Gableman case is still pending — It's not "over"

But the Oshkosh (WI) Northwestern wants it to be over, which desire is by appearances driven of frustration more than anything else. Because it's clearly not sympathetic to Gableman's predicament:

Anyone paying attention knows what Gableman did and why he did it. He has brought shame and dishonor on himself and that will be his judicial legacy. It is unlikely that Gableman will achieve any distinction on the high court that will surpass his despicable, yet legal, election tactic.

That's awfully cold.* But we don't yet know whether the tactic was legal. We have a divided "recommendation" from a judicial conduct panel and an evenly split pair of opinions from the Supreme Court.

As for Gableman, who, in concert with his attorneys and reliable apologists has made an ill-grounded representation to the public that his ethics case is no longer pending, he has in hand neither the grant of summary judgment nor the dismissal that he demanded.

For confirmation of that fact, seek no further than the opinion of his defenders Justices Prosser, Roggensack, and Ziegler, which urges the plaintiff Wisconsin Judicial Commission to join with Gableman in his demand for summary judgment. That's one way that a disposition might be reached, but it isn't the only way. The Commission has other options, including moving the case into federal court.

There remains undeniably an important federal question (whether Gableman's arguably defamatory "statement" is entitled to protection by the First Amendment) at issue here which the several election law cases those three justices cite for support do not directly address.**

The nine-member Commission, which consists of five nonlawyers and four lawyers (including two judges) will have some soul searching to do before July 30, the date the Supreme Court has set for remittitur, which in this case means it's awaiting the Commission's next move.

That doesn't sound to me like the posture of a case that is "over."

* Whereas Gableman's "tactic" froze the mercury.

** Those decisions do, on the other hand, reiterate that defamation, where successfully proven, is not entitled to those protections. That is effectively the position of the other three Supreme Court justices.

A notable feature of the court's two competing opinions is that the one disfavoring Gableman's First Amendment defense engages in a convincingly substantive deconstruction of the other opinion's legal authorities, but the same cannot be said for the converse, imho.