Oct. 7, 2009 – If you think it’s tough to be a candidate running for judicial office, try mediating the campaign.

At a conference held on Sept. 17 to consider the future of judicial campaigns, Tom Basting discussed his experience as the State Bar of Wisconsin president who founded the Judicial Campaign Integrity Committee in anticipation of the 2008 supreme court election, which ultimately was a matchup between Justice Louis Butler and Justice Michael Gableman.

Despite the intention to do little more than educate the public about the accuracy of campaign ads and ask the candidates to pledge adherence to the Wisconsin Code of Judicial Conduct, Basting said the committee became a punching bag for groups mobilized for the campaign.

“We expected skepticism and even some resistance, which is why I felt it was important to appoint substantive people who would bring experience and judgment to the task,” Basting said. “But we didn’t expect the committee would become a central part of the controversy itself, and it made it more difficult for us to operate.”

Judicial campaign conduct committees

Across the nation and in Wisconsin, judicial campaigns have taken on more of the trappings of other political races with attack ads and record spending. Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002), candidates are also free to give their views on disputed legal or political issues like politicians in a legislative race.

But courts are not legislatures, and those gathered for the conference, entitled Judicial Elections: Navigating the Collision Course, worry that this trend threatens the fairness and integrity of the judiciary. The Portage County Bar Association, Justiceworks, and the University of Wisconsin - Stevens Point Continuing Education organized the conference in Stevens Point.

“The compelling question before all of us who treasure a judiciary that is not only fair and impartial, but one that commands the respect of most citizens is, ‘What the hell are we going to do about it?’” Basting said in his remarks to the conference attendees.

“One answer, of course, is to do nothing. We can accept those developments as an unavoidable feature of a political culture characterized by a 30-second attention span and deep-pocket spending,” Basting continued. “Or we can work to overcome negative voter perceptions of the electoral process by reassuring the public that judges are above temptation and beyond reproach.”

Citing the example of other states that have established judicial campaign conduct committees, Basting said he wanted to promote an informative and constructive campaign for the April 2008 supreme court election.

An informal committee

Basting explained that his committee’s “fundamental goal was to promote campaign activities during the 2008 election that preserved the dignity of the judiciary and equipped Wisconsin voters to make informed choices.”

“This was a group of eight private citizens, both attorneys and non-attorneys, banded together to do what we could to remind everyone that Wisconsin already has rules adopted by the supreme court and modified by other courts that define what candidates for judicial office can and cannot do,” Basting said.

Unlike some states that have opted to create formal committees with professional or judicial disciplinary powers, Basting said his group was formed on the basis of his First Amendment rights.

David Rottman of the National Center for State Courts remarked that White exposes official committees to lawsuits if they attempt to enforce a state’s judicial canons. Consequently, unofficial groups, such as the one Basting organized, are favored, he said. But, Rottman said, an unofficial committee’s “credibility must be beyond reproach if the committee is to compete in the marketplace of individuals and groups seeking to influence public opinion.”

Basting said he was aware of that when he recruited members for his group.

“When I chartered the committee, I was especially mindful of [the need for an] experienced, credible and diverse membership,” Basting said. “So I chose a former Democratic governor; a former appellate court judge with past Republican Party affiliations; a well-known former aide to a Republican governor, Bill Kraus; two political science professors; a former Democratic legislator who also served as a cabinet secretary for Tommy Thompson; and a former president of Wisconsin League of Women Voters.”

Target of attacks

Despite his efforts to “convene a committee of distinguished citizens who could both command the respect of the electorate and comment authoritatively on campaign-related issues,” Basting said the group was accused of bias.

The trouble began when the committee asked the three candidates then running for the supreme court to complete and return a document pledging to adhere to the code of judicial conduct and also to reject improper, misleading third-party ads, Basting said.

Two of the candidates signed the agreement, but not Gableman, Basting said.

“What happened next you probably could have predicted,” Basting said. “Groups associated with one of the candidates immediately attacked the committee. They attacked the committee for being unfair. They attacked the committee for a number of other reasons.

“In fact, early in January, a group called the Wisconsin Club for Growth – whoever they are, we don’t know – posted a scathing attack on their web site against the committee which was entitled, ‘Trial Lawyers Create Star Chamber – Attempt to Shield Judges From Their Record,’” Basting said.

“I was somewhat amused by the notion that my powers as State Bar president extended to the creation of a star chamber,” Basting recalled. “But I recognized that this and subsequent attacks on the committee really created a distraction and threatened our credibility. Of course, that made it far more difficult to focus attention, particularly media attention, on the central issue of judicial integrity.

“One of the specific complaints against the committee was that nearly all of its members had ties to Gov. Doyle and the Democratic Party,” Basting said. “That was not necessarily true, but that was one of the accusations. Some of the asserted ties were a bit of a stretch. Also, they attacked the spouses of several of the committee members, including my wife, and she became a part of the attack because prior to the election, she had donated $50 to Justice Butler.

“We understood, of course, the imperative that Caesar’s wife be pure, and now we know that it extends to State Bar presidents,” Basting said.

Basting defended his committee’s even-handedness, noting, “The first item the committee criticized was a 30-second anti-Gableman ad. And, as the campaign progressed, we criticized as many anti-Gableman ads as we did anti-Butler ads.”

“I was pleased with the press coverage we eventually got once the attacks on the committee ceased, especially, most notably, by the Associated Press,” Basting said. “But the criticism surrounding the committee generated by our critics certainly handicapped our efforts to a certain extent to educate the public about the value and the vulnerability of fair and impartial courts.”

Lessons learned

Reflecting on the experience, Basting listed several lessons he drew.

“One of the lessons we learned is that you have to work with the media, like it or not,” Basting said. “That’s all print, electronic and web-based to get your message out. We were able to do that, and we seized on every opportunity we could to use the excesses of many of the ads to work through the media to educate the public about the judiciary.

“The other lesson we learned is that if you wait until a heated court campaign is underway to educate the public about the role of the judiciary, you’re way too late. You have to do it well in advance of that.”

Work still to do

Basting noted that the relatively quiet 2009 supreme court race left his committee with little to do. But that race may have been the exception, given the national trends.

Judicial campaign experts have also suggested that conduct committees might look to expand their focus beyond just commenting on advertisements. Barbara Reed, formerly of The Constitution Project, and Georgetown University law professor Roy Schotland noted in a law review article that committees could “preempt or discourage campaign finance practices that, though legal, are damaging deviations from the community’s norms.”

Related: Abrahamson argues merits of judicial elections outweigh those of appointment system