This is the kind of liberal idiot Obama loves to nominate.

Wisconsin’s Judicial Revolution
By JOHN FUND

On Tuesday, for the first time in over four decades, Wisconsin voters turned out an incumbent justice of their state supreme court. The election showed that, given a clear choice, voters usually prefer a judicial conservative to one with an activist bent.

The Wisconsin Supreme Court certainly bent the rule of law over the past four years, as a 4-3 liberal majority became the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices. Thus the defeat of Justice Louis Butler at the hands of Burnett County Judge Michael Gableman has national implications. A recent study in the University of California-Davis Law Review found that Wisconsin is the eighth most-cited state supreme court by other judicial bodies. Its rulings play a larger role in shaping court decisions elsewhere than those of courts in states such as New York, Florida or Texas. In addition, 38 states elect all or part of their appellate-level judges by popular vote. Judge Butler’s defeat sends a signal that a judge who dramatically oversteps traditional boundaries can be brought to account.

When John Roberts was confirmed as Chief Justice of the U.S. Supreme Court in 2005, he noted “judges are like umpires. Umpires don’t make the rules, they apply them.” Most Americans agree, but the liberal majority on Wisconsin’s Supreme Court made so many suspect calls it seemed intent on rewriting the rules.

These calls began in 2004, immediately after Justice Diane Sykes stepped down to join a federal appeals court. Democratic Gov. Jim Doyle replaced her with Mr. Butler, a former Milwaukee judge and public defender who had lost to Ms. Sykes by a 2-1 margin in a nonpartisan race in 2000. Justice Butler soon wrote the infamous decision in Thomas v. Mallet, which created a guilty-until-proven-innocent approach to product liability. Wisconsin became the only state to adopt a “collective liability” theory in lead paint cases: Whether a company actually produced the lead paint that harmed a claimant was irrelevant to its guilt or innocence.

Then came Ferdon v. Wisconsin Patients, declaring unconstitutional the state’s cap on noneconomic damages in medical malpractice cases. It argued that the caps bore “no rational relationship to a legitimate government interest.” That conclusion was bizarre, since the legislature had specifically passed the caps to make malpractice insurance “available and affordable,” and the caps worked. In 2004, the American Medical Association judged Wisconsin to be one of only six states not in a medical malpractice crisis. Marquette University law professor Rick Esenberg concluded that under the court’s reasoning in that case, “almost any law is subject to being struck down.”

The Wisconsin supreme court also expanded the U.S. Supreme Court’s interpretation of search and seizure law. Justice Butler wrote a majority opinion finding that the state constitution provided greater protection to suspected criminals, even though its wording virtually mirrored that of the U.S. Constitution. And so a bloody sweatshirt was ruled inadmissible in a murder case because the suspect told officers where it was before having his Miranda rights read to him.

Judge Sykes, now on the federal bench, felt so strongly about this decision she declared its reasoning “pure unvarnished result-orientation.” In a widely noted lecture at Marquette University, she lamented that the state supreme court had “manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court’s own precedents.”

All of this meant that Louis Butler’s bid this year for a full 10-year term was bound to be contentious. Teacher unions, trial lawyers and Indian tribes (which had benefited from the court’s controversial expansion of casino gambling) poured money into third-party ads attacking Judge Gableman. They were matched by business groups such as Wisconsin Manufacturers & Commerce, which ran ads noting that Justice Butler had earned the nickname “Loophole Louie” from fellow public defenders for winning reversals of his clients’ criminal convictions. Justice Butler made the mistake of embracing the nickname, claiming it was “affectionate.” Voters weren’t amused.

In the wake of Justice Butler’s defeat, some liberals have declared that elections for the state’s supreme court should end, and its members be appointed by the governor. Tom Basting, president of the Wisconsin Bar, claims that “judges are different from other elected officials” and “that means some of the standards voters typically use when evaluating candidates don’t apply to judges.”

The U.S. Supreme Court has rejected the distinction between judicial and legislative elections. In expanding the political free speech rights of judicial candidates, it declared in 2002 (Republican Party of Minnesota v. White) that completely separating the judiciary from the notion of “representative government” ignores the fact that state-court judges possess the power to “make” common law as well as to shape their state constitutions. Thus it is entirely appropriate for voters to have a say in whether that “immense power,” as the Supreme Court called it, will be used with restraint or abandon.

Wisconsin is in many ways a liberal state – it hasn’t voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism. This fall, voters in other states ranging from Louisiana to Michigan will face pivotal elections over what direction their own state supreme courts will go. Inevitably, a chorus will complain about the amount of money spent on those races by outside groups. No doubt the campaigns will be messy. But that’s a small price to pay to ensure that voters remain a check on the judiciary. If judges are umpires, the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.

from Michelle.