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TUE., MAR 25, 2008 - 3:25 PM
Wineke: There has to be a better way
Bill Wineke
608-252-6146

Read Wineke's blog at www.madison.com/wsj/blogs.

There has to be a better way to select Wisconsin Supreme Court justices than this.

Forces backing candidate Michael Gableman, a Burnett County judge, are attacking sitting Justice Louis Butler because 24 years ago Butler, working as a public defender, defended a man accused of rape as he appealed his conviction. Gableman's ad features photos of both Butler and the accused. Each of them is black.

I'm sure that's just a coincidence. It's also sleazy.

There are those who think that certain people are so vile they shouldn't be afforded either a trial or legal representation, but that is hardly the kind of position we should want our official justice system to take.

Earlier, ads criticized the sitting justice because Butler joined other justices in overturning a murder conviction of Ralph Armstrong. Armstrong is now awaiting a second trial.

Taken on its face, the claim seems legitimate. We shouldn't be letting the worst people out of jail, and Armstrong is not a particularly appealing defendant.

The problem is the Armstrong case involved DNA evidence that appears at odds with the evidence used to convict him in the first place. So-called "eyewitness" testimony against him also - at a minimum - seems questionable.

One thing we might expect of a Supreme Court justice is that, if he learns a person is sitting in jail for a crime he didn't commit, the justice will vote to free the prisoner or, at least, grant him a new trial.

In the meantime, Butler's supporters are accusing Gableman of doing unethical fundraising for former Gov. Scott McCallum.

I honestly have no idea whether Butler is a good justice or a mediocre justice, and I have no idea whether Gableman would be better or worse. What I do know is that we lose all respect for the court when an election is waged this way.

Along the way, Wisconsin Manufacturers and Commerce is sponsoring advertisements praising Gableman as being a strong partner in the fight against crime. That's the association's privilege, of course. But I didn't think Supreme Court justices ought to be involved in the war on crime. I thought they were supposed to be dispassionate judges of whether the law is being followed correctly.

If you want to read something really eerie, try John Grisham's new book, "The Appeal." The plot involves a race for the supreme court of Mississippi. A major business interest in Mississippi wages an undercover and underhanded campaign against a sitting black justice to replace him with a little-known candidate the business thinks will vote to overturn a ruling it doesn't like.

The comparisons are unsettling. In fact, the Annenberg Public Policy Center says "all we can say is John Grisham's story line isn't exactly far-fetched. It is playing out for real in Wisconsin."

On the other hand, Wall Street Journal editorial writer Collin Levy argues that we would do better to fear trial lawyers than business interests when it comes to selecting justices because "trial lawyers in each state are the ones with the financial and organizational incentive to work year-in and year-out to shape the local judiciary to their liking."

She may have a point, too, but that wouldn't make me any happier about the system we've developed.

My problem isn't only that the competing ads may be inaccurate. My problem is that they are being run in the first place. All they do is tear down the candidates - and, by extension, the Supreme Court.

There is no earthly reason why the selection of Supreme Court justices should be yet another point of entry for the conservative/liberal debate.

At a federal level, the president nominates Supreme Court justices and the Senate confirms them. There's a lot of controversy in that process, too. But by and large, it has worked well and it might work better for Wisconsin than the sleazy, expensive process through which we now must suffer.


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