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Former justice Butler looks back at tumultuous time on high court

By: Dan Shaw, [email protected]//September 16, 2019//

Former justice Butler looks back at tumultuous time on high court

By: Dan Shaw, [email protected]//September 16, 2019//

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(Photo by Kevin Harnack)
(Photo by Kevin Harnack)

Louis Butler is reluctant to say his attempt in 2008 to retain his seat on the state Supreme Court came amid a new low point in Wisconsin judicial elections.

Since he ultimately lost that contest to Michael Gableman, he feels fairly confident that no matter what he says, it’ll be taken as a product of resentment.

But Butler doesn’t have to say the race was a low point. Plenty of others have reached that conclusion for him.

The Wisconsin Judicial Campaign Integrity Committee, for instance, deemed a TV spot that Gableman’s camp ran in 2008 not only “offensive” but also “race-baiting.” The ad in question took Butler to task for representing a child molester who went on to commit a subsequent sex offense, never mind that the later crime took place well after Butler’s representation had ended and after the molester had been released from prison.

“Obviously, I’m not thrilled with the way the election played out and the ultimate result,” Butler said. “But it also has been written about as being one of the low points in the state’s judicial history.”

Despite that experience, Butler has largely managed to put his time on the court behind him. After losing his seat on the high court, Butler taught at UW’s law school for several years and worked at two law firms: Gonzalez Saggio & Harlan, which is now defunct, and DeWitt. His retirement from full-time practice came in July.

But even though Butler hasn’t been on the Wisconsin Supreme Court for years, he hasn’t stopped reflecting on his time there. He recently chatted with the Law Journal about what his 2008 race says about the state of the Wisconsin judiciary and his thoughts about the current court. (This article has been edited for clarity and brevity.)

Wisconsin Law Journal: Do you look back at your time on the court as being sort of a turning point for judicial elections in this state?

Butler: It’s kind of ironic. I was involved in a Supreme Court race in 2000 with (now 7th Circuit Judge) Diane Sykes and it was seen by many people as the model of what Supreme Court elections should like look. Then you fast forward to 2008 and you look at the some of the studies done by the Brennan Center for Justice on judicial elections around the country. And that’s when the money really started coming in and impacting states where you have elected judiciaries. And some of what they found is that these campaigns are focused almost exclusively on criminal decisions, even though the spending really has to do with civil-liability decisions.

WLJ: Why do you think outside groups use the tactics they do?

Butler: Well, the reality is, if you are in a judicial election you are not supposed to be running on the issues. You are supposed to be running on your character and your ability to analyze and interpret the law, and make sure issues of justice are reached in a fair and impartial way. But, if you have been on a bench at any point in time in the past, your prior decisions are open to attack. And you are not really able to defend them, because you can’t ethically say something that might tie your hands in future decisions. But when you run as a judge, the average voter wants to know if you are a Democrat or a Republican. And if you don’t answer questions, their eyes just glaze over and they start thinking about what they are going to eat for dinner.

WLJ: Do you think judges should be chosen in elections?

Butler: Up until a couple of recent judicial election, I thought there was some obvious merit to allowing citizens to decide who should be on the bench. However, particularly as a result of recent U.S. Supreme Court decisions — Citizens United and others — outside groups are now able to spend money that doesn’t have to be tracked in order to elect or un-elect people and further their own agenda. So money is being poured in, but you can’t run on the issues. That was the problem in my race. I couldn’t control the message. So you end up becoming a victim of what someone else’s image of you is. So if this is of concern, then maybe elections aren’t the way to go, unless you have a change in decisions like Citizens United.

Also, if I were to change our elections in one way, I’d move them out of April, when you have some of the lowest turnouts of all elections, and have them in November, when you tend to have a very high turnout.

WLJ: A lot of judicial candidates try to differentiate themselves from their rivals by saying they are “strict constructionists.” Do you think the distinction they are making is fair and accurate?

Butler: No. The reality is that most judges try to do what they believe to be fair based on current law and the facts of a particular case. Of course, your views are going to be tempered by how you view the law walking in. And that’s why it’s important to have a court that’s not too imbalanced one way or the other. And that’s the value in having a collegial body, where you have people from a variety of viewpoints who can sit down at a table to work on line-drawing cases where the lines aren’t clear. Because when you are trying to make these decisions, there is no clear-cut, one-size-fits-all answer.

WLJ: What do you think of the current state of the Wisconsin Supreme Court?

Butler: Obviously, we have a new court. And we are all going to miss the brilliance of Shirley Abrahamson and her great legal mind. She is one of the hardest workers I’ve ever met. But it remains to be seen how this court is going to shake out with its new makeup. What I’m hoping for is improved collegiality. Because if you can talk to each other you are more likely to be open and listen to whatever other people have to say, even if you don’t like it.

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