October 28, 2009

Well, this sure cleared that up

Or: A rule of law, you say? Depends who's asking.

Michael Gableman: Was Caperton a unanimous decision?

Hannah Renfro:* No, it was not.

Gableman: What was the vote?

Renfro: It was a, um, a 5-4 vote, I believe.

Gableman: And were the five members of the majority able to articulate a rule that would carry forward outside of the particular facts of Caperton v. Massey Coal Company?

Renfro: No, they were not. In fact that was emphasized by the dissent.

Shirley Abrahamson: They stated no rule at all, Ms. Renfro?

Renfro: Well, they stated a rule ...

Abrahamson: They stated a rule that you might not think is effective; the dissent didn't think it's effective. But that's the purpose of a dissent, to knock it around. Right?

Renfro: Yes.

Abrahamson: So they did state a rule, right?

Renfro: Yes.

Abrahamson: And what was the rule?

Renfro: The rule in that case was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.**

Abrahamson: An objective, reasonable person standard.

Renfro: Yes.

Abrahamson: Not only actual bias but the appearance of bias.

Renfro: Yes.

* Attorney for the Wisconsin Realtors Association.

** Initiating the solicitation of this response was not exactly a bold strategic move by Gableman, under the circumstances. (However, his attempts at divining the shadowy presence of George Soros in the courtroom were likely a big hit with the tea ceremonialist crowd.)

The Chief Justice, on the other hand, is one sharp cookie.

Bonus Question: Was Coulee v. LIRC a unanimous decision?
Bonus Answer: What in the world difference does it make?


Brett said...

Wasn't Patane 5-4? And Siebert?

illusory tenant said...

Highly unusual, those 5-4 splits.

John Foust said...

Unanimous? Well, of course it would matter. Once you've got a clear majority it would generally require less campaign contributions to keep them in place. Mission accomplished!

illusory tenant said...


Brett said...

If Gableman is troubled by Caperton because it was 5-4, one would think he would have been equally troubled by Patane being 5-4, making his full brunt attacks on Knapp II seem even more hypocritical. We're (potentially) stuck with this guy for 9 more years?

illusory tenant said...

Interesting (telling, even) that the Evil George Soros line of questioning wasn't similarly addressed to WMC.

Super Id said...

Shirley is one of the best cross-examiners that I have ever seen.

illusory tenant said...

'Are you now or have you ever been a member of opensecrets.org' was well played.