November 30, 2008

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.

November 28, 2008

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.

November 26, 2008

Bob Fest MKE

Via Plaisted.

Billy 4
Union Sundown
Red Cadillac and a Black Moustache


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 DavisBoplicity (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.

November 25, 2008

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.

November 24, 2008

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."

November 22, 2008

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.

November 21, 2008

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.

November 20, 2008

Gableman then and now

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.
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.

November 18, 2008

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.


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.

November 17, 2008

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.


* Please see Erratum, supra.

November 16, 2008

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.

November 15, 2008

Number 5, number 5, number 5 ...

Reserve not met.

Revolution 1 (Side 4, Track 1)

Sexy SadiePaul Weller

Dear PrudenceSiouxsie & The Banshees

Happiness Is A Warm GunThe Breeders

Cry Baby Cry (Side 4, Track 4)

November 14, 2008

Clearly erroneous

The Milwaukee Journal-Sentinel this morning reports on the decision of a Wisconsin Court of Appeals yesterday which reversed a lower court's denial of a petition for conditional release from custody brought by a man who killed three people at a church in 1985.

Bryan J. Stanley was found not guilty by reason of mental disease or defect and has been in institutions since.
La Crosse County Circuit Judge Ramona Gonzalez denied Stanley's release in November 2007. The appellate court can overturn such decisions only if the judge's decision was "clearly erroneous."
More specifically, if the circuit court's interpretation of facts is clearly erroneous.
The appellate court, in a unanimous decision written by Judge Burnie Bridge in Madison, found that Gonzalez had ignored the evidence.
No, that isn't what the appeals court found and this is an unfair characterization. Judge Gonzalez certainly hadn't ignored the evidence, which was primarily the unrebutted testimony of physicians in support of Stanley's request for conditional release.

According to yesterday's opinion (.pdf; 12 pgs.), what the lower court did was place undue and ultimately erroneous emphasis within the record of Stanley's history of taking anti-psychotic medications.

For the past 15 years, Stanley has been on a drug called Clorazil. Prior to that and since his trial, he was on Prolixin, which he refused to take for one day in 1993, when his prescription was changed to Clorazil. By all accounts the latest regime has been successful.

More important to Judge Gonzales, presumably, was that before the killings Stanley was on a third medication which he stopped taking on three occasions, during one of which he committed the crimes.

Judge Gonzalez inferred from these facts the future likelihood of Stanley going off his current medication and denied the petition. The appeals court found that the factual basis for this inference was lacking. It did not find that Judge Gonzalez "ignored" any evidence.

Quite the opposite, in fact. If anything, she erred on the side of overly cautious attention to — not ignorance of — evidence.

The fundamentalists are strong

This video is making the rounds, featuring financial analyst Peter Schiff getting mocked and derided by a variety of Fox News "journalists" and commentators over the last couple of years.

Appropriately, it's a footnote to the Wikipedia entry on Arthur Laffer, a prolific writer and long time Reaganite trickle down supply-sider. In the clip, it is he who gets the Laffing started.

Intelligent design fluffer Ben Stein recommends his stock picks, including Merrill Lynch, which he describes as "an astonishingly well run company" and a great bargain. He predicts stocks to be "a heck of a lot higher a year from now" in August 2007, when Merrill Lynch was trading for 56 dollars per share. MER closed yesterday at less than 14 bucks. Subprime mortgages? Merely a blip, says Stein.

Another Fox business prophet foresees the DJIA at 16,000 points. It's about half that this morning. Laugh, Cavuto, laugh.

November 13, 2008

Wild Bill Donohue

Goes berzerk. What a festival of non sequiturs.

"Gay terrorists!" "Jeffrey Dahmer had a conscience too!"

WGOP in Milwaukee

"Activist judges" are the scourge of the earth when they rule it is unconstitutional to deny same-sex couples the rights heterosexuals receive. But judicial activism is needed to stop the husband of a woman in a persistent vegetative state — say Terri Schiavo — from removing her feeding tube to end her suffering.
The author of this entertaining article about the local radio squawkers calls that effective debating. I call it rank hypocrisy.

November 12, 2008

The Seven Aphorisms of Moses

The indispensable SCOTUSblog has a thorough discussion of Pleasant Grove City, UT v. Summum, the oral arguments in which the U.S. Supreme Court will hear this morning.

While it involves the Ten Commandments, it isn't a First Amendment religion clause case — that is, it (supposedly) doesn't directly implicate the "separation of church and state" — but rather turns on a number of questions involving freedom of speech.

Summum wants to erect its "Seven Aphorisms" alongside existing Ten Commandments monuments in a couple of Utah public parks but televangelist/weightlifter Pat Robertson's associate Jay Sekulow doesn't want them to.

Of course Sekulow is a big fan of plastering some version of the Ten Commandments in every available square and cubic foot of public space, but when it comes to the Seven Aphorisms, not so much.

Pleasant Grove, UT didn't want them to either, arguing that Summum lacks a longstanding association with the community, even though the Fraternal Order of Eagles set up the Ten Commandments in 1971 following two whole years of local incorporation.

And the federal government acting as a friend of the Court is afraid that, depending on the breadth and slope-slipperiness of the Supreme Court's ruling, a town with a monument to 9/11 might be forced to accept one from admirers of Osama bin Laden.

I'm sure the Summum people appreciate that analogy.

Unfortunately the Court won't be entertaining arguments related to the competing legitimacy of either party's claims as to which god said what things to someone called Moses and how and when and why.


Only a lawyer could entitle a point-form guide to raising a client's mental incompetency as a potential defense "Nuts and Bolts."

Astrud GilbertoHow Insensitive

November 10, 2008

Palin "frantically" rummaging through wardrobe

One of the more ridiculous elements in the endlessly ridiculous saga of AK Gov. Sarah Palin consists of reports from last week that Republican lawyers were to visit Alaska to take inventory of the tens of thousands of dollars worth of clothes and accessories purchased for or by the former candidate and her family.

Although Palin denied that any lawyers are "coming to her house," there really is an inventory underway, but it isn't clear whether or not underwear has become a legitimate campaign expense.

emptywheel has the poop.

November 8, 2008

North African Free Trade Agreement

If there are allegations based on questions or comments I made in debate prep about NAFTA — about the continent versus the country when we talk about Africa there — then those were taken out of context.

Pizza sauce

The Journal-Sentinel asks, 'Who serves the best pizza?'
The Critic
Friday Nov 07, 2008 2:58 PM
If you want real pizza, try DiGiorno's.

Friday Nov 07, 2008 3:10 PM
Blow me, Critic.
Either the Journal-Sentinel has stopped moderating its reader comments or else that's a vote for Organ Piper in Greenfield.

Ensuring Obama's second term

When asked to choose among some of the GOP’s top names for their choice for the party’s 2012 presidential nominee, 64% [of Rasmussen poll respondents] say Sarah Palin.
They still have a couple of years to regain their senses.

But see: Serious conversationalists favor Newt G.
He confessed to me his presidential desires for 1996 [and] never abandoned the personal dream. — R. Novak
Mitt 2012: "Ready, when you all come crawling back."

RFK Jr. should keep his day job

When I first heard that Barack Obama was reportedly considering Robert F. Kennedy, Jr. for a cabinet level position, my first thought was 'You have got to be kidding me.' Having heard him speak a few times, he strikes me as a conspiracy theorist and a hyperbolic nut.

Apparently it's quite a bit worse than that, and the science blogger who calls himself "Orac" has much, much more here.

Obama should think about re-appointing Christie Todd Whitman to head up the Environmental Protection Agency. She had the position early on in the first G.W. Bush administration but resigned rather than genuflect in obeisance to Dick Cheney.

Not only is she smart, competent, and experienced, but the political benefit would be great, considering that Obama owes much of his victory to dissatisfaction with the likes of Cheney.

November 7, 2008

This is funny, though

Proposition R would change San Francisco's Oceanside Water Pollution Control Plant to the George W. Bush Sewage Plant.
But, too costly.

Obama's first feeding frenzy

Joking about former First Lady Nancy Reagan holding séances may be funny to some people, but it's not the sharpest presidential move.

At least Obama needs to force the screeching Malkinoids to work for their table scraps, and not spoon feed them from a silver platter.

Items RNC does not want back

Todd Palin's silk boxer shorts.

Greta's video highlights: First Dude.

The stupid party

Let a conservative say it so you don't have to:
Sarah Palin is now the heroine of the Republican base. Scary. During the campaign it became obvious that she is completely ignorant on the principal issues. It never became widely known that she is a religious nut: she believes in the imminent End of Days and the "Rapture," in which the saved will be suddenly wooshed up to heaven — a notion that has no basis in scripture or anything else. She believes she was elected governor because of a laying-on-of-hands by an African clergyman who had run a witch out of town for causing automobile accidents.

This stuff makes William Jennings Bryan look like Martin Heidegger.
Jeffrey Hart, Reagan speechwriter.

Obama to declare martial law

Just as soon as his terrorist plots come to fruition.

Remember, Cynthia Dunbar, Esq. told you so.

GOP not intolerant enough: Perkins

Tony Perkins, who runs another one of these religious "family values" outfits, has taken to blaming moderate Republicans for Tuesday's devastating Electoral College loss to the rival Democrats.

Nevertheless, Perkins derives great solace from the fact that the relentlessly evil homosexualists were defeated in three States that had "marriage protection" initiatives on the ballot.

(Although Perkins and pals failed rather spectacularly with the Colorado "eggmendment," one of the strangest preemptive constructions of the 14th Amendment ever proffered.)

"What has made the conservative movement strong is when you have social conservatives, fiscal conservatives, and foreign policy conservatives working together," Perkins said at an underground meeting of Republicans in Virginia yesterday.

Hard to say whether a foreign policy conservative is an isolationist or a warmonger, but aren't there a lot of fiscal conservatives who don't really care so much for what the gays get up to?

Perkins loves his demons, to be sure, but I get the impression that most Americans have more worthwhile objects of concern these days.

November 6, 2008

Deep thinkers will ponder GOP future

Conservative intellectuals plan to meet
A prominent group of conservative thinkers ... Rich Lowry, Bill Kristol, David Brooks, Ramesh Ponnuru, Jonah Goldberg, Maggie Gallagher, Ed Whelan and Andy McCarthy.
If this is what passes for intellectuals these days, then the Republicans are in far worse condition than anticipated.

The meltdown

Funny that it's Fox News pushing this stuff.
She didn't know what countries were in NAFTA ...
This clip with Bill O'Reilly's excuses is even wackier. I'll give her a pass on the "Wilsonian exceptionalism." That's a bit subtle.

Adviser Scheunemann fed Bill Kristol a "stream of poison."

Operation Leper (h/t Pundit Nation)

And there came a leper to him, beseeching him, and kneeling down to him, and saying unto him, If thou wilt, thou canst make me clean. And Jesus, moved with compassion, put forth his hand, and touched him, and saith unto him, I will; be thou clean. — Mark 1:40-41

November 5, 2008


The Great State of Alabama returned Jefferson Beauregard Sessions III to the United States Senate Committee on the Judiciary, where he will tirelessly fend off all of Barack Hussein Obama's Marxist judges.


It's a great day to be a permanent legal resident of America.

(And a citizen, I would imagine. Thanks for voting.)

November 4, 2008

In defense of lying, McIlheran lies

Buried in Milwaukee Journal-Sentinel columnist and "right-wing guy" Patrick McIlheran's otherwise pedestrian response to this weekend's Jackson County shenanigans resides the following boner:
As Barack Obama has been pointing out lately, it is mere days until his supporters profoundly change America by electing him president, an office in which he can appoint justices with empathy for the dispossessed rather than any punctiliousness about legalities.
This is, of course, a bald lie. Obviously Obama never said he values empathy over meticulous attention to the law. If anything, he said he values empathy in addition to judicial scrupulousness.

As befits his usual customs, this is not the result of McIlheran's own profound cogitation. No, he picked it up during one of his "daily staggers" through the National Review:
As the brilliant Thomas Sowell pointed out the other day, such empathy triumphing over legalities is exactly the death of the rule of law.
At least it wasn't Jonah Goldberg or one of the other resident NRO jackanapes. Nevertheless, Sowell's scaremongering gobbledegook equals any of those in sheer overwrought fatuousness. "A court case should not depend on who you are and who the judge is," he sniffs.

Well, no, it shouldn't. But it often does, even now, and Barack Obama hasn't appointed a single judge yet. So maybe he can rectify that.

Among a number of statements Obama has made on the subject was this, during (notably) the Democratic primaries last year:
We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.
Conservative commentators have been whining, howling, burning grotesque strawmen in effigy, and most recently inveighing against the imminent wholesale destruction of the Republic ever since, as if it's the only criteria Obama intends on applying.

(Even if it was, there's nothing constitutionally unsound about it, as "good Behavior" is the sole prerequisite for federal judges.)

The "brilliant" Thomas Sowell even claims Obama's subterfuge is part of his secret agenda to "kill off the Constitution," rendering even Steven G. Calabresi's hysterical meanderings positively benign.

In support of these phantasmagorical premonitions, Sowell cites a contentious U.S. Supreme Court decision called Kelo v. City of New London. In that case, a Connecticut municipality confiscated an old woman's shack to make way for a construction development. It did so under the Constitution's Takings Clause, which forbids the taking of private property for public use without just compensation.

This is an unwittingly foolish citation for at least three reasons (and the mere fact that Patrick McIlheran believes Thomas Sowell is "brilliant" on this particular question leads to a reasonable suspicion there must be many, many more).

First of all, the Court has never substituted "public purpose" for "public use," as Sowell misunderstands. (After all, he's an economist and not a lawyer, so what do you expect. Lawyers, for their part, readily admit that they can't count.)

Rather, the question of whether the taking of private property serves a public purpose is a test to determine whether the taking is for public use.

The Court applies these sorts of tests all the time. While one may reasonably argue over whether the test will yield a satisfying result, or whether applying such a test is a suitable means of comparing legislation to the Constitution at all are separate questions. But Sowell is just flat wrong that the Court rewrote the Constitution.

Nor is the public purpose test a wholesale invention of Kelo. It dates to the latter half of the 19th century, that Gilded Age when the Supreme Court was often little more than a rubber stamp for Patrick McIlheran's dearly beloved industrialists.

In fact only one Justice rejects the public purpose test outright: the literalist outlier Clarence Thomas. Nobody joins his dissent, not then-Chief William Rehnquist, and not even conservative avatar/Saint Antonin Scalia.

Second, in a very important sense, Kelo is something of a triumph of local discretion over all nine of the black-robed elitists ensconced at imperial federal headquarters in Washington, D.C.:
Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us ... to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. * * *

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.
Under more convenient circumstances, these are the sentiments of modest deference much adored and oft-articulated by self-styled judicial conservatives. Kelo, alas, presents a matter of grave inconvenience to the usual conservative federalist tub-thumping.

Finally, many of the conservative objections to the result in Kelo had to do with the biographical details of the person at the heart of the case, Suzanne Kelo. And much of that objection focused on — you guessed it — sympathy for her personal travails and tribulations.

As a matter of fact, just a few months ago none other than Patrick McIlheran his own self decried the Kelo decision for treating people like "insects." Empathy for the (literally) dispossessed, indeed.

What changed since then? Obama, and the Need to Fear Him.

Kelo aside, unfortunately that is where the law leads sometimes, especially in the hands of cramped obsessives like Justice Clarence Thomas and apparently even McIlheran would prefer a federal judiciary that views people as people, and not just "insects."

And that is all Barack Obama is saying. As for the examples of minority groups to whom he refers, it is for their protection specifically that the Bill of Rights was drafted and ratified.

Sowell and pals, on the other hand, are simply buying up and reselling a Bill of Goods: the blatant pandering to ignorance and fear that has been the central theme of the Palin-McCain presidential campaign.

Ultimately, Fear is what John McCain has to offer. Reject it.

November 3, 2008

As gullible as Britney Spears

"There are only two people that we've pranked that never caught on that it was a joke and that we had to explain it to them at the end — Sarah Palin and Britney Spears," marveled telephone prankster Marc-Antoine Trudel.
How very ironic, considering the first major McCain campaign teevee ad buy featured Barack Obama compared with ... Britney Spears.

Tomorrow the irony turns to poetic justice.

CFAF and its TRO

The Milwaukee Journal-Sentinel has another update on the political speech scuffle between the Coalition for America's Families and a candidate for Wisconsin's 92nd Assembly District, Mark Radcliffe.

CFAF is understandably disturbed that a Jackson County judge on Saturday issued a temporary restraining order against the "shadowy" tax-exempt outfit — its permanent address is reportedly a post office box — for running a radio advertisement that Radcliffe claims is defamatory and violative of Wisconsin election law.

And the judge declined to rescind his order at a hearing yesterday.

Also, has published a CFAF press release, which claims that
Judge Lister said he was informed that an action was headed his way early Friday afternoon at which time he contacted the FCC. The FCC informed the Judge that a temporary restraining order against the radio stations would constitute a prior restraint of free speech and would therefore be unconstitutional. He issued the order anyway.
Except the order doesn't enjoin any radio stations, it enjoins the defendant, CFAF, from "causing" its advertisement to be broadcast.

Radcliffe's attorney forwarded the judge's order to radio stations with a cover letter, and they may make of it what they will.

There's likely to be more excitement later today. And if the defendant was anybody other than the Coalition for America's Families, I might even have some sympathy for them.

Update: The temporary restraining order is suspended (.pdf; 3 pgs.) — but not yet voided, pending Radcliffe's response — thanks in part to Benjamin L. Ginsberg (remember him?) of Washington, D.C.

If this rhubarb winds up in the Supreme Court (which it probably won't) it would surely require Justice Mike Gableman's recusal.

Meanwhile, resume practicing "Family Values."

Paranoia from A to Z

Courtesy the Brew City Brawler:

The ABCs of right-wing attacks on President Obama.

November 2, 2008

How to solve the Obama presidency

Stop tipping the servants.

Well, that settles it, then

Plumber Tells Palin Obama's a Socialist
Pat Garrett, a country singer, spent what seemed like several days on the stage. He asked if there were any requests. Apparently, "get off the stage" wasn't one of them.
AK Gov. Goes Vegan at Cow Palace Palinpalooza

An execrable, Orwellian fetish

Glenn Greenwald reminds us that the U.S. President is Commander in Chief of the national military and State militias, not of civilians, and even then only "when called into actual Service" by the Congress.

In fact the President is himself a civilian.

For all the popular talk of "wars" in Iraq, Afghanistan, and now, apparently, in Iran, there has been no such formal declaration of war, which only Congress is empowered by the people to make.

Once again, so much for the "strict constructionists."

November 1, 2008

Early voter perturbed by early voters

D.C. media elitist forced to jostle with poor, elderly

"I have an excuse." — Beltway Boy Frederic W. Barnes

Understatement of the Year

Audette, posing as Sarkozy, speaks in an exaggerated French accent and drops ample hints that the conversation is a joke. But Palin seemingly does not pick up on them.
Associated Press

For nearly six minutes, AK Gov. Sarah Palin actually believed she was speaking with Nicolas Sarkozy, the President of France. In fact, the only thing Palin seems to know about the real Nicolas Sarkozy is that he recently married a "former hot top model."

Palin evinces not a hint of skepticism throughout, despite Audette's outrageously phony accent — "from my ass I can see Belgium" — and ridiculous references to the "French Elvis" Johnny Hallyday and "the Prime Minister of Canada" Stef Carse, a Quebec entertainer best known for his Francophone rendition of Achy Breaky Heart.

Canada's Prime Minister is Stephen Harper, a Conservative who just won re-election two weeks ago, as even Sarah Palin should know, since the alleged centerpiece of her governorship is a $26b natural gas pipeline running 1500 miles through that country.

Yet Palin simply prattles away, reciting from her stump speech.

The Palin-McCain campaign claims she was "mildly amused" by the stunt. It sure doesn't sound like it, as the prank is exposed and Palin demands the radio station's call letters, then hands the phone back to her assistant with a disgusted "For Christ's sake."

Many Americans are unconcerned about this country's perception throughout the world, and I suppose I can understand why that is.

But an astonishingly witless and revealing performance like this latest of Sarah Palin's does little to improve that perception.

Blame Canada

A Quebec comedy duo notorious for prank calls to celebrities and heads of state has reached Sarah Palin, convincing the Republican vice-presidential nominee she was speaking with French President Nicolas Sarkozy.

Montréal's Masked Avengers intend to air the full six-minute interview on the eve of the U.S. elections, Monday, Nov. 3.
Tune in online at CKOI 96.9.

eta: Never mind that, it's here. (rofl@Johnny Hallyday.)

Good grief. Gullibility incarnate.

Dick for McCain

At long last, the coveted Cheney endorsement.

Lying: It's a Family Value

Our old friends at the tax-exempt outfit the Coalition for America's Families, who lied and lied and lied their way through last spring's Wisconsin Supreme Court election campaign, are at it again.

This time their lying ways have been brought to the attention of a Jackson County judge, who this morning issued a temporary restraining order against CFAF, which is running radio ads critical of a Democratic candidate for Wisconsin's 92nd Assembly District.

Not only are CFAF's statements most likely false in violation of a State elections statute, writes Circuit Court Judge Thomas Lister, but they were just as likely made with actual malicious intent.

Meanwhile, here's what you'll find on CFAF's website:
The Coalition for America's Families has continually supported policies that set a strong example for our families. CFAF has lent their support to efforts that give our community leaders the ability to follow their moral compass.
Such as malicious lying, from the looks of it.

More: CFAF claims ex parte (by one party) orders violate the First Amendment, describes temporary ruling as "banana republic."

See above.