November 17, 2009

Gableman "oozes" through loophole

The Racine (WI) Journal-Times

However: I really wish people would stop saying "Butler found a loophole" is true. It wasn't a loophole, and Butler didn't find it.

So how could it be true.

Or, don't believe me, ask Gableman himself:
The evidentiary error as found by both the Court of Appeals and the Supreme Court of Wisconsin is the "loophole" to which the Advertisement referred.

[The Supreme Court] found that the error had occurred in the trial court in the Mitchell case ...
Responsive Statement of Facts at 7, Wisconsin Judicial Commission v. Michael J. Gableman, No. 2008AP002458-J (Wis., April 1, 2009) (highly instructive scare quotes in original).

Not a loophole, and not found by Butler. Says Gableman. His words.

And Butler was not Mitchell's trial lawyer. Upon conviction, Mitchell's counsel at trial would have filed a notice of appeal, following which Butler would have been alerted to the evidentiary errors committed during that trial. Every lawyer in the State knows the routine. It's simply inconceivable that a sitting judge, Michael Gableman, didn't.
That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false. — law professor Rick Esenberg
These bland apologetics are just laughable. Gableman is hardly that dumb. Moreover, one of the three-judge panel's unanimous findings was that Gableman's ethics violations were committed knowingly.


Rick Esenberg said...

You're taking my comment out of context. I was discussing the constitutionality of sanctioning political speech, not speculating on Justice Gableman's intent - about which I have no knowledge. If the test for knowing falsity is subjective (i.e., an "empty head but pure heart" standard), then indecision might suggest - although it would not necessarily prove - the absence of the requisite malice.

More to the point, our constitutional standard might well require that the speaker knows the statement to be literally false and not simply that he knows it might be misleading and taken by the audience to imply something that is not true. A less forgiving standard might permit overly intrusive scrutiny of political speech.

Although I personally like Justice Gableman and believe that his work on the Court to date has been quite good, I have never defended his ad. It was a very bad decision to run it. Why the decision was made, I don't know. Elections are a bit like fist fights. They get out of hand when people get popped in the face.

illusory tenant said...

I'm taking it in the context of the record.

"[Elections] get out of hand when people get popped in the face."

Except it wasn't Butler who popped Gableman in the face which, again, is Gableman's own admission from the record.

Anonymous said...

"Why the decision was made, I don't know."

Please don't insult the crowd! It was dirty politics at its finest. Legal? Fine. Immoral? Yes. And that is EXACTLY the problem in our society today. Citizens are told that judges hold himself/herself to a HIGHER standard. We are told that we should follow the letter (the legal part) and spirit (the moral part) of the law. Gableman was completely aware of his intent. It's an election, the goal is to win no matter what the cost! And for you Rick to say you are clueless as to what were his motivations is patently dishonest.