Wisconsin’s newest Supreme Court justice, Michael Gableman, is embroiled in an ethics case, and Wednesday night (!) that court deadlocked on whether Gableman committed misconduct. See, Supreme Court Deadlocks in Gableman Ethics Case.

The issue before the court was. as Ryan Foley of the Associated Press notes, was “whether Justice Michael Gableman violated the judicial code of conduct when he ran a potentially misleading and race-baiting campaign ad in 2008.” The ad was directed against incumbent justice Louis Butler. Butler lost to Gableman in 2008.

Here’s what happened in the election, and afterward:

During his 2008 campaign for the court, Gableman approved the ad showing the face of his opponent, Louis Butler, the state’s first African American justice, next to the face of a black rapist he represented years earlier as a public defender. The ad said Butler found a “loophole” and the man went on to rape again. [The man served his sentence; he was not released because of a loophole that Butler supposedly found. He committed another crime only after serving the earlier sentence, not because Butler’s argument led to an early release.]

After Gableman narrowly defeated Butler, the Judicial Commission contended he violated a rule that says judges cannot knowingly misrepresent the background of their opponents and should be disciplined.

An appeals court ruled for Gableman, on free speech grounds, and the case went to the Wisconsin Supreme Court. Was what Gableman said protected as free speech, or was it a violation of judicial ethics, and punishable as misconduct for lying?

Before commenting, I wanted to read both decisions (each with three justices supporting). The Wisconsin State Journal posted links to both opinions. (There were two, each issued late Wednesday evening.)

Decision in favor of a misconduct trial and Decision against a misconduct trial for Gableman.

Obviously, Gableman didn’t participate in the deliberations, and through his attorneys sought a motion to have the ethics complaint dismissed.

Having read them, I’m not persuaded that Gableman — a sitting circuit court judge when he ran for a Supreme Court seat, was free from a judicial code of ethics as a layperson candidate, say, for the Wisconsin Assembly would be. I’m not convinced that he’s entitled to the same First Amendment defenses that an ordinary citizen would and should be.be. Having chosen the judicial role, and sought higher office in that same branch of government, Gableman (like a soldier under a military code of conduct) simply isn’t entitled to embrace the role but reject its ethical standards.

I also note that reading written opinions like this, from almost any court, can be tedious going. They’re poorly written, an littered with professional annotations that make the law distant and mysterious. The law should be more than a secular Gnosticism. As Gnosticism is a Christan heresy, so overly ornate and esoteric legal opinions are heretical to a simple, plain, useful rule of law.

Finally, what is one to say about Gableman? I’m neither conservative nor liberal, but if I were conservative, I’d be asking myself why I’d not found a candidate and a campaign not so inclined to skirt the boundaries of judicial ethics. Surely the right could have found a more established and weighty candidate. They didn’t, yet still we and they have Gableman, when they might have won with a deeper, more consequential man.