February 7, 2008

The anti-Federalist Society

Esteemed counsel Mike Plaisted has thrown down another priceless commentary related to the April 1 election contest between Wisconsin Supreme Court Justice Louis Butler and Judge Michael Gableman of Burnett County. I offer the link partly in self-serving recognition of his generously framed glances in my direction, but also for a couple of other reasons.

The first is to note the obvious: Plaisted's central point addressing young GOPer Daniel Suhr's regurgitation of the Gableman campaign's thus far unsupported claim that Justice Butler "consistently sides with criminals over law enforcement" is completely ignored by Suhr when he turns up in Plaisted's comments thread.

Suhr, who describes the claim as "an effective punch from the Gableman campaign," instead uses the opportunity to break the news that Microsoft now allows us to convert Word documents to Adobe Acrobat files and to confirm how much he likes his bibliography of, as Plaisted puts it, "Everyone Who Said Anything Bad About Butler."

Earlier, Mr. Suhr got himself definitively schooled on statistical methodology by Clutch, another highly instructive comment that, for one reason or another, Suhr chose not to respond to.

I should add that I happen to know what Clutch does for a living and, without revealing too much, can reasonably predict that he would easily qualify as an expert witness in the discipline according to either the Frye or the Daubert standards (those are two U.S. Supreme Court cases that address the elements of how to go about evaluating the admission of expert testimony).

That Suhr insists on regarding the Gableman claim as an "effective punch" while continuing to ignore requests that he support it serves only as more confirmation that Suhr's project is 95% GOP politics and 5% reading the cases (and the latter only where they allegedly provide positive servicing of the former).

Instead, what Suhr and Rick Esenberg — who also makes an appearance in Plaisted's comments — object to is Plaisted's suggestion that Esenberg and Suhr were somehow in league over the production of Suhr's "research briefings," which he's since helpfully forwarded to the Gableman campaign.

While you can't blame either of them for denying it, you can hardly fault Plaisted for putting it forth either. Plaisted has documented a number of connections between Marquette Law School, the Federalist Society, and Wisconsin Manufacturers & Commerce, the latter two outfits being among the anti-Butler forces.

As for the law school itself, it should be noted that Esenberg's boss, the individual who brought him aboard the faculty, Dean Joseph Kearney, is himself a Federalist Society man. And Dean Kearney can boast the most impeccable Fed Soc credential of all: he clerked for Justice Antonin Scalia.

For Esenberg's part, he's written a series of lengthy posts attempting to rebut some of the things I've said here. The posts, although entitled, "Setting the record straight," rebut very little. The detail he finally did catch me on by the third in the series I acknowledged immediately and added a correction to the original post.

What Esenberg's series does is explain some of the philosophical groundwork for Esenberg's own objections to Louis Butler's jurisprudence, at least as Esenberg sees it. That is legitimate commentary and he does not ineptly or misleadingly manipulate the law to make his point. His Fed Soc paper, "A Court Unbound?" is available here, is very well written, and is well worth reading.

(As mentioned previously, "A Court Unbound" is the theme of WMC's World Tour of Breakfasts, which kicks off next week.)

A Consistency Unbound By Political Convenience?

Now for some philosophical observations of my own. The Federalist Society gets its name and purports to take its guidance from James Madison. Of all the Framers of the Constitution, Madison was its most assiduous assembler and defender. He, together with Alexander Hamilton, is one of the principal authors of the Federalist Papers, a series of 85 brilliant polemics in defense of the Constitution that appeared in the New York press in the immediate aftermath of the Constitution's drafting during the summer of 1787.

The Federalist position initially was that the Constitution did not require a Bill of Rights, because federal power was already self-limiting, expressed as it was in a series of specifically enumerated powers; for example, Article I, Section 8, which sets forth the powers of Congress (most of them). Ultimately the anti-Federalist forces, who distrusted federal power in favor of local control, won out, and Madison himself shepherded the Bill of Rights through Congress. The Bill of Rights consists of either the first eight or the first ten of the Amendments to the Constitution, depending on which scholar you read.

Regardless, the heart of the Bill of Rights is a set of protections against the government afforded to criminal defendants, contained in the 4th, 5th, 6th, and 8th Amendments. While these restrictions originally applied only to the federal government, they have since been deemed applicable to the States through the legal force of the Due Process Clause of the 14th Amendment, which is a directive to the States.

Additionally, the States have their own bills of rights, the language of which in many instances is identical, or functionally identical ("substantially similar," in the lawyerly vernacular) to the federal Bill of Rights.

The U.S. Supreme Court is charged by the Constitution with interpreting the scope of the federal protections and, hence, these must be followed by the States, as a minimum. In other words, the States may interpret not only the federal Bill of Rights more broadly than has the U.S. Supreme Court, but they may interpret their own State bills of rights more broadly than has the U.S. Supreme Court interpreted the federal Bill of Rights.

For example, there is nothing in the federal constitutional scheme that forbids a State from finding a police search unreasonable even though the U.S. Supreme Court may have found a similar search not unreasonable.

Lately, ironically, we have Federalist Society members and their fellow travelers denouncing as "activist" opinions of Justice Butler's that they claim reject federal control, in the form of U.S. Supreme Court interpretations of the Bill of Rights, in favor of self-determination by the State of Wisconsin, by way of its own interpretation of its own State bill of rights.

Ironic because this is precisely the sort of State power the anti-Federalists sought to preserve. Now here are the self-styled Federalists criticizing Justice Butler for exercising it.

Go figure.

[Please visit the iT Butler/Gableman archive.]


Rick Esenberg said...

First, thanks for nice words on a paper that you may not aree much with.

As for Marquette and its connection to the vast right wing conspiracy, we have four or so conservatives on the full time faculty and two of them started this year. Personally, I'd love it if one of my liberal colleagues found the time to be more active on local policy issues (some are in ways that they deem fit) or if we hired someone on the left who was. I don't have to guess that Joe would agree. I know it.

I responded to Mike's post in the way that I did because he persists in saying that I put Daniel up to what he wrote when I have made clear that I had nothing to do with it. He is a bright and energetic young man who is quite capable of doing all manner of things on his own. He has absolutely no reason to curry favor with me. He has a very nice job waiting for him after he graduates in May.

I never claimed anything about the relative proportion of Justice Butler's ruling for the defendant. I think I blogged - I know I've said - that it would surprise me if any justice ruled mostly for defendants in criminal cases. I have also said - and every knowledgeable lawyer knows - that Justice Butler is more inclined to rule for defendants (although maybe not as much as some others) than the "conservative" justices on the court.

Nor have I ever said that New Federalism is "activist." I have merely said that there is a difference of opinion as to whether and when state supreme courts should say that substantially similar language means something other than what SCOTUS says it means in the federal constitution. I think the correct answer is, essentially, sometimes but mostly not.

What I have objected to is the suggestion that this isn't a legitimate issue. That's why I thought the issue around Cleaver was not just a little detail, although I stand by what I said about you and your blog, as misbegotten as your views may be.

illusory tenant said...

"Misbegotten" seems an unusual choice of adjectives when most of what you're objecting to I didn't attribute to you personally, or else didn't say at all.

That you're a free agent doesn't alter the fact WMC seized on your Fed Soc paper as the theme for a number of its efforts.

I'm looking forward to seeing the content of WMC's inevitable negative campaign of issue advertising against Justice Butler, and whether these same themes make an appearance.

And I'm not alleging any conspiracy, I'm simply pointing out some facts. Whether people want to view them as coincidences or consonances is entirely up to them.

Rick Esenberg said...

Can we stipulte that I think that all of your views are misbegotten and that I refuse to put that smiley sign in any of my posts?

illusory tenant said...

lol okay fair enough.

And I'll be watching 4th Street Forum tonight, so look out!

Anonymous said...

Justice Butler is more inclined to rule for defendants (although maybe not as much as some others) than the "conservative" justices on the court.

And since it's just about calling them as you see them, and not about political hackery, one could expect this message (Butler: reasonable centrist!) to start appearing above your name during the campaign...

(Quite apart from its evidential status, I mean; unless "every knowledgeable lawyer knows" has suddenly risen above the level of mere rhetorical flourish/incipient No True Scot fallacy.)

Rick Esenberg said...

My guess is that will not be part of any campaign messaging on behalf of Justice Butler. I said it because, although I haven't looked at it systematically, it's my impression that the Chief Justice and Justice Bradley may vote slightly more often to overturn convictions or to exclude evidence. I didn't want to imply that he votes in this manner more than - or even as often as - those two because I don't know if that's true. I am confident that he votes for defendants more often than Prosser and Roggensack and, when he was on the court, Wilcox.