judgesonmerit.org

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

Yet another reason why judges and elections should not mix, brought to our attention by our friends over at GavelGrab: In 2008, Michael Gabelman, then a Wisconsin Circuit Court judge, ran a television ad against his opponent, a then-sitting justice on the Wisconsin Supreme Court, Louis Butler, Jr. The ad was, at best, deceptive.  A three-judge panel that heard arguments in the case on Wednesday is trying to decide whether the statements in the ad, put together, constituted an outright lie.  The facts of the case, in short, via the Milwaukee Wisconsin Journal Sentinel:

A month before the election, Gableman ran an ad about a case Butler worked on as a public defender involving child sex offender Reuben Lee Mitchell.

“Butler found a loophole. Mitchell went on to molest another child,” the ad said. It then questioned whether the public would be safe with Butler on the court.

Unmentioned in the ad was that Butler won the appeal, but the Supreme Court ruled that errors in the case were not sufficient to overturn the conviction. Mitchell didn’t commit the subsequent crime until he was released on parole.

The Wisconsin Code of Judicial Conduct, like Pennsylvania’s, prohibits false or misleading statements by judicial candidates.

According to Gabelman’s attorney James Bopp, Jr., however, judicial candidates have a right to mislead voters in advertisements, even if it is ill-advised, as long as they are not knowingly misrepresenting information about their opponents. The Journal Sentinel article continues:

“I don’t think misleading is something good, (but) it can’t be sanctioned,” he said.

“The discussion, the debate, the issues that are raised, that’s for the voters to settle – not the courts. . .”

Is this why we elect judges in Pennsylvania?  So candidates can do their best to convince the public that their opponents are evil? Call it what you will – deception or lies – is this type of smear campaign an inevitable result of forcing candidates for the bench to run for their positions? It is an unfair burden to ask those meant to be impartial interpreters of the law to justify their qualifications in expensive 30-second sound bites.