Republicans not accused of having good taste

Classy:

The Republican Party in Arizona's Pima County, which is represented by Rep. Gabrielle Giffords (D-AZ), is in the midst of a fundraising raffle, $10 per entry. The prize: the same model of gun that delivered a near-fatal blast to the Democratic lawmaker's skull outside a Tucson grocery store in January.

— Raw Story

Mike Gableman is lying, say justices

And for no purposeful reason whatsoever, it would appear:

"Whether it is Justice Gableman's original version or his new version, his described event simply did not happen," Bradley said. "I did not strike him on the head in 2008, 2009, or ever. Abrahamson [CJ] and Crooks, in a separate statement, also repeated that "no incident as described by Justice Gableman, and no similar incident, ever occurred in our presence."

Wisconsin State Journal — Dee Hall.

More from Patrick Marley in the Milwaukee Journal-Sentinel.

Justice Ziegler knew nothing of the alleged incident. Gableman's other allies, Justices Prosser and Roggensack, have been silent so far. What are they going to say? Mike Gableman claims they were all present.

Are they going to corroborate Gableman's tale? Seems unlikely now.

And Gableman lied to get on the court in the first place.

Gableman story changes today

The story he told to police detectives.

On July 5 (pg. 64 of 70):

Justice Gableman said at this time his mind also went back to September 18, 2008, a date that he recalled because it was his birthday. Justice Gableman said he had been on the court for approximately one month at the time ...

Now on September 1:

I was uncertain as to whether Justice Bradley struck me on September 18, 2008, or September 18, 2009. I knew it was September 18 because that happens to be my birthday. Court records indicate that the seven Justices did, in fact, meet in closed conference on September 18, 2009.

Uncertain how long he'd been on the court.

Gableman also told the police:

Justice Gableman said he has not told anyone about that incident and has not talked about that incident with anyone, including Justice Bradley, after it happened.

Then Justice Ziegler tells the police (page 69 of 70):

She then said, recently Justice Gableman told her about Justice Bradley hitting him on the back of the head, but she said she did not have any details of that and did not know when it happened. Justice Ziegler said she could not be specific on when Justice Gableman told her that happened.

Gableman's interview was on July 5, and Ziegler's was on July 18, so presumably Gableman told her about the September 18, 2009 (née 2008) incident after July 5. But Ziegler hadn't known anything about it.

Even though Justice Zeigler would have been present.*

* And as the ever-vigilant gnarlytrombone points out:

"Not only present, but a witness: 'Justice Gableman said that he believed Justice Bradley was not joking because nobody was laughing at the time.' [page 64 of 70] i.e., they had to have seen it happen to choose not to laugh. Because it was serious. But not memorable."

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, J., did not participate.

Apparently there's been a flurry of motions in the case of Wisconsin Prosperity Network v. Myse, a challenge to a campaign finance disclosure rule propagated by the State Government Accountability Board, which oversees Wisconsin's electoral processes.* This space noted back in April that the petitioners' lead attorney, ubiquitous Republican activist James Troupis, was hired by Justice David Prosser to defend the latter's 0.46% margin of victory over challenger JoAnne Kloppenburg.

Four months later, the local press finally took notice, contacted some experts in legal ethics, who unanimously cast Prosser's continued participation in the case in a dim light, and Prosser was forced to issue a public statement and formally request of the parties their views as to whether or not he should disqualify himself from hearing the case (oral arguments are scheduled for next Tuesday, September 6). It appears WEAC, the teachers' union that was granted intervenor status on behalf of the respondent Government Accountability Board, filed a motion requesting Prosser's disqualification, which Mr. Troupis countered.

On August 18 the court ordered all of the parties to respond to a set of ten questions, the tenor and substance of which might incline one to believe there is a strong possibility that this case — which is an original action, meaning the petitioners went straight to the State Supreme Court, bypassing both the trial court and the court of appeals — will be dismissed. Justice Prosser did not participate in that August 18 order.

And yesterday the court granted WEAC's request to respond to Troupis's response on the question of Justice Prosser's recusal. Obviously Prosser did not participate in that order either but another component to yesterday's directive addressed the continuing written arguments pursuant to the August 18 order; that is, the substantive elements of the case as opposed to the ancillary question of Prosser's participation.

So while Justice Prosser has made no announcement** as to whether he'll sit in on Troupis's presentation next Tuesday, he's at least in some sort of holding pattern with respect to taking part in the court's continuing deliberations. And since the parties now have until this Friday at 5:00 p.m. to file their next collection of papers, we probably won't hear anything of Justice Prosser's disqualification until nearly the last minute.

The present action dates back one year, when Justice Prosser and his mutual admirer Mike Gableman issued a temporary injunction against the Government Accountability Board prior to their determining whether the Supreme Court even had any judicial authority at all over the case.

I admit I'm far from the sharpest knife in the drawer, but that's still a bit of a head-scratcher to me, injunctive power without the jurisdiction.

See also: Koch outfit friend of the [Wisconsin Supreme] court

* Gordon Myse is a former member of the Board and in fact weighed in on the recusal controversy, telling the Milwaukee Journal-Sentinel's Patrick Marley, "I think the fact that [Prosser's election] lawyer appeared in a case before him is objectively a conflict in almost anybody's book."

** Contrary to last week's ill-sourced Think Progress assertion. In the spirit of "Know thine enemy," you'd expect TP to have apprehended the fact it was relying on another one of these right-wing "news services" — in this case a Chamber of Commerce front — but it was not to be.

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.

"The only thing stupid here is Althouse's column."

Bruce Murphy is a little late to the party, but better late than never:

Bill Lueders had three off-the-record sources telling him that Justice Prosser "allegedly grabbed fellow justice by the neck," as the headline of his story noted. And as we now know from Justice Prosser, he had both hands on Justice Bradley’s neck.

Yes, well, try telling that to Mr. Althouse.

Then of course there was this guy too.

Wouldn't it be news

When Reince Priebus is not lying?

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.

A new low for the already troubled court

"Big business and conservative extremists just bought an emotionally unstable man a seat on the bench where he'll decide the most important issues affecting the state for the next 10 years." — X Beyond X

Trollicane Meade makes blogfall

Newsflash: Bill Lueders got tooled. And illusory tenant is - allegedly - his willing bitch.

What an internets honor.

Yet Lueders was vindicated and his detractors look the fools.

(And I am hardly Bill Lueders's bitch, for the record.)

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.

Ron Johnson to "lecture" on the Constitution

Those poor kids.

Perhaps he'll explain his executive branch powers.

Constitution Day, recognized nationally on Sept. 17, commemorates the ratification of the Constitution in 1787 and encourages students to become informed citizens.

Actually it was ratified in June, 1788. It was signed in 1787.

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.

Ron Johnson on the Constitution, again

"The number one priority of federal government really is the national defense, protecting our system, our economic system."

Nice to see the arch-conservative Tea Party Senator from Wisconsin invoking the priority of the General Welfare Clause. But in fact the Constitution has nothing to say about any "economic system" at all.

h/t Robin Marohn (watch the entire clip).

Ron Johnson also thinks he has the power to nominate federal judges.

Justice Prosser has two press agents

Really, this 48-point bold triumphalism is so very tacky.

And again, why does a sitting Supreme Court justice have two Republican Party spokespersons, one his campaign manager?

Non-partisan office my foot.

Scott Walker's fake David Koch revisited

From a friend of the court. Nowadays Gov. Walker is attempting to play the kissy-face compromiser with the legislators in question.

In late February, 2011, a prank phone call to Wisconsin's governor demonstrated the value of so-called "independent expenditures." After Democratic Senators opposed to Governor Scott Walker's "budget repair bill" complained that the governor is "just hard-lined — will not talk, will not communicate, will not return phone calls," Walker accepted a call he believed was from New York billionaire David Koch, a prominent contributor to conservative organizations and causes (including plaintiffs in this case, Americans for Prosperity and Wisconsin Prosperity Network), and whose PAC contributed $43,000 to Walker's campaign. Koch also gave $1 million to the Republican Governor’s Association, which subsequently spent $5 million in support of Walker’s campaign. The caller was actually a blogger who recorded the conversation.

While it may be unsettling that Walker accepted a phone call from an out-of-state "issue advocacy" funder while refusing to speak with his own state's elected representatives, the Citizens United majority acknowledged "[t]hat speakers may have influence over or access to elected officials does not mean that those officials are corrupt." However, Governor Walker’s request for support in the form of independent expenditures was particularly revealing. In response to the phony "David Koch" asking "what else could we do for you down there?" Walker replied:

"Well the biggest thing would be-and your guy on the ground [Americans for Prosperity president Tim Phillips] . . . per your question [], the more groups that are encouraging people not just to show up but to call lawmakers and tell them to hang firm with the governor, the better. Because the more they get that reassurance, the easier it is for them to vote yes."

This is a clear appeal to "David Koch" that the groups he funds (including Americans for Prosperity) make "independent expenditures" for "issue ads" or robo-calls requesting citizens call their legislator. The governor clearly recognized that independent expenditures sway public opinion and are valuable to an elected official. Indeed, Governor Walker appeared to believe that "issue ads" are so powerful that it is more important to speak with a man who could make significant independent expenditures favoring his budget bill than to converse with legislators who disagreed with him, but could allow his proposed legislation to proceed to a vote.

'OML convenient to my rhetorical purposes today.'

The [Greenfield public school] board felt it could not change the location because of requirements of the open meetings law which, of course, requires notice of a meeting's location.

True. "Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting." Now please have a look to the two words at the immediate left of "place."

As a matter of law, each item in that list of requirements is equally as compelling. And, as the Open Meetings Law goes on to admonish:

"[S]horter notice [than 24 hours] may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

Meet Marquette Prof. Rick Esenberg, your picker of the legal cherries.

Speaking of which, check out this blog post of Esenberg's, where he begins quoting the Wisconsin election bribery statute halfway through it:

The statute prohibits providing a thing of value "to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls."

Which, again, is true. The statute does prohibit the said providing. However, the statute in its entirety prohibits more than just providing:

[Any person who] [o]ffers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector ...

Esenberg simply ignores all the rest, which I guess you can get away with in a Blogspot post, but he sure wouldn't get away with it anywhere else.

Here's a link to the statute, which Esenberg doesn't, er, provide, either.

If any of the complaints lodged against various entities alleging various electioneering shenanigans have any merit, it's the one lodged against Wisconsin Right to Life and its $75 voucher cards, the same complaint Prof. Esenberg was busily spinning in a deliberately misleading fashion.

Because what's at issue is the offering and the promising.

Meanwhile our local daily newspaper, the Milwaukee Journal-Sentinel, continues to "provide" Prof. Esenberg as a disinterested academic.

Get real.

WISGOP failed, despite Steve Walters's best efforts

It says here:

The Republican Party of Wisconsin will tell you that the staff was young and had never run such a campaign before. They are right.

But Steve Walters made Kim Simac look perfectly sane.

See, you got to let the old hands do the job.

h/t Robert Mentzer.

Remember "Climategate"?

Unsurprisingly, pure bullshit.

You think the local conservatives who climbed all over that ridiculous bandwagon will acknowledge their empty results? Yeah me neither.

Fallone on popular sovereignty and federalism

Excellent essay here.

And a reminder that governments don't have rights; people have rights. Governments have powers but only those given to them by the people, which they may expand or retract from time to time. One of those rights — in Wisconsin, at least — is the right to recall elected officials. Nine such elections took place this summer. Democrats won five of them while Republicans won four.* In their wake, one Republican, Robin Vos, is spearheading an attempt to restrict the right of recall. As I mentioned earlier, this is purely a move by Republican politicians to abridge the rights of the people, and nobody should let them get away with it.

Another right Wisconsinites possess is the right to vote. The Wisconsin constitution says that the legislature may enact laws "[d]efining residency." Recently the Republicans in power enacted a law requiring photo identification. What's your picture got to do with residency?

We'll find out soon enough.

* A less mentioned aspect of this summer's political jamboree is that Republicans filed formal notice of recall against seven other Democratic incumbents, and failed to collect the required number of signatures in every instance. Yet the Republicans keep telling us they are "winning."

Says the most conservative judge in Wisconsin

"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution." — Wis. S. Ct. Justice Patience Roggensack

Just a little something to bear in mind "going forward," as they say.

Milwaukee Journal-Sentinel quote of the day

All I know is what I read in the papers. — Will Rogers

The federal Constitution does not have right-to-vote provisions.

— Milwaukee Journal-Sentinel

Also, Justice Roggensack begs to differ (in the Journal-Sentinel).

It is beyond cavil that "voting is of the most fundamental significance under our constitutional structure."

— Burdick v. Takashi

Whatever/wherever cavil is.

Fitzvanwalkerstan comment of the week

Let me get this straight — I work as an attorney for the State and earn less than $25.00 an hour. Walker hires his attorney buddies from the Republican Party at a rate almost 16 TIMES more per hour than I and many other State attorneys make and he calls us "haves?" Let's see ... $25 an hour versus $395 an hour. Why aren't the taxpayers crying foul over their tax dollars now? I guess all you Walker supporters think it is better value for your tax dollars to pay attorneys to clean up Walker's mess rather than to prosecute crimes or defend the poor. — PursuitOfJustice

Republicans running Wisconsin just like a business

Never mind the "no-bid," here's the "blank check":

[James Troupis's $26,955] contract was not drafted or signed until after the work had been performed, State records show.

Sweet.

N.B. An attentive reader reminds us that a former conservative colleague of Justice David Prosser's on the Wisconsin Supreme Court, Jon P. Wilcox, is of counsel at James Troupis's law firm. Justices Wilcox and Prosser were enthusiastic supporters of the risk contribution theory much excoriated by Wisconsin Manufacturers & Commerce, even though WMC strangely never mentioned that the two justices were so inclined.

WMC carefully avoided quoting those portions of Justice Wilcox's dissent.

That's straight-up dishonesty, but it's what we've come to expect.

An astounding disregard for legal ethics

Few places where spectacle is more shameful than Wisconsin

It's sad, really.

... shortly before the court upheld the new state law eliminating most collective-bargaining rights for public employees.

The court didn't uphold any new State law so much as consecrate the illegal activities of Wisconsin Republicans in the State legislature.

The rule [for judicial recusal] was largely written by a business group that has spent lavishly in judicial campaigns.

Try entirely written and then adopted verbatim (two times).

Recusal: The black hole of judicial ethics

Pennsylvania is a very chummy state, especially where politics and the legal community are concerned. Judges are where those two intersect. Given that, it's only natural that lawyers and parties with close ties to a particular judge may come before him or her. The common sense thing to do when a friend or close political ally appears before you is to recuse yourself, right? . . . What judges fail to understand, time and again, is that it is not a question of whether a judge's actions are bad. It's whether they appear bad and potentially undermine the public's confidence in the courts.

— The Legal Intelligencer

The day in conservative Republicans

"Christine O'Donnell is a buffoon." — Brent Bozell
"Rick Perry is an idiot." — Bruce Bartlett

Well alrighty then.

Progbum's FriTunes

h/t Folkbum.

At least he didn't read them The Bell Curve

Ron Johnson reads to local kids — Capital Times

Money quote:

Turns out many of those listening to [U.S. Senator Ron] Johnson were not actual patients at Access, but children of staffers' friends who had responded to an appeal for live bodies for what in politics is called a "media opp" or media opportunity.

Ron Johnson, who ran against "career politicians," just happened to be in Madison to raise money for the Dane County Young Republicans — a real class act — and to kibbutz with the shrillest of radio screamers.

Wisconsin Republicans may hate trains

But they sure do love their free rail sidings:

Walker announced Thursday afternoon that the State would award Waukesha-based Weldall Manufacturing a $650,000 grant through the State Department of Transportation to help cover half the cost of extending a rail line to its facility.

You know who else loved free rail sidings? Ron Johnson is who.

Ron Johnson never complained about his free gummint rail spur.

Prosser to Simac: Will Prosser hear Simac case?

It says here.

"In sum, when all the facts are examined, I do not have a favorite 'horse in this race,'" Justice Prosser wrote.

How can he say that, because all of the facts are yet to be examined.

Indeed the court today issued an order requesting the parties to produce memoranda addressing ten separate questions, each of which is loaded up with factual determinations. Justice Prosser did not participate in that order, which may be an indication that he won't be present when the court hears oral arguments after lunch on Tuesday, September 6.*

Previously, an aide to Prosser had said the justice would remain on the case.

That would be Brian Nemoir,** Prosser's "campaign director." Why in the world does a sitting Supreme Court justice have a campaign director?

Back in the day, the judiciary was distinguished from the other two "political branches" of government. That is no longer the case, evidently.

Anyway why are they just getting around to dealing with this now? Was I the only one who noticed these cozy relationships four months ago?

That can't be possible. Great idea, this electing the Supreme Court.

Maybe it was in Andrew Jackson's time.

* Or what is more likely, the court dismisses this case altogether.

** For it was he.

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.

It's a theory that's out there

Rick Perry, Governor of Texas:

I hear your mom was asking about evolution and, you know, it's a theory that's out there. It's got some gaps in it, but in Texas we teach both creationism and evolution in our public schools.

That would be unlawful, because creationism is religion.

Worse, Perry doesn't know what is taught in his own State's schools.

Unemployment continues to rise under Walker

From 7.4% when Governor Scott Walker took office to 7.8% today.

Tort reform must not be working.

eta: WMC blames summer elections.

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?

Ron Johnson is complaining about something again

Oshkosh plastics millionaire Ron Johnson, this "sorry excuse for a senator," has called "to ensure that all meetings of the supercommittee are noticed to the public, that the public be allowed to attend meetings, and that the meetings be broadcast live." That's the same Ron Johnson who was outraged that Russ Feingold might engage in foreign policy debate, in public, in Congress, as if then-Senator Feingold would PowerPoint troop movements, like Johnson's Fox News chum Geraldo.

The polystyrene mogul vowed to conduct such communications only in private with the President, some of whose constitutional powers, incidentally, Ron Johnson actually believes he lawfully possesses.

Johnson, who earned the nickname "Sunspots" after lecturing Wisconsinites on Northern European geology of the Mesozoic Era, was reportedly both shocked and appalled to learn that topics in U.S. foreign policy were being discussed on the Senate floor by federal lawmakers.

In particular, Feingold's practical and philosophical objections to the American military presence in Afghanistan which, last I checked, was an item of some concern to a large number of citizens and a matter of national security, which conservatives of Johnson's far-right ilk will otherwise tell you is the main reason* Congress exists in the first place.

One of the more prominent items on the super committee's agenda is defense spending, which stands to sustain a half a trillion dollars worth of cuts. So obviously there is to be considerable discussion, especially by those who oppose slashing the military's budget, of specific allocations and projects, which in turn reveal glimpses on the Pentagon's global strategy. Yet Johnson would have us believe that such public revelations would be of less interest to overseas adversaries than Russ Feingold's entering a New York Times editorial into the Congressional Record.

Ron Johnson doesn't really think things through very far, does he.

* If not the sole reason.

Recall Gableman

Argues the Shepherd Express.

Can't say as it's the worst idea anybody ever had.

Meanwhile, Gableman's millionaire patrons call out for reform.

See infra Robin Vos clears the way for Mike Gableman recall

WMC sure wouldn't want to lose that investment.

Quote of the day, right-wing blargher edition

Recall elections are "a stinging defeat for the Democrats and unions not only in Wisconsin, but across the nation," sez Wis-blargher O. Robinson.

There were nine recall elections. Democrats won five of them. Republicans failed at unseating all three Democrats they challenged, and Democrats succeeded at unseating two Republicans. That's a defeat?

The recall election results have all but destroyed any chance of a successful recall effort against Scott Walker next year. ... It's clear the air has come out of the Democratic tires in Wisconsin.

Just keep telling yourself that, I guess. I hear they're mighty fired up.

Quote of the day, PPP-undermining edition

Reports the Milwaukee Journal-Sentinel:

A comfortable win for Holperin, though not quite the 14% margin one poll from Public Policy Polling was predicting Monday.

PPP wasn't predicting any 14% margin. It had the incumbent Democrat Jim Holperin at 55%, the WISGOP challenger Kim Simac at 41%, and undecideds at 4%. Jim Holperin in fact got 55% and according to PPP's numbers, the undecideds went to Kim Simac. You can't undermine PPP simply because some poll respondents claimed to have not made up their minds by the weekend. IOW, PPP called Senate District 12 on the nose.

Quote of the day, self-deluding edition

"Republicans were victorious." — Chairman Reince

Priebus on teh web.

According to @BrewCityBrawler, who monitors these things, Charlie Sykes threw Kim Simac under the bus but moments after polls closed.

Wisconsin: PPP-DKos FTW

There ya go:

Forecast:

Wirch (D): 55
Steitz (R): 42
Undecided: 3
MoE: ±2.9%

Holperin (D): 55
Simac (R): 41
Undecided: 4
MoE: ±2.6%

Result:

Wirch (D): 57
Steitz (R): 43

Holperin (D): 55
Simac (R): 45

Nine for nine to PPP-DKos. Not too shabby.

Obama acknowledges the inevitable

Reuters reports that the President has acknowledged what for many others has appeared inevitable for more than a year-and-a-half:

"If the Supreme Court follows existing precedent, existing law, [the PPACA individual insurance mandate] should be upheld without a problem," Obama said in Minnesota during a town hall discussion. "If the Supreme Court does not follow existing law and precedent, then we'll have to manage that when it happens."

Hopefully "managing that" will not include accusing the Supreme Court of not following existing law and precedent, as those accusations would be wildly incorrect. In any case the Supreme Court is not bound to follow existing law or precedent, the former if it's unconstitutional and the latter because it just doesn't have to. What it is bound to follow is the text of the Constitution, where Obama apparently believes "regulat[ing] commerce ... among the several States" means regulating the behavior of individual citizens who aren't even participating in the commerce.*

The mandate is good policy and makes perfect economic and rational sense. Unfortunately it's bad law and exceeds Congress's regulatory authority. Not to mention violating a first principle of American constitutional government: that the federal legislative department is designed with cognizable limits. It was a big mistake to rely on the Interstate Commerce Clause to justify this policy. But somehow somebody or other decided this was a gamble with decent odds.

The scenario unfolding toward the conclusion of the U.S. Supreme Court's next term in late June, 2012 — which more and more people are beginning to perceive, including even some liberals — presents Obama's worst nightmare, of which he has owned the majority share of credit:

Obama has championed the individual mandate as a major accomplishment of his presidency.

He might want to stop doing that if he hasn't already.

Meanwhile, liberal denial remains firmly entrenched:

Orin Kerr, a George Washington University law professor, predicted Chief Justice Roberts and Justice Kennedy both would likely end up voting to uphold the individual insurance mandate.

And he's got to be hallucinating.

* All it takes is "mental activity," according to this court.

Poll: Wisconsin Democrats safe as milk

Double-digit leads in today's final two races, reports David Nir.

Commenter Mike points out that Public Policy Polling, cited for the double-digit leads above, has compiled an impressive scorecard in predicting the first seven of this summer's nine State Senate recall elections. The Republicans are running a Chicago corporate attorney who presumably and for whatever reason must be seeking about a 75% pay cut and is reportedly being investigated for providing domicile to a non-compliant sex offender from Minnesota,* and a far-right paranoid and author of a firearms manual for three-year-olds. Nevertheless, local wing-nut Steve Prestegard calls these two characters "obvious choices."

For all the same reasons why they're obviously very poor choices.

* See out-of-State agitators.

O ye foul Heretic! No deviation shall be tolerated.

Two religion professors at Calvin College had written scholarly papers suggesting that evidence of genetics and evolution raised questions about the traditional, literal reading of Genesis . . .

Yes this really is taking place in the 21st century.

Koch outfit friend of the [Wisconsin Supreme] court

"This relationship is one of those thumbs on the scale." "Prosser should step aside now." "It's a bad idea to stay on the case."

Herewith a "friend of the court" brief filed by the Institute for Justice, Minnesota chapter (a.k.a. "out-of-State agitators"), in the case of Wisconsin Prosperity Network v. Gordon Myse, a challenge to a State of Wisconsin campaign financing rule. The Institute for Justice was "initially funded" by the Bros. Koch and is sustained by 2.4 millions of dollars in Milwaukee's own Lynde and Harry Bradley Foundation generosity.

Wisconsin Prosperity Network is one of ten petitioners to the Wisconsin Supreme Court, which ten also includes such local right-wing luminaries as Republican candidate for Senate Kim Simac, the shouting Tea Party preacher "Apostle" David King, the Koch Bros. front group Americans For Prosperity, and the MacGyver Institute, which maintains what it calls — in what just has to be an ironic, postmodern jape — a "news service."

All are represented by oft-celebrated WISGOP counsel, James Troupis, along with our friend Rick Esenberg, known to profess the law — and lay effusive bouquets on the Bradley Foundation — at Marquette University.

Which is all fine and dandy, I'm sure, quite apart from the fact Supreme Court Justice David Prosser, to whose considered deliberation the petition now falls, retained one James Troupis to preserve Justice Prosser's bid to maintain his position among the "conservative" majority of that court, for the next ten years, and for which Mr. Troupis did zealously advocate (and did promptly bill a cool seventy-five thousand).

Notwithstanding its dubious provenance, is the Koch/Bradley amicus brief meritorious? Perhaps. The First Amendment is — and should be — an imposing barrier to restrictions on political speech. After all, it was none other than Justice Prosser who ruled that a State Supreme Court may not oblige its members, through a reasonable code of ethical judicial conduct, to refrain from slandering their colleagues without offending the First Amendment (a ruling that offends the intelligence).

Nevertheless it's worth noting that one of Justice Prosser's colleagues, Mike Gableman — for it was his unethical shenanigans to which the aforementioned ruling was designed to protect* — publicly interrogated a Wisconsin attorney for her alleged ties to the Open Society Institute, which for present purposes might be seen as a "liberal" corollary to the Koch/Bradley consortium. We thank Justice Gableman for providing the illumination upon his vague paranoias, but we don't expect any similar grilling of the petitioners' counsel during oral argument Setpember 6.

Another unique feature of this case dates to last August, when Justices Prosser and Gableman literally rewrote the Wisconsin constitution.

They did so to articulate a power of theirs which they had just divined, the power to prevent the two other equal branches of government from operating. This they did before even deciding whether the petitioners — or "Apostles," in at least one instance — had even bare standing to sue.

Whereas Article VII of the Wisconsin constitution empowers the Supreme Court to "issue all [injunctions] necessary in aid of its jurisdiction," the two self-advertised conservatives inserted language to the effect of "necessary in aid of deciding whether or not we have its jurisdiction."

More detail here and here.

There's a pretty decent argument to be made that Prosser/Gableman were way out of line, in terms of what "in aid of its jurisdiction" means in the Wisconsin constitution. It contemplates a jurisdiction that has been taken, a case that has been accepted in compliance with the judiciary's enumerated powers of jurisdiction. It doesn't contemplate empowering the court to slap injunctions on the executive branch prior to making any other judicial determinations at all, including whether or not the court itself has jurisdiction over the action in the first place.

If you haven't the jurisdiction, then how can you issue the injunction?

And it wasn't the last time the duo fabricated a novel judicial power.

I have no idea what's so "conservative" about either of them, frankly.

Except that they're "pro-life," or something.

* Here's a short film of Gableman, J. returning the favor, featuring Gableman denouncing, inter alia, "out-of-State influences." Seriously. Special disapprobation is reserved for Jesse Jackson, for some reason.

The best WPRI story of all times

From the archives:

Its thinking tanked, sez 7th Circuit panel

Note Reagan-appointed judges Posner, Ripple, and Kanne:

Although the authors of the WPRI Report argue that "[m]ost of the empirical research done on retail gasoline markets suggests that the primary problem in the market is not predatory pricing, but rather a propensity towards price collusion," there is no evidence in the WPRI Report of any actual collusion in the Wisconsin motor vehicle fuel market.

Conclude all three:

The lack of evidence in the record supporting Flying J’s allegations of collusive conduct by gasoline dealers is fatal to its claim that the motor vehicle fuel provisions of the Act are preempted by the Sherman Act.

On teh web: WPRI.

Kim Simac: An extreme Republican generating fear

I found her knowledge of economics, taxation, health care, education and governance to be incomplete and often inaccurate.

Kim Simac a conversational narcissist, sez Northwoods libertarian

Funny thing is, none of that will detract Republican voters tomorrow.

In fact, it will likely make her an even more attractive choice.

Justice Prosser will hear his own attorney's case

Who happens to be — you guessed it —James Troupis:

"This relationship is one of those thumbs on the scale." "Prosser should step aside now." "It's a bad idea to stay on the case."

Say three different legal ethicists.

This space pointed to the Prosser/Troupis connection four months ago.

The parties and attorneys are like a rogues' gallery of WISGOP swells.*

Looks good, huh?

* Plus a few out-of-State agitators.