Wisconsin’s highest court traces it history to the days when President Andrew Jackson and his successors appointed jurists to serve on a Territorial Supreme Court. After statehood came, the Supreme Court we know began to take shape. Over the ensuing century and a half, the bench has been occupied by justices of all kinds: experienced jurists and former legislators, legal scholars and strict constructionists, stalwarts and populists, upright arbiters and rogue adventurers.
But no justice in the long history of the Supreme Court has so damaged the institution in the eyes of the state and the nation as Justice Michael Gableman. An ethically compromised and politically motivated jurist, Gableman has used his position to deliver for the wealthy and powerful interests that secured his election with a 2008 campaign so crudely racist that it raised concerns across the country.
A front-page New York Times article pointed to Gableman as an example of the problems with electing justices — describing the Wisconsinite as “a small-town trial judge with thin credentials (who) ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist.” Former Wisconsin Supreme Court Justice Louis Butler, the distinguished jurist who was defeated by Gableman, was quoted as saying that voters “should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed.”
There have been instances over the years where justices who were elected following ugly campaigns have gone on serve honorably on the nonpartisan bench — respecting their duties to uphold the Constitution and to serve the people of Wisconsin. But Gableman never recognized his responsibilities. In particular, he drew scorn for refusing to recuse himself from cases involving his political benefactors and law firms that had provided him with free legal counsel.
The scandals associated with Gableman tore at the high court’s integrity. Gableman shamed himself and the court so thoroughly that it came as no surprise when the justice decided against seeking a second term. He could not have withstood the scrutiny of a new election campaign.
The question now is whether the court’s honor can begin to be restored.
That won’t happen if Michael Screnock gets anywhere near the high court bench.
A crony of Gov. Scott Walker, Screnock has a relatively slim resume as a lawyer involved in defending Walker’s legislative initiatives — and in gerrymandering state legislative seats to favor Republicans. In 2015 Walker appointed Screnock to a country judgeship, and Walker’s consultants are literally organizing Screnock’s run for the Supreme Court, just as Walker’s cheerleading section in the Republican Party of Wisconsin is talking up Screnock’s candidacy.
“Before his recent appointment to the bench by Governor Walker, Michael Screnock was on the payroll of the legal team defending Governor Walker’s divisive policies in court and working to rig state Senate and Assembly district lines to give Republicans an unfair advantage,” notes One Wisconsin Now research director Joanna Beilman-Dulin. “Now, it’s Walker’s team working to elect Screnock.”
The facts are indisputable: Screnock is one of the most conflicted candidates to seek a position on the high court in recent decades. If he were ethical, Screnock would have to recuse himself from cases involving legislation signed by Walker, gerrymandering cases and much of the other business of the court. But he has given voters no reason to believe that he would be more ethical than Gableman, and we fear he could be worse.
Few jurists arrive on the bench without at least some partisan and ideological history. But the problem with Screnock is not his history. It is his current circumstance.
He is so closely tied to the sitting governor and the current leadership of the Legislature — as a lawyer who in recent years had represented their interests, as a political appointee who owes his short judicial tenure to the incumbent governor, as a beneficiary of campaign assistance from the governor’s team — that it is impossible to imagine Screnock as anything more than the governor’s man on a high court that has been badly damaged in recent years by excesses of cronyism.
Luckily, there are two credible alternatives to Screnock on the Feb. 20 nonpartisan primary ballot for the Supreme Court. Milwaukee County Circuit Judge Rebecca Dallet is a former assistant district attorney and an adjunct professor of law at Marquette University Law School. She has run a spirited campaign that emphasizes her experience and has won the support of dozens of her fellow judges.
Middleton lawyer Tim Burns, a highly regarded attorney who has chaired the American Bar Association's Committee on Fair and Impartial Courts and served on the national board of the American Constitution Society, has run a refreshingly open and honest campaign in which he argues that justices have a duty to serve all Wisconsites — not just corporate and political special interests. Appellate Court Judge Joanne Kloppenburg said: "Tim is an outstanding attorney whose expertise in complex areas of the law has earned him widespread recognition as one of the best lawyers in the nation. Tim's intellect, his deep understanding of legal issues, and his love of the law make him exceptionally well suited to service on the Wisconsin Supreme Court.”
Unlike Michael Screnock, Tim Burns and Rebecca Dallet have earned consideration as serious and honorable contenders to serve on the Wisconsin Supreme Court.
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