Patrick McIlheran's Supreme arrogance

A couple of days before the April 1 State election, Patrick McIlheran of the Milwaukee Journal-Sentinel printed an exceptionally silly — even for him — bit of absurdist fluff mocking Wisconsin Supreme Court Justice Louis Butler for a comparison that had arisen between Butler and U.S. Supreme Court Justice Antonin Scalia.

In a textbook demonstration of Proverbs 16:18, McIlheran wrote that one need only be "minimally sentient" to understand that the comparison is "towering nonsense."

The ironic truth is that McIlheran's manifestly supercilious pronouncement applies perfectly to his own ill-informed scribblings.

As I pointed out to McIlheran at the time,

Butler's approach in [State v.] Jensen is very similar to that of the most conservative members of the U.S. Supreme Court. It's a near-classic example of a very narrow reading of the text supported by an analysis of the original intent behind the Confrontation Clause.

In fact, that is one of the reasons why SCOTUS will very likely rule for the defendant/appellant in Giles v. California, a case that presents the identical question of constitutional construction that Butler addresses in his Jensen dissent.

I directed McIlheran to my own discussions of State v. Jensen posted here and then offered to bet McIlheran that Justice Scalia would adopt precisely the same approach in Giles as had Justice Butler in Jensen.

That Giles presents the identical constitutional question Justice Butler had addressed in his lone dissent in Jensen:

Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?

The Jensen of Jensen, it may be recalled, is Mark Jensen, who was convicted of first-degree intentional homicide for the murder of his wife, whom he poisoned with antifreeze.

McIlheran declined the wager, perhaps realizing that his March 28 blog post was nearly as foolish as his earlier celebrated uncritical acceptance of this laughable characterization of Jensen:

[Justice Butler] wanted looser standard than other justices on allowing hearsay; standard preferred by Jensen's attorney

On Tuesday, the U.S. Supreme Court heard oral arguments in Giles v. California. As Lyle Denniston at SCOTUSblog — who has forgotten more about the law than Patrick McIlheran and the demonstrable liar who wrote the ungrammatical nonsense indented directly above will ever know put together — reports,

Justice Antonin Scalia was the most fervent champion of Giles’ cause, suggesting that the Court in [an earlier SCOTUS decision] had interpreted “the meaning of the Confrontation Clause” as it was understood “when the people adopted it.”

And the meaning of the Confrontation Clause "when the people adopted it" is exactly at the core of Justice Butler's reasoning in State v. Jensen. The complete transcript of the SCOTUS oral arguments is archived here (.pdf; 60 pgs.).

During the oral presentations, Justice Scalia takes pains to distinguish an exception to a hearsay rule of evidence known as the "dying declaration" from the requirements of the Confrontation Clause, which he calls "a totally different situation," precisely as Justice Butler had done. Throughout the oral arguments, in classic Scalia fashion, Scalia helps along the lawyer arguing for the defendant, Giles, and gives the attorney representing the State of California an extremely hard time ("siding with criminals"?).

Even Patrick McIlheran should be able to see this, since he claims to have been "minimally sentient during some portion of Scalia's years on the bench." I beg to differ, but I'll give him the benefit of the doubt in this case. Of course McIlheran himself may be "minimally sentient," but the said minimal sentience has little to do with understanding comparative jurisprudence generally or in particular the close parallels between Justice Butler and Justice Scalia's reasoning pursuant to the meaning of the Confrontation Clause.

McIlheran's fatuous yet arrogant commentary is a perfect example of the mis- and disinformation spread by a number of undeservedly prominent and irresponsible Wisconsin media chumps and other alleged "journalists" during the State Supreme Court election campaign — not to mention by Mike Gableman and his direct handlers and enablers themselves — and we have them all to thank for that "stellar example of democracy in action" whereby roughly 9.6% of the State's registered voters rid the other 90.4% of one of the smartest appellate court judges in the country. As smart as the beatified (and not in the Jack Kerouac sense) Antonin Scalia, it would appear.

And they're actually "proud" of it, evidently in the Proverbial sense.

eta: It looks as though April 24, 2008, is Let Us Now Celebrate the Wisdom of Patrick McIlheran Day in the Wisconsin blogosphere:

Taking Pro-Life to the X-Treem

Patrick McIlheran loves DDT

McIlheran v. People of Earth

And even a wistfully touching defense:

We can't all be Nino [Scalia]

McIlheran interviewed a hand-selected conservative GOP hackette named Kellyanne Conway? Oh well, then; I take it all back. :rolleyes: