Jan

Jumping to Conclusions

The recusal motions filed against Wisconsin Supreme Court Justice Michael Gableman, and the public discussion surrounding them, consistently make two significant stretches in the argument. A recent Wisconsin Law Journal commentary by TJ Perlick-Molinari, a Milwaukee attorney and State Bar governor, commits both.

The first big assumption is that every word said by an attorney automatically and verbatim represents the exact personal thoughts of the client. The Rules of Professional Conduct state that an attorney’s representation of a client does not constitute an endorsement of the client’s “views or activities” (SCR 20:1.2(b)). In a similar way, an attorney’s unscripted response to a reporter’s question should not be treated as though it came from the mouth of the attorney’s client as an exact representation of his personal thoughts on the matter. Justice Gableman has an extensive record of published opinions and statements made as a trial judge, statewide candidate, and justice that presents a far better reflection of his thinking than an unscripted answer to a reporter from his attorney.

Atty. Perlick-Molinari baldly asserts that the Justice has “an obvious and disgusting disdain for an entire group of litigants,” and assumes a negative answer to the question whether the Justice can be “fair” with such an attitude. Atty. Perlick-Molinari’s factual basis for this claim is a single word in quote marks five paragraphs earlier, taken from an unscripted response made by the Justice’s attorney to a question from a reporter. Although Atty. Perlick-Molinari says he is “not trying to take a political potshot [or] make a personal attack on the Justice,” he is making a very personal, judgmental, and aggressive claim based on very flimsy justification in the record.

The second pervasive assumption is that conservatives’ criticism targets the criminal defense bar for exploiting so-called loopholes. Admittedly, the television ad at issue in the WJC complaint focuses on then-Attorney Butler’s representation of a criminal defendant. However, the ad played into a much larger campaign theme focused on Justice Butler’s criminal justice decisions on the bench. The problem, in my book, lies with judges who create loopholes by twisting text, precedent, legislative history, social science, etc. Justice Butler, in decisions like Knapp, Dubose, Trujillo, McGrew, Shomberg, Johnson, and In re Jerrell CJ, reached beyond the relevant law (or dissented saying he would have) and created more expansive rights for criminal defendants. These decisions are a legitimate source of concern and complaint, and they are the primary target of criticism from conservatives.

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