January 31, 2009

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

La manta ¿Qué chingados?

This commercial is shown in Spanish on Milwaukee buses:

Help Grandpa enjoy the O'Reilly Factor (YouTube)

Fumbling facts for Koschnick

By the press, that is. — Cory Liebmann

fwiw, I could not agree more.

Those bloody bloody shoes

Xoff scored this earlier, but:

Detail in Koschnick's 'bloody shirt' campaign issue emerges

So Judge Randy Koschnick himself had ruled to exclude even more damning evidence at trial: two pairs of blood-spattered shoes. His ruling was reversed by the Wisconsin Supreme Court in Knapp I.

The best part is the Koschnick campaign person's response:
Asked if Koschnick was omitting a detail of the murder case to help his campaign, Seamus Flaherty said, "We’re telling the whole story to the extent that it is relevant in this election."
I can see this guy is going to be a real barrel of laughs.

By the way, Journal-Sentinel reporter Steven Walters writes:
The issue was twice considered by the state Supreme Court, and once by the U.S. Supreme Court, because a police officer did give Knapp a Miranda warning before asking him what clothes he had been wearing. That led to the discovery of the blood sweat shirt.
The issue was twice considered by the state Supreme Court, and once by the U.S. Supreme Court, because a police officer deliberately and intentionally did not give Knapp a Miranda warning before asking him what clothes he had been wearing. That led to the discovery of the bloody sweat shirt.

More precisely, the relevant U.S. Supreme Court decisions did not directly address the Wisconsin case insofar as it involved the deliberate and intentional withholding of the Miranda warning.

That fact is crucial to a meaningful understanding of the Wisconsin Supreme Court's disposition in Knapp II. But it's something you're also unlikely to hear from the Koschnick campaign.

I guess because it's not "relevant in this election." The hell it isn't.

When you're grandstanding about "tying the hands of law enforcement," best be aware of what law enforcement was up to.

See also: One Wisconsin Now's press release (.pdf).

January 30, 2009

Pro-Life House GOP votes 188-0

Approves $1.4 billion stimulus package to octuplet mom

Non-golfer wins RNC Open

Dawson's final round a five-over-par 77

Math is hard

Judge Randy Koschnick, as promised by an anonymous commenter at this location, has released his "calculations" to the Wheeler Report.

For example Michael Gableman, according to Koschnick campaign person Seamus Flaherty, has participated in two decisions whose docket number contains the suffix "-CR" as of January 30, 2009.

Except the correct number is three. Makes you wonder about any of the larger figures on Flaherty's document. It's occasionally observed that lawyers' facility with numbers is tenuous, but this is ridiculous.

(The Chief Justice also "voted against the criminal" in all three.)

Randy Koschnick's double standards

Jefferson County Circuit Court Judge Randy R. Koschnick has found himself a tough row to hoe and he's scratching a desperately erratic course right out of the gate.

Koschnick appeared at the first of several planned candidate forums yesterday in Green Bay with the incumbent Chief Justice of the Wisconsin Supreme Court, Shirley S. Abrahamson.

The county (pop. 81,000) circuit judge claims he's "more qualified" than the State (pop. 5.4 million) Chief Justice, who has been on the Supreme Court for 32 years. I can see the "more qualified" schtick maybe being effective between two untried candidates for an open seat. But in this instance, it's bordering on the fatuous.

So why, exactly, is Koschnick more qualified? Because he's a "conservative" and because he won't "legislate from the bench." Groovy. But that's about the full gist of his positive message.

His negative message, which he's working at far more emphatically, is that the Chief Justice is an "activist," whatever that's supposed to mean beyond its obvious utility as a Republican Party code word in a non-partisan election (at least, State law tells us it's non-partisan).

Presumably, Koschnick believes that what worked for Michael Gableman will work for him (after all, Koschnick's campaign website URL is registered in the name of Darrin Schmitz, the Republican functionary who masterminded Gableman's scurrilous antics).

This morning's press reports — almost needless to say — completely ignore a number of the more salient messages presented by yesterday's forum. Here are a few.

At one point during the forum, by way of claiming that the Chief Justice does otherwise, Koschnick asserted that it was an improper role for judges to be shaping public policy. But afterwards, he told a reporter:
When the voters compare our philosophies, they'll prefer my judicially conservative philosophy, because it enhances public safety, and because it creates a more stable business environment, which is good for our economy.
What's that "philosophy" supposed to be shaping, then, a ham sandwich? And that wasn't the only double standard he employed.

As noted here previously, Koschnick, following on Gableman's ethically questionable heels, has been toiling away at cherry picking a few of Chief Justice Abrahamson's decisions (whether she authored them or not) and trying to use them to portray her as some kind of wild, outlying radical.

Criticizing Abrahamson for her position in State v. Dubose, Koschnick claimed that that decision was based not in the law but rather on "psychological manuals." This was supposedly offered as an example of the Chief Justice's "activism."

Yet just a few scant moments later, Koschnick defended the constitutionality of Wisconsin's violent sex offender commitment statute, Chapter 980.

Chapter 980 is a set of civil procedures that can be reduced essentially to a behavior-predictive "battle of the experts" in court whose credentials and testimony are almost entirely grounded on — you guessed it — "psychological manuals."

Koschnick also discovered that cherry picking a half-dozen decisions from among the 3,500 the Chief Justice has participated in can be a game for two to play, and he was visibly taken aback at the mention of several of his, where Koschnick's own trial court decisions were reversed on appeal.

In one of them, a unanimous court of appeals (including Patience Roggensack, herself now a "conservative" member of the Supreme Court) determined that Koschnick had "exceeded [his] authority" and that Koschnick's ruling was "directly contradictory" to the plain language of the Wisconsin administrative code (and not only the plain language, but the explicit definition of words and phrases contained in the code).

After several discomforting moments of complete speechlessness, Koschnick brushed his reversals aside by alleging that they involved "close questions" upon which "reasonable people can disagree."

Yet the decisions he is attempting to hold against the Chief Justice are exactly that. This is a textbook double standard.

Abrahamson quipped that she'd been affirmed by the United States Supreme Court on several occasions, but she'd "never had an appeals court tell me I was in violation of a statute."

A further enlightening moment occurred when Abrahamson produced a piece of Koschnick campaign literature claiming that Wisconsin is alone among the States in following the reasoning in State v. Knapp, the so-called "bloody shirt shoes case," another favored hobbyhorse left over from the Gableman campaign.

Asking Koschnick whether he stood by this claim, Abrahamson went on to name several other States whose reasoning is in accord with Wisconsin's, including one mentioned in one of the U.S. Supreme Court cases from whence Knapp itself is derived.

This produced another bout of speechlessness on Koschnick's part. He obviously hadn't performed the 50-State survey necessary to make such a sweeping claim about the Supreme Court's decision in Knapp.

That should have been an embarrassing moment, as 50-State surveys (researching the position of State courts on a particular legal question throughout the Union) are a feature of your typical first-year law school course (and drone labor for summer associates).

Additionally, Koschnick mischaracterized Dubose, which he suggested banned all of a certain police identification procedure. That's false. What it may bar is the admission of evidence at trial obtained from that police procedure, and even then only that evidence obtained where the procedure is unconstitutionally suggestive.

Koschnick, it seems to me, would rather listeners not pay too close attention to what he is saying, but he's certainly not going to get anything past a 32-year veteran of the Supreme Court.

He'd prefer to ramble on about ill-defined (if defined at all) notions of "activism," so that's what he does, to the point of excessive tedium.

Which is not surprising, because he needs to appeal to the least-informed of voters: those who react best to empty buzzwords.

And this is how we populate the highest court in the State?

After the forum, Shirley Abrahamson told a reporter, "There's an attempt here to make a promise by my opponent, and I don't think that's right. I think if you want to make promises and impose an ideology, you ought to run for the legislature."

Exactly correct. By cherry picking a few of Chief Justice Abrahamson's hundreds of decisions, Randy Koschnick is clearly stating an implied promise to rule otherwise on similar cases and issues. But from the looks of things thus far, he doesn't have much else on offer.

So desperate is Koschnick already that he even pulled the goofiest canard from the Gableman playbook, and claimed that the Chief Justice "voted with [criminal] defendants 60% of the time."

It's unclear how much more we're to hear about this absurd and long-since debunked tactic, but a number of local news outlets, including the Milwaukee Journal-Sentinel, picked up on it and used it as their headlines in their reporting on yesterday's event.

Journal-Sentinel editorial board member Patrick McIlheran's own deployment of this indefensible ruse was a thoroughgoing disgrace.

If the Wisconsin press continues in that vein, it won't exactly be covering itself in glory. Once again. Fortunately some of us will be paying closer — and far more accurate — attention.

January 29, 2009

Koschnick pulls a Gableman

Here we go. It was bound to happen.

At this afternoon's campaign forum featuring Wisconsin Supreme Court Chief Justice Shirley Abrahamson and Jefferson County Circuit Court Judge Randy Koschnick, the latter accused the Chief Justice of "voting with [criminal] defendants 60% of the time."

Let's just say that Koschnick's latest shenanigans are not going to endear him to a whole lot of people (present company adamantly included) and they're more evidence that he's clearly not planning on running the sort of "clean campaign" he'd "pledged" to run.

This blog will have more on today's forum, at which the Chief dusted Koschnick off pretty effectively, among other highlights forcing him to admit to a number of blindingly obvious double standards.

But in the meantime, here's some sense of déjà vu all over again featuring the comic numerology of the Hon. Michael Gableman:
Gableman said the 60% figure came from a study by an outside group.

"I don't know if the number is 30%, 60%, 80%, or 90%," he said, before adding, "I'm unaware of any study that contradicts those numbers."
Gableman v. Numbers

And here's hoping against hope that the Milwaukee Journal-Sentinel is not going to persist in reporting this garbled nonsense as uncritically as it did during last year's election campaign.

Widespread voter fraud uncovered in Ohio

Devastating AP report can now reveal:
A Connecticut man in town visiting his sister cast a ballot on Oct. 4 but later told officials what he had done.
Didn't we also hear quite a lot about this last fall?

Who cares.

AM radio yeller Belling refuses to "shill" for Randy Koschnick.

h/t Jim Bouman.

Gableman drives a judicial Fiat

Recently minted Wisconsin Supreme Court Justice Michael Gableman this morning throws down his inaugural written opinion for the court, a partly concurring, partly dissenting contribution to a decision called Plastics Engineering Co. v. Liberty Mutual* ("Plenco").

Plenco is not a case that came up through the Wisconsin State courts. Rather, it's a federal asbestos injury/insurance lawsuit and the reason the Wisconsin Supreme Court was asked to address it is because the United States Court of Appeals for the Seventh Circuit in Chicago requested clarification of certain generally applicable questions of Wisconsin law that might have a bearing on the federal courts' eventual disposition in Plenco.

In other words, the federal Seventh Circuit is not going to unilaterally forge ahead with its own potentially unique interpretations of Wisconsin law that is currently unclear which may affect not only the specific Plenco controversy but also future Wisconsin litigation just in case the Wisconsin courts would have decided those questions of State (as opposed to federal) law differently.

Therefore, the Seventh Circuit "certified" to the Wisconsin Supreme Court three broad questions in insurance law.

As Chief Justice Shirley Abrahamson correctly emphasizes as a threshold matter in her own concurring opinion, Wisconsin has a separate statute (§ 821.01) dealing with the Supreme Court's function under such circumstances.

That is, it is not to decide the merits of the particular case (i.e., find in favor of one or the other parties), but rather clarify Wisconsin law generally so as the federal court itself might decide the merits of the dispute before it, consistent with those broader clarifications.

A danger in determining the particular merits of Plenco, the Chief Justice suggests, is that if and when one of the parties ultimately loses in federal court, it can come back into a Wisconsin jurisdiction with a readymade Supreme Court decision in hand, a circumstance that is inconsistent with — if not contrary to — § 821.01.

As the C.J. observes:
Because the majority tries so hard to limit its opinion to the language of the insurance policies at issue and the particularized facts of the instant case, I am concerned that the majority opinion has not responded to the certified questions of law but has instead decided the merits of the instant case.
Perhaps eager to demonstrate his repeatedly advertised commitment to the "plain language of the law," Gableman, laboring in solitary dissent, goes even further, for all intents and purposes actually finding in favor of the insurance company, Liberty Mutual (surprise).

Unfortunately, he's apparently disregarded the plain language of
§ 821.01 (he never once mentions it) which is, somewhat ironically, a legislative directive intended to limit the role of the State courts, such limited role being yet another of Gableman's campaign planks.

To be sure, Chief Justice Abrahamson's approach is considerably more in accord with so-called conservative judicial principles (more specifically, "judicial restraint"). On the other hand, should the C.J.'s stated concerns come to fruition back home again in Wisconsin, Justice Gableman's lone dissent will likely be of little avail.

* 2009 WI 13 (.pdf; 55 pgs.) [.html version]

T. Erdelyi is 57

The last surviving (original) Ramone.

We're A Happy Family
Teenage Lobotomy (Live)

January 28, 2009

Saint Rush of Limbaugh

Cherished GOP sage and tutor.

Pretty sad. Party of Lincoln and all that. Bend over, indeed.

And a groveling House Repub actually apologizes to Limbaugh.


Poor Charlie Sykes

He's so sad and disappointed that Wisconsin Manufacturers & Commerce won't be on hand to provide its trademark corrosive influence on this spring's Supreme Court election (or so it claims).

Not to worry, Charlie Sykes will pick up the slack.

See also: Koschnick reversed on traffic citations
And: Get Back to Me in April
And Xoff: Pardon my cynicism

Gableman opinion watch

None yet (do check out the amusing comments. I may not be the sharpest blogger in the drawer, but my commenters are the best).

And chalk up one more opinion each to Justices Crooks and Bradley.

January 27, 2009

Obama addresses America's enemies

Yesterday, it was radical Islamists in the Muslim world and this afternoon, conservative Republicans in the Capitol building.

Murphy can't help thinking

Milwaukee Magazine's Bruce Murphy of "Murphy's Law" today notes that he "can’t help thinking the [baby mama] issue has been misunderstood in several important respects, including ..."

And I can't help laughing out loud that he's seemingly claiming those "several important respects" as his very own. There were simply too many blogs, observes Murphy; he can't possibly mention them all.

But he apparently finds no such difficulty in mentioning the ones who made a complete and utter hash of those "important respects."

To be continued ...

Good to know

My State representative is a "total waste of space" (but yours might be a "mean-spirited little twerp" unable to "keep his pants zipped up around the staff"). Quite the informative magazine article that is!

Predator watch

Speaking of Michael Gableman, Richard A. Brown is still in custody.

As early as November 13, 2007, Gableman described a 2005 decision of the Wisconsin Supreme Court as "resulting in the release of the defendant into Milwaukee County." Today is January 27, 2009.

Richard A. Brown is not even in custody in Milwaukee County.

Michael Gableman is currently under investigation with the Wisconsin Judicial Commission for violating a Supreme Court ethics rule by misleading voters during his non-partisan political campaign.

For one reason or another, the elements of that investigation do not include Gableman's misleading observations about Richard A. Brown.

Gableman's first opinion due this week?

Not including those in per curiam attorney discipline cases, the Wisconsin Supreme Court has issued seven written decisions (comprising nine opinions) since Michael Gableman assumed its far-right chair* at the beginning of August.

Chief Justice Abrahamson has written three, Justices Crooks and Bradley two each, and Justices Roggensack and Ziegler one apiece.

The court has one decision set for release tomorrow and two more scheduled for Thursday. Watch this space. Or this one.

* From the public gallery's perspective, of course.

Sykes: Free to be me and me

I'm told that exurban medium wave radio shouter Charlie Sykes is quite the principled proponent of free speech.

For example, he'll valiantly defend the substitution of a Nazi Swastika for the Star of David on a "parody" bumper sticker against the legitimate concerns of a local ecumenical group.

But when it comes to the Brew City Brawler pointing out Sykes's comical double standards, meh, not so much.

January 26, 2009

'Pat never did correct that blunder'

When does he ever? Entertaining, but for all the wrong reasons. When Patrick McIlheran begins a sentence* with "As Dad29 points out," you know he's achieved yet another credibility meltdown.

* In a paragraph that starts with "James T. Harris says ..."

WARNING: Some comments may contain a salty vernacular.

Bearing false witness still an abomination

In the eyes of a federal district court in Illinois.

Yet a less-than-sweet savor in the nostrils of James Dobson.

Don't tell them you're a creationist!

Candidate for the MPS District 4 school board seat Michael Mathias kibbutzes with the Milwaukee Journal-Sentinel editorial board today.

Do check out MM's smoove campaign website right here.

Sykes's pandering hypocrisy, again

So local medium wave radio squawker Charlie Sykes is now storming his troopers into yet another dither against District I Court of Appeals Judge Joan F. Kessler over a ruling she and her colleagues made in 2007 that was reversed by the State Supreme Court last June.

The case concerned the admissibility at trial of evidence obtained through a surreptitious recording, the purely legal question being whether the recording constituted "oral communication" for the purposes of Wisconsin's Electronic Surveillance Control Law, which embodies a number of principles related to the right to privacy.

What Charlie Sykes doesn't tell you is that the defendant's initial motion to suppress the evidence so obtained was granted by the trial court judge, who subsequently reversed his own self after prosecutors refined their arguments in further motions.

The latter reversal by the trial court judge of his own original disposition was overturned by the District I Court of Appeals. It in turn was reversed by the Supreme Court, all of which might give even the casual observer some remote inkling of the highly technical, contentious nature of the fundamental legal questions at issue.

But I'd wager that Sykes & Co. would likely prefer not to draw any attention to the following illuminating tidbit from Judge Kessler's opinion, which appears toward the end of its fairly exhaustive 32-page analysis:
Consequently, we agree with the trial court's original conclusion* that [the defendant] had an objectively reasonable expectation that his communication with [the victim] would not be intercepted.
I wonder why that is.

Could it be because the trial court judge was Michael B. Brennan, a prominent member of the Federalist Society and who, along with Sykes himself, has been a harsh critic** of "activist liberal judges"?

(The June '08 incarnation of the Wisconsin Supreme Court included both Chief Justice Shirley S. Abrahamson and perennial Sykes target-of-absurdist-fallacies Justice Louis B. Butler, by the way.)

Unfortunately, the underlying facts of this case revolve around the unquestionably reprehensible behavior of a public school bus driver toward a special-needs child. And the bus driver eventually pleaded guilty to felony (i.e., prison-eligible) child abuse, so the admissibility of the contested evidence at trial became a moot question anyway.

Judge Brennan (since returned to private practice) pronounced on the defendant all of six months in the Milwaukee County House of Correction and a few years of probation. A prison sentence was imposed but stayed, pending the defendant's satisfactory performance on extended supervision in the community.

As Charlie Sykes and his fellow travelers among the politically conservative intelligentsia [sic] will eagerly tell you, the particular personal circumstances of the parties should never be an issue, only the "plain language of the law," right? Uh huh. Sure thing.

Except, of course, when those circumstances conveniently lend themselves to fomenting cheap manufactured outrage among one's hysterically emotive fan base — that is, the ones who elect appellate judges without having the slightest clue as to what the job entails.

And why is there no commensurate antidote to Charlie Sykes's 50,000-watt opéra bouffe in this fine city? It certainly deserves one.

* Motion hearing, 09-03-2003, Branch 15.
** Compare Judge Brennan's considerably more thoughtful evaluations with Charlie Sykes & followers' invective-laden hyperventilating.

eta: More from Super Id.

NYT: Now with 75% less wrong

This is William Kristol's last column.

Clarence Thomas slept through it

Behold the Fullscreen Gigapan Inaugural Viewer.

Well, that settles that, then

How would I like it, they ask, were the [public] school's morals brought to my kids by Vishnu? I wouldn’t.
Earlier: Dear David Haynes

January 25, 2009

Shorter Koschnick

Wisconsin Chief Justice Shirley S. Abrahamson authored or joined three thousand four hundred and ninety-seven superb, thoughtful, and unassailably reasoned opinions of the State Supreme Court.

Candidate is troubled by the other three.

January 24, 2009

Plaisted rights

An insightful and valuable and damn nigh definitive contribution from the learned counsel. Money quote (and there are several others):
Wall and the three appeals court judges involved are prime examples of the kind of fine legal and (more importantly) judicial talent that you will find more often than not on the bench in Milwaukee County. Although they reach different conclusions under different analyses, all four are toiling in good faith as they struggle to strike the difficult balance between understanding and accommodating without excusing the often-taboo impact of race and the treatment of the underclass in criminal courts.
A resounding chorus of Amens to that.

The Baby Mama Club

Pope recommunicates holocaust denier

"I believe there were no gas chambers," sez Catholic bishop.

Good news for Mahmoud Ahmadinejad and David Duke, also.

Procedural justice

Still more baby mama perspectives, this time from Marquette University professor of law Michael O'Hear (one of whose scholarly specialities is sentencing law and policy). Very interesting stuff.

Of course, had the court of appeals imported into its decision the social sciences literature that Prof. O'Hear mentions, some observers would have thrown a hairy fit on those grounds alone.

Personally, I don't have a problem with the courts doing that — so long as it's empirically sound — and neither did the framers of the federal sentencing guidelines, as Prof. O'Hear demonstrates.

The body of law should, and does, evolve. I'm amused by those who deride the strawman of "living Constitution proponents." The text of the Constitution may not change, but when it finds application in a changing and (hopefully) maturing society, those results may vary.

Not because the Constitution has changed, but because we have.

Nichols doesn't get it either

The Journal-Sentinel's Mike Nichols on the baby mama kerfuffle:
Judge Wall didn't intend to be offensive, [appeals court judges] Kessler and Curley opined. But, they claim, "a reasonable person" would conclude he "was improperly considering the defendant's race." They focused on a couple sentences out of thousands and suggested Wall didn't mean to be a racist — but is.
That's a pretty outrageous and irresponsible accusation against Judge Kessler and Judge Curley. They most certainly and unequivocally did not suggest that Judge Wall is a racist.

Nor did they claim merely that a reasonable observer might find an improper consideration as a basis for the defendant's sentence.

They found that a reasonable person in the position of the defendant could have. That is a fundamental distinction. I would submit that had they not taken the defendant's own perceptions into consideration, they very likely would have affirmed his sentence.

Nichols, like many others, needs to go back and reread the court of appeals decision more carefully before making such pronouncements.

Interestingly, Nichols himself goes on to imply that another well known judge does harbor racist inclinations:
Our attorney general should appeal this decision to the Supreme Court. Unfortunately, there are some bench warmers there, too — including former Burnett County Circuit Judge Michael Gableman, who not long ago ran a Willie Horton-style ad that really was offensive. Exoneration from the likes of people like Gableman probably won't mean much to Joe Wall.
As offensive and insulting and pandering as Gableman's teevee ad was — and it was, very much so — I strongly disagree that it serves as an indicator of racism on the part of Gableman personally.

Although it was almost undeniably designed to appeal to and exploit racism for votes, what it was was the sleaziest of gutter politicking and for that, no racial component is necessarily required.

January 23, 2009

Otherside of the Game

I saw Erykah Badu at a small club in Toronto in about 1997. Her band was bass, drums, and Fender Rhodes, that's it. Fabulous show.

Anyway, I do believe this is a baby mama number:

Erykah BaduOtherside of the Game

The rich are differently abled

"I wonder if he's going to have toupée some of that money back?" (That's mean — ed.)

Pictured: 1940s Parchment Waste Can in the manner of John-Michel Frank, USD 1405.00

And the baby elephant in the room

Prof. Esenberg enters the baby mama fray. The elephant being, of course, the question of whether the court of appeals was correct in announcing and applying the subjective (that is, one which requires the court to put itself in the defendant's shoes) standard that it did.

Prof. Esenberg, as a self-styled proponent of "judicial restraint," would, I suspect, solve the dilemma described below by affirmatively (activist-ly?) abandoning that particular test.

To the extent that that test was announced as an arguably new rule fashioned from extra-jurisdictional principles, it would take a further ruling of the Wisconsin Supreme Court to overcome its continued application (and maybe its publication is an invitation to do so).

In which case, I might be inclined to argue that the Supreme Court would need to address — and perhaps even subsequently discard — some very fundamental due process guarantees.

I wish the court of appeals had gone into more substantive detail on those questions, just as I wish that the dissent could have been more forceful in condemning what it may have perceived as the fabrication and/or assembly of "new law" rather than simply ignoring it.

I should mention quickly that I had set out only to clarify the court of appeals decision, not so much to defend it, but the more I think about it the more defensible it becomes (especially now that I've got the entire Milwaukee Journal-Sentinel editorial board on my side).*

In any event, it's a fascinating, worthwhile discussion and one that raises a wide range of both legal and local public policy concerns (which is not to suggest that those are always separable, by the way).

* McIlheran too? That's downright frightening.

eta: Also posted at Prof. Esenberg's own blog, complete with discussion well underway (and featuring several of the most thoughtful blog commenters in the business).**

** Scratch that, as I just left a comment, thereby lowering the collective IQ by a good 20 points.

A baby mama postscript

The erudite David Ziemer in the Wisconsin Law Journal offers:
A divided panel of the Wisconsin Court of Appeals recently vacated a sentence based on comments by the white sentencing judge that the court found could be construed as exhibiting racial bias against the black defendant.

I will admit that the statements could be construed in this way.
And according to the standard of review applied by the court of appeals, that's about as much as it takes.

Also this morning, the JSOnline links to something called the Badger Blogger, which it describes as "opposite" to this one. I'm not sure what that's supposed to mean, but it's certainly opposite in the sense of failing to address the central question(s) presented in the appeal.

What you will find there is vitriol and personal attacks against the two-judge majority functionally identical to that available at the online dwellings of suburban AM radio shouter Charlie Sykes.

A letter from a Mequon attorney describes the opinion as "defaming" the sentencing judge, Joseph Wall. With all due respect to counsel, this, too, misses the point, which is the defendant's perceptions.

Mr. Wall is by every account among the cream of the legal profession and absolutely nothing in this opinion diminishes that estimation.

Still more evidence of Mr. Wall's professional and personal integrity can be found in this superb opinion piece from several years ago.

At this Badger Blogger, the dissenting opinion of Judge Kitty Brennan is praised — without argument or even explanation — yet the dissent completely ignores the standard of review applied by the majority.

That is, the dissent claims that the defendant failed to meet his burden of proof without even mentioning the standard against which the majority measured that burden. That's very strange.

Judge Brennan goes to some lengths to describe why she fails to discern a racial subtext, but not a joule of energy is expended on the question of whether the African-American defendant — the one with the constitutional right to due process — may reasonably have done so, which was the threshold question presented to the court.

The dissent puts forth a number of other odd observations, including the fact that the sentencing court never referred to the male defendant as a "baby mama." It also makes the puzzling claim that the judge's "you guys" did not include the defendant. Set theory would appear to indicate otherwise.

The dissent categorically asserts that neither comment provided any basis for the sentence imposed, which raises at least two (rhetorical, in my judgment) questions: 1) How does she know that? and 2) Why, then, did the judge deliver them to the defendant immediately prior to pronouncing the sentence?

The thrust of the dissent is that because Judge Wall satisfied all of the required considerations at sentencing — which the majority also expressly acknowledges — and because the author of the dissent personally discovers no racial subtext to the judge's remarks, then the sentence must stand.

Not once is the possibility of the defendant having reasonably understood things differently even engaged.

In short, it's not the most powerful objection on record, to say the least, although it might not unfairly be said to include a tacit admission that Judge Wall's remarks were less than well advised.

Milwaukeeans (and coddled suburbanites like Charlie Sykes and his unquestioning followers) ignore at their peril the resentment in the black community for the justice system in their county. Whether the resentment is warranted and to what degree are, of course, separate questions. But it's out there; ask any criminal defense attorney.

Among the unstated premises in the State v. Harris opinion, it seems to me, is that the sentencing judge's commentary wasn't creating an impression with the defendant, it was reinforcing one.

One final reiteration: it's the defendant's perceptions of the sentencing pronouncements that are at issue here, not what Judge Wall meant by them. I believe we may confidently treat as axiomatic that his intentions were beyond reproach and, as I said, nothing in the court of appeals' opinion undermines that assumption.

Quite the opposite, in fact. It's supported.

And let's not forget that in Wisconsin, appeals court judges are elected, so in some sense they were put on the bench to do the will of the people. And the will of the people is better served when, on a close and subjective question such as the one presented here, the alleged error is committed on the side of caution, and this outcome was clearly informed by and reflective of that caution.

On that note, it's very important to remember that this was a sentencing, not a conviction, and the demonstrated infirmity of the vacated penalty will take all of 45 minutes to rectify (unless the State appeals and the Supreme Court takes up the case, which is possible).

It's also possible that Harris will end up with the same or even a more severe sentence. On that account, it's a roll of the bones. Presumably the challenged sentence was greater than anticipated, otherwise his attorney would likely have advised him to have taken it and ran.

Finally, David Ziemer raises a compelling point:
When an identical [sentencing hearing] transcript shows reversible error in one case, but an appropriate exercise of discretion in another, depending solely on the race of the defendant, the law is standing on shaky footing.
It's a dilemma, but for what it's worth, I'm pretty much convinced the court of appeals did the prudent thing under the circumstances.

January 22, 2009

Gran Travesty

Oscar, you gotta be kidding. Digitized Brad Pitt but not Clint Eastwood? Gimme a break. Brad Pitt deserved a statue for True Romance ("Floyd"), but he sleepwalked through that Button thing.

I'll root for Penélope Cruz instead.

Baby-mama-drama drama babies

Speaking of Milwaukee's obscure non-MSM pirate radio station 620 WTMJ, one of its other in-house vocalizers, Jeff Wagner, is quite upset with yesterday's court of appeals ruling in State v. Harris.

Inveighs Wagner:
For [Judge Joseph] Wall to have his motives and remarks impugned by Joan Kessler and Pat Curley is like Muhammad Ali having his boxing technique criticized by Doink the Clown.
Evidently Wagner, blinded by the impulse to unseat "Democrat activist" judges, didn't read the opinion too closely, and overlooked the standard of review the appeals courts apply in these cases (the latter is especially strange, as Wagner reproduced it at his own blog).

Or perhaps the former practitioner has forgotten what a disjunctive clause is. The first question presented to the appeals court, which elements are derived from Wisconsin Supreme Court case law, was:
Did the trial court's comments suggest to a reasonable observer or a reasonable person in the position of the defendant that the court was improperly considering Harris's race?
Boldface added. In other words, it doesn't matter what Jeff Wagner thinks, as reasonable an observer as he might believe himself to be.

What controls are the defendant's — an African-American man, in this case — perceptions. And the trouble with Judge Wall's extended colloquy at sentencing is that he was not only referring specifically to the defendant and the defendant's girlfriend in particular, he was typecasting both of them as members of classes of persons:
THE [TRIAL] COURT: Where do you guys find these women, really, seriously. I’d say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club?
(Not every fourth man who presents himself to be sentenced after having admitted guilt — as was the case with this defendant — it should be noted. Just every fourth man haled into court for whatever reason, some of which are relatively flimsy to begin with.)

Furthermore, the appeals court went out of its way to affirmatively exonerate Judge Wall from any intentional impropriety.

Once again, that doesn't matter either. And Wagner argues that Judge (now-Assistant United States Attorney) Wall is extremely bright. Unquestionably. Except that, too, is entirely irrelevant.

Where other "guys" (plural) find "these women" (plural) is of no consequence* to the penalty a particular defendant faces. This defendant reasonably perceived that his penalty was affected by the judge's apparent typecasting, and the court of appeals agreed.

It's hardly such an outrageous opinion as Wagner purports to think. It's the result of smart and effective lawyering, is what it is. But without perpetual outrage, there would be no conservative radio.

* Antecedence, more accurately.

eta: So predictably, Charlie Sykes boards the bandwagon. :yawn:

Local wingers appalled at poor manners

The Brawler was deeply amused that Patrick McIlheran was shocked — shocked! — that a crowd viewing the inauguration at Uihlein Hall booed George W. Bush and Dick Cheney when they appeared on the TV screen.
Milwaukee's crybaby right

There was something on the blog feeds this morning featuring Charlie Sykes blathering petulantly about the "mainstream media." What the hell is he, unregulated broadcasting from a pirate ship?

Johnny CashCry, Cry, Cry

January 21, 2009

Baby mama's in the club

Today's decision of the WI District I Court of Appeals in State v. Harris (.pdf; 22 pgs.) is guaranteed to provoke a lot of discussion.*

Two judges found overtones of racial discrimination — along with sarcastic and demeaning ones — at the defendant's sentencing hearing, while the third (dissenting) discovered enough substance elsewhere in the proceedings to determine that the "baby mama" references were the product of "frustration," relatively harmless, and not enough to constitute abuse of discretion by the sentencing court.

The dissent also marshals Tina Fey in defense of the sentencing judge. Harris's sentence on cocaine-related offenses is vacated, but the appeals court ordered that he be sentenced one more time.

Better safe than sorry, I reckon.

* As predicted, but from a less likely source: the sentencing judge.
And, as of early afternoon, top of the page at JSOnline.com. Heck, I shoulda been a newspaper editor.

Getting them in the right order

Linguist Benjamin Zimmer's take on Chief Justice John Roberts's garbled textualism. The bafflingly popular Ann Althouse, meanwhile, can't even get the mistakes right. C.J. Roberts said, "the Office of President to the United States," which was the weirdest flub of all.

I'm reminded of this:
Alan Semen: Sir Edwin, which has been for you the most demanding of the great Shakespearean tragic heroes that you've played?

Sir Edwin: Well, of course this is always a difficult one, but I think the answer must be Hamlet.

AS: Which you played at Stratford in 1963.

SE: That's right, yes, I found the role a very taxing one. I mean, er, Hamlet has eight thousand two hundred and sixty-two words, you see.

AS: Really.

SE: Oh yes. Othello's a bugger too, mind you — especially the cleaning up afterwards, but he has nine hundred and forty-one words less than Hamlet.

AS: How many words did you have to say as King Lear at the Aldwitch in '52?

SE: Ah, well, I don't want you to get the impression it's just a question of the number of words ... um ... I mean, getting them in the right order is just as important. Old Peter Hall used to say to me, "They're all there Eddie, now we've got to get them in the right order."

AS: Sir Edwin, get stuffed.

SE: I've enjoyed it.
Great Actors.

Student paper disbars WI lawyer

Via the UW-Madison's Badger Herald:
Former attorney John Basting started the group in late 2007 and said it will be examining materials and ads released by the candidates to make sure they comply with judicial code.*
It's Tom Basting, Sr., and I'm reasonably certain he remains a member in good standing of the State Bar of Wisconsin, as he's currently its past president and sits on the executive committee.

Speaking of the State Bar, David Ziemer is displeased with the recently relaxed rules for interlopers (and I can't say I blame him).

* They make him sound like a building inspector.

January 20, 2009

I give you one simple job to do

"... that I will execute the Office of President to the United States faithfully." — The Chief Justice reads the Constitution
Makes you wonder how often that happens, don't it.

Milwaukee North Shore Inaugural Ball

Hesitant as I am to convince anyone to peel off from the venerable Drinking Liberally festivities at the Sugar Maple in Bay View, there's at least one other sublime bacchanalia scheduled in town:

Bradley’s Nightclub4740 W. Bradley Rd.
Doors open at 6:00.
Music, food, and other surprises. Cash bar available.
$17 at the door, proceeds to the Second Harvest food bank.

With your gracious host, Mr. Keith R. Schmitz.

There will be a raucous set at roughly 8-ish p.m. performed by:

Mike Plaisted and The Change (We Can Believe In)

feat. Himself — guitar / vocals
Ron White — drums, percussion
Your humble scribe — bass guitar

"Trust us, we're professionals."

eta: Thank you, Aretha, for blowing Rick Warren off the stage.

Some surprising apathy

According to a poll at the Milwaukee Journal-Sentinel's online home, 54% of respondents plan to "ignore" today's presidential inauguration.

Wow. I understand internets polls are by definition pretty unscientific but still, it's the result of more than 6,500 replies (at the moment).

I don't know what that says about the JSOnline's readership, or how many of those 3,500 people can't stand Barack Obama or can't stand politics or the presidency in general — or what — but it's remarkable.

January 19, 2009

One benefit of the parliamentary tradition

If this was the United Kingdom or Canada, this dude would have resigned the instant that sick-making chat transcript hit the internets. I mean, come on; they have to ask him to stand aside?

Update 01/20.
Update 01/21.

One lucky, one not so much

A woman is being held after she allegedly pulled a gun from a dresser and pointed it at a Milwaukee police officer.
But see:
A Milwaukee police officer shot and killed a man after he began fighting with the officer, police say.
Resisting law enforcement is never the wisest course of action.

Quote of the day

Violinist Jeanyi Kim carried the theme with all the dignity of Margaret Dumont in a Marx Brothers film ...
Tom Strini reviews a Beethoven quartet.

Guy's got a lot of nerve

From the AP's schedule of events for tomorrow's inauguration:
— Invocation by the Rev. Rick Warren.
reverend, adj 1 : worthy of reverence : REVERED
reverence, n 1 : the state of being revered
revere, v tr 1 : hold in deep and usu. affectionate or religious respect; venerate

Yeah I don't think so.

January 18, 2009

Down to his last $3 billion

Australian dollars, so maybe that is depressing.
The yacht is sold with a complimentary Aston Martin.
h/t The Chief.

Milwaukee denied one hour of Bush

Because it will be noon here at eleven o'clock.
(Thirty minutes later in Newfoundland.)

Apologies for the previous error. I was distracted by the worst roughing the kicker penalty I have ever seen in my entire life.

Koschnick lost without Abrahamson

Jefferson County trial court judge and self-described "strict constructionist" Randy R. Koschnick has added to his case file,* with which he hopes to depose incumbent Wisconsin Supreme Court Chief Justice Shirley Abrahamson on April 7.

This time around he's going after State v. Post, a 1995 decision of the court which concerns Wisconsin's statutory Chapter 980. As the current State attorney general puts it, Chapter 980 "relates to the control, care, and treatment of sexually violent persons."

However, Chapter 980 is not part of the State's criminal statutes, but rather describes a set of civil procedures which purport to predict the future behaviors of individuals based on their past ones. That is, Chapter 980 applies to offenders who already have been convicted, sentenced, and served those sentences in their entirety.

In State v. Post, Justice Abrahamson was the sole dissenting voice, challenging on several constitutional grounds the wisdom and relative effectiveness of Chapter 980 compared with other available courses of action aimed at accomplishing the same preventative goals.

Needless to say, State v. Post is an ideal hobbyhorse for the advertised "conservative" candidate, because it features sex offenders, who are (often deservedly) social pariahs and guaranteed to whip the usual suspects into an emotive frenzy.

But let's step back from the incendiary political rhetoric for a moment.

Personally, I find it an odd campaign promise — and that's what it is, in effect, a promise — to side with a unanimous court on a particular question of law. While some might argue that a consistently unanimous court strengthens the rule of law and provides more uniform guidance throughout its jurisdiction, there is also much to be said for thoughtful and well argued dissenting opinions.

A court with a variety of competing viewpoints is a more intellectually rigorous court. Not only are the people exposed to a broader vista of the court's deliberative process, but dissenters force the majority to engage a wider range of considered perspectives more fully by addressing them head-on and perhaps even convincingly dispensing with them.

In other words, they enhance and potentially buttress the majority's reasoning (much like a skilled defense attorney often makes for a more thorough and convincing prosecution).

Also, we have seen from history that many dissenting views eventually become otherwise. Just ask Justice John Marshall Harlan. And certainly apparent social conservatives like Judge Koschnick and his supporters would like to see the federal courts' abortion dissents become the law of the land.

The foregoing notions transcend partisan or ideological considerations because, as far as I'm concerned, they apply equally to Chief Justice Abrahamson as to Associate Justice Clarence Thomas, who often stands in lone dissent (or concurrences that are nearly dissents) yet even his occasionally radical opinions are generally a welcomed addition to the controversy.

The desire to throw a judge off a court simply for not marching in automatic lockstep with her colleagues is, frankly, insulting to one's intelligence. Then again, few politicians realize much success by appealing to the critical faculties of their prospective constituencies (yet another reason why giving over the make-up of the Supreme Court completely to the electoral mob is not the greatest idea).

So-called conservatives already have a majority of dependable votes in Justices Roggensack, Prosser, Ziegler, and Gableman. Chief Justice Abrahamson's Chapter 980 opinion is but one reason to retain her presence on the court, not remove her from it.

The business outfit Wisconsin Manufacturers & Commerce perpetrated an even more disingenuous absurdity last election season when it made much of criticizing as a liberal outrage Justice Louis Butler's lone dissent in State v. Jensen, the reasoning underlying which was explicitly confirmed in June by the five most conservative members of the U.S. Supreme Court, led by Justice Antonin Scalia.

Yet, nary a syllable has issued from WMC or its fellow partisan hack-travelers expressing similar horror at the latter decision, naturally. Demeaning Scalia would undermine their entire project.

Incidentally, Justice Butler's dissent was once again vindicated by SCOTUS on Jan. 12, when it vacated a decision of the Minnesota Supreme Court (State v. Her) on similar questions pursuant to the Sixth Amendment's Confrontation Clause. More on that later.

* To be sure, it's not his case file, it's Justice Abrahamson's. We've yet to see any compelling reasons why one should vote for Koschnick as opposed to against the Chief Justice other than 'Because he's a conservative Republican.'

That Judge Koschnick claims to be a "strict constructionist" is neither a useful nor even meaningful description of his adjudicative methods; it is nothing more than a transparently coded promise of particular results, and promising particular results is not appropriate judicial conduct.

January 16, 2009

Dear David Haynes

Thanks for the link. You wrote:
The Tenant takes our own Patrick McIlheran to task, calling him a "tinpot philosopher" for wondering just where God fits into all this.
Please let's not forget that my reaction was inspired by comparing Willie Hines, Jr.'s thoughtful curricular proposal for a "scholarly discussion of ethics" with McIlheran's clear suggestion that morality proceeds from the teachings of Christ (the "Him" of whom he spoke).

That, coupled especially with McIlheran's comically nonsensical gloss on the First Amendment's Establishment of Religion Clause and its application to public schools.

McIlheran wasn't simply "wondering just where God fits into all this." If that was the case, then his tinpot credentials would have remained for the time being confined to his habitually fallacious anecdotal outrage, the impetus for much of his daily scribbling.

But by opining that Mr. Hines was only "on to something," he's saying that Hines hasn't gone far enough.

Now, only a fool would deny that even a scholarly discussion of ethics — i.e., that branch of philosophy — doesn't touch on some questions of divine attachment. See, e.g., Plato's Euthyphro (or, for that matter, the link to the Hume/Kant dialogues provided earlier).

The trouble resides with McIlheran's embedded assumptions. Witness the following observation from fellow traveler Dad29 located at Prof. Esenberg's blog:
Well, it is certainly possible to found social morality on natural law without mentioning that natural law is a subset of Divine law, although it is philosophically impossible to specifically exclude Divine law, if pressed ...
Hello? The objective existence of "Divine law" (and, obviously, its equally Divine Revisor of Statutes) is simply assumed? I think not, or else one of these days, Lord knows somebody needs to prove it.

Never mind the countless human interpretations of this so-called "Divine law," even if one accepts that there is such a thing.

Whose is to take precedence, McIlheran's own personal Judeo-Christian version? Even within that widely disparate set of traditions, there are so many competitive doctrines, all declaiming their respective infallibilities, that any attempt at scholarly discussion under those circumstances is dead in the water from the get-go.

It's a chump's errand to even begin embarking on that path in the context of government schools, regardless of one's view of the correctness of the Supreme Court's Establishment Clause jurisprudence (which is primarily Prof. Esenberg's concern, although he seems to believe that the state's neutrality toward religion itself necessarily impinges on the moral deliberations of the religious).

In any event, casually bland insistences that "Divine law" somehow underpins and controls the arrangement of human society do not for a truly useful discussion of ethics make, and they certainly do not coincide with the culturally egalitarian mission of the public schools.

Yes, we all understand that some people believe this, that, or the other thing, and there's no crime in acknowledging any of it. Nor should they be made into pariahs for so subscribing (or not).

But for better or ill, the state doesn't get to push any particular sectarian belief at the behest of those particular believers.

The point being that there is common (even universal) ground on ethical matters to be discovered without introducing allegedly god(s)-given law (and god[s]-meted punishment) into the equation.

Mr. Hines, for one, gets it. McIlheran, it seems, does not. I applaud, however, the woolly hat, as it better facilitates the electrical conductivity of the neurons, notwithstanding its aesthetic features.

(P.S. It's illusory, not illustory, which looks to be somebody's trade name. Don't get me sued; the last thing I want to do is hire a lawyer.)

Earlier: Clutch said ...

January 15, 2009

Labels not working for Pastor Ted

Via Sam Sarver:
Coming from someone who hadn't spent the better part of his life condemning those who fit into "other boxes," I would think of this as actually enlightened. But given that the guy saying this now kept spewing homophobia right up until the moment he got outed by a male prostitute, it goes from being enlightened to a hilarious attempt at self-justification.
Good point. It's evident that a wide range of sexuality exists on a continuum. As does gender, for that matter. Such is nature, which is often inconvenient even for those who are just as much a part of it.

Earlier: Haggard gayhab seed finds no purchase

New Milwaukee blog

Just spotted this:

Walker's Point

I wonder if its proprietor's name is Walker (although, given the blog's content thus far, it likely isn't Scott Walker).

Dateline Racine: To catch a mayor

Troubling enough is a 51-year-old man pursuing a 14-year-old girl* but the sheer, brazen stupidity of the method is astonishing.

This JSOnline.com report contains a link to the criminal complaint against Racine, WI mayor Gary Becker, to which is attached a copy of the Yahoo! instant message transcript (Be warned: it's vomitous).

I'm no psychologist, but it seems to me that the degree of raw pathology required to engage in this sort of alleged behavior has to be close to equivalent in severity to the borderline pedophilia.

Similarly, the subject needs equal parts punishment and help.

* Or even a police officer masquerading as one.

People of the Midwest!

My sources in North Battleford, Sask. advise that a pocket of cool air will descend on your region this morning. Milwaukeeans venturing out of doors are advised to break out the long-sleeved t-shirts.

I'm reminded of a winter spent in Kapuskasing, Ont., site of the General Motors cold weather testing facility, when temperatures remained at -45C (or -45F, same thing) for eight weeks straight.

Let me tell you, we were grateful for our cardigans and long pants.

January 14, 2009

Clutch said ...

The following, in reply to this, which is said to be a critique of this:
There is quite simply no reason on offer to think that moral education requires religious reference.

The allegation that such shared moral vision as exists in the USA is actually a consequence of some Abrahamic religious convictions is irrelevant to the issue at hand. If this is historically accurate, to be sure, then nothing obviously precludes teaching that historical datum in history class; its likely controversial status has everything to do with its dubious truth-value (and, in practice, the motives for introducing it; [Prof. Esenberg] will know more about the Lemon Test than I) rather than any prima facie tension with disestablishment principles.

What's relevant to the question at hand, though, is whether inculcating religion is key to teaching kids how to be moral, by common standards. On this score, McIlheran's truly tinpot ramblings about not mentioning God and talking about God are carefully ambiguous between a fairly benign complete non-sequitur and a proposal at once substantive, groundless, and highly extremist.

The benign but goofy idea is that schools should merely "mention" or "talk about" god(s) without trying to inculcate belief in them, with the extraordinarily strange hope that this will somehow engender moral conduct. In its purest form, this would be the idea that one could explicitly encourage atheism from students, yet still engender greater moral behavior just by alluding to deities nevertheless. (Ironically, there's an interpretation of this that many atheists might accept: that talking about religion and its effects is a good way of learning morality — via negativa.)
(Touché — ed.)
On the other hand, the substantive idea, and the one that most advocates of morals-by-god clearly have in mind, is that teaching people to accept specifically religious precepts is what helps make them moral. (Otherwise, of course, we could just abstract away the god stuff and teach rules like PM's various Commandments as rules for a society — clearly not what all this handwringing is meant to support).

But it sounds so much more reasonable to moan about not being permitted to "mention God," doesn't it, than to come out and say "Public schools should teach people to be religious, in order to make them moral." This rather would seem to be inconsistent with both the Constitution and, um... reality.
eta: Continued ...

Clutch is a frequent and consistently edifying commenter at this here blog and elsewhere.

Bono's big band boner

arr. Don Costa, not Nelson Riddle.
Catching that mistake would have required the editor to finish reading the column — which, given the material, is a lot to ask of anyone.

January 13, 2009

Gableman loses dismissal bid

Thank goodness Milwaukee Journal-Sentinel reporter Patrick Marley is still paying attention to this story (that is, if you can find it submerged within the barely navigable bowels of JSOnline.com):
A three-judge panel considering an ethics complaint against State Supreme Court Justice Michael Gableman today dismissed a request by Gableman that the state Judicial Commission be barred from continuing its case.
Judicial panel denies latest Gableman manoeuvre

[Style point: Capitalize State when referring to one of the 50.]

First, issue a full disclosure

Re: Issue an injunction

By all means, editorialize against the City of Milwaukee's proposed sick leave ordinance. And by all means, defend the reasoning of the Metropolitan Milwaukee Association of Commerce's lawsuit against the city seeking to prevent the ordinance's implementation.

And by all means, publicly urge the presiding circuit court judge to rule in MMAC's favor at the latter's motion hearing on Feb. 6.*

But do disclose that Steven J. Smith, the chairman and CEO of the Journal-Sentinel's parent corporation, is an officer of MMAC and as such was among those who authorized the lawsuit in November.

This information may be useful to a reader.

* Not Jan. 29, as the J-S editorial board tells us. Also, does the editorial board actually believe it can influence a judge's disposition on the motion? Talk about delusions of grantor.

January 12, 2009

Patrick McIlheran, tinpot philosopher

Common Council President Willie Hines, Jr. contributed a thoughtful piece to the Milwaukee Journal-Sentinel on the weekend.

It concludes:
Far too many of our children are maturing into adulthood without even engaging in a scholarly discussion of ethics. They are losing out — and so are the rest of us. When we ignore what is moral, we are not being amoral. We are being immoral.
And along comes "right-wing guy" Patrick McIlheran to debase it:
Frankly, I think it would be hard to teach morals and ethics without some reference to God, however understood. That’s why I send my kids to a school that’s free to mention Him.
Well, bully for McIlheran.

It's anyone's guess why it should be difficult to discuss ethics and morality without invoking God. Many of us do it all the time. McIlheran fails to explain why that is, but he does claim to understand the reason why we mustn't:
[Eighty thousand Milwaukee public school students], because of a certain narrow-minded secularity in American political culture, can’t mention God.
McIlheran goes on to bemoan the lack of "Judeo-Christian" curricula in government schools which, last I checked, are available to children (and adults) of any and all ethnic and cultural persuasions.

That public school students "can't mention God" is both complete nonsense and absurdist "right-wing guy" paranoia, obviously.

And the only certain narrow-mindedness in evidence is Patrick McIlheran's woeful inability — at contraposition to Alderman Hines's sensible pragmatism — to conjure an ethic free from alleged supernatural commands and threats of otherworldly damnation.

(Indeed, one searches the criminal statutes of Wisconsin in vain for even a single "Thou shalt not" or a Misdemeanor Class H for Hell.)

Pirates win some, lose some

Three pirates managed to survive, but lost their share of the $3M ransom when swimming to shore, reports said. The drowned pirate was apparently the only one who managed to hold on to his share of the ransom. — BBC News / Africa
Johnny Thunders — Pirate Love

Brainless in Gaza

I think media should be abolished from, uh, you know, reporting. — Joe the Plumber, embedded journalist
And people actually admire this guy?

Via Hilzoy (video).

January 10, 2009

I beat Howard Bashman

Did Illinois U.S. Senate appointee Roland Burris win or lose in today's ruling of the Supreme Court of Illinois?
Posted at 02:40 PM by Howard Bashman

"Magic Man" simultaneously loses/wins Ill. Sup. Ct. petition
Posted at 02:40 PM by illusory tenant

Meanwhile, Ill. Sec. of State Jesse White signs ... something.

January 9, 2009

We don't need no stinking signature

"Magic Man" simultaneously loses/wins Ill. Sup. Ct. petition
[Roland Burris's] request for issuance of a writ of mandamus is denied [Read: No, you cannot have what it is that you want].
Burris v. White (.pdf; 10 pgs.)
Mr. Burris issued a statement Friday saying, "I am very happy that the Supreme Court ruled supporting our argument that everything surrounding this appointment was legal and complete" [apart from denying our argument, that is].
Power up that granite chisel one more time, this guy is the best.

Next stop, U.S. Senate Rule II (once again). It might be interesting to see how Harry Reid, a leader of the federal legislative branch, reacts to getting ordered around by some piker State's judicial branch.

The Framers' occasional wisdom

Bill Christofferson observes that Wisconsin Supreme Court hopeful Randy R. Koschnick's spending a weekend at a gun show in La Crosse "speaks volumes about the candidate and his candidacy."

I suppose it does, although it may say even more about the baseline idea of electing Supreme Court justices in the first place. Political candidates are naturally going to gravitate toward where their perceived constituency is.

But there's something unseemly about campaigning for this particular office. While the elections are in theory (and by law) "nonpartisan," that notion is by now pretty much pure fiction. The court's latest member, Michael Gableman, was (is?) as partisan as they come.

If anything could have indelibly forged a hardened cynic from a bright-eyed idealist, it was last year's State Supreme Court election.

The present aspirant shows every sign of waging a likeminded political campaign, adorning himself as he has with the ham-handed Republican phraseology "strict constructionist" and so forth.

At his website, Judge Koschnick complains that a 2005 decision of the Wisconsin Supreme Court, State v. Knapp, "expanded the rights of criminal defendants in these types of cases beyond what is required by the United States Supreme Court and the United States Constitution" (without any explanation as to why this is such an objectionable thing, incidentally — it clearly affords an otherwise unobjectionable rhetorical opportunity to scare up the "criminals").

Presumably we won't be hearing similar protestations from the same quarters related to electing Supreme Court justices, who under the federal constitutional regime are appointed through a nomination and approval process which, although far from perfect itself, does seem to guarantee a certain modicum of quality control.

I don't believe that the Framers even considered the popular election of Supreme Court justices. After all, they didn't even trust the mob to populate the Senate. It got to vote for the House yahoos, that's it.

Apparently deference to the Framers of the U.S. Constitution is often entirely a matter of convenience, desirable when it suits a particular political agenda but otherwise, not. As for myself, it isn't that I don't trust the people to their votes, it's that I don't trust the candidates.

Pictured: the patrician, elitist, foreign-born Alexander Hamilton.

Don't go away mad

Just go away.

Howard Kurtz reports on AK Gov. Sarah Palin's most recent public bout of hypocritical self-pity, in which losing an election is the fault of everyone and everything other than herself. Asks Palin:
When did we start accepting as hard news sources bloggers, anonymous bloggers especially?
As early as Oct. 28, I reckon:
Senator Obama said that he regretted, he regretted that the Supreme Court hadn't been more radical and he described the Court's refusal to take up the issues of redistribution of wealth as a tragedy. And he said that he also regretted that the Supreme Court didn't break free from the essential constraints that were placed by the Founding Fathers [sic] there in the Constitution, that's a quote.
That's a lie, is what it is.

January 8, 2009

I remember it too

The trouble with Sanjay Gupta

Paul Krugman is right. It isn't about disliking Michael Moore, it's about Dr. Gupta accusing Moore of lying without any basis.

I recall that segment distinctly and not only was Gupta way out of line, but one of the anchors mentioned that the network would be repeating it later and be sure to watch, "If you can stand it."

It wasn't exactly CNN's finest moment.

Local blogger's fortunes improve

Considerably, it would appear.

Incumbent school board member is nine signatures short
Charlene Hardin has been a board member for 12 years, representing a north side district. Three candidates are challenging her bid for a fourth term: substitute teacher Gloria Gaston; Michael Mathias, a blogger and Medical College of Wisconsin employee; and Annie Woodward, a retired county employee.
Earlier: Another high-tech lynching.

The Colonel ruined everything

I Forgot To Remember To ForgetElvis Presley

Quote of the day

"If the Illinois Supreme Court doesn't tell the Secretary of State to sign the certificate, then the Senate's going to have to find another way to back down." — Bob Shrum

Gableman drops 1st Amendment challenge

Well, this is kind of disappointing news, at least for those aficionados of recreational litigation:
Rather than proceed with a lawsuit against the Wisconsin Judicial Commission, Supreme Court Justice Michael J. Gableman and his attorneys will save their arguments for a three-judge panel which will review allegations of misconduct against the justice.

In a response to the WJC’s request to dismiss the countersuit, attorneys for Gableman agreed to abandon the claim without prejudice on Jan. 5, but maintained his objection that the proceedings violate First Amendment rights.
Gableman reportedly had until Jan. 5 to refile his formal constitutional challenge against a provision of the Wisconsin Supreme Court Rules after it was dismissed last month.

Of course he'll still be maintaining that the provision doesn't apply to him; he's just abandoning his broader argument that it doesn't apply to anyone else either. And, still no hearing scheduled.

Speaking of Gableman (& Co.), here's a pretty sharp editorial in the Green Bay Press-Gazette this morning.

Baked oatmeal goes on sick leave

When a local restaurant closed yesterday, one if its owners told a Journal-Sentinel reporter that "the new Milwaukee ordinance that requires city employers to provide sick days to their workers would have made it difficult for her to continue in business."

As if on cue, the paper's "right-wing guy" Patrick McIlheran seized at this scrumptious tidbit and composed a righteous screed entitled, "Milwaukee gets sick leave, Heinemann's dies of the grippe."

Never mind that nearly 70% of Milwaukee voters approved the ordinance on Nov. 4. Never mind that the ordinance isn't set to take effect for more than a month.

And especially never mind that the Metropolitan Milwaukee Association of Commerce (MMAC) filed a civil action against the city last month alleging that the ordinance violates every fundamental precept of State and federal law except for the Geneva Convention (or maybe there's an amended complaint in the works).

In the meantime MMAC, one of whose officers is McIlheran's corporate boss Steven J. Smith, is seeking an injunction against the ordinance until its complaint is more fully litigated.

There's a hearing on that motion scheduled for Jan. 29* in circuit court and frankly, it stands a pretty good chance of succeeding.

One of MMAC's more compelling arguments is that the skimpy language presented to voters in November in no way described what turned out to be the substance of the ordinance which, MMAC claims, guarantees numerous paid days off not only to victims of sexual abuse and stalking, but also to the stalkers themselves.

But of course let's not let any of that get in the way of Patrick McIlheran's typically fallacious stoking of his conservative fans.

* Since reset for Feb. 6.