Your WISGOP lawyers in the news

On Friday, an attorney for former Wisconsin Supreme Court Justice Louis Butler sent WISGOP attorney Michael Dean a letter accusing him of libel* and asking him to retract some of his statements. On Monday, Dean in a letter acknowledged he got some facts wrong, including what case Butler discussed with former Governor Jim Doyle's judicial selection committee.

Well done, you WISGOP lawyers. You cover yourselves in glory. It's about time Butler went after their racket. They're fortunate he's a gentleman.

Very much unlike the unethical judge who took his place.

* That the WISGOP lawyer Michael Dean's "patently false [assertions] ... may constitute libel" is not, strictly speaking, an accusation of libel.

eta: Here's Dean's reply. He blames his failure to verify his patently false assertions of fact on "a computer drive failure" and his hours otherwise spent on commuting from Waukesha County to Madison. Compelling stuff, in the apparent absence of your proverbial homework-hungry dog.

IOW, sorry I'm full of bullshit but at least I got the bullshit there on time.

Classic. Some lame excuses are far, far better left unproffered.

The Journal-Sentinel's Rick Esenberg Disclaimer

I see David Haynes and the mandarins on the Milwaukee Journal-Sentinel editorial board have added a disclaimer to Marquette University Law School professor Rick Esenberg's attempt at defending Mike Gableman's reported acceptance of a gift or favor from Michael Best & Friedrich, to the effect that Esenberg recently presented oral argument before the court on which Gableman sits. Judges are prohibited by the Wisconsin Code of Judicial Conduct from accepting gifts or favors from lawyers or firms if they have or are likely to come before the judge.

That's a relatively innocuous disclaimer compared to Esenberg's prior relationships with the Gableman political campaign. Esenberg appeared in a video produced by Wisconsin Manufacturers & Commerce which was distributed at a series of WMC luncheons in 2008. Rick Esenberg's former research assistant at Marquette, Daniel Suhr, assembled a "white paper" criticizing the record of former Justice Louis Butler — perhaps the only actor deserving of the appellation "honorable" in this whole sordid affair — the misrepresentations of law contained in which Esenberg strenuously defended at his blog, where Esenberg also repeated and purported to rationalize some of the sleaziest accusations against Justice Butler.

And Rick Esenberg's Bradley Foundation-funded Kulturkampf boutique law firm, the Wisconsin Institute for Law and Liberty, hired Tom Kamenick, a former clerk of Gableman's, as an associate. It's like incest but without the sex. Given the foregoing, the Journal-Sentinel's disclaimer is a bit of a joke. The fact that Esenberg argued a case before the Supreme Court isn't such a big deal, unless you realize what case it was, which the Journal-Sentinel's disclaimer doesn't identify.

The case is Wisconsin Prosperity Network v. Myse and Esenberg presented the argument instead of James "Carried ... feet first" Troupis, who represented Justice David Prosser during the latter's political campaign last spring. It's also the case from which Prosser disqualified himself in September, 2011 apparently after being pressured by the Journal-Sentinel's reporting, even though this blog had pointed to the potential conflict of interest as early as the previous April.

Speaking of which case, Prosser and Gableman literally rewrote the Wisconsin constitution to grant an injunction in 2010 in favor of the plaintiffs, a who's who of conservative Republican activists, the granting of which was executed even before the court had decided whether to take jurisdiction of the case. A decision is forthcoming in Myse but a date hasn't been announced. This blog wondered several weeks ago how a divided court is going to address the posture of that injunction.

The Journal-Sentinel is a wholly owned subsidiary of Journal Communications, Inc., which itself is in effect a wholly owned subsidiary of the WISGOP. The transparency of these relationships is remarkable.

But yeah, thanks for the illuminating disclaimer. Great public service.

Gableman has easy defense to latest imbroglio

Michael Gableman received free legal service worth [tens of] thousands of dollars from one of Wisconsin's largest law firms [Michael Best & Friedrich] as it defended him against an ethics charge. The state's ethics code says state officials cannot receive anything of value for free because of their position.

As Mike Gableman received that something of value not — strictly speaking — because of his position but because of acting inconsistent with his position he should be free and clear. Good to go. Covered in glory. This firm has some pretty sweet deals with the WISGOP alright.

Gableman is tasked with supervising the ethics of the State's attorneys.

Of course I repeat myself but that is the darkest joke in all Wisconsin.

Gableman ran an ad ... [that] did not mention that Butler was unsuccessful in getting the offender out of prison early ...

Except Butler's objective was not whatsoever to get the offender out of prison early but rather his objective was to have evidence excluded because the black letter law commanded its exclusion and to not have sought its exclusion would have been an ethics violation on Butler's part.

Contra Gableman, Louis Butler is a professional, and a gentleman.

That Gableman purportedly understood all this contributed to his lie. The justices who voted against Gableman's position certainly understood it.

Wisconsin Senator Ron Johnson is a hypocrite

Somebody's ghostwritten an item in the Washington Post on behalf of Wisconsin's Republican U.S. Senator Ron Johnson, complaining — that's pretty much all he ever does is complain — about a change to the Senate rules doing away with a requirement for supermajority votes. Because, you see, Democrats control the Senate, but only by a narrow margin, and abandoning the supermajority requirement would restrict Johnson and his colleagues' ability to obstruct the majority party's initiatives.

But that's not the remarkable bit. It's Johnson's fatuous claim that "our Constitution was established to protect the rights of a single individual — the ultimate minority." Obviously it's not a fatuous claim on its face; what makes it fatuous is that it's Ron Johnson who's making it. Because there's nothing in the U.S. Constitution about individual rights. Those references appear in the Amendments to the Constitution and most of them are to the individual rights of criminal suspects and defendants, like it or not (and most people don't like it, when they figure it out).

What specifically makes Ron Johnson's claim fatuous is the fact that Johnson is blocking one of the President's judicial nominees who has a record of protecting and enforcing the very rights that Johnson is suddenly celebrating. And it was that record that Ron Johnson's pals and allies among Wisconsin Republicans used as a weapon to falsely portray Louis Butler as overwhelmingly sympathetic to criminal defendants.

(Indeed, Butler's challenger in the 2008 State Supreme Court election, Mike Gableman, depicted the sitting justice as an accessory to rape.)

Johnson's fellow travelers at Wisconsin Manufacturers & Commerce, for example, ran thousands (literally) of broadcast ads attacking Louis Butler for his lone dissent in a case called State v. Mark Jensen, wherein Butler objected to the admission as evidence of certain statements made by the deceased, an alleged spousal homicide victim. The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."

Subsequent to Butler's opinion, a similar case arose in California which made it to the United States Supreme Court. In a decision authored by Justice Antonin Scalia and joined by the other conservative members of the Court, Butler's legal and historical reasoning in his Jensen opinion was almost identically reproduced. To my knowledge, conservative special interest groups in Wisconsin never once acknowledged this fact.

And why would they? It would be an admission of their dishonesty.

So to now hear Johnson crying out for the constitutional "rights of a single individual" while blocking the nomination of a judge with precisely the record that Johnson's Wisconsin Republican buddies had previously criticized is both comical and pathetic. And it's especially hypocritical.

Speaking of Scalia, Ron Johnson claimed during his campaign that he was an admirer of "strict constructionists" like the celebrated Justice. Except Scalia is not a "strict constructionist" and moreover would surely scoff at Johnson's reliance on what Johnson himself admits is a "legend" in Johnson's attempt to determine the original intent for the Senate, an anecdote attributed to Washington and Jefferson about a tea saucer.*

And of course there was Ron Johnson's ridiculous insistence — which was supported by a bevy of conservative Milwaukee attorneys — that he, as a Senator, retains the power to nominate judges to the federal courts, a power which the Constitution clearly confers on the President. During his campaign Johnson admitted to only having read the Constitution a couple of times. Nothing has changed since then except that Wisconsin Republican Senator Ron Johnson has become an even bigger hypocrite.

* By way of the late former Klansman, West Virginia Sen. Robert Byrd.

Wisconsin Supreme Court on civility and public trust

This Thursday, the Wisconsin Supreme Court will convene in public for a conference devoted to, among other things, Civility and Public Trust and Confidence. The court has been in the news lately because some of its members don't get along too well. Some observers have wondered why.

Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."

Around 7:20, Gableman gets to insulting his fellow justices:

A judge or a justice should not misuse their position, their office, their temporary office of the court, to supplant or replace the law with their personal, political, or social views. I saw that happening in Madison four years ago when I decided way up in Burnett County that it wasn't me who was failing to understand what Shirley Abrahamson, Ann Walsh Bradley, Pat Crooks and Loophole Louie [sic — it's Louis, rhymes with Lewis; as you can see and hear, Gableman is unrepentant of his judicial ethics violations] Butler were doing to the law [laughter]. It was they who were failing in their sacred vow to follow the law as written and not substitute their own political, social, and personal views for what they think the law ought to be. Thank you [applause].

Notice how Gableman says "Thank you" before the applause starts.

This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.

So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.

And ironic accusations they are, considering Gableman's own behavior.

Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:

Former [Wisconsin] governors Tommy Thompson and Patrick Lucey, two who you probably cannot find with more divergent political views, are the co-chairmen of his campaign.

Which is funny because just a couple of days later:

Lucey "resigned as honorary co-chair of Justice David Prosser's re-election campaign and endorsed his opponent, State Assistant Attorney General JoAnne Kloppenburg. Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," adding that "Prosser has lost that most crucial of characteristics for a Supreme Court Justice — as for any judge — even-handed impartiality." Lucey also cited Prosser's "disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."

That's right, Prosser's own campaign chairman abandoned ship.*

More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).

Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.

This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.

Still wondering.

* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.

Ron Johnson can't read the Constitution either

We need to understand the constitutional role of senators in judicial nominations. — Ron Johnson, speaking for himself

According to RoJo:

The Constitution grants the president the power to nominate federal judges "by and with the Advice and Consent of the Senate." That means the voters of Wisconsin are entitled to a say in who the president nominates to judicial vacancies in the state.

That is not what the Constitution says. What it says is this:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.] — Art. II, Sec. 2, Cl. 2.

Clearly, the president's power to nominate "all other Officers," including lower federal judges — judges of the "inferior Courts ... the Congress shall from time to time establish" as the Constitution refers to them elsewhere — is not restricted by the Senate's duty of advice and consent, whose application is limited to the president's appointment power.

Insofar as the voters of Wisconsin are entitled to a say in whom the president nominates, they had it and did so on November 4, 2008.

"He shall nominate."

The remainder of Ron Johnson's letter consists of irrelevant petulance.

Moreover, it is manifestly fatuous to claim, as Ron Johnson does, that former Wisconsin Supreme Court Justice Louis Butler has or had "little regard for the rule of law," especially where Johnson himself is incapable of discovering a rule of law plainly set forth in the U.S. Constitution.

Notice that Johnson's claim is unsupported, because it is unsupportable.

This is, to date, now the second opinion piece in a week the Milwaukee Journal-Sentinel has published containing this same misinformation.

See also: What John Marshall said (that would be this John Marshall).

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).

Wisconsin Supreme Court quote of the day

Justice [Louis] Butler was a popular member of the court and a person who was somewhat successful in building bridges among the members of the court. — Attorney Lester Pines

Nice going, WMC/Gableman. And wouldn't you know, it is exactly that contingent now complaining about lack of leadership on the court.

Link to video. Lester Pines is on from 37:00 to 45:00, speaking truths.

Next up is James Troupis, who says of allegations David Prosser grabbed Justice Ann Walsh Bradley around the neck with both hands: "You do have to chuckle about that." Is that so? Troupis was Prosser's attorney during the aftermath of the April 5 Supreme Court election, incidentally.

I suppose that could be the quote of the day, but for different reasons.

How many sharks can one Shark jump?

Clearly, an infinite amount.

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

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

Peake fantasy

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

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

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

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

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

Justice/Gableman

But what is most remarkable — outrageous, really — about Esenberg's own reckless missive is that he suggests the Wisconsin Judicial Commission back off from carrying through its investigation:

[T]he worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. [**]

Let's review a couple of things here.

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

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

Blinka job safe

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

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

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

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

Ta Da! Ol' Prof. Rick is right about one thing though:

Lawyers have been worried about the divisions on the Court [**] for some time now. ... No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters.

Oh, but I'm sure they would like to say plenty about it, and what they would mostly say Esenberg probably wouldn't want to hear. Because the current divisions on the court are directly traceable to Mike Gableman, who none other than Rick Esenberg championed by defending some of the most disgraceful attacks on former Justice Louis Butler's reputation, character, and professionalism, and whose own then-research assistant's gibberish Esenberg is still publishing at the Marquette LS faculty blog.

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

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

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

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

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

Mike Plaisted for Wisconsin Supreme Court

If you've been following this little corner of the internets for awhile, you know it gets geared up — almost to the point of obsession — during State Supreme Court elections. Not this time around. But I've been paying close attention, albeit with less interest than horror.

I don't think it's the wisest idea among alternatives to subject positions on the court to popular elections, and this one is proving why, because among those alternatives is merit selection, and the related events unfolding are turning merit selection on its head.

Groupthink

While Assistant Attorney General JoAnne Kloppenburg is certainly qualified to the position well beyond the de minimis requirements, if you strip away all the horse hockey that's been played out by all manner of individual and groupthink third-party entities on both sides of the partisan divide — and by the candidates themselves, occasionally — and evaluate the two hopefuls on those merits which are most relevant to consider, then Justice Prosser wins hands-down.

The reason I say this is because I have heard barely a statement from Atty. Kloppenburg about any decisions of a court or any legal doctrine or any judicial philosophy whatsoever, apart from the ad nauseam boilerplate, "I promise to be fair." Perhaps she is a scholar, but she's produced no indication of scholarship and she's been presented with innumerable opportunities and declined — putting it politely — to do so at each. One can't simply move ahead and assume scholarship.

It's nothing personal — as I say, I would expect her to perform admirably — and I don't blame her for playing it safe by not getting into the various meats and the sundry three-pronged potatoes, if that is what she's doing, but I'm just not hearing from a Supreme Court candidate what I should expect to hear, which is, something more than a superficial familiarity with the core businesses of the court: absorbing, expounding, and developing legal doctrine.

Imbroglio

And when I heard from the candidate, as we did during the jockeying for position leading to the February primary that Atty. Kloppenburg sought to make an issue of the Mike Gableman imbroglio but then admitted she hadn't even reviewed all the briefs in Gableman's ethics case (and there aren't all that many of them) I became suspicious, and unfortunately that suspicion has never been sufficiently allayed.

So to begin with, there's that.

Next, there is this: The currently popular portrayal of Justice Prosser as some kind of unhinged misogynist nutcase is patently ridiculous.

I have met him and I have spoken with him, and you couldn't ask to meet or speak with a kinder and more considerate fellow. I have also heard him speak in a professional — as opposed to electioneering — context, reviewing the cases from the court's previous terms.

The guy clearly knows his stuff and has given a lot of thought to that stuff over the course of a lot of years. Whether your humble correspondent agrees with his methods or his results is of no moment to any evaluation of Justice Prosser's knowledge and legal acumen. He's unquestionably got the judge-chops. (That's understatement.)

Super Soaker

I love me some Scot Ross and OWN, but if all you can find to prove up the proposition that the incumbent is the temperamental equivalent of Genghis Khan are clips of the justice getting totally justifiably angry with Mike McCabe when the latter strode into the justice's courtroom fresh from lying recklessly about the justice in some blog-opinion pieces, then you can't have much of a case.

If I was Justice Prosser, that video would have been of me chasing Mike McCabe around the gallery with a Super Soaker or having one of those theatrical 10-ton weights lowered quickly onto his head as he stood at the lectern. So, more power to Prosser on that account.

It's been revealed that Justice Prosser evinced a malicious disrespect for the Chief Justice, and for her office. In no way am I defending that — it's indefensible — but that there court has some serious issues and Justice Prosser at least once lost his sh*t as many of us all-too-human beings do on occasion. For anyone's edification, those serious issues are adequately preserved in the public record.

A total biotch-explosion

All of the court's open administrative hearings are archived at WisconsinEye, and there are many moments of viciousness, just less overt than Prosser's total biotch-explosion. (Easily the most resentfully sarcastic and disrespectful toward the Chief Justice is Mike Gableman.) So it's hardly surprising Justice Prosser blew his stack; what's unacceptable is the manner in which he blew it.

However the presentation of Justice Prosser as a "moderate" and a swing vote on the court is almost equally misleading. There are a couple of ways to approach a court's term of cases: one as a scholar of the law, and one as a political scientist. Ideally, you approach the court's body of work as both. Simply compiling cases according to percentages of who sided with whom can be wildly inaccurate. We saw a good example of this in the hopelessly unconvincing Journal Communications, Inc.* endorsement of Prosser over the weekend.

Those cited percentages lend little credence to the ends to which they were put by Journal Communications, Inc. (although they're well understood by their compiler, David Ziemer, who incidentally is one of the sharper legal writers around, despite having the U.S. Reports citation to Lochner v. New York tattooed on his right bicep**).

Connexionz

For one thing the percentages don't embody a sufficient recounting because some of those majorities are unanimous. You have to look first to the split decisions, then more closely at which justices are concurring and dissenting with each other, and on what grounds, and then especially closely to the results and the reasoning that obtained those results in each individual case to determine the particular questions under consideration and the connexion between the reasoning and the results. And then you make your evaluation of the data based on the legal and poli sci principles you've studied.

Having performed those moves to a not inconsiderable extent over the years, I think it's fair to say that Justice Prosser is a pretty conservative judge, but in the political sense. That is, his results are often politically conservative but his methods are not judicially conservative. That's where I get a little suspicious, and I say this as a fan of Clarence Thomas who, for whatever else you can say about the man — and there is plenty — is consistent in his methods.***

Justice Prosser, for example, has joined an opinion of Gableman's purported to find within the First Amendment's Free Exercise of Religion Clause the right to fire employees in blatant violation of age discrimination law, and in contravention of court orders from magistrates right up to and including the court of appeals, without once explaining — de novo, as a true judicial conservative should and would have — how on whatever specified god's green earth firing employees is a free exercise of religion in the first instance.

That's not judicial conservatism, but that is political conservatism.

Judge So-and-so

A conservative begins with the Constitution, she doesn't set off on some meandering and merely persuasive detour throughout the circuit courts of Delaware and New Mexico and then wind up back somewhere near the Constitution because Judge So-and-so with jurisdiction over Jefferson Parish, LA apparently held as such.

More recently Justice Prosser, again in full concert with Gableman, literally rewrote the Wisconsin constitution in order to enjoin a party to a case even before the Supreme Court had decided to take jurisdiction of that same case. And they didn't present a compelling reason to do so; they couldn't have, simply for the fact there are compelling reasons why the constitution does not mean what they had to insert an entirely new phrase into it to make it mean. That's not judicial conservatism, but that is political conservatism.

Justice Prosser, before Gableman's time but together with Justice Roggensack and with Justice Ziegler's ideological predecessor Justice Wilcox, endorsed a ludicrously unconstitutional amendment to the State's criminal procedural framework that handed over to the executive branch of State government an impermissibly unilateral control over a defendant's life, liberty, and property. That's not judicial conservatism, that's political conservatism.

Deeply disturbance

And Justice Prosser produced from disturbing the thin air by waving a whole cloth at it an exception to Wisconsin's concealed carry law that the text of the statutes in nowise authorized or even implied. That's not judicial conservatism but it is political conservatism.

Then there's the recusal controversies, where Justice Prosser, once again together with the present hard-right bloc, adopted verbatim rules drafted by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, two archetypal business lobbies. Now as an appearance of impropriety, the circumstances are troubling. However, just because the rules were drafted by corporate concerns doesn't make them bad rules. To so conclude is fallacious.

But the legitimate and legitimately remarkable trouble with the rules for judicial recusal is that they were submitted and adopted verbatim and then the drafters — not the adopting justices — noticed that the rules caused an "absurd" — to coin a legal term of art — result within the framework of the code of judicial ethics. So only by their own detection of the discrepancy and by their own volition, the drafters had to resubmit the rules for (once again, verbatim) re-adoption by the four conservative justices.

Awkward! Alright. I could go on, but I already have.

Thus is my view of Justice Prosser that he is less a judicial conservative than a political conservative, and I'm not saying there is anything inherently wrong with that. It's a legitimate position. But just be aware of it. Of course this is merely my opinion, but I like to think that, as a reasonably diligent student of the law and of the court, I bring at least a little bit of credibility to support it.

You may disagree, and that's cool too.

Forcible

In conclusion, however, the popular consensus in this Great State of Wisconsin appears to indicate the favoring of Supreme Court elections. So I accept that and incorporate it into my reasoning. Although personally I'd rather not do that, the supporters of judicial elections — including Justice Prosser himself — force me to.

And it is in that political spirit that I completely and wholeheartedly support without reservation the efforts of the left to shift the political balance on the court, if only for one very simple reason: What Justice Gableman, WMC, and their other fellow deceitful travelers did to the popular reputation of former Justice Louis Butler throughout 2007-08 was repulsive, and almost unspeakably vile.

I have never met, nor heard from, any lawyer or judge who does not hold Louis Butler in the highest professional and personal regard and if you think Justice Prosser is getting unfairly portrayed this time around, that is nothing compared to the disgraceful calumnies, both overt and subtle, that the political right heaped on Justice Butler.

Punks, thugs, hippies on your marks

And the worst of the perpetrators was none other than our Michael Gableman, who violated the aforementioned code of judicial ethics and then himself and by his counsel fought arrogantly in defense of the indefensible, taking no prisoners along the way.

So to the extent that electing JoAnne Kloppenburg negates whatever power Gableman wields on the court — and there's no question that her election would effectively mitigate his influence to a considerable degree — I say, go for it, all you young punks and all you union thugs and all you dirty co-op hippies. You have my seal of approval.

More importantly, while you can argue 'til you're red-State-in-the-face that it's inappropriate to topple Justice Prosser because Scott Walker and Scott Fitzgerald and J.B. Van Hollen are erratic and reckless custodians of the body politic and I would probably agree that it is inappropriate, I'm helpless because the present politicization of the court is directly the outcome of those who support judicial elections.

Which is to say, in other words: Hey, I'd really like to come to your assistance, but you won't let me. And which is why I today endorse my bestest buddy Mike Plaisted**** for the Wisconsin Supreme Court.

Selah.

* Style note: This blog will hereafter attribute opinion pieces in the Milwaukee Journal-Sentinel to the corporate entity, Journal Communications, Inc. Straight news reporting — such as it exists anywhere — will continue to be citated to the Journal-Sentinel.

** Mercifully I have no personal knowledge of this statistic; Counselor Ziemer admitted to it on the internets.

*** The recent kerfuffles regarding Mrs. Virginia Thomas are at once amusingly abhorrent and abhorrently amusing, but there's no substance there. Nothing would cause Justice Thomas to vary from his inexorably reductionist pursuits. If anybody out there is seriously expecting Clarence Thomas to stand aside from some Tea interested-Party case, then you are high, as the kids say.

**** Also, because: "He is a good writer." (Very good, in fact.)

Justice Prosser on savagery and distaste

From the archives:

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.

It's always kind of bugged me that Justice Prosser viewed recusal motions — which are sheafs of paper filed with the court that maybe 50 people in the entire State of Wisconsin read — seeking Gableman's standing aside from certain cases as "savagery," whereas Gableman's notorious 2008 television ad attacking former Justice Louis Butler, which truly was savagery, was merely "distasteful" to Justice Prosser.

Distasteful: like a William Rehnquist shirt & tie combo.

At a candidate forum recently, Prosser said people need to "get over" the Gableman debacle. Given that Gableman subsequently through his agent defamed every attorney in the State who ever handled a criminal defense case,* I don't think that's going to happen, ever.

And I fail to understand how Prosser can demand that his opponent, JoAnne Kloppenburg, condemn a third-party's ad attacking him, while his own public reaction to Gableman's unethical behavior has been decidedly lukewarm and defensive. That's a tad double standard-ish.

* And offended all the others who respect the rule of law, including Justice N. Patrick Crooks, who was moved by Gableman's lawyer's relentless calumny to reconsider his position on the recusal motion.

That was among the worst lawyering this observer has ever seen.

Taking it to Justice Prosser, and pretty hard

On the attack (30 sec. video spot):
David Prosser refused to prosecute a priest

Hardball. And that there is slouching towards Gableman (the distinction being that Gableman's own slouch was an Authorized By Gableman Production, whereas this is third-party speechifying).

But hey if you're a conservative who loves you some Citizens United* and are inclined to hoot down campaign finance reform, deal with it.

Not to mention believing it's a fabulous idea to elect justices. If there was any pretense remaining that the election coming in eleven days is anything other than a referendum for political control of the non-political branch of government, abandon that pretense forthwith.

(It's also likely to be all about voter turnout in Milwaukee County. If Prosser's opponents can GTFOTV there, they'll be well on their way.)

* With a side of carefully spun Caperton v. Massey for good measure.

eta: Told ya it was slouching towards Gableman.

It's always a deadly serious concern of criminal prosecutors, whether to put victims of child sexual assault through the trial process grinder and without knowing the full complement of facts, it's difficult not to give then-Outagamie County DA Prosser the benefit of the doubt.

And yes, the DA often knows better than the victim what's in store.

In more than one sense, this is like dredging up Louis Butler's public defender work, as became a central issue in the spring 2008 election. But thanks to Gableman, the GWC's speech is vigorously protected.

Nevertheless, I don't think political interest groups owe any allegiance to the ABA's canons of professional ethics and courtesy. The GWC's canons are much less restrictive. The trouble arises when judicial candidates abandon their professional guidelines for political ones.

WMC: Still dissembling after all these years

Walker bill does little to improve State's "honesty climate"

So Wisconsin Manufacturers & Commerce is overjoyed its "tort reforms" were signed into law by Governor Scott Walker this morning. According to WMC vice president James A. Buchen:

The Wisconsin Supreme Court created the ["risk contribution" theory] standard allowing plaintiffs to sue any lead paint manufacturer that sold paint in the state without proving which product caused the harm.

That is simply not true. The Wisconsin Supreme Court did not "create" the standard at all but rather adopted it from other jurisdictions in 1984 in the case of Collins v. Eli Lilly & Co.:

We emphasize, however, that the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff's mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES. If the plaintiff is able to prove these elements, the plaintiff may recover all damages from the one defendant.

Mr. Buchen needs to read this opinion, including especially footnote 10, and stop dissembling about the court's 2005 lead paint decision.

Even the dissenters to the latter decision, whose beef was not with risk contribution per se but rather its application to the lead paint defendants, acknowledged that "this case clearly does not fall within the theory of risk contribution originally formulated in Collins."

Emphasis added. It's remarkable that Buchen could have overlooked this unequivocal acknowledgment, as other portions of that dissent have made their way into local conservative Republican mythology.

And those two dissenters included the still-incumbent Justice David Prosser, who "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." Quote, unquote.

Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign* in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.

Indeed, were it not for Collins v. Eli Lilly & Co.'s "validity," there would have been no Thomas v. Mallett for WMC to complain about.

* Quite obviously Buchen's and WMC's obsessions with Thomas v. Mallett are focused on its author, Louis Butler, whose pending nomination to the federal bench is opposed by the WMC klatsch.

In 2008, WMC ran 3,069 television advertisements assailing a Butler dissent in a Sixth Amendment case, whose historical and legal principles were subsequently affirmed by Justices Scalia, Roberts, Thomas, Alito, and Kennedy, the first four, at least, being among the most revered figures in the conservative pantheon. The teevee spots represent a monument to sheer political irrationality and bad faith.

Don't be doing Louis Butler any more favors

Raves the Madison Capital Times:

Southern Republicans have used parliamentary maneuvers to block approval of a highly qualified African-American ... a handful of Senators from the old Confederacy ...

No serious observer doubts that, were Obama to nominate a white male who was less qualified and less committed to a constitutionally based application of the rule of law, the Senate would move quickly to confirm the president’s pick.

While Louis Butler is unquestionably highly qualified to the federal judiciary, I fail to see how labeling his detractors a gaggle of unreconstructed white supremacists advances his cause at all.

True, Jefferson Sessions is an insufferable dingbat and he and his Republican colleagues' obstruction of Louis Butler's nomination is borderline irrational, but the Capital Times's desire to relitigate the U.S. Civil War fails to account for the Senate confirmations of Ojetta Rogeriee Thompson, Joseph A. Greenaway, Jr., Andre M. Davis, or James A. Wynn, Jr.,* all of whom are African-American judges.

Those are some of President Obama's nominees to the Circuit Courts of Appeals. The Capital Times's editors can do — and should have done — their own homework with respect to the District Courts.

* Marquette 79.

Gableman remains less than beloved

Now Wisconsin is stuck with a lying, unprincipled justice serving a 10-year term on its state Supreme Court.

Joel McNally doesn't exactly mince words, does he.

His frustration is in large part justifiable, however.

By the way I don't believe the biggest objection to Goodwin Liu was his Berkeley law professorship — although that was probably enough for partisan buffoons like Jeff Sessions — but rather some incendiary remarks he delivered at Justice Samuel Alito's confirmation hearing.

On the other hand, we are expected to separate a prospective judge's political rhetoric from her ability to render impartial dispositions, but that is not the standard Republicans are espousing in Prof. Liu's case.

Their hypocrisy is strong.

One more by the way. Here is our old friend Rick Esenberg:

No, I don't think [Louis Butler] lost because of the Reuben Mitchell ad. It actually may have helped him.

But of course, it's always helpful to one to be publicly accused of being deliberately complicit in the sexual assault of a child.

I presume what the professor meant to say is that Gableman's own admittedly deliberate and carefully considered accusation may have been a quantitative electoral detriment to his political ambitions, but that is hardly the same thing as it being helpful to Louis Butler.

The truth is, such false and scurrilous accusations help nobody.

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.

Patrick McIlheran confirms Louis Butler

How's yer "PolitiFact" workin' out for ya

The president just tried and tried again until this past week, it took. Now Butler is wearing robes ...

— award-winning journalist Patrick McIlheran

No, he is not, but Patrick McIlheran is still wearing his own asshat.

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.'

Breitblart presents BigJudiciary.com

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

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

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

And to top it all off:

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

Pure falsehood. Louis Butler claimed no such thing.

Quite the "news service" you got there.

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

Snark (and Shepherd) of the day

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

— Marquette University professor of law Rick Esenberg

I lol'd.

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

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

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

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

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