Wisconsin Supreme Court accepts five new cases

But none of them is "Petition of Walker."

WICourts.gov news release.

One is of a part to the ongoing Miranda warning wrangle, however.

Which reminds me, on Monday, Deputy AG Kevin St. John declared that "the Open Meetings Law is not a rule of constitutional law," by way of claiming the requirements of the OML are not explicitly mandated by the Wisconsin constitution. According to the identical reasoning, Mr. St. John might further argue that neither is the Miranda warning "a rule of constitutional law." However, we know that it is indeed a rule of constitutional law because former Chief Justice of the U.S. Supreme Court (and formerly of Shorewood, Wisconsin) William Rehnquist told us so in the celebrated Miranda case, 2000's Dickerson v. United States.*

Thus if we apply the reasoning of Dickerson to Walker's predicament, the governor and his Republican friends and counsel don't fare so well.

So in retrospect maybe he/they didn't want to go there.

* This was a pretty good blawg poast, if I do say so meself.

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.

Ben Nelson to oppose Rehnquist confirmation

Cites "lack of a judicial record."

In truth, his principled objections obtain from being terrified of voters. The Framers were observed to rotate in their crypts.
This may be the least defensible 'Nay' vote on a Supreme Court justice since Senator Obama gave John Roberts the thumbs down.

Bybee tortures the Takings Clause

That human Deepwater Horizon of jurisprudence — Las Vegas Sun

[Jay Bybee's] conservative colleague Judge Andrew J. Kleinfeld ... explained in dissent that no matter how much he or anyone else might want to declare this rent control ordinance a taking, no faithful application of the Constitution and court precedent allows it.

Conservative judicial activism in the 9th Circuit*

* Bybee was joined in the opinion (.pdf; 75 pgs.) by Judge Alfred T. Goodwin, who raised a National Holy Ruckus in June, 2002 when he ruled the Pledge of Allegiance is unconstitutional (.pdf; 33 pgs.).

The latter case ultimately reached the Supreme Court, where a plurality found that the plaintiff lacked standing,** thus precluding the Court from deciding the controversy's merits. But this didn't stop Chief Justice Rehnquist and Justice Thomas from deciding them anyway, in a conservatively activist maneuver.

Justice Scalia was unable to participate, as he had conservatively and actively announced his decision to a Knights of Columbus conclave in Virginia while the Ninth Circuit's ruling was still on appeal.

** a.k.a., "they punted."

Takings in the news (and olds):
10523 S. Howell Ave., Oak Creek, WI
Tiger Woods Memorial PGA On-Ramp
Wise Latina 1, Petulant Law Prof 0

Speaker collapses in fear of FFRF lawsuit

"Thank you Jesus, for your death."

*THUD*

Another victim of the secular progressive Kulturkampf and the Supreme Court's incoherent Establishment Clause jurisprudence.*

* [eta] As if on cue, and proving truth in sarcasm:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

Had to take a shoe off to keep track of that.

("I didn't know we had so many justices," Rehnquist quipped.)

It's notable that Justice Sotomayor has aligned herself with Justice Stevens, the closest thing to a strict separationist since Hugo Black.

A wise Latina, indeed.

Salazar v. Buono (.pdf, 71 pgs.)

Judge Crabb's decision is wrong, just because

eta — Obama goes through the motions

Here's a couple of Marquette law professors in mutual agreement over their insistence that United States District Judge Barbara Crabb's recent decision in FFRF v. Obama is "wrong," except without either one of them offering the least shred of illumination as to why.

In the meantime we can only speculate.*

Presumably the objections to Judge Crabb's verdict that a federal law ordering the president to announce a national day of prayer violates the Establishment Clause of the First Amendment are based in a notion of historical validation: the claim that if some government-directed religious practice is sufficiently ancient (1988?) then it's somehow exempted from an unequivocal constitutional prohibition.

This was the late Chief Justice William Rehnquist's preferred tactic of manipulating the First Amendment's plain textual declaration of "make no law" into becoming "make some laws" (as Leonard Levy and several others would have it).

That move entails combing through the documents and proclamations of various long-since-deceased political figures and selecting the ones that support the tactician's pre-ordained conclusions while at the same time ignoring the ones that don't.**

The latter technique is considered by some commentators to be a legitimate form of legal reasoning (the modifier "legal" having the desired effect of undermining the very methods and objectives of what is more generally understood as "reasoning").

Others might argue that the federal national day of prayer statute so mandating the president to executive action is merely an exercise of what's known in the constitutional law trade as "ceremonial deism," a judge-made doctrine which has been occasionally found within the relevant case law to be inoffensive to Establishment Clause concerns.

For example, those government acts which purport to acknowledge the (undeniable) role religious faith has played in shaping the contours of American society, such as erecting a granite block inscribed with Biblical commands and placing it alongside a facsimile of the Declaration of Independence in a courthouse display.***

But in fact the present example as correctly adjudicated by Judge Barbara Crabb is, by definition, "ceremonial theism."

The distinction between deism and theism is — or certainly should be — dispositive, but often overlooked. Deism posits a universal creator who created and then disappeared on an extended and still continuing sabbatical whereas theism stands for the proposition that the said creator maintains an interventionist interest in earthly conundrums such as the results of college gridiron contests and determining which missing children are chosen to be recovered unmolested.

So there isn't much effectual point in praying for direct, beneficial action to a deist-style god, is there? Ceremonial theism, on the other hand, remains constitutionally problematic. As the judge has shown.

* See, this blog can do theology with the best of 'em.

** And it's how Rehnquist's spiritual predecessor Associate Justice David Brewer, writing in 1892, could declare, "this is a Christian Nation" despite the U.S. Senate's unanimous affirmation nearly one hundred years earlier that "the Government of the United States of America is not, in any sense, founded on the Christian religion."

*** Not to be confused with the reindeer-in-a-nativity-set doctrine.

GOP doesn't want another John Roberts

The umpire who prefers strikes to balls

Senate Republicans said Obama's Supreme Court nominee should not be an activist, which they describe as someone driven by a preferred result rather than by the law.

Evidently they've not read Justice Stevens's Citizens United v. FEC dissent. Or Stevens's opinion in Boy Scouts of America v. Dale, in which case they don't want another William Rehnquist either.

First of all I'd like to see Senate Republicans justify the proposition, on "original intent" grounds, that the Framers had in mind whining and weeping in public like colicky babies when they wrote "Advice."

Sykes boards the disinformation choo-choo

Threatening to "offer" a daily post from now until April 7, the ridiculous medium wave radio harlequin and "blogger" Charlie Sykes gets straight to fatuous dissembling from his initial bullet point:

[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...

This is nonsense, and as early as 1976, the United States Supreme Court's most "conservative" members, including Chief Justice Burger and Justice Rehnquist, joined a majority opinion which described the probative nature of rational basis scrutiny as "not a toothless one."

Not toothless = with teeth. Nothing to see here. Bite me.

The local radio squawker's prodigious legal acumen is perhaps best demonstrated by his having accused the Wisconsin Supreme Court of "ignoring" the decisions of the U.S. Supreme Court, despite its devoting nearly 50 pages to considering the decisions in question.

Why do these people have to lie? Are they that desperate? And is Randy Koschnick going to repudiate Charlie Sykes, as he's "pledged"?

Enquiring minds want to know.

In the meantime, Sykes should stick with his MPS expertise.

eta: Marquette Law's Prof. Rick Esenberg doesn't care for my post and in not caring for it proceeds to set fire to a couple of straw men.

McIlheran's guide to the U.S. Constitution

One more chuckle from the Milwaukee Journal-Sentinel's right-wing guy's latest barrel of laughs:

When public sentiment turned [against the AIG bonuses], Washington crafted law to snatch the money, a plain trashing of the Constitution.

And how exactly is some unspecified and as-yet unsigned "law" a "plain trashing of the Constitution"? McIlheran relies on that renowned constitutional authority, Charles Krauthammer:

Even worse are the clever schemes now being cooked up in Congress to retrieve the money by means of some retroactive confiscatory tax. The common law is pretty clear about the impermissibility of ex post facto legislation and bills of attainder. They also happen to be specifically prohibited by the Constitution.

Your guide to good reading on the Web.

But I always thought the Ex Post-Facto Clause contemplated adjustments in the federal criminal — not tax — law where attempts are made to apply those adjustments retroactively.

In Collins v. Youngblood [citation omitted], we reaffirmed that the Ex Post-Facto Clause incorporated "a term of art with an established meaning at the time of the framing of the Constitution." In accordance with this original understanding, we have held that the Clause is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts."

Thanks for clearing that up, Associate Justices Thomas, Scalia, Chief Justice Rehnquist, et al (Krauthammer, C., dissenting).

(Regular Faux News contributor Charles Krauthammer, incidentally, coined the term "Bush Derangement Syndrome," and as such continues amusingly in his role as one of its leading diagnostees.)

As for bills of attainder, Congress could with facility get around that prohibition by crafting legislation applicable beyond only "named individuals or to easily ascertainable members of a group."*

Well played, Patrick McIlheran, well played.

* If the courts don't look too closely at the legislative history.

Koschnick still "unaware" of the law

In a January 29 interview with WisPolitics.com, Jefferson County Circuit Judge Randy Koschnick mounts his State v. Knapp hobbyhorse once again. On this ride 'round the circuit, his observations are especially remarkable.

Unfortunately, Koschnick's simplistic campaign pronouncements require a considerable amount of background explanation to rectify, so this is necessarily a rather lengthy post.

In a nutshell, Judge Koschnick is given to complain that only verbal statements obtained in violation of the Miranda warning requirement are to be suppressed at trial, and not physical evidence gathered as a result of those statements (or, in the case of Knapp, a nonverbal statement expressed by the suspect's pointing at a pile of clothes, which contained a bloodstained sweatshirt).

He suggests that his understanding reflects the current state of the law and that State v. Knapp is a lawless aberration: "activist" judges "legislating from the bench."

Not only is he mistaken but he contradicts himself, and here's why.

Responding to an astute question about what remedy is available to suspects who ultimately become defendants by dint of law enforcement's intentional violation of their constitutional rights, Koschnick unequivocally announces that such defendants should "Absolutely" be granted the suppression of physical evidence seized under such circumstances.

He goes on to distinguish among what he believes to be different constitutional rules which he supposes to have different effects than others:

JR Ross: The State Supreme Court ruling called it an intentional Miranda violation. [The State v. Knapp decision said] if there is an intentional Miranda violation, there must be some kind of penalty for the police, essentially. Just to play devil's advocate, if the cops intentionally violate somebody's rights, shouldn't there be some kind of consequence for that?

Judge Koschnick: Absolutely!

JRR: And so why is the remedy that [the Knapp court] prescribed, which was not allowing the bloody sweatshirt in [as evidence at trial] not an appropriate remedy?

JK: If the police violate somebody's rights by not giving a search warrant when it's required, or they violate somebody's due process rights, then physical evidence is normally suppressed as well. But the United States Supreme Court has been very clear that failure to read Miranda rights does not rise to the level of full-blown constitutional violation. And if you read the [State v. Knapp] decision carefully, you'll see that that distinction has always been in existence. And it is in existence to this day with the United States Supreme Court.

(Incidentally, JR Ross' excellent question strikes at the fundamental purposes undergirding Miranda v. Arizona.)

What Koschnick is evidently saying is that the Miranda warning is not, to borrow the actual parlance of the United States Supreme Court, a "constitutional requirement," unlike a search warrant or some particular, individual component of due process.

Therefore, if the Miranda warning was a "constitutional requirement," then surely its deliberate, intentional withholding would require the suppression of physical evidence so obtained, correct? "Absolutely!" says Judge Koschnick.

Intentional and deliberate

First of all, the crucial distinction in Knapp — which Koschnick conveniently never mentions — is that the Miranda violation was intentional and deliberate. This fact is undisputed in the record.

A meaningful understanding of Knapp is simply not possible without bearing that in mind, particularly in light of two of the U.S. Supreme Court cases, United States v. Patane and Missouri v. Seibert, which control the Wisconsin Supreme Court's decision in Knapp.

Secondly, on June 26, 2000, the United States Supreme Court decided in Dickerson v. United States that the Miranda warning was indeed a constitutional rule, and not just a "prophylactic" protection for the Fifth Amendment guarantee against self-incrimination.

On this question the Court was quite clear: Dickerson was a 7-2 decision, which is about as clear as you can get during the Rehnquist era, when 5-4 splits were much more common.

A prophylactic rule is understood separately from a constitutional rule. That is, a prophylactic rule is a rule meant to protect a constitutional rule. In effect, law enforcement may violate a prophylactic rule without violating the constitutional rule.

But in Dickerson, the Court announced that Miranda itself is a constitutional rule, not merely a protective, prophylactic rule.

As noted earlier at this blog, this is what Chief Justice Rehnquist wrote:

The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.

We disagree with the Court of Appeals' conclusion . . .

In other words, the Miranda warnings are constitutionally required. The Miranda rule is a constitutional rule, just the same as is, for example, any other component of what the Fifth Amendment calls due process of law, the intentional violation of which even Judge Koschnick declares "Absolutely" must result in the suppression of physical evidence.

And recall that Koschnick himself, as the presiding judge, ruled to suppress other physical evidence from Matthew Knapp's homicide trial on different grounds (although he was reversed by the Wisconsin Supreme Court on that ruling as well).

Less than clear. More like opaque.

Since Dickerson, the U.S. Supreme Court has been far, far less than "very clear." In Patane, three Justices — including Rehnquist — found that a violation of Miranda was not sufficient to exclude physical evidence. For the three, Justice Thomas wrote:

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion.

But the Court didn't reach a definitive conclusion in Patane either; only those three Justices did. While two others agreed with the result in Patane, they only joined the plurality insofar as that result applied to the specific circumstances of the case. They declined to join Justice Thomas's broader discussion, and in so doing declined to join his broader conclusions.

And of course the remaining four Justices dissented altogether, four being a number greater than three (as even most lawyers know).

Furthermore, the facts in Patane were quite different from those of Knapp (which makes the cases distinguishable, as we say). Most importantly, the violation in Patane was neither intentional nor deliberate. The discussion by the plurality in Patane is limited to "mere failures to warn" and "negligent Miranda violation[s]."

Negligence requires neither intent nor deliberation. Negligence is but a failure to exercise reasonable care and the negligent violation of constitutional rights certainly may not require such remedies as the suppression of evidence at a criminal trial.

On that question the law most definitely is very clear.

Indeed, one of the two officers present "attempted" to Mirandize Samuel Patane, but Patane interrupted the officer, stating that he already knew his rights, and the Miranda warning was never completed. That's barely even negligence, if at all.

Seibert, on the other hand, did involve a deliberate and intentional withholding of the suspect's Miranda rights, but not the seizure of physical evidence.

Significantly, a majority of the Court in Seibert affirmed Dickerson's holding that Miranda is itself a "constitutional requirement," and not simply a prophylactic device meant to protect some other, separable constitutional requirement.

While only four Justices formed the plurality opinion in Seibert, as is often the case, Justice Kennedy joined that result but wrote separately:

We have held . . . that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane.

But recall that Justice Kennedy also wrote separately in Patane and limited his own conclusion to the specific facts of that case, where the Miranda violation was neither deliberate nor intentional.

Yet Judge Koschnick still believes that the United States Supreme Court's guidance on the question of whether physical evidence obtained further to a deliberate and intentional withholding of the Miranda warning is "very clear"? No, it isn't.

In fact, a majority of the U.S. Supreme Court has never directly decided that question.

The "new federalism"

Which brings us, ultimately, to Judge Koschnick's other criticism of State v. Knapp: that the Wisconsin Supreme Court, finding at best ambiguous guidance on the federal constitutional question, reverted instead to the Wisconsin constitution's corollary to the Fifth Amendment's Self-Incrimination Clause.

Returning to Chief Justice Rehnquist's opinion in Dickerson, one finds practically an open invitation for State courts to do exactly that:

It is beyond dispute that we do not hold a supervisory power over the courts of the several States. . . . With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution."

Moreover, when the United States Supreme Court vacated State v. Knapp, it did so not on the particular merits of Knapp, but rather it simply ordered the Wisconsin Supreme Court to revisit Knapp in light of its decisions in both Patane and Seibert and in so revisiting, remain consistent with those two opinions (which even between themselves are inconsistent: i.e., not an indicator of clarity).

And that is what a majority of the Wisconsin Supreme Court did.

Indeed, Justice Wilcox's dissenting opinion in Knapp is devoted almost entirely to admonishing the majority only for departing from the general reasoning employed in some prior State cases. Not a single word of his dissent addresses the distinguishing circumstances of Knapp — the deliberate and intentional withholding of the Miranda warning — from those previous cases.

Tellingly, however, Justice Wilcox takes pains to distinguish Knapp from both Patane and Seibert, and ironically, for the same reasons discussed above which show that the latter two cases provide insufficiently clear guidance as to the fact pattern in Knapp.

He also errs in attributing to "the Supreme Court" that "the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause."

As we have seen, this was the view of only three of nine Supreme Court Justices, not "the Court," and even then only as it applied to the particular circumstances in Patane, where there was a so-called "good faith" failure to Mirandize the suspect, as opposed to an intentional and deliberate one.

This should have become obvious to Justice Wilcox when he noticed that one of those three Justices, Rehnquist, was the author of Dickerson, which announced that Miranda is indeed more than simply a prophylactic rule, but rather a constitutional rule.

Irresponsible journalism

The point of all of this is two-fold. First of all, I believe we should expect from our candidates for the State Supreme Court at least a more thorough understanding of the cases they are using to criticize their opponents on the campaign trail, and that they shouldn't be entitled to a pass when they offer simplistic and misleading formulations of not only those cases but the underlying case law.

Second — and this derives from the foregoing concern — the press bears some considerable responsibility for this situation.

Following the first candidate's forum in Green Bay last month, headlines across the State shouted, "Koschnick accuses Abrahamson of judicial activism," and "Koschnick says Abrahamson favors criminal defendants" and so on and so forth.

Scarcely a word has been devoted to investigating the merits of Koschnick's "accusations," nor whether or not his characterizations of the law were even accurate.

Well, they aren't. Whether the press has the interest or the wherewithall or even the baseline competence to investigate more completely into the grounds (such as they are) for Koschnick's superficial Republican talking points, I can't say.

But it strikes me as both pretty irresponsible and a disservice to voters not to. We went through this last year and any pretense of merit-based selection to the Supreme Court was turned on its head.

Political candidates like Koschnick are well aware of reporters' unwillingness or inability to dissect and discuss complex legal questions and cynically exploit those shortcomings. That should be no way to gain positions on the State's highest court of appeals.

Coincidentally enough

A Wisconsin tank-thinker recalls the storied* career of Milwaukee-born former Chief Justice of the United States William H. Rehnquist (who is hardly "forgotten" by anybody, incidentally):

Conservatives may have some gripes about some of the cases his Court refused to overturn (Roe v. Wade, Miranda v. Arizona), although Rehnquist personally dissented in many of the cases upholding those controversial opinions.

Well, no, actually. In fact Chief Justice Rehnquist authored the majority (7-2) opinion affirming Miranda in 2000, which just happens to be among the subjects of this here blog's forthcoming entry.

* One of the better ones concerns Rehnquist's penchant for crazy wide lapels and flamboyant neckties while working in the Nixon Justice Department, prompting the president's call to "Get me that clown, Renchburg." Rehnquist, C.J., later decorated his robe with a set of golden stripes, reportedly inspired by a Gilbert & Sullivan operetta.

Other tales of Rehnquist, however, are considerably less savory, in particular those related at both of his Senate confirmation hearings, having to do with his activities as a poll watcher in Arizona.

h/t WisOpinion.com.

Reasonable minds

If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based.

The rule argued for by the State would minimize the seriousness of the police misconduct producing the evidentiary fruits, breed contempt for the law, and encourage the type of conduct that Miranda was designed to prevent, especially where the police conduct is intentional, as it was here.

— 25% pro-criminal Justice N. Patrick Crooks

The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.

We disagree with the Court of Appeals' conclusion . . .

— 0% pro-criminal Chief Justice William H. Rehnquist

I did not know that

When U.S. Supreme Court Chief Justice William H. Rehnquist presided over a civil rights trial in Richmond, VA — marking the first time this century* that a U.S. Supreme Court Justice had presided over a trial — he was reversed on appeal.

WI judges trade roles in Judicial Exchange Program

* It was in 1984, while he was an Associate Justice.

In defense of lying, McIlheran lies

Buried in Milwaukee Journal-Sentinel columnist and "right-wing guy" Patrick McIlheran's otherwise pedestrian response to this weekend's Jackson County shenanigans resides the following boner:

As Barack Obama has been pointing out lately, it is mere days until his supporters profoundly change America by electing him president, an office in which he can appoint justices with empathy for the dispossessed rather than any punctiliousness about legalities.

This is, of course, a bald lie. Obviously Obama never said he values empathy over meticulous attention to the law. If anything, he said he values empathy in addition to judicial scrupulousness.

As befits his usual customs, this is not the result of McIlheran's own profound cogitation. No, he picked it up during one of his "daily staggers" through the National Review:

As the brilliant Thomas Sowell pointed out the other day, such empathy triumphing over legalities is exactly the death of the rule of law.

At least it wasn't Jonah Goldberg or one of the other resident NRO jackanapes. Nevertheless, Sowell's scaremongering gobbledegook equals any of those in sheer overwrought fatuousness. "A court case should not depend on who you are and who the judge is," he sniffs.

Well, no, it shouldn't. But it often does, even now, and Barack Obama hasn't appointed a single judge yet. So maybe he can rectify that.

Among a number of statements Obama has made on the subject was this, during (notably) the Democratic primaries last year:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Conservative commentators have been whining, howling, burning grotesque strawmen in effigy, and most recently inveighing against the imminent wholesale destruction of the Republic ever since, as if it's the only criteria Obama intends on applying.

(Even if it was, there's nothing constitutionally unsound about it, as "good Behavior" is the sole prerequisite for federal judges.)

The "brilliant" Thomas Sowell even claims Obama's subterfuge is part of his secret agenda to "kill off the Constitution," rendering even Steven G. Calabresi's hysterical meanderings positively benign.

In support of these phantasmagorical premonitions, Sowell cites a contentious U.S. Supreme Court decision called Kelo v. City of New London. In that case, a Connecticut municipality confiscated an old woman's shack to make way for a construction development. It did so under the Constitution's Takings Clause, which forbids the taking of private property for public use without just compensation.

This is an unwittingly foolish citation for at least three reasons (and the mere fact that Patrick McIlheran believes Thomas Sowell is "brilliant" on this particular question leads to a reasonable suspicion there must be many, many more).

First of all, the Court has never substituted "public purpose" for "public use," as Sowell misunderstands. (After all, he's an economist and not a lawyer, so what do you expect. Lawyers, for their part, readily admit that they can't count.)

Rather, the question of whether the taking of private property serves a public purpose is a test to determine whether the taking is for public use.

The Court applies these sorts of tests all the time. While one may reasonably argue over whether the test will yield a satisfying result, or whether applying such a test is a suitable means of comparing legislation to the Constitution at all are separate questions. But Sowell is just flat wrong that the Court rewrote the Constitution.

Nor is the public purpose test a wholesale invention of Kelo. It dates to the latter half of the 19th century, that Gilded Age when the Supreme Court was often little more than a rubber stamp for Patrick McIlheran's dearly beloved industrialists.

In fact only one Justice rejects the public purpose test outright: the literalist outlier Clarence Thomas. Nobody joins his dissent, not then-Chief William Rehnquist, and not even conservative avatar/Saint Antonin Scalia.

Second, in a very important sense, Kelo is something of a triumph of local discretion over all nine of the black-robed elitists ensconced at imperial federal headquarters in Washington, D.C.:

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us ... to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. * * *

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.

Under more convenient circumstances, these are the sentiments of modest deference much adored and oft-articulated by self-styled judicial conservatives. Kelo, alas, presents a matter of grave inconvenience to the usual conservative federalist tub-thumping.

Finally, many of the conservative objections to the result in Kelo had to do with the biographical details of the person at the heart of the case, Suzanne Kelo. And much of that objection focused on — you guessed it — sympathy for her personal travails and tribulations.

As a matter of fact, just a few months ago none other than Patrick McIlheran his own self decried the Kelo decision for treating people like "insects." Empathy for the (literally) dispossessed, indeed.

What changed since then? Obama, and the Need to Fear Him.

Kelo aside, unfortunately that is where the law leads sometimes, especially in the hands of cramped obsessives like Justice Clarence Thomas and apparently even McIlheran would prefer a federal judiciary that views people as people, and not just "insects."

And that is all Barack Obama is saying. As for the examples of minority groups to whom he refers, it is for their protection specifically that the Bill of Rights was drafted and ratified.

Sowell and pals, on the other hand, are simply buying up and reselling a Bill of Goods: the blatant pandering to ignorance and fear that has been the central theme of the Palin-McCain presidential campaign.

Ultimately, Fear is what John McCain has to offer. Reject it.

McCain on federal judges

"Our nation needs a new direction — different from the path pursued by the current administration," writes Senator John McCain today in the National Law Journal. So what's going to be different? McCain promises to "appoint strict constructionist judges."

Whatever that's supposed to mean, it's exactly the direction pursued by the current administration: "I would pick people who would be strict constructionists," quoth George W. Bush. Not different.

As for his own current rival, McCain says of he, "Senator Obama's judges would coddle criminals." McCain offers no elucidation, but presumably this is a reference to Obama's apparent opposition to federal mandatory minimum sentences.

Mandatory minimum sentences remove discretion from the sentencing judge who is faced with a case-specific set of facts and mitigating circumstances that simply may not warrant the imposition of the minimum sentence, which is mandated by statute.

That's not how justice is done, and that's not how judges should be forced to do their jobs.

Senator Obama is certainly not alone in that opposition, and Prof. Douglas Berman, at his Sentencing Law and Policy blog, links to a 21-page compilation of conservative judges voicing their own reservations (to say the least) with mandatory minimum sentences.

Somehow I wouldn't expect John McCain to accuse Frank Easterbrook or William Rehnquist or any of the dozens of other federal judges and prosecutors cited of "coddling criminals." But consistency would demand it, if that is the basis for his accusation against Obama.

Lack of consistency aside, what's especially amusing is that in the very same NLJ piece, Senator McCain pledges to de-politicize the Justice Department, whereas demonizing his opponent for the crime of opposing mandatory minimum sentencing and "coddling criminals" is about as cheap as political pandering comes.

I guess McCain doesn't do irony either.

Bluegrass music to my ears

It seems that Kentucky Senator Mitch McConnell is in a spot of trouble. McConnell famously launched a suit in federal court against the Bipartisan Campaign Reform Act of 2002 (a.k.a. McCain-Feingold) before the ink was dry on President Bush's signature.

He lost, mostly, in one of the ugliest decisions in U.S. Supreme Court history. If I recall correctly, the late Chief Justice William H. Rehnquist of Shorewood, WI, in announcing the opinions, said he hadn't previously known there were that many judges on the Court.

Mitch McConnell's Democratic opponent, Bruce Lunsford, according to the good Senator's campaign manager, is "little more than an egotistical and greedy man." You stay classy, Mitch McConnell.

More conservative WI-blog funnies

Laugh-out-loud of the day:

Alex Kozinski is "an extremely liberal judge."

Actually Judge Kozinski is a former counsel to the Reagan administration, appointed to the Ninth Circuit Court of Appeals by St. Ronnie himself, and was considered by the present administration to replace either William Rehnquist or Sandra Day O'Connor.

That's how "extremely liberal" Judge Kozinski is.

Apparently the right-nut contingent's perpetual paroxysms are having paroxysms of their own because Judge Kozinski — or somebody — uploaded to his personal web domain what sounds suspiciously like evidence from an obscenity trial over which Kozinski is currently presiding (and has since been suspended).

Howard Bashman, as usual, is on the case.

Demonstration at Marquette today

I'm shocked and appalled at Marquette Law School Prof. Rick Esenberg's implication that judges, in their written opinions, should not engage in public debates questioning the constitutionality or general wisdom of certain laws while at the same time voting to uphold those laws. Prof. Esenberg refers to these debates as "occasional indulgences,"* but they are often better known as "concurring opinions" and sometimes "dissents."

Careful readers may have noticed that one of my favorite books is Freedom and the Court: Civil Rights and Liberties in the United States, by Henry J. Abraham and Barbara A. Perry. FATC is a marvelous work, although I have thus far resisted purchasing it. The reason for that is there is always a copy of the 8th edition on hand at the Milwaukee Public Library. As a matter of fact, if you take a look at it in MPL's central branch (342.085 A158 2003), you will find about eleventeen date stamps going back more than three years on the white strip affixed to the back jacket. Those are all me.

And if you also find the $100 (CDN) bill that I use as a bookmark, kindly leave it where it is. I'll be back for it.

A large portion of FATC deals with the 14th Amendment to the United States Constitution, and the question of whether the Due Process Clause of that Amendment has the effect of making the first eight Amendments (a.k.a. the Bill of Rights) applicable to the States. As everyone knows (I hope), the First Amendment begins with the words, "Congress shall make no law." Congress, of course, being the federal government and not the States. Beginning at least as far back as 1833, the debate has raged over whether the Bill of Rights is a restriction not only on the powers of Congress but also on those of the States.

In 1833, the legendary Chief Justice of the U.S. Supreme Court John Marshall determined that it restricted the federal government only. After the ratification of the 14th Amendment in 1868, a number of attempts were made to obtain a ruling from the Court affirming that the 14th Amendment did indeed "incorporate" the provisions of the Bill of Rights against the States, but no clear success was realized until 1925, when the Court declared that freedom of speech, as guaranteed by the First Amendment, was also something that the States could not abridge.

Since then, nearly every provision of the Bill of Rights has been incorporated one at a time, a practice known as "selective incorporation." The debate over incorporation has involved some of the greatest Justices of the Supreme Court, including Hugo Black, who was something of an absolutist when it came to reading the text of the Constitution. Justice Black argued, in a series of "occasional indulgences" which ultimately failed to produce a majority among his colleagues, that the entire Bill of Rights should be incorporated all at once, in what is known as "total incorporation."

The debate over incorporation is arguably the most fascinating aspect of constitutional law — not to mention American history generally — and it rages until this day. Recently, Justice Clarence Thomas, in an "occasional indulgence" of his own, suggested that the First Amendment's Establishment of Religion Clause, which is among those Bill of Rights provisions that have been incorporated, should not restrict the States from establishing their own religions, or at least that the restriction against the States should be relaxed to some extent.

I don't know why; probably so Governor Jim Doyle can finally convert you to Islam or something, further to the Democrat playbook.

This brings to mind the gifted historian and constitutional scholar Leonard Levy, in contemplating an Establishment Clause opinion by the late Chief Justice and graduate of Shorewood High School William H. Rehnquist, who wondered aloud how exactly the Chief got from "No Law" to "Some Laws." Many of us wonder still.

In any event, Prof. Esenberg's outlandish insinuations call for a strong action of radical protest, and I intend to demonstrate in his Marquette Law School office in the form of a sit-in (chair permitting) sometime this afternoon. The length of the demonstration will depend on how busy he is and whether I make the proper selection from Dunkin' Donuts, where I need to pass by anyway, because the Milwaukee Public Library just alerted me to the fact that I have finally made it to the front of the queue for Curb Your Enthusiasm: Season Three, and Dunkin' Donuts is right across the street.

While I'm there, maybe I will add another date stamp to Freedom and the Court, and direct Prof. Esenberg's attention to the "occasional indulgences" of Justices Black, Frankfurter, Harlan, et al.

I also intend to determine whether he really does have a halo.

* I thought Martin Luther did away with those at Wittenberg.

A bit of Sunday insight

Marquette Law Professor Rick Esenberg reminds us that he'll be appearing today on Sunday Incite, the morning show hosted by Milwaukee squawking head Charles J. Sykes. So I thought I'd rise at stupid o'clock just in case Prof. Esenberg decides to check in with his favorite blogger first, and just in case the topic of the Wisconsin Supreme Court presents itself to Sykes & Co.

If both of those premises are satisfied, then perhaps Prof. Esenberg might be kind enough to keep the following thoughts in mind as he engages the said topic. I respect Prof. Esenberg, except he's got some decidedly unsavory friends. But whatever. Here's what he wrote about your humble correspondent last night:

[illusory tenant] wants to make [Louis Butler] look "good" in the sense of not [favoring criminal defendants].

Not exactly. Louis Butler does not need me, or anyone else, to make him look good. I entertain no such self-serving presumptions. In fact, it was never even my intent at all to follow this election campaign as closely as I have. However, beginning in November, when Burnett County Judge Mike Gableman first started circulating his facile misrepresentations of the law, I began to take notice.

As for "favoring criminal defendants," that whole idea, which Gableman and his deep pocketed supporters are attempting to make the central issue over — of all things — a seat on the Wisconsin Supreme Court, is itself facile and misleading.

It may be a slogan suitable to a campaign for district attorney, but practically ridiculous in the present context, considering the functions of the State's highest appellate court, which outright rejects the overwhelming majority of criminal appeals in the first place.

And Esenberg knows as well as anyone just how facile and misleading it is. The Gableman campaign and its surrogates are orchestrating a farce of the lowest order on the people of Wisconsin, if not the country: witness the attention this campaign is lately getting from Newsweek.

Look at Wisconsin Manufacturers & Commerce, Gableman's biggest supporter in terms of resources, which actually has the unmitigated temerity to portray the Confrontation Clause of the Sixth Amendment as a "needless technicality." How is one to react to that? With a combination of riotous laughter and abject horror, I should think. A provision of the Bill of Rights ... a needless technicality.

I don't know about Esenberg, who, let us not forget, has lent his considerable acumen to the WMC's campaign against Louis Butler, but I beg to differ. In my view, the U.S. Constitution is the product and expression of sheer political and legal genius, and it's practically impossible to overstate its importance.

I can barely believe my eyes, to see it reduced to a needless technicality. Every single person in this country should rightly be appalled at WMC's downright anti-American propaganda.

Let me also be clear in reiterating that this is a campaign against Louis Butler, and not a campaign in favor of Mike Gableman. Gableman, who has now had nearly six months to present himself and his ideas, remains essentially a cipher. We know very little about him. We have no idea whether he's even read a decision of the Wisconsin Supreme Court, let alone that he even understands what the job he's seeking entails.

In my considered opinion, the relatively little he has presented mitigates strongly against either proposition.

Have any of the anti-Butler forces even read Butler's dissent in State v. Jensen? It's a pretty impressive piece of work, by any standards, and tightly reasoned. Butler traces the history of the Confrontation Clause back to the 16th century, a reminder of the protections against the Crown that became embodied in the United States Constitution, the envy of the world. It's like reading the work of another famous son of Milwaukee, Chief Justice William H. Rehnquist of Shorewood High, the "historian" of the U.S. Supreme Court.

I read it a long time ago and as a matter of fact it was the subject of my very first post on this campaign back in December, discussing how Butler's approach exemplifies both narrow textualism and original intent, two doctrines of constitutional interpretation to which political conservatives normally proclaim undying devotion.

Now suddenly it's "needless technicalities"? How in the world can anybody take Wisconsin Manufacturers & Commerce seriously?

Please excuse my French, but just how fucking stupid do they think we are? I submit that we are far, far from stupid, and as such we need to summarily reject their disingenuous ploys, along with their obscure, bought-and-paid-for candidate, Mike Gableman.

Leave him be, where he can continue to protect the residents of Burnett County, and "preside over" their thousands of uncontested traffic tickets. Because he's clearly not ready for prime time.

Moreover, when the relatively conservative U.S. Supreme Court affirms and vindicates Justice Butler's Jensen dissent in Giles v. California later this year, it will be a proud day not only for Butler, but for all Wisconsinites. If you forget about it by then, fear not, I'll be sure to remind y'all.

As for Jessica McBride and her thoughtless enabler at the Milwaukee Journal-Sentinel, Patrick McIlheran, my criticism of them has been based in what is their demonstrably irresponsible journalism. Not only is it clear now that McBride didn't even understand the meaning of the numbers at the heart of the documents she has been working feverishly to defame Justice Butler with, but McIlheran didn't make the slightest effort to understand either.

Instead, they rushed headlong to announce their preordained conclusions, in this case, that a sitting Justice of the Wisconsin Supreme Court is a liar. Can the practice of alleged journalism get any lower? Maybe, but not by much.

One final thought. I have accused Gableman of deliberately misrepresenting the law. The reason for that is because I have no other choice. I have shown, on many occasions, with evidence, how he is misrepresenting the law. And I'm not done, either. So have others, most recently in the commentary concerning his utterly disgraceful television spot. That leaves the question of whether he is doing it deliberately or inadvertently.

If the latter, then Gableman is incompetent. That is, unworthy and unsuited to the position he seeks. By definition. But I am not calling him incompetent, for obvious reasons. Because I do know the law.

That leaves deliberate misrepresentation. And deliberate misrepresentation of the law is what Gableman and his supporters are up to, in their campaign to defame Louis Butler. It seems to me one of the reasons — perhaps the only reason — that the Gableman campaign is doing this is because he can't run on his own merits and that is because, compared to Louis Butler, he has very few.

Ultimately, whether deliberate — as opposed to inadvertent — misrepresentation of the law makes Gableman more or less unworthy or unsuitable for the Wisconsin Supreme Court is a pretty close call, I must say.

Is this really the individual that the people of Wisconsin should choose to install on the highest court in their State, thereby replacing someone who's been a judge longer than Gableman has been a lawyer? I should certainly hope not.

And while he'll probably never admit to it, I bet that — "in his heart," as they say — Esenberg agrees with much of the foregoing.

Happy Easter.