENNETT, NEWS: THE POLITICS OF ILLUSION 15 (3d ed. 1996); LEO BOGART, PRESS AND PUBLIC: WHO READS WHAT, WHEN, WHERE, AND WHY IN AMERICAN NEWSPAPERS 2, 78-79 (2d ed. 1989); STEPHEN HESS, NEWS & NEWSMAKING 3 (1996); Leo Bogart, The State of the Industry, in THE FUTURE OF NEWS: TELEVISION-NEWSPAPERS-WIRE SERVICES- NEWSMAGAZINES 85, 101 (Philip S. Cook et al. eds., 1992); Peter Clarke & Eric Fredin, Newspapers, Television and PoliticalReasoning, 42 PUB. OPINION Q. 143,145 (1978). 36. It is not surprising that all of the contested races occurred in various of the largest forty-two of the state's seventy-two counties. These forty-two counties possess an overwhelming share of the circuit judgeships in the state-specifically, 211 of the 240 judgeships existing as of August 1,1999. 37. See infra Part m.A-F & G.2. MARQUETTE LAW REVIEW [85:593
County races involved incumbent judges who were challenged for re- election; the others were for seats that were vacant because the incumbent was not running for re-election or because the seat had been newly created. We set forth our findings in two different forms. First, we recount in a narrative manner the story of the various campaigns as they were reported in local newspapers. We have attempted to be fairly comprehensive in terms of the newspapers that we cover. To consider the circuit court races for the moment, we generally discuss the coverage in all local newspapers that we identified as providing general coverage throughout the county of the race." For example, in covering the Waukesha County race, we were required to analyze not only The Freeman Newspaper of Waukesha but also the Milwaukee Journal Sentinel, whose ordinary ambit includes this county immediately west of Milwaukee County. The effect of this principle is that we report on the coverage of as many as three newspapers for some of the trial court races, although in no instance were there more than two daily newspapers. With regard to the supreme court election, we tracked reportage both in the eight daily newspapers to which we had to resort to cover the local races and in the two daily newspapers in the state capital.39 In each instance, we tracked the coverage from January 1, 1999, which was a few days before the candidates announced their bids, through April 6, 1999, Election Day.
38. For Lincoln County, there is no local newspaper that purports to cover the entire county, and thus we surveyed two local newspapers in the two largest municipalities in the county. See infra text following note 313; see also infra note 601 (discussing relevance to study of exclusion of some local non-dailies). 39. See infra note 71 (listing newspapers). We thus included the two Wisconsin newspapers that have, by a substantial margin, the largest circulations (viz., the Milwaukee JournalSentinel and the Wisconsin State Journal), as well as numerous other newspapers. See 1 WORKING PRESS OF THE NATION, at 2-250 to 2-256 (52d ed. 2002) (listing Wisconsin daily newspapers by municipality and giving circulation numbers). We acknowledge that under this approach we did not include some newspapers that might be thought more significant than some of those that we did include. For example, we omitted the Green Bay Press- Gazette and The Journal Times of Racine. It must be recalled, however, that we are making no claim of comprehensively examining all print media coverage in the state, but rather are examining, on a case-study basis, the amount of information available to particular voters. The salient point thus is that we are including all relevant newspapers within particular geographic areas. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
We expect that the narrative accounts of the various judicial races will be valuable in two distinct ways. First, they are designed to enable others to make their own assessment concerning the adequacy of media coverage (and thus of voter information) in judicial elections. This goal would not be met if we merely reported the highlights of the media coverage. Second, several of these campaigns deserve memorializing for their own sake. This is especially true of the 1999 Wisconsin Supreme Court election campaign, which was controversial because of its tone, the amount of money spent, and the extraordinary fact that half of the incumbent's colleagues on the court endorsed her opponent. A detailed recounting of this and other campaigns is an appropriate addition to the literature addressing public policy in Wisconsin.' In addition to the narrative recounting of the campaigns, we also systematize some of our data in a form that both permits meaningful comparisons across different races and makes analyzing the adequacy of the information in newspapers an easier proposition than would be the case merely using the narrative accounts. Specifically, we have constructed a series of tables that set forth the nature and extent of newspaper coverage of various aspects of the judicial campaigns in our study. The following summarizes our methodology in compiling the information in these tables. The initial step was to divide the newspaper material into five different types, corresponding to basic distinctions familiar to any newspaper reader: (a) news articles, which are intended primarily to report facts and events; (b) editorials, which set forth a newspaper's official unsigned opinions; (c) opinion pieces, or signed articles written by newspaper employees or others that express some particular viewpoint; (d) letters to the editor; and (e) advertisements. We also briefly discuss editorial cartoons, which constitute the one set of instances where material in a newspaper does not fit within any of the foregoing five categories. We do not merely report the frequency of a newspaper's references to a particular candidate in each of these categories (for example, by saying that the Milwaukee Journal Sentinel published fifty-four news articles referring to Chief Justice Abrahamson during the campaign). We settled upon a set of characteristics that a reasonable voter likely would wish a judge to possess. We then tracked whether the
40. For a recent recounting of another controversial campaign, see Michael Koehler, Baseball Apple Pie and JudicialElections: An Analysis of the 1967 Wisconsin Supreme Court Race, 85 MARQ. L. REv. 223 (2001). MARQUETTE LAW REVIEW [85:593 newspapers communicated information concerning those characteristics. Rather than create our own set of characteristics, we drew upon existing literature to make a list of what we term "desirable characteristics" in a judge. We tracked thirteen "desirable characteristics." They are the following (the sources upon which we relied in settling upon each characteristic are noted in the margin below): integrity," judicial temperament,42 industry,43 professional learning,4 judicial experience,45 practice experience," impartiality,47
41. See Lawrence H. Averill, Jr., Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas, 17 U. ARK. LITTLE ROCK L. REV. 281, 316, 321 (1995); Jona Goldschmidt, Selection and Retention of Judges: Is Florida's Present System Still the Best Compromise?, 49 U. MIAMI L. REV.1, 18, 29 (1994); Nat H. Hentel, The "Queens Plan" for Selection of Better Judges, 34 N.Y. ST. B.J., Feb. 1962, at 23, 24; Roger Bryant Hunting, Toward the Best Possible Judges, 15 REC. B. ASS'N CITY N.Y., 400, 406 (1960); William Jenkins, Jr., Retention Elections: Who Wins When No One Loses?, 61 JUDICATURE 79, 81 (1977); Martin I. Kaminsky, A Proposalfor Mandatory PreselectionScreening for State Court Judges, 51 ST. JOHN'S L. REV. 516, 538 (1977); Douglas McHendrie, Qualification, Selection and Tenure of Judges, 33 ROCKY MTN. L. REV. 449, 449 (1961); Philip G. Meyers, Court Reorganization-Have We Gone Far Enough?, Wis. B. BULL., June 1977, at 10, 12; Henry T. Reath, In Support of ConstitutionalRevision to Provide for Merit Selection of All Judges, 45 PA. B. ASS'N Q. 406, 407 (1974); Maurice Rosenberg, Improving Selection of Judges on Merit, 56 JUDICATURE 240,241-42 (1973). 42. See Raymond Pace Alexander, The Selection and Education of the Judiciary-Some Unfinished Tasks, 40 PA. B. ASS'N Q. 57, 57 (1968); Edmund G. "Pat" Brown, A Governor's View of Judicial Selection, 49 L.A. B. BULL. 405, 407 (1974); Hentel, supra note 41, at 24 (defining "judicial temperament" as patience, general courtesy, and dignity); Hunting, supra note 41, at 406; Jenkins, supra note 41, at 81; Kaminsky, supra note 41, at 538; McHendrie, supra note 41, at 449; Rosenberg, supra note 41, at 241-42; Richard B. Saphire & Michael E. Solimine, Diluting Justice on Appeal?: An Examination of the Use of District Court Judges Sitting by Designationon the United States Courts of Appeals, 28 U. MICH. J.L. REFORM 351, 395, 401 (1995); Arthur T. Vanderbilt, The Essentials of a Sound Judicial System, 48 Nw. U. L. REV. 1, 3 (1953). 43. See Alexander, supra note 42, at 57; Brown, supra note 42, at 407; Hentel, supra note 41, at 24; Jenkins, supra note 41, at 81; Kaminsky, supra note 41, at 538; McHendrie, supra note 41, at 449; Rosenberg, supra note 41, at 241-42; Saphire & Solimine, supra note 42, at 388-91; Vanderbilt, supra note 42, at 3. 44. See Brown, supra note 42, at 407; Bradley C. Canon, The Impact of Formal Selection Processes on the Characteristicsof Judges-Reconsidered, 6 LAW & SOC'Y REV. 579, 589 (1972); Victor Eugene Flango & Craig R. Ducat, What Difference Does the Method of Judicial Selection Make?, 5 JUST. SYS. J. 25, 31-33 (1979); Hentel, supra note 41, at 24; Herbert Jacob, The Effect of InstitutionalDifferences in the Recruitment Process: The Case of State Judges, 13 J. PUB. L. 104, 108-09 (1964); McHendrie, supra note 41, at 449; Charles H. Sheldon, Perceptions of the Judicial Roles in Nevada, 1968 UTAH L. REV. 355, 362; Daniel W. Shuman & Anthony Champagne, Removing the People from the Legal Process: The Rhetoric and Research on JudicialSelection and Juries, 3 PSYCHOL. PUB. POL'Y & L. 242,247 (1997). 45. See Canon, supra note 44, at 589; Philip L. Dubois, The Significance of Voting Cues in State Supreme Court Elections, 13 LAW & SOC'Y REV. 757, 770 (1979); Flango & Ducat, supra note 44, at 31-33; Hentel, supra note 41, at 24; Jacob, supra note 44, at 109-11; Sheldon, supra note 44, at 362; Vanderbilt, supra note 42, at 3. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS honesty, courage,49 independence,' fairness,51 knowledge of the law,52 and others' opinions of the candidate.? Where necessary, further explanation of these characteristics and of other information that we tracked in the newspapers is provided at relevant points in the case studies that follow. IL THE ABRAHAMSON-ROSE SUPREME COURT RACE The 1999 Wisconsin Supreme Court race proved memorablem This is not because the vote was close. Shirley S. Abrahamson, the incumbent chief justice of the state's highest court, defeated Green Bay lawyer Sharren B. Rose by a nearly two-to-one margin.55 The vote was sufficiently lopsided that Rose garnered a 5majority6 of the vote in only one of the seventy-two counties in the state. The race will be remembered instead for various aspects of the campaign. One was the expense. The race marked the first time that Wisconsin judicial candidates' combined expenditures exceeded one million dollars (the figure was reported as ultimately totalling
46. See Brown, supra note 42, at 407; Canon, supra note 44, at 589; Dubois, supra note 45, at 770; Flango & Ducat, supra note 44, at 31-33; Hentel, supra note 41, at 24; Kaminsky, supra note 41, at 538; Meyers, supra note 41, at 12; Rosenberg, supra note 41, at 241-42; Sheldon, supra note 44, at 362; Vanderbilt, supranote 42, at 3. 47. See Patrick Winston Dunn, Comment, Judicial Selection in the States: A Critical Study with Proposalsfor Reform, 4 HOFSTRA L. REV. 267,274 (1976); Jenkins, supra note 41, at 81; Kaminsky, supra note 41, at 539; Meyers, supra note 41, at 12. 48. See Alexander, supra note 42, at 57; Dunn, supra note 47, at 274; Hentel, supra note 41, at 24; Kaminsky, supra note 41, at 538; Vanderbilt, supra note 42, at 3. 49. See Alexander, supra note 42, at 57; Dunn, supra note 47, at 274; Hentel, supra note 41, at 24. 50. See Alexander, supra note 42, at 57; Dunn, supra note 47, at 274; Kaminsky, supra note 41, at 538. 51. See Dunn, supra note 47, at 274; Kaminsky, supra note 41, at 538; Meyers, supra note 41, at 12; Gary H. Sperling, ForMerit Selection of Judges, QUEENS B. BULL., Feb. 1976, at 27. 52. See Dunn, supra note 47, at 274; Hentel, supra note 41, at 24; Hunting, supra note 41, at 406; Kaminsky, supra note 41, at 538; Meyers, supra note 41, at 12; Reath, supra note 41, at 407; Rosenberg, supra note 41, at 241-42; Sperling, supra note 51, at 27; Vanderbilt, supra note 42, at 3. 53. See Dunn, supra note 47, at 274; Meyers, supra note 41, at 12. 54. It was not unusual for the election to be contested. Of the eighteen supreme court elections between 1978 and 2001, fully two-thirds (or twelve) were contested. 55. Specifically, Abrahamson received 481,281 votes to 276,584 for Rose. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 851 (1999). Abrahamson's share constituted 63.5% of these votes. 56. Rose won the popular vote only in Washington County. See id (giving vote totals in each county). MARQUETTE LAW REVIEW [85:593
$1,361,929).' This was an increase of more than fifty percent beyond the cost of the most expensive previous judicial campaign in Wisconsin." Another memorable component of the campaign was the internal fissures that it revealed on the Wisconsin Supreme Court. In the midst of the campaign, a majority of the court criticized Abrahamson's administration of the court system and were themselves harshly criticized by Abrahamson's supporters, including much of the press. Even beyond that, three of the chief justice's six colleagues on the court made the extraordinary move of explicitly endorsing Abrahamson's opponent. Enough popular attention was given to the race that, when it was over, calls remained for reexamination of the tenor of judicial campaigns, campaign financing, and even the proper method of judicial selection." Even more than the typical state supreme court race, such a campaign should be preserved for future study. Securing a detailed record of the campaign is thus one of the central purposes of this section. But the race can also afford insight into the manner in which newspapers cover-or do not cover-various aspects of judicial campaigns. Parts A and B below seek to accomplish both of these purposes. The former briefly sets out the story of the Abrahamson- Rose campaign, including the candidates' major themes. The latter then amplifies this story with reference to the accounts in newspapers throughout the state. We pay attention to the emphasis given to particular aspects of the campaign, and by particular newspapers. Part C then analyzes in a more systematic and empirical manner the amount
57. See Charles D. Clausen, The Long and Winding Road: Politicaland Campaign Ethics Rules for Wisconsin Judges, 83 MARQ. L. REV. 1, 15 (1999). 58. See id. (providing a table setting forth contributions and expenditures for Wisconsin Supreme Court races from 1989 through 1999). 59. See, e.g., Editorial, Add Accountability or Appoint Justices, WAUSAU DAILY HERALD, Apr. 8, 1999, at 10A (arguing that "[t]he election process doesn't allow voters to delve deeply enough into candidates' judicial philosophy, temperament and record"); Editorial, Now, Let's Fix Court Contests, CAP. TIMEs, Apr. 8, 1999, at 10A (advocating ending the practice of appointing judges and justices to fill open seats prior to elections and further calling for public financing of judicial races and for discouraging sitting justices and judges from weighing in on elections); Nathan Heffernan, Reform Needed in How We Elect Supreme Court Justices, MILWAUKEE J. SENTINEL, Apr. 25, 1999, at 2J (opinion piece by former chief justice of Wisconsin Supreme Court contending that "fundamental reform" is required to fix election system currently "addict[ed] to big money"); Daniel T. Flaherty, Letter to the Editor, Judicial Campaigns: Appoint Judgesfrom Panels of Screened Applicants, Wis. LAW., Sept. 1999, at 3; Wisconsin Citizen Action Press Release, Former Supreme Court Justice Geske, Sen. Darling Urge Rapid Passage of Impartial Justice Bill for Supreme Court (Nov. 3, 1999) (calling for full public funding of Wisconsin Supreme Court elections). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS and nature of the newspapers' coverage. We include a discussion of the extent to which in their coverage the newspapers communicated information on whether the candidates possessed particular characteristics that numerous commentators have suggested are desirable in a judge. For each type of newspaper entry (e.g., news article, editorial), we also make a number of observations about the nature and extent of the coverage.
A. The Candidatesand the Campaign in Brief Shirley S. Abrahamson went into the 1999 election as the incumbent chief justice of the Wisconsin Supreme Court. Governor Patrick Lucey had appointed Abrahamson to the court in 1976, thereby giving Wisconsin its first female justice. Abrahamson retained her seat in contested elections in 1979 and again in 1989.60 Abrahamson's eventual defeat of Rose was thus her third election to a ten-year term on the court, meaning that her current term will end in 2009, when she will be seventy-five years of age. Abrahamson, born and reared in New York City, received her law degree from the Indiana University Law School and a subsequent doctorate of law in American legal history from the University of Wisconsin Law School. Abrahamson subsequently both taught at the University of Wisconsin Law School and practiced in a Madison law firm. She is routinely described by the press as "the most liberal of the seven justices. '61 In 1996, upon the retirement of then-Chief Justice Roland B. Day, Abrahamson became the chief justice of the Wisconsin Supreme Court because of her standing as the member of the court with the longest tenure. 2 Unless Abrahamson determines to relinquish the position,-she will remain chief justice as long as she is on the court. Sharren B. Rose, Abrahamson's opponent, was forty-nine years of age at the time of her bid for election. Rose has worked at the Green
60. In 1979, Abrahamson polled 65.13% of the vote in defeating Howard H. Boyle, Jr., by a vote of 547,003 to 292,919. See STATE OF WISCONSIN, 1979-1980 BLUE BOOK 884 (1979). In 1989, she secured 54.97% of the vote in triumphing over Ralph A. Fine by a margin of 485,169 to 397,378. See STATE OF WISCONSIN, 1989-1990 BLUE BOOK 887 (1989). 61. Jim Stingl, Abrahamson Tries to Roll with the Punches, MILWAUKEE J. SENTINEL, Mar. 28, 1999, at 1B; accord Abrahamson Faces Race for Court Seat, WATERTOWN DAILY TIMES, Jan. 6, 1999, § 1, at 5 [hereinafter Abrahamson Faces Race]; Richard P. Jones, Chief Justice Faces Opponent in April, MILWAUKEE J. SENTINEL, Jan. 6,1999, at lB. As a general matter, seeking to be brief, we will not include citations in this Part A for matters that are taken up in detail in Part B. 62. See Wis. CONST. art. VII, § 4. MARQUETTE LAW REVIEW [85:593
Bay law firm of Nelson & Schmeling since her graduation from the University of Wisconsin Law School in 1979. Her practice has primarily focused on divorce cases. Rose twice lost races for election to the circuit court in Brown County." Governor Tommy G. Thompson also passed her over for appointments to the bench, twice for the circuit court and again in 1998 for a supreme court opening, which Thompson gave to David T. Prosser, Jr.64 Rose was no stranger to Abrahamson. Rose had served on the Board of Attorneys Professional Responsibility (BAPR) since 1994 and chaired the body since 1998. BAPR, which was a creature of the Wisconsin Supreme Court, served as the court's agent to manage the 6 lawyer disciplinary process in Wisconsin. ' During Rose's tenure on BAPR (but before she became chairperson), a struggle arose between some members of BAPR and the staff of BAPR's Administrator, who was in charge of investigating disciplinary complaints.66 It is fair to say that, to a considerable extent, the struggle was over who would have primacy in the lawyer disciplinary process: BAPR itself, which consisted mostly of lawyers, or the Administrator and his staff. When the supreme court stepped in and appointed a liaison to oversee BAPR and report to the court, the tension spilled over to include not only BAPR and the Administrator and his staff, but also the court. The Abrahamson-Rose race focused on four issues. The first issue was Rose's criticism of Abrahamson's jurisprudence-or at least of some views that Abrahamson had expressed in particular cases. Specifically, Rose decided early in the campaign to focus almost exclusively on three cases in which Abrahamson had written a dissent from the court's majority. In two of the cases, essentially criminal in nature, Abrahamson disagreed with the majority's rejection of defendants' Fourth Amendment challenges to evidence that the state
63. Specifically, in 1991, Rose lost the race for Brown County Circuit Court, Branch 8, to William M. Atkinson by a vote of 25,769 to 18,211, and lost her bid the next year for that court's Branch 3 to Sue E. Bischel, by a vote of 32,502 to 21,677. See STATE OF WISCONSIN, 1991-1992 BLUE BOOK 879 (1991); STATE OF WISCONSIN, 1993-1994 BLUE BOOK 874 (1993). 64. See Jim Stingl, Rose Figures She'd Be Steady Hand for Court, MILWAUKEE J. SENTINEL, Mar. 28, 1999, at lB. 65. In 2000, the Wisconsin Supreme Court eliminated BAPR and replaced it with a new administrative agency reporting to the court, viz., the Office of Lawyer Regulation. See James L. Martin, Wisconsin's New Lawyer Regulation System, WiS. LAW., Aug. 2000, at 19 (describing the new agency and explaining differences from former system headed by BAPR). 66. See Wis. Sup. Cr. R. 22.07(1) (1999) (repealed). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS sought to introduce at trial. 7 The third dissent involved a civil matter with strong criminal overtones: Abrahamson disagreed when the court upheld as constitutional the state's sexual predator law." This last, lone dissent in particular was a matter that Rose brought up frequently. A second issue, which came in large part to dominate the campaign, received attention initially not because of the candidates' actions but because of the undertakings of a majority of Abrahamson's colleagues on the Wisconsin Supreme Court. In the midst of the campaign, four members of the court openly criticized Abrahamson for her role in administering the Wisconsin courts. These justices alleged that Abrahamson "micromanag[ed]" the supreme court and the court system generally, hindering the other justices' constitutional right to participate in judicial administration.69 This faultfinding during the race served as a functional endorsement of Rose, and, in case there remained any doubt, three of these four justices explicitly endorsed the challenger for Abrahamson's post. A third issue was Abrahamson's reproach of Rose with respect to the challenger's work on the Board of Attorneys Professional Responsibility.70 Rose had served on BAPR when the chief justice and other members of the supreme court conducted something of an investigation of the board. In addition, Abrahamson criticized Rose for an alleged ethical violation committed during the course of litigation. A Manitowoc County Circuit Judge once reported Rose to BAPR, charging her with presenting false evidence in a divorce case. The
67. See State v. Morgan, 197 Wis. 2d 200,217,539 N.W.2d 887,895 (1995) (Abrahamson, J., dissenting alone); In re Isiah B., 176 Wis. 2d 639, 651, 500 N.W.2d 637, 642 (1993) (Abrahamson, J., concurring in part and dissenting in part). The latter case was a juvenile- delinquency proceeding and thus technically not criminal, although the same Fourth Amendment principles apply as do in criminal cases. 68. See State v. Post, 197 Wis. 2d 279,336, 541 N.W.2d 115, 135 (1995) (Abrahamson, J., dissenting alone). This law essentially permits commitment of an individual who has been convicted of a sexually violent offense, is within ninety days of release from a sentence, has a mental disorder, and is dangerous because that mental disorder creates a substantial probability that he or she will engage in acts of sexual violence; such commitment continues until it is determined that the individual is no longer a sexually violent person. See Wis. STAT. §§ 980.02(2), .06 (1999-2000); see also Post,197 Wis. 2d at 297-301,541 N.W.2d at 120- 21 (describing statutory scheme). The United States Supreme Court later upheld a similar Kansas law against challenges based on substantive due process, double jeopardy, and the ex post facto clause of the United States Constitution. See Kansas v. Hendricks, 521 U.S. 346 (1997); see also Kansas v. Crane, 122 S. Ct. 867 (2002). 69. Richard P. Jones, Accusations Widen Rift on High Court, MILWAUKEE J. SENTINEL, Feb. 14,1999, at 1A. 70. See supra text accompanying notes 65-66. MARQUETTE LAW REVIEW [85:593 charge never led to a finding of fault, nor did BAPR ever discipline Rose for any such transgression. The fourth issue arose from the media's analysis of the race. Specifically, the media repeatedly brought up questions related not to the candidates' records (along the lines of the three issues just set forth), but to their conduct in the campaign. The press particularly raised the issue of whether the Abrahamson-Rose race was characterized by negative campaigning, especially in the form of television advertising. In addition, as a partially related matter, the amount of money raised and spent by the candidates received substantial attention. The race cost more than any other in the history of the Wisconsin judiciary, topping the one million dollar mark. These questions of campaign conduct occupied substantial press attention.
B. Newspaper Coverage of the Campaign Newspapers in Wisconsin covered the supreme court contest in substantially different ways. Some had their own reporters cover the race and printed articles on a regular basis. Others largely ran wire service reports and published their own news articles more infrequently. Some editorialized frequently about the race; others rarely directed their editorial pens to the matter. There further were differences among newspapers in terms of the amount of attention devoted to the campaign in opinion pieces and letters to the editor. The basic purpose of this section is to summarize this varying coverage-both its emphases and its gaps-in a narrative fashion." This summary should have the incidental effect of filling in a number of details in the broad outline of the campaign sketched out above.' Sharren Rose declared her intention to challenge the incumbent chief justice, Shirley Abrahamson, on January 5, 1999, and most of the newspapers covered this announcement, though to varying degrees. On the day Rose announced her bid for the court, she began to criticize Abrahamson's dissent in the case in which the other six members of the
71. Our tracking covered the following daily newspapers: The Capital Times, Daily Jefferson County Union, The Reporter (serving Fond du Lac), La Crosse Tribune, Milwaukee Journal Sentinel, Daily Register (serving Portage), Watertown Daily Times, The Freeman Newspaper (serving Waukesha), Wausau Daily Herald,and Wisconsin State Journal. The first and the last newspapers in this list are published in Madison. Throughout this Article, we will refer to The Reporter as the "Fond du Lac Reporter," to the Daily Register as the "Portage Daily Register," and to The Freeman Newspaper as the "Waukesha Freeman." 72. See supra Part II.A. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 613 supreme court had voted to uphold the state's sexual predator law.' The Milwaukee Journal Sentinel prominently displayed its article covering Rose's announcement on the front page of its state-and-local section and directly quoted Rose regarding the incumbent's jurisprudence. However, few other papers reported Rose's announcement with sufficient depth to encompass that criticism.74 The newspapers were essentially silent for the next week. On January 13, Abrahamson's campaign, through its treasurer, contested the validity of Rose's nomination papers before the state elections board. The contention was that some of Rose's papers were circulated by a different person from the one listed on the filed papers and that the voter signatures on these papers were therefore invalid. Of the ten newspapers in our study, seven did not cover this event, and two others gave it little attention, running short newswire reports. 5 The Milwaukee Journal Sentinel alone discussed this initial clash in depth; it printed an article on the second page of its state-and-local section, reporting Rose's successful rebuff of the Abrahamson camp's efforts. Milwaukee's daily newspaper quoted Rose as saying: "'Just last week, Justice Abrahamson told major newspapers around the state that she welcomed me to the race and looked forward to an open debate of the issues .... At the was working to have my name taken same time, her 76campaign treasurer off the ballot.' Abrahamson and Rose met in their first face-to-face forum as candidates on January 19. The Milwaukee Bar Association sponsored the forum, and the Milwaukee Journal Sentinel reported on it in a fifteen-paragraph piece on the second page of its state-and-local section. Although the Journal Sentinel reported that "Rose appeared to be setting the tone early for a spirited and contentious race" and briefly described two Wisconsin Supreme Court cases on which the challenger
73. See supra note 68 (citing case and describing law). 74. Compare Jones, supra note 61, at 1B, and Cary Segall, Green Bay Lawyer in Court Race, WIS. ST. J., Jan. 6, 1999, at 1C,with, ag., Abrahamson Faces Race, supra note 61, § 1, at 5 (small newswire article), and Lawyer to Challenge State Chief Justice, WAUSAU DAILY HERALD, Jan. 6, 1999, at 5A (small newswire article). 75. See Challenger Stays on Ballot for Court, CAP. TIMES, Jan. 14, 1999, at 7A; Challenger Will Stay on Ballot, WATERTOWN DAILY TIMES, Jan. 14, 1999, § 1, at 10. The Daily Jefferson County Union, Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, Waukesha Freeman,Wausau Daily Herald, and Wisconsin State Journalprovided no coverage. 76. Richard P. Jones, Abrahamson Rebuffed in Effort to Remove Challengerfrom Ballot, MILWAUKEE J. SENTINEL, Jan. 14,1999, at 2B. MARQUETTE LAW REVIEW [85:593
criticized Abrahamson,7 the other publications in our study did not cover this event. One week later, in another "spirited" debate, this time in Racine County, Rose focused on three dissenting opinions authored by 7 Abrahamson, all three of which were, basically, criminal matters. ' Two of the dissents involved essentially criminal cases where the incumbent dissented from the majority by writing an opinion that argued for ruling in favor of the defendant.79 The third Abrahamson dissent was from the court's endorsement of the state's sexual predator law, a civil matter with strong criminal overtones.' This debate received prominent coverage in The Capital Times and the Milwaukee JournalSentinel, 8 but none of the other papers in our study recounted the event. Throughout her campaign, Rose focused especially on Abrahamson's lone dissent in the sexual predator case; this included the challenger's airing of a television commercial for which she received much criticism.2 This mode of debate led to allegations throughout the contest that Rose was unfairly attacking Abrahamson for a small number of opinions out of the thousands that Abrahamson had either authored or joined in." In all events, Rose showed early in the race that her campaign would center on Abrahamson's record in criminal-law
77. Jim Stingl, Supreme Court Challenger Comes Out Slugging, MILWAUKEE J. SENTINEL, Jan. 20, 1999, at 2B. For a description of these two cases and the other case on which Rose focused throughout her campaign, see supra notes 67-68 and accompanying text, as well as infra notes 295-97 and accompanying text. 78. Jennie Tunkieicz, Challenger Attacks Abrahamson on Crime, MILWAUKEE J. SENTINEL, Jan. 26, 1999, at lB. 79. See id. One of the cases involved the ability of police to conduct pat-down searches, and the other involved a ruling on the validity of school-locker searches. See supra note 67 (citing cases); see also infra notes 295-97 and accompanying text (further discussing one of them). 80. See supra note 68. 81. See Justice: Rival Is Distorting My Record, CAP. TIMES, Jan. 26, 1999, at 2A; Tunkieicz, supra note 78, at lB. 82. See, e.g., Kenneth P. Roesslein, Is the Election Over Yet?, MILWAUKEE J. SENTINEL, Apr. 11, 1999, at 3J; Richard P. Jones, Abrahamson's Sympathies Are with Criminals, Rose Charges, MILWAUKEE J.SENTINEL, Feb. 24,1999, at 6B. 83. See Meg Jones, Ad Distorts Abrahamson's Record, McCann Says, MILWAUKEE J. SENTINEL, Mar. 12, 1999, at 2B [hereinafter Jones, Ad Distorts] (quoting criticism by Milwaukee County District Attorney E. Michael McCann that Rose was "'pulling out one of literally thousands of opinions ...and distorting it"'); Richard P. Jones, Sharp Exchanges Mark Court Debate, MILWAUKEEJ. SENTINEL, Mar. 13, 1999, at 1B [hereinafter Jones, Sharp Exchanges] (Abrahamson accusing Rose of "exploiting [her] opinions in a 'misleading and demagogic way'"); Tunkieicz, supra note 78, at lB. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
cases, and most notably on three specific cases." Around this time in late January, the public saw for the first time the internal tension within the Wisconsin Supreme Court that was to dominate the coverage of the Abrahamson-Rose campaign. The Milwaukee Journal Sentinel ran an eighteen-paragraph story, beginning on the front page of its state-and-local section, which reported that Abrahamson's fellow justices had prohibited her and her staff from conducting aerobic workouts in the supreme court8 The Milwaukee newspaper stated that "[a]lthough it occurred only once-after hours, roughly a year [prior to January of 1999]-at least three of the seven justices to this day are astounded that Abrahamson and her staff turned the state's highest tribunal into a steamy gym."86 Abrahamson mildly defended her actions and said that she regretted only that she could not maintain the same pace as the younger members of her staff during the workoutY. Other newspapers also carried news of this internal tempest, but some ignored it initially.' As matters would later develop in the campaign, only one newspaper (the Portage Daily Register) never referred to the aerobics dispute, and none of the newspapers could avoid altogether the court's internal tension. Nonetheless, for a brief time media attention remained on details of the campaign. On the same day in late January that news broke of the aerobics dispute, The Capital Times reported that Abrahamson had announced the members of her re-election committee." Shortly
84. See Jim Stingl, Supreme Court Controversy Dominates Candidates' Debate, MILWAUKEE J. SENTINEL, Feb. 20, 1999, at BI (reporting Rose's revisiting two of the cases and her mentioning an additional criminal case in which Abrahamson dissented from a decision against a criminal defendant); see also Richard P. Jones, Law Enforcers Stand Behind Abrahamson DespiteAttacks, MILWAUKEE J. SENTINEL, Mar. 8,1999, at 1B (quoting Rose as stating "'I'm saying that her decisions in those cases-and I've just taken three from a basketful that I think are illustrative-in all three of those decisions, when it came time to apply the law to the facts, she did not approach that application with any sort of common sense judgment or demonstration that she understood the situation'"). 85. See Richard P. Jones, No More Workouts Allowed in Courtroom, MILWAUKEE J. SENTINEL, Jan. 27,1999, at lB. 86. Id. 87. See id. 88. See Aerobics Limits High Courtroom's Usage, DAILY JEFFERSON COUNTY UNION, Jan. 27, 1999, at 14; No Aerobics in Supreme Court Chamber, WATERTOWN DAILY TIMES, Jan. 27, 1999, § 1, at 7; see also Editorial, All Worked Up on the Court, CAP. TIMES, Jan. 29, 1999, at 12A (editorial printed two days after other papers covered this event). The six other newspapers in our study did not provide an immediate report of this dispute. 89. See Matt Pommer, Chief Justice Names Her Re-Election Team, CAP. TIMES, Jan. 27, 1999, at 4A. MARQUETTE LAW REVIEW [85:593 thereafter, several other newspapers also reported this event.' A few days later, the Milwaukee Journal Sentinel reported Rose's criticism of Abrahamson for the chief justice's refusal to debate at the state bar association's mid-winter conference.91 None of the other daily publications reported on this dispute. In early February, and for the first time in the contest, actions of other sitting justices related directly to the campaign received significant print media attention. The Wisconsin State Journal reported that "[t]hree Wisconsin Supreme Court Justices, led by Justice [William] Bablitch, [were] working to oust Chief Justice Shirley Abrahamson from the court."9' The article in this Madison daily stated that Bablitch, Justice N. Patrick Crooks, and Justice Jon P. Wilcox had "call[ed] lawyers across the state to recruit support for Abrahamson's challenger, Sharren Rose." 93 The article attributed this information to "several court insiders and lawyers familiar with the race."94 Bablitch allegedly wanted Abrahamson to lose so that he could become chief justice upon Justice Donald W. Steinmetz's expected retirement after the 1999-2000 court term.95 Certain newspapers that had not previously paid much attention to the supreme court race demonstrated interest in Abrahamson's colleagues' attitude toward her re-election effort. The Watertown Daily Times and Fond du Lac Reporter printed much of the State Journal's article verbatim, 96 and the Daily Jefferson County Union also reported the news by publishing a smaller article. 9' Several newspapers followed
90. See Governor's Wife Campaigning for State Chief Justice, WATERTOWN DAILY TIMES, Jan. 28, 1999, § 1, at 6; Richard P. Jones, Former Governors, First Lady Support Abrahamson, MILWAUKEE J. SENTINEL, Jan. 28, 1999, at 2B; Milwaukee Bar Awards Abrahamson High Marks, WIS. ST. J., Jan. 29, 1999, at 2C. We did not discover immediate coverage of this news in the Daily Jefferson County Union, Fond du Lac Reporter, La Crosse Tribune, PortageDaily Register, Waukesha Freeman,or Wausau Daily Herald. 91. Rose contended that it was customary for supreme court candidates to debate at this conference: "'This is such a long-standing tradition, and, as far as I know, it's unprecedented for this debate not to occur before the members of the legal profession."' Richard P. Jones, Justice Declines Debate Invitation, MILWAUKEE J. SENTINEL, Jan. 29,1999, at 2B. 92. Cary Segall, Bablitch Leading Trio Working to Oust Abrahamson,Wis. ST. J., Feb. 4, 1999, at 1A. 93. Id. 94. Id. 95. See id. 96. See Report: 3 Justices Working to Oust Abrahamson, FOND DU LAc REP., Feb. 4, 1999, at B6; 3 Justices Working to Oust Chief Justice, WATERTOWN DAILY TIMES, Feb. 4, 1999, § 1, at 7. 97. See Justices Trying to Oust Abrahamson, DAILY JEFFERSON COUNTY UNION, Feb. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS a day later with an article outlining the news of the day prior and quoting Justice Ann Walsh Bradley as urging her colleagues to "'get on with the work of the court."'98 The Capital Times, the Portage Daily Register, and the Waukesha Freeman did not initially cover the story of the efforts of Abrahamson's colleagues. The Wisconsin State Journalarticle went on to report the issuance of a press release by Bablitch in which he denied a desire to become the court's senior justice." On the same day, the Milwaukee Journal Sentinel printed an article entitled Bablitch Denies Wish for Abrahamson Loss, which labelled Bablitch's press release "an unusual move.""' The press release noted that Justice Steinmetz (not Bablitch) was in line to become chief justice upon an Abrahamson loss. 1 Bablitch indicated that he felt "'compelled"' to make a statement because "'[t]he rumor mill [had] it [that he] want[ed] to be chief justice.''' a These stories marked the first time that state print media reported that other justices had institutional concerns with Abrahamson's administration of the court, 3 foreshadowing events to develop much further over the course of the campaign. Two days later, on February 6, The Capital Times printed a piece at the top of its front page further exposing the growing tension on the court. 4 The authors characterized Bablitch, Crooks, Steinmetz, and Wilcox as having "tried a coup" in January of 1999 that "would have created a surrogate chief justice in charge of the entire state court system."'0' The article outlined the new administrative rules that took effect in January when the "Gang of Four," in the newspaper's term, failed at an attempt to institute a plan that sought to "strip [the chief
4,1999, at 11. 98. Bradley Wants Colleagues to End Election Intrigue, Get Back to Work, WAUSAU DAILY HERALD, Feb. 5, 1999, at 3A [hereinafter Bradley Wants End to Intrigue]; see also Justice Wants Colleagues to End Election Intrigue, Get Back to Work, LA CROSSE TRIB., Feb. 5,1999, at D-6 [hereinafter Get Back to Work]. 99. See Segall, supra note 92, at 1A. 100. Richard P. Jones, Bablitch Denies Wish for Abrahamson Loss, MILWAUKEE J. SENTINEL, Feb. 4,1999, at 2B. 101. See id. 102. Id. 103. See Segall, supra note 92, at 1A; see also Jones, supra note 100, at 2B (quoting Bablitch on the issue of court administration, but not mentioning Crooks or Wilcox). 104. See David Callender & Matt Pommer, Robes & Daggers in Top Court, CAP. TIMES, Feb. 6-7,1999, at 1A. 105. Id. MARQUETTE LAW REVIEW [85:593 justice] of her constitutional powers over the court."16 The four justices were said to have given up the plan "when Abrahamson threatened to sue the other justices over what she saw as unconstitutional infringement on her powers."" In addition, The Capital Times reported that Bablitch refused to comment on whether he had started actively working in support of Rose's campaign.'O' One day later, in a Milwaukee Journal Sentinel interview, Bablitch confirmed for the first time that he had begun working in support of Rose's campaign.'09 The Journal Sentinel article characterized this as an "unheard of" move for a sitting justice." ° Although Bablitch stopped just short of endorsing Rose, the author of the Milwaukee article found Bablitch's opposition to Abrahamson "all the more surprising" than even the unusual fact of one justice's working against another's re- election would suggest."' The reporter noted that "[b]oth are considered liberal jurists with roots in the Democratic Party" and that "more often than not Bablitch and Abrahamson agree on the law, 112 frequently joining one another in dissenting opinions on cases. Bablitch also indicated in the interview that he and three other justices, N. Patrick Crooks, Donald W. Steinmetz, and Jon P. Wilcox, were concerned with Abrahamson's administrative decisions in her capacity as chief justice."' Bablitch averred that Abrahamson acted as if she were presiding in a "monarchy." ' None of the other newspapers followed the Journal Sentinel's lead with a report concerning Bablitch's statements. More broadly speaking, however, no other aspect of the campaign received any print media attention for some time. Instead, the newspapers to varying degrees reported heightening hostility on the court. On February 14, the Milwaukee Journal Sentinel printed a
106. Id. 107. Id. 108. See id. 109. See Richard P. Jones, Justice Bablitch Admits to Aiding Abrahamson Foe, MILWAUKEE J. SENTINEL, Feb. 7,1999, at lB. 110. Id. (reporting Bablitch's comment that sought to minimize the nature of his involvement on behalf of Rose, but stating that "even if he's only peripherally involved, it is unheard of for a sitting justice to work to defeat a fellow jurist, let alone the chief justice"). 111. Id. 112. Id. 113. See id. 114. Id. Bablitch pointed to a dispute between Crooks, Steinmetz, Wilcox, and himself, on the one hand, and the chief justice, on the other, over her display in a hallway of "a picture of Rhoda Lavinia Goodell, the first woman to practice before the court." Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS lengthy front-page article entitled Accusations Widen Rift on High Court."' The newspaper reported that, "[i]n an extraordinary move," the four justices referred to above (viz., Bablitch, Crooks, Steinmetz, and Wilcox) issued a statement on Saturday, February 13, that explained their concerns with Abrahamson's administration of the supreme court.1 6 In the signed six-page statement, according to the Milwaukee daily, the justices "described Abrahamson as confrontational and dismissive during closed conferences when they tried to change court rules and assert their role in running the court system. 117 The newspaper continued that "[t]hey said she responded at one point 'with a highly unflattering pejorative term."""8 According to the Journal Sentinel, the disgruntled jurists pointed to Abrahamson's "'micromanaging"' of the entire state court system as problematic, cutting into their constitutional right to have a voice in the administration of the state's courts. 19 Outside Milwaukee, coverage of this event varied. The Wausau Daily Herald printed an extensive newswire account of the justices' press release,"' and the Wisconsin State Journal reserved front-page coverage for the news.12 ' The La Crosse Tribune and Fond du Lac Reporter also covered the criticisms of Abrahamson by her colleagues, although the latter newspaper did not do so immediately-and, when it did, it emphasized (as the Milwaukee JournalSentinel would also report) Abrahamson's supporters' claim that Bablitch was motivated in his ire by Abrahamson's directive that solitaire and other games be removed from computers at the court'"' For their parts, The Capital Times, Daily Jefferson County Union, Portage Daily Register, Watertown Daily Times, and Waukesha Freeman did not immediately cover the press release by
115. Jones, supra note 69, at 1A. 116. Id. 117. Id. 118. Id. 119. Id. 120. See Andrew Blasko, Justices List their Grievances, WAUSAU DAILY HERALD, Feb. 14,1999, at 7A. 121. See Cary Segall, Justices Lay Bare Problems with Abrahamson, WiS. ST. J., Feb. 14, 1999, at IA. 122. See Richard P. Jones, Computer Games Cited as Factorin Court Spat, MILWAUKEE J. SENTINEL, Feb. 16,1999, at IA (quoting Justice Bradley as pointing to the computer games as the basis for Bablitch's unhappiness); Justices Air Grievances Against High Court Chief, LA CROSSE TRIB., Feb. 14, 1999, at C-2; No More Games on Court Computers; One Justice Irked at Change, FOND DU LAC REP., Feb. 16,1999, at A-3. MARQUETTE LAW REVIEW [85:593
Abrahamson's colleagues." Coverage of this criticism of Abrahamson by a majority of her colleagues thereafter began to converge with coverage of the Abrahamson-Rose campaign. For example, Rose took advantage of the four justices' criticism only a day later, chiding Abrahamson, as the four sitting court members had, for allegedly unilaterally awarding $1.7 million in court administration grants to various local groups.'2 The Milwaukee JournalSentinel prominently placed an account of this on the first page of its state-and-local section, writing that Rose's criticism "piggybacked on a similar attack" by the four sitting justices a day earlier1 s Rose's criticism received extensive attention in two other newspapers, but no timely coverage in the remaining daily publications."6 Only days later, the Milwaukee JournalSentinel circulated a story in which both Bablitch and Crooks stated that two or three justices were considering resigning from the court because Abrahamson had "made unilateral decisions on administrative matters" and improperly was "micromanaging the court system. ' 'z The Capital Times granted the matter front-page attention.' 2' Other papers briefly mentioned this threat of serious action by the discontented court members,'29 but one-
123. None of the coverage in any paper contained any discussion of or reference to the Wisconsin Constitution's provision that "[t]he chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court." WIS. CONST. art. VII, § 4(3). 124. See Steve Schultze, Challenger Blasts Justice Over Grants, MILWAUKEE J. SENTINEL, Feb. 15, 1999, at lB. Both Rose and the four justices expressed concern over the neutrality of the court once, they said, Abrahamson made decisions to the financial benefit of potential future litigants. See id.; Jim Stingl, Justices Say Resignationsfrom Court Possible, MILWAUKEE J. SENTINEL, Feb. 18, 1999, at 2B. Fellow Supreme Court Justice Ann Walsh Bradley immediately defended Abrahamson by explaining that "'[tihe director of state courts oversees this project, not any single justice.'' Schultze, supra, at 1B; see also Richard P. Jones & Jim Stingl, Court Feud Over GrantsAmazes Recipients, MILWAUKEE J.SENTINEL, Feb. 21, 1999, at 1B (quoting John Voelker, Abrahamson's assistant and head of the panel that reviewed grant proposals, as saying that Abrahamson "'did not have veto power or inclusion power"). 125. Schultze, supra note 124, at lB. 126. See Abrahamson's Opponent Echoes High Court Foes, CAP. TIMES, Feb. 15, 1999, at 2A; Rose, Justices Blast Abrahamson, DAILY JEFFERSON COUNTY UNION, Feb. 15, 1999, at 3. We did not locate prompt accounts of Rose's "piggybacking" in the Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, Watertown Daily Times, Waukesha Freeman,Wausau Daily Herald, or Wisconsin State Journal. 127. Stingl, supra note 124, at 2B. 128. See Casualtiesin High Court Feud?, CAP. TIMES, Feb. 18, 1999, at IA. 129. See Bablitch Says Some Justices Are Angry, WiS. ST. J.,Feb. 19, 1999, at 3C; Gretchen Ehlke, FormerJustice: High Court Fighting Destructive, WAUSAU DAILY HERALD, 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
half of the papers in our study did not issue timely reports of the resignation possibilities.' 30 During February and early March, news publications statewide began to editorialize or print other commentaries on these events. In particular, they chastised Abrahamson's judicial critics, especially Bablitch," or (less frequently) the tone of the race generally."' For example, during the entire campaign none of the ten newspapers in our study ran a single opinion piece suggesting that the criticisms by the majority of the court had substance. On the other hand, many papers published articles or other items in which Justice Ann Walsh Bradley, former Justice Janine Geske, and others in the legal community criticized the actions of Justices Bablitch, Crooks, Steinmetz, and Wilcox as ill-timed and unfair.' In late February, news coverage began again to focus on the campaign activities of the candidates. On February 24, for example, The Capital Times ran a front-page report of a candidates' forum in Madison the day before.4 The Milwaukee Journal Sentinel folded coverage of
Feb. 19, 1999, at 4A (briefly mentioning the threat of resignation); Ex-Justice Says Disputes Should be Settled Privately, WATERTOWN DAILY TIMES, Feb. 20, 1999, § 2, at 3 [hereinafter DisputesShould Be Settled Privately]. 130. We did not observe timely reports of the threats to resign in the Daily Jefferson County Union, Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, or Waukesha Freeman. 131. See, e.g., Editorial, Supreme Court Justices Should Be Above Bickering, FOND DU LAC REP., Feb. 17, 1999, at A5; Wisconsin's Supreme Court Is in a State of Disarray, WATERTOWN DAILY TIMES, Feb. 17, 1999, § 1, at 6; Editorial, End the Disorder in Supreme Court, WAUSAU DAILY HERALD, Feb. 21,1999, at 8A; Editorial, High Court Dispute Has No Substance, MILWAUKEE J. SENTINEL, Feb. 21, 1999, at 4J; Editorial, High Court Stuck at a Low Point, WIS. ST. J., Feb. 21, 1999, at 3B; William Janz, Abrahamson Might Want to Try Some Pants, MILWAUKEE J. SENTINEL, Feb. 21, 1999, at 1B; Bickering Justices Demean High Court, FOND DU LAC REP., Feb. 26, 1999, at A7 (reprinted from the Janesville Gazette); Bickering Justices Demean High Court, WAUKESHA FREEMAN, Mar. 2, 1999, at 9A (same); Editorial, Justices Display Pettiness, LA CROSSE TRIB., Mar. 1,1999, at A-4. 132. See, e.g., Editorial, Bizarre Court Happenings,DAILY JEFFERSON COUNTY UNION, Mar. 10, 1999, at 4. 133. See, e.g., Bradley Wants End to Intrigue, supra note 98, at 3A; Ehlke, supra note 129, at 4A; Get Back to Work, supra note 98, at D-6; Disputes Should Be Settled Privately, supra note 129, § 2, at 3; Peter J. Wasson, Bradley Calls for End to Court's Bickering, WAUSAU DAILY HERALD, Feb. 18, 1999, at 1A; Former Justice Geske Says Court Should Settle Its Issues in Private, FOND DU LAC REP., Feb. 19, 1999, at B4; Geske" Settle Court Disputes in Private, CAP. TIMES, Feb. 19, 1999, at 2A; Editorial, Disorderin the High Court, CAP. TIMES, Feb. 23, 1999, at 8A; What Do You Think?, CAP. TIMES, Feb. 27-28, 1999, at 11A (displaying reader reaction to the "ongoing squabbling among Wisconsin Supreme Court Justices"). 134. See David Callender, Supreme Debate, CAP. TIMES, Feb. 24,1999, at 1A. MARQUETTE LAW REVIEW [85:593 this debate into the sixth page of its state-and-local section,' while the Wisconsin State Journalcovered another forum the next day on the third page of its second section.136 The Daily Jefferson County Union, Portage Daily Register, Watertown Daily Times, Waukesha Freeman, and Wausau37 Daily Herald did not print a story about the February 23 forum. The Madison and Milwaukee newspapers reported that Rose used the February 23 forum to continue to attack Abrahamson on crime.'38 Rose strongly criticized Abrahamson, contending that "Abrahamson acts like a tax law professor searching for loopholes and seizing on technicalities.' 39 Rose went on to say this of her opponent: "'Talk about not seeing the forest for the trees-she can't see the victims for the loopholes.' "4' To rebut the challenger's accusations of a softness on crime, Abrahamson pointed to her endorsements by the Wisconsin Professional Police Association and the Milwaukee Police Association.' As February came to a close, the print media began to discuss the candidates' television advertising, even though no advertisements had yet been run. For example, even before Rose started television advertising, the Milwaukee JournalSentinel reported that Abrahamson's campaign manager had "urged [Rose] to temper the message of television campaign ads [then] in the works.' 142 The Abrahamson team noted that Rose had not agreed to accept spending limits in the campaign and claimed that she had hired advertising executives associated with "'the most negative political campaign in the history of
135. See Jones, supra note 82, at 6B. 136. See Cary Segall, Abrahamson Lacks Judgment, Rose Says, WiS. ST. J., Feb. 25, 1999, at 3B. 137. The La Crosse Tribune and Fond du Lac Reporter also did not cover this forum, but each printed separate articles about other forums in which the two candidates participated. See Cary Segall, Battle for State Supreme Court Chief Justice Gets Personal, LA CROSSE TRIB., Feb. 21, 1999, at C-1 (reporting on forum held with candidates in north-suburban Milwaukee); Beth Sanders, Supreme Court Candidates Square Off in FdL Appearance, FOND DU LAC REP., Mar. 15, 1999, at A5. 138. See Callender, supra note 134, at 1A; Jones, supra note 82, at 6B. 139. Jones, supra note 82, at 6B. 140. Id. 141. See id. Abrahamson also received the endorsement of the Wisconsin Troopers Association, Milwaukee County District Attorney E. Michael McCann, and Dane County District Attorney Diane Nicks. See Jones, supra note 84, at lB. 142. Richard P. Jones, Abrahamson Camp Urges Rival to Show Restraint in Campaign Ads, MILWAUKEE J. SENTINEL, Feb. 27,1999, at 2B. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Wisconsin.' "143 In early March, upon the release of Rose's first television commercial, an Abrahamson spokesman "immediately labeled the spot a 'political negative attack ad.'"'" The commercial recounted Abrahamson's dissent in a police pat-down-search case, in which she 4 voted against the state.1' The Milwaukee Journal Sentinel printed this information in a nine-paragraph article in its second section, 6 and one day later The Capital Times condemned Rose in an editorial which called Rose's first television spot "[c]haracter assassination, deception and throwing mud at a respected incumbent."'47 On March 12, the Milwaukee Journal Sentinel added a piece setting forth Milwaukee County District Attorney E. Michael McCann's unfavorable critique of Rose's advertisement; Rose was noted in the article as pointing out that McCann was involved in Abrahamson's campaign.' None of the remaining dailies provided punctual coverage of the unveiling of Rose's first commercial or the opposing side's reaction to the commercial.149 At about the same time, Rose began to receive substantial media attention for her role on the Board of Attorneys Professional Responsibility.5 The Daily Jefferson County Union printed a front- page newswire account, attributed to the Wisconsin State Journal, that described how BAPR "[had] been investigated by the [supreme] court because of complaints from staff members about its actions."'' The
143. Id. Rose hired the same advertising consultants who had worked on the campaign of Republican Mark Neumann in his unsuccessful bid for the United States Senate in 1998 against incumbent Russell Feingold. See id. 144. Jim Stingl, Rose Debuts Campaign Commercial, MILWAUKEE J. SENTINEL, Mar. 9, 1999, at 2B [hereinafter Stingl, Rose Debuts]. The commercial alleged that "Abrahamson .put criminals first' by voting against a police search" in one of the three cases that Rose denounced throughout her run for the court. Id.; see also supra note 67 and accompanying text. Abrahamson later justified her dissent based on the facts of the specific case, but Rose maintained in reply that Abrahamson "'has a long and continuing record of putting the rights of criminal defendants ahead of, and at the expense of, the rights of people.'" Jim Stingl, Abrahamson Defends Her Dissent in Case, MILWAUKEE J. SENTINEL, Mar. 19, 1999, at 2B [hereinafter Stingl, Abrahamson Defends]. 145. See Stingl, Abrahamson Defends, supra note 144, at 2B; Stingl, Rose Debuts, supra note 144, at 2B. 146. See Stingl, Rose Debuts, supra note 144, at 2B. 147. Editorial, Rose Bares Thorns in Ads, CAP. TIMES, Mar. 10,1999, at 10A. 148. See Jones, Ad Distorts,supra note 83, at 2B. 149. But cf.Judge CandidatesFace Off in New Television Campaigns, LA CROSSE TRIB., Mar. 17,1999, at D-3 [hereinafter Judge CandidatesFace Offl]. 150. See supra notes 65-66 and accompanying text (describing BAPR). 151. Rose Panel ComplaintsInvestigated, DAILY JEFFERSON COUNTY UNION, Mar. 11, 1999, at 1. MARQUETTE LAW REVIEW [85:593 newspaper stated that Rose headed BAPR at the time of the investigation.'52 The Watertown Daily Times ran an identical newswire account on the same day,5 3 while the Wausau Daily Herald made a small mention of this matter in a subsequent article.'4 The Capital Times placed the story at the top of its local-state articles on March 11." It was the Wisconsin State Journal, however, that led other newspapers in suggesting that the high court had investigated and placed BAPR under supervision while Rose headed the board.'*6 The State Journal gave its March 11 story on the matter front-page, top-headline billingf 7 In addition, the newspaper used this opportunity to explain BAPR's duties, the actions taken by BAPR during the previous three years while Rose held a leadership position (including that of chairperson), and the restrictions placed on BAPR by the supreme court. 5' The issue of Rose's role on BAPR, and the supreme court's investigation and subsequent supervision of the disciplinary body, would continue to garner attention later in March, and beyond.'59 On March 12, the combat between the candidates intensified when the two lawyers engaged "[i]n their sharpest exchange yet," as reported by the Milwaukee daily the next day."6 In the only statewide-televised debate of the race, according to the Milwaukee Journal Sentinel, Abrahamson continued to question the challenger about her role on BAPR and about a Manitowoc County judge's removal of Rose as counsel in a case because he alleged that Rose had presented false evidence in court.6 Rose continued to quiz the incumbent about her dissent from the supreme court's upholding of the state's sexual predator statute.'62 This debate received broad though not necessarily deep print media coverage in the state.'63
152. See id. 153. See Lawyer Board Headed by Court Candidate Under Court Oversight, WATERTOWN DAILY TIMES, Mar. 11, 1999, § 1, at 7. 154. See Abrahamson, Rose Face Off in Court Seat Debate, WAUSAU DAILY HERALD, Mar. 13,1999, at 5A [hereinafter Abrahamson, Rose Face Off]. 155. See High Court Monitors Board Headed by Rose, CAP. TIMES, Mar. 11, 1999, at 2A. 156. See Cary Segall, Rose Board Under Scrutiny, WIS. ST. J., Mar. 11, 1999, at 1A. 157. See id. 158. See id. 159. See infra notes 181-90, 201,213-25, 228, 249 and accompanying text. 160. Jones, Sharp Exchanges, supra note 83, at lB. 161. See id. 162. See id. 163. See id.; Abrahamson, Rose Spar in Debate, LA CROSSE TRIB., Mar. 13, 1999, at A-13; Abrahamson and Rose Spar in Debate, PORTAGE DAILY REG., Mar. 13, 1999, at 3A; 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 625
Rose's focus on crime eventually may have led some officials to endorse her over the incumbent in the election. On St. Patrick's Day, several newspapers reported Rose's announcement the previous day that the sheriffs from the counties of Ozaukee, Racine, and Waukesha had switched their endorsements to her because, according to Rose, some of Abrahamson's opinions "'flew in the face of good law enforcement."""' Rose presumably made this announcement in part to counter the release by Abrahamson of television commercials in which the incumbent listed her endorsements from law enforcement officials.16 Rose's announcement continued the challenger's focus on crime as a campaign issue, and it received strong coverage from The CapitalTimes, La Crosse Tribune, Milwaukee Journal Sentinel, and Watertown Daily Times, as well as brief attention in the Daily Jefferson County Union.166 However, the Fond du Lac Reporter, PortageDaily Register, Waukesha Freeman, Wausau Daily Herald, and Wisconsin State Journal did not print an article concerning Rose's March 16 press conference. In late March, the print media returned to the internal tension between Abrahamson and four of her colleagues on the supreme court. Specifically, the Milwaukee Journal Sentinel reported in detail that the division from Abrahamson extended even to the spouses of the four justices who had become her critics.'67 The Madison and Wausau dailies reported similarly.6 As these newspapers recounted the matter,
David Callender, Court Rivals Take Off Gloves, CAP. TIMES, Mar. 13-14, 1999, at 1A; Abrahamson, Rose Face Off, supra note 154, at 5A; Cary Segall, Justice Candidates Field Questions Thrown by Citizens, WIS. ST. J., Mar. 13, 1999, at IA. We did not find a story covering this debate in the Daily Jefferson County Union, Fond du Lac Reporter, Watertown Daily Times, or Waukesha Freeman. 164. Meg Jones, 3 Area GOP Sheriffs Switch Sides, Back Rose, MILWAUKEE J. SENTINEL, Mar. 17,1999, at lB. 165. See David Callender, Abrahamson, Rose Joust Over Crime Fighter Support, CAP. TIMES, Mar. 17,1999, at 5A. 166. See id.; Court Candidates Push Law Enforcement Issue, WATERTOWN DAILY TIMES, Mar. 17,1999, § 1, at 7; Jones, supranote 164, at 1B; Judge Candidates Face Off, supra note 149, at D-3; Justice Candidates Push Enforcement, DAILY JEFFERSON COUNTY UNION, Mar. 17, 1999, at 9. These articles also touched upon Abrahamson's support from other sheriffs. In addition, on the day following the three sheriffs' announcement of their decision to back Rose, Abrahamson's campaign announced that "[m]ore than two-thirds of Wisconsin's sheriffs" had endorsed her. Sheriffs Back Incumbent, MILWAUKEE J. SENTINEL, Mar. 18,1999, at 2B. 167. See Richard P. Jones, Invitation Spat Added to High Court Feud, MILWAUKEE J. SENTINEL, Mar. 22,1999, at 2B. 168. See Invite Spat Adds Fire to Court Feud, CAP. TIMES, Mar. 22, 1999, at 3A; Report: Court Feuding Over Invitation, WIs. ST. J., Mar. 23, 1999, at 213; Snub Apparently Fueled Justice Feud, WAUSAU DAILY HERALD, Mar. 22, 1999, at 4A. On the other hand, the Daily MARQUETTE LAW REVIEW [85:593
Bablitch's wife, Ann Milne, had been involved in the initial planning for a family law conference sponsored by the supreme court.169 However, the court did not invite Milne to the conference because, according to Milne, she was Bablitch's wife and Abrahamson did not like him."' One newspaper reporter went so far as to state that "[t]he Wonderland world of Wisconsin Supreme Court politics keeps getting curiouser and curiouser. ' The divide on the court would be further evidenced by reports shortly before the election concerning contributions to Rose's campaign fund by Bablitch's1 2 wife Milne and the wives of Crooks, Steinmetz, and Wilcox. A front-page story in The Capital Times on March 23 typified the intensity of this court-post race as the campaign headed into the home stretch.173 The newspaper quoted Rose's campaign manager, R.J. Johnson, as saying during an interview that "'children would be dead today"' if Abrahamson's view had won out in the 1995 sexual predator case.'74 Johnson went on to say that "'there would be 197 rapists and molesters on the street today"' if the incumbent "'[had] had her way on the sexual predator ruling.', 1 75 On the same day, most of the newspapers printed stories that discussed the events involved in Rose's alleged earlier misdeed in Manitowoc County. For example, the Watertown Daily Times disseminated a newswire account that quoted the judge who originally sought to have the Green Bay attorney reprimanded.176 According to this account, former Circuit Judge Allan Deehr, who had presided over the hearing in question, stated that at the time of the purported violation he "'had no doubt there was a misrepresentation of evidence
Jefferson County Union, Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, Watertown Daily Times, and Waukesha Freeman did not immediately report on this. 169. See, e.g., Jones, supra note 167, at 2B. 170. See id. 171. Id. 172. See Abrahamson Collects More Endorsements Than Rose, WAUKESHA FREEMAN, Apr. 2, 1999, at 4A [hereinafter Abrahamson Collects More Endorsements];Richard P. Jones, Rose Put $450,000 of Her Own Into Race, MILWAUKEE J. SENTINEL, Apr. 2, 1999, at 1B; Judges in Rose's County Endorse Abrahamson, WATERTOWN DAILY TIMES, Apr. 2, 1999, § 1, at 7; Sarah Wyatt, CircuitJudges in Rose's County Favor Foe, WIS. ST. J., Apr. 2, 1999, at 3C. 173. See David Callender, Rose Aide Rips Chiefon Sex Law, CAP. TIMES, Mar. 23, 1999, at 1A. 174. Id.; see also supra note 68 and accompanying text. 175. Callender, supranote 173, at 1A. 176. See Judge Who Removed Rose Says He Was Right, WATERTOWN DAILY TIMES, Mar. 23, 1999, § 1, at 8; supra text following note 70 and text accompanying note 161. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS being presented to the court."'"7 The newspaper further reported Deehr as saying that "'[n]othing that has been brought to my attention has ever dissuaded me from that position."'118 Several other newspapers issued similar, if not identical, accounts of Deehr's statements.7 9 The Milwaukee Journal Sentinel contributed an analysis of Abrahamson's then-fresh television pitch that criticized Rose for her actions in front of Judge Deehr."' On March 23, Abrahamson had begun showing television commercials that focused on Rose's record, instead of her own, "signaling a shift in the incumbent's campaign strategy," according to a report by the newspaper on the front page of its state-and-local section.' The chief justice's advertisement attacked Rose's service on BAPR and detailed the Manitowoc County incident."f According to the JournalSentinel, the Abrahamson commercial did not mention that the charges of unethical conduct against Rose arising out of that incident had been dismissed.'3 As reported by the Milwaukee daily, the Abrahamson contingent justified the advertisement with the contention that Rose's negative campaign necessitated an examination of the challenger's credibility."" Rose responded with an advertisement of her own that said "Abrahamson's 'ad about an old case of mine is just plain wrong.' "5 The Waukesha Freeman and Wausau Daily Herald also reported the unveiling of the two commercials,'86 but only these three publications circulated timely discussion of the television spots that premiered on March 23.
177. Judge Who Removed Rose Says He Was Right, supra note 176, § 1, at 8. 178. Id. 179. See Callender, supra note 173, at IA; CandidatesStep Up Attacks in Supreme Court Race, WAUSAU DAILY HERALD, Mar. 24, 1999, at 6A; Former Judge Accused Rose of Unethical Conduct, WAUKESHA FREEMAN, Mar. 23, 1999, at 4A; Judge Defends Rose DisciplineDecision, DAILY JEFFERSON COUNTY UNION, Mar. 23,1999, at 8. We did not find a recounting of former Judge Deehr's statements in the Fond du Lac Reporter, La Crosse Tribune,Portage Daily Register, or Wisconsin State Journal. 180. See Meg Jones & Jim Sting], Abrahamson Airs TV Ad Attacking Rose's Record, MILWAUKEE J. SENTINEL, Mar. 24,1999, at lB. 181. Id.; see also Steve Schultze, TV Ad Battle Could Change Nature of Supreme Court Campaigns,MILWAUKEE J. SENTINEL, Mar. 29,1999, at lB. Schultze cited campaign experts who opined that the nature of the candidates' advertising could turn "formerly high-minded and arcane judicial contests into TV candidate-bashing fests, . . . further solidifying the power of expensive negative television ads as the premier campaign tool." Id. 182. See Jones & Stingl, supra note 180, at lB. 183. See Schultze, supra note 181, at lB. 184. See Jones & Stingi, supra note 180, at lB. 185. CandidatesStep Up Attacks in Supreme Court Race, supra note 179, at 6A. 186. See id.; Supreme Court Race Heats Up for Final Stretch, WAUKESHA FREEMAN, Mar. 24,1999, at 4A. MARQUETTE LAW REVIEW [85:593
During this late-March time period, a number of newspapers focused attention on BAPR, which Rose then chaired. The Wisconsin State Journalreported that members of BAPR were hiring private attorneys in response to the newspaper's request for records of a 1997 investigation of the board (specifically, its request for a report that had been prepared about BAPR)."' A day later, the same publication, along with The Capital Times and the Watertown Daily Times, reported that BAPR had issued a letter to the supreme court which "warned high court justices they could face criminal charges if they release[d] records requested by the Wisconsin State Journal."' The State Journalprinted an editorial arguing that the "report [on BAPR] should be released immediately so that citizens can better assess how that board is handling the public's business.""' 9 This would not be the end of the dispute over the release of the report on BAPR.'O In this latter part of March, endorsements garnered by Rose commanded some slight print attention. On March 24, seven wives of former or current supreme court justices endorsed Rose, as related by The Capital Times in a lengthy newswire account."' Most other newspapers did not report these endorsements,' 92 although the Wisconsin State Journal noted these endorsements as part of a lengthy profile of the candidates a few days later.'93 Three of Abrahamson's four judicial critics now weighed in directly on the campaign. Bablitch, Crooks, and Steinmetz endorsed Rose in a television commercial that the challenger debuted on March 25.'4 In
187. See Cary Segall, Board Hires Lawyers in Records Request, WIS. ST. J., Mar. 23, 1999, at lB. 188. Cary Segall, Justices Cautioned Over Report's Release, WIs. ST. J., Mar. 24, 1999, at 1A; accord 7 Wives of Justices Back Rose as Election Ads Heat Up, CAP. TIMES, Mar. 24, 1999, at 4A; Justices Are Cautioned Over Release of Investigation Report, WATERTOWN DAILY TIMES, Mar. 24,1999, § 1, at 7. 189. Editorial, People Have Right to BAPR Report, WIs. ST. J., Mar. 26, 1999, at 11A. 190. See infra notes 201,213-25,228,249 and accompanying text. 191. See 7 Wives of Justices Back Rose as Election Ads Heat Up, supra note 188, at 4A (noting the endorsements came from "Marjorie Steinmetz, Ann Milne (wife of Justice William Bablitch), Jane Ann Wilcox, Kristin Crooks, Jean Callow, Shirley Ceci and Annette Hansen"). The Capital Times itself endorsed Abrahamson the next day. See Editorial, Keep JusticeAbrahamson, CAP. TIMES, Mar. 25, 1999, at 12A. 192. But cf. supra note 172 (citing articles reporting financial contributions by the wives of Crooks, Bablitch, Steinmetz, and Wilcox to the Rose campaign). 193. See Cary Segall, State Chief Justice and Divorce Lawyer Square Off, WIS. ST. J., Mar. 28, 1999, at 1A. 194. See, e.g., Opponent's Endorsements No Surprise, Chief Justice Says, WATERTOWN DAILY TIMES, Mar. 26, 1999, § 1, at 7 [hereinafter No Surprise]. Wilcox did not explicitly 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS addition, these justices issued a written statement endorsing Rose."5 Several newspapers gave the endorsements some coverage at the time,"6 and the others reported or referred to the endorsements when they ran various stories on the campaign during late March or early April.1 As election time neared, the media began to focus also on the amount of money being spent in this judicial campaign. In particular, on March 30, it was widely reported that the race for the court had surpassed one million dollars in candidate spending, thereby setting a record for money deployed in a Wisconsin Supreme Court race. For example, the Milwaukee JournalSentinel featured this news as the lead article in its state-and-local section. 8 Most of the other newspapers printed small 99 or sizeable articles on the topic. Only three newspapers in our study (the Fond du Lac Reporter,La Crosse Tribune, and Wisconsin State Journal) did not report on this campaign-spending record. On this same day of March 30, The Capital Times detailed a planned teleconference that BAPR was to hold that day "to decide what it could do to keep secret a report critical of its operations. "2' None of the other newspapers printed this type of an article on that day. The campaign now entered its final week. On March 31, 1999, state endorse Rose. 195. See David Callender, Three State Justices EndorseRose, CAP. TIMES, Mar. 26, 1999, at 3A. 196. See id. (twenty-one-paragraph article with top-of-page placement); No Surprise, supra note 194, § 1, at 7. 197. See Abrahamson Collects More Endorsements, supra note 172, at 4A; Abrahamson, Rose Campaign on Home Turf, PORTAGE DAILY REG., Apr. 6, 1999, at 10; Abrahamson: Rose Using Smear Tactics, DAILY JEFFERSON COUNTY UNION, Apr. 1, 1999, at 13; Abrahamson, Rose Vie for State Supreme Court Seat, FOND DU LAC REP., Apr. 5, 1999, at A3; Anthony Jewell, Abrahamson, Rose End Campaign on Home Turf, WAUSAU DAILY HERALD, Apr. 6, 1999, at 4A; Cary Segall, Divorce Lawyer, Supreme Court State Justice Square Off, LA CROSSE TRIB., Mar. 28, 1999, at C-1; Segall, supra note 193, at 1A; Stingi, supra note 64, at lB. 198. See Richard P. Jones, Court Campaign to Surpass $1 Million, MILWAUKEE J. SENTINEL, Mar. 30, 1999, at lB. 199. See Abrahamson, Rose Set Spending Record, PORTAGE DAILY REG., Mar. 31, 1999, at 7B; Court Candidates on Record Spending Pace, WAUKESHA FREEMAN, Mar. 30, 1999, at 4A. 200. See David Callender, Abrahamson-Rose Race Is Costliest Ever for State Court, CAP. TIMES, Mar. 30, 1999, at 2A; Court Race Could Set New Spending Record, WAUSAU DAILY HERALD, Mar. 30, 1999, at 4A; Court Race May Set Spending Record, WATERTOWN DAILY TIMES, Mar. 30, 1999, § 1, at 9; Supreme Court Race Costliest Ever, DAILY JEFFERSON COUNTY UNION, Mar. 30, 1999, at 1; Anthony Jewell, Court Race Sets Spending Record, WAUSAU DAILY HERALD, Mar. 31,1999, at IA. 201. David Callender, Lawyer Board Plots Strategy, CAP. TIMES, Mar. 30,1999, at 2A. MARQUETTE LAW REVIEW [85:593 newspapers gave substantial attention to a Rose television commercial that criticized Abrahamson's dissent in the sexual predator case.m The commercial featured the grieving grandmother of Cora Jones, a young girl sexually assaulted and slain by a paroled rapist, David Spanbauer.' As reported by the Milwaukee Journal Sentinel on the front page of its local coverage, Rose's advertisement pictured the grandmother talking about her pain and anger and "[t]hen. . . , referring to Abrahamson and her dissent in a 1995 sexual predator ruling, say[ing]: 'I'm sure if she could only understand the pain that you go through and to lose a child that way, I'm sure she'd think differently.'" ' ' The Journal Sentinel's article also reported criticism of Rose's commercial. For example, Abrahamson's campaign manager was quoted as saying that the commercial "unfairly attempted to link Abrahamson to [the murderer]."' 5 The CapitalTimes also focused on condemnation when it placed on its front page a hefty article concerning the commercial.' A number of these newspapers analyzed the television commercial. The Milwaukee daily explained that, had Abrahamson's view prevailed in the sexual predator case, it would not have affected the man who killed the victim discussed in Rose's television pitch.' On this same last day of March, a newswire account in the Wausau Daily Herald made the same point.20 The Daily Jefferson County Union printed a smaller yet medium-sized newswire account, mirroring the piece in the Wausau paper.m The authors of the Milwaukee Journal Sentinel article additionally explored whether the commercial was a "negative attack" advertisement.2 0 Rose contended that the commercial fairly criticized Abrahamson's record, while the incumbent's campaign manager called it "'disgusting."' 211 In the Wausau Daily Herald, the latter was quoted as
202. See, e.g., Steve Schultze & Richard P. Jones, Slain Girl's Relative Appears in Rose Ad, MILWAUKEE J. SENTINEL, Mar. 31, 1999, at 1B; see also supra note 68 and accompanying text. 203. See Schultze & Jones, supra note 202, at lB. 204. Id. 205. Id. 206. See David Callender, Rose TV Ad Is Ripped as "Shameful," CAP. TIMES, Mar. 31, 1999, at 1A. 207. See Schultze & Jones, supra note 202, at lB. 208. See Jewell, supra note 200, at 1A. 209. See Rose, Abrahamson at Odds on Sex Predator Commercial, DAILY JEFFERSON COUNTY UNION, Mar. 31, 1999, at 7. 210. Schultze & Jones, supra note 202, at lB. 211. Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
212 saying that the advertisement was "'cruel and exploitative.' " On the other hand, the Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, Watertown Daily Times, Waukesha Freeman, and Wisconsin State Journal did not timely publish any articles specifically examining or reporting criticism of Rose's commercial featuring the despondent grandmother. On March 31, the same day that many publications began criticizing Rose's television spot featuring the grieving grandmother, The Capital Times also covered news of the BAPR report alluded to above.213 The newspaper reported on page six of its front section that Justice Ann Walsh Bradley planned to release a majority of the report that day, over214 the objections of Justices Bablitch, Crooks, Steinmetz, and Wilcox. The four justices stated that they especially objected because Bradley was going to redact thirteen pages of the forty-two page report, thereby "'not provid[ing] a full, fair, and complete account of the matters investigated.' 2 ,5 None of the other newspapers printed news concerning the BAPR report that day, and even in The Capital Times itself, the issue of the BAPR report did not receive the measure of scrutiny that Rose's sexual-predator television ad did.216 On April 1, on its front page, The Capital Times reported that Bradley had released the redacted BAPR report the previous day.2 7 The article stated that "Bradley released a heavily edited version of the report in response to open records requests from The Capital Times and other news media." 218 The extensive article indicated that the report alleged that members of BAPR "handled grievances against their fellow members differently than complaints against other lawyers" and "tried to make the disciplinary panel more 'lawyer friendly.' , 219 According to The Capital Times, the report also contended that BAPR "showed bias toward attorneys involved in the complaints they considered" and "did not recognize conflicts of interest. "m The newspaper article concluded
212. Jewell, supra note 200, at 1A (quoting Abrahamson's campaign manager, John Kraus). 213. See David Callender, Four Justices Object to Airing of Rose Panel Report, CAP. TIMES, Mar. 31,1999, at 6A; supra notes 187-90 and accompanying text. 214. See Callender, supra note 213, at 6A. 215. Id. (quoting a letter sent by the four justices to BAPR's special counsel). 216. Compare Callender, supra note 206, at 1A, with Callender, supra note 213, at 6A. 217. See David Callender, Report on Rose Board Released, CAP. TIMEs, Apr. 1, 1999, at 1A. 218. Id. 219. Id. 220. Id. MARQ UETTE LAW REVIEW [85:593 with coverage of BAPR's response, made through its attorney, to the release of the report.nl BAPR's lawyer argued that "'[o]nly one side of the controversy has been presented, and the public's right to know has been compromised."',m The Milwaukee Journal Sentinel and Wisconsin State Journal also printed sizeable articles in their second sections detailing the release of the report.2m Both articles detailed the critical nature of the report. The Wausau Daily Herald chronicled the report in a small newswire story."4 By contrast, the Daily Jefferson County Union, Fond du Lac Reporter, La Crosse Tribune, Portage Daily Register, Watertown Daily Times, and Waukesha Freeman did not address the report's release the day prior, although the Union did print on this day large newswire profiles of each candidate and the notable events and issues of the campaign.' Within this last week, some newspapers continued to focus on the cost of the election. For example, on April 1, the Milwaukee Journal Sentinel ran an editorial that relied heavily on the cost of the supreme court race in calling for "a comprehensive campaign finance reform program2'2' The next day, the Journal Sentinel reported that Rose had put $450,000 of her own money into the race.m Despite that article's different subject matter, the newspaper also used the occasion to direct readers to its website to read the text of the BAPR report issued several days earlier m The newspapers also covered endorsements of the candidates. Several newspapers reported that all the circuit judges in Brown County, Rose's home county, had endorsed Abrahamson.29 The same articles indicated that Justices Bradley and Prosser also supported Abrahamson. The Wisconsin State Journal reported these
221. See id. 222. Id. 223. See Richard P. Jones & Steve Schultze, Report Slams Board Led By Rose, MILWAUKEE J. SENTINEL, Apr. 1, 1999, at 1B; Cary Segall, Disciplinary Board Says It Isn't Soft on Lawyers, Wis. ST. J., Apr. 1, 1999, at lB. 224. See Board Went Too Easy on Lawyers, Report Says, WAUSAU DAILY HERALD, Apr. 1, 1999, at 5A. 225. See Abrahamson: Rose Using Smear Tactics, supra note 197, at 13; Rose Maintains She's Just Airing Issues, DAILY JEFFERSON COUNTY UNION, Apr. 1, 1999, at 13. 226. Editorial, Boundaries Needed on Campaign Spending, MILWAUKEE J. SENTINEL, Apr. 1, 1999, at 12A. 227. See Jones, supra note 172, at lB. 228. See id. 229. See, e.g., Abrahamson Collects More Endorsements, supra note 172, at 4A; see also infraiiotes 230-32. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS endorsements in a medium-sized newswire article in its local section, " an article that the Watertown Daily Times printed in virtually identical form.in The Capital Times also recounted the endorsements made a day earlier by the Brown County bench members and Bradley and Prosser.*22 On April 3, the Milwaukee Journal Sentinel reported that five of the governor's cabinet members had endorsed the challenger.23 3 The same article also detailed last-minute campaign contributions received by the incumbent 3 4 The Capital Times reported the endorsements by the cabinet members in a small article attached to another piece that 5 summarized and analyzed the tone of the campaign generally. ' The Wausau Daily Herald revealed the endorsements in a three-paragraph article in its state news. n6 The Wisconsin State Journal and La Crosse Tribune did not report these endorsements, but instead examined Rose's continued condemnation of Abrahamson's dissents in the three cases at which Rose had aimed since her announcement for a high court seat, 7 The Daily Jefferson County Union, Fond du Lac Reporter, Portage Daily Register, Watertown Daily Times, and Waukesha Freeman also did not report these particular public approvals of Rose's campaign. In the two days remaining before the election, no significant events occurred that triggered specific widespread coverage of the Rose or Abrahamson campaigns. However, all the newspapers continued to cover the race. For example, The Capital Times ran an article that detailed last-minute campaigning by Bablitch, Crooks, and Steinmetz on behalf of Rose, as well as a late rally planned by the incumbent.2' On Election Day, April 6, the Portage Daily Register and Wausau Daily Herald reported the same news.n 9
230. See Wyatt, supranote 172, at 3C. 231. See Judges in Rose's County EndorseAbrahamson, supra note 172, § 1, at 7. 232. See David Callender, Prosser, Bradley, Judges Back Abrahamson, CAP. TIMES, Apr. 2,1999, at 2A. 233. See Richard P. Jones, Abrahamson Adds $20,500 in Contributions, MILWAUKEE J. SENTINEL, Apr. 3,1999, at 2B. 234. See id. 235. See 5 State Cabinet Chiefs Back Rose's Candidacy, CAP. TIMES, Apr. 3-4, 1999, at 6A. 236. See Thompson Cabinet Members Back Rose, WAUSAU DAILY HERALD, Apr. 3, 1999, at 6A. 237. See Cary Segall, Court Race Winding Up Way It Began, Wis. ST. J., Apr. 3, 1999, at 1A; Bill White, Rose Challenges Abrahamson on Dissension Record, LA CROSSE TRIB., Apr. 3,1999, at A-i; supra notes 67-68 and accompanying text. 238. See Justices Push Rose in Her Hometown, Green Bay, CAP. TIMES, Apr. 5, 1999, at 7A. 239. See Abrahamson, Rose Campaign on Home Turf, supra note 197, at 10; Jewell, MARQUETTE LAW REVIEW [85:593
Other papers used the break in hard news to report about perceived negativity in the race and its predicted impact on future judicial elections and judicial decision-making, as well as the impact of campaign spending on these matters. The accounts normally couched such reports in articles that summarized the race while looking toward Election Day. The Daily Jefferson County Union, for example, printed an article that condensed the "harsh tone" of the race into a few paragraphs and further indicated that polling places would be open until 8:00 p.m. on 4 April 6.2 0 The Capital Times reviewed the main topics and events of the race and especially focused on the money spent by the candidates.24 The newspaper further speculated about the effects on the court of such a "vitriolic" race.242 On April 5, the Wausau Daily Herald summarized the race on the top of its front page with a lengthy newswire story.243 Characterizing the race as "harsh," "bitter," and "negative," the article covered issues of negative campaigning, campaign spending, and dissension in the court.2" The Watertown Daily Times carried essentially the same newswire summary of the race on its front page. 5 The Milwaukee daily recounted the race and, through interviews in which both lawyers and judges gave their opinions, pondered its likely future effects on the court.2 6 Various publications also issued endorsements and commentaries on the race. The Milwaukee Journal Sentinel printed an editorial on April 4 that condemned the race.247 The editors contended that "[i]t has been the Supreme Court campaign from hell; the political equivalent of death by 1,000 cuts; a black hole of intrigue and stealth, sucking whatever good is left in politics into the mire of negative campaigning-America's favorite way to conduct its elections." 24' Directly beneath this editorial, supra note 197, at 4A. 240. Abrahamson, Rose Head Toward Election, DAILY JEFFERSON COUNTY UNION, Apr. 5, 1999, at 14. 241. See David Callender, Vitriolic Race Rewrites the High Court's Script, CAP. TIMES, Apr. 3-4, 1999, at 2A. 242. Id. 243. See Sarah Wyatt, Bitter Court Race Awaits Vote, WAUSAU DAILY HERALD, Apr. 5, 1999, at 1A. 244. Id. 245. See Sarah Wyatt, Abrahamson, Rose Seek Supreme Court Position, WATERTOWN DAILY TIMES, Apr. 5,1999, § 1, at 1. 246. See Steve Schultze & Richard P. Jones, Impact of Vote on High Court Tough to Call, MILWAUKEE J. SENTINEL, Apr. 4,1999, at lB. 247. See Editorial, A Race to Remember-For No Good Reason, MILWAUKEE J. SENTINEL, Apr. 4, 1999, at 4J. 248. Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS the JournalSentinel published another editorial, this one criticizing the politicization of the BAPR report. The newspaper opined that the report raised important issues about BAPR's regulation of attorneys which required consideration outside of the context of "a hard-fought, nasty campaign."'29 However, the state's largest paper would soon reiterate its previous endorsement of Abrahamson. ' On April 3, The Capital Times published two prominent endorsements of the incumbent, one by a Dane County circuit judge and the other by the president of the Wisconsin Trial Judges Association.21 On April 5, The Capital Times noted its previous endorsement of Abrahamson and printed two additional commentaries that favored Abrahamson and directly criticized Rose.22 The newspaper also reminded readers of its endorsement of Abrahamson on April 6, Election Day.2s The Wisconsin State Journal endorsed Abrahamson on April 2 and reprinted an excerpt of its editorial endorsement two days later.2 4 In addition, the State Journalreserved space in its April 4th edition for The Capital Times' endorsement of the incumbent5 5 The State Journal also reiterated its own endorsement of Abrahamson on Election Day.5 6 The Fond du Lac Reporter, La Crosse Tribune, and Waukesha Freeman all ran editorials endorsing Abrahamson's re-election bid, as had the Wausau Daily Herald.27 The Portage Daily Register disseminated the
249. Editorial, And With This Race, Report Had to Become Political,MILWAUKEE J. SENTINEL, Apr. 4,1999, at 4J. 250. See Editorial, Abrahamson Deserves Another Term, MILWAUKEE J. SENTINEL, Mar. 28, 1999, at 4J; Editorial, Our Picks in Selected Election Races Today, MILWAUKEE J. SENTINEL, Apr. 6,1999, at 10A. 251. See Mark A. Frankel, Abrahamson Has Skills, Leadership, Ethics, CAP. TIMES, Apr. 3-4, 1999, at 12A; Harold V. Froehlich, Letter to the Editor, Abrahamson Deserves Election, CAP. TIMES, Apr. 3-4, 1999, at 13A. 252. See Editorial, The Capital Times Endorsementsin the April 6 Elections, CAP. TIMES, Apr. 5, 1999, at 1OA; Editorial, supra note 191, at 12A; John Jenswold, Reasons to Reject Rose: Dishonest Campaign, Lack of Qualifications,CAP. TIMES, Apr. 5, 1999, at 11A; Dave Zweifel, Don't Let I of 8 Decide Supreme Court Race, CAP. TIMES, Apr. 5, 1999, at 10A. 253. See The Capital Times Endorsements in the April 6 Elections, CAP. TIMES, Apr. 6, 1999, at 8A. 254. See Editorial, Abrahamson's the Better Choice, WIS. ST. J.,Apr. 2, 1999, at 11A; Editorial, Abrahamson'sBest for State's High Court,WIS. ST. J.,Apr. 4,1999, at 3B. 255. See Views of The Capital Times: Keep ChiefJustice Abrahamson, Wis. ST. J., Apr. 4,1999, at 213 (State Journalreprinting of The Capital Times' endorsement of Abrahamson). 256. See Editorial, State JournalEndorsements, WIS. ST. J., Apr. 6,1999, at 7A. 257. See Editorial, AbrahamsonIs Best Choicefor Supreme Court,FOND DU LAC REP., Apr. 2,1999, at A7; Editorial, Abrahamson for Supreme Court, LA CROSSE TRIB., Apr. 4, 1999, at C-6; Editorial, Abrahamson Deserves Another Term, WAUKESHA FREEMAN, Apr. 2, MARQUETTE LAW REVIEW [85:593 story of where Rose and Abrahamson had campaigned on the final day before the election."5 However, the Daily Register did not print any summaries of the campaign or editorials in the days prior to the election. On April 6, 1999, Shirley Abrahamson was re-elected to the Wisconsin Supreme Court by a wide margin. The incumbent chief justice outpolled challenger Sharren Rose by 481,281 votes (63.5%) to 276,584 (36.5%).2" C. An EmpiricalAssessment of the Information in the Newspapers This section complements the foregoing narrative by discussing in a more systematic and empirical manner the type of information concerning the Abrahamson-Rose campaign that was available in the newspapers. As set forth in our methodology section above, we studied the campaign coverage in ten Wisconsin daily newspapers from January 1, 1999 through April 6, 1999, the day of the election.m The manner in which the following tables track the coverage has two essential components. First, in addition to reflecting the total number of pieces in each newspaper that made any reference to a particular candidate, the tables reflect how many of these pieces conveyed, in our judgment, any information relating to whether the candidate possessed any of the thirteen characteristics that the academic and public-policy literature sets forth as essential or desirable qualities of a judge (e.g., integrity, courage). The tables term these "characteristics identified as desirable" (and we shall also call them "desirable characteristics")."" Second, we have categorized other information in the newspaper pieces according to a large variety of different topics. The tables list categories in this second group under the general heading "other matters." Some of these concern basic biographical information about the candidates. These include references to a candidate's age, place of residence (or site of a legal practice), family, prior candidacies, 2 and honors or awards
1999, at 8A; Editorial, Abrahamson Clear Choice for High Court, WAUSAU DAILY HERALD, Mar. 28, 1999, at 10A. As for the three remaining papers in our study, the Daily Jefferson County Union was equivocal concerning the candidates, see Editorial, On Tuesday's Statewide Races, DAILY JEFFERSON COUNTY UNION, Mar. 31, 1999, at 4, and the Portage Daily Register and Watertown Daily Times ran no editorials specifically considering whether to endorse either candidate. 258. See Abrahamson, Rose Campaign on Home Turf,supra note 197, at 10. 259. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 851 (1999). 260. See supra note 39 and accompanying text and text following note 40; see also supra note 71. 261. See supra notes 41-53 and accompanying text. 262. In Abrahamson's case this would mean her successful election campaign in 1979 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS that the candidate had received in the past. Other categories include the subject matter of the campaign itself, ranging from reactions to the candidates (by the bar and the bench below the Wisconsin Supreme Court and, more generally, under the topic of endorsements/support) to matters that one candidate or her campaign undertook (e.g., the Abrahamson challenge to Rose's filing papers) or focused upon (e.g., crime and criminal law). These categories necessarily vary somewhat for the two candidates and do not always require separate tracking for each. For example, the categories concerning the controversy inside the Wisconsin Supreme Court itself are logically included only in the tables for Chief Justice Abrahamson, 3 as is the category on Abrahamson's administrative role. Likewise, we track references to the dispute over BAPR and Rose's removal from a Manitowoc divorce case only in tables concerning Rose.2' We also include in Rose's tables the print media's references to the sex-predator, pat-down, and school-locker cases in which Abrahamson dissented; we reasoned that to the extent these cases were discussed in the newspapers, it is because Rose was discussing them on the campaign trail."5 Finally, in both candidates' tables we include some categories that seek to track the modes of the newspapers' coverage by measuring how frequently different papers quoted either candidate or her supporters or used unnamed sources.66 after having been appointed to the bench in 1976 and her successful re-election campaign in 1989. Cf. supra note 60 and accompanying text. For Rose, this would mean her unsuccessful campaigns for Brown County Circuit Court judgeships and her unsuccessful efforts to be appointed to fill vacancies on the Wisconsin Supreme Court. Cf. supra notes 63-64 and accompanying text. 263. These entries are addressed to internal opposition, cf. supra text following note 68 and notes 69, 92-133,167-72,191-97 and accompanying text, alleged sexism of Abrahamson's internal opponents, internal support for Abrahamson, cf. supra notes 98, 133, 215-18, 229-32 and accompanying text, and the disputes over aerobics, cf. supra notes 85-88 and accompanying text, computer games, cf. supra note 122 and accompanying text, funding awarded by the Wisconsin Supreme Court to external groups, cf. supra notes 124-26 and accompanying text, and the non-invitation of Ann Milne (Justice Bablitch's wife) to an event sponsored by the court, cf. supra notes 167-72 and accompanying text. 264. Cf. supra notes 70, 150-59, 181-90, 201, 213-25, 228, 249 and accompanying text (BAPR); text following note 70 and notes 161,176-86 and accompanying text (Manitowoc). 265. Cf. supra notes 67-68, 77-84, 144-49, 162, 173-75, 202-12, 237 and accompanying text. 266. Of course, there are aspects of the newspapers' modes of coverage that we do not track (ust as there are other types of information that we could have sought to extract from the material within our study). For example, we do not track whether a particular news article was written by a newspaper's own reporter or instead was furnished by a wire service (e.g., the Associated Press or AP) to which the newspaper subscribed. We also do not track whether essentially the same article was published by different newspapers (as sometimes occurred, for example, when the newspapers picked up the same story from the same wire MARQUETTE LAW REVIEW [85:593
The titles of a number of other categories in the coming tables are self- explanatory. We have no doubt that this methodology has some shortcomings. Tracking the "desirable characteristics" posed particular difficulties. On the one hand, some of these characteristics were fairly easily tracked. If an article referred to Abrahamson as a justice on the Wisconsin Supreme Court or to Rose as an attorney (as almost all articles did), it was an easy matter to mark down that the article included information concerning "professional experience/judicial" or "professional experience/practical. 2" 7 It was scarcely more difficult (or debatable) to realize that an article that referred to Abrahamson's work habits or even to her willingness to speak to groups of citizens (outside of the campaign) communicated information going to her "industry." On the other hand, the more ineffable of the thirteen desirable characteristics- we would include in this group integrity, judicial temperament, impartiality, honesty, courage, independence, fairness, and even knowledge of the law-are not so directly addressed in the newspapers. The presence or absence of these characteristics in a candidate rather has to be inferred usually, to the extent possible, from coverage of specific events or facts. It is possible to do this-for example, we believe that a voter could reasonably (not necessarily to say always correctly) draw inferences about Rose's integrity from articles addressing the service). While it might be interesting to possess the type of information that tracking the foregoing examples would yield, we concluded that some limit was required and that these examples were too far afield from our main inquiry to warrant tracking. In particular, the source of information in a newspaper (in the sense of whether a news article was written by the newspaper's own reporter or by a wire service reporter) and the issue of whether the information is identical to information in another newspaper are not directly relevant to the question of whether the newspaper provides adequate information about judicial candidates for a voter wishing to be reasonably informed in making an electoral selection. See supra text following note 4 and Part I.B (describing purpose of study). 267. We recognize that our methodology does not permit us to track precisely the nature and extent of information about particular characteristics. For example, an article that merely referred to Abrahamson as a member of the court and an article that, by contrast, discussed in detail her twenty-three years of service on the court and gave numerous details about that service would both result in the same indication that the article included information about "professional experience/judicial." Two things should be noted about this limitation. First, it is, to an extent, an inherent and necessary limitation of our attempt to present information concerning the newspapers' campaign coverage in a tabular form. It is for this reason that we do not merely employ this tabular approach, as the lengthy preceding narrative section of this Article reveals. Each approach has its own advantages. Second, to return to the example of the two articles concerning Abrahamson, the second article which detailed her service would likely result in entries in other categories (i.e., besides "professional experience/judicial"), such as industry, or independence, or knowledge of the law, or a number of other possibilities. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS controversy over BAPRW or about Abrahamson's independence based on her willingness to dissent.29 Determining whether a news article communicates information concerning these characteristics nonetheless requires more of a judgment call than is the case with the more objective criteria, and this fact reduces the likelihood that our results could be replicated by another researcher. While this fact is inescapable for this component of this project, we have attempted to minimize the shortcomings by, among other things, making all the judgment calls ourselves (indeed, making all the calls, as opposed to relying on data compiled by one or more research assistants). In all events, we have concluded that the shortcomings of this approach are far more than offset by its merits. We believe that this is an innovative approach that can be used to advance toward a more systematic understanding of the types of information that are and are not available through the print media in judicial elections. The following discussion is divided into five categories: news articles, editorials, opinion pieces, letters to the editor, and advertisements."7 1. News Articles Table 1 sets forth the number of newspaper articles that provide information directly related to various characteristics or facts concerning Shirley S. Abrahamson in her successful campaign for re-election to the Wisconsin Supreme Court.2' Table 2 presents the corresponding information concerning Abrahamson's challenger, Sharren B. Rose.
268. Cf supra notes 70,150-59, 181-90,201,213-25,228,249 and accompanying text. 269. Cf. supra notes 67-68, 77-84, 144-49, 162, 202-12, 237 and accompanying text. Rose made a campaign issue not only out of the three specific Abrahamson dissents about which she repeatedly complained, but also more generally out of what she viewed as Abrahamson's excessive willingness to dissent. 270. See supra text following note 40. There is also a brief discussion of the small amount of material (viz., editorial cartoons) that did not fall within one of these five categories. See infra note 310. 271. Throughout the tables in this Article, for ease of reading, a blank entry is equivalent to "0," although the first row of each table (reflecting the total number of articles with any reference to the candidate) actually uses the "0" symbol where called for. As indicated above, the categories in each set of tables are not mirror images of one another. See supra text accompanying note 263. MARQUETTE LAW REVIEW [85:593
Table 1 - News Articles (Shirley S. Abrahamson)
Total Number with Any Reference 15 8 14 41 154 13 123 17 20 36 CharacteristicsIdentified as Desirable Integrity 3 1 1 2 5 3 Judicial Temperament 2 3 3 Industry 2 2 2 3 3 1 2 Professional Learning 1 1 1 1 1 1 Professional Experience/Judicial 15 8 14 37 54 3 22 7 20 35 Professional Experience/Practice 2 1 2 3 1 1 1 1 2 Impartiality 1 1 1 7 2 2 Honesty 1 1 3 2 1 1 Courage 1 1 1 3 2 Independence 2 3 2 8 14 2 1 1 6 Fairness 1 1 3 1 1 1 Knowledge of the Law 2 1 3 6 3 1 2 6 Others' Opinions of the Candidate 10 5 6 27 35 1 15 3 16 18 Other Matters Age 5 4 7 6 17 1 7 6 9 Residence 1 2 1 1 1 2 Family 2 1 2 2 2 1 2 First Woman on S. Ct. (or as C.J.) 3 1 3 1 3 1 3 5 3 Prior Candidacies 3 1 1 4 14 1 4 5 1 Honors/Awards 1 1 1 1 Bar/Lower-Bench Reaction 1 11 11 7 1 8 Endorsements/Support 3 3 3 22 25 1 9 2 8 13 Crime and Criminal Law 6 3 7 21 18 1 6 2 5 11 Challenge to Rose's Filing Papers 1 1 1 Internal Opposition 8 4 5 19 24 1 10 3 11 14 Alleged Sexism of Internal Opponents 1 1 Internal Support 5 2 2 11 10 4 1 6 12 Aerobics Dispute 4 3 3 4 14 4 1 7 4 Computer Games 2 2 1 2 8 2 1 4 3 Funding by Court 2 2 2 3 12 1 5 2 Milne Invitation Dispute 1 1 2 1 1 1 1 Administrative Role 4 2 4 11 16 7 1 10 10 Campaign Financing 4 6 13 1 4 3 5 2 Television Ads 5 1 1 8 6 2 2 5 Local Appearance 2 2 1 3 3 1 2 6 Use of Campaign Assistants 2 2 9 6 3 3 2 1 Quotation of Candidate 5 4 7 14 22 2 8 3 10 14 Quotation of Supporter 7 2 3 18 16 9 1 7 9 Unnamed Sources 1 1 6 1 1 4 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Table 2 - News Articles (Sharren B. Rose)
Total Number with Any Reference 14 7 14 140 45 3 1 17 6 20 37 CharacteristicsIdentified as Desirable Integrity 4 1 12 10 6 2 2 8 Judicial Temperament 1 2 2 Industry 1 1 1 2 2 Professional Learning 1 1 2 2 2 1 3 Professional Experience/Judicial Professional Experience/Practice 11 6 12 32 33 2 16 6 19 27 Impartiality 6 1 4 Honesty 1 6 8 2 2 2 3 Courage 1 1 1 Independence 1 1 2 2 1 1 Fairness 1 1 7 3 9 Knowledge of the Law 2 2 2 3 Others' Opinions of the Candidate 7 1 3 22 22 9 3 8 14 Other Matters Age 3 3 5 5 16 1 7 3 9 Residence/Site of Practice 10 6 11 28 34 2 16 6 18 26 Family 5 5 1 1 5 Prior Candidacies 3 3 2 5 2 1 4 3 2 Honors/Awards 1 Bai/Lower-Bench Reaction 2 6 11 3 2 1 5 Endorsements/Support 4 1 1 14 13 1 5 1 8 6 Crime and Criminal Law 6 4 7 17 18 1 7 2 5 11 Sex-predator Case 6 3 5 13 13 1 6 1 4 5 Pat-down Case 3 2 3 8 11 3 2 School-locker Case 3 2 3 6 5 2 3 BAPR Dispute 2 1 11 5 1 2 2 11 Manitowoc Disqualification 2 1 4 7 2 1 1 3 Campaign Financing 4 7 13 1 4 3 5 2 Television Ads 6 2 4 17 14 1 5 3 5 6 Local Appearance 2 1 1 3 1 6 Use of Campaign Assistants 1 2 1 8 9 5 2 1 6 Quotation of Candidate 5 3 5 17 26 2 8 1 9 13 Quotation of Supporter 5 2 2 6 10 2 6 6 Unnamed Sources 1 4 1 1 1 MARQUETTE LAW REVIEW [85:593
Tables 1 and 2, taken both as a group and in contrast to one another, disclose a number of things. The first observation that suggests itself is that only one newspaper ran more news articles referring to Rose than to Abrahamson, and that while several newspapers ran the same number of articles referring to each, more than one-half of the newspapers ran more articles during the campaign touching upon Abrahamson than upon Rose.m2 (All this can be seen in the initial rows in Tables 1 and 2, which set forth the total number of news articles with any reference to the candidate.) We do not suggest that any journalistic bias toward Abrahamson can be inferred on this basis-not least because one reason for the disparity was the internal tension on the supreme court, and articles touching upon this did not need to refer to Rose. 3 But we do take this fact as at least consistent with-and perhaps as slight evidence for-the theory that it is more difficult for a challenger than an incumbent to attract press attention. Second, the newspapers in Wisconsin's two largest cities, Milwaukee and Madison, provided more news information about the candidates- or at least provided such information more frequently-than did their counterparts around the state, and in some cases the disparity is dramatic. The entries in the initial rows disclose, for example, that the Milwaukee Journal Sentinel and the two Madison newspapers (The Capital Times and the Wisconsin State Journal) ran somewhere along the lines of twice (or more) as many articles referring to the candidates as did most other newspapers that we tracked. This is not to suggest, however, that newspaper coverage elsewhere in the state was deficient in terms of the numbers of articles run. Of the ten daily newspapers, only the Portage Daily Register published fewer than seven articles referring to the incumbent, and only that newspaper ran fewer than six articles touching upon the challenger (the precise number of articles run by the Portage newspaper was three for both candidates). Among all the newspapers, the median number of articles
272. The only newspaper that ran more articles touching upon Rose than Abrahamson was the Wisconsin State Journal (thirty-seven for Rose and thirty-six for Abrahamson). In no instance was there a dramatic disparity; the largest percentage difference merely consisted of the Watertown Daily Times' running twenty-three articles referring to Abrahamson and seventeen referring to Rose. 273. Of course, it is an interesting question-not requiring resolution for our purposes- whether the articles about the internal tension on the court were a net positive or negative for Abrahamson. To the extent that various letters to the editor provide useful information on this question, the answer may be, somewhat counterintuitively, that Abrahamson's campaign benefited from the fact that four of her six colleagues criticized her administration of the court and three of the six in fact endorsed Rose. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS referring to Rose was 15.5 and to Abrahamson was 17.5.24 In these circumstances, considering only the total number of articles referring to the candidates, we can state that as a general matter the Wisconsin newspapers in our study provided a considerable amount of press coverage of the Abrahamson-Rose campaign. This statement, of course, is only a necessary and not sufficient condition for considering whether the print media coverage was adequate-whether, that is, it provided enough information upon which a reasonable voter could make an informed electoral choice between the candidates. In other words, the foregoing statements concern only the frequency of press coverage, but addressing the more fundamental question of the adequacy of the coverage requires also considering what it contained. While the lengthy preceding narrative of the coverage in Part ll.B is one means of approaching this question, much of the information in Tables 1 and 2 makes possible another perspective on the matter. Let us start with the desirable characteristics and with the most extensively covered category therein. The overwhelming majority of articles on either candidate included at least some information on some aspect of the candidate's professional experience (for example, fifty-four out of fifty-four articles in the Milwaukee Journal Sentinel in Abrahamson's case and thirty-three out of forty-five in Rose's case in the same newspaper). To be sure, this was usually little information indeed-typically no more than a reference to Abrahamson as the chief justice or a member of the Wisconsin Supreme Court and to Rose as an attorney. The next-best-represented category was teputation (or "others' opinions of the candidate," as we have termed it)Y5 Viewed overall, there was a considerable amount of coverage of this category: the average number of news articles in the various newspapers with information on this score was 13.6 for Abrahamson and 8.9 for Rose. Even the median number, though lower than the foregoing mean because of the average-distorting effect of the three Milwaukee and Madison newspapers, nonetheless was 12.5 for Abrahamson and 7.5 for Rose. At least in Abrahamson's case, it would be difficult to suggest
274. Because there is an even number of newspapers (ten), the median is determined by taking the average of the fifth and sixth-highest numbers. 275. For ease of discussion, we generally use the terms "reputation" and "others' opinions of the candidate" interchangeably in this study. We note this because we recognize that the two terms, though closely related to one another, may not be universally regarded as synonymous. MARQUETTE LAW REVIEW [85:593 that any such number of articles communicating information about others' opinions of the candidate was unreasonably low. The considerable variation between the two candidates within this category, however, merits some further discussion. Even leaving aside the five newspapers with the most articles reflected in this category of "others' opinions of the candidate" and looking to the bottom half of our ten newspapers, we see that information on others' opinions of Abrahamson was substantially more available than was similar information on Rose. Specifically, among these "bottom five" newspapers, the average number of articles that included references to others' opinions of Abrahamson during the three-month campaign was five, while the corresponding number for Rose was 2.8. This comprises an almost eighty percent differential between the coverage of the two candidates as far as this particular category is concerned. Similar (or even more pronounced) disparities in other categories will require us to return to this general point. Beyond the categories concerning professional experience (both judicial and practice) and reputation, there is a considerable drop-off in the amount of coverage that may be found in the news articles concerning the desirable characteristics of these two candidates. In these foregoing three categories, the number of articles runs as high as fifty-four, and numbers in the twenties and thirties are not unusual. By contrast, in the other ten categories (integrity, judicial temperament, and so forth), the numbers from the ten newspapers in our study make it into double-digits only three times (out of 200 possible entries), and even in these instances the number of articles is variously only ten, twelve, and fourteen (see the Milwaukee Journal Sentinel and The Capital Times with regard to Rose's integrity and the Milwaukee Journal Sentinel with regard to Abrahamson's independence). Indeed, the modal number for these 200 entries is zero, and the second most frequent number is one. For example, just under one-half of the ten newspapers communicated essentially nothing in their news articles concerning Abrahamson's fairness, and five of the other six contained only one article each that at all touched upon this characteristic (with the final newspaper running three such articles). Other examples of low coverage of the desirable characteristics even for this high-profile race are readily visible in Table 1 and Table 2. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
The situation is particularly stark with regard to the challenger, Sharren Rose. Of the ten categories for desirable characteristics besides professional experience and reputation, in only four did a majority of the ten newspapers provide information about the challenger (and a bare majority at that with regard to "independence"). In other words, the readers of at least half of the Wisconsin newspapers in our study received no information about Rose with respect to the presence or absence in the candidate of one (or more) of six of the desirable characteristics: judicial temperament, industry, impartiality, courage, fairness, and knowledge of the law. Another (more specific) datum along these lines is that only three newspapers had anything to say concerning Rose's judicial temperament, impartiality, or courage. Particularly given the high-profile nature of this race, these are considerable shortcomings for anyone wishing to defend newspaper coverage of judicial campaigns as generally adequate to inform voters. At first glance, the coverage of the ten desirable characteristics other than professional experience and reputation seems considerably superior in Abrahamson's case. A majority of the desirable characteristics with respect to the incumbent received reference in at least six of the ten newspapers. Only judicial temperament and courage did not receive mention in a majority of the newspapers, and the latter of these characteristics made it into fully one-half of the newspapers. Of course, this number of the ten characteristics (viz., eight) touched upon by a majority of the newspapers with respect to Abrahamson exceeds the previously discussed four characteristics in Rose's case. On closer examination, however, the difference, while not disappearing altogether, appears less dramatic. In almost fifty percent (twenty-eight of sixty- two) of the instances where our tables indicate that a newspaper provided information going to one of these ten non-experience, non- reputation desirable characteristics concerning Abrahamson, the tables also indicate that it was only one article in the newspaper during the entire three-month campaign that provided such information. It therefore should not be thought that there was low availability of information with regard to the desirable characteristics only in the challenger's case. Leaving aside again for now the three categories for professional experience and reputation, we also see that there is not necessarily overlap between the candidates in terms of the characteristics that received the most coverage in the newspapers. For example, of the other ten categories, independence is the characteristic touched upon most frequently in the print media's coverage of Abrahamson (the nine MARQUETTE LAW REVIEW [85:593 newspapers making any reference made a collective thirty-nine references to the incumbent's independence). By contrast, this characteristic is scarcely covered with regard to Rose: six newspapers referred to Rose's independence, but made an aggregate total of only eight such references. The disparity in this category derives from one of Rose's own preferred campaign topics-the frequency with which Abrahamson has been willing to depart from a majority of her colleagues and dissent. It thus also is not surprising that, given the nature of other campaign topics, in some categories there is more coverage of Rose than Abrahamson. Integrity is the category with the most entries for Rose (eight newspapers ran a collective forty-five articles touching upon her integrity, the bulk of these articles discussing the candidate's role on BAPR), whereas it falls more towards the middle of Abrahamson's categories (six of ten newspapers made a collective fifteen references, which makes the category tied for third in Abrahamson's ten non-experience, non-reputation categories). Indeed, overall, "leadership" in categories is at least somewhat variable, with Abrahamson leading in six categories (judicial temperament, industry, impartiality, courage, independence, and knowledge of the law) and Rose in four (integrity, professional learning, honesty, and fairness). 6 We also regard as noteworthy the low number of entries in the category for "professional learning." "Professional learning" refers essentially to the candidate's legal education, by which is meant the law school the candidate attended, and to a few miscellaneous matters along the same lines. Thus, unlike every other of the ten non-experience, non- reputation categories, this category does not seek to measure references to some vague or ineffable characteristic (about whose presence or absence data-gatherers we acknowledge might not be likely entirely to agree in a number of instances). In these circumstances, the numbers in the professional learning category can be set forth with considerable confidence, and they are low. No more than seven of the ten newspapers referred to either candidate's professional learning, and
276. Of course, the term "leadership" is used only in the specific sense of a candidate's having the most articles from which readers could reasonably draw an inference-one way or the other-about the presence or absence of a characteristic in a candidate. Thus, Sharren Rose would not likely regard her "leadership" in "integrity," "honesty," and "fairness" as indicating favorable press coverage, for each such leadership in her case derives from the amount of coverage given to the events of the campaign concerning such things as BAPR, see supra notes 70, 150-59, 181-90, 201, 213-25, 228, 249 and accompanying text, the challenger's previous disqualification in a Manitowoc divorce case, see supra text following note 70 and notes 161, 176-86 and accompanying text, and her television advertisements, see supra notes 142-49, 185-86,202-12 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 647
only one newspaper ran more than two articles with such a reference with respect to a particular candidate (the Wisconsin State Journal had three such articles in Rose's case). It is not so much that these low numbers surprise us (they do not), as it is that this is in stark contrast to what the situation would be, in our judgment, if a campaign were covered only by lawyers and only for lawyers. "Where did she go to law school?" is, in our experience, usually the first question asked by lawyers considering hiring another lawyer, even if the year of graduation is well in the past. Given that in some states-those with appointment *processes-lawyers looking to hire another lawyer is essentially the situation in the judicial selection process, the apparent absence of much interest in the topic of professional learning among the print media in a state with an elective system is an interesting contrast.' The foregoing analysis has focused on coverage of various characteristics, sometimes then discussing the number of newspapers providing the coverage. Focusing first on the newspaper rather than the desirable characteristic-that is, looking at the tables vertically instead of horizontally-also provides some useful insights, particularly if the coverage of the two candidates is contrasted. On the one hand, only five of the ten newspapers in our study (viz., the La Crosse, Madison, and Milwaukee dailies, and the Daily Jefferson County Union) contained information about Sharren Rose that touched upon a majority of the desirable characteristics. In other words, the other one-half of the newspapers had nothing to say about Rose with regard to at least seven of the thirteen desirable characteristics (the particular seven, of course, varying by the newspaper). On the other hand, most of the newspapers provided information about most of the desirable characteristics in Abrahamson's case. Only the dailies in Portage and Waukesha failed to meet this standard. While this is not an overwhelming contrast, it is consistent with much of the foregoing discussion, which demonstrates that there were more likely to be gaps in coverage concerning the challenger than concerning the incumbent.
277. We recognize that there may have been specific reasons that there was little discussion of the candidates' legal educations in this campaign. In particular, the fact that both Abrahamson and Rose received a law degree from the same law school (the University of Wisconsin) would have meant that the press would not have regarded this as a distinguishing characteristic between the candidates. On the other hand, there are some differences, for Abrahamson's primary law degree is from Indiana University, and her degree from the University of Wisconsin was a further degree (viz., an SJ.D.) that therefore does not correlate exactly with Rose's Wisconsin degree, which rather is analogous to Abrahamson's Indiana degree. MARQUETTE LAW REVIEW [85:593
Tables 1 and 2 contain, in addition to the just-discussed "desirable characteristics," information concerning what we generally term "other matters." As described above, some of the categories in these bottom "halves" of the tables track basic biographical information about each candidate, others recount the extent of coverage of basic campaign issues (both issues that are common to the candidates such as crime and matters that were unique to a particular candidate such as internal court opposition in Abrahamson's case and the BAPR dispute in Rose's), and still others focus on the newspapers' mode of reportage (e.g., the extent to which a newspaper quoted each candidate)2S An almost-unlimited amount of commentary is possible based on this information. While we will not attempt to exhaust the possibilities, some commentary is appropriate. For the most basic biographical information-age, residence, and family-the news articles generally provided a reasonable amount of information. Every newspaper except one referred to the candidates' ages at least once during the campaign. Most of the newspapers did so multiple times, although no newspaper did so in more than one-half of its articles. The newspapers reported differently about each candidate with regard to residence, tending to refer to Rose's residence (Green Bay) in an overwhelming percentage of all articles referring to Rose but rarely referring to Abrahamson's residence (Madison) at all. The reason for this difference is not difficult to surmise. Given Rose's relative anonymity in the state, referring to her as "an attorney in Green Bay" (or similarly) was largely necessary for a reporter seeking to communicate to readers the subject of an article. By contrast, Abrahamson was not only well known throughout the state because of her incumbency, lengthy service, and status as chief justice, but also was a resident of the Madison area even before joining the supreme court in 1976. Referring to Abrahamson's residence was therefore both less necessary and encompassed, in a sense, by any references to the court in Madison. Finally, as for references to family, most newspapers made at least one reference in Abrahamson's case and half did so in Rose's. What is not disclosed by the tables is that these references to a candidate's family tended to occur (particularly in Rose's instance) not by way of providing general biographical information but in the context of articles referring to financial contributors to the candidate.
278. See supra text following note 261 and accompanying notes 262-66. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
The categories of prior candidacies and honors/awards also concern types of biographical information. Every newspaper other than the Waukesha Freeman made at least one reference to each candidate's prior judicial candidacies, although with one exception (that of the Milwaukee daily with regard to Abrahamson) no newspaper made more than five such references. These references would not have been equally welcome to each candidate, of course, for in Abrahamson's case they concerned her successful campaigns in 1979 and 1989 to retain her supreme court seat, but in Rose's case the references were to her two unsuccessful races to serve on the Brown County Circuit Court or her previous efforts for an appointment to the Wisconsin Supreme Court. 9 As for honors/awards, this category was the subject of less coverage than we would have expected. Even in Abrahamson's case, for example, no newspaper made more than one reference in its news articles to honors or awards that she had received over the course of her professional career. On the other hand, past honors or awards were neither "basic" biographical information (as we use that term in the paragraph preceding this) nor really "news," and therefore references to them would have been likely to be made only in longer biographical sketches of the candidates, not in articles reporting the previous day's campaign events. The categories that appear next in each table-bar/lower-bench reaction and endorsements/support-are logically treated together. In each instance, slightly more than one-half of the newspapers provided some information concerning the reaction of the bar or lower-court judges to Abrahamson's and Rose's candidacies. 2 These references ranged from reports of internal surveys conducted by local bar organizations concerning each candidate's qualifications to comments or observations offered about the candidates by lawyers within the state (both those in private practice and, for a particularly frequent example, district attorneys). News coverage within the other category (endorsements/support, which we shall simply call "endorsements") was more extensive and more consistent across the newspapers: every newspaper reported at least one endorsement of Abrahamson and at least one of Rose. Within this category, the newspapers tended to report more endorsements for Abrahamson than for Rose. It is no
279. See supranotes 60,63--64,262 and accompanying text. 280. This category does not include reaction within the Wisconsin Supreme Court; that topic is covered in the categories in Table 1 (Abrahamson) of internal opposition and internal support. See supra text following note 262. MARQUETTE LAW REVIEW [85:593 editorialization on our part to say that this disparity derives at least in part from the fact that Rose received substantially fewer endorsements than did Abrahamson.8 1 The "crime and criminal law" category, which reports very similar numbers for both candidates (because, for example, Rose's criticisms of Abrahamson's voting record in criminal law cases provided inforrhation about both candidates), reveals the considerable extent to which news articles reported about campaign events in which issues related to crime were raised. The narrowness of Rose's approach-largely focusing her criticism on Abrahamson's votes in three particular cases-is suggested by the subsequent three rows in Table 2 (Rose), which track the number of news article during the campaign that referred to Abrahamson's votes in the so-called sex-predator, police-pat-down, and school-locker-search cases. From a comparison between these three categories and the aforementioned "crime and criminal law" category, it is evident that most news articles referring to crime at all referred to these three cases. There is no reason to think that this coverage did not accurately reflect Rose's campaign-no reason to think, for example, that Rose was talking about many other cases beyond those three. Table 1 contains a number of categories that track newspaper coverage of campaign matters particular to Abrahamson. The initial effort to remove Rose from the ballot was reported in only a minority of the newspapers.2 Much more extensive was the coverage of the criticisms of Abrahamson by a majority of her colleagues on the Wisconsin Supreme Court-the controversy that even saw three supreme court justices endorse Rose and that continued throughout the campaign."' Every newspaper provided some coverage of this matter (which we term "internal opposition"); indeed, the newspapers published an average of almost ten articles each. Two of the newspapers included references in their news coverage to the suggestion that Abrahamson's four internal opponents (all men) were motivated by sexism." Internal support for the incumbent chief justice from the other two justices on the court (Ann Walsh Bradley and David T.
281. Even if this fact could not in some sense be inferred from the ultimate vote totals, see supra text accompanying note 259, it was an uncontested fact during the campaign. 282. Cf. supra text following note 74 and accompanying notes 75-76 (recounting the challenge to Rose's filing papers). 283. Cf. supra text following note 68 and notes 69, 92-133, 167-72, 191-97 and accompanying text. 284. For references to this subject by the editorialists and opinion writers, see infra Tables 3 and 5. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Prosser, Jr.) also received a considerable amount of attention from the newspapers. For example, the three Milwaukee and Madison dailies referred to such support for Abrahamson at least ten times each, and all the newspapers generally did so in the vicinity of one-half the number of times that they referred to the more newsworthy (because unprecedented) internal opposition. Table 1 also provides separate information about particular aspects of the court's internal fissure. The dispute over Abrahamson's use of the courtroom in 1998 as the venue for an aerobics workout for herself and other court employees ultimately came up in news stories in nine of the ten newspapers, and it did so at least three times in a majority of the newspapers. Other bases for criticism or dispute concerning Abrahamson's tenure as chief justice-the controversies over the removal of computer games, the nature of the court's funding of outside groups or activities, and the allegedly intentional snub by Abrahamson of Justice Bablitch's wife, Ann Milne-tended to receive less attention than the aerobics dispute, although these three topics were covered, respectively, in news articles at least once by nine, eight, and seven of the ten newspapers in our study. Finally, and not surprisingly given the foregoing results, our broadest category of information regarding internal court matters-references to Abrahamson's administrative role-received some attention in all but one newspaper and, indeed, was referred to in at least seven news articles in one-half of the ten newspapers. Matters peculiar to the Rose campaign were not regarded as noteworthy as the unprecedented public dispute between members of the Wisconsin Supreme Court. Nonetheless, as Table 2 discloses, two controversies involving Rose received news coverage in eight of the ten newspapers. One was the issue of the supreme court's purported investigation and monitoring of BAPR during Rose's tenure as a member (and at various times as the vice-chair and chair of this lawyer disciplinary agency).m In terms of newspaper reportage, perhaps the most interesting aspect of this matter-which cannot entirely be separated from the above-discussed internal dispute between members of the court-is the disparity in coverage between the two Madison newspapers, on the one hand, and the other dailies in the state. Both of the Madison newspapers ran eleven articles touching upon the controversy, whereas two other dailies published no stories, five dailies published only one or two stories each, and, finally, even the Milwaukee
285. See supra notes 70,150-59,181-90,201,213-25,228,249 and accompanying text. MARQUETTE LAW REVIEW [85:593
JournalSentinel-which overall published the most news articles of any newspaper covering the campaign-ran a total of only five stories, which is fewer than half of the Madison dailies' totals. Possible explanations for the Madison newspapers' different approach are numerous: BAPR's location in Madison may have made this dispute a story of greater local interest than elsewhere in the state; these newspapers were the staunchest journalistic supporters of Abrahamson and may have viewed this controversy as harming Rose's prospects; or their reporters' sources within the court enabled the Madison dailies to obtain more information than was available to other newspapers-or all of these things, and some other reasons as well. The other controversy involving Rose tracked in Table 2 concerned her removal by a Manitowoc County Circuit Court judge in a 1997 divorce case. 6 Although most newspapers covered the matter, here, too, there was variation among them with regard to how frequently. Leaving aside these disputes peculiar to each candidate and returning to categories that appear in both Table 1 (Abrahamson) and Table 2 (Rose), we set forth information in the tables on four matters that might be loosely grouped under the topic of campaign conduct. First, the tables demonstrate that in each candidate's case eight of the ten newspapers made at least some reference in a news article to campaign financing. Two of the newspapers (The Capital Times in Madison and the Milwaukee Journal Sentinel) ran a considerable number of such articles, many of which referred only incidentally to particular contributions to a candidate's campaign but some of which made sources of a candidate's campaign financing their chief focus. Even beyond these particular newspapers, most readers seeking information about campaign financing could find some in the newspapers.
286. See supra text following note 70 and notes 161, 176-86 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Second, a majority of the newspapers touched upon the candidates' television advertisements. Although the range of reporting newspapers did not vary much as between the two candidates (eight newspapers with regard to Abrahamson's television advertisements and all ten with regard to Rose's), the frequency with which these newspapers reported was quite different for the candidates. The newspapers collectively published thirty news articles referring to Abrahamson's advertisements, but ran sixty-three referring to Rose's-the latter figure led by the seventeen articles in The Capital Times and the fourteen in the Milwaukee JournalSentinel. It is not too much to say that television advertisements-particularly those of the challenger-were themselves one of the most reported-on aspects of the campaign. Third, there is also some variation in the extent to which the newspapers reported on local appearances by the candidates. Eight of ten newspapers (including five of the seven non-Milwaukee, non- Madison papers) published a news article concerning a local appearance by Abrahamson, whereas six of ten (and only three of the seven non- Milwaukee, non-Madison papers) did so with regard to Rose. We cannot say whether this disparity reflects a disparity in the candidates' campaign itineraries-perhaps Rose did not make her way near Jefferson County or Wausau during the campaign as much as Abrahamson did. If so, there would be less for papers to report concerning Rose's appearance in these areas. In all events, an actual review of the news articles in the various newspapers concerning local visits by Abrahamson demonstrates that even those newspapers that tended to use wire services for their articles on the campaign would dispatch one of their own reporters to cover at least some local visits in the campaign.'
287. Cf. supra note 266 (discussing general irrelevance to this study of fact that some articles published in newspapers in study were wire service reports). MARQUETTE LAW REVIEW [85:593
The last three categories in Tables 1 and 2 also can be grouped together, under the concept of journalistic techniques. The first tracks the extent to which the newspapers included within their news articles a quotation of the candidate. There is, of course, considerable variation among the newspapers with regard to the number of entries in this column, although this is reflective primarily of the fact that there is similar considerable variation among the newspapers with regard to the total number of news articles referring to the candidates. When the quotation row for each newspaper is looked at in comparison to the overall number of articles in the paper, most newspapers included a quotation from Abrahamson in somewhere between one-third and one- half of the articles and a quotation from Rose in about the same number' 8 There does not appear to be notable variation in the extent to which one candidate was quoted as opposed to the other. The second of the three journalistic-technique rows concerns quotations by the newspapers, not of the candidates, but of their supporters. In Abrahamson's case, these numbers occasionally exceed the extent to which the candidate herself was quoted in the newspapers. That is never true with regard to Rose. There are numerous possible reasons for this slight disparity between the candidates (of course, the disparity is slight enough that one might regard it as immaterial). For example, it was reasonably apparent throughout the campaign that Abrahamson was the favorite to win the race, so she would have had less incentive to make statements that were sufficiently newsworthy to merit quotation in the next day's papers. In turn, the theory would go,
288. Drawing from Tables 1 and 2, the following reflects the extent to which the various newspapers quoted the candidates. For each, it lists first the number of news articles quoting the candidate and the total number of news articles referring to the candidate and second the percentage of news articles quoting the candidate. Abrahamson Rose Daily Jefferson County Union 5/15 33.33% 5/14 35.71% Fond du Lac Reporter 4/8 50.00% 3/7 42.86% La Crosse Tribune 7/14 50.00% 5/14 35.71% Capital Times 14/41 34.15% 17/40 42.50% Milwaukee JournalSentinel 22/54 40.74% 26/45 57.78% PortageDaily Register 2/3 66.67% 2/3 66.67% Watertown Daily Times 8/23 34.78% 8/17 47.06% Waukesha Freeman 3/7 42.86% 1/6 16.67% Wausau Daily Herald 10/20 50.00% 9/20 45.00% Wisconsin State Journal 14/36 38.89% 13/37 35.14% 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
this might have prompted the newspapers to look frequently to Abrahamson's supporters for observations on the race where in similar circumstances they would have been able to obtain a statement from Rose herself, who would have had a substantial incentive to say something quoteworthy. This thesis is unpersuasive, however, because (leaving aside quotations of supporters), as noted above, newspapers were generally as likely to quote Abrahamson as to quote Rose. Finally, for the same basic reason (i.e., Abrahamson's wider support, as ultimately reflected on Election Day), the newspapers simply may have been more likely to come upon Abrahamson supporters than Rose supporters, and this undoubtedly explains in part any material difference in the extent to which each of these two groups was quoted. The last journalistic-technique row-and the last row in Tables 1 and 2-tracks the extent to which the newspapers relied on an unnamed source in any of their news articles covering the campaign.29 A majority of newspapers relied on unnamed sources in at least one article. However, only the two Madison dailies relied on unnamed sources in more than one article during the campaign. In several instances, their unnamed sources either appeared or were explicitly acknowledged to come from within the Wisconsin Supreme Court."9 2. Editorials We also examined the newspapers' editorials concerning the Abrahamson-Rose race. Of the ten daily newspapers in our study, all seven that expressed a preference endorsed Shirley Abrahamson for re- election.2 ' Using the same categories as before, Table 3 summarizes the information concerning Abrahamson available in the newspapers' editorials. Table 4 does the same for Sharren Rose.
289. This refers to instances in which a newspaper explicitly indicated that some information in an article came from a source that the newspaper declined to name. 290. See, eg., Callender & Pommer, supra note 104, at 1A; Invite Spat Adds Fire to Court Feud, supra note 168, at 3A; Segall, supra note 92, at IA; Rob Zaleski, Sure-Footed Shirley, CAP. TIMES, Mar. 27-28,1999, at IA. 291. See supra notes 191,250,252-54,256-57 and accompanying text. MARQUETTE LAW REVIEW [85:593
Table 3 - Editorials (Shirley S. Abrahamson)
Total Number with Any Reference 2 2 2 9 6 0 1 1[2 8 CharacteristicsIdentified as Desirable Integrity 1 Judicial Temperament 1 1 1 Industry 1 1 1 1 Professional Learning Professional Experience/Judicial 2 2 2 6 5 1 1 2 7 Professional Experience/Practice 1 Impartiality 1 Honesty Courage 1 Independence 2 1 2 Fairness 1 1 Knowledge of the Law 1 1 2 1 2 Others' Opinions of the Candidate 2 1 2 8 4 1 1 2 6 Other Matters Age I Residence Family First Woman on S. Ct. (or as C.J.) 1 Prior Candidacies 1 1 Honors/Awards 1 1 Bar/Lower-Bench Reaction 4 1 1 Endorsements/Support 2 1 2 6 3 1 1 2 Crime and Criminal Law 2 1 3 2 1 1 3 Challenge to Rose's Filing Papers Internal Opposition 2 2 1 3 3 1 2 3 Alleged Sexism of Internal Opponents 2 1 1 1 Internal Support 2 1 1 2 2 1 1 1 Aerobics Dispute 2 2 1 2 1 1 Computer Games 1 1 1 1 Funding by Court 1 1 1 1 Milne Invitation Dispute Administrative Role 2 1 2 2 1 1 4 Campaign Financing 2 Television Ads 1 1 1 Local Appearance Use of Campaign Assistants 1 Quotation of Candidate 1 Quotation of Supporter 1 2 2 1 Unnamed Sources 20021 THE PRINT MEDIA AND JUDICIAL ELECTIONS
0
Table 4 - Editorials (Sharren B. Rose)
Total Number with Any Reference 2 1 2 5 4 0 1 11 2 17 CharacteristicsIdentified as Desirable Integrity 2 2 1 Judicial Temperament 1 1 1 Industry Professional Learning 1 1 Professional Experience/Judicial 1 Professional Experience/Practice 2 2 3 2 1 1 5 Impartiality 1 Honesty 2 1 Courage Independence 1 Fairness 2 2 1 Knowledge of the Law Others' Opinions of the Candidate 2 1 4 2 1 1 4 Other Matters Age Residence/Site of Practice 2 2 2 1 1 2 5 Family 1 Prior Candidacies 2 1 1 Honors/Awards Bar/Lower-Bench Reaction 1 1 Endorsements/Support 1 1 Crime and Criminal Law 2 1 1 3 2 1 3 Sex-predator Case 1 1 1 1 1 Pat-down Case 1 1 School-locker Case 1 1 BAPR Dispute 3 2 Manitowoc Disqualification 1 1 Campaign Financing 2 Television Ads 1 2 2 1 1 1 Local Appearance Use of Campaign Assistants 3 Quotation of Candidate 1 1 Quotation of Supporter 1 Unnamed Sources MARQUETTE LAW REVIEW [85:593
A number of observations derive from these data. First, in neither candidate's case did the editorialists largely base their support or opposition explicitly on the desirable characteristics. This fact is evident from the generally few references to the desirable characteristics in all the editorials touching upon the campaign, as reflected in Tables 3 and 4 above. Only one of the ten newspapers (the Milwaukee Journal Sentinel) touched upon, with respect to one candidate or the other, a majority of the desirable characteristics in its editorials. Moreover, it is important to be aware that a number of the editorials reflected in the tables were not outright endorsements of a candidate but rather a commentary on some aspect of the campaign (e.g., Rose's television advertisements). Thus, in the editorials actually constituting endorsements, there were even fewer references to the presence or absence of the desirable characteristics in the candidates than the tables might be initially taken to suggest. Second, looking particularly at their attention to Sharren Rose, the editorialists made remarkably few references to the desirable characteristics. For example, in all of the newspaper editorials, there was not a single reference to Rose touching upon (positively or negatively) her industry, courage, or knowledge of the law. Further, outside of one newspaper (the Wisconsin State Journal), there was no reference to the challenger's impartiality, and outside of another (the Milwaukee Journal Sentinel), there was no reference to independence. Thus, in the challenger's case, essentially one-fourth (three of thirteen) of the desirable characteristics received no attention from editorialists, and another one-sixth (two of thirteen) received attention from only one newspaper.' 2 The discussion that one does find with respect to the desirable characteristics here is matter that requires less judgment on the part of the editorialists: only Rose's practice experience, which is a dry fact that is almost necessary to refer to incidentally in setting up any reference to the challenger (e.g., "Sharren Rose, an attorney . . ."), her integrity, her judicial temperament, her fairness, and others' opinions of her receive a reference in more than two of the ten daily newspapers. 293 By contrast,
292. We say "essentially one-fourth" (and similar reasoning goes for the reference to "one-sixth") because there are thirteen desirable characteristics, and three of them were not touched upon with respect to Rose, but one of the other ten characteristics ("professional experience/judicial") was unlikely to be invoked with regard to Rose and therefore is perhaps best excluded from the denominator. So that leaves us, essentially, with three of twelve. 293. It should be noted that the category of "others' opinions" here includes instances in which the editorialists merely referred to or made known their own opinions of Rose. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS although almost all of the newspapers (specifically, every one other than the Milwaukee Journal Sentinel) referred to only a minority of the desirable characteristics in Abrahamson's case, a near-majority of Abrahamson's desirable characteristics (judicial temperament, industry, professional experience/judicial, independence, knowledge of the law, and others' opinions) were touched upon in at least three of the ten newspapers. What explains the disparity, however slight, between the amount of attention paid by editorialists to the desirable characteristics in Abrahamson's case as opposed to Rose's? There are a number of possible reasons, each of which may provide at least a partial explanation. These reasons also provide a useful opportunity for some more general reflections upon the nature of the newspapers' coverage of judicial campaigns. First, it is important to acknowledge that an absence of data about the challenger, Sharren Rose, may not itself conclusively demonstrate a gap between the academic theories of what characteristics are desirable in judges and the realities of what motivates everyday preferences (including those of editorialists). More specifically, it is significant in this regard that none of the newspapers endorsed Rose and all that backed Abrahamson conceivably could have done so solely by reference to Abrahamson's characteristics. Thus, a lower rate of discussion of desirable characteristics with regard to Rose (the unendorsed candidate) does not necessarily indicate that those characteristics were viewed as irrelevant. On the other hand, given that Wisconsin has designed its judiciary to be selected through contested elections, requiring a choice between candidates, one might not advocate focusing only on one candidate. Moreover, the not-overly-extensive references to the desirable characteristics even of the candidate in whose favor the newspapers editorialized-recall that only one newspaper referred to a majority of the desirable characteristics in endorsing Abrahamson- appear to confirm a gap between academic theory and editorial practice. In the case of the challenger, the relatively low rate of reference to the presence or absence of desirable characteristics may have another explanation as well. If we assume that a newspaper wishes to appear to have a reasonably plausible basis for editorializing, obtaining sufficient information about the desirable characteristics of a non-incumbent to be able to editorialize on that basis is substantially more expensive than either doing the same with regard to an incumbent or basing comments about the non-incumbent on matters other than the desirable characteristics. We are thus inclined to suspect that disparities in focus MARQUETTE LAW REVIEW [85:593 are in part a function of the costs to newspapers of covering the different kinds of issues for the different candidates. To be clear, the point may require more specific demonstration. Obtaining information about the desirable characteristics of a non- incumbent such as Rose is an at least somewhat costly matter. To take simply the examples of "impartiality" and "knowledge of the law" (other examples could be used as well), both of which were touched upon with regard to Rose by only a minority of newspapers in their news articles and by at most one newspaper in editorials, it would have been possible for a reporter or editorialist to ferret out some basic facts about Rose. Doing so perhaps would have required, however, a trip to Green Bay and some interviews with Rose's colleagues. Notably, the universe of people with such information would have been fairly small. By contrast, obtaining similar information about an incumbent such as Abrahamson is a relatively low-cost matter. To a considerable extent, that information exists in (or can be easily inferred from) the public record-viz., the various majority, concurring, and dissenting opinions authored by the incumbent. The number of people with opinions based on that record, moreover, would be relatively large. Academics, practicing lawyers, and judges on lower courts are only the most immediately obvious individuals from whom newspapers could seek information, and the editorialists themselves would likely already have some sense of these matters. This thesis-that newspapers tend to look to low-cost information in covering campaigns-is consistent with the coverage of matters other than the desirable characteristics. The matters most likely to be covered were those that straightforward, narrative reporting or editorializing about the campaign would pick up. These matters were favored over those requiring substantial background research or reporting or a similarly extensive commitment of resources. For example, Tables 1 through 4 reveal that in both news reporting and editorializing the newspapers covered such matters as crime and criminal law and the candidates' television advertising. The former was a topic that one of the candidates (Rose) essentially brought to the newspapers herself: it was her campaign focus, to an extent that any reporting on Rose almost necessarily included references to crime and criminal law. Nor did the newspapers tend to go beyond the challenger's charges in covering the topic. Coverage of the latter topic (television advertising) would not have even required a reporter to leave his or her office. We do not wish to overstate the point. Certainly some newspapers devoted resources to the campaign. A number of them ran news articles 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS on each candidate's campaign financing that required at least a trip to the Wisconsin Elections Board to review the candidate's disclosure reports.294 For a more notable example, several of them reported on the pre-existing conflict between the Wisconsin Supreme Court and BAPR. Even many of these examples, however, help demonstrate the larger point. The campaign-financing articles tended to be a cursory list of some individuals or entities that had contributed to a candidate. Such reporting presumably could be done quickly, whereas conducting a more rigorous analysis of the candidates' campaign financing-for example, assessing how much of each candidate's money was coming from the legal profession-would have been more time-consuming and therefore costly and was not undertaken. Similarly, it also would have been costly (relative to what was done on the matter) for a newspaper to delve deeply into the controversy concerning Rose's participation on BAPR. No newspaper did. The references to or articles on the matter almost entirely consisted of Abrahamson's or her supporters' implications that BAPR had acted improperly in a number of instances during Rose's tenure and Rose's responses to those implications. The reality of Rose's role in BAPR- whether BAPR had in fact improved or deteriorated during her time and whether she was a constructive or destructive force on BAPR- would have required much more in-depth, time-consuming, and therefore costly reporting. Lest one mistake this last observation as a suggestion that the media were anti-Rose, the same could be said with regard to their unwillingness to delve into the three cases as to which Rose condemned Abrahamson for dissenting. The media were not willing to spend resources examining whether Rose's criticisms of Abrahamson's actions in these cases were well-founded. In addition, at least in this particular instance and perhaps generally as well, lack of expertise on the part of the print media may have been as important an obstacle to a full discussion of the matter as an unwillingness to devote resources. In other words, there may have been useful information concerning Abrahamson's votes in those cases even beyond the response reported to have been offered by the Abrahamson campaign. For example, in the school-locker case, Rose's suggestion that Abrahamson had voted to find illegal a search of a student's locker was routinely reported-and not doubted-by the print media.295 In
294. Of course, this may have been a trip by a wire service reporter. Cf supra note 266. 295. See, e.g., David Callender, High Court Race: Can Restraint Win War of the Rose?, MARQUETTE LAW REVIEW [85:593 fact, Abrahamson's position was substantially more nuanced than that. Specifically, Abrahamson agreed with the majority that "the search in this case was conducted in response to an identified, specific danger which could not be dealt with by following the traditional probable cause or reasonable suspicion standards. 296 Her disagreement was rather with her colleagues' conclusion that the particular manner in which the search was conducted was constitutional. Even here, however, Abrahamson did not conclude that the search was unlawful, as Rose and the print media suggested. Abrahamson instead advocated "remand[ing] the case to the circuit court for further inquiry into whether the search was reasonably tailored to the circumstances which compelled it and whether the search was conducted in a manner that safeguarded the privacy of students against arbitrary invasions."2 9 In the context of the 1999 campaign and Rose's allegations about the school-locker case, both an unwillingness to devote resources and a lack of expertise on the part of the print media may have served as obstacles to a full discussion of the case. The former of these reasons is covered extensively several pages above and requires no further elaboration; as for the latter, the salient point is that most of the reporters covering the campaign were not lawyers. Thus, even if the reporters looked at the school-locker case that Rose so frequently invoked, the distinction between a dissenting opinion advocating reversal (as Rose suggested Abrahamson had advocated) and one advocating reversal and remand for a further evidentiary hearing (as Abrahamson in fact had advocated) is not a concept that would have been intuitive to most of the reporters. 3. Opinion Pieces Next we examine opinion pieces, by which we mean signed articles expressing the authors' opinions (as opposed to unsigned editorials). Although this primarily includes "op-ed" pieces-signed opinion pieces which traditionally run "opposite" the "editorial page" in newspapers- we also include herein the work of any newspaper columnists who are featured less as reporters than as commentators. Table 5 concerns Chief Justice Abrahamson; the data for Sharren Rose are in Table 6.
CAP. TIMEs, Mar. 20-21, 1999, at 1A; Jones, supra note 82, at 6B; Justice: Rival Is Distorting My Record, supra note 81, at 2A; Rose Pulls TV Ad After Complaints, WIS. ST. J., Mar. 29, 1999, at 2B; Segall, supra note 237, at 1A; Tunkieicz, supra note 78, at lB. 296. In re Isiah B., 176 Wis. 2d 639, 653, 500 N.W.2d 637, 643 (1993) (Abrahamson, J., concurring in part and dissenting in part). 297. Id. at 657, 500 N.W.2d at 645 (Abrahamson, J., concurring in part and dissenting in part). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Table 5 - Opinion Pieces (Shirley S. Abrahamson)
Total Number with Any Reference 0 1 0 19 1 0 0 1 1 0 2 CharacteristicsIdentified as Desirable Integrity 1 Judicial Temperament 1 Industry 1 1 Professional Learning Professional Experience/Judicial 1 9 1 1 2 Professional Experience/Practice 1 Impartiality 1 1 Honesty 1 Courage 2 Independence 1 1 Fairness 1 Knowledge of the Law 2 1 Others' Opinions of the Candidate 1 8 1 1 1 Other Matters Age Residence Family First Woman on S. Ct. (or as C.J.) 1 1 1 Prior Candidacies 2 1 Honors/Awards 1 Bar/Lower-Bench Reaction 4 Endorsements/Support 4 1 1 Crime and Criminal Law 5 1 Challenge to Rose's Filing Papers Internal Opposition 1 5 1 1 1 Alleged Sexism of Internal Opponents 1 Internal Support 1 1 Aerobics Dispute 2 Computer Games 1 1 1 Funding by Court 1 Milne Invitation Dispute Administrative Role 1 1 1 1 Campaign Financing Television Ads Local Appearance Use of Campaign Assistants Quotation of Candidate 1 Quotation of Supporter 1 1 1 Unnamed Sources MARQUETTE LAW REVIEW [85:593
Table 6 - Opinion Pieces (Sharren B. Rose)
Total Number with Any Reference 0 0 0 7 1 0 0 0 0 2 CharacteristicsIdentified as Desirable Integrity 1 1 Judicial Temperament 1 Industry Professional Learning Professional Experience/Judicial Professional Experience/Practice 6 2 Impartiality 1 Honesty 2 1 Courage Independence 1 Fairness 4 1 Knowledge of the Law Others' Opinions of the Candidate 5 1 Other Matters Age Residence/Site of Practice 5 1 2 Family 1 Prior Candidacies 1 1 Honors/Awards Bar/Lower-Bench Reaction 2 Endorsements/Support Crime and Criminal Law 5 1 Sex-predator Case 3 Pat-down Case 1 School-locker Case 1 BAPR Dispute 1 Manitowoc Disqualification 1 Campaign Financing 1 Television Ads 4 Local Appearance 1 1 Use of Campaign Assistants 4 Quotation of Candidate 1 Quotation of Supporter Unnamed Sources 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Relatively little comment on these data is necessary or even possible. First, it is clear that voters did not receive much information by way of opinion pieces. Only five of the daily newspapers ran any opinion pieces on either candidate. Further, only three of these newspapers (the Madison and Milwaukee dailies) ran even a single opinion piece referring to Rose, and the only opinion piece in one of them (the Milwaukee paper) simply referred to Rose's being from Green Bay and otherwise discussed Abrahamson. These strike us as significant facts. The general absence of opinion pieces concerning the race tends to demonstrate that newspapers in the state do not generally provide a forum in which individual citizens or even newspaper employees other than editorialists reflect upon and debate the merits and demerits of the various candidates for the Wisconsin Supreme Court, at least at any considerable length.298 Although it by no means disproves the point, it should probably be noted that most Wisconsin newspapers (including even most of the dailies covered in our study) run few opinion pieces generally, and, furthermore, only a portion of the articles actually run concern state or local matters. More typically, newspapers interested in opinion pieces will pick up nationally syndicated columns such as those by pundits from Washington, D.C. (say, a David Broder or George Will). This dearth of locally oriented opinion pieces goes a long way toward explaining the scarcity of references in opinion pieces across the state to the Wisconsin Supreme Court race. Second, it is noteworthy that, even within the opinion pieces that fell within our study, the range of the desirable characteristics touched upon by these opinion writers tended to be small. For example, even the three newspapers that ran opinion pieces referring to Rose (and one of them ran seven such articles) touched upon, in all such articles combined, barely more than one-half of the desirable characteristics besides the three experience and reputation categories. Like most observations deriving from as varied data as ours, this point, too, should not be overstated. In particular, it is true that the opinion pieces in the two Madison dailies collectively referred to twelve of thirteen desirable characteristics in the case of the other candidate (Abrahamson). Even here, however, most desirable characteristics received a small amount of attention.
298. The qualification at the end of the sentence is necessary because we must address the category of letters to the editor before we can reach a definitive conclusion on the matter. See infra Part II.C.4, MARQUETTE LAW REVIEW [85:593
Further, with a single exception (fairness, in Rose's case), only the desirable characteristics of experience and others' opinions of the candidate were touched upon with respect to a single candidate in more than three opinion articles."" These characteristics are what might be termed "low-cost characteristics" from the print media's perspective- by which we mean characteristics to which reference can be made almost incidentally or which can be discussed by the news media without any employee's having to spend any significant amount of time, money, or other resources3 0 Prior judicial experience, for example, is simply a basic biographical fact within easy access of the media, and reputation (also called "others' opinions of the candidate") is a matter that may be touched upon based merely on a phone conversation (or less).f' By contrast, obtaining information based upon which reference may be made to such matters as a candidate's industry, impartiality, honesty, courage, fairness, or even knowledge of the law may be relatively time- consuming (and thus relatively costly), for it is likely that a smaller group of people will be able to provide newspaper personnel with anecdotes or other material bearing upon such traits. This would explain, for example, why knowledge of the law was touched upon in a maximum of two opinion pieces in any newspaper (The Capital Times, with regard to Abrahamson), while prior judicial experience was touched upon in nine such pieces in that same newspaper. 4. Letters to the Editor Letters to the editor constitute a fourth category that we examined to discern the extent and nature of attention to the state supreme court race. The following tables set forth the relevant data concerning the incumbent (Table 7) and the challenger (Table 8).
299. It would even be justifiable to put the category of "others' opinions of the candidate" entirely to the side for the moment, because an opinion piece almost necessarily will itself express an opinion of any candidate it discusses at any length. Thus, one would expect that category to be close in number to the total number of opinion pieces. 300. Cf. supra Part II.C.2 (discussing "low-cost" material in newspaper coverage). 301. See also supra note 299 (setting forth another reason why the category of "others' opinions of the candidate" would have relatively high numbers). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Table 7 - Letters to the Editor (Shirley S. Abrahamson)
Total Number with Any Reference 1 0 4 261 5 10 0 1 3 11 CharacteristicsIdentified as Desirable Integrity 4 1 1 2 2 Judicial Temperament 2 2 1 Industry 1 2 1 1 Professional Learning 1 Professional Experience/Judicial 1 4 20 4 1 3 11 Professional Experience/Practice 1 2 1 1 Impartiality 5 1 1 1 Honesty Courage 1 4 1 2 Independence 1 3 1 2 Fairness 4 1 1 Knowledge of the Law 1 2 2 2 Others' Opinions of the Candidate 1 3 14 4 1 3 8 Other Matters Age 1 Residence Family 1 First Woman on S. Ct. (or as C.J.) Prior Candidacies 1 2 1 Honors/Awards 1 1 Bar/Lower-Bench Reaction 1 1 1 1 1 Endorsements/Support 3 8 1 2 5 Crime and Criminal Law 1 9 1 6 Challenge to Rose's Filing Papers Internal Opposition 1 11 4 1 3 Alleged Sexism of Internal Opponents 1 1 Internal Support Aerobics Dispute 1 3 1 Computer Games 3 2 2 Funding by Court Milne Invitation Dispute 1 1 Administrative Role 2 2 2 Campaign Financing 1 Television Ads Local Appearance Use of Campaign Assistants Quotation of Candidate Quotation of Supporter 1 Unnamed Sources MARQUETTE LAW REVIEW [85:593
Table 8 - Letters to the Editor (Sharren B. Rose)
Total Number with Any Reference 1 0 4 19 0 0 0 0 12 12 CharacteristicsIdentified as Desirable Integrity 6 1 4 Judicial Temperament 2 1 Industry Professional Learning 2 Professional Experience/Judicial Professional Experience/Practice 2 1 2 1 Impartiality 1 Honesty 4 1 Courage 1 Independence Fairness 3 4 Knowledge of the Law 1 1 Others' Opinions of the Candidate 1 2 15 1 8 Other Matters Age Residence/Site of Practice 1 Family Prior Candidacies 1 Honors/Awards Bar/Lower-Bench Reaction 1 2 Endorsements/Support 1 3 1 3 Crime and Criminal Law 1 8 1 6 Sex-predator Case 3 1 4 Pat-down Case 1 2 School-locker Case 1 BAPR Dispute 1 1 Manitowoc Disqualification1 Campaign Financing1 Television Ads 5 1 4 Local Appearance Use of Campaign Assistants 1 1 Quotation of Candidate 1 1 Quotation of Supporter Unnamed Sources 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Several observations suggest themselves. In particular, there is an obvious disparity between the Madison newspapers and those in the rest of the state in terms of the number and nature of letters to the editor concerning the supreme court election. This is most evidently the case with regard to the challenger, Sharren Rose: Table 8 discloses that, outside of Madison, the newspapers in our study published a total of only seven letters to the editor referring to Rose, and these appeared in only three newspapers, whereas the two Madison newspapers published a combined thirty-one such letters. But a disparity exists with regard to Abrahamson as well. The aggregate number of Abrahamson-related letters to the editor in all the non-Madison dailies in our study-viz., fourteen-barely surpasses the Madison newspaper with the smaller number of such letters to the editor (i.e., the Wisconsin State Journal, which ran eleven) and was far outstripped by the twenty-six letters in The Capital Times. Even the non-Madison dailies with the most letters touching upon Abrahamson (the Milwaukee Journal Sentinel and La Crosse Tribune) published fewer than one-half as many such letters as either Madison daily. To some extent, the disparity can be explained by the fact that we have counted as a "letter" the individual, anonymous entries in The Capital Times' "Sound Off" segment that occasionally runs on its editorial page. These are in the nature of letters-in that they are reader comments-but are not letters themselves (rather being based on voicemails) and do not require the same initiative of putting pen to paper as does a letter. But this can serve only as a partial explanation even for The Capital Times and does nothing to explain the high number of letters (relative to non-Madison papers) in the Wisconsin State Journal. Perhaps the rest of the explanation lies in the fact that a Wisconsin Supreme Court race is a "local" race in Madison in a sense that is not true elsewhere in the state, particularly where one of the candidates is a long-serving incumbent and was a resident of Madison even prior to that.' In this regard, it is notable that the letters in these two Madison newspapers made substantial reference to the desirable characteristics-particularly in Abrahamson's case. That is consistent with the testimonial nature of letters that one would expect in a local race."3 The paucity of letters in the Milwaukee Journal Sentinel is
302. See supra text preceding note 61 (summarizing Abrahamson's career prior to her 1976 appointment to the bench). 303. Cf. infra Tables 22-26 (reflecting among other things the types of information touched upon by letters to the editor in local races in La Crosse and Waukesha Counties). MARQUETTE LAW REVIEW [85:593 particularly striking. It is important to recall that this newspaper was in the forefront in terms of news and editorial coverage of the Abrahamson-Rose race.3 4 Yet only a handful of letters to the editor referred to Abrahamson, and not a single letter ran from the beginning of 1999 to Election Day (a span of more than three months) that referred to the challenger Rose. Although the inquiry is not possible based on the data that we have gathered (nor any that we could have gathered, absent access to the Journal Sentinel's files), it would be interesting to know whether this dearth of letters derives from a lack of interest on the part of those writing to the newspaper or instead from an editorial reluctance to run letters referring to the race. 5 Finally, notwithstanding the performance of the Madison newspapers, the conclusion is inescapable that overall the category of letters to the editor did not provide a robust public debate on the merits or demerits of the two candidates. Combined with our observations concerning the low incidence of opinion pieces, this suggests that at least in 1999 there was no widely available, or at least no widely utilized, public forum-in the sense of an opportunity for members of the general public to exchange views in some sort of formalized manner- for debate on the state supreme court race. Perhaps over the coming years the Internet will provide such a forum. 5. Advertisements We also included in our study any advertisements published in the newspapers touching upon either candidate. Table 9 below sets forth our findings as to Shirley Abrahamson. The corresponding data for Sharren Rose require no table, for no advertisements in any of the ten newspapers in our study referred to the challenger.
304. See supra Tables 1-4. 305. If lack of letter-writer interest is the cause, geography may have played a role, as with the Madison newspapers discussed above. Neither Abrahamson nor Rose was from the Milwaukee metropolitan area. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Table 9 - Advertisements (Shirley S. Abraham son)
Total Number with Any Reference 5T 1 I 1 0 0 1 1 0 CharacteristicsIdentified as D esirable Integrity 1 1 1 Judicial Temperament Industry Professional Learning Professional ExperiencelJudicial 1 1 1 Professional Experience/Practice Impartiality 1 1 1 Honesty Courage Independence 1 Fairness Knowledge of the Law Others' Opinions of the Candidate 1 1 1 1 Other Matters Age Residence Family First Woman on S. Ct. (or as C.J.) Prior Candidacies HonorslAwards Bar/Lower-Bench Reaction 1 1 1 Endorsements/Support 1 1 1 1 Crime and Criminal Law 1 1 1 1 Challenge to Rose's Filing Papers Internal Opposition Alleged Sexism of Internal Opponents Internal Support Aerobics Dispute Computer Games Funding by Court Milne Invitation Dispute Administrative Role Campaign Financing Television Ads Local Appearance Use of Campaign Assistants Quotation of Candidate Quotation of Supporter Unnamed Sources MARQUETTE LAW REVIEW [85:593
A few observations are possible. One is that our study uncovered only three advertisements by the candidates in the supreme court race (all run by Abrahamson's campaign).3 These were identical-format advertisements, the one in the La Crosse Tribune being a representative example: across the top, next to a picture of Abrahamson, ran the heading "Justice Shirley Abrahamson Is Known By The Company She Keeps in La Crosse County," and beneath this there appeared a long list of names of Abrahamson supporters in the county.30' The advertisement referred to several of the desirable characteristics (e.g., impartiality) that Abrahamson was said to possess. It made no reference to Abrahamson's challenger, Sharren Rose. The same advertisement ran, mutatis mutandis, in Marathon and Waukesha Counties (in the Wausau Daily Herald and Waukesha Freeman,respectively).? ° The fact that the candidates ran a total number of three advertisements in the ten newspapers in our study strikes us as somewhat curious. It is evident that the candidates generally did not regard the costs associated with preparing and running print advertisements as a worthwhile use of scarce resources. The curiosity arises from the fact that in La Crosse, Marathon, and Waukesha Counties, but not others in our study (though perhaps others falling outside our study), Abrahamson's campaign concluded that these costs were worth bearing. One possible explanation is that these counties provided the best combination of costs (in particular, low advertising rates) and benefits (e.g., exposure to a sizeable number of voters). For example, advertising rates in the Milwaukee and at least one of the Madison daily newspapers are almost certainly the highest of the newspapers in our study, and the other localities in which Abrahamson did not run print advertisements-Columbia, Fond du Lac, and Jefferson Counties-were less populous than La Crosse and Waukesha3 9 Another (not incompatible) hypothesis is that these
306. The advertisement in the Milwaukee Journal Sentinel which is reflected in Table 9 was run by the Milwaukee Police Association and endorsed a number of judicial candidates, including Abrahamson and every incumbent Milwaukee County Circuit Court judge. See Advertisement, MILWAUKEE J. SENTINEL, Apr. 5, 1999, at 5A. 307. Advertisement, LA CROSSE TRIB., Apr. 1, 1999, at A-7 (certain capitalization changed). 308. See Advertisement, WAUSAU DAILY HERALD, Apr. 1, 1999, at 3B; Advertisement, WAUKESHA FREEMAN, Apr. 1, 1999, at 6A. 309. The strength of this cost-benefit hypothesis as a complete explanation may be doubted, as some of the population differentials are quite small. For example, La Crosse County and Marathon County, where advertisements were run, do not have a considerably larger population (107,120 and 125,834, respectively) than Fond du Lac County (97,296), 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS advertisements were run in counties where Abrahamson had some particularly energetic local supporter in charge of gathering a list of endorsers. Finally, with regard to the advertisements, it is noteworthy that even these materials did not address a majority of the desirable characteristics or provide much beyond a list of nouns or adjectives (e.g., "impartiality" or "impartial") denoting some character traits the candidate Was said to possess. The unedited (by the newspapers) nature of these advertisements thus was not accompanied by some novel approach of the candidate to communicating information.310
IRl. COUNTY RACES FOR THE CIRCUIT COURT In addition to the Abrahamson-Rose supreme court race, there were ten other contested judicial elections in Wisconsin on April 6, 1999. All of these were races for the circuit court (the state's trial court of general jurisdiction).311 These ten races constituted roughly 27% of the thirty- seven circuit court seats up for election in the state: twenty-five sitting judges (filling approximately 68% of the judgeships up for election) faced no opponent, and another two candidates (approximately 5%) ran
where there were no advertisements; indeed, Fond du Lac ranks fourteenth among Wisconsin's counties in terms of population, close to both Marathon (tenth) and to La Crosse (thirteenth). See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733 (2001). (Throughout this Article, we will use population figures from the 2000 census.) On the other hand, there is undoubtedly some general explanatory force to the cost-benefit hypothesis, as Abrahamson included an advertisement in a weekly Milwaukee newspaper (not reflected in the table because it is not part of this component of the study), which has lower advertising rates than the Milwaukee JournalSentinel and further is popular in political circles that would tend to be especially favorable to Abrahamson. See Advertisement, SHEPHERD EXPRESS, Apr. 1, 1999, at 8. 310. Editorial cartoons are the only materials in the newspapers that did not fall within any of our five categories of news articles, editorials, opinion pieces, letters to the editor, and advertisements. There were five such cartoons in our study: identical ones in the Fond du Lac Reporter and Wisconsin State Journal comparing the Wisconsin Supreme Court to the Jerry Springer television show (with Justices Bradley and Prosser sitting on the sidelines of a brawl between Chief Justice Abrahamson and Justices Bablitch, Crooks, Steinmetz, and Wilcox); one in the Wausau Daily Herald depicting Abrahamson with a bull's-eye target from Bablitch, Crooks, and Wilcox; one in the Milwaukee JournalSentinel depicting Abrahamson's four opposing colleagues complaining about her; and one in The Capital Times depicting Rose as growing out of a stem with the names of Abrahamson's four colleagues on it. 311. The four elections in 1999 for various court of appeals judgeships all involved candidates who ran unopposed, see STATE OF WISCONSIN, 1999-2000 BLUE BOOK 852-53 (1999); cf. supra note 25 and accompanying text (noting that court of appeals races tend to be uncontested), and these elections thus are not treated in this Article, see supra text following note 35. Three of the four candidates were incumbents. MARQUETTE LAW REVIEW [85:593 unopposed for open seats.312 Of these ten races, six different counties were the sites of one race each, while a seventh county (Milwaukee) saw four separate races. This Part discusses all ten contested races for the circuit court. We do so first by discussing in narrative fashion the newspaper coverage of the various campaigns. Following each such discussion, we include tables providing another means of assessing the coverage. In the final section of this Part, we provide some discussion of those tables. We discuss the elections in ascending order of the counties' size. A. Lincoln County Lincoln County is in the southern part of the so-called North Woods section of Wisconsin. It lies just north of Marathon County, whose, primary city, Wausau, is itself 140 miles north of Madison. Of Wisconsin's seventy-two counties, Lincoln ranks forty-second with a population of 29,641; about one-half of the population lives in the cities of Merrill (pop. 10,146) and Tomahawk (pop. 3770).313 No daily newspaper is published in Lincoln County, but the race for a newly created judgeship there received coverage from two weeklies in the county, the Merrill Foto News and the Tomahawk Leader. The race also received some attention in the Wausau Daily Herald."' Almost all the material in these newspapers concerning the race consisted of news articles or advertisements. This narrative will draw from the Merrill Foto News and Tomahawk Leader.315
312. Only three of the ten contests involved an incumbent. See infra Part III.G.1, 3-4. This is not surprising: The existence of a contest in circuit court elections tends to be closely correlated to whether an incumbent is running for re-election. For example, between 1990 and 1998, there were 325 circuit court elections around the state involving an incumbent, and the incumbent faced no opposition in 282 (or 86.77%) of those elections. See FINAL REPORT, supra note 25, at 20. By contrast, of the fifty-six elections without incumbents during this same time period, forty-two (or 75%) were contested. See id. 313. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733,740-41,758 (2001). 314. The Wausau Daily Herald seeks to cover surrounding counties to some extent, including Lincoln County, and published several news articles referring to the race. In particular, this daily ran an article in January relating basic information about the three Lincoln County judicial candidates and, shortly before both the primary and general elections, an article providing more information about the race and the candidates. See Pat Peckham, Three Candidates to Face Off in Lincoln County Judge Primary Tuesday, WAUSAU DAILY HERALD, Feb. 14, 1999, at 3A; Amber Paluch, Two Attorneys Vie for New Judge Position in Lincoln County, WAUSAU DAILY HERALD, Apr. 2, 1999, at 3A. No relevant editorials, opinion pieces, letters to the editor, or advertisements appeared in the Wausau paper. 315. Because the nature of the information in the candidates' advertisements can generally be gleaned from the tables following the narratives at the end of each section (in 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Coverage was sparse in January. On January 5, the Tomahawk Leader notified its readers that three individuals had filed candidacy papers, thus necessitating a February primary to reduce the field to two for the April election. The Leader reported that "Merrill City Attorney Jim Godlewski, Lincoln County Assistant Corporation Counsel Don Dunphy and Merrill attorney Glenn Hartley have all thrown their hats into the ring. 316 The article included brief biographical summaries discussing the candidates' educational and practice backgrounds. The only other reporting on the race in either newspaper during January was a one-paragraph description of the race, also in the Tomahawk paper17 On February 2, the Leader published a small announcement of a candidate forum scheduled for February 11.318 The Merrill Foto News also ran an announcement, in the form of a graphic, on February 339 Both weeklies printed small reminders a day or two before the forum."2 Both newspapers ran a substantial article on the race the week before the February 16, 1999 primary.321 On February 9, the Tomahawk Leader printed a large article profiling the three candidates. For each, it provided a paragraph of biographical and similar information and printed the candidates' verbatim answers to the following questions: 1. How are you qualified to serve as Lincoln County Circuit Court judge? 2. What do you see as some of the key issues facing Lincoln County's judicial system? For example, how will Truth in Sentencing legislation or jail overcrowding impact the county's circuit court judges? 3. If elected, how would jobs of the 32 you work to uphold the integrity of the office? Dunphy used his answers to review his legal experience and educational background3 ' He particularly focused on his experience in this instance, see infra Tables 10-13), the narratives of the circuit court races tend not to discuss the advertisements. 316. Three Vie for County's Second Bench, TOMAHAWK LEADER, Jan. 5,1999, § 1, at 1. 317. See Collin Lueck, CandidatesSet to Run for April Election, TOMAHAWK LEADER, Jan. 12, 1999, § 1, at 3. 318. See Judge Forum Slated Feb. 11, TOMAHAWK LEADER, Feb. 2,1999, § 1, at 1. 319. See Lincoln County CircuitJudge CandidateForum, MERRILL FOTO NEWS,Feb. 3, 1999, at 2. 320. See At a Glance ...Judge Forum, TOMAHAWK LEADER, Feb. 9, 1999, § 1, at 1; This Week, MERRILL FOTO NEWS,Feb. 10, 1999, at 1. 321. In this post-Bush v. Gore world, it should probably be noted that the Tomahawk Leader published an official notice from the Lincoln County Clerk containing a sample ballot. See TOMAHAWK LEADER, Feb. 9,1999, § 1, at 15. A similar notice was published before the general election. See TOMAHAWK LEADER, Mar. 30,1999, § 1, at 14. 322. Three Seek Branch II Bench, TOMAHAWK LEADER, Feb. 9,1999, § 1, at 4. 323. See id. MARQUETTE LAW REVIEW [85:593 representing "'the public'" as assistant corporation counsel for the county.3 24 In response to the third question, Dunphy focused on the ethical duties of both lawyers and judges and said that he was "'fastidious about staying within the rules."' 325 Godlewski, the Merrill city attorney, contended that voters should consider his "'comprehensive experience"' and his "'vision for the new court."',, Godlewski also stated that if elected judge he would work to uphold the integrity of the office "'[b]y applying the same values I relied on to promote more open and honest local government as City Attorney: honesty, impartiality and independence.' ,32 Hartley, a private practitioner, asserted that his varied legal 3 experience made him qualified for the bench. " He indicated that he would "'work hard at maintaining the integrity of the Court by providing fair, sincere and impartial justice in accord with our laws.' 329 On February 10, the Foto News also published an article that profiled the candidates.33' The Merrill weekly posed the following questions to the candidates: "What is your resume? Why do you want to be judge? Given your background, how will you remain impartial? and Is the role of justice to punish, protect society, or to deter crime?"' The newspaper summarized in traditional news article format the candidates' responses to all the questions.332 On February 23, the Leader reported the results of the primary held the week before, on February 16. 3 Godlewski fell out of the race, and 3 Hartley and Dunphy remained. 4 A day later the Foto News printed a small article on the primary, including a table that disseminated the results by voting districts.335 Both newspapers thus reported the results a
324. Id. 325. Id. 326. Id. 327. Id. 328. See id. 329. Id. 330. See Circuit Judge Primary for Lincoln County's New Branch H Court Tuesday, MERRILL FOTO NEWS, Feb. 10, 1999, at 7. 331. Id 332. See id 333. See Hartley, Dunphy Win Spot on April 6 Election Ballot, TOMAHAWK LEADER, Feb. 23, 1999, § 1, at 1. 334. Hartley finished on top with 1248 votes (46.24%), while Dunphy barely defeated Godlewski for the other general-election ballot slot, prevailing by 741 votes (27.45%) to 710 votes (26.31%). See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 335. See Hartley, Dunphy Make April Ballot, MERRILL FOTO NEWS, Feb. 24, 1999, at 1. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS week after the primary, presumably because such reporting was not possible in time for the issues of the Leader on February 16 or the Foto News on February 17. Subsequent reporting by the two weekly newspapers initially focused on informing readers of scheduled events. Thus, on March 16, the Tomahawk Leader published a four-sentence article publicizing a March 24 candidate forum.3 6 The short piece also sought questions from readers for the candidates to be asked at the forum. Similarly, on March 24, the Merrill Foto News published an article announcing that a local radio station would broadcast the candidate forum to be held that night. 37 The Foto News did not cover the forum in its last issue of March338 On March 30, the Tomahawk Leader issued a front-page report on the forum and wrote that "[e]xperience [was] the main campaign issue for both candidates.039 The Leader reported that "the judicial candidates were asked about their qualifications, views on sentencing and divorce mediation," and the newspaper related the candidates' answers at some length.' On March 30, the Tomahawk Leader also printed its second profile of the candidates, but the first since the primary.?4 The Leader asked the candidates the following two questions: "1. How are you qualified for the position?" and "2. What do you see as the key issues facing Lincoln County's court system? "3 2 The profile of Dunphy, the county attorney, included a short biography and his answers to the two questions. 43 Dunphy listed his academic standing and varied legal experience in answering the first question.' Dunphy also averred that his allegiance to the public as a
336. See Seek Questionsfor CandidateForum, TOMAHAWK LEADER, Mar. 16,1999, § 1, at 2. 337. See Lisa Standing, To Hear the Candidates, Listen to WJJQ Tonight, MERRILL FOTO NEWS, Mar. 24,1999, at 1. 338. The Merrill weekly instead published an article with comments from both candidates on plans for a new county jail and justice center, whose size and particular location in Merrill (the county seat) were matters of considerable controversy (and the subject of a ballot referendum on the same April 6 ballot as the judicial race). See Lisa Standing, Judicial CandidatesComment on Jail,MERRILLFOTO NEWS, Mar. 31,1999, at 4. 339. Collin Lueck, Tomahawk Forum Probes the Issues, TOMAHAWK LEADER, Mar. 30, 1999, § 1, at 1. 340. Id. 341. See CandidateProfiles, TOMAHAWK LEADER, Mar. 30,1999, § 1, at 6. 342. CandidateProfile Questions, TOMAHAWK LEADER, Mar. 30, 1999, § 1, at 7. 343. See CandidateProfiles, supra note 341, § 1, at 6. 344. See id. Specifically, Dunphy noted that he had graduated in the top ten percent of his Marquette University Law School class and detailed his five years of private practice and MARQUETTE LAW REVIEW [85:593 government attorney would translate into impartiality as a judge. In the section on important issues, Dunphy discussed domestic violence, violence at Lincoln Hills school (a state juvenile correctional institution), and truancy among public school students.34 For Hartley's part, the private practitioner pointed to his legal experience as the reason he would be able to be a good judge.34 Hartley contended that a circuit judge must be a "generalist.' ,,"7 He listed the following issues when answering the second question posed by the Leader (concerning key issues for Lincoln County's court system): jail overcrowding, punishment of criminals, technology in the court system, truancy, and the integrity of the court.348 Also on March 30, the Tomahawk Leader endorsed Hartley on its editorial page. The Leader wrote that "Ilflor once we have a cleanly run campaign that will feature a competent representative on the bench no matter which candidate wins."'34 The Leader endorsed Hartley over Dunphy "based on [Hartley's] broader range of experience."" 3 The Merrill Foto News did not endorse a candidate.35' Hartley defeated Dunphy in the April 6 election. The private practitioner outpolled the county's assistant corporation counsel by 4221 votes (62.36%) to 2548 votes (37.64%).352 Tables 10 through 13 summarize the newspapers' pre-election coverage of the candidates in Lincoln County.353
eight subsequent years in the Lincoln County Corporation Counsel's Office. 345. See id. 346. See id. 347. Id. 348. See id. 349. Editorial, Edge Goes to Hartley for New Circuit Judge, TOMAHAVK LEADER, Mar. 30, 1999, § 1, at 2. 350. Id. 351. Indeed, the Foto News did not run any editorials concerning the race. 352. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 353. The tables include only information about candidates that was reported before their elimination from the race. For example, Table 12 does not include information about the primary results because, by the time of such reporting, Godlewski (the subject of Table 12) had been eliminated from the race. To have included such information would not have comported with the study's purpose of assessing the amount and nature of information available before judicial elections. Similar reasoning underlies our not including in the tables instances in which a candidate expressed "thanks" to his or her supporters after being eliminated from a race. Finally, the tables list each candidate's name as it appears in the Wisconsin Elections Board's official results, just as the narratives use the names as set forth in the articles upon which we draw. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Tomahawk Leader Merrill Foto News
Table 10- Lincoln County (Glenn H. Hartley)
Total Number with Any Reference 10 1 1 1 13 5 0 0 0T 11 CharacteristicsIdentified as Desirable Integrity 2 1 2 2 Judicial Temperament Industry Professional Learning 3 1 Professional Experience/Judicial 3 1 7 1 6 Professional Experience/Practice 7 1 9 3 8 Impartiality 1 1 1 Honesty 2 2 Courage Independence 1 Fairness 2 1 1 Knowledge of the Law 1 5 1 4 Others' Opinions of the Candidate 2 1 2 4 OtherMatters Age 2 Local Residence/Site of Practice 6 5 1 4 Veteran/Army Reserve Family 2 5 4 Prior Candidacies Honors/Awards 2 Community Activity 2 4 1 2 Mention as Candidate (Only) 3 1 2 2 Bar/Bench Reaction Endorsements/Support 1 Primary Results 2 1 1 Crime and Criminal Law 4 1 2 2 2 Campaign Financing Thanks Quotation of Candidate 3 6 2 5 MARQUETTE LAW REVIEW [85:593
Tomahawk Leader Merrill Foto News ......
Table 11 - Lincoln County (Donald J. Dunphy)
Total Number with Any Reference 1 1 1 1 115 5 0 0 0 _1 CharacteristicsIdentified as Desirable Integrity 1 1 Judicial Temperament Industry 9 7 Professional Learning 3 9 1 5 Professional Experience/Judicial Professional Experience/Practice 7 1 11 3 9 Impartiality 2 9 1 3 Honesty Courage Independence 9 3 Fairness 2 13 1 11 Knowledge of the Law 9 3 Others' Opinions of the Candidate 2 1 4 Other Matters Age 2 2 2 Local Residence/Site of Practice 3 11 9 Veteran/Army Reserve 2 11 5 Family 2 11 9 Prior Candidacies Honors/Awards Community Activity 3 11 9 Mention as Candidate (Only) 3 1 2 2 Bar/Bench Reaction Endorsements/Support Primary Results 2 1 1 Crime and Criminal Law 3 11 2 9 Campaign Financing Thanks Quotation of Candidate 3 2 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Tomahawk Leader MerrillFoto News
Table 12- Lincoln County (James G. Godlewski)
Total Number with Any Reference 6 0]0 01 6 12 0 0 0 17 CharacteristicsIdentified as Desirable Integrity 1 Judicial Temperament Industry 1 Professional Learning 1 4 1 4 Professional Experience/Judicial Professional Experience/Practice 3 4 1 4 Impartiality 1 Honesty 1 5 7 Courage Independence 1 Fairness 1 5 7 Knowledge of the Law Others' Opinions of the Candidate Other Matters Age 1 Local Residence/Site of Practice 3 4 1 4 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards Community Activity 2 4 1 4 Mention as Candidate (Only) 3 1 1 Bar/Bench Reaction Endorsements/Support Primary Results Crime and Criminal Law 1 5 1 7 Campaign Financing Thanks Quotation of Candidate 1 1 MARQUETTE LAW REVIEW [85:593
r I
Table 13 - Lincoln County Glenn H. Donald J. James G. Wausau Daily Herald Hartley Dunphy News Articles Godlewski
Total Number with Any Reference 4 4 2 CharacteristicsIdentified as Desirable Integrity Judicial Temperament Industry Professional Learning 3 3 2 Professional Experience/Judicial Professional Experience/Practice 4 4 2 Impartiality Honesty Courage Independence 1 Fairness 1 Knowledge of the Law 1 1 Others' Opinions of the Candidate 2 1 Other Matters Age 2 2 1 Local Residence/Site of Practice 4 3 2 Veteran/Army Reserve Family 2 2 1 Prior Candidacies Honors/Awards Community Activity Mention as Candidate (Only) Bar/Bench Reaction Endorsements/Support Primary Results 1 1 Crime and Criminal Law 1 1 1 Campaign Financing Thanks Quotation of Candidate 3 2 1 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 683
B. Columbia County Columbia County, ranking twenty-eighth among Wisconsin's seventy-two counties with a population of 52,468, stands immediately north of Dane County-the former's primary city, Portage (pop. 9728), is only thirty-seven miles from Madison.3 In early 1999 a judicial vacancy opened in Branch 2 of the Columbia County Circuit Court, a result of the retirement of Judge Lewis Charles.355 The Daily Register of Portage, which is Columbia County's only indigenous daily publication (and which we will occasionally call the "Portage Daily Register"), began covering the contest promptly when candidates registered to enter the race.356 Specifically, on January 7 and 8, the Daily Register printed small front-page articles noting that six people had filed election papers: Portage attorneys James Miller and Gary Roets, Lodi attorney Roger Klopp, Columbia County Court Commissioner Ann Krunmmel, Columbia County Corporation Counsel Don Peterson, and public defender Tom Steinman.3" Less than a week later, the Daily Register's front page reported news of a candidate forum.35 8 The article included quotations from all six candidates and reported that two central issues-prison overcrowding and a case backlog-" dominate[d] [the] forum." 9 The piece also informed readers of each candidate's occupation." On January 20, the PortageDaily Register published a comparatively large article on its front page that discussed the job satisfaction of then- current judges in Columbia County.36' Judge Lewis Charles, whose retirement created the vacancy on the bench in the county, indicated that he had felt very little satisfaction in his twenty-five years as a
354. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733,741,753 (2001). 355. See Steve Helmer, Life on the Bench, PORTAGE DAILY REG., Jan. 20, 1999, at lA. 356. The Wisconsin State Journal, printed in adjacent Dane County, did not cover the Columbia County judicial race, save one article in early February that briefly examined the candidates. See Richard W. Jaeger, Columbia Judge Race Crowded, WIS. ST. J.,Feb. 7, 1999, at 3C. The Capital Times of Madison provided no coverage. 357. See Judge CandidatesMust Still File Forms, PORTAGE DAILY REG., Jan. 7, 1999, at 1; Six Judge Candidates,PORTAGE DAILY REG., Jan. 8,1999, at lA. 358. See Suzanne Yenchesky, Prison Overcrowding, Case Backlog Dominate Judge CandidateForum, PORTAGE DAILY REG., Jan. 12,1999, at 1. 359. Id. 360. See id. Several days later, the Portage daily printed a letter to the editor from candidate Roger Klopp, clarifying his solution to prison overcrowding as reported by the Daily Register on January 12. See Roger Klopp, Letter to the Editor, Judge Candidate Clarifieshis Position,PORTAGE DAILY REG., Jan. 15,1999, at 4A. 361. See Helmer, supranote 355, at IA. MARQUETTE LAW REVIEW [85:593
62 judge. Judge Charles said that he had "'always wanted to help363 people out,"' but as a judge he did not "'think [he] ever felt [he] did.' On the following day, the Daily Register provided coverage of a second candidate forum.3" Two of the candidates could not attend the 36 forum. ' The Daily Register afforded ample space for the four attending candidates to express their views on what it reported were the two dominant issues of the forum-the death penalty and a purported backlog of cases in the county.66 In the next day's issue of the Daily Register, the paper also printed a picture of the four candidates at the forum. 67 On February 8, the Portage daily printed its first installment in a six- part series profiling the candidates. The same reporter wrote all of the candidate profiles, which ran on the paper's front page over the course of six days. Columbia County Corporation Counsel Don Peterson was the subject of the first profile.368 The Peterson profile focused on the candidate's experience as counsel for the county and the diversity of cases that the position afforded him.369 In addition, Peterson defended his ability to act as a judge for the people of Columbia County while he himself lived outside of the county.370 Peterson also pointed to his fairness and common sense as reasons he would function well as a judge.371 On February 9, the Daily Register examined candidate Thomas computerSteinman." technologySteiuman, asa statea means public to defender, ensure thatpointed cases to progressedthe use of
362. See id. 363. Id. 364. See Steve Helmer, Death Penalty, Case Backlog Key Race for Circuit Judge, PORTAGE DAILY REG., Jan. 21, 1999, at 1. 365. See id. 366. See id. There was some disagreement concerning the nature or extent of this backlog, with one candidate (Klopp) maintaining that he personally had about sixty cases pending from the early 1990s and even earlier which appeared to be on hold in the local court system and the three other candidates at the forum being reported to view the problem more as simply a crowded docket. See id.; Yenchesky, supra note 358, at 1. 367. See Judge Candidates,PORTAGE DAILY REG., Jan. 22, 1999, at 3A. 368. See Steve Helmer, Judge Candidate Points to Columbia County Public Service Experience, PORTAGE DAILY REG., Feb. 8,1999, at 1. 369. See id. 370. See id. 371. See id. 372. See Steve Helmer, Use of Technology Keys Campaign for Judge Candidate, PORTAGE DAILY REG., Feb. 9,1999, at 1. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS appropriately on the court's docketY3 Like Peterson a day earlier, Steinman defended his residency outside the county, though conceding that "'[s]ome people will base their vote entirely on that.'- 374 The candidate also said that his position as a criminal defense attorney did not mean that he necessarily had a "liberal agenda."375 The newspaper further reported Steinman as saying that "people should vote6 for him because of his 'three Es,' experience, efficiency and equality."3 The third part of the Portage Daily Register's series profiled candidate Gary Roets, who had been defeated in Columbia County judicial elections in 1979 and 1980.37 Roets stated that his legal experience and his reputation for fairness, honesty, and common sense would help him in his election bid*38 Roets expressed regret that a broken leg had limited the type of campaigning he could do, including having to miss a candidate forum held the day after his injury.39 Roets also suggested that "most people, unless they personally know all of the candidates, will be voting more on their instincts rather than their educated opinion.310 The next day's Daily Register outlined the candidacy of Roger Klopp. The Klopp piece focused on the contestant's desire "to improve on the efficiency and time it takes to process cases."38' Klopp asserted that his experience in a variety of different practice areas, especially criminal law, would make him a good judge.3" The candidate also contended that his farm background and family would "bring a real-life perspective to the courtroom. " 3 Last, the article indicated that Klopp wanted voters to "consider his strength of character, his demeanor and his desire to bring fairness to the courtroom.314 James Miller, the ultimate victor in the race, was the penultimate candidate examined in the Portage Daily Register's series. The paper
373. See id. 374. Id. 375. Id. 376. Id. 377. See Steve Helmer, Candidate Counts on Reputationfor Fairness,PORTAGE DAILY REG., Feb. 10,1999, at 1A. 378. See id. 379. See id. 380. Id. 381. Steve Helmer, Efficiency in Processing Cases Goal of Judge Candidate, PORTAGE DAILY REG., Feb. 11, 1999, at 1. 382. See id. 383. Id. 384. Id. MARQUETTE LAW REVIEW [85:593 drew heavily on Miller's experience, noting that the candidate "pointed out his service as an attorney for nearly three decades in a variety of areas."3 Miller frankly discussed his comparative inexperience with criminal law, but suggested that the citizens whom he had met in his campaign tended to focus on the civil side of the court system. Although the news article stated that Miller was "hop[ing] people wouldn't be comparing him too much to his father, who served as Columbia County District Attorney and Mayor of Portage," Miller allowed that "he believed his background and ties to the community were very important things for people to consider when voting for judge."3'86 Miller also pointed to his "'ability to be fair and use good judgment"' as "'traits which would make [him] a good judge.'37 In its last installment of candidate profiles, the Daily Register explored the candidacy of Ann Krummel, the court commissioner in the county.3" Krummel, daughter of former Wisconsin Court of Appeals Judge Paul Gartzke, argued that voters should support her because of her ability to control a courtroom.89 The lone woman in the race also defended her lack of experience in criminal matters by pointing to her father's dearth of criminal law exposure before his judicial career.3" Krummel indicated that an ability to run a courtroom mattered more than experience in criminal cases.391 The article also noted endorsements of Krummel by Wisconsin Supreme Court Justice William Bablitch and the Columbia County sheriff.3 On the same day that it concluded its profiling of the candidates, the Daily Register also printed short biographies of each candidate.393 The
385. Steve Helmer, Candidate Talks of Work Ethic, Experience and Valentines, PORTAGE DAILY REG., Feb. 12, 1999, at 1A. 386. Id. 387. Id. 388. See Steve Helmer, Candidate Cites Experience Within County Court System, PORTAGE DAILY REG., Feb. 13, 1999, at 1A. Wisconsin law permits the chief judge of each administrative district (see supra text accompanying notes 15-17 (explaining organizational structure of Wisconsin circuit court system)) to appoint attorneys as court commissioners to handle, in the first instance, such matters as presiding over initial appearances in criminal cases, issuing subpoenas, and undertaking a variety of other judicial functions. See Wis. STAT. § 757.69 (1999-2000); see also WIS. SUP. CT. R. 75.02. In larger counties, the office of court commissioner can be a full-time undertaking. See Wis. STAT. § 757.68 (1999-2000). 389. See Helmer, supra note 388, at 1A. 390. See id. 391. See id. 392. See id. 393. See Circuit Court Branch II Judge Candidates, PORTAGE DAILY REG., Feb. 13, 1999, at 3A. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS biographies included each candidate's age, hometown, family status, and previous legal experience, as well as a direct quotation from each candidate on the "[b]iggest problems the county court system currently faces" and a direct quotation suggesting4 why voters should cast their ballots in favor of the candidate.1 On the day after the primary, the Portage Daily Register placed an article announcing the survivors of the primary at the top of its front page."9 Columbia County voters selected Krummel and Miller to advance to the April 6 election. Miller finished with 1680 votes while Krummel received 1212 votes; Roger Klopp finished third in the primary and immediately endorsed Miller for the open seat on the bench."6 After thus announcing the primary results on February 17, Portage's daily newspaper did not print another article addressing the judicial race until April 1.39 On April 1, the Daily Register went with a lead article on its front page about campaigning by Krummel and Miller.398 The article briefly examined the competitors' legal experience while also reporting the endorsements each had received. Krummel contended that her experience as court commissioner "[had] prepared her for being a judge because it [had] put her in [a] decision-making role. "4 Miller insisted that his twenty-eight years of experience as a lawyer made him the better candidate.'01 The Portage daily also reported that in answering questionnaires before the primary, Miller stated that the caseload in the county was an important issue in the race.' Krummel, for her part, was reported as indicating that "the challenge facing the court wasn't the number of cases but the need for an evaluation of the
394. Id. 395. See Steve Helmer, Krummel, Miller Rise to the Top, PORTAGE DAILY REG., Feb. 17,1999, at 1A. 396. See iL; STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). Miller's 1680 votes constituted 37.18% of the 4519 votes cast, and Krummel's 1212 votes represented 26.82%. The other candidates received votes as follows: Klopp had 1077 votes (23.83%), Roets 358 (7.92%), Steinman 109 (2.41%), and Peterson 83 (1.84%). See id. 397. The Daily Register did publish one letter to the editor that stressed the difficulty of choosing a judge. See Timothy Henney, Letter to the Editor, Wiegh [sic] Fairness When Choosing a Judge Candidate, PORTAGE DAILY REG., Mar. 12, 1999, at 4A (arguing that fairness ought to matter most to voters when voting for a judge). 398. See Steve Helmer, Judge Candidates on Election Trail, PORTAGE DAILY REG., Apr. 1, 1999, at 1. 399. See id. 400. Id. 401. See id. 402. See id. MARQUETTE LAW REVIEW [85:593 court system and its strengths and weaknesses. "4 On April 2, the Daily Register printed two letters from citizens concerned with the race. One letter urged a vote for Krunimmel, while the other merely urged citizens to visit the polls on Election Day to vote.4° On April 3, the Daily Register endorsed Miller for the circuit judgeship4 5 The editorial noted that "[v]oting for a judge poses a unique problem for voters. '"' The endorsement piece reasoned thus: "The office has an aura of mystery about it-few people understand the day-to-day challenges our judiciary face. Yet dispensing justice is one of the more profound charges we can invest in an individual."4W As its reason for tabbing Miller, the Register focused on Miller's extensive experience in both civil and criminal cases, as well as his previous term as a family court commissioner.' The editorial expressed appreciation for "Krummel's positive campaign and her spirit of public service."m On the day after the election, April 7, the Portage Daily Register reported that Miller had won a "nail-biter" of an election over Krummel.41° Miller received 4848 votes (50.91%) compared to Krummel's 4674 (49.09%).411 Tables 14 through 16 below report the extent to which the Portage Daily Register reported particular types of information about each of the six candidates. 2
403. Id. 404. See Monica Cook, Letter to the Editor, Krummel Has the Most JudicialExperience, PORTAGE DAILY REG., Apr. 2, 1999, at 4A; Janet Van Epps, Letter to the Editor, Consider Judge Candidates Carefully, PORTAGE DAILY REG., Apr. 2, 1999, at 4A. 405. See Editorial, Tierny, Miller the Register's Ghoices, PORTAGE DAILY REG., Apr. 3, 1999, at 4A (endorsing both a mayoral and a judicial candidate). 406. Id. 407. Id. 408. See id. 409. Id. 410. Steve Helmer, Miller Wins Judge Seat in Nail-Biter, PORTAGE DAILY REG., Apr. 7, 1999, at 1. 411. See id.; STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 412. In both this and other races, we included references to experience as a court commissioner, see supra note 388, within the category of "professional experience/judicial." We did the same with references to experience as an arbitrator. See supra Table 10. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
James 0. Miller Ann C. Krummel
Table 14- Columbia County PortageDaily Register
Total Number with Any Reference 9 1 0 2 1 j 10 2 2 CharacteristicsIdentified as Desirable Integrity 1 2 Judicial Temperament 1 2 Industry 1 3 2 Professional Learning Professional Experience/Judicial 1 1 1 5 10 1 1 2 Professional Experience/Practice 9 1 1 6 1 2 Impartiality Honesty Courage Independence 1 Fairness 1 3 1 Knowledge of the Law 1 Others' Opinions of the Candidate 3 1 3 1 2 Other Matters Age 3 2 Local Residence/Site of Practice 9 1 4 Veteran/Army Reserve 1 2 Family 3 3 Prior Candidacies Honors/Awards Community Activity 2 3 Mention as Candidate (Only) 1 1 Bar/Bench Reaction 3 2 2 Endorsements/Support 3 1 2 1 2 Primary Results 1 1 Crime and Criminal Law 3 1 5 2 Campaign Financing IThanks 1 1 Quotation of Candidate 4 6 MARQUETTE LAW REVIEW [85:593
Roger L Klopp Gary Roets ......
Table 15- Columbia County PortageDaily Register
Total Number with Any Reference 8 0 0 1 2 7[1 0 0 o0 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 2 2 Industry 2 Professional Learning Professional Experience/Judicial Professional Experience/Practice 8 2 7 Impartiality Honesty 1 1 Courage Independence Fairness 2 2 2 Knowledge of the Law Others' Opinions of the Candidate 1 Other Matters Age 2 2 Local Residence/Site of Practice 7 7 Veteran/Army Reserve Family 2 1 1 Prior Candidacies 1 Honors/Awards Community Activity Mention as Candidate (Only) Bar/Bench Reaction Endorsements/Support Primary Results Crime and Criminal Law 4 1 1 2 Campaign Financing Thanks Quotation of Candidate 4 1 1 2 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Thomas L. Steinman Don J. Peterson
Table 16- Columbia County PortageDaily Register
Total Number with Any Reference 8 0 1j 0 2 8 j 0 0u CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 Industry 1 2 1 Professional Learning Professional Experience/Judicial Professional Experience/Practice 8 2 8 Impartiality Honesty Courage Independence Fairness 1 2 2 Knowledge of the Law 2 Others' Opinions of the Candidate 1 Other Matters Age 2 1 Local Residence/Site of Practice 2 2 Veteran/Army Reserve Family 1 1 Prior Candidacies Honors/Awards Community Activity Mention as Candidate (Only) Bar/Bench Reaction Endorsements/Support 1 Primary Results Crime and Criminal Law 8 1 12 31 Campaign Financing Thanks Quotation of Candidate 4 2 4 MARQUETTE LAW REVIEW [85:593
C. Jefferson County Jefferson County lies just east of Dane County and the state capital, Madison, and just west of Waukesha County, which itself forms the western border of Milwaukee County. With a population of 74,021, Jefferson County is twenty-first among the state's seventy-two counties in population.43 Its largest municipalities are the City of Watertown (pop. 13,535) and Fort Atkinson (pop. 11,621). 4' 4 Three candidates entered the race to serve in the newly created Branch 4 of the Jefferson County Circuit Court.415 The county's two daily newspapers, the Daily Jefferson County Union (published in Fort Atkinson) and the Watertown Daily Times, each began coverage of the race on January 6 with a front-page announcement of the candidates certified by the state elections board. Both publications reported that the aspirants were John Fiske, a criminal defense attorney, Tom Levi, a
general practice lawyer, and Randy Koschnick,, • 416 supervising attorney of the Jefferson County Public Defender's Office. It was not until February 8, eight days before the primary election, that the Daily Jefferson County Union and the Watertown Daily Times printed their first significant articles on the specifics of the race and candidates. 417 The Watertown Daily Times article announced that the first candidate forum in the race was to be held at a local pie shop. 18 The legalDaily •Times 411 devoted two to three paragraphs to each candidate's legal experience. On the same day, the Union published a substantial article that did not publicize the forum, but instead profiled the candidates. 420 In addition, the Union explained the creation of the new judgeship and analyzed also reported that it wouldthe publish rising caseloadan article in on the each county.4" candidate The over Union the
413. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733 (2001). 414. See id. at 756-57. A smaller portion of the City of Watertown lies across Jefferson County's northern border, in Dodge County. 415. See Ryan Whisner, Three Attorneys on Ballot for New County Judgeship, DAILY JEFFERSON COUNTY UNION, Feb. 8, 1999, at 1 (detailing the history of the legislature's 1998 creation of a new judgeship in Jefferson County). 416. See Candidates Toss Hats in the Ring, DAILY JEFFERSON COUNTY UNION, Jan. 6, 1999, at 1; 3 File to Run for Judge, WATERTOWN DAILY TIMES, Jan. 6,1999, § 1, at 1. 417. See Whisner, supra note 415, at 1; Steve Sharp, Judge CandidateForum Is Tuesday, WATERTOWN DAILY TIMES, Feb. 8,1999, § 1, at 1. 418. See Sharp, supra note 417, § 1, at 1. 419. See id. 420. See Whisner, supra note 415, at 1. 421. See id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS succeeding three days." In the next day's paper, the Watertown Daily Times furnished coverage of the previous day's candidate forum.42 In the Daily Times piece, all the candidates were reported as discussing what their experience, legal and other, meant to their bid for judge.42 4 Koschnick said that his experience in the public defender's office made him the '42s "'most qualified." He also pointed to his endorsements from law enforcement officials, including the local district attorney, the former local district attorney, and Waukesha County's district attorney.42 "Levi cited his experience in civil and criminal law, his service to his family and the community, as well as his country as a Vietnam veteran in4 explaining his qualifications for judge," the newspaper reported.V Finally, according to the Daily Times article, Fiske stated "that he ha[d] appeared before 40 to 50 judges in his career" and "that he [was] in circuit courtrooms almost every working day."42' On the same day, the Daily Jefferson County Union did not summarize the forum, but instead began its three-part series of candidate profiles with an article on Randy Koschnick.4 9 The Union placed the article on its front page and continued it in lengthy fashion on another page.4r' In the lead paragraph of this candidate review, the Union reported that Koschnick "cite[d] his trial experience as a public defender and support by area prosecutors and law enforcement officials among the reasons he [felt] suited for the [judicial position]." 431 The Union enumerated the various committees on which Koschnick had served, in addition to other local activities in which he had engaged.432 The Union wrote that Koschnick contended that his reputation for
422. See id 423. See Steve Sharp, Candidates for Judge Position Discuss Issues, WATERTOWN DAILY TIMES, Feb. 9,1999, § 1, at 1. 424. See id. 425. Id. 426. See id. 427. Id. 428. Id. 429. See Ryan Whisner, Koschnick Running for Judgeship, DAILY JEFFERSON COUNTY UNION, Feb. 9,1999, at 1. 430. See id. 431. Id. 432. See id. For example, the article noted that "Koschnick currently serves on the board of directors for People Against Domestic Abuse and was formerly president of the Jefferson County Bar Association." Id. MARQUETTE LAW REVIEW [85:593
43 3 honesty led to endorsements by area prosecutors. The article4 included numerous quotations of the candidate on a variety of issues. One day later, on February 10, the Watertown Daily Times began its own three-part series of candidate inspections with an article on Fiske.435 The Daily Times article contained information about Fiske's family and the candidate's late start on a law career when he was in his early forties.436 Early in the article Fiske pointed to his patience as a reason he would be a good judge.437 The Daily Times also reviewed Fiske's recent election to the Jefferson County Board of Supervisors and his service "on the county's legislation and rules committee and an ad-hoc committee that is investigating [the] creation of a juvenile detention center." 438 The article's examination of the candidate's experience included Fiske's service in the United States Marines in Vietnam.439 On the same day, the Daily Jefferson County Union also surveyed Fiske's candidacy in its second installment of candidate profiles. As the Daily Times did, the Union led its article with a mention of Fiske's lifelong desire to become a lawyer.' Fiske planned to go to law school after military duty in Vietnam in 1970, but he and his wife decided to delay his law school plans for family medical reasons.41 According to the February 10th Union, "Fiske said that judges must first and foremost ' have the legal skills necessary for handling today's complex issues. , 2 Fiske also asserted that a qualified judge is patient and "'tough enough to be sure the process works smoothly and without undue delay.' ,443
433. See id. 434. See id. 435. See Steve Sharp, Fiske Is Candidate for New Judge Post, WATERTOWN DAILY TIMEs, Feb. 10, 1999, § 1, at 1. 436. See id. 437. See id. 438. Id. 439. See id. 440. See Ryan Whisner, Fiske Eyes New County Judgeship, DAILY JEFFERSON COUNTY UNION, Feb. 10, 1999, at 1. 441. See id. 442. Id. 443. Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
On the 11th of February, the Watertown Daily Times issued its profile of Koschnick. The article began on its front page, as did its other two candidate reviews, and quoted Koschnick as stating "'I think that I have something to offer the community due to my trial experience and my abilities as a lawyer.'"444 The Daily Times twice quoted Koschnick as saying that several people had urged him to enter the race for the new judicial branch. 45 Koschnick also indicated that he wanted to maintain the "'high level of integrity"' that the county had seen in its other three judges."6 Also on February 11, the Daily Jefferson County Union conducted its examination of Levi in a front-page article. 7 In the article's first paragraph, the Union indicated that Levi "cite[d] his 23 years of experience practicing criminal and civil law, as well as family and municipal law, among the reasons he [felt] suited" for the job."8 Levi stressed that "'Ii]t is important that we have people who have been "in the trenches" of law practice across a broad range of areas of law to do the job."" 9 The Union noted that Levi's father "served as a circuit court judge in Portage County for 30 years."4'5 According to the Union's article, Levi stated that his lifelong Wisconsin residency and nineteen- year Jefferson County residency gave him "'an appreciation of local issues and needs of all the citizens of Jefferson County.' "451The article examined Levi's life from college to military service and on to his varied experiences as a lawyer.452 The Union also demonstrated Levi's claim of "commit[ment] to public and community service" by listing his sundry community activities."4 The next day, February 12, the Watertown Daily Times profiled Levi in a front-page piece which resembled the article printed a day earlier by the Union."' The Daily Times described Levi's family and both his
444. Steve Sharp, Koschnick Runningfor New Judge Post, WATERTOVN DAILY TIMES, Feb. 11, 1999, § 1, at 1. 445. See id. 446. Id. 447. See Ryan Whisner, Watertown's Levi Seeking County's Fourth Judgeship, DAILY JEFFERSON COUNTY UNION, Feb. 11, 1999, at 1. 448. Id. 449. Id. 450. Id. 451. Id. 452. See id. 453. Id. 454. See Steve Sharp, Levi Is Candidate for New Judge Post, WATERTOWN DAILY TIMES, Feb. 12,1999, § 1, at 1. MARQ UETTE LAW REVIEW [85:593
4 5 educational and professional histories. " The article's lead paragraph explicated Levi's response to the county's growing criminal caseload when it wrote that Levi said "he [would] implement creative, efficient and just approaches to the disposition of these cases with the intent of freeing his court for civil and family matters." 46 According to the newspaper, Levi "tout[ed]" his experience with alternative dispute resolution as part of his qualifications for the bench.4 7 Also on February 12, the Daily Jefferson County Union issued an editorial devoted entirely to endorsing Koschnick and Levi in the upcoming primary.45 The Union cited the relative experience of the candidates, among other things, as the reason it decided not to endorse Fiske.4 9 At the time of the endorsements, Fiske had seven years of legal experience, while Koschnick and Levi had practiced law for fourteen and twenty-three years respectively.W The Watertown Daily Times did not make endorsements for the judicial primary.4" Koschnick and Levi advanced from the February 16th primary to the general election.62 Both the Daily Times and the Daily Jefferson County Union deemed this news to be worthy of front-page attention, with the Union delivering a more extensive article in which it again reviewed the history behind the creation of the fourth circuit court branch in Jefferson County. 63 For some time after the primary, neither the Daily Jefferson County Union nor the Watertown Daily Times devoted significant coverage to the now-narrowed judicial contest. In the second half of March, however, both publications began running announcements of impending candidate forums and articles on the candidates' views as expressed at the forums. Thus, on March 16, the Union contained the news of the
455. See id. 456. Id. 457. Id. 458. See Editorial, A Nod to Koschnick, Levi, DAILY JEFFERSON COUNTY UNION, Feb. 12, 1999, at 4. 459. See id. 460. See id. 461. Nor did the Daily Times endorse a candidate in the general election. 462. Koschnick received 2040 votes, or 45.47% of the 4486 ballots cast; Levi received 1782 votes (39.72%), and Fiske 664 votes (14.80%). See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 463. See Ryan Whisner, Koschnick, Levi Win Judge Ballot, DAILY JEFFERSON COUNTY UNION, Feb. 17, 1999, at 1; Steve Sharp, Koschnick and Levi Advance, WATERTOWN DAILY TIMES, Feb. 17, 1999, § 1, at 1. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS first publicly reported forum held after the primary.46" On March 19, the Daily Times posted small announcements for two candidate forums set for late March."' Alongside those articles, the Daily Times informed readers that a local access television channel would broadcast interviews the candidates for judge, along with other office seekers, in late with 6 March.*4 On March 22, the Daily Jefferson County Union printed a front-page announcement of a candidate forum to be held the following day. 67 The article reported that the judicial candidates would participate in the forum, as would hopefuls for other elective positions.46' The day after the forum, the Union relayed a protracted examination of the event.49 The Union's report on the forum gave readers numerous quotations from the judicial candidates about their candidacy, particularly in regard to their legal experiencef" Levi contended that Koschnick's work as a criminal defense attorney gave his adversary experience in '"47 percent of the cases filed last year in Jefferson County,"' after deducting traffic cases from the county caseload."71 Levi asserted that he had experience in "'all"' of the areas of the court's docket when he "point[ed] to everything from felonies and criminal traffic and misdemeanors to probate, civil actions and juvenile cases," according to the Union."'4 Levi also mentioned his desire to utilize alternative dispute resolution while on the bench43 The Union's report on the candidate forum also included extensive quotations from Koschnick." 4 At the forum, Koschnick stated that he had better experience than Levi because Koschnick spent "'almost every day"' in circuit court, while Levi spent "'much of his time"' in
464. See Non-Partisan Candidatesfor Judgeship Address Kiwanis, DAILY JEFFERSON COUNTY UNION, Mar. 16,1999, at 3. 465. See Jefferson County Judge Forum Is Set, WATERTOWN DAILY TIMES, Mar. 19, 1999, § 1, at 2; CandidateForum Is Set, WATERTOWN DAILY TIMES, Mar. 19, 1999, § 1, at 1. 466. See ACCESS 21 to Air CandidateInterviews, WATERTOWN DAILY TIMES, Mar. 19, 1999, § 1, at 2. 467. See Candidate Forum Set Tuesday, DAILY JEFFERSON COUNTY UNION, Mar. 22, 1999, at 1. 468. See id. The other participants were candidates for school board and various local municipal offices; they were appearing on the same April 6 ballot as the judicial candidates. 469. See Ryan Whisner, Judgeship Candidates Speak Out, DAILY JEFFERSON COUNTY UNION, Mar. 24,1999, at 1. 470. See id. 471. Id. 472. Id. 473. See id. 474. See id. MARQUETTE LAW REVIEW [85:593 municipal court.47 "Koschnick added that endorsements are also important," according to the Union.476 The Union noted that Koschnick had received the endorsements from the district attorneys of Jefferson and Waukesha Counties, several police chiefs, and the Wisconsin State Troopers Association.47 On March 30, the Daily Jefferson County Union printed sizeable articles, starting on the front page, concerning each candidate. The Union articles focused on claims by each candidate of superior experience. 48 As he had done earlier, Levi relied on his broad legal experience of more than twenty years and stated that he was the better 4 9 candidate "because he [had] the broader knowledge base of the law.", 1 The article included a review of Levi's legal experience.4 Levi further asserted that his experience as a general practitioner who had to bill clients would give him a better understanding of the average litigant than Koschnick would have gained as a public defender.41 The Union also quoted Levi's explanation for not seeking endorsements.' The lead paragraph in the Koschnick profile focused on Koschnick's trial experience as a public defender and his endorsement by local law enforcement officials, including prosecutors.4" The article quoted Koschnick as follows: "'Mr. Levi claims to have a broad background of experience in different areas of law .... When he talks about his circuit court experience in Jefferson County, he has never been very specific about the number or types of cases he's had in recent years.'" According to the Union, "Koschnick stated that his opponent spends most of his time in municipal court, which [Koschnick] calls basically a
475. Id. 476. Id. 477. See id. 478. See Ryan Whisner, Two Runningfor Newly Created Fourth County Judgeship: Levi Touts his 23 Years in Legal Field as Benefit, DAILY JEFFERSON COUNTY UNION, Mar. 30, 1999, at 1 [hereinafter Whisner, Levi] (noting in its lead paragraph Levi's claim that his diverse legal experience was a reason to elect him); Ryan Whisner, Two Running for Newly Created Fourth County Judgeship: Koschnick Cites His Trial Experience, Supporters, DAILY JEFFERSON COUNTY UNION, Mar. 30, 1999, at 1 [hereinafter Whisner, Koschnick] (describing in its first paragraph Koschnick's contention that his "trial experience" made him a better candidate). 479. Whisner, Levi, supra note 478, at 1. 480. See id. 481. See id. 482. See id. ("'I want to be as impartial as possible and not have any appearance of impropriety....'). 483. See Whisner, Koschnick, supra note 478, at 1. 484. Id. 2002] THE PRINT MEDIA AND JUDICAL ELECTIONS city traffic court."' Koschnick also suggested that he had better experience to handle the county's large criminal caseload.f6 On the last day of March, the Watertown Daily Times printed a front-page article that reviewed a candidate forum held the previous day.4 The Daily Times informed readers that the candidates "questioned each other throughout the almost hour-long debate on legal issues facing the county, as well as their work experience." 4 ' The newspaper cited "Koschnick [saying] his day-to-day work in Jefferson County court is experience that is more meaningful to the Branch IV judgeship than Levi's years spent in courtrooms outside the county. 4 9 For his part, Levi noted that he had twenty-three years of legal experience compared to Koschnick's fourteen.4 In addition, the lawyers discussed endorsements, the49 ones Koschnick had received as well as Levi's choice not to seek any. ' On April 1, the Daily Jefferson County Union endorsed Koschnick 4 on its editorial page. 9 The Union stated that making a choice in the '4 race proved difficult because of the "two excellent candidates. 3 The Union invoked Koschnick's "breadth of circuit court experience and endorsements from a long list of law enforcement agencies, district attorneys and fellow lawyers" when it named its choice in the last paragraph of the editorial.494
485. Id. 486. See id. 487. See Steve Sharp, Levi, Koschnick Square Off at Judge Candidate Forum, WATERTOWN DAILY TIMES, Mar. 31,1999, § 1, at 1. 488. Id. 489. Id. 490. See id. 491. See id. 492. See Editorial, Judge Race a Close Call, DAILY JEFFERSON COUNTY UNION, Apr. 1, 1999, at 4. 493. Id. The Union also expressed appreciation for the quality of the circuit court campaign in comparison to the concurrent contest for the Wisconsin Supreme Court. See id. The Union called the Abrahamson-Rose race a "circus, transforming our image of a sober, stately panel of men and women in black robes to a tiny car packed with clowns garbed in bright polka dots and oversized shoes." Id. 494. Id. In contrast, the Watertown Daily Times did not endorse a candidate. MARQUETTE LAW REVIEW [85:593
Also on April 1, the Watertown Daily Times printed side-by-side news articles updating readers on the campaigns of Koschnick and Levi.495 The front-page articles continued on another page as each piece reviewed the candidates' thoughts on the work of campaigning for public office.496 Both articles revisited the candidates' focus on 4 experience. ' Koschnick attempted to distinguish his day-to-day experience with the Jefferson County Circuit Court and related agencies from Levi's claim of experience based on work in numerous areas of the 49 law. " The articles also included discussion of the candidates' goals if elected.4 9 For example, "Koschnick said his goals as judge would include maintenance of what he termed 'a high level of integrity' that now exists on the Jefferson County bench. "' m According to the Watertown Daily Times, "Levi said that, among his goals if elected judge, would be education of the public on the functions of the court."" The articles of April 1 concluded the meaningful coverage of the race by the newspapers, except for public-service-type articles printed by each paper on April 5. Specifically, on the latter date, both the Daily Jefferson County Union and the Watertown Daily Times printed front- page articles outlining the offices set for election on April 6.m On Election Day, Koschnick prevailed, taking 5947 votes (57.72%) to Levi's 4357 (42.28%).' '0 Tables 17 through 19 below summarize the coverage of the Koschnick, Levi, and Fiske candidacies by the Daily Jefferson County Union and the Watertown Daily Times.
495. See Steve Sharp, 2 Area Lawyers Vying for County Judge Position, WATERTOWN DAILY TIMES, Apr. 1, 1999, § 1, at 1. The Daily Times included a separate look at each candidate under this one title. See id. 496. See id. 497. See id. 498. See id. 499. See id. 500. Id. 501. Id. 502. See JudicialRaces Top Elections, DAILY JEFFERSON COUNTY UNION, Apr. 5, 1999, at 1; Voters in State Will Go to Polls on Tuesday: County Judge, Municipal Races on Local Ballots, WATERTOWN DAILY TIMEs, Apr. 5, 1999, § 1, at 1; see also Editorial, A Very Important Day, DAILY JEFFERSON COUNTY UNION, Apr. 5, 1999, at 4 (urging local citizens to vote the next day). 503. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Daily Jefferson County Union Watertown Daily Times
Table 17-Jefferson County (Randy R_ Koschnick)
Total Number with Any Reference 15 310 3 15 18 j1 0 5 13 CharacteristicsIdentified as Desirable Integrity 4 1 2 4 1 Judicial Temperament 1 1 Industry 1 1 Professional Learning 2 Professional Experience/Judicial Professional Experience/Practice 7 3 3 8 12 2 7 Impartiality Honesty 1 1 1 1 Courage Independence 1 Fairness 1 1 2 1 Knowledge of the Law 1 1 1 2 Others' Opinions of the Candidate 4 2 3 7 7 4 6 Other Matters Age 3 1 2 Local Residence/Site of Practice 12 3 12 Veteran/Army Reserve Family 2 1 5 1 Prior Candidacies Honors/Awards Community Activity 1 2 1 2 1 Mention as Candidate (Only) 2 3 1 1 Bar/Bench Reaction 4 2 1 7 5 3 6 Endorsements/Support 5 2 3 7 6 4 6 Primary Results 1 1 1 1 Crime and Criminal Law 6 3 2 11 9 4 13 Campaign Financing Thanks 1 Quotation of Candidate 6 1 6 MARQ UETTE LAW REVIEW [85:593
Daily Jefferson County Union Watertown Daily Times
Table 18 - Jefferson County (Thomas J. Levi)
Total Number with Any Reference 16 3 0 3 21 17 ( 1 0 4 21 CharacteristicsIdentified as Desirable Integrity 1 1 5 6 Judicial Temperament Industry 1 7 1 1 8 Professional Learning 2 2 1 Professional Experience/Judicial Professional Experience/Practice 8 3 1 17 13 2 18 Impartiality 1 2 Honesty Courage Independence Fairness 2 1 1 1 Knowledge of the Law 2 1 1 2 Others' Opinions of the Candidate 1 1 3 5 2 3 6 Other Matters Age 3 4 Local Residence/Site of Practice 13 3 13 1 Veteran/Army Reserve 1 5 2 1 6 Family 2 4 1 Prior Candidacies Honors/Awards Community Activity 2 2 1 5 4 1 6 Mention as Candidate (Only) 2 3 1 1 Bar/Bench Reaction 1 1 Endorsements/Support 1 1 2 2 Primary Results 1 1 1 1 Crime and Criminal Law 6 2 1 17 6 2 18 Campaign Financing Thanks Quotation of Candidate 6 1 4 5 2 3 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Daily Jefferson County Union Watertown Daily 7Tmes
Table 19-Jefferson County (John R. Fiske)
Total Number with Any Reference 7 11 0 11 3 8 1 0 1 4 CharacteristicsIdentified as Desirable Integrity 1 3 Judicial Temperament 1 Industry 1 3 1 4 Professional Learning 2 Professional Experience/Judicial Professional Experience/Practice 2 1 3 6 4 Impartiality Honesty 3 Courage 4 Independence Fairness Knowledge of the Law 4 Others' Opinions of the Candidate 1 1 Other Matters Age 2 1 3 Local Residence/Site of Practice 6 1 6 Veteran/Army Reserve 1 2 Family 1 2 Prior Candidacies Honors/Awards Community Activity 2 1 2 Mention as Candidate (Only) I I1 Bar/Bench Reaction Endorsements/Support Primary Results Crime and Criminal Law 1 3 2 4 Campaign Financing Thanks Quotation of Candidate 2 3 MARQUETTE LAW REVIEW [85:593
D. Fond du Lac County Fond du Lac County lies approximately 100 miles northwest of Milwaukee County and the same distance northeast of Dane County. Its population of 97,296 makes it the state's fourteenth-most populous county; somewhat under half of its population lives in the city of Fond du Lac."' It is served by a daily newspaper, The Reporter of Fond du Lac (which we shall also call "the Fond du Lac Reporter"). In 1999, three attorneys in private practice sought a new judgeship in Fond du Lac County: Jerry Donohue, Frank J. Endejan, and Robert J. Wirtz. The only coverage provided by the Fond du Lac daily during January 1999 consisted of a short portion of a single article, which as part of broader election coverage reported the names of these three local attorneys and explained the need for a February 16 primary before the April 6 election:'5 On February 3, the Fond du Lac Reporter printed a profile of the three candidates on the front page of its second section." The paper devoted a separate section of the article to each candidate, and all three profiles were organized similarly. Each profile contained biographical information followed by a question-and-answer session with the aspirants.' The Reporter directly quoted each candidate's answers to the following questions: "Why are you seeking the Branch 5 judgeship?"; "What are the key issues?"; and "Why should electors vote for you?"508 In this February 3 article, Donohue said his "'extensive legal experience and [his] background in the community [made him] very qualified for this position.'"O These two factors, Donohue maintained, were reasons why voters should elect him.5 10 In the section on key issues in the race, The Reporter quoted Donohue as saying "'it is extremely important that the judicial system function efficiently so that cases move
504. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733,739,755 (2001). 505. See Voters to Narrow Fieldof Judicial Candidates,FOND DU LAC REP., Jan. 6, 1999, at A3. 506. See Primary Election '99:2 of 3 Candidates Will Advance to April Ballotfor Branch 5 Judgeship, FOND DU LAC REP., Feb. 3, 1999, at Bi. The front page of The Reporter's first section itself contained a prominent directive to the article printed in the second section. See PrimaryElection '99 Preview, FOND DU LAC REP., Feb. 3,1999, at Al. 507. See PrimaryElection '99:2of 3 Candidates Will Advance to April Ballotfor Branch 5 Judgeship, supra note 506, at Bi. 508. Id. 509. Id. 510. See id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS through the system as quickly as possible."" Endejan, for his part, said it had been a "'career goal"' to become a judge5 12 In his response to the question regarding key issues in the campaign, Endejan pointed to 1 making the court system more "'user-friendly.' 1 Finally, Endejan asserted that voters should select him because he had experience in government and private practice and would be "'fair, honest, and even- handed."'514 Finally, The Reporter quoted Wirtz as saying that he was seeking the judicial seat "'because [he had] broad and in-depth legal experience.'"011 Wirtz listed crime as a "'major issue"' in the race and said that "'[c]onvicted criminals should be dealt with strictly."' 516 Wirtz stated that "'[f]irm, fair and efficient administration of cases and the scheduling of court hearings and dates also are important issues."'5"" Wirtz indicated that voters should vote for him because of his enjoyment of "'hard work"' and his legal experience, 8 On February 7, the Fond du Lac Reporter announced a candidate forum to be held on February 9.19 The short article stated where and when the event would occur and informed readers that a local radio station would provide live coverage.' On the day following the forum, The Reporter published a front- page piece covering the event? 1 The article reported a variety of the candidates' comments on six issues, which the article highlighted by employing boldface headings for each: "Court delays," "Getting 'tough on crime,"' "New victims rights law," "Interpretation of the law [generally]," "Experience," and "Death Penalty."5' The article also listed the times and dates at which a local cable television station would broadcast a recorded version of the February 9 forum.' On February 17, The Reporter printed a front-page account of the
511. Id. 512. Id. 513. Id. 514. Id. 515. Id. 516. Id. 517. Id. 518. Id. 519. See Voter Forum for Judge CandidatesSlated Tuesday, FOND DU LAC REP., Feb. 7, 1999, at B1. 520. See id. 521. See Laurie Ritger, Judicial Candidates Address Issues, FOND Du LAC REP., Feb. 10., 1999, at Al. 522. Id. 523. See id. MARQUETTE LAW REVIEW [85:593 results of the primary held the previous day.! The Fond du Lac daily reported that a very close primary resulted in Wirtz's and Donohue's advancing.52 Wirtz received 2483 votes (36.49%), Donohue 2267 votes (33.31%), and Endejan 2055 votes (30.20%).' 2 Between February 18 and March 18, the Fond du Lac Reporter did not print any articles focusing upon the race. Indeed, the newspaper mentioned the circuit court contest in its news coverage during this time period only as part of an article primarily reporting on the Abrahamson- Rose race.5" Donohue and Wirtz had appeared at the same local lunch- hour forum as had the supreme court candidates, and the newspaper tacked four sentences about their comments on the end of its report of the forum.52s Donohue spoke of his desire "to see the judicial process speeded up, especially in cases such as truancy and the juvenile system. "5 29 Candidate forums continued to be the Fond du Lac Reporter's nearly exclusive focus. On March 19, for example, the newspaper announced that the local League of Women Voters would sponsor a candidate forum on March 30.50 The brief announcement included a description of the format of the forum and also listed the members of the panel that would question the candidates.53' On March 21, The Reporter printed a similar article regarding another candidate forum scheduled for March 25.532 On March 31, the Fond du Lac Reporter covered the candidate forum held the day before.33 According to The Reporter, "Donohue said a good judge has to have the right temperament, has to be fair, be a good listener, and have a fair share of common sense."' 34 He also
524. See Laurie Ritger, Wirtz, Donohue Will Meet in April Election, FOND DU LAC REP., Feb. 17, 1999, at Al. 525. See id. 526. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 527. See Sanders, supra note 137, at A5. 528. See id In fairness, the local candidates' comments were themselves brief, lasting "about five minutes each." Id 529. I Wirtz was reported merely as expressing the "belie[f] the criminal system runs well." Id 530. See Local CandidatesForum Scheduled for March 30, FOND DU LAC REP., Mar. 19, 1999, at Bi. 531. See id. 532. See Voter Forum Arranged,FOND DU LAC REP., Mar. 21, 1999, at B5. 533. See Laurie Ritger, Judicial Candidates Offer Views to Sparse Crowd, FOND DU LAC REP., Mar. 31, 1999, at A3. 534. Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
"mentioned his 22 years of experience practicing law and the variety of cases he handles."n53 The Fond du Lac daily also described Wirtz's statements at the forum: "He said that during his campaign, he has been talking about crime and court administration-topics that have been 'near and dear to [his] heart from the beginning."'s 6 According to The Reporter, Wirtz also stated that "a judge needs to be in touch with the community."'n On April 2, The Reporter reprinted the same candidate profile piece that it had printed on February 3.58 The Reporter placed the article on the first page of its local section. 9 Shortly before the election, the Fond du Lac daily declined to endorse a candidate.-"4 The Reporter ran an editorial in which it declared both candidates qualified for the bench 41 The editorial proclaimed that the candidates are "more alike than different" and that "[b]oth men have good local public service records."5 42 In addition, the editorial reported that "[b]oth [candidates said] that they have the strength of character to make the tough, sometimes unpopular decisions required of judges. "m' On April 7, The Reporter relayed the results of the election in an article at the top of its front page.5 Wirtz defeated Donohue by about 900 votes, 6890 (53.46%) to 5997 (46.54%). 4 Tables 20 and 21 below summarize the Fond du Lac Reporter's coverage of Wirtz, Donohue, and Endejan.
535. Id. 536. Id. 537. Id. 538. See Attorneys Vie for Newly-Created Judgeship, FOND DU LAC REP., Apr. 2, 1999, at B1. The reprint of the candidate profile did not include the section describing the candidacy of Endejan, who had been eliminated in the primary. See id. 539. See id. 540. See Editorial, Both Candidates Qualified for Judge; It's Voters' Choice, FOND DU LAc REP., Apr. 4,1999, at A7. 541. See id. 542. Id. 543. Id. 544. See Laurie Ritger, Wirtz Wins, FOND DU LAC REP., Apr. 7,1999, at Al. 545. See id.; STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). MARQUETTE LAW REVIEW [85:593
Robert J. Wirtz Jerry Donohue ......
Table 20 - Fond du Lac County Fond du Lac Reporter
Total Number with Any Reference 12 1 0 4 8 12 1 0 3 4 CharacteristicsIdentified as Desirable Integrity 2 2 1 Judicial Temperament 1 1 2 3 Industry 2 1 Professional Learning 2 2 Professional Experience/Judicial 3 2 7 Professional Experience/Practice 5 1 3 7 5 1 2 4 Impartiality Honesty Courage 1 1 1 Independence 1 1 Fairness 1 4 2 2 Knowledge of the Law 1 2 1 1 Others' Opinions of the Candidate 3 1 4 8 4 1 2 4 OtherMatters Age 2 2 Local Residence/Site of Practice 3 2 Veteran/Army Reserve Family 3 3 1 3 Prior Candidacies Honors/Awards Community Activity 2 1 2 1 1 1 Mention as Candidate (Only) 6 6 Bar/Bench Reaction 4 3 Endorsements/Support 4 4 2 3 Primary Results 2 2 Crime and Criminal Law 5 1 3 7 5 1 2 4 Campaign Financing Thanks 1 Quotation of Candidate 6 5 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Frank J. Endejan
I- 0 Table 21 - Fond du Lac County w*0 Fond du Lac Reporter .0 0 z .) E! 0
W Ca
z 0 Total Number with Any Reference 6 0 0 0 0 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 Industry Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 2 1 Impartiality Honesty 1 Courage Independence Fairness 1 Knowledge of the Law 1 Others' Opinions of the Candidate 2 Other Matters Age 1 Local Residence/Site of Practice 1 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards Community Activity 1 Mention as Candidate (Only) 4 Bar/Bench Reaction Endorsements/Support Primary Results Crime and Criminal Law 2 Campaign Financing Thanks Quotation of Candidate 2 MARQUETTE LAW REVIEW [85:593
E. La Crosse County La Crosse County lies along the Mississippi River in western Wisconsin. Its largest city is La Crosse, whose population (51,818) makes up just under half of the county's (107,120).46 It is served by one daily newspaper, the La Crosse Tribune. The La Crosse Tribune covered the 1999 race for a new seat on the La Crosse County Circuit Court. The coverage commenced with a short news article on January 6, 1999, reporting that the following individuals would compete in the February primary, with the top two vote-getters facing off in April: Marvin Davis, Beverly Fleishman, James Kroner, and Dale Pasell.-47 The article listed the age of each and noted that Davis and Kroner were members of firms, Fleishman a solo practitioner, and Pasell a trial lawyer in the public defender's office.W On January 10, the La Crosse Tribune published as its lead article a report drawing upon interviews with the four candidates and addressing the extent to which voters have a legitimate interest in the personal lives of political candidates in general and judicial candidates in particular. 9 Quoting each of the candidates, the story reflected the views of all four that some balance needs to be struck between protecting privacy and ensuring that voters can obtain relevant information. Subsequently in January, the newspaper printed a pair of news articles, each of which concerned two of the four candidates in the race. Reporting on the appearance of Davis and Pasell before a Kiwanis Club luncheon meeting, the first La Crosse Tribune article began by noting that the two had "traded compliments."5 The article related the age and current legal position of the candidates (including the other two candidates, Fleishman and Kroner). Davis was then reported as concentrating his talk on his thirty-two years of legal experience and community involvement, and Pasell as speaking of his professional growth as a lawyer and his participation in the "unified family court" pilot project in La Crosse.551 Subsequently, a similar article reported on
546. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733,739,757 (2001). 547. See Candidates Meet Filing Deadline, LA CROSSE TRIB., Jan. 6, 1999, at D-4. 548. See id. 549. See Bill White, Public Office, Private Lives, LA CROSSE TRIB., Jan. 10, 1999, at A-1. 550. Bill White, Judge CandidatesSpeak Highly of Each Other, LA CROSSE TRIB., Jan. 13, 1999, at D-1. 551. Id. A separate article this same day discussed at length Pasell's support for this project, under which, as described by the newspaper, the commencement of a case involving a "Child in need of Protection and Services" causes that case and any other pending cases (including criminal, juvenile-delinquency, and family-law cases) involving members of the 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 711
Fleishman's and Kroner's appearance at another Kiwanis Club meeting.5 2 The newspaper quoted Fleishman with regard to the importance of early intervention with juvenile offenders and their families and as stressing her experience as assistant family court commissioner.5" Kroner was reported as endorsing (in response to a question) short jail sentences for some minor offenses to "wake up an offender before that person commits a more serious crime" and as stating that "one of his priorities would be to reduce a case backlog in the local court system."5 On February 11, the La Crosse Tribune printed guest opinion pieces by Fleishman and Kroner. Fleishman wrote that "It]he greatest challenge facing our court system today is the rising number of juveniles involved in serious crime."5'5 She also discussed family law issues and described two plans instituted by the family court commissioner's office to "alleviate some of the trauma that occurs when parents divorce."56 Fleishman indicated that her experience as an assistant family court commissioner and family law practitioner gave her "the unique ability to understand the dynamic of the family in crisis, and [would] prove invaluable as the next circuit court judge."5' On the same page as Fleishman's article, the Tribune ran Kroner's piece.5 8 Kroner, in lawyerly fashion, listed "[flour major challenges [that would] confront the newly elected judge."59 These issues, which Kroner addressed throughout his article, included "alcohol and substance abuse, deterioration of the family and juvenile crime, criminal recidivism and the need for judges to keep current with legal
child's family to be joined together and brought before a single judge. Bill White, Judge CandidatePasell Wants to Streamline Family Court Cases, LA CROSSE TRIB., Jan. 13,1999, at D-3; see also WIS. STAT. § 48.13 (1999-2000) (Wisconsin statute concerning treatment of children "in need of protection or services"). The article concluded by reporting that "Pasell said he is sure the other candidates-James Kroner, Beverly Fleishman, and Marvin Davis- also support the project." White, supra, at D-3. 552. See Terry Burt, Kroner, Fleishman Give Reasons for Wanting to Be Judge, LA CROSSE TRIB., Jan. 29, 1999, at D-1. 553. See id. 554. Id. 555. Beverly Fleishman, Juvenile Justice Poses Challenge for Court, LA CROSSE TRIB., Feb. 11, 1999, at A-4. 556. Id. 557. Id. 558. See James L. Kroner, Jr., Substance Abuse, Youth Crime Are Issues, LA CROSSE TRIB., Feb. 11, 1999, at A-4. 559. Id. MARQUETTE LAW REVIEW [85:593 developments. S'" Kroner opined that "broad experience" was necessary for the judicial seat, and he argued that his "background pass[ed] that test."561 In the next day's paper, the Tribune printed opinion pieces by the other two candidates in the race. Dale Pasell's opinion piece focused on the increasing caseload in La Crosse County.562 Pasell asserted that he had "the most courtroom and trial experience of any candidate."563 He analyzed and indicated support for three projects then operating in the La Crosse County courts, variously involving family law, criminals, and juvenile offenders 64 Near the end of his article Pasell wrote the following: I have the qualities to be a good judge. I have demonstrated the ability to work hard, handle a large caseload, to listen to others and treat them with respect. I have the greatest amount of courtroom experience. I have the enthusiasm, interest, and experience to look at innovative, creative and pragmatic ways of handling cases.565 The Tribune situated Marvin Davis's article directly below Pasell's piece.66 Davis argued that "[t]he most reliable standards for the voters to use in choosing the new judge [were] : 1.) professional knowledge, skill and experience; 2.) judicial temperament, demeanor and integrity; and 3.) commitment to the community through service."567 Davis went on to explain that he had extensive and broad legal experience.68 He also contended that his support from people in the legal profession must mean that he was not lacking in "judicial temperament, demeanor and integrity."5 69 Finally, Davis listed his community activities." On Valentine's Day, the Tribune printed a front-page article that
560. Id. 561. Id. 562. See Dale Pasell, Large Caseload a Challenge for New Judge, LA CROSSE TRIB., Feb. 12, 1999, at A-4. 563. Id. 564. See id. 565. Id. 566. See Marvin H. Davis, Judge Needs a Widely Diverse Background, LA CROSSE TRIB., Feb. 12, 1999, at A-4. 567. Id. 568. See id. 569. Id. 570. See id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS detailed the impending primary."' The Tribune included compact biographies of the contestants, references to some endorsements, and brief quotations of each candidate.5 The article also included a report on the candidates' campaign contributions and spending. On February 17, the Tribune reported the outcome of the primary in a large article on its front page.' Pasell garnered the most votes, 5156 (54.33%), followed by Davis with 2332 votes (24.57%), Kroner with 1348 votes (14.20%), and Fleishman with 655 votes (6.90%).' With Kroner and Fleishman thus eliminated, Davis immediately began his post-primary campaign when he "noted that Pasell ha[d] spent most of his 20-year career representing people charged with crimes and ha[d] 'almost zero' experience in civil matters."" Davis also argued that "'aggressive support"' by two sitting county judges "affected the race.""6 Pasell acknowledged that the support of the judges, in addition to an endorsement by the deputy sheriffs association, had helped him.' Davis's comments provoked a small controversy concerning the propriety of a judge's endorsing other judicial candidates,. 8 On February 24, the La Crosse Tribune printed an editorial in which the paper argued that sitting judges should not endorse judicial candidatesY9 The editorial conceded that no explicit rule prohibited such endorsements, but the Tribune argued that "tradition" and "patterns" within the judicial ethics code ought to prohibit them nonetheless' The Tribune further contended that "~j]udges are supposed to be above politics."' On March 5, the Tribune printed a guest opinion piece by La Crosse
571. See Bill White, Four Face Off for La Crosse Judge's Seat, LA CROSSE TRIB., Feb. 14,1999, at A-1. 572. See id. 573. See Bill White, Pasel Davis Advance in Judge Race, LA CROSSE TRIB., Feb. 17, 1999, at A-1. 574. See id.; STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 575. White, supra note 573, at A-1. 576. Id. 577. See id. 578. Cf. supra text following note 68 and notes 69, 92-133, 167-72, 191-97 and accompanying text (discussing much-larger controversy concerning three justices' endorsement of Chief Justice Abrahamson's opponent). 579. See Editorial, Why Judges Shouldn't Endorse, LA CROSSE TRIB., Feb. 24, 1999, at A-4. 580. Id. 581. Id. MARQUETTE LAW REVIEW [85:593
Circuit Court Judge John Perlich.5 2 Perlich had not endorsed any candidate before the primary, but he wrote "to defend the right of [his] fellow judges to express their opinions."58' 3 Perlich argued that "experienced judges are in a unique position to help voters" decide for whom to cast their ballots:" On March 21, the Tribune endorsed Pasell in an editorial: 5 The column reviewed biographical information about Davis and Pasell and admitted that both candidates were qualified for the position. The Tribune emphasized that "Pasell ha[d] the experience, the empathy586 and the public service background to make a fine circuit court judge." On March 18 and 24, the Tribune printed small articles that announced a candidate forum scheduled for March 30; on March 26, the Tribune also printed a similar announcement of a forum to take place the following day.5u On March 31, the Tribune printed a front-page article that covered the previous evening's candidate forum, which had been sponsored by the La Crosse Domestic Abuse Task Force5M According to the Tribune, the two candidates "had similar views on most subjects but disagreed on whether mediation-as used in child custody, abuse and neglect cases-is appropriate in domestic violence situations. 589 Davis ardently supported mediation in such situations, while "Pasell said mediation 'has a role,' but the presence of domestic violence between the spouses 'would complicate the process.'""" Both candidates also expressed praise for the positive effects of Wisconsin's mandatory arrest law in domestic violence situations 9
582. See John Perlich, Judicial Endorsements Can Help Voters Decide, LA CROSSE TRIB., Mar. 5, 1999, at A-4. 583. Id. 584. Id. 585. See Editorial, Pasell for Circuit Court Judge, LA CROSSE TRIB., Mar. 21, 1999, at E-1. 586. Id. 587. See Judge Candidatesto Appear in Forum, LA CROSSE TRIB., Mar. 18, 1999, at C-1; Judicial Forum, LA CROSSE TRIB., Mar. 24, 1999, at D-2; Hmong Group Plans Forum for CircuitCourt Candidates, LA CROSSE TRIB., Mar. 26, 1999, at D-5. 588. See Bill White, Judicial Candidates Disagree on Mediation Question, LA CROSSE TRIB., Mar. 31, 1999, at A-1. 589. Id. 590. Id. 591. See id. Wisconsin requires arrest where "[an] officer has reasonable grounds to believe that [a] person is committing or has committed domestic abuse and that the person's actions constitute the commission of a crime" and either "[t]he officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely" or "[t]here is evidence of physical injury to the alleged victim." WIS. STAT. § 968.075(2) (1999-2000). 2002 THE PRINT MEDIA AND JUDICIAL ELECTIONS 715
On April 4, the Tribune previewed the April 6th election with an article at the top of its front page.59 The Tribune wrote that "Pasell and Davis [had] emphasized their experience, which they said their opponents lack." '93 According to the article, "Pasell point[ed] to his courtroom experience, defending indigent people of all races and backgrounds, working with their families and representing their children in juvenile court and protection cases. 5 4 Meanwhile, Davis touted his broad legal experience, including work in "civil actions, personal injury lawsuits, real estate transactions, probate matters and divorces, as well as criminal and juvenile cases."5'95 Alongside the article, the paper set forth a brief biography of each candidate, including his occupation, education, and civic accomplishments. 6 Throughout the race for the La Crosse County bench, the La Crosse Tribune printed more letters to the editor endorsing candidates than did newspapers in the other counties in our study. From February 2 until April 4, the Tribune printed the following number of letters explicitly endorsing a particular candidate: thirty-four for Pasell, eighteen for Davis, four for Kroner, and four for Fleishman." On April 4, for example, just days before the election, the Tribune printed fourteen letters endorsing Pasell and four endorsing Davis. On April 7, the Tribune reported the results of the election on its front page. 8 Pasell defeated Davis by a margin of 8539 votes (59.85%) to 5728 votes (40.15%)." 9 Tables 22 and 23 survey the La Crosse Tribune's coverage of the four candidates.
592. See Bill White, Judicial CandidatesLook to Make History, LA CROSSE TRIB., Apr. 4,1999, at A-1. 593. Id. 594. Id. 595. Id. 596. See id. 597. Although similar (but not identical) information can be found there, these numbers are not taken from the following tables. That is because the endorsements/support row in the letters-to-the-editor column in the tables tracks not only instances in which the letter writer endorsed a particular candidate (as reflected in the text here), but also separate instances in which the letter writer merely referred to someone else's endorsement of a candidate. 598. See Bill White, Pasell Elected Judge, LA CROSSE TRIB., Apr. 7,1999, at A-1. 599. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). MARQ UETTE LAW REVIEW [85:593
Dale Pasell Marvin H. Davis
Table 22- La Crosse County La Crosse Tribune
Total Number with Any Reference 12 1 1 40 7 12 1 1 26 10 CharacteristicsIdentified as Desirable Integrity 9 1 6 2 Judicial Temperament 1 1 4 1 5 1 Industry 1 4 1 Professional Learning 2 2 Professional Experience/Judicial 2 Professional Experience/Practice 10 1 1 30 3 9 1 1 17 7 Impartiality 1 1 1 Honesty 3 2 2 Courage Independence 1 1 Fairness 1 1 12 1 9 2 Knowledge of the Law 1 5 1 9 1 Others' Opinions of the Candidate 3 1 39 3 2 1 1 24 4 OtherMatters Age 10 1 1 9 1 Local Residence/Site of Practice 1 1 1 Veteran/Army Reserve Family 1 9 1 Prior Candidacies 3 Honors/Awards Community Activity 1 4 2 1 5 2 Mention as Candidate (Only) 2 1 3 2 1 Bar/Bench Reaction 2 19 3 1 3 2 Endorsements/Support 2 1 39 3 1 20 4 Primary Results 3 3 1 Crime and Criminal Law 8 1 1 24 3 5 1 11 3 Campaign Financing 2 2 ,Thanks1 Quotation of Candidate 7 1 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Beverly A. Fleishman James Kroner, Jr.
Table 23 - La Crosse County La Crosse Tribune
Total Number with Any Reference 6(0 1 4 0 6 0 1 4 2 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 1 1 Industry 2 Professional Learning 1 1 Professional Experience/Judicial 2 1 1 1 1 1 2 Professional Experience/Practice 5 1 4 5 1 4 2 Impartiality Honesty 1 Courage Independence Fairness 1 2 Knowledge of the Law 2 1 2 2 Others' Opinions of the Candidate 4 4 OtherMatters Age 5 5 1 Local Residence/Site of Practice 1 1 VeteranfArmy Reserve Family 1 3 2 Prior Candidacies Honors/Awards Community Activity 3 Mention as Candidate (Only) 1 1 Bar/Bench Reaction Endorsements/Support 4 4 Primary Results Crime and Criminal Law 2 1 3 2 1 2 Campaign Financing 1 1 Thanks Quotation of Candidate 3 1 3 1 MARQUETTE LAW REVIEW [85:593
F. Waukesha County Waukesha County, which lies immediately west of Milwaukee County and ranks as the state's third-most populous county behind only Milwaukee and Dane Counties, was the site of another race for the circuit court.' Three candidates campaigned to fill a vacancy created by the retirement of one of the county's twelve judges. The two daily newspapers serving Waukesha County-The Freeman Newspaper, which we will term "the Waukesha Freeman," and the Milwaukee Journal Sentinel, which runs a dedicated local section in Waukesha- provided the overwhelming bulk of print-media coverage of the campaign. 6° As with the other races, we provide first a narrative of the campaign coverage and then tables reflecting the coverage. The initial coverage of the Milwaukee Journal Sentinel, in its Waukesha section, concerned not the candidates themselves (indeed, the deadline for filing had not passed) but rather local attention to the coming race.' Specifically, the newspaper reported in early January
600. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733 (2001) (listing population of state's seventy-two counties). 601. In addition to these two daily newspapers, parts of Waukesha County are served by a variety of local newspapers published less frequently (e.g., weekly). For example, the Oconomowoc Enterprise is a weekly newspaper covering north-central Waukesha County, just as the Sussex Sun covers another part of the county on a weekly basis. Further, Community Newspapers Inc. (CNI) publishes the following weekly newspapers also serving certain Waukesha County municipalities: Brookfield News, Elm Grove Elm Leaves, Menomonee Falls News, and New Berlin Citizen. Various of these newspapers are owned by subsidiaries of Journal Communications, Inc. (which also owns the Milwaukee Journal Sentinel and several broadcast operations in Wisconsin). We briefly describe aspects of coverage by these non-dailies later in this section, see infra note 685, but their coverage forms no part of the basis for either the narrative of the campaign or the tables that follow the narrative. There are several reasons for our treatment of these newspapers. First, none of these local newspapers provided anything beyond a few references to the campaign. rn addition, all of these newspapers are what would be described as "second-reads" in the newspaper business-meaning that essentially all of their readers have read other newspapers, which in this case would be the Freeman or the JournalSentinel, the newspapers covered by our study. In these circumstances, we concluded that we could omit the non-daily local newspapers from the narrative and the tables without significantly yielding from our effort to provide a comprehensive assessment of the print-media coverage of the Waukesha campaign. To the extent that other counties within our study contain non-daily newspapers not discussed in this Article, a similar conclusion would be true there as well. Finally, it is important to note that the foregoing is not a suggestion that we have simply ignored non-daily newspapers in this study. In addition to our brief discussion of the Waukesha non-dailies, see infra note 685, we have provided extensive analysis of non-dailies that would for county purposes not be regarded as second-reads (e.g., the Merrill Foto News and Tomahawk Leader,see supra Part III.A). 602. See Lisa Sink, County's Lawyers to Rate Candidates for Judge, A First, MILWAUKEE J. SENTINEL, Jan. 4, 1999, at 1 Waukesha [hereinafter "W"]. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
that, after "years of debate," the Waukesha County Bar Association had decided to assess judicial candidates.' According to the Journal Sentinel, local lawyers would "evaluate the candidates on integrity, temperament, knowledge of the law, communication and management skills, punctuality, service to the profession, intelligence, empathy and effectiveness in working with other judges.itW Some controversy surrounded the local bar association's decision to assess local judicial candidates.S On January 6, the Waukesha Freemanreported that three candidates had filed papers to seek the open judicial seat.6 The Freeman's medium-sized article indicated that three lawyers had entered the race for Branch 3 of the county's circuit court, making a primary necessary on February 16.6 The three were William Domina, an assistant county corporation counsel, Daniel Fay, a private practitioner, and Ralph Ramirez, an assistant district attorney. Although the Freeman also devoted space in the article to another election matter (concerning the county executive's position), the Freeman returned to the judicial race to detail each of the three judicial contestants' current jobs and time served in those capacities.6 As for the Waukesha section of the Milwaukee JournalSentinel, the newspaper tucked two short paragraphs listing the candidates into the middle of an article announcing the contestants for all local elections.'
603. Id. 604. Id. 605. On January 11, the Waukesha Freeman published an editorial criticizing the county bar association for deciding to rank the three candidates in the race. See Editorial, Rating Game Lowers Bar for Judges, WAUKESHA FREEMAN, Jan. 11, 1999, at 4A. The Freeman acknowledged that local lawyers might very well know if a candidate had "the wisdom, demeanor and scholarly attributes to sit on the bench." Id. However, the editorial also contended that it "seem[ed] absurd to have lawyers sitting in judgment on other lawyers who someday soon may be judging them." I- The Freemanalso questioned whether the bar poll would "accurately evaluate seemingly desirable judicial attributes such as temperament, experience and education," or become instead a political contest "in the court of public opinion." Id. The Freeman subsequently printed a letter to the editor from the local bar association, which responded that the association was merely providing a useful service to the community. See Waukesha County Bar Association, Letter to the Editor, Judicial Rating a Service to Local Voters, WAUKESHA FREEMAN, Jan. 20,1999, at 4A. 606. See Dennis A. Shook, Primary Needed to Tab Murphy's Successor, WAUKESHA FREEMAN, Jan. 6, 1999, at 3A. 607. See id. 608. See id. 609. See Paul Gores, Election Filings Show Some Full School Races, MILWAUKEE J. SENTINEL, Jan. 6,1999, at 1W. MARQUETTE LAW REVIEW [85:593
On January 12, the Milwaukee JournalSentinel published a piece in which it reported that "Fay ha[d] fired the first salvo in the race ... by accusing ...Domina of running a one-issue campaign based on one personal claim to fame: the so-called cocaine mom case.""61 In that case, Domina "sought to protect the fetus of a pregnant, cocaine-abusing Waukesha mother."6" According to the Journal Sentinel, during the course of a cable television forum both Fay and Ramirez questioned Domina's focus on the case."' The Milwaukee daily also reported that the candidates discussed drunk driving, gun-ownership rights, and partial-birth abortion during the forum."'
On the 25th of January, the Waukesha Freeman reported the events614 of a "sparsely attended forum for candidates for circuit court judge.1 The candidates "all echoed similar sentiments to be tough of [sic] crime. ' According to the Freeman, Domina "brought the juvenile court system in focus nearly every time he spoke., 61 6 The newspaper noted that the new circuit judge was scheduled to begin service in juvenile court.6 17 Its twenty-one paragraph report contained numerous quotations and statements attributed to the candidates concerning juvenile crime and drunk driving.618 Fay and Domina described how their prior legal experience would help them in handling drunk-driving cases, while Ramirez was reported to have said that "he has devoted his
610. Lisa Sink, Fay Accuses Domina of Focusing Race for Judge on 'Cocaine Mom' Case, MILWAUKEE J.SENTINEL, Jan. 12, 1999, at 3W. In this case, which received some national attention and a considerable amount of local attention, the Wisconsin Supreme Court ultimately held that Wisconsin's statute providing for jurisdiction over a child "in need of protection or services," Wis. STAT. § 48.13 (1993-1994), did not extend to the unborn fetus of a woman alleged to be addicted to cocaine. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997). The court thus rejected Waukesha County's attempt to take the woman into custody pending the completion of the pregnancy. See id. In 1998, the Wisconsin legislature amended the statute to permit such action by the government. See WiS. STAT. § 48.193 (1999-2000). 611. Sink, supra note 610, at 3W. 612. See id. 613. See id. The newspaper reported that "[a]ll three [candidates] said they opposed a late-term medical procedure opponents call 'partial-birth abortion,"' that "[o]n the issue of gun rights, the three candidates said they supported the constitutional right to bear arms but all agreed some regulation was necessary," and that each of the candidates addressed how drunk-driving cases might be approached in the courts. Id. 614. Janice Kayser, Candidates DebateJuvenile Crime, WAUKESHA FREEMAN, Jan. 25, 1999, at 2A. 615. Id. 616. Id. 617. See id. 618. See id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS entire career to being tough on crime.'619 Domina contended that reaching youth through juvenile court would have an impact on repeat instances of drunk driving."" The Milwaukee Journal Sentinel also covered the same forum with a January 25th article, reporting the three candidates' discussion of how they would handle cases in juvenile court and providing a brief description of each candidate's legal experience and comments from each regarding his qualifications for the circuit court opening.62' On January 28, the Freeman and the JournalSentinel reported that the Waukesha County Bar Association had labelled Domina the "most qualified" candidate in its poll of local lawyers.' Both newspapers set forth the exact results of the poll which rated Domina highest, followed by Fay and Ramirez. Other than printing a number of letters to the editor that specifically endorsed a particular candidate, the Freeman provided no further coverage of the race until a few days before the February 16 primary (as discussed below). On February 9, the Journal Sentinel issued an article that reviewed spending and fundraising in the campaign.' The article listed Fay as both the biggest spender and fundraiser, followed in succession by Domina and Ramirez in both categories.624
619. Id. 620. See id. 621. See Lisa Sink, Candidates Turn Focus to Children, MILWAUKEE J. SENTINEL, Jan. 25,1999, at 1w. 622. Brian Huber, Domina Leads BarPoll of Judge Candidates,WAUKESHA FREEMAN, Jan. 28, 1999, at 3A; accord Lisa Sink, Bar Poll Favors Domina for Circuit Judge, MILWAUKEE J. SENTINEL, Jan. 28, 1999, at 2W. Reactions of the contestants followed the poll results in the Freeman article. See Huber, supra, at 3A. Domina indicated he felt "flatter[ed]." Id. For their parts, Fay said that he should have finished higher "based on his experience," while Ramirez argued that the poll showed he interacted with more people in the community than just lawyers. Id. According to the JournalSentinel, all the candidates said "they were pleased' with the results." Sink, supra, at 2W. However, the Milwaukee paper attributed a quote to Fay in which he accused Domina of soliciting votes from members of the local bar. See id. 623. See Lisa Sink, Spending Increases in Judges Race, MILWAUKEE J. SENTINEL, Feb. 9, 1999, at 1W. 624. See id. According to the Journal Sentinel's examination of campaign finance reports filed on February 8, Fay had raised $33,512, Domina $19,878, and Ramirez $18,984. See id. The Journal Sentinel also reported that Fay had spent $29,140, Domina $14,837, and Ramirez $12,719. See id. MARQUETTE LAW REVIEW [85:593
The following day, the JournalSentinel examined the candidates in a large article on the second page of its Waukesha section.6' The Journal Sentinel reported Ramirez as stating that "the most important issue for voters to decide is which candidate will do the most to protect the community." 6 The Milwaukee paper also indicated that Ramirez viewed himself as having "focused his campaign on four themes: honesty, integrity, involvement and experience. "62Fay, for his part, said that "the key issue in the race [was whether] to elect 'another government lawyer' or [by contrast] a private attorney with experience in all facets of the law-criminal, family, civil and probate." ' The article reviewed Domina's work on the "'cocaine mom case,"' as well as his later work with legislators in drafting a law to enable judges to "detain pregnant, drug-abusing women so that they can receive treatment while the fetuses are protected."6 29 In Domina's lobbying for the bench, he pointed to "his three terms on the Waukesha School Board and past legal work." 630 On February 12, the Journal Sentinel covered a radio debate in which the three candidates participated. According to the article, the hourlong debate "turned from cordial to confrontational after ...Fay argued that Ramirez and Domina lack the breadth of legal experience needed to be a judge." '31 Fay and Ramirez continued to criticize Domina for focusing on juvenile court, where the new circuit judge would begin his term. In the article, the candidates debated how their respective experiences would affect any "learning curve" associated with a bench spot on the local circuit court.632 The latter part of the article detailed Domina's contention that a judicial seat for Ramirez would create "'too close'" of a relationship between a judge and the local prosecutor, in whose office Ramirez worked.633
625. See Lisa Sink, Attorneys Cite Different Skills in Judicial Race, MILWAUKEE J. SENTINEL, Feb. 10, 1999, at 2W. 626. Id. 627. Id. 628. Id. 629. Id. 630. Id. 631. Lisa Sink, Judge Candidates Spar Over Experience, Priorities on Bench, MILWAUKEE J.SENTINEL, Feb. 12,1999, at 1W. 632. Id. 633. Id. More specifically, the article stated as follows: "But apparently referring to District Attorney Paul Bucher, who endorsed Ramirez in a radio ad that aired Thursday, Domina said, 'Ithink sometimes there's a little bit too close a club that occurs when your boss is appearing in front of you and has supported you for office ... as has happened in 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
On February 13, a few days before the primary, tlhe Waukesha Freeman printed a second-page article profiling the three candidates.'M The article categorized each judge hopeful with an article subtitled with his respective name, a picture of each, and an enlarged quotation from each.35 Each profile focused on what the prior legal experience of the particular contestant meant to a potential seat on the bench."6 The newspaper reported that Domina claimed to have the most experience of the candidates because his "position as senior assistant county corporation counsel ha[d] led him into family, civil and juvenile law." 37 Fay asserted that he possessed the best experience because he had "'done divorces, real estate, wills, criminal and civil"' as a private practitioner.38 Last, Ramirez argued that his experience as a prosecutor in addition to his "'life experiences"' would make him a good judge.639 Also on February 13, the Journal Sentinel endorsed Domina in the primary election. 0 The paper cited Domina's work with children's issues, as well as his "extensive experience in family, civil and juvenile courts."' The editorial stated that Ramirez also "would make a fine judge.""' 2 Finally, the Journal Sentinel said that Fay "ha[d] extensive trial experience... and ha[d] been an asset to the community in a number of other areas," but his "tendency to shoot from the hip ... may not be the best temperament for someone on the bench."63 On the 15th of February, the day before the primary, both the Freeman and the Journal Sentinel published articles that reported a letter sent to Domina by Waukesha County District Attorney Paul Bucher, a copy of which Bucher also sent to the media.6" Bucher's letter criticized Domina for comments the candidate had made on a radio talk
Waukesha County with several judges that have been elected, and would happen if Mr. Ramirez were elected.'" Id. (ellipses in newspaper). 634. See Dennis A. Shook, Three Vie for Retiring Judge's Court Seat, WAUKESHA FREEMAN, Feb. 13,1999, at 2A. 635. See id. 636. See id. 637. Id. 638. Id. 639. Id. 640. See Editorial, Domina Edges Out Opponents, MILWAUKEE J. SENTINEL, Feb. 13, 1999, at 2W. 641. Id. 642. Id. 643. Id. 644. See Dennis A. Shook, Domina Calls Bucher's Letter a Headline Grab, WAUKESHA FREEMAN, Feb. 15, 1999, at 3A; Vikki Ortiz, Bucher Demands Apology from Domina, MILWAUKEE J. SENTINEL, Feb. 15,1999, at 1W. MARQ UETTE LAW REVIEW [85:593
show, in which, according to Bucher, Domina alleged that former local prosecutors who ascended to the bench gave the district attorney's office preferential treatment in court." Domina responded that "'[by] [t]he way [Bucher] handled this[,] he's revealed that all he wanted was a headline.'"646 Bucher also confirmed "his active support of Ramirez in his ... letter to Domina," according to the Freeman.67 The day after the primary, the Freeman reported in a front-page article that Ramirez and Domina had survived the primary."8 The JournalSentinel placed a report devoted to the race on the front page of its Waukesha section."9 The Freeman piece on the results of the primary listed the experience and notable achievements of the remaining 6 contestants. 5 The Milwaukee Journal Sentinel article indicated that both survivors were "government lawyers.""6 ' The Milwaukee paper also wrote that "Ramirez ha[d] stressed his experience prosecuting criminals and fighting for victims' rights, while Domina ha[d] focused on juvenile crime and the abuse and neglect of children and viable fetuses." 652 Similarly, the Waukesha Freeman article reported that Ramirez "ha[d] presented himself as someone who is tough on crime" and "ha[d] been the lead prosecutor on sexual predator cases."6'53 The
Freeman also noted that Domina "represent[ed] the county in civil6' 5and4 child protection cases," including the "so-called cocaine mom case."
645. Cf. supra note 633 and accompanying text (describing some of Domina's comments). 646. Shook, supra note 644, at 3A. 647. Id. 648. See Dennis A. Shook, Domina, Ramirez Win in Primary, WAUKESHA FREEMAN, Feb. 17, 1999, at 1A. Ramirez received 9057 votes (43.36%), Domina 7298 (34.94%), and Fay 4532 (21.70%). See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 649. See Lisa Sink, Fay Knocked Out of Race, MILWAUKEE J. SENTINEL, Feb. 17, 1999, at 1W. 650. See Shook, supra note 648, at 1A. 651. Sink, supra note 649, at 1W. 652. Id. 653. Shook, supra note 648, at 1A. 654. Id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
On February 20, the Freemanlisted Ramirez at the top of its winners in its "Winners & Losers" feature."' The Freeman commented that Ramirez's finish in the primary ahead of Domina by almost 2000 votes was "impressive" because Ramirez "wasn't as well known prior to the election compared to Domina."" Also in the wake of the primary, the Journal Sentinel printed an editorial criticizing the Waukesha County District Attorney for his questioning of Domina's concern about the possibility of a former local 6 prosecutor's sitting on the bench. ' The Milwaukee paper did not print another article about the Ramirez-Domina race for some time. Coverage resumed only when the April 6 election was much closer at hand. Thus, on March 24, the Milwaukee Journal Sentinel published an article on the race at the top of the front page of its Waukesha section.6 8 The article covered Domina's anger over support for Ramirez by members of Waukesha's Republican Party6 9 "Domina complained that [a letter mailed to local residents] gave the appearance that the '66 [Republican] party was endorsing ... Ramirez. 0 According to the Journal Sentinel, Domina argued that "[i]n a non-partisan race ... a party endorsement would be unethical and inappropriate., 6 ' The local party organization denied that the letter was an endorsement by the party itself. 6 Three days later, the Journal Sentinel ran an editorial criticizing what it viewed as the politicization of the race by the local 6 Republican Party. The editorial reiterated the paper's endorsement6 of Domina, but again recognized Ramirez as a "fine candidate.", On March 29, the Journal Sentinel analyzed the fundraising of the two candidates, much as it had done before the primary.6 5 The article stated that Ramirez appeared to have raised more money from
655. See Editorial, Winners & Losers, WAUKESHA FREEMAN, Feb. 20,1999, at 5A. 656. Id. 657. See Editorial, Bucher Shouldn't Wonder That People Ask Questions, MILWAUKEE J. SENTINEL, Feb. 20,1999, at 2W. 658. See Lisa Sink, Candidatefor Judge Slams Some GOP Leaders, MILWAUKEE J. SENTINEL, Mar. 24,1999, at 1W. 659. See id. 660. Id. 661. Id. 662. See id. 663. See Editorial, Judicial Race Should Be Non-Partisan, MILWAUKEE J. SENTINEL, Mar. 27,1999, at 2W. 664. Id. 665. See Lisa Sink, Judicial Candidate Ramirez Has Edge in Race for Donations, MILWAUKEE J. SENTINEL, Mar. 29,1999, at 1W. MARQUETTE LAW REVIEW [85:593 contributions than any other judicial candidate in Waukesha County history.66 Ramirez had collected slightly under $40,000 and Domina around $30,000; these figures did not include the estimated $20,000 of personal money that each candidate had spent on the race.667 According to the Journal Sentinel, the previous record for contributions was believed to have been around $30,000, raised by a 1996 candidate for circuit court.668 On March 30, in a front-page article, the Waukesha Freeman recounted the details of a candidate forum the previous day.669 The Freeman described how both candidates "touted their experience. ' ' 7° For example, Ramirez declared that he alone had "'extensive jury trial experience.'671 According to the Freeman,Domina responded that "he also had extensive jury trial experience, but in less frequent, longer duration cases."672 Domina asserted that his experience in "child abuse and child neglect cases," as well as "his five years on the Waukesha School Board," made him the best-prepared candidate.6 7 On April 1, the Waukesha daily newspaper continued its practice of printing articles that focused on the experience of the candidates.6 74 In a piece on its second page, the Freeman provided a forum for each candidate to suggest how his legal experience would translate into good bench work.675 Ramirez contended that he was the best candidate because of his "'real courtroom experience.' '676 Domina disputed Ramirez' claim by asking this question: "'Should people assume that you can only be a qualified candidate if you're a graduate of the district
666. See id. 667. See id. 668. See id. 669. See Dennis A. Shook, Domina, Ramirez Square Off in Debate, WAUKESHA FREEMAN, Mar. 30, 1999, at 1A. The Freeman and JournalSentinel had previously printed small announcements of this forum. See Women Voters Set Court Forum, WAUKESHA FREEMAN, Mar. 18, 1999, at 1A; Women Voters to Host Judge Candidates, WAUKESHA FREEMAN, Mar. 26, 1999, at 3A; Judicial Candidates to Appear at Forum, MILWAUKEE J. SENTINEL, Mar. 28, 1999, at 1W. 670. Shook, supra note 669, at 1A. 671. Id. 672. Id. 673. Id. The newspapers reported that "[b]oth men also pointed to their community activities and endorsements as reasons for voter support." Id. 674. See Dennis A. Shook, Domina, Ramirez Each Claim Experience Edge, WAUKESHA FREEMAN, Apr. 1, 1999, at 2A. 675. See id. 676. Id. 20021 THE PRINT MEDIA AND JUDICIAL ELECTIONS
' 6 7 attorney's office? " According to the Freeman article, "Ramirez said [another] of his strengths would be in bringing additional efficiency to the circuit court." 678 The Freeman additionally reported Domina's statement that he "consider[ed] himself a legal scholar" who had "lectured before peers and at universities about how to write key decisions, and about constitutional rights, land use and fetal protection 679 rights." On April 3, the Freeman endorsed Domina in an editorial at the top of its editorial page.' The Freeman particularly appreciated Domina's ideas "to use juvenile offenders for a Teen Work Crew for community service tasks" and to "appoint a permanent task force to open communications between the schools and juvenile court., 681 The Freeman stated that both candidates were qualified for the position, but "the edge" went to Domina.6n The Milwaukee Journal Sentinel,,also reiterated its support of Domina in advance of the general election.8 On Election Day, Ramirez won the judicial seat, gaining 30,386 votes (59.15%) to Domina's 20,981 (40.85%).Ym Tables 24 through 26 summarize the coverage of Ramirez, Domina, and Fay in the Milwaukee JournalSentinel and the Waukesha Freeman.6s
677. Id. 678. Id. 679. Id. 680. See Editorial, Domina the Wisest Decisionfor Judge, WAUKESHA FREEMAN, Apr. 3,1999, at 8A. 681. Id. 682. Id. 683. See Editorial, supra note 663, at 2W. 684. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 685. For reasons previously explained, the tables do not encompass material published in a variety of non-daily local newspapers in Waukesha County. See supra note 601. Nonetheless, given the nature of this study, it is useful to record the coverage of those newspapers to a certain (albeit less-detailed) extent. The non-daily providing the most coverage was the Oconomowoc Enterprise, which published the following concerning the Ramirez-Domina-Fay race: two news articles (one briefly reporting on the candidates before the primary and the other reporting the primary results); one opinion piece (criticizing the Waukesha County Republican Party for its officials' support of one of the candidates in the non-partisan race); four letters to the editor (three supporting Domina and one for Fay); and five advertisements (two each for Ramirez and Domina and one for Fay). The various CNI newspapers all published the same materials: two news articles (one before the primary and the other reporting the primary results) and one letter to the editor (supporting Domina). The Lake Country Reporter published three letters to the editor (two for Domina and one for Ramirez) and a Domina advertisement, and the Sussex Sun ran a letter to the editor supporting Ramirez. MARQ UETTE LAW REVIEW [85:593
Waukesha Freeman Milwaukee JournalSentinel
Table 24- Waukesha County (Ralph Ramirez)
Total Number with Any Reference 11 3 0 6 4 16 3j 0 I 1 5 CharacteristicsIdentified as Desirable Integrity 1 3 1 Judicial Temperament Industry 1 3 Professional Learning 3 1 2 2 Professional Experience/Judicial Professional Experience/Practice 8 3 5 1 14 2 2 Impartiality 1 Honesty 1 1 2 Courage Independence 1 2 1 Fairness 1 1 1 Knowledge of the Law 1 Others' Opinions of the Candidate 7 1 5 4 12 3 1 5 Other Matters Age 5 3 Local Residence/Site of Practice 3 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards Community Activity 2 1 1 1 1 Mention as Candidate (Only) 2 1 Bar/Bench Reaction 5 3 4 6 2 5 Endorsements/Support 5 5 4 10 3 5 Primary Results 2 1 Crime and Criminal Law 8 2 5 4 15 2 5 Campaign Financing 2 Thanks Quotation of Candidate 6 3 12 5 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Waukesha Freeman Milwaukee JournalSentinel rTr-I-Tr-t-rr-1-
Table 25 -Waukesha County (Bill Domina)
Total Number with Any Reference 12 3 0 10 4 16 3 0 1 4 CharacteristicsIdentified as Desirable Integrity 1 2 1 Judicial Temperament 3
Industry C 3 Professional Learning 3 1 1 2 2 Professional Experience/Judicial Professional Experience/Practice 8 3 6 4 13 1 1 4 Impartiality 2 Honesty 1 1 Courage Independence 1 1 2 1 Fairness 3 1 Knowledge of the Law 2 2 Others' Opinions of the Candidate 7 2 10 4 10 3 1 4 OtherMatters Age 5 3 Local Residence/Site of Practice 2 Veteran/Army Reserve Family 1 1 Prior Candidacies 1 5 Honors/Awards Community Activity 6 1 8 4 7 1 4 Mention as Candidate (Only) 2 Bar/Bench Reaction 3 4 3 1 4 Endorsements/Support 3 2 9 4 6 2 1 4 Primary Results 2 1 Crime and Criminal Law 5 1 7 4 7 1 1 4 Campaign Financing 2 Thanks Quotation of Candidate 8 1 4 13 4 MARQ UETTE LAW REVIEW [85:593
Waukesha Freeman Milwaukee JournalSentinel
Table 26 - Waukesha County (Dan Fay)
Total Number with Any Reference 5 1 0 7 0 9 1] 0 110 CharacteristicsIdentified as Desirable Integrity Judicial Temperament Industry Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 5 1 6 9 1 Impartiality Honesty 3 Courage Independence Fairness 4 Knowledge of the Law 1 4 2 Others' Opinions of the Candidate 1 6 4 1 Other Matters Age 2 1 Local Residence/Site of Practice 3 1 Veteran/Army Reserve Family 1 2 Prior Candidacies Honors/Awards Community Activity 2 Mention as Candidate (Only) 1 Bar/Bench Reaction 1 2 3 Endorsements/Support 6 2 Primary Results Crime and Criminal Law 2 5 5 1 Campaign Financing 1 Thanks Quotation of Candidate 2 7 20021 THE PRINT MEDIA AND JUDICIAL ELECTIONS 731
G. Milwaukee County The Milwaukee Journal Sentinel began its coverage of local court races with an early-January article reporting that there would be elections for twelve circuit court positions in the spring of 1999 in Milwaukee County.86 Seven incumbents ran unopposed, as did one newcomer.m Three incumbents each faced one registered challenger: Patricia McMahon was challenged in her re-election bid by Andrew Shaw in Branch 18, John McCormick by Jim Flynn in Branch 19, and William Haese by Peter Earle in Branch 22.m In the only race that needed a primary, three people, none of them an incumbent, sought the seat produced by the creation of the new Branch 47."s9 The Branch 47 candidates were Ann Bowe, David Feiss, and John Siefert.6'° We will discuss each of the four contested elections.691 Although the narratives derive primarily from the coverage in the Milwaukee Journal Sentinel, the tables also track the coverage of the Shepherd Express, a free weekly distributed in parts of the Milwaukee area.692 1. Patricia McMahon's Defense of Her Branch 18 Seat Against Andrew Shaw Andrew J. Shaw's challenge to Judge Patricia McMahon received attention in January because of other media attention Shaw had garnered in the past. On January 28, 1999, in a column often concerned
686. See 4 JudgeshipsContested in Milwaukee County, MILWAUKEE J. SENTINEL, Jan. 6, 1999, at 8B. Milwaukee County, the state's largest county, has a population of 940,164, of which more than sixty percent (viz., 596,974) live in the City of Milvaukee. See STATE OF WISCONSIN, 2001-2002 BLUE BOOK 733,759 (2001). 687. The unopposed incumbents were Maxine White, Branch 1; Timothy Dugan, Branch 10; Stanley Miller, Branch 21; John Franke, Branch 25; Thomas Doherty, Branch 27; Jacqueline Schellinger, Branch 34; and Jeffrey Kremers, Branch 36. See 4 Judgeships Contested in Milwaukee County, supra note 686, at 8B. The unopposed newcomer was Carl Ashley, Branch 33. See id. 688. See id. 689. See id. 690. See id. 691. See supra Introduction and Overview and Part I.A (explaining approach of Article). 692. We do not discuss in the narratives themselves the at-times extensive coverage of the Shepherd Express because this area weekly is far from universally available throughout Milwaukee County, and we are interested primarily in the information reasonably available to average voters (or, in this instance, some average voters in Milwaukee County, cf supra note 39). We do not at all track the coverage provided by Metro, another (and short-lived) free weekly in the Milwaukee area, or by various suburban weeklies. While there was some coverage in the former (i.e., Metro), our impression based on our research is that the latter (i.e., the suburban weeklies) provided essentially no coverage. MARQUETTE LAW REVIEW [85:593 with local and state political matters, the Milwaukee Journal Sentinel noted the unusual nature of Shaw's candidacy.6" Shaw had received unfavorable national attention for his part in a 1994 federal suit against a Lake Geneva, Wisconsin steakhouse, which eventually made it to the United States Court of Appeals for the Seventh Circuit. 94 In addition to describing this suit, the Journal Sentinel informed readers that Judge McMahon, now Shaw's opponent, once "ruled a Shaw motion frivolous and ordered him to pay [the other side's] attorney costs in the matter."695 The Milwaukee article also detailed Shaw's financial troubles, including outstanding attorney's fees he had been ordered to pay in the steakhouse case and $53,000 he owed to avoid foreclosure on a Milwaukee duplex. A subsequent column reported Shaw's filing for bankruptcy on February 10, 1999.696 The race received no further coverage from the Milwaukee Journal Sentinel until shortly before the election. On March 29, the Journal Sentinel printed its endorsements of candidates in the four contested circuit court elections in Milwaukee County." The newspaper backed McMahon over Shaw in what it labelled "a much easier call" than the three other contested races.698 The endorsement stated that the "capable" McMahon "clearly deserve[d] re-election over her challenger, Andrew Shaw," who received fewer "'qualified"' votes in a Milwaukee Bar Association poll than any other judicial candidate.99 The editorial pointed out the controversy surrounding Shaw, especially in regard to the steakhouse case.]°
693. See Cary Spivak & Dan Bice, Lawyer Burned Up by Verdict Will Seek Circuit Court Seat, MILWAUKEE J. SENTINEL, Jan. 28, 1999, at 2A. 694. In that case, Shaw represented a Chicagoan who sued a Lake Geneva steakhouse for serving a steak well done that the customer had ordered medium well. The plaintiff sought $55,000 in damages. In the late-January article, the JournalSentinel reported that a federal judge in the Eastern District of Wisconsin had dismissed the suit and that when Shaw appealed, the Seventh Circuit called the lawsuit "'goofy,"' going so far as to say that Shaw's position on one issue in the case was "'nutty."' Id.; see Schlessinger v. Salimes, 100 F.3d 519, 521,522 (7th Cir. 1996). 695. Spivak & Bice, supra note 693, at 2A. 696. See Cary Spivak & Dan Bice, Staffers for Agency That Won W-2 Contract Give to Governor, MILWAUKEE J. SENTINEL, Feb. 11, 1999, at 2A. 697. See Editorial, Experience, Temperament Matter on Bench, MILWAUKEE J. SENTINEL, Mar. 29, 1999, at 8A. 698. Id. 699. Id. The Journal Sentinel also repeated its endorsement of the incumbent on Election Day when it listed its endorsements for various posts. See Editorial, Our Picks in Selected Election Races Today, MILWAUKEE J. SENTINEL, Apr. 6, 1999, at 10A. 700. See Editorial, supra note 697, at 8A. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 733
On April 3, the Journal Sentinel ran its only traditional news article about the race. In its state-and-local section, the newspaper published a profile of the race between McMahon and Shaw; the article contained biographical information about the contestants and quotations concerning their views.701 The article began with the newspaper's saying, "Andrew Shaw presents himself as a mixture of Abraham Lincoln and Don Quixote, a principled, struggling lawyer tilting at the legal 7 2 establishment. " 0 The informative piece detailed Shaw's financial 7 3 troubles and his prior conflicts with McMahon. 0 The article indicated that both candidates listed "fairness and impartiality" as bases for their 7 4 respective bids for the bench. 0 According to the Journal Sentinel, McMahon's re-election effort relied "on her record over [the course of fourteen years on the bench] and her reputation for legal scholarship. "705 The article concluded with Shaw's responding to a Milwaukee Bar Association poll in which he received "222 votes of not qualified and 57 votes of qualified., 706 Shaw stated that this was "just another example of the establishment showing its bias," for "[tihe current system favors7 7 lawyers from large firms with political connections to sitting judges. 0 In these circumstances, Shaw said, "'What I'm doing is a service to the public. 7S On Election Day, McMahon prevailed with 73.97% of the votes 7 9 (62,570) to Shaw's 26.03% (22,017). ' Tables 27 and 28 summarize the press coverage first of McMahon and then of Shaw.
701. See Tom Held, Circuit Court Challenger Touts 'Hard Knocks' Experience, MILWAUKEE J.SENTINEL, Apr. 3,1999, at 7B. 702. Id. 703. See id. 704. Id. 705. Id. 706. Id. 707. Id. 708. Id. 709. See STATE OF WISCONSIN, 1999-2000 BLUEBOOK 856 (1999). MARQUETTE LAW REVIEW [85:593
Milwaukee JournalSentinel Shepherd Express
Table 27- Milwaukee County Branch 18 (Patricia D. McMahon)
Total Number with Any Reference 3 j 0 1 4 j0 j 0 j 1 0 CharacteristicsIdentified as Desirable Integrity 1 1 Judicial Temperament 1 Industry 1 Professional Learning 1 Professional Experience/Judicial 3 1 4_ Professional Experience/Practice 1 1 Impartiality 1 1 Honesty Courage Independence 1 Fairness 1 1 Knowledge of the Law 1 1 Others' Opinions of the Candidate 1 2 1 3 Other Matters Age 1 1 2 Local Residence 1 Veteran/Army Reserve Family 1 Prior Candidacies 1 1 Honors/Awards Community Activity 1 Mention as Candidate (Only) Bar/Bench Reaction 1 1 1 Endorsements/Support 2 1 1 Primary Results Crime and Criminal Law 1 1 Campaign Financing 1 Thanks Quotation of Candidate 1 1 1 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Milwaukee JournalSentinel Shepherd Express
Table 28- Milwaukee County Branch 18 (Andrew J. Shaw)
Total Number with Any Reference 3j1J0 0 0 4j 0 0 1 1 0 CharacteristicsIdentified as Desirable Integrity 1 Judicial Temperament 1 Industry Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 2 1 4 1 Impartiality 1 1 Honesty Courage Independence Fairness 11 Knowledge of the Law 1 Others' Opinions of the Candidate 2 1 2 Other Matters Age 1 1 1 Local Residence/Site of Practice 2 1 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards Community Activity 1 Mention as Candidate (Only) 1 Bar/Bench Reaction 1 1 1 Endorsements/Support Primary Results Crime and Criminal Law Campaign Financing Thanks Quotation of Candidate 1 MARQUETTE LAW REVIEW [85:593
2. The Race for the Newly Created Branch 47 Shortly before the February 16, 1999 primary, the Milwaukee JournalSentinel endorsed Ann Bowe and David Feiss in the race for the newly created Branch 47 seat.7"' The endorsement labelled Bowe the best candidate and Feiss the second-best.711 The JournalSentinel argued that the experience of Bowe and Feiss as lawyers in circuit court (the former as a criminal defense attorney and the latter as an assistant district attorney), as opposed to John Siefert's experience as a judge in municipal court, rendered Bowe and Feiss better candidates than Siefert.712 The endorsement cited Bowe's "genuine passion for change, for making the system less bureaucratic and more understandable to average people."M The newspaper also indicated that "[a]s a woman, a defense attorney, and a former state public defender, Bowe also would714 add diversity to a job in which many judges are former prosecutors." On the Saturday before the Tuesday primary in Branch 47, the Journal Sentinel printed an article with short biographies of the three candidates.715 The newspaper reported that Bowe was "a lawyer in private practice best known for her criminal defense work," Feiss was "an assistant district attorney and head prosecutor in the white-collar crime unit in Milwaukee," and Siefert was "a municipal judge in Milwaukee and former county treasurer and police officer. 7' 1 The article quoted Bowe defending against "criticism by her opponents that a criminal defense background is a minus for a judge.'' 71 7 Feiss contended that his fact-gathering experience as a prosecutor, namely starting investigations based on citizen complaints, would help him in 718 similar tasks as a judge. Feiss also noted his endorsement by the719 Milwaukee Police Association over Siefert, a former police officer. Siefert made "campaign spending the main issue" in the race, according
710. See Editorial, Bowe Has Slight Edge in Judicial Race, MILWAUKEE J. SENTINEL, Feb. 10, 1999, at 14A. 711. See id. 712. See id. 713. Id 714. Id. 715. See Jim Stingl, Judicial Race Pits Candidates of Contrasting Styles, Backgrounds, MILWAUKEE J. SENTINEL, Feb. 13,1999, at 7B. 716. Id. 717. Id. 718. See id. 719. See id. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 737 to the Journal Sentinel.m Siefert also criticized the "law-and-order theme of [his opponents'] TV spots," stating that "Feiss prosecutes mostly fraud and not street crime ... , and Bowe defends criminals."n2 Viewed in this light, Siefert contended, "'[t]he preposterous nature of their television commercials indicates my opponents will say or do anything to get elected.'"" The Milwaukee Journal Sentinel reported the results of the Branch 47 primary in a February 17 article on the third page of its state-and- local section.' Milwaukee's daily reported that only six percent of registered voters had cast a ballot in the February 16th primary.M Bowe collected 15,068 votes (41.32%) and Siefert 11,409 votes (31.29%), thereby eliminating Feiss who finished with 9987 votes (27.39%). m In this same article, the JournalSentinel attributed a statement to Siefert in which he continued to stress campaign spending as an issue. Bowe, for her part, was said to "minimiz[e]" Siefert's municipal court experience when she said that "'[c]ircuit [c]ourt is not about traffic tickets,"' an apparent reference to Siefert's claim that his experience as a municipal judge made him the best candidate for the Branch 47 position.?7 On February 20, as part of its regular editorial series entitled "Weekly Laurels and Laments," the Journal Sentinel condemned Bowe's advertising campaign m The editorial condemned as "awful" Bowe's television commercials "warn[ing] criminals, in so many words, that Bowe would throw the book at them if she gets elected."72' 9 Despite this criticism, the newspaper took the opportunity to reiterate its support of Bowe.m
720. Id. 721. Id. 722. Id. The article did not otherwise elaborate on the television commercials to which Siefert referred. 723. See Jim Stingl, Bowe, Siefert Advance in Race for New Post, MILWAUKEE J. SENTINEL, Feb. 17, 1999, at 3B. 724. See id. 725. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 854 (1999). 726. See Stingl, supranote 723, at 3B. 727. Id. 728. See Editorial, Weekly Laurels and Laments, MILWAUKEE J. SENTINEL, Feb. 20, 1999, at 10A. 729. Id. 730. See id. MARQ UETTE LAW REVIEW [85:593
The Milwaukee daily's next coverage did not occur until much closer to the election. On March 29, the Journal Sentinel printed its endorsements in the four contested circuit court elections in Milwaukee County."' As expected, Bowe received the paper's endorsement for the April 6th election.73 2 The Journal Sentinel's only significant news coverage of the race after the primary occurred on April 2, when the Milwaukee daily printed an examination of the Siefert-Bowe contest, including biographical information about the candidates.733 The article focused on Siefert's discovery and use in the campaign of published remarks by Bowe from 1986, in which, according to the Journal Sentinel, Bowe said the following: "'It makes me feel good to be in a courtroom and be the person who is sticking up for the scum of the earth.'"4 Siefert "called the remarks by Bowe 'devastating' to her campaign and a huge boost to his own."7 35 Bowe responded to Siefert's condemnation by stating she had always represented her clients "'with the kind of ,736 passion and prejudice that that article denotes.' She went on to say' 7 that she would be a "'hardworking sincerely dedicated judge.,, Finally, the Journal Sentinel echoed its previous endorsement of Bowe on the day of the election when it printed a names-only outline of its endorsements.738 On April 6, 1999, Siefert triumphed with 52,863 votes (57.32%) to Bowe's 39,358 (42.68%).73' Tables 29 through 31 summarize the press coverage of the race (first of Siefert, then of Bowe, and finally of Feiss).
731. See Editorial, supra note 697, at 8A. 732. See id. 733. See Jim Stingl, Siefert Digs Up Old Words to Use in Judicial Campaign Against Bowe, MILWAUKEE J. SENTINEL, Apr. 2, 1999, at 3B. The only other post-primary news coverage in the JournalSentinel was a brief notation at the end of a local-affairs column that Siefert had retained a particular media consultant to undertake radio and television advertisements. See Cary Spivak & Dan Bice, Doyle Confirms He's Talking to FriendsAbout a Run for Governor in 2002, MILWAUKEE J. SENTINEL, Mar. 25,1999, at 2B. 734. Stingl, supra note 733, at 3B. According to the JournalSentinel, Bowe made the remarks in a Milwaukee Magazine interview in 1986. See id. 735. Id. 736. Id. 737. Id. 738. See Editorial, supra note 699, at 10A. 739. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Milwaukee JournalSentinel Shepherd Express
Table 29- Milwaukee County Branch 47 (John Siefert)
Total Number with Any Reference 6 2 0 0 0 5 0 0 0 0 CharacteristicsIdentified asDesirable Integrity Judicial Temperament 1 1 2 Industry 1 Professional Learning 2 Professional Experience/Judicial 3 2 4 Professional Experience/Practice 2 Impartiality Honesty Courage Independence Fairness 1 Knowledge of the Law Others' Opinions of the Candidate 2 2 3 Other Matters Age 3 1 3 Local Residence 3 Veteran/Army Reserve Family 2 Prior Candidacies 3 4 Honors/Awards 1 Community Activity 1 Mention as Candidate (Only) 2 Bar/Bench Reaction 1 2 Endorsements/Support Primary Results 3 3 Crime and Criminal Law 3 3 Campaign Financing 3 2 Thanks Quotation of Candidate 3 2 MARQUETTE LAW REVIEW [85:593
Milwaukee JournalSentinel Shepherd Express
Table 30- Milwaukee County Branch 47 (Ann T. Bowe)
Total Number with Any Reference 6 5 0 0 5 0 0 0-1 1 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 Industry 1 Professional Learning 2 Professional Experience/Judicial Professional Experience/Practice 3 3 4 Impartiality Honesty Courage Independence 1 Fairness 1 1 Knowledge of the Law Others' Opinions of the Candidate 2 4 3 Other Matters Age 3 1 3 Local Residence/Site of Practice 3 1 2 Veteran/Army Reserve Family 2 1 Prior Candidacies Honors/Awards 1 Community Activity 1 2 Mention as Candidate (Only) 2 1 Bar/Bench Reaction 1 2 Endorsements/Support 1 5 3 Primary Results 3 3 Crime and Criminal Law 3 3 4 Campaign Financing 1 2 Thanks Quotation of Candidate 3 2 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Milwaukee JournalSentinel Shepherd xpress
Table 31 - Milwaukee County Branch 47 (David A. Feiss)
Total Number with Any Reference 3 1 0 0 0 2 0 0 0 0 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 Industry 1 Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 1 1 2 Impartiality Honesty Courage Independence Fairness Knowledge of the Law Others' Opinions of the Candidate 1 1 1 Other Matters Age 1 1 2 Local Residence/Site of Practice 1 1 1 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards 1 Community Activity 1 Mention as Candidate (Only) 2 Bar/Bench Reaction 1 Endorsements/Support 1 1 1 Primary Results Crime and Criminal Law 1 1 2 Campaign Financing 2 Thanks Quotation of Candidate 1 1 MARQUETTE LAW REVIEW [85:593
3. The Race for Branch 22 Between Incumbent William Haese and Challenger Peter Earle The Milwaukee Journal Sentinel did not run any significant coverage of the race between incumbent William Haese and challenger Peter Earle until two weeks before the election. The Milwaukee paper then reported that Earle had criticized Haese "for claiming to have the endorsement of four County Board supervisors who say they actually support Earle."7'0 Two of the supervisors admitted that they had endorsed Haese until Earle entered the race, while two others indicated "they had no idea why Haese thought they were supporting him in the April 6 election." 74' Haese stated that he had not intended to misrepresent his endorsements. 742 On March 29, the Journal Sentinel printed its endorsements of candidates in the four contested circuit court elections in Milwaukee County. The Milwaukee paper endorsed the incumbent Haese over Earle, despite calling the challenger "especially impressive." 74' Haese received the endorsement because "there [was] no question about his competence, work ethic or ability to get the job done. '744 Earle also received praise from the paper's editors, who wrote that Earle "has a superb temperament and . . . a commonsense approach to law and life. 1745 The Milwaukee Journal Sentinel's standard-format article for local judicial races ran for the Haese-Earle contest on April 2, 1999, only a few days before the election (and, indeed, after the above-discussed editorial endorsement had been published).7" Although Earle was reported as being careful not to "sa[y] that 73-year-old William Haese is too old to be a judge," the newspaper related the challenger's television advertisement invoking a recent decision of the Wisconsin Court of Appeals that had overturned a medical-malpractice judgment entered by Haese and had stated that Haese's finding in the case had been
740. Jim Stingl, Opponent Says Judge Exaggerates His Support, MILWAUKEE J. SENTINEL, Mar. 23, 1999, at 7B. 741. Id. 742. See id. 743. Editorial, supra note 697, at 8A. 744. Id. 745. Id. The JournalSentinel also noted its endorsement of the incumbent (Haese) on the day of the election. See Editorial, supra note 699, at 10A. 746. See Jim Stingl, Challenger Makes Incumbent's Temperament an Issue in Judicial Race, MILWAUKEE J. SENTINEL, Apr. 2,1999, at 5B. 20021 THE PRINT MEDIA AND JUDICIAL ELECTIONS
7' 47 "'either inaccurate or the result of confusion. 0 "'We can't afford confused judges on the bench,"' Earle's advertisement was reported as saying.74s The article also recounted Earle's criticisms of a particular prison sentence ordered by Haese as too lenient (Haese countered that the case had occurred seventeen years before and that the sentence was harsher than a probation agent had recommended) and of Haese's reputation for being too quick to dismiss cases based on such things as an attorney's being a few minutes late. The newspaper further reported that Earle was seeking to become the second Hispanic on the bench in Milwaukee and gave some details of Earle's practice; it noted that Haese, the incumbent, had relatively little to say about his opponent.749 The Journal Sentinel concluded by noting that "[t]elevision ads have made the race an expensive one," with Earle reporting that week to the Wisconsin Elections Board that he had spent $131,822 and Haese that he had spent $47,173.7"0 The newspaper also included at the end of the article a capsule summary of each candidate, reporting briefly concerning his age, birth date, recent work history, elective offices held and other government experience, education, community activities, and 75 1 family. On Election Day, Haese took 50.82% of the votes (45,543) against 7 Earle's 49.18% (44,066). 5 Tables 32 and 33 summarize the newspaper coverage of the Haese-Earle race.
747. Id. The case is not formally published but may be found at Hull v. Medical Associates of Menomonee Falls, Ltd., No. 97-1246, 1998 Wisc. App. LEXIS 1468 (Dec. 29, 1998). 748. Stingl, supra note 746, at 5B. 749. See id. 750. Id. 751. See &L 752. See STATE OF WISCONSIN, 1999-2000 BLUEBOOK 856 (1999). MARQUETTE LAW REVIEW [85:593
Milwaukee JournalSentinel Shepherd Express
Table 32- Milwaukee County Branch 22 (William J. Haese)
Total Number with Any Reference 3 2 j0 0 j1 6 0 1 0 CharacteristicsIdentified as Desirable Integrity 1 Judicial Temperament 1 1 2 1 Industry 1 1 Professional Learning 1 Professional Experience/Judicial 3 1 6 Professional Experience/Practice 1 1 Impartiality Honesty 1 1 Courage Independence Fairness 1 1 1 Knowledge of the Law 1 1 2 Others' Opinions of the Candidate 2 2 1 4 Other Matters Age 1 1 4 Local Residence 1 Veteran/Army Reserve 1 Family 1 1 Prior Candidacies 1 1 Honors/Awards Community Activity 1 Mention as Candidate (Only) Bar/Bench Reaction 1 1 2 Endorsements/Support 2 2 1 4 Primary Results Crime and Criminal Law 1 1 3 Campaign Financing 1 1 Thanks Quotation of Candidate 2 3 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Milwaukee JournalSentinel Shepherd Express
Table 33 - Milwaukee County Branch 22 (Peter Earle)
Total Number with Any Reference 3 1 0 0 0 6 0 0 1 1 CharacteristicsIdentified as Desirable Integrity Judicial Temperament 1 1 Industry Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 2 1 4 1 Impartiality Honesty 1 Courage Independence Fairness Knowledge of the Law 1 Others' Opinions of the Candidate 1 1 5 1 OtherMatters Age 1 1 1 Local Residence/Site of Practice 1 1 1 Veteran/Army Reserve Family 1 Prior Candidacies Honors/Awards Community Activity 1 1 Mention as Candidate (Only) 1 Bar/Bench Reaction 1 Endorsements/Support 1 4 Primary Results Crime and Criminal Law 1 2 Campaign Financing 1 1 Thanks Quotation of Candidate 2 4 MARQ UETTE LAW REVIEW [85:593
4. The Race for Branch 19 Between Incumbent John McCormick and Challenger James Flynn The Milwaukee JournalSentinel ran only one substantial news article reporting on the race between Judge John McCormick and former Lieutenant Governor James Flynn in the contest for Branch 19 of the Milwaukee County Circuit Court. Specifically, after reporting briefly in early January that Flynn would challenge McCormick,753 the Journal Sentinel did not return to the race until March 31. It then reported that Flynn "pulls no punches in his assessment of McCormick": "'There's been evidence of a need for improvement in his work habits,' the challenger said. 'Judge McCormick is not getting the work done. ,,75 McCormick responded by pointing out that a bar association poll had overwhelmingly rated him qualified to remain on the bench.7 55 The candidates also sparred over sentencing philosophies, with Flynn emphasizing the importance of ordering jail time and McCormick said to "tou[t] probation. 756'
In endorsing McCormick, the Journal Sentinel acknowledged77 criticism that McCormick was indecisive and worked slowly. 1 However, the newspaper stated that McCormick "gets high marks for fairness and the respect he shows all who appear before him."75' 8 The Journal Sentinel admitted that Flynn "is bright and energetic with a varied background."' ' Nonetheless, the newspaper "[saw] no compelling reason that [Flynn] should replace McCormick. '7' The Journal Sentinel repeated its endorsement of McCormick on Election Day when it summarized its endorsements in thumbnail fashion.7 61 In the election, McCormick retained his seat, prevailing by 49,600 votes (55.86%) to Flynn's 39,195 (44.14%).62 Tables 34 and 35 summarize the newspaper coverage of the McCormick-Flynn race.
753. See 4 Judgeships Contested in Milwaukee County, supra note 686, at 8B. 754. Tom Held, McCormick's Work Habits at Issue in Judicial Race, MILWAUKEE J. SENTINEL, Mar. 29, 1999, at 6B. 755. See id. 756. Id. 757. See Editorial, supra note 697, at 8A. 758. Id. 759. Id. 760. Id. 761. See Editorial, supra note 699, at 10A. 762. See STATE OF WISCONSIN, 1999-2000 BLUE BOOK 856 (1999). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
Milwaukee JournalSentinel Shepherd Express
Table 34- Milwaukee County Branch 19 (John E. McCormick)
Total Number with Any Reference 2 2 0 0 1 3 0 0 0 0 Characteristics Identified as Desirable Integrity Judicial Temperament 1 Industry 1 1 3 Professional Learning 1 Professional Experience/Judicial 2 1 3 Professional Experience/Practice 1 1 Impartiality Honesty 1 Courage Independence Fairness 1 Knowledge of the Law 1 Others' Opinions of the Candidate 1 2 1 3 OtherMatters Age 1 1 3 Local Residence 1 Veteran/Army Reserve Family 1 Prior Candidacies 1 2 Honors/Awards Community Activity 1 Mention as Candidate (Only) Bar/Bench Reaction 1 1 3 Endorsements/Support 2 1 2 Primary Results Crime and Criminal Law 1 1 2 Campaign Financing 1 Thanks Quotation of Candidate 1 1 MARQUETTE LAW REVIEW [85:593
Milwaukee JournalSentinel Shepherd Express
Table 35 - Milwaukee County Branch 19 (Jim Flynn)
Total Number with Any Reference 2 1 0 0 0_ 3 j0 0 0 CharacteristicsIdentified as Desirable Integrity Judicial Temperament Industry Professional Learning 1 Professional Experience/Judicial Professional Experience/Practice 1 1 3 Impartiality Honesty Courage Independence Fairness Knowledge of the Law 1 Others' Opinions of the Candidate 1 1 OtherMatters Age 1 1 2 Local Residence/Site of Practice 1 1 1 Veteran/Army Reserve Family 1 Prior Candidacies 2 Honors/Awards Community Activity 1 Mention as Candidate (Only) 1 Bar/Bench Reaction 1 Endorsements/Support 1 Primary Results Crime and Criminal Law 1 1 Campaign Financing 1 Thanks Quotation of Candidate 1 2 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
H. Discussion Before setting forth in Part IV some overarching observations concerning the print media coverage of the various races in our study, it is appropriate first to describe, based on the foregoing accounts, the dominant forms of print media coverage of Wisconsin circuit court races and the types of information provided by this coverage. First, newspapers appear to have been generally diligent about announcing upcoming candidate forums and debates, and then following up with a news article summarizing the main issues raised in those forums. Second, on numerous occasions many daily and weekly newspapers reprinted candidates' answers to particular questions posed by the newspapers. These question-and-answer pieces sometimes related to specific issues, while other times they involved little more than asking the candidate some of the most rudimentary of campaign-style questions. This latter group included questions related to the candidate's qualifications, what he or she viewed as the main issues of the race, and how each expected to act as a judge if elected. In some cases, the candidates' responses to these questions were merely summarized within news articles that also addressed other matters related to the race.763 In other instances the paper would print the verbatim remarks of the candidates either in complete or excerpted form.7" In whatever manner the newspapers presented the candidates' answers to these questions, the newspapers did not take great liberty (or pains) to analyze or comment upon the candidates' various assertions. Third, the use of candidate profiles was common among the print media coverage of the circuit court races. For example, the Portage Daily Register's pre-primary coverage of the Columbia County race offered a six-part series profiling each of the six candidates on separate days. 65 Likewise, both newspapers covering the Jefferson County race offered detailed candidate profiles.7 Other newspapers offered smaller profiles that provided focused descriptions of each candidate in different issues of the newspaper. ' In a sense, the newspapers covering these races served less as interpretive intermediaries between the candidates and the general
763. See, e.g., supra notes 330-32 and accompanying text. 764. See, ag., supra notes 321-29,506-18 and accompanying text. 765. See supra notes 368-92 and accompanying text. 766. See supra notes 429-57 and accompanying text. 767. See, e.g., supra notes 550-54 and accompanying text. MARQ UETTE LAW REVIEW [85:593 public, and more as occasional conveyors of unfiltered information, or as suppliers of information on how voters could acquire that unfiltered information through their own efforts (e.g., by attending one of the numerous public forums). Moreover, the print media offered the candidates fairly wide latitude not only to present whatever types of information about themselves they desired, but also to shape the presentation of that information. It may also be noted that the total number of days in which there was any newspaper coverage tended to be significantly limited in circuit court races. Coverage was generally clustered around those days immediately preceding the general election and any primary election. Some coverage was also universally available around the time that formal filings of candidacy were made in early January. The issues covered in the circuit court contests were often fairly localized. If caseload backlogs were said to have been experienced in the jurisdiction (as in Columbia County), then media coverage, reflecting the candidates' own proffered interests, offered this as a topic for discussion. Other examples would include the candidates' mentioning truancy as a key issue facing the court system in Lincoln County and the emphasis in La Crosse County on matters of family law and juvenile law. Of course, within these similarities, candidates would strain for ways to set out differences from one another. A final observation concerning the dominant forms of newspaper coverage of state circuit court races is that a fair amount of information about the candidates was provided through advertisements paid for by the campaigns. Print media advertisements were typical-and in many instances prominent-in every county save Milwaukee. In some instances, the number of campaign advertisements touching upon certain types of information (including desirable characteristics) exceeded by a more than three-to-one margin the number of news articles with similar information. By this measure, then, voters were locating more information (albeit entirely unfiltered information) from newspaper advertisements than from newspaper articles. The use of paid print advertising by candidates in circuit court races stands in contrast to the much-lower frequency of newspaper advertisements witnessed in the state supreme court race. 768
768. See supra Part II.C.5. The primary reason for this disparity is undoubtedly that Abrahamson and Rose spent most of their advertising resources on television commercials. Circuit court candidates, particularly those in smaller counties, likely found the cost-benefit ratio of print advertisements to be more enticing to them. Cf supra note 309 and 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
It is useful as well to analyze the types of information that tended to be presented in these campaign advertisements for circuit court candidates. By far, the most common references in these advertisements were to the candidate's experience. These advertisements also tended to touch upon criminal law matters. In the Jefferson County race, for example, both candidates in the general election made use of their advertisements to highlight their general views on or experience with criminal law matters' 9 In many instances, the characteristics and issues emphasized by news articles about a particular race were touched upon with roughly equal frequency in the candidates' advertisements. 70 Less frequently, advertisements seem to have filled the void left by print media reporting concerning certain characteristics. For example, candidate Dunphy in the Lincoln County race used his advertisements to better emphasize his veteran status, his community activities, and his commitment to his family.7' We now turn to the types of information presented in the print media coverage of circuit court campaigns in Wisconsin. m We will look first to those characteristics of candidates that we have described, based on writings in this area, as generally regarded as desirable in seekers of judicial office. 3 We will then look to other types of information that were presented, including biographical, issue-specific matters, conduct of the campaign, and other miscellaneous matters. ' As an initial matter, it may be useful to recall the fairly systematic discussion earlier in this Article of the types of information concerning the Abrahamson-Rose campaign that were available in the newspapers." To summarize, we discovered that there was a considerable amount of information available related to the candidates' professional experience and reputation, but there was a considerable drop-off in the amount of coverage concerning the candidates' other desirable characteristics 6 We also noted that news articles relating to the campaign reflected those issues that candidates were emphasizing, as accompanying text. 769. See supra Tables 17-18. 770. See, e.g., supraTables 10,17-18,20,22,24-25. 771. See supra Table 11. 772. For our corresponding assessment of the coverage of the supreme court campaign, see supraPart ll.C. 773. See supra notes 41-53 and accompanying text. 774. Cf. supra text following note 261 and accompanying notes 262-66. 775. See supra Part II.C. 776. See supra text accompanying notes 274-77. MARQUETTE LAW REVIEW [85:593 did the editorials. We hypothesized that this was largely due to the reluctance of newspapers to spend the resources necessary to gather additional information beyond that provided directly by the candidates.m Other observations of note concerning the supreme court campaign coverage were that, overall, opinion pieces and letters to the editor regarding this race were noticeably absent, with the exception of a number of such pieces in the two Madison dailies." The few opinion pieces that were run usually discussed only the candidates' prior judicial experience and reputation, ignoring other desirable characteristics. The relative paucity of opinion pieces and letters to the editor in this race was said to suggest a lack of a robust public debate on the merits of each candidate. Finally, we noted the scarcity of advertisements from the candidates in the newspapers, suggesting that the candidates found the benefits of this format for presenting information about themselves to be outweighed by the costs of preparing and running these advertisements. 79 Turning again to the circuit court races, to aid in the distillation of this information we will break down the discussion of each trait first by news articles and then by a composite group of all other articles, with the exception of advertisements (this latter group thus consists of editorials, opinion pieces, and letters to the editor).' This parsing can be justified on the premise that news articles are the primary means of print media coverage of judicial elections and are ostensibly aimed at objectively reporting information related to the campaigns. By contrast, newspaper editorials, opinion' pieces, and letters to the editor are naturally meant to be biased (in the sense of having a viewpoint). We shall term the latter group "non-news" articles or pieces. Again, advertisements are entirely omitted from the discussion that follows; thus, notwithstanding the usage of terms such as "newspaper coverage," nothing in the remainder of this section should be taken as referring to advertisements.
777. See supra Part II.C.2. 778. See supra Part II.C.3-4. 779. See supra Part II.C.5. 780. Campaign advertisements, discussed in greater detail above, see supra notes 768-71 and accompanying text, are omitted here because of their unique character relative to the other categories of materials contained in newspapers. In particular, advertisements alone do not reflect any particular editorial judgment by the newspaper, whereas items in the other categories (including letters to the editor) are dependent on the newspapers' specific willingness in each instance to publish them. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
It should be noted at the outset of this discussion that a total of thirty-one candidates were involved in the ten contested circuit court elections that we analyzed, with this number including candidates who did not survive the primary election. The largest number of candidates in any one particular race was six (Columbia County), while the smallest number was, of course, two candidates, with the median, mean, and modal number of candidates across the races all being three. Also of note here at the outset is that our study contains a total of eleven newspapers covering these races, eight of which were dailies. In three counties (viz., Columbia, Fond du Lac, and La Crosse), we tracked one newspaper each.7 'B In three other counties (Jefferson, Waukesha, and Milwaukee), we examined two newspapers providing coverage; Waukesha and Milwaukee shared different editions of the same newspaper (the Milwaukee JournalSentinel, which thus covered five of the ten local races in our study), and there further were another daily in Waukesha and a weekly in Milwaukee. Finally, in one county (Lincoln), we included three newspapers covering the campaign, two of. which were local weeklies and one of which was a daily from a neighboring county. As was witnessed in the Abrahamson-Rose supreme court race, most of the print media coverage of the state circuit court races failed to present extensive information relating to some of the more ineffable "desirable characteristics" in a judge.7 Within our taxonomy, these traits include integrity, judicial temperament, industry, impartiality, honesty, courage, independence, and fairness. The following paragraphs summarize the frequency with which information on each trait was touched upon in the newspaper coverage, offering some insights into the more interesting phenomena. The least-touched-upon desirable characteristics within the print
781. There may be some instances where a weekly newspaper covered one of the races discussed here but itself was not encompassed within our study. For example, The Lake Mills Leader is a weekly newspaper published in Jefferson County, and it is possible that this newspaper (which we did not survey) reported on the Koschnick-Levi-Fiske race, as did the Watertown Daily Times and the Daily Jefferson County Union (which we did survey). In other words, we cannot be certain that our study was exhaustive of all local print media in each instance. This does not affect our observations, however, because we are confident that we have identified and surveyed all countywide publications in the counties that we covered, along with numerous of the more-local publications. Thus, even if there are newspapers that we did not survey in sub-county areas such as Lake Mills, this means only that our observations about the adequacy of print media information cannot themselves directly apply to those particular areas. 782. See supratext accompanying notes 274-77. MARQUETTE LAW REVIEW [85:593 media coverage of the circuit court races were courage, independence, impartiality, and honesty. Most notably, information relating to a candidate's "courage" was essentially nonexistent. This trait was touched upon in only four instances across all ten circuit court races.783 Three of these references occurred in coverage of the Wirtz-Donohue- Endejan race in Fond du Lac County, with the fourth reference coming from a letter to the editor regarding Andrew Shaw and his Milwaukee County Circuit Court challenge.7 4 The utter lack of other information regarding this trait across the coverage may be explained in part by the difficulty in reporting on actions on the part of lawyers and judges that constitute "courageous" actions.8 5 On the other hand, this difficulty should not be overstated, as we would have treated a newspaper's expressly noting that a candidate in his or her legal practice had represented a particularly unpopular cause or individual (besides merely criminals generally) as providing information going to this characteristic. After courage, a candidate's independence and impartiality were the least-discussed desirable characteristics. Although eight of eleven newspapers contained at least one reference touching upon the "independence" of a candidate, some papers made only one such reference. Among news articles, there were only twelve instances across all the newspapers, while in eight instances, non-news articles discussed this trait with regard to at least one of the candidates. Yet even these
783. It is useful to appreciate (as should be clear from the context) that we cannot simply add up the numbers in the tables to arrive at the total number of articles referring to a characteristic, as references to a particular characteristic held by more than one candidate in the same race would be reflected separately (i.e., in the tables for each candidate) even if the references were contained in the same article. Nor can we arrive at the number of references in the newspaper by adding up the numbers from the tables, as the tables reflect only the existence vel non of one or more references to a particular characteristic. See supra note 267. This is why we ordinarily will seek in this section to speak of "instances," by which we mean the total number at which one arrives by adding up the numbers in the various relevant tables. Nonetheless, at times, and for the sake of variation, we will speak of the number of "references," and the reader should appreciate that by this different term we are not attempting to distinguish such a total from the total number of "instances." Finally, as the description of our approach in this section earlier in this footnote should itself demonstrate, our intent in the tabulations in this section is merely to provide some of the observations that are possible from the types of tables that we have found it useful to construct in attempting this innovative look at print media coverage of judicial campaigns. Cf.supra notes 267-69 and accompanying text. 784. Although this is not reflected in Table 28, we cannot help but note that the letter in question was written by Andrew Shaw himself. See Andrew J. Shaw, Letter to the Editor, JudicialCandidate Alleges Slander, SHEPHERD EXPRESS, Mar. 4, 1999, at 15. 785. An alternative explanation is a lack of interest on the part of reporters, editors, or voters in the existence or extent of judicial candidates' courage. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS unimpressive totals are inflated because of the coverage of one race, the Waukesha County election, where news articles in six instances and non-news pieces in three instances mentioned this characteristic (thereby accounting for almost half of all the times this trait was mentioned in all ten races by the print media). One explanation for the relative paucity of references to independence is that candidates for circuit court positions (even if incumbents) do not have the opportunities to write dissenting opinions that are commonly found at the appellate level.7 Impartiality was touched upon in a total of twenty-one instances in the newspaper coverage of the ten circuit court races, with eleven of those references occurring within news articles and the remainder in non-news pieces. Once again, the incidence of mention of the trait varied considerably across the various races. In particular, the Lincoln County campaign and the Branch 18 race in Milwaukee County (McMahon-Shaw) together accounted for ten of the eleven instances of this characteristic found in news articles, and the latter also accounted for two instances in letters to the editor (both of which were in the Shepherd Express). Impartiality, like independence, may tend to be associated with candidates who already have juddicial experience, usually the incumbent. Challengers wishing to inform the public that they possessed this characteristic were effectively limited simply to proclaiming that they are (or as judges would be) impartial. Indeed, a practicing attorney, whose task is to advocate for a client, would seem to be a poor attorney if possessed of a reputation for impartiality. Most of the newspapers covering the circuit court races had material in some of their coverage that we categorized as touching upon a candidate's honesty. But the amount of such material was scarcely overwhelming. In fourteen instances, references to information relating to a candidate's honesty were made in news articles, while a total of thirteen such references appeared in one of the three forms of non-news pieces (i.e., editorials, opinion pieces, and letters to the editor). Yet almost one-third of those references in news articles and more than one- third of the mentions in the non-news pieces came from only the Waukesha County race, and just under one-half of the non-news mentions were in the La Crosse Tribune. In all other races, newspapers touched upon a candidate's honesty only to a severely limited degree. Information relating to desirable characteristics such as industry,
786. Cf. supratext accompanying note 269 and text preceding note 276 (noting relevance of such dissenting opinions to "independence" category in supreme court race). MARQUETTE LAW REVIEW [85:593 judicial temperament, fairness, and knowledge of the law tended to receive more print media coverage than the other desirable traits in our study (excepting, of course, experience and reputation). Even among these traits, though, the level of attention offered by the print media differed among the various races. In all ten circuit court races save one, newspapers covering the races provided at least one reference to at least one candidate's knowledge of 77 the law. 1 In the aggregate, this trait was touched upon in twenty-nine instances in news articles and in thirty-six instances in non-news pieces within the ten newspapers. The latter figure primarily consists of large numbers of non-news pieces referring to this trait in the La Crosse County race. References to a candidate's knowledge of the law were made in eighteen instances in letters to the editor that were printed by the La Crosse Tribune and in two instances in opinion pieces in this same publication. Interestingly, only one reference to any of the candidates' knowledge of the law was made in any of the La Crosse newspaper's news articles."' In the remaining eight races, newspapers provided a variable amount of information regarding candidates' knowledge of the law, ranging from two to twelve such references per race, counting both news articles and non-news pieces. The most frequently and broadly addressed desirable characteristic (save experience and reputation) related to "fairness." Information touching upon at least one candidate's fairness was presented by the print media in every circuit court race. Coverage in La Crosse County took the lead with regard to this characteristic. Evidently attesting both to the desire of people in La Crosse County to write letters to the editor and to the willingness of the La Crosse Tribune to print a substantial number of those letters, references to a candidate's fairness were found in twenty-four instances in letters to the editor concerning the La Crosse County race. Discussion of this trait was also made once in that paper's editorial section and twice in published opinion pieces. Despite its prominence in letters within the La Crosse Tribune's mailbag, not a single news article reporting on this race touched upon the characteristic of fairness with respect to any of the candidates. Eight of the ten circuit court races contained newspaper coverage touching upon the integrity of one or more candidates (the exceptions were both Milwaukee County races). Of those races in which at least one news article referred to the integrity of a candidate, the average
787. The exception was the Milwaukee County, Branch 47 campaign. 788. See supraTable 22 (Dale Pasell). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS number of such instances per race was between three and four, a fairly high number only relative to the average number of times that some other desirable characteristics were touched upon in news articles. Of those races in which at least one non-news article (i.e., editorial, opinion piece, or letter to the editor) referred to the integrity of a candidate, the median number of such instances was 3.5, again not a high number. The median number is provided for non-news pieces because, once again, letters to the editor in the La Crosse County race provided an unusually high number of references to "integrity," skewing the average. It may be interesting to note that in the four contested Milwaukee County races, neither the Milwaukee JournalSentinel nor the Shepherd Express made a single reference to information about a candidate's integrity in two of those races, with a third race having only one reference. Only coverage of the Branch 18 McMahon-Shaw campaign at all substantially touched upon this characteristic, with three instances of this trait in news articles and one in a letter to the editor. Print media coverage in the circuit court contests of candidates' judicial temperament also presented a mixed bag. While there was some newspaper coverage touching upon the candidates' judicial temperament in every race but one (specifically, Lincoln County), some races had significantly more material touching upon this trait than did others. In two races, information on this characteristic was presented only in editorials (Milwaukee County Branch 19) or letters to the editor and editorials (Waukesha County). In the remaining seven races, coverage of the candidates' judicial temperament tended to be more noticeable. The average number of instances touching upon this trait in these seven races was essentially three per race, both in news articles and again in non-news pieces. We also looked at discussion of the candidates' industry, which means their work habits. Campaigns in Lincoln County, Columbia County, Fond du Lac County, and Milwaukee County Branches 18, 22, and 47 had three or fewer references to the candidates' industry in both news articles and non-news pieces (looking at each of these categories separately). The remaining four circuit court races addressed this trait to a greater extent. Two of the races, La Crosse and Waukesha, saw this information coming almost solely from non-news pieces. The Jefferson County race saw four references to the candidates' industry in news articles, with a total of three additional references to this trait in non- news pieces in this race. Meanwhile, the contest for Milwaukee County Branch 19 provided information on this trait in four news articles and one editorial, all in reference to incumbent John McCormick. MARQUETTE LAW REVIEW [85:593
Overall, to the extent that there was reporting on the desirable characteristics of the candidates, it often took the form of the candidates' own self-proclamations on the matter. Candidates often mentioned their desirable characteristics (to be sure, not using that term), listing them in a cursory fashion, with newspapers oftentimes failing to inspect the meaning or depth of these comments. Further, although we did not formally track the extent to which newspapers covering local races quoted supporters of a candidate, we can report that this was far from a mainstay of the newspapers' approach, at least in their news coverage (as opposed to letters to the editor). Leaving aside the desirable characteristics, print media coverage relating to such things as biographical information-the so-called "other matters" in the tables--can also be dissected and summarized. In many ways the coverage of these matters in the circuit court races was similar to that found in the state supreme court race. In general, basic biographical information was widely available. References to a candidate's age, local residence (or site of a law practice), status as a veteran (in relevant instances), and family typically could be found in the circuit court races. The median number per race of instances in which news articles referred to age was eleven, and that with regard to family was five. It may also be observed that, once again, the mode of reportage relied heavily on candidate comments and quotations. Community service was also frequently mentioned in media coverage of the ten circuit county races. By contrast, references to candidates' awards or honors within the legal profession were entirely non-existent, with the exception only of the Milwaukee County Branch 47 race. Whether this void of coverage was due to the pool of candidates not having such awards and honors or was the result of the topic's not being considered a relevant area of information is unknown. The incidence of news reports of the reaction of the local bar or bench to particular judicial candidates varied across races and (save perhaps Jefferson County) was most pronounced in the Milwaukee County and Waukesha County races, in which the local bar associations played a significant role in providing a forum for their members to express views of the candidates.789 Campaign issues-usually those raised by the candidates themselves-were given a fair amount of attention in the print media, as
789. See supra notes 602-05, 622, 699,706 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS the narratives disclose. Yet usually coverage of any such issues was outstripped by coverage of biographical information, even if references to a candidate's experience are not counted. On the other hand, the tables disclose that references to candidates' views or history on issues related to criminal law (or their experience in the area) were made frequently in the print media across nearly all the races. For the majority of circuit court races, information related to biographical matters and campaign issues (with the exception of criminal law matters) was only infrequently found within non-news pieces. Looking across races, the most prominent exceptions to this absence were the La Crosse County and the Waukesha County contests. In general, a matter that did receive a fair amount of attention in non- news articles-i.e., editorials, opinion pieces, and letters to the editor- was the nature or extent of the candidates' community activities." ° Earlier in this Article we recognized that coverage of the state supreme court race was most extensive in the three newspapers in the state's two largest cities (Milwaukee and Madison), with the seven papers comprising the remainder of the state (for our study) offering significantly less coverage.79' In fact, often these other papers simply 7 reprinted wire stories that originated in the two larger cities . ' Not only did the Madison and Milwaukee dailies run more articles on the Abrahamson-Rose race, but our analysis also showed that the depth and breadth of information presented in these papers was significantly greater than in the other state newspapers. The question suggests itself whether this disparity in the frequency and range of coverage also occurred with respect to circuit court races. In other words, did the print media coverage in Milwaukee of local circuit court races also supersede the amount and quality of local coverage in other counties? In fact, we generally find the reverse to be the case in coverage of the local circuit court elections, with more intense coverage of these races coming from the regions outside of the largest urban area
790. Although the numbers in the tables might at first glance appear to indicate that editorials, opinion pieces, and letters to the editor frequently remarked upon endorsements of the candidates, that is not correct. Such newspaper material was also counted as touching upon endorsements (and thus listed in the tables) if the material itself (e.g., an editorial) constituted an endorsement. Cf.supra note 293. 791. See supra text following note 273. 792. But cf. supra note 266 (observing that we did not formally track the extent of reliance on wire-service reports and explaining our reason). MARQUETTE LAW REVIEW [85:593
(Milwaukee).793 Significantly more articles, containing considerably more in-depth information, were presented in the newspapers outside of Milwaukee than in the local print media coverage of the Milwaukee County races-particularly than in the coverage provided by the daily newspaper in Milwaukee. It is further intriguing that, as a whole, much more information for circuit court races was provided by letters to the editor in the non-Milwaukee newspapers than in the Milwaukee papers (and it should also not go unremarked that the Milwaukee Journal Sentinel printed not a single letter to the editor touching upon the local circuit court races in Milwaukee County). This suggests that print media coverage of local races provided for more of a civic debate among citizens outside the state's largest county. The primary caveat about this observation of deeper coverage by newspapers in relatively less-populated areas was the Waukesha County race, which attracted significant media coverage by the local dailies. But with respect to most of the races for Milwaukee County Circuit Court, the Milwaukee Journal Sentinel presented scant information about the candidates. Indeed, with respect to the Branch 18, Branch 19, and Branch 22 races, the Shepherd Express, a Milwaukee weekly, actually outpaced the Milwaukee daily in providing information relating to the candidates."' Further, as reflected in the narratives above, the Journal Sentinel ran only one traditional news article each about these three races.
IV. SOME OBSERVATIONS AND SUGGESTIONS FOR FURTHER RESEARCH Having canvassed the print media coverage of eleven different campaigns for judicial positions in Wisconsin, we must distill some coherent observations about the nature and extent of this coverage. The central question remains: Is a sufficient amount of information available to the average voter who seeks to make a reasonably informed electoral decision? We will ruminate on the answer to this question in section B of this Part IV. First, in section A, we will offer some further observations. Finally, in section C, we will conclude by offering some recommendations concerning further possible research on the topic of the information available to voters in judicial elections.
793. Our observation does not pertain to Madison because there was no contested circuit court race in Dane County in 1999. 794. See supra Tables 27-28,32-35. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
A. Observations We have previously engaged in a reasonably extensive discussion of the types of information that were available in the print media both for the Abrahamson-Rose contest for the Wisconsin Supreme Court and for the various contested circuit court races around the state.795 It is also useful to synthesize aspects of those discussions and provide some further observations about the most common types of information. First, not surprisingly, newspapers tended overwhelmingly to report basic biographical information about the candidates. This information tended to be presented in the form of strictly factual assertions, frequently as part of a more general candidate profile. In the circuit court races, and particularly in the relatively less populated counties, attention would also frequently be given to a candidate's veteran status, if applicable, or to community involvement. Occasionally, a candidate's length of residency in the county would be discussed if there was a significant discrepancy in how long different candidates had resided in the county. Second, one of the more robust observations available from this study is that print media coverage of the elections tended to be dominated by whatever issues the candidates in a particular race brought to the forefront. In other words, it is evident that newspapers in the state did not devote substantial resources toward accumulating information about the judicial races beyond what the candidates themselves (and perhaps their supporters or detractors) presented to the newspapers. This phenomenon was true in coverage of both the circuit court races and the supreme court race. In the latter context, for example, the print media's coverage of Chief Justice Abrahamson's dissents in three essentially criminal cases not only was the result of Sharren Rose's campaign focus on this matter, but also provided no further analysis of these cases or of Abrahamson's arguments in them, beyond reporting Rose's criticisms and various non-substantive defenses offered by Abrahamson's supporters.' 9' Thus, the newspapers never asked-let alone paused to analyze-whether Rose's criticisms were correct as a legal matter or whether, by contrast, Abrahamson in her
795. See supraParts ll.C & I1.H. 796. See supra text accompanying notes 295-97. By "non-substantive," we simply mean that the defenses offered of Abrahamson's dissents in these cases were, to the extent recounted in the newspapers, either conclusory (e.g., an assertion, without more, that Rose was "distorting" Abrahamson's dissent) or not directed at the merits of the legal issues (e.g., an assertion that Rose had elected to talk about only one or so of the "thousands" of cases in which Abrahamson had been involved). Cf. supra note 83 and accompanying text. MARQUETTE LAW REVIEW [85:593 dissents in fact had the better view of the law's requirements. Likewise, newspapers also provided significant coverage of Rose's alleged misdeed of misrepresenting evidence in a Manitowoc County court, an issue brought up (albeit perhaps not initially) by her opponent, Chief Justice Abrahamson. And here, too, there was little independent inquiry into or assessment of the charges levelled against the candidate. It was similarly true in the circuit court races that the newspapers overwhelmingly tended to report the comments of the candidates and not to devote substantial resources either to independently seeking to determine what issues should be important to the local court system (and thus to the local judicial race) or to pursuing other means of obtaining information about the candidates.7 The conclusion that newspapers focus upon what the candidates emphasize is particularly revealing, as it suggests that candidates have a considerable degree of power to shape what matters the newspapers will report and, thus, what information will be disseminated to the voting public. While it is expected that newspapers will gravitate toward the issues that candidates raise, the dominance of this emphasis is perhaps greater than expected. Still, it is possible to overstate the point. In the Abrahamson-Rose race, two of the four main issues of the campaign were not directly raised, in the first instance, by either of the candidates.9 In fact, the media attention to the internal supreme court fissures attracted a great deal of attention early in the campaign, before it was altogether clear what issues the candidates would come to focus upon. Likewise, while newspapers tended to cover Rose's focus on Abrahamson's dissents in three cases related to criminal law, one-half of the newspapers in our study did not cover a press conference by Rose in which the challenger announced that several county sheriffs had switched their endorsements to her. We point this out not because this strikes us as a glaring omission by the newspapers,'7 but rather because it demonstrates that the fact that newspapers tend to focus mostly on matters raised by the candidates should not be mistaken as meaning that
797. See supra Part III.A-G. 798. See supra Part H.A. On the other hand, this is not to suggest that these two issues arose simply (or even primarily) from investigative reporting. One (the issue of dissension within the supreme court) derived from a combination of such reporting and the public comments of Abrahamson's judicial opponents, and the other (the issue of campaign conduct) required no investigative reporting. 799. This is particularly so because four of the five newspapers not reporting on this matter served geographic areas other than Ozaukee, Racine, or Waukesha County, where the sheriffs were located. See supra notes 164-66 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS newspapers tend to report all matters raised by the candidates. Somewhat related to the immediately preceding observation is the high incidence of quotations from candidates as a source of information found in the print media coverage of the campaigns. As discussed above, the use of candidate quotations was especially noticeable in the print media coverage of the circuit court races.' ° Combining these observations suggests that candidates in judicial races substantially controlled both the issues that were addressed by the print media and how they were addressed. Our study also strongly suggests that the most common characteristic reported across races was that of a candidate's experience. This information involved references for incumbents primarily to their experience as a judge, while for non-incumbents it entailed mention of their practicing law. At least three reasons appear to explain the dominance with which matters relating to a candidate's experience were reported upon. One is that this trait is the most commonly referred to in a newspaper article's initial remarks about a candidate, wherein most candidates are introduced by their name and, to some extent, any legal title (e.g., "public defender" or "corporation counsel"). Likewise, any biographical profiles of candidates would necessarily touch upon each candidate's legal background. Given the frequent use of these types of profiles by the newspapers, it follows that information about a candidate's experience would be provided to a more consistent degree than would information about other characteristics. A second reason for its high incidence is that a considerable majority of candidates offered their experience, however broadly defined or construed, as one of their primary strengths. This was reflected in our narratives of the various campaignsa)I Candidates would variously focus on their courtroom experience, the breadth of their experience (in both criminal and civil law matters), the length of their experience, etc. Some candidates would also highlight the apparent deficiencies in their opponent's experience, particularly if that experience could be portrayed as of a lesser quality, such as municipal court work, which was commonly disparaged as "traffic court" work.8 In short, newspapers
800. See supra text preceding note 789. By contrast, although we did not track the matter in our tables concerning the circuit court races, news coverage of those races relied on quotations of supportersonly infrequently. To a considerable extent, however, this gap was filled by letters to the editor sent by a candidate's supporters. 801. See, e.g., supra Part IH.A-F & G.2. 802. See, e.g., supra text accompanying notes 485 (Jefferson County campaign), 727 (Milwaukee County Branch 47 race). MARQ UETTE LAW REVIEW [85:593 that reported candidates' own explanations of why they deserved to be elected were bound to provide information on the desirable characteristic of experience. Finally, newspapers frequently drew upon a candidate's experience as one of the primary reasons for their endorsements. In some cases, a newspaper would offer up a candidate's superior experience as the seemingly dispositive factor in its choice. This occurrence was also particularly evident among the weaker endorsements (i.e., where more than one candidate might be the beneficiary of favorable comments) and where incumbents were attempting to retain their position from challengers with no experience on the bench. Another fairly veracious finding from our analysis is that coverage of both the supreme court and circuit court campaigns heavily reported information concerning the opinions of others about the candidates. As mentioned before, the reputation of the candidates was addressed. frequently in the coverage of the supreme court race.' The Portage Daily Register in the Columbia County Circuit Court race and the two newspapers covering the Jefferson County race also focused their coverage predominantly on the candidates' experience and public endorsements.' Coverage of the perceived nature of a campaign received prominent attention in some races. In the state supreme court race, the nature of the campaign drew attention from a variety of sources and was dubbed "negative" by much of the print media covering it. In particular, the fact that a majority of sitting state supreme court justices criticized Abrahamson for her administration of the state's courts was met with almost universal disdain by the media. Similarly, the commercials run by the candidates were discussed in news articles and frequently criticized in editorials. In a rare instance of analysis within news articles, the newspaper discussions of Rose's television commercial criticizing Abrahamson's dissent in the sexual-predator case also weighed the validity of the claims made in that commercial. 5
803. See supra text following note 275. 804. See supraPart II.B-C. 805. See supra notes 202-12 and accompanying text. Print media attention toward television advertisements was also found in the Milwaukee County Branch 47 contest. See supra notes 728-29 and accompanying text (discussing February Milwaukee Journal Sentinel editorial condemning Ann Bowe for a commercial she ran stating, "in so many words, that Bowe would throw the book at [criminals] if... elected"). But cf. supra notes 730-32, 738 and accompanying text (noting same newspaper's continuing support for Bowe through its endorsement of her on Election Day). 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS
For all the print media consternation over "negative advertising" in some races, especially the supreme court race, it may be a bit presumptuous merely to conclude that some voters, or even a majority of them, do not value the type of information that generally comes forth from aggressive (read, negative) campaigning. This point is even more salient given the growing trend among many in the media to label nearly any statement reflecting poorly upon an opposing candidate, even if true and relevant, as being an instance of negative advertising or an "attack ad." In any event, there is a subtle yet important difference to realize that goes beyond mere semantics: the manner in which a campaign is run is not necessarily related to how effective a particular lawyer would be as a judge. To be sure, the argument may be made that the means by which a person conducts a campaign, and the general tone employed, may be reflective of that person's general temperament or other traits. It is presumably on this premise that the Abrahamson campaign contended that Rose's allegedly negative campaign mandated an examination of Rose's suitability for the bench.' Yet such a connection between the nature of a campaign and an approach as a judge requires a further analysis; it is not a necessary inference. We raise this point merely to note that one's style of campaigning for a judicial position does not necessarily reflect upon the candidate's possession of traits either desirable or necessary to be a competent judge. Therefore, the argument is available that media coverage related to the "tone" of a campaign, while certainly newsworthy and potentially useful for the general public to have in front of it, is much more indirectly related to candidates' relative abilities to perform well as a judge than are many other things. Moreover, attention by the print media to the matter of campaign tone may come to consume the time or space available to address other types of information that voters may desire (or that are relevant). Print media coverage of campaign finance issues is likewise ancillary to the matter of whether a particular candidate is well-suited for a contested judicial office. Nonetheless, in the days immediately before Election Day, coverage of the state supreme court race focused almost exclusively on matters not directly related to the judicial qualities of each candidate. Instead, coverage was focused on discussing such issues as the large amount of money spent on the campaign, the perceived
806. See supra notes 142-49,211-12 and accompanying text (and sources cited). MARQUETTE LAW REVIEW [85:593 negativity of the race, and its effect on future judicial elections.' A large volume of print media attention was also given to accounts of how other members of the state judiciary commented on various aspects of races for judicial office. This inspection by the print media merits examination for several reasons. First, to the extent that comments from other judges concerning an election offer particular insights that may not otherwise be within the grasp of voters, this coverage may be important. Second, one may examine the light in which these comments were covered to ascertain both whether voters would find these comments reasonably informative and whether voters should be provided this type of information. As to the latter issue, the query is not whether newspapers should cover comments made by sitting judges-for such statements are invariably newsworthy. Rather, the normative question of whether voters should have this type of information entails whether such comments are ethical on the part of sitting judges and should be part of the protocol of judicial campaigns. In only two of the eleven races analyzed did comments from sitting judges (not themselves running for office) gain considerable attention from the print media.' The first, of course, was the Abrahamson-Rose race for the state supreme court. The second was the La Crosse County race. Looking first to the Abrahamson-Rose election, we recall that an issue that dominated print media coverage was the fact that four sitting state supreme court justices publicly questioned Chief Justice Abrahamson's administration of the court, with three of those justices formally endorsing her challenger. A lesser instance of this type of information occurred when the print media reported former Circuit Judge Deehr's continuing belief that Rose had violated rules of legal ethics in his courtroom.8 In the La Crosse race, one candidate discussed his support from two sitting judges in the county. Afterwards, the La Crosse Tribune wrote
807. Besides stories on these topics, the remainder of print media coverage immediately before the election focused on endorsements (mostly for Abrahamson). 808. It may be presumed that in all of the other races few if any such comments were made. Given the expressions made concerning the relative novelty of such comments, and that any such comments would be likely deemed newsworthy, it is highly likely that if sitting judges either commented on or actively campaigned for candidates in any of the other races, it would have been reflected in print media coverage. 809. See supra notes 176-80 and accompanying text. In addition to these news accounts, The Capital Times ran a letter to the editor and an opinion piece from sitting circuit court judges endorsing Abrahamson. See supra note 251 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS an editorial criticizing these types of endorsements by sitting judges; this editorial view was itself later rejoined by yet another La Crosse County Circuit Court judge.81° In addition to a propriety perspective, one can also look at this entire issue of judicial endorsements through the lens of asking what information is (or should be) relevant to the average voter looking to make a reasonably informed electoral decision. Whatever the relationship between criticisms of Abrahanson's actions and court decorum or judicial ethics, a reasonable voter surely might find the information relevant. And if information from colleagues about a judge's administrative abilities is silenced, or such disclosure is brought into disrepute, one is left to wonder how else this type of information could be disseminated to the public. Sitting justices are perhaps in the best position to critique candidates (and particularly incumbents) in supreme court races. We wish to be precise on this point. For example, we appreciate the possibility that the criticisms offered of Abrahamson were incorrect; perhaps fault lay-as another of Abrahamson's colleagues (Justice Bradley) maintained and the print media certainly suggested-with Abrahamson's critics on the court and not with the chief justice.' But that possibility exists with regard to all information offered during a campaign; the ordinary approach would be to investigate the accuracy of information, not to criticize its availability. Similarly, we recognize that a flood of such criticisms or endorsements (or even one such criticism) by sitting court members may cause dissension within the court, along with causing some other deleterious effects (e.g., reducing the public's confidence in the judicial system). Yet this, too, scarcely demonstrates that a reasonable voter could not consider a colleague's views of a candidate to be highly relevant information in selecting a judge. In any event, it is noteworthy that none of those in the print media who condemned Abrahamson's four colleagues for their criticisms of Abrahamson suggested that there were adequate alternative means for the public to learn about Abrahamson's administrative skills. As Judge John Perlich wrote in defense of endorsements by sitting judges, "experienced judges are in a unique position to help voters."8 12 The issue of other members of the legal profession weighing in on the qualifications and desirability of judicial candidates also appeared
810. See supra notes 576-84 and accompanying text. 811. See, e.g., supra notes 131-33 and accompanying text (and sources cited). 812. Perlich, supra note 582, at A-4; see also supra text accompanying notes 582-84. MARQUETTE LAW REVIEW [85:593 with regard to coverage of the expressions to come out of local bar associations. Even to the non-lawyer, information relating to how a candidate's professional peers view the candidate can be particularly useful. In two races, a fair degree of media coverage was given to the poll results of lawyers in the county bar association. In one of these counties, Waukesha, the Milwaukee Journal Sentinel began its coverage of the race by noting that the Waukesha County Bar Association had decided for the first time to assess candidates. Shortly thereafter, on January 28, 1999, the local bar association announced results from its poll of members that labelled Domina as the "most qualified" candidate."' Moreover, the types of traits that the bar association assessed were noted by the newspaper, with those traits including many of the desirable characteristics listed in our study.814 Bar association polls played a role in Milwaukee County also. In the McMahon-Shaw race, the Journal Sentinel, in making its endorsement of McMahon, pointed out that, in a Milwaukee Bar Association poll, Shaw received fewer "qualified" votes than any other judicial candidate in the county.8 5 Finally, we turn to the type of information made available to the public in the newspapers' editorials and endorsements. The informative nature of an endorsement takes two forms. First, the facts reported in the course of the endorsement, and the arguments presented in favor of that endorsement, provide a base of information for the reader. Second, endorsements provide information to voters as to what a newspaper's editorial staff has concluded in an overall comparison of candidates. These formats thus provide readers with general facts from which they can make their own assessment, but also present this information in a manner aimed at justifying the general conclusion of the editorial or supporting the endorsement made. In other words, the newspaper piece reflects a subjective determination that necessarily contains some bias. It is reasonably apparent, given the general voter ignorance that is associated with judicial elections (and the placement of election days for judicial races away from those for partisan races), that the effect of newspaper endorsements deserves further scrutiny. Endorsements can generally be characterized as either weak or
813. Huber, supra note 622, at 3A. 814. Compare supra text accompanying note 604 (traits said to be considered by Waukesha County Bar Association), with supra text accompanying notes 41-53 (list of desirable characteristics synthesized for this study). 815. Editorial, supra note 697, at 8A; see also supra notes 699, 706-07 and accompanying 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 769
strong. Weak endorsements take the form of a newspaper's expressing its support for one candidate, yet qualifying that support by recognizing the other candidate as also being worthy of office. Most of the endorsements in the circuit court races could be characterized as "weak." For example, the Tomahawk Leader, while endorsing Glenn Hartley in the Lincoln County race, opined that there would be "a competent representative on the bench no matter which candidate wins. ' Likewise, the Portage Daily Register lauded Krummel in Columbia County for her "positive campaign and her spirit of public service," all the while endorsing her opponent.817 Even the Journal Sentinel, after spending a fair amount of its coverage in Waukesha County on Ramirez's seeming connection with the local county district attorney and Republican party and endorsing his opponent, labelled Ramirez a "fine candidate."1' 8 (A few newspapers-most notably the Fond du Lac Reporter,Merrill Foto News, and Watertown Daily Times- made no circuit court endorsement.) Strong endorsements take the newspaper's support a step further, stating that the decision is "clear-cut" or "easy," and either implicitly or explicitly argue that the candidate who is not being endorsed is not qualified to any degree near the person being endorsed. The strongest endorsement in the circuit court races was the Milwaukee Journal Sentinel's support for Patricia McMahon in the Milwaukee County Branch 18 race. The newspaper termed this "a much easier call" than the other three contested Milwaukee County races." ' Finally, none of the newspapers in our study endorsed Sharren Rose, and seven of them endorsed Chief Justice Abrahamson in her re-election bid, with many newspapers providing fairly strong impressions of the basis for their endorsement.' Numerous other observations are possible. One is that the editorials and endorsements in our study particularly tended to expound upon the experience of the candidates. In addition, as may be evident from the narratives (though not so immediately from the tables), some newspapers would make their endorsement days in advance and then reprint them on Election Day. For example, The Capital Times did this
816. Editorial, supra note 349, § 1, at 2. 817. Editorial, supra note 405, at 4A. 818. Editorial, supra note 663, at 2W. 819. Editorial, supra note 697, at 8A; see also supra text accompanying notes 697-700. 820. See supra notes 191, 250, 252-54, 256-57 and accompanying text (and sources cited). MARQUETTE LAW REVIEW [85:593 in the Abrahamson-Rose race, as did the La Crosse Tribune in its endorsement of Pasell, which originally appeared over two weeks before the general election. Finally, it should be noted that, in most races, the candidate who received the endorsement of a newspaper covering the race prevailed in the election. It is certainly not unreasonable to expect that the factors that generate a newspaper's endorsement choice will also be the same factors weighed in the voting public's mind. Therefore, if the factors generally used to compare candidates do truly tend to favor the candidate whom the newspaper endorses, one would expect a correlation between the views of the print media and the general public.
B. Assessment The impetus for this Article was our interest in the question of whether the amount and type of information available in print media coverage of judicial elections are sufficient for the average voter to make a reasonably informed decision. All of the foregoing should provide a basis for considering this question directly. Some initial caveats deriving from the nature of our project and its methodology are appropriate. First, much of the information provided about candidates by the print media related to the candidates' own self- proclamations. By this we mean that when a newspaper presented material addressing either a candidate's desirable characteristics or campaign topics (or at least the former), they tended overwhelmingly to report only the candidate's own statements with respect to those characteristics or issuesY1 Indeed, oftentimes these proclamations were in the form of either direct quotations of the candidates or paraphrasings of the candidates' comments. Even when newspapers or individual writers editorialized or opined about the candidates and their traits or views on issues, frequently the information they invoked to support their positions merely echoed comments from the candidates. The reason that this reporting technique is relevant to our assessment is that when information is presented to the public along
821. As the text suggests, this was somewhat less true of campaign topics (rather than candidate characteristics), because, with regard to the former, reporters would have some incentive to call a candidate's opponents to see whether the candidates' various views on campaign topics were generally similar. In other words, one candidate might be willing (and expected by a reporter to be willing) to disagree with another on the merits of some campaign topics (e.g., whether criminal law experience is important for one seeking judicial election), but it would be unlikely (and unexpected) for one candidate to contest another candidate's asserted possession of characteristics of fairness, impartiality, etc. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS these lines, it is usually inherently biased (except for those rare, self- deprecating candidates) and can often stretch the limits of truthfulness. Simply put, candidates will tend to inflate their qualifications and the attractiveness of issues that are focused upon by their campaigns. To be sure, it can be expected, and was seen in some of the races we covered, that if a candidate extends his self-promotions to extremes that go beyond even reasonable extensions of the truth, his opponent may bring those exaggerations to light. Yet oftentimes, especially with regard to the desirable characteristics focused upon in our analysis, the traits are naturally nebulous, and it is exceedingly difficult to disprove a candidate's self-proclamation to the effect that he or she has a particular trait or will display a particular characteristic on the bench if elected. In other words, a candidate who professes that he will be fair, impartial, and hard-working ordinarily can do so without there being any reasonable means of testing the validity of whether he does or will truly possess those characteristics. A second caveat, and a shortcoming of our methodology, is that when a characteristic is tallied as being "referred to" or "addressed" or "touched upon" by a newspaper in our study (although we use them interchangeably, we tend to prefer the last of those characterizations), there is only limited discussion of whether references to that trait reflect positively or negatively upon a candidate. In the tables we constructed, the figures for each candidate and each trait represent only a reference to that trait of the candidate, with no indication of the positive, negative, or neutral nature of that reference. Nonetheless, a reasonable sense of whether the print media attention contained only intermittent negative references to traits, for example, or rather consisted almost entirely of such discussions, can be gleaned to some extent from the narratives of the races presented. In these narratives, we commonly expound upon the context in which the traits and issues listed in our tables were discussed, and in many instances we provide a great deal of the particulars. A final caveat or, more accurately, qualification of our study deals more fundamentally with the nature of our inquiry and is related to the preceding. Implicit in the question of whether voters have adequate information to make a reasonably informed decision is the notion that there exists a particular set of information that should weigh in a voter's calculus. Suggesting that it is only relevant information that needs to be available only begs the question of what information is relevant. Certainly our analysis excludes from inspection some characteristics of judicial candidates that a fair number of people may see as relevant. MARQUETTE LAW REVIEW [85:593
There can be no doubt that lawyers will have their own particularized areas of knowledge and thus of interest in the views of judicial candidates. But non-lawyer voters also may have an array of issues and characteristics that are of keen importance to them-a different array.22 Examples of potential differences in lawyer versus non-lawyer concerns are numerous. For example, a practicing trial lawyer may focus on a candidate's views on courtroom administration, or on how the candidate has ruled (if an incumbent) or will rule on issues relevant to the lawyer's legal specialization. Citizens who are not lawyers may very well harbor more interest in the candidate's views on whether to be "tough on crime" or in whether the judge appears honest and fair. Voters may also concern themselves with the candidate's views on issues particular to their life, such as family law if they are divorced, or commercial law if they operate a business. The relevance of this exposition on the inherent variety of voters' concerns is to demonstrate that the answer to the question of whether adequate information is available to a specific voter will be contingent on the voter's particular interests and values. At the same time, one would imagine that, in the aggregate, those matters of the largest overall public concern will be addressed in the course of the campaign. Therefore, the bulk of meaningful public concerns with the judicial candidates should be addressed, and information provided, at some point in the campaign. This will occur either because the candidates wish to court favor with a certain bloc of the electorate or because the public will press upon the candidates the issues about which it most requires information. Indeed, it must be on the premise that there are some reasonably common views that the studies upon which we drew in formulating the list of "desirable characteristics" could presume to opine on the matter of judicial qualifications.m In all events, whatever the importance of these caveats (and we regard the last one as particularly important), our study yields some penetrating insights into answering the question of whether a reasonable amount and type of information are available to the average voter in a judicial election. First, as alluded to earlier, the mere presentation of the narratives and tables throughout this Article should enable readers to form their own conclusions concerning the adequacy of the print
822. This point was made with reference to the matter of media coverage concerning the candidates' legal education, which is generally of great interest to lawyers. See, e.g., supra text following note 276 and preceding note 277. 823. See supra notes 41-53 and accompanying text. 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 773 media coverage in these elections. Second, we should look to availability of "proxy" information about a candidate that may inform voters' choices. Proxy information is that which does not directly discuss a candidate's desirability for a judicial position, but which allows voters to infer how well the judge will serve according to their interests. In most public elections, the most prominent and powerful type of proxy information is the candidate's political party identification. Given the strong role that political party identification has been shown to have in political elections (especially for less prominent campaigns), 4 the question can also be posed whether the unavailability of this information in judicial elections in Wisconsin inhibits voters' ability to make a judgment, particularly a quick decision, as to who will win their vote.w Perhaps reporting which persons or groups endorse a candidate can help to fill this void at least partially. For example, if voters value the opinions of certain people and organizations that are not directly affiliated with a candidate's campaign, the reporting of these endorsements can help inform a voter in a manner similar to the way in which party identification informs voters in elections for legislators and executives. For example, an endorsement from the county sheriff or district attorney will signal to a voter who otherwise knows little about the candidates in a race that law enforcement authority holds a particular candidate in high regard and may even provide the basis for a voter's inference that the judicial candidate will not be "soft on crime," to use the common phrase. Third, there appears to be a dearth of information relating to the candidates' general intellect, which is a trait that one would expect to be important to a voter's decision. Information relating to the candidate's schooling, writings, and so forth would address voters' interests in the candidates' competing levels of intelligence. Then again, it may very well be that only voters who are lawyers will weigh heavily the candidate's intellect, at least as measured by their knowledge of the law. These same lawyers may also be in a position to acquire information on intellect economically through their various legal networks. Still, to the
824. See supra note 6 and accompanying text. 825. Of course, this information is not completely unavailable in all non-partisan races. Cf. supra note 143 and accompanying text (mentioning newspaper's reference to Sharren Rose's employment of a political consultant previously used by a Republican in a United States Senate campaign); supra notes 658-64, 685 and accompanying text (discussing Waukesha County controversy concerning nature of local Republican Party support for one of the candidates). MARQUETTE LAW REVIEW [85:593 extent that the non-lawyer voter cares about this information, print media coverage appears to not provide such insights. What expectations for media coverage of judicial elections should we hold? Is the expectation that these races should receive constant and deep media coverage, somewhat akin to the incessant attention received by a presidential campaign? Or do we expect only minimal coverage of these races, perhaps little beyond informing the public of the date of the election? Clearly there is a wide range of coverage between these two extremes. Media coverage of the judicial elections we covered seemed on average to fall somewhere in the middle. One method of answering this question more precisely would be to compare the nature and extent of information provided in judicial campaigns with that of campaigns for other public offices. It may also be constructive to speculate whether there is a cause- and-effect relationship between the nature of media coverage of judicial elections and the level of public interest in these races, the latter being manifested most reliably by actual voter turnout. Of course we run into a type of chicken-and-egg problem here. Is a failure to provide greater and more-detailed media coverage causing low public interest in the races, or does innate and fairly low public interest in these races yield limited coverage by the media? Newspapers, after all, strive to fill their pages with articles of interest to their readers, and a general lack of interest in judicial races may prompt the print media to discuss other topics more extensively. Then again, if the public becomes more informed of the judicial process, its important functions, and of the people who undertake this duty, then it is possible that more interest would be generated in these campaigns. This type of education and generation of attention to judicial office will likely fail to occur without extensive media coverage aimed at better educating voters. Certainly voters can, at some level, acquire nearly any type of information on judicial candidates. They can expend the time and energy to research the candidates, find means of discussing with them views on particular issues, and learn more about others' opinions of the candidates. Such research, though, is beyond the means or interest of the average voter in judicial elections. The more relevant question is how much effort a voter will have to put forth to acquire information that will help. Print media coverage has the capacity to enable the voting public to acquire information in a manner that is low-cost and quick. Overall, it remains clear that the print media have the ability to facilitate the exchange of information about judicial candidates with the 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 775 public. Newspaper coverage of political campaigns, including judicial races, carries with it a great deal of power to shape the debate and focus voters on a particular set of issues. Newspapers are able to control this power by deciding whether to report on a particular issue or characteristic of a candidate, or whether instead to remain silent on these matters. Likewise, the nature and extent of their coverage of particular matters can help skew which issues will weigh the heaviest in a voter's mind come Election Day. One could also argue that there are increasing returns to the significance that an issue will take in a campaign based on the frequency with which that issue is discussed in media accounts. The first time that a particular issue or characteristic related to a candidate is raised, it perhaps sometimes affixes to the minds of the general public, while in other instances that information tends to be forgotten or dismissed. By contrast, when a particular issue or characteristic is repeatedly referred to and discussed within the print media, it not only will tend to drown out public attention to other issues and characteristics, but it will also likely create the impression that that issue or trait deserves greater weight in a voter's mind. Of course it is the duty of candidates and their campaign staff to do precisely this type of highlighting of particular issues that are favorable to their campaign or that are unfavorable to their opponent. Candidates must highlight those characteristics applicable to their background. Therefore a judge is more able to exemplify his independence than a practicing lawyer, while at the same time a practicing lawyer may be able to show characteristics that a judge, due to the nature of his job, is unable to demonstrate. But to the extent there is a disconnect between what information candidates wish to proffer and what the public needs to have available to help inform its decision, the media can play an important role. A summary overview of our study suggests that while a fair amount of information about judicial candidates is made available to voters, that information still seems to lack the educative component needed to overcome the general public ignorance that we have little doubt exists concerning judicial officeholders and judicial elections. Unlike general political issues and the personalities that surround those issues, legal decision-making generally receives less attention in the media and is, therefore, less comprehended by the public at large. In this respect, one could actually suggest the need for more frequent and detailed coverage of judicial elections than other political elections, in order to overcome this general omission of media coverage of ordinary judicial activities MARQ UETTE LAW REVIEW [85:593 relative to general legislative and executive decision-making. Nonetheless, our research shows that print media coverage of judicial elections presents a fair amount of information about the experience and biographical background of candidates, their views on issues that are raised by the campaigns, and a spattering of other matters, depending on the context of the race. Unfortunately, information relating to many of the desirable characteristics of a judge, such as fairness, courage, impartiality, honesty, and industry, tends to be limited in its availability to voters through the print media. Much of this absence may be due to the difficulty of delineating what precisely constitutes these traits (difficulty, that is, relative to reporting on such "factual" matters as biographical background) or, at the very least, to the lack of motivation of newspapers to expend the time and other resources to research and describe these traits.
C. Suggestions for FurtherResearch The preceding observations have been made based on the information collected and presented in this study. The foregoing also suggests research into other compelling questions concerning judicial elections. First, although electronic media were outside the scope of this Article, there may be valuable insights available from looking into these media for transmitting information. To be sure, as was mentioned above, it would be especially difficult, time-consuming, and costly to undertake a comprehensive accounting of all electronic media coverage of judicial elections such as those covered here. Still, narrowly targeted inquiries may be more feasible and equally informative. For example, of particular interest may be an analysis of television advertisements, particularly those related to state supreme court races. Notwithstanding what we believe is the importance of print media in this context, a fair number of people may be equally, if not more, attuned to electronic sources, such as television advertisements paid for by candidates or by groups in support of or in opposition to a candidate. Of course, as discussed above, the newspapers commonly reported on and editorialized about the nature of the candidates' television advertisements, particularly with regard to Sharren Rose's commercials, but we do not doubt that many people were exposed only to the advertisements themselves (as opposed to any related commentary). Likewise, some of the public may have only read newspaper accounts about the advertisements, but failed to view them on television. Finally, others may have viewed both the actual advertisements as they appeared on television and the news stories about the advertisements, 2002] THE PRINT MEDIA AND JUDICIAL ELECTIONS 777
while some number of people were exposed to neither and still were inclined to vote in the election. The effect of the different mixes of voters' own interpretations of the commercials and the interpretations they hear from the media of the same commercials may be an interesting issue to examine. Another possible topic of inquiry would be a further inspection of whether newspapers venture out to gather information that is not thrust upon the media by the candidates or other principals in the legal community. Such an inquiry could take one of two forms. The first would be a deeper analysis of the issues actually presented by the campaigns. For example, with respect to Rose's claims concerning Abrahamson's dissents in three specific cases, the newspapers could have provided the public with a deeper view of these cases. Instead, the coverage limited itself to basic statements provided by the candidates or their supporters against and in defense of those dissents. Similarly, this Article has hypothesized that one of the reasons the print media did not delve any deeper into the controversy relating to Rose's participation on BAPR was that such research would have been time-consuming and costly on the part of the newspapers. Instead of deferring to the point- counterpoint between the campaigns, and their often surface-level discussions, the newspapers could further inspect the merits of each candidate's position on the issues being debated.. Second, these inquiries could have been so bold as to venture out into investigating more fringe issues, providing information that is otherwise not forthcoming from either campaign. This would include soliciting various opinions, explanations, and insights across a broad range of sources. Many of these sources would be members of the legal community. Yet it may be seriously doubted whether this information is available or even useful. To the extent there is relevant positive or negative information available, one would suspect that candidates or their opponents would present that information in relation to their level of interest in having it exposed. In other words, those parties with an incentive (i.e., an interest in having a better chance at prevailing in the election) would seemingly be inclined and better able to unearth this information. Still, using other political campaigns as a point of reference, it is not uncommon for newspapers to take the lead in uncovering "exposes" about one or another candidate. This may be particularly true if a certain negative trait is shared by both candidates. In such cases, the burden would seemingly fall on the media to present to the public these issues or traits. Another area of potential research would be to conduct public MARQUETTE LAW REVIEW [85:593 opinion polls of eligible voters (focusing more on those who express a high likelihood of voting in judicial elections) to ascertain what factors tend to influence their decisions as to whom to support. A well- constructed survey of this nature would test, among other things, whether voters in fact identify the same type of characteristics as desirable as did the primarily academic inquiries upon which we drew in formulating this study. Once these survey data were collected (and understood), it would be possible to return to the analysis of the frequency and nature of media coverage and inspect the congruence between the expressions of the survey sample and what the media offer in terms of information. Moreover, a survey of this type could ask people who state that they vote in judicial elections whether they regard the information available to them through the print media (or any medium for that matter) as sufficient for them to make a reasonably informed decision. Those surveyed could also be asked what information they would like to see made more available and how they best like to receive information (e.g., through newspaper articles, radio talk shows, public debates, television advertisements). Clearly, considering such responses may be fraught with methodological problems inherent in much survey research. Nonetheless, collection of this type of survey data would serve as a valuable complement to the research about information available to voters in judicial elections accomplished by this Article. It would permit an examination of the assumptions made as to what characteristics and issues are important to making an informed decision in judicial elections, from the perspective of inquiring whether the actual availability of that information correlates to the voting public's perception of the adequacy of media coverage.