Elections as IQ Tests

I believe it somehow made it into this blog that I have referred to the election of George Bush as a failed national IQ test. There is currently a wave of debate that has consumed the local papers and local bloggers regarding whether the election of Mike Gableman to the state supreme court over Louis Butler represents such a failed test.

Butler's advocates (including blacks, liberals, most of the state's judges, and me) saw him in this race as clearly superior: he has more experience, is more scholarly, has more integrity, lends the court some diversity of perspective (the only justice from Milwaukee, as well as the only African American), and was generally far better qualified (as ratings from the bar confirm). His sense of justice may be labeled as more liberal or pro-criminal defendant (but more pro-civil plaintiff) than Gableman's, but it probably corresponds better than Gableman's to the actual values that most people can agree with: injured people should have decent access to the courts, even people accused of terrible crimes should receive a fair trial.

It is also easy to account for the votes against him on the basis of misinformation. Even when the local paper here was pointing out the lies in Gableman's ads, it assumed the framing of the Gableman campaign that the election was about which candidate would better use his position to fight crime. Since this is not the function of the court, there was an implicit contradiction in the Gableman campaign: I will not be an "activist" judge: rather, I will subvert the position to reach outcomes that I am running on today. Gableman's supporters and Gableman himself implicitly and explicitly argued that Butler's experience, dedication, and success as a public defender were negatives, a position that has profoundly negative implications for justice.

Joel McNally said on InterCHANGE, a local public television panel show, that the voters knew nothing abot Gableman, which is not entirely true. But it is hard to see what positive information got out about him other than: he was a prosecutor and judge, which is probably enough to show most voters that he is at least minimally qualified (notwithstanding that the bar buried him in "not qualified" votes), and he promises to be "conservative" (a term that probably confuses more than it explains) and anti-crime (which given the role of the court, also probably does more to confuse).

More to the point of course is the misinformation about Butler. As suggested above, he could be called more liberal than average. He treats Constitutional protections for the accused seriously. Ads regarding him worked hard to create the false impression that he was happy to see criminals run free and reoffend. Voters may never realize what a great justice they had in Butler, because he will leave his seat and who knows what they will hear of him in the future.

But the buyers' remorse over Gableman may be starting before Gableman is even seated. As the press continues to play out on this, and as ethics investigations proceed, and then when the court starts issuing opinions with his deciding vote, there will be almost certain regrets. It should be amazing, except that it is completely commonplace: the day after an election, the local papers report what the outcome will mean for the public. This was front page in the Sunday paper here. I can think of few things the press regularly does that are more absurd. Either the press has done their jobs and reported what the likely results of this victory would be before the election, or they have not. If they did so, then this is old news. If they did not, then they only indict themselves by reporting the information after its utility has fallen from 100 to nothing overnight.

This is one of those elections where one feels that if the truth had gotten out, the result would change. In that sense, it is a test failed. Failed by the system, and yes, failed by voters, but only because the test was made harder for them and they were led to think they did not need to study.

There is now a push led by liberal Butler supporters to reform the system. One (liberal proposal) is to eliminate judicial elections altogether. (Others include public financing and the Illinois retain-or-dismiss election system.) Any of the above would probably be an improvement. All deserve consideration. But ultimately, it is hard to see where any of this will make any difference if the public remains completely bewildered regarding what the court actually does and what qualities really make a good judge. To some extent, the fault is out in the democracy itself. As the saying goes, you always get the rulers you deserve, or else we would have gotten the metric system.

The conservative conventional wisdom is now that the liberals are animated by "sour grapes" to make any changes, and that the whole thing is profoundly undemocratic and dismissive of voters.

Of course, it is not that anybody wants to impose upon the public something that the people don't want; it is rather a paternalistic desire to protect voters from making the dumb decisions they make and regret. Time and experience show that there are some decisions people make that they frequently (or nearly always) regret. Like flirting casually with dangerous things (unsafe sex, unsafe drugs, unsafe explosives). Like falling for con artists, absusive husbands' promises to stop hitting, and conservative political ads. We make some of these deals voidable, grant rights of rescission, require some terms to be in bold print, and outlaw others. Some actions can only be taken with a license. But not voting for Gableman. The system really looks broken when 95% of judges support the incumbent justice, and an upstart under and ethical cloud is able to steal the seat by massively advertising distortions or lies.

I cannot buy all the righteous piety regarding how we should respect the voters. The same conservative conventional wisdom, before Gableman won, was very pronounced in the opposite direction on another race. There was a contest here in Milwaukee where the voters were constantly being second-guessed and there was rampant speculation over whether they would make the obvious right choice or be fooled. But that was the race for the Sixth Aldermanic District, the voters were nearly all black, and the second-guessers were white folks from outside who assumed they would get it "wrong" by re-electing the imprisoned Michael I. McGee to another term.

McGee lost, and I happen to think the voters in that district made a good decision, but I would not have faulted them for keeping McGee, either. Those who would have, though, dominated the discussion prior to the election, and they were the same conservative segment of the punditsburo that now find second-guessing of the Gableman vote distasteful. Was the supreme court race afford fewer unfair advantages to Gableman, whose victory we cannot question, than the Aldermanic race did to McGee, whose victory we could have? McGee was in jail, impeded from serving his district, under a cloud he could not answer without injuring his defense, and his whole budget was spent for legal defense rather than ads. He had no unfair advantage, and in fact was saddled with disadvantages. But his opponent's victory is not suspect, and his somehow would be. The only explanations for this doublestandard are political convenience, and, of course, race.