How come the Wisconsin redistricting SNAFU?

Because Acts 43 and 44 were passed creating the new State Senate, Assembly, and Congressional districts before municipalities had finished creating their local wards.

And who made that brilliant decision? Your famous WISGOP is who.

So they could have them ready for national GOP approval, no doubt.

You know who Reince Priebus works for, right? And you know who gave unethical judge Mike Gableman free legal services to ensure he stayed on the court where redistricting challenges were most likely headed: Michael Best & Friedrich and national Republican Party activist Jim Bopp.

What a racket,* and an incompetent one at that.

"Connect the dots, connect the dots." — Pee-Wee Herman

* "Syndicate" might be a better word.

Who's paying Mike Gableman's lawyer Viet Dinh?

Or, for that matter, his "Master of Disaster"?

Gableman's attorney, Viet Dinh of Washington, D.C., said the resolution was nothing more than a partisan political attack that "reveals the underlying motivation and insidious nature of the attacks against Justice Gableman." — via the AP's Scott Bauer

I hope it's not much, if that's the best he can come up with. Poor Gableman. He's being attacked. What goes around comes around dude.

Mike Gableman attacks his own current colleagues fer chrissakes.

And who paid the infamous out-of-State agitator Jim Bopp? Bopp, Esq. of Terre Haute did the heavy lifting in Gableman's ethics case.* So effective was Bopp's counsel that he actually caused Justice N. Patrick Crooks to change his mind from favorable to adverse pursuant to a motion for disqualification filed against Gableman in a criminal appeal.

* And who paid Federalist Society member Anita Y. Woudenberg?

Mike Gableman is a walking make-work project for Republican lawyers.

Walker judicial team brings the Gableman defense

Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.

Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?

Put another way, you don't want to be cynical, but they force you.

Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.

On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.

Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."

Good grief.

* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.

And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.

As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.

** And it's not fallacious to attribute the counsel's views to the client.

Justice Prosser hires James Troupis

Which is intriguing because this.*

Troupis, Bopp, a Koch-funded legal outfit ... this baby's got 'em all.

Interestingly, Mike Gableman once grilled a Wisconsin lawyer about George Soros but apparently never saw fit to grill a Minnesota lawyer about David Koch. Ain't no double standards there at all, Nosiree.

* Mr. Troupis is representing every petitioner but the kitchen sink. As is our old pal Prof. Rick. Small world aina? By the way, that may look like a lot of individual respondents but that's the Wisconsin Government Accountability Board: Six judges and its general counsel.

Troupis wrote the famed "carried ... feet first" legal memorandum which even its recipient, Scott Fitzgerald, described as "comical."

This whole shebang is comical alright.

Wisconsin Supreme Court: Among my souvenirs

A Vote for Prosser yard sign autographed by Mike Gableman

Now that's got to give even Justice Prosser the heebie jeebies.*

* Then-Burnett County circuit judge Michael Gableman caught a bad, bad case of the judicial ethics in 2008, and it's pending to this day. Despite Justice Prosser's best efforts, Gableman and his out-of-State Republican lawyer Jim Bopp never managed to get it dismissed. Pity.

Gableman's revisionist "success"

Says the Milwaukee Journal-Sentinel:

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

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

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

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

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

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

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

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

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

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

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

Thanks, conservative Republicans!

For taking credit where there is none to be had:

Mark Block, State director for Americans for Prosperity, said his group's filing forced the board to back down more quickly in the case it agreed to settle Tuesday.

Makes sense. That explains why One Wisconsin Now, and not Americans For Prosperity, is party to the proposed settlement.*

And here's our old pal Jim Bopp:

The proposed settlement "indicates that (the GAB) feels they are really concerned that the rule was unconstitutional, or they would be mounting a vigorous defense," Bopp said.

I doubt that. More likely, OWN demonstrated successfully that the rule would apply to some speakers that the rule wasn't necessarily formulated to reach. That doesn't make the rule unconstitutional, it only makes its application in certain situations unconstitutional.

The rule itself may still survive — and perhaps even many of its applications. (Atty. Bopp knows this, obviously. It's just that he's a bit less of a constitutional lawyer than he is a professional Republican rabble-rouser.)

Mr. Bopp is perhaps best known in Wisconsin for his representation of State judge Michael Gableman. The Wisconsin Judicial Commission filed an ethics complaint against the judge in 2008, which Gableman and Bopp fought unsuccessfully to have dismissed.

* An Obama appointee is expected to confer his blessing today. Conservatives can (and probably will) take credit for this as well. It goes as follows: 'See, if we hadn't arbitrarily and capriciously obstructed Obama's nomination of Louis Butler, he'd have got this case and shut us all up and confiscated our firearms in the process.'

Court shameful, dysfunctional: Former justice

Former Wisconsin Supreme Court Justice William Bablitch said it was shameful the court issued decisions that order two different outcomes. "I don't know what the Judicial Commission is supposed to do, flip a coin?" he said. "It's just further evidence of the deep divisions in the court and the dysfunctionality in the court. It's very discouraging."

Well, it can't be that dysfunctional. Just this week the court issued three unanimous decisions, two 6-1 decisions (Justice Prosser dissented in both), and one 4-3 decision, the latter being comprised of the unprecedented triumvirate of Justices Bradley, Roggensack, and Gableman in complete agreement.

What's caused a division are Gableman's "distasteful" shenanigans before he reached the court,* which apparently his colleagues are capable of setting aside when it comes to the business of deciding unrelated cases. But the fact that Gableman has demonstrated a high degree of competence on the bench doesn't mitigate the seriousness of the ethical violation three of those colleagues believe — with very good reason — he committed in furtherance of securing that seat.

* And after, at least through his lawyer's own distasteful shenanigans. Recall that Justice Crooks underwent a sea change in his view of the defendant's motion to recuse in State v. Allen, after Crooks got wind of James Bopp's performance at Gableman's demand for summary judgment hearing in his ethics case last September in Waukesha.

And who can say whether those shifting waters lapped onto the shore of Justice Crooks's decision to refuse mooring Gableman in the safe harbor of summary judgment. [That's enough metaphor — ed.]

Gableman bounced back to Judicial Commission

Upping the ante, three of six justices want a defamation trial

Sadly, the approach offered in defense of the advertisement at issue here would approach the Code of Judicial Conduct in the manner of wordplay and linguistic gamesmanship, rather than as an embodiment of substantive ethical standards.

— Opinion of Abrahamson, Bradley, and Crooks

To the surprise of probably no one, the Wisconsin Supreme Court has reached an "impasse" in the matter of Michael Gableman (depicted at left). Three justices, Prosser, Roggensack, and Ziegler, said last night they "anticipate" that the Wisconsin Judicial Commission will formally abandon its ethics complaint against Gableman (significant to the court's opinions, a complaint that Gableman himself has not been successful in having dismissed).

[eta: Gableman is reportedly dancing a victory gavotte-by-proxy.]

The other three justices, Chief Justice Abrahamson, Bradley, and Crooks, gave "directions" to the Commission to request a trial by jury to determine whether Gableman's scurrilous 2008 teevee ad deliberately and maliciously misrepresented facts about then-sitting Wisconsin Supreme Court Justice Louis B. Butler.

It's not immediately clear whether half of an equally divided court (Gableman, titularly the seventh member, is not participating) has any authority to compel those directions in this case. Nor is it clear, even if half the court does possess that authority, whether the Judicial Commission long since relinquished its opportunity to exercise its own authority to request a jury's factual review.

According to the court's general provisions in the Wisconsin statutes, the Commission may request a jury hearing in a matter, but it has to do so before it files a formal complaint, which it already did in October, 2008.

The latter requirement, it seems to me, presumes a resolution once the Commission advances its case, something that has yet to be achieved even after its reaching through the State Supreme Court. But the court yesterday was unanimous in its view that the next move, whatever it might be, belongs to the Judicial Commission.

[eta: Learned counsel Rob Henak suggests it move into Club Fed.]

The Commission in 2008 chose instead to present its case not to a jury but before a three-judge panel. That presentation happened last September in Waukesha County. Two months later the panel handed up its recommendation, which the Supreme Court is not obliged to follow. The panel recommended that the complaint against Gableman be dismissed, but two judges also found that Gableman had violated a different provision of the code of judicial ethics.

The third panelist, Ralph Adam Fine, disagreed substantially and found Gableman had by his deeds committed the more serious, punishable violation alleged by the Commission, but that the ethics rule itself was an unconstitutional abridgment of speech and thus not enforceable against Gableman.

As I said at the time, Judge Fine's separate opinion was the most significant. That turns out to have been an accurate prediction.

Judge Fine was the only one of the panelists who rightly found ludicrous Gableman's defense that the statement clearly professed in his ad, that Butler's professional obligations as defense counsel contributed to causing the rape of an 11-year-old mentally disabled girl, could be overlooked in favor of isolating an audiovisual ad's script, breaking that script into individual, brief English sentences and, moreover, ignoring the meaningful connections between those.

It's a defense that Prosser, Roggensack, and Ziegler succumbed to, and one that Abrahamson, Bradley, and Crooks rejected entirely.

The latter three justices determined that Gableman's statement — "statement" is a crucial term of legal art in this case whose meaning as applied to the ad has never been sufficiently explored, imho — regarding Butler's causal connection with the rape (the others coyly attribute the message to "then-Judge Gableman's campaign committee") was arguably and provably defamation uttered in malice and as such is not availing of First Amendment protection.

Those justices emphasized — as has been repeatedly emphasized at this here blog — Gableman's own affirmations that he had made himself thoroughly familiar with all of the substantive and procedural circumstances of Butler's representation as an appellate attorney for Reuben Lee Mitchell and therefore had to have known that his — not his "campaign committee's" — teevee ad conveyed a false statement of fact. (Or, as the Commission puts it, Gableman lied.)

The three also tossed in a factor contributing to their determination that hadn't been addressed until, ironically, Gableman's lawyer James Bopp of Indiana brought it up during the proceedings. This has to do with the case citations that appear as text at the bottom of the teevee ad which, when investigated as Mr. Bopp had suggested, deviously point away from the fact that Butler's appeal on his client's behalf was ultimately rejected by the Wisconsin Supreme Court.

More later. Obviously there's much to say about these opinions.

Opinion of Prosser, Roggensack, and Ziegler
Opinion of Abrahamson, Bradley, and Crooks

Quote of the day II: Gableman edition

Remarkable:

"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick Esenberg

This is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.

That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*

In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.

Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.

But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:

In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.

Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.

More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.

Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.

That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.

Gableman's disciplinary proceeding is currently in its third year.

* The WJC has said repeatedly that Gableman "lied."

Reporters need to read legal opinions

Or else ask somebody who has. According to the Badger Herald:

Crooks said that Bopp's comments "startled and appalled many in the legal community," and he called on Gableman to distance himself from the lawyer's views.

No, Justice Crooks did not "call on Gableman to distance himself from the lawyer's views." Justice Crooks simply observed that a recent statement of Gableman's pledging to treat "all persons fairly" did not include a repudiation of Bopp's comments. That's just a plain fact.

Justice Crooks's overarching point was that Gableman's lawyer Bopp's remarks turned up in supplemental filings to Aaron Antonio Allen's initial request to have Gableman recused from hearing his criminal appeal and the court was giving short shrift to those additional factors by refusing to order additional briefing on the matter.

A reporter should know the difference between reporting and advocacy, a particularly crucial distinction in this instance, where no such advocacy exists. Gableman also claims that Justice Crooks's observation is a "rebuke" and a "gratuitous personal attack," but neither of these hyperbolic accusations is supported by the record.

Gableman set his own table. He sure ain't no victim.

What is the sound of one irony meter exploding

Gableman wants Crooks off of ethics case

Here's why:

Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion [to get Gableman off of his case], thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

Unintended consequences.

Apparently Gableman is concerned about getting a fair hearing before an impartial tribunal, and is troubled by "gratuitous personal attacks" and "personal criticisms" which might have a tendency to generate the appearance of judicial bias against the respondent, Gableman.

Who would have ever heard of such things.

Here's my question: If Justice Crooks recuses himself from future participation in Gableman's ethics case, will Crooks thereby be denying Gableman's First Amendment right to vote in a general election for the State Supreme Court justice of his choosing?

What about the 499,636 Wisconsinites who voted for Justice Crooks?

WJC v. Gableman oral argument

Friday, April 16, 2010, at 1:30 p.m.

Featuring the litigious stylings of the RNC's Mr. Jim Bopp?

Who, exactly, is to blame?

Wisconsin Supreme Court Justice David Prosser writes:

The Allen motion ... has been followed by nine additional recusal motions against members of this court [seven of which are "against" Gableman]. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against [Gableman] in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court. The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court.

Or, alternatively, Gableman should have anticipated the controversy that he engendered by engaging in scurrilous political subterfuge.

Savagery, indeed. Sorry, but it's mighty hard to sympathize.

That the court today divided 3-3 on Allen's motion to disqualify Gableman (who did not participate*) means the motion is neither granted nor denied.** Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion, thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

So beware those nasty unintended consequences. Heckuva job, etc.

* Which may seem obvious, but according to the lead opinion, Gableman was undecided for some time over whether to participate on the more impersonal question of whether the court, as an institution, had the authority to overrule an individual judge of that court's own decision not to disqualify himself from a case.

** Rather, the motion is "not granted." Furthermore, as Chief Justice Shirley Abrahamson put it: "As a practical matter, Justices Prosser, Roggensack, and Ziegler are implicitly telling all litigants in Wisconsin that they need to go to the federal courts to seek relief from a Wisconsin justice who they believe is biased."

Perhaps that's another clue as to the meaning of "Federalist Society."

Earlier: Bopp's demagoguing was completely unnecessary.

Voter doesn't care if Gableman ad is true or not

In defense of Michael Gableman's political campaign:

[Gableman] campaigned on a stereotype we all believe: No one likes "Slimy" defense lawyers. ... As for Reuben Lee Mitchell: It is a distasteful card to play, but facts are facts. He was released, and committed another crime. I don't know if Louis Butler's actions directly led to his release,* but he was involved.

Bizarre reasoning** is protected by the First Amendment.

* They didn't, and in fact (see, supra: "facts are facts"), "release" was never the remedy sought to begin with. The question was whether certain evidence was admissible at Reuben Lee Mitchell's trial, evidence that was barred by statute, those statutes written by the people's representatives in the Wisconsin State legislature. On appeal, a total of ten appellate judges (including a unanimous Supreme Court) agreed that the evidence was inadmissible according to the plain language of the statute. Those are the facts.

In other words, what Louis Butler was doing was following the plain language of the legislature's law, something Gableman never tired of reminding us was his own special mission in life. Given that double standard, clearly, Gableman's suggestion was that criminal defendants enjoy a different measure when it comes to having that plain language applied to them. Hence the current requests for Gableman's removal from a number of different criminal appeals.

Incredibly, Gableman's own pro hac vice lawyer, James Bopp of Terre Haute, IN, proceeded to smear Louis Butler for being the type of person who would ... er, follow the plain language of the statute.

Not to mention the United States Constitution. Lately we have been regaled with a quantity of lip service from conservative Republicans, urging the inviolate nature of constitutional rights. But when those rights come in contact with society's pariahs — to whose benefit are played out the hardest tests of those rights — the lip service is quickly abandoned in favor of political expediency and ambition.

It's those cynical manipulations which are truly offensive.

** a.k.a. undue process.

Bopp protected from Gableman's views: FedSoc

Hard to believe the stuff these Gableman apologists dream up.

Here's something,* objecting to negative reactions to statements made by Indiana lawyer James Bopp, statements made while representing and on behalf of his client, Michael Gableman:

The first big assumption is that every word said by an attorney automatically and verbatim represents the exact personal thoughts of the client.

Nobody even remotely suggested such a thing but, anyway ...

The [Wisconsin] Rules of Professional Conduct state that an attorney’s representation of a client does not constitute an endorsement of the client's "views or activities" (SCR 20:1.2(b)).

Here's how SCR 20:1.2(b) reads:

A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

In other words, the rule purports to insulate the attorney from having attributed to him the client's views. For obvious reasons, such as a lawyer providing representation to a white supremacist, or to a doctor who performs abortions (as is explained in the Comments published below SCR 20:1.2(b)).

The purpose of the rule is to help ensure that even clients "whose cause is controversial or the subject of popular disapproval" may secure legal representation. Exactly opposite of what the Federalist Society's student recruiter is trying to show, which is that the client is protected from the attorney's political, etc., views. Baloney.

To be sure, SCR 20:1.2(b) protects Bopp against being ascribed the opinions of Gableman by dint of Bopp's legal representation, not the other way around. But what Wisconsin law says, as the learned counsel William Tyroler (who, to the best of my knowledge, is neither from Indiana nor on the FedSoc payroll) put it here some time ago:

"Surrogates" — client Gableman and counsel Bopp enjoy a principal-agent relationship (as do all attorneys and their clients). State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) ("The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty.") In a word, Bopp is Gableman's mouthpiece. We can assume that Bopp, the agent, utters words approved by and therefore attributable to Gableman, the principal.

Yet the FedSoc official soldiers on nevertheless:

In a similar way, an attorney’s unscripted response to a reporter’s question should not be treated as though it came from the mouth of the attorney’s client as an exact representation of his personal thoughts on the matter.

Nothing but hyperbole here and in any event not similar to the present situation. Moreover, Bopp made substantially identical remarks in court, on the record, in the course of directly presenting Gableman's defense to a panel of three Wisconsin appellate judges.

Live and in person.

Agent Jim Bopp's statements are reasonably understood as those of his principal, Michael Gableman. That's what the law says.

And I clearly recall a number of occasions when Gableman promised to follow the law (as opposed to following the rules, which seems to have been an endeavor more distinguished by its arbitrariness).

* Intriguing too, is the Federalist Society employee's own objection to Justice Butler's disposition toward the accused's right to present evidence in his defense at trial: Forest Shomberg is innocent.

Is it any wonder, then, that he would champion Bopp's strategeries?

I guess I read it differently

According to (of all things) the Wisconsin Law Journal:

A three-judge panel unanimously encourages the state Supreme Court to dismiss a complaint filed against Justice Michael J. Gableman by the Wisconsin Judicial Commission, concluding that a campaign ad run by Gableman’s campaign in 2008 did not violate the Code of Judicial Conduct.

But see:

[W]e conclude that the facts alleged in the complaint do not constitute a violation of SCR 60.06(3)(c) for which discipline may be imposed. — Judge Harry Snyder (emphasis added)

I write separately ... to emphasize that, although the panel recommends that the Commission’s complaint against Justice Gableman be dismissed, no one should be misled into believing that we find no fault with the advertisement in question. Justice Gableman’s counsel virtually conceded at oral argument that the advertisement is misleading because it falsely implies that Justice Butler’s representation of Reuben Mitchell caused or resulted in Mitchell’s release from prison, and it thus contravenes the "aspirational" second sentence of SCR 60.06(3)(c). — Judge David Deininger

Although I agree with the Majority’s bottomline recommendation that the supreme court should dismiss the Judicial Commission’s complaint ... I respectfully disagree with its analysis—specifically, its conclusion that the advertisement did not violate the first sentence of SCR 60.06(3)(c), which is the only provision that could subject Justice Gableman to discipline because of the advertisement. — Judge Ralph Adam Fine

That is, they all concluded that Gableman did violate the code of judicial conduct. Judges Snyder and Deininger decided that Gableman couldn't be disciplined for his violation, and Judge Fine decided that the (different) provision Gableman violated is unconstitutional.

Make no mistake: The panel did not recommend dismissal of the Wisconsin Judicial Commission's complaint because Michael Gableman was found to be innocent of the alleged violations.

Gableman's lawyer, James Bopp, described the panel's recommendation as a complete vindication, the AP reported.

Perhaps, in his troubled fantasies.

Wisconsin's award-winning justice

Albeit not a particularly coveted award:

Lying Hypocrite of the Year: Michael Gableman
The most recent inductee into Wisconsin's once-honorable Supreme Court isn't a great legal mind or even especially qualified. But he got elected in 2008 with big-time help from big business and a campaign ad falsely suggesting his opponent found a loophole to let a child molester re-offend. Faced with a Judicial Commission complaint, he argued that the deliberately misleading ad couldn't be punished because its component parts were true. In other words, noted one judge who recommended tossing the charges, he found a loophole! Here's a 100% true statement: Justice Gableman is a disgrace.

Bill Lueders, making me feel chaste and demure by comparison.

Jim Bopp [Gableman's defense lawyer*]: It is a loophole, that had nothing to do with [Mitchell's] guilt or innocence.

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

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

That little exchange is always good for a mordant chuckle. Atty. Bopp is no dummy; he knows what total bullshit it is he's defending.

* Who hails not from Wisconsin but from Terre Haute (which — irony of all ironies — translates roughly as "higher ground"), Indiana.

It's a dirty job, but somebody's got to do it. And it's funny, because Reuben Lee Mitchell had a constitutional right to Louis Butler's representation, whereas Gableman has none to Jim Bopp's, his current and ongoing predicament being a civil controversy (although there's nothing at all civil about the cheap sleaze at the heart of it).

Gableman recusal motions keep piling up

This one comes from prominent defense attorney Dean A. Strang.

We have not seen this latest motion, which was filed Monday, but Prof. Richard Esenberg of Marquette Law School assures us their "rationale" is "primarily (though not quite entirely) based on the now infamous Reuben Mitchell ad and certain statements made by Gableman's lawyer, Jim Bopp, in the course of defending Justice Gableman on ethics charges stemming from the ad."

Those two things. "Not quite entirely" = certain understatement.

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

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

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

Yes, somehow the argument was magically transformed from "a loophole" to "not a loophole." Please. Either it was or it wasn't.

The law didn't change. Nay, not one jot nor tittle, as they say.

And we have yet to hear Mr. Bopp explain how the admission or non-admission of evidence* — upon which juries base their findings of guilt or innocence — has nothing to do with guilt or innocence.

Apparently had a jury found Mitchell not guilty, Mr. Bopp would have nevertheless found him guilty and yet accused others of a "willingness to subvert our system." In the course of defending Mike Gableman.

Of course Bopp has a First Amendment right to mouth absurdities.

Coincidentally, a notorious and "shadowy" third-party Mike Gableman fan club, the Coalition For America's Families, brazenly courted a defamation suit for pulling a similar stunt, pronouncing guilty a defendant whose conviction had been reversed. With friends like these, etc.

This is how these people think, and every indication is that Mike Gableman thinks this way too. And that is what these motions for recusal are primarily based upon, not simply two discrete events.

* In this case, evidence that is barred by the Wisconsin legislature, a fact both acknowledged and affirmed by a unanimous Supreme Court.

Rick's nature trick: Hide the denial

So Professor Esenberg doesn't care for certain descriptive English words, as he indicates in his latest missive on what he's christened "Climatequiddick," which is apparently a light-hearted and cute allusion to the tragic drowning of Mary Jo Kopechne in 1969.

The careful reader will note that what has got Prof. Esenberg's dander up was this post, highlighting his false claim that compilers of a chart on the cover of a 1999 report of the World Meteorological Organization "combin[ed] two different measurements and pretend[ed] they are the same thing and mischaracteriz[ed] what data show."

This is the claim of Prof. Esenberg's with which I took issue. Except he avoids this and instead inventories a collection of vocabulary employed from time to time at this blog (which is part of the internets and tends occasionally to adopt its vernacular, although I don't believe I have ever used Ms. Kopechne as a figure of fun):

"Teabagger", "wingnut", "not very smart", "moron", "calumnist" "ignorant," "fraud," "dishonest," "lying," etc. You'd think that arrogance, if it must be expressed, should be earned, but I guess that "denializer" is not so bad.

This is supposed to be an argument, I guess, so please feel free to use the search function at the upper left corner to determine whatever context they were used in and if it was even me that was using them and not as part of a quotation from somebody else.

For example, "teabag," the verb, was coined by a Fox News reporter.

"Morons," as Prof. Esenberg conveniently overlooks, is what his friend Charlie Sykes called some Milwaukeeans who held a vigil at North Ave. and Oakland on Friday night to commemorate the conference on climate change currently underway in Copenhagen.

It's my understanding that Charlie Sykes is not exactly a shrinking violet himself when it comes to colorful language describing his perceived political adversaries (in this case, the youthful idealists that Sykes so abhors and mocks at every available opportunity).

So how come Prof. Esenberg doesn't similarly take Sykes to the woodshed, if it's so terribly not nice to call people morons? Evidently it's acceptable as long as you're Charlie Sykes, whose obsequious consideration of Prof. Esenberg is as a "renaissance man."

(Perhaps he'd settle for just "medieval warming period man.")

"Calumnist" is a term coined by yours truly (I think [eta: not]) to characterize the Milwaukee Journal-Sentinel's self-described "right-wing guy" Patrick McIlheran, because that's exactly what he is.

"Calumny," in fact, is a relatively mild description for McIlheran's fatuous rhetorical efforts, e.g., to falsely tie one of Obama's advisers in the Department of Education to the notorious North American Man-Boy Love Association, which is what McIlheran did.

As a matter of fact, it was McIlheran's series of gross distortions, risible misunderstandings, and deployment of so-called "experts" like the Third Viscount Monckton of Brenchley that inspired a number of posts here on the topic of "Climategate."

I personally find it more than a little appalling that the biggest daily newspaper in the State of Wisconsin would see fit to publish such pure nonsense, but that's just me. It's a crazy expectation, I know.

Call me a youthful idealist (and see you at Pizza Man).

As for frauds, "dangerous frauds" is how McIlheran described scientists whose private correspondence was unlawfully uploaded to a computer server in Russia last month.

And "dangerous frauds" is how McIlheran has described those scientists despite being comically unaware* that the much-celebrated "decline" referenced in one of those e-mails was not a decline in measured temperatures but rather a decline in sensitivity to changes in temperature observed within a particular collection of a particular species of tree in a particular location in the Northern Hemisphere.

Except I have never seen Prof. Esenberg condemning Mr. McIlheran for his hysterically reactionary "opinions," which are themselves in turn grounded on his not even knowing what the hell he's talking about. No, instead Prof. Esenberg rambles away about Al Gore, who has nothing to do with any of this, as far as I'm concerned.

Ironically, it was none other than Prof. Esenberg who wrote:

On the left, bloggers like Illusory Tenant are redefining the term "denialist." There is, they say, nothing to see here and "wing nuts" who say other things are so stupid — not at all like us smart people.

Now suddenly he affects to be troubled because I placed him in the denialist camp (for good, empirical reason, as opposed to faux-trage at choice of the same nouns and adjectives his local right-wing colleagues use), an awfully slippery double standard on his part.

While I never said there is nothing to see here, I did predict very early on that the political right would attempt to construct fallacious bales of straw from what seemed to me little more than scientists "sharing around some catty messages with each other."

Which is precisely what has happened. And, despite Prof. Esenberg's continuing use of his own coined expression "Climatequiddick," he's yet to address the question I'd put to him more than once: "So I'll ask again: Is this really all you guys have? 'Hide the decline'?"

Still waiting.

* For two weeks, after which he dismissed as a "subtlety" the somewhat fundamental question of whether temperatures were rising or declining. I'm not kidding. "Renaissance man" notwithstanding, it hardly comes as a surprise that Mr. McIlheran looks up to Prof. Esenberg as he "whom I want to be as smart as someday."

To be sure, Prof. Esenberg is in fact very smart indeed, which makes some of the positions he stakes out that much more questionable.

Like this one, for example:

The rationale behind the recusal motions filed against Michael Gableman are [sic] primarily (although not quite entirely) based on the now infamous Reuben Mitchell ad and certain statements made by Gableman’s lawyer, Jim Bopp, in the course of defending Justice Gableman on ethics charges stemming from the ad.

While Attorney Rob Henak is a talented advocate, I don't believe he's quite mastered time travel, as his original motions were filed in April, and Jim Bopp didn't deliver his statements until September.