Now that the arduous selection process to find a successor to federal district court Judge John C. Shabaz has moved to the White House, President Barack Obama has two distinctly different candidates to choose from.
One is former Wisconsin Supreme Court Justice Louis B. Butler Jr. who cut his teeth as a public defender prior to serving as a municipal court and circuit court judge in Milwaukee.
The other is attorney William M. Conley, a business litigator in Foley & Lardner LLP’s Madison office since 1984.
Democratic U.S. Sens. Russ Feingold of Middleton and Herb Kohl of Milwaukee forwarded their names to the president in mid-May.
Marquette University Law School Professor Richard Esenberg was a former partner of Conley’s at Foley and suggested his legal background would transition well to the federal bench.
“He is an excellent lawyer and would bring a background as a business litigator that is currently underrepresented on the bench even though business cases comprise a substantial part of the docket,” Esenberg said.
Under the direction of Shabaz, who retired in January and Western District Court Chief Judge Barbara B. Crabb, the court gained a reputation during the last 20 years for quick disposition of civil cases.
Referred to as the “rocket docket,” the Western District has attracted patent law cases from around the county because of its ability to resolve matters in about one year.
Despite Conley’s background litigating and counseling on state and federal distribution and antitrust laws in both the U.S. Supreme Court and the Seventh Circuit Court of Appeals, some observers have suggested that the district court seat is destined for Butler.
Judge J. Mac Davis suggested that Butler is the likely choice by Obama, given the political make-up of the White House and Congress.
“I don’t know Mr. Conley, but this has been wired for Mr. Butler from the beginning,” Davis said.
Davis was previously selected by President George W. Bush for Shabaz’s seat, but the nomination expired in January.
Esenberg also noted that Butler is “an excellent nominee in a Democratic administration.”
Butler became the first African-American to serve on the state Supreme Court after being appointed by Gov. Jim Doyle in 2004. Butler is currently serving a two-year term as Justice-in-Residence at the University of Wisconsin Law School.
Butler’s credentials as a judge at the trial court level and his four years on the Supreme Court are ideal qualifications for the job, said University of Wisconsin political science professor John Coleman.
Coleman noted that Conley is also well known in the district not only for his prowess as a litigator, but for his pro bono work.
“These are two distinguished candidates,” Coleman said. “Both would bring different legal strengths to the bench, and you can make a good argument on political grounds for either as well.”
But Esenberg noted that Butler has twice been defeated in state Supreme Court races, the last in 2008 by Burnett County Circuit Court Judge Michael J. Gableman.
“While one could argue that a person who has twice lost a statewide judicial race ought not to be elevated to the federal bench, I doubt that argument will carry a great deal of weight with the senators or the White House,” Esenberg said.
Both Butler and Conley are also among the 21 applicants being considered by the State Bar of Wisconsin’s Federal Nominating Commission for Crabb’s seat.
Crabb announced in March that she plans to seek senior status, but will continue to carry a caseload.