I have several observations about Prof. Esenberg's comments. Firstly, the term "judge shopping" has come to have a pejorative meaning, which, I believe, is why it was chosen for the article. However, filing a motion to recuse a judge who appears to be unfair is not judge shopping. It is, if nothing else, a means of ensuring the appearance of fairness in the proceedings. It no more "sprawls" the litigation process than does conducting voir dire on a jury panel to ensure fairness. So-called "judge shopping" refers to filing a demand for judicial substitution. The litigant need not give a reason for judicial substitution.
Secondly, the objection to Judge Gableman sitting on criminal cases is not that he engaged in campaign speech suggesting that he is "tough on crime", it is that some of his campaign speech was alleged to be an outright prevarication. The ad in question suggested that, by discharging his constitutional and ethical mandate to zealously advocate for his client, Louis Butler was somehow unfit for the Supreme Court — all because the client later committed another crime (after the man had served his sentence). It would have been a blatant violation of the Supreme Court Rules of Professional Conduct had Mr. Butler done anything less.
It does none of us good, professor, for those who should know better to use derisive terms to describe what is nothing more than an effort to make sure that all litigants are treated fairly.
The argument of the court's conservatives, that certain judicial recusals deny the will of the electorate, cuts both ways. When the justices recuse themselves not on the motion of a party but of their own volition, the same effect upon the electorate obtains.
If the assumption therefore is that the electorate's expectations are enforceable only insofar as the electorate's preferred judge complies with ethical and constitutional requirements, then that argument evaporates altogether, as this is just such a situation.
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