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EDITORIAL: Another radical judge

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If, in the future, a historian seeks the first proof positive that President Obama was intent on seeding the lower federal courts with radicals, the answer may well be that Butler did it.

On Oct. 1, the president nominated Louis Butler, a former Wisconsin Supreme Court justice, to the U.S. District Court of his state's Western District. While Mr. Butler's resume is in order, his appreciation of a judge's proper role seems lacking.

Mr. Butler is such a judicial activist that Wisconsin voters rejected his state high court candidacy both times they had a chance to weigh in. In 2000, as a Milwaukee trial court judge, he lost his race for the Supreme Court by a whopping 2-1 margin. Liberal Democratic Gov. Jim Doyle appointed him to the court anyway four years later to fill a vacancy, but Mr. Butler didn't last long. Eighteen months ago, the first time Mr. Butler appeared on the ballot again, voters summarily dumped him after a high-profile race in which he was criticized for being far too liberal even for his state, which hasn't voted for a Republican presidential candidate since 1984. It was the first time in more than four decades that an incumbent Wisconsin Supreme Court justice had been defeated for re-election.

Wisconsin voters knew what they were doing.

Mr. Butler wrote the opinion in Thomas v. Mallet, which made lead-paint manufacturers liable for supposed harm to a plaintiff even though the plaintiff could not show that particular manufacturers had produced the paint that purportedly made him sick in houses built as early as 1900. In dissent, Justice Jon P. Wilcox wrote: "The end result ... is that the defendants, lead paint manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiffs' injuries, based on conduct that may have occurred 100 years ago when some of the defendants were not even part of the relevant market."

Mr. Butler repeatedly favored jackpot justice, including his vote in Ferdon v. Wisconsin Patients to overturn a carefully crafted law that capped "non-economic damage" awards on the flimsy basis that the judges thought the law was not "rationally related" to any legitimate ends.

In favor of jackpots of another kind, Mr. Butler helped gut a state constitutional amendment, approved by direct popular vote, that banned casino-type gambling. Not only did the court in Dairyland Greyhound Park v. Doyle allow a pre-existing gambling interest to keep operating, but it also ruled that the group had a right to expand the number of casino-type games it could offer - though the original contract specifically limited the sorts of games allowed. The public will and the original contract terms were thus ignored. So much for popular sovereignty.

So often did Mr. Butler find reasons to favor criminal defendants over law enforcement that he earned, and publicly welcomed, the nickname "Loophole Louie." Finally, in State v. Fisher, the Butler court majority somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting gun-carrying rights.

The Senate should not confirm Mr. Butler for a federal judgeship before detailed research into all these troubling rulings.

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