Does Gableman need a civics lesson?

A local conservative, returning from a Michael Gableman event, tells us that Gableman made a comment that "just might shock the liberals." Asked to opine on some legislation currently making its way through Congress, Gableman is reported to have said, 'As long as it passed constitutional muster, I would defer to the legislative branch.'

On its face, this isn't so much shocking as it is just plain strange. Because it's the courts that are often asked to determine whether legislation "passes constitutional muster" in the first place. The question of deferring to the legislature, and to what degree, arises during the court's legal analysis of the legislation compared to the commands or restrictions dictated by the language of a constitution.

Saying legislation "passed constitutional muster" means it survived judicial review — review by the court that compared the legislation to the constitution. Once legislation has survived judicial review, then courts are deferring to themselves when they say legislation has passed constitutional muster.

It's possible that Gableman had in mind advisory opinions. Those are opinions of a State Attorney General sought by the legislature while the legislative process is underway. For example, the legislature may have concerns about the potential unconstitutionality of statutory language, and may seek the opinion of the State AG before finalizing that language.

But advisory opinions are just that — advisory. They don't bind the decisions of the courts in the event the legislation is challenged on constitutional grounds. However, the question that raised Gableman's reply had to do with federal legislation, and there are no advisory opinions in the federal system.

Or maybe Gableman was talking about France, where the courts frequently intervene with written opinions during the course of legislative formulation. Except this isn't France.

If Gableman really did say that, then it should shock everybody, not just liberals. After all, this is a guy who's presenting himself as qualified to sit on the highest appeals court in the State of Wisconsin. Is he?

And if Gableman's understanding of the American constitutional scheme is really as skewed as it appears from that remark, then no wonder his political campaign has been thus far devoted to negative attacks against Justice Butler, and not to presenting a meaningful explication of his own judicial "philosophy." Does he have one?

Instead, all he ever says is that he's a "stark contrast" to Justice Butler. Perhaps we're beginning to see the true basis for that "stark contrast," on a point that clearly favors Justice Butler. Because, for good or ill, I'm pretty sure that Justice Butler understands how the judicial review process works.

[Please visit the iT Butler/Gableman archive.]

Screen cap funnies III

Followed a link, can't remember from where. Ended up at some conservative Republican's rambling, harebrained blog post, and there was this here anti-spam security code that you had to enter if you wanted to reply:





Way too much work, typing the same comment twice.

LOLgrumps

Evansville, WI funnyman Grumps quips wise at a blogger's announcement of a Gableman campaign event in Racine:

"What's the chance this appearance gets overturned on appeal?"

:rimshot:

Knock knock.

Who's there?
Florida Orange.
Florida Orange who?
Florida, Orange you glad for creationist buffoons?

Let's not even get into his closing remarks, trying to compare evolution to trucks full of poultry and garbage colliding, and spontaneously fusing maggots and turkeys to produce the school board. * * *

I'm perfectly comfortable with the idea that I'm a distant relative of every creeping, crawling, blooming, squirming organism on the planet, but I do have to admit to some discomfort at being related to Mr Dallas Ellis. ~ PZM

The Sunshine State? Literally. Figuratively, not so much.

Touching his hem and haw haw

Brazen Maverick, who was well-deservedly propped here earlier, has a nice comment this morning about a comical thread presided over by our good pal Rick Esenberg of Marquette University Law School.

Check out the B. Maverick's observations and then follow his link to the Sharkian chuckle-fest, which also features Esenberg's frequent nemesis, esteemed counsel Mike Plaisted and, as a special bonus, the return of the effectively talented Seth Zlotocha. Hilarity ensues.

Burger King Conservatives: "Have It Both Ways!"

Irreligious not mass murderers: blogger

In a feat of inductive logic unparalleled in modern times, blogger Dad29 of Brookfield, WI, today declared that many irreligious people are "not mass murderers." Relying on a third-hand account of some other blogger who heard a conservative radio talk show host say something about a recent string of school shootings, Dad29 likewise concluded that religious beliefs are "good for one's mental health."

The conservative talk show host, upon whose precise observations Dad29's rigorous inferences are ultimately based, determined that the shooters were irreligious because he couldn't find any news reports that mentioned the shooters' religion. Therefore, they must have been irreligious by false dichotomy, the talk show host reportedly said, according to the other internet source.

While the other blogger, who proposed the intermediate chain of premises from which Dad29's conclusions are also derived, admitted he had not "really compiled this information" himself, he did concede to "seeming to recall" that he "thought" one of the shooters may have been "Islamic." Additionally, Dad29 concluded that some religious people are mass murderers.

However, it's unclear whether the latter derivation is a reference to the school shootings or to heretical Catholic liturgists.

McIlheran voices support for Soglin, Butler

Patrick McIlheran, the self-described "generally right-wing guy" who composes comedy routines for the Milwaukee Journal-Sentinel, posted this little puzzler the other day: The Gall! In it, McIlheran observes that bloggin' Mayor Soglin and others picketed the Madison HQ of Wisconsin Manufacturers & Commerce on Wednesday.

As readers of this here blog are well aware, WMC and its fellow travelers are engaged in a suspicious and empirically-challenged negative political campaign against Wisconsin Supreme Court Justice Louis Butler on altruistic behalf of the cash-strapped Michael Gableman, the Burnett County Judge who has himself leveled a number of preposterous claims at the sitting Justice.

McIlheran's perfunctory two-paragraph burlesque contains links to two items, one a brief report of the picket, and the other a 2005 editorial by McIlheran's beloved Wall Street Journal brain trust. It's not entirely clear what McIlheran's point is, but since it's filled with faux outrage and labeled "First Amendment," presumably he was writing in support of Soglin and Co.'s constitutional rights to freedom of speech and peaceable assembly. Indeed, McIlheran's own link notes the pickets were meant to "draw attention to [WMC's] funding of political ads."

The WSJ editorial, "Alabama North," which purports to critique two of Justice Butler's opinions (one of which he didn't write), is also a favorite of WMC propagandists as well as WMC video star Rick Esenberg, who cites it in his celebrated Federalist Society paper, "A Court Unbound?" ("A Court Unbound," by remarkable coincidence, is WMC's theme for its World Breakfast Tour, which brings its tasty flapjacks to flip in Green Bay next Friday.)

Ever the lovable zany, McIlheran, in the space of about four sentences, manages to describe the two decisions — which together run nearly 350 pages — as a "whim."

As the WSJ noted in August, 2005, "GOP Congressman Mark Green is already making this part of his campaign for Governor, while Democratic Governor Jim Doyle has yet to make a firm public statement." And as Justice Butler's attackers are tirelessly fond of reminding us, Louis Butler lost his electoral bid for the Supreme Court in 2000, and is seated there now only by dint of his 2004 appointment by Governor Doyle.

The implications being that Butler is merely a political appointment, and that the people of Wisconsin don't really want him there, because when presented the opportunity in 2000, they declined the invitation. What WMC and its surrogates are less likely to tell you, of course, is that the aforementioned Señor M. Green lost his own election bid to Doyle in 2006, in spite of his desperate attempts to make Justice Butler an issue.

So this was McIlheran's project after all, to show that WMC's hoary talking point is proven to be not only just a wash, but it's been positively superseded by more recent polling data in demonstration of the fact that the 2006 election of Governor Doyle was also a popular endorsement of Justice Butler.

You really have to keep a close eye on these conservative columnists, they can be a pretty sneaky bunch. And since the impending State Supreme Court election is nominally a non-partisan affair, even the support for Butler voiced by a dependable GOP mouthpiece like Patrick McIlheran is legitimate. That alone is a refreshing change.

[Please visit the iT Butler/Gableman archive.]

Atty. Tom Basting appointed to State bench

Remember Daniel Suhr? He's the Marquette law student and protégé of conservative blogger Rick Esenberg who claims the pernicious influence of Justice Louis Butler extends to other courts outside this State, even when those courts reach their own independent decisions by relying on everything else EXCEPT Wisconsin law.

Now Suhr, who apparently advocates for "strict constructionism" (or "strict constitutionalism," as the kids are calling it nowadays) evidently believes that a set of rules formulated to guide the behavior of Wisconsin judges likewise restrict the activities of a lawyer who set up a committee to monitor advertising during the current election campaign for Butler's seat on the court.

At the same time, however, Suhr evidently also believes the rules of "strict constructionism" don't apply to him, at least in his role as self-appointed political advisor to the campaign of Justice Butler's rival, Michael Gableman.

"We will see how committed WJCIC chairman Tom Basting is to a very strict interpretation of the ethics rules and impartial judging by how he handles the question of his own recusal," predicts the college Republican.

Sadly, Daniel Suhr himself isn't much committed to very strict interpretations of legal language because, for one thing, "recusal" is a concept that applies specifically to judges. And, for another, the set of guidelines Suhr expects Atty. Basting to abide by don't apply to Atty. Basting anyway. You'd think the title of the Wisconsin Supreme Court Rules that Suhr cites would have tipped him off: "Code of Judicial Conduct."

"Strictly" speaking, lawyers don't recuse themselves. But according to the looser construction favored by Daniel Suhr, it's amusing to see him conveniently recusing himself from the very principle of adjudication to which he claims his favored candidate is devoted.

What's also funny is that those who objected to the WJCIC in the first place, including Daniel Suhr's mentor, were motivated by fears that the committee would force its own slanted view of the Rules onto the conduct of the political campaign, thereby raising questions of First Amendment violations. The irony is, well, pretty much constant.

What Suhr really wants to try and accuse Atty. Basting of is a conflict of interest. But I don't know what theory he's going to come up with to make that stand. Throw something out there, see if it sticks.

While it's true that Atty. Basting is an officer of the court, so are me and Mike Plaisted. You can find the letter(s) the young GOPer has his Republican panties in a bunch over at this link.

[Please visit the iT Butler/Gableman archive.]

Where's McAdams now?

John McAdams, the risibly cantankerous political science professor and "Marquette Warrior" who memorably leveled the unsubstantiated charge of "raw anti-Christian bigotry" against this here blog, must be asleep at the switch today.

Because at another local blog, which McAdams celebrates as "Highly Recommended," there currently resides a link to a photo-animation featuring a dog, on which is pasted the cartoon head of Mohammed, enthusiastically rogering a pig from behind.

The same linked page describes the Qur'an as a "Camel-fellating, Donkey-buggering Classic." And no, I'm not linking to it from here.

But you can easily find it from Prof. McAdams's blog, under "Highly Recommended." Personally I don't recommend it at all.

New Milwaukee blog

Brazen Maverick, under the proprietorship of a Marquette law student with degrees in political science and philosophy (my kinda guy). I don't know the fellow, but he was kind enough to add your humble correspondent to his blogroll, which means he's aight.

Check him out (but prepare for a shock to your rods and cones).

I would have had the same double major myself, but I tried to squeeze that last philosophy course into my final semester, giving me an 18-credit load leading to a superfluous 126-credit total.

And I would have stuck it out, except the course was "The Medieval Problem of Universals," and so I ended up withdrawing just under the withdrawal wire (which left about three decidedly masochistic students in the class, if I recall correctly).

Masochistic on account of the material and not the instructor, I hasten to add. I'd had Prof. Mondadori for a previous course, and he was remarkably brilliant and hugely entertaining, not least for his frequent references to René Descartes as "that poor sod."

Anybody up for some severe brain-hurt,* get Five Texts on the Medieval Problem of Universals, Paul Vincent Spade, ed. (Hackett). Ouch. Comparatively, reading Spinoza is like reading Danielle Steele.

* Less so if you're already schooled in Aristotle, which I'm not.

Survival of the falsest witnesses

Over at Pharyngula, the thorough debunking of a painfully incoherent and ignorant screed, the authorship of which is claimed by "the producers" of the forthcoming Ben Stein vehicle, Expelled.

The idiotic creationist screed, "We'll Take Lincoln Day Over Darwin Day," attempts and utterly fails to portray Charles Darwin as a racist whose racist views inform contemporary science (although contemporary scientists don't like to admit it).

As should be clear to anyone with an adequately functioning brain stem, both Lincoln and Darwin were products of the 19th century, and both held to similarly unenlightened views of "race."

More to the point, the science has long since moved well beyond the particular understandings of Darwin, although he's obviously still credited with initially framing the central questions that inform it today. Why is this so difficult to understand?

And if "intelligent design" is such a powerful scientific theory in its own right, why must its proponents lie, dissemble, and generally behave like unrepentant, quote-mining weasels* at every available opportunity? That's what I'd like to know.

* Apologies to pet owners, keepers of the honest weasels.

Screen cap funnies II

And be sure to visit the Betty Brinn Children's Museum of Correction.

Result orientation, the good WMC kind

Wisconsin Manufacturers & Commerce has a new webpage up touting its new video that appeared on YouTube over the weekend. The video, which displays mug shots of the Justices under the rubrics "activist" and "traditionalist," is purported to contain a "full briefing" on issues relating to Louis Butler and the Wisconsin Supreme Court.

Obviously it isn't a full briefing on anything by any stretch of the imagination, but here's a few tidbits that might help in formulating a fuller briefing as to the disingenuous games WMC is playing.

Michael Gableman, the Burnett County judge who's challenging Butler in an April 1 election, is described by WMC as a "traditionalist." This is fascinating, because while the WMC claims its "activist" labels are supported by data from a study commissioned from some outfit in Oklahoma, the competing "traditionalist" labels, as applied to Gableman and WMC's last favored candidate, Justice Annette Kingsland Ziegler, are supported by ... nothing.

The webpage also features a number of links to political brochures comparing, as WMC sees it, the relative merits of Butler and Gableman and, under the heading "Resources," no less than five in a row invoking our good friend, Prof. Rick Esenberg of Marquette Law School and Federalist Society fame.

The Oklahoma outfit, Sequoyah Information Systems, Inc., is the brainchild of Marc Nuttle, a conservative Republican activist associated with, among other things, the presidential aspirations of celebrated zany "Rev." Pat Robertson. The Sequoyah, Inc. "judicial report" mentioned in the WMC video is also linked at the page.

The 14-page document is virtually identical to another prepared in 2005 "evaluating" the judges on an Alabama appeals court. Both consist of mostly boilerplate language describing, for example, the role of judges and how the civil appellate process works. For comparison, the Alabama document is here (.pdf; 14 pgs.).

And both contain a colorful bar graph featuring each judge's name accompanied by a figure expressed in percentage supposedly representative of each judge's "score," which Sequoyah, Inc. coyly admits is based on "a particular substantive-policy point of view."

Scrolling through the boilerplate in each document leads to a title page which promises, in gigantic font, "Case Index." Ah, here we are, at long last, the data relied on to produce WMC's conclusion that Justice Butler possesses "the second worst record on the court."

Except the title page is the final page of each document — there is no "case index." Where is it? Doesn't WMC want us to have a peek? If not, why not?

I think I know why. Because WMC itself is 110% "result oriented." They don't really care so much what reasoning was employed to reach the dispositions in whatever cases Sequoyah, Inc. used to prepare its bar graphs. They only care whether the decisions, however arrived at and however reasoned, have a tendency to favor the plaintiffs or the corporate defendants in civil liability actions.

And because, no matter what, favoring civil plaintiffs is bad and favoring civil defendants is good (except when it comes to criminal cases, where the evil vs. righteousness test is necessarily and automatically reversed: then, government good, defendant bad).

What makes WMC's results orientedness even more peculiar are the views of Judge Diane Sykes, the former Wisconsin Supreme Court Justice since appointed to the federal 7th Circuit by President George W. Bush. In 2006, Judge Sykes delivered a lecture at her alma mater, Marquette Law School, in which she criticized the State high court for its own results orientedness: "pure, unvarnished result orientation," to be precise.

When courts or individual judges are criticized for being results oriented, it means they have the decision they want in mind before they set about the exercise of opinion formulating, and the clear implication is that they select and manipulate the facts and the law to suit their own personal preferences. It's not a compliment, nor an expression meant to be flattering by any means.

Another remarkable aspect of all this is that Judge Sykes's lecture figures prominently in both Rick Esenberg's Federalist Society paper, "A Court Unbound?" and young GOPer and would-be Gableman operative Daniel Suhr's series of "white papers." The same accusations have also turned up in a number of Gableman campaign statements and indeed, in statements made by Gableman himself.

So, here we have WMC relying on a set of clearly related criticisms of Louis Butler's "result orientation," demanding "result orientation" of its own, in its own favor, and talking up a candidate who promises "result orientation" in "stark contrast" to that of the incumbent, for the purpose of satisying WMC's desired "result orientation."

Isn't that special? Apparently, result orientation can be a good thing too, but if and only if it's oriented toward the result you want. Otherwise it's bad. One thing's for sure, WMC's own "pure, unvarnished result orientation" is a hell of a lot easier to prove than is Justice Butler's, which is 110% an exercise in mental telepathy.

[Please visit the iT Butler/Gableman archive.]

Activist judges call halt to burning flesh

America has come a long way over the past several centuries. We've given up drowning women for the crime of being familiar with black kittens, stopped sterilizing them just in case they produce more imbeciles (although I confess to occasional nostalgia for the practice), and now it appears we've finally put an end to burning them in chairs with massive charges of electricity.

Predictably, as bloggin' Mayor Soglin notes, the Republican governor of Nebraska is out shouting about "activist judges" and bemoaning the cessation of cruelty, which he decries as "appalling."

As for the Nebraska Supreme Court's decision itself, Genghis Hitler,* the lovely and talented case synopsizer nonpareil at Subject to Complete Defeasance, has all that information right here.

For those following the nerdier, doctrinal aspects of our own State's Butler/Gableman campaign, Genghis also provides a few illuminating observations on the "New Federalism," as applied to the Nebraska decision (and, incidentally, to the Wisconsin race).

As if that wasn't enough, Mr. Hitler, who plies the legal trade in the Great State of Colorado, today offers another delightfully humorous take on the brazenly dissembling chicanery of local Republicans over so-called "tort reform" legislation which concludes,

Any lawyer who argues that a one-dollar judgment qualifies his client as a “prevailing party” under [Colorado law] risks being ordered to stand on the courthouse steps wearing nothing but a funny paper hat while singing I’m a Little Teapot.

Needless to say, SCD is required daily reading 'round these parts, and it should be 'round yours, also (ages 18 and over only please).

* Not his real name.

What's Herbie Hancock up to, part 2

In addition to this, winning a Grammy Award for Album of the Year for a collection of Joni Mitchell numbers featuring other luminaries such as Leonard Cohen and saxophonist Wayne Shorter.

Apart from the record industry accolades, Hancock cemented his reputation more than 40 years ago as a member — along with Shorter — of Miles Davis's Second Great Quintet. That group, which also included drummer Tony Williams and bassist Ron Carter, was arguably the greatest jazz ensemble of all time and released a string of brilliant recordings including Miles Smiles, E.S.P., and Nefertiti, not to mention a number of amazing official and bootlegged live sets.

Shorter went on to, among many other things, form Weather Report with the late Joe Zawinul and the legendary bass guitarist Jaco Pastorius, a troubled genius who died tragically at 35 after being beaten by a bouncer outside a bar in Fort Lauderdale.

Jaco, Shorter, and Hancock have all been repeated former collaborators of Joni Mitchell's. It's nice to see a Grammy Award occasionally going to an actual musician, for producing actual music.

A Lifetime Achievement Grammy went to The Band, who the AP describes as "the Canadian rock group," except drummer/vocalist Levon Helm is from Arkansas. So is Rompin' Ronnie Hawkins, who hired The Band back when they were The Hawks, before they went on to achieve fame and fortune with Bob Dylan. "I can't promise you a lot of money, boys," Hawkins supposedly told songwriter Robbie Robertson, "but you'll get more pussy than Frank Sinatra."

So the Canucks can't take all the credit for The Band, like they can for Joni Mitchell, who is from Saskatchewan.

Herbie Hancock's distinctive piano voicings, with the Miles Davis Quintet, Stockholm, 1967: 'Round Midnight (YouTube, 8:30).

The Band, from the Martin Scorsese documentary, The Last Waltz, feat. Pops and Mavis Staples: The Weight (YouTube, 4:33).

And, last but certainly not least, Joni Mitchell's moving tribute to an aviator who disappeared: Amelia (YouTube, 7:12).

Shark for the defense, part 2

Prof. Rick Esenberg has released the latest in what is currently a four-part series entitled, "Setting the record straight." I suspect there may be some straightening of the record contained somewhere in these missives, but there's also a not inconsiderable amount of warping it.

To wit, the following, in response to my "Over the rainbow and out to lunch" of Feb. 2. "Although," as Esenberg puts it, "more for finding a point of departure than to offer rebuttal." But he can't resist attempting a few shark bites here and there, italicized below, so let's at least "set the record straight" on those.

"[I]n addition to all these longstanding case precedents [Butler] cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities." — Judge Michael Gableman

[W]hile I doubt that there was any nefarious intent, it is a bit of a malapropism here.

This is one of the reasons I enjoy Esenberg's blog: for the belly laughs. Indeed, this may well be one of the cleverest sentences he's ever constructed. You have to admire the choice of words, "nefarious" vs. "malapropism." On the one hand, the most extreme interpretation possible (very wicked, evil, immoral, sinful, vicious) and on the other, a mere jovial slip of the tongue, and only "a bit of" one, at that.

Esenberg has been following politics — and been a lawyer — long enough to get what Gableman was saying. But he deserves credit for the hilarious dichotomy he offers.

Then Esenberg casually dismisses "manufactured" as "a bit of populist flourish." As I'm fond of saying, I was born at night, but not last night. And I understand conservative-speak as well as anyone: manufactured at colleges and universities = fabricated from whole cloth by leftist academics. We know the code too. No wonder Esenberg wants to set these statements of Gableman's aside! Good for him on that account, at least.

IT emphasizes how complicated DuBose is and we hear that in judicial elections. You can't judge a decision, we are told, unless you read the briefs, heard the argument and know enough law to place it in context. So lay off.

And this is one of the reasons I sometimes don't enjoy Esenberg's blog, because that was hardly my conclusion at all. I said that complexity often doesn't lend itself to sound bites and in particular, ridiculous and fact-averse sound bites such as the example I gave. I never suggested that anybody ought to "lay off."

As a matter of fact, I'm grateful for some of the wild claims issuing from the Gableman campaign and its supporters; it's been entertaining making fun of them. I'm looking forward to their continuation, and there's little question in my mind that there will be many, many more to come.

By way of an analogy, it's sometimes said that people like me, who don't believe in God, actually need God more than people who do believe in God, because we like to talk about God so much, if only for entertainment and arguendo purposes, whereas people who do believe in God are less inclined to investigate the God-details. There's some truth to that!

In fact, suggesting that a critic has manufactured an issue because there is more to it than the limitations of campaign spots will allow, is, in its own way, also misleading.

Now I'm being misleading by describing how misleading it is for Gableman to suggest Butler relied on "The Wizard of Oz" to reach a disposition in an opinion he didn't even write? Esenberg is too clever by half, I must say. Except this particular manufacture was deployed during a 75-minute debate without any such limitations. Will it turn up in a campaign spot? We'll see, I guess. I hope so, for the reasons set forth above.

This is why it was fair for Daniel Suhr to say that Justice Butler "especially defended" use of the studies. He was responding to Justice Roggensack's criticism of their use.

Well, not exactly. More specifically, he was responding to the self-undermining logical disconnect apparent in Roggensack's dissent, in that on the one hand she was using the studies in support of an argument while simultaneously dismissing them as "disputed social science theory."

In other words, 'You can't have it both ways,' is pretty much all he was saying. If you're going to rely on a set of statistical findings, then you can't dismiss the same data as "disputed theory." Do they support your argument, or not. That's actually a criticism of the use Roggensack put to the studies, not a defense. Criticism and defense, they're sorta at the opposite ends of a continuum, kinda like "nefarious" and "malapropism."

But I suppose Suhr can say anything he wants, and has.

Finally, there is this comment under Esenberg's post, from the dependable fan of strawmannery and red herringing, Dad29:

"Complexity" and "nuance" are generally used to derogate arguments from Common Sense.

I am reminded of a pertinent quotation from Sydney Smith: "He not only overflowed with learning, but stood in the slop."

Which just goes to show that no matter how effectively is the lie put to the Gableman campaign's clumsy efforts at negative campaigning, they will nevertheless find a receptive audience of eager dupes.

If there's a better argument against the popular election of State Supreme Court justices than the mere existence of such willfully gullible electors, it eludes me at the moment.

[Please visit the iT Butler/Gableman archive.]

Gableman: An inconvenient truth

Burnett County Judge Michael Gableman, who is challenging Wisconsin Supreme Court Justice Louis Butler in an April 1 election, has a link at his campaign website to an AP story discussing the court's decision in Helgeland v. Wisconsin Municipalities (.pdf; 105 pgs.), which was released last Thursday.

Helgeland addresses whether anybody and their dog can become parties to a separate lawsuit challenging the State's policy against providing health care benefits to the same-sex partners of State employees. Four Justices, including Butler, conclude that the municipalities that seek to join the lawsuit cannot do so, because they “failed to demonstrate ... how their interests relate to the subject of the action in a direct and immediate fashion.”

What Gableman's campaign doesn't link to is the other decision of the court released Thursday, State v. Hambly (.pdf; 63 pgs.), a criminal defendant's appeal originating in Washington County pursuant to the arrest of a suspected coke dealer and addressing whether statements made by the suspect during a disputed invocation of his Fifth Amendment rights were admissible at his trial.

One may legitimately wonder why the Gableman campaign might want to publicize Helgeland, but not Hambly. It seems to me there are at least two reasons. The first is that in Hambly, Justice Butler "sided with law enforcement," an inconvenient fact of life that flies directly in the face of Gableman lieutenant Darrin Schmitz's claim that Butler "consistently sides with criminals over law enforcement."

Not only that, but Butler joined a separate concurring opinion along with two of the court's "traditionalist" heroes, Justices Roggensack and Prosser (the third "traditionalist," Justice Ziegler of Washington County, sat this one out).

The second reason has to do with the anti-Butler contingent's objections to his having departed from U.S. Supreme Court guidance in favor of broader interpretations of Bill of Rights provisions as exemplified (so they claim) by the contingent's signature criminal case, State v. Knapp. According to this view, which Butler's detractors describe as "New Federalism," the Wisconsin Supreme Court should be bound by federal interpretations of the Bill of Rights, and not expand those protections further than have the federal holdings.

In fact, in Hambly, while finding for the State on a different rationale, it's the court's "traditionalists" that go to great lengths to expressly reject an argument made by the State that the defendant must not prevail because the U.S. Supreme Court had previously declared, "We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.'"

So, if criticisms over "New Federalism" are to be leveled against Justice Butler, they must necessarily be leveled against the court's so-called "traditionalists" as well. Indeed, those great lengths involve distinguishing the facts and law in Hambly from the U.S. Supreme Court case upon which the State urges the court to rely, which was precisely the exercise in Knapp.

All of this goes to demonstrate two things: (1) Hambly is an inconvenient truth to the Gableman campaign and (2) things are not always as they seem, and often do not resonate well with Gableman's overly simplistic depiction of Justice Butler's jurisprudence.

And, to put it mildly, one would be well advised to be extremely wary of that overly simplistic depiction.

[Please visit the iT Butler/Gableman archive.]

WMC among the drama prairie dogs

Mixed in with the skateboarding kitty cats and Doritos-pilfering seagulls at YouTube.com, interested observers can now find what appears to be Wisconsin Manufacturers & Commerce's initial mass media salvo against State Supreme Court Justice Louis Butler, which turned up sometime within the last few hours.

Here's the link:

Louis Butler: 78% Pure Eeeevil

And here's the drama prairie dog, which seems particularly appropriate to the drama WMC circumstances:

Dah, dah, daaaaaaaah!!!!!11one!

More later, naturally. But in the meantime, a couple of threshold questions presented:

1. What and who exactly is the Judicial Evaluation Institute, and what data and methodology did it or they employ to arrive at the conclusion that Butler has "the second worst record on the court"?

2. What data and methodology was employed to portray Justice Annette Kingsland Ziegler, who's been on the court for all of five whole months,* as a "traditionalist"? (See, because there are only two kinds of judges: traditionalists, and activists.)

* During which time, according to my count, the court has released only a dozen or so decisions, mostly involving attorney discipline.

[Please visit the iT Butler/Gableman archive.]

Debate notable for lack of debate

Mike Plaisted is not going to be pleased with me. Neither is Renato Umali. I really wanted to get down to the Bremen Café in Riverwest last night, where both of them were performing. But I've been fighting off a nasty cold for the last few days and wound up snoozing under a blanket for most of the evening. Next time, gentlemen, I promise.

Renato is an easygoing guy, and I'm sure he'll forgive me. He probably won't even take back my 2005 Umali Award (long story). So is Plaisted, I imagine, and so will he, I hope. But maybe not when he finds out what I ended up doing instead of catching his acoustic set at the Bremen: I watched his arch-nemesis, Rick Esenberg, on the teevee.

Esenberg, along with three other local worthies, appeared on Milwaukee Public Television's long-running panel discussion series, 4th Street Forum, to debate religion and politics. Only one problem: they were all religious! And things didn't even start getting close to feisty until there were only about ten minutes left in the one-hour programme.

The Shark's fellow panelists were the Interaith Conference's Marcus White (he of "Coexist controversy" fame), Susan Vergeront, a former State legislator and "Christian Nurturer," and Renee Crawford, associate director of the local ACLU.

Ms. Crawford was pretty cool, although she didn't appear much inclined to mix it up with her fellow panelists. Man, I wish I'd been there, if only to pass Renee a few talking points. As a friend of mine comically described — I believe it was — Duran-Leonard II, "The lack of violence was sickening."

Some of the discussion was directed toward the religiosity of the current and past presidential candidates, and the appropriateness of their advertising their various religious beliefs as some kind of qualification for public office. To her credit, Ms. Crawford mentioned the No Religious Test Clause of the Constitution, but Esenberg the lawyer was quick to point out that this is purely an "institutional" proscription, in that it only prevents actions by the government.

The obvious response to that is two-fold: (1) the language of that clause is among the most forceful in the Constitution, and it's not unreasonable to extend its admonition as a directive, or at least a suggestion, to the populace and (2) the Constitution famously begins with the words, "We the people," not "We the lawyers." See (1).

Esenberg finally did get a chance, however, to enunciate his curious hypothesis that government neutrality toward religion is impossible, and its pretense should be abandoned, because government's influence is nowadays so pervasive that no matter what it does, it's bound to offend someone and possibly even interfere with somebody's "free exercise" of religion, which is guaranteed by the First Amendment to the Constitution.

He gave, as a rather unfortunate example in my view, the idea of public schools informing students that sexual orientation is primarily an objective matter of biological imperative and should be regarded as such may impinge on some students' rights to freely exercise their own religious beliefs that gay people are icky and Hellbound.

Esenberg was challenged by a woman in the audience, who essentially asked — and I'm paraphrasing liberally here, but I believe this was the import of her inquiry — 'Do you mean to tell us, Mr. Esenberg, that secular notions of respect for individual human dignity should be sacrificed in favor of atavistic devotion to ignorance and bigotry?'

Score. You go, lady in the gray sweater.

Other than that, there was little friskiness to be had, and my own favorite religio-political subject, creationism, didn't pop up until nearly the end of the show, when Pastor Vergeront made some sideways appeal to making room in science for irrationality, and lamented the fact that creationists are often not treated respectfully.

Now, I'm no Christian Nurturer myself, but it's my understanding that the man they call Christ had little patience for liars, hypocrites, and deceivers either. At that point, Ms. Crawford suggested that "intelligent design" be taught as a separate course, which begs the question, "What will they do after the three minutes it takes to explain, and enumerate the evidence for, 'intelligent design'?"

They need to have me on that show. I could shake 'em up a bit. Or at least get myself Tasered by security for insolence.

John McAdams: FAIL

The blogger at From Where I Sit asks:

Being an agnostic, I find this observation by John McAdams at Marquette Warrior interesting:

But not believing in God doesn’t change the fact that people have a deep desire to feel righteous, to feel clean and redeemed and right with God — or with something equivalent to God.

What do you think, does he have a point?

No. People who don't believe in God pretty clearly don't have desires to feel right (or wrong) with something they don't believe in. Nor do they seek redemption from non-existent saviors. And, obviously, aspirations to righteousness and cleanliness don't need to have anything to do with God at all. The latter has more to do with shampoo and laundry detergent.

As for "something equivalent to God," when the believers arrive at anything approaching consensus with respect to the alleged attributes of God (which will be never*), then maybe we can talk. Not even the Bible is consistent when it comes to describing said attributes.

McAdams is doing nothing more than projecting and, furthermore, it's the height of fatuousness to claim insights as to the "deep desires" of atheists, or anyone else for that matter, let alone portray those insights as "fact." Prove it.

One thing we can all — figuratively speaking, of course — thank God for is that Prof. McAdams isn't teaching theology. Or logic.

* Case in point.

Musical notes: On histrionics

A lovely and devoted reader sent through this recent New York Times article, which is about concert pianists engaging in physical histrionics at the instrument. Since it was elicited by my post about Glenn Gould here, and the article uses him as an example of said histrionics, I'm compelled to defend the late Mr. Gould against these silly accusations.*

First of all, it must be stressed that the effective performance of J.S. Bach's keyboard works requires a degree of concentration that may be fairly described as verging on the superhuman. Bach's collection of 48 Preludes and Fugues, Das wohltemperierte Clavier, has been aptly portrayed as the Old Testament of the piano repertoire (Beethoven's 32 Piano Sonatas being the New).

Additionally, Bach's Goldberg Variations, which Gould recorded twice, once at the outset and once at the conclusion of his career, is so technically difficult few pianists even attempt it, let alone completely own it, as Mr. Gould did.

So it isn't any wonder their execution might involve a few grimaces and head bobs on the part of the performer. Bearing this in mind, here is what Bernard Holland of the Times wrote:

More often, I suspect, performers just want everyone to know how wonderful they are, right down to their virtuoso fingertips. There are bad examples out there. Liszt evidently jumped around when he was a young touring virtuoso, but he is said to have sat at the piano like a stone later in life. Glenn Gould, who acted out his musical eccentricities with remarkable finesse, looked like the music he was making.

The bad example, as any self-respecting classical music critic should know, is placing Glenn Gould in this context.

Number one, Gould detested the flamboyant Franz Liszt and most of his Romantic contemporaries. Take a look at Gould's extensive recorded catalog; it's as if the 19th century never happened.

Second, Gould was a "touring virtuoso" for only a short time. The fact is, Gould gave up public performances for good in 1964 at the age of 31, devoting the remaining 20 years of his life to recording and other solitary pursuits. To the extent that Gould wanted anyone to know how "wonderful he was," it was through getting people to listen to the music, and not watching him play it. That people were watching him is precisely the reason Gould eschewed the concert stage.

Not only that, but Glenn Gould was among the most notorious and nocturnal hermits of all time, and any suggestion that he craved public notoriety at all is stuff and nonsense. I daresay the Milwaukee Journal-Sentinel's most excellent music writer Tom Strini would never commit such a stupendous faux pas.

In other musical notes, my good buddy the Brew City Brawler, in the course of checking out his homage to a few seminal American punk bands, inspires me to two things: pull out my original Bad Brains ROIR cassette, and point to a couple of amusing commentaries by Henry Rollins, the former frontman of Black Flag:

Dear Ann Coulter (YouTube, 2:25)

Evolution (YouTube, 2:44)

While it may be fair (albeit simultaneously absurd) comment for some unintentionally comic buffoon to claim this here blog is riddled with "anti-Christian bigotry," let it not be said that my penchant for diverse musical appreciations is anything but catholic. And speaking of Catholics, be sure to check out the Brawler's takes on the latest developments within and without the Archdiocese of Milwaukee.

* Which are in no sense whatsoever any reflection on my lovely and devoted reader, I hasten to add.

Mitt out you

Like many Americans, I was both dumbfounded and speechless at Mitt Romney's idiotic and internally contradictory message to a gathering of alternately disenchanted and vocally disgruntled conservative Republicans yesterday.

Fortunately for the speechless, there is Jon Stewart.

That is the best Johnny Carson impression, by the way.

And, as Dana Milbank observed, Mr. Romney doesn't really believe the appeal to Democratic terrorism he claims is the reason he's "suspended" his presidential bid. That's because it would be embarrassing to tell the truth, which is simply that Mrs. Mitt Romney ordered him to stop pissing away all that dough.

After all, "strong families" was one of the three legs on Mitt's "campaign stool." Come to think of it, Romney's CPAC speech was a freestanding and fragrant campaign stool all of its own accord.

Death of irony confirmed

"Like I said, I give very little credence* to a gang lead [sic] by IT who posts from the 'Champagne of Hate Blogs' and touts his 'Anti-Christian Bigotry' bona fides on his sidebar."

— a college Republican

See also: the ad hominem fallacy.

* Down On The Corner

The anti-Federalist Society

Esteemed counsel Mike Plaisted has thrown down another priceless commentary related to the April 1 election contest between Wisconsin Supreme Court Justice Louis Butler and Judge Michael Gableman of Burnett County. I offer the link partly in self-serving recognition of his generously framed glances in my direction, but also for a couple of other reasons.

The first is to note the obvious: Plaisted's central point addressing young GOPer Daniel Suhr's regurgitation of the Gableman campaign's thus far unsupported claim that Justice Butler "consistently sides with criminals over law enforcement" is completely ignored by Suhr when he turns up in Plaisted's comments thread.

Suhr, who describes the claim as "an effective punch from the Gableman campaign," instead uses the opportunity to break the news that Microsoft now allows us to convert Word documents to Adobe Acrobat files and to confirm how much he likes his bibliography of, as Plaisted puts it, "Everyone Who Said Anything Bad About Butler."

Earlier, Mr. Suhr got himself definitively schooled on statistical methodology by Clutch, another highly instructive comment that, for one reason or another, Suhr chose not to respond to.

I should add that I happen to know what Clutch does for a living and, without revealing too much, can reasonably predict that he would easily qualify as an expert witness in the discipline according to either the Frye or the Daubert standards (those are two U.S. Supreme Court cases that address the elements of how to go about evaluating the admission of expert testimony).

That Suhr insists on regarding the Gableman claim as an "effective punch" while continuing to ignore requests that he support it serves only as more confirmation that Suhr's project is 95% GOP politics and 5% reading the cases (and the latter only where they allegedly provide positive servicing of the former).

Instead, what Suhr and Rick Esenberg — who also makes an appearance in Plaisted's comments — object to is Plaisted's suggestion that Esenberg and Suhr were somehow in league over the production of Suhr's "research briefings," which he's since helpfully forwarded to the Gableman campaign.

While you can't blame either of them for denying it, you can hardly fault Plaisted for putting it forth either. Plaisted has documented a number of connections between Marquette Law School, the Federalist Society, and Wisconsin Manufacturers & Commerce, the latter two outfits being among the anti-Butler forces.

As for the law school itself, it should be noted that Esenberg's boss, the individual who brought him aboard the faculty, Dean Joseph Kearney, is himself a Federalist Society man. And Dean Kearney can boast the most impeccable Fed Soc credential of all: he clerked for Justice Antonin Scalia.

For Esenberg's part, he's written a series of lengthy posts attempting to rebut some of the things I've said here. The posts, although entitled, "Setting the record straight," rebut very little. The detail he finally did catch me on by the third in the series I acknowledged immediately and added a correction to the original post.

What Esenberg's series does is explain some of the philosophical groundwork for Esenberg's own objections to Louis Butler's jurisprudence, at least as Esenberg sees it. That is legitimate commentary and he does not ineptly or misleadingly manipulate the law to make his point. His Fed Soc paper, "A Court Unbound?" is available here, is very well written, and is well worth reading.

(As mentioned previously, "A Court Unbound" is the theme of WMC's World Tour of Breakfasts, which kicks off next week.)

A Consistency Unbound By Political Convenience?

Now for some philosophical observations of my own. The Federalist Society gets its name and purports to take its guidance from James Madison. Of all the Framers of the Constitution, Madison was its most assiduous assembler and defender. He, together with Alexander Hamilton, is one of the principal authors of the Federalist Papers, a series of 85 brilliant polemics in defense of the Constitution that appeared in the New York press in the immediate aftermath of the Constitution's drafting during the summer of 1787.

The Federalist position initially was that the Constitution did not require a Bill of Rights, because federal power was already self-limiting, expressed as it was in a series of specifically enumerated powers; for example, Article I, Section 8, which sets forth the powers of Congress (most of them). Ultimately the anti-Federalist forces, who distrusted federal power in favor of local control, won out, and Madison himself shepherded the Bill of Rights through Congress. The Bill of Rights consists of either the first eight or the first ten of the Amendments to the Constitution, depending on which scholar you read.

Regardless, the heart of the Bill of Rights is a set of protections against the government afforded to criminal defendants, contained in the 4th, 5th, 6th, and 8th Amendments. While these restrictions originally applied only to the federal government, they have since been deemed applicable to the States through the legal force of the Due Process Clause of the 14th Amendment, which is a directive to the States.

Additionally, the States have their own bills of rights, the language of which in many instances is identical, or functionally identical ("substantially similar," in the lawyerly vernacular) to the federal Bill of Rights.

The U.S. Supreme Court is charged by the Constitution with interpreting the scope of the federal protections and, hence, these must be followed by the States, as a minimum. In other words, the States may interpret not only the federal Bill of Rights more broadly than has the U.S. Supreme Court, but they may interpret their own State bills of rights more broadly than has the U.S. Supreme Court interpreted the federal Bill of Rights.

For example, there is nothing in the federal constitutional scheme that forbids a State from finding a police search unreasonable even though the U.S. Supreme Court may have found a similar search not unreasonable.

Lately, ironically, we have Federalist Society members and their fellow travelers denouncing as "activist" opinions of Justice Butler's that they claim reject federal control, in the form of U.S. Supreme Court interpretations of the Bill of Rights, in favor of self-determination by the State of Wisconsin, by way of its own interpretation of its own State bill of rights.

Ironic because this is precisely the sort of State power the anti-Federalists sought to preserve. Now here are the self-styled Federalists criticizing Justice Butler for exercising it.

Go figure.

[Please visit the iT Butler/Gableman archive.]

Haggard gayhab seed finds no purchase

Dear New Life Church family and friends,

Today, our church's board of trustees will release a statement regarding the end of the restoration process for Ted Haggard.

They tried to make me go to gayhab / I said no, no, no.

h/t livius the great.

Next exit: Fictionberg

dueling billboards

h/t PZ.

Brooks & Dunn it is, then

The poor man's Bruce Springsteen has prevailed upon the poor man's Ronald Reagan to cease and desist with the campaign tunes:

In an e-mail this week to campaign manager Rick Davis, Mellencamp's publicist suggested McCain should find the singer's rousing classic-rockers like "Pink Houses" and "Our Country" to be an "embarrassment."

"Mr. Mellencamp identifies very strongly with the progressive wing of the Democratic Party and was supportive (with these same songs!) of the candidacy of John Edwards . . ."

Back in the day, the real Springsteen was similarly taken aback at the real Reagan's comically misguided reading of Bruce's powerful antiwar anthem, Born in the U.S.A. Republicans, they never learn.

One for the road: The River

Pewaukee's winger shindig

This weekend's conservative love-in at Pewaukee, among its featured assortment of reliable right-wingers, advertises as an invited speaker Oklahoma Senator Tom Coburn, arguably one of the fruitiest nuts — if not a nuttiest fruit — in American politics.

While there are any number of Coburn entertainments to be found throughout the internets, including Coburn's demand for his own lethal injection, since he's advocated the death penalty for abortion providers despite having provided them himself, a couple of gems are reported in this American Prospect article from 2005.

Following a discussion of Coburn's revelations of rampant lesbianism in Oklahoma high school bathrooms, there is this:

At the end of January, Coburn, who has landed on the Senate Judiciary Committee (where nobody cares how many people go to the bathroom at once), was talking about class-action lawsuits and the silicon-breast implants that occasioned a few of them. This, according to The Washington Post, is what he said:

"And I thought I would share with you what science says today about silicone-breast implants. If you have them, you're healthier than if you don't. That is what the ultimate science shows."

Torts reform, teats reform, whatever.

Coburn's devotion to "ultimate science" continues here, with a thorough evisceration of the Junior Senator's opposition to naming an OK post office after Rachel Carson, author of The Silent Spring.

Finally, at Salon.com, a disturbing account of Dr. Coburn's having sterilized a 20-year-old woman in 1990, allegedly without her consent.

All of this is in addition to Coburn's hysterical claim that "the gay agenda," which "wields extreme power," is "the greatest threat to our freedom we face today." Al-Qaeda is a gay front group, apparently. And doubtless those rampant teenage lesbians are right there with them, destroying America one high school washroom stall at a time.

Talk about a wide stance.

While Coburn was invited to the love-fest, he isn't listed on its own non-gay agenda, so maybe Coburn was either too batshit wacky even for the "summit," or vice versa. But they did manage to secure Burnett County Judge Michael Gableman and local blogger Owen Robinson, whose presentation is reported to consist of holding up Milwaukee Journal-Sentinel clippings and remarking, "Interesting!"

Another local blogger, Mike Mathias, also received an invitation to speak, except Saturday's the day he sets aside for rearranging his sock drawer.

eta: It's called the DAD summit and admission is $29. Hmm.

Glenn Gould revisited

I felt a little bad about criticizing Canadian pianist Glenn Gould's playing of the Mozart sonatas, on the occasion of that composer's 252nd birthday. Now I feel I need to make amends. So, below are links to Glenn Gould performing J.S. Bach's Partita No. 4 in D major, BWV 828.

The keyboard Partitas (there are six of them, originally published in the late 1720s) are suites of short pieces derived from French dance forms, as indicated by the movement titles. Bach composed a number of such works for various instruments. The music is ingenious and sublime and these performances are unparalleled, as are all of Glenn Gould's Bach recordings. Additionally the YouTube transfers are close to as good as they get, no pixellation and with the audio in near perfect sync with the pictures.

Apart from his sheer brilliance, they also highlight a few of Glenn Gould's numerous eccentricities, including the humming, the self-conducting, and the famous battered dining room chair with its legs sawn off.

Enjoy, and marvel. 2008 is the Year of Glenn Gould.

I. Ouverture (4:51) II. Allemande (5:44) III. Courante (3:14)
IV. Aria (1:14) V. Sarabande (5:15) VI. Menuet (1:18)
VII. Gigue (1:23)

Super Tiw's Day

Here's a worthwhile piece at ABCNews.com, concerning a number of questions that might be put to at least two of the remaining aspirants to the presidency, Mitt Romney and Mike Huckabee. One in particular, directed at the fomer Arkansas governor, merits a bit of additional commentary:

Article 19 of the Arkansas state constitution states, "No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court." Although it and similar laws in other states are not enforced, do you support their formal repeal?

It amazes me that such completely irrational nonsense continues to exist on the books, let alone that it was put there in the first place.

The latter component, dealing with competency to stand as a witness in court, is particularly bizarre. While it derives from an arcane notion in the law of evidence (since abandoned) that a witness' credibility and reliability for stating truthful observations somehow obtain from "swearing to god," it utterly contradicts more reasonable notions of credibility relied on by the government almost daily.

When, for example, criminal suspects are questioned by the authorities, their statements are deemed to be especially credible because those statements are made "against their penal interest." In other words, the truthfulness of the statements is assessed against the suspect's informed knowledge that those statements may well end up putting her or him in the slammer, or, in some States, prostrate upon the lethal injection slab.

Why not, similarly, the testimony of an atheist? Because for a large majority of Americans, a declaration of non-belief in god has less to do with such temporal inconveniences as life in prison or state-sanctioned homicide but the skewering of the heathen on the eternal rotisserie of hellfire and damnation. So, for the believer at least, what statement could possibly be more representative of "against their penal interest" than "I don't believe in gods"?

Much religion is silly enough on its own without injecting it into politics or worse, codifying its imaginary prescriptions into the laws of the land, where we all live for the time being.

Back atcha, James Rowen

Jane Hampden's series on Milwaukee Public Radio about local bloggers continued yesterday by featuring an interview with James Rowen, who maintains the most excellent, informative, and thought-provoking The Political Environment.

Rowen's journalistic and political résumé indicates that he's "been everywhere, man," as Johnny Cash happens to be putting it on my iPod at the moment. Mr. Rowen was also kind enough to mention your humble correspondent when asked to name a few of his blogosphere recommendations. "A lot of people have cited that blog," replied Ms. Hampden, "that mysterious blog." But I haven't heard from her yet, despite what I've been told is my sexy radio voice.

Additionally, Mr. Rowen's son is currently running for an aldermanic seat in Milwaukee's 3rd District. That election takes place on February 19, the day of Wisconsin's presidential primary. Given that the Democratic nominee appears unlikely to shake out today, the 19th could be a momentous day nationally, and here's hoping a big turn-out favors Sam McGovern-Rowen.

Yes, that George McGovern; Sam is George's grandson, and the eldest McGovern will be in town next Tuesday. I'm a bit too young to remember Senator McGovern's own bid for the presidency, my impressions of the man coming initially from Hunter S. Thompson's masterwork, Fear and Loathing on the Campaign Trail '72, but I'm not as young as James Rowen thinks I am either!

The Other Side shares a nifty George McGovern reminiscence here.

A Roger Goodell Joint

An informal straw poll, conducted yesterday in the city of Glendale, WI, among my friends, colleagues, and disciples, leads me to believe that most of them are today pleased with the New York Giants' Super Bowl win. My own favoring of the NYG was informed by their desire to avenge the narrow loss to the Patriots in Week 17 and a general sympathy toward the underdog in all things sporting.

Tom Petty was a safe choice for the halftime show, beleaguered as the NFL has been with abominations such as Justin Timberlake's grasping at Janet Jackson's nipple and Up With People. I'm not much of a fan, and consider it remarkable when his efforts rise to the level of rock 'n' roll competency.* But I wished he'd played that song of his about taking massive hits off the bong or rolling another spliff or something. It's always been my favorite.

That may not have gone over real well with Commissioner Goodell, but I bet a lot of the players would have dug it too.

* Is that an album title or what.

Butler "rather fond" of own opinions

And that, my friends, is supposed to somehow, some way count as what lawyers and judges refer to as "precedent." I kid you not.

Read (including the comments).

Amazing.

[Please visit the iT Butler/Gableman archive.]

What's Herbie Hancock up to these days

Playing piano for Barack Obama.

Catchy tune.

Gableman: Over the rainbow and out to lunch

Last Tuesday during his debate with Wisconsin Supreme Court Justice Louis Butler, Burnett County Judge Michael Gableman let fly this startling little shot across the bow:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities.

Gableman was apparently referring to a 2005 decision of the Wisconsin Supreme Court called State v. Dubose (.pdf; 63 pgs.).

Gableman's remark is instructive for a number of reasons, not the least of which is that it raises the question whether he even knows what he's talking about. As for 'citation,' it's a term of art, and it means something specific to lawyers. Aspirants to the Wisconsin Supreme Court, in my opinion, shouldn't play fast and loose with legal terms of art for the sake of mugging in front of the crowd.

It's not only misleading, it's dishonest, because one would expect Judge Gableman to fully understand what is meant by them.

First of all, Dubose was authored by Justice Patrick Crooks, not Butler. Second, Dubose embodies a very complicated due process analysis that involves revisiting a number of Wisconsin and U.S. Supreme Court cases in light of a considerable amount of more recently obtained empirical data having to do with the reliability of eyewitness evidence, and in particular evidence gathered through a certain type of police identification procedure. To put it mildly, Dubose does not lend itself to one-liner soundbites, especially the utterly nonsensical one offered by Gableman.

And one has to be especially careful reading Dubose because it contains three separate dissents, by Justices Wilcox, Prosser, and Roggensack. Each takes issue with the majority opinion for different reasons. It requires some serious work just to tease out the competing strands of analysis in Dubose, let alone portray it accurately for the layperson. To reduce it to, "He cited The Wizard of Oz" is, on a charitable reading, an act of negligence and, to my mind at least, raises a concern as to Gableman's suitability for the position he seeks.

While Butler joins Crooks's DuBose opinion in full, he writes separately only to shed light on a failure he detects in Justice Roggensack's dissent. To wit, Roggensack relies, at one point, on the very data she had derided as "disputed social science theory" only a few paragraphs previous. That's about the entire thrust of Butler's very brief concurring opinion. His apparent sin, to return to Gableman's dishonest characterization, was to criticize Roggensack's skepticism over the empirical data by saying this:

Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.

That's it. A figure of speech, hardly the "citation" that Gableman would attempt to have us believe.

Incidentally, our good friend Daniel Suhr is also completely wrong (surprise) when he claims that Butler wrote to "especially defend" the majority's use of the empirical data. He was not "especially defending" the majority, he was "especially criticizing" one of the dissents for a glaring error of reasoning. It is notable, however, that Suhr also makes an issue of Butler's offhand reference to the "Land of Oz." It's almost as if Gableman was presented with Suhr's "Research Briefing" in preparation for his debate with Butler. D'ya think?

Suhr, by the way, can be more easily excused for his ineptitude than can Gableman, since Suhr hasn't sworn his lawyer's oath yet. (If there's a god in heaven, my humble prayer to her or him is that Daniel Suhr pulls Justice Butler for his swearing-in ceremony.)

Gableman's portrayal of empirical data as "manufactured" at colleges and universities is also quite telling, and he is kidding himself — and the Wisconsin electorate — if he thinks he'll just be able to laugh off relevant empirical studies prepared by the U.S. Department of Justice if and when he finds himself on the Supreme Court.

It's often said that there's a crock of gold at the end of the rainbow, but it appears that Judge Gableman is entertaining us to a crock of something else, something more fragrant than gold.

[Please visit the iT Butler/Gableman archive.]

Lower than the serpent's belly

BAGHDAD, Iraq (CNN) -- Two mentally disabled women were strapped with explosives Friday and sent into busy Baghdad markets, where they were blown up by remote control, a top Iraqi government official said.

I can't imagine anything more depraved.

Friday fallacy funnies

One of my pet peeves (I tend to cultivate a number of them) turns on the expression "ad hominem" as it is often popularly applied. Many people think it means simply "insult," as if calling someone a stooge or a buffoon is an ad hominem. Not so.

Argumentum ad hominem (argument against the man, or person) is a type of logical fallacy, committed when one attempts to undermine an opponent's argument by claiming something about the opponent's character affects the quality of the argument itself. The fallacy obtains from the fact that there is no logical connection between the argument stated and the character of the person putting forward the argument. In other words, bad people can make good arguments; being bad cannot per se make your argument bad.

Misunderstandings over what ad hominem means are not confined to your garden variety Daily Kos comment-leaving trolls, either. Consider the following, from a quartet of well-heeled Milwaukee attorneys working for silk stocking firms down the road from your humble correspondent:

False advertisements or ad hominem attacks are never appropriate. But Wisconsin citizens are smart enough to distinguish between fair criticism and scurrilous smears.

"Scurrilous smears" are not in and of themselves ad hominem. While ad hominem may involve a scurrilous smear, ad hominem requires that the smear is put to use for the purpose of undermining an otherwise perfectly valid and well supported argument. A smear or an insult standing alone are just those, a smear or an insult.

Another thing about the ad hominem is that they are often easy to find, although truly textbook quality examples are less common. By fortuitous coincidence I just happened to find one this morning at, of all places, the online lair of one Daniel Suhr (see below) made all the more comical by the website's title block, which declares the entire domain to be devoted to "Systematically Debunking Liberal Rhetoric."

Here, let me show you it.

Following a wistful missive entitled, "I'm tired of John McCain's lies," a fellow named Gregory chimes in to offer a number of eminently reasonable observations on the recent GOP Florida presidential primary. Moments later, the aforementioned Suhrian associate Brian, author of the wistful missive, rejoins:

Gregory,

You’re a Democrat. That isn’t an accusation, that’s a fact. Do you think I’m going to take anything you say seriously? Of course liberals like you prefer McCain to Romney. So does the collectivist New Yawk Times.

That, ladies and gentlemen, is worthy of submittal to Prentice Hall.

And the spanking continues

Oh my deary, deary me.

Of State v. Knapp, the anti-Butler forces' signature criminal case:

What you leave out with this creative use of the passive voice is the fact that the police INTENTIONALLY VIOLATED THE SUSPECT’S CONSTITUTIONAL RIGHTS specifically to obtain such a statement. This is not a case, as you suggest, of the police inadvertently failing to follow some obscure rule, but an intentional violation of the constitution. In fact, such a violation can be a federal crime. I think it’s 18 U.S.C. s.241 - violation of civil rights under color of state law.

Sounds familiar. That intentional violation was precisely the reason the Wisconsin Supreme Court distinguished its decision from United States v. Patane, the U.S. Supreme Court plurality opinion to which Daniel Suhr claimed Justice Butler "arrogantly" failed to "defer." In fact Butler also pointed this out during his online debate with Michael Gableman on Tuesday, when Gableman attempted to go after him over Knapp. Gableman had no response, incidentally, only the initial talking point. Said T.P. is not holding up real well.

And I believe Atty. Henak is referring to 42 U.S. § 14141, known in Department of Justice circles as the Police Misconduct Statute.

[eta: My mistake; see Atty. Henak's comment below. - iT]

There's more:

Let me get this right. Gableman’s campaign makes a statement that is demonstrably false, i.e., that Butler “consistently sides with criminals over law enforcement.” Butler then calls him on it and presents the facts that he has voted to affirm convictions in 98% of the cases presented to the Court. And you say that Butler is the one spinning the facts????? Get real!

And this coup de grâce:

Over the years, I have represented many people who were convicted of crimes it ultimately turned out they did not commit. Most of those reversals, by the way, were entered by the federal courts stacked with right-wing, GOP-appointed judges after the Wisconsin state courts had upheld the convictions.

Those crazy, madcap liberal activists! (Many of whom were appointees of the canonized St. Ronald Reagan, no doubt.)

Three more spankings, in a row, commencing here. Check 'em out.

Any suggestion that the hilariously ambitious Republican trickster Daniel Suhr quit while he's behind is not an attempt to stifle speech, but rather purely an expression of compassionate conservatism.

[Please visit the iT Butler/Gableman archive.]

Suhr spanked. Hard. Again.

Remember Daniel Suhr, the would-be GOP operative whose laughably dishonest attempts at scholarship were debunked right here? Sure you do. Doubtless young Daniel is favoring his tender posterior following on its latest unequivocal reaming. A daintier sample:

You and others attacking Justice Butler apparently want a right-wing automaton; someone who will automatically side with the police or the prosecutor regardless of the facts or the law. While I doubt that Judge Gableman would go that far, one wouldn’t know given the misleading propaganda attacking Justice Butler.

Ouchies. Read it all. Can't say he wasn't asking for it.

Comes GOP3 colleague Brian's devastating retort:

I try not to bore myself first with reading long liberal rants about the living constitution and second almost anything out of the mouth of lawyers.

I’ll leave Daniel to respond to inane thoughts about the law.

I'll admit D. Suhr, Esq. is uniquely qualified to dispense those.

[Please visit the iT Butler/Gableman archive.]