Bench Memos

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Paging Justice O’Connor: Judicial Independence Under Attack in Wisconsin


I have bad news for those of you who thought Wisconsin’s liberal establishment would settle down after Justice David Prosser was reelected in April. Alas, they have regrouped and their new target is Justice Michael Gableman, the conservative justice who defeated Louis Butler in 2008. 

According to the Wisconsin State Journal, the liberal group “9to5 Milwaukee” has filed an ethics complaint alleging that Justice Gableman violated state law by receiving “free” legal services from one of Wisconsin’s largest law firms, Michael Best and Friedrich LLP. They would like the justice to be investigated by the state’s Government Accountability Board. A Democratic state lawmaker has also circulated a resolution calling for his ouster by a two-thirds vote of the state legislature.

Apparently, there have been at least two other such filings. Last month, several Democratic groups made the same claim and sought Justice Gableman’s recusal in cases in which the court has been asked to determine whether any upcoming recall elections will be conducted using old legislative maps or new ones, which apparently favor Republicans. Then there’s Dane County district attorney Ismael Ozanne, who seized on the controversy to point out that the same law firm helped defend Governor Walker’s collective-bargaining reforms. He has asked the Wisconsin Supreme Court to reopen the case in which it upheld those reforms.

Don’t be fooled by all of the good-government rhetoric and feigned concern about judicial ethics. This is part of a coordinated campaign to discredit and intimidate conservative justices. Liberals in the state, still angry that Justice Gableman defeated their beloved Louis Butler, and that Justice Prosser was reelected despite massive union expenditures, are attempting to spin Justice Gableman’s relationship with his law firm into something it is not.

To begin with, Justice Gableman did not receive “free” legal services. As Justice Gableman’s attorney, Viet Dinh, pointed out in a letter to the Milwaukee Journal Sentinel, private litigants enter into contingency-fee agreements all the time, and “Wisconsin Supreme Court Rules provide that ‘[a] fee may be contingent on the outcome of the matter for which the service is rendered.’” He goes on to explain that “A contingency fee arrangement is not a ‘gift’ proscribed by Wisconsin law. … No one who hires a lawyer on a contingency fee basis feels like they are receiving something for free from that attorney.”

Further, in response to allegations that Justice Gableman was improperly biased by his relationship with the firm, Prof. Rick Esenberg has pointed out that “each member of the court’s ‘conservative’ majority, including but certainly not limited to Gableman, essentially voted against the firm’s clients as often as they voted for them. . . . The relationship did not result in ‘favorable’ treatment of Michael Best’s clients . . . . If Michael Best thought it was ‘buying a justice’ (and it didn’t), the firm got a raw deal.”

To summarize: Wisconsin law considers contingency fees a perfectly legitimate way to arrange payment for legal services, and Justice Gableman’s votes demonstrate that he has ruled against the law firm’s other clients about as often as he has favored them. So why the continued assault on Justice Gableman’s integrity? For the same reason we are witnessing continued assaults on Justice Thomas and his conservative colleagues.

The far Left is accustomed to using the judicial branch as a rubber stamp. But conservatives are electing or appointing more and more judges committed to deciding cases on the basis of law rather than political agendas and personal preferences. In five of the six contested supreme-court elections since 2000, Wisconsin voters have chosen the conservative jurist over the liberal alternative. Unable to persuade voters in even the most liberal of states, the far Left has embraced the strategy of mau-mauing judges into submission. They will construct vague ethical scandals, make official charges of misconduct, rally friends in special interest groups and friendly media, and hope something sticks. 


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