The court split 3-3 in June 2010 and the [Wisconsin Judicial Commission's] case ended there, with no agreement on whether Gableman lied or violated the ethics code.That's not quite accurate, it bears repeating, because a three-judge panel convened in September, 2009 on Gableman's motion, meaning, in the vernacular, at Gableman's request. While the panel recommended dismissal of the Wisconsin Judicial Commission's complaint against Mike Gableman, it was upon that question that the Supreme Court split.
For the Supreme Court's purposes, the panel is owed zero deference.
Thus the ethics complaint remains pending against Mike Gableman and it's noteworthy that the Commission never withdrew the complaint — which was the recommendation of Gableman's three Republican allies on the Supreme Court — but only suspended its prosecution. Despite the panel's recommendation, all three judges found that Mike Gableman violated one or another of two separate judicial ethics provisions.
The statutory framework governing the prosecution of judicial ethics violations in Wisconsin is incoherent, as dramatized by the Gableman imbroglio, and as far as I'm aware, the legislature hasn't done a darn thing about it, even though four of the last six Republicans elected to the Supreme Court have found themselves parties to some ethical transgression or other. The latest, David Prosser, is under investigation.
And Mike Gableman should be too, once again, for his questionable testimony to Dane County Sheriff's Office investigators last summer.
Ironically, these justices are responsible for determining whether Wisconsin's lawyers are adhering to their own code of professional ethics. Fortunately the lion's share of those cases have to do with the handling of clients' money, from which objective standards obtain.
But given the unpredictable and unprecedented nature of Wisconsin politics, surely it won't be too long until Gableman has to decide a case where an individual running for judicial office slandered her opponent.
As for Gableman disqualifying himself from the present dispute: dream on. Gableman refused to remove himself from a set of criminal appeals in spite of his clearly articulated disdain for criminal defendants and the criminal defense bar generally. Any attempts to get Gableman to stand aside in this case have about as much chance as those trying to get Clarence Thomas out of the federal health care dispute: slim and none.