Witch hunt: National Review Online lobs another bogus attack on judicial nominee Butler

Written by Adam Shah

Published

National Review Online's Ed Whelan and Carrie Severino attacked President Obama for nominating Louis Butler to a federal judgeship after he lost his electoral bid to retain his seat on the Wisconsin Supreme Court. In fact, there is nothing unusual about Butler's appointment: President Bush successfully appointed federal judges who lost a state court election race.

Right-wing witch hunt targets Louis Butler over state election defeat

Whelan and Severino attack Obama for nominating Butler after he lost state judicial election race. Severino wrote: “After the voters of Wisconsin ousted him, President Obama nominated the former judge to the federal bench. So Butler may have a chance to reinstate his view of the law after all.” Whelan similarly wrote that after Butler lost his bid to retain his seat, “President Obama tries to reimpose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship. That nomination is pending in the Senate.”

Appointment of federal judge who lost state-level judicial election race is not unusual

Bush appointed federal judge who had been “overwhelmingly defeated” in state judicial election race. The Houston Chronicle reported that Sens. Kay Bailey Hutchison (R-TX) and John Cornyn (R-TX) recommended the appointment of Micaela Alvarez to a federal district court seat. The Chronicle added that Alvarez “was appointed to a state district judgeship in 1995 by Bush when he was governor of Texas. When Alvarez ran for election in 1996 as a Republican, she was overwhelmingly defeated by Hidalgo County voters.” Bush accepted Hutchison's and Cornyn's recommendation, and Alvarez is now a federal district court judge in Texas.

Bush appointed another federal judge who had lost Texas Supreme Court re-election race. Texas Gov. Rick Perry (R) appointed Xavier Rodriguez to the Texas Supreme Court in 2001. He subsequently lost the Republican primary in his bid to retain the seat. Nevertheless, Bush appointed Rodriguez to be a federal district court judge in Texas.

Butler was the subject of previous bogus right-wing attack

Wash. Times attacked Butler for supposedly interpreting a “law written to expand the right to carry guns” as a “gun limitation.” A Washington Times editorial stated, "[I]n State v. Fisher, the Butler court majority somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting gun-carrying rights."

Decision Butler joined actually adhered to precedent. In fact, in Fisher, the Wisconsin Supreme Court decision Butler joined was merely applying prior Wisconsin Supreme Court case law on the extent of the state's right to bear arms. Indeed, the dissent -- which called for overruling that precendent -- stated:

I acknowledge that the majority opinion's affirmation of the facial constitutionality of Wis. Stat. § 941.23 adheres to this court's own precedent as expressed in State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, and State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328. I have both a great appreciation of and high regard for the importance of stare decisis in our legal system. However, adherence to precedent that is obviously flawed is far more harmful to the integrity of and confidence in our legal system than abandoning such precedent in favor of a proper determination of law.