January 30, 2009

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.


Other Side said...

Unfortunately, the audience for those paying attention is dwarfed by the audience for our inglorious press -- and squawk radio.

Anonymous said...

you will soon see the breakdown on the percentage statement.
he is correct.

illusory tenant said...

Along with a complete and well supported explanation as to how and why each decision is incorrect, I'm sure.

Just like Koschnick said, close questions upon which reasonable minds can disagree, isn't that right?

Brett said...

Everyone knows that the supreme court's mandates have nothing to do with reasoning of the opinion (that which defines a jurist). If "activism" includes result oriented decision making, self-proclaimed non-activist-Koschnick ought to think more carefully about his strategery.

Scot1and said...

Good point Brett,

In the debate we saw, Al Borland, oops I mean Koschnick explain his errors by attempting to justify the result. With the traffic ticked case, he attempted to justify the error by pointing to the driver's conduct. The problem is the driver's conduct has nothing to do with whether the state's failure to subpoena a witness is excusable neglect.

To me, it just demonstrates that Koschnick is a results oriented judge. That's fine in the circuit court level, it gets disputes resolved. And Koschnick is proud to note that Jefferson county increased the speed of case disposition. But at the appellate level, you must be a process oriented judge. The process of how a result is reached is much more important than the result.

Anonymous said...

Because he's a "conservative" and because he won't "legislate from the bench."

So he's more qualified because he won't do something that quite literally impossible? Check.

When these faux conservatives come up with even one example of a court deciding cases via bicameralism and presentment, I'll gladly listen to their complaints about legislating from the bench. Until then, they just need to shut the fuck up.