March 23, 2008

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.


Anonymous said...

Could not one be a bad Judge for a long time and a good lawyer for a short time?

illusory tenant said...

Hypothetically, of course.

But in the present instance, we have much empirical evidence and therefore there is simply no need to resort to hypotheticals.

I urge you to watch the interview with Justice Butler at the JSOnline. The link is in the post above this one.

Wisconsin is fortunate to have a quality jurist like Butler on its Supreme Court and, given that empirical evidence, it would be an act of sheer perversity to replace him with someone like Gableman.

Anonymous said...

Empirical…relying on experience or observation alone often without due regard for system and theory.

illusory tenant said...

I don't know where you get that definition. Empirical evidence is for the purpose of supporting systems or theories.

Anonymous said...

Main Entry: em·pir·i·cal
Pronunciation: \-i-kəl\
Variant(s): also em·pir·ic \-ik\
Function: adjective
Date: 1569
1 : originating in or based on observation or experience (empirical data)
2 : relying on experience or observation alone often without due regard for system and theory (an empirical basis for the theory)

illusory tenant said...

Thanks, jp.

I assume 2: refers to topics in philosophy devoted to the investigation of human (and other) knowledge generally. I was using, and usually do use, the primary definition you provided.

Not only that but 2: seems incoherent. How can "empirical" mean "without due regard for theory" and then, as an example of context, provide, "empirical basis for [a] theory"?

I avoid online dictionaries at all costs, jp, apart from of course, because neither my own M-W nor my Concise Oxford appears to provide suitable definitions of, for example, "pwnt, "tl;dr," or "Cleveland steamer."