At the Wisconsin Supreme Court candidates's debate, incumbent David Prosser goes after JoAnne Kloppenburg for what commenters have written on her Facebook page.

What can we attribute to the person with the power to delete comments?

While there was no explicit mention of a Dane County judge's decision to issue an emergency order to block the state's contentious new collective bargaining law, Prosser acknowledged the attacks against him on Klopperburg's Facebook page were from people hoping to elect someone to decide "cases that come out of the governor's budget bill."...

Prosser said Kloppenburg is responsible for the comments on her Facebook page and should take them down. He said the nature of the comments raises questions about whether she can impartially decide any cases that come before her with the budget bill. He mentioned one that read, "Stop the turd, vote Kloppenburg."

"Now am I the turd or is the governor the turd?" he said to laughs from the audience. "Either I am being sort of dissed or she is committing herself to vote in a particular way on a particular case. That's totally inappropriate."

Kloppenburg said the people who post the comments are responsible for the content and that the postings aren't untrue.

"They understand that it is so important to have an independent and impartial court," she said of the people posting on her Facebook site.

I have a very free comments policy myself, and this blog's comments thread is full of things I don't agree with, so I'm strongly disinclined to attribute comments to someone who maintains a comments section. Now, a political candidate might want to clean up the comments, but if she doesn't, what does it mean? It might mean nothing more than a failure to monitor the page — mere inattention or sloppiness. It might mean a commitment to free speech. But one might infer that a candidate would scrub comments that were damaging to her in the election and, perhaps, keep what was helpful.

The key question is whether Kloppenburg has "committ[ed] herself to vote in a particular way on a particular case." Clearly, many of her supporters are saying that she is much more likely than Prosser to give them the outcomes they want, and some of them have said that where she has the power to delete. But Prosser's campaign manager wrote in an official campaign news release that Prosser would "act as a common sense compliment to both the new administration and legislature." Now, that's not exactly a "commit[ment]... to vote in a particular way on a particular case," but it's a signal to people on the conservative side that Prosser to is more likely to give them the outcomes they want. Prosser has "disavowed the release and said he didn't see it before it went out," but what's worse? The Prosser campaign statement or the Kloppenburg Facebook comments?

The answer to that question isn't going to determine who votes for which candidate. Obviously. It's a shame if the judicial campaign has turned into a referendum on the Governor and the GOP legislature, but both candidates bear some responsibility for that. Normally, judicial candidates in this state try quite hard to look as though the race is all about judicial skill and temperament. I think Wisconsinites want that message, and, also, that they are more likely to conflate conservative politics with properly judicial skill and temperament. (That's how Gableman defeated Butler, in my view.)

But at this point in the Wisconsin craziness, some unknown large number of Wisconsinites — especially those who will take the trouble to vote on April 5th — see the election as a way to express an opinion about what the Republicans have been doing in Wisconsin. Presumably, there are some more who have opinions about the extent to which a court should check the legislative process — a more conventional view about judging. I think there are also plenty of Wisconsinites who have a general preference for conservative judges. (They worry that liberal judges will be too sympathetic to criminals and that sort of thing.) Lots of people just vote for the incumbent because they figure he's a solid guy who knows what he's doing.

Who will turn out on April 5th? My sense is that the people who have been protesting for the last month have a lot of pent-up energy to expend on getting their people to the polls, and they are saying vote Kloppenburg.

"For me, it's always been taking the facts of the case and applying them to the law."

Said former Wisconsin Supreme Court Justice Louis Butler, testifying before the Senate Judiciary Committee yesterday, in a hearing on his nomination to the federal district court here in the Western District of Wisconsin. He is, in what has become typical confirmation hearing ritual, asserting his faithfulness to the law and attempting to quell charges of judicial activism.

But isn't that quote interesting? In the established liturgy, judges aver that they apply the law to the facts. For example, Sonia Sotomayor said: "The job of a judge is to apply the law... The judge applies the law to the facts before that judge."

Butler, however, said, "For me, it's always been taking the facts of the case and applying them to the law." He said that he would apply the facts to the law. Now, I don't for one minute believe that he meant to flip the ritual phrase around. I think if he were confronted with the point I'm making here, he would immediately switch the words back to the liturgical form used by Sotomayor and countless others:  "The judge applies the law to the facts before that judge."

Think what it would mean to apply the facts to the law. You begin with the factual context of the case. That is the part you know. Then, you must find the law through the use of the facts. Imagine a judge who really believed that the facts determine the law. Read this important interchange from the Sotormayor hearings:

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

Wouldn't a judge applying the facts to the law do what President Obama said he thinks a good judge will do?

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I.e., apply the facts to the law.

The Senate Judiciary Committee is questioning former Wisconsin Supreme Court Justice Louis Butler right now.

Stream the video now. Our colleague Justice Butler is nominated for the federal district court here in the Western District of Wisconsin.

"Former Wisconsin Supreme Court Justice Louis B. Butler was nominated by President Barack Obama Wednesday for a federal judgeship."

Congratulations to our alumnus and colleague!

Michael Gableman wins Wisconsin Supreme Court seat from Louis Butler.

This was a fight known mainly for the nasty ads put out by groups supporting the candidates, but the bottom line is that the balance on the court has changed.

Here's a recent Wall Street Journal article that focused on the race:

After four years of judicial activism, one of the court's most liberal members, Justice Louis Butler, is up for re-election -- and voters get to send a message about what they expect from their judges....

The last time Badger State voters had a chance to vote on Justice Butler, in 2000, the then-Milwaukee County Municipal Judge lost by nearly 2-1 to then-state Supreme Court Justice Diane Sykes. But when a seat opened up on the high court in 2004 with the elevation of Justice Sykes to the federal Seventh Circuit Court of Appeals, Democratic Governor Jim Doyle appointed Judge Butler to the slot.

Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left. The court systematically dismantled the state's tort reform laws, eliminating caps on noneconomic damages in medical malpractice rulings. In another case, the court made Wisconsin the only state to accept "collective liability" for manufacturers in cases involving lead paint. Whether a company actually produced the paint became irrelevant to guilt or innocence.

I didn't endorse a candidate (or vote) in this election.

CORRECTION: Sorry I had Butler's first name as Michael overnight. The perils of posting at 1 a.m.

UPDATE: President Obama has nominated Louis Butler to be a district judge here in the Western District of Wisconsin.