Supreme Court Justice Michael Gableman won’t seek a second term, he announced Thursday.
A spokesman for Gableman said “it is my understanding” that the justice will serve the rest of his term that ends July 31, 2018. But a source with knowledge of Gableman’s plans but not authorized to speak for the justice said it’s unclear if that will happen.
That potential vacancy would allow Gov. Scott Walker to make his third appointment to the Supreme Court since 2015. If Gableman finishes his term, the 2018 race to replace him would be the first open competition in a decade.
“I make this announcement with a heart filled with gratitude to the people of the great state of Wisconsin for permitting me to serve them in public office for the past twenty-three years, including the past eighteen years in elective office,” Gableman said in a statement.
He did not respond to messages seeking an interview.
Gableman was elected to the state’s highest court in 2008 and created the court’s current conservative majority when he defeated Justice Louis Butler. At the time, Gableman was the first candidate in decades to defeat an incumbent.
“Ten years ago, I began my campaign for the Wisconsin Supreme Court by setting out a vision based on the rule of law — that judges ought to apply the law rather than make it,” Gableman said. “Serving on the Wisconsin Supreme Court for the last nine years has been my great privilege. In decisions large and small, I have fulfilled my promises and put my judicial philosophy into practice. I trust the people of Wisconsin will elect a successor who is similarly committed to the rule of law.”
The conservative majority has since grown to five of the seven seats on the court at a time when it has become increasingly fractious.
On Thursday, Gableman praised his colleagues.
“It has been a privilege to engage with such capable people in the collaborative search for justice through law as the sacred mission it is,” he said. “Through robust discussion, debate, and sometimes disagreement, my colleagues have been hard working, intelligent, and dedicated to the application of the law as they saw it.”
Chief Justice Patience Roggensack said in a statement that Gableman’s “extraordinary fund of legal knowledge” has helped the court in its work for almost 10 years.
“His thoughtful insights and dedication to the rule of law will be greatly missed by the Supreme Court and the people of Wisconsin when he concludes his service on the Supreme Court,” she said.
And Walker thanked Gableman in a statement for “an untiring commitment to the rule of law and the proper role of the judiciary during his time on the Wisconsin Supreme Court.”
A request for comment from Justice Shirley Abrahamson, who was chief justice when Gableman was elected, was not immediately returned.
Act 10 author
Gableman was the author of the court’s opinion upholding Walker’s defining legislation that squashed collective bargaining for most public employees.
He has been criticized for not recusing himself from a case that resulted in a decision to halt a secret John Doe criminal probe into whether Walker’s campaign illegally coordinated its actions with conservative outside groups. During Gableman’s 2008 election campaign, the same groups that were subjects of the probe spent millions to help elect him.
And in 2010, the court deadlocked 3-3 on whether Gableman violated the judicial code of conduct by running a potentially misleading and race-baiting campaign ad on his way to being elected in 2008. Gableman recused himself. The other three conservative justices said the ad was distasteful but “objectively true” and protected by the First Amendment.
Ed Fallone, a Marquette University Law School professor and former Supreme Court candidate backed by liberals, said Gableman’s legacy is rooted in those decisions and actions.
“His legacy is always going to be tied to whether or not he was acting ethically with his attack ads against former Justice Butler and in some of his blanket statements of law, especially in the John Doe opinion,” Fallone said. “There’s always been questions about his veracity both as a judge and on the bench.”
Wide open 2018 race
Running for Gableman’s seat in 2018 are Madison attorney Tim Burns and Milwaukee County Circuit Judge Rebecca Dallet, both backed by Democrats. They announced their candidacies before Thursday’s statement from Gableman.
Burns said in a statement that the 50-year-old justice and his fellow conservative justices “have been advocates for the special interests in Wisconsin.”
Dallet said she is seeking the seat held by Gableman because the court is “out of balance.”
“Justice Gableman is clearly part of the problem. But it’s not just about him, it’s about the direction of the court,” she said in a statement.
Jenni Dye, a lawyer and research director for the liberal advocacy group One Wisconsin Now, which does research on conservative Supreme Court candidates during races, said Gableman’s departure “creates an even bigger opening for challengers of the conservative status quo at a time when progressive energy and enthusiasm are on the rise.”
Ryan Owens, a UW-Madison Law School professor who studies the Supreme Court, said Gableman’s departure makes it easier for conservatives to keep their majority on the court.
Owens said whomever becomes the conservative-backed candidate for the court will have an easier time defending themselves from liberal critics because they won’t have a record on the Supreme Court like Gableman had.
“We’ll want to see what happens in the primaries here — it’s quite likely that the candidates on the left are going to go after each other pretty good,” Owens said. “If there is a consensus on who the nominee should be on the right, it’ll make it easier for them to retain the seat.”
Fallone said it was not a complete surprise that Gableman decided not to seek a second term.
He said Gableman was seen as a weaker candidate than Justice Annette Ziegler, a conservative-backed justice who sought re-election this year unopposed.
“In decisions large and small, I have fulfilled my promises and put my judicial philosophy into practice.” Michael Gableman, Wis. Supreme Court Justice