For Charlie Sykes, mendacity is the law

Tweets the local wing-nut howler and reputed "blogfather":

UPDATED: "Sickouts" are illegal... here's the law.

"The law," according to Sykes's trusted source,* WPRI "senior fellow" Christian Schneider, is an informational paper prepared by the Wisconsin Legislative Fiscal Bureau. First of all, informational papers are not "the law," although they may make reference to "the law."

This one does: The Municipal Employment Relations Act. Second of all, Sykes and Schneider are claiming that the "sick-outs" staged by some Wisconsin teachers in protest of Governor Scott Walker's move to repeal the collective bargaining rights of public employees are "strikes." What they base that on is not explained by either of them.

Third of all, even assuming arguendo that the sick-outs are in fact strikes, these ones are not prohibited by the real law, Wis. Stat. § 111.70(1)(nm) (a provision of the Municipal Employment Relations Act), which defines "strikes" for all of the administrative directives (law) and informational papers (not law) which proceed from it:

"Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike" . . .

Emphases added. That is the actual "law" to which Sykes and Schneider's citations ultimately lead, whether they know it or not.

So. These sick-outs are not "for the purpose" described above — Walker and the Republicans in the Wisconsin State legislature are clearly not municipal employers** — and furthermore: "The leader of Wisconsin's largest teachers union is asking all 98,000 members to head to Madison Thursday and Friday." That would be the "authorized or condoned," as obviously the teachers' union leader is aware that both Thursday and Friday are work days. See how easy that was?

Easier than lying, which requires mendacity. And a wing-nut.

If Schneider and Sykes want to accuse teachers of breaking the law, they'd better have better grounds for it than their own foolishness.

* That was his first mistake.

** See Wis. Stat. § 111.70(1)(j), defining municipal employers.

Oppo research fail

The Republican candidate for Milwaukee County Executive, Jeff Stone, doesn't even know his opponent's name: It's Chris Abele.

Pronounced Ably.

Chris Abele and the rest of the conservative's opponents cumulatively drew 57% of the vote, so Jeff Stone had better learn Abele's name.

The enduring genius of Patrick McIlheran

'He's a right-wing guy who links to good reading on teh Web'

The Milwaukee Journal-Sentinel's award-winning calumnist Patrick McIlheran haplessly attempts to erect some kind of argument on a piece of nonsense authored by James Taranto in the Wall Street Journal, whose own premise has to do with Justice Antonin Scalia allegedly violating the Code of Conduct for United States Judges.

But sadly for both Taranto and McIlheran, the referenced Code does not apply to Supreme Court Justices.* McIlheran's rendering of Judge Ralph Adam Fine's opinion in Wisconsin Judicial Commission v. Gableman is likewise inept, but we'll have to save that for another time. Because for all the local conservative intelligentsia's** hooting about the three Wisconsin Supreme Court challengers' raising the Gableman case, they sure do love to talk about it themselves. So don't worry, we haven't heard the end of it. From the conservatives.

* Mr. Taranto actually links to the Code, but apparently scurried past the introduction to all the 'shoulds' and 'should-nots,' which in any event aren't especially punishing on anybody, something McIlheran might have noticed himself if he'd paid any attention to Judge Fine.

** Generally the triumvirate of McIlheran, Sykes, and Esenberg.

Wisconsin Supreme Court primary results

With 99% of precincts reporting:

David Prosser — 225,256 (55%)
JoAnne Kloppenburg — 102,040 (25%)
Marla Stephens — 43,997 (11%)
Joel Winnig — 37,149 (9%)

Total — 408,442

I believe that's around 13% of registered voters participating.*

Fifty-five percent doesn't strike me as terribly convincing at this point. Especially if Governor Scott Walker keeps pissing off more of the other 87% with his aggressively "pro-business" agenda, which the Prosser campaign pledged to "complement," a stance even Prosser's own cohort of political supporters enthusiastically acknowledges.

There's more than enough unexercised franchise out there to close that gap and surely Justice Prosser is not going to benefit from any Stephens or Winnig supporters at the general election on April 5.

Recall that in 2009, Chief Justice Shirley Abrahamson, whose "liberal" credentials are sterling, swept 69 of Wisconsin's 72 counties over Jefferson County Circuit Judge Randy Koschnick, a jurisprude who presented himself to voters as to the right of Clarence Thomas.**

* See comment: It's 9.3 percent of the voting age population.

Mr. Magney is the GAB's public information officer.

** But still slightly to the left of Attila the Hun, as the saying goes; Koschnick enjoyed a prior incarnation as a State public defender.

Charlie Sykes, he's Milwaukee's creddible source

Tweets the medium wave wing-nut and self-styled education expert:

In fact Charlie Sykes's "professor" is a UWM student teaching assistant who moved a Monday session from the classroom to a rally — on campus beside the library* — protesting against the governor's plan to repeal the collective bargaining rights of State employees.

In relation to our course's examination of questions of class, economics, and the university, and our reading about alternative research strategies and writing forms, we will use the rally as a learning experience for our course.

Scandalous. And the pressure: unbearable.

The TA also tendered a full disclosure to the class as to why and how his own personal situation would be affected by the governor's action.



Rumor has it there are people who take Charlie Sykes seriously. At Sykes's Journal Communications, Inc. website, Sykes disciples mocked the TA for mixing up "effect" and "affect," but nary a mention of the so-called blogfather's frequent spelling challenges.

* Spaights Plaza is at most a three-minute walk from anywhere.

Not an endorsement so much as a sad reality

On Wisconsin primary election day

Rick Esenberg doesn't care for the fact that the three challengers to incumbent Wisconsin Supreme Court Justice David Prosser — their fate will be decided today — have raised the specter of Prosser's colleague Michael Gableman, whose own electoral shenanigans have contributed mightily to the much-publicized rifts among the court.

While Prof. Esenberg enjoys relitigating the Gableman affair* as much as anyone, he just doesn't remember it very well. Esenberg seems to think that Justice Prosser and his two conservative allies in the matter, Justice Roggensack and Justice Ziegler, found that Gableman's notorious 2008 teevee ad was "misleading." They didn't.

Far from deeming the 30-second spot misleading, what they actually found is that "each statement in the advertisement is true" (¶24).

The worst the three justices would say about it was that it was "distasteful," and even then that wasn't a conclusion they could arrive at sua sponte. They had to "acknowledge" that it was distasteful. From whence the said acknowledgment was derived, we aren't told.

What is true is that all three of Prosser's challengers have invoked Gableman. One of them, Joel Winnig, has invoked him in a manner unlikely to heal whatever discord exists on the court: he's called Gableman "a cancer" who "continues to pollute" the Supreme Court.

That's not helpful, especially as collegiality on the court has been and will continue to be — up until the general election in April — an issue.

The other two, JoAnne Kloppenburg and Marla Stephens, have been more circumspect and the point of my observation to which Prof. Esenberg took up cudgels is that the Milwaukee Journal-Sentinel did a disservice to the latter candidates when it lumped them together with Winnig. And, in its illogical endorsement of Prosser, the paper continued to ignore the distinction. More on that later, perhaps.

As for today's primary, from which surely Prosser and one of the three challengers will emerge, Kloppenburg and Stephens are the two most viable candidates. They are equally experienced, capable, and temperate. Both would make fine State Supreme Court justices.

As a question of pure politics, however, Stephens's experience has been with the State public defender's office, whereas Kloppenburg is an assistant attorney general, a member of the executive branch tasked with enforcing the law as set forth by the legislature.

Gableman's advertisement demonstrated the depths to which the right-wing smear machine will stoop to defame any lawyer who has spent time ensuring the constitutional rights of criminal defendants are zealously protected. Indeed, it's getting cranked down already, with the appearance of a phony "unbiased" front group directed by a former foot soldier to the mildly deranged evangelist Pat Robertson.

Prof. Esenberg's pal the wing-nut howler Charlie Sykes, who has a 50-thousand-watt platform to help disseminate those smears, is in on the scam as well. It's a depressing reality, but Marla Stephens would face less easily surmountable obstacles than JoAnne Kloppenburg.

* And why not. It's a fascinating case from a variety of perspectives.

Plus it remains pending to this very day.

WPRI's Jack of Napes

WPRI "senior fellow" Mike Nichols advances a ludicrous false dichotomy* between science and tarot cards and concludes: "tarot cards." If anybody can make sense of this mess, let me know.

* See also the trilemma: Lord, liar, or WPRI senior fellow?

Loophole Club For Grothman

The CFG went on to molest another election.

Wisconsin Club For Growth is running ads on behalf of David Prosser, but, says GAB spokesman Reid Magney, those ads have not triggered additional funds. "That's because they don't say, 'Vote for Justice Prosser,' they don't say, 'Elect him,' they don't use any of the magic words that make it a campaign ad,"* Magney says. So the law is fraught with loopholes.

They don't even bother to attempt concealing their hypocrisy.

* Of course it's a campaign ad, but the law says no. Ridiculous, yes?

h/t Mr. Bumble.

Protests planned in Arab dictatorships, Wisconsin

Dane101's guide to action against Wisconsin's union-buster-in-chief

And Mike Plaisted notes that local squawker James "Hip Musings" Harris may have inadvertently broken some news, but with a caveat:

It is entirely possible that Walker told Harris that because he knew he was stupid enough to believe it and it would end what must have been a tedious ["national"] conversation with him.

Those labor unions that supported Scott Walker's career political ambitions are exempt from the governor's stomping all over their collective bargaining rights, which even the otherwise dependable Republican lapdog Patrick McIlheran admitted yesterday on Charlie Sykes's Milwaukee teevee programme was a quid pro quo kickback.

"I'm very disappointed," said [Milwaukee] Ald. Michael Murphy, a critic of the newly elected governor. "It seems to be almost like a pay-to-play."

Huh. So McIlheran is not just a voice crying in the wilderness.

And lest we forget:

Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and [Republican] legislature. — Prosser for Supreme Court

That's encouraging too (bedrock constitutional principles aside).

Voters have a chance to stop those efforts in their tracks tomorrow.

Candidate websites:
JoAnne Kloppenburg
Marla Stephens
Joel Winnig

Scott Walker suspends democracy in Wisconsin

According to the Wisconsin State Employees Union:

We know Walker is trying to bait us by mobilizing the National Guard, hiring an Ohio security firm to staff any facility and instructing the capitol police to meet with legislators and "advise" them not to meet with constituents in their districts.

Amazing, and repugnant, as Chief Justice John Marshall would say.

Club For Grothman

The Club For Growth is running teevee ads* for Justice Prosser:

"Bagman for the ultra rich." — John McCain, WaPo, 01/17/03
"The Club for Greed." — Mike Huckabee, Fox News, 08/18/07
"Stupid" and "counterproductive." — Karl Rove, NYT, 08/10/03

Typical bitter liberals with their class warfare.

* "Magic words" may be the dumbest concept in American law.

Local wise men to convene

Feat. Sykes, McIlheran, and "Hip Musings" Harris:

Walker vs. the unions, hashed out

Indeed, cannabinoids being the key to enduring these clowns.

Prosser allies admit court is "pro-business"

As the Brew City Brawler perceptively discovers today.

When one considers that most of the decisions in the report the Brawler is discussing reduce to "Injured Plaintiff v. Business," the Wisconsin Civil Justice Council's advocacy is troubling, as it suggests its endorsement of Justice Prosser is based on an assumption that he has already prejudged future cases in favor of the latter adversaries.

In fact the first person to reject it should be Justice Prosser.

It's also notable that the very first decisions the WCJC cites, 2009's Horst v. Deere and its counterpart Godoy v. E.I. DuPont, contain writings either authored or joined by Justice Prosser openly lobbying for a sea change to long-accepted Wisconsin products liability law.

And they aren't making recommendations to the State legislature, as is occasionally the case with the court's opinions. Rather, the so-called conservative justices want the court itself to effectuate a radical alteration in the law despite — as Justice Crooks smartly notes — neither party to either case urging the adoption of the novel doctrine which — not coincidentally — appears in a treatise prepared by conservative academics,* the Restatement (Third) of Torts.

In different circumstances, this is what political conservatives denounce as "judicial fiat." Not that anybody should expect philosophical consistency from them. They're simply opportunists.

Who knows why they just can't admit that; it's as plain as can be.

* Principally Aaron Twerski, a distinguished Marquette Law alumnus.

Theme of Ron Johnson's speech was demagoguery

It says here. So I searched the YouTubes for demagoguery and found this: The very definition of demagoguery. No wonder he's an expert.

I took such offense to [sic] the demagoguery. — "Sunspots" Johnson

Yes, yes you did.

So the Great State of Wisconsin may have lost Senator Russ Feingold, but it sure as Hell gained an unintentional comedian.

At CPAC, Pawlenty reverses self on DADT

"Bring that big budget axe and swing it hard, baby."

— Tim Pawlenty to Wisconsin Rep. Sean Duffy

Dude. Nobody asked.

Via @timkmak

Bad omen for downtown Milwaukee location

Borders nearing bankruptcy filing

It's a shame, but who pays $30 for a book that's $18 at Amazon.com.

And who buys CDs at all (aside from blank ones).

Paging Doris Hajewski.

Governor Walker is preparing the National Guard

But at the same time Governor Walker says he's not anticipating any problems. What other reason might there be for preparing the National Guard except in anticipation of a problem? Provocation?

BizTimes Milwaukee calls it "threatening" and a "taunt."

That's no stretch, considering Walker's oxymoronic pronouncement.

"Push too hard and this governor could go for the complete union kill shot." — Madison's wing-nut blogger and Walker man David Blaska

Nice touch.

National Marriage Week ends with a bang

Senator Sunspots does some accounting:

In Ron Johnson's expert opinion, traditional marriage has been around "for thousands of years ... and I just don't see any reason to change that."

And Lamech took unto him two wives ... Genesis 4:19

And Newt took unto him three.

Almighty God created the races white, black, yellow, malay and red, and He placed them on separate continents. And, but for the interference with His arrangement, there would be no cause for such marriage. The fact that He separated the races shows that He did not intend for the races to mix.

An American judge wrote that crap in 1959, which is not all that long ago in the context of "thousands of years." Much like U.S. Senator Ron Johnson, that judge didn't see any reason to change it either.

(God's a lifelong bachelor apparently, and Jesus had two daddies.)

Orrin Hatch's second-favorite Twitter follower

Is me. Me and Orrin go way back, to the Robert Bork hearings.

Wisconsin Supreme Court: As I was saying

It was highly irresponsible for the Milwaukee Journal-Sentinel to have portrayed Supreme Court candidates Marla Stephens and JoAnne Kloppenburg as parties to the inflammatory denunciations of Justice Michael Gableman articulated by a third candidate, Joel Winnig.

There are impressionable, easily duped minds among us who swallowed the Journal-Sentinel's negligently misleading headline hook, line, and sinker including — not at all surprisingly — top Wisconsin conservative blogger Boots (or is he Sabers?) who refers to all three Supreme Court challengers collectively as "jokers" and "tools" that all collectively put forth "stupid and irresponsible BS."*

Both Kloppenburg and Stephens have raised the Gableman case in a legitimate and substantive manner, and the ongoing controversy is relevant because the incumbent Justice David Prosser joined an opinion (or "writing," as it has come to be known) exonerating Gableman from any wrongdoing based on an arguably misguided take on the relationship between the First Amendment and accepted principles of ethical conduct among members of the judiciary.

Winnig's comments on the other hand are easily distinguishable, whereas Stephens's and Kloppenburg's disagreements with the "writing" are no different than might be their views of any other prior decision of the court. The Journal-Sentinel should in fairness clarify these distinctions, if only for the benefit of the impressionable right.

* I assume that stands for "bullshit" and not "Boots & Sabers."

Charlie Sykes: Justice Prosser is a political phony

"Follow the logic."— Ancient WISGOP saying

Stephens has gone out of her way to define herself as the "open-minded" candidate . . . Her self-proclaimed "open mind" and "unbiased" approach ring hollow when viewed in the larger context of her actions. — Thus sayeth "a new group in town"

Here's our medium wave squawker calling Wisconsin Supreme Court candidate Marla Stephens "a political phony" because "a new group in town" has brought some really serious charges of hypocrisy! "Good catch," enthuses the local wing-nut "blogfather." Let's examine the record, before the EPA adds Sykes to its schedule of air pollutants.*

Hypocrisy, Count I:

Stephens released the names of thirteen former and current state legislators who have endorsed her campaign. All are Democrats including Joe Wineke, former Chair of the Wisconsin Democratic Party.

It's a pity neither Charlie Sykes nor his "new group in town" checked Justice David Prosser's own website, which lists endorsements from dozens (75 to be exact) of elected officials. Every single one of them is a Republican (including some real dandies, like Glenn Grothman).

Plus two former executive branch officials — one is the ridiculously partisan operative Margaret Farrow — both of whom are Republicans.

Verdict: Prosser FTW.

Hypocrisy, Count II:

Since 1999, Stephens has contributed $2,875 to Wisconsin political campaigns. All of Stephens' contributions have been to Democratic and liberal candidates.

In fact only $1,725 of that, in increments no larger than $100, was to candidates running for partisan offices. Meanwhile Justice Prosser was donating $3,150 to "Republican and conservative candidates."**

Verdict: Prosser FTW.

Hypocrisy, Count III:

She describes herself as "a member of the Democratic party, on and off, throughout [her] life."

She did say that, but she wasn't "describing herself" as such, she was responding to Frederica Freyberg's direct question, "What is your [political affiliation]." That phony hypocrite! — answering truthfully.

Yet only days later, Justice Prosser told the same interviewer:

Well, let me say this. I have the most partisan background of any member of the court.

And indeed Justice Prosser was positively advancing this self-description of his own volition, as his averment was in response to Ms. Freyberg's inquiry, "What is your judicial philosophy."

What he meant was he was not only a member of the Republican Party, he was a Republican legislator in the Wisconsin State Assembly for 18 years, including six as minority leader and two as speaker.

Moreover, exactly as fits Charlie Sykes & Co.'s groundless allegations of "political phoniness" and hypocrisy against Atty. Stephens, Justice Prosser went on to disassociate himself from those former political affiliations for the purposes of fair and impartial judging.

And rightly so, to the equal credit of both candidates.

Therefore those affirmations of impartiality made by both Justice Prosser and Atty. Stephens are identical, the only difference being Prosser having raised the issue without being urged to do so.

"Gone out of his way," to coin a phrase.

Verdict: Prosser FTW.

Finally:

Media Trackers is a Wisconsin-based organization dedicated to media accountability, government transparency, and quality fact-based journalism.

Not quite. Rather, this "new group in town" is dedicated to laughable, painfully amateurish drek. Which is right up Charlie Sykes's alley.

It's abundantly clear who's pushing the dishonesty around here.

* a.k.a. the Fairness Doctrine.

** He also gave $500 to Shirley Abrahamson, which anybody who witnessed his fingerpointing mini-tirade toward the Chief Justice at last week's open administrative hearing might imagine he regrets.

Three more contributions totaling $650 were dispensed throughout 1997 and 1998 to former Republican Governor Tommy Thompson. Thompson appointed Prosser to the Supreme Court in late 1998.

The source for these figures is the same one as Sykes's "good catch."

Justice Prosser thinks Joel Winnig is smoking dope

Court candidates denounce Justice Michael Gableman

"I think Joel has been smoking some of the stuff he wants to legalize," Prosser said, referring to Winnig's position on marijuana.

Maybe those headline writers are as well, because neither Marla Stephens nor JoAnne Kloppenburg, although they've both fairly criticized Gableman's 2008 shenanigans that made him the defendant in an ethics case, has come anywhere close to "denouncing" him.

Winnig's statements are inarguably denunciations. But it's manifestly unfair to make Atty. Stephens or Atty. Kloppenburg a party to them.

To be sure, the 's' belongs at the end of denounce, not candidate.

Stephens said the opinion that Prosser supported did not take into account the ad's overall message. "You don't take a statement and parse it  . . . phrase by phrase. You take a statement as a whole," she said.

Exactly so.

There was insufficient attention* given by either court that considered the matter as to what is meant by the word "statement" in the Wisconsin code of judicial conduct, which is one of the reasons why this case still generates commentary. So conservatives who are complaining that the Gableman controversy should be forgotten and moved on from can stop talking about Roe v. Wade (1973) any time.

At least the latter decision resulted in a final judgment, whereas Gableman failed in his bid to obtain one from any Wisconsin court.

* Excepting by Ralph Adam Fine, a member of the three-judge panel that first heard Michael Gableman's unsuccessful motion to dismiss. Judge Fine wrote that setting each of the ad's individual spoken English propositions in isolation was "a crabbed reading, lashed to the mast of sentence-by-sentence literalism, and ignores the way we use language, often deriving significant meaning from implication."

Joel Winnig goes all in

Wisconsin Supreme Court candidate Joel Winnig threatened a press conference during his interview with WPR's Joy Cardin yesterday.

Reporter Patrick Marley was there.

It's the Hump Day of National Marriage Week

Wisconsin Governor Scott Walker has declared this to be National Newt Gingrich's Third Marriage Week. Blogger Jim Arndt has been celebrating the festivities. Scott Walker and his pals like (spinster) Julaine Appling revere the sacrament of marriage so ardently they helped pass a State constitutional amendment preventing a substantial cohort of Wisconsinites from enjoying its benefits.

Here are some of the couples that Walker, Appling, and their fellow travelers worked tirelessly to deny equal protection of the law:

Alicia Toby and Saundra Heath, who reside in Newark, have lived together for seventeen years and have children and grandchildren. Alicia is an ordained minister in a church ...

Mark Lewis and Dennis Winslow reside in Union City and have been together for fourteen years. They both are pastors in the Episcopal Church.

Diane Marini and Marilyn Maneely were committed partners for fourteen years until Marilyn's death in 2005. The couple lived in Haddonfield, where Diane helped raise, as though they were her own, Marilyn’s five children from an earlier marriage.

Karen and Marcye Nicholson-McFadden have been committed partners for seventeen years. ... [T]hey are raising two young children conceived through artificial insemination, Karen having given birth to their daughter and Marcye to their son.

Suyin and Sarah Lael have resided together in Franklin Park for most of the sixteen years of their familial partnership. ... They live with their nine-year-old adopted daughter and two other children who they are in the process of adopting.

Cindy Meneghin and Maureen Kilian first met in high school and have been in a committed relationship for thirty-two years. They have lived together for twenty-three years in Butler where they are raising a fourteen-year-old son and a twelve-year-old daughter. Through artificial insemination, Cindy conceived their son and Maureen their daughter.

Recently, Lieutenant Governor Rebecca Kleefisch in an interview with a fundamentalist Christian radio station likened gay couples to dogs.

Every argument that so-called "traditional marriage" proponents have presented to courts throughout the country has been debunked, leaving little else to their positions except homophobia and bigotry.

In America, religious adherents, who can switch or even reverse their sectarian affiliation at the drop of a hat, enjoy more heightened legal protections for their various beliefs than do those whose sexual orientation differs from the majority. That situation shouldn't stand.

Sensenbrenner: Nothing but Democrats

Item: Wisconsin Rep. F. James Sensenbrenner (R-Allen Edmonds), the career politician who invites maniacal, swivel-eyed English aristocrats to testify before Congressional science committees, blamed Democrats after 26 House Republicans voted against stripping the Fourth Amendment of its two concluding clauses.

#FAIL

See also: F. James Sensenbrenner, feeding at the gummint trough

Never mind Florida or Virginia

The Sixth Circuit [headquartered in Cincinnati, OH] is poised to become the first appellate court in the country to rule on the constitutionality of the health care statute.

Loads of lawyering to chew over here.

The case is Thomas More Law Center v. Obama, wherein a district judge in Michigan found in favor of the PPACA's constitutionality:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. . . . While plaintiffs describe the Commerce Clause power as reaching economic activity, the government's characterization of the Commerce Clause reaching economic decisions is more accurate.

This is as broad a view as it gets (scroll to Roman numeral IV).

Indeed that's not just a broad reading of the Constitution, it's a broad reading of the broadest cases broadly reading the Constitution (IMO).

However the courts get to defining "commerce" to include mere "decisions,"* there remains the question of "regulating," and regulating decisions is, in effect, an exercise of thought control.

By the way, Laurence Tribe said this today:

[The Supreme Court should] treat this constitutional challenge for what it is — a political objection in legal garb.

I kind of resent that. It's no political objection to ask how the power to initiate or compel commerce inheres in the power to regulate it.

Prof. Tribe doesn't even address that question. Could it be because his NYT column is more political cover than legal analysis? Hmm . . .

* As written!

Candidate Joel Winnig is on the warpath

Update: Joel Winnig goes all in

"Michael Gableman continues to pollute the Wisconsin Supreme Court." — Joel Winnig, speaking this morning to WPR's Joy Cardin

"Mike Gableman lied and cheated and got his job that way."

That's a provocative way to characterize a prospective colleague and one unlikely to improve the public and private testiness between the State Supreme Court's so-called liberal and conservative factions.

Joel Winnig also suggested that incumbent Justice David Prosser, the fellow he hopes to replace on the court, doesn't know the difference between right and wrong, which coincidentally is an element of what's popularly known as the insanity defense (a criminal defendant's inability to recognize certain moral distinctions is the manifestation of a mental disease or defect, according to Wisconsin law).

Winnig may be smelling blood in the water and stepping up his game after yesterday's reports indicating that one of his primary election rivals, Marla Stephens, hasn't raised enough money to run any Statewide teevee ads.* Stephens opted out of the public financing scheme that dispenses to primary candidates $100K in public money.

The two candidates who survive the February 15 primary each receive another $300K to continue toward the general election on April 5. Winnig also told Ms. Cardin he'd seek an additional $300K to combat an expected third-party onslaught of conservative advertising — including by the notorious Koch Bros. — devoted to protecting Justice Prosser, who presents himself as the conservative candidate.

Justice Prosser is a lock to advance beyond the primary and will face either Mr. Winnig, Ms. Stephens, or JoAnne Kloppenburg in April.

Said Winnig, "I tell my clients I set out not to become wealthy as a lawyer and I succeeded long ago." That's a pretty good line though.

* It's absurd that this factor would be among the qualifications for a seat on the Supreme Court, but apparently that's the way it works.

Ron Johnson: Let us honor Reagan's principals

Presumably not Admiral Poindexter and Colonel North

Gushes Wisconsin's freshly minted U.S. Senator Ron Johnson:

We will serve [Ronald Reagan's] legacy well by remembering this history, and honoring the principals that defined him as one of our nation's finest leaders.

Part of that history, according to U.S. Senator Ron Johnson, involved "facing incredibly high interest rates," and "recogniz[ing] that government was not the solution, but a major part of the problem. So he set out to limit the size of government."

It's funny because Ron Johnson appears to have forgotten that his own solution to high interest rates was borrowing millions of dollars at several points below market,* a convenience that just happens to have been facilitated by all three levels of government — federal, State, and municipal — in the form of industrial revenue bonds.

And, when Johnson learned that some businesses in Vermont had availed themselves of precisely the same mechanism, he criticized them in a campaign flyer attacking Russ Feingold who, for all his alleged faults, knew the difference between principals and principles.

Senator Feingold actually both possessed and adhered to the latter, in stark contrast to the current incumbent's situational hypocrisy.

Johnson ran as a "citizen legislator" against "career politicians" (like Scott Walker and F. James Sensenbrenner), yet it's only taken him a few weeks to behave exactly as the hypocrites he claimed to oppose.

Quick study, indeed.

* You know, the "free" one.

Wisconsin electors in absence of quorum

On the February 15 Supreme Court primary:

Wisconsin election officials predict only about 10 percent of the State's voters will go to the polls. — Associated Press

I bet more would insinuate themselves into a merit selection scheme.

Liberals in denial: The law professors

Prof. Akhil Reed Amar, who has written two superb books on the Constitution, compares Florida Judge Clyde Roger Vinson to the 19th-century Supreme Court Chief Justice Roger Taney, the author of Dred Scott v. Sanford, which affirmed the notion of his fellow human beings as property and arguably precipitated the U.S. Civil War.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.

Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.

Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.

And, in the New York Review of Books, Georgetown's David Cole refers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."

First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.

But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.

Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**

Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:

Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Jeez, Louise. He sounds a lot like the Madison Capital Times.

Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.

Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.

(Or, as I'm inclined to suspect, substitutes for the lack thereof.)

Special Series: Liberals in denial

* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.

The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.

** Even where there's necessity.

IMF list of developing countries

Burkina Faso, Kyrgyzstan, and the United States.

Also, it's National Newt Gingrich's Third Marriage Week.

Somebody wrote this with a straight face

Without Limbaugh's influence, talk radio might well have become a dreary medium of loud voices, relentless anger, and seething resentment. — Commentary magazine

Via Jonathan Chait: "A genuine Rush baby in utero."

Alvy: I'm so tired of spending evenings making fake insights with people who work for Dysentery.

Robin: Commentary.

Alvy: Oh really? I heard that Commentary and Dissent merged and formed Dysentery.

Prophetic.

Revealed: Conservative vote suppression scheme*

Mighty brazen of them:

You will be asked to vote for two [of four candidates in the February 15 primary election]. PLEASE CAST ONLY ONE VOTE FOR A SUPREME COURT JUSTICE, JUSTICE PROSSER.

Got to admit, this is genius:

On the ballot will be Justice David Prosser, a judicial conservative, devoted to the Constitution and rule of law. The other three candidates are liberal.

BURN.

h/t MKE newsbuzz

* "Esenberg disclaimer" — Parody, not to be taken seriously
nor any Standard Contradictory Disclaimer™ warranty implied ©JFoust

Health care reform dead, exulted Van Hollen

Reports The Economist, among many others. Wisconsin's Attorney General J.B. Van Hollen's unseemly triumphalism raised an unholy ruckus the other day after a federal judge in Florida declared Obama's health care act unconstitutional. Consternation was high over Van Hollen's remarks, especially within liberal quarters.

But you know what? J.B. Van Hollen was/is correct, even though the PPACA's demise may be short-lived.* The Constitution is clearer on this point than it is on the question of whether the individual insurance mandate violates the Interstate Commerce Clause:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

"And" is the operative word there, and obviously the U.S. District Court for the Northern District of Florida is among those ordained and established by Congress (much to its current regret, perhaps).

In other words, if the Supreme Court can slap on an injunction preventing the enforcement of federal legislation — and it can — then so might a district court. The judicial power inheres in both equally.

While Judge Clyde Roger Vinson did not expressly grant the injunction the plaintiffs — who included J.B. Van Hollen despite his Johnny-come-lately presence in the case caption — sought, he instructed the federal government his order was tantamount to an injunction, relying instead on the federales' good faith in treating it as such.

JBVH's basking in the press glow may have been provocative and, frankly, annoying,** but he's not wrong as a matter of law.

* Odds are good Obama will win a stay over Judge Vinson's ruling pending an appeal to the 11th Circuit. In the meantime the administration's own defiant pronouncements rest on shaky grounds.

** The AGs of Ohio and Texas, for example, were considerably more circumspect and, in this observer's estimation, more professional. I understand the AG's is a partisan office but it needn't be so deliberately blatant — and for many people, insensitive — about it.

Liberals in denial: A ray of hope

There's no denying that a Supreme Court ruling against the law is a very real possibility. — The WaPo's Greg Sargent

Series: Liberals in denial

Edited to add:

:facepalm:

Prosser held to account for Gableman sins

Further to the observations of JoAnne Kloppenburg, the other two challengers to incumbent Supreme Court Justice David Prosser:

Justice David Prosser had a chance to deal with the ethical failings of one of the court’s own members but refused. Justice Michael Gableman won his last election based on a campaign ad that was condemned by newspaper editorial boards across the state as a misleading attempt at race baiting. They called it "purposeful distortion," and "a lie." This ad was such a distortion that Justice Gableman's lawyer was forced to defend it by saying justices should be able to mislead the public in campaign ads. Justice Prosser bought the argument. He could have held his colleague to a higher standard. He did not. Justice Prosser supported a decision that says campaign season is open season on the truth.

— Marla Stephens

The misconduct of Judge Michael Gableman, which was charged by the Judicial Commission, would have been punished if Justice David Prosser had voted for discipline, along with three other justices who were willing to hold Gableman to account. I would have held him to account. I will not allow lawyers to get away with intellectual dishonesty before the Supreme Court.

— Joel Winnig

It's difficult not to agree with any of 'em.

Kloppenburg not partisan, activist, nor advocate

JoAnne Kloppenburg, the assistant attorney general who's running for the Wisconsin Supreme Court, distinguishes herself from her opponents in an interview Monday with Steven Walters:

Kloppenburg: What is a campaign issue is what [incumbent Justice David Prosser] has said in his campaign. He said that he is the conservative candidate and will be the conservative justice. His campaign said that he will complement the work of the new governor and the legislature and that of the four candidates he is best able to work with the legislature.

The court is a separate and co-equal branch of government and at times it is a check on the legislature at the same time that it might, it reviews legislation and it may support the legislature or it may not, but you don't know ahead of time. For him to telegraph how he's inclined to rule is a real problem and is a real issue in this campaign.

In addition to Justice Prosser, we have Joel Winnig who talked about how he will work to change laws.

Walters: Yes, he has a very activist view of justice.*

Kloppenburg: An activist is someone who prejudges cases, like Justice Prosser, or who says he's going to change laws, like Joel Winnig. If you want to do that, you run for the legislature, you don't run for the court. And then Marla Stephens has said she'll be an advocate for the court. I've litigated cases around the State; in fact ... as a litigator, I'm the one who advocates. The judge needs to be impartial and independent.

Kloppenburg also said of Michael Gableman's notorious 2008 child molester teevee ad, "any reasonable person would call that ad to be a lie," and the perception created by the Supreme Court's 3-3 split in the subsequent ethics case against Gableman was that it was drawn along partisan lines and that it had damaged the court's reputation.

Nevertheless Kloppenburg agreed with three of those justices, in that the case against Gableman should have moved forward rather than letting it hang out there pending without any resolution:**

I have not read the full record, and I think that the justices who would have moved the case forward would have called for a trial in order that more facts could be brought out.

In fact it's not at all clear from the State statutes that the Wisconsin Judicial Commission, which brought the complaint against Gableman, retained a legal option to present its case to a jury. For that reason the Commission announced it would suspend prosecuting its complaint in the wake of the 3-3 split, but has never joined any motion requesting that the complaint be formally dismissed.

The primary election takes place February 15, which will most likely reduce the slate of candidates to Justice Prosser and one of the three current challengers. JoAnne Kloppenburg leads the fundraising race.

Link to the full interview is here (30 min.).

* I like how reporter Walters jumps in there to fire this shot.

** The court had convened on Gableman's motion for summary judgment (dismissal) which Gableman failed to win. There it sits.

Least dangerous branch in the news

47 Republican Senators no match for one Republican judge

"My guess if we actually held a vote is you might be surprised how many Democrats just might join Republicans and vote to repeal," said newly elected Wisconsin Senator Ron Johnson.

Maybe Ron Johnson's surprised none did, but nobody else is.

N.B. Least in a capacity to annoy or injure, by A. Hamilton.

Supreme Court candidates raise too much money

Associated Press via the State Journal:

[Wisconsin] election officials have ordered Prosser to return money from about 20 out-of-State donors and Kloppenburg to return about $4,000 in contributions because she exceeded the contribution limit to qualify for public money.

What do out-of-State donors want from Wisconsin's Supreme Court anyway? It has no jurisdiction beyond these borders.* Recall that tens of thousands of dollars in out-of-State donations came pouring into Michael Gableman's political campaign during its waning days as well.

If public financing puts an end to that, then this is a good thing.

* eta: An exaggeration, admittedly misleading, and the professor is substantially correct. What I should have said is that while the court's jurisdiction over out-of-State parties is both contemplated and provided for, it isn't assumed for any individual case, and it may be exercised only after satisfactory proof having been made from among a number of factors — several of which still require physical presence or ownership of property within the State exercising jurisdiction if not the "sufficient minimum contacts" to which the professor alludes — related to certain types of action. My point was a political one — parochial, even — but I don't mind copping to the flippant hyperbole.

He (Shark) nabbed (bit) me fair and square.

Yet it is pleasing to have such a devoted and assiduous reader.

And I'm not objecting to out-of-State donations per se, I'm merely raising the question of the perception of the court's own political entanglements as illustrated by the specific example linked above.

This is, after all, Supreme Court election season again (or still?) and all four candidates — especially the three challengers — are actively engaged at exploiting those perceptions, as they should be.

Health care reform quote of the day

"I taught Randy Barnett torts, not constitutional law."

— Charles Fried

Prof. Barnett is an adamant opponent* of the individual insurance mandate whereas Prof. Fried is convinced of its constitutionality.

Later in this morning's hearing, Prof. Barnett claimed Prof. Fried acknowledges that the government can make you buy green leafy vegetables, but not that the government can make you eat them.

Also at today's hearing, the newest Democratic member of the Judiciary Committee, Senator Richard Blumenthal of Connecticut, said the suits against the law are "without merit" (a.k.a. "frivolous") which is obviously false. He went on to say that the reason he did not join the actions against the PPACA when he was Connecticut's attorney general was not because they were "without merit" but because he believed the law would save his State millions of dollars.

The latter is a policy consideration, not a legal justification for whether the mandate survives constitutional scrutiny. If Senator Blumenthal expects the courts to reason similarly, he is depending on a highly inappropriate exercise of the federal judicial power.

* So adamant he advised the Senate today to repeal the law.

UFO sightings outnumber voter fraud by 3-1

One Wisconsin Now's Scot Ross brings some perspective.

Liberals in denial now just flat out hallucinating

Or 'tweaking' as the kids might say

The liberal Beltway pundits' reaction to this afternoon's order* of the United States District Court for the Northern District of Florida has been uniformly ridiculous. Here are a couple of special gems.

This is the Interstate Commerce Clause:

The Congress shall have Power To ... regulate commerce with foreign nations, and among the several States ...

This is the Think Progress Wonk Room:**

The [interstate commerce] clause as written gives Congress the power to regulate economic decisions ...

As you can see with your own eyes that's pure, unsupported fantasy.

Astonishingly, this claim appears on the immediate heels of Wonk Room's complaint that the inherent question of what counts as commercial activity and what doesn't — and, therefore, what it is that's subject to regulation — is a red herring because "the actual text of the Constitution makes no mention of such a difference."

And then goes and makes up this stuff about "economic decisions."

This is the Necessary and Proper Clause:

The Congress shall have Power To ... make all laws which shall be necessary and proper for carrying into execution the foregoing powers ...

This is the Washington Post's Greg Sargent, quoting Louis Seidman, a Georgetown University law professor:

[Seidman] argued that the Constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets.

Ye gods. Thank heavens for the roundball programs.

Among those foregoing powers is the power to regulate interstate commerce so first, you have to find that power. Otherwise there's nothing to carry into execution. What a brute force non sequitur.

There is obviously no such "explicit provision" there, or anywhere.

Finally from TPM, this strangely persistent myth:

Legal experts across the spectrum largely held that a Constitutional challenge was futile.

Then they were not much of an expert, lemme tell ya.

* .pdf; 78 pgs. digested & mocked by liberal pundits in seconds flat.

** Bonus: Vinson cops to borrowing verbiage from hate group

Liberals in denial update

The Atlantic's Andrew Cohen calls today's expected ruling in State of Florida v. DHHS "a stray decision by a conservative trial judge."

Don't overreact when the judge brutalizes the law, advises Cohen, while he suggests that as many as seven U.S. Supreme Court Justices could be sympathetic to the Obama administration's unprecedented expansion of Congress's power to regulate interstate commerce.

A candy colored clown they call the sandman
Tiptoes to my room every night .....

Scott Walker accused of voter suppression

By the very editorialist scribes who endorsed his candidacy:

Photo ID advocates say the measure isn't about voter suppression. We say: Prove it.

Got that? The burden is on Governor Scott Walker to demonstrate that he's not trying to suppress the vote by requiring photo ID.

A reader sympathizes:

The GOP won't stop until only white, male property-owners can qualify to vote.

Or, more politely, restoring the "original intent of the Framers."

In other constitutional news, the WPRI senior fellow Mike Nichols is "nauseated" by the Sixth Amendment right to assistance of counsel.

I've heard it said many times that among the most strident proponents of the document are a number who soon lose their stomach once they begin taking into account its implications.

The rest are liberals.

Ayn Rand on the dole

Novelist secured SS and Medicare under an assumed name

And advised everybody else not to. How unique. Wisconsin politicians Paul Ryan and Ron Johnson are both very great fans of Ayn Rand.

Blaska if you love that corporation so much

Then why don't you marry it?

Madison, Wisconsin's lonely wing-nut* David Blaska is weeping o'er the plight of courageous Justice Samuel Alito. Puffs Blaska:

The President crossed the line of propriety in his [SOTU] address last year. And violated the separation of powers.

Such a violation occurs when one branch of government unlawfully usurps the power of another. Only the Good Lord knows how Obama's remarks fit that bill in the columnist's roiling right-wing amygdala.

Blaska is defending Citizens United v. FEC, in which a majority of the U.S. Supreme Court affirmed that corporations are persons, that speech is money, and that the former may "speak" the latter without limit, exactly as the First Amendment has always plainly instructed.

Anyway here's Obama:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.

And here's Justice Stevens:

If taken seriously, [the majority's] assumption that the identity of a speaker has no relevance to the Government's ability to regulate political speech would lead to some remarkable conclusions. ... More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could "enhance the relative voice" of some (i.e., humans) over others (i.e., nonhumans).

Follow the logic, is what Stevens is saying. It's the majority's own logic, the Court's own logic where corporations = persons and money = speech. That's where it leads, because the other laws only forbid participation by foreign individuals, not corporations.

And obviously the dissent contains any number of references to reversing a century of law, which Obama was also repeating.

Blaska's is the perfect example of right-wing obsession with Obama gone far beyond either rational or healthy, where simply paraphrasing an opinion of the Court becomes a separation-of-powers violation.

More concerning is Blaska's derangement-of-senses violation.

* Ann Althouse is mainly just an enabler of wing-nuts.

DiMotto on Daubert in Wisconsin

Courtesy of Milwaukee County Circuit Judge John J. DiMotto, a succinct rehearsal of the law of expert witness opinion testimony.

WMC: Still dissembling after all these years

Walker bill does little to improve State's "honesty climate"

So Wisconsin Manufacturers & Commerce is overjoyed its "tort reforms" were signed into law by Governor Scott Walker this morning. According to WMC vice president James A. Buchen:

The Wisconsin Supreme Court created the ["risk contribution" theory] standard allowing plaintiffs to sue any lead paint manufacturer that sold paint in the state without proving which product caused the harm.

That is simply not true. The Wisconsin Supreme Court did not "create" the standard at all but rather adopted it from other jurisdictions in 1984 in the case of Collins v. Eli Lilly & Co.:

We emphasize, however, that the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff's mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES. If the plaintiff is able to prove these elements, the plaintiff may recover all damages from the one defendant.

Mr. Buchen needs to read this opinion, including especially footnote 10, and stop dissembling about the court's 2005 lead paint decision.

Even the dissenters to the latter decision, whose beef was not with risk contribution per se but rather its application to the lead paint defendants, acknowledged that "this case clearly does not fall within the theory of risk contribution originally formulated in Collins."

Emphasis added. It's remarkable that Buchen could have overlooked this unequivocal acknowledgment, as other portions of that dissent have made their way into local conservative Republican mythology.

And those two dissenters included the still-incumbent Justice David Prosser, who "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." Quote, unquote.

Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign* in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.

Indeed, were it not for Collins v. Eli Lilly & Co.'s "validity," there would have been no Thomas v. Mallett for WMC to complain about.

* Quite obviously Buchen's and WMC's obsessions with Thomas v. Mallett are focused on its author, Louis Butler, whose pending nomination to the federal bench is opposed by the WMC klatsch.

In 2008, WMC ran 3,069 television advertisements assailing a Butler dissent in a Sixth Amendment case, whose historical and legal principles were subsequently affirmed by Justices Scalia, Roberts, Thomas, Alito, and Kennedy, the first four, at least, being among the most revered figures in the conservative pantheon. The teevee spots represent a monument to sheer political irrationality and bad faith.

Wisconsin Supreme Court quote of the day

[T]he justices don't remember what they voted on, don't remember the memos they read, don't remember the oral presentations that were given. — Justice Ann Walsh Bradley

"Prosser, Roggensack, Ziegler and Gableman* have called for creating a finance committee ... that would chip away at the authority of the chief justice ... "**

Stay tuned (Monday, Jan. 31 at 10:30 a.m. Madison time).

* The so-called "conservative bloc."

** The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.

— Wis. Const. art. VII, § 4, ¶ 3

God Damn Them All