I May Have To Start A “Cry Me A River” Award

REVIEW & OUTLOOK

 Wall Street Journal

The Wisconsin ‘Tragedy’
April 3, 2008

Governor Jim Doyle called the result of Wisconsin’s state Supreme Court election “a tragedy.” It’s surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court’s ultra-liberal justices and in the process helped toughen the standards for judicial accountability.

The election was a referendum on Louis Butler and the high court’s sharp political turn. Justice Butler was appointed by Governor Doyle, a Democrat, to fill a vacancy in 2004. This gave liberals a majority and Justice Butler proceeded to indulge the legal theories of the tort bar and activist left, for instance laying waste to Wisconsin’s medical malpractice laws and endorsing a “risk contribution” liability standard for lead paint that made the question of guilt or innocence irrelevant.

But Mr. Butler was required to stand for election, and on Tuesday he narrowly lost to district court Judge Michael Gableman. Mr. Gableman’s 10-year term will begin in August and probably tip the balance of the court to a 4-3 conservative majority.

Closely watched nationally, the election became a proxy war between third parties, with business interests lining up behind Mr. Gableman and trial lawyers and organized labor plumping for Mr. Butler. The hotly contested race supposedly shows the need for “merit selection” or public financing in judicial elections. But both sides leveraged roughly the same amount of money, and voters had a choice of two distinct legal philosophies.

The Wisconsin result should reverberate through the 39 states that elect some or all of their appellate-level judges. Mr. Butler is the first incumbent justice to be ousted in more than four decades there. A seat on the bench is not a sinecure, and justices who abuse or contort the law must sometimes answer for their actions.

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