One lucky, one not so much

A woman is being held after she allegedly pulled a gun from a dresser and pointed it at a Milwaukee police officer.

But see:

A Milwaukee police officer shot and killed a man after he began fighting with the officer, police say.

Resisting law enforcement is never the wisest course of action.

Quote of the day

Violinist Jeanyi Kim carried the theme with all the dignity of Margaret Dumont in a Marx Brothers film ...

Tom Strini reviews a Beethoven quartet.

Guy's got a lot of nerve

From the AP's schedule of events for tomorrow's inauguration:

— Invocation by the Rev. Rick Warren.

reverend, adj 1 : worthy of reverence : REVERED
reverence, n 1 : the state of being revered
revere, v tr 1 : hold in deep and usu. affectionate or religious respect; venerate

Yeah I don't think so.

Down to his last $3 billion

Australian dollars, so maybe that is depressing.

The yacht is sold with a complimentary Aston Martin.

h/t The Chief.

Milwaukee denied one hour of Bush

Because it will be noon here at eleven o'clock.
(Thirty minutes later in Newfoundland.)

Apologies for the previous error. I was distracted by the worst roughing the kicker penalty I have ever seen in my entire life.

Koschnick lost without Abrahamson

Jefferson County trial court judge and self-described "strict constructionist" Randy R. Koschnick has added to his case file,* with which he hopes to depose incumbent Wisconsin Supreme Court Chief Justice Shirley Abrahamson on April 7.

This time around he's going after State v. Post, a 1995 decision of the court which concerns Wisconsin's statutory Chapter 980. As the current State attorney general puts it, Chapter 980 "relates to the control, care, and treatment of sexually violent persons."

However, Chapter 980 is not part of the State's criminal statutes, but rather describes a set of civil procedures which purport to predict the future behaviors of individuals based on their past ones. That is, Chapter 980 applies to offenders who already have been convicted, sentenced, and served those sentences in their entirety.

In State v. Post, Justice Abrahamson was the sole dissenting voice, challenging on several constitutional grounds the wisdom and relative effectiveness of Chapter 980 compared with other available courses of action aimed at accomplishing the same preventative goals.

Needless to say, State v. Post is an ideal hobbyhorse for the advertised "conservative" candidate, because it features sex offenders, who are (often deservedly) social pariahs and guaranteed to whip the usual suspects into an emotive frenzy.

But let's step back from the incendiary political rhetoric for a moment.

Personally, I find it an odd campaign promise — and that's what it is, in effect, a promise — to side with a unanimous court on a particular question of law. While some might argue that a consistently unanimous court strengthens the rule of law and provides more uniform guidance throughout its jurisdiction, there is also much to be said for thoughtful and well argued dissenting opinions.

A court with a variety of competing viewpoints is a more intellectually rigorous court. Not only are the people exposed to a broader vista of the court's deliberative process, but dissenters force the majority to engage a wider range of considered perspectives more fully by addressing them head-on and perhaps even convincingly dispensing with them.

In other words, they enhance and potentially buttress the majority's reasoning (much like a skilled defense attorney often makes for a more thorough and convincing prosecution).

Also, we have seen from history that many dissenting views eventually become otherwise. Just ask Justice John Marshall Harlan. And certainly apparent social conservatives like Judge Koschnick and his supporters would like to see the federal courts' abortion dissents become the law of the land.

The foregoing notions transcend partisan or ideological considerations because, as far as I'm concerned, they apply equally to Chief Justice Abrahamson as to Associate Justice Clarence Thomas, who often stands in lone dissent (or concurrences that are nearly dissents) yet even his occasionally radical opinions are generally a welcomed addition to the controversy.

The desire to throw a judge off a court simply for not marching in automatic lockstep with her colleagues is, frankly, insulting to one's intelligence. Then again, few politicians realize much success by appealing to the critical faculties of their prospective constituencies (yet another reason why giving over the make-up of the Supreme Court completely to the electoral mob is not the greatest idea).

So-called conservatives already have a majority of dependable votes in Justices Roggensack, Prosser, Ziegler, and Gableman. Chief Justice Abrahamson's Chapter 980 opinion is but one reason to retain her presence on the court, not remove her from it.

The business outfit Wisconsin Manufacturers & Commerce perpetrated an even more disingenuous absurdity last election season when it made much of criticizing as a liberal outrage Justice Louis Butler's lone dissent in State v. Jensen, the reasoning underlying which was explicitly confirmed in June by the five most conservative members of the U.S. Supreme Court, led by Justice Antonin Scalia.

Yet, nary a syllable has issued from WMC or its fellow partisan hack-travelers expressing similar horror at the latter decision, naturally. Demeaning Scalia would undermine their entire project.

Incidentally, Justice Butler's dissent was once again vindicated by SCOTUS on Jan. 12, when it vacated a decision of the Minnesota Supreme Court (State v. Her) on similar questions pursuant to the Sixth Amendment's Confrontation Clause. More on that later.

* To be sure, it's not his case file, it's Justice Abrahamson's. We've yet to see any compelling reasons why one should vote for Koschnick as opposed to against the Chief Justice other than 'Because he's a conservative Republican.'

That Judge Koschnick claims to be a "strict constructionist" is neither a useful nor even meaningful description of his adjudicative methods; it is nothing more than a transparently coded promise of particular results, and promising particular results is not appropriate judicial conduct.

Steve Earle is 54

Guitar Town
Ben McCulloch
You're Still Standin' There (w/Lucinda Williams)
Lonelier Than This (Live)
Jerusalem
Christmas In Washington

To Hell And Back (1996 concert / documentary)

steveearle.com

Dear David Haynes

Thanks for the link. You wrote:

The Tenant takes our own Patrick McIlheran to task, calling him a "tinpot philosopher" for wondering just where God fits into all this.

Please let's not forget that my reaction was inspired by comparing Willie Hines, Jr.'s thoughtful curricular proposal for a "scholarly discussion of ethics" with McIlheran's clear suggestion that morality proceeds from the teachings of Christ (the "Him" of whom he spoke).

That, coupled especially with McIlheran's comically nonsensical gloss on the First Amendment's Establishment of Religion Clause and its application to public schools.

McIlheran wasn't simply "wondering just where God fits into all this." If that was the case, then his tinpot credentials would have remained for the time being confined to his habitually fallacious anecdotal outrage, the impetus for much of his daily scribbling.

But by opining that Mr. Hines was only "on to something," he's saying that Hines hasn't gone far enough.

Now, only a fool would deny that even a scholarly discussion of ethics — i.e., that branch of philosophy — doesn't touch on some questions of divine attachment. See, e.g., Plato's Euthyphro (or, for that matter, the link to the Hume/Kant dialogues provided earlier).

The trouble resides with McIlheran's embedded assumptions. Witness the following observation from fellow traveler Dad29 located at Prof. Esenberg's blog:

Well, it is certainly possible to found social morality on natural law without mentioning that natural law is a subset of Divine law, although it is philosophically impossible to specifically exclude Divine law, if pressed ...

Hello? The objective existence of "Divine law" (and, obviously, its equally Divine Revisor of Statutes) is simply assumed? I think not, or else one of these days, Lord knows somebody needs to prove it.

Never mind the countless human interpretations of this so-called "Divine law," even if one accepts that there is such a thing.

Whose is to take precedence, McIlheran's own personal Judeo-Christian version? Even within that widely disparate set of traditions, there are so many competitive doctrines, all declaiming their respective infallibilities, that any attempt at scholarly discussion under those circumstances is dead in the water from the get-go.

It's a chump's errand to even begin embarking on that path in the context of government schools, regardless of one's view of the correctness of the Supreme Court's Establishment Clause jurisprudence (which is primarily Prof. Esenberg's concern, although he seems to believe that the state's neutrality toward religion itself necessarily impinges on the moral deliberations of the religious).

In any event, casually bland insistences that "Divine law" somehow underpins and controls the arrangement of human society do not for a truly useful discussion of ethics make, and they certainly do not coincide with the culturally egalitarian mission of the public schools.

Yes, we all understand that some people believe this, that, or the other thing, and there's no crime in acknowledging any of it. Nor should they be made into pariahs for so subscribing (or not).

But for better or ill, the state doesn't get to push any particular sectarian belief at the behest of those particular believers.

The point being that there is common (even universal) ground on ethical matters to be discovered without introducing allegedly god(s)-given law (and god[s]-meted punishment) into the equation.

Mr. Hines, for one, gets it. McIlheran, it seems, does not. I applaud, however, the woolly hat, as it better facilitates the electrical conductivity of the neurons, notwithstanding its aesthetic features.

(P.S. It's illusory, not illustory, which looks to be somebody's trade name. Don't get me sued; the last thing I want to do is hire a lawyer.)

Earlier: Clutch said ...

Labels not working for Pastor Ted

Via Sam Sarver:

Coming from someone who hadn't spent the better part of his life condemning those who fit into "other boxes," I would think of this as actually enlightened. But given that the guy saying this now kept spewing homophobia right up until the moment he got outed by a male prostitute, it goes from being enlightened to a hilarious attempt at self-justification.

Good point. It's evident that a wide range of sexuality exists on a continuum. As does gender, for that matter. Such is nature, which is often inconvenient even for those who are just as much a part of it.

Earlier: Haggard gayhab seed finds no purchase

New Milwaukee blog

Just spotted this:

Walker's Point

I wonder if its proprietor's name is Walker (although, given the blog's content thus far, it likely isn't Scott Walker).

Dateline Racine: To catch a mayor

Troubling enough is a 51-year-old man pursuing a 14-year-old girl* but the sheer, brazen stupidity of the method is astonishing.

This JSOnline.com report contains a link to the criminal complaint against Racine, WI mayor Gary Becker, to which is attached a copy of the Yahoo! instant message transcript (Be warned: it's vomitous).

I'm no psychologist, but it seems to me that the degree of raw pathology required to engage in this sort of alleged behavior has to be close to equivalent in severity to the borderline pedophilia.

Similarly, the subject needs equal parts punishment and help.

* Or even a police officer masquerading as one.

People of the Midwest!

My sources in North Battleford, Sask. advise that a pocket of cool air will descend on your region this morning. Milwaukeeans venturing out of doors are advised to break out the long-sleeved t-shirts.

I'm reminded of a winter spent in Kapuskasing, Ont., site of the General Motors cold weather testing facility, when temperatures remained at -45C (or -45F, same thing) for eight weeks straight.

Let me tell you, we were grateful for our cardigans and long pants.

Clutch said ...

The following, in reply to this, which is said to be a critique of this:

There is quite simply no reason on offer to think that moral education requires religious reference.

The allegation that such shared moral vision as exists in the USA is actually a consequence of some Abrahamic religious convictions is irrelevant to the issue at hand. If this is historically accurate, to be sure, then nothing obviously precludes teaching that historical datum in history class; its likely controversial status has everything to do with its dubious truth-value (and, in practice, the motives for introducing it; [Prof. Esenberg] will know more about the Lemon Test than I) rather than any prima facie tension with disestablishment principles.

What's relevant to the question at hand, though, is whether inculcating religion is key to teaching kids how to be moral, by common standards. On this score, McIlheran's truly tinpot ramblings about not mentioning God and talking about God are carefully ambiguous between a fairly benign complete non-sequitur and a proposal at once substantive, groundless, and highly extremist.

The benign but goofy idea is that schools should merely "mention" or "talk about" god(s) without trying to inculcate belief in them, with the extraordinarily strange hope that this will somehow engender moral conduct. In its purest form, this would be the idea that one could explicitly encourage atheism from students, yet still engender greater moral behavior just by alluding to deities nevertheless. (Ironically, there's an interpretation of this that many atheists might accept: that talking about religion and its effects is a good way of learning morality — via negativa.)

(Touché — ed.)

On the other hand, the substantive idea, and the one that most advocates of morals-by-god clearly have in mind, is that teaching people to accept specifically religious precepts is what helps make them moral. (Otherwise, of course, we could just abstract away the god stuff and teach rules like PM's various Commandments as rules for a society — clearly not what all this handwringing is meant to support).

But it sounds so much more reasonable to moan about not being permitted to "mention God," doesn't it, than to come out and say "Public schools should teach people to be religious, in order to make them moral." This rather would seem to be inconsistent with both the Constitution and, um... reality.

eta: Continued ...

Clutch is a frequent and consistently edifying commenter at this here blog and elsewhere.

Bono's big band boner

arr. Don Costa, not Nelson Riddle.

Catching that mistake would have required the editor to finish reading the column — which, given the material, is a lot to ask of anyone.

QFT.

Gableman loses dismissal bid

Thank goodness Milwaukee Journal-Sentinel reporter Patrick Marley is still paying attention to this story (that is, if you can find it submerged within the barely navigable bowels of JSOnline.com):

A three-judge panel considering an ethics complaint against State Supreme Court Justice Michael Gableman today dismissed a request by Gableman that the state Judicial Commission be barred from continuing its case.

Judicial panel denies latest Gableman manoeuvre

[Style point: Capitalize State when referring to one of the 50.]

First, issue a full disclosure

Re: Issue an injunction

By all means, editorialize against the City of Milwaukee's proposed sick leave ordinance. And by all means, defend the reasoning of the Metropolitan Milwaukee Association of Commerce's lawsuit against the city seeking to prevent the ordinance's implementation.

And by all means, publicly urge the presiding circuit court judge to rule in MMAC's favor at the latter's motion hearing on Feb. 6.*

But do disclose that Steven J. Smith, the chairman and CEO of the Journal-Sentinel's parent corporation, is an officer of MMAC and as such was among those who authorized the lawsuit in November.

This information may be useful to a reader.

* Not Jan. 29, as the J-S editorial board tells us. Also, does the editorial board actually believe it can influence a judge's disposition on the motion? Talk about delusions of grantor.

Patrick McIlheran, tinpot philosopher

Common Council President Willie Hines, Jr. contributed a thoughtful piece to the Milwaukee Journal-Sentinel on the weekend.

It concludes:

Far too many of our children are maturing into adulthood without even engaging in a scholarly discussion of ethics. They are losing out — and so are the rest of us. When we ignore what is moral, we are not being amoral. We are being immoral.

And along comes "right-wing guy" Patrick McIlheran to debase it:

Frankly, I think it would be hard to teach morals and ethics without some reference to God, however understood. That’s why I send my kids to a school that’s free to mention Him.

Well, bully for McIlheran.

It's anyone's guess why it should be difficult to discuss ethics and morality without invoking God. Many of us do it all the time. McIlheran fails to explain why that is, but he does claim to understand the reason why we mustn't:

[Eighty thousand Milwaukee public school students], because of a certain narrow-minded secularity in American political culture, can’t mention God.

McIlheran goes on to bemoan the lack of "Judeo-Christian" curricula in government schools which, last I checked, are available to children (and adults) of any and all ethnic and cultural persuasions.

That public school students "can't mention God" is both complete nonsense and absurdist "right-wing guy" paranoia, obviously.

And the only certain narrow-mindedness in evidence is Patrick McIlheran's woeful inability — at contraposition to Alderman Hines's sensible pragmatism — to conjure an ethic free from alleged supernatural commands and threats of otherworldly damnation.

(Indeed, one searches the criminal statutes of Wisconsin in vain for even a single "Thou shalt not" or a Misdemeanor Class H for Hell.)

Pirates win some, lose some

Three pirates managed to survive, but lost their share of the $3M ransom when swimming to shore, reports said. The drowned pirate was apparently the only one who managed to hold on to his share of the ransom. — BBC News / Africa

Johnny Thunders — Pirate Love

Brainless in Gaza

I think media should be abolished from, uh, you know, reporting. — Joe the Plumber, embedded journalist

And people actually admire this guy?

Via Hilzoy (video).

I beat Howard Bashman

Did Illinois U.S. Senate appointee Roland Burris win or lose in today's ruling of the Supreme Court of Illinois?
Posted at 02:40 PM by Howard Bashman

"Magic Man" simultaneously loses/wins Ill. Sup. Ct. petition
Posted at 02:40 PM by illusory tenant

Meanwhile, Ill. Sec. of State Jesse White signs ... something.

We don't need no stinking signature

"Magic Man" simultaneously loses/wins Ill. Sup. Ct. petition

[Roland Burris's] request for issuance of a writ of mandamus is denied [Read: No, you cannot have what it is that you want].

Burris v. White (.pdf; 10 pgs.)

Mr. Burris issued a statement Friday saying, "I am very happy that the Supreme Court ruled supporting our argument that everything surrounding this appointment was legal and complete" [apart from denying our argument, that is].

Power up that granite chisel one more time, this guy is the best.

Next stop, U.S. Senate Rule II (once again). It might be interesting to see how Harry Reid, a leader of the federal legislative branch, reacts to getting ordered around by some piker State's judicial branch.

The Framers' occasional wisdom

Bill Christofferson observes that Wisconsin Supreme Court hopeful Randy R. Koschnick's spending a weekend at a gun show in La Crosse "speaks volumes about the candidate and his candidacy."

I suppose it does, although it may say even more about the baseline idea of electing Supreme Court justices in the first place. Political candidates are naturally going to gravitate toward where their perceived constituency is.

But there's something unseemly about campaigning for this particular office. While the elections are in theory (and by law) "nonpartisan," that notion is by now pretty much pure fiction. The court's latest member, Michael Gableman, was (is?) as partisan as they come.

If anything could have indelibly forged a hardened cynic from a bright-eyed idealist, it was last year's State Supreme Court election.

The present aspirant shows every sign of waging a likeminded political campaign, adorning himself as he has with the ham-handed Republican phraseology "strict constructionist" and so forth.

At his website, Judge Koschnick complains that a 2005 decision of the Wisconsin Supreme Court, State v. Knapp, "expanded the rights of criminal defendants in these types of cases beyond what is required by the United States Supreme Court and the United States Constitution" (without any explanation as to why this is such an objectionable thing, incidentally — it clearly affords an otherwise unobjectionable rhetorical opportunity to scare up the "criminals").

Presumably we won't be hearing similar protestations from the same quarters related to electing Supreme Court justices, who under the federal constitutional regime are appointed through a nomination and approval process which, although far from perfect itself, does seem to guarantee a certain modicum of quality control.

I don't believe that the Framers even considered the popular election of Supreme Court justices. After all, they didn't even trust the mob to populate the Senate. It got to vote for the House yahoos, that's it.

Apparently deference to the Framers of the U.S. Constitution is often entirely a matter of convenience, desirable when it suits a particular political agenda but otherwise, not. As for myself, it isn't that I don't trust the people to their votes, it's that I don't trust the candidates.

Pictured: the patrician, elitist, foreign-born Alexander Hamilton.

Don't go away mad

Just go away.

Howard Kurtz reports on AK Gov. Sarah Palin's most recent public bout of hypocritical self-pity, in which losing an election is the fault of everyone and everything other than herself. Asks Palin:

When did we start accepting as hard news sources bloggers, anonymous bloggers especially?

As early as Oct. 28, I reckon:

Senator Obama said that he regretted, he regretted that the Supreme Court hadn't been more radical and he described the Court's refusal to take up the issues of redistribution of wealth as a tragedy. And he said that he also regretted that the Supreme Court didn't break free from the essential constraints that were placed by the Founding Fathers [sic] there in the Constitution, that's a quote.

That's a lie, is what it is.

I remember it too

The trouble with Sanjay Gupta

Paul Krugman is right. It isn't about disliking Michael Moore, it's about Dr. Gupta accusing Moore of lying without any basis.

I recall that segment distinctly and not only was Gupta way out of line, but one of the anchors mentioned that the network would be repeating it later and be sure to watch, "If you can stand it."

It wasn't exactly CNN's finest moment.

Local blogger's fortunes improve

Considerably, it would appear.

Incumbent school board member is nine signatures short

Charlene Hardin has been a board member for 12 years, representing a north side district. Three candidates are challenging her bid for a fourth term: substitute teacher Gloria Gaston; Michael Mathias, a blogger and Medical College of Wisconsin employee; and Annie Woodward, a retired county employee.

Earlier: Another high-tech lynching.

The Colonel ruined everything

I Forgot To Remember To Forget — Elvis Presley

Quote of the day

"If the Illinois Supreme Court doesn't tell the Secretary of State to sign the certificate, then the Senate's going to have to find another way to back down." — Bob Shrum

Brilliant.

Gableman drops 1st Amendment challenge

Well, this is kind of disappointing news, at least for those aficionados of recreational litigation:

Rather than proceed with a lawsuit against the Wisconsin Judicial Commission, Supreme Court Justice Michael J. Gableman and his attorneys will save their arguments for a three-judge panel which will review allegations of misconduct against the justice.

In a response to the WJC’s request to dismiss the countersuit, attorneys for Gableman agreed to abandon the claim without prejudice on Jan. 5, but maintained his objection that the proceedings violate First Amendment rights.

Gableman reportedly had until Jan. 5 to refile his formal constitutional challenge against a provision of the Wisconsin Supreme Court Rules after it was dismissed last month.

Of course he'll still be maintaining that the provision doesn't apply to him; he's just abandoning his broader argument that it doesn't apply to anyone else either. And, still no hearing scheduled.

Speaking of Gableman (& Co.), here's a pretty sharp editorial in the Green Bay Press-Gazette this morning.

Baked oatmeal goes on sick leave

When a local restaurant closed yesterday, one if its owners told a Journal-Sentinel reporter that "the new Milwaukee ordinance that requires city employers to provide sick days to their workers would have made it difficult for her to continue in business."

As if on cue, the paper's "right-wing guy" Patrick McIlheran seized at this scrumptious tidbit and composed a righteous screed entitled, "Milwaukee gets sick leave, Heinemann's dies of the grippe."

Never mind that nearly 70% of Milwaukee voters approved the ordinance on Nov. 4. Never mind that the ordinance isn't set to take effect for more than a month.

And especially never mind that the Metropolitan Milwaukee Association of Commerce (MMAC) filed a civil action against the city last month alleging that the ordinance violates every fundamental precept of State and federal law except for the Geneva Convention (or maybe there's an amended complaint in the works).

In the meantime MMAC, one of whose officers is McIlheran's corporate boss Steven J. Smith, is seeking an injunction against the ordinance until its complaint is more fully litigated.

There's a hearing on that motion scheduled for Jan. 29* in circuit court and frankly, it stands a pretty good chance of succeeding.

One of MMAC's more compelling arguments is that the skimpy language presented to voters in November in no way described what turned out to be the substance of the ordinance which, MMAC claims, guarantees numerous paid days off not only to victims of sexual abuse and stalking, but also to the stalkers themselves.

But of course let's not let any of that get in the way of Patrick McIlheran's typically fallacious stoking of his conservative fans.

* Since reset for Feb. 6.

WSJ edit board reads this blog

It remains to be seen whether the price Harry Reid extracted for the Senate seat was Roland Burris's promise not to run for a full Senate term when his appointment expires in 2010.

Price. Extracted. Promise. Pay for play.

Covering the death of Israel

Joe the War Correspondent

h/t grumps.

Why should she?

According to Jefferson County Circuit Court Judge Randy R. Koschnick, he "remains hopeful" that Wisconsin Supreme Court Chief Justice Shirley Abrahamson will sign his "clean campaign pledge."

In a letter dated January 5 and posted at his website, Koschnick purports to remind the C.J. of his twin announcements issuing last November: his intent to challenge her seat on the bench, and the drafting of his own personal "pledge."

"As of the date of this letter," Koschnick writes most recently, "I have received no response from you or your campaign."

And? Nobody can reasonably draw any inference from this, other than the fact that Koschnick says he's received no response.

Koschnick, on the other hand, seems to find it significant. It isn't.

Judge Koschnick might be better off acknowledging the ultimately dispositive issue in State v. Knapp, that law enforcement officers deliberately and intentionally withheld the suspect's Miranda warning.

Or, as Koschnick well knows, that Matthew J. Knapp was found guilty at trial, convicted, and sentenced (by Judge Koschnick) to life in prison in spite of the exclusion of the physical evidence in question.

Even better and more interesting, acknowledging that the U.S. Supreme Court's guidance on the aforementioned dispositive issue isn't quite as clear as Knapp's detractors would like you to believe, consisting as it did of two conflicting plurality* opinions.

How would that be for a pledge.

* A decision by only four (or fewer) of nine justices.

Feingold too

Sen. Russ Feingold of Wisconsin asserted Wednesday that Roland Burris should be seated in the Senate, becoming the second Senate Democrat to publicly break from party leaders on the controversial appointment.

In an interview, Feingold said Democratic arguments that Burris should be denied a seat because he was appointed by the scandal-tainted Illinois Gov. Rod Blagojevich are weak.

"There's a growing sense that there is a pretty flimsy basis to deny what is clearly a legal appointment," said Feingold. "Despite the controversy, we can't go down the road of having essentially a few subjective considerations to decide who gets seated. That would be an affront to States and their laws."

Burris prepares latest mausoleum engraving

Feinstein sees the light

Regardless of the charges against him, IL Gov. Milorad R. "Rod" Blagojevich still has the right [better: the authority] to fill the Senate vacancy, Sen. Dianne Feinstein (D-CA) said, and keeping Roland Burris from taking his seat could have implications for appointments by other governors.

Feinstein, most significantly, is the chairman of the Senate Rules & Administration Committee.

I really hope Burris and his "small mob of lawyers" keep pushing this. There are some suggestions out there that Harry Reid will offer the seat to Burris so long as Burris promises not to contest it in 2010.

If that is the case, Burris should resist, but publicize Reid's negotiations in a context that likens them to the very "pay for play" allegations of which Blagojevich is accused and form the basis for Reid's resistance in the first place. Now that would be devious.

Then, the next time Harry Reid says "We lost the war," he'll be right.

Euphemism of the day

What once was a press conference is now a media availability.

That sure is some cringeworthy jargon right there. And, apparently, the "Obama Team" gets to provide the transcript.

'I got yer media availability right here.' [rude gesture]

City sick leave ordinance tested

The Milwaukee Journal-Sentinel editorial board has a stalker.

Which is more patently ridiculous: the conservative blogger's "project" or the paper's acknowledging its existence? Close call.

Must be another slow news day.

eta: The editor since removed the word "stalker" from the headline. Thanks a lot, for ruining my clever sick leave ordinance joke.

Gableman legislates from the bench

This morning the Wisconsin Supreme Court renumbered, rewrote, and fabricated from whole cloth several entirely new provisions to Wis. Stat. § 809.23, a rule of appellate procedure governing the precedential value of unpublished decisions of the courts of appeal.

Jefferson County Judge Randy R. Koschnick, the latest aspirant to the State's highest court, turned up Saturday at a gun show in La Crosse, where he repeated the claim that "Judges are like umpires, they just call balls and strikes. They don't make laws, they apply them."*

Justice Gableman had also pledged not to "legislate from the bench."

* What then-D.C. appellate judge Roberts actually said was, "Judges are like umpires. Umpires don’t make the rules, they apply them."

h/t Terrence Berres.

Harry Reid's unwisely chosen battle

The most succinct summation of the Roland Burris flap you will find, from Erwin Chemerinsky, concluding with the most important reason why Harry Reid & Co. are ill-advised in pursuing it:

For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path.

That Sen. Reid apparently enjoys the former constitutional law professor Barack Obama's assent in this matter only makes it worse.

If this case ends up in federal court, which appears likely given Burris's confrontational statements, there seems little chance its circumstances will be used to support a proposition that the Senate has virtually carte blanche power to exclude members based on its distaste for the individual exercising his authority to fill a vacancy.

As for Harry Reid's latest trope, that Burris's appointment is invalid because it lacks the signature of the Illinois secretary of state, the latter's refusal is little more than a politically symbolic act of civil disobedience in direct contravention of his statutory duties.

He has no veto power over the governor's authority and that U.S. Senate Rule's requirement for his signature hardly rises to the level of a federal constitutional qualification under Art. I, Sec. 5.

Also, fwiw: One of my favorite Republican observers, Ed Rollins, reminds us that Harry Reid is already the least popular figure in Washington, D.C. and maybe even in his home State of Nevada.

WH OLC: Dawn Johnsen

Glenn Greenwald with an informative roundup.

A bibliography guaranteed to make conservatives crazy.

Legal Director, National Abortion & Reproductive Rights Action League (currently NARAL Pro-Choice America) (1988-1993)

Staff Counsel Fellow, American Civil Liberties Union Reproductive Freedom Project, New York (1987-1988)

Oh boy, here we go.

Ill. Sec. of State now controls U.S. Senate

Item: Burris rebuffed by officious parliamentarian.

I do not see where the Senate believes it has the authority to define "the executive" of a state differently from the definition adopted by a state itself. — Sandy Levinson

Me neither. I remain convinced that Gov. Milorad R. Blagojevich is the only actor in this entire farce who isn't behaving lawlessly.

Also from Balkinization, this amusing reader comment:

[Harvard law professor Laurence] Tribe (and you and all the others) are still tap dancing, rather insolently, around the utterly unambiguous text of [U.S. Const. art. I, § 5, cl. 1 and the 17th Amendment].

At least have the intellectual honesty to state, openly and notoriously,* what your analytical flowchart really is:

Step 1. Dislike the plain text.
Step 2. Disregard the plain text.
Step 3. Congratulate yourself.

Not an entirely unfair assessment, roughly put.

* That's the term of art Gov. Blagojevich used when he publicly dared the FBI to tape record his telephone calls. Nice touch!

Reid more powerful than Yahweh

Roland Burris took the stage to a crescendo of drums, organ music, and applause. "We are hoping and praying that they will not be able to deny what the Lord has ordained," Burris said.

That's decidedly peculiar. I would have expected the Lordly ordinations to have been irrebuttable presumptions. Blagojevichian ones, maybe not so much, and more vulnerable to hope and prayer.

Meanwhile Senate majority leader Harry Reid told NBC's David Gregory that the Senate can "do whatever [it] wants to do" in order to bar Burris from the premises. According to "We the people," apparently (and also according to 'They the people,' of Illinois*).

Why doesn't the U.S. Senate bar Harry Reid, then, is my question.

If, as has been reported, Reid himself had conversations with Blagojevich over the vacancy created by Barack Obama, then isn't Senator Reid also a component of the "taint" he claims prevents Roland Burris's appointment? Talk about a conflict of interest.

* When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

10 Ill. Comp. Stat. 5/25-8 (2006).

But which one is a secret

Reid cites legal authority:

Reid called Burris a "tainted appointment" because of the governor's alleged misconduct, although he said he did not know of anything wrong with Burris himself.

That should narrow the legal authorities down a bit. If I'm not mistaken, Milorad Blagojevich is the one with the authority.

Scalia was essential to morality

At the outset of an article in the Fall 2008 Marquette Law Review entitled, Accommodating Respectful Religious Expression in the Workplace, University of Denver professor Nantiya Ruan quotes approvingly from U.S. Supreme Court Justice Antonin Scalia thus:

"[M]orality [i]s essential to the well-being of society and ... encouragement of religion [i]s the best way to foster morality."

What's initially remarkable is how the article's author fast forwarded this sentiment 207 years via square bracketing. Here's what Justice Scalia actually declared, in his dissent to McCreary County v. ACLU, one of a pair of Ten Commandments cases decided in 2005:*

Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.

And he was (nor is) not, as Prof. Ruan claims (or claimed) in her footnote, "citing the Framers of the United States Constitution."

If he was citing anything other than prior opinions of his own black robed colleagues, it was the Northwest Ordinance of 1798:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

Clever how Scalia left out knowledge, which may be completely divorced from religion. Perhaps because knowledge often undermines religion, ultimately leads many away from religion, or even forces religion to recalibrate its own central dogmas (Copernicus, anyone?).

So can morality be divorced from religion, for that matter.

While nobody would contest the role religion has played and does play in American society, the notion that religion is necessary to the ordering of government is spurious enough. (Maybe in Iran.)

That it's necessary to morality is, frankly, a profoundly offensive proposition to lots of non-participants in religion who nevertheless partake constantly in morality without religion at all.

Isn't that, at bottom, what American law is?

In a typically McDreary v. ACLU recitation of what the Framers "believed" — this coming from the venerated arch-textualist — Justice Scalia delivers his support for government endorsed religion based on a "because they always did it that way" hypothesis.

I say dreary because more than one can play at the Framers-quote game, and there's plenty of hostility toward religion — and the clergy especially — to be unearthed among those esteemed gentlemen.

But support for religion is found nowhere in the Constitution.

Further along, Prof. Ruan repeats Scalia's dictum, asserting, "more than any other, [this quote] signals the Court's likely journey forward: encourage religion in order to foster morality in our world."

And this is an appropriate role for the U.S. Supreme Court? Again, one would be hard pressed to find any such intimation in Article III.

Some "knowledge" to bear in mind, perhaps, in light of any forthcoming allegations of "liberal judicial activism" and "legislating from the bench" issuing from the ardent disciples of Justice Scalia.

92 Marq. L. Rev. 1 (.pdf; 32 pgs.)

* Following his legally irrelevant recollection of a personal European vacation anecdote and a citation to foreign law — that of France, no less — and in an opinion almost entirely given over to a plauditory endorsement of one particular religion: his own, Christianity (assuming, arguendo, that trinitarianism equals monotheism).

P.S. Thanks to Prof. O'Hear for the link.

Our godly inauguration

Via the blog Feminist Law Professors, a few additional pearls of wisdom courtesy the renowned "Pastor" Rick Warren.

Here’s Rick Warren’s response to the whole controversy: those who oppose his presence at the inauguration have engaged in "hate speech" and are "Christophobes."

There shouldn't be much doubt on the issue among progressives and feminists. Doesn't Warren's response make that clear?

It was already more than clear enough beforehand but, yes.

And beyond even "Pastor" Warren's comically ill-informed homophobia, there's also his atavistic, patriarchal sexism:

According to Warren, it is better to maintain an abusive relationship than seek the immediate relief of divorce.

Warren’s views give abusive spouses one more tool to control their victims: the Bible.

His teaching undermines the resolve of women who are debating ending an abusive marriage. According to Warren, a Christian who divorces another Christian will ultimately look back and say, "I told myself it was for a right reason but now I realize it was more my selfishness than anything else."

Great call, Obama. Change, we need. Not more of this drek.

John Paul Jones is 63

Houses Of The Holy

What a great song.

One more, from the vastly underappreciated Presence:

Hots On For Nowhere

Swift Boaters 4 Koschnick

Jef Hall of Oshkosh, WI points out that the Hon. Randy R. Koschnick is availing himself of the same fundraising software utilized by a great number of other notable — and notorious — Republicans.

That alone doesn't establish a connection amongst the parties, of course, but another Donatelli Group project is this one, the Judicial Confirmation Network which, while focusing mainly on federal appointments, rehearses just about every hoary conservative cliché related to the judiciary you can imagine.

Some of which we'll no doubt hear from Koschnick himself.

Memories ...

Let us pray. Or else race-bait. Or both.

Whatever it takes:

U.S. Rep. Bobby Rush, D-Ill., meanwhile, tried to ratchet up pressure on [U.S. Senators] Durbin and Reid to accept Roland Burris, saying he has organized a "national coalition" of business, civic, legal and religious leaders to pressure Senate Democrats to seat Burris. The group planned to meet at 6 p.m. Sunday at a South Side church for a public prayer service.

Rush, who has said Burris should be seated in part because he'd be the only African-American in the Senate, said Reid shouldn't "stand in the door of the Senate" next week to stop Burris from becoming Illinois' next senator — an attempt to connect Reid and former Alabama Gov. George Wallace, who in 1963 tried to block the door of an auditorium at the University of Alabama in a symbolic attempt to block two black students from enrolling.

American politics is truly the best.

End Times for Gonzo

Andrew Cohen brutalizes Alberto Gonzales:

Instead of pretending he is a martyr, and thereby insulting the brave public officials who did stand up for the Constitution these past eight years, maybe Gonzales could instead become a professor at Pat Robertson’s Regent University, the third-tier* law school whose graduates (Monica Goodling, for one) turned into the hacks that ruined the credibility of the Justice Department. Takes one to teach one, right? Whatever.

Muy Ouch.

* Fourth-tier, actually.

Double the complement of armed guards

And Katie bar the doors. We've got another Senator to block.

Dadburnit, it's Big Bad John, fighter of heathens and hellions.

Pretty vacant

From the latest round of professors chewing over whether the U.S. Senate can lawfully bar the appointment of Roland Burris:

At least Amar and Chafetz have made a plausible legal argument, as opposed to Senator Reid's legally vacant pronouncements.

What gets me is Barack Obama paying apparent lip service to the said vacant pronouncements. Didn't he used to be a senior lecturer in constitutional law at the top rankin' University of Chicago?

I think it's about time the president-elect gave us a proper advisory opinion. First the facially unconstitutional appointment of Hillary Clinton to Secretary of State (albeit as yet unconfirmed). Now this.

If only to regulate Steven Calabresi's blood pressure.

[A selection from Sir Paul McCartney's iTunes Celebrity Playlist.]