April 14, 2008

Yeah, I'm an elitist. So what?

Marquette Law School Prof. Rick Esenberg did not deliver his best work to the Milwaukee Journal-Sentinel's Crossroads section yesterday. "Half-hearted," is how I'd charitably describe it.

If I were allowed to read between the lines, I'd say that Prof. Esenberg is nearly as revolted at the most recent State Supreme Court election as I am. The only reason I say "nearly" is because he received the reward he sought: the replacement of one of the smartest and most highly regarded judges in the country with a de facto and de jure Homer Simpson.

I also have to wonder if Esenberg actually voted for Mike Gableman or, like my piano student James, did the right thing but held his breath for the wrong outcome. At least, that's what I told James he'd done. (He laughed; James also has a sense of humor.)

It's impossible to take seriously Esenberg's portrayal of the two candidates as "reasonable lawyers with deep philosophical differences," as if there were comparable records from which to draw this implied equivalence of competence. Was Esenberg even paying attention? The only thing we ever heard from Gableman was the same old tired, empty GOP namecalling, of himself as a "textualist" (all judges are textualists — what, do you think the law is written in ham sandwiches?) and Justice Louis Butler an "activist" who decides cases in advance based on personal whims.

In other words, meaningless and — more to the point — baseless and indefensible rubbish. If Gableman has a philosophy, or is capable of enunciating one, or even knows what a judicial philosophy is or what it means to have a judicial philosophy, then maybe Prof. Esenberg can fill us in. But he certainly wouldn't be getting any of his impressions from Gableman himself. All Esenberg would be able to do is criticize Justice Butler's extensively documented jurisprudence and then claim Gableman represents his opposite number. Which is essentially all Esenberg has been able to muster in the first place.

Esenberg's anecdotal allusion to Ted Kennedy's goofball performances at Senate Judiciary Committee hearings on federal court nominees is every bit as unconvincing. Hardly anybody takes Kennedy seriously in that context. More the norm — or at least the ideal — is Arlen Specter's justly celebrated grilling of Robert Bork, which Ronald Dworkin described as one of the most compelling examples of American democracy in action.

And contrary to popular Republican "wisdom," Bork borked himself; it wasn't Ted Kennedy who borked Bork. That pesky Indiana law review.

Or how about the repugnantly obsequious tongue-bathings of GOP committee members like Orrin Hatch or — the worst of the worst — Jeff Sessions, whose inquiries of G.W. Bush judicial nominees elicit about as much probative intellectual content as asking the prospective Article III judges for their favorite brownie recipes, and then to comment approvingly on their own magical deliciousness.

As a newly minted supporter of a Wisconsin Supreme Court appointment process, even I'm willing to put up with those sorts of vacuous charades.

American democracy, let us recall, is decidedly not of the direct variety. The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms, because the Framers understood that the mob's inflamed passions would compel it to turf its representative yahoos out of office almost as quickly as it had installed them. And inflamed passions are the antithesis to the rule and the process of law.

The power of incumbency (a.k.a. hockey socks full of cash contributions stuffed in exchange for obeying moneyed interest groups) has changed all that for the most part, of course.

The call for the appointment rather than the popular election of judges inevitably invites catchy GOP charges of "elitism" from those who would prefer appellate courts empaneled with Homer Simpsons and Fred Flintstones. Bring on such charges, I say. Of course it smacks of elitism. Our highest appellate courts are supposed to be comprised of the elite. They are the elite. Anybody from Plato to Thomas Aquinas to James Madison and Alexander Hamilton (the poster boy for American political elitism) can tell you that.

Or Thomas Frank, whose What's The Matter With Kansas? Esenberg also disparages yesterday (without explaining why). Frank shows exactly how conservative caterwauling about "liberal elitism" is a fatuous joke and in fact a ridiculously embarrassing false pretense to political and cultural victimhood on the part of conservatives.

By close analogy, witness the disingenuous howls of persecution by American Christians, 85% of the population, driven back into their caves like the Essenes by a handful of atheists, many of whom are reluctant to identify themselves as such for fear of being scorned and shunned to the detriment of their very careers.

Ultimately, Prof. Esenberg's vaguely Churchillian thesis appears to be that popularly electing our State Supreme Court is the least worst option available. He can't possibly be serious, especially while at the same time declaring that he loves the law (which I don't doubt for one instant).

For one thing, an appointment process will have the meritorious effect of excluding the Mike Gablemans from our highest courts of appeal. That alone is enough to commend such a process. The strange case of Harriet Miers aside, does anybody seriously think the likes of Mike Gableman would be mentioned in the same breaths as the likes of John Roberts or Samuel Alito, even by Karl Rove?

Obviously a method of appointing — as opposed to the popular election of — judges will not erase the political content of the selection process. Who ever said it would? And what isn't political in this country? One of the reasons I got a law degree was so I could better understand the daily newspaper. Everything is political here, and all politics ultimately rests on some legal question.

And conservative Republicans needn't be concerned they'll be forbidden from engaging in precisely the same lobbying of a judicial selection committee with which they're able to insult the public's intelligence now. Happily, Wisconsin Manufacturers & Commerce will still retain its ability to micturate all over the Bill of Rights.

I have no idea what success State Rep. Frederick Kessler's proposed constitutional amendment will enjoy, if any. But, given the experience of Wisconsin's latest Supreme Court election, I wouldn't be able to bring myself to not support it.

Speaking as someone who also loves the law, the election was a shameful affair, and one can only pray it never happens again. Even I will pray, to Saint Thomas Aquinas, if that's what it takes.


Vigilante said...

Sigh... It's time for me to come out of the closet:

I am now, and always have been, an elitist. I realize that now that that's why I supported JFK and RFK. And that's why I'm voting for the Senator from Illinois. Obama is the one to put America Barack on track.

Sam Sarver said...

I'd like to inject some humor into the discussion by saying that your usage of "Bork borked" and "borked Bork" made me think immediately of the Swedish Chef.

Bork Bork Bork!

Sorry, couldn't help myself.

illusory tenant said...

'Twas the desired effect.

Terrence Berres said...

"The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms..."

The Framers of the Wisconsin Constitution, by contrast, went with elected terms of one year for the Assembly, two years for the Senate, two years for the Governor, and six years for judges.

Anonymous said...

Butler lost the election because he legislated from the bench. Live with it.

Rather than accept the will of the people you now want to deprive the people of their right to vote.

I've got a message. It's "of the people, by the people, for the people, NOT of the liberals, by the liberals, for the liberals.

Scot1and said...

IT, you make a great point. Has anyone at all claimed that Gableman would be a great justice, or even a mediocre Justice?

3rd Way said...

Obama is the one to put America Barack on track.

I agree. But seriously... Barack on track? You McCain't make such a terrible pun.

capper said...

3rd, iT made that pun for the Hillary of it.

illusory tenant said...

Anonymous, I'm sure there's a point in there somewhere, but you lost me along about the seventh non sequitur. (Ergo, elitists are fond of Latin.)

Anonymous said...

I'm not a judge (or even a lawyer) but what exactly does "legislate from the bench" mean. It seems to me that if being a judge didn't require the ability of independent reasoning or discernment we wouldn't need judges (or even lawyers) at all. If I remember my civics 101 course the role of judges is to interpret the intent of the legislature where that intention is unclear. God forbid the twisted compromises made by our legislative bodies result in unclear laws. For those who say that judges shouldn't legislate from the bench, what exactly is a judges role? I don't need any more potted plants. Perhaps "legislate from the bench" means "to make decisions that I disagree with." Maybe we need to start teaching social studies in schools again.

The Recess Supervisor said...

I lean Republican, and I hate the word elitist. I prefer to think I just believe in meritocracy. But if some confuse that with elitism, so be it. People shouldn't assume that it's a liberal thing. There are plenty of people on the right who are tired of government for the people, by the idiots.

I just want smart people elected. I don't so much care if they're liberal or conservative. I just want our legislators and leaders to be smarter and more articulate than the slobbering masses, and less *like* the slobbering masses.

Here's a tip. For 80% of you reading this, voting for someone like you is a bad thing for this country.

illusory tenant said...

80% of you reading this ...

Hey, that's like my entire family.

Rick Esenberg said...

That's funny because I almost mentioned Arlen Spector with his inane notion of "super duper precedents" instead of Kennedy. The guy did do his nation a great service by pointing out that while a bullet passes through two bodies, they are likely to be moving relative to each other but, like Herb Kohl for saving the Bucks, he has been more than repaid.

I said exactly what was wrong with Frank. He assumes that people who care deeply about certain things are deluded, but in the name of being their champion. No thanks.

illusory tenant said...

Arlen Specter with his inane notion of "super duper precedents" ...

Haha. With the charts and the graphs. I think he's lost his touch to a certain extent, and has joined with some of his colleagues in the political grandstanding that has lately marred some of the hearings.

In case you missed it, check out SNL's TV Funhouse take on the C.J. Roberts hearings, it still cracks me up after 100 viewings:

"I hesitate to opine ..."

Terrence Berres said...

Anonymous 10:26 PM, April 14, 2008 said "I'm not a judge (or even a lawyer) but what exactly does "legislate from the bench" mean."

Here's some possibly relevant hindsight from the Florida Supreme Court, December 22, 2000. "...upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal application and to secure the fundamental right to vote throughout the State of Florida should be left to the body we believe best equipped to study and address it, the Legislature." Gore v. Harris, 773 So.2d 524, 526 (Fla., 2000)

illusory tenant said...

Counsellor Berres, was that before or after a federal court directed a State court as to how to conduct its business on a close question of federal/State judicial power?

Perhaps an interesting subject for a Federalist Society seminar!

Terrence Berres said...

"a federal court directed a State court as to how to conduct its business on a close question of federal/State judicial power"

I recall this was a federal election, and that forgetting this got the state court a unanimous per curiam vacating on December 4, 2000.

"Perhaps an interesting subject for a Federalist Society seminar!"

Perhaps you can express this interest in the programming committee after our April 22nd event. If so, I can take your place helping Mr. Plaisted carry out leftover brownies.