Koschnick's favorite judicial activists

Nearly four months into his candidacy for a seat on the Wisconsin Supreme Court, voters can still be forgiven for not knowing what the heck Jefferson County Circuit Judge Randy Koschnick is on about, apart from being a garden variety rehearser of vacuous conservative Republican talking points.

Yesterday during an appearance with Mike Gousha on WISN-TV's Up Front, Judge Koschnick kept up fronting his standard "I'm a judicial conservative" line as opposed to the incumbent, Chief Justice Shirley Abrahamson, who Koschnick continually refers to as a "judicial activist."

While Koschnick takes pains to differentiate between "judicial conservative" and "political conservative" — he insists he's "not running as a political conservative" — within moments he's describing the Chief Justice as at "the opposite end of the spectrum" from him, dividing the United States Supreme Court into "the left" and "the right," and even helpfully naming names.

"Opposite end of the spectrum" ... "the left" ... "the right" ... Apparently Koschnick actually expects people to believe that all of these references supposedly have nothing to do with political or partisan identity but only with the purity of his jurisprudence.

Asked by Mike Gousha to clarify, Koschnick once again compares himself to the Justices of the U.S. Supreme Court he admires most, including Antonin Scalia, even though Justice Scalia's own written words utterly contradict Koschnick.

According to Koschnick, the standard by which judges are deemed to reside on either side of the "activist" or "conservative" dichotomy is found in their propensity to strike down acts of the legislature.

He makes this very clear:

Mike Gousha: Tell us about the greatest difference between you and [Abrahamson].

Randy Koschnick: It's our judicial philosophies. I am a judicial conservative. I believe that justices on the Supreme Court such as the Wisconsin Supreme Court should apply the constitution the way that it's written and that we should give deference to the legislature when they pass a statute, rather than looking for ways to overturn statutes.

Justice Abrahamson is from the other end of the spectrum and she is an activist justice who frequently votes to overturn statutes passed by our legislature.

Gousha: She says the term activist is meaningless. It basically means you don't agree with her ruling. What do you say to that?

Koschnick: Well, I think that most people understand what I mean when I say activist. You have the same philosophical divide on the United States Supreme Court and on almost every other State Supreme Court around the country.

[On] the United State Supreme Court, for example, you have the strict constructionists like myself, the conservative justices like myself — judicially conservative, not politically conservative ...

Gousha: Do you think the public makes that distinction?

Koschnick: I think so, I think when you explain it to them, when I explain it to them they seem to understand. I'm not running as a political conservative, I'm a judicial conservative which means I believe judges should exercise judicial restraint and not legislate from the bench. Leave legislating to the legislature.

And on the U.S. Supreme Court you have John Roberts, Antonin Scalia, [and] Clarence Thomas as the conservatives, you have Ruth Bader Ginsburg and John Paul Stevens as the activists. We have the same breakdown in Wisconsin. Justice Abrahamson is over here with Justice Ginsburg on the left and I'm over here on the right with Clarence Thomas and Antonin Scalia and John Roberts.

Thus, the benchmark Koschnick proffers to depict himself as a "judicial conservative" — but, mind you, not as a "political conservative" — is how often the judiciary overturns the legislature.

He's over here on the right with Thomas and Scalia, while Abrahamson is over there on the left with Ginsburg and Stevens: opposite ends of the spectrum, which has nothing to do with politics.

Except that in 2005 when Yale University law professor Paul Gewirtz had a look at several dozen U.S. Supreme Court decisions which implicated Congressional provisions, he discovered Justices Thomas and Scalia leading the judicial activist pack at 66% and 56% respectively, while Justices Ginsburg and Stevens were the least likely to "legislate from the bench," as Koschnick tiresomely puts it.

Obviously there is far more to such evaluations than the brute fact of whether a Supreme Court Justice voted to invalidate an act of Congress, just as there is more to Koschnick's strikingly familiar attempts to portray the Chief Justice as "60% pro-criminal."

Problem is, Prof. Gewirtz's percentages were derived precisely according to Judge Koschnick's own proffered benchmark.

And they contradict him. Again.

"When I explain it to [the public], they seem to understand," says Judge Koschnick. Well of course they understand. They understand the Republican code language. And so do we all.

Despite his contradictory entreaties, Koschnick is campaigning as a standard-issue conservative Republican in an allegedly non-partisan election. There really is nothing more to it than that.