Under the Influence
Early in 2008, supporters of Wisconsin Justice Louis Butler heard that someone was looking for mug shots of his former clients, the accused criminals whom Butler had represented as a public defender back in the 1980s. Attack ads were brewing against Butler, who hoped to hold his state supreme court seat that April in an election against a well-financed opponent. But one person from that era whom Butler's campaign never expected to see in hostile ads was defendant Reuben Lee Mitchell. Butler had lost that case, after all.
Mitchell had been convicted of raping a young girl when Butler was assigned to represent him on appeal. Butler convinced the appellate court in 1987 to order a new trial on the grounds that the jury shouldn't have heard certain evidence. The prosecution, however, appealed to the state supreme court, where a majority held that though the evidence shouldn't have been admitted, "there is no reasonable possibility that the error contributed to the conviction." Mitchell remained in prison.
Nevertheless, the convict became a TV star in 2008. Butler's opponent, circuit-court judge Michael Gableman, aired an ad claiming Butler "worked to put criminals on the street." In Mitchell's case, "Butler found a loophole," the narrator says in the commercial. "Mitchell went on to molest another child."
The ad artfully misled in two key respects, making it appear that Butler had handled the case as a judge rather than as a defense lawyer -- and that as a judge, he had set Mitchell free to rape again. In fact, though, Mitchell committed the second rape after serving his sentence. The capper: The ad paired a mug shot of Mitchell, who is black, with a photo of Butler, the first black justice on Wisconsin's Supreme Court. The racial subtext of the juxtaposition was unmistakable.
The Butler-Gableman contest had it all: bank-breaking spending, involvement by national interest groups, a blizzard of misleading attack ads that masked the true interests of the sponsors -- all the hallmarks, in other words, of modern American judicial elections, as they occur in some fashion in the 39 states where voters elect or vote to retain judges.
It was emblematic in its result, too. Butler was narrowly defeated, and the Wisconsin Supreme Court flipped from liberal to conservative.
Wisconsin epitomizes a broad and destructive trend. Since the turn of this century, business-oriented groups have dedicated big money to loading state supreme courts with judges sympathetic to their cause, installing conservative majorities in state after state. With a nationwide strategic focus, they have won far more than they have lost, and progressives have struggled to match them.
The races are increasingly costly. From 2000 to 2009, state supreme court candidates raised a total of $207 million nationally, more than double what candidates raised in the prior decade, according to "The New Politics of Judicial Elections 2000-2009: Decade of Change," a report by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics. Third-party groups spent about $39 million in those races, mostly on ads. Conservative and business interests, however, spent more than twice as much as liberal ones (state Democratic parties, plaintiffs' lawyers, and labor unions): $26.2 million versus $11.9 million.
In 2010, candidates raised another $27 million, and third-party groups spent roughly $11.4 million, according to Justice at Stake. The rightward tilt of spending by outside groups was even more pronounced last year than in the previous decade. Conservative and business groups spent almost $8.9 million compared to $2.5 million spent by the left.
No-holds-barred judicial campaigns certainly occurred before 2000. Millions were spent in 1986 to remove Chief Justice Rose Bird from the California Supreme Court over her votes against the death penalty. One of the earliest strategists on the state-court front was a consultant whose unrelenting methods would become the stuff of legend. In 1988, Karl Rove helped engineer the election of the first Republican chief justice of Texas's then deeply blue high court by demonizing plaintiffs' lawyers.
In 1994, Rove was called east. The Business Council of Alabama, irate over a long string of hefty awards against their interests, asked him to help GOP stalwart Perry Hooper unseat Democratic Chief Justice Ernest "Sonny" Hornsby. Rove saw to it that images of "jackpot justice" and fat-cat personal-injury lawyers dominated the campaign. Initially, it appeared that Hooper had lost by 304 votes. But Rove asked for a recount, and Alabamians then experienced the same elements of post-election drama that would play out nationally six years later in Bush v. Gore -- restraining orders, recount observers, rumors of absentee-vote fraud and ballots cast by corpses, press conferences, and a ruling by the U.S. Supreme Court. Nearly a year later, Hooper was declared the winner by 262 votes.
The intensified push, however, came in this century, when a deep-pocketed national money source -- the U.S. Chamber of Commerce -- turned its attention to the courts, targeting states where it viewed the plaintiffs' bar as too influential. According to a 2003 article in Forbes, the new initiative was bankrolled by corporate executives like Home Depot co-founder Bernard Marcus and American International Group chair Hank Greenberg, who were livid over lawsuits against their companies.
The Chamber raised $8 million to contest judicial races in 2000, $20 million in 2001, and $40 million in 2002, Forbes reported. The Chamber won 21 of the 24 judicial races it attempted to influence from 2001 to 2003. Chamber president Tom Donohue declared in a 2002 speech: "Flush with billions of dollars in fees from tobacco and asbestos litigation, a small group of class-action trial lawyers is hell-bent on destroying other industries, and nobody is immune. ... On the political front, we're going to get involved in key state supreme court and attorney general races as part of our effort to elect pro-legal reform judicial candidates." Often it did so obliquely. That year the Chamber funded such groups as the American Taxpayers Alliance, which in turn financed efforts in Alabama and Illinois court races, as well as Mississippians for Economic Progress.
In 2004, the Chamber was on the winning side in 12 of the 13 state supreme court races in which it was involved, according to Roll Call, including four in Ohio. In 2005, the National Association of Manufacturers followed the Chamber's lead, creating an offshoot, the American Justice Partnership (AJP), to target state courts. Voluminous cash outlays from AJP have included $345,000 to Americans Tired of Lawsuit Abuse to help back two Republican candidates for Washington state Supreme Court seats in 2006 and $1.3 million the same year to the Georgia Safety and Prosperity Coalition, which spent heavily on ads attacking Georgia Chief Justice Carol Hunstein and then melted away just a little more than a year after its appearance.
These figures greatly understate the reality, though. The true extent of spending by the Chamber and the AJP is impossible to know. They and many of the conduit groups through which they funnel money are organized under sections of the tax code that don't require public disclosure of donors or outlays. Also, in some cases, groups can mask their donors when they run only "issue ads" that don't explicitly call for someone's election or defeat, even if their intent is clear.
The business assault on the courts is partly offset by spending by unions, trial lawyers, and in some cases, state Democratic parties. The Alabama Democratic Party, for example, gave lower-court judge Deborah Bell Paseur $1.6 million, or 61 percent of her funds, in her 2008 bid for the Supreme Court. In that race, an Alabama plaintiffs' firm, Beasley, Allen, Crow, Methvin, Portis & Miles, used a labyrinthine network of 30 political action committees to get more than $600,000 to Paseur. She lost narrowly.
When Democrats and liberals win, it's often by using the same hardball techniques as business groups. In Michigan, the state Democratic Party spent $1.2 million to oust Cliff Taylor from the high court, including outlays for a devastating ad that accused him of nodding off during a case involving the deaths of six children.
The amounts spent by each side, though, have been decidedly unequal. The upshot is that if trial lawyers once held sway in certain state courts, those days are long gone. From 2000 on, conservatives gained control of supreme courts in Illinois, Michigan, Mississippi, Ohio, and West Virginia. Few states, though, have had more contentious, money-driven judicial elections in recent years than Wisconsin.
Louis Butler, then a judge in Milwaukee, mounted his first supreme court campaign in that tipping-point year of 2000. It was a respectful, low-dollar affair on both sides -- the national interests, while active in neighboring states, had yet to turn to Wisconsin -- and Butler lost decisively. But in 2004, the woman who'd beaten him became a federal judge, and Governor Jim Doyle, a Democrat, picked Butler to fill the supreme court vacancy. He was the first African American on that bench.
One of the early majority opinions Butler wrote was in the 2005 case Thomas v. Mallett. The issue was whether several makers of lead paint could be held liable collectively if the injured victim had no way of knowing which one had made the paint. Butler and three other justices said they could, expanding the "risk contribution" theory the court had laid out in an earlier case. Two conservative justices dissented (a third didn't participate in the decision).
It was just the kind of ruling that had prompted the Chamber of Commerce and others to begin targeting state court races. In the 2007 election pitting Annette Ziegler, a Republican-leaning circuit-court judge, against liberal attorney Linda Clifford for an open seat, business groups went to work. Spending by the two candidates and outside groups that year came to $5.8 million, a Wisconsin record. A coalition called Wisconsin Manufacturers and Commerce (WMC) spent $2 million of that. The WMC had been formed years earlier through a merger of the Wisconsin Manufacturers Association, the state Chamber of Commerce, and the Wisconsin Council of Safety. Its funding sources weren't disclosed, but it was listed as a partner of both the U.S. Chamber of Commerce and the American Justice Partnership.
Ziegler beat Clifford, drawing 58 percent of the vote, and pro-business groups geared up for Butler's face-off with Gableman the next year. The WMC produced a four-page brochure titled "Wisconsin Supreme Court Unbound: An Activist Majority in the Balance." The handout, aimed at business allies, cited a study from the U.S. Chamber of Commerce's Judicial Evaluation Institute that allegedly showed that Butler was the second-worst judge on the court when it came to expanding civil liability. Dumping Butler, the brochure emphasized, could swing the court away from "activists."
However, the WMC's TV ads made no mention of class-action lawsuits, punitive damages, or any of the civil-justice matters big business actually cared about. They were all about crime. One would have thought that Wisconsin was under siege by a gallery of depraved villains, rather than on its way to having its lowest murder rate in 20 years. The WMC refuses to comment about its involvement in any judicial elections.
The WMC was behind one of the most heavily run ads of the campaign, featuring a murder case that had garnered national attention. It centered on whether a defendant's Sixth Amendment right to confront witnesses against him was void when the witness was unavailable -- dead, for instance, allegedly by the defendant's own hand.
The witness and the victim in the case were one and the same: Julie Jensen, the 40-year-old wife of Mark Jensen and the mother of the couple's two young boys. She was found dead in December 1998 of poisoning by ethylene glycol, the main ingredient in antifreeze. She'd seen it coming, telling several people she thought Mark was trying to poison her and leaving a handwritten letter with a neighbor, instructing him to give it to the police if she died. Legally, the letter was testimonial evidence, and the defendant had the right to confront its source. That was impossible here, of course.
The trial judge ruled the letter inadmissible. When six justices of the Wisconsin Supreme Court overturned him on the prosecutor's appeal, the letter played a key role in Mark Jensen's conviction. Butler, the single dissenter, argued that the Sixth Amendment applied even though Jensen himself may have caused his wife's unavailability for cross-examination. It wasn't, however, remotely true that Butler "almost jeopardized the prosecution," as the ad claimed. In fact, this circular constitutional quandary was so significant that less than three months after Wisconsin voters had decided the judicial race in which Butler lost, the U.S. Supreme Court, in a similar case from California, came down in accord with Butler's interpretation of the issue.
Two WMC ads highlighting Butler's Jensen dissent aired more than 3,000 times, according to the Campaign Media Analysis Group (CMAG), which monitors political TV spots.
Another ad, by a group called the Coalition for America's Families, which was led by a former head of the state GOP, attacked Butler for a 2005 opinion overturning a murder conviction. In fact, Butler and the three justices voting with him called for a new trial because previously unavailable DNA test results showed that hair on a key piece of evidence was not the defendant's.
Supporting Butler, the Greater Wisconsin Committee -- whose leadership included an ex-aide to former Governor Doyle -- laid out substantial funds. But after the group ran its first attack ad against Gableman, Butler asked for all third-party groups to "stand down." "Let us run our own campaigns," Butler said at a debate with his challenger. He could have saved his breath. In the end, special-interest groups were responsible for 90 percent of spending on TV ads -- most of them negative -- in the Butler-Gableman race. In the 2007 and 2008 elections, combined spending by independent groups in the Ziegler-Clifford and Butler-Gableman races totaled, conservatively, $4.6 million -- more than the $3.9 million raised by the candidates.
In the final week, attack ads against Butler ran twice as often as ads against Gableman, according to CMAG data. Ads favoring Gableman outnumbered those favoring Butler, and they ran in more expensive time slots so were seen by more viewers. Gableman's supporters outspent Butler's on TV ads by 45 percent, CMAG's estimates show. Butler lost by a margin of 51-49.
The Wisconsin Democracy Campaign, a nonpartisan watchdog group, later measured how much any of the groups sponsoring crime-focused ads in the race cared about the issue. The study found that five groups that spent nearly $8 million on mostly negative ads centered on crime in 2007 and 2008 showed little to no interest in the 77 crime-related proposals being considered by the state legislature during that time. Three of them -- two conservative, one liberal -- took no position on any of the crime initiatives and didn't register as lobbyists, testify at hearings, or urge the public to take a position. Two other groups, including the WMC, took a stand on just three crime or public-safety measures, out of more than 240 total legislative matters on which they lobbied.
But ads about serial rapists, with their grainy images and ominous soundtracks, are effective, as consultants will attest. Ads about the issues these groups care about -- such as tort liability -- are about as motivating for voters as, well, watching lead paint dry.
The spending by business groups to elect conservatives to the Wisconsin Supreme Court paid off notwithstanding some sticky questions of integrity involving those new justices. Annette Ziegler stood accused of committing an elementary ethics violation as a circuit-court judge. She had ruled on cases involving a bank of which her husband was a paid director, a fact that came to light during her 2007 Wisconsin Supreme Court campaign. The high court had to contend with the transgression after Ziegler had joined its ranks. The justices formally reprimanded her in 2008, the first time in the court's history that they had rebuked one of their own.
Meanwhile, Gableman was fighting charges by the Wisconsin Judicial Commission that he'd lied in his Reuben Lee Mitchell ad against Butler. Eventually, a panel recommended the complaint be dropped, concluding that, even if the ad left a misimpression, it said nothing literally false. At that point, it was again up to the Supreme Court to take final action. The high court, minus Gableman, deadlocked 3-3 on whether their colleague had committed misconduct.
In still another outgrowth of the 2008 campaign, criminal-defense lawyers repeatedly asked for Gableman's recusal in their cases, citing statements by Gableman showing bias against them as a group. He refused. Yet again the justices deadlocked.
This series of internal flashpoints culminated in 2010 when the court, by a 4-3 vote, diluted its own conflict-of-interest rules in the wake of a 2009 U.S. Supreme Court decision on judicial recusal, Caperton v. A.T. Massey Coal Company. Though the decision prompted many states to consider toughening their standards, the Wisconsin justices rejected stronger proposals and adopted weak language drafted by the WMC and the Wisconsin Realtors Association. (One of the conservatives voting for the business-supported language, Ziegler had refused to sit out a case involving WMC in 2007, just months after the group had spent $2 million supporting her candidacy.) The new rules say that judges need not recuse themselves based solely on a lawful campaign contribution or independent expenditure, no matter how large.
This year's Wisconsin Supreme Court election between conservative sitting justice David Prosser and state assistant attorney general JoAnne Kloppenburg came against a fraught backdrop: First, there was the bad blood between conservative and liberal justices over the ethics cases and recusal rules. Then in 2011, the newly elected Governor Scott Walker, a Republican, and the GOP-controlled legislature sought to sharply limit the collective-bargaining rights of public-employee unions, prompting mass protests at the capitol.
Prosser, originally appointed in 1998 to the state's high court by Governor Tommy Thompson, a Republican, was heavily favored. But the public response to the collective-bargaining legislation was heated on both sides, and it was clear that challenges to the new collective-bargaining law would be resolved by the state's supreme court. Prosser was part of the court's 4-3 conservative majority.
Suddenly, the race was a proxy for the state's larger political battles. Some 35 interest groups spent $4.5 million in the two months before the April 5 election, much of it in the last two weeks. The candidates, both publicly financed, spent less than half a million dollars each, but the outside groups supporting Prosser spent about $2.7 million, and those backing Kloppenburg, roughly $1.8 million.
Both sides played the crime card: The Greater Wisconsin Committee attacked Prosser, a district attorney in the late 1970s, for not prosecuting a Green Bay priest accused of sexually abusing two boys. The WMC ran a spot with out-of-context remarks Kloppenburg had made about being tough on crime. The incumbent's temperament also became an issue. A Greater Wisconsin ad showed footage of Prosser, a former legislator, menacingly approaching the front of the Assembly chamber with his fist cocked. Court e-mails also came out showing that Prosser had called Chief Justice Shirley Abrahamson a "total bitch" and threatened to "destroy" her. Prosser admitted it, said he'd "probably overreacted" -- then dug himself in deeper by claiming Abrahamson and Justice Ann Walsh Bradley were "masters at deliberately goading people into perhaps incautious statements."
At the end of the tumult -- which included a recount -- Prosser won by just 0.5 percent of votes cast. It wasn't over, though. Given the last few years, the court had become prickly and ideologically riven. So when a challenge to the collective-bargaining law did reach them, the justices fell into predictable camps. On June 13, the day that the court's conservatives hoped to release to the public their decision upholding the law, Justice Prosser's hands had an encounter with Justice Bradley's neck.
Reports of the incident vary, but it's agreed that Prosser and the other conservatives went to Bradley's office looking for Abrahamson. Abrahamson and Bradley were there, and the two sides argued. Bradley asked Prosser to leave. Whatever happened next, Bradley claims that Prosser then deliberately put his hands around her neck, attempting to choke her. Others have said that Bradley charged Prosser, who incidentally touched her neck while fending her off. Justice Patience Roggensack, a conservative, pulled them apart. The Dane County Sheriff's Office investigated the matter, and in August, a special prosecutor was named to consider the office's still-undisclosed findings.
In July, the recusal issue was again the subject of pitched debate, this time centering on Roggensack. A defendant appealing his sexual -- assault conviction, Dimitri Henley, asked her to remove herself because she'd ruled, as a circuit-court judge, on Henley's co-defendant's case. She said no, and Henley petitioned the full court. Shocking most legal observers, Roggensack participated in the court's 4-3 decision, which said, "This court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis." In previous circumstances -- involving Gableman, for instance -- the court had deadlocked, with the justice whose recusal was at issue not voting. Now, with Roggensack taking part and casting a fourth vote, the court had set policy.
The dissenters were appalled: "Justice Roggensack fails to respect a bedrock principle of law that predates the American justice system by more than a century -- 'no man is allowed to be a judge of his own cause.'" The Dane County Sheriff's Office investigated the matter and a special prosecutor was named to consider its findings.
At the end of August, the special prosecutor investigating the Prosser-Bradley altercation announced there would be no charges filed. She gave no specific reason for her decision, though she noted varying accounts of the witnesses. Prosser took the opportunity to attack Bradley, saying in a statement that "Justice Ann Walsh Bradley made the decision to sensationalize an incident that occurred at the Supreme Court . . . I am gratified that the prosecutor found these scurrilous charges were without merit." Bradley said the incident had been a matter of "workplace safety."
The consequences of ugly campaigns and altercations over judicial ethics ripple far beyond the courtroom where the justices gather. A July poll by Justice at Stake showed that the confidence Wisconsin voters had in their Supreme Court had fallen to 33 percent, down from 52 percent three years earlier.
"I think the nastiness of the races and the ethical complaints have certainly contributed" to the court's poisonous atmosphere, former Wisconsin Justice Janine Geske says.
"The public's perception of the court is that its decisions are politically motivated," says Madison lawyer Tom Basting. When that happens, "democracy's in trouble."
Activities of third-party groups aside, the spectacle of judicial candidates raising money for their races puts attorneys in an awkward position. "The tricky part does come in getting calls from the justices for money," says a Wisconsin lawyer who was tapped for a check by the chief justice. "It was very uncomfortable for me, incredibly awkward. And then to appear in front of her ...."
Polls consistently show that the public believes those contributions pay off for donors. A 2010 Harris poll, for instance, found that more than 70 percent of Americans believe campaign contributions influence courtroom outcomes. Even many judges think money tilts judicial decisions.
But change won't come easily, if it comes at all. Over and over, polls have also shown that the public likes to elect its judges. An Annenberg Public Policy Center national survey in 2007, for instance, found that 64 percent of Americans favor the direct election of judges, a method with strong populist roots.
Still, in Wisconsin a growing number of former fans of elections are rethinking their position. Geske is one. She says that once, campaigning "forced judges to go out and be with the public, to be able to talk with people in small groups about the court system" and that elections usually produced high-quality judges. But, she adds, Wisconsin's recent experience "certainly has given me deep pause about whether this process works." To make things worse, Wisconsin just eliminated public financing for judicial elections, which had slowed at least a little the candidates' race for cash.
Some advocates of change see hope in the Caperton v. Massey decision, in which the Supreme Court held that a West Virginia justice who had received a $3 million campaign contribution from a corporate CEO had wrongly failed to recuse himself from a major case involving that same corporation.
"If I'm putting all my money on a candidate, if that results in a recusal, I begin to ask myself the crass question, 'What is the return on my investment?'" says Mark White, former Alabama Bar president. "I think this is the one thing that could have an impact. Caperton has the most potential to change our judicial races."
Historically, most states have left it only up to the justice whose fairness is being questioned to decide whether to stand aside. A handful of states -- Wisconsin not among them -- have adopted stricter standards since the Caperton ruling. Michigan now allows the entire court to review recusal motions and disqualify individual justices from cases "if the judge's impartiality might objectively and reasonably be questioned." New rules in New York state require recusal of any judge to whom any parties or lawyers involved in a case donated $2,500 or more in the preceding two years.
The public, with its suspicions about the influence of campaign money, seems open to clamping down on recusals. In one Harris poll, 81 percent said a judge shouldn't hear cases involving parties who had spent $10,000 to help him or her get elected.
In 2009, Barack Obama nominated Louis Butler to be a federal district judge in Wisconsin. Obama has renominated him three times, most recently last January. Repeatedly, Butler's nomination has made it through the Senate Judiciary Committee and died on the Senate floor at the hands of Republicans. In the current go-around, even the committee hasn't voted, because the new Republican senator from Wisconsin, Ron Johnson, hasn't signed off, in accordance with a Senate custom calling for approval from a nominee's home-state senators.
The Wall Street Journal has editorialized against Butler, citing the lead-paint and other cases, and both business and social conservatives have him in their sights. One manifesto attacks him for allegedly having "a far-left agenda of personal beliefs and political ideology" and making it easier for business to be slammed with "junk lawsuits."
Butler has become a partner in a Milwaukee law firm while waiting for some movement, playing a little golf, spending time with his family, and waiting for some movement in Washington, or perhaps for frustration to spur him to move on. Given the blockage of court appointees in today's Senate, uncertainty is the nominee's lot. But a few things are certain: Those who want to try to influence next year's judicial elections are already at work raising money and testing messages. Spending on judicial races will climb. And if recent trends continue, one side will likely spend significantly more than the other.
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