There are loopholes and loopholes. There is the loophole that state Supreme Court Justice Michael Gableman accused an election opponent of using, and there is the loophole that Gableman may now ooze through to escape disciplinary action related to that very ad.

Last week, a panel of three judges recommended that Gableman not be disciplined for his campaign ad accusing former Justice Louis Butler of helping to release a sex criminal who committed another crime. That recommendation was a case of judicial hair-splitting at its most egregious.

In last year's race for the state's high court, Gableman's campaign produced an ad which said that Butler had found a legal technicality that reversed the conviction of a sex criminal who subsequently committed another crime. Taken individually, each statement was true, but the total effect was a lie. Butler, acting aggressively as a defense attorney should, did appeal the man's conviction on technical grounds, and the conviction was reversed by an appellate court. However, the state Supreme Court ruled the technical error made no difference and reinstated the man's conviction and prison sentence. Only after he had served his term was he released, and that is when he committed the subsequent crime.

When his staff suggested the ad, Gablemen initially delayed it until he could research the matter himself, and he subsequently approved it as suggested. All these facts are undisputed. The panel of judges found a problem in the law specifying the conduct of judicial candidates.

The law has two parts. The first sentence says that candidates shall not misrepresent an opponent knowingly or by disregarding facts. The second sentence urges judges to not make statements that mislead even though they are true. The state Judicial Commission complained about the Gableman ad based only on that first sentence, and the panel of judges said the matter actually falls under the second sentence which, because it urges good conduct but doesn't require it, cannot be a reason for discipline. See? It's hair-splitting at its worst.

And even while they found the complaint invalid, the panel of judges deplored the ad and its disdain for the role of defense attorneys. "Neither common sense nor the law permits the sculpting of literally true ‘facts' into a lie," wrote Judge Ralph Adam Fine in his concurring opinion. He agreed with the recommendation to dismiss but for a different reason: a violation of the core First Amendment notion of open political debate.

There is no excuse for Gableman's political ad. Quoting from another legal case, Fine's opinion also notes that the First Amendment does not protect against statements that are demonstrably false. That is precisely what Gableman produced - not by directly composing the ad but by letting it proceed unchanged. He generated a campaign ad which falsely disparaged his opponent and the legal system, and he did so apparently in order to gain the power of a Supreme Court seat, subordinating truth to his personal gain.

A hair-splitting reading of the law may conclude that discipline is unwarranted, but that does not make Gableman's conduct right. For the other justices of the Supreme Court to refuse disciplinary action would validate the letter of the law while ignoring its spirit. There should be discipline now, not in a decade when Gableman is up for re-election and the stench of last year's campaign mud has faded.