Judicial Disqualifications

The very first thing that must be said about President Barack Obama’s nomination of former Wisconsin Supreme Court Justice Louis Butler to a federal judgeship is that Butler is highly qualified.

The second is how embarrassing it should be for Republicans to selectively choose to block the confirmations of three nominees of color, including Butler, along with one white nominee.

It actually passes for racial progress in America that Butler was the only African-American nominee opposed by Republicans. The other two non-white nominees they trashed were Asian American.

Senate Republicans refused to allow a vote on 19 other federal judicial nominees, most of them white, unless Democrats sacrificed the nominations of Butler, San Francisco-area nominees Goodwin Liu and Edward Chen and Providence, R.I., attorney John McConnell Jr.

Who knew Republicans would even object to Irish judges on the bench?

To the Republican leadership today, qualifications have nothing to do with filling federal judgeships. In fact, being well-qualified can be a disadvantage.

Apparently, the biggest Republican objection to Liu, associate dean of the University of California-Berkeley Law School, for the U.S. Court of Appeals was that he was so highly qualified that he might one day become the first Asian American on the U.S. Supreme Court.

Republicans should be embarrassed for rejecting Butler on a couple of levels.

Butler’s qualifications cannot honestly be questioned. His 16 years on the bench were on progressively higher courts, moving from municipal judge to circuit court judge to making history as the first African-American justice on the Wisconsin Supreme Court.

Butler also taught at the National Judicial College in Reno, Nev., as well as at both Marquette University Law School and the University of Wisconsin Law School.

The shameful dearth of African-American judges in a race-biased legal system where black defendants are enormously overrepresented should provide extra incentive to promote highly qualified African Americans.

Even if Republicans have no qualms about opposing distinguished African-American judges, they shouldn’t want to call attention to the sleazy tactics they used to replace Butler on Wisconsin’s high court.

In 2008, Michael Gableman, a self-proclaimed conservative with scant legal qualifications, broadcast a racially charged campaign ad falsely claiming that Butler—as a public defender decades earlier—freed a black child molester who then went on to assault another child.

It wasn’t true. The Wisconsin Judicial Commission charged Gableman with lying to gain public office. Gableman’s conservative judicial colleagues forced a deadlock to prevent him from being punished or removed from the bench.

Now Wisconsin is stuck with a lying, unprincipled justice serving a 10-year term on its state Supreme Court. And Republicans continue to dishonor Butler nationally.

Reason to Be Proud

As painful as it must be to have his nomination left twisting in the wind, Butler has reason to be proud of the company he’s in.

The reasons right-wing Republicans want to keep Butler and the other nominees off the bench are precisely those judicial qualities once valued on our high courts. You know, basing decisions on the law and the Constitution—little things like that.

To avoid opposing Butlersimplybecause he’s black, Republicans cite a majority opinion he wrote on the Wisconsin Supreme Court allowing parents of children brain-damaged by lead poisoning to sue paint manufacturers.

First of all, note it was a majority opinion. It wasn’t some wildly extreme opinion with Butler out on the fringe where the buses don’t run. A majority on the court agreed.

Second, Republicans often misrepresent the opinion to suggest Butler found the paint manufacturers responsible in the product liability case. He did not. He simply gave victims their day in court.

Butler’s decision in the case was one that most reasonable citizens should support.

It gave victims of lead paint poisoning an opportunity to present evidence in court that paint companies selling poisonous, lead-based paint were responsible for the damage their products caused.

Before the decision, paint companies didn’t have to worry about being sued in Wisconsin for brain damage to small children.

There was no way for victims to prove which company sold the specific bucket of poison that damaged a particular child. Talk about legal loopholes letting perpetrators of horrific crimes get off.

Butler helped close that loophole, allowing lawsuits to go forward against all six companies that sold poisonous paint in Wisconsin. Most people would consider that a fair decision.

Like all ethical judges—remember those?—Butler and his colleagues reached no decision on responsibility before the evidence was presented and legal arguments were made.

The sad “rest of the story” is that so far paint companies and their expensive teams of lawyers in Wisconsin and around the country have continued to defeat victims and avoid any legal responsibility.

Republicans opposing Butler only want judges who are predisposed to rule in favor of corporations and against citizens, the law and evidence be damned.