Friday fallacy funnies

One of my pet peeves (I tend to cultivate a number of them) turns on the expression "ad hominem" as it is often popularly applied. Many people think it means simply "insult," as if calling someone a stooge or a buffoon is an ad hominem. Not so.

Argumentum ad hominem (argument against the man, or person) is a type of logical fallacy, committed when one attempts to undermine an opponent's argument by claiming something about the opponent's character affects the quality of the argument itself. The fallacy obtains from the fact that there is no logical connection between the argument stated and the character of the person putting forward the argument. In other words, bad people can make good arguments; being bad cannot per se make your argument bad.

Misunderstandings over what ad hominem means are not confined to your garden variety Daily Kos comment-leaving trolls, either. Consider the following, from a quartet of well-heeled Milwaukee attorneys working for silk stocking firms down the road from your humble correspondent:

False advertisements or ad hominem attacks are never appropriate. But Wisconsin citizens are smart enough to distinguish between fair criticism and scurrilous smears.

"Scurrilous smears" are not in and of themselves ad hominem. While ad hominem may involve a scurrilous smear, ad hominem requires that the smear is put to use for the purpose of undermining an otherwise perfectly valid and well supported argument. A smear or an insult standing alone are just those, a smear or an insult.

Another thing about the ad hominem is that they are often easy to find, although truly textbook quality examples are less common. By fortuitous coincidence I just happened to find one this morning at, of all places, the online lair of one Daniel Suhr (see below) made all the more comical by the website's title block, which declares the entire domain to be devoted to "Systematically Debunking Liberal Rhetoric."

Here, let me show you it.

Following a wistful missive entitled, "I'm tired of John McCain's lies," a fellow named Gregory chimes in to offer a number of eminently reasonable observations on the recent GOP Florida presidential primary. Moments later, the aforementioned Suhrian associate Brian, author of the wistful missive, rejoins:

Gregory,

You’re a Democrat. That isn’t an accusation, that’s a fact. Do you think I’m going to take anything you say seriously? Of course liberals like you prefer McCain to Romney. So does the collectivist New Yawk Times.

That, ladies and gentlemen, is worthy of submittal to Prentice Hall.

More patent dishonesty from WMC

So James A. Buchen, one of the handful of characters in charge of Wisconsin Manufacturers & Commerce's political activities, claims that WMC "actively lobbied for final passage of the [University of Wisconsin] budget."

"But no such lobbying effort shows up in WMC's report to the state Government Accountability Board," according to the Milwaukee Journal-Sentinel's Patrick Marley.

Instead, Buchen points to one sentence from its Legislative Agenda, buried in a .pdf file deep within WMC's website.

Buchen was responding to outgoing UW Chancellor John D. Wiley's plangent asskicking that appeared online this morning.

Even better, Chancellor Wiley also accused WMC of engaging in personal attacks against former State Supreme Court Justice Louis Butler, which WMC unquestionably did.

Yet James Buchen flatly asserts, "WMC did not engage in personal attacks, and that is simply false."

Unfortunately for James A. Buchen, what's utterly false is his own statement. The truth is that in two of WMC's teevee ads, the business outfit did nothing except engage in personal attacks.

WMC's personal attacks are otherwise known as circumstantial ad hominem, a logical fallacy, in which WMC freely indulged.

A circumstantial ad hominem is one in which some irrelevant personal circumstance surrounding the opponent is offered as evidence against the opponent's position. This fallacy is often introduced by phrases such as: "Of course, that's what you'd expect him to say." The fallacy claims that the only reason why he argues as he does is because of personal circumstances, such as standing to gain from the argument's acceptance.

This is precisely what WMC did.

During this year's State election campaign, WMC produced and aired spots devoted to Justice Butler's lone dissenting opinion in a case called State v. Jensen. In that opinion, Butler enunciated an argument based on the Sixth Amendment to the Constitution and its history that was subsequently affirmed by the most conservative Justices of the United States Supreme Court in a similar case out of California.

However, rather than engaging Justice Butler's reasoning, WMC portrayed him as someone "delivering loopholes" and "siding with criminals who threaten our safety." In its other Jensen ad, WMC referred to the Sixth Amendment itself as a technicality, and suggested through its use of Butler's ancient nickname that Butler was actively seeking to find a "technicality" in the case.

Louis Butler, decades ago, worked for the Wisconsin State Public Defender. He earned the nickname, which WMC put to such shamelessly fallacious use, because he was good at that job. Even assuming that the task of criminal defense lawyers is "finding loopholes," it's completely irrelevant to the role of a Supreme Court Justice, who is an advocate for neither side in disputes.

Here are the texts of both WMC teevee spots:

We count on judges to use practical common sense to keep violent criminals behind bars. But faced with an unspeakable crime, Justice Louis Butler almost jeopardized the prosecution of a murderer because he saw a technicality. When prosecutors needed to show critical evidence, Butler dissented, going against six other Justices. Thankfully, he didn't get his way. Jurors said it was the most important piece of evidence they saw. Call Louis Butler. Tell him to stand up for victims, not technicalities.

We've heard it before. Judge cites loophole, sides with criminal who threatens our safety. Take Justice Louis Butler. His colleagues called him Loophole Louie. A woman beaten to death with a bat. Butler uses a loophole, suppressing critical evidence. A husband poisoned his wife. Butler cites a loophole, almost jeopardizing the prosecution. Butler doesn't mind being called Loophole Louie. He says it's affectionate. Call Justice Louis Butler. Ask him to deliver justice, not loopholes.

This is pure personal attack, nothing more. Neither ad says anything about the constitutional arguments Butler forwarded in his opinion in Jensen. Argumentation attacks arguments. Ad hominem attacks the person: personal attacks. That's what ad hominem means.

And you'll never hear a peep out of WMC that Justice Antonin Scalia arrived at the same conclusion as did Justice Butler based on the same constitutional principles and their historical antecedents.

Not loopholes, and not technicalities. The Sixth Amendment. And because the Sixth Amendment applies not only to the federal government but also to the States, Justice Scalia's opinion is now the law of the land. Justice Butler beat him to it, that's all.

UW Chancellor Wiley is entirely correct in characterizing James Buchen's attempt at defending WMC's personal attacks as "lame." In fact it's beyond lame. It's disingenuous and intellectually dishonest.

But there's nothing surprising about that, as the entire campaign against Justice Butler — including that of his politically motivated challenger — was marked by patent dishonesty from start to finish. And, evidently, it continues still, thanks to those who speak on behalf of Wisconsin Manufacturers & Commerce.

Rappin' with Dad29, foil-hatted conspiracist

In which local wing-nut Dad29 ("old, nasty") joins the conspiracists.

Take it away, Dad29:

A month or so ago it was clear that [Dane County Circuit Judge Maryann] Sumi's kangaroo-ing was designed to delay a decision. That delay would result in [Supreme Court of Wisconsin] review of the case after Prosser was out, i.e., after August 1st. Of course, Kloppenburg had to win. Oh, well.

The backup plan is now in play. Kloppy requests a recount, which will take a long time.[*] As of 8/1, SCOWI becomes a 3-3 tie (at least in theory, but [Chief Justice Shirley] Abrahamson has counted her chickens very carefully). Ergo, a Madison Appeals court ruling will stand. Kloppy's just roadkill here. It's the vacancy on SCOWI that counts.

It was difficult to resist, on a lazy Sunday:

What Madison appeals court ruling?

shut up the tin foil crowd [Quoting Dad's mentor Esenberg.]

Hear that Dad?

Dad29:

What Madison appeals court ruling?

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet. You expect that SCOWI will take the case directly, illyt? On what basis?

Your humble scribe:

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet.

Right, but there is no appeals court "ruling." There was the [Department of Justice]'s District IV appeal, which the latter kicked upstairs, and the DoJ's ability to effectively represent its plaintiff secretary of state appears to be irretrievably broken. So that thing is dead in the water (maybe Cathy Stepp could fish it out). And there is [Secretary of Administration] Mike Huebsch's petition for a supervisory writ, also filed by the DoJ, a terribly unconvincing document, I'm sorry to tell you.

You expect that SCOWI will take the case directly, illyt? On what basis?

I don't expect them to, unless they want to rule the Open Meetings Law unconstitutional, at least insofar as it applies to the express prohibition on the sufficiency of the Fitzes' 1hr and 57m meeting notice (why wasn't Jeff Fitz in his office, by the way, when the witching hour was imminent? That's probably the biggest FUBAR in this entire escapade). But I would like to see the court declare the OML unconstitutional, for sheer entertainment at least. Imagine all of those restraintful, conservative jurisprudes "unmooring" themselves from the plain text and relying instead on Cromwell-era common law. What fun.

Incidentally, Daddy-O, you and your wing-right pals really need to stop criticizing Judge Sumi with your goofball ad hominem japes, as they embarrass nobody but you all (but of course you can keep it up for the pure entertainment value as well). What it tells people who have read the law (beyond Prof. Rick's "publication that is sent to schoolchildren," that is) is that you've got nothing *but* ad hominem fallacies. I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

By the way, Dad, have you had a gander at Judge Sumi's record on appeal? Here, let me show you it.

Dad29, back for more:

I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

I have, from Prof. Rick, who actually practiced law for quite some time — successfully.

As to Sumi: she gets the respect that she earns. No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Your humble scribe:

I have, from Prof. Rick ...

Well, good for you guys. You might find it interesting that Prof. Rick's watershed, controlling precedent, Goodland v. Zimmerman [Anno Domini 1943], barely makes an appearance in the Huebsch petition for a supervisory writ. Instead, the petition focuses primarily on La Follette v. Stitt.

You want to know why? Because the facts and law at issue in Ozanne v. Fitzgerald precisely describe that situation which Stitt repeatedly insists it does not cover. Go read Stitt (it's online), and see how quickly you lose count of the 'excepts' and the 'unlesses.' In other words, Stitt is unavailing, and JBVH knows it, as is Lynch v. Conta and as is MJS v. Wis. DoA, but we (and District IV) knew that already.

Grandes problemos, Daddy-O. You'll see (maybe). By the way this business is all constitutional law and statutory construction, which you don't need 20 years experience taking depositions to evaluate. And there's plenty of other pretty sharp cookies among the Marquette law faculty who haven't practiced a whole hell of a lot of law.

No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Except Judge Sumi hasn't done that. What do you think the briefing schedule is for? Besides, the convincing argument is sitting up right there among the black letter constitutional and statutory provisions. Have a look-see, Pops.

More Père le vingt-neuf:

But then, no one with half a gourd would have believed someone could issue a TRO [temporary injunction] against a law which is not actually a law, either.

And some law:

Wis. Stat. § Dad(29): [N]o one with half a gourd would have believed someone could issue a TRO against a law which is not actually a law, either.

Wis. Stat. § 19.97(2): [T]he district attorney may commence an action ... to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment ...

Why, it's unthinkable!

You're funny Dad.

Finis.

* It won't take a long time. Outside of MKE Co., it's a can of corn. Once the precincts get set up, the recounting will go very quickly.

It's not like they're counting one big bag of 1.5M ballots. They're counting several hundred much smaller quantities and tallying 'em up

Bad week for creationists

Looks like the “intelligent design movement” picked the wrong week to continue sniffing glue.

First, PBS brought its oft-celebrated dissembling modus operandi to the national airwaves. Then, “intelligent design theorist” Michael Behe was forced to admit that one of the central claims in his book, The Edge of Evolution, is demonstrably false.

Now, one of the other “intelligent design” top dogs, mathematician and theologian William Dembski, has been caught misappropriating a computer generated video, evidently the copyrighted product of Harvard University and a corporation, XVIVO.

The Behe episode is especially entertaining, as he was originally exposed by a 24-year-old female graduate student named Abbie Smith. In fact, Behe's initial response was to blow her off, for being just that, the classic ad hominem fallacy or, in this case, the argument against the woman.

But a fellow named Ian Musgrave took up cudgels on Ms. Smith's behalf and initiated a series of open letters, to which Behe responded at his Amazon.com blog. The entire exchange is archived here. It's a lot of reading, is quite technical, and refers to a lot of side links (all worthwhile), but it's instructive, to say the least.

Ultimately, Behe doesn't have the balls to concede the point to Ms. Smith, who made it in the first place, but rather to Musgrave.

Smith, who is rapidly becoming a cause célèbre among the biological sciences crowd, maintains a blog called ERV (short for endogenous retrovirus, since she's a researcher of HIV/AIDS). She also provides laymen's translations of her original Behe critique here and here.

In fact it was Ms. Smith who busted Dembski on the Harvard/XVIVO video as well.

That bit of unintelligent redesigning is both shameless and shameful, given the ID movement's agenda to retool scientific methodology by insisting that it allow for the Hand of Jesus in the construction of cellular organelles.

Dembski is traveling about, like a circus clown or monkey, charging several grand a pop to deliver lectures backed by a video swiped from Harvard researchers, from which he's removed the biology and added subtitles describing cells as “lilliputian machinery factories” or some such nonsense.

He's also appended to it an absurdist narration, which Abbie Smith describes as sounding like South Park's Big Gay Al.

PZ Myers of Pharyngula has a bit more on Dembski's opéra bouffe here. It might be nice to think any of this was surprising, but it isn't. It's typical. And, you can count on the glue sniffing to continue.

Are you now or have you ever been

The following is part of a remarkable exchange that took place last Wednesday at the Wisconsin Supreme Court, during an open hearing on various proposed amendments to the rules of judicial conduct, between Michael Gableman and Virginia M. Bartelt, the attorney for a petitioner, the League of Women Voters of Wisconsin:

Michael Gableman: Counsel, we're discussing funding here and impartiality. Who funds the League of Women Voters?

Virginia Bartelt: It comes from a variety of sources. Certainly the league itself is an interest group.

Gableman: Does uh, do those sources include the Open Society Institute?

Bartelt: I'm sorry that I don't know the answer to that.

Gableman: If I indicated that the League of Women Voters' official website listed the Open Society Institute as one of its donors, would you have any reason to doubt that?

Bartelt: I would have no reason to doubt it.

Gableman: Do you know what the Open Society Institute is?

Bartelt: I don't know, your honor, but the executive director of the league is [telling me] that that is not a member of the Wisconsin association.

Gableman: Okay. So, but the Open Society Institute is one of the donors to the league.

Bartelt: It's possible. Nationally.

Gableman: And that's a George Soros-funded entity. Do you know that?

Bartelt: I don't know that.

Gableman: Okay, so you wouldn't know, for instance, how much George Soros has contributed to the League of Women Voters in the last, say, five years.

Bartelt: I would not, your honor.

Gableman: Or the last year.

Bartelt: No.

Gableman: Could you find that out.

Bartelt: I imagine that I could.

Gableman: Would you.

Bartelt: Certainly.

Gableman: Okay. What kind of time frame do you think.

Bartelt: Within five days.

Gableman: Okay. Thank you.

Gableman's objective here is blindingly obvious: To discredit the League of Women Voters of Wisconsin by linking it to one of the paranoid right-wing's favorite boogeymen. He's playing at cheap politics, this time directly from the bench of the Supreme Court.

Except the LWVW isn't a State Supreme Court; it's an organization of people concerned about the public's perception of the court's impartiality. That is, the LWVW has no such obligation of its own to impartiality even remotely analogous to that of the court's.

And theirs is a legitimate concern: A poll showed that nearly 80% of Wisconsinites believe the impartiality of their State courts is compromised by campaign contributions, those same Wisconsinites whose lives are affected by those courts' decisions.

When Gableman launches his inquisition against the LWVW, he's implicitly placing the court on equal terms with a political organization. Look again to his introductory proposition: "We're discussing funding [of judicial candidates] here and [public perceptions of] impartiality [on the courts]."

And then he turns those questions toward the LWVW. It's almost as if he's acknowledging that the Supreme Court is simply another political interest outfit, the same as the LWVW or Wisconsin Manufacturers & Commerce (of whose counsel Gableman, conspicuously, never demanded any similar disclosure of specific contributors).

At — of all possible venues — a public inquiry into judicial bias.

In making a presentation to the court, the LWVW deserves a fair hearing on the merits of its petition and not a transparently political ad hominem attack from an obvious right-wing ideologue.

Whatever his politics, and to whatever organizations he chooses to distribute his money (a.k.a. speech), George Soros is an American citizen, with just as much right as anybody to support whichever causes he cares to, which is supposedly a right that Gableman and his fellow "traditionalists" on the Supreme Court support unreservedly.

In light of the fact that Gableman himself benefited from nearly $2M worth of Wisconsin Manufacturers & Commerce largesse and tens of thousands of dollars in campaign contributions received from out-of-State donors, the irony of Gableman's political faux-trage and deliberately selective line of interrogation verges on the hypocritical.

The League of Women Voters of Wisconsin should reconsider and decline to give Gableman the documentation he's demanded, at least until he demands the same from all of the other petitioners.

Screamers vs. Invokers

Reportedly, the Federalist Society has lately taken to marshaling its formidable legal acumen in defense of former vice-president Richard B. Cheney, Ninth Circuit Judge Jay S. Bybee, et al.

Inquires a Federalist Society worthy, presumably rhetorically: Why should we look to, for example, the waterboarding Grand Inquisitors, when we have the U.S. military's SERE program, in which willing waterboardees were quickly un-drowned at their throwing down of the safe signal. Um, because perhaps the former are more analogous?

The Federalist Society's "purpose," as we are duly advised, "entails reordering priorities within the legal system."

Check. However disingenuously, evidently.

Locally, Marquette University law professor and FedSoc operative Rick Esenberg has promised a series of "blog posts" examining the rationale behind the so-called torture memos.

He's tipped his hand quickly, however, with an amusingly revealing choice of action words. In the course of laying out his internal debate's "guidelines," he describes torture critics as "screaming" while on the other hand, torture defenders are calmly "invoking."

In doing so, Prof. Esenberg has left little doubt as to where he thinks the reasonable conclusions lie. So, let's dispense with the ruse.

Not content with only this dichotomous ad hominem, Esenberg erects a Straw Man to boot: The "screamers," says he, are those doing so "without much thought about what was actually done and how often."

Fallacies aside, here's hoping Prof. Esenberg deigns to address the numerous non-screaming torture critics, those who have actually given a lot of thought to what was done, as well as to how often.

Because there appears to be a considerable quantity of them, including, notably, the former Viet Nam POW and current Senator from Arizona (and especially his comic sidekick) that Prof. Esenberg energetically supported for President of the United States.

Whatever Prof. Esenberg's ultimate conclusions, we can all expect the Milwaukee Journal-Sentinel's in-house torture apologist and guide to good reading, Patrick McIlheran, to be salivating in anticipation.

Dane County Republicans sure are a sad bunch

All five or six of the poor sods.

Get a load of this willful self-embarrassment. How pathetic.

As I was just saying, ad hominem is the best they can muster. No argument and worse: failed humor. It's desperation, plain and simple.

Hope they really enjoy JoAnne Kloppenburg for Supreme Court taking 70% of the vote there on Tuesday, thanks to their scofflaw "leaders."

Manimal29 fails Logic 101

How embarrassing.

Accusing one's interlocutor of "refusing to accept Aristotelian definitions" whilst simultaneously refusing to accept Aristotelian definitions one's own self is not the most effective debating tactic.

Particularly where the said accusation is deployed as an alleged premise to a non sequitur during an argumentum ad hominem.

Fortunately a rational animal is still an animal.

Blowing every time they move their teeth

A fine editorial in the Washington Post this morning, on the subject of the Palin-McCain campaign's "increasingly reckless ad hominem attacks" against Illinois Senator Barack Obama:

Our sense is that Mr. Obama is a man of considerable intellectual curiosity who can hear out a smart, if militant, advocate for the Palestinians without compromising his own position. To suggest, as Mr. McCain has, that there is something reprehensible about associating with Mr. Khalidi is itself condemnable — especially during a campaign in which Arab ancestry has been the subject of insults.

Much as I said yesterday. The Palin-McCain gang are a pretty pathetic bunch, if they cannot engage the views of Prof. Khalidi but rather are reduced to not only fabricating his own associations but erecting even more tenuous fabrications on top of those, in particular Senator McCain's comparison of Khalidi to "neo-Nazis."

Their entire campaign is simply an appeal to fear and ignorance.

More from Juan Cole.

Not even WPRI can spin this

And they collected the data:

Since mid-November the percentage of people who strongly oppose Wisconsin Governor Scott Walker — who view him "very unfavorably" — has more than doubled from 19% to 41%.

TMJ-4's makeup department better order a few extra kilos of talcum for Charlie Sykes tomorrow morning. Those lights are warm enough.

Even more remarkable:

Half the people in the survey were asked how they felt about "stripping most public employees of their right to collectively bargain over benefits and working conditions as part of a ploy to eliminate public employee unions altogether." With the issue framed that way, 58% opposed it and 32% supported it.

Thirty-two percent support a cunningly dishonest government-run project to take advantage of its own citizens. Isn't that lovely.

eta: On his teevee show this morning, Charlie Sykes took pains to point out that WPRI's pollster Ken Goldstein is a public employee. Doubtless Prof. Goldstein would appreciate this snide ad hominem swipe at his academic and professional objectivity.

Yet despite Sykes's heroic efforts to downplay the significance of the WPRI poll — its sample of respondents skews disproportionately toward union and Democratic households, he claimed — left completely unsaid throughout was the poll's greatest significance: that it comported substantially with a number of recent Statewide and national polls conducted by both Democratic and Republican outfits, all of which substantially comport with one another.

To wit, both Scott Walker and his policies are highly unpopular.

"Really diverse group we've got here today," said Sykes of his panel, which contained two WPRI "senior fellows" and Patrick McIlheran.

McIlheran nominated Scott Walker his "Winner of the Week" while Sykes said of the 14 Democratic Senators that the "adults" among them were being "held hostage by extremists like Chris Larson and Lena Taylor." Sykes also predicted that either the Senate stand-off will end early this week or else it will go on for "months," adding false dichotomy to his ever-expanding repertoire of logical fallacies.

Mercifully, no panelist attempted an analysis of the merits of Republican Senate leader Scott Fitzgerald's ersatz "arrest warrants."

OTOH it might have made Sykes's one-note tedium entertaining.

Death of irony confirmed

"Like I said, I give very little credence* to a gang lead [sic] by IT who posts from the 'Champagne of Hate Blogs' and touts his 'Anti-Christian Bigotry' bona fides on his sidebar."

— a college Republican

See also: the ad hominem fallacy.

* Down On The Corner

Closing statement on Fitz Van Walker arrogance

For the record, Tuesday, March 29, in the Year of our Lord 2011:

I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.

— Robert Jambois, atty. for Assembly Minority Leader Peter Barca

The hearing continues Friday* and it is not going well for JBVH & Co.

Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.

And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.

The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.

I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.

The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.

* April Fools Day, the third anniversary of Mike Gableman's election.

** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.

Prophecy, is what Oliver Wendell Holmes, Jr. called the law.

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.

That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).

Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.

Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).

The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****

Fitzgerald in turn acted on the basis of that advice.

More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.

By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.

Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.

*** Who had done nothing whatsoever unlawful.

**** Face down or face up was left to Big Fitz's wise discretion.

A classic ad hominem

From a comment at the Wall Street Journal's law blog:

Laurence Tribe is a down in the weeds socialist. Glib comments referring to certain issues as States' issues only is nothing but a self-serving ingratiation to this big government advocate. — "Tom"

The WSJ had asked Prof. Tribe to evaluate potential attempts by Congress to get back the AIG bonuses from the perspective of several provisions in the U.S. Constitution. One of them appears in Art. I, Sec. 10, and reads in pertinent part:

No State shall pass any law impairing the obligation of contracts.

So which part of "No State" doesn't Tom understand? [/glib]

Liberals in denial: The Orin Kerr Affair

"[I]t is intercourse." — Chief Justice John Marshall

Yesterday liberals went bananas, pursuant to a post by Prof. Orin Kerr at the Volokh Conspiracy, in which Kerr accused U.S. District Judge Henry E. Hudson, the author of Monday's PPACA opinion, of making a "significant error." Brian Beutler at TPM therefore called Hudson an "amateur," and MSNBC's Keith Olbermann made Hudson his "worst person in the world." Many others bowed to Kerr's apparent authority, including the inexplicably popular Madison blogger Ann Althouse.

None of them bothered to check Kerr's work before pounding out their screeds. But what should have been immediately obvious to anyone who had read the opinion — including Kerr — was that the passage Kerr was criticizing was not part of the judge's "ruling" but rather that portion of the opinion that was reiterating the arguments of the two parties, in this instance a claim made by VA's AG Ken Cuccinelli.

The following comment appears below this excellent rebuttal to Kerr:

Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The [necessary and proper] clause does not establish [its own] substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.'s analysis in Gonzales, Lopez, and Morrison* demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

In layman's terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

The absence of economic activity cannot be regulated by Congress under the [interstate commerce clause], regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

Hudson's opinion could perhaps have been more explicit on this point, but it is hardly necessary.

Comment by Aged Attorney — 12/14/2010 @ 5:38 pm

Good stuff.

* Gonzales v. Raich (at issue: growing medical marijuana) stands for an expansive view of Congress's interstate commerce power, while U.S. v. Lopez (gun-free school zones) and U.S. v. Morrison (1994's Violence Against Women Act) both stand for a more restrictive application. These three Supreme Court cases (and a handful of others) provide much of the doctrinal grist for both supporters and opponents of the PPACA's individual insurance mandate.

All three cases, however, are addressed to deliberate activities.

eta: Think Progress issues a thoroughly ad hominem objection.

We're aware Henry Hudson is a Republican. As is John E. Jones III.

Out-of-State agitator seeks Bradley criminal charge

Among the right's relentless and speculative efforts to exonerate the documentedly anger-disposed Wisconsin Supreme Court Justice David Prosser (at left) from even a whiff of wrongdoing and instead hold an alleged victim of workplace violence responsible for and guilty of whatever transpired in Justice Ann Walsh Bradley's office on June 13, the latest is wing-nut professor William Jacobson's negligently disingenuous "theory."

Bradley may face obstruction charges, avers Jacobson, seizing on her use of the word "chokehold" in describing how Prosser came at her.

Blarghing desperately, Prof. Jacobson scours the literature in a facile attempt to implicate Justice Bradley herself of misdemeanor criminality. Contends Jacobson, if the contact made by Justice Prosser* does not conform to Jacobson's strict "legal" definition of "chokehold" culled from "police control procedures" and also the venerable treatise Wikipedia on Judo, then Bradley must be prosecuted to the fullest extent of the law.

"No one should be allowed to escape the consequences of Bradley's chokehold allegation, including Bradley," harrumphs the instructor.

Always thinking, these law professors! Sadly for Prof. Jacobson, a (the?) leading Wisconsin Supreme Court case on obstruction, State v. Reed (2005 WI 53), chokes off his own wing-nuttery. Were State prosecutors to press obstruction charges (§ 946.41(2)(a)) against Bradley per Jacobson's excited fantasies, they would face an insurmountable burden.

Reed unanimously affirms that among the elements the State needs to prove in a successful obstruction prosecution is that "[t]he defendant intended to mislead the [investigating] officer."** And according to the professor's fantasies, the State would further need to prove that Justice Bradley was mindful of Jacobson's technically restrictive understanding of "chokehold," and that Bradley deliberately eschewed Jacobson's definition for some more colloquial understanding. In other words, not quite the normal standard to which victims of alleged crimes are normally held.

Nor in fact Wisconsin's criminal defendants, for that matter.

Even assuming that Justice Bradley, in Prof. Jacobson's fevered dream of seeing her behind bars, must be held strictly to Jacobson's Wikipedia on Judo standard, that Justice Bradley further describes Justice Prosser placing both hands around her neck as a "chokehold," there is this:

Mistaken answers ... are not false statements made with intent to mislead the police. People can also disagree. People can have legitimate disagreements about what the facts are. People can also legitimately disagree on what the facts mean. Legitimate disagreements cannot form the basis for an obstructing charge.

Emphasis added. That's the law right now, in the State of Wisconsin. Which is to say, one person's both-hands-around-my-neck is another person's shime-waza (絞技), or yet another's police procedure manual.

Not only is there that but there is also this:

Knowingly made false statements that are not made with intent to mislead cannot form a basis for the charge of obstructing.

So in other words, even if Justice Bradley knowingly eschewed the pseudonymous internets contributors to Wikipedia on Judo and knowingly ascribed the description "chokehold" to a non-Jacobson-approved-both-hands-around-her-neck move, prosecutors would still need to prove — beyond a reasonable doubt — that Justice Bradley did so with the intent to mislead officers. Good luck with that one buddy.

If Jacobson expects all that to happen, then he's clearly gone 'round the bend. And indeed State v. Reed made the law more restrictive with respect to the rights of criminal defendants than it had been previously.

Prof. Jacobson should read State v. Reed not just to inform himself on Wisconsin law just in case he decides to go off an yet another ridiculous goose chase but to appreciate the clear, stepwise reasoning of former Justice Louis B. Butler, who wrote the majority opinion. Butler lost a close election in 2008 to Mike Gableman, after the latter deliberately and deliberatively lied about then-Attorney Butler's handling of a criminal appeal and Wisconsin Manufacturers & Commerce ran more than 3,000 broadcast ads criticizing a Butler dissent, the substance of which was affirmed by the most conservative members of the U.S. Supreme Court.

WMC did not similarly attack Scalia, Thomas, Alito, or Roberts.

Doing so would have been too logically consistent and honest and therefore violative of the strictest tenets of political conservatism in the current WISGOP mode, which favors both dishonesty and illogic.

Along the same lines, Justice Butler's opinion in State v. Reed adheres closely to traditional notions of conservative jurisprudence and indeed reverses an earlier Supreme Court case which had written into the obstruction statute an exception for "exculpatory denial[s]." Such exceptions, Justice Butler wrote, are best left for the legislature. Needless to say the cherry-picking practitioners of ad hominem fallacies at Wisconsin Manufacturers & Commerce never mentioned this case.

* No source denies Prosser came into physical contact with Bradley.

** Jacobson actually leaves this statutory provision out of his blog post.

The statute reads: "'Obstructs' includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process." At first glance it might seem that the "with intent to mislead" applies only to the "knowingly placing physical evidence." But that is not how we read the law. We read the law thus: "'Obstructs' includes without limitation knowingly giving false information to the officer ... with intent to mislead the officer in the performance of his or her duty ... " Based on Prof. Jacobson's truncated presentation of the obstruction statute, it appears he's made an egregious error in statutory construction, and the remainder of his reasoning — such as it is — obtains from that error.

Remarkably, Jacobson ignores the intent element altogether.

This is a professor of law, folks. Granted, a professor of law to the wing-nuts (check out the crazed commentary at Jacobson's blargh post).

Shorter Huebsch v. Sumi

If you don't have time to watch yesterday's entire marathon Wisconsin Supreme Court oral arguments, just watch these three lawyers.

Wisconsin Eye Part 2 of 3:

01:07:44 — Robert Jambois, counsel for Rep. Peter Barca
01:33:12 — Lester Pines, counsel for Sen. Mark Miller
02:05:18 — Roger Sage, counsel for Sec. of State Doug La Follette

Mr. Sage's presentation might be said to be optional, as he is addressing the question of whether 2011 Wisconsin Act 10 was published in the constitutional sense, and you already know all about that. In fact many of the issues raised by Messrs. Jambois and Pines would already be familiar to regular readers of this here blog. And while the Milwaukee Journal-Sentinel is reporting that the justices "expressed skepticism" toward the reasoning contained in Judge Sumi's temporary and final rulings, which is true to some extent, you won't hear much skepticism from the bench during either the Jambois or the Pines presentations.

And while the Journal-Sentinel reports* that "the most aggressive questioning came from Justice Michael Gableman," it came during the presentation of Dane County DA Ismail Ozanne (00:01:18) who, with all due respect, is probably less used to addressing the structural constitutional questions at issue in these two consolidated cases.

Last night apparently there were some rumors circulating that the court was preparing to vacate Judge Sumi's ruling, which would have the effect of codifying 2011 Wisconsin Act 10.** If that were to come to pass, I suspect the law might again be enjoined immediately, on the same factual grounds its publication was enjoined in the first place. And the said codification would have the effect of rendering Gableman's objections moot almost in their totality, insofar as those objections were grounded in the beloved 1943 case Goodland v. Zimmerman, which teaches that a court may not interfere with the legislative process until a bill becomes law (that is, in Wisconsin, once its publication is made).

Gableman's apparent objections appear to presume that the trial court, where Judge Sumi presides, is a rule-making authority rather than a circuit court making a narrow decision based only on the facts presented in evidence to that particular court.*** In other words, the concerns expressed by Gableman and appearing in the lead paragraphs of the Journal-Sentinel report are representative of a slippery slope fallacy.

Generally courts do not make rulings grounded in logical fallacies.

But you never know, with this one.

In any event, the guy you have to watch is Justice Patrick Crooks, who raised concerns similar to those of my friend Bill Tyroler, who suggests that the authority conferred on the district attorney by the Open Meetings Law to challenge the constitutionality of the legislative process is itself an unconstitutional delegation of power by the legislature to the executive branch, under which auspices the district attorney operates.

As this space has been observing practically since the outset of this controversy, it seems to me the only way the court can vacate Judge Sumi's very conservative, very restrained reasoning is to find the provisions of the Open Meetings Law upon which Judge Sumi relied to be themselves violative of judge-made — or at least judge-inferred — constitutional law doctrine. Why the Wisconsin Department of Justice is pursuing the objective of restricting public access to the operation of State government is either a mystery or completely typical and expected of the Republican Scott Walker administration and its disciples and allies.

* And once again, it is simply not correct to say that Judge Sumi was "allowed" to file a legal brief further to building maintenance supervisor Mike Huebsch's petition to the Supreme Court for a supervisory writ directed at Judge Sumi. Judge Sumi was ordered by the Supreme Court to file the brief. And now she is being criticized for not disobeying that order. This is how absurd the Wisconsin Department of Justice, under the direction of Deputy Attorney General Kevin St. John, has become.

** a.k.a. "legislating from the bench."

*** Among the more amusing moments during yesterday's proceedings was when Chief Justice Shirley Abrahamson directed Deputy AG St. John to cease and desist from referring to the circuit court as an "inferior court." The circuit court's function is different; it is not "inferior." And indeed the expression "inferior court" is plucked from federal law — which has no bearing on the cases at bar — where it appears in the federal Constitution. In fact, as this space has pointed out previously, despite the U.S. Constitution's reference to "inferior courts" which may be created from time to time by the Congress, the Article III judicial power inheres equally among the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts (the parallel entities to the State circuit courts). Shirley is the best.

St. John, like many a right-wing ideologue, is a devotee of ad hominem.