First, let’s look at what happened in 2010. In an election between Justice Louis Butler and challenger Michael Gableman (yes, him), an ad ran showing the mug shot of a convicted rapist next to a photo of Butler. As it happened, both were African-American, and the implication, reminiscent of the Willie Horton ad run against Michael Dukakis in the 1988 presidential campaign, was that Butler was responsible for getting the rapist out of prison and thus allowing him to rape another victim. In fact, Butler was a public defender at the time doing his job, although the ad pictured him in a judge’s robes.
More importantly, Butler’s representation did not succeed — the convict remained in prison until he completed his sentence. While he did commit another assault, Butler’s representation was not responsible for his freedom. So, while every sentence in the ad was absolutely true, its presentation constituted a complete lie.
The Wisconsin Judicial Commission found that Gableman’s advertisement violated SCR 60.06(3)(c) because it “misrepresent[ed] . . . [a] fact concerning. . . an opponent.” However, In re Judicial Disciplinary Proceedings Against Gableman, 2010 WI 61 and 2010 WI 62, with Justice Gableman recusing himself (he was a justice, having won the election) the Supreme Court was equally divided on rejecting or accepting the recommendation of the Commission. Since the Wisconsin court does not, unlike many other states, have a tie-breaking procedure (such as randomly promoting a Court of Appeals judge), no decision was reached, and we have no precedent for discipline for lying in a judicial campaign.
The result is that the law of the jungle is in full effect. So, when the two candidates in the current election, Waukesha County Judge Brad Schimel and Dane County Judge Susan Crawford, make accusations against the other, no “fact checking” occurs — or ramifications if there were fact-checking.
If you watch the ads (and I suggest that you don’t), you would think both judges are, at best, lax at sentencing criminals and at worst, favor criminals. I don’t know about the former, but I really doubt the latter is true. Never mind that most of the work of the Supreme Court does not even involve criminal cases. Neither campaign is stupid — they both know that painting the opponent as soft on crime is a pathway to victory.
My fantasy is that in 2010 the Supreme Court had ruled that electing a Justice for 10 years is not akin to selling cars — or for electing other public officials. Rather, more stringent rules apply because the office is a professional one — not a political one. Yes, this might have led to multiple accusations of falsehood by the other side. But it might also have led to campaigns being more careful before casting aspersions.
The solution would be to not elect judges, but have an appointive/retentive system as a number of other states do. But that is not going to happen.
So, the mudslinging continues. The truth be damned.