June 10, 2009

Understatement of the year decade

Justice Michael Gableman has been asked to step aside in a criminal matter because he — and groups supporting him — said he was tough on crime.
— law professor Rick Esenberg
There's just a wee bit more to it than that.

And the hyperbolic coup de grâce:
If that works, there will literally be no one who has ever had a contested race who can sit on a criminal case.
Good grief. As clearly evidenced by his unprecedented ethical imbroglio, nobody has conducted a race like Gableman did.

As a prominent and assiduous Gableman enabler, Rick Esenberg should know that as well as anybody. Literally.

eta: Esenberg claims Paul Soglin (Wisconsin '72) is not a lawyer, although Esenberg is correct in his view that Soglin's reaction to Caperton v. A.T. Massey Coal Co. is baselessly "triumphalist."

The factual circumstances specific to Caperton are so over-the-top outrageous, so blatantly corrupt, they're unlikely to be repeated.* And it's even unlikelier that anyone will succeed in applying Caperton to a set of facts any less over-the-top outrageous and corrupt.

Especially important — and something few, if any, commenters have mentioned thus far — are the questionable gyrations in reasoning that Justice Brent Benjamin had to perform in order to reach the result favorable to his benefactor, A.T. Massey CEO Don Blankenship.

But not for those, his disposition may well have survived unscathed.

Caperton is a one-off, much like Bush v. Gore. The Supreme Court couldn't not let the West Virginia situation pass without comment.

The handwringing on both ends of the spectrum is much ado about nothing and as I said earlier, the most significant observation made by the majority was to reiterate that State courts are essentially unbound by federal law from devising their own recusal standards.

* I occasionally allow my idealism to override my cynicism. But it admittedly requires some effort.


KathleenKMM said...

I love it. Esenberg apparently can't figure out how to use the search feature on Wisbar. I have to say some of the ridiculous stuff he posts makes me feel okay about turning Marquette down even if that means I don't have the prestigious "double M" that's so coveted in this part of the state.

Terrence Berres said...

If one were to pick on the Law School, it would be by not including it in a reference to the "prestigious double M".

Rick Esenberg said...

Mr. Tomatoes is, of course, entitled to what I am sure is a well considered and fully informed opinion. Good thing for me that people of all political persuasions who actually get to decide things like whether I get work, get hired, get invited to speak and write and the students who write my course evaluations seem to feel differently.

Tom, we all agree that the Gableman ad was bad and, had I anything to do with the Gableman campaign(I did not), it wouldn't have run.

But the recusal motion is not based on just the ad and, if it was, it would be even weaker than it is. You have yet to explain what principle would require recusal based on [positions that a candidate has a constitutional right to take. Remember that the Chief Justice ran ads that actually claimed she was an ally of law enforcement.

KathleenKMM said...

Mr. Tomatoes is a lady who still doesn't regret her decision.

RobH said...


You are smarter than that.

Perhaps you have overlooked the Supreme Court's recognition in the White case that, although a judge may have a right to promote a particular agenda, a judge does not have a right to be biased against one party to litigation and in favor of another party, as Candidate Gableman clearly did in basing his campaign, not on a judicial philosophy, but on siding with law enforcement and opposition to those accused of crime and their attorneys.

Recusal as a result of the exercise of one's free speech rights is not punishment for the speech but necessary protection of the litigants' rights. Just as the First Amendment does not require that a speaker suffer no consequences from the exercise of that right (whether public outrage, ridicule or the like), that Amendment does not create any right of a biased or apparently biased judge to undermine the litigants' due process rights by deciding a particular case. The majority's discussion of bias in White makes that clear and the concurrence, by Kennedy, I believe, makes it explicit that recusal is appropriate in such circumstances.