Fitzgerald touts record of lawbreaking in Senate bid

Exciting news, Jeff Fitzgerald is running for the U.S. Senate:

Wisconsin Assembly Speaker Jeff Fitzgerald (R-Horicon) says his experience shepherding controversial collective bargaining reforms through the legislature has left him battletested [sic] and ready to take the fight for true reform to Washington.

Which is funny because not only were the reforms "shepherded" in violation of Wisconsin law, but according to trial court testimony, it was Fitzgerald personally who held up providing the minimum notice for the fateful joint committee meeting of March 9, 2011. Rachel Veum, the Wisconsin Senate's Records and Forms Management Specialist, testified April 1 that she had to "run" around the Capitol in search of Fitzgerald.

And Fitzgerald, by not being in his office at the crucial moment, was the reason why the elapsed time between notice and meeting was one hour and 57-ish minutes, a fact admitted in court by Fitzgerald's own counsel.

Thus was Fitzgerald himself responsible for the subsequent constitutional crisis, which was only settled after a bare majority of the State Supreme Court discovered a novel form of judicial authority that, as we learned somewhat after the fact, it was so eager to announce in order to save WISGOP legislators the trouble of convening a lawful meeting that the four marched into the dissenters' chambers, a struggle ensued, and one justice admitted to having placed his hands around the neck of another.

And of course it was Assemblyman Jeff Fitzgerald who led the demand for the arrest, custody, and secure police conveyance of his political adversaries. Fitzgerald's brother Scott, the Senate Majority Leader, paid $27,000 for a legal memorandum purportedly authorizing the pair to have the entire Wisconsin Senate Democratic caucus — including State Senator Julie Lassa, who at the time was seven months pregnant — "carried ... feet first" across a threshold inside the Capitol building.

It's a record, alright. It's just not an especially enviable one.

J.B. Van Hollen's record of extreme partisanship

And dereliction of duty:

The AG ignored the constitution, the statutes and a judge's order and simply issued a press release declaring: "Act 10 is now law."

That he did, and nobody agreed — except for unnamed highly partisan State Supreme Court justices — because J.B. Van Hollen's untethered pronunciamento would have nullified decades worth of Wisconsin law.

Tea Party Video: J.B. Van Hollen in "Fight, kill, fight."

More Republican lying in Wisconsin

Strong words:

In their letter, the Republicans state incorrectly that, as mayor, I ordered Madison police to not participate "in any law enforcement actions to remove or control siege protesters within the Capitol." What happened is on that March day, our police department was asked if it would help forcibly remove protesters from the building. Chief Noble Wray refused on the grounds that he saw no credible public safety threat from the protesters.

It's now clear why the Republicans wanted the building cleared. That evening, they forced through a vote on the governor's union busting bill with less than the required legal notice.

And:

Not too long before, in the same building, the governor of our State told who he thought was a major campaign contributor that he and his staff had considered hiring thugs to create possibly violent disruptions to the protests, and he rejected that idea because it might have backfired politically. There was some indication that the suggestion to hire outside agitators had come from a Republican lawmaker.

There should be an investigation so that we can know just how seriously violent disruption of the protests was considered by Governor Walker, his staff and Republican lawmakers.

— Dave Cieslewicz

"That March day," of course, is when the Republicans violated the Wisconsin Open Meetings Law, which the Supreme Court said was cool.

Milwaukee Journal-Sentinel story is eerily familiar

This here, very top of the (electronic) fold at the moment.

Thought I read about that somewhere, one entire week ago.

Can't get no respect.

Come to think of it, you read about publication here first too.

Gableman just making stuff up now

Incredible, verging on sociopathic:

During a July 5 interview about that incident, Mike Gableman told Dane County Detectives Pete Hansen and Sabrina Sims of an alleged incident between him and Justice Bradley. The event took place during a meeting with the other justices on Sept. 18, 2008, Gableman said, a date he said he remembers because it was his birthday and just weeks after he joined the court.

Chief Justice Shirley Abrahamson said that, according to her records, "no meeting, conference or oral argument of the court occurred on September 18, 2008, or on any day that week."

The court held oral arguments on September 9, 10, and 12, 2008.

Much, much more here.

Step up to the plate, Wisconsin Judicial Commission.

Prosser's conduct: Next steps

One Wisconsin Now is filing an open records request to obtain any written and electronic communications between the four conservative justices, David Prosser, Mike Gableman, Annette Ziegler and Patience Roggensack, and Scott Walker's office, the office of Mike Huebsch, and Scott and Jeff Fitzgeralds' offices.

You can visit the link to chip in a few bucks.

Walker wasn't a named party to the so-called "supervisory/original" action that the Supreme Court heard and decided but Deputy Attorney General Kevin St. John admitted — reluctantly — under questioning from the Chief Justice that it was indeed Scott Walker who instigated the petition. Mike Huebsch is Walker's Secretary of Administration who made the notorious estimate of $7.5 million to repair "damage" to the State Capitol building in the wake of demonstrations in February and March.

The actual figure turned out to be just over 100 grand, and even that included for repairs to existing wear and tear from years gone by, some of which was caused by people in wheelchairs. Assembly Speaker Jeff Fitzgerald, brother of Scott, is reportedly running for the U.S. Senate.

At least, that's what the Wausau Daily Herald editorial board said Fitzgerald told them. But then a spokesman for Fitzgerald said it would be against the law for Fitzgerald to say that. Not like the law prevented WISGOP legislative activities in the past, which the four "conservatives" on the Wisconsin Supreme Court said was perfectly fine with them.

What exactly set Justice Prosser off

In his own words:

I absolutely have a recollection of [the Chief Justice] saying, 'I may not be done 'til Wednesday.' Now that's the day after the Assembly would have had to vote on this all over again.

Immediately upon hearing that, Justice Prosser tells her, "Chief Justice, I have lost confidence in your ability to lead this court." According to Justice Prosser, his three conservative colleagues, Justices Roggensack, Ziegler, and Gableman, had been getting "very, very antsy" at the prospect of not having their order released in time to save the Assembly Republicans the trouble of voting on the collective bargaining bill again.

For indeed it was the Republican leader in that body, Rep. Jeff Fitzgerald, who publicly warned the court of that ultimatum.

And this, ironically, was a separation of powers case. Separation of powers is a constitutional law doctrine which presumes the independence of the judiciary from the other two political branches of government.

Has any reporter or editorialist mentioned this at all?

The delay, Justice Prosser tells us, came about because over the weekend prior to the altercation in Justice Bradley's office, he had authored a concurring opinion to complement the three other conservatives' unsigned order. Also over that weekend, Chief Justice Abrahamson had written a dissent in counterpoint to the order and was surprised by the appearance of Justice Prosser's concurrence on Monday.

The Chief therefore needed additional time to revise her dissenting opinion to include addressing the issues raised by Prosser that were not present in the order. Justice Prosser claimed Chief Justice Abrahamson shouldn't have been surprised at his concurring opinion because, "The discussion was very clear that there was going to be, that there was at least a possibility, that the majority were going to write more than was in the order, and I'm the natural person to do that. I think anybody with any brains would have known that I was writing an opinion."

Thus even though only "a possibility" existed, "anybody with any brains would have known" he was writing, according to Justice Prosser.

Not exactly the most rigorous logic in establishing that presumption.

Nor particularly charitable where collegiality is ultimately at issue.

Huebsch v. Dane County: It could have been worse

A revelation:

There was some internal disagreement among the four people who wanted to [vacate Judge Sumi's decision]. Some of the people thought that the order should say that the bill that was the subject of this order had been published. My view was, 'No, it has not been published.' And in that, the three dissenters agreed with me. — Wisconsin Supreme Court Justice David Prosser

Which is interesting because it was my understanding that the near-unanimity of informed commentary — including, we now learn, Justice Prosser's — agreed that 2011 Wisconsin Act 10 had not been published, in the sense required by both the State constitution and the State statutes. There is no discussion of this question of publication in either the court's unsigned order or Justice Prosser's concurring opinion.

There is this, from Chief Justice Shirley Abrahamson's dissent:

¶111 The order and concurrence fail to examine carefully the arguments of the Secretary of State about the respective roles of the Secretary of State and the Legislative Reference Bureau in the publication of legislative acts, the printing of notice in the official state newspaper, and the effective date of a statute. See Wis. Stat. §§ 14.38(10), 35.095(3)(b), 991.11.

Indeed, between the two cases that the Huebsch majority claimed were supposed to have controlled Judge Sumi's deliberations — as opposed to their being controlled by, you know, the plain text of the Open Meetings Law — one, Goodland v. Zimmerman, was about an unpublished bill, and the other, La Follette v. Stitt, was about a published bill. Nevertheless, wrote Justice Prosser, "In my view, this case is governed by Stitt."* On the other hand, the court's unsigned order relied primarily on Goodland.

That's exactly the opposite of what an observer might expect, in terms of judicial precedent relied upon being "on point," as they say in the biz.

All of which, it seems to me, serves to support the dissenters' position that the case merited either further argument or at least further explication by the four conservative justices who made up the court's majority. I would like to have seen the reasoning of "some of the people" who thought 2011 Wisconsin Act 10 was published and not just printed. Because that would have taken some serious contortions beyond what the court did perform, which was to manufacture a unique form of judicial branch authority not bestowed by the State constitution.

And, while Justice Prosser claims that Assembly Leader Jeff Fitzgerald's public exhortation to the court to produce a decision in keeping with the Republican-controlled legislature's deadline was "separate" from the court's internal timetable, he sure got pretty excited when he learned that the WISGOP's requirements were in danger of not being satisfied.

One thing's for certain, this is an extremely politicized court.

* Then-Republican legislator David Prosser filed an amicus brief in Stitt.

Mike Gableman's eyewitness testimony

"[Gableman] described Bradley as being a little bit taller than Prosser and compared Bradley's stance with Prosser to a famous photo of then-Sen. Lyndon B. Johnson leaning over a shorted [sic], cowed senator. According to the records, however, Prosser is 5-feet-9-inches tall and weighs 165 pounds. Bradley is 5-feet-3-inches and weighs 131 pounds."

Witness credibility issues?

Gableman also claimed that Prosser never came in contact with Bradley's neck despite Prosser's admission that he had both hands on Bradley's neck and "felt its heat." Despite this, Gableman could confidently tell Justice Bradley, "You were not choked." Why should we believe him?

Mike Gableman has lied before. Just ask the Wisconsin Judicial Commission, whose investigation into this altercation is ongoing, despite Justice Prosser's 48-point bold triumphalist WISGOP press release.

What a mess.

Justice Prosser "going off on a tirade"

"I remember feeling her neck." — Wis. S. Ct. Justice David Prosser

The Wisconsin State Journal has just obtained 70 pages of the Dane County Sheriff's Office's investigation into the Supreme Court's June 13, 2011 altercation: Deputy Report for Incident 110176237 (.pdf).

"Justice Prosser said the speaker of the assembly, Jeff Fitzgerald, put the court in an awkward position by saying they needed to have a decision by June 14, 2011; otherwise [the assembly] would have to vote all over again." — Interview with Prosser, page 37.

That's money. Remember, this was a separation of powers case. This court is not beholden to Jeff Fitzgerald in any way, shape, or form. If Justice Prosser felt pressured to release the court's order according to Fitzgerald's timetable — and the conservative members of the court had convened in Justice Bradley's office for the very purpose of expediting the Chief Justice's attached dissent — then that's pretty inappropriate.

And it's at least as significant as the altercation itself. Despite his denials of his Waukesha County press agent's December, 2010 promise to "complement" the Scott Walker/WISGOP agenda, it sounds as if this is exactly what Justice Prosser and his conservative colleagues were doing.

Now let's see if the local press picks up on that.

Also: Mike Gableman's eyewitness testimony.

Scott Fitzgerald, he's working for all Wisconsin

Hey Jon Bruning, Big Fitz swallowed your truth serum:

On or about March 9, 2011, State Senate Majority Leader Scott Fitzgerald (R-WI), publicly stated that the changes to the collective bargaining law were about eliminating unions so that "the money is not there" for the labor movement and to make it "much more difficult" for President Obama to win reelection in Wisconsin. — Madison Teachers v. Scott Walker, Compl. at ¶ 23.

There you have it, folks. Scott Fitzgerald sold you down the river.

Wisconsin Reporter occasionally good for a laugh

I missed this at the time, but it just popped up in a Google search for something else. This is from the Wisconsin Reporter, a collection of conservative Republican hacks pretending to be a "news service":

Obviously nobody violated state open meetings law in passing the collective bargaining bill ...

Interesting, because those alleged to have violated the State open meetings law admitted to it on the record, in court. And not only did they admit to violating the explicit letter of the statutes, they admitted the intent of the Wisconsin constitution's directive to the legislature to provide minimum public access to its affairs governed any picayune objections derived from medieval foreign common law relics. "Correct, absolutely correct," they confirmed in response to the presiding judge's view that the State constitution embodies "a vastly external expectation — [a] right — that people have under the Open Meetings Law."

Continues the Wisconsin "Reporter":

... and even if they did, the judge had no power to delay it.

Which is funny because you know what?

Not enjoining the bill would have been a wholesale betrayal of the State statutes. Wisconsin's Open Meetings Law explicitly grants the courts injunctive power pursuant to alleged violations of the Open Meetings Law but the injunctive power is not to be exercised unless the party who requests the injunction can show a reasonable likelihood of success on the merits of his case, which in this instance was that same allegation that legislative Republicans had violated the Open Meetings Law.

And in this instance it didn't as much matter whether the requesting party — the Dane County District Attorney — had affirmatively demonstrated its likelihood of succeeding because the legislative Republicans, by and through their Department of Justice counsel, themselves affirmed the District Attorney's meritoriousness in court.

And rather unequivocally — "Absolutely correct" — at that.

[Dane County Circuit Judge Maryann] Sumi ... [said] legislative Republicans violated opening meetings law.

Yes, because those legislative Republicans admitted it in her court.

What on Earth is so difficult to understand about this?

Arrest these six Wisconsin Republicans today

1. arrest v. — seize someone and take them into custody
2. arrest v. — stop or delay progress or a process

On March 3, 2011, these six Wisconsin State Senators, Robert Cowles, Alberta Darling, Sheila Harsdorf, Luther Olsen, Randy Hopper, and Dan Kapanke, endorsed a resolution by their legislative leader, Scott Fitzgerald, to issue arrest warrants, in the sense of definition 1. above, for 14 of their political rivals. They did so on the flimsiest of alleged legal bases, and in fact on legal bases manufactured from the deliberate misreading of an adverse decision issued by an Oconto County court.

And amazingly, they did this not in the Soviet Union but in America.

Today, many Wisconsin voters have the opportunity to arrest the six named Republican Senators, not according to the lawless means by which those Senators acted, but in the sense of definition 2. above, to impede the progress of a radical Republican agenda in which all three branches of State government — including the highest court — are complicit.

Also in March, Republican legislators broke the law — and admitted they broke the law — by convening a twilight gathering in clear violation of the State's open meetings statutes, which give effect to the Wisconsin constitution's guarantee of public access to government proceedings.

On June 14, in perhaps the most radical act of the current regime, the State Supreme Court, by a bare majority of Republican judges and in an unsigned, unexplained order, invented a novel form of judicial authority through which they blessed the illegal acts of the Republican legislators.

Some, including the editorial board of the Milwaukee Journal-Sentinel, the State's biggest newspaper, have complained that today's elections misuse and betray the spirit of the people's constitutional power to recall their elected representatives. They complain that the constitutional recall mechanism should be reserved for more serious misdeeds in office, not just for disagreements with those representatives' policies.

But Wisconsin voters have to wonder, what more serious misdeeds of office can there be than ordering State law enforcement officials to arrest their political rivals? What more serious misdeeds of office can there be than violating a collection of statutes intended to guarantee the people of Wisconsin merely the barest access to the deliberations of their government? What more serious misdeeds of office can there be than cheering on a court to fabricate its own unprecedented authority?

I can think of none. Arrest them. Or else just arrest any three of them.

See also: Alberta Darling's deliberate indifference to suffering

Interlude

WPRI's "New Normal"

Choking and now stabbing at the Supreme Court.

If they bring a knife to the fight, we bring a balloon.

WPRI: Welcome to Wisconsin's new normal

A new jurisdiction called "supervisory/original"

Required reading right here.

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:

A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty.

So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:

[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.

I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:

¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.

However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

MJS condemns elections, defends union-busting

Wow, somebody's sure cranky today:

These [recall] elections, arising from the heat generated by a single issue [union-busting], risk further dividing the electorate and giving rise to a perpetual campaign.

Maybe the MJS editorialists missed it, but Wisconsin Senate Majority Leader Republican Scott Fitzgerald went on Fox News to announce his party's policies were directed toward defeating Barack Obama in 2012.

That is, his party's policies that are supposed to benefit the people of Wisconsin, not members of the Electoral College from North Carolina.

So it's a bit late to complain about "a perpetual campaign" at this point.

In fact it's been a bit late for decades. Besides, the recalls may have initially arisen from a single issue,* but there's been plenty more presented through WISGOP shenanigans since then, and it's appropriate to hold these six Republican Senators accountable for them as well.

Why not?

The law doesn't prescribe any particular reason to recall elected officials. It simply provides "tools," as Governor Scott Walker** himself would say.

And of course the various Journal Communications, Inc. corporate organs have been mocking and downplaying opposition to Walker and his henchpeople for months, so the MJS's huffy stance comes as no surprise.

* An issue, by the way, that campaigning Republicans deliberately withheld from Wisconsin voters prior to the November 2010 election.

** Who became Milwaukee County Executive by dint of a recall election.

How many sharks can one Shark jump?

Clearly, an infinite amount.

Sometimes I swear WisOpinion.com, the local aggregator of Wisconsin's "opinion leaders," links to stuff just for giggles, much like Jerry Falwell used to get invited on the Sunday morning chat shows so the producers and news editors could chuckle at him. Case in point, Rick Esenberg's pretend lament at the state of affairs on the Wisconsin Supreme Court.

Recall that Bill Lueders broke the story Saturday morning. None of Lueders's sources were named, but he obviously had them. By Saturday evening, the Milwaukee Journal-Sentinel had managed to obtain a statement from Ann Walsh Bradley, a justice of the Wisconsin Supreme Court, confirming the substantive details of Lueders's story. The Journal-Sentinel also obtained a statement from the accused, David Prosser, that did not deny some physical altercation had taken place, but rather simply varied from the perspective of Justice Bradley's account.

Peake fantasy

Furthermore the Journal-Sentinel obtained statements from two anonymous sources — who remain anonymous as of this writing — neither of which deny some physical altercation but, as does Prosser, present a different perspective of the alleged altercation. So what does Rick Esenberg, an actual professor of the law, make of all this?

Well, first of all, he denounces Lueders for "an embarrassingly bad piece of work" despite the fact that Lueders's report was confirmed by a justice of the Supreme Court who went on the record to confirm it.

What's embarrassing or bad about it exactly, he doesn't deign to reveal, but the professor's unsupported assertions suit perfectly the obfuscatory narrative Esenberg and his fellow travelers are seeking to forward.

And despite even the fact of Justice Bradley's affirmations, Esenberg pronounces her allegations "fantastical," conveniently overlooking Justice Prosser's self-admitted history of aggressiveness toward Chief Justice Shirley Abrahamson, whom he had previously threatened to "destroy," and who is relatively small in stature and who is nearly a decade the elder of Prosser. Moreover Bradley had warned against Prosser's behavior in emails she released to a Journal-Sentinel reporter months ago.*

Now all of a sudden the latest in an apparent pattern of reckless and intemperate behavior is "fantastical," like a Mervyn Peake novel.

Justice/Gableman

But what is most remarkable — outrageous, really — about Esenberg's own reckless missive is that he suggests the Wisconsin Judicial Commission back off from carrying through its investigation:

[T]he worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. [**]

Let's review a couple of things here.

Justice Prosser would be the third consecutive Wisconsin Supreme Court justice subject to an investigation by the Wisconsin Judicial Commission, all of them self-advertised "conservatives," and all of them members of the court that just two weeks ago abandoned bedrock principles of legal procedure, invented from whole cloth a novel fabrication of the court's jurisdictional authority, imported into its written order and opinions alleged facts that were never even mentioned by any party or court as the case wended its way toward the Michael/Gableman Four, and for all intents and purposes untenably reprimanded a careful, review-proven conservative circuit judge for — ironically — supposedly abusing her authority, a reprimand meted out by the same court that had just moments before whipped into existence its own purported authority.

The allegations Esenberg is talking about are those of Justice Bradley who, it bears again repeating, went on the record to confirm the pertinent details of Lueders's "embarrassingly bad" report. And the "controversions" Esenberg is talking about are those anonymous sources quoted by the Journal Communications, Inc. flagship daily newspaper.

Blinka job safe

Not only does Esenberg accord the latter equal weight, he accords them such countervailing authority that, Esenberg reasons, they should not only drive the Wisconsin Judicial Commission's investigation but in fact discourage the Commission from proceeding. All one might say to that is, thank gods Esenberg is not teaching the law of evidence over there.

Esenberg's "will of the voters," it needs also to be recalled, is Justice Prosser's 0.46% margin of victory over challenger JoAnne Kloppenburg, who for her part realized double-digit (not double-decimal point) surges in popular support between February's primary contest and the April 5 general election — especially in the State's most conservative counties.

Thus would it "smack of a coup" were the Wisconsin Judicial Commission, which is charged by State statute to investigate unprofessional behavior among the State judiciary, to pursue its mandated obligations.

It's quite the amazing performance by Rick Esenberg, who has a long and fairly well documented history of amazing performances. It's . . .

Ta Da! Ol' Prof. Rick is right about one thing though:

Lawyers have been worried about the divisions on the Court [**] for some time now. ... No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters.

Oh, but I'm sure they would like to say plenty about it, and what they would mostly say Esenberg probably wouldn't want to hear. Because the current divisions on the court are directly traceable to Mike Gableman, who none other than Rick Esenberg championed by defending some of the most disgraceful attacks on former Justice Louis Butler's reputation, character, and professionalism, and whose own then-research assistant's gibberish Esenberg is still publishing at the Marquette LS faculty blog.

Esenberg's "worried lawyers" ain't going to forget. It's one thing to get along — and a good thing — but it's quite another to abandon principles because some partisan ideologue is boo-hooing like a sad crocodile.

Your humble correspondent may not be the disinterested academic ivory tower dweller Rick Esenberg is presented as by Journal Communications, Inc.'s panoply of media dispensaries but I surely do know that much.

* There was some considerable right-wing pearls-clutching over Justice Bradley's handing over the emails to the reporter. However, go have a look in the WisconsinEye.org video archives for the court's open administrative conferences and you will find both Justices Prosser and Roggensack releasing sheafs of interchambers emails to the press.

The political right's shameless hypocrisy is quite the spectacle to behold.

** You do not capitalize court here. Capitalizing court here would be a signal for the United State Supreme Court. This from a professor of law.

This is the best post that you will read today*

Wisconsin Court Supremely Slippery by Brendan Beery

Informed, concise, and entertaining.

* Until this here blargh's next offering, obviously.

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]!