February 18, 2009

Gableman makes law review

In the latest volume of the Marquette Law Review, some illuminating observations* by former Wisconsin Supreme Court Justice and current Seventh Circuit Judge Diane S. Sykes:
[Last year's Wisconsin Supreme Court election] was predominated—some might say overwhelmed—by millions of dollars in saturation advertising on television, much of which was crass, misleading, and at times utterly inconsistent with the judicial role. Most of these ads were sponsored by third-party interest groups operating independently for or against the candidates, although one particularly base and deceptive attack ad was sponsored by the campaign of the victorious challenger. . . . Justice Louis Butler, who was defeated by Burnett County Circuit Judge Michael Gableman, did not himself engage in this sort of advertising, to his credit and the credit of the judicial office he [has since] relinquish[ed].
"Sponsored," it seems to me, is a trifle coy. That "particularly base and deceptive attack ad" was paid for, endorsed, authorized, etc. by Gableman and not simply the more general "the campaign of."

Respondeat superior, I believe is the applicable doctrine.

And while Judge Sykes doesn't say so directly, she belies a very strong inference that Gableman succeeded in discrediting not only himself but also the very office he now occupies. That's for sure.

It's also noteworthy that Judge Sykes describes the ad as "deceptive," which is in accord with the more serious element — knowingly, as opposed to recklessly — of the provision of the WI Code of Judicial Conduct Gableman currently stands accused of violating:
A candidate for judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.
And apparently Judge Sykes views the ad in its totality as a "statement," rather than a collection of individual, disconnected statements, as a Gableman consigliere has attempted to argue.

Intriguing — and intriguingly familiar — concepts all.

* 92 Marq. L. Rev. 341 (.pdf [searchable]; 13 pgs.)


Brett said...

As Judge Sykes suggests, Gableman's a disgrace. I hope the judicial commission paints his sins similarly, and takes appropriate penal action. But I'm not holding my breath.

Anonymous said...

in the circuit court race, if you look at gabler's literature, you'll see that he shares more with gableman than the first five letters of his last name.