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“Loophole Louie:” Another day, another liberal activist judge; Update: Sen. Judiciary Cmte approves 12-7 on party line vote

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By Michelle Malkin  •  December 3, 2009 10:24 AM

Update 5:37pm Eastern: Butler approved by SJC on 12-7 party line vote.

Here we go again. President Obama has nominated Louis B. Butler Jr. to a federal judgeship in the Western District of Wisconsin. The vote is scheduled for today. Butler is a former Wisconsin Supreme Court judge who embraces the Obama “empathy standard” of adjudication — going beyond the application and interpretation of the rule of law to incorporate identity politics and policy judgements.

The WSJ points out that Butler was “twice rejected by Wisconsin voters for a place on the state Supreme Court:”

As consolation prizes go, Louis Butler can’t complain. After being twice rejected by Wisconsin voters for a place on the state Supreme Court, the former judge has instead been nominated by President Obama to a lifetime seat on the federal district court. If he is confirmed, Wisconsin voters will have years to contend with the decisions of a judge they made clear they would rather live without.

Judge Butler served on the state Supreme Court for four years, enough time to have his judicial temperament grow in infamy. Having first run unsuccessfully in 2000, he was appointed by Democratic Governor Jim Doyle to the seat vacated by Justice Diane Sykes in 2004. But after serving four years, voters had seen enough of his brand of judicial philosophy, making him the first sitting justice on the Wisconsin Supreme Court in four decades to lose a retention election last year.

In Ferdon v. Wisconsin Partners, he drew the rage of doctors and others when he dismantled the state’s limit on noneconomic damages in medical malpractices cases—the kind of tort reform that had been serving the state well. Business groups were likewise floored by his decision in Thomas v. Mallet, which allowed “collective liability” in lead paint cases—making any company a potential target, regardless of whether they made the paint in question. His nickname as a public defender was “Loophole Louis,” a name that stuck when, as a judge, he was considered to be soft on crime.

At his confirmation hearing this month, Mr. Butler was quick to make light of his double rejection by Wisconsin voters, telling the Senate Judiciary Committee that “After 16 years on the bench, I may be a better judge than a politician.”

Ahem. That’s a coded nod to liberal groups like the George Soros-funded Justice at Stake that are trying to eliminate judicial elections. Rather than letting voters choose judges, they prefer so-called “merit selection” plans whereby judges are selected by committees of lawyers…

…Mr. Butler’s nomination also shows the return to prominence of judicial ratings by the American Bar Association, which traditionally gives extra weight to “judicial experience.” The ABA, which was ousted by the Bush Administration in part because of the ABA’s notorious liberal bias, is now back in favor in the Obama White House. Mr. Butler served on the ABA’s Standing Committee on Judicial Independence, a group that like Justice at Stake critiques how that independence is supposedly compromised by the need to raise money for judicial elections.

Mr. Butler’s nomination shows the dominance of liberal ideology in Mr. Obama’s judicial selections, and especially a contempt for Wisconsin voters.

The Wisconsin Supreme Court has a record the liberal 9th Circuit of Appeals would love. Jack Park reviews Butler’s “law development court” theory. John Fund spotlighted the voters’ rejection of its activist bent last year:

The Wisconsin Supreme Court certainly bent the rule of law over the past four years, as a 4-3 liberal majority became the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices. Thus the defeat of Justice Louis Butler at the hands of Burnett County Judge Michael Gableman has national implications. A recent study in the University of California-Davis Law Review found that Wisconsin is the eighth most-cited state supreme court by other judicial bodies. Its rulings play a larger role in shaping court decisions elsewhere than those of courts in states such as New York, Florida or Texas. In addition, 38 states elect all or part of their appellate-level judges by popular vote. Judge Butler’s defeat sends a signal that a judge who dramatically oversteps traditional boundaries can be brought to account.

When John Roberts was confirmed as Chief Justice of the U.S. Supreme Court in 2005, he noted “judges are like umpires. Umpires don’t make the rules, they apply them.” Most Americans agree, but the liberal majority on Wisconsin’s Supreme Court made so many suspect calls it seemed intent on rewriting the rules….Wisconsin is in many ways a liberal state – it hasn’t voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism. This fall, voters in other states ranging from Louisiana to Michigan will face pivotal elections over what direction their own state supreme courts will go. Inevitably, a chorus will complain about the amount of money spent on those races by outside groups. No doubt the campaigns will be messy. But that’s a small price to pay to ensure that voters remain a check on the judiciary. If judges are umpires, the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.

Now, Obama is recruiting the rejects for lifetime appointments to the federal judiciary.

Elections, indeed, have consequences.

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How will the GOP Senators on the Judiciary Committee vote? Stay tuned.

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And another controversial liberal judge pick: Edwin Chen.

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