Democrats are busy trying to confirm, Obama appointed, judicial activists Judges to the federal bench. Like Judge Louis Butler who was run out of office by Wisconsin voters when he ran for re-election to that state’s supreme court. Historically, sitting judges rarely lose re-election bids, but Mr. Butler was too liberal and activist for Wisconsin.
Too liberal for Wisconsin? Too liberal and activist for the federal bench? Sen. John Cornyn (R-Tex.), a member of the Senate Judiciary Committee which is holding hearings for Judge Butler today, thinks so.
Sen. John Cornyn’s statement:
Statement of Senator Cornyn for the Hearing on Justice Louis Butler’s Nomination to the District Court for the Western District of Wisconsin
- I regret that I am unable to attend today’s hearing on the nomination of Justice Louis Butler.
Having reviewed his writings and statements, I have serious reservations about his nomination to the federal district court.
In numerous opinions written during his tenure on the Wisconsin Supreme Court, Justice Butler displayed a lack of impartiality, a disregard for precedent, and a willingness to legislate from the bench.
Voting to strike down Wisconsin’s popularly enacted punitive damages cap, Justice Butler ruled that it was not rationally related to the goal of making malpractice insurance “available and affordable.”
o In placing this vote, Justice Butler:
§ Abandoned prior Wisconsin Supreme Court precedent upholding the cap;
§ Dismissed the clear findings of the Wisconsin legislature; and
§ Ignored evidence from Wisconsin and states like Texas showing that damage caps reduce frivolous litigation and insurance premiums.
Justice Butler also has written an opinion making Wisconsin the only state to adopt a “collective liability” theory in product liability cases.
o According to the Wall Street Journal, this “infamous” opinion “created a guilty-until-proven-innocent approach to product liability.”
- The Wisconsin justices dissenting from the opinion contended that it allowed manufacturers to “be held liable for a product they may or may not have produced, which may or may not have caused [a] plaintiff’s injuries, based on conduct that may have occurred over 100 years ago . . . .” Thomas v. Mallet, 701 N.W.2d 523 (Wis. 2005) (Wilcox, J. dissenting).
- Furthermore, Donald Gifford, the former dean of the University of Maryland Law School, remarked that Justice Butler’s opinion was “the single most radical departure from the principles of tort law in recent decades . . . put[ting] Wisconsin dramatically out of line with the law of any other state in the country.”
Justice Butler additionally has disregarded the rulings of superior courts:
o After the United States Supreme Court reversed a Fifth Amendment ruling of the Wisconsin Supreme Court, Justice Butler joined an opinion interpreting identical language in the Wisconsin Constitution to reinstate the Wisconsin Supreme Court’s initial determination. See State v. Knapp, 700 N.W.2d 899 (Wis. 2005).
o This opinion abandoned Wisconsin’s longstanding practice of interpreting its constitution in “lock step” with the United States Constitution, and it excluded essential evidence from a murder trial.
o Judge Diane Sykes of the Seventh Circuit declared the opinion to be “pure unvarnished result-orientation.”
I regret to say that, taken together, these and many other rulings of Justice Butler place him outside of the judicial mainstream and raise concerns about his ability to apply the rule of law fairly and impartially.
I plan to submit written questions to Justice Butler and look forward to his responses. But based on his current record, I am deeply troubled by his nomination.
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