Butler confirmation still up in the air

Listen to this article

After two failed nominations to the federal bench, attorneys and judges in the Western District of Wisconsin are wondering if the third time is the charm for former Wisconsin Supreme Court Justice Louis Butler.

Butler was approved by the Senate Judiciary Committee, for a third time, by a 12-7 vote during a meeting on Sept. 23. Dawn Schueller, a spokeswoman for Sen. Herb Kohl (D-Wis.), said that due to a crowded floor schedule, there is no guarantee a confirmation vote by the full Senate will take place before it adjourns in advance of the election.

Schueller added that Kohl will push for Butler’s confirmation by the full Senate when they return for a “lame duck” session after the election. If the Senate adjourns for the year before a confirmation vote, Butler’s nomination will expire, which is what happened to him the two previous times he was nominated. Butler declined to comment on his status.

It has been almost three years since Judge John C. Shabaz held his last court hearing and in that time the district, known for its efficiency, has been able to absorb the absence with minimal disruption.

But there is concern that the prolonged vacancy will eventually catch up to the court. Madison attorney Lester A. Pines said it is “preposterous” that Butler has not been confirmed and the delay is putting an unnecessary strain on the district.

So far, the court is handling the workload, but that could change. Chief Judge Barbara B. Crabb assumed senior status at the start of 2010, but continues to take a full caseload to maintain the scheduling pace attorneys have grown accustomed to in the district.

“It’s very frustrating,” Pines said. “If Crabb decides to actually cut back, that will have a big impact in terms of delays.”

If and when someone is appointed to replace Shabaz, Crabb plans to reduce her workload, but she didn’t know how long she would continue to maintain a full calendar.

Often referred to as the “rocket docket,” the Western District generally schedules most cases to trial within a year, with patent cases taking 15 to 18 months.

In his recent experience, attorney James R. Troupis said calendars have lengthened somewhat and practitioners were wary of a shift in the way the court moved cases with two openings on the bench.

Those fears were partially allayed with the appointment of William M. Conley, who succeeded Crabb as Chief Judge in April, but Troupis said it remains a concern until the court returns to full strength.

“Predictability is an important part of what we do and clients expect some of that,” he said. “I think we’re all afraid that a new judge would adopt a more laissez-faire approach.”

He said the court’s efficiency has long been a selling point for the district and lawyers who practice in it.

According to an order issued by Conley on Aug. 30, most civil cases filed after that date would be divided in thirds between himself, Crabb and U.S. Magistrate Judge Stephen L. Crocker.

At this point, Crocker said the system has worked well, although meeting summary judgment deadlines has been more challenging with three judges.

Typically, the court requests motions in limine four or five months prior to a trial date, which means the judges have a quick turnaround to issue a ruling.

“With only three judges looking at them and looking at more, it can be alarming to attorneys 30 days before trial if they don’t have ruling on a summary judgment motion,” Crocker said.

Western District Bar Association President Andrew J. Clarkowski routinely has as many as 10 cases pending in the district and said the court has performed admirably in meeting deadlines.

Clarkowski shared the concern of other attorneys that if Crabb or another judge is unable to maintain a full caseload prior to another judicial appointment, it could increase the strain on the system.

“Without another judge being appointed, it would makes things potentially difficult if one of the judges were unable to do the good work they are doing now,” he said.

Clarkowski said the court maintained its efficiency after Shabaz went on medical leave in 2007 and Crabb was the only Article III judge in the district. However, he admitted that any practitioner would prefer more certainty.

“Some people are patient and some aren’t,” said Clarkowski, of Axley Brynelson LLP. “The way the courts are running now, adding another judge can only help.”

Until that happens, the district will continue to “muddle through,” said University of Wisconsin Political Science Professor Charles Franklin.

He said at this point, it’s simply a matter of politics rather than judicial experience as to why Butler has failed to receive even a confirmation hearing in the Senate.

Franklin pointed to Republican opposition and scrutiny of Butler’s time on the state Supreme Court as potential reasons for the repeated delay of his confirmation.

“I assume that is based on Butler’s actions on the state Supreme Court and the campaign against him for election to the Court in 2008,” he said. “Certainly that campaign painted him as anti-business due to some of his rulings and I image the “activist judge” label applied to him makes him a likely target among GOP Senators.”

Prior to leaving office, President George W. Bush had nominated Waukesha County Circuit Court Judge J. Mac Davis for Shabaz’s seat, but the nomination expired once Obama became president.

“I expect the seat can stay open for a while,” Franklin said. “But it isn’t a good way to run the system of justice.”

In the meantime, Pines argued that keeping a qualified candidate in limbo is gradually taking its toll on the Western District.

“What does it say if you have a qualified candidate who can’t even get to a vote after being approved by the Judiciary Committee,” he said. “Why would anyone want to apply for that position?”

Jack Zemlicka can be reached at [email protected].