Gableman's revisionist "success"

Says the Milwaukee Journal-Sentinel:

[James Bopp] successfully argued in 2009 that State Supreme Court Justice Michael Gableman could not be disciplined for a campaign ad that said opponent Louis Butler "found a loophole" while representing a sex offender appealing his conviction.

If by successfully argued you mean failed to win your motion to dismiss, sure. More generally, success is measured by succeeding.

Once again: the party arguing the "loopholes" was the State. Butler's position obtained from the plain language of the Wisconsin statute which barred the victim's prior sexual history from being introduced as evidence at trial.* And ten out of ten appellate judges agreed.

Under different circumstances self-described conservatives assert their faithful devotion to the law's plain language, except when as a matter of political expediency hypocrisy is more convenient.

And all three judges who heard Bopp's oral presentation — convened on Gableman's motion, it's important to emphasize — nevertheless found that Gableman violated the State code of judicial ethics.

So it's not clear to me where success enters into any of this.

The entire parade of ugly circumstances, initiated by Michael Gableman and carried forward by James Bopp, was a blight.

* Atty. Bopp: It is a loophole, that had nothing to do with [the defendant's] guilt or innocence.

Judge Snyder: 'Loophole' has kind of an emotional ring to it. It wasn't so much a loophole as it just was a properly argued application of the rape shield law, was it not?

Atty. Bopp: Well, uh, it turned out to be, yes.

No, it didn't "turn out to be." It was all along, right from day one.

Wisconsin Supreme Court quote of the day

Justice N. Patrick Crooks, 08/05/10:

I don't think that the Gableman decision provided a final resolution of the charges that were brought by the [Wisconsin Judicial Commission] and that are pending against Justice Gableman. Why do I say that? Well, I say that because, if you look closely — and I'm sure you have — at what the Judicial Commission did, they did not dismiss the charges against Justice Gableman. They did not do what several of us suggested was appropriate and request a jury trial in regard to those issues. Rather, what they did was suspend the prosecution. And I think that that provides an opportunity for the legislature to act in regard to the appropriate procedure. I certainly think that the allegations against Justice Ziegler led to a final resolution. But I don't see a final resolution with regard to the situation with Justice Gableman. And I think I have to bring that to the committee and that's where Justice Roggensack and I disagree.

What happened is that in front of the panel, the three-judge panel, Justice Gableman through his attorney brought a motion for summary judgment, basically asking that the charges against Justice Gableman be dismissed. The three-judge panel held oral arguments in regard to that motion for summary judgment. And their recommendation to the court was that we should grant that motion for summary judgment. So what comes to us, in my view and the view of the colleagues that have sided with me was pure and simply, we're looking again now at that recommendation for a grant of summary judgment. Summary judgment was not granted. As you know, we split 3-3. The division, in my opinion, caused a deadlock. Summary judgment was not granted. It certainly therefore failed, in terms of the request that summary judgment be granted.

Now, what normally happens — and bear with me for a minute — normally what happens if you're in a civil court situation — and by the way as you know the Judicial Commission, the rules and the statutes in regard to the Judicial Commission talk about operating under the civil rules. But what happens in a normal situation where someone brings a motion for summary judgment and the summary judgment motion is not granted, or [is] denied, or fails, is there's a trial. And three of us, looking at the statutes, looking at the interplay of the statutes, felt that it was appropriate for the Judicial Commission to go back to the point where they'd made a determination of probable cause, which I think they made probably about a year-and-a-half ago, and at that point, take the other route.

The route that they took at the time was the three-judge panel. The three-judge panel approach didn't resolve this issue. And so the other approach that's available, in our opinion, under the statutes, was the jury trial. And we suggested strongly to the Judicial Commission that they take that route. Now, the Judicial Commission, in the statement that they issued saying that they were suspending prosecution of the matter, indicated they felt there was a need for clarification in regard to the statutes. In other words, they didn't think that the procedure was as clear-cut as they would have liked it to have been.

And I will just tell you, speaking not only for myself but I think clearly for the Chief Justice and for Justice Bradley, we certainly would have no objection if this committee, and ultimately the legislature, were to attempt to clarify to the extent desired by the Judicial Commission. I don't think that's necessary, but I certainly don't object to it.

Sounds familiar.

I wonder if our friend professor of law Richard Esenberg took the opportunity to also instruct Justice Crooks, who has been a trial and appellate judge for 34 years, that his and the two other Justices' view of the case's procedural posture is informed merely by "a reference to horn book Civil Procedure" which "does not cut it here." I doubt it.

"In aid of" a jurisdiction yet to be found

The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.

— Wis. Const. art. VII, § 3.

Item: On August 20, the Wisconsin Supreme Court granted the State Government Accountability Board a week's extension in filing its response to the complaint lodged in this action. The GAB's response is now due on August 27. On August 13, the court had ordered an injunction against the GAB preventing it from enforcing an election law rule even though the court has not yet taken jurisdiction of the case, nor will the court decide to do so until at least September 13.

Of some further interest to an arcane but important topic:

[C]ongressional enactment of sections 13 and 14 of the Judiciary Act of 1789, as well as early Supreme Court interpretation of these provisions, strongly suggests that Congress intended the power to issue writs to be "derivative" of jurisdiction previously established.[fn]157. . . .

[fn]157 It also has been argued by Professor Akhil Reed Amar, based on the language of the Judiciary Act of 1789, that section 14 was not intended to be a source of original jurisdiction. Professor Amar points out that sections 14, 15, and 17 of the First Judiciary Act reveal a distinction between the word "power" and "jurisdiction." Thus, in section 14, federal courts have the "power" to issue writs which may be necessary for the exercise of their respective "jurisdictions." Parsing the Act’s text in this manner, Professor Amar concludes "it is clear from context that the Act is investing courts with certain authority if and when they have independently founded jurisdiction. . . . 'Jurisdiction' must be established first, and independently; 'power' then follows, derivatively."

— Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. Penn. L. Rev. 401, 436-37 (citations omitted).

Much as I was suggesting.

Federal removal jurisdiction — whereby federal courts might assume jurisdiction over cases initiated in State courts — is a separate matter again, obviously, but I have always understood conservative judges to claim as a central component of their adjudicative methods the tracing of constitutional language to "original intent" and common law origins. At least, that's their election campaign promise.

Justice Prosser (together with Gableman) undertook to explain that a majority of the court had found a type of jurisdiction not enumerated in the Wisconsin constitution — subject matter jurisdiction — but they didn't argue the point very convincingly. I wonder whether the Government Accountability Board will raise the issue. It should.

Wisconsin's conservative activist justices

Concludes Wisconsin Supreme Court Justice David Prosser:

[T]he court clearly has jurisdiction to take all actions necessary to consider whether to exercise its original jurisdiction over the substance of the matter. Wis. Const. Art. VII, § 3 (may hear original actions and proceedings) ...

Emphasis added.

What the Wisconsin constitution says is:

The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.

An original action is one filed directly to the Supreme Court. Original actions are exceptional to the Supreme Court's primary constitutional roles as a court of appeals and as the superintendent of lower courts. If and when the Supreme Court accepts an original action, it has "found" that exceptional original jurisdiction.

In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.

So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?

Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.

Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.

And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.

But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.

Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?

Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.

It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.

At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**

* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.

Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).

In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).

Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.

** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.

Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.

And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."

Wisconsin Supreme Court quote of the day

"The matter is not dismissed." — Justice N. Patrick Crooks

That is correct.

Breitblart presents BigJudiciary.com

Via something called "Courthouse News Service" (which is "for lawyers," it says) this report on the Wisconsin Supreme Court's split decision in Wisconsin Judicial Commission v. Michael J. Gableman:

Wisconsin Supreme Court Justices David Prosser, Drake Roggensack [sic] and Annette Kingsland Ziegler agreed that the complaint by the Wisconsin Judicial Commission against Gableman should be dismissed.

Courthouse News Service doesn't even mention that there are three other justices on the court who came to the opposite conclusion, despite entitling the report, "Wis. Justice's Campaign Ad Wasn't Defamatory," the latter theory of defamation being a feature of the competing opinion which the report's author completely ignored.

And to top it all off:

Gableman's ad was in response to a Butler ad claiming that Gableman "coddled child molesters" and had "purchased his job."

Pure falsehood. Louis Butler claimed no such thing.

Quite the "news service" you got there.

Here's a funny video of Breitblart demanding CNN verify its sources.

Gableman asked to reprimand judge

Now there's a recusal rule WMC they hadn't considered.

Footnotes key to court's "dysfunction"

Another take on the "baby mama" sentencing case:

The interesting, but hardly surprising, aspect of this case is that Justices Gableman and Ziegler with their history of allegations of bias and who have used the ambiguity in this area of the law to their advantage, wanted to avoid adding clarity to the area and discuss how to resolve situations involving potential judicial bias. In fact, Justice Gableman could offer no more a rebuttal of the concurrence other than saying in a footnote bluntly and rudely (conduct uncharacteristic of the civility that once was the standard in all judicial decisions), "She is wrong."

→ XbeyondX

I submit this may have been an instance of a defendant breathing a sigh of relief at losing his appeal. He received a fair to middling sentence for selling cocaine and I believe was released from the confinement portion of the sentence some time ago. Had his appeal succeeded, his remedy would have been resentencing, where he would have stood a reasonable chance of getting sent back to jail.

While the appearance of bias claim wasn't without merit — the defendant won his first appeal; that decision was reversed by the Supreme Court — filing the appeal was a mighty close call.

One thing that's always bothered me about this case is that it isn't even clear whether the defendant understood those portions of the judge's sentencing colloquy which later became contentious.

When the judge said (I'm paraphrasing), 'Where do you find these women, is there a club?' the defendant replied, 'She doesn't go to clubs.' But the judge wasn't talking about nightclubs. So what was argued to be among the most disparaging of the sentencing judge's remarks seems to have gone right over the defendant's head.

Wisconsin Supreme Court footnote of the day

[14] Chief Justice Abrahamson has never liked the good-faith exception to the exclusionary rule. She obviously prefers the law as it stood in 1923 ...

State v. David A. Dearborn, 2010 WI 84.

Actually I think she prefers the 2009 law that you just adopted.

"Gableman, who is white ... "

A provocative little aside from the AP.

We knew pretty well Gableman was not black from his teevee ads.

Baby mama unites "dysfunctional" court

At best, this term ["baby mama"] reflects popular slang, referring to a mother who is not married to and may or may not have a continuing relationship with the father of the child or children. Even [the defendant, who is African American] acknowledges this phrase is sometimes used with reference to non-African Americans. It also appears that both parties agree the phrase, at a minimum, can be offensive depending on the context of its use.

Looking at the [sentencing] hearing transcript as a whole, we do not believe that the circuit court's use of the phrase "baby mama" makes it highly probable or reasonably certain that the circuit court actually relied on race when imposing its sentence.

— Majority opinion at ¶¶55-6

[The defendant] also contends that the term "baby mama" was "racially offensive." The parties dispute whether the term "baby mama" has a racial connotation, but both agree that the term has recently emerged in popular culture. As the Seventh Circuit has explained, "[t]he use of slang in discharging the awesome duty of sentencing is regrettable." In addition to diminishing the proper decorum of the courtroom, the use of slang should be guarded against because it may be subject to unintended interpretations.

I conclude that there has been no showing of actual bias or the great risk of actual bias. Generally, "baby mama" is a slang term referring to the unmarried mother of a man's child, and the court was considering [the defendant's] relationship with a woman who fit that definition. Thus, based on the above, I conclude that [the defendant] has failed to meet his burden to demonstrate that the sentencing court actually considered or appeared to consider an improper factor, racial stereotypes, when imposing the sentence.

— Concurring opinion at ¶¶111-12

State v. Landray M. Harris, 2010 WI 79.

Please visit the baby mama archives.

Wisconsin blogger exonerated, vindicated

Tenant not responsible for fire damage, by David Ziemer

See, I'm not that disappointed.

Now Gableman may perform his happy dance

Even so, judges not lying remains an "aspirational" goal

Ethics complaint abandoned — the J-S's Patrick Marley

He got away with it. Incredible. Lest I'm mistaken, the Wisconsin Judicial Commission's vote tally is available for public scrutiny.

The executive director's Statement of Discontinuance (.pdf).

Snark (and Shepherd) of the day

"A reference to horn book Civil Procedure does not cut it here."

— Marquette University professor of law Rick Esenberg

I lol'd.

And take solace in the fact that even a former Supreme Court Justice and former Dean of the Marquette law school, Prof. Janine Geske, is similarly unsure as to the case's procedural posture at this point.

What one really needs to be skeptical of are Prof. Esenberg's conclusory pronouncements, not openminded contemplations of possible procedural alternatives going forward. (And I don't rely on any horn book for that view, as I've never owned one in my life.)

Prof. Esenberg, it's useful to recall, assisted in enabling Wisconsin Manufacturers & Commerce to wage its multi-million-dollar political campaign against Justice Louis Butler. WMC even named its campaign after one of Prof. Esenberg's Federalist Society memorandums, and Prof. Esenberg (and McIlheran) went to bat repeatedly for one of Louis Butler's most scurrilous attackers. As such, he's not exactly a disengaged academic observer.

And, thanks to that torrent of politically motivated B.S. raised against Justice Butler, the nomination of this principled, capable, and highly qualified judge to the federal district court flounders still among a gaggle of disingenuous Republican hacks in the U.S. Senate.

Gableman's "distasteful" escapades pale in comparison to that effect.

WMC authors the Wisconsin judicial ethics rules

Excerpted from testimony before the Wisconsin Supreme Court, with emphases supplied:

The rule in [Caperton v. Massey] 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.

— Counsel for Wisconsin Realtors Association, 10/29/09

As difficult as it may be to believe, the notorious business outfit Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association wrote three rules of judicial ethics that were ordered effective by four members of the Supreme Court yesterday.

The order came attached with some more of the court's "writings," this time featuring Justice Bradley squaring off against Justice Roggensack, the latter having helped formed the majority along with Justices Prosser, Ziegler, and Gableman ("the conservatives").

WMC contributed millions to the political campaigns of Justices Ziegler and Gableman, but Wisconsinites needn't pay any mind to the troubling perceptions created thereby, the majority teaches today.

One of the WMC/court's new rules is 60.06(7), which dictates that a judge is not required to stand aside from hearing a case "based solely on any endorsement or the judge's campaign committee's receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."

The other newly created rule is 60.04(8), which confers the same protection upon a judge when an "independent communication" (e.g., one of WMC's infamous issue advocacy advertisements) is produced by a party to the case, or where a party to the case contributed to the production costs of the "independent communication."

(The latter "individual[s] or entit[ies]" are more often than not operating behind a veil of anonymity anyway.)

Amended by the WMC/court is 60.06(4), which already had purportedly prohibited judges from personally soliciting campaign contributions, directing them instead to gathering up cash monies through a committee. Although: "A judge, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee's fundraising efforts." Emphasis added. It's one of those "aspirational" rules.

Significantly, the amendment allows a judge's fundraising committee (with whose activities a judge aspirationally "should" avoid direct involvement) to drum up cash from contributors "even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate."

The meaning and potential effect of the latter provision isn't entirely clear. As Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks, "the liberals") points out:

[U]nder the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. . . .

Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.

Justice Roggensack, without a hint of irony, pronounced that "Justice Bradley's dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution."

Roggensack criticized Bradley for citing a number of newspaper editorials (nine of them, to be exact, all in substantial agreement) which expressed concern over the majority's move to adopt verbatim rules written by organized corporate interests, effectively "thumb[ing] their noses at the perception of connections between large campaign contributions and the court's integrity, objectivity and credibility," as the Milwaukee Journal-Sentinel had put it.

The majority appears to be largely unconcerned about those public perceptions, and moreover the majority appears unconcerned that those concerns even exist, let alone for those concerns' validity. Nevertheless, perceptions about the courts' objectivity play a substantive role in evaluating due process of law challenges.

A party to a lawsuit is placed in an uncomfortable position where the presiding judge's campaign committee (again, with which the judge "should" not — as opposed to "must" not — be involved) is actively soliciting cash money from the other party. Yet that is precisely a situation the majority's order contemplates and, seemingly, allows.

Justice Roggensack, somewhat inexplicably, claims the new and amended rules are grounded in the right to vote in elections.

But see the well (and rightly so) respected Michael B. Brennan:

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.

The court's remarkable order is available here (.pdf; 28 pgs.).

As usual, more later.

Harvard grad has precious gift of understatement

According to the Milwaukee Journal Sentinel, the Court is currently deadlocked 3-3 over allegations that Gabelman [sic] "lied" in a campaign ad that highlighted Butler's liberal record.*

"Dan is a graduate of the Harvard School of State and Local Executives." Which, according to the Google, appears not to exist.

* Doesn't that little trumpet solo just give you the urge to salute?

Gableman case is still pending — It's not "over"

But the Oshkosh (WI) Northwestern wants it to be over, which desire is by appearances driven of frustration more than anything else. Because it's clearly not sympathetic to Gableman's predicament:

Anyone paying attention knows what Gableman did and why he did it. He has brought shame and dishonor on himself and that will be his judicial legacy. It is unlikely that Gableman will achieve any distinction on the high court that will surpass his despicable, yet legal, election tactic.

That's awfully cold.* But we don't yet know whether the tactic was legal. We have a divided "recommendation" from a judicial conduct panel and an evenly split pair of opinions from the Supreme Court.

As for Gableman, who, in concert with his attorneys and reliable apologists has made an ill-grounded representation to the public that his ethics case is no longer pending, he has in hand neither the grant of summary judgment nor the dismissal that he demanded.

For confirmation of that fact, seek no further than the opinion of his defenders Justices Prosser, Roggensack, and Ziegler, which urges the plaintiff Wisconsin Judicial Commission to join with Gableman in his demand for summary judgment. That's one way that a disposition might be reached, but it isn't the only way. The Commission has other options, including moving the case into federal court.

There remains undeniably an important federal question (whether Gableman's arguably defamatory "statement" is entitled to protection by the First Amendment) at issue here which the several election law cases those three justices cite for support do not directly address.**

The nine-member Commission, which consists of five nonlawyers and four lawyers (including two judges) will have some soul searching to do before July 30, the date the Supreme Court has set for remittitur, which in this case means it's awaiting the Commission's next move.

That doesn't sound to me like the posture of a case that is "over."

* Whereas Gableman's "tactic" froze the mercury.

** Those decisions do, on the other hand, reiterate that defamation, where successfully proven, is not entitled to those protections. That is effectively the position of the other three Supreme Court justices.

A notable feature of the court's two competing opinions is that the one disfavoring Gableman's First Amendment defense engages in a convincingly substantive deconstruction of the other opinion's legal authorities, but the same cannot be said for the converse, imho.

Wisconsin professor professes puzzling professions

These claims appear in the Wisconsin Law Journal:

Marquette University Law School Professor Rick Esenberg suggested that the case should be over and that a jury trial before a panel would produce the same result because no member [of the Wisconsin Supreme Court] believes there are facts to be tried.

This is simply not true.

There are facts bearing on this case that were not included in the Panel's findings. For example, at oral argument Justice Gableman's counsel urged the court to consider the relevance of case citations that were visually included in the disputed advertisement. The Panel offered no findings or discussion regarding the case citations or the visual aspect of the advertisement.

The above is from paragraph 19 of three justices' written opinion. They continue to discuss those specific facts in paragraph 26 and then again in considerable detail in paragraphs 49 through 54.

So why is a law school professor instructing us that no member of the court believes there are facts to be tried when in reality three members of the court do indeed believe there are facts to be tried?

In the Wisconsin Law Journal, of all places.

It's also puzzling as to how one goes about declaring an action "over" where the movant, Gableman, has failed to meet his burden of convincing a court to grant his motion for summary judgment.

Nobody should lose sight of the fact that the Panel was convened in Waukesha September 16, 2009 on Gableman's motion of May 11. All Gableman has at this point are "recommendations," not a judgment.

And even Gableman's three First Amendment defenders on the Supreme Court concede that those recommendations are entitled to only "some deference," which is to say, a negligible amount.

As a matter of both law and fact the court may discount them altogether. The aforementioned three defenders make it clear that the Supreme Court's review of the case is independent of the Panel's.

According to the Wisconsin rules of civil procedure, which the State statutes (specifically, § 757.91) dictate govern the Supreme Court's review process in judicial disciplinary actions, where a motion for summary judgment is unsuccessful, the matter proceeds to trial.

Amusingly, Professor Esenberg entitles his own separate discussion of the Supreme Court's impasse "Gableman Agonistes," which means: Gableman the Struggler. To the extent Gableman's struggle (or Kampf, in a different foreign language and jihad in yet another) involves securing First Amendment protection for one State judge's ability to subtly defame a higher ranking State judge with the transparently political object of toppling the latter, it's difficult to see that struggle as an admirable — or even a useful — one.

Who else would engage in such deliberate and deliberative chicanery?

Kagan on the Wisconsin Supreme Court's "impasse"

Or: But isn't Gableman an "original intent" kinda guy?

COBURN: Is the [United States Supreme Court's case law] precedent more important than original intent?

KAGAN: Senator Coburn, let me give you an example. I'm not sure if it was an example I used before or not. But in the First Amendment context, which is a context I've written about a good deal, it's fairly clear that the First Amendment doctrine that's been established over [the last] 100 years departs significantly from the original intent of the Framers. One example is that I think that the Framers would never have dreamed that the First Amendment would in any way protect people against libel suits, that the First Amendment had anything to do with libel. So when the [Supreme] Court said in New York Times v. Sullivan that a public figure could not sue the New York Times and claim damages for libel without meeting a very high bar — without meeting the so-called actual malice standard — I think that that was something that the Framers would not have understood.

COBURN: [suddenly taken aback] Why would you think they wouldn't have understood that? I mean, they had print back then. I mean, we didn't start that early, in terms of the formation of our country.

[Kagan was saying that libel wasn't part of the Framers' "original" understanding in drafting the First Amendment; she wasn't saying that they wouldn't have understood the arguments which were presented and decided 173 years hence in NY Times v. Sullivan. Jeez, Coburn, she's talking about Alexander Hamilton and James Madison.]

KAGAN: I think that the historical evidence is very clear that the Framers didn't think that the First Amendment at all interfered with libel suits. Now, over time, as courts have applied the First Amendment to different contexts, to different circumstances, have seen different factual problems, have had to consider different cases, I think that the Court sensibly thought that the principles that are embodied in the First Amendment could not be protected unless the decision in New York Times v. Sullivan was issued.

Quote(s) of the Week

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.

— Michael B. Brennan

One's mileage — and how it's measured — may vary:

¶8 The advertisement that forms the basis for the Commission's complaint was run during the course of a campaign for political office.

¶24 It is within the above described framework of core constitutional principles established to ensure that campaign speech is not diminished, that we must interpret and apply SCR 60.06(3)(c) because the television advertisement occurred during the course of a campaign for political office.

Emphases added.