Louis Butler is a well-known Wisconsin judge who served from 2004 to 2008 as one of seven justices—and the first African American—on that state's supreme court. His appointment to that post by Governor Jim Doyle followed several decades of experience in a variety of courtroom roles, including public defender, municipal court judge, and circuit court judge. He came to national prominence in the spring of 2008, when state law required him to run for election in order to retain his seat on the supreme court bench. After a bitter campaign that drew national media coverage and provoked intense debate about campaign ethics and negative advertising, Butler lost by a narrow margin to challenger Michael Gableman.
Born Louis Bennett Butler Jr. on February 15, 1952, in Chicago, Illinois, he grew up on that city's predominately African-American South Side. After graduating from South Shore High School in 1969, Butler attended Lawrence University in Appleton, Wisconsin, receiving a bachelor's degree from that institution in 1973. He then entered law school at the University of Wisconsin-Madison, which granted him a law degree in 1977. After passing the bar exam required of all attorneys, he took a job in the Wisconsin State Public Defenders Office. As an assistant public defender, a post he held from 1979 to 1992, he represented criminal-case defendants who were unable or unwilling to hire a private lawyer. After several years of handling cases until the end of the defendant's first trial, he moved on to the appellate division, where he worked with defendants who wanted to appeal their initial convictions. It was in this latter role, in 1988, that he argued a case (McCoy v. Court of Appeals of Wisconsin, District 1) before the U.S. Supreme Court. While he lost the decision, he gained the distinction of being the first public defender from Wisconsin ever to appear before the nation's highest court.
Butler's growing reputation as a skilled and energetic attorney brought him to the attention of Milwaukee's city council, which appointed him to a judgeship in the local municipal court in 1992. There he heard a variety of relatively minor, nonjury cases, including traffic tickets and ordinance violations. Ten years later, in 2002, he won election to the Milwaukee County Circuit Court, where he presided over more serious civil and criminal cases, almost all of which required juries. He remained at the circuit court for two years before being appointed by Governor Jim Doyle to the seven-member Wisconsin Supreme Court in 2004.
Butler's performance in these roles is difficult to assess, because most of the publicly available information is colored by the political rhetoric, both positive and negative, that surrounded a notoriously bitter election campaign in the spring of 2008. According to the official Wisconsin Court System Web site, "Vacancies [on the supreme court] are filled by gubernatorial appointment and the appointee is required to stand for election to a full 10-year term the following spring." It was this unusual feature of state law that necessitated the campaign, though it was delayed until 2008 because of a provision limiting justices to running one at a time.
Challenging Butler for his seat was Michael J. Gableman, a circuit court judge from rural Burnett County. Although judicial elections in Wisconsin are supposed to be nonpartisan, there were strong political overtones to the campaign from the beginning. Democrats generally favored Butler, who was appointed by a Democrat (Doyle); Republicans, meanwhile, tended to favor Gableman, who initially reached the circuit court through an appointment by Doyle's predecessor, Republican Scott McCallum. In a mixed appointment-and-election system such as Wisconsin's, keeping judicial elections free of party politics has never been easy. The 2008 campaign proved particularly difficult in this regard, however, and there were increasing calls—from newspapers, academics, and ordinary voters—to overhaul the system.
Particularly troubling to many observers was the aggressive tone of the advertising on both sides. Total campaign expenditures reached $5 million, an extraordinary amount in light of Wisconsin's relatively small size and the traditionally low profile of most judicial elections. Much of the advertising was funded by special-interest groups unhappy with Butler's decisions in several high-profile cases. Manufacturers, in particular, were unhappy with a decision Butler wrote in Thomas v. Mallet (2005), a product-liability case involving lead paint. John Fund of the Wall Street Journal called Butler's decision in that case "infamous," arguing that it created a "guilty-until-proven-innocent approach to product liability."
While there were special-interest groups aligned on both sides of the campaign, those working on Gableman's behalf were more visible, in part, perhaps, because Butler publicly disavowed the negative advertising such groups often use. Because negative ads—those that focus not on the favored candidate's accomplishments, but on an opponent's alleged failures or weaknesses—are ordinarily most effective against incumbents, it is perhaps only to be expected that Butler would object to them. There is no question, however, that many voters were made uncomfortable by the tone of Gableman's attacks, particularly a television ad that seemed to emphasize Butler's race. The ad featured an image of Butler alongside one of Reuben Lee Mitchell, an African-American man convicted of raping an eleven-year-old child. As these images appeared on the screen, an announcer remarked, "Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?" Butler quickly rebutted the ad's implication that he had compromised public safety by engineering Mitchell's early release from prison, noting that, while he had represented the defendant before several appeals courts, Mitchell had a legal right to such representation under the U.S. Constitution. Furthermore, Butler and others pointed out, the appeals were unsuccessful; even if they had been granted, however, Mitchell would have won only the right to a new trial, not automatic release. As it was, he served his full term before going on to commit another crime.
The issues raised by Gableman's ad drew national media attention, which in turn heightened an already tense atmosphere. Particularly unsettling to many was the ad's suggestion that, in the words of Adam Liptak in the New York Times, "the only black justice on the state Supreme Court had helped free a black rapist." Butler himself called such tactics "race-baiting," telling Liptak that voters "should not be making decisions based on ads filled with lies, deception, falsehood, and race-baiting."
At a Glance …
Born Louis Bennett Butler Jr. on February 15, 1952, in Chicago, IL; son of Gwendolyn Johnson; married Irene; children: two daughters. Education: Lawrence University, BA, 1973; University of Wisconsin-Madison, JD, 1977.
Career: Wisconsin State Public Defenders Office, assistant public defender, 1979-92; Milwaukee Municipal Court, judge, 1992-2002; Milwaukee County Circuit Court, judge, 2002-04; Wisconsin Supreme Court, judge, 2004-08.
Memberships: Wisconsin State Bar Association; Milwaukee Bar Association; National Judicial College, permanent faculty member; Southwestern Law School Moot Court Competition, judge; American Inns of Court, James E. Doyle chapter; NAACP; Community Brainstorming Conference, Milwaukee, WI; Wisconsin Association of African-American Lawyers.
Awards: Trail Blazer Award, Alpha Kappa Alpha Sorority, 2002 and 2004; mayoral proclamation of August 25 as Justice Louis Butler Day, City of Milwaukee, 2004; Foot Soldiers Award, NAACP, 2005; honorary doctorate, Lawrence University, 2007.
Addresses: Office—c/o Friends of Justice Louis Butler, PO Box 511147, Milwaukee, WI 53203-0191. Web—http://www.louisbutler.com.
On April 1, 2008, by a margin of 51 to 49 percent, Wisconsin voters chose Gableman over Butler. Butler's term as justice for the Wisconsin Supreme Court expired on July 31, 2008. As of that time, he had made public few details regarding his plans for the future.
New York Times, May 25, 2008.
Wisconsin Law Journal, August 11, 2008.
"Bio: Justice Louis Butler," http://www.louisbutler.com/more/index.cfm?Fuseaction=more_33371 (accessed July 17, 2008).
"Court System Overview," Wisconsin Court System, http://wicourts.gov/about/organization/overview.htm (accessed July 19, 2008).
Fund, John, "Wisconsin's Judicial Revolution," Wall Street Journal Online, April 5, 2008, http://online.wsj.com/public/article_print/SB120735975782591721.html (accessed July 17, 2008).
"Interactive Chats: Louis Butler," Milwaukee Journal Sentinel Online, March 21, 2008, http://www.jsonline.com/story/index.aspx?id=730750 (accessed July 17, 2008).
"Justice Louis B. Butler Jr.," http://www.wicourts.gov/about/judges/supreme/butler.htm (accessed July 17, 2008).
—R. Anthony Kugler
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