The Parable of Michael Gableman, Part I: Rise and fall

Editor’s note: Part II of this guest editorial will be published next week.

On November 19, 2024, the Wisconsin Office of Lawyer Regulation (OLR) instituted a formal disciplinary proceeding against former Wisconsin Supreme Court Justice Michael Gableman.

The 75-page complaint filed by OLR, which is publicly available online, alleges that, while serving as special counsel to the Wisconsin Assembly, Gableman committed violations of Wisconsin’s Rules of Professional Conduct for Attorneys. Gableman had been retained by Republican Assembly Speaker Robin Vos to assist the Assembly’s Committee on Campaigns and Elections in conducting an investigation of the 2020 presidential election in Wisconsin. The merits of the OLR complaint are not the focus of this essay. Rather, my purpose is to attempt to tell the story of how Gableman’s fortunes deteriorated from what is (arguably) the pinnacle of the legal profession in the State of Wisconsin to being on the threshold of potentially losing his license to practice law.

A little background is in order. First, I must disclose that I am professionally acquainted with Michael Gableman. We appeared in court together during the 1990s when he was the Assistant Corporation Counsel for Forest County and I was a staff attorney with the State Public Defender. Also, between 2012 and 2018, while we were both members of the Wisconsin judiciary, we exchanged pleasantries several times while attending various judicial events. I have had no contact with Gableman since his departure from the Wisconsin Supreme Court.

After graduating from law school, Gableman, who is originally from the Milwaukee area, clerked for three years at the state level in Minnesota and also in Brown County, Wisconsin. Then, in 1996, he took a half-time position as an Assistant District Attorney in Langlade County and also worked in a private law office in Antigo, which included part-time work, on a contract basis, as Assistant Corporation Counsel in Forest County. Thereafter, Gableman worked as an Assistant District Attorney in Marathon County. In May of 1999, then-Republican Governor Tommy Thompson appointed Gableman to serve as the Ashland County District Attorney. While in Ashland, he served as the chair of the Republican Party of Ashland County. On June 3, 2002, Gableman resigned as District Attorney in Ashland to take a position as an Administrative Law Judge (ALJ) in the Department of Workforce Development.

So, after moving around the northern half of the state for the better part of a decade, occupying primarily government positions, Gableman had made his presence sufficiently known that he was appointed as district attorney by a Republican governor and then administratively appointed as an ALJ under the succeeding Republican administration. It is clear that Gableman, at this point in his career, was hip-deep in state Republican politics. 

On August 20, 2002, less than 90 days after commencing his role as an ALJ, Thompson’s Republican successor as governor, Scott McCallum, appointed Gableman to serve as Circuit Court Judge in Burnett County. The appointment generated controversy. Prior to the appointment, a number of judicial aspirants, Gableman not among them, formally applied to Governor McCallum to fill the existing vacancy on the Burnett County court. McCallum had previously signed executive orders providing that an Advisory Council on Judicial Selection would screen applicants for judicial appointments and forward finalists for his consideration. Relative to the Burnett County appointment, the Advisory Council recommended two of the applicants, one of whom was the Burnett County District Attorney, to McCallum. There is no evidence that Gableman ever submitted an actual application for the appointment or that he was evaluated by the Advisory Council. These procedural abnormalities notwithstanding, McCallum appointed Gableman to the position.

It has been widely reported that, prior to being appointed in Burnett County, Gableman had donated $2,500 to McCallum’s pending gubernatorial campaign, including a $1,250 donation on June 18, 2002, just two months before the date of the appointment. Also, Gableman had organized a fundraiser for McCallum’s campaign, an event which he reportedly attended while on the clock relative to his ALJ position. It’s obvious that Gableman’s Burnett County appointment was nakedly partisan — the quintessence of political patronage.

There is nothing shocking about a partisan governor’s appointment in and of itself. While some governors may be more pragmatic than others, partisan considerations play a role in most governor’s appointments. In my judgment, however, Gableman’s Burnett County appointment constitutes an extreme example. In addition to the eyebrow-raising optics of the political machinations that led to it, there is no reporting to indicate that Gableman had ever had any connection to Burnett County prior to his appointment. I know from my own experience that such applicants and/or appointees are colloquially referred to behind the scenes as “carpetbaggers.”

Regardless of the propriety of Gableman’s appointment to the bench, at the time of the 2003 Spring Election, when he was challenged by the Burnett County District Attorney who had unsuccessfully applied for the 2002 governor’s appointment, Gableman was elected by an overwhelming 78 percent majority. Insofar as the will of the voting public is the best mechanism for determining who should serve it, any perceived taint regarding his original appointment was, as a practical matter, rinsed under the bridge and Gableman was in a position to move on in his role as a circuit court judge in Burnett County with a relatively clean slate.

Fast forward to 2007. The Republican establishment in Wisconsin REALLY wanted to defeat incumbent Supreme Court Justice Louis Butler in the state’s 2008 Spring Election. Thanks to a number of decisions issued during Butler’s tenure on the court, in which he either authored the accompanying opinion or voted with the majority, Butler could be reasonably characterized as an “activist judge.” One of the more notable examples of this would be the decision in Thomas v. Mallett, in which Butler authored an opinion holding that a lead paint claim could proceed to trial against lead paint manufacturers despite the fact that the plaintiffs could not identify which manufacturer caused the underlying injury. State conservatives were licking their chops. 

Enter Michael Gableman. It is not publicly known how it came to pass that his basket was where Republican mandarins chose to place their eggs. Regardless, it was Gableman who ultimately threw his hat in the ring to run against Butler. 

During his supreme court campaign, one of Gableman’s primary handlers was Darrin Schmitz, the president of Persuasion Partners, Inc., a political consulting firm whose tagline reads: “Turning Blue States to Red.” Gableman received thousands of dollars — in some cases tens of thousands — in campaign contributions from entities such as the Republican Party of Wisconsin, the Wisconsin Builders Association, the Wisconsin Club for Growth, and Koch Industries. It has been reported that Wisconsin Manufacturers and Commerce, a powerful business lobbying group, spent 2.25 million dollars to help elect Gableman. However one chooses to slice it, it cannot be reasonably disputed that conservatives and Republicans rallied around Gableman as their candidate. 

During the campaign, a third-party political group supporting Butler released a television ad suggesting, among other things, that Gableman had “purchased his job” in Burnett County and was a “substandard judge.” Not content to focus on those aspects of Butler’s record where he could be credibly accused of “legislating from the bench” (e.g. Thomas v. Mallett), Gableman’s advisors believed that he needed to respond with an ad contrasting Gableman’s background as a prosecutor with Butler’s experience as a criminal defense attorney. Gableman subsequently released a television ad which referenced Butler’s representation, in his former capacity as a criminal defense attorney, of a man named Reuben Lee Mitchell. The content of the ad was misleading and strongly suggested that Butler had done something which, in fact, he had not.

Come election day, Gableman defeated Butler. On August 1, 2008, Gableman commenced a 10-year term as a Justice of the Wisconsin Supreme Court. For the most part, Gableman’s tenure on the court played out as expected. He had held himself out as a judicial conservative and that is more or less how he acted on the court.

However, Gableman’s time on the supreme court was not without controversy. He drew attention for his unwillingness to recuse himself from certain cases, at least one of which implicated the interests of his benefactor, Wisconsin Manufacturers and Commerce. That controversy was effectively ended in 2011 when the Wisconsin Supreme Court adopted its current recusal rule — which had been crafted, in part, by Wisconsin Manufacturers and Commerce — on a 4-3 vote. 

Gableman voted in favor.

Perhaps the most memorable aspect of Gableman’s time on the supreme court was a disciplinary proceeding filed against him by the Wisconsin Judicial Commission. The complaint, which was filed only 68 days after Gableman began his term, alleged that his campaign ad about Reuben Lee Mitchell constituted judicial misconduct. The Judicial Commission proceeding against Gableman was lengthy and complex and need not be detailed here. Though ultimately dismissed, the proceeding was undoubtedly a major distraction for Gableman and his fellow justices. One notable aspect of the proceeding was the fact that Gableman was represented therein by Attorney James Bopp.

James Bopp is an accomplished lawyer out of Indiana and a heavy hitter in Republican politics at the national level. 

Bopp was Indiana’s National Committeeman on the Republican National Committee in 2006 and served as the RNC’s vice chairman from 2008 to 2012. He has represented a conservative 501(c)(4) organization called Citizens United. On behalf of this client, Bopp filed an action in 2007 against the Federal Elections Commission which was ultimately resolved by way of a highly publicized decision of the United States Supreme Court known as Citizens United v. FEC. Following the 2020 presidential election, Bopp filed legal actions in four swing states, including Wisconsin, challenging the results. (For undisclosed reasons, these suits were all withdrawn within a week of filing.) In April of 2022, Bopp successfully represented Rep. Majorie Taylor-Greene in a Georgia proceeding challenging her eligibility to serve in congress based on Section 3 of the Fourteenth Amendment.

I don’t claim to know why a nationally prominent figure who is apparently accustomed to handling high-profile matters such as those described above would come to Wisconsin to represent a relatively obscure figure in a state Judicial Commission proceeding. One could reasonably speculate that some of Gableman’s well-heeled supporters may have wanted to protect their investment. Regardless, on June 30, 2010, the Judicial Commission proceeding against Gableman concluded in his favor when the remaining six justices (Gableman was apparently willing to recuse himself from his own case) deadlocked 3-3 over whether he had engaged in misconduct.

Seven years later, as the end of Gableman’s 10-year term began to loom, his re-election and its concomitant campaign were on the minds of court observers. Then, unexpectedly, on June 15, 2017, Gableman announced that he would not be seeking re-election. Gableman did not specify a reason for his decision, nor did he indicate what he intended to do with himself after concluding his service on the court. Many wondered why an apparently healthy and obviously ambitious 50-year-old man, who had attained what some would argue to be the pinnacle of the legal profession in Wisconsin, would suddenly decide to step down for no stated reason with no specific plans for the future. If Gableman were stepping down to take advantage of a lucrative opportunity in the private sector, such as a partnership at Michael, Best & Friedrich, for example, or to accept a prestigious government appointment, such as a federal judgeship or a United States Attorney position, stepping down might make sense. 

However, nothing to that effect was ever reported.

There was speculation at the time that Gableman might step down before the completion of his term to allow then-Republican Governor Scott Walker an opportunity to appoint a successor prior to the Spring 2018 election.  

On September 13, 2017, the Milwaukee Journal Sentinel reported that the Trump Administration was vetting Gableman for a federal position. The report did not indicate what job Gableman was in line for, other than that it was an “administrative” position and not a federal judgeship. The parameters of what might constitute an “administrative” position are broad and ambiguous. However, in this context, it most likely meant some anonymous cog in the federal bureaucracy (i.e. not the sort of attractive opportunity that would normally be sufficient to lure a sitting justice off of a state supreme court). Regardless, nothing further was ever reported regarding Gableman accepting a position in the Trump Administration.

So, in the apparent absence of any new pot, sweetened or otherwise, to feed from, Gableman ended up serving out the balance of his term on the supreme court, which concluded on July 31, 2018. Thereafter, Gableman more or less faded into obscurity.

The specific reason underlying Gableman’s decision to step down from the supreme court is not publicly known, at least not with any certainty. However, in my judgment, the only reasonable inference is that some (or all) of the conservative entities that backed Gableman in his original campaign were unwilling to do so this time. This may seem counterintuitive in light of his reliably conservative vote on the court. Nevertheless, it is patently unreasonable to conclude that, with the full support of the Republican establishment firmly behind him, Gableman would voluntarily choose to step down as a supreme court justice with no apparent plans for the future.

In my judgment, the rise and fall of Michael Gableman is easy to explain. His initial rise was made possible thanks to the support and backing of the Republican establishment in Wisconsin. His subsequent fall was the result of that support being withdrawn.