December 3, 2010

I am ready to take out Justice David Prosser

Me and "the left."

Or so it says right here. Not quite, even if I did have any influence whatsoever in the matter (which I'm certain I do not, but thanks).

In fact I share Ms. Egelhoff's view of Justice Prosser as a kind and very bright man. He's considerably less of a doctrinaire conservative than his colleagues Justices Roggensack, Ziegler, and Gableman* and adheres to a current of sincere morality that becomes evident on the occasions he writes separately from the other members of the court.

I don't know that there are "tons" of remarks about Justice Prosser in this space, but I have defended him from what I thought was unfair criticism on more than one occasion. And I am not so much of an activist — and at the same time too much of a philosophical idealist — to see the court merely as an instrument of competing political and social attitudes. Indeed, the very idea of judicial elections and especially what they've turned into nowadays is somewhat distasteful.

The judiciary — at least in the federal sense, where I get my cue — is by design separate from and wholly independent of what the U.S. Supreme Court deliberately calls the political branches. Obviously the Constitution doesn't compel States to organize their judiciaries according to the federal model but there is sound bedrock beneath the Framers' conception of separation of powers and the special independence of the courts that States need to consider seriously.

By contrast look to Iowa, where three high court judges were deposed by voters for taking too literally the Fourteenth Amendment's Equal Protection Clause** (which does compel the States). Regardless of where the observer comes down on the merits of the same-sex marriage case in question, it must be admitted from that experience alone that the Iowa court became just another political branch.

In a word, superfluous, not merely "least dangerous."

And the mean$ by which political control of a State Supreme Court is gained or lost (popular elections with their attendant modern negative campaigning) got about as ugly as they could, right here in Wisconsin a couple of years ago. It was sometime around then that I started questioning the wisdom of popularly electing members of the Supreme Court, not because electors aren't capable of making the correct choices, but because the candidates apparently weren't.

However, we're taught supposedly to draw an intellectual distinction between the prospective judge's behavior on the campaign trail and her performance as a professional on the bench. Unfortunately recent events have drawn ethical distinctions between those two roles which shouldn't exist. In fact half of the court held that a colleague of theirs was unfettered by the very code of judicial ethics to which he himself had assented because he nevertheless had a right to say whatever he wanted about another judge's record whether it was "true" or not.

But for the time being there are elections, this one hasn't even started, and so we'll see how it goes. As for the blog post to which Ms. Egelhoff refers, "Marla Stephens for Supreme Court," that wasn't me trumpeting a personal declaration, but simply the label on the website that had recently appeared and where I embedded a link.

I don't want to be one of Charles Franklin's stupid voters who expresses support for an unknown quantity or else is committed against a certain incumbent no matter what (although the latter motivator seems as legitimate as any in exercising the franchise, and, e.g., why did they need to know anything about the other guy when they already knew all they needed to know about Feingold).

* Two terms ago the three voted as a bloc about 98% of the time.

** There is practically an irrebuttable presumption in equal protection doctrine that no such thing as equal protection may possibly exist.

7 comments:

gnarlytrombone said...

You, my friend, have become a signifier. Félicitations.

illusory tenant said...

Ooh. Can I be an object of Hofstadterian paranoia?

John Foust said...

Maybe some hipster in cool glasses will make a YouTube video about you.

Clutch said...

I believe that your long, careful, conciliatory, nuanced response to a throwaway demogogical line about "the left" charmingly illustrates a fundamental difference between you and Jo Egelhoff.

I do not advise putting other things on hold while waiting for a comparable reply from Ms Egelhoff.

illusory tenant said...

I didn't even make the aggregator where I found it.

Anonymous said...

I consider myself pretty realistic about judicial politics, but I confess to being startled by recent headlines such as this one: "GOP regains control of [Michigan] Supreme Court." detnews.com/article/.../GOP-regains-control-of-Supreme-Court

illusory tenant said...

That's awesome, thanks.

"I've been compared to Nazis," Young said. "I've been accused of living in Wisconsin ... destroying all that's good and holy, all while sleeping on the bench."