June 28, 2011

How many sharks can one Shark jump?

Clearly, an infinite amount.

Sometimes I swear WisOpinion.com, the local aggregator of Wisconsin's "opinion leaders," links to stuff just for giggles, much like Jerry Falwell used to get invited on the Sunday morning chat shows so the producers and news editors could chuckle at him. Case in point, Rick Esenberg's pretend lament at the state of affairs on the Wisconsin Supreme Court.

Recall that Bill Lueders broke the story Saturday morning. None of Lueders's sources were named, but he obviously had them. By Saturday evening, the Milwaukee Journal-Sentinel had managed to obtain a statement from Ann Walsh Bradley, a justice of the Wisconsin Supreme Court, confirming the substantive details of Lueders's story. The Journal-Sentinel also obtained a statement from the accused, David Prosser, that did not deny some physical altercation had taken place, but rather simply varied from the perspective of Justice Bradley's account.

Peake fantasy

Furthermore the Journal-Sentinel obtained statements from two anonymous sources — who remain anonymous as of this writing — neither of which deny some physical altercation but, as does Prosser, present a different perspective of the alleged altercation. So what does Rick Esenberg, an actual professor of the law, make of all this?

Well, first of all, he denounces Lueders for "an embarrassingly bad piece of work" despite the fact that Lueders's report was confirmed by a justice of the Supreme Court who went on the record to confirm it.

What's embarrassing or bad about it exactly, he doesn't deign to reveal, but the professor's unsupported assertions suit perfectly the obfuscatory narrative Esenberg and his fellow travelers are seeking to forward.

And despite even the fact of Justice Bradley's affirmations, Esenberg pronounces her allegations "fantastical," conveniently overlooking Justice Prosser's self-admitted history of aggressiveness toward Chief Justice Shirley Abrahamson, whom he had previously threatened to "destroy," and who is relatively small in stature and who is nearly a decade the elder of Prosser. Moreover Bradley had warned against Prosser's behavior in emails she released to a Journal-Sentinel reporter months ago.*

Now all of a sudden the latest in an apparent pattern of reckless and intemperate behavior is "fantastical," like a Mervyn Peake novel.

Justice/Gableman

But what is most remarkable — outrageous, really — about Esenberg's own reckless missive is that he suggests the Wisconsin Judicial Commission back off from carrying through its investigation:
[T]he worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. [**]
Let's review a couple of things here.

Justice Prosser would be the third consecutive Wisconsin Supreme Court justice subject to an investigation by the Wisconsin Judicial Commission, all of them self-advertised "conservatives," and all of them members of the court that just two weeks ago abandoned bedrock principles of legal procedure, invented from whole cloth a novel fabrication of the court's jurisdictional authority, imported into its written order and opinions alleged facts that were never even mentioned by any party or court as the case wended its way toward the Michael/Gableman Four, and for all intents and purposes untenably reprimanded a careful, review-proven conservative circuit judge for — ironically — supposedly abusing her authority, a reprimand meted out by the same court that had just moments before whipped into existence its own purported authority.

The allegations Esenberg is talking about are those of Justice Bradley who, it bears again repeating, went on the record to confirm the pertinent details of Lueders's "embarrassingly bad" report. And the "controversions" Esenberg is talking about are those anonymous sources quoted by the Journal Communications, Inc. flagship daily newspaper.

Blinka job safe

Not only does Esenberg accord the latter equal weight, he accords them such countervailing authority that, Esenberg reasons, they should not only drive the Wisconsin Judicial Commission's investigation but in fact discourage the Commission from proceeding. All one might say to that is, thank gods Esenberg is not teaching the law of evidence over there.

Esenberg's "will of the voters," it needs also to be recalled, is Justice Prosser's 0.46% margin of victory over challenger JoAnne Kloppenburg, who for her part realized double-digit (not double-decimal point) surges in popular support between February's primary contest and the April 5 general election — especially in the State's most conservative counties.

Thus would it "smack of a coup" were the Wisconsin Judicial Commission, which is charged by State statute to investigate unprofessional behavior among the State judiciary, to pursue its mandated obligations.

It's quite the amazing performance by Rick Esenberg, who has a long and fairly well documented history of amazing performances. It's . . .


Ta Da! Ol' Prof. Rick is right about one thing though:
Lawyers have been worried about the divisions on the Court [**] for some time now. ... No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters.
Oh, but I'm sure they would like to say plenty about it, and what they would mostly say Esenberg probably wouldn't want to hear. Because the current divisions on the court are directly traceable to Mike Gableman, who none other than Rick Esenberg championed by defending some of the most disgraceful attacks on former Justice Louis Butler's reputation, character, and professionalism, and whose own then-research assistant's gibberish Esenberg is still publishing at the Marquette LS faculty blog.

Esenberg's "worried lawyers" ain't going to forget. It's one thing to get along — and a good thing — but it's quite another to abandon principles because some partisan ideologue is boo-hooing like a sad crocodile.

Your humble correspondent may not be the disinterested academic ivory tower dweller Rick Esenberg is presented as by Journal Communications, Inc.'s panoply of media dispensaries but I surely do know that much.

* There was some considerable right-wing pearls-clutching over Justice Bradley's handing over the emails to the reporter. However, go have a look in the WisconsinEye.org video archives for the court's open administrative conferences and you will find both Justices Prosser and Roggensack releasing sheafs of interchambers emails to the press.

The political right's shameless hypocrisy is quite the spectacle to behold.

** You do not capitalize court here. Capitalizing court here would be a signal for the United State Supreme Court. This from a professor of law.

15 comments:

John Foust said...

What puzzles me is that none of y'all lawyers have mentioned that the "I was just defending myself with that left hook when she came at me with what I thought were her raised fists" 'splanation must come up, oh, what, once a day down at the courthouse?

illusory tenant said...

Once a day? Go sit in DV court for a couple hours.

illusory tenant said...

By the way I did mention it at the end of this.

John Foust said...

I also wonder why the discussion became so heated that Bradley would need to ask Prosser to leave her office, and why he would not do so immediately.

illusory tenant said...

The right, as usual, is pointing its fingers at the CJ.

John Foust said...

Do I remember someone asking for Bob Dohnal, publisher of Wisconsin's Conservative Digest? He says Prosser was trying to avoid grabbing Bradley's breasts.

illusory tenant said...

I think the Brew City Brawler was inviting him to join Twitter, for added comedy, I imagine. Can't get enough comedy these days.

Mike said...

Well done, not to mention the bonus Mervyn Peake reference (Walker = Steerpike without the redeeming qualities).

John Foust said...

Why, the breast portion of the alibi must be a WisGOP talking point. Dohnal had it by 6 a.m., then Atomic Pantsload repeats it at the National Review before noon.

gnarlytrombone said...

They far exceeded the same in newness of conceit, both for the art of assailing and for the strangeness of their revenges.

illusory tenant said...

Plus ├ža change, eh? And cheers Mike.

Brew city brawler said...

Far from fantastical, Prosser's behavior seems of a piece with prior behavior of a man who once charged at a fellow legislator and blows off calling the CJ a "bitch" - an act that would have gotten him canned in most workplaces (try it at your office, kids!) "incautious." what some call "goading" others would call "welcome to the working week" Sykes et al cry, absurdly, elder abuse. Someone, arguably less kind but looking at a track record of behavior, might argue that Prosser is a misogynist with rage issues who seems to be losing more self control the older he gets.

Anonymous said...

Another theory could be that Prosser is showing signs of dementia - aggressive and violent behavior is a symptom. What comes next after hands on someone's throat? It's scary to consider this.

illusory tenant said...

He's a judge, so he knows how judges take past behavior into consideration with the more recent. He's reviewed enough sentencing transcripts.

Anonymous said...

"...might argue that Prosser is a misogynist with rage issues who seems to be losing more self control the older he gets."

You actually described Dad29 to a T!