President Obama's nomination of Wisconsin's Louis Butler for the U.S. District Court of Western Wisconsin drew little attention when it was first announced earlier this year, and the Senate Judiciary Committee's 12-7 vote on straight-party lines to recommend the nomination to the full Senate came with little notice.
But Butler may not have clear sailing to the federal bench after all, thanks to a determined coalition of conservative legal experts, activists and scholars. They contend Butler should not be confirmed because he is a hyper-partisan liberal Democrat who would substitute his personal ideological preferences for the dictates of the U.S. Constitution. The conservative coalition is led by former Attorney General Edwin A. Meese, now a senior fellow of the Heritage Foundation think tank.
Among the most serious questions about Butler concern the following areas, according to documents compiled by the conservative coalition are these:
· Butler ignores settled precedent: Justice Butler repeatedly ignores precedent, such as in the 2005 case State v. Dubose regarding evidence being admitted in court, in which Butler believed–as the deciding vote–that courts could make use of new policy studies and social science publications to change public policy, instead of leaving that decision to elected lawmakers.
· Butler opposes rights of gun owners: The right to bear arms in the Wisconsin Constitution expressly notes that this right is for personal security and “any other lawful purpose.” In State v. Fischer, Justice Butler was the deciding vote in 2006 to hold that a Wisconsin statute barring carrying a concealed weapon for any purpose, at any time, including in a vehicle, does not violate this right to personal security that the voters of Wisconsin chose to expressly protect in their state constitution.
After the landmark U.S. Supreme Court Heller case upholding Second Amendment gun rights in 2008, Butler spoke at an Obama for President fundraiser and specifically mentioned “gun control” as an issue that potential Obama appointees would impact.
· Butler destroyed Wisconsin’s law to protect doctors from junk lawsuits that cause higher healthcare costs. Wisconsin has a law to limit punitive damages in medical malpractice suits to help doctors and patients in the healthcare system. In Ferdon v. Wisconsin Patients Compensation Fund (2005), Justice Butler was the deciding vote in the 4–3 decision to strike down these limits, substituting his personal policy preferences for those of the Wisconsin legislature, because such limits are not “rational.”
· Butler allowed lawsuits against businesses that were not at fault for injuries. In a case involving lead paint, it was unclear which company made the paint in question. In Thomas v. Mallet, a 2005 case, Justice Butler wrote the opinion and was the deciding vote to allow the plaintiffs to receive money from every company in the industry, declaring that they bore “collective liability” for any injuries suffered, and thus must all pay the damages. The former dean of the University of Wisconsin law school called this decision “radical.”
· Butler has rejected the U.S. Supreme Court in favor of criminals. The U.S. Supreme Court reversed the Wisconsin Supreme Court on a constitutional issue. Wisconsin precedent dictates that in future cases the Wisconsin court should interpret such language in lockstep with the U.S. Supreme Court.
When a later case was argued in 2005, State v. Knapp, presented identical constitutional language, Justice Butler was the deciding vote in the 4–3 decision to abandon the longstanding Wisconsin precedent to adhere to the U.S. Supreme Court, so that evidence essential to a murder trial would be excluded from court.
· Butler was twice rejected by the people of Wisconsin. He ran for the Wisconsin Supreme Court in 2000, but was rejected by the voters, receiving only 34% of the vote and failing to carry a single one of Wisconsin’s 72 counties. In 2004, Governor Jim Doyle appointed Butler to fill a vacancy on that court. When he had to stand for a retention election in 2008 to be kept in office by the voters, they again rejected him. This was the first time in more than 40 years that a justice of the Wisconsin Supreme Court was ousted by the voters.
· Butler engaged in partisan campaigning soon after the voters of Wisconsin removed him from the Supreme Court. On September 25, 2008, shortly after stepping down as a justice on the Wisconsin Supreme Court, Butler engaged in overtly partisan campaigning by speaking at a fundraiser for then-Democratic presidential nominee Barack Obama, saying that the country needed Obama in the White House because of the opportunity to appoint justices to the U.S. Supreme Court and “other federal judges.” He specifically mentioned Roe v. Wade, gun control and affirmative action as issues affected by federal judicial appointments.
For additional information on the Butler nomination, see the following resources: