October 28, 2009

Well, this sure cleared that up

Or: A rule of law, you say? Depends who's asking.

Michael Gableman: Was Caperton a unanimous decision?

Hannah Renfro:* No, it was not.

Gableman: What was the vote?

Renfro: It was a, um, a 5-4 vote, I believe.

Gableman: And were the five members of the majority able to articulate a rule that would carry forward outside of the particular facts of Caperton v. Massey Coal Company?

Renfro: No, they were not. In fact that was emphasized by the dissent.

Shirley Abrahamson: They stated no rule at all, Ms. Renfro?

Renfro: Well, they stated a rule ...

Abrahamson: They stated a rule that you might not think is effective; the dissent didn't think it's effective. But that's the purpose of a dissent, to knock it around. Right?

Renfro: Yes.

Abrahamson: So they did state a rule, right?

Renfro: Yes.

Abrahamson: And what was the rule?

Renfro: The rule in that case was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.**

Abrahamson: An objective, reasonable person standard.

Renfro: Yes.

Abrahamson: Not only actual bias but the appearance of bias.

Renfro: Yes.

* Attorney for the Wisconsin Realtors Association.

** Initiating the solicitation of this response was not exactly a bold strategic move by Gableman, under the circumstances. (However, his attempts at divining the shadowy presence of George Soros in the courtroom were likely a big hit with the tea ceremonialist crowd.)

The Chief Justice, on the other hand, is one sharp cookie.

Bonus Question: Was Coulee v. LIRC a unanimous decision?
Bonus Answer: What in the world difference does it make?


Brett said...

Wasn't Patane 5-4? And Siebert?

illusory tenant said...

Highly unusual, those 5-4 splits.

Display Name said...

Unanimous? Well, of course it would matter. Once you've got a clear majority it would generally require less campaign contributions to keep them in place. Mission accomplished!

illusory tenant said...


Brett said...

If Gableman is troubled by Caperton because it was 5-4, one would think he would have been equally troubled by Patane being 5-4, making his full brunt attacks on Knapp II seem even more hypocritical. We're (potentially) stuck with this guy for 9 more years?

illusory tenant said...

Interesting (telling, even) that the Evil George Soros line of questioning wasn't similarly addressed to WMC.

Scot1and said...

Shirley is one of the best cross-examiners that I have ever seen.

illusory tenant said...

'Are you now or have you ever been a member of opensecrets.org' was well played.