Koschnick's favorite judicial activists

Nearly four months into his candidacy for a seat on the Wisconsin Supreme Court, voters can still be forgiven for not knowing what the heck Jefferson County Circuit Judge Randy Koschnick is on about, apart from being a garden variety rehearser of vacuous conservative Republican talking points.

Yesterday during an appearance with Mike Gousha on WISN-TV's Up Front, Judge Koschnick kept up fronting his standard "I'm a judicial conservative" line as opposed to the incumbent, Chief Justice Shirley Abrahamson, who Koschnick continually refers to as a "judicial activist."

While Koschnick takes pains to differentiate between "judicial conservative" and "political conservative" — he insists he's "not running as a political conservative" — within moments he's describing the Chief Justice as at "the opposite end of the spectrum" from him, dividing the United States Supreme Court into "the left" and "the right," and even helpfully naming names.

"Opposite end of the spectrum" ... "the left" ... "the right" ... Apparently Koschnick actually expects people to believe that all of these references supposedly have nothing to do with political or partisan identity but only with the purity of his jurisprudence.

Asked by Mike Gousha to clarify, Koschnick once again compares himself to the Justices of the U.S. Supreme Court he admires most, including Antonin Scalia, even though Justice Scalia's own written words utterly contradict Koschnick.

According to Koschnick, the standard by which judges are deemed to reside on either side of the "activist" or "conservative" dichotomy is found in their propensity to strike down acts of the legislature.

He makes this very clear:

Mike Gousha: Tell us about the greatest difference between you and [Abrahamson].

Randy Koschnick: It's our judicial philosophies. I am a judicial conservative. I believe that justices on the Supreme Court such as the Wisconsin Supreme Court should apply the constitution the way that it's written and that we should give deference to the legislature when they pass a statute, rather than looking for ways to overturn statutes.

Justice Abrahamson is from the other end of the spectrum and she is an activist justice who frequently votes to overturn statutes passed by our legislature.

Gousha: She says the term activist is meaningless. It basically means you don't agree with her ruling. What do you say to that?

Koschnick: Well, I think that most people understand what I mean when I say activist. You have the same philosophical divide on the United States Supreme Court and on almost every other State Supreme Court around the country.

[On] the United State Supreme Court, for example, you have the strict constructionists like myself, the conservative justices like myself — judicially conservative, not politically conservative ...

Gousha: Do you think the public makes that distinction?

Koschnick: I think so, I think when you explain it to them, when I explain it to them they seem to understand. I'm not running as a political conservative, I'm a judicial conservative which means I believe judges should exercise judicial restraint and not legislate from the bench. Leave legislating to the legislature.

And on the U.S. Supreme Court you have John Roberts, Antonin Scalia, [and] Clarence Thomas as the conservatives, you have Ruth Bader Ginsburg and John Paul Stevens as the activists. We have the same breakdown in Wisconsin. Justice Abrahamson is over here with Justice Ginsburg on the left and I'm over here on the right with Clarence Thomas and Antonin Scalia and John Roberts.

Thus, the benchmark Koschnick proffers to depict himself as a "judicial conservative" — but, mind you, not as a "political conservative" — is how often the judiciary overturns the legislature.

He's over here on the right with Thomas and Scalia, while Abrahamson is over there on the left with Ginsburg and Stevens: opposite ends of the spectrum, which has nothing to do with politics.

Except that in 2005 when Yale University law professor Paul Gewirtz had a look at several dozen U.S. Supreme Court decisions which implicated Congressional provisions, he discovered Justices Thomas and Scalia leading the judicial activist pack at 66% and 56% respectively, while Justices Ginsburg and Stevens were the least likely to "legislate from the bench," as Koschnick tiresomely puts it.

Obviously there is far more to such evaluations than the brute fact of whether a Supreme Court Justice voted to invalidate an act of Congress, just as there is more to Koschnick's strikingly familiar attempts to portray the Chief Justice as "60% pro-criminal."

Problem is, Prof. Gewirtz's percentages were derived precisely according to Judge Koschnick's own proffered benchmark.

And they contradict him. Again.

"When I explain it to [the public], they seem to understand," says Judge Koschnick. Well of course they understand. They understand the Republican code language. And so do we all.

Despite his contradictory entreaties, Koschnick is campaigning as a standard-issue conservative Republican in an allegedly non-partisan election. There really is nothing more to it than that.

Tea Party candidate praises Russ Feingold

And unwittingly affirms a prophetic Feingold press release

Tea Party Republican Ron Johnson, who heeded the Fox "News" Channel's principled call for a "rich guy from Wisconsin" to run against Senator Russ Feingold, is off to a compelling and convincing start, appearing over the weekend on Up Front with Mike Gousha:

Mike Gousha: Does Russ Feingold get any credit for voting against TARP, in your opinion?

Ron Johnson: Sure. Yeah, I'll give him credit for that. He was right on that issue.

Then, having done only less than half his homework, this complaint:

Ron Johnson: As a matter of fact, three days before [Feingold] voted for the [federal stimulus package], he issued a press release saying that in the first year, there'd be 2.4 million jobs created.

Feingold's figures relied on the Congressional Budget Office, and what Feingold wrote on February 10, 2009 was that the ARRA "was expected to create up to 2.4 million jobs in the first year."

Mike Gousha: I know you're a reader of the Wall Street Journal.* They did a story this week on the latest study by the non-partisan Congressional Budget Office which said in the first quarter of 2010 the stimulus package had created between 1.3 and 2.8 million jobs. It was more than they expected when they passed the bill, seeming to say that the stimulus had worked. Do you think they're wrong when they say that? This non-partisan budget office?

Ron Johnson: First of all I haven't seen that study. Where's the evidence?

Lo and behold, it's right here on the internets.

Video: Ron Johnson blows his Fox News dog whistles on WISN-12

Mike Gousha's subtle eviscerations are quite entertaining, although it's too bad he didn't ask Ron Johnson what was up with Johnson and his posse's tearing down off the wall the campaign signs of his two political rivals at a recent Republican jamboree in Milwaukee.

Also, "Obamacare" is an "assault on our Freedoms," says Ron Johnson. Johnson claims they don't have our Freedoms in Canada, which is why a fellow rich guy from Newfoundland had no Freedoms to travel to the U.S. for a cardiac procedure and then recuperate comfortably at his Miami condo in a Freedom-ly rich guy fashion.

* Most likely a reader solely of the WSJ's bias-confirming right-wing op-ed pages and not any of the paper's actual reporting.

A preview of the Koschnick campaign

This touch of hyperbole from a brief teevee interview with the Hon. Randy R. Koschnick, the Jefferson County circuit court judge who's running for a seat on the Wisconsin Supreme Court:

Mike Gousha: Do you think Justice Abrahamson has been legislating from the bench?

Randy Koschnick: I do.

Gousha: Can you give us an example of where you think she's done that.

Koschnick: Sure. In the Dubose case. It's a criminal case, State v. Dubose, decided about three years ago. She was part of the majority that decided that police officers in Wisconsin could no longer conduct these showup procedures in most circumstances. That had been a long-used crime fighting tool.

When there was a crime reported — for example a robbery — if the police could locate a suspect who matched the description in the vicinity, they'd put him in a squad car and show him to the victim and identify him and either let him go or arrest him. And under this decision, Justice Abrahamson has overturned years of precedent and prohibited police from engaging in that procedure.

A showup identification is kind of like a police lineup, except the only person in it is the suspect, often handcuffed and sitting in the back of a squad car and appearing already an awful lot like ... a criminal.

Dubose doesn't "prohibit" any police procedure. It's an evidence case, decided according to the requirements of Due Process. Police officers can still conduct a showup and the State can still attempt to have the results admitted as evidence in court.

While it's true that Dubose made the State's burden more onerous than it was previously in having such evidence admitted, these showups can be highly suggestive and thereby often unreliable.

That's mostly what Dubose is about: reliability of evidence.

But if Dubose "prohibited" anything, then its author, Justice Patrick Crooks, wouldn't have written this:

[W]e decline to adopt [Dubose's] proposed per se exclusionary rule regarding such evidence.

Per se in this context means evidence obtained from an out-of-court showup identification would be inadmissible in court no matter what.

And even if all evidence obtained from any showup identification was per se inadmissible, that still wouldn't "prohibit" law enforcement from using the procedure as a "crime fighting tool."

As for legislating from the bench, Dubose is hardly that. It's rulemaking, which is what appeals court judges do all the time, despite Koschnick's claim that they only "call balls and strikes."

Van Hollen defends his strategery

"This has nothing to do with health care." — Wis. AG

UPFRONT with Mike Gousha:

Gousha: [incredulously] How much of this is political?
Van Hollen: None of it.

I got your back, J.B.

Norbert accords Feingold a Nate Silver bump

The incipient rebound?

Silver weights Norbert with more oomph than the 9/29 Rasmussen.

And, Silver's "538 regression" model shows Feingold ahead by 4.5.

Ron Johnson can't be relishing the prospect of a 90-minute encounter with Russ Feingold and the formidable Mike Gousha tomorrow night.

Mike Gousha doesn't let slide much evasion or many non-answers, both of which are Ron Johnson's stocks-in-trade (necessarily).

Feingold in "deep trouble"

Salivates Fred Barnes in Bill Kristol's organ, the Weekly Standard:

Republican businessman Ron Johnson is two points behind (Rasmussen) Democratic Senator Russ Feingold. The tightness of these contests is especially worrisome to Democrats because once seemingly safe incumbents are now in deep trouble.

Rasmussen's is so far the only poll available for the Feingold/Johnson matchup. Nobody's ever heard of Ron Johnson. He has no platform other than "Obamacare is an assault on our Freedoms," whatever that's supposed to mean, and he's pledged to repeal it as his Senate Job One, which is akin to a hellbound snowball's entreaties.

He appeared on Fox & Friends (literally, his most appropriate venue) yesterday to mouth the identical vacuous Tea Party platitudes that WISN-TV's Mike Gousha subtly undermined over the weekend.

And he unreservedly commends Russ Feingold's opposition to one of the most significant and costly pieces of legislation forged by the 111th Congress, the $700 billion Troubled Asset Relief Program.

If the theory is that Wisconsin voters will choose anybody — even an unknown — over the incumbent Feingold, then why did the same pollster show Feingold trouncing the other competing Republican hopefuls Terrence Wall (since withdrawn) and Dave Westlake?

Expect Rasmussen Reports' tiny sample size/wide margin of error* science to achieve outlier status in a hurry, just as several of Rasmussen's other U.S. Senate polls already have.

And somebody please hand Fred Barnes a tissue. Or a box of them, just in case Johnson gets an opportunity to debate Feingold.

Johnson's sense of civic and political responsibility is certainly admirable, but he better start boning up on some substance.

Further reading.

* According to which Johnson is actually leading Feingold.

I'm Ron Johnson and I approved this falsehood

[Russ Feingold] has not worked anywhere outside of politics.

— Ann Actress

JSOnline All Politics Blog

(Ron Johnson donated $10K to career politician Scott Walker.)

Then Ron Johnson tells Mike Gousha: "I don't know what else [Russ Feingold's] done in his life." What a comedian. Do you or don't you?

Making decisions is what judges do

Former Wisconsin Supreme Court Justice Janine P. Geske joins WISN-12's Mike Gousha yesterday evening: Up Front (video, 7:45). And at the root of each of the separate but related controversies they discuss is, obviously, Michael Gableman's ill-advised decision making.

Had he the foresight, he might have sacrificed personal political ambition for the continued integrity of the State's judicial system.

But as in an ancient tale, those temptations proved irresistible.

Wisconsin AG debate shaping up to be a doozy

One thing that might be said for Democrat Scott Hassett, who is challenging the incumbent Republican Wisconsin attorney general J.B. Van Hollen in the November election, is that he is not timid:

Van Hollen Launches Statewide "Blame Victims First" Tour (.pdf)

Hassett's campaign also called controversial Calumet County District Attorney Kenneth Kratz an "admitted sexual predator" — which I'm not certain is an entirely supportable characterization at this point — and that Van Hollen let the said admitted sexual predator "walk free."

Then there are the guns and the gays and the Commerce Clause.

Scott Hassett and J.B. Van Hollen meet for un petit dejeuner du midi on Thursday, October 7 at the new Marquette University law school, an encounter moderated by the eminently capable Mike Gousha.

Judges are often not like umpires at all

A faithful anonymous reader suggests I "cherry picked" from Jefferson County Circuit Court Judge Randy Koschnick's weekend interview with WISN-TV's Mike Gousha. Well, yeah, I guess I did.* Probably because there really wasn't all that much else to it.

Except perhaps Judge Koschnick's reiteration of an expression that seems to have insinuated itself into the vernacular of judicial politics in the wake of U.S. Supreme Court Chief Justice John Roberts's remarks during his Senate confirmation hearings in 2005.

"Judges are like umpires," Roberts told the Committee on the Judiciary. "Umpires don't make the rules; they apply them."

(He said this immediately after assuring the Committee, "Judges are not politicians who can promise to do certain things in exchange for votes." Maybe that claim applies to the federal system, in which judges are appointed by the president but not here in Wisconsin, where even justices of the State Supreme Court are elected following often highly politically charged campaigns.)

But judges do make the rules. Here's a fairly obvious and controversial example, from the pen of one of the most "conservative" judges in the country, Justice Antonin Scalia:

[G]enerally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.

That's the rule made by the Court in Employment Division v. Smith. Smith was an adherent of the Native American Church, one of whose sacraments is the ingestion of peyote, a hallucinogenic cactus blossom which is otherwise illegal — a controlled substance.

Smith got fired from his job and was later denied unemployment benefits by the State of Oregon because his dismissal was based on the "misconduct" of having eaten peyote.

As taking peyote was a sacrament of his church, Smith argued that his right to free exercise of religion guaranteed by the First Amendment was violated, since Oregon had deemed his religious practices misconduct by way of denying his UI benefits.

Because the Constitution doesn't give any direction as to how to proceed when someone claims such a violation, the Supreme Court makes the rules governing how the lower courts (and itself, for the fans of stare decisis) should go about evaluating such claims.

According to Justice Scalia, the government may make and enforce laws burdening your claimed right to freely exercise your religion so long as the law in question is potentially applicable to any person and otherwise neutral with respect to religion.

If the government manages to meet both of those criteria, then the government needn't additionally demonstrate a "compelling interest" when it goes about enforcing — or even simply defending — the law.

("Compelling interest" refers to yet another set of rules the Court has devised which it uses to evaluate laws in the Constitution's light.)

That rule defines — to extend Chief Justice Roberts's baseball simile — the dimensions and parameters of the strike zone.

And that is the rule made by Justice Scalia and his colleagues. It doesn't appear anywhere in the text of the First Amendment or elsewhere in the Constitution. Nor do many, many other rules made by all manner of judges from "strict constructionist" to "activist."

So, Anonymous 10:27, Stee-rike two.

* At least, according to an overly generous definition of cherry picking. Because that's just the kind of guy I am.

Gonna need to double down on the torts reform

Wisconsin will fall far short of adding the 250,000 new private-sector jobs by 2015 that Scott Walker promised as a key part of his successful election campaign. — by the Associated Press

"Pledged," not just promised, I believe it was:*

Mike Gousha: Is this [pledge to create 250,000 jobs] a campaign promise, something you wanna be held to?

Scott Walker: Absolutely. ... To me, 250,000 jobs is a minimum.

Hold him to it.

* "Scott Walker Discusses His Pledge to Create 250,000 Jobs."