June 27, 2011

Procedure is the true conservative's polestar

Here's Ed Fallone and Rick Esenberg talking about Petition of Walker.

Prof. Fallone is foursquare on the money: the Gableman court usurped procedure, invented jurisdiction, and unwarrantedly scapegoated a circuit court judge who followed both the spirit and the letter of the law (in fact the Open Meetings Law's spirit is clearly delineated in its letter).

There are also a couple of hilarious moments of vintage Esenberg, once where he perishes figuratively at the thought of anybody impugning the competence of any circuit court judge, himself having literally sneered on public radio at Judge Sumi not that long ago, and another where Esenberg, who once upon a time complained mightily that Judge Sumi failed to sufficiently explicate her temporary restraining order to Rick Esenberg, now merely sighs and handwaves away the Mike Gableman court's inability to properly elucidate its judical fiat. I'm not sure how to characterize Prof. Rick's comical disingenuousness, but whatever it is it lies somewhere between naked double standards and pure hypocrisy.

No wonder Esenberg's broken into Fox News. He makes the perfect fit.

And maybe we can help get Gableman his own show on Fox Business.

Forward [Slash]!


gnarlytrombone said...

His point's born of disingenuousness, but Ese notes the "recasting" issue being raised in the May 4 order. Couple that with the bizarre lines of questioning at the hearing, and it seems pretty clear the fix was in all along.

illusory tenant said...

It's clear enough the Department of Justice couldn't have done it on its own. It forfeited the merits of the case back in March on the record in the trial court. It filed a petition for leave to appeal that was eventually dismissed. It claimed to represent the interests of the secretary of state and then presented arguments in the trial court diametrically at odds with the interests of the secretary of state

Then to complain about the trial court judge affirming the DOJ's forfeiture of its own case in her court, the DOJ filed a petition that was ultimately not granted, but rather retooled into a novel and unprecedented declaration of judicial authority by the Gableman majority.

The DOJ presented for oral argument before the Gableman court a lawyer who at the same time described the trial court's May 26 decision as both a final judgment and not a final judgment. He was creamed by the respondents' attorneys, yet the Gableman four remained all but silent throughout those hours, yet repeatedly came to the assistance of the DOJ lawyer.

And after all of that the Gableman court refused to acknowledge that what it was doing was declaring that even a de minimis guarantee of reasonable public access to government is something that Oliver Cromwell probably wouldn't have appreciated too much and instead issued what is essentially a public reprimand to a circuit court judge who proceeded in her deliberations with what is under more convenient circumstances to disingenuous Republicans a conservative application of the black letter law.

So you're probably right.

Silly me, I still clung to such vestiges of idealism and respect for the institution that I actually still believed there was no way this court would insert itself into this controversy, under this set of facts -- the DOJ's own case admitted the WISGOP broke the law -- once the Assembly Speaker issued an ultimatum to the court, albeit one which left unspoken the fact that a lawful attempt to pass the collective bargaining provisions might well have been unsuccessful.

That danger needn't have been spoken to the Gableman court, and it came to the political rescue of the Republicans by hook or by crook (and by forward slash, as it turns out).