January 18, 2009

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.


Anonymous said...

I think you are mistaken in saying that Judge Koschnick promises to side with a unanimous court. That is not the feeling I got from reading his criticism of her dissent. Rather, that her decision was inconsistent with the intent of the legislature (and therefore the people of Wisconsin) AND the US Supreme Court. You criticize Koschnick of promising certain results but this seems to be exactly what Abrahamson is doing here, deciding on the basis of her personal opinion where precedent and the legislature have stated otherwise. The article is located at http://www.koschnickforjustice.com/cases_state_v_post.html

William Tyroler said...

iT has it exactly right. The burden of Koschnick's Post post (sorry; can't resist) is simply that Chief Justice Abrahamson was the lone justice to perceive constitutional infirmity in ch. 980: "Abrahamson is the only Justice to vote that Wisconsin’s Sexually Violent Person Commitment Statute is unconstitutional." K., incidentally, couldn't have accused the Chief of ignoring precedent; at the time, none existed --Hendricks wasn't decided till several years passed.

As is almost invariably the case, Chief Justice Abrahamson's own words offer her best defense. The opening lines of her dissent in Post:

No one denies that the crimes precipitating the passage of chapter 980 are among the most heinous afflicting our society. One can readily understand why the legislature, faced with such wrongs, sought redress through the enactment of chapter 980. But much as I might empathize with the legislature and much as I might share the concerns which led to the passage of chapter 980, it is beyond reasonable doubt that chapter 980 is unconstitutional. I join the many judges from Wisconsin and other jurisdictions who have found that similar statutes create unconstitutional preventive detention based primarily on predictions of dangerousness.

As any fair-minded reader will readily see, she is indeed sensitive to legislative prerogative but (perhaps unlike her detractors) also takes seriously her task to weigh legislative efforts against constitutional imperatives. She thought the latter trumped the former, not as a matter of "her personal opinion" but, rather, as a function of close analysis of extant caselaw.

It ought to be recalled, too, that Hendricks was decided by a razor-thin 1-vote margin. Four Justices agreed with our Chief Justice -- her views, contrary to Koschnick's unstated premise, are well within mainstream thought.

illusory tenant said...

Thanks WT. I was gonna jimmy Hendricks in there somewhere ...

Anonymous said...

"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,"

If I recall correctly, C.J. Abramson did not join him in this dissent. Therefore, are you opposed to Abramson?

illusory tenant said...

Therefore ...

Maybe, if I could somehow figure out how that might follow.

Anonymous said...

"Maybe, if I could somehow figure out how that might follow."

It's all there and I have confidence in your ability to figure it out.

William Tyroler said...

iT explicitly values dissent (including Clarence Thomas'), because he has an appreciation for how differences of opinion sharpen and improve discourse. Judge Koschnick attacks dissent because, well. he wants the dissenter's job. I don't think your snippet, Anon 8:13, means quite what you perceive.

But while we're still (sort of) on the subject ... I hear in Judge Koschnick's attack a faint echo from an earlier campaign, Judge Ralph Adam Fine's against Justice Abrahamson. (20 years ago, if memory serves.) Judge Fine was, and remains, an exceptionally able appellate judge -- a formidable candidate, in a word -- and he leveled a fairly sophisticated attack: by collating the number of times that Justice Abrahamson was the sole dissenter, he sought to show that she was grossly out of step with her (more moderate) colleagues. It was an interesting argument, not without ideas meriting discussion, but now Judge Koschnick wants to use it in dumbed down form. The thrust of his point is that in a particular case, the Chief alone thought that the state has no business keeping predators off the streets; no one else agreed with her, so you can see how extreme she is. not to say how she endangers the public. It's an argument unworthy of a race for our highest court. I can't improve on iT's formulation and won't try, but will instead borrow it: "A court with a variety of competing viewpoints is a more intellectually rigorous court." Pretty much says it all. Judge Koschnick is buidling his campaign around a dumbed-down argument, and the result he seeks is a dumbed-down court.

Anonymous said...

"A court with a variety of competing viewpoints is a more intellectually rigorous court."

I do agree with that view but it is not the only purpose of the high court.

The high court has the responsibility to make sure all of it's courts are fair and impartial. I do not think CJ Abramson has done anything in this area of her responsibility.