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Finding North Without a Compass

A retired Army officer and retired Fortune 500 executive, Warren may be best known for making waves while serving on the Mequon Common Council and Ozaukee County Board. He's no longer an elected official, but he has plenty to say about local, state and national issues.

 

ELECT or APPOINT? – The Supreme Court Brouhaha

The Butler/Gableman election may be over but the debate has just begun. Shall we support changing the process so that our Supreme Court judges are henceforth appointed and their elections abolished? Everybody is welcome to chime in with most of the Milwaukee Journal Sentinel Sunday’s Crossroad section dedicated to the discussion. In addition, earlier in the week, the paper’s columnist, Eugene Kane, pitched in with the thought that Judge Butler did retain his integrity in a nasty campaign.

Mr. Kane and I conducted an E-mail debate over that contention.  My point was that Judge Butler’s integrity could be called into question when he accepted Governor Doyle’s appointment to the Wisconsin Supreme Court. He had previously lost a contested 2000 election for that same seat to Judge Diane Sykes by a substantial margin. Certainly he knew that his liberal judicial philosophy differed by a substantive margin from Judge Sykes’s conservative judicial philosophy – and that the election result left no doubt which judicial philosophy the electorate supported.

Governor Doyle displayed his lack of integrity when he ignored his electorate’s demonstrated wishes by appointing Judge Butler, with his rejected liberal judicial philosophy, to Judge Syke’s seat when she moved to the Federal judiciary. My point to Mr. Kane was that Judge Butler clearly understood the will of the people, from his loss to Judge Sykes, that they wanted a conservative judicial philosophy from this Supreme Court seat. Had he had the integrity Mr. Kane attributed to him and he attributed to himself, i.e., "steadfast adherence to a strict ethical code," Judge Butler would have rejected the appointment. Instead, he ignored his substantial rejection in the election of 2000, and accepted the appointment. His subsequent performance on several legal issues confirmed that he did not represent the conservative judicial views of the electorate when they put Judge Sykes on the court. Mr. Kane’s rebuttal was to suggest that a judge who rejects a political appointment to the bench, NEVER happens and I am out of touch for suggesting such a consideration.

So now, having to run for a full term – surprise, surprise – the electorate rejected Judge Butler again, setting off caterwauling from all the "usual suspects." Governor Doyle deemed the result a "tragedy" – apparently meaning that the electorate was so stupid that they had twice disagreed with him by rejecting Judge Butler.

Now, State Representative Frederick Kessler proposes that justices be appointed and Professor of Law Rick Eisenberg supports continuing to let the electorate decide in dueling Milwaukee Journal Sentinel columns. I believe that Mr. Eisenberg was sincere in his position since he clearly points out the many warts in the electoral process, but I wonder if Representative Kessler would have even been visible had Judge Butler won. Regardless, it would appear that Mr. Kessler has a high mountain to climb in getting a constitutional amendment through the Legislature and then the electorate -- removing the electorate’s ability to select Supreme Court judges more closely attuned to their judicial philosophy.

Lastly, Professor Walter Farrell, a past activist in Milwaukee and Wisconsin politics, but now teaching at the University of North Carolina, plunges into the debate with a column entitled "Race didn’t doom Louis Butler." At first I found myself nodding in agreement with Mr. Farrell’s several points that concluded with "Butler’s political strategy, not race, doomed him to defeat." On subsequent reflection, however, I concluded that Mr. Farrell’s point was just the opposite and that race did doom Judge Butler to defeat. In a nutshell, Mr. Farrell severely criticizes Judge Butler’s pre-campaign and campaign strategy by not cultivating the major African-American communities to make sure that everyone knew he was black as well. Mr. Farrell quotes a black male resident of Milwaukee who didn’t like some of Judge Butler’s positions but would have voted for him had he knew he was black. He concluded that the 20,000 vote margin for Judge Gableman could have been easily breached had Judge Butler played the race card in the black communities.

A Wikipedia definition of the "race card" is "exploiting prejudice against another race for political advantage." I concluded that Professor Farrell’s criticism of Judge Butler’s campaign strategy was based on his failure to play the race card within the African-American communities. Had Judge Butler done so, black voters who might have been unaware that he was black, and either voted for Judge Gableman or did not vote at all, could have provided the winning margin..

Regardless, voters of all ethnicity can cheer that Judge Butler and his campaign team did not play the race card – and we can hope that all politicians -- white, black, brown or yellow – will follow this example in future elections.

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