BUTLER TARGETED BY CONSERVATIVES BUT TOPPLING A SITTING JUSTICE ISN’T EASY

JEFF MAYERS

ollowing an The lined expensive and up like this in late F July: nasty race for in Liberal-leaning: 2007 that set a total spending record of • $5.8 million, insiders , already are bracing for first appointed to the an even more expen- Supreme Court in sive and more nasty August 1976 and race next year. And became chief justice operatives on both in August 1996. Next sides are already up for reelection, doing the opposition 2009. research and mapping • Ann Walsh the battle plans that Bradley, elected to are likely to make this the court in 1995 and officially non-partisan reelected in 2005 race for the high court without opposition. perhaps the most par- tisan ever. • Louis Butler, appointed by Doyle in August 2004 to replace Diane Sykes, a lead- That’s because Democratic Governor Jim ing court conservative who was appointed Doyle’s history-setting pick for the Supreme by the Bush administration to the 7th Court—Milwaukee African-American Louis Circuit of the U.S. Court of Appeals. Butler—will be going for a full 10-year term on the state’s highest court. If he wins, liberals Swing vote: will continue to hold the edge on ’s • N. Patrick Crooks. Elected to Supreme 7-member top court—furthering the power of Court in 1996 with help of Republicans, Doyle and Democrats entering a November and reelected in 2006 without opposition 2008 election, which at this writing in July 2007 after joining liberal-leaners on two contro- holds little hope for many Republicans. versial liability cases. If Butler loses, conservatives would have Conservative-leaning: the philosophical edge on the Wisconsin and U.S. Supreme , ensuring protection for • David Prosser, former GOP Assembly school choice and providing a boost to business speaker appointed to Supreme Court in interests at a time when the conservative’s polit- Jeff Mayers is president of WisPolitics Publishing, which ical climate appears to be eroding elsewhere. runs WisPolitics.com, IowaPolitics.com, WisBusiness.com, and WisOpinion.com. Wisconsin Interest 21 September 1998, and elected to a full 10- that spent an estimated $3.1 million mostly year term in 2001 without opposition. on Ziegler’s side, were seen as pivotal in the 2007 race and perhaps even more piv- • Patience Roggensack, elected to the court otal in 2008 because the contestants next in 2003. year likely won’t have the personal wealth • , elected spring 2007 to that Ziegler and Clifford had to pump into replace conservative Jon Wilcox. Officially electioneering (their campaigns, with the took office August 1. help of that personal money, spent a com- bined $2.7 million, more than doubling the If Butler wins, Abrahamson continues old mark). Some operatives estimate leading what many think is an operating spending for the 2008 race, all told, could majority with Crooks. Butler loses, and conser- reach $8 million, surpassing the estimated vatives would seem to have a solid four-justice total of $5.8 million spent on the Ziegler- majority. Clifford affair. The stakes are very high. Bye-bye, it seems, to the sleepy, mostly How else to you explain all the pre-elec- genteel court races of the past. In bygone days, tion year activity—even before the swearing- candidates and campaigns didn't get rolling in on August 1 of Wisconsin’s latest justice? until December before the February primary, Ziegler, the Washington County who and once they did get rolling stuck mostly to was politically wounded by conflict-of-interest resume campaigns, Rotary Club speeches, bar charges in her spring election victory over association dinners and newspaper editorial Madison attorney Linda Clifford, was added board visits. In fact, some recent incumbents to the court in place of conservative Wilcox didn't even have an opponent when they won even though the outcome of a secretive Judicial their 10-year term (Bradley, Prosser, Crooks). Commission investigation was unlikely to be Like it or not, some observers say, high announced before her official swearing-in. stakes, highly negative, general election-like Even months before, activists were busy. court races are probably here to stay in Wisconsin. Critics say special interests are buy- • Democrats were busy organizing Butler’s ing elections. Others say added attention to campaign and raising money. Butler’s these races is good in that more and more citi- campaign through June 30 raised more zens are becoming aware of the importance of than $175,000 and had more than $155,000 the job and that they have the power to elect cash on hand. top . • Republicans were busy trying to find an What’s happening in Wisconsin is a opponent. As of late July they hadn't national trend. found a willing circuit judge yet, though the name of former Waukesha County A group called the Justice at Stake District Attorney Paul Bucher, who unsuc- Campaign bemoans special interest influence cessfully ran for attorney general in 2006, on court races. A report issued earlier this year kept popping up. If Bucher ended up in by the group and its partners (the Brennan the race, Democrats would have the Center for Justice at NYU School of Law and advantage of borrowing Republicans‚ suc- the National Institute for Money in State cessful “the-best-candidate-for-the-high- Politics) concluded this special interest pres- court-is-a-judge” campaign that in many sure is growing into a “permanent national ways doomed Clifford. threat to the fairness and impartiality of America’s courts.” • And operatives were mapping plans for special interest-funded “independent” “Justice at Stake’s report shows how in too campaigns. Those independent campaigns many states, judicial elections are becoming

22 Fall 2007 political prizefights where partisans and spe- damage payments. Campaign finance cial interests seek to install judges who will analysis showed business gave $2 for answer to them instead of the law and the con- every $1 donated by lawyers directly to stitution,” said former U.S. Supreme Court candidates. Donors from the business com- Justice Sandra Day O‚Connor. “I hope that munity gave $15.3 million to high court every state that elects judges in partisan elec- candidates—more than twice the $7.4 mil- tions will consider reforms.” lion given by attorneys. Among the key findings of the report on • Third-party interest groups pumped at 2006 races were: least $8.5 million more into independent expenditure campaigns to support or • Of the 10 states that had entirely privately- oppose their candidates. About $2.7 mil- financed contested Supreme Court cam- lion of that was spent in Washington state paigns in 2006, five set fundraising alone. records. Candidates in Alabama combined to raise $13.4 million, overtaking the previ- But interestingly, the report also found ous state record by more than a million that money and TV ads don’t always buy the dollars. expected results: • Median fundraising • The candidate with by candidates for the most on-air support state high courts hit a won 67 percent of the record high of time, a modest drop from $243,910. Five states 85 percent in 2004. set aggregate candi- Money and TV ads • And, in 2006, the can- date fundraising didate raising more records for high-court don’t always buy the money won 68 percent of campaigns— expected results. the time, down from 85 Alabama, Kentucky, percent in 2004. Georgia, Oregon, and Washington. National court-watch- Wisconsin’s Ziegler- ers say a major mover in Clifford race wasn’t this arena is the U.S. included in the study Chamber of Commerce, of 2006 races. with ties to the state’s big business lobby, Wisconsin Manufacturers & • TV ads in 2006 high court campaigns ran Commerce (WMC). in 10 of 11 states with contested elections, compared to four of 18 states in 2000. According to Governing magazine, in 2006 the Chamber, which represents the interests of • Average television spending per state was more than 3 million businesses across the coun- $1.6 million, a new record. An overwhelm- try, reportedly spent $120 million in the preced- ing majority of independent expenditure ing four years, most of it through the Institute television advertising was sponsored by for Legal Reform, a tax-free affiliate. Governing groups on the political right. In 2006, pro- said that in 2004, the Chamber won every sin- business groups accounted for 90 percent gle contest in which it was involved. Figures of all independent spending on TV ads in for 2006 weren’t available, but the Chamber can high court races, the report said. claim a piece of the Ziegler trophy. • elections attracted The U.S. Chamber Institute for Legal record sums from business interests, what Reform (ILR) calls itself a national campaign, the report called a reflection of the impor- representing the nation's business community, tance of state courts in setting corporate

Wisconsin Interest 23 “with the critical mission of making America's sidered a smart pre-reelection pick when he legal system simpler, fairer and faster for chose Butler. everyone.” It was founded by the U.S. And then earlier this year, Republicans Chamber of Commerce in 1998 to address what and business groups got heavily involved in it calls the “country's litigation explosion.” the race for the Wilcox seat. That national trend exhibited itself in Early targeted voter contact and positive Wisconsin earlier this year, and court-watchers advertising helped Ziegler to an impressive predict a more robust exhibition next year— primary showing, dispatching a third minor especially given a U.S. Supreme Court decision candidate from Dane County, and making the neutering the McCain-Feingold campaign law Democrats wonder if Clifford had a chance in in a suit brought by Wisconsin Right to Life. a race that had been cast as experienced judge That trend and the Butler race’s likely versus activist lawyer. impact on the court majority appear to be lin- That changed after charges and revelations ing up for a battle royal of special interests. that Ziegler had presided over cases that Some Democrats lament the attention on involved a West Bend bank on whose board this race, saying if Bill Bablitch’s seat had been sat her wealthy, investor husband. protected properly, and more early support And that led to Clifford’s first paid adver- had been there for Clifford, maybe Butler tising—a negative shot using the conflict-of- wouldn’t have such a big target on his back interest charges; it came in mid-March, with going into his 2008 run. only about two weeks until the April election. Bablitch, the former state Senate majority Following that came a flurry of negative com- leader from Stevens Point, left the court in mercials from outside groups, including the 2003, but the Democratic effort to hold the seat negative counter-punching from WMC. WMC, seemed lackluster to some. Republicans orga- using tape of Clifford saying “I am not a nized quickly and solidly behind Roggensack, judge,” declared the Madison attorney had a Madison-based Court of Appeals judge, and “zero experience putting criminals behind she narrowly defeated western Wisconsin’s Ed bars.” WMC had torpedoed the attorney gen- Brunner with 51 percent of the vote. Later that eral candidacy of Doyle’s choice, Dane County year, Bablitch reflected: Executive , in similar fashion and now it, and its conservative allies, were doing When Brunner had such a surprisingly good showing in the primary he was just the same to another Dane County woman with ripe to be picked up and carried through a liberal reputation. and yet for whatever reason—and they all Editorial boards and Bablitch were out- have little petty reasons—he never got the raged. Said Bablitch, who issued a late Clifford kind of support that he got. The trial lawyers will rue the day that they did not endorsement: “It is now apparent that one of throw their full support to Ed Brunner the candidates, Judge Ziegler, is not qualified because there is going to be issues coming to sit on the state's highest court. Her numer- up on punitive damages; there is going to ous conflicts of interest—of which she was be issues coming up on caps. They didn't either ignorant or oblivious—are glaring viola- like one decision of Ed Brunner, and they tions of the judicial code of ethics. didn't do a whole lot to help him out. Why the teachers didn't get far more involved But in the end, it was a Ziegler sweep, with than they did I'll never know that.' the Washington County judge winning with 58 percent of the vote. Dems got a break in 2004 when Sykes was tapped by President Bush to go to the federal But while Clifford lost the race and WMC appeals court. Doyle got his first Supreme notched another election victory, Ziegler’s vic- Court pick, and made what many insiders con- tory was bittersweet, as she had to contend

24 Fall 2007 with a dual set of subsequent conflict-of-inter- Wilcox said he was rethinking whether judges est charges—in the Ethics Board and in the should be elected. Judicial Commission. She went to her future “I've always been for an elected judiciary. colleagues asking them to take original juris- That's our constitution,” Wilcox said. “I don't diction. But they declined and she settled the know. I'm kind of rethinking that.” Ethics Board case in May, paying $17,000 in penalties. “Maybe I'll talk about that when I get off the court a little more, but that is a concern to That allowed the Judicial Commission, the me,” he added. arm of the state judiciary that is in charge of disciplining judges, to take over. I think that, as an institution, the Supreme Court is an independent third branch of Ziegler took the bench on August 1, 2007, government, it also is a non-partisan group while still under investigation by the Judicial . . . it also has to retain the people's confi- Commission for cases she presided over dence in how it's acting. And it's tough. involving West Bend Savings Bank, where her Wilcox pointed to his own “difficult elec- husband was a paid member of the board. tion” 10 years ago. His Ziegler said she 1997 campaign was believes the commission accused of illegally coor- will come up with a satis- dinating a get-out-the- factory conclusion and After serving 15 years vote effort with an orga- that the investigation isn't nization that supported affecting her today. on the bench, Wisconsin school choice. The Elections Board eventual- It doesn't really affect Supreme Court Justice today because they'll ly reached a settlement come to a conclusion and Jon P. Wilcox said he with Wilcox’s campaign, I'll go forward and work and he personally paid hard for the people. was rethinking whether the $10,000 to settle it. Wilcox strongly main- Ziegler said it “feels tains it was not a fine and great” being sworn in. judges should be elected. that he was personally “I'm ready to get to exonerated in the case, work for the people of claiming people in his Wisconsin,” Ziegler said. campaign lied to him. Her election followed a bitter campaign, Wilcox's speech was followed by Ziegler, one she said she hoped people learned some- who shared her background, experience, and thing from. vision for a “congenial” court. “I hope they learned that a positive cam- During a question and answer session, paign is a good one to run, especially in the Ziegler also raised concerns about the judicial judiciary,” Ziegler said. “Judges need to rise election process. above that and I think the public expects that.” While she said she enjoyed much of the Ziegler and Wilcox, whom she replaces on campaign, she said it is a “good time to take a the court, lamented the nature of the race look at meaningful campaign finance” reform. before the a Wisconsin State Bar Association But you're always going to have the fact conference in Milwaukee about a month after that people have First Amendment rights, Ziegler’s win. and you're always going to have other par- After serving 15 years on the bench, ties special interest groups who I think put their hand in motion in campaigns. Justice Jon P.

Wisconsin Interest 25 So it will be difficult to have any significant ment and national business interests apparent- control over that. But to give people the ly have Butler and the Wisconsin Supreme opportunity to get their own message out Court on its radar screen. there is an important one and you ought not have to be someone with the financial That could mean millions of dollars in out- wherewithal to do that on your own in of-state money for TV advertising, direct mail, order to run for public office. robo-calls, and other devices for “indepen- She also expressed dismay at the loss of dent” campaigns designed to help Butler’s civility in campaigning for judicial elections. opponent. You could see the draft ad scripts now, containing disparaging Butler nicknames “It's somewhat of a painful process,” such as “Loophole Louie” and “Lead Paint Ziegler said. “That isn't what campaigns Louie,” referring to Butler’s reputation among should be about, especially for a judicial race. some for anti-law enforcement decisions and A judicial race should rise above it; we should his 2005 votes with Crooks and the tentative be leaders in that respect.” Abrahamson-led court majority for a decision Despite the conflict-of-interest fallout (dis- the business community alleged would make missed by Republicans as minor, media-bal- Wisconsin a haven for liability claims and trial looned charges) the Ziegler race quickly set the lawyers. Said a Wall Street Journal at the time, stage for the Butler race, with even Democrats labeling Wisconsin “Alabama North”: openly worrying about Butler’s security on the In a pair of rulings last month, the court bench. Republicans, meanwhile, were gleefully tossed out the state's cap on non-economic mapping battle plans that included Milwaukee damages in medical malpractice cases, and Circuit Judge Michael Brennan as Butler’s per- it blessed a theory of lead paint litigation fect opponent. that will soon have every trial lawyer in America descending on the state and pos- Brennan, viewed as a connected, pragmatic ing as a cheesehead. conservative from Butler’s electoral base, had Despite all of that, Butler supporters were toyed with running before, when Crooks had upbeat in late July, and some Republicans mused about passing on a reelection run. His were admitting it would be an uphill battle to name then emerged as a candidate for Wilcox unseat an incumbent. After all, an incumbent open seat, but he declined justice hasn’t lost in Wisconsin since 1967, And then, after Ziegler’s victory, he let it when George R. Currie became the first chief be known that he wouldn’t run against Butler, justice in Wisconsin history to be knocked off either, sending Republicans on a recruiting in an election. An official court history owes mission. Brennan’s name later emerged as a the loss to the mandatory retirement age then top contender for the seat of federal Judge in effect that would have allowed Currie to Rudolph Randa, who’s moving to senior sta- serve only two years out of his 10-year term, tus. Among those applying in late July were and an unpopular ruling a year earlier saying Brennan and two others who declined this past the state couldn’t use its antitrust law to keep summer to challenge Butler— the Braves baseball team in Milwaukee. and Ralph Ramirez. Although Currie did not write the opinion, he joined it, the history noted. In late July, when it was unclear who would challenge Butler, conservative strate- Could the state’s first African-American gists remained confident a capable candidate justice be knocked off too? Butler is viewed as would emerge who could beat a justice they vulnerable by campaign and court-watchers view as the most vulnerable in the country. on both sides. That’s in part because the school choice move-

26 Fall 2007 Why Butler could lose Bill Bablitch, the political savvy ex-justice who helped guide Crooks to an easy reelection Using a composite of strategist and insider victory, has donated to Butler early. He didn’t opinions, here’s a sampling of major reasons do the same for Clifford, because, as he says Butler could lose: now, he didn’t think she could win. • Butler is a little-known candidate who may Bablitch calls Butler “highly competent” have little appeal beyond southeast and hard to beat in part because attacks on him Wisconsin, given Diane Sykes’ big win could be viewed as racist. “He has advantages over Butler in 2000. being the first African-American on the court,” • Butler’s record on public safety from his Bablitch said. “(But) I don’t think he has to days as assistant state public defender, play the race card.” Milwaukee municipal judge, and Bablitch thinks Butler’s biggest obstacle is Milwaukee circuit judge, as well as on the the business community’s anger at the liability high court (what critics will call soft on rulings. “Louie’s got that hanging around his crime), may resonate with average voters neck like an albatross. You’ve got to talk about concerned about curbing violence. it.” • Butler’s decisions said to loosen liability Adds Bablitch: “It’s not a shoo-in by any rules likely will mobilize state and national means. He’s not taking it for granted.” business interests—and money—against him. Concludes Bablitch; “I’ve seen his organi- zation. I like it.” • School choice advocates looking to safe- guard Milwaukee’s program appear Mark Graul, who led Ziegler’s successful poised to weigh in heavily to defeat the campaign, likewise concludes Butler won’t be justice and secure a pro-school choice easy to beat. The Republican strategist majority. involved in the 2004 Bush campaign and Mark Green’s 2006 governor’s campaign, says the Why Butler could win candidate that crafts the best message will win. Using a composite of strategist and insider And Graul thinks that message is public opinions, here’s a sampling of major reasons safety. He maintains Butler’s record is one “of Butler could win: putting criminals out on the street,” so Butler’s • Butler is an incumbent who likely will opponent will have to be strong on that issue. have the personal backing of Govenor Jim “You still have to have a winning mes- Doyle and his allies, including organized sage,” Graul said. “Ziegler won because she labor and organized unionized law had a winning message. That to me ultimately enforcement. will decide who wins or loses, regardless of the • Butler’s campaign is organized early and special interests.” raising money early. But court-watchers expect the special inter- • Butler’s ethnicity and status as the first ests to be there amplifying the issues in a way African-American on Wisconsin’s high that may make the faint of heart yearn for the court may help spike support in bygone days of sleepy court races in Democrat-dominated Dane County, espe- Wisconsin. cially if attacks on him are viewed as racist. • Democrats in general are engaged on this race because of the stakes.

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