When bad vacancies happen to good people

Nate Silver has been following the constitutional tête-à-tête between IL Gov. Milorad Blagojevich and NV Sen. Harry Reid over the attempts by the Gov. to fill Barack Obama's vacant U.S. Senate seat.

As Silver sees it, Reid appears to be relying on an expansive definition of "Elections" as it appears in art. I, § 5, cl. 1 of the Constitution. Maybe so, but the 17th Amendment* is more particular when it comes to vacancies, which are to be filled by the "executive authority of such State" as empowered by that State's legislature.

I think if Reid wants to undermine Blagojevich's abilities to make an appointment he needs to concoct an argument that involves the idea that some combination of criminal charges/impending indictment and the Illinois legislature's overtures toward impeachment have diminished the governor's authority to such an extent that renders it insufficient for the requirements of the 17th Amendment.

Because I can't see him having much success grounding his objections on the qualifications of Blagojevich's pick, Roland Burris, based in Blagojevich's various travails. That argument is fallacious.

And, after all, crazy Jim Inhofe is qualified to be a Senator, and even Reid himself is apparently qualified to lead the whole shootin' match.

* Which made the Constitution slightly less undemocratic.
__________________________________________________________

eta: Sure enough, the governor's continuing undiminished "power and authority" is at the heart of Roland Burris's complaint for mandamus* (.pdf; 10 pgs.) to the Illinois Supreme Court (see paragraph 18).

Evidently Burris has altered his position since a couple of weeks ago, when he described Blagojevich as "incapacitated" (that argument got exactly nowhere with the State's high court, incidentally).

* Burris is petitioning the court to literally command his appointment, like they do in monarchies and other authoritarian regimes.

The Martyrdom of Saint Alberto

Spc. Tony J. Gonzales, 20, of Newman, Calif., died Dec. 28 in Sadr City, Iraq, when an improvised explosive device detonated near his vehicle. — USDoD 12/30/08

Hang on a minute, wrong Gonzales:

I consider myself a casualty, one of the many casualties of the war on terror. — WSJ 12/31/08

:rolleyes:

Bush apologia of the year

McIlheran outdoes even himself:

Some prisoners are paraded naked by renegade MPs, who are promptly prosecuted and their superiors canned, and that’s what’s got you all worked up, Ms. Goodman?

Really! How could you, Mrs. Dick?

True enough, however, if what you mean by "canned" is "awarded the Presidential Medal of Freedom" like Gen. Richard B. Myers, or perhaps "appointed for life to the United States Court of Appeals for the Ninth Circuit" like Jay S. Bybee.*

"This is op-ed. Not journalism," quips a commenter.

And that's in defense of McIlheran.

* The notorious Bybee Memo arguably sweeps within its "mental suffering" ambit the forced reading of Mr. McIlheran's blog posts.

Koschnick launches website

And this is big news, apparently.

A tip o' the toque to Grumps, who inquires: 'Whatever happened to Todd Allbaugh?' To which one might add, 'Whatever happened to Darrin Schmitz,' the Republican operative and erstwhile Gableman campaign guru in whose name KoschnickForSupremeCourt.com is registered.

(Whereat Judge Koschnick is still soliciting both completed nomination papers* and Facebook friends.)

* Minimum 2,000 required by the Feast of the Epiphany, 5 p.m. Facebook friends quantity currently undetermined.

Son of Tripp

According to an MSNBC gossip columnist, the fevered auction among glossy celebrity rags for photos of Bristol Palin's newborn went from 100 to $300K after the child's less celebrated grandmother was charged with several drug offenses.

"The bidding started well before the baby was born, but once Levi’s mom was arrested — well, then you had a story," says one editor.

Depending on the distribution of proceeds, the payment could narrowly avoid violating Alaska's "Son of Sam Law," which aims to prevent criminal defendants from profiting on their transgressions.

Chip the Magic Cracker

Librulz to blame for "brilliant, edgy satire."

And "the media" too, naturally.

There still is a myopia gene, also

If Darwin was right, which is survival of the fittest, then homosexuality would be a recessive gene because it doesn’t reproduce, and you would think that over thousands of years that homosexuality would work itself out of the gene pool.

— Rick "I've eaten in gay homes" Warren

More things this gormless buffoon doesn't have a clue about.

Merry Christmas

Winter solstice weather report

Via capper:

A local conservative blogger asks and answers, "Is there anything good to say about today's weather?" "Yes, actually. Starting today, the days start getting longer." Because of, um, the weather.

But I think days will remain at roughly 24 hours. On Earth, at least.

Through an institution, strictly

It's always seemed to me that the lip service paid to "strict construction" is often little more than a matter of occasional convenience for political conservatives who are clambering for ways to somehow justify their preexisting agendas.

In the case of the recent announcement by the president that he will appropriate funds allocated by the so-called TARP statute* to assist the Big Three automakers, that agenda also includes holding union workers almost entirely responsible for those corporations' woes.

In short, the perfect opportunity for conservatives to toss their otherwise dearly beloved "strict construction" or even "plain meaning" under the bus in furtherance of political point scoring.

To those ends some conservatives, in particular this Heritage Foundation fellow, seem to believe they've caught the federal executive branch red handed, breaking the law.

And a number of conservative bloggers are gesticulating breathlessly toward the Heritage Foundation analysis — such as it is — in support of the proposition that the Big Three auto companies are not "financial institutions" for the purposes of the TARP.

Except they don't need to be. From the federal statute:

The term "financial institution" means any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State, territory, or possession of the United States, the District of Columbia, Commonwealth of Puerto Rico, Commonwealth of Northern Mariana Islands, Guam, American Samoa or the United States Virgin Islands, and having significant operations in the United States, but excluding any central bank of, or institution owned by, a foreign government.

The Heritage Foundation fellow makes much of the "bank, etc." language in his attempt to exclude the automakers from the definition of "financial institution."

Trouble is, "financial institution" is itself defined as "any institution including but not limited to," and only then does there follow that deliberately incomplete list of institutions that most people would recognize generally as "financial institutions."

The operative word, therefore, is "institution," which isn't limited by the adjective "financial." And "institution" is further modified by "any." That's a lot of institutions, and those ones are explicitly "not limited to" the several types of financial institution enumerated.

The statute goes on to describe "any institution" as one "established and regulated under the laws of the United States or any State," and "having significant operations in the United States."

Sounds an awful lot like General Motors et al, doesn't it.

* The Emergency Economic Stabilization Act of 2008.

Another high-tech lynching

Haven't heard that one in awhile.

That was U.S. Supreme Court Justice Clarence Thomas's expression, in protecting himself against allegations of Long Dong shenanigans during his Senate Judiciary Committee hearings back in 1991.

Lately the affirmatively defensive epithet has been resurrected by Charlene Hardin, a beleaguered Milwaukee public school director.

As chronicled by crack columnist Daniel Bice in the Journal-Sentinel, Hardin attended a conference last summer in Philadelphia, but apparently only turned up toward the end to demand all the free stuff. Meanwhile she was tooling around town in a $200-per-day rental car and generally livin' large at the Embassy Suites Hilton.*

The district attorney was asked to look into potential illegality, but reportedly discovered only intimations of questionable competence.

At least one local worthy of note is contemplating a run at Charlene Hardin's District 4 seat, the term of which expires next April. But I don't know whether I'm at liberty to reveal it yet. All in due time.

* "Just minutes from the Philadephia Zoo," it says here. In fact one of Charlene Hardin's mightiest complaints was that all the gratis zoo passes were gone by the time she appeared at the conference.

Quote of the day

We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job — our sworn duty — as criminal defense lawyers, to protect our clients from those people.

Cynthia Rosenberry

Which is more laughable

Asks Heather MacDonald:

Warren would apparently feel more secure if a president said: "After consulting God, I have decided to bomb Iran," than if he said, "After consulting my advisors, all available intelligence, and our allies, I have decided to bomb Iran."

But of course if it was Ahmadinejad "consulting God" ...

"Pastor" Rick Warren: Just not terribly bright.

California preacher has lots of gay friends

But how many pedophiles, he isn't saying

A number of observers on the political left have expressed degrees of concern with self-styled God-spokeperson and megachurch proprietor "Pastor" Rick Warren's comparison of gays with pedophiles.

While it's true Warren likened gay couples to child molesters and it's also true that the comparison is outlandish and wildly insulting on its face, there are at least two important distinctions overlooked by most of those observers.

Pedophilia is an aberrant psychological condition and plenty of pedophiles are already legally married. They just aren't married to children. And when it comes to sexual — or even contractual — relationships involving children, the question of consent arises.

Because as a matter of fundamental legal (and psychological) principle, children aren't even capable of extending consent. Whereas among adults, consent is not an issue. It's a given.

Nevertheless, the ongoing debate over gay marriage is not so much a question of sexuality or even consent but of equality and civil rights, two other fundamental legal principles.

And the civil rights and bonds sought by many gay people are no different than those enjoyed by anyone else. It just so happens that those bonds are sought by two people of the same gender. All of their other goals and aspirations may be identical to those of other legally married couples, including child rearing and even child bearing.

Take a look, for example, at this assembly of New Jersey plaintiffs.

In a number of the same sex marriage cases litigated throughout the country, States have asserted, in opposition to SSM, that State's compelling interest in fostering procreation. Frankly, it's just about the strongest argument they have.

Except nobody ever said that gay couples can't procreate, either through surrogate parenting or adoption.

Nor has any State forced more "traditional" couples to procreate who otherwise might decide not to — or even have intercourse, for that matter. In other words, women and men, regardless of their sexuality, are still able to fulfill those State objectives if they so desire. Or not. They remain free to make those choices.

Much in keeping with the U.S Supreme Court's 1967 unanimous opinion in Loving v. Virginia, it took a judicial decision in California to recognize the constitutional right of gay people to enter into the same type of civil arrangement that the widely admired Britney Spears was able to freely enjoy for as long as 55 whole hours.

Former Paramount Studios head Robert Evans enjoyed it so much he did it seven times with nary a peep from the religious rightists.

Yet "Pastor" Warren, allegedly at the personal behest of noted civil libertarian and community organizer Jesus of Nazareth, helped lead the efforts of Californians to rescind that right on November 4.

That alone should preclude him from sharing the inaugural podium with the president of all Americans a month from now, in my opinion. But that's Barack Obama's decision, and he can take his political lumps for it. And he will. And he should. And he deserves to.

Warren's position is not a "principled decision," as some might suggest. That Warren views consensual, adult gay relationships through the same antediluvian blinkers that he does those who would commit first degree sexual assault of a child, which carries a 60-year prison term in Wisconsin, is instead strong evidence that his position is one of a foolish and unprincipled ignoramus.

As for Obama's selection of Warren to intone some species of abracadabra during the chief executive's installation next month, we don't yet know of its exact content. But Warren says he plans to "pray God's blessing on the office of the president," so obviously it's not going to make the slightest bit of difference one way or the other.

GOP to focus on Young Communist

According to The Hill, Senate Republicans are seeking to revive the spectre of Elián Gonzalez, the Cuban boy whose mother died in a boat bringing him to Florida in 1999.

The GOPers say they want to investigate the role played in the fiasco by Eric Holder, Barack Obama's nominee for Attorney General, who was a deputy AG in the Clinton administration under Janet Reno.

At the time, Elián's relatives living in the U.S. effectively took custody of the boy, a custody that ultimately stood in violation of a federal court order. Especially one of his cousins, Marisleysis Gonzalez, who, as a Wikipedia editor understatedly puts it, "quickly became a well-known television figure."

While for most people the question was a no brainer, conservative politicians and pundits, selectively abandoning their principled dedication to "family values," were determined not to reunite Elián with his own father. Against both of their wishes, apparently.

(To be fair, even then-presidential candidate Al Gore panderingly joined himself with the GOP cacophony, as I recall.)

Presumably the particular episode Senate Republicans are most interested in is the affair's dramatic dénouement, which involved the heavily armed requisitioning of the child from Marisleysis' bedroom closet by federal agents (photoshopped above).

Perhaps it's payback time for former AG John Ashcroft. Ashcroft, nominated by President Bush in 2000 after losing his Senate reelection bid to a deceased person, endured a somewhat embarrassing set of hearings before the Senate Judiciary Committee, as Democratic Senators reiterated in public each and every instance of bizarre Ashcroftian behavior unearthed by internets sleuths.

The committee Republicans should take their cue from Wisconsin Senator Russ Feingold. In an impressive speech at the committee hearings, Feingold, who opposed Ashcroft's appointment on several other principles, nevertheless determined that the Constitution affords wide discretion to the president in selecting his cabinet.

In fact Senator Feingold was the only Democrat on the Judiciary Committee who broke ranks and voted with the Republicans, and he took a lot of heat for it at the time. But he didn't much support John Ashcroft's initiatives thereafter, again on constitutional grounds.

And those are the dispositive criteria, not some self-serving rehashing of an ancient political/media circus.

Beethoven

238 today (or maybe tomorrow).
Some chamber music from the beginning and the end of his career:

Piano Trio No. 1 in E-flat, Op. 1, No. 1: IV. Finale — Presto (1793)
String Quartet No. 12 in E-flat, Op. 127: I. Maestoso / Allegro (1825)

Definitive recording (Piano Trios)
Definitive recording (Quartets)

McIlheran: Inadvertent genius of irony

The Milwaukee Journal-Sentinel's "right-wing guy" Patrick McIlheran occasionally enjoys raving about Canada's health care system. He does this by finding a troubling anecdote here or there and then attempting to squeeze it somehow into his preexisting conclusions.

He endeavors to warn his likeminded disciples of the Canuckian horrors that await under the impending Obamarxist dystopia.

It seems McIlheran recently found such an anecdote, concerning a 77-year-old man who visited a walk-in clinic in a Montreal suburb and, unfortunately, died of a heart attack during his 20-minute wait.

The attending physician, Dr. Jacques Chaouilli, was in a Canadian court the other day responding to inquiries as to why he didn't try and resuscitate the decedent.

"I concluded that this patient must have been dead already a long enough time — I had no way of knowing how long — but long enough," Dr. Chaoilli told a reporter, adding that he thought it was "the scene of a crime," hence his hesitation at moving the corpse.

Dr. Chaouilli gained some notoriety a couple of years ago when he successfully challenged the Province of Quebec's restrictions on privately insured health care. He's one of those brave mavericks who opt out of the "socialized medicine" that McIlheran so detests.

That's right: McIlheran has selected the alleged negligence of a physician that derives his livelihood from U.S.-style private insurance plans as an example of how bad a public health care system is.

Outstanding work, Mr. McIlheran. Way to pick those cherries.

(Canada, incidentally, ranks 14th in the world by overall life expectancy, according to the current CIA Factbook. The U.S. is 45th.)

Gableman free speech claims dismissed

For now, at least. This is a bit odd:

The judicial conduct panel adjudicating the Hon. Michael J. Gableman ethics case have [sic] made a ruling.

The judges sitting on the panel have dismissed Gableman's counterclaim, filed earlier this year.

They said that Gableman should instead file a response to the initial motion against him before January 5.

The counterclaims were contained in that portion of Gableman's Nov. 19 answer to the Wisconsin Judicial Commission's Oct. 7 complaint consisting of Gableman's legal attack against the State judicial ethics rule on First Amendment (freedom of speech) grounds.

Gableman responded to all of the allegations in the Commission's complaint and in addition argued an affirmative defense and filed the counterclaims, all within one document. Almost certainly Gableman will refile the counterclaims separately.

But will Indiana's James Bopp, Jr. get to bill him two times?

E. coli, by Lagerfeld

The View's token conservative Republican Elisabeth Hasselbeck offers a combined biology/cosmology lesson:

I always think of it like this when someone says, 'Do you believe in a designer, do you believe God created the world or is it evolution.' I always think: You look at a great bag, right, and you say, 'Oh my goodness, who's the designer?' You look at a pair of shoes you like and you say, 'Who's the designer? I love those shoes; they're perfect, they're gorgeous.'

It's unclear whomever said evolution "created the world."

h/t and disclaimers: Sadly, No!

Lucky he wasn't in Holland

Or giving a hockey player conference.

Ottawa man coldcocked

During a brouhaha at the couple's residence, an ice bucket hit the ground and Mrs. Anka picked up a piece of ice and threw a fast ball, hitting Paul in the noggin. Mr. Anka went to the hospital and got two staples put in his head.

Via the always edifying TMZ.com.

Wonderwall
Smells Like Teen Spirit

From Paul Anka — Rock Swings

(A pretty good record actually, in spite of the high-quotient kitsch. Thanks once again to the great Matt Liban for alerting me to it.)

For all your Biblical exegeses

This is the place.

h/t Google analytics & Deut. 22:5 & Rudy Giuliani.

Slow news day

And I'm talkin' sloooow. You make one semi-facetious, passing reference to a "press release," and look what happens:

Some liberal bloggers get all a-flutter ... "Our" Rick Esenberg* is having fun, however, with instacritics who were all primed to start sniping.

— J-S editorial board member Patrick McIlheran

Rick Esenberg thought about a run for state Supreme Court against Shirley Abrahamson but decided against it. He takes on other bloggers who went after him.

— J-S editorial board member David Haynes

Two major metropolitan daily editorial board members!
And "all a-flutter"? "Went after him"? Pure fantasy.
(For the discriminating reader.)

BREAKING / DEVELOPING / SIREN-FLASHING:
Xoff: Non-Judge Esenberg's decision reaffirmed as correct

* No relation to Oor Wullie.

Some kind of tincture, then?

Can't say I'd care much for harvesting it.

Mr. Blagojevich has a disability

If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.

Ill. Const. art. V, § 6(b) (emphasis added).

Argues Illinois Attorney General Lisa Madigan:

Just as impeachment or resignation constitutes a disability that renders an individual unable to serve as Governor, pending federal criminal charges of this nature and severity are a disability that has rendered Mr. Blagojevich unable to serve. As a result of the federal complaint relating to his official acts, Mr. Blagojevich's future official acts — many of which are the subject of the federal complaint — will be subject to challenge as illegal or improperly motivated. Because the integrity of Mr. Blagojevich's future official acts will be in question, his ability to provide effective leadership is eliminated.

There's a bit of speculation creeping into the logic there, what with the predictive aspects relating to Blagojevich's future acts, which the governor is seeking to head off at the pass through numerous appeals to a higher authority than the Illinois Supreme Court:

Shortly after [another three Baptist preachers had prayed and] left, a fourth minister, the Rev. Leonard Barr of Fellowship Missionary Baptist Church, arrived at the governor's house with his wife, Rita.

He said they were invited by the governor and that the two "prayed that he would continue to be a great governor for the state of Illinois."

Perhaps the latter, however, is an even larger presumption (or else a whole series of them). Still, you can't say that Rod R. Blagojevich doesn't have a prayer or three.

The legal attack to oust Blagojevich — Chicago Sun-Times

Judicial Truth Police to reconvene

Tom Basting, Sr. of the State Bar of Wisconsin said Thursday he plans to reconstitute the Judicial Campaign Integrity Committee to monitor advertising and rhetoric in the officially nonpartisan [Supreme Court election] race, which so far pits incumbent Chief Justice Shirley Abrahamson against Jefferson County Circuit Judge Randy Koschnick.

h/t Terrence Berres.

And I thought Obama was the socialist

But now U.S. Senate Republicans are apparently in the business of negotiating labor contracts with the United Auto Workers on behalf of private manufacturers. Fortunately Wall Street financiers don't do that whole collective bargaining thing.

More from the folkbum.

What hath Dan Barker wrought

Satan Claus (h/t capper)

Speaking to War On Christmas Obergruppenführer Bill O'Reilly last night, Fox News "legal analyst" Megyn Kelly said the God Hates Fags crowd could be excluded from the Olympia, WA holiday display because GHF was from "out of state" (Topeka, KS, that is).

Only trouble is, Dan Barker and the Freedom From Religion Foundation, which installed the "Happy Solstice" plaque that ignited breathless consternation in the first place, are out of Madison, WI.

"See, I think it's all part of the secular progressive agenda."

— Bill O'Reilly

eta: Commenter Pete Gruett points out that the "Happy Solstice" plaque was in fact installed by a local WA affiliate of the FFRF.

Even so, I don't see anything in the State's original settlement agreement (.pdf; 24 pgs.) that preceded this entire debacle which would authorize WA Gov. Gregoire to exclude "Reverend" Phelps's cheery message simply because it originates from out of state.

Indeed, the agreement itself was memorialized by some lawyers from the Alliance Defense Fund, which is based in Arizona.

Phelps, too, is a pro-vice hack.

Following the logic

Xoff at Whallah! is monitoring the barely coherent gesticulations of local radio shouter Mark Belling (so you don't have to).

Belling claims that Jefferson County Circuit Court Judge Randy Koschnick is "decrying" Wisconsin Supreme Court Chief Justice Shirley Abrahamson's "obsession with overturning the convictions of criminals."

(That would be Belling's own outlandish characterization, evidently.)

But Koschnick, in his former pre-judge incarnation as a State public defender, "is the lawyer who tried to help Ted Oswald get away with murdering a cop."

Therefore Koschnick has "as much credibility on these issues as [Belling does] at a teachers union meeting." (Apparently Belling has something against teachers as well.)

Koschnick is challenging Abrahamson in an election next April. Lawyers, trial court judges, and appeals court judges all play significantly different — and equally legitimate — roles in the system.

And those are precisely the distinctions that Mike Gableman assiduously and disingenuously labored to erase in his own quest for one of those positions last winter.

Elsewhere Xoff reports* that Marquette law professor Rick Esenberg has formally spurned John Foust's invitation to enter the race.

Mr. Foust's little-publicized entreaties are buried throughout the comments threads at Esenberg's now mostly dormant blog.

* WisPolitics.com wants $75 to view the Esenberg "press release." Is that some kind of a joke?

And SC ordered to affirm War on Christ

Today a federal district judge in South Carolina issued an injunction against that State's DMV, barring it from advertising, taking applications for, or producing its "I BELIEVE" license plates.

View the plate and read the injunction* here.

* The plaintiffs included two Protestant clergymen who were not impressed with having an integral symbol of their religious faith screwed next to the exhaust pipe on some broken down jalopy.

SCOTUS affirms War on Christmas

Curry v. Hensiner denied.

McIlheran gropes for meaning

The Milwaukee Journal-Sentinel's "right-wing guy" Patrick McIlheran, apparently disappointed at not finding any smoking Obama-Blagojevich connection, directs his hack sensibilities elsewhere:

Personally, I think where Blagojevich really torpedoed his boat with his party was in using a vulgarity to refer to The One: You’re supposed to save that for W.

A commenter, misconstruing McIlheran's special comedy, asks, "Do you really think the reason Blagojevich went down is because he called the president-elect an MF'er????"

McIlheran clarifies, then posits:

But why aren't his fellow Democrats reflexively denouncing this as a right-wing witch hunt? Because the gov dissed The One. He's beyond the pale now.

Or what is far more likely, the FBI's allegations are kind of hard to defend no matter which political party one favors. And Democrats are condemning Blagojevich because he's a bad seed. Simple.

In fact, the only person I've found thus far attempting a defense is professional Republican Pat Buchanan, who was on teevee the other night wondering how Blagojevich might be convicted when, evidently, none of his alleged nefarious plans was consummated.

In other words, Buchanan was saying, the governor thought the bad thoughts, but never committed the bad acts. In criminal matters, usually the government needs to prove both.

That's because the federal statutes the IL governor is being charged under in Count One of the criminal complaint are conspiracy laws, which don't require completion, only attempt.

They refer to a "scheme or artifice to defraud," including such schemes or artifices designed to "deprive another of the intangible right of honest services."

In this case, the honest services at issue are those of the defendants, Rod R. Blagojevich and his chief of staff, John Harris. Apparently there exists a legal presumption that politicians are honest by default. Make of that what you will.

As opposed to the honest services provided by certain newspaper columnists, to which no right exists, tangible or otherwise.

Count Two of the complaint, which alludes to Blagojevich's alleged machinations involving the Tribune Company, was filed under a federal theft or bribery statute* dealing with corrupt solicitations or demands.

* Sec. 666. Maybe America is a Christian Nation after all.

An orgy of negativity

The race for the top seat on the Michigan Supreme Court — decided by voters Nov. 4 — took a sharp turn to the negative in the weeks leading up to Election Day.

Supporters of Republican Cliff Taylor, the incumbent chief justice, flooded the airwaves with TV ads portraying his Democratic challenger, longtime trial judge Diane Hathaway, as soft on serious criminals. "Probation for a terrorist sympathizer? We’re at war with terrorists," a pro-Taylor ad said.

Hathaway backers launched ads painting Taylor as a pawn for big business. “Call Clifford Taylor and thank him for protecting wealthy corporations from suits by women who are sexually harassed and raped at work,” a pro-Hathaway ad said.

Michigan recognized for dirtiest judicial election

Come on people, we're slipping.

McIlheran scours for Obamojevich

The Milwaukee Journal-Sentinel's "right-wing guy" Patrick McIlheran is predictably bound and determined to find Barack Obama's fingerprints all over Illinois governor Rod R. Blagojevich.

Relying on a Slate.com column by John Dickerson, McIlheran can now reveal that one of those "being mulled" for Obama's vacant U.S. Senate seat was the president-elect's longtime friend Valerie Bowman Jarrett, named in the FBI's affidavit as "Senate Candidate 1."

Dickerson says the indictment [sic] "suggests" that Obama was "pushing for [Jarrett] to get it." Not really. Blagojevich doesn't seem to have known any more than what he and his aides heard on CNN.

Much like McIlheran doesn't know any more than what he reads on the internets. And besides, Dickerson also refers to Blagojevich as "delusional." How exactly that squares the governor's profane ravings with the forced Obama connection is anybody's guess.

McIlheran certainly isn't telling. Nevertheless, he's facetiously skeptical of Obama's statement today. He doesn't explain that either.

One thing that's undeniably clear from the affidavit, however, is that Blagojevich had no intention of appointing Valerie Jarrett to the U.S. Senate without receiving something in return for himself.

As Blagojevich puts it, "They're not willing to give me anything but appreciation. Fuck them." "They" and "them" being the Obama camp.

(Wherein McIlheran's own "story" completely eludes him: How did Blagojevich know that Obama didn't want to deal on Jarrett?)

So desperate for validation is McIlheran, in fact, that he even cites to James T. "Hip Beggings" Harris, who prophesies Barack Obama will pardon Blagojevich ... on Inauguration Day, no less. Uh huh.

Harris has long been employed by local journalists as a credibility-bolstering device. His résumé also includes striking oil on Uranus and the belief that humans cavorted with dinosaurs aboard Noah's Ark.

Foot tapping is not protected speech

So says a court of appeals in the State of Minnesota by way of denying U.S. Senator Larry Craig (R-Wide Stance) his petition to reconsider a district court's denial of Craig's earlier motion to withdraw his guilty plea to disorderly conduct.

Sen. Craig further argued that the disorderly conduct statute is unconstitutional on First Amendment grounds because it prohibits expressive conduct, in this case, communication by foot tapping to an undercover police officer in an adjacent bathroom stall.

Rather, the said communication was unwanted, observed the appeals court, and the privacy interest against unwanted communication "is very strong in a stall in a public restroom."

Invasion of privacy, therefore, equals disorderly conduct, the court concluded. Craig conceded that foot tapping is not "fighting words."

Craig v. Minnesota (.pdf; 10 pgs.)

Democrat's Fairness Doctrine plot revealed

The 76-page affidavit in support of a criminal complaint filed against Democratic governor Rod R. Blagojevich of Illinois delves into considerable detail on the chief executive's dissatisfaction with a series of uncomplimentary newspaper editorials carried over several months by the Chicago Tribune.

For example, in a late October pre-election endorsement, the Tribune editorialized in favor of State Representative David Miller, wondering whether Miller, a dentist by trade, "can extract a governor," a toothsome reference to Blagojevich's impeachment.

The same outfit that maintains the Tribune also owns the National League's Chicago Cubs. The Tribune Company was exploring application for State funds to assist the financially beleaguered organization's baseball team and its home greensward, historic Wrigley Field.

Apparently not amused and fearful of potential impeachment proceedings, Blagojevich embarked on a series of profanity-laden telephone conversations dutifully intercepted by FBI agents.

In one of numerous "pay for play" allegations contained in the affidavit, Blagojevich, his lobbyist spouse, and a number of other associates appear to condition their support for assistance to the Cubs on the Tribune's jettisoning its critical editorial writers.

"Fire all those fucking people, get 'em the fuck out of there and get us some editorial support," the governor is recorded as demanding (so as not to put too fine a point on it).

According to the affidavit, Blagojevich seems to have received through his deputies oblique indications from a Tribune Company representative that the newspaper was at least to get rid of John P. McCormick, the Tribune's deputy editorial page editor.

While today's press reports are understandably more focused on Blagojevich's placement of a "for sale sign" — as the prosecutors put it — on Barack Obama's former U.S. Senate seat, the governor's shenanigans with the Fourth Estate are every bit as remarkable.

Those allegations begin on page 41 of the affidavit (.pdf; 78 pgs).

And the affidavit's dramatis personae.

Activist columnist

In the Beaver Dam (WI) Daily Citizen today, several observations and inquiries pertaining to the upcoming State Supreme Court election, courtesy of Dodge County Circuit Court Judge Steven G. Bauer:

Can you determine a judge by a label?

Then-Dodge County District Attorney Bauer drew some attention back in early March with his considered withdrawal of support for then-candidate Mike Gableman over the latter's notorious teevee ad.

Madison atheists draw ire nationwide

The latest in the brouhaha over a plaque erected by Wisconsin's Freedom From Religion Foundation in Olympia, WA:

Using a loudspeaker, pastors prayed,* sang Christmas carols and criticized Gov. Chris Gregoire for allowing the atheist sign in the building.

"Reverend" Kenneth Hutcherson said the government should represent everyone in the State, except those with whom he has some kind of theological issue, apparently.

"It is time to chase out of the house of God all the unbelievers and evildoers," said Republican State Rep. Jim Dunn.

Since when is a State Capitol building the "house of God" and what is a nativity scene doing in there in the first place?

Personally, I think the plaque stunt is pretty lame, but the State can't disallow its irreligious content — "religion is but myth and superstition," it reads — in favor of strictly religious messages.

During a similar kerfuffle last year in Green Bay, somebody observed that there were eleventeen churches within a few blocks of city hall, each with its own crèche set up out front. Isn't that enough?

The FFRF's 50-pound plaque was reinstalled after unidentified persons stole it early one morning last week and it later turned up at a country music station, of all places, and subsequently in a ditch.

I can't say whether the plaque's message is one of "intolerance," but ripping it off and tossing it into a culvert almost certainly is.

* Sans SUVs.

I did not know that

When U.S. Supreme Court Chief Justice William H. Rehnquist presided over a civil rights trial in Richmond, VA — marking the first time this century* that a U.S. Supreme Court Justice had presided over a trial — he was reversed on appeal.

WI judges trade roles in Judicial Exchange Program

* It was in 1984, while he was an Associate Justice.

Palin "absolutely appalled" at spending

Reports today's New York Times:

Three Palin Stylists Cost Campaign More Than $165,000

Hair: $42,615 (or 107 John Edwards 'dos over 60 days)
Makeup: $68,400 (or 2,909 Clarins 'Joli Rouge' and 1 pit bull)
Advice: $54,900 (or 9,563,000 cubic feet of natural gas)

Equivalent to what a Hollywood studio might invest in preparing an A-list actress for a movie premiere or publicity campaign, other stylists said.

All this courtesy of the presidential campaign which famously portrayed Barack Obama as akin to Britney Spears and Paris Hilton.

Quipped the plain ol' hockey mom's spokeswoman Meghan Stapleton, "She does not know who benefited from all the expenditures reported."

Supposedly GOP donors but Democrats mostly, you betcha.

Vote for law blogs

Via the ABA Journal.

(Ann Althouse? They have got to be kidding.)

Wrong wing-guy: McIlheran versus the law

The Milwaukee Journal-Sentinel's blogging "right-wing guy" Patrick McIlheran is proving himself a bit more foolish and irresponsible this morning than has been his prior custom.

The American Civil Liberties Union of Wisconsin, charges McIlheran, is accusing the Wisconsin Department of Transportation of engaging in "a sinister racist plot."

Well, no. The ACLU isn't. Nor does it even need to.

If McIlheran had actually taken a few moments to read the ACLU's complaint (.pdf; 14 pgs.), he might have noticed (no guarantees!) that its claims are based on the WisDoT's failure to conform its actions with federal law in its capacity as a receiver of federal funds.

To wit, 42 U.S.C. § 2000d:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The complaint doesn't allege that the WisDoT took affirmative steps — i.e., "plotted" — to ensure discrimination. The only reference to intent contained in the complaint refers to the WisDoT's allegedly intentional disregard for the requirements of federal law.

That is a fundamental and profound distinction, which has evidently completely evaded Patrick McIlheran's reportorial faculties.

More specifically, the WisDoT's disregard for federal administrative law promulgated in furtherance of the above federal statute:

A recipient [of federal funds] ... may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin.

As a very special added bonus, McIlheran unwittingly and to unintentionally comedic effect (ironic, also) confirms the foregoing when he remarks sarcastically:

Letting people go somewhere is the same as making them go somewhere.

Likewise, discriminatory impact is not the same as discriminatory intent, nor is the latter required to prove the former. And, to top it all off, McIlheran can't even spell Atty. Karyn Rotker's name right.

UPDATE: And to really top it all off, check out this reader comment below McIlheran's blog post:

WOW, this isn't racist, it's just another attempt by the ACLU to be relevant. Using the word "racist" supposedly adds some sort of sting to it. ... I think if anything, the plan is insensitive to the needs of people.

Except it was Patrick McIlheran who invoked the term "racist," and it's the ACLU complaint that addresses "the needs of people." This comment perfectly demonstrates precisely the effect McIlheran's misleading and ill-informed commentary has. What a McShame.

McIlheran serves his Journal-Sentinel employers, those who rely on the credibility of their various scribes, very poorly indeed.

WWJK?

The Lord's agent will get back to you on that.

[Rick] Warren's office called Duss back to say the pastor was, in fact, referring to Romans 13. When Duss noted the chapter and verse make no reference to killing foreign leaders, Warren's representative said she'd have to look into it.

Hannity! Submit!

Marquette alum reappears for more comic relief

For some strange reason our old friend Daniel Suhr is posting at the Marquette Law School faculty blog. Today's entry finds him pontificating further to a couple of issues roughly related to the Mike Gableman case currently before the Wisconsin Judicial Commission.

Mr. Suhr, it may be fondly recalled, was a fervent and devoted disciple of Mike Gableman practically to the point of hysterics, recklessly mangling the case law and pronouncing former State Supreme Court Justice Louis Butler a menace to the Homeland.

Now it seems one of Gableman's several attorneys, James Bopp, obtained a victory of sorts after challenging in federal court a provision of the Kansas Code of Judicial Conduct which forbade a candidate for judge directly soliciting campaign contributions.

The Wisconsin corollary is Supreme Court Rule 60.06(4). As was mentioned here a few days ago, a Milwaukee County circuit court judge, the Hon. John Siefert, is in the process of challenging that same provision pursuant to a complaint filed last February.

Prophesies Suhr, "Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional." Not only that but the recent Kansas disposition, Suhr ventures, "may result in new litigation in Wisconsin."

Clearly intrigued by this point, Mr. Suhr at last wonders: "Will a Wisconsin judge or candidate soon challenge [60.06(4)] as such?"

Well, yes, a Wisconsin judge will indeed challenge SCR 60.06(4) "as such," at least just as soon as last February rolls around. In fact Daniel Suhr himself provides a link to a reply memorandum filed in Siefert v. Alexander, which he apparently neglected to read.

The oversight is understandable, I suppose, when one is beside oneself with evident glee at the prospect of an heroic Mike Gableman invalidating a rule of judicial ethics designed to discourage and perhaps prevent lying about a perceived political rival, the very rule that none other than Mike Gableman stands accused of violating.

As for the actual law school faculty bloggers, I heartily recommend Prof. Michael O'Hear's* highly informative weekly coverage of the United States Court of Appeals for the Seventh Circuit.

* Distinguished owner of the world's largest coffee cup.

Hillary is constitutional, says Tribe

Famous Harvard professor of constitutional law Laurence Tribe solves Sen. Hillary Clinton's Emoluments Clause dilemma by determining that the increase to the Secretary of State's salary actually occurred in the 1990s and not during Sen. Clinton's term in office, which began during the present century.

Prof. Tribe posits that the cost-of-living increase's implementation last January by Executive Order was simply an "all-but-automatic" response to the earlier legislation, in which Sen. Clinton had neither a hand nor even the opportunity to have had a hand, the prevention of which was the concern and intent of the provision's Framers.

All but automatic that is, except for an implied finding by the executive branch that the increase was appropriate, the only element Congress left to the discretion of the president.

Prof. Tribe's time-traveling conclusion appears at Balkinization.

Next up: Barack Obama is not a natural born Citizen of the U.S.

The Sage of the Seventh Circuit

Judge Richard Posner mourns not the demise of political conservatism, so long as it's accompanied by that of liberalism:

Thoughtful conservatives ... were appalled at the iconic status that Joe the Plumber attained in the Republican campaign, the wild rumors spread by the conservative bloggers and talk-radio hosts, and the intellectual vacuity of many Republican candidates and advocates.

The Republican Party seemed to have descended to anti-intellectualism — to deriding highly educated people who speak in complete sentences as "elitists," as compared to the down-to-the-earth ignorance of Joe and his ilk — which sorts badly with the strong intellectual tradition of conservatism.

Après les idéologues.

Posner felt he should pay a visit to the baboons. ... Posner stood for a minute more, peering at the dripping, motionless trio on the branch, then turned away, baffled.

The Bench Burner (Superlative New Yorker profile, 12/10/01).

Ken Ham is very sad

Here's (quite) a bit more on creationist bozo Ken Ham's latest comeuppance, via professional atheist/biologist PZ Myers.

While Myers's sarcastic triumphalism can be more than a little off-putting,* the dispute arose not as an objection to Ham's excessively fundamentalist brand of Christianity, but rather the cynical attempt to legitimize his preposterous fantasies by partnering with a bona fide scientific research facility, the Cincinnati Zoo.

* But Ken Ham claims it's good for business, so everybody wins.

Green Bay War On Xmas Remembered

Speaking of the War Against Christmas™, what better time than right now for a fond retrospective of last season's Packerland shenanigans:

Plant activist returns twigs to soil
This should be good
Chad Fradette: Wise man or sorcerer?
As your attorney I advise reindeer
Blasphemy corner

Creationists expelled from zoo

Yet another godless salvo in the War Against Christmas™ and the wholesale persecution of Christians generally:

The Cincinnati Zoo pulled out of the deal Monday after receiving dozens of angry calls and e-mails about the partnership, which offered reduced prices to anyone who bought tickets to the zoo’s Festival of Lights and the museum’s Christmas celebration, Bethlehem’s Blessing.

"It’s a pity that intolerant people have pushed for our expulsion simply because of our Christian faith," Creation Museum creator and antipodean mammal Ken Ham lamented in a statement.

"Screw you and the triceratops you rode in on," added Ham.

Obama to violate Constitution tomorrow

When he attempts to appoint Senator Hillary Clinton to the civil Office of Secretary of State:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ...

One potential solution is to roll back the Secretary of State's cost of living increase, which took effect last January, although the legislative directive for that increase was enacted during the 1990s.

That would likely satisfy the intent of art. I, § 6, cl. 2, but would still seem to violate its plain language: "shall have been encreased" doesn't appear to allow for just a net increase, but rather any increase that took effect during "the Time" (Clinton's tenure) whether or not there was a subsequent decrease.

On the other hand, according to Super Duper Strict Construction,* Mrs. Clinton is not a "he."

* h/t Arlen Specter.

Yeah, this is the Big Bopper speakin'

David Ziemer is a bit more upset with the Capital Times than I was.

Ziemer, who contributes exemplary reportage and analysis to the Wisconsin Law Journal, thinks it was pretty irresponsible of the Cap Times to suggest that Mike Gableman shares the personal views of his attorney.

To be sure, Ziemer is correct and the more firmly grounded assumption is that Gableman retained Indiana lawyer James Bopp, Jr. on account of the latter's enhanced competence and expertise in that field where election law and freedom of speech intersect.

But that doesn't mean his selection is insignificant. Because Bopp probably wanted the case as much as Gableman wanted him on it. Bopp is into challenging these restrictions all over the country.

Bopp is also lead counsel in another action currently pending before a federal court in Wisconsin, Siefert v. Alexander.

John Siefert is a Milwaukee County Circuit Court Judge who is likewise challenging the constitutionality of several provisions of the State's Supreme Court Rules, the ones pertaining to partisan political activities and direct fundraising by judicial candidates.

The adverse party, James Alexander, is the executive director of the Wisconsin Judicial Commission, which administers the SCRs.

Judge Siefert will be up for reelection in 2011, and he wants to participate in those activities which the Rules currently forbid. He (and Bopp) argues that judges can maintain those associations while not compromising their ability to remain fair and impartial in deciding cases. It's a not unreasonable suggestion.

But the provision Gableman is attacking, SCR 60.06(3)(c), is different from the ones Judge Siefert is going after. It has to do with defaming one's electoral rivals, which is probably something self-respecting candidates for the State's highest court shouldn't be engaging in and maybe even face sanctions when they do.

Defamation is generally not found among the absolutely protected categories of speech (such as virtual child pornography, American flag burning, and conservative talk radio).

Indeed, Gableman/Bopp expressly acknowledge that aspect of the Rule's intent, except they claim that its language isn't crafted narrowly enough to achieve that goal and that the Rule serves to capture and proscribe non-defamatory statements as well.

Maybe so, but that's why there's a judicial commission to evaluate and assess individual complaints arising under the Rules.

This is one among Gableman/Bopp's numerous objections, of course, including their defense that the "allegedly" misleading advertisement was simply an innocent and informative collection of disconnected, objectively true statements in no sense meant to suggest or imply anything further about Gableman's political opponent.

Yeah, right. As if the ad wasn't making a broader statement, the sum of its parts so to speak, supported additionally by the insidious visual and aural elements. It was also frankly demeaning and insulting to its intended audience and others, but that's a separate question and there's no Rule against overtly cynical, grasping political ambition.

Rather, it occasionally merits both encouragement and reward.

As Isthmus news editor Bill Lueders puts it,

Gableman wants the rule struck down, so future judicial candidates can more freely lie their way into office. What a fitting legacy that would be for Justice Gableman.

That's not an entirely unfair assessment, if you ask me.

Yet Justice Gableman's detractors had better start to brace themselves. If I were a betting man, I'd wager SCR 60.06(3)(c) will not survive First Amendment scrutiny, if this case happens to get that far. Nor would I consider it much cause for celebration.

But for Bopp/Gableman, it would be victory and vindication. Which is, to co-opt from the thrust of Gableman's legal attack against the Rule, also both prima facie wrong and especially wrong as applied.

Bob Fest MKE

Via Plaisted.

Billy 4
Union Sundown
Red Cadillac and a Black Moustache

Bopplicity

Madison's Capital Times this morning runs a couple of paragraphs about James Bopp, Jr., the Indiana lawyer who is handling the Wisconsin Judicial Commission's complaint against Mike Gableman.

Beneath the headline Gableman hires anti-abortion attorney to fight ethics charges, the Cap Times reporter infers:

If there was any question as to where newly elected Wisconsin Supreme Court Justice Michael Gableman stands on abortion or, for that matter, on a host of other social issues, his choice of attorney should provide some clues.

I don't know about that. Obviously abortion has nothing to do with the present action* and Bopp, Jr. is one of the go-to guys nationally on any number of right-wing causes célèbre.

Rather, it was Gableman himself who telegraphed his stances with the magic phrases "judicial conservative" and "plain language of the law," recited ad nauseam throughout his campaign (as if only "judicial conservatives" begin their inquiries with the "plain language of the law" — the point is, the plain language of two laws conflicting often creates ambiguities, which are what appeals courts are called upon to resolve, notwithstanding Gableman's sloganeering).

In any event, so long as the Roe v. Wade line of cases stands and Democrats control both Wisconsin legislative bodies, Gableman's legal opinion on abortion is unlikely to see the light of day.

Then again, if Gableman manages to survive his ten-year term and the tail end of it is served under President Sarah Palin along with Chief Justice Joe the Plumber, that could change.

Miles Davis — Boplicity (1949)

* Although some of the cases Bopp is likely to rely on in support of his First Amendment argument do. Not abortion per se, but the right of electioneering judges to speak about their views during campaigns.

Crime defending super heroes

One Wisconsin Now's Cory Liebmann casts a skeptical glance toward the Hon. Randy R. Koschnick's latest press release.

Judge Koschnick said he’s spent time listing to the law enforcement community.

Here's hoping that's a non-Freudian typo.

Follow the logic

Boots & Kittens, finally updated with six pages of new material.

The funniest website in Wisconsin.

Judges are often not like umpires at all

A faithful anonymous reader suggests I "cherry picked" from Jefferson County Circuit Court Judge Randy Koschnick's weekend interview with WISN-TV's Mike Gousha. Well, yeah, I guess I did.* Probably because there really wasn't all that much else to it.

Except perhaps Judge Koschnick's reiteration of an expression that seems to have insinuated itself into the vernacular of judicial politics in the wake of U.S. Supreme Court Chief Justice John Roberts's remarks during his Senate confirmation hearings in 2005.

"Judges are like umpires," Roberts told the Committee on the Judiciary. "Umpires don't make the rules; they apply them."

(He said this immediately after assuring the Committee, "Judges are not politicians who can promise to do certain things in exchange for votes." Maybe that claim applies to the federal system, in which judges are appointed by the president but not here in Wisconsin, where even justices of the State Supreme Court are elected following often highly politically charged campaigns.)

But judges do make the rules. Here's a fairly obvious and controversial example, from the pen of one of the most "conservative" judges in the country, Justice Antonin Scalia:

[G]enerally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.

That's the rule made by the Court in Employment Division v. Smith. Smith was an adherent of the Native American Church, one of whose sacraments is the ingestion of peyote, a hallucinogenic cactus blossom which is otherwise illegal — a controlled substance.

Smith got fired from his job and was later denied unemployment benefits by the State of Oregon because his dismissal was based on the "misconduct" of having eaten peyote.

As taking peyote was a sacrament of his church, Smith argued that his right to free exercise of religion guaranteed by the First Amendment was violated, since Oregon had deemed his religious practices misconduct by way of denying his UI benefits.

Because the Constitution doesn't give any direction as to how to proceed when someone claims such a violation, the Supreme Court makes the rules governing how the lower courts (and itself, for the fans of stare decisis) should go about evaluating such claims.

According to Justice Scalia, the government may make and enforce laws burdening your claimed right to freely exercise your religion so long as the law in question is potentially applicable to any person and otherwise neutral with respect to religion.

If the government manages to meet both of those criteria, then the government needn't additionally demonstrate a "compelling interest" when it goes about enforcing — or even simply defending — the law.

("Compelling interest" refers to yet another set of rules the Court has devised which it uses to evaluate laws in the Constitution's light.)

That rule defines — to extend Chief Justice Roberts's baseball simile — the dimensions and parameters of the strike zone.

And that is the rule made by Justice Scalia and his colleagues. It doesn't appear anywhere in the text of the First Amendment or elsewhere in the Constitution. Nor do many, many other rules made by all manner of judges from "strict constructionist" to "activist."

So, Anonymous 10:27, Stee-rike two.

* At least, according to an overly generous definition of cherry picking. Because that's just the kind of guy I am.

A preview of the Koschnick campaign

This touch of hyperbole from a brief teevee interview with the Hon. Randy R. Koschnick, the Jefferson County circuit court judge who's running for a seat on the Wisconsin Supreme Court:

Mike Gousha: Do you think Justice Abrahamson has been legislating from the bench?

Randy Koschnick: I do.

Gousha: Can you give us an example of where you think she's done that.

Koschnick: Sure. In the Dubose case. It's a criminal case, State v. Dubose, decided about three years ago. She was part of the majority that decided that police officers in Wisconsin could no longer conduct these showup procedures in most circumstances. That had been a long-used crime fighting tool.

When there was a crime reported — for example a robbery — if the police could locate a suspect who matched the description in the vicinity, they'd put him in a squad car and show him to the victim and identify him and either let him go or arrest him. And under this decision, Justice Abrahamson has overturned years of precedent and prohibited police from engaging in that procedure.

A showup identification is kind of like a police lineup, except the only person in it is the suspect, often handcuffed and sitting in the back of a squad car and appearing already an awful lot like ... a criminal.

Dubose doesn't "prohibit" any police procedure. It's an evidence case, decided according to the requirements of Due Process. Police officers can still conduct a showup and the State can still attempt to have the results admitted as evidence in court.

While it's true that Dubose made the State's burden more onerous than it was previously in having such evidence admitted, these showups can be highly suggestive and thereby often unreliable.

That's mostly what Dubose is about: reliability of evidence.

But if Dubose "prohibited" anything, then its author, Justice Patrick Crooks, wouldn't have written this:

[W]e decline to adopt [Dubose's] proposed per se exclusionary rule regarding such evidence.

Per se in this context means evidence obtained from an out-of-court showup identification would be inadmissible in court no matter what.

And even if all evidence obtained from any showup identification was per se inadmissible, that still wouldn't "prohibit" law enforcement from using the procedure as a "crime fighting tool."

As for legislating from the bench, Dubose is hardly that. It's rulemaking, which is what appeals court judges do all the time, despite Koschnick's claim that they only "call balls and strikes."

Have your people call my people

The Hon. Randy R. Koschnick, a Jefferson County circuit court judge who is challenging incumbent Wisconsin Supreme Court Chief Justice Shirley Abrahamson, recently penned a letter to the latter, inviting her to sign a "clean campaign pledge."

"Dear Madam Chief Justice," it says. "Please contact my campaign coordinator, Todd Allbaugh, to advise of your decision."

Isn't that just a tad presumptuous? Write the C.J. a personal missive requesting that she get in touch with one of your people?

Has Judge Koschnick never heard of primary authority?*

Although the pledge itself isn't made part of the .pdf file linked above, among its "highlights" is a promise to "substantiate all claims made during the course of the campaign." That's a pretty tall order. Like strict constructionist Clarence Thomas said, all means all.

Besides, Koschnick was first out of the gate calling the C.J. an "activist judge," so he better get to substantiating his own self.

During last winter's Supreme Court contest between Louis Butler and Mike Gableman, a third party group convened under the aegis of the State Bar Association formulated a likeminded pledge. Butler signed it, but Gableman never did (for obvious reasons).

Another highlight of Koschnick's pledge is "repudiating false accusations made by third party groups."

I might add to that, "against your political opponent." Because if the same third party groups that aligned themselves with Mike Gableman situate similarly with Randy Koschnick, repudiating their false accusations will be a full time job, and then some.

In fact if I recall correctly, I don't think a single one of them ever managed to make a true accusation. Not that they even tried.

Were I advising Chief Justice Abrahamson, I'd suggest that she take a polite pass on Koschnick's offer. Having run three of these campaigns over the past 32 years and observed a whole bunch more, I would imagine she's had a handle on the attached ethical considerations well in advance of Koschnick's notions.

Not to mention, the cynic in me (98.6%) detects a political ploy.

Also, while it might provide him with an instant talking point, he'll be forced to abide by his own pledge in somehow not mischaracterizing the reasons why the Chief Justice graciously so declined.

And that could be entertaining.

* Note to the occasional reader who I understand finds their hapless way here under the laughable impression that "The Champagne of Hate Blogs" is a straight-faced characterization: That's also a joke.

See generally: Death of irony confirmed.

In re Gableman: A guest blog

by Sachin Chheda

The justice who made it okay for judges to lie

Wisconsin media are reporting (see here and here) that State Supreme Court Justice Mike Gableman is fighting hard against the Judicial Commission action to discipline him for lying during last spring’s Supreme Court election. As the manager for the incumbent, Justice Louis Butler, I saw firsthand the sleazy tactics and the lack of accountability of the Gableman campaign.

And it wasn’t just Butler partisans who complained about Gableman’s tactics. Universally, observers condemned the Gableman campaign. While we stood by our pledge to run a positive campaign, Mike Gableman was roundly criticized, not just by progressives, but by conservatives and by national publications, for the unbelievable ad he ran falsely attacking Justice Butler’s work while a public defender.

Gableman now makes the argument that he should be allowed to lie, because the First Amendment requires allowing it. I’m not a lawyer, but I’m an American, and I would be very concerned if our basic rights under the First Amendment were threatened for political purposes. But that’s not what’s happening here in the Judicial Commission’s case against Gableman, nor in the criminal complaint that has been filed against him in Polk County (which the Polk County DA is sitting on).

The way I see it, the First Amendment says the government cannot punish Gableman for lying in his capacity as a private citizen. In a general sense, he’s free to lie about anything he wants, and if he's just a regular guy off the street, like Joe the Plumber (who also fudged the truth, but I digress), he shouldn't be arrested, put in jail, or fined. He should be able to lie freely, as long as he's just a regular American like the rest of us.

But once he stands for public office, we, the people, have every right to expect him to not lie. We can, and should, create consequences for when public officials lie. After all, we’re the “bosses” of public officials, right? You can be fired for lying to your boss, right? You can be docked a day's pay, right? Does anyone believe that a boss shouldn’t be able to fire a worker for lying to the boss?

Mike Gableman lied to the people of Wisconsin, and he did it to get a promotion. He was a sitting judge, and he violated the ethical constraints of his job — of his profession.

At its core, Gableman's counterclaim is that he wants to get rid of the rule that judges can't lie. Does that mean that there is no accountability for judges, save an election that can be manipulated by lying? It's patently ridiculous.

I think his actions defending the right of judges to lie call into question Mike Gableman’s fitness to be a judge, let alone a member of the state's highest court. Those who supported him should be embarrassed by his continued defense of this racist, shameful and untruthful advertisement, and his legal machinations to end accountability for lying judges.

Sachin Chheda is a consultant in Milwaukee who works primarily with political campaigns and nonprofit organizations. He served as campaign manager for Justice Louis Butler’s bid to retain his seat on Wisconsin’s Supreme Court in April, 2008.

Gableman then and now

Then:

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to rape another child.

Now:

Justice Gableman denies the Advertisement states "that Louis Butler had any responsibility for or involvement in Mitchell's release from prison in 1992 or that any action by or work of Louis Butler had anything to do with Mitchell's commission of the subsequent criminal molestation referred to in the Advertisement."

At the very least, the Advertisement most certainly does "state" that Louis Butler worked to put Reuben Lee Mitchell on the street. And the clear suggestion is that Butler's work did put Mitchell "on the street," which is where he committed the subsequent offense.

Gableman Answer* (.pdf; 13 pgs.).

* Short version: Justice Gableman denies violating the Wisconsin Supreme Court Rule and even if he did, the Rule itself is an unconstitutional abridgment of his freedom of speech.

Talk about lazy

Today I saw a sign on a pick-up truck that read, "AAA batteries delivered and installed." Cheaper to just buy another remote.

Against the person

Apparently there has been a lot of chatter over this article about local squawk radio that appeared last week in Milwaukee Magazine. And at least one of its subjects reportedly devoted a considerable amount of energy to responding (read: gesticulating) in its general direction.

But as Bruce Murphy sums up today,

rather than addressing [the article's] specific observations, Charlie Sykes mostly heaps scorn on [its author].

That should come as a surprise to nobody.

Erratum

I mentioned yesterday that while Jefferson County Circuit Court Judge Randy Koschnick managed to deploy the several magic Republican code words "judicial conservative," "activist," and "legislate from the bench," he left out "restraint."

Seems I was mistaken:

"A judicial conservative like myself believes in judicial restraint," Koschnick said.

And, for good measure, "Scalia" and "Clarence Thomas."

Also, this intriguing observation:

Koschnick said that his record as a public defender may be used against him in the campaign.

By whom, and for what purpose, one has to wonder. I think I can guarantee that it won't be used against him by Chief Justice Abrahamson. Wisconsin Manufacturers & Commerce, perhaps?

Or maybe Judge Koschnick's own (no pun intended) campaign team.

The University of Wisconsin Badger Herald's report describes the spring 2008 judicial race as being "marked by intensely negative campaigning from both campaigns." If this is supposed to be a statement of equivalency, then it's ridiculous. It's also a trope that was uncritically foisted locally by the Milwaukee Journal-Sentinel.

Let's hope they pay closer attention this time around.

Après le deluge, Prince

When asked about his perspective on social issues — gay marriage, abortion — Prince tapped his Bible and said, "God came to earth and saw people sticking it wherever and doing it with whatever, and he just cleared it all out. He was, like, 'Enough.'"

And then it never happened again.

Answers in Genesis.

Loophole Randy

Jefferson County Circuit Court Judge Randy R. Koschnick, who today announced his upcoming challenge to Wisconsin Supreme Court Chief Justice Shirley Abrahamson, worked as a public defender for 14 years prior to securing his present occupation.

As we all learned last spring, being a public defender involves "looking for loopholes" through which to set hordes of indigent criminal defendants loose on the streets so they can reoffend.

Even decades after the public defender has become an appeals court judge, he's still doing it.

Looks like Wisconsin Manufacturers & Commerce may need to retool its multi-million-dollar advertising campaign and their fluffers like Charlie Sykes will have to fabricate a whole new schtick.

In another sense, however, we could be in for more of the same:

Judge Koschnick said he was a judicial conservative and that his opponent was an activist who legislates from the bench.

The only missing magic word there is "restraint."*

His consultant is Darrin Schmitz, a Republican who ran Gableman's campaign for the court earlier this year.

That's one busy consultant.

I must say, Schmitz is an excellent choice and should serve well to erase any residual cynicism left over from that most recent contest.

:rolleyes:

* Please see Erratum, supra.

McAdams takes on ladies' underwear

It's been awhile since I've checked in with local professor and crankpot John McAdams to see what he's upset about. Today's outrage: t-shirts and baggy sweatpants with college logos.

"It’s disgraceful and appalling," said Boston College graduate C.J. Doyle, who runs the Catholic Action League of Massachusetts. "This is just one more example of the university’s callous contempt for Catholic sensibilities and its complete indifference to what remains of its Catholic identity."

This is what they're on about, if you can believe that. Unless "Catholic sensibilities" means 'You must be nuts to pay 55 bucks plus tax for a hooded sweatshirt,' in which case, Bless me Father.

You can have a look at Victoria's Secret's horrifying and blasphemous collection of university-themed items here. (Work- and school-safe.)

Full disclosure: This post composed whilst clad only in boxer shorts.

Number 5, number 5, number 5 ...

Reserve not met.

Revolution 1 (Side 4, Track 1)

Sexy Sadie — Paul Weller

Dear Prudence — Siouxsie & The Banshees

Happiness Is A Warm Gun — The Breeders

Cry Baby Cry (Side 4, Track 4)