November 4, 2009

Too et cetera for the law profs

The following legitimate and supportable observations were submitted to the Marquette University Law School faculty blog almost 24 hours ago, but were never published. In the meantime, nearly a dozen other comments have been duly approved and posted.
They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.

I understand you’re talking about proposed rules of ethics you don’t care for here, but that sentence reads far more accurately as a description of judicial elections.

In fact, it indicates almost perfectly the political strategies of Wisconsin Manufacturers & Commerce and the Coalition for America’s Families (or, from your perspective, Mike McCabe, although he has a lot less money and, therefore, a lot less influence).

It’s always seemed to me a little disconcerting that in Wisconsin a heavy emphasis is placed on legal and personal ethics in law school, in the criteria for admission to the bar, and in annual continuing legal education requirements, but when it comes to electing judges, we accept this multi-million-dollar free-for-all of disreputable behavior and then blithely chalk it all down to the First Amendment, which was drafted by people who likely would have been horrified by many of these more recent shenanigans.

Interesting also that among the ("conservative") justices who inquired of the petitioners if the groups they represented had a view as to whether judges should be popularly elected or appointed based on meritoriousness, the latter suggestion was implicitly treated as some kind of heresy.
The law school faculty blog announces that while it welcomes comments, it reserves the right not to publish them based on "redundancy, incivility, untimeliness, poor writing, etc."

And these are not exactly wild, outlying opinions. As Alex De Grand puts it this morning in the State Bar of Wisconsin's InsideTrack:
The First Amendment outweighed due process arguments when the Wisconsin Supreme Court declared on Oct. 28 that judges are not required to recuse themselves from cases featuring campaign contributors or parties who made independent expenditures.
More specifically, the First Amendment rights of elected judges and their campaign contributors trump the due process rights of litigating parties, both plaintiffs and defendants. That's troubling.

The courts are a creation of constitutions, which are in turn a construction of the people. That the people's right to due process of law in court is subservient to elected judges' rights to political speech turns some very fundamental notions of justice on their head.

It's supposed to be the other way around. And we should expect the concepts embodied within due process to evolve, but not devolve.

Ironic, isn't it then, that the justices who embrace the foregoing displacement of due process rights are those same ones ideologically predisposed to denounce "activist judges" and "judicial power-grabs."

Considerably beyond irony is the fact that the majority's disposition — which was the adoption of ethics guidelines authored by Wisconsin Manufacturers & Commerce — came about following hearings on the subject of the public's perception of fairness and bias on the courts.

And this move was intended to improve that perception?


Clutch said...

Sensible and tightly argued.

It's too bad the law faculty blog didn't publish it, and shameful if that was the considered
suppression of viewpoint rather than an oversight or accident.

John Foust said...

Why the embargo? I guess we'd have to ask MULSFB blog editors Bruce E. Boyden, Richard M. Esenberg, Edward A. Fallone, Michael M. O'Hear, and Jessica E. Slavin. Think they'll admit who held it for inspection before release?

The Prof says in his comment there "The circumstances in which a $10,000 gift would not create a potential for bias may be those in which millions have been spent."

So he's saying that it's all relative? Is he suggesting we should worry about the millions instead? Or only the biggest fish in the millions? That one percent isn't enough to trigger it, but some larger fraction might? Is this all just a setup for the old punch line "We've established what you are; now we're just haggling over the price"?

I think the Prof has a little of that syndrome where you're often accidentally saying what you know is true, deep inside, even though your outside voice is saying something else.

And I repeat that Prof. Esenberg did not take the opportunity to deny that he is regularly given free lunch by lobbyists and shadowy interests. I'm not saying he eats the lunch, but if it’s not true, why have we not heard a denial of the rumors that he's been supping with lobbyists?

illusory tenant said...

Why the embargo?

Beats me. Could be my FedSoc membership lapsed.

Terrence Berres said...

Easily remedied.

illusory tenant said...

Ha. Do those rates reflect the chocolate brownie surcharge?