February 29, 2008

Community Sarcasm

Found on the website of Madison's Capital Times, beneath a story about the campaign watchdog warnings discussed here and here:
Mr. Gableman did nothing illegal in getting his judicial appointment. If he was smart enough to legally bribe then-Gov. McCallum into giving him an appointment to the bench using 'campaign fundraising' then it is his right to do so. As long as the process for a governor to appoint people is the way it is then people will continue to bribe their way onto the bench.

However, Judge Butler's decision to give a criminal rights is appalling. Everyone knows that the Constitution only applies to citizens and not criminals. He should be making sure that anyone convicted of a crime suffers as much as the system can allow and if their 'rights' are infringed on then tough luck. Next time maybe they will have enough money to hire a real lawyer and not get convicted in the first place.
At least I hope it's sarcasm.

February 28, 2008

Heckuva job on Brownie

A Fighting Bob guest blogger, Juris Prudence, offers another enlightening angle on the State v. Brown episode discussed below.

To wit, a bit of procedural history:
What hasn’t been pointed out yet, however, is that the [former Republican Governor Scott] McCallum administration, which Gableman was trying to curry favor with, was the same McCallum administration that was to blame for the decision in State v. Brown. * * *

"On December 30, 2002, the department (of health and family services) filed the updated report, supporting supervised release. The report stated that Brown 'ha[d] completed sufficient treatment at (Sand Ridge) to reduce his risk for sexually violent behavior to the point that he has become an appropriate subject for supervised release.'"

After this filing by the McCallum DHFS, the state then didn’t call a single psychologist to oppose McCallum’s DHFS’s request for release. The result was, not surprisingly, that the state failed to provide enough admissible evidence — so it failed to prove its case. You can’t blame the referee for calling the game for the defendant when the state doesn’t show up to play — or worse, where the administration throws the game.

Why isn’t Gableman attacking McCallum? Of course! Because Gableman gave thousands of dollars to McCallum, held fundraisers for McCallum, and then McCallum gave Gableman his job.
To which I would only add — or inquire, as it were — who was it that argued on behalf of the State of Wisconsin to deny Richard A. Brown his petition for supervised release, before both the Court of Appeals and the State Supreme Court?

None other than Peggy A. Lautenschlauger, Attorney General under current Governor Jim Doyle. Evidently Gableman's benefactors in the McCallum administration didn't leave her much to work with. Although she managed a win in the Court of Appeals, it was all over by the top court (thanks to Justice Prosser's deciding vote).

Butler and Prosser, judicial traditionalists

A few items related to the ongoing election campaign between incumbent Wisconsin Supreme Court Justice Louis Butler and his challenger, Burnett County Judge and sometime Republican gubernatorial contributor Michael Gableman.

First off, a very thoughtful and well written piece in the Badger Herald by Suchita Shah, a UW student of neurobiology (and the courts, it would appear), is worth checking out here.

Next we have the campaign watchdog committee, the WJCIC, issuing a couple of warnings, one to Gableman, and the other to some anti-Gablemans (nothing for Butler, however).

The WJCIC goes after a third-party outfit called the Greater Wisconsin Committee for a 30-second spot it produced called "Meet Mike Gableman." There's a QuickTime version at this link (it's actually pretty funny, and Wisconsinites sure do love their bobblehead dolls).

The spot presents a number of documented facts, and suggests there may have been some partisan political shenanigans leading to Gableman's Burnett County judgeship. Cory Liebmann has some more documentation on "Gableman's Suspicious Appointment" here and here.

But the WJCIC says the ad "implies, without explicitly stating, that Judge Gableman somehow committed an ethical lapse in the events leading to his appointment by [Republican] Governor Scott McCallum as a circuit court judge in Burnett County," and calls for the GWC to "immediately remove this ad from the airwaves."

That ain't going to happen.

The other WJCIC tongue-lashing concerns the Gableman campaign's characterization of State v. Brown, which is discussed below. (I don't know why the WJCIC is focused on the Margaret Farrow letter; the identical claims appear in Gableman's own official literature).

Butler the traditionalist

A more general concern voiced by the WJCIC is primarily of interest to law nerds, although it's probably the most salient point in the press release. According to Gableman, Justice Butler cast "the deciding vote" in State v. Brown, the implication being that if not for Butler, Richard A. Brown's petition for supervised release would have been ultimately denied.

But that isn't the way it works. It isn't as if six judges are deadlocked 3-3 on a question and Justice Butler happens to walk by and one of the six yells, "Hey Louis, what do you think? We need a tie breaker."

More importantly, as the WJCIC suggests, according to the deciding vote theory, Justice David Prosser is equally responsible for allowing Brown's petition to move forward and Prosser is, according to Wisconsin Manufacturers & Commerce, not only the most "traditionalist" member of the court, he's also its least "activist."

So it's practically a self-defeating claim for the Gableman campaign to criticize Butler's vote in Brown when Prosser voted exactly the same way. Not only that but Justice Patrick Crooks, who WMC places on the "activist" side of the ledger, dissented in Brown. But obviously the Gableman campaign doesn't want you to know that, otherwise they wouldn't be able to shout, "zOMG sex offender on the loose!!!1"

Besides, if Prosser the traditionalist hero voted to reverse the court of appeals, doesn't that mean Butler got this one right? It also means that Michael "Stark Contrast" Gableman would eschew the traditionalist position in favor of the activist. And that can't be good.

No wonder he refused to engage further questioning on Monday.

One thing's for sure, Butler's recently hired communications director, Erin Celello, is no shrinking violet, and the AP's Scott Bauer reports that Celello sets up the Brown trilemma as follows:
Celello said Gableman's comments show that he either hasn't read the court's decision, doesn't understand it "or is purposely lying about it as a desperate attempt to get any traction in this race."
Lastly, a stellar example of responsible journalism from the Inter-County Leader, which published an unsigned piece describing the GWC effort as "smear television ads launched by a shadowy special interest group" and quoting Gableman lieutenant Darrin Schmitz as saying, "It looks like Louis Butler sent his liberal, special interest friends to do his dirty work for him."

The item goes on to again state that the GWC is "a shadowy group, which launches smear campaigns that mislead voters and do not pass the truth test." At the very end we find the source of the article: "submitted." Submitted by Darrin Schmitz, I think is a pretty safe bet to place. It's also likely a shoe-in for the Columbia Journalism Review's "Darts & Laurels" section, in that it's practically a bullseye.

It is, however, a clever "pot v. kettle" game Schmitz is playing.

[Please visit the iT Butler/Gableman archive.]

February 27, 2008

Song of the vulgar boatmen

Learned counsel Michael B. Plaisted, as is his occasional and demure custom, puts pen to paper further to the recent news that the Milwaukee chapter of the Federalist Society has engaged CRC Public Relations, the Alexandria, VA firm that helped bring us the term "swiftboating."

CRC (which stands for "Creative Response Concepts") apparently is to become involved in at a minimum ancillary aspects of the current election campaign between incumbent Wisconsin Supreme Court Justice Louis Butler and Burnett County Judge Michael Gableman.

As Mr. Plaisted notes, Milwaukee lawyer Don Daugherty, Jr. admits that he and at least three of his Fed Soc associates "can be fairly accused of wanting to 'swiftboat' (or, as I prefer, to 'bork') the WJCIC." The WJCIC is the Wisconsin Judicial Campaign Integrity Committee, comprised of State Bar president Tom Basting and several other community leaders and the subject of considerable and even reckless commentary of late.

Needless to say, Counsellor Plaisted's perceptive memorandum is required reading not only for Butler/Gableman campaign junkies but also for all who appreciate incisive political writing.

Dedicated followers of your present correspondent may recall the mini-kerfuffle that ensued over this post, which caused Rick Esenberg of Marquette Law School to spring to the defense of Daugherty et al for what Esenberg perceived to be "smears" launched by its originating author, Mike McCabe of the Wisconsin Democracy Campaign.

It was almost as if Daugherty et al had been, er, swiftboated.

At the time, I considered the observation "interesting" to be the understatement of the month, and that anybody who didn't find the news that the MKE Fed Soc had hired the original swiftboaters to get involved in a Wisconsin election campaign "interesting" had to have been dwelling under a massive boulder for the past five years.

And, as it turns out, this is not the first time the Federalist Society — which is a national outfit and numbers among its illustrious fraternity not only the aforementioned Prof. Robert Bork but the oft-celebrated evolutionary biologist Ann Coulter — has enlisted the kind assistance of CRC Public Relations.

Last year, a Missouri contingent of Fed Soc operatives retained CRC to lobby for the restructuring of that State's judiciary. As Roy Temple of Fired Up! Missouri wrote in August,
Allies of [Republican] Governor Matt Blunt are bankrolling a campaign to "Swift Boat" Missouri's Non-Partisan Court Plan and replace it with a system where politicians pick judges. And they have enlisted in that effort a PR firm that specializes in hatchet jobs just like the one they are currently committing on Missouri's Non-Partisan Court plan. * * *

No doubt, the folks behind this effort are hoping Missouri ends up with a system where the Chamber of Commerce bankrolls Supreme Court campaigns and elects judges who will ensure that the interests of average citizens will no longer get a hearing in Missouri courts.
That sounds vaguely familiar, doesn't it? It should, not least because our own Wisconsin Manufacturers & Commerce has since put to use "statistical data" of dubious provenance and ginned up by Chamber of Commerce affiliate Sequoyah Information Systems, Inc., for the purpose of attacking Justice Butler politically.

The gravy thickens, as they say, and in the meantime the Milwaukee Federalists have scheduled a "Lluncheon" (perhaps they're serving Welsh rarebit) for March 11 featuring — quelle surprise — Richard Esenberg of Marquette Law School.

February 26, 2008

The ghost of Gableman to come

Burnett County Judge Michael Gableman is having some trouble with grammatical tenses: past, present, future ... that sort of thing. And he's insisting on maintaining his own idiosyncratic understandings despite being confronted with the facts.

Debating in Madison yesterday, incumbent Justice Louis Butler suggested that Gableman should correct a statement made by former Lt. Governor Margaret Farrow in a hyperventilating missive (.pdf; 4 pgs.) that began circulating earlier this month.

The statement has to do with the Wisconsin Supreme Court's decision in State v. Brown (.pdf; 52 pgs.), which reversed both circuit court and appeals court denials of a petition for supervised release filed by Richard A. Brown, who was convicted of second degree sexual assault nearly 15 years ago.

As AP reporter Scott Bauer puts it,
The offender, Richard A. Brown, was never released from prison. Butler called the letter "simply false," saying all the court's ruling did was order a release plan for Brown.

Gableman refused Butler's call to retract the letter, saying the court's ruling would have resulted in Brown's release had it not been for another factor that kept him in prison. He did not say what that was. After the debate he declined to comment in detail about the case, saying as a judge he didn't want to prejudge any case that may come before him.
How convenient, on both counts. First of all, it wouldn't have been terribly effective for Gableman to have repudiated Farrow's letter anyway, because the statement in question is lifted practically verbatim from Gableman's own campaign literature.

It comes from a list of brief (as in, one sentence) case synopses "Paid for by Gableman for Supreme Court," and distributed last year by three sheriffs and three district attorneys. For comparison:
Louis Butler provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County. — Farrow

Louis Butler provided the deciding vote to overturn a sexual predator finding by the circuit court resulting in the release of the defendant into Milwaukee County. — Gableman
(One sentence case synopses are practically by definition misleading, incidentally. Do not trust them, especially when they issue from a political campaign.)

Gableman is wrong, and Butler is correct, in that the Supreme Court's order was not to "release" Brown into Milwaukee County, but rather to instruct the lower court "to notify the Department of Health and Family Services that it should submit to the circuit court, pursuant to Wis. Stat. § 980.08(5), a plan for Brown's supervised release."

Big difference, and one in which the circuit court (not to mention the DOC) retains discretion and control over the supervised release plan.

Butler should know, since he joined the majority opinion, and also wrote separately to discuss a technical point of the law of evidence. And Gableman should know better, because he's advertising himself as qualified to serve on the State's highest court.

At the moment, Richard A. Brown is nowhere near Milwaukee County. He's in a supervised living facility in Mauston, 150 miles away. And it's unlikely that Brown will be wandering around Milwaukee County unsupervised anytime soon.

There's little question that Richard A. Brown is an eminently disturbing character, with an equally disturbing past. He's also dangerous; at least, that has been the determination of the State, and he's a registered sex offender for life.

But, like it or not, the Wisconsin legislature has put in place the means by which people like Brown (and worse) can apply for various degrees of supervised release from prison. Furthermore, to say that the circuit court and appeals court decisions that denied Brown's petition were close calls is an understatement.

So apparently this is Gableman's latest campaign strategy: to mischaracterize not only the law but the facts of Supreme Court opinions and then, when asked to explain, retreat under the Cone of Silence that supposedly prevents him from expounding further on the questions addressed in the case.

Funny, because Gableman has been announcing for a robust, constraint-free discussion of issues in his campaign to unseat Justice Butler. I can't say I'm real impressed with this tactic, and nobody else should be, either.

February 25, 2008

Lies and more Damned statistics

U.S. is still overwhelmingly Christian, study finds
— Los Angeles Times

Protestants Verging on Becoming Minorities
— U.S. News & World Report

A caveat or two about the new Pew study
— Dallas Morning News

Please reverse me, let me go

With apologies to Engelbert Humperdinck.*

Yesterday morning I mentioned Justice Louis Butler's dissent in State v. Jensen, the Wisconsin Supreme Court decision that allowed into evidence at Mark Jensen's trial certain out-of-court statements of the victim (Jensen was convicted in Elkhorn, WI last week for the first-degree intentional homicide of his wife).

An appeal of a nearly identical case from California, People v. Giles, was accepted by the U.S. Supreme Court in January, and retitled Giles v. California. Factually, Giles is different from Jensen, but the question of constitutional doctrine the Court will be engaging is exactly that which Justice Butler argued in his dissent.

First of all, commenter Atty. Bill Tyroler of the State Public Defender's Appellate Division (one of the most important and admirable positions in the country) is absolutely correct in pointing out that Jensen's attorney, Stephen Glynn, wasn't predicting a victory for Giles. Mr. Glynn was saying that if Giles prevails, then Mark Jensen would get a new trial, because a Giles victory would affirm Justice Butler's dissent, which argued that the aforementioned out-of-court statements were inadmissible.

In any event, the question the U.S. Supreme Court will be addressing (oral argument is set for Tuesday, April 22) arises from the Sixth Amendment to the U.S. Constitution:
In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]
Mark Jensen was unable to enjoy this right for the obvious reason that he caused the death of the particular witness.

Furthermore, out-of-court statements generally are hearsay and hearsay generally is not allowed as evidence where it is offered to prove certain matters. There are, however, a number of exceptions to the hearsay rule, as well as some out-of-court statements that are not hearsay (hearsay exemptions).

According to Sixth Amendment doctrine (that is, interpretations developed by the caselaw), there exists a "forfeiture by wrongdoing" rule, according to which the accused effectively waives his right to confront witnesses against him where he caused the witness to be unavailable to testify in court.

The question before SCOTUS is whether, in order to overcome the Sixth Amendment, the government needs only to prove that the accused caused the unavailability of the witness or does it need to prove, in addition to mere causation, that he caused it for the purpose of preventing the witness from testifying in court.

Butler's position in Jensen was that the government needs to prove both. John Marshall Law School's Colin Miller of the EvidenceProf Blog describes the majority's — that is, not Butler's — as "the liberal view."

And, as I noted previously, Butler's reasoning employed what might be fairly characterized as a "strict construction" of the Sixth Amendment, in particular the phrase "all criminal prosecutions." One of the reasons I say this is because I'm reminded of a dissenting opinion by Justice Clarence Thomas in a 2005 decision called Small v. United States.

Small was charged under a federal statute that prohibits firearm ownership to those "convicted in any court" of a felony. In Small's case, the prior felony conviction occurred in Japan. The majority concluded that the Japanese conviction didn't count, because, for one thing, U.S. courts couldn't be certain that foreign due process of law comported with American legal requirements.

Thomas (along with Justice Scalia) didn't even go there, insisting that 'any means any,' even, presumably, courts in Iran or North Korea. By the same token, Justice Butler's Jensen dissent treats "all criminal prosecutions" as does Thomas treat "any court":
The operative word in each of these [federal and State] constitutional provisions is the word "all." Neither provision creates a homicide exception to the constitutional guarantee of confrontation. Yet, the majority's misconception of the doctrine of forfeiture by wrongdoing does precisely that, defeating the confrontation guarantee contained within the state and federal constitutions.
The consonance between Butler's and Thomas's dissents is uncanny! Yet Butler is denounced as an "activist" by political conservatives while Thomas is held out as the very model of "traditionalism."

A number of observations I've seen embody the expectation that the U.S. Supreme Court will rule in favor of the California defendant/appellant, Dwayne Giles. That result would vindicate Justice Butler's dissenting view in Jensen, and is the reason why Mark Jensen may get a new trial, since the evidence in question was "extremely important," according to at least one juror.

The other significant aspect to all this, of course, is that Burnett County Judge Michael Gableman has used Butler's Jensen dissent in support of his "stark contrast" campaign message, the "stark contrast" in this instance being, in effect, 'My opponent stands a good chance of being affirmed by the U.S. Supreme Court, whereas my own position openly invites reversal.'

That position, incidentally, puts Gableman into alignment with Chief Justice Shirley Abrahamson, who Wisconsin Manufacturers & Commerce "rates" as even more of an "activist" than Louis Butler. (Cue Drama Badger, or whatever that mammal is.)

While Giles won't be decided until well after Butler retains his seat on the Wisconsin Supreme Court, perhaps Gableman might consider removing Jensen from his parade of horribles in the meantime.

* Release Me — Engelbert (Moab-y [Utah] Remix).

[Please visit the iT Engelbert Humperdinck archive.]

February 24, 2008

SCOTUS to affirm Louis Butler?

Convicted murderer Mark Jensen's attorney, Stephen Glynn, seems to think so (a "100 percent certainty"), along with just about everyone else quoted in today's Milwaukee Journal-Sentinel reporting on the Jensen conviction.

So what does this have to do with Louis Butler? It may be recalled that in State v. Jensen, the Wisconsin Supreme Court decision that allowed the admission into evidence at Mark Jensen's trial certain statements of the victim, Butler dissented.

And Butler dissented on precisely the grounds that now present themselves to the U.S. Supreme Court in a case called Giles v. California. (More on Giles here.)

I discussed State v. Jensen back in December in this post. The following is from Justice Butler's dissent:
Because I conclude, contrary to the majority, that the forfeiture doctrine should be applied (1) where the defendant caused the absence of the witness and (2) did so for the purpose of preventing the witness from testifying, I respectfully dissent in part.
And here is the question presented to the U.S. Supreme Court:
Does a criminal defendant "forfeit" his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?
More later ...

February 23, 2008

Craziest Butler/Gableman blog post yet

WARNING! Begin quoted material:
Tom Kamenick, a law school friend of mine, hair loss certainly meets that standard with the below piece offered in light of last night 8217 s heavenly happenings. Setting up and displaying your link for pharmacy members to visit is fast and simple. The people, furious at the way they were treated after their good-faith cooperation, chafed at these demands and cried out against them. Tramadol 180 :: Try us and You will Not be Dissapointed! Yesterday the campaign of Justice Louis Butler refused to sign a clean campaign pledge offered by the Judge Mike Gableman. - Get paid to visit our advertiser's websites. The primitive unbelievers, not understanding the science of natural climate cycles, were terrified, celebrex and promised to sacrifice even more of their property and lifestyles.
End quoted material.

Acomplia Tramadol Viagra! LINK TO QUOTED MATERIAL

The Gouldian cornucopia

How awesome is this. Sony Classics has released the complete Columbia Records catalog (and then some) of the late Canadian pianist Glenn Gould on 80 compact discs, priced at around $2.75 each. (Released in September actually; I'm a bit slow.)

Each CD comes packaged in a miniature reproduction of the original vinyl LP jacket. You can listen to Fresh Air's classical music critic Lloyd Schwartz discuss Glenn Gould, the collection itself, and play a few excerpts at this here link to NPR.

NPR's a bit slow too, I guess. This piece just aired on Wednesday.

The Shark owes me one

As in a commensurately prominent retraction, or a correction, or something, for this here. I didn't even write any of this stuff, it's a quote from another blog. I thought that was pretty clear. Yet the Shark has gone and attributed the whole shebang to your humble correspondent. Comes now the defendant to call shenanigans!

All's I said was that it was "interesting," which turns out to be even more true because the Shark wrote a whole blog post about it.

I reckon a heck of a lot more people read Prof. Esenberg's blog than read mine, many of whom probably wouldn't follow his link or check his comments. And even if they did, if Esenberg couldn't tell that I never wrote those three paragraphs, then they likely couldn't either, because Patrick McIlheran says Esenberg is the smartest man in Milwaukee County, and Patrick McIlheran is never wrong. Even when he's proved wrong he's still right. So I can't catch a break over here.

As long as Prof. Esenberg's post is hanging up there at the top of his index page, as it has for 14 hours now, my hard earned reputation is in tatters. And I'm not even a limited purpose public figure!

February 22, 2008

Boots & tenants

All signs are indicating that this year's state Supreme Court race is heading somewhere between the low road and the gutter. If it's possible, a turn for the worse appears to be coming. The Democracy Campaign has learned that the PR firm that did a lot of the dirty work for Swift Boat Veterans for Truth in smearing John Kerry's military record is now involved in Wisconsin's Supreme Court race.

CRC Public Relations, headquartered in Alexandria, Virginia, was paid more than $282,000 by Swift Boat Veterans for Truth for consulting and media work. CRC is now working to arrange media interviews for Wisconsin attorneys Dan Kelly, Rebecca Bradley, David Simon and Don Daugherty[*] to badmouth the Wisconsin Judicial Campaign Integrity Committee and talk up conservative candidate Michael Gableman.

CRC initially was refusing to say who hired them to plant stories favorable to Gableman, but CRC's Jennifer Fedor finally fessed up to Wisconsin Public Radio's Gil Halsted. She says the firm is working at the behest of the Federalist Society.
Apologies to John Foust.

* They sound familiar.

February 21, 2008

Gableman campaign funnies

Two fascinatingly disparate items appeared in the Milwaukee Journal-Sentinel recently, one by reporter Stacy Forster (me and Stacy go way back; we both used to hang in internet chatrooms during judicial candidate debates omg *lulz*) and the other by intrepid columnist Dan Bice.

The first item reports that the campaign of Burnett County Judge Michael Gableman has formulated its own "clean campaign pledge," which it's apparently asked Gableman's rival, Wisconsin Supreme Court Justice Louis Butler, to sign.

One of the pledge elements is framed thusly:
Ensure the integrity of claims made by our campaigns by providing supporting evidence.
Meanwhile, in Bice's column, Gableman lieutenant Darrin Schmitz is quoted as saying, by way of commenting on a television ad produced by a third-party interest group, "Louis Butler sent his liberal, special interest friends to do his dirty work for him."

As for "providing supporting evidence," obviously there is zero to be found, so I expect it will be pretty hard to come by. This Darrin Schmitz fella sounds like a real piece of work his own self. Good thing the J-S has us bloggers to knit the puzzle together though, ain'a?

For free! No attribution necessary.

Also, more laughs here: "I do not own any sweater vests."


[Please visit the iT Butler/Gableman archive.]

Charlie's Club For Mirth

Another brouhaha has broken out in the election campaign pitting incumbent Wisconsin Supreme Court Justice Louis Butler against challenger Burnett County Judge Michael Gableman. Some Republicans calling themselves the Club For Growth got their hands on a series of e-mails among some members of the WJCIC, a watchdog committee set up by the president of the State Bar of Wisconsin to monitor campaign materials and statements.

One supposedly "influential" local blogger describes the e-mails as "breathtaking" and claims the WJCIC has been "Caught In Blatant Lying." He also obsequiously credits right-wing Milwaukee radio and teevee shouting head Charlie Sykes with "tak[ing] the trouble to excerpt some of the more troubling bits" (in fact all Sykes did was copy and paste material from the Republican outfit's webpage. Sykes can't even be troubled to spell Justice Butler's name correctly).

Some of the more entertaining portions of the e-mails concern Sykes himself. The committee briefly discusses, for example, an earlier Sykes cut-and-paste job from the Club For Growth's website alleging the committee's supposed "direct ties" to Wisconsin Governor Jim Doyle and wonders whether it should formulate a response. Committee member Bill Kraus observes, "Replying to Charlie is the equivalent of getting into a pissing contest with a skunk."

Interestingly, in the same Sykes blog entry of January 3, which described the WJCIC as "a scam," longtime Republican Kraus is portrayed as the only committee member without a tie to Doyle.

In another instance of Sykes and his fellow GOP hatchet-persons wanting it both ways, the Club For Growth's initial complaints centered on the WJCIC's lack of ideological, gender, and "minority" diversity. Since then, committee chairman Tom Basting has apparently sought (and implemented) ways to increase both the size of the committee and its diversity, citing recommendations made by similar judicial watchdog groups in other States.

But since many of the e-mail messages also express concerns about the committee's perception among the public, Club For Growth cherry picks through these to portray Basting as a liar — a liar for making moves to rectify complaints the Club For Growth made in the first place. Or, as the blogger in the funny pants puts it, "Blatant lying."

Last I checked, that's a pretty serious charge.

For a crowd that has devoted so much time and energy to dissecting the WJCIC and pooh-poohing its power, mandate, influence, legitimacy, etc., they sure do seem to take it pretty seriously nonetheless, don't they.

If the WJCIC ever desired a higher media profile — and there is considerable evidence in the e-mails that it does — this gang of Republican hucksters is sure handing it over on a silver platter.

Meanwhile, Basting and Gableman lieutenant Darrin Schmitz continue their war of words, in a pair of letters available via WisPolitics.com, here (.pdf) and here. And the ever dependable young GOP operative Daniel Suhr proves once again that he's incapable of reading a Louis Butler opinion by wondering why the Butler campaign describes its principal as a scholar, preferring instead a definition that includes 'student editor of the law review and writer of magazine articles.'

Doubtless there will be much more to come in the days hence. Grumps of the Happy Circumstance fortuitously provides the appropriate words of wisdom, from the desk of H.L. Mencken:
Has the art of politics no apparent utility? Does it appear to be unqualifiedly ratty, raffish, sordid, obscene, and low down, and its salient virtuosi a gang of unmitigated scoundrels? Then let us not forget its high capacity to soothe and tickle the midriff, its incomparable services as a maker of entertainment.
Finally, One Wisconsin Now reveals its own rummaging into the circumstances of Michael Gableman's current employment:

Gableman's Suspicious Appointment

February 20, 2008

Bizarre typo eludes Fed Soc

[Glenn] Carlson [of Fair Wisconsin] said the upcoming Supreme Court race between Justice Louis Butler and challenger William Gableman is particularly important.
You'd think they'd fix that. He is their candidate, after all.

h/t Milwaukee Federalists.

Mike McGee: the transcripts

In other Wisconsin primary news,
Campaigning from behind bars, a defiant Milwaukee Ald. Michael McGee led eight challengers to survive Tuesday's primary election.
Ald. McGee has been in custody since last May and faces charges for an array of State and federal offenses.

Here's a few highlights from McGee's appearance January 10 before Milwaukee County Circuit Judge Dennis P. Moroney, on a motion to have his then-attorney Glenn Givens withdraw from his case.
THE DEFENDANT: Good morning, Your Honor. I'll greet you in the name of our Lord and Savior Jesus Christ. ...

THE DEFENDANT: Your Honor, I just want you to understand that since I've been in custody and the State collaborated with the Federal government to hold me in Federal custody and to the Federal government's - -

THE COURT: Ba-ba-ba. Hold on. I'm not in collusion with any Federal government.

THE DEFENDANT: I understand that. I've released - -

THE COURT: Don't use those words.

THE DEFENDANT: I didn't mean to say that. The U.S. attorney's office and the district attorney's office.

THE COURT: You're using thaumaturgic words and you don't know the meaning of them, sir.
How awesome is that? The court tells the defendant he's using words he doesn't understand, by using a word nobody understands.

Then, after receiving a mini-lecture on the attorney-client relationship ("and you guys better kiss and make up"), McGee pushes the court again:
THE DEFENDANT: Your Honor, I didn't get to complete my statement.

THE COURT: It sounded like it to me. You stopped.

THE DEFENDANT: I'm getting badgered by Mr. Givens and yourself.

THE COURT: No one's badgering you. I've heard enough from you right now. Don't give me that I haven't given you your say. You've been saying things which are completely outrageous, and I'm not going to stand for that, because this case is going to be based on fact, it's going to be based on fact, not emotions, sympathy or passion, understand that.

And there will be no more references in this courtroom concerning anything about God or anything like that, not that there's anything wrong with that, but I will not allow you to try to invoke sympathy or prejudice or passion in or belief in Christians that you have some great or some position with the Lord one way or the other, and that's for you and your Lord but not for sharing in this courtroom which is a public sector. So understand that as well.

The Court will deny the motion ...
The court since granted a similar motion on January 31 based on an irreconciliable breakdown in attorney-client communications, and Ald. McGee has other lawyers now. And a place on the April 1 ballot.

February 19, 2008

The sin of pride (or not)

I swear, you could set your watch by these people. Speaking in Milwaukee yesterday, Michelle Obama remarked that, "For the first time in my adult lifetime, I am really proud of my country." Cue conservosphere (actually it's more of a flat earth) going full bore apeshit.

Notice she said "really proud of my country." A reasonable interpretation is that Ms. Obama has always been proud of her country, but events of late have increased, or altered in some meaningful way (to her) her pride in her country. But no. The unreasonable interpretation is far more convenient: she's never been proud of her country, until now — when she got to Brewtown, no less.

The Carpetbagger Report has compiled a few of the predictable higher profile reactions here. (Incidentally, by "high profile" I mean the likes of the collection of barely literate fruitcakes afforded speech by the National Review Online, where one can accomplish the considerable feat of being both high profile and low brow at once.)

Closer to home, our own Rick Esenberg has entered the fray, mirroring almost identically the previous expressions of outrage. And even he falls for the unreasonable interpretation. Since he's a lawyer, and lawyers are trained to be especially keen deconstructors of language, then one explanation is he's falling for it deliberately.

Because Esenberg has been on a weird anti-Obama Crusade (his word, his capitalization) recently, during which he's attempted to make connections between Senator Obama and such disparate figures as Che Guevara and Jesus Christ. Perhaps he's been gripped by The Fear that John McCain will never have the opportunity to appoint a few more Scalias to the Supreme Court, and Ms. Obama's words just dropped like manna from Heaven into his waiting lap.

He enumerates a number of events from American history, and wonders aloud how Ms. Obama couldn't be proud of these achievements. Did she say she wasn't? Of course not. But since when did such subtleties — subtleties of the flying mallet variety, that is — ever discourage the tendentious galloping hordes of the fabricated outrage brigade?

Did it once occur to any of these people that notions of "patriotism" and nationalism generally are necessarily subjective and nuanced?

I know it hasn't occurred to "joe stalin," another of Esenberg's "readers" (the word is in quotes because he can't). In response to this rather bland and uncontroversial observation,
I don't know about you, but many of us don't judge "patriotism" or commitment to constitutional principles by how many flags a politician sews onto her pantsuit,
our man of steel reacts thusly:
"it said", in typical liberal fashion makes disrespect for America the Pledge of Allegience [sic] and our Flag into positives for his lib candidate. Being unpatriotic is patriotic to libs.
And I do mean "react," as in "reactionary," and I do mean "reactionary" in its least flattering sense.

My initial thoughts on seeing Esenberg's dressing down of Ms. Obama on what appears to be his perception of her lacking sufficient "pride," were of, naturally, the Bible. Why? Because Esenberg's view of, as he puts it, "politics as religion" is as something that is "dangerous." Conversely, however, Esenberg has often defended "religion as politics" as something to be encouraged; indeed, something to be admired, since religion apparently embodies all the finest morality.

More specifically, the Book of Proverbs, where the Lord is said to hate "a proud look," and to consider it an abomination. Doubtless a skilled apologist can distinguish between the Proverbial pride and an understanding of the politically correct patriotic and nationalistic pride that conservative Republicans expect and demand — from others, of course. We may see. Or not.

In the meantime, consider Obama's message of change in the light of Bush 43 administration-era "you're either with us or you're against us" false dichotomies, or Bush's bossman Richard "Deferment Dick" Cheney openly questioning the devotion to country of people who actually volunteered to fight on behalf of America in Viet Nam.

If that's the direction of change he's talking about, then I'm all for it.

February 18, 2008

Straws grasped, "hint of bias" revealed

Milwaukee Journal-Sentinel columnist Dan Bice reports that Sally Basting, the wife of Tom Basting, contributed the sum of one Ben Franklin to the campaign of Wisconsin Supreme Justice Louis Butler.

Mr. Basting is the chair of the WJCIC, a committee formed to monitor election advertising during the challenge to Justice Butler's incumbency (including Butler's advertising, by the way).

The Butler contribution, which Bice refers to as a "curious matter" from which he somehow infers a "hint of bias," was addressed by Mr. Basting by pointing out that his wife is a separate and discrete human being with no connection to the WJCIC.

What Bice fails to mention is that Sally Basting also made $100 contributions to the political campaigns of Justice Patience Roggensack, one of the court's "traditionalist" members, as well as to Diane Sykes, the former State Justice since appointed by George W. Bush to the federal 7th Circuit (so did Tom Basting, incidentally).

How's that for a curious matter and a hint of bias.

Needless to say, Bice's groundbreaking reportage has provoked consternation in the conservative blogosphere, where Owen Robinson, as if on cue, portrays the item with his trademark all-purpose adjective "Interesting," and then goes on to attempt an absurdly baseless comparison with the various ethical quandaries of Justice Annette Kingsland Ziegler. Nice try, Owen.

In other breaking developments, Mary Matalin and James Carville celebrated their 14th wedding anniversary in November.

February 17, 2008

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.]

February 16, 2008

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.


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?"

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.]

February 14, 2008

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.

February 13, 2008

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.

February 12, 2008

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.]

February 11, 2008

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.]

February 10, 2008

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.]

February 9, 2008

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.