April 5, 2011

Mike Plaisted for Wisconsin Supreme Court

If you've been following this little corner of the internets for awhile, you know it gets geared up — almost to the point of obsession — during State Supreme Court elections. Not this time around. But I've been paying close attention, albeit with less interest than horror.

I don't think it's the wisest idea among alternatives to subject positions on the court to popular elections, and this one is proving why, because among those alternatives is merit selection, and the related events unfolding are turning merit selection on its head.


While Assistant Attorney General JoAnne Kloppenburg is certainly qualified to the position well beyond the de minimis requirements, if you strip away all the horse hockey that's been played out by all manner of individual and groupthink third-party entities on both sides of the partisan divide — and by the candidates themselves, occasionally — and evaluate the two hopefuls on those merits which are most relevant to consider, then Justice Prosser wins hands-down.

The reason I say this is because I have heard barely a statement from Atty. Kloppenburg about any decisions of a court or any legal doctrine or any judicial philosophy whatsoever, apart from the ad nauseam boilerplate, "I promise to be fair." Perhaps she is a scholar, but she's produced no indication of scholarship and she's been presented with innumerable opportunities and declined — putting it politely — to do so at each. One can't simply move ahead and assume scholarship.

It's nothing personal — as I say, I would expect her to perform admirably — and I don't blame her for playing it safe by not getting into the various meats and the sundry three-pronged potatoes, if that is what she's doing, but I'm just not hearing from a Supreme Court candidate what I should expect to hear, which is, something more than a superficial familiarity with the core businesses of the court: absorbing, expounding, and developing legal doctrine.


And when I heard from the candidate, as we did during the jockeying for position leading to the February primary that Atty. Kloppenburg sought to make an issue of the Mike Gableman imbroglio but then admitted she hadn't even reviewed all the briefs in Gableman's ethics case (and there aren't all that many of them) I became suspicious, and unfortunately that suspicion has never been sufficiently allayed.

So to begin with, there's that.

Next, there is this: The currently popular portrayal of Justice Prosser as some kind of unhinged misogynist nutcase is patently ridiculous.

I have met him and I have spoken with him, and you couldn't ask to meet or speak with a kinder and more considerate fellow. I have also heard him speak in a professional — as opposed to electioneering — context, reviewing the cases from the court's previous terms.

The guy clearly knows his stuff and has given a lot of thought to that stuff over the course of a lot of years. Whether your humble correspondent agrees with his methods or his results is of no moment to any evaluation of Justice Prosser's knowledge and legal acumen. He's unquestionably got the judge-chops. (That's understatement.)

Super Soaker

I love me some Scot Ross and OWN, but if all you can find to prove up the proposition that the incumbent is the temperamental equivalent of Genghis Khan are clips of the justice getting totally justifiably angry with Mike McCabe when the latter strode into the justice's courtroom fresh from lying recklessly about the justice in some blog-opinion pieces, then you can't have much of a case.

If I was Justice Prosser, that video would have been of me chasing Mike McCabe around the gallery with a Super Soaker or having one of those theatrical 10-ton weights lowered quickly onto his head as he stood at the lectern. So, more power to Prosser on that account.

It's been revealed that Justice Prosser evinced a malicious disrespect for the Chief Justice, and for her office. In no way am I defending that — it's indefensible — but that there court has some serious issues and Justice Prosser at least once lost his sh*t as many of us all-too-human beings do on occasion. For anyone's edification, those serious issues are adequately preserved in the public record.

A total biotch-explosion

All of the court's open administrative hearings are archived at WisconsinEye, and there are many moments of viciousness, just less overt than Prosser's total biotch-explosion. (Easily the most resentfully sarcastic and disrespectful toward the Chief Justice is Mike Gableman.) So it's hardly surprising Justice Prosser blew his stack; what's unacceptable is the manner in which he blew it.

However the presentation of Justice Prosser as a "moderate" and a swing vote on the court is almost equally misleading. There are a couple of ways to approach a court's term of cases: one as a scholar of the law, and one as a political scientist. Ideally, you approach the court's body of work as both. Simply compiling cases according to percentages of who sided with whom can be wildly inaccurate. We saw a good example of this in the hopelessly unconvincing Journal Communications, Inc.* endorsement of Prosser over the weekend.

Those cited percentages lend little credence to the ends to which they were put by Journal Communications, Inc. (although they're well understood by their compiler, David Ziemer, who incidentally is one of the sharper legal writers around, despite having the U.S. Reports citation to Lochner v. New York tattooed on his right bicep**).


For one thing the percentages don't embody a sufficient recounting because some of those majorities are unanimous. You have to look first to the split decisions, then more closely at which justices are concurring and dissenting with each other, and on what grounds, and then especially closely to the results and the reasoning that obtained those results in each individual case to determine the particular questions under consideration and the connexion between the reasoning and the results. And then you make your evaluation of the data based on the legal and poli sci principles you've studied.

Having performed those moves to a not inconsiderable extent over the years, I think it's fair to say that Justice Prosser is a pretty conservative judge, but in the political sense. That is, his results are often politically conservative but his methods are not judicially conservative. That's where I get a little suspicious, and I say this as a fan of Clarence Thomas who, for whatever else you can say about the man — and there is plenty — is consistent in his methods.***

Justice Prosser, for example, has joined an opinion of Gableman's purported to find within the First Amendment's Free Exercise of Religion Clause the right to fire employees in blatant violation of age discrimination law, and in contravention of court orders from magistrates right up to and including the court of appeals, without once explaining — de novo, as a true judicial conservative should and would have — how on whatever specified god's green earth firing employees is a free exercise of religion in the first instance.

That's not judicial conservatism, but that is political conservatism.

Judge So-and-so

A conservative begins with the Constitution, she doesn't set off on some meandering and merely persuasive detour throughout the circuit courts of Delaware and New Mexico and then wind up back somewhere near the Constitution because Judge So-and-so with jurisdiction over Jefferson Parish, LA apparently held as such.

More recently Justice Prosser, again in full concert with Gableman, literally rewrote the Wisconsin constitution in order to enjoin a party to a case even before the Supreme Court had decided to take jurisdiction of that same case. And they didn't present a compelling reason to do so; they couldn't have, simply for the fact there are compelling reasons why the constitution does not mean what they had to insert an entirely new phrase into it to make it mean. That's not judicial conservatism, but that is political conservatism.

Justice Prosser, before Gableman's time but together with Justice Roggensack and with Justice Ziegler's ideological predecessor Justice Wilcox, endorsed a ludicrously unconstitutional amendment to the State's criminal procedural framework that handed over to the executive branch of State government an impermissibly unilateral control over a defendant's life, liberty, and property. That's not judicial conservatism, that's political conservatism.

Deeply disturbance

And Justice Prosser produced from disturbing the thin air by waving a whole cloth at it an exception to Wisconsin's concealed carry law that the text of the statutes in nowise authorized or even implied. That's not judicial conservatism but it is political conservatism.

Then there's the recusal controversies, where Justice Prosser, once again together with the present hard-right bloc, adopted verbatim rules drafted by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, two archetypal business lobbies. Now as an appearance of impropriety, the circumstances are troubling. However, just because the rules were drafted by corporate concerns doesn't make them bad rules. To so conclude is fallacious.

But the legitimate and legitimately remarkable trouble with the rules for judicial recusal is that they were submitted and adopted verbatim and then the drafters — not the adopting justices — noticed that the rules caused an "absurd" — to coin a legal term of art — result within the framework of the code of judicial ethics. So only by their own detection of the discrepancy and by their own volition, the drafters had to resubmit the rules for (once again, verbatim) re-adoption by the four conservative justices.

Awkward! Alright. I could go on, but I already have.

Thus is my view of Justice Prosser that he is less a judicial conservative than a political conservative, and I'm not saying there is anything inherently wrong with that. It's a legitimate position. But just be aware of it. Of course this is merely my opinion, but I like to think that, as a reasonably diligent student of the law and of the court, I bring at least a little bit of credibility to support it.

You may disagree, and that's cool too.


In conclusion, however, the popular consensus in this Great State of Wisconsin appears to indicate the favoring of Supreme Court elections. So I accept that and incorporate it into my reasoning. Although personally I'd rather not do that, the supporters of judicial elections — including Justice Prosser himself — force me to.

And it is in that political spirit that I completely and wholeheartedly support without reservation the efforts of the left to shift the political balance on the court, if only for one very simple reason: What Justice Gableman, WMC, and their other fellow deceitful travelers did to the popular reputation of former Justice Louis Butler throughout 2007-08 was repulsive, and almost unspeakably vile.

I have never met, nor heard from, any lawyer or judge who does not hold Louis Butler in the highest professional and personal regard and if you think Justice Prosser is getting unfairly portrayed this time around, that is nothing compared to the disgraceful calumnies, both overt and subtle, that the political right heaped on Justice Butler.

Punks, thugs, hippies on your marks

And the worst of the perpetrators was none other than our Michael Gableman, who violated the aforementioned code of judicial ethics and then himself and by his counsel fought arrogantly in defense of the indefensible, taking no prisoners along the way.

So to the extent that electing JoAnne Kloppenburg negates whatever power Gableman wields on the court — and there's no question that her election would effectively mitigate his influence to a considerable degree — I say, go for it, all you young punks and all you union thugs and all you dirty co-op hippies. You have my seal of approval.

More importantly, while you can argue 'til you're red-State-in-the-face that it's inappropriate to topple Justice Prosser because Scott Walker and Scott Fitzgerald and J.B. Van Hollen are erratic and reckless custodians of the body politic and I would probably agree that it is inappropriate, I'm helpless because the present politicization of the court is directly the outcome of those who support judicial elections.

Which is to say, in other words: Hey, I'd really like to come to your assistance, but you won't let me. And which is why I today endorse my bestest buddy Mike Plaisted**** for the Wisconsin Supreme Court.


* Style note: This blog will hereafter attribute opinion pieces in the Milwaukee Journal-Sentinel to the corporate entity, Journal Communications, Inc. Straight news reporting — such as it exists anywhere — will continue to be citated to the Journal-Sentinel.

** Mercifully I have no personal knowledge of this statistic; Counselor Ziemer admitted to it on the internets.

*** The recent kerfuffles regarding Mrs. Virginia Thomas are at once amusingly abhorrent and abhorrently amusing, but there's no substance there. Nothing would cause Justice Thomas to vary from his inexorably reductionist pursuits. If anybody out there is seriously expecting Clarence Thomas to stand aside from some Tea interested-Party case, then you are high, as the kids say.

**** Also, because: "He is a good writer." (Very good, in fact.)


Clutch said...

Sorry, I don't think that post will fit on a campaign button.

jhaas said...

Can you give a similar breakdown of the Colón-Lipscomb race?

illusory tenant said...

lol ... hey, good luck to you tonight my friend.

Display Name said...

I'll vote for the "The Explanation Won't Fit On a Bumpersticker" Party any day.

It's unfortunate that the old-guard media can't find the column inches for this sort of heavy-lifting.

Mike said...

BumperStickers are an ineffectual means of communicating my nuanced views on a variety of issues that can not be reduced to a simple pithy slogan.

Anonymous said...

Appreciate the thoughtful look at specific cases. Very clear analysis on the judicial conservative vs. political conservative thing. One observation: you appear to reason that it cannot be true that Prosser has an anger management (or however you want to characterize it) problem because when you met him he did not behave as a "kind of unhinged misogynist nutcase" and therefore any assertion that he is anything other than "kind and considerate" is "patently ridiculous." (I remember that you sided with Prosser on the McCabe thing, so you apparently cut him slack for behavior ON THE BENCH that I find inexcusable.) You do not address the possibility that both things are true of him: that he is sometimes kind and considerate, and that he is also sometimes (leave aside the straw man hyperbole) a person who lashes out in startling anger, displays irrational paranoia in editorial board meetings and debates, and has shown a bit of a misogynistic streak too. I get that the two images are hard to reconcile, but he would hardly be the first person with a disturbing mean streak who was known to many as the nicest guy you'd ever meet.

illusory tenant said...

Many thanks for your comment. I very much appreciate that alternative view and fully accept that it's a perfectly reasonable one to adopt.

ziemer said...

thanks for the shoutout. and for a well-done piece. as for your comments on the concealed carry case, though, i have to point out that, of course, there was nothing in the statute to justify the exception. the court held that an amendment to the state constitution required there to be such an exception implicit in the statute.

also, as vile as the butler campaign was, i really don't think it compares to what's being said about prosser.

illusory tenant said...

Thanks counselor. You know I respect your opinion too.

ziemer said...

i'd also like to let your your readers know how the rules petition process works. somebody drafts a petition, and the court either adopts it verbatim, makes changes, or denies it. and it is usually some special interest group that does this. you can't just ask the court to adopt a rule saying X generally. they will send you home and tell you to come back after you propose something specific. never before that case have i ever seen a rule criticized not on the merits, but because of who petitioned the court.

illusory tenant said...

Yep and I don't have a problem with that at all. Moreover I am in complete agreement with the court's conservative faction that the proposed arbitrary-dollar-limit rules are unworkable, despite what I truly thought was a moving and passionate presentation by the late Justice Bablitch.

William Tyroler said...

Superb post.

illusory tenant said...

Many thanks, counselor. As usual, coming from you it's extra-gratifying.