Marquette Law School Prof. Rick Esenberg did not deliver his best work to the Milwaukee Journal-Sentinel's Crossroads section yesterday. "Half-hearted," is how I'd charitably describe it.
If I were allowed to read between the lines, I'd say that Prof. Esenberg is nearly as revolted at the most recent State Supreme Court election as I am. The only reason I say "nearly" is because he received the reward he sought: the replacement of one of the smartest and most highly regarded judges in the country with a de facto and de jure Homer Simpson.
I also have to wonder if Esenberg actually voted for Mike Gableman or, like my piano student James, did the right thing but held his breath for the wrong outcome. At least, that's what I told James he'd done. (He laughed; James also has a sense of humor.)
It's impossible to take seriously Esenberg's portrayal of the two candidates as "reasonable lawyers with deep philosophical differences," as if there were comparable records from which to draw this implied equivalence of competence. Was Esenberg even paying attention? The only thing we ever heard from Gableman was the same old tired, empty GOP namecalling, of himself as a "textualist" (all judges are textualists — what, do you think the law is written in ham sandwiches?) and Justice Louis Butler an "activist" who decides cases in advance based on personal whims.
In other words, meaningless and — more to the point — baseless and indefensible rubbish. If Gableman has a philosophy, or is capable of enunciating one, or even knows what a judicial philosophy is or what it means to have a judicial philosophy, then maybe Prof. Esenberg can fill us in. But he certainly wouldn't be getting any of his impressions from Gableman himself. All Esenberg would be able to do is criticize Justice Butler's extensively documented jurisprudence and then claim Gableman represents his opposite number. Which is essentially all Esenberg has been able to muster in the first place.
Esenberg's anecdotal allusion to Ted Kennedy's goofball performances at Senate Judiciary Committee hearings on federal court nominees is every bit as unconvincing. Hardly anybody takes Kennedy seriously in that context. More the norm — or at least the ideal — is Arlen Specter's justly celebrated grilling of Robert Bork, which Ronald Dworkin described as one of the most compelling examples of American democracy in action.
And contrary to popular Republican "wisdom," Bork borked himself; it wasn't Ted Kennedy who borked Bork. That pesky Indiana law review.
Or how about the repugnantly obsequious tongue-bathings of GOP committee members like Orrin Hatch or — the worst of the worst — Jeff Sessions, whose inquiries of G.W. Bush judicial nominees elicit about as much probative intellectual content as asking the prospective Article III judges for their favorite brownie recipes, and then to comment approvingly on their own magical deliciousness.
As a newly minted supporter of a Wisconsin Supreme Court appointment process, even I'm willing to put up with those sorts of vacuous charades.
American democracy, let us recall, is decidedly not of the direct variety. The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms, because the Framers understood that the mob's inflamed passions would compel it to turf its representative yahoos out of office almost as quickly as it had installed them. And inflamed passions are the antithesis to the rule and the process of law.
The power of incumbency (a.k.a. hockey socks full of cash contributions stuffed in exchange for obeying moneyed interest groups) has changed all that for the most part, of course.
The call for the appointment rather than the popular election of judges inevitably invites catchy GOP charges of "elitism" from those who would prefer appellate courts empaneled with Homer Simpsons and Fred Flintstones. Bring on such charges, I say. Of course it smacks of elitism. Our highest appellate courts are supposed to be comprised of the elite. They are the elite. Anybody from Plato to Thomas Aquinas to James Madison and Alexander Hamilton (the poster boy for American political elitism) can tell you that.
Or Thomas Frank, whose What's The Matter With Kansas? Esenberg also disparages yesterday (without explaining why). Frank shows exactly how conservative caterwauling about "liberal elitism" is a fatuous joke and in fact a ridiculously embarrassing false pretense to political and cultural victimhood on the part of conservatives.
By close analogy, witness the disingenuous howls of persecution by American Christians, 85% of the population, driven back into their caves like the Essenes by a handful of atheists, many of whom are reluctant to identify themselves as such for fear of being scorned and shunned to the detriment of their very careers.
Ultimately, Prof. Esenberg's vaguely Churchillian thesis appears to be that popularly electing our State Supreme Court is the least worst option available. He can't possibly be serious, especially while at the same time declaring that he loves the law (which I don't doubt for one instant).
For one thing, an appointment process will have the meritorious effect of excluding the Mike Gablemans from our highest courts of appeal. That alone is enough to commend such a process. The strange case of Harriet Miers aside, does anybody seriously think the likes of Mike Gableman would be mentioned in the same breaths as the likes of John Roberts or Samuel Alito, even by Karl Rove?
Obviously a method of appointing — as opposed to the popular election of — judges will not erase the political content of the selection process. Who ever said it would? And what isn't political in this country? One of the reasons I got a law degree was so I could better understand the daily newspaper. Everything is political here, and all politics ultimately rests on some legal question.
And conservative Republicans needn't be concerned they'll be forbidden from engaging in precisely the same lobbying of a judicial selection committee with which they're able to insult the public's intelligence now. Happily, Wisconsin Manufacturers & Commerce will still retain its ability to micturate all over the Bill of Rights.
I have no idea what success State Rep. Frederick Kessler's proposed constitutional amendment will enjoy, if any. But, given the experience of Wisconsin's latest Supreme Court election, I wouldn't be able to bring myself to not support it.
Speaking as someone who also loves the law, the election was a shameful affair, and one can only pray it never happens again. Even I will pray, to Saint Thomas Aquinas, if that's what it takes.