January 31, 2011

Liberals in denial now just flat out hallucinating

Or 'tweaking' as the kids might say

The liberal Beltway pundits' reaction to this afternoon's order* of the United States District Court for the Northern District of Florida has been uniformly ridiculous. Here are a couple of special gems.

This is the Interstate Commerce Clause:
The Congress shall have Power To ... regulate commerce with foreign nations, and among the several States ...
This is the Think Progress Wonk Room:**
The [interstate commerce] clause as written gives Congress the power to regulate economic decisions ...
As you can see with your own eyes that's pure, unsupported fantasy.

Astonishingly, this claim appears on the immediate heels of Wonk Room's complaint that the inherent question of what counts as commercial activity and what doesn't — and, therefore, what it is that's subject to regulation — is a red herring because "the actual text of the Constitution makes no mention of such a difference."

And then goes and makes up this stuff about "economic decisions."

This is the Necessary and Proper Clause:
The Congress shall have Power To ... make all laws which shall be necessary and proper for carrying into execution the foregoing powers ...
This is the Washington Post's Greg Sargent, quoting Louis Seidman, a Georgetown University law professor:
[Seidman] argued that the Constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets.
Ye gods. Thank heavens for the roundball programs.

Among those foregoing powers is the power to regulate interstate commerce so first, you have to find that power. Otherwise there's nothing to carry into execution. What a brute force non sequitur.

There is obviously no such "explicit provision" there, or anywhere.

Finally from TPM, this strangely persistent myth:
Legal experts across the spectrum largely held that a Constitutional challenge was futile.
Then they were not much of an expert, lemme tell ya.

* .pdf; 78 pgs. digested & mocked by liberal pundits in seconds flat.

** Bonus: Vinson cops to borrowing verbiage from hate group

Liberals in denial update

The Atlantic's Andrew Cohen calls today's expected ruling in State of Florida v. DHHS "a stray decision by a conservative trial judge."

Don't overreact when the judge brutalizes the law, advises Cohen, while he suggests that as many as seven U.S. Supreme Court Justices could be sympathetic to the Obama administration's unprecedented expansion of Congress's power to regulate interstate commerce.

A candy colored clown they call the sandman
Tiptoes to my room every night .....

January 29, 2011

Scott Walker accused of voter suppression

By the very editorialist scribes who endorsed his candidacy:
Photo ID advocates say the measure isn't about voter suppression. We say: Prove it.
Got that? The burden is on Governor Scott Walker to demonstrate that he's not trying to suppress the vote by requiring photo ID.

A reader sympathizes:
The GOP won't stop until only white, male property-owners can qualify to vote.
Or, more politely, restoring the "original intent of the Framers."

In other constitutional news, the WPRI senior fellow Mike Nichols is "nauseated" by the Sixth Amendment right to assistance of counsel.

I've heard it said many times that among the most strident proponents of the document are a number who soon lose their stomach once they begin taking into account its implications.

The rest are liberals.

Ayn Rand on the dole

Novelist secured SS and Medicare under an assumed name

And advised everybody else not to. How unique. Wisconsin politicians Paul Ryan and Ron Johnson are both very great fans of Ayn Rand.

Blaska if you love that corporation so much

Then why don't you marry it?

Madison, Wisconsin's lonely wing-nut* David Blaska is weeping o'er the plight of courageous Justice Samuel Alito. Puffs Blaska:
The President crossed the line of propriety in his [SOTU] address last year. And violated the separation of powers.
Such a violation occurs when one branch of government unlawfully usurps the power of another. Only the Good Lord knows how Obama's remarks fit that bill in the columnist's roiling right-wing amygdala.

Blaska is defending Citizens United v. FEC, in which a majority of the U.S. Supreme Court affirmed that corporations are persons, that speech is money, and that the former may "speak" the latter without limit, exactly as the First Amendment has always plainly instructed.

Anyway here's Obama:
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.
And here's Justice Stevens:
If taken seriously, [the majority's] assumption that the identity of a speaker has no relevance to the Government's ability to regulate political speech would lead to some remarkable conclusions. ... More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could "enhance the relative voice" of some (i.e., humans) over others (i.e., nonhumans).
Follow the logic, is what Stevens is saying. It's the majority's own logic, the Court's own logic where corporations = persons and money = speech. That's where it leads, because the other laws only forbid participation by foreign individuals, not corporations.

And obviously the dissent contains any number of references to reversing a century of law, which Obama was also repeating.

Blaska's is the perfect example of right-wing obsession with Obama gone far beyond either rational or healthy, where simply paraphrasing an opinion of the Court becomes a separation-of-powers violation.

More concerning is Blaska's derangement-of-senses violation.

* Ann Althouse is mainly just an enabler of wing-nuts.

January 27, 2011

DiMotto on Daubert in Wisconsin

Courtesy of Milwaukee County Circuit Judge John J. DiMotto, a succinct rehearsal of the law of expert witness opinion testimony.

WMC: Still dissembling after all these years

Walker bill does little to improve State's "honesty climate"

So Wisconsin Manufacturers & Commerce is overjoyed its "tort reforms" were signed into law by Governor Scott Walker this morning. According to WMC vice president James A. Buchen:
The Wisconsin Supreme Court created the ["risk contribution" theory] standard allowing plaintiffs to sue any lead paint manufacturer that sold paint in the state without proving which product caused the harm.
That is simply not true. The Wisconsin Supreme Court did not "create" the standard at all but rather adopted it from other jurisdictions in 1984 in the case of Collins v. Eli Lilly & Co.:
We emphasize, however, that the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff's mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES. If the plaintiff is able to prove these elements, the plaintiff may recover all damages from the one defendant.
Mr. Buchen needs to read this opinion, including especially footnote 10, and stop dissembling about the court's 2005 lead paint decision.

Even the dissenters to the latter decision, whose beef was not with risk contribution per se but rather its application to the lead paint defendants, acknowledged that "this case clearly does not fall within the theory of risk contribution originally formulated in Collins."

Emphasis added. It's remarkable that Buchen could have overlooked this unequivocal acknowledgment, as other portions of that dissent have made their way into local conservative Republican mythology.

And those two dissenters included the still-incumbent Justice David Prosser, who "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." Quote, unquote.

Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign* in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.

Indeed, were it not for Collins v. Eli Lilly & Co.'s "validity," there would have been no Thomas v. Mallett for WMC to complain about.

* Quite obviously Buchen's and WMC's obsessions with Thomas v. Mallett are focused on its author, Louis Butler, whose pending nomination to the federal bench is opposed by the WMC klatsch.

In 2008, WMC ran 3,069 television advertisements assailing a Butler dissent in a Sixth Amendment case, whose historical and legal principles were subsequently affirmed by Justices Scalia, Roberts, Thomas, Alito, and Kennedy, the first four, at least, being among the most revered figures in the conservative pantheon. The teevee spots represent a monument to sheer political irrationality and bad faith.

Wisconsin Supreme Court quote of the day

[T]he justices don't remember what they voted on, don't remember the memos they read, don't remember the oral presentations that were given. — Justice Ann Walsh Bradley
"Prosser, Roggensack, Ziegler and Gableman* have called for creating a finance committee ... that would chip away at the authority of the chief justice ... "**

Stay tuned (Monday, Jan. 31 at 10:30 a.m. Madison time).

* The so-called "conservative bloc."

** 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.
— Wis. Const. art. VII, § 4, ¶ 3

January 25, 2011

Most embarrassing "SOTU Reax"

Goes to National Review "senior editor" Ramesh Ponnuru:
Great: President Obama is open to one of the Republicans' crummiest ideas. There's no need for a federal takeover of medical-malpractice rules.
Just a bit. Late. For that.

h/t The Daily Dish, which actually takes this character seriously.

Runner-up: Exclusive video of CNN hiring Erick Erickson

Humor police stand guard at Journal-Sentinel

Here is the Google cache-retrieved text of a reader comment that appeared under this story earlier today, and was soon removed:
How bout quit spendin our taxes all willy nilly and use it fer sometin useful like a new gun stor. We need to arm areselfs against them criminals cause theys already gots guns.
Obviously a satire, but to whom in the world is that offensive?

In fact the second sentence is an oft-repeated article of faith among Second Amendment aficionados (and is supported by the case law).

A little further down, another commenter inquires of the since-disappeared comedian, "are you related to Michael L. Musgrove"?

Musgrove is the man charged last week with transmitting a threat via Craiglist. Yet there's clearly nothing threatening in the deleted jape.

January 24, 2011

Justice regrets giving law clerk that day off

Thomas had omitted details of his wife's earnings in what he wrote was a "misunderstanding of the filing instructions."
Deeply disturbing admission from the Court's leading "textualist."

Kudos to Rahm Emanuel

He has his piano tuned every six months.

Two judges don't find that helps establish Rahm Emanuel's Chicago residency, but one thinks it's proof Rahm never abandoned Chicago.

Federal court denies J.B. Van Hollen's "futility"

On January 19 Judge Roger Vinson of the U.S. District Court for the Northern District of Florida granted Wisconsin et al's motion to join a lawsuit challenging the constitutionality of so-called Obamacare.

The defendants, the federal Department of Health and Human Services and others, opposed Wisconsin's motion on the grounds of any one of the following: futility, undue delay, bad faith, dilatory motive, or prejudice to the defendants. Wrote Vinson in ringing endorsement: "The proposed amendment would not be futile."

Indeed, the only amendment to the existing civil complaint is the addition of Wisconsin Attorney General J.B. Van Hollen's name to the case caption — the title block at the top of the document listing the names of the parties — along with five other State AGs or governors.

So legally insignificant is Van Hollen's amendment that Vinson "relieve[d] the defendants of the obligation" of even bothering to reply (normally, amended complaints require a written answer).

That is, it's at best the merest of mere formalities and at worst a political stunt, but one which apparently doesn't count as "bad faith."

* Amusingly for fans of judicial politics, the law of civil procedure directs that judges' assent to the admission of amended complaints is to be "freely and liberally given," according to Vinson's paraphrase.

Van Hollen now rests to pray that the said free and liberal giving, politically useful to him in this instance, ends at some point during the giving of Congress's power to regulate interstate commerce.

January 20, 2011

"Tort reform" rammed down our throats

Remember that notorious expression?
The bill is likely to become law before any practice sections have an opportunity to finish studying the bill and provide feedback on those provisions to the Legislature.
Not even the State Bar of Wisconsin knows what's in Walker's bill.

What does that tell you?
Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and legislature. — David Prosser for Supreme Court
Earlier: Prosser will "complement" GOP political branches

Let's try not to be too cynical out there.

Wordsmith likes the alliteration

New column: Quid Pro Ricardo
Except that's not alliteration, nor does it make much sense.*

Quod per Ricardo probatum (What is proved by the Ricardo)
Respondeat Ricardo (Let the Ricardo answer)
O. pinio! O. Pimentel!

* Something for Ricardo? Tit for Pimentel? Why only one?

Why Wisconsin needs to reform those torts

If you're suspicious that Governor Scott Walker's laundry list of "tort reforms" is nothing more than a political sop to his corporate sponsors and big campaign donors, check this out:
Of those who testified in favor of the bill, not one shared a story of how current law had crippled their business, noted Sen. Fred Risser, D-Madison, Tuesday when the full Senate debated and eventually approved the bill.*
Tort reform supporter bends truth about own legal history

It would appear your suspicion is fairly well grounded.

If you desire to retool the Wisconsin rules of evidence, shouldn't you be required to provide at least some Wisconsin evidence as to why?

By the way, further to Walker's claims that "tort reform" will improve Wisconsin's fiscal climate, the State Department of Administration's Division of Executive Budget and Finance pronounced "No State Fiscal Effect" upon its review of the governor's proposals (.pdf; 6 pgs.).

* Straight party line.

Van Hollen: Governor Doyle saved us a mint

'Scott Walker is not the boss of me.'

Here's Wisconsin's Attorney General J.B. Van Hollen on the YouTubes jawboning with the Fox News Network's Greta Van Susteren about how excited he is to have the approval of his current governor, Scott Walker, to join a Florida lawsuit challenging the constitutionality of the Patient Protection and Affordable Health Care Act.

"As a practical matter," advises Van Susteren, "it doesn't cost you a dime to join in this, or even if you didn't join in it and the States won, you would reap the benefits of it, at least the benefits as you see it," while AG Van Hollen nods in agreement throughout.

As to Van Susteren's inquiring what substance Van Hollen can bring to an action that is already this far along, Van Hollen claims a "critical mass" is achieved where 26 U.S. States are listed as plaintiffs.

That's nonsense, obviously, as more parties voicing the exact same argument doesn't confer on that argument any additional validity.

In fact the AG just got done stipulating to as much with the Fox host.

Van Hollen goes on to plead that "it could have been political suicide, quite frankly" when he asked the former governor of Wisconsin if he could join the suit. That executive dismissed Van Hollen's request way back in March 2010, calling it "a frivolous and political attempt to thwart the actions of Congress and the law of the country."

Turns out Democratic Governor Jim Doyle saved Wisconsin a pile of time and money, according to Van Hollen's own nodding admissions.

And apparently the attorney general is now busy making the rounds — of Fox News, because he'll be back on there again this morning.

Bonus video: JBVH yelling at a Tea Party. "Fight ... kill ... fight."

January 19, 2011

Don't be doing Louis Butler any more favors

Raves the Madison Capital Times:
Southern Republicans have used parliamentary maneuvers to block approval of a highly qualified African-American ... a handful of Senators from the old Confederacy ...

No serious observer doubts that, were Obama to nominate a white male who was less qualified and less committed to a constitutionally based application of the rule of law, the Senate would move quickly to confirm the president’s pick.
While Louis Butler is unquestionably highly qualified to the federal judiciary, I fail to see how labeling his detractors a gaggle of unreconstructed white supremacists advances his cause at all.

True, Jefferson Sessions is an insufferable dingbat and he and his Republican colleagues' obstruction of Louis Butler's nomination is borderline irrational, but the Capital Times's desire to relitigate the U.S. Civil War fails to account for the Senate confirmations of Ojetta Rogeriee Thompson, Joseph A. Greenaway, Jr., Andre M. Davis, or James A. Wynn, Jr.,* all of whom are African-American judges.

Those are some of President Obama's nominees to the Circuit Courts of Appeals. The Capital Times's editors can do — and should have done — their own homework with respect to the District Courts.

* Marquette 79.

Doth not Priebus bootless kneel?

Steele says he now believes Reince Priebus, also the chairman of the Wisconsin GOP, was secretly plotting against him for months despite what appeared to be unfettered loyalty.
Should have got a dog.

January 17, 2011

Read this twice

The request for a change of venue usually comes from the defendant in a case, since he or she has a constitutional right to be tried in the district where the alleged crime took place.
Still don't make any sense.

They move because they have a right to an impartial jury. In fact if they move to change venue they waive — not invoke — their right to trial in the district "wherein the crime shall have been committed."

(There's no "alleged" in the Constitution.)

In either event, Alex Kozinski is prepared:
"I selected Judge Burns because of his ability and his experience, and partly because if he had to go to Tucson and still handle his caseload, he could get there quickly," he said.
The federal government says it wants Jared Lee Loughner's trial — if there is one — to stay put, in the District of Arizona. Wherever it may end up, I expect the prosecutors are highly motivated to seek the death penalty and Loughner's legal predicaments will ultimately reduce to whether he is competent to be executed, to put it bluntly.

MLK Day is an "insult," says Wisconsin senator

Bet you'll get the archetypal wing-nut's machine on Christmas.

January 16, 2011

Good reason to overhaul the law

Studies show Wisconsin is not particularly litigious, but the State's reputation with businesses is otherwise.
— Milwaukee Journal-Sentinel editorial
Kind of like a superstition then.

Ironically, Scott Walker's proposed reforms would have the effect of admitting into evidence those "studies," but disallowing vague, amorphous opinions of the State's "reputation" among businesses.

January 14, 2011

Jeff Stone, he's the photo ID guy

Dept. of glass houses:
Just hours before the deadline for challenges, the Democratic Party of Wisconsin has identified hundreds of invalid signatures submitted by Scott Walker clone and GOP candidate Jeff Stone in the race for Milwaukee County Executive. Of 2,888 submitted signatures, the DPW identified 653, 26% of the total, that were invalid under Wisconsin statutes.
"A Republican bill, sponsored by Jeff Stone, would require voters to show photo identification at the polls." — Channel3000

h/t WisDems.

January 12, 2011

Great moments in inappropriate metaphors

If you liked the crosshairs, you'll love the blood libel.

Because dredging up thousand-year-old religious hatreds has traditionally been accepted as the initial step toward healing.

Sarah Palin purports* to be an aspiring political leader.

* Her word: Whereas the blood libel against Palin is very real, condemnations of Saturday's violence are merely "purported."

It's clear now who the real victim is. Good to know.

eta: "Conservative thinkers" victims of "ongoing pogrom"

So that's what Charlie Sykes is for

Milwaukee Journal-Sentinel lead paragraph:
A regulatory reform bill proposed Tuesday by Gov. Scott Walker would place new restrictions on wind development and calls for a special exemption for a Neenah-based businessman and contributor to Walker’s gubernatorial campaign.
Message control isn't quite turning out to be Walker's bag, is it.

January 11, 2011

Early Scott Walker "tort reform" notices mixed

Here's Wisconsin Governor Scott Walker, already placed on the defensive versus the elderly and the disabled, via the State Journal:

"But Walker and other supporters say the legislation will make the State more business friendly and fight so-called frivolous lawsuits. Walker said the bill would improve the 'regulatory climate' and 'lawsuit climate' hindering economic growth in the State."

Hello? Is there a communications director in the house?

This will be an entertaining debate to follow. Walker published his proposed revisions last week and early on is facing the criticism of affected plaintiffs,* but all he musters in response is sloganeering.

Granted, these are not the easiest concepts to explain, let alone sell. So what will be intriguing is to see whether Walker can do either.

* Et al.

Justice Scalia in new foreign law mêlée

Senate Republicans' pearls clutched — Vapors strike Jon Kyl
When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase "'in addition to and not in derogation of'" the last part adds nothing but emphasis. Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607. — Ransom v. FIA Card Services
And how typical that he would choose to defer to the House of Lords.

h/t Scott Lemieux ("Culture war rube-running" — Got to love it).

Coarseness of debate more recent than reported

After learning yesterday that Journal Communications, Inc. was seeking ostensibly to mitigate "the coarseness of our country's recent political debate," I tuned to JCI's flagship medium wave radio station, 620 WTMJ in Milwaukee. I can only stand a few minutes of the subject drek, but apparently the clip goes on for a quarter of an hour.

Samples from the first 75 seconds:
This lunatic, moron, left-wing pothead fanatic who loved all of the left-wing literature ... Why don't we have Congressmen banning Wicca in the army? ... The man was a stonehearted Devil worshiper ... The day Obama took power, poison politics took power in America. Obama has poisoned the body politic with his Marxist-Leninism. That's the poison politics.
Et cetera. (FYI: Marxist-Leninism = left wing.)

I'm not suggesting Jared Lee Loughner hasn't merited a large degree of invective, or that the press coverage of Saturday's horrific events was perfectly objective throughout, or even that there isn't some twisted veracity to M. Savage's contention that "conservative radio was a reaction to the poison politics of the left wing in this country," but it's painfully disingenuous for JCI to bemoan the "coarseness" of political debate while it's airing this clown's rants three hours a night.

In addition to its other similarly-minded "personalities."

Reince Priebus flees from hard challenges

Other RNC candidates faced and answered tough questions

But not Wisconsin's own Reince Priebus, says Bill Kristol's organ.

Earlier: Priebus owns five guns.

A Scott Walker privatization success story

Former Milwaukee County executive's "budget crisis" was a fake
The ruling calls for immediately hiring back the laid-off county workers with back pay, with any unemployment compensation or wages from a new job subtracted. It also called for a guarantee of at least 180 days of work — the amount of time that [the arbitrator] said should have been given to the security guards' union to react to Walker's privatization plan.
And the arbitrator said Walker grossly overstated the savings of his move to replace county employees with Wackenhut contractors.

Much more here.

Scott Walker has since left Milwaukee for Madison, the State capitol, where he plans to privatize the Wisconsin Department of Commerce.

If Walker can botch a $125K county cost estimate by 53 thousand dollars (42%), just think what Governor Walker can do with millions.

Also, Wisconsin's leading authority on the law of evidence is none too impressed with Walker's adjustments to the State law of evidence.

Blinka's office is about two blocks from Walker's old one. You'd think Walker might have dropped by to gain some insight. Evidently not.

January 10, 2011

Journal Communications Inc: We're not helping

It's clear that the coarseness of our country's recent political debate is not helpful.J-S editorial page
Yet Michael Savage's nightly show on WTMJ airs in about 15 minutes.

Van Hollen: To be or try to be

J-S headline: "State to join federal health lawsuit, Van Hollen says"

But see J-S body copy: "State Attorney General J.B. Van Hollen told the Associated Press that Wisconsin will try to join a federal lawsuit in Florida against the law along with three other states."

Attorney General Van Hollen has yet to explain what additional persuasiveness Wisconsin's participation can bring to the lawsuit, other than this: "I really do believe it makes a difference," he said.

Not so likely, at this point.

eta: In a later revision to the story, Van Hollen told the paper he'd assign two attorneys on a "very part-time" basis, sounding an awful lot like an admission he's got little or nothing substantive to add.

So, symbolism or shambolism, you make the call.

An exemption to death penalty opposition

According to the U.S. Code Title 18 Section 1114, the murder of a federal officer or employee becomes a capital punishment-eligible offense when committed "while such officer or employee is engaged in or on account of the performance of official duties."

While some reports put Judge John M. Roll at the scene of Saturday morning's horror by coincidence, the federal criminal complaint alleges that Judge Roll had been notified of the event in advance by Rep. Gabrielle Giffords' staff and was attending to discuss "issues related to the volume of federal cases in the District of Arizona."

The carnage of January 8 was more than a senseless attack on individuals by an unbalanced paranoid, it was an act of brutal violence against the institutions of civil government and all the people. We don't know yet whether prosecutors will seek the death penalty for the accused, but it's not going to trouble me if they do.

Incidentally, the U.S. Constitution clearly authorizes capital punishment. While I'm sympathetic to evolving standards of due process, "deprived of life" still means the same as it did in 1791.

January 8, 2011

GOP foxes guarding the hen-basement

Lawyer: Residency depends on habitual location of unconsciousness
"He used to live on the third floor, but that's another storey."
— attributed to Jerome Lester Horwitz
Freshly minted 44th District Republican Assemblyperson* Joe Knilans's home is in the 45th Assembly District, but Knilans says he'd been dwelling in his brother's 44th District basement for at least ten days in advance of his official swearing-in, as Wisconsin law requires:
Knilans claims a Voting Address of 1516 Winchester Place ... [but] the City of Janesville Property Assessor records indicate that the property does not have a finished basement ...
Complaint (.pdf).
Because [Republican] Joe Knilans has been sworn in, the [Republican] attorney general's office would likely pass on its findings to [Republican] leaders in the [Republican-controlled] State Assembly to determine if Knilans is qualified to serve.
Janesville Gazette: Peripatetic pol pulls up stakes one more time

Related: Sex offender can't count park bench as residence
Interesting and arch: Jethro Tull meets Anatole France

* Mr. Knilans is a sponsor of this property relocation proposal.

January 7, 2011

Sad Ron Johnson is sad

Dateline DC: "Ron Johnson said today he's unhappy."
"My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts," Ron Johnson, who took office on Wednesday, said in a statement.
In a startling abandonment of current Tea Party protocol, Ron Johnson failed to cite the constitutional provision that requires the president to seek the advice of individuals who aren't even Senators yet (the nominations were submitted on the preceding Monday).
Johnson said he's currently opposed to both nominations.
Big surprise from Johnson, who testified last year the mere thought of Barack Obama nominating federal judges made him "depressed."

So consider Ron Johnson consulted. And still sad: Pass the tissues.

Meanwhile Ron Johnson's Tea-Fox-Republican fellow travelers in the U.S. House of Representatives got themselves so excited about grandstanding astride the Constitution* they reportedly both cast unconstitutional votes and violated the Congressional rules of ethics.

* PC-Expurgated version.

Hey Daddio

I don't wanna go
Down to the basement.
There's somethin down there.*

Reporter/musician/auteur Emily Mills's new RSS feed is here.

* Wisconsin State Rep. Joe Knilans (R-Janesville [vicinity]).

Wisconsin: Open for grim irony

Reports the Milwaukee Journal-Sentinel, "under a job creation proposal by Gov. Scott Walker to partly privatize the agency,
some 340 Department of Commerce workers would no longer be State employees."
Fired, as we used to say, sans the dainty euphemisms.

Governor Walker in his benevolence had previously indicated he would try to hire back some of the employees under his Hoosier-like privatization scheme "if" he could find any good ones: If.

That gives you some insight into the right-wing mentality of the new administration, whose assumed premise is that a pool of 340 State workers must contain zero "good ones," simply by definition.
The legislation said that the salary for the head of the Economic Development Corp. would be determined by the agency's board. That appeared to remove a current cap on the salary of the state commerce secretary now set at $135,300.
And that completes the insight: fire workers, and raise executive compensation. Et voilà!, it's a Scott Walker "job creation proposal."

Nice message.

January 6, 2011

Gutter Press

What else to make of a newspaper columnist deploying accusations that not only is Russ Feingold "OK with infanticide" but endorsing the even more scurrilous claim that Feingold is in fact "Pro-infanticide."*

Both are definitely new lows for the local organ. Award-winning.

They're lucky Russ Feingold is a public figure.

* Where this charge originates, a sympathetic penitent remarks that Marquette University Law School's inviting Feingold to conduct an upper-level course in U.S. Senate procedure has caused Milwaukee archbishop Jerome Listecki to "truly endure the sufferings of Christ."

But for the nails and the crown of thorns, we hope.

Rarest of all Earth's species sighted in Milwaukee

An actual rational and informed Journal-Sentinel reader comment.

WMC pet outrage tops list of "tort reforms"

Wisconsin Manufacturers & Commerce v. Eating Lead Paint Chips

According to the Legislative Reference Bureau's review of Governor Scott Walker's proposed list of litigation reforms (.pdf; 31 pgs.):
In Thomas v. Mallett, 2005 WI 129, the Wisconsin Supreme Court held that the manufacturers of white lead carbonate, which was used as a pigment in paint, were liable for the injuries caused to a child who had ingested paint that contained the white lead carbonate, although the child could not prove that a particular manufacturer produced the white lead carbonate that he ingested.
That isn't what the court held. The court held that the Wisconsin constitution did not bar the child from pursuing his case against the pigment manufacturers even though he had already won a judgment against the buildings' landlords and that the child could pursue that case according to the theory of risk contribution established in an earlier (1984) Wisconsin Supreme Court case, Collins v. Eli Lilly Co.

Similarly in Collins, the plaintiff could not identify the specific manufacturer of synthetic estrogen her mother was prescribed and had taken during her pregnancy and which caused Collins' injuries.

The Mallett court further held that the child's other claims of conspiracy and enterprise liability were faulty and could not proceed. But that court did not "hold" that any paint pigment manufacturers were liable, properly leaving that determination to the trial court.

It's also noteworthy that the two dissenters in Mallett, Justices Wilcox and Prosser, "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." What they objected to was its extension and application to the facts in Mallett.

Even the dissenters — who were as forceful as could be — affirmed only that the pigment manufacturers "can be held liable for a product they may or may not have produced" and only then as one (potential) "result" of the majority's reasoning. Emphasis added. And in fact they weren't, because the action the Mallett court allowed the child to continue against those manufacturers was ultimately dismissed.

It may be a fine distinction but it's an important one.

There is a big difference between saying that a court held a defendant liable and saying that a court held that a plaintiff is not constitutionally barred from continuing to pursue a claim based on a legal theory previously accepted and established by the State Supreme Court and, indeed, accepted by the dissenters in Mallett.

So in a very real sense, as Governor Walker and his corporate sponsors attempt to sweep the application of risk contribution theory entirely from Wisconsin courts, they are not only admonishing the Mallett majority, but also the two "conservative" Mallett dissenters, for having accepted the risk contribution holding in Collins.*

And in another very real sense, Thomas v. Mallett was about an injured party's access to justice and reasonable minds may differ, as they say, over whether Mallett inappropriately expanded that access, or whether Governor Walker's proposals inappropriately curtail it.

* There's a Supreme Court election meme for you: "Scott Walker slams Prosser for embracing outlandish liberal activist doctrine."

January 5, 2011

Justice Prosser "tirade" witnesses multiply

Alleges Dave Zweifel in the Madison Capital Times:
[Wisconsin Supreme Court Justice David Prosser] launched into a tirade against witnesses who were there advocating tough rules for judges to recuse themselves when principals in a case had contributed big bucks to their election campaigns.
Witness, singular, and with good cause, as the said witness had lied about Prosser's participation in this case. And that witness was Mike McCabe, who just happens to have provided the anonymously-sourced, unverified accounting of Prosser's "privately made" remarks to a convocation of attorneys. Mighty fishy stuff, if you ask me.

Scott Walker reveals special legislative agenda

His first order of business should be to parse this gobbledegook:
Limiting noneconomic damages awarded in [1] actions against long-term care providers; [2] actions against manufacturers, distributors, sellers, and promoters of certain products; [3] confidentiality of health care services reviews; [4] use as evidence of information regarding health care providers; [5] reporting of quality indicators identifying individual hospitals; [6] homicide or injury by negligent handling of a dangerous weapon, explosives, or fire; [7] criminal abuse of individuals at risk; [8] criminal abuse and neglect of patients and residents; [9] evidence of lay and expert witnesses; [10] damages for frivolous claims; and [11] punitive damage awards.
I've numbered the individual clauses.

Presumably [2] is to be read as leading directly from the prefatory language, i.e., "Limiting noneconomic damages awarded in actions against manufacturers, distributors, sellers, and promoters of certain products." At least, that's what the drafter's use of semicolons would appear to indicate. But then that method of construction collapses, as "Limiting noneconomic damages awarded in confidentiality of health care services reviews" doesn't make any sense at all.

Three of the clauses refer to damages awarded by juries: [1], [2], and [11]. One clause refers to damages awarded by the court: [10] (juries are not empaneled to assess the legal meritoriousness of civil claims, unless Walker is contemplating a new cause of action for filing frivolous lawsuits). Two clauses refer to the rules of evidence: [4] and [9]. Clauses [3] and [5] have something to do with privacy.

Clauses [6], [7], and [8] maybe have some application to the State criminal code, or maybe refer to civil actions. Or both. Who knows, where reference is made to "homicide" and "negligence" in the same breath. Furthermore, negligent handling of weapons and explosives fall into entirely separate categories of defendants' liability.

In either scenario, Scott Walker's proposed adjustments — whatever they turn out to be — hopefully are weighted toward protecting victims rather than corporate defendants. The latter were apparently the objects of his vague campaign promises invoking "tort reform."

On the other hand, the paragraph is presented pursuant to Walker's alleged finding that "Wisconsin has for too long been stifled by burdensome regulation and costly litigation," so perhaps he actually wants to relax sanctions for "criminal abuse of individuals at risk," or else restrict those individuals' access to the judicial system.

Because it's manifestly unclear which of the clauses relate to the introductory language, or how. As a whole, this paragraph of his Executive Order # 1 effectively scans as hastily assembled gibberish.

Related: Prosser will "complement" GOP political branches

h/t Xoff.

January 4, 2011

Getting out while the getting's good

From the annals of unfortunate juxtaposition:

More seriously, the archdiocese's FAQ is admirably candid:
We are in Chapter 11 for one reason: because priest-perpetrators sexually abused minors.
A of M Q & A.

(And the Journal-Sentinel has since changed its News Watch headline to clarify, "Desmond Bishop signs contract extension with Packers.")

Wisconsin's Priebus doomed: Ex-RNC chair

Is what it says here.

Reince Priebus, the Chairman of the Wisconsin Republican Party whose unlimited view of Congress's power to regulate interstate commerce is indistinguishable from Nancy Pelosi's — according to the conservative Republican Base — will last only a ballot or two when the Republican National Committee elects its new Il Duce* on January 14.

Sitting chair Michael Steele, who in happier times was Priebus's bestest pal in the whole world, was expected to bow out first.

Five candidates for the position were interviewed yesterday by wing-nut pundits Grover Norquist and Tucker Carlson, who subjected the hopefuls to such penetrating queries as, 'How profound is your ardor for Saint Ronald Reagan' and 'How many guns do you own.'

"One of our biggest youth movements was Ronald Reagan," replied Priebus of the former president, the oldest in American history, who left the office precisely one month short of his 78th birthday.

Reince Priebus claimed to own five guns, a tiny arsenal by comparison with that of Missouri's Ann Wagner, who owns 16 including an assault rifle, the mention of which inspired an excited burst of applause from the gathered faithful (I'm not kidding).

The candidates also fielded a written question from the National Organization for Marriage's Maggie Gallagher, inviting each aspiring GOP leader to define the scope of their various homophobias.

Priebus's impending doom comes in spite of his promises to "work absolutely like a dog," as much as "five or six hours a day."

* One candidate repeatedly vowed to "make the trains run on time."

January 3, 2011

Wisconsin "tort reformers" on the march

Senator-elect Ron Johnson supports State health-care lawsuit

Nothing says reform like filing a redundant, superfluous civil action.

Johnson's Republican colleagues in Congress vow to do whatever it takes to deny 32 million Americans access to affordable health care.

WISGOP's Reince Priebus in unbelievable outrage

By all accounts, Reince Priebus ain't the sharpest knife in the drawer.
— "Liberty Pundit"

Reince Priebus, the WISGOP chairperson who is seeking to dethrone his former best buddy and current top RNC gaffe machine Michael Steele in an election this month, has got the Base in an uproar again.

Here is Gateway Pundit proprietor Jim Hoft hooting it up via Andrew Breitblart's BigGovernment.com:
The leading candidate in the race — Reince Priebus's law firm supports Obamacare and says its constitutional!
I don't believe Reince Priebus's law firm is the leading candidate in the race, but that's close enough for the Base, apparently.
Yes, you read that correctly.
(Shame about its not being written correctly.)
Reince Priebus's law firm supports Obamacare and says its constitutional.
Boldface (and typo) in original.

This space had found a similar entertainment earlier:

Reince, Priebus & Pelosi LLP.

Arguably fallacious as it is to assign to Reince Priebus his law firm's statement, it's amusing on several levels to see the nut-right deliberately mishandle this information against one of their own.

On the other hand, when the Base discovered Priebus was the "co-author" of a document advising clients on how to obtain the hated federal stimulus funds, another conservative accused Priebus of "scrambl[ing] to scrub" the attribution from the firm's website.

And on a third hand, the firm's advice that the suits challenging Obamacare "have no merit" is mildly comical on its own and I can certainly understand that advice riling the Base especially now that two of the suits challenging the constitutionality of one of its operative provisions are nearing the U.S. Circuit Courts of Appeal.

Several RNC hopefuls debate today. Fox News says it will be ugly.*

h/t Breitblart: Outrageous ... unbelievable.

* But spells Priebus's name every way except for correctly.

January 1, 2011

Il ritorno di Mondo Plaisted

Good thing that was a brief hiatus.

(I did not know Mike was a Salon alumnus.)

Dick Clark translator

I never had a problem understanding Dick Clark. What he said was, "Who put that insufferable 'hip musings' knucklehead on the radio?"*

h/t Whallah!

* Answer: Charlie Sykes.