"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick EsenbergThis is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.
That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*
In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.
Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.
But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:
In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.
More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.
Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.
Gableman's disciplinary proceeding is currently in its third year.
* The WJC has said repeatedly that Gableman "lied."