One of the motions is directed toward Gableman himself — which he will almost certainly deny — and the other asks the court to consider Gableman's recusal on due process of law grounds, the factual basis for which constitutional argument is his well documented behavior during an election in which roughly 9.5% of Wisconsin's eligible voters managed to position him on the far right of the high court bench.**
David Ziemer in the Wisconsin Law Journal describes the broad contours of the motions in a report that also features a couple of remarkable observations from some famous local conservative Republicans. First there is this non sequitur issuing from Marquette University law professor Rick Esenberg:
Esenberg said the Massey case and the issues raised by Henak differ, which is why the motion has little chance of success.In fact "the Massey case" (Caperton v. A.T. Massey Coal Company, Inc.; see the SCOTUS Wiki) is mentioned only tangentially in one of the motions, which expressly acknowledges that the questions presented by both cases are merely "similar," in that each involves third party contributions to judicial campaigns.
So it's less than clear why Allen's motion has "little chance of success" simply because it's different from Caperton. Not only that, but Caperton hasn't even been decided yet, so nobody knows what — if any — direct application it will have to Gableman's latest imbroglio.
According to Ziemer, Esenberg claims that "virtually all judicial candidates employ a 'tough on crime' philosophy, including Chief Justice Shirley S. Abrahamson during her recent re-election campaign." Prof. Esenberg waxes syllogistic:
"If this motion is granted, then she — and virtually every other candidate who has ever run a contested race — should also be required to recuse themselves as well," Esenberg said.Emphases added. But this doesn't at all follow either, given the substantial and substantive factual dissimilarities.
Gableman's campaign was devoted almost exclusively to this so-called "tough on crime philosophy" and isn't even remotely comparable to Abrahamson's. Rather, a prominent theme of the Chief Justice's recent campaign was an emphatic disabusing of the notion that judges "side" in advance with either plaintiffs or defendants.
Not only did Gableman continually and demonstrably promise to be an "ally" of law enforcement and its "war on crime," he went well out of his way to denigrate the professional experience of his opponent — so much so that Gableman has found himself up on ethics charges — and even further to disparage the very statutory and constitutional protections to which criminal defendants are entitled.
Abrahamson most certainly engaged in none of that business.
Moreover, the suggested test for Gableman's recusal under the circumstances is not simply whether or not he believes he can perform as an impartial magistrate, but whether a reasonable observer — in this case, the defendant/appellant, Allen — believes Gableman can, based on Gableman's own continuously repeated demonstrations.
This is a point that even the other conservative Republican quoted in Ziemer's story, Wisconsin Attorney General J.B. Van Hollen, appears to have overlooked:
Van Hollen said the motion [sic] "is an attack on our system of electing judges."The latter is a daringly unequivocal claim. And it can only be true if one accepts that Gableman's actions were "no different than past years." But Gableman's actions were clearly quite different, in that they've succeeded in placing him in the unprecedented situation of being under investigation by the Wisconsin Judicial Commission.
Van Hollen added that during an election, judicial candidates are allowed to express their views, within the limits of the law, and Gableman’s actions in 2008 were no different than past years.
"This in no way disqualifies them [justices] from being fair and impartial in a specific case," Van Hollen stated.
No less an authority than former Wisconsin Supreme Court Justice Janine Geske had never seen anything like it, describing Gableman's shenanigans as "sinking to new lows," and one may safely accord considerably more deference to her observations than to Van Hollen's.
While it's true that a large amount of financial, media, and other support came from third parties (including, instructively, Rick Esenberg), not only did Gableman do nothing to set himself apart from those attacks against his opponent, but Gableman embraced them enthusiastically by featuring them prominently in his speechifying, his campaign literature, and at his campaign website.
(That website has long since been reduced to a lone index page bearing nothing but a logo, but much of it was previously retrieved and is attached as appendices to the motions for recusal.)
If anything was an attack on Wisconsin's system of electing judges, it was the disgraceful campaign of Gableman and his supporters.
Diane Sykes, the George W. Bush-appointed Seventh Circuit Court of Appeals judge, herself a former Wisconsin Supreme Court justice, called it "utterly inconsistent with the judicial role," and Gableman's notorious teevee ad a "particularly base and deceptive attack."
In any event, Caperton is more similar to Michael Gableman's situation than Esenberg lets on, since it deals with the appearance of bias created by massive campaign contributions to a judicial candidate by third party interests and according to the due process analysis, the appearance of bias is all that's required.
It was a core promise of Gableman's campaign he would not only be biased in favor of law enforcement but biased against criminal defendants. I don't know how even Esenberg could rebut that.
More specifically, one of the notable parallels between Gableman's case and Caperton is the involvement of the business outfit Wisconsin Manufacturers & Commerce, which spent millions of dollars on Gableman's behalf and ran literally thousands of radio and television spots in the weeks before the April, 2008 election disparaging Gableman's opponent for his work decades ago representing criminal defendants.
Rick Esenberg is often presented in the local press as a detached, academic observer, a special favorite of right-wing dissemblers like Charlie Sykes and Patrick McIlheran, and it was in that apparent capacity that he lent himself and Marquette University's prestige to WMC in a video presentation that laid the groundwork for WMC's and ultimately Gableman's notorious attacks on his political opponent.
But Prof. Esenberg's subsequent energetic defenses of the most fanatically and egregiously dishonest of Michael Gableman's supporters did much to detonate that facade of academic disinterest.
* The motions and related documents are available here.
** One of the reasons why Gableman's ethics investigation merits a public hearing — the one his lawyers are seeking to avoid — is so that the remaining 81% can learn more about what antics he got up to.