Gableman sets the standard ... in MN

A former Republican congressman and governor of Minnesota, Al Quie, must have been following last year's Wisconsin Supreme Court election more closely than the 81% of eligible voters here who weren't.

On Thursday, Quie will testify to that neighboring State's Senate judiciary committee with a view to carefully avoiding the Wisconsin experience. Quie and several other local notables are recommending reforms to Minnesota's system of electing judges.

And it's clear from this column at MinnPost.com that the deserved villain of the piece is Wisconsin's own Michael Gableman (although Gableman attended law school in St. Paul, so L'Etoile du Nord can proudly assume its share of the responsibility).

But at least one further clarification is in order:

Gableman accused the incumbent Butler of being the "deciding vote" resulting in the "release of [a sexual] predator into Milwaukee County." But the predator was never released. He served his complete sentence before offending again.

Actually those were two separate cases, and two separate falsehoods propagated by Gableman. The "predator" in question is this one,* whereas the complete sentence-server is at the heart of Gableman's ongoing ethics investigation by the Wisconsin Judicial Commission.

Speaking of which, there's unlikely to be a resolution in that case until after this April's election, which currently features yet another Hamline law school alumnus telling every Republican within earshot that Wisconsin's Chief Justice is "intellectually dishonest."

* Who remains in custody still, incidentally.

Koschnick pulls a Gableman

Here we go. It was bound to happen.

At this afternoon's campaign forum featuring Wisconsin Supreme Court Chief Justice Shirley Abrahamson and Jefferson County Circuit Court Judge Randy Koschnick, the latter accused the Chief Justice of "voting with [criminal] defendants 60% of the time."

Let's just say that Koschnick's latest shenanigans are not going to endear him to a whole lot of people (present company adamantly included) and they're more evidence that he's clearly not planning on running the sort of "clean campaign" he'd "pledged" to run.

This blog will have more on today's forum, at which the Chief dusted Koschnick off pretty effectively, among other highlights forcing him to admit to a number of blindingly obvious double standards.

But in the meantime, here's some sense of déjà vu all over again featuring the comic numerology of the Hon. Michael Gableman:

Gableman said the 60% figure came from a study by an outside group.

"I don't know if the number is 30%, 60%, 80%, or 90%," he said, before adding, "I'm unaware of any study that contradicts those numbers."

Gableman v. Numbers

And here's hoping against hope that the Milwaukee Journal-Sentinel is not going to persist in reporting this garbled nonsense as uncritically as it did during last year's election campaign.

Gableman loses dismissal bid

Thank goodness Milwaukee Journal-Sentinel reporter Patrick Marley is still paying attention to this story (that is, if you can find it submerged within the barely navigable bowels of JSOnline.com):

A three-judge panel considering an ethics complaint against State Supreme Court Justice Michael Gableman today dismissed a request by Gableman that the state Judicial Commission be barred from continuing its case.

Judicial panel denies latest Gableman manoeuvre

[Style point: Capitalize State when referring to one of the 50.]

Gableman drops 1st Amendment challenge

Well, this is kind of disappointing news, at least for those aficionados of recreational litigation:

Rather than proceed with a lawsuit against the Wisconsin Judicial Commission, Supreme Court Justice Michael J. Gableman and his attorneys will save their arguments for a three-judge panel which will review allegations of misconduct against the justice.

In a response to the WJC’s request to dismiss the countersuit, attorneys for Gableman agreed to abandon the claim without prejudice on Jan. 5, but maintained his objection that the proceedings violate First Amendment rights.

Gableman reportedly had until Jan. 5 to refile his formal constitutional challenge against a provision of the Wisconsin Supreme Court Rules after it was dismissed last month.

Of course he'll still be maintaining that the provision doesn't apply to him; he's just abandoning his broader argument that it doesn't apply to anyone else either. And, still no hearing scheduled.

Speaking of Gableman (& Co.), here's a pretty sharp editorial in the Green Bay Press-Gazette this morning.

Gableman free speech claims dismissed

For now, at least. This is a bit odd:

The judicial conduct panel adjudicating the Hon. Michael J. Gableman ethics case have [sic] made a ruling.

The judges sitting on the panel have dismissed Gableman's counterclaim, filed earlier this year.

They said that Gableman should instead file a response to the initial motion against him before January 5.

The counterclaims were contained in that portion of Gableman's Nov. 19 answer to the Wisconsin Judicial Commission's Oct. 7 complaint consisting of Gableman's legal attack against the State judicial ethics rule on First Amendment (freedom of speech) grounds.

Gableman responded to all of the allegations in the Commission's complaint and in addition argued an affirmative defense and filed the counterclaims, all within one document. Almost certainly Gableman will refile the counterclaims separately.

But will Indiana's James Bopp, Jr. get to bill him two times?

Marquette alum reappears for more comic relief

For some strange reason our old friend Daniel Suhr is posting at the Marquette Law School faculty blog. Today's entry finds him pontificating further to a couple of issues roughly related to the Mike Gableman case currently before the Wisconsin Judicial Commission.

Mr. Suhr, it may be fondly recalled, was a fervent and devoted disciple of Mike Gableman practically to the point of hysterics, recklessly mangling the case law and pronouncing former State Supreme Court Justice Louis Butler a menace to the Homeland.

Now it seems one of Gableman's several attorneys, James Bopp, obtained a victory of sorts after challenging in federal court a provision of the Kansas Code of Judicial Conduct which forbade a candidate for judge directly soliciting campaign contributions.

The Wisconsin corollary is Supreme Court Rule 60.06(4). As was mentioned here a few days ago, a Milwaukee County circuit court judge, the Hon. John Siefert, is in the process of challenging that same provision pursuant to a complaint filed last February.

Prophesies Suhr, "Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional." Not only that but the recent Kansas disposition, Suhr ventures, "may result in new litigation in Wisconsin."

Clearly intrigued by this point, Mr. Suhr at last wonders: "Will a Wisconsin judge or candidate soon challenge [60.06(4)] as such?"

Well, yes, a Wisconsin judge will indeed challenge SCR 60.06(4) "as such," at least just as soon as last February rolls around. In fact Daniel Suhr himself provides a link to a reply memorandum filed in Siefert v. Alexander, which he apparently neglected to read.

The oversight is understandable, I suppose, when one is beside oneself with evident glee at the prospect of an heroic Mike Gableman invalidating a rule of judicial ethics designed to discourage and perhaps prevent lying about a perceived political rival, the very rule that none other than Mike Gableman stands accused of violating.

As for the actual law school faculty bloggers, I heartily recommend Prof. Michael O'Hear's* highly informative weekly coverage of the United States Court of Appeals for the Seventh Circuit.

* Distinguished owner of the world's largest coffee cup.

Yeah, this is the Big Bopper speakin'

David Ziemer is a bit more upset with the Capital Times than I was.

Ziemer, who contributes exemplary reportage and analysis to the Wisconsin Law Journal, thinks it was pretty irresponsible of the Cap Times to suggest that Mike Gableman shares the personal views of his attorney.

To be sure, Ziemer is correct and the more firmly grounded assumption is that Gableman retained Indiana lawyer James Bopp, Jr. on account of the latter's enhanced competence and expertise in that field where election law and freedom of speech intersect.

But that doesn't mean his selection is insignificant. Because Bopp probably wanted the case as much as Gableman wanted him on it. Bopp is into challenging these restrictions all over the country.

Bopp is also lead counsel in another action currently pending before a federal court in Wisconsin, Siefert v. Alexander.

John Siefert is a Milwaukee County Circuit Court Judge who is likewise challenging the constitutionality of several provisions of the State's Supreme Court Rules, the ones pertaining to partisan political activities and direct fundraising by judicial candidates.

The adverse party, James Alexander, is the executive director of the Wisconsin Judicial Commission, which administers the SCRs.

Judge Siefert will be up for reelection in 2011, and he wants to participate in those activities which the Rules currently forbid. He (and Bopp) argues that judges can maintain those associations while not compromising their ability to remain fair and impartial in deciding cases. It's a not unreasonable suggestion.

But the provision Gableman is attacking, SCR 60.06(3)(c), is different from the ones Judge Siefert is going after. It has to do with defaming one's electoral rivals, which is probably something self-respecting candidates for the State's highest court shouldn't be engaging in and maybe even face sanctions when they do.

Defamation is generally not found among the absolutely protected categories of speech (such as virtual child pornography, American flag burning, and conservative talk radio).

Indeed, Gableman/Bopp expressly acknowledge that aspect of the Rule's intent, except they claim that its language isn't crafted narrowly enough to achieve that goal and that the Rule serves to capture and proscribe non-defamatory statements as well.

Maybe so, but that's why there's a judicial commission to evaluate and assess individual complaints arising under the Rules.

This is one among Gableman/Bopp's numerous objections, of course, including their defense that the "allegedly" misleading advertisement was simply an innocent and informative collection of disconnected, objectively true statements in no sense meant to suggest or imply anything further about Gableman's political opponent.

Yeah, right. As if the ad wasn't making a broader statement, the sum of its parts so to speak, supported additionally by the insidious visual and aural elements. It was also frankly demeaning and insulting to its intended audience and others, but that's a separate question and there's no Rule against overtly cynical, grasping political ambition.

Rather, it occasionally merits both encouragement and reward.

As Isthmus news editor Bill Lueders puts it,

Gableman wants the rule struck down, so future judicial candidates can more freely lie their way into office. What a fitting legacy that would be for Justice Gableman.

That's not an entirely unfair assessment, if you ask me.

Yet Justice Gableman's detractors had better start to brace themselves. If I were a betting man, I'd wager SCR 60.06(3)(c) will not survive First Amendment scrutiny, if this case happens to get that far. Nor would I consider it much cause for celebration.

But for Bopp/Gableman, it would be victory and vindication. Which is, to co-opt from the thrust of Gableman's legal attack against the Rule, also both prima facie wrong and especially wrong as applied.

Bopplicity

Madison's Capital Times this morning runs a couple of paragraphs about James Bopp, Jr., the Indiana lawyer who is handling the Wisconsin Judicial Commission's complaint against Mike Gableman.

Beneath the headline Gableman hires anti-abortion attorney to fight ethics charges, the Cap Times reporter infers:

If there was any question as to where newly elected Wisconsin Supreme Court Justice Michael Gableman stands on abortion or, for that matter, on a host of other social issues, his choice of attorney should provide some clues.

I don't know about that. Obviously abortion has nothing to do with the present action* and Bopp, Jr. is one of the go-to guys nationally on any number of right-wing causes célèbre.

Rather, it was Gableman himself who telegraphed his stances with the magic phrases "judicial conservative" and "plain language of the law," recited ad nauseam throughout his campaign (as if only "judicial conservatives" begin their inquiries with the "plain language of the law" — the point is, the plain language of two laws conflicting often creates ambiguities, which are what appeals courts are called upon to resolve, notwithstanding Gableman's sloganeering).

In any event, so long as the Roe v. Wade line of cases stands and Democrats control both Wisconsin legislative bodies, Gableman's legal opinion on abortion is unlikely to see the light of day.

Then again, if Gableman manages to survive his ten-year term and the tail end of it is served under President Sarah Palin along with Chief Justice Joe the Plumber, that could change.

Miles Davis — Boplicity (1949)

* Although some of the cases Bopp is likely to rely on in support of his First Amendment argument do. Not abortion per se, but the right of electioneering judges to speak about their views during campaigns.

In re Gableman: A guest blog

by Sachin Chheda

The justice who made it okay for judges to lie

Wisconsin media are reporting (see here and here) that State Supreme Court Justice Mike Gableman is fighting hard against the Judicial Commission action to discipline him for lying during last spring’s Supreme Court election. As the manager for the incumbent, Justice Louis Butler, I saw firsthand the sleazy tactics and the lack of accountability of the Gableman campaign.

And it wasn’t just Butler partisans who complained about Gableman’s tactics. Universally, observers condemned the Gableman campaign. While we stood by our pledge to run a positive campaign, Mike Gableman was roundly criticized, not just by progressives, but by conservatives and by national publications, for the unbelievable ad he ran falsely attacking Justice Butler’s work while a public defender.

Gableman now makes the argument that he should be allowed to lie, because the First Amendment requires allowing it. I’m not a lawyer, but I’m an American, and I would be very concerned if our basic rights under the First Amendment were threatened for political purposes. But that’s not what’s happening here in the Judicial Commission’s case against Gableman, nor in the criminal complaint that has been filed against him in Polk County (which the Polk County DA is sitting on).

The way I see it, the First Amendment says the government cannot punish Gableman for lying in his capacity as a private citizen. In a general sense, he’s free to lie about anything he wants, and if he's just a regular guy off the street, like Joe the Plumber (who also fudged the truth, but I digress), he shouldn't be arrested, put in jail, or fined. He should be able to lie freely, as long as he's just a regular American like the rest of us.

But once he stands for public office, we, the people, have every right to expect him to not lie. We can, and should, create consequences for when public officials lie. After all, we’re the “bosses” of public officials, right? You can be fired for lying to your boss, right? You can be docked a day's pay, right? Does anyone believe that a boss shouldn’t be able to fire a worker for lying to the boss?

Mike Gableman lied to the people of Wisconsin, and he did it to get a promotion. He was a sitting judge, and he violated the ethical constraints of his job — of his profession.

At its core, Gableman's counterclaim is that he wants to get rid of the rule that judges can't lie. Does that mean that there is no accountability for judges, save an election that can be manipulated by lying? It's patently ridiculous.

I think his actions defending the right of judges to lie call into question Mike Gableman’s fitness to be a judge, let alone a member of the state's highest court. Those who supported him should be embarrassed by his continued defense of this racist, shameful and untruthful advertisement, and his legal machinations to end accountability for lying judges.

Sachin Chheda is a consultant in Milwaukee who works primarily with political campaigns and nonprofit organizations. He served as campaign manager for Justice Louis Butler’s bid to retain his seat on Wisconsin’s Supreme Court in April, 2008.

Gableman then and now

Then:

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to rape another child.

Now:

Justice Gableman denies the Advertisement states "that Louis Butler had any responsibility for or involvement in Mitchell's release from prison in 1992 or that any action by or work of Louis Butler had anything to do with Mitchell's commission of the subsequent criminal molestation referred to in the Advertisement."

At the very least, the Advertisement most certainly does "state" that Louis Butler worked to put Reuben Lee Mitchell on the street. And the clear suggestion is that Butler's work did put Mitchell "on the street," which is where he committed the subsequent offense.

Gableman Answer* (.pdf; 13 pgs.).

* Short version: Justice Gableman denies violating the Wisconsin Supreme Court Rule and even if he did, the Rule itself is an unconstitutional abridgment of his freedom of speech.

Gableman panel empaneled

After a false start.

Reportedly, Wisconsin Supreme Court Justice Michael Gableman is planning on challenging the constitutionality of the Wisconsin Supreme Court Rules provision he stands accused of violating:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

Emphases added.

This means Gableman will have to show that the above Rule (SCR 60.06(3)(c)) operates as an abridgment of free speech under the First Amendment, which is applicable to the States through the Fourteenth Amendment.

Gableman, despite having been narrowly elected nearly seven months ago, continues to speak through his campaign manager, Darrin Schmitz. Schmitz appears to claim that because each and every individual sentence in the contested advertisement is "truthful," so therefore is the overall communication conveyed by the ad.

Thus I suppose if I tell you that the moon is made of green cheese, it must be true because there is a moon, there is cheese, and there are things that are green, out of which other things can be made.

My question is, how many Gableman votes was the ad's alleged "truthfulness" responsible for. The panel may not reach that question, but it seems pretty much dispositive to me.

It certainly was intended to sway voters.

Gableman grievance has merit

Unlike the United States Constitution, which places only a requirement of "good Behavior" on Justices of the U.S. Supreme Court, in Wisconsin a "supreme court justice ... must be an attorney licensed to practice law in this state."

Because of that State constitutional provision, Wisconsin Supreme Court Justice Michael Gableman's investigation by the Office of Lawyer Regulation might be even more troublesome for him than is his concurrent inquiry with the Wisconsin Judicial Commission.

While removal from the bench is by far the most severe disposition that may result from the Judicial Commission's activities, the OLR, depending on the circumstances of its investigation, can petition the Supreme Court to suspend Gableman's license to practice law, the granting of which petition would render Gableman ineligible to serve on the court (or any State court, for that matter).

Gableman's campaign consultant, Darrin Schmitz, calls the grievance filed with the OLR "frivolous." Unfortunately for Schmitz, it's his own objection that's without any merit because the OLR would not have appointed a special investigator unless "there [was] sufficient information to support an allegation of possible misconduct."

In other words, the Office of Lawyer Regulation has already made a determination that the complaint against Gableman has some merit. Otherwise the OLR would have closed the matter had the grievance not "present[ed] sufficient information of cause to proceed."

But why a Republican "campaign consultant" is still speaking on behalf of a sitting State Supreme Court Justice is anybody's guess. After all, it's consulting with Republican operatives that got Michael Gableman into this latest pickle in the first place.

eta: Gableman merits Howard Bashman's blawg.

More excitement for Gableman

Already facing possible discipline from a Judicial Commission complaint, state Supreme Court Justice Michael Gableman is now also under investigation by the Office of Lawyer Regulation for long-distance calls to campaign fund-raisers and donors from his office when he was a district attorney.

Madison lawyer Paul Schwarzenbart has been named special prosecutor by the Office of Lawyer Regulation in the case.

In all, 60 calls went from Gableman’s office to Republican campaign offices, [former Wisconsin Republican governor Scott] McCallum fund-raising staff, and McCallum donors in the weeks before Gableman hosted a June 2002 dinner for McCallum, records show. Most of the calls were brief, but some lasted 15 minutes or more.

McCallum appointed Gableman to be Burnett County circuit judge two months after the event.

Another Gableman investigation — Journal-Sentinel

Gableman: This is not news

The bolded portion, at least:

The [Wisconsin] state Judicial Commission levied charges today against state Supreme Court Justice Michael Gableman, alleging he knowingly misrepresented facts in a campaign ad that helped elect him in April.

Milwaukee Journal-Sentinel

We may assume "knowingly" based on Gableman's qualifications to sit on the Wisconsin Supreme Court. Link to the ad right here.

eta: Gableman campaign statement at WisPolitics.com.

The Judicial Commission's complaint (.pdf; 5 pgs).

Poor Mike Gableman

It's been some time since we've encountered Daniel Suhr, the fresh young GOP fellow in the robin's egg sweater vest combo.

Now it seems that Master Suhr has taken special umbrage at Adam Liptak's description of renowned conservative Republican Mike Gableman as "a small-town judge with thin credentials" in the pages of the New York Times. "This East Coast elitism is just rancid," moans the young GOPer.

First of all, Siren, WI is a small town by any measure.

But it's simply not true, Suhr 'argues,' because Mike Gableman's "four years as a front-line prosecutor is more than [Wisconsin Supreme Court] Justices Abrahamson, Bradley, and Butler have combined." Naturally, young Daniel doesn't mention that Justice Butler has been a judge — on three different courts — for longer than Mike Gableman has been a lawyer.

And a highly effective front-line prosecutor Mike Gableman was. So effective that he sat on a homicide case for two years, one so cold blooded that the criminal complaint indicated the alleged perpetrator blew a hole in his wife's back with a shotgun as she fled away from him, and the county where Mike Gableman toiled as a prosecutor refused to elect him to the Wisconsin Supreme Court, despite every surrounding county's determination to the contrary.

Likely because Ashland County is where they know "front-line prosecutor" Mike Gableman the best. And by the time charges were filed by Gableman's successor in office, after Gableman high-tailed it to an administrative position at a 20k per annum pay cut thanks to his political connections with former Republican governor Scott McCallum, the defendant removed himself from the gene pool.

And Mike Gableman had the temerity to claim repeatedly, during one of the most disgraceful political campaigns in recent memory, that he was a righteous advocate for victims of crime.

"I was mad as hell," the victim's cousin, Jerry Bauch said. "I was frustrated because the case simply went nowhere during the three years that [Mike Gableman] was district attorney."

That's some quality victim advocatin' right there.

However, it is true that Gableman won Burnett County fairly handily, because after all, that is where Judge Mike Gableman "presided over" 9,000 uncontested traffic tickets.

And that is no thin credential. It's enough to wallpaper Siren, WI.

"There's no need to insult the man," sniffs college Republican Suhr, who, via some particularly laughable contortions, depicted Justice Butler as a clear and present danger to the "safety, prosperity, and health of the citizens of many states, especially Wisconsin."

No, there's no need to insult the man, he just earned the privilege.

"Insane and characteristically American"

Adam Liptak has a piece in today's NYT on judicial appointments vs. popular elections, which focuses on last month's Wisconsin travesty.

In an interview, Justice Butler said the past few months had tested his commitment to elections. "My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures," Justice Butler said.

"But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality," he continued. "They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed."

Amen, brother.

And not just the campaign ads, but virtually everything written and shouted by the most obnoxious, dissembling conservative Republicans in the State.

Judge Gableman did not respond to phone messages seeking comment.

Not surprising. If I were he, I'd lay low also. Why get up now.

Patrick McIlheran's Supreme arrogance

A couple of days before the April 1 State election, Patrick McIlheran of the Milwaukee Journal-Sentinel printed an exceptionally silly — even for him — bit of absurdist fluff mocking Wisconsin Supreme Court Justice Louis Butler for a comparison that had arisen between Butler and U.S. Supreme Court Justice Antonin Scalia.

In a textbook demonstration of Proverbs 16:18, McIlheran wrote that one need only be "minimally sentient" to understand that the comparison is "towering nonsense."

The ironic truth is that McIlheran's manifestly supercilious pronouncement applies perfectly to his own ill-informed scribblings.

As I pointed out to McIlheran at the time,

Butler's approach in [State v.] Jensen is very similar to that of the most conservative members of the U.S. Supreme Court. It's a near-classic example of a very narrow reading of the text supported by an analysis of the original intent behind the Confrontation Clause.

In fact, that is one of the reasons why SCOTUS will very likely rule for the defendant/appellant in Giles v. California, a case that presents the identical question of constitutional construction that Butler addresses in his Jensen dissent.

I directed McIlheran to my own discussions of State v. Jensen posted here and then offered to bet McIlheran that Justice Scalia would adopt precisely the same approach in Giles as had Justice Butler in Jensen.

That Giles presents the identical constitutional question Justice Butler had addressed in his lone dissent in Jensen:

Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?

The Jensen of Jensen, it may be recalled, is Mark Jensen, who was convicted of first-degree intentional homicide for the murder of his wife, whom he poisoned with antifreeze.

McIlheran declined the wager, perhaps realizing that his March 28 blog post was nearly as foolish as his earlier celebrated uncritical acceptance of this laughable characterization of Jensen:

[Justice Butler] wanted looser standard than other justices on allowing hearsay; standard preferred by Jensen's attorney

On Tuesday, the U.S. Supreme Court heard oral arguments in Giles v. California. As Lyle Denniston at SCOTUSblog — who has forgotten more about the law than Patrick McIlheran and the demonstrable liar who wrote the ungrammatical nonsense indented directly above will ever know put together — reports,

Justice Antonin Scalia was the most fervent champion of Giles’ cause, suggesting that the Court in [an earlier SCOTUS decision] had interpreted “the meaning of the Confrontation Clause” as it was understood “when the people adopted it.”

And the meaning of the Confrontation Clause "when the people adopted it" is exactly at the core of Justice Butler's reasoning in State v. Jensen. The complete transcript of the SCOTUS oral arguments is archived here (.pdf; 60 pgs.).

During the oral presentations, Justice Scalia takes pains to distinguish an exception to a hearsay rule of evidence known as the "dying declaration" from the requirements of the Confrontation Clause, which he calls "a totally different situation," precisely as Justice Butler had done. Throughout the oral arguments, in classic Scalia fashion, Scalia helps along the lawyer arguing for the defendant, Giles, and gives the attorney representing the State of California an extremely hard time ("siding with criminals"?).

Even Patrick McIlheran should be able to see this, since he claims to have been "minimally sentient during some portion of Scalia's years on the bench." I beg to differ, but I'll give him the benefit of the doubt in this case. Of course McIlheran himself may be "minimally sentient," but the said minimal sentience has little to do with understanding comparative jurisprudence generally or in particular the close parallels between Justice Butler and Justice Scalia's reasoning pursuant to the meaning of the Confrontation Clause.

McIlheran's fatuous yet arrogant commentary is a perfect example of the mis- and disinformation spread by a number of undeservedly prominent and irresponsible Wisconsin media chumps and other alleged "journalists" during the State Supreme Court election campaign — not to mention by Mike Gableman and his direct handlers and enablers themselves — and we have them all to thank for that "stellar example of democracy in action" whereby roughly 9.6% of the State's registered voters rid the other 90.4% of one of the smartest appellate court judges in the country. As smart as the beatified (and not in the Jack Kerouac sense) Antonin Scalia, it would appear.

And they're actually "proud" of it, evidently in the Proverbial sense.

eta: It looks as though April 24, 2008, is Let Us Now Celebrate the Wisdom of Patrick McIlheran Day in the Wisconsin blogosphere:

Taking Pro-Life to the X-Treem

Patrick McIlheran loves DDT

McIlheran v. People of Earth

And even a wistfully touching defense:

We can't all be Nino [Scalia]

McIlheran interviewed a hand-selected conservative GOP hackette named Kellyanne Conway? Oh well, then; I take it all back. :rolleyes:

By the incompetent, for the competent

I got this comment from the ubiquitous "anonymous" in alleged response to my post here the other day:

"Rather than accept the will of the people you now want to deprive the people of their right to vote."

Where did I say I didn't accept the "will of the people"? Of course I accept the "will of the people." That's the whole problem.

One of the provisions of the Wisconsin constitution reads, "Laws may be enacted excluding from the right of suffrage persons adjudged by a court to be incompetent or partially incompetent."

All we need to do is adjust the definition of incompetence somewhat. And even then, we don't have to adjust it all that much, because such persons would be excluded from voting based on a showing of mere partial incompetence.

It needs only be adjusted enough to exclude, for example, persons who actually believe that Charlie Sykes is telling the truth. Because if you don't have the wherewithall to make that simple determination, then you're practically within the purview of the legal definition of competence as it stands, which refers to the ability to tell right from wrong.

Determinations of incompetence, in the legal sense, seek to adduce some degree of mental infirmity or incapacity. Years ago I helped a friend of mine coach a hockey team of so-called incompetents. They were a bunch of young men with Down Syndrome and other forms of what we used to call mental retardation. Incompetent? I think not. For one thing, they were about the sunniest, most carefree gang of human beings you ever met. Until they got on the ice, when they became as like one of those multi-elbowed subcontinental deities but with the head of Gordie Howe.

I can't say whether they knew the difference between right and wrong, according to the legal sense of competence, but they knew the difference between hockey and not-hockey. And for Canadians at least, that's far more important.

For plenty of Wisconsinites, too. The laws of statistics dictate that of the 100% of attendees at Milwaukee Admirals or Wisconsin Badgers games, only 19% of them voted on April 1. Less if they drove up from Illinois, where they're forced to endure the Chicago Blackhawks.

Besides, you want incompetent? Check out this column by another of Milwaukee's medium wave chuckleheads:

Butler, a former public defender, is such an extremist on the rights of criminals that he has been dubbed "Loophole Louie" in reference to his willingness to overturn convictions.

Mark Belling should be excluded from suffrage on the strength of that slice of rampantly fallacious idiocy alone. And anybody who reads that while nodding blithely in agreement clearly doesn't know the difference between right and wrong either. That's incompetence.

What's that you say? The legal definition of competence embodying the ability to distinguish between right and wrong is a reference to morality and not the competence to make factual determinations? Well, sorry about your luck, but you're probably the same people who criticized a Butler teevee ad depicting Justice Butler as "doing what's right," so you can't have it both ways. Furthermore, the objections to that ad were misplaced as a matter of the philosophy of law, but that's a subject for another day and another post.

Moreover, how does one get to portray as an indication of the "will of the people" only 19% of them bothering to exercise their right to suffrage? It seems to me that the "will of the people" is better expressed by the 81% who didn't vote because they didn't care, or didn't even know there was an election on April 1. If 81% of registered voters don't care enough to vote in the first place, then how could they possibly object to an effort to ensure only the best and smartest judges sit on the State's highest court of appeals?

Chances are good they wouldn't care about that either anyway.

Anonymous goes on, quoting the Gettysburg Address of all things, which was uttered by a U.S. president who represents near-anathema to proponents of so-called "States' rights," to jabber some nonsense about "liberals." Even as things stand, elections to the Wisconsin Supreme Court are supposed to be non-partisan. Last I checked, the Wisconsin Supreme Court Rules are part and parcel of the Wisconsin statutes, which are themselves a direct expression of the "will of the people," enacted as they are by the popularly elected legislature.

I regret to say that even anonymous her-/him-/itself would be swept within my proposed adjusted definition of competence, if not the existing one. This is the reason I moderate comments here, to generously protect persons adjudged to be embarrassing themselves publicly. But occasionally I slip up and let one through.

Yeah, I'm an elitist. So what?

Marquette Law School Prof. Rick Esenberg did not deliver his best work to the Milwaukee Journal-Sentinel's Crossroads section yesterday. "Half-hearted," is how I'd charitably describe it.

If I were allowed to read between the lines, I'd say that Prof. Esenberg is nearly as revolted at the most recent State Supreme Court election as I am. The only reason I say "nearly" is because he received the reward he sought: the replacement of one of the smartest and most highly regarded judges in the country with a de facto and de jure Homer Simpson.

I also have to wonder if Esenberg actually voted for Mike Gableman or, like my piano student James, did the right thing but held his breath for the wrong outcome. At least, that's what I told James he'd done. (He laughed; James also has a sense of humor.)

It's impossible to take seriously Esenberg's portrayal of the two candidates as "reasonable lawyers with deep philosophical differences," as if there were comparable records from which to draw this implied equivalence of competence. Was Esenberg even paying attention? The only thing we ever heard from Gableman was the same old tired, empty GOP namecalling, of himself as a "textualist" (all judges are textualists — what, do you think the law is written in ham sandwiches?) and Justice Louis Butler an "activist" who decides cases in advance based on personal whims.

In other words, meaningless and — more to the point — baseless and indefensible rubbish. If Gableman has a philosophy, or is capable of enunciating one, or even knows what a judicial philosophy is or what it means to have a judicial philosophy, then maybe Prof. Esenberg can fill us in. But he certainly wouldn't be getting any of his impressions from Gableman himself. All Esenberg would be able to do is criticize Justice Butler's extensively documented jurisprudence and then claim Gableman represents his opposite number. Which is essentially all Esenberg has been able to muster in the first place.

Esenberg's anecdotal allusion to Ted Kennedy's goofball performances at Senate Judiciary Committee hearings on federal court nominees is every bit as unconvincing. Hardly anybody takes Kennedy seriously in that context. More the norm — or at least the ideal — is Arlen Specter's justly celebrated grilling of Robert Bork, which Ronald Dworkin described as one of the most compelling examples of American democracy in action.

And contrary to popular Republican "wisdom," Bork borked himself; it wasn't Ted Kennedy who borked Bork. That pesky Indiana law review.

Or how about the repugnantly obsequious tongue-bathings of GOP committee members like Orrin Hatch or — the worst of the worst — Jeff Sessions, whose inquiries of G.W. Bush judicial nominees elicit about as much probative intellectual content as asking the prospective Article III judges for their favorite brownie recipes, and then to comment approvingly on their own magical deliciousness.

As a newly minted supporter of a Wisconsin Supreme Court appointment process, even I'm willing to put up with those sorts of vacuous charades.

American democracy, let us recall, is decidedly not of the direct variety. The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms, because the Framers understood that the mob's inflamed passions would compel it to turf its representative yahoos out of office almost as quickly as it had installed them. And inflamed passions are the antithesis to the rule and the process of law.

The power of incumbency (a.k.a. hockey socks full of cash contributions stuffed in exchange for obeying moneyed interest groups) has changed all that for the most part, of course.

The call for the appointment rather than the popular election of judges inevitably invites catchy GOP charges of "elitism" from those who would prefer appellate courts empaneled with Homer Simpsons and Fred Flintstones. Bring on such charges, I say. Of course it smacks of elitism. Our highest appellate courts are supposed to be comprised of the elite. They are the elite. Anybody from Plato to Thomas Aquinas to James Madison and Alexander Hamilton (the poster boy for American political elitism) can tell you that.

Or Thomas Frank, whose What's The Matter With Kansas? Esenberg also disparages yesterday (without explaining why). Frank shows exactly how conservative caterwauling about "liberal elitism" is a fatuous joke and in fact a ridiculously embarrassing false pretense to political and cultural victimhood on the part of conservatives.

By close analogy, witness the disingenuous howls of persecution by American Christians, 85% of the population, driven back into their caves like the Essenes by a handful of atheists, many of whom are reluctant to identify themselves as such for fear of being scorned and shunned to the detriment of their very careers.

Ultimately, Prof. Esenberg's vaguely Churchillian thesis appears to be that popularly electing our State Supreme Court is the least worst option available. He can't possibly be serious, especially while at the same time declaring that he loves the law (which I don't doubt for one instant).

For one thing, an appointment process will have the meritorious effect of excluding the Mike Gablemans from our highest courts of appeal. That alone is enough to commend such a process. The strange case of Harriet Miers aside, does anybody seriously think the likes of Mike Gableman would be mentioned in the same breaths as the likes of John Roberts or Samuel Alito, even by Karl Rove?

Obviously a method of appointing — as opposed to the popular election of — judges will not erase the political content of the selection process. Who ever said it would? And what isn't political in this country? One of the reasons I got a law degree was so I could better understand the daily newspaper. Everything is political here, and all politics ultimately rests on some legal question.

And conservative Republicans needn't be concerned they'll be forbidden from engaging in precisely the same lobbying of a judicial selection committee with which they're able to insult the public's intelligence now. Happily, Wisconsin Manufacturers & Commerce will still retain its ability to micturate all over the Bill of Rights.

I have no idea what success State Rep. Frederick Kessler's proposed constitutional amendment will enjoy, if any. But, given the experience of Wisconsin's latest Supreme Court election, I wouldn't be able to bring myself to not support it.

Speaking as someone who also loves the law, the election was a shameful affair, and one can only pray it never happens again. Even I will pray, to Saint Thomas Aquinas, if that's what it takes.

CFAF "deemed" criminally inept: Part 11

As promised — or, depending on one's perspective, threatened — the next entry in that which has now become what singer/songwriter Paul Simon, in his most severe bowl-haircut days, might have called "a simple desultory philippic." We last left off at the Coalition for America's Families [sic] (CFAF) case 60., State v. Stuart.

I'm going to skip the next case, State v. Richard A. Brown, just because. I figure if CFAF can simply arbitrarily and capriciously exclude it from "its" list of cases, which it did, then so can I.

Unlike CFAF, however, I will get back to it.

If there is any justice or truth, then CFAF these days is hiding its collective head in abject shame. Not so, incidentally, for CFAF's leading cheerleader, chief helper-elf in legal analysis and statistics, and alleged "journalist," who has lately taken to not just lying, but lying through her teeth, rather than check up on a handful of easily verifiable facts. And this is apparently what they're teaching in university Reporting 101 classes nowadays. Given the choice, I'm inclined to humor, but that's just sad. Profoundly so.

So evidently in certain quarters, there not only exists neither justice nor truth, there exists in their stead a willful, deliberate, and determined effort to avoid both at any costs.

On a less serious but equally pathetic note, the next case, State v. Hale, is the final case on the list of 62 Wisconsin Supreme Court decisions that CFAF appropriated from the Butler campaign upon which to perform its extravagant litany of nefarious hijinks.

I quote directly from the CFAF document in my possession:

There are 6 cases missing from [the Butler campaign's] analysis, a yes is where CFAF deems Butler w/ the criminal.

Thereupon follows, I kid you not, the names of seven cases. How manifestly not surprising and what a classic examplar of CFAF's relentlessly desperate fumbling and bumbling. As I've observed previously, you simply cannot make this stuff up.

62. State v. Hale 2003AP417-CR

Rick Esenberg of Marquette Law School wrote recently, "[She] says that she has the 'against' and 'for' numbers. Let's take her at her word." The statement is by turns astonishing and laughable. State v. Hale is yet another fine example of why.

Hale contains five separate opinions: the majority opinion by Justice Bradley, and concurring opinions by Chief Justice Abrahamson, Justice Wilcox (joined by Justices Crooks and Prosser), Justice Prosser (joined by Justices Wilcox and Roggensack), and Justice Butler.

When judges write concurring opinions, it means they join the majority opinion's central ruling, which in this case was the unanimous affirming of Hale's three criminal convictions, but they would have reached that result through different reasoning, based on their interpretation of the underlying numerous and varied legal questions that lead to the result.

I don't mind admitting that it would probably take me at least two days of close analysis, research, and writing to tease out each separate legal question from Hale (and there are many other multi-opinion examples like Hale) and assign each judge's disposition on each question as either "pro-defendant" or "pro-State." And, even then, such assignments would be subject to reasonable review and objection from the likes of Rick Esenberg. Moreover, he would still need to present his own analysis as to why any such assignment was misapplied by your humble reviewer. And then rebuttal and so forth.

At the same time as imploring us all to take a demonstrable prevaricator "at her word," Esenberg has himself suggested a number of alternative denominators — other than the criminal convictions themselves — by which "for" or "against" the constitutional rights of criminal defendants might be assessed. Some of these suggestions certainly have merit.

But if somebody imagines that the prevaricator in question — or anybody — could have performed a similar task on 70 decisions in two days, well, then that somebody needs their head examined, not to put too fine a point on it (or on the examined head).

To be fair, Esenberg did at least distance himself from the term "pro-criminal" at one point during his series of discursive academic vacations before allowing, "I think someone tried very hard to get a very low number and may have allowed that desire to get in the way of his or her better judgment."

One might accept this as the Understatement of the Millennium with respect to both CFAF and its helpful elf's now-thoroughly debunked projects, but Esenberg was referring to the Butler campaign(!).

It's abundantly clear now that the Butler campaign did not "cook" any number. The cooking, frying, baking, basting, broiling, barbecuing, and sauce-reductioning occurred entirely in the comedy kitchens of CFAF and its prevaricating elf.

If the Butler campaign committed any misstep at all, it issued from Justice Butler himself during his interview with the Milwaukee Journal-Sentinel editorial board when he said, "I voted to uphold the convictions 75% of the time." I recall immediately thinking, on hearing this, 'Wait until Esenberg gets a hold of that one, he'll be on it like a dog with a bone.' Which is exactly what happened.

What Butler should have said — and I'm fairly certain, without even asking him, what he meant to say — was that in 75% of the cases involving criminal convictions, his vote did not disturb the existing conviction, which remained completely intact. And that is correct to within less than two percentage points, as I've shown, through my laborious presentation of each individual case to which Butler was making reference.

"Laborious," incidentally, is a reference to the impositions made on the kind reader, and not to those happily engaged by the writer.

Nevertheless, CFAF didn't "deem" State v. Hale "w/ Criminal," but rather passes it by without comment.

Thus ends the list of cases that not only couldn't CFAF produce itself, instead relying on material produced by the Butler campaign, it manipulated and twisted and otherwise transparently schemed and scammed the cases into confirming beyond a shadow of any doubt its own sleazy machinations informed by profound incompetence: its own and, as it turns out, that of its helpful prevaricating elf.

Considered separately, sleazy machinations and profound incompetence are bad enough. But profoundly incompetent, sleazy machinations are a quite remarkable addition to the panoply of preexisting "family values." A remarkable and singularly unwelcome addition, in my own considered estimation.

I'll get to CFAF's remaining seven (or is it six? Math hurts!) cases after State v. Richard A. Brown.

ttfn