Gableman wants it both ways

Last week, the advocacy group One Wisconsin Now voiced a concern over some campaign literature distributed by Michael Gableman, who is seeking to unseat Louis Butler from the Wisconsin Supreme Court next April. At issue is the prohibition against candidates for judicial office making “pledges, promises, or commitments” with respect to “cases, controversies, or issues” likely to come before the court.

The flyer, labeled, “Louis Butler: Failing Wisconsin Law Enforcement,” contains thumbnail accounts of Butler's opinions in nine split decisions of the Supreme Court wherein Butler variously joined the majority or dissented. Eight of the nine cases are 4-3 splits. Butler voted with the majority in five of those cases, and dissented in the other three. The ninth case is a 6-1 decision where Butler authored the lone dissent.

Gableman is advertised as standing in “stark contrast” to Butler, who, it's suggested, is dedicated to “expanding the rights of criminals.” The message, presumably, is that Gableman would have (or will) ruled opposite to the disposition Butler reached in the cited cases. Whether he's promising to do so in the future when faced with similar controversies is the question OWN is raising.

What interests me at the moment, however, is the juxtaposition of two of the nine cases and the objections Gableman is proffering against Butler's results in those cases from a perspective of “conservative judicial philosophy,” which is, let's face it, what Gableman is selling here.

The first, State v. Jensen (.pdf, 60 pgs.), has to do with (among other law of evidence questions) the U.S. Constitution's Confrontation Clause, which appears in the Sixth Amendment: “At all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Jensen was unable to confront the particular witness in question because he'd, er, caused her death.

In the other, State v. Knapp (.pdf, 62 pgs.), as Gableman's campaign puts it, “Butler voted to expand criminal’s [sic] rights beyond the US Constitution by voting against allowing key evidence of bloody clothing in a murder case.”

As to the latter, it's a cliché of constitutional law that the U.S. Constitution sets a floor, and not a ceiling, in terms of the enumerated rights in the Amendments. In other words, whatever limits the U.S. Supreme Court places on the Bill of Rights, States remain empowered to grant greater latitude.

In still other words, for example, if Justice Scalia convinces four of his colleagues that smoking giant cones packed with sticky, sticky bud is not a legitimate free exercise of Rastafarianism, Wisconsin courts may nonetheless deem it so, at least for the purposes of State law. This is a feature of federalism, which addresses the tension between State and federal power.

Wisconsin courts, however, embody a tradition of not hovering too far above that floor, and Gableman doesn't appreciate that Butler may wish to reconsider some of that State precedent. Because, as we all know, the doctrine of stare decisis is sacrosanct to conservatives — witness the devotion to Roe v. Wade. I digress (but not much).

Presumably, one of the defenses the Gableman campaign may raise against OWN's concerns is that the flyer, far from making any promises or commitments, is simply enunciating the candidate's judicial philosophy. And, no doubt, as the campaign continues, Gableman's supporters, at least, can be expected to let loose the familiar code phrases, “strict constructionist” and “original intent,” guaranteed to warm the conservative heart and invoke pleasant apparitions of their favorite jurisprudes, Scalia and Thomas.

But in his Jensen dissent, Butler deploys both strict constructionism, in his emphasis on the Confrontation Clause's “all criminal prosecutions” language, and original intent, in arguing that the U.S. Supreme Court's interpretation of the Sixth Amendment is itself frozen in 1791, which is what informs Butler's conclusion.

However, apparently, it's merely the result Gableman doesn't like. Surely he can't be objecting to the employment of strict constructionism and original intent, can he? If so, there's a Butler campaign slogan for you right there: "Michael Gableman, a living, breathing judge who sees the Constitution in exactly those terms."

(Better a Charlie Schutze campaign slogan, come to think of it.)

Now, it may be claimed that Butler is the one who wants it both ways, on the one hand arguing for a modern expansion of the Fifth Amendment (as in Knapp) but also for restricting the Sixth to its original understanding (as in Jensen).

But there's nothing unusual about a judge employing different means of interpretation when facing resolutions based in different sets of circumstances and different historical strains of law. They all do it. And besides, it isn't Butler who's criticizing Gableman for his jurisprudence; it's the other way around. For the moment, at least.

The moral of the story is that the next time you hear a conservative yammering about strict constructionism or original intent and her unwavering devotion to same, don't believe a word of it.