March 31, 2009

Blogger 1, Journalist 0

Bill Christofferson, a.k.a. Xoff, once again proves why he's a much better reporter than many of the ones who actually get paid to do it.

(I had a similar reaction to the Journal-Sentinel's Steven Walters's made-up non-story, incidentally. To wit: Why on earth are these poli-sci profs so baffled by Koschnick's optimistic candidate-speak?)

"According to the Koschnick campaign ..."

Via the Capital Times's Election Matters blog:
[Described is] the view of former Justice William Bablitch that she is "well out of the mainstream" in criminal matters. The ad concludes by noting Justice Abrahamson's votes in State v. Post, and In re the Commitment of Tory L. Rachel, in which she voted to strike down Wisconsin's sexual predator commitment statute.
But, naturally, no revelation of Abrahamson's opinion in Rachel:*
I therefore agree with the conclusion reached by Justice Bablitch in his dissent.
And what was Justice Bablitch's "inevitable" conclusion? He voted to strike down Wisconsin's sexual predator commitment statute.

Weirdest endorsement ever.

* This, by the way, is it in its entirety:
Justice Bradley's concurrence is very persuasive. In my opinion it leaves no doubt about the unconstitutionality of the statute. I therefore agree with the conclusion reached by Justice Bablitch in his dissent.
And that, dear reader, is about as droll as it gets.

You're telling me!

Ultimately, Koschnick’s claim would seem to depend on the particular reasoning Abrahamson has used in these 74 cases, and he hasn’t provided much of a critique of that.
Is Shirley Soft on Crime?Bruce Murphy

More on this later. Suffice to say Koschnick's own "adviser" appears to have conceded the bogus nature of his central campaign pillar.

March 30, 2009

Farce v. Facts

Randy Koschnick has a new video. Scot Ross ventures a peek.

Sykes boards the disinformation choo-choo

Threatening to "offer" a daily post from now until April 7, the ridiculous medium wave radio harlequin and "blogger" Charlie Sykes gets straight to fatuous dissembling from his initial bullet point:
[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...
This is nonsense, and as early as 1976, the United States Supreme Court's most "conservative" members, including Chief Justice Burger and Justice Rehnquist, joined a majority opinion which described the probative nature of rational basis scrutiny as "not a toothless one."

Not toothless = with teeth. Nothing to see here. Bite me.

The local radio squawker's prodigious legal acumen is perhaps best demonstrated by his having accused the Wisconsin Supreme Court of "ignoring" the decisions of the U.S. Supreme Court, despite its devoting nearly 50 pages to considering the decisions in question.

Why do these people have to lie? Are they that desperate? And is Randy Koschnick going to repudiate Charlie Sykes, as he's "pledged"?

Enquiring minds want to know.

In the meantime, Sykes should stick with his MPS expertise.

eta: Marquette Law's Prof. Rick Esenberg doesn't care for my post and in not caring for it proceeds to set fire to a couple of straw men.

Clinton asks who made grilled cheese

Patrick McIlheran: Journalist or internet troll?
On teh web: A video compendium of Marian apparitions.

Precision is for other people: Koschnick

At last Friday's final State Supreme Court forum in Madison, Jefferson County Circuit Judge Randy Koschnick said the job for which he claims superior qualifications "requires precision."

Koschnick, who considers it "a badge of honor" that a substantial percentage of his professional peers view him as unqualified for the State's highest court, was referring to legal language and the need to be accurate when characterizing decisions of the courts.

It's a standard he apparently doesn't apply to himself.

Some may recall the case of Richard A. Brown, a convicted sex offender who figured in the political campaign of the currently embattled judge Michael Gableman. In November 2007, Gableman claimed that Brown had been released into Milwaukee County.

Yet Richard A. Brown remains in custody to this day (in Juneau County) and will remain in custody for the foreseeable future.

At Koschnick's political campaign website, there exists a document called "Selected Cases of Chief Justice Shirley Abrahamson," which also purports to describe the 2005 Brown decision.

According to Koschnick, the "result" in State v. Richard A. Brown was: "Sex predator ordered released from custody." Far from being a precise statement of the decision, this one is wildly inaccurate.

In fact the Supreme Court's order was to the circuit court to "notify the Department of Health and Family Services that it should submit to the circuit court ... a plan for Brown's supervised release."

That's it, that's all.

Three things: 1) The Supreme Court may not order the release of this sex offender even if it wanted to. 2) The circuit court may not order the supervised release of a sex offender unless it authorizes the DHFS plan according to a series of criteria. 3) If granted, supervised release — by statutory definition — is itself "custody and control."

Perhaps Judge Koschnick was confusing supervised release with discharge, which is dealt with in a separate section of the statute, one that wasn't addressed by the Supreme Court in State v. Brown.

That statute, Chapter 980, is the same one Koschnick berates the Chief Justice over, as she determined that it was unconstitutional.

Has he even read it? Or has he read State v. Brown? "Precision" would appear to require both, especially prior to leveling imprecise charges.

Abrahamson is "out of the mainstream," Koschnick says, because of her opinion on the constitutionality of Chapter 980. In support of this allegation, Koschnick cites the observation of former Justice William Bablitch, who also determined Chapter 980 to be unconstitutional.

So much for "precision."

Are there any reporters in this State having the wherewithall to take a closer look at and expose Judge Randy Koschnick's spurious claims?

Because there are enough fluffers.

March 28, 2009

Sometimes an idiot notion

Jay Bullock and capper bust McIlheran. Again.

Imagine, a reputable newspaper's columnist sending his work around pre-publication — with instructions — for all his right-wing buddies.

Dangerous law offenders

Reporting on last night's Supreme Court debate, Dee Hall writes:
Koschnick repeatedly challenged Abrahamson on her ruling in a 6-1 case from 1995 in which the majority of the court upheld Wisconsin’s sexual-predator law, which allows the state to indefinitely confine sexual criminals who are deemed likely to re-offend. Abrahamson was the lone dissenter on the case, which went up to the U.S. Supreme Court, where a 5-4 majority upheld the law.
This is incorrect; the Wisconsin case did not go to the United States Supreme Court. A similar — but not identical — Kansas law was found unconstitutional by that State's Supreme Court, its decision was appealed to the U.S. Supreme Court, and that is the case Chief Justice Abrahamson was referring to.

As a matter of fact, Kansas v. Hendricks was even closer than the Chief Justice indicated. Among the 5-4 majority was Justice Anthony Kennedy, who also wrote separately as follows:
On the record before us, the Kansas civil statute conforms to our precedents. If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.
Emphasis added.

Indeed, the argument that "mental abnormality" (or "mental disorder," in the Wisconsin statutory language) was too imprecise a category to survive constitutional scrutiny formed one of the key bases for Chief Justice Abrahamson's dissent.

Koschnick truly does a disservice to the whole project of electing Supreme Court justices in this State by focusing solely on the result and deliberately ignoring the quality and merits of Chief Justice Abrahamson's reasoning in State v. Post, the decision in question.

It's a cheap and transparently cynical tactic designed not to underscore Koschnick's suitability for the office he seeks but rather to inflame the electorate's revulsion toward particularly heinous crimes (which the Chief Justice shares with the rest of us, obviously, and makes it more than clear in her dissent in Post.)

In fact Koschnick's ploys undermine his suitability.

Koschnick's rank cynicism highlights one of the main problems with electing Supreme Court judges. It's not that voters can't be relied upon to make informed choices, but rather that candidates like Randy Koschnick (and Michael Gableman) apparently can't be trusted to play a more fully informative and honest role in the process.

They should be rejected for that reason alone.

March 27, 2009

Reductio Paddy absurdum

Usually, courts have to defer to lawmakers' judgments on policy, as long as they're rational.
14th Amendment scholar Patrick McIlheran
There's just a wee bit more to it than that. If this was all there was to it, James Inhofe (R-OK) would never get to sponsor a single bill.

Earlier: McIlheran's Guide to the U.S Constitution

Famous recent words

I don't think that the answer to concerns about third-party groups being involved in campaigns is to try to suppress the free speech rights of individuals and groups.
Randy Koschnick, 03.19.09
But lo and behold, it's the answer today, 03.27.09

h/t Cory Liebmann

Koschnick's chickens come home to roost

A certain measure of Karma finally caught up this week with Jefferson County Circuit Judge Randy Koschnick, whose dissonant political posturing is fast approaching its nadir of absurdity. Judge Koschnick is said to be in pursuit of a seat on the Wisconsin Supreme Court on election day, April 7.

And yesterday he may have surrendered whatever political credibility he had remaining, squandering the brief surge he enjoyed while he frolicked with Joe the Plumber and amusingly copped to digesting that grande dame of Republican letters Ann Coulter's Godless.

After several months spent deploying a partisan fusillade comprised of acting the hypocrite, misstating the law, making baseless accusations, insulting his colleagues, and flat-out lying, Koschnick was apparently startled to learn that somebody had gotten wise to his charades and used them to take a bite out of his own dorsal facade.

Let's call it rational basis with teeth.

Promises, Promises

Playing off of Judge Koschnick's very own relentless campaign message, a third-party issue outfit reasonably inferred from his stump performances some not-so-veiled promises to rule against the types of parties who prevailed in the cases Koschnick has been making a grandiose issue out of since November.

The Greater Wisconsin Committee began running television ads this past Tuesday that accuse Koschnick of favoring corporate interests as against the victims of, e.g., products manufacturing negligence and medical malpractice.

To be sure, it's not as if the GWC picked up on some singular, offhand remark of Koschnick's.

Rather, it relied on the circuit judge's central political thesis, pummeling away as he has for months at every available opportunity on the same handful of Wisconsin Supreme Court decisions carefully chosen from a decades-deep archive of several thousand.

Evidently Judge Koschnick was both shocked and appalled that somebody just might conceivably take him at his word.

Shameless petulance

He reacted yesterday by firing off two letters, one to what the First Amendment refers to as the free press, urging it to prostrate itself before his capricious desires and stop airing the ads, and the other to Chief Justice Abrahamson, imploring her to join his petty crusade.

Abrahamson's campaign responded appropriately, advising Judge Koschnick that if he has a problem with the broadcasts, then it's likewise up to him to do something about it. That's his business.

Koschnick's reaction would have been merely laughable, had it not been accompanied by deliberately malicious petulance. Koschnick's campaign "adviser," a wannabe Republican fixer called Seamus Flaherty, attempted to pin the blame on the Chief Justice.

Flaherty shamelessly attributed ownership of the ad to Abrahamson herself and lied about the Chief Justice's response to a question posed by Bill Lueders in a Madison paper, the Isthmus — she hadn't declined to answer it, she declined to "speculate about the future."

That's a big difference, and furthermore, when a journalist doesn't receive a yes or no answer to a loaded question, he's in no wise entitled to portray whatever answer he does get as a refusal to reply.

Nice 'N' Sleazy

Flaherty claimed the Chief Justice was actively relying on "sleaze merchants" to do her "dirty work" but without offering the slightest whiff of evidence connecting Abrahamson to the GWC.

It's abundantly clear who is the sleaze merchant in this affair and all of Mr. Seamus Flaherty's published and spoken campaign pronouncements bear the official imprimatur of Koschnick himself.

Moreover, Koschnick's correspondence to the Chief Justice itself contains a false statement of fact, whereby Koschnick accuses the GWC of making an "admission" it never made and furthermore, attributing this non-existent "admission" to an Associated Press report that contained no such "admission," all of which earned the judge a polite cease and desist letter from the GWC's counsel.

Additional handwringing over the third-party outfit's entry into the campaign fray can likely be expected, but it seems to this observer that the teevee spot's inference is broadly defensible.

And unfortunately for Jefferson County Judge Randy Koschnick, it's his own endless loop of well documented partisan rhetoric and hyperbole that provides the most effective grounds for its defense.

March 26, 2009

Great moments in headline writing

Wausau (WI) Daily Herald

Er, it's not his opponent's ad.

Judicial conservative seeks prior restraint

Isn't this something:
Supreme Court candidate Randy Koschnick said Thursday he will ask television stations to stop airing an attack ad run by a special interest group that he called "demonstrably false."
Yet Koschnick is fine with authorizing his own campaign "adviser" to lie shamelessly about the Chief Justice. How about them apples. Apparently it's perfectly okay for Judge Koschnick to wage a purely negative political campaign, at least until the tables turn, that is.

I'm afraid Koschnick set himself up for just this sort of response in the first place, by cherry picking through selected opinions of the Supreme Court and implicitly telegraphing promises to rule otherwise when confronted with similar questions. What else did he expect?

Even worse news for Koschnick: Steven Walters is on vacation.

A State civics lesson, with Chas. Sykes

Local medium wave radio harlequin Charlie Sykes demonstrates his expertise in Wisconsin State government with this characteristically irresponsible and idiotic blog post, describing a television ad produced by Chief Justice Shirley Abrahamson as "absurd."

Sykes, in turn, relies for this penetrating wisdom on a baffling entry at a conservative "think tank" blog, whose author is either completely unaware of or else desperately puzzled by the administrative duties — yes, duties — of the Wisconsin Supreme Court's Chief Justice.

In the ad, Chief Justice Abrahamson portrays herself as dedicated to "helping people," to which the incredulous tank-thinker responds:
Is she serious? The best thing a judge can do is to apply the law as written to certain facts of a case. The judge's role isn’t to "stand up" for anyone.
Fascinating. But according to the Wisconsin constitution:
The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.
"Shall be ... shall exercise." That means duties. The aforementioned procedures are quite extensive and intricate and indeed they do include for, believe it or not, "helping people."

To cite just one obvious example, the Chief Justice promulgates rules governing the qualifications of attorneys appointed as guardians ad litem to protect the interests of minors — and, separately, adults — who wind up subject to the judicial system.

If that doesn't count as helping people, then I don't know what does. Both Charlie Sykes and this "think tank" are reportedly taken seriously by a certain segment of Wisconsinites, but they certainly can't be said to be helping anybody with this type of rude gibberish.

Apart from, of course, aficionados of unintentional comedy.

March 25, 2009

The Michael Gableman fan club

A ridiculous opponent, Michael Gableman, whose willingness to exploit crude racial stereotypes combined with the support of a sleazy campaign by the Wisconsin Manufacturers & Commerce business lobby to produce a narrow win for a lamentable candidate. — John Nichols.
Some other points to ponder:

There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
— St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

Murphy flubs coverage of coverage

In his Milwaukee Magazine column yesterday, Bruce Murphy faults Lisa Kaiser of the Shepherd Express for doing "pretend journalism."

Several days ago, Jefferson County Circuit Judge Randy Koschnick released a spreadsheet containing a list of 74 of Chief Justice Shirley Abrahamson's more than 3,500 decisions for the Wisconsin Supreme Court. For the numbers people, 74 divided by 3,500 equals 2%.

That is, Judge Koschnick deliberately ignored 98% of Abrahamson's decisions in order to make his global determination that the Chief Justice is "out of the mainstream." A very scientific study indeed.

As Koschnick claims the 74 decisions prove that the Chief Justice is "out of the mainstream" (whatever that means), Lisa Kaiser wrote:
But a closer examination of those rulings show that Abrahamson is not outside of the mainstream. In fact, if they show anything at all, they indicate that she is a stickler for details in legal gray areas so that each side receives a fair hearing in court.
For some reason, Bruce Murphy thinks Lisa Kaiser would have to have read all 74 decisions in order to rebut Koschnick's "out of the mainstream" accusation. Says Murphy sarcastically:
Wow. I’ve never known a reporter to go through 70 legal cases to cover the campaign. That’s impressive.
While it would be nice to see that, it isn't necessary. All one needs to do is take a look at the column second-from-the-left in Koschnick's spreadsheet (it's actually an MS Word document), where Koschnick counts the number of justices on either side of each decision.

For example, more than half of the decisions (39) are 4-3 splits. So they're very close cases to begin with. Of those 39, the Chief Justice is with the dissenters 23 times, and with the majority 16 times. Those cases total 273 votes, and the Chief was with the majority on 140 of them, which actually outnumbers the dissenting votes.

Out of the mainstream? Not exactly. It's a wash, at best.

On the other hand, Koschnick did manage to scrounge up eight lone dissents from a 32-year career involving more than 3,500 decisions.

As for Randy Koschnick's capsule case commentaries, I'll leave that to Prof. Daniel Blinka of Marquette University law school:

"a slap-dash effort that is full of grossly inaccurate and misleading statements, lacking even the pretense of objectivity or balance"

I'm guessing the "pretense of objectivity" element is based at least in part on Randy Koschnick's use of 2% of a judge's record to tar her as "out of the mainstream." But what's really out of the mainstream is Koschnick's rather brazen disingenuousness.

Also remarkable is the fact that former Justice William Bablitch, who Koschnick has recently taken to marshaling in support of his "out of the mainstream" sloganeering, sided with Abrahamson in nearly every one of the cases Judge Koschnick now declares to be "out of the mainstream." How is that supposed to work, I have no idea.

And this is the selfsame Judge Koschnick, believe it or not, who accused Chief Justice Abrahamson of being "intellectually dishonest."

Hypocrisy is not a desirable quality in a judge.

March 24, 2009

Would conservatives

Please, once and for all, locate somebody, somewhere, who really does believe that Barack Obama is "the Messiah"? Thanks in advance.

A classic ad hominem

From a comment at the Wall Street Journal's law blog:
Laurence Tribe is a down in the weeds socialist. Glib comments referring to certain issues as States' issues only is nothing but a self-serving ingratiation to this big government advocate. — "Tom"
The WSJ had asked Prof. Tribe to evaluate potential attempts by Congress to get back the AIG bonuses from the perspective of several provisions in the U.S. Constitution. One of them appears in Art. I, Sec. 10, and reads in pertinent part:
No State shall pass any law impairing the obligation of contracts.
So which part of "No State" doesn't Tom understand? [/glib]

Judges "pressured" to endorse Chief Justice

So says a judge, apparently with a straight face, even though that particular judge is actually opposing the Chief Justice in an election campaign. Yes, "tremendous pressure" was exerted, he claims.

Evidence? None. Wouldn't most reporters provide — or least ask for — some support for this rather extraordinary allegation? You'd think so.

And the judge's campaign "adviser" had insulted the judges before.

McIlheran's guide to the U.S. Constitution

One more chuckle from the Milwaukee Journal-Sentinel's right-wing guy's latest barrel of laughs:
When public sentiment turned [against the AIG bonuses], Washington crafted law to snatch the money, a plain trashing of the Constitution.
And how exactly is some unspecified and as-yet unsigned "law" a "plain trashing of the Constitution"? McIlheran relies on that renowned constitutional authority, Charles Krauthammer:
Even worse are the clever schemes now being cooked up in Congress to retrieve the money by means of some retroactive confiscatory tax. The common law is pretty clear about the impermissibility of ex post facto legislation and bills of attainder. They also happen to be specifically prohibited by the Constitution.
Your guide to good reading on the Web.

But I always thought the Ex Post-Facto Clause contemplated adjustments in the federal criminal — not tax — law where attempts are made to apply those adjustments retroactively.
In Collins v. Youngblood [citation omitted], we reaffirmed that the Ex Post-Facto Clause incorporated "a term of art with an established meaning at the time of the framing of the Constitution." In accordance with this original understanding, we have held that the Clause is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts."
Thanks for clearing that up, Associate Justices Thomas, Scalia, Chief Justice Rehnquist, et al (Krauthammer, C., dissenting).

(Regular Faux News contributor Charles Krauthammer, incidentally, coined the term "Bush Derangement Syndrome," and as such continues amusingly in his role as one of its leading diagnostees.)

As for bills of attainder, Congress could with facility get around that prohibition by crafting legislation applicable beyond only "named individuals or to easily ascertainable members of a group."*

Well played, Patrick McIlheran, well played.

* If the courts don't look too closely at the legislative history.

Thirteen lawyers have some explaining to do

How on Earth can a person be "not qualified" to do a job they've already been doing for more than 32 years?

McIlheran duped by teh internets

Remember this? Patrick McIlheran fell for it too.

Your guide to good reading on the Web:
Patrick's linking to this post without retracting his comments or adding an update after finding out it was completely wrong is kind of shady.
Of course it would be, if it was anyone other than McIlheran. For him it's standard operating procedure. Actually Jim Lindgren's post at the Volokh Conspiracy is even more embarrassing, considering Lindgren has a reputation. Obama was replying to a letter from Chirac.

March 23, 2009

Can we at least respect the office?

The stench surrounding Michael Gableman's election to the Wisconsin Supreme Court just won't go away.
"Sulfurous" — Wausau (WI) Daily Herald.

Right-wing blogosphere goes crazy

Make that, crazier. Just in case there was anybody left still wondering what was really meant by: "I want him to fail."

Your Monday pundit round-up

Local medium wave radio shouter Charlie Sykes, who also operates a teevee show called "Sunday Insight" [sic] did a segment yesterday on the current State Supreme Court election.

Predictably, there was little insight to be gained, or at least not anything in the way of actual edification.

The hapless Sykes had roughly squat to contribute, aside from insisting on referring to former Justice Louis Butler as "Louie," as if he's his best buddy or something (in fact, Louis rhymes with Lewis).

Nor did another "distinguished panelist," the Journal-Sentinel's guide to good reading on the Web, Patrick McIlheran, who may or may not be feeling a modicum of shame over the unapologetically despicable treatment he afforded the Supreme Court election last year.

Yet another participant, the famed Walnuts-Begger of Waukesha, James T. "Hip Musings" Harris, dismissed Community Journal editor Mikel Holt's suggestion that the 2008 Michael Gableman campaign had appealed to racial prejudices among the electorate because — get a load of this — nobody knew Louis Butler was black.

Never mind that Holt was referring to Michael Gableman's notorious broadcast ad which included several shots of Butler, including those presented side by each with a black convicted child molester.

As a fellow cartoon character effectively put it, that Harris, whose continuing appearances on a programme alleged to provide "Insight" can only be attributed to inadvertent comic relief, he's about as sharp as a sack of ballpeen hammers.

Harris went on to say the real issue in the ongoing campaign should be "the lead paint case." Forgive me if I doubt whether Harris has even read it. Rather, somebody probably told him that the Wall Street Journal once ran an editorial saying mean things about Wisconsin and this troubled him and inspired a typically hip musing.

Finally, "pundit" Kenneth Lamke made reference to a lengthy piece that appeared in Madison's alternative weekly, the Isthmus, which Lamke described as "laudatory" of candidate Randy Koschnick.

Given Madison's perceived political culture, an alternative weekly in that town is deemed chortlingly by the Sykesians to be reflective of views slightly to the left of the International Workers' Daily, hence Lamke apparently finding Lueders's piece especially remarkable.

Except there are a number of disturbing misconceptions in Lueders's article, and consequently with Lamke's portrayal of it.

First of all, it contains a grotesque mangling of the central holdings of a State Supreme Court decision — which remains embarrassingly uncorrected nearly two weeks after its publication online.

Second, Mr. Lueders is not so much "lauding" Randy Koschnick as he is comparing him with Michael Gableman, who Lueders called, among other things, "a man without honor or shame." So Lueders would presumably prefer just about any candidate with a pulse — who knows, maybe even James T. Harris — to Gableman, which isn't exactly a "laudatory" endorsement of Randy Koschnick.

But the biggest problems with Lueders's piece reside with his subjective and untenable expectations of Chief Justice Shirley Abrahamson. First, he's disappointed with what he personally believes are unsatisfactory replies to his questions, even though they are each perfectly appropriate and more than sufficiently responsive.

Then there is this, wherein Lueders grouses that the Chief Justice isn't political enough for his tastes:
Abrahamson, for her part, fervently rejects the suggestion that she approaches cases with any ideological predispositions: "I do what the facts and law require."

It's a good argument to make, but unconvincing.
Oh? Then if Lueders is unconvinced, he needs initially to prove up those so-called "ideological predispositions." But he doesn't even try, apart from pointing to "some" other people's reactions:
While a surprisingly large share of Supreme Court cases are decided unanimously, some do break down along obviously ideological lines. At least some of Abrahamson's supporters believe she'll apply the law in ways that favor injured people over corporations and the rights of the criminal defendants, some innocent, over the power of the state. That's why they support her.
What Lueders refers to as "ideology" is no such thing, but rather differing approaches to interpreting statutes, constitutions, case law, legal history, contemporary meanings of language, etc., etc.

It's easy to toss around quasi-philosophical characterizations, but without some detailed explanation, context, and support, they're effectively substanceless buzzwords.

This, however, is the real capper:
Abrahamson's reluctance to affirm and defend these leanings undercut her appeal. She's running from her own record of progressivism, which she should be trumpeting.
Talk about assuming your own defective conclusions.

And, well, too bad, because that ain't the way it works. And Abrahamson has continually been affirming and defending her approach to judging cases, for anyone who's been paying attention.

Furthermore there is the record itself. In each of Abrahamson's written opinions — in particular the so-called "controversial" ones that Judge Koschnick has been judiciously cherry-picking his way through — her approach is carefully and exhaustively explained.

But none of these "pundits" ever wants to talk about that; they prefer obsessing over the results, avoiding any meaningful debate about whether the reasoning and approach to that result was sound.

(And of course nobody has been obsessing over results with greater alacrity than Koschnick himself, which is unusual because as a self-described "judicial conservative," obsession with results is supposed to be the exclusive province of "liberal activists." To be sure, that's one of the signature political rationales behind portraying oneself as a "judicial conservative" in the first place: to attack "results-oriented" liberal judges. The irony is jarring.)

So what more does Mr. Lueders expect of Chief Justice Abrahamson? Because those detailed explications of her reasoning in each case are exactly what he's looking for, yet complains he doesn't find.

Moreover, why should any judge have an obligation to "defend" the perceptions of "some" other people? And why in the world would a judge be "trumpeting" any political ideology to begin with? That would be fundamentally inappropriate to the very function of judging.

Lueders may have interviewed Chief Justice Abrahamson for his article, but it's a shame he wasn't more thoughtfully considering her responses. On the other hand, Lueders appears pleased by Judge Koschnick's outright political pandering to conservative Republicans.

Perhaps that's how judges go about getting themselves elected in the State of Wisconsin, and some people might even find it attractive. But it certainly has nothing to do with the jobs they're seeking after.

March 22, 2009

Missing WI blogger found

The (Somewhat) Daily RAG.
But (Always) thoughtful and well written.

March 21, 2009

Pope warns against supernaturalism

Continuing his 2009 Tour of Africa, Joseph Ratzinger (a.k.a. Pope Benedict XVI) admonished Angolans to abandon their unusual beliefs in witchcraft and sorcery.

Earlier, performing an ancient and mysterious incantation, Mr. Ratzinger purported to transform a slice of bread and a goblet of wine into the body and blood of a legendary 1st century Rabbi.

Der Papa is traveling the sub-Sahara in an armored, glass-enclosed Mercedes Benz, into which His Holiness is elevated by hydraulic lift.

Two of the faithful met an untimely despatch Heavenward after they were trampled outside a soccer stadium, the scene of Mr. Ratzinger's latest engagement. Eight others were reported hospitalized for undisclosed afflictions. Which doctors were assigned is also unknown.

Closer to home, a Madison Bishop fired a beloved member of the Catholic laity for the crime of being much too intellectually honest.

The best response to Obama yet

Comes from a pair of Special Olympian bowlers who laughed at the president and said a score of 129 sucks even by their standards. How perfect is that.

Let me tell you something, pendejo.

Misanthropy: a justification

Seek ye no further.

Disingenuous panel to convene

Your local guide to good reading on the Web will tomorrow morning join a "distinguished panel" — himself and medium wave harlequin Charlie Sykes — to discuss, inter alia, the State Supreme Court race.

It might be interesting to see whether the distinguished opinion leaders Sykes and Patrick McIlheran will dissemble and mislead as shamelessly as they did during last year's Supreme Court election.

Viewers are well advised to postpone breakfast nevertheless.

J.S. Bach is 324

Toccata in D major, BWV 912 (1706) — Glenn Gould*

Bach Cantatas Website

* More JS/GG at that link.

March 20, 2009

Victor Wooten is a beast

Amazing Grace (YouTube)

Obama offends "special" conservatives

And all this time I thought Republicans were opposed to "political correctness."

(You should see me golf; it's like Barack Obama bowling or something.)

Strict constructionist strikes again

"As a strict constructionist," Jefferson County Circuit Judge Randy Koschnick gravely intones at every available opportunity.

How strict a constructionist is Koschnick, really. Not very. Speaking to Rotary Club members in Madison on Wednesday, Koschnick said:
When I first announced my candidacy last November, I offered a clean campaign pledge to Justice Abrahamson which I signed and which she declined to sign. And among the pledges that I proposed we would make would be that we would either refuse to accept contributions from lawyers who have cases pending or that we would recuse from those cases if we decided to accept the donation.
Except that isn't even what Koschnick's own "pledge" reads. It says:
refusing and returning contributions from parties with cases before their respective courts
Parties. Not lawyers. Lawyers are not parties. And no so-called strict constructionist would ever construe "parties" so expansively as to include the lawyers retained to represent them in court.

But apparently this strict constructionist does, when convenient.

If this is how Judge Koschnick construes his own words, then exactly what sort of liberally activist interpretive methodology can he be expected to apply to the words of other people? The mind boggles.

Neither does Judge Koschnick's "pledge" include for the numerous gyrations he's performed in his attempts to justify the fact that he's done exactly what he's accusing his political opponent of having done.

And here's a pertinent little reminder of what Justice Antonin Scalia had to say about campaign contributions a couple of weeks ago.

Judge's briefs unceremoniously lowered

Last year, avid supporters of the embattled judge Michael Gableman circulated a list of selected Wisconsin Supreme Court cases meant to impugn the professional integrity of former Justice Louis Butler.

This blog reviewed the list case by case and proved it a steaming heap of laughably uninformed and deliberately misleading effluvia.

Now this season, Jefferson County Circuit Judge Randy Koschnick has taken it upon himself to generate a strikingly similar list of "Select Cases" involving Chief Justice Shirley Abrahamson, complete with capsule commentary alleged to accurately characterize the holdings and purported effects of each.

It's déjà vu all over again.

One might be charitably inclined to ascribe this latest mess to the handiwork of Koschnick's campaign "adviser" Seamus Flaherty. But alas, Judge Koschnick himself laid claim to personal authorship of the commentary on Wednesday at a candidate forum in Madison.

Daniel D. Blinka, who is a distinguished professor of law at Marquette University, reportedly has had a look at this list this time around. Which is good, because Prof. Blinka is marginally more respected than your humble correspondent.

Not only is he a nationally recognized scholar whose work is frequently cited approvingly by the courts at every level, but he has for many years been providing summaries of State appellate decisions for the Wisconsin Lawyer, a publication of the State bar.

He's also literally written the book on the law of evidence in Wisconsin, among numerous other endeavors. In short, he knows the case law backwards, forwards, inside out, and sideways.

Therefore when Prof. Blinka says — as he does — that Judge Randy Koschnick's "Select Cases" compilation is
a slap-dash effort that is full of grossly inaccurate and misleading statements, lacking even the pretense of objectivity or balance
... you can take it straight to the bank.

And that, as they say, has got to leave a mark.

March 19, 2009

Cherries (picking) jubilee

President Obama has nominated David F. Hamilton, the chief judge of the federal Southern District of Indiana, to the United States Court of Appeals for the Seventh Circuit (which includes Wisconsin).

As is typically their wont, political conservatives are busily scavenging through Judge Hamilton's 15 years on the federal bench searching for selected, pleasingly outrageous and offensive tidbits.

One of the examples they've unearthed is Judge Hamilton's 2005 order preventing the recitation of overtly sectarian prayers in the Indiana legislature. Indiana's Assembly speaker brought the case to the 7th Circuit, where Judge Hamilton was reversed.

The federal appeals court determined that the four plaintiffs lacked standing to bring the original challenge to the sectarian prayers.

Prof. Friedman at Religion Clause notes Judge Hamilton's nomination in this post, which contains links to his earlier coverage of the prayer case, where the 7th Circuit panel's 2-1 decision can be easily located.

By most people, at least.

A commenter, who identifies himself as a lawyer in Washington State, deposited the following presumably rhetorical question:
"Well qualified" after he messes up a simple standing issue?
Ho ho! Because while Judge Hamilton did grant the plaintiffs standing, so did the same 7th Circuit court that reversed him.

What happened in the interim between Judge Hamilton's order and the 7th Circuit's Oct. 2007 ruling, however, is that the U.S. Supreme Court took up the specific question of (taxpayer) standing the preceding June in Hein v. Freedom from Religion Foundation, Inc.

(Hein originated in a federal court in Wisconsin, incidentally.*)

By that time, the 7th Circuit had already agreed with Judge Hamilton that the plaintiffs did indeed meet the requirements for standing. But Hein retooled those requirements by clarifying the case law that both Judge Hamilton and the 7th Circuit had relied upon:
Upon consideration of the Court’s disposition in Hein, and the parties' supplemental arguments [addressing the potential effects of Hein, if any], we believe that Hein requires us to revisit our preliminary determination that the plaintiffs possess the requisite standing to maintain this action.
Emphasis added.

That is, the 7th Circuit Court of Appeals reversed itself along with Judge Hamilton in light of the U.S. Supreme Court's decision in Hein.

So, no, Judge Hamilton did not "mess up a simple standing issue." And even if he did, so did the Court of Appeals that eventually reversed him "mess up" the exact same taxpayer standing issue (which is not by any means a "simple" question to begin with, as evidenced by the fact that it took the court 57 pages to explain it alone, without addressing whether the prayers were constitutional).

Yet even a conservative lawyer — who should know better — is only more than eager to leap embarrassingly to completely erroneous conclusions in the interest of scoring (failed) political points.

It's a highly instructive little case study.

* Where an astute reader below points out another federal vacancy announced today, with Judge Barbara Crabb assuming senior status.

Koschnick flirts with rank hypocrisy

This guy is too much:
Jefferson County Judge Randy Koschnick alleged today that union endorsements of Chief Justice Shirley Abrahamson reflect the incumbent justice’s tendencies toward activism during a debate in Madison today.
Yet Koschnick* was chasing after union endorsements himself.
How can anybody take him seriously, aside from this character.

And: More penetrating analysis from the Milwaukee Journal-Sentinel. How come it didn't occur to J-S reporter Steven Walters to report on Judge Koschnick's blatant double standards? He covered both events, and in fact was among the three panelists at the forum last week.

Apparently he's been hypnotized by Koschnick's talking points.

* Last book read: Godless, by Ann Coulter. Quality stuff.

Journalist or internet troll?

Who can say.

March 18, 2009

Avignon remains home to antipope

France Chastises Pope on Condoms
HIV/Aids was, [Ratzinger] argued [sic], "a tragedy that cannot be overcome by money alone, that cannot be overcome through the distribution of condoms, which can even increase the problem."
I guess, if you believe that distributing condoms will encourage people to have intercourse they wouldn't otherwise be having.

But I think the point is that — most humans being simply humans and not celibate male religious leaders — because folks are more likely to be having intercourse anyway, they stand a better chance of not communicating or contracting STDs by introducing a latex barrier.

Just one of the many reasons why I'm not the pope.

"Randy's got things mixed up."

Here's an illuminating exchange from a profile of Wisconsin Supreme Court Chief Justice Shirley Abrahamson in today's Shepherd Express.

Last Wednesday at a candidate forum in downtown Milwaukee, Jefferson County Circuit Judge Randy Koschnick admitted he chased after endorsements from the Milwaukee and Wisconsin police associations, but both organizations went for Abrahamson.

Koschnick brushed this aside, saying that as labor groups the associations were more concerned with collective bargaining than actual law enforcement issues. In fact, Koschnick claimed that was what the heads of both associations specifically informed him.

He even said that MPA officials told him they understood the Chief Justice's decisions "are consistently not good for law enforcement."
That revelation was news to Milwaukee Police Association President John Balcerzak and Thomas Fischer, the MPA vice president who conducted the candidate interviews.

Both of them attended the forum and heard Koschnick’s defense.

"If I would have been able to stand up I would have said that Judge Koschnick’s recollection of the interview process is in error," Balcerzak told the Shepherd. "Fischer leaned over to me and said, 'I don’t recall saying that.'" Fischer, speaking to the Shepherd, added, "Randy’s got things mixed up."
And those aren't the only things. One moment Randy Koschnick is criticizing judges for shaping public policy, and the next the self-described "judicial conservative" is promising to "improve society" and "create a stable business environment."

So, which is it? Because you can't possibly have it both ways. That's tantamount to saying, "Vote for me, I'm a married bachelor."

March 17, 2009

Gableman lawyer speaks

Further to yesterday's post here, the AP reports:
"I think the most troubling aspect of the case is that we have the government trying to police political speech as to whether it's true or false," [Gableman's attorney, James] Bopp said. "That seems quite contrary to the First Amendment, which was to allow citizens to make those decisions when they go to the ballot box."
No, what's troubling is judges ignoring their ethical responsibilities and interpreting the First Amendment as a political license to lie.

And those judges have an obligation not to lie to those citizens. Of course those judges can lie to those citizens if they want to, but that doesn't mean they shouldn't face professional sanctions for lying.

After all, the statutes are also an expression of the citizens' will and the citizens have a compelling interest in not being lied to by judges.

Prepare for the mass release of criminals

Obama nominates a judge.
Earlier: Obama plots to destroy America.

J-S editors meet one error per graf quota

Good Lord:

Federal sentencing guidelines for some child pornography offenses are "seriously flawed and is accordingly entitled to little respect," said U.S. District Judge Lynn S. Adelman.

Adelman's came in a 16-page memorandum ...

[Thank God for that apostrophe.]

Phinney's attorney, Dennis Coffey, had argued that the guidelines "had been the subject of much criticism by scholars and judges because it is not based on any empirical data or institutional analysis."

Adelman wrote that ... "the district judge may not presume that the guideline sence is the correct one."

Adelman outlined a history of sentencing guideline'r application to child pornography.

Adelman wrote that ... penalties had been lesses for child pornography crimes.

Congress increased the penalty guidelines in 1995 and 2003 despite the sentencing commissions objections, Adelman said.

"Not only is this guideline not based on commission study or expertise, it is directily contrary to the commission's original studied approach ..." Adelman wrote.

"Accordingly, I condluded that the range under the 2008 guideline was worthy of little respect or deference."

Phinney was in his office at a company he co-owned when the hurman resources director saw him looking at images of naked boys or men on his computer.

The othe owner contacted the FBI.

A search of the computer found 28 sexually explicit images of children, two identified by through the National Center for Missing and Exploited Children.

Adleman said ...

he also took into account ...

Adelman noted that the 10 years of post-prsion supervision ...

March 16, 2009

A modest assessment

Of a so-called "backlash" against newly minted NYT columnist Ross Douthat, famous blogger Andrew Sullivan laments:
It's the price of such enormous, almost overwhelming, cultural power, I suppose.
Hopefully he's being facetious, but doesn't Sullivan usually dole out awards for just such crazily overwrought hyperbole?

Sadly, No!The collected shorter Ross Douthats.

Gableman misconduct was willful: WJC

According to the latest filing in the matter of Wisconsin Judicial Commission v. Michael Gableman, then-Circuit Court Judge Gableman was "not pleased with the 'tone' of the [television] ad" he ultimately approved for release against his political opponent, former Wisconsin Supreme Court Justice Louis Butler.

The WJC's statement of facts, submitted on February 27 in the ongoing investigation into Gableman's campaign activities last spring, alleges that Gableman's political advisers urged him to release the ad in response to other advertising produced not by Justice Butler's campaign but by third-party groups.

Both Gableman and his advisers considered those ads to be "devastating," as well as "blistering, negative, and false."

However, Gableman did not produce a response directed at the "blistering" third-party groups. Instead, he unleashed a most scurrilous personal attack against Louis Butler, linking him in an extremely misleading fashion to a convicted child molester.

Many observers detected in it racist overtones as well.

Perhaps Gableman, who is himself currently installed on the Wisconsin Supreme Court, deserves some credit for the fact that the television ad initially gave him pause and according to the Judicial Commission, Gableman delayed its release for several days while he considered possible alternative messages.

But he ended up releasing it exactly as formulated, thus negating any credit to which he may have been entitled.

This is somewhat devastating in and of itself, as it gives a strong indication of what Gableman thought of the ad, which in turn functions as support to the allegations that he knew precisely what he was doing when he authorized its release and broadcast.

Even more remarkably, although Gableman claims to have been troubled by statements issuing from third-party groups, he rather chose to direct his response to them against Justice Butler, who not only had no connection to the third-party outfits, but had openly condemned them on many occasions.

A willful violation of the code of judicial ethics constitutes a violation of Wis. Stat. § 757.81(4)(a), judicial misconduct. Penalties range from a private reprimand to suspension or expulsion from the court.

By comparison, in the most recent finding of ethics violations by a sitting judge, those of Gableman's current colleague Justice Annette Ziegler, a majority of the Wisconsin Supreme Court wrote:
Although the violations in the instant case are serious and were willful as defined in the statute, the violations were, as we explain below, also inadvertent. The Judicial Commission has characterized the violations as resulting from neglect and as serious.

Furthermore, a discipline of suspension or removal is not necessarily consistent with our past judicial and attorney discipline cases. Prior judicial misconduct cases in which judges received a sanction more severe than a reprimand all involved some degree of moral culpability that is not present here.
For her "inadvertent" violations, Justice Ziegler received only a public reprimand.

But the particular allegations against Michael Gableman certainly do not appear to have contained similarly mitigating elements of "inadvertent" conduct, at least insofar as he reportedly mulled over the television advertisement's content for several days.

As to the question of moral culpability, it most likely inheres in Gableman's conscious decision to go after Justice Butler personally in response to messages originating with third-party entities over whom Butler had no control and indeed had himself likewise condemned.

That's not the manner of judgment one should expect from a judge. Of course, Gableman's moral culpability was on display throughout his political campaign. The subject of the WJC investigation was arguably the most egregious instance, but there were others as well.

Michael Gableman has until April 1 to reply to the WJC's statement of facts (.pdf; 7 pgs.). No date has yet been set for Gableman's hearing in front of a three-judge panel, but it will take place in Waukesha County. The panel's recommendations then go to the Supreme Court.

Madoff's Steinway

No reporter can get through the story of Bernie Madoff's wife Ruth's assets without mentioning her "$39,000 piano." That's actually a relatively inexpensive Steinway, so cut the guy some slack already.

More bad reporting, from Appleton

Here's the Appleton Post-Crescent on State v. Knapp:
In that case, [Jefferson County Circuit Judge Randy] Koschnick ruled that physical evidence, a bloody shirt, should not be excluded at trial even though the defendant was not advised of his Miranda rights at the time the evidence was seized.
Unmentioned are two critical issues: 1) that the Miranda warnings were intentionally withheld, and 2) another of Koschnick's rulings that other physical evidence, bloodstained shoes, should be excluded.

The Wisconsin Supreme Court reversed Koschnick on that account also. The shoes were admitted, and the defendant was found guilty.

But Judge Koschnick doesn't want to talk about that.
Koschnick, in his ruling, said the defendant's statements to police could be excluded but the Miranda decision did not extend to physical evidence.

The state Supreme Court overruled Koschnick's decision. The case went to the U.S. Supreme Court, which upheld Koschnick's view and overturned the state Supreme Court's decision.
No, it did not. It neither upheld Koschnick's "view" nor overturned the Wisconsin Supreme Court's decision.

It vacated the Wisconsin Supreme Court's decision in Knapp and ordered the State court to reconsider Knapp in light of two other contemporaneous SCOTUS rulings that originated in other States, each of which was factually dissimilar to the circumstances in Knapp.

Vacated is not at all the same as overturned. When a decision is vacated, it simply means it never happened. 'Vacated' says nothing about the correctness of the decision or anything whatsoever about the decision's merits. Nor did SCOTUS say anything at all about Judge Koschnick's initial ruling, let alone "upholding his view."

The United States Supreme Court never even considered the factual circumstances of State v. Knapp as it related to the other two cases. That's what SCOTUS told the Wisconsin Supreme Court to do.

And that's exactly what the Wisconsin Supreme Court did. Had the U.S. Supreme Court "overturned" State v. Knapp, that subsequent reconsideration never would have taken place.
"They found that the remedy needs to be only the suppression of the statement," Koschnick said.
It's not entirely clear what Koschnick is talking about there, but if he's referring to the United States Supreme Court "finding" anything at all about the particular circumstances of State v. Knapp, he's dead wrong. The distinct impression conveyed by the newspaper here is that the United States Supreme Court "found" in favor of Koschnick and against the Wisconsin Supreme Court, which is simply not true.

That's some brutal reporting all around.

March 15, 2009

Reporter attempts blogging

Yesterday I wondered when local journalists were going to start reporting on the many fundamentally contradictory messages of Jefferson County Circuit Judge Randy Koschnick, who says he's more qualified to sit on the Wisconsin Supreme Court than its veteran Chief Justice, Shirley Abrahamson.

The Milwaukee Journal-Sentinel's Steven Walters tries his hand:
When asked about Abrahamson's age, the 48-year-old Koschnick said: "I don't think it's an issue. I'm not going to make it an issue."

But in campaign appearances, the Jefferson County circuit judge has repeatedly said: "I won't run for a third term (if elected). I think two terms is enough. . . . I think 32 years is too long."
Nope. Term limits do not equal age. The requirements are fairly minimal, and it's conceivable that a Wisconsin justice could have served two terms by the time they were Koschnick's age. Try again.

There are enough contradictions available without inventing one.

March 14, 2009

Maybe he could read the opinions?

As they might possibly contain a clue:
"I just don't see why [Wisconsin Chief Justice Shirley Abrahamson] sees cases the way she does ... favoring criminal defendants' rights over public safety," Koschnick, 48, said.
Self-described conservative judge says he can improve society

That would be the same judge who claims the judiciary shouldn't be in the business of setting public policy. Now he's promising to "create a stable economic environment." Are there any journalists in this State paying attention to Judge Koschnick's numerous contradictions?

Or who understand the role of the appellate courts?

"I am interested ... not [in] whether [Robert] Bork has a persuasive or plausible constitutional philosophy, but whether he has any constitutional philosophy at all." — Ronald Dworkin, 08/13/87

Emphasis added.

Judge's campaign person insults 260 judges

Seamus Flaherty, who is reportedly an "adviser" to Jefferson County Circuit Judge Randy Koschnick's political campaign, boldly declares that 260 Wisconsin judges favor Chief Justice Shirley Abrahamson over his main man simply because "she's their leader and boss."

And he compares them to cattle on a dairy farm. Judicial notice is hereby taken that cows are not noted primarily for their intelligence.

Mr. Seamus Flaherty would be well advised toward greater circumspection with respect to such comparisons, as he udderly fabricated another of his own — with the express written authorization of none other than Judge Randy Koschnick himself — to shamelessly lie about the Chief Justice in a March 11 press release.

You stay classy, boys.

March 13, 2009

I have never read Megan McArdle

And after gaping at this, I probably never will again:
I find [Jon] Stewart disturbing because [he is] making powerful statements, and then when he gets called on [them], retreating into the claim that well, you can't really expect him to act as if he were being taken seriously.
What a clueless media naïf. And a "leading blogger." How sad. Either that or she doesn't know Jon Stewart and Jim Cramer apart.

Then again, since Jon Stewart is the most effective media critic in the country, the more people he makes uncomfortable, the better.

Watch Jon Stewart "retreating" here.

Slave! I have not given my permission!

I have no idea why that keyword search leads here.

I seriously doubt it

Koschnick takes to lying

According to a press release "authorized and paid for by Koschnick for Justice," Wisconsin Supreme Court Chief Justice Shirley Abrahamson "equated [her colleagues on the court] with violent sexual criminals."

This is a shameless, irresponsible lie.

Where is Judge Koschnick's "clean campaign pledge" now?

March 12, 2009

McIlheran admires the creationists

Who knows why, perhaps he aspires to that nadir of stubborn ignorance. Speaking of creationists, regard this opening salvo:
Anyone who knows me at all knows that I break down creationist biology into four main components: design, natural evil, systematics, speciation, and biogeography.
Amongst our weaponry ...

h/t Pharyngula

No Pulitzer Prize for Madison paper

Bill Lueders in the Isthmus cites to a particular opinion of the Wisconsin Supreme Court as "perhaps the best example" of Judge Randy Koschnick's crusade against "judicial activism," claiming:
Four of the seven justices decided that, henceforth, juvenile confessions would be inadmissible as evidence unless they were videotaped. Koschnick is appalled by this.
I suppose he might well be appalled, except that that is hardly what the Jerrell majority determined. What it decided was this:
[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention.
Indeed, Justice Ann Walsh Bradley's lead opinion publishes this statement no fewer than three times. It takes real effort to overlook. Followed by an extensive explication of the court's supervisory power over evidentiary matters in State courts and its justification in the instant case, authored by Chief Justice Abrahamson.

Therefore, what Mr. Lueders needed to ask Judge Koschnick is this: Was the majority's reasoning flawed, or is he simply troubled by its outcome. That is the pertinent line of inquiry regarding any appellate decision: The process employed, not simply the result obtained.

In any event, the purpose of this decision is to protect both juvenile suspects and law enforcement. Also — obviously — the overarching concern here is for the preservation of our ideal of justice.

Notwithstanding the general availability of AAA batteries.

So: Not videotaping. Audiotaping. And even then, only where such recording is feasible. And not during all interrogations, only custodial interrogations. That is, after the juvenile suspect has been taken into custody, as custody itself has been defined in the case law.

And the only venue where audio recordings (not videotaping) are required without exception is at places of detention, e.g., in jail.

Goodness, I'd sure hate to see the worst example.

It's not that hard to read these cases. Even a journalist can do it.

Koschnick the not-so-strict constructionist

For a candidate who constantly accuses his opponent of massaging the law to suit her "activist" predispositions, Jefferson County Circuit Judge Randy Koschnick is himself pretty slick at molding it to conform with his own (non-partisan) political agenda.

At a judicial debate forum in Milwaukee yesterday, both Judge Koschnick and Wisconsin Supreme Court Chief Justice Shirley Abrahamson were asked to state their views on Siefert v. Alexander, a recent decision of a United States district court that invalidated as unconstitutional three provisions of the State judicial ethics rules.

Koschnick said he approved of Judge Barbara Crabb's handiwork, despite its being an example of so-called judicial activism — not to mention a federal incursion into the business of a State.

Judge Koschnick, prefatory to taking the Chief Justice to task for doing exactly what he's done himself — accepting campaign contributions from lawyers with cases that came before their respective courts — had the following to say:
And an interesting contrast that Justice [sic] Crabb laid out that I agree with. She said that there is a significant danger posed by ethics rules that allow candidates and sitting judges to take donations from lawyers who have pending cases. So if this dangerous practice is allowed in Wisconsin, it doesn't make sense to prohibit the much less threatening practices of allowing judges and justices to declare party affiliation or to personally solicit donations.
While Judge Crabb arguably implied somewhere a remotely applicable reference to a situation tangentially comparable to the very specific one Koschnick invokes, her remarks were far more general than Koschnick might like his would-be supporters to believe.

Moreover, in striking down the State ethics rule that required judicial candidates to solicit campaign funds through committees as opposed to doing so directly and personally, the federal judge said such exchanges may have a coercive effect on the contribution's donor, not necessarily its recipient, the candidate.

In other words, the "danger" contemplated in Siefert is that such potential donors might feel obligated by the need to contribute to a judicial candidate's campaign.

The opinion even provides an example of the same from Florida, where a judge's surrogate rang up an attorney with a case pending before that judge to thank the attorney for his written endorsement but reminding him the envelope was barren of cash monies.

Yet the situation Koschnick is attempting to invoke is precisely opposite of the one Judge Crabb mentions. That's what we call "standing the law on its head."

Judge Crabb does go on to discuss the potential influence of campaign money on judges' decision making by chastising the defenders of the ethics rule's dependence on a statement made by former Justice Sandra Day O'Connor, but Judge Crabb takes pains to point out that Justice O'Connor wasn't addressing the sort of specific instance Koschnick raises either: "[O'Connor's] criticism was not of personal solicitations in particular but judicial fund raising generally."

In conclusion, Judge Crabb writes:
If defendants believe that some potential donors will feel coerced because they are likely to appear before that judge, less restrictive (and more effective) responses would include limiting solicitations of those who are frequent litigants or requiring recusal when anyone who was solicited appears in that judge’s court.
That is, according to Siefert, it's the lawyers in Judge Koschnick's scenario who donated to Chief Justice Abrahamson's campaign who are the ones that may be feeling coerced, not the Chief.

Except Koschnick doesn't tell us whether the lawyers he has in mind are "frequent litigants" — however "frequency" might be adduced — or whether they were "solicited" by the Chief (they weren't; they donated because they wanted to, and because they can).

Furthermore, Judge Crabb noted the results of a study published in a law review article that found that "75% of all cases coming before [the] Wisconsin Supreme Court in [the] 1990s involved [a] lawyer, firm or company that had contributed to one or more of its justices."

So once again we're presented with an example of Koschnick cherry picking through the data and finding a singular instance to suit his purposes. Later on he was at it again, mining not just individual decisions from a collection of more than 3,500, but even individual sentences, completely out of context, from individual opinions.*

And, of course, Koschnick never mentions that lawyers employed by the firm representing the adverse party in his carefully selected example have made contributions to every justice on the Wisconsin Supreme Court, not just the Chief.

Ultimately, if Judge Crabb was advocating any extrajudicial recommendations at all beyond the narrow holding in the case — that of invalidating the three ethics provisions — they were in favor of public financing of judicial election campaigns, which also happens to have been Chief Justice Abrahamson's stated position for years. And she expressly maintained that position again yesterday.

Finally, it's remarkably ironic for the strict constructionist Judge Koschnick to be making positive appeals to dicta beyond the central holding in Siefert, as he has elsewhere criticized the Chief Justice for fashioning exactly those.

Which is to say, were Judge Crabb of the "judicial conservative" sort that Koschnick claims to admire and presents himself to be, those dicta wouldn't even exist to use, abuse, or otherwise appeal to.

According to Judge Koschnick's "judicial philosophy," judges should confine themselves to the specific questions presented by the case before them and not attempt to establish broader legal rules, which he disapprovingly refers to as "legislating from the bench."

But for some reason Koschnick doesn't criticize Judge Crabb for venturing beyond the specific questions presented in Siefert. He instead purports to conveniently locate within that extraneous verbiage some validation for his ill-concealed political axe grinding.

This "judicial philosophy" is apparently adjustable to whatever Judge Koschnick finds accommodating, wherever he can find it, and, in this latest instance, whether it says so or not. In that respect, he's far more of a "judicial activist" than his political opponent ever was.

* Dutifully trumpeted by the Milwaukee Journal-Sentinel along with other various organs of the Wisconsin press, which are telling us this morning how Chief Justice Abrahamson must defend herself against Judge Koschnick's spurious accusations of "judicial activism."

Journal-Sentinel reporter and forum panelist Steven Walters even went so far as to demand from the Chief Justice a response to Judge Koschnick's charges of being "60% pro-criminal," to which a perfectly appropriate rejoinder would have been: 'Because they are idiotic, fallacious, pandering, methodologically flawed, and, most importantly, deliberately misrepresentative of the role of the court.'

But fortunately Chief Justice Abrahamson is by an astronomically ginormous measure more diplomatic than I.

March 11, 2009

It's too cold to harass topless women

So Ralph Ovadal is subsidizing Madison public transit. Personally, I'd take being called a fool by Ralph Ovadal as a compliment. But how old Joseph Ratzinger takes to being called the Antichrist, I cannot say.

It's nice to see Ralph back in the news. He's always good for a laugh.