Wisconsin's other other Bradley

Below "Judge judicial candidates on the merits," appears this:

Honestly, I’ve never even heard of Gil [Urfer] or Janet [Protasiewicz] before this election, so I can’t say much about them — good or bad.

So much for judging them on their merits, then.

The incumbent, Republican Scott Walker appointee Rebecca Bradley, describes herself as a "nonideological" member of the Federalist Society, which is an organization of malcontents and paranoid hysterics with law degrees that was founded on political ideology.

Kinda like being a Milwaukee Admiral but you don't play hockey.

Scott Walker's Judge Bradley (Foundation)

Reports the local organ:

Scott Walker on Monday appointed president of the Milwaukee chapter of the Federalist Society Rebbeca [sic] Bradley to fill a spot on the circuit court bench in Milwaukee County.

Obviously.

Q. What is your favorite website?
A. NationalReview.com

Dear God help us, here comes another one.

Why the gun-totin' DA's petition was denied?

That I don't know.

Perhaps because the gun law has three exceptions to the prohibitions on carrying, and the law says "any" of them apply. In one exception, the law says a judge has the power to grant — or not grant — permission to conceal-carry licensees and in another exception the law says a DA can conceal-carry in court.

Because "any" of the exceptions apply, the judges chose the one that inconveniences the DA, and the judge has quite a bit more stroke in the courtroom than has the DA. For example a judge can tell a DA in her courtroom to sit down, be quiet, stop being such a dick, etc.

The Supreme Court wrote just a few months ago that a petition for a supervisory writ won't be accepted unless the lower court's duty is "plain" and the alleged violation by the subordinate court judge is "clear."

I don't think either of those elements are present here.

Furthermore if the court did accept this petition, it would potentially be in the position of having to contradict itself on the questions of supervisory and original jurisdiction — these are two separate grants of power to the court in the Wisconsin constitution and the Wisconsin statutes — for the third time in roughly one year.

What I find amusing is that the court combined these two separate grants of authority in its Act 10 decision in June, 2011, and a few months later laid down the law with respect to the high burden — the "clear" and the "plain" bits — of establishing its supervisory jurisdiction, which the "conservative" majority itself clearly had not done in the petition against Dane County Circuit Court Judge Maryann Sumi.

The attorney(s) who drafted this petition recognize the distinction between supervisory and original jurisdiction, hence the "or in the alternative" language and the separate references to 809.70 and 809.71 (the distinction between which was also discussed at this blog pursuant to some nonsense that was published at the Marquette Law School Faculty blog by a young Federalist Society pinhead).

More on all of that behind the links in the post [below].

Who's paying Mike Gableman's lawyer Viet Dinh?

Or, for that matter, his "Master of Disaster"?

Gableman's attorney, Viet Dinh of Washington, D.C., said the resolution was nothing more than a partisan political attack that "reveals the underlying motivation and insidious nature of the attacks against Justice Gableman." — via the AP's Scott Bauer

I hope it's not much, if that's the best he can come up with. Poor Gableman. He's being attacked. What goes around comes around dude.

Mike Gableman attacks his own current colleagues fer chrissakes.

And who paid the infamous out-of-State agitator Jim Bopp? Bopp, Esq. of Terre Haute did the heavy lifting in Gableman's ethics case.* So effective was Bopp's counsel that he actually caused Justice N. Patrick Crooks to change his mind from favorable to adverse pursuant to a motion for disqualification filed against Gableman in a criminal appeal.

* And who paid Federalist Society member Anita Y. Woudenberg?

Mike Gableman is a walking make-work project for Republican lawyers.

A deep strain of Republican madness

Steve Benen:

Taken together, over the last five days, we’ve learned that the way to impress Republican voters, at least the ones who show up for events like these, is to support letting the uninsured die, accusing the Fed of treason for trying to improve the economy, and executing lots of people.

And booing when somebody (the Texan libertarian-of-convenience Ron Paul) tries to tell you that not all Muslims are homicidal terrorists.

There’s a deep strain of madness running through Republican politics in 2011, and it appears to be getting worse. Those wondering why the GOP presidential field appears weak, insipid, and shallow need look no further than the voters they choose to pander to.

More interesting to me is that Michele Bachmann, who claims to be the bona fide Tea Party Republican — and who reportedly has a degree in law — doesn't even understand how federalism, the motivating principle of American government, works. Last night she asserted that it's unconstitutional for a State to impose what's known in the federal Affordable Care Act as the individual insurance mandate. But the whole point of the Constitutional Convention was and is to limit federal power in order to preserve the States' powers to do whatever they need to do.

So of course States may impose such a mandate.

Not only does the Constitution not forbid it, the Framers devised the 10th Amendment, for which Tea Party Republicans otherwise profess their undying fealty, to affirmatively reiterate that motivating principle.

It's nice that the Tea Partyers have reminded us there is a Constitution.

Now if they would actually take the time to read the damn thing, we might be getting somewhere. Here in Wisconsin, the alleged Tea Party Senator Ron Johnson can't read it and nor, for that matter, can these seven Federalist Society attorneys, led by none other than Governor Scott Walker's choice to head up his judicial appointment committee.

Yet few seem even to care about those jarring dissonances.

More broadly speaking — and being the deepest of ironies — the Tea Party Republicans yapping and clapping at these candidate debates are precisely indicative of the irrational mentality that the Framers distrusted to make political decisions, and why the latter limited their political participation to electing only the House of Representatives, itself limited to two-year terms to keep its damages to a minimum.

In that oft-forgotten sense, the Tea Party Republicans have nothing to do with the Constitution at all, being exactly the mob upon which the Framers' jaundiced eyes were fixed. So when the Tea Party Republicans complain about so-called liberal politicians presuming to know what's best for them while at the same time pledging their devotion to an alleged originalist constitutionalism, tell them they cannot have it both ways.

That oughta flip their ersatz tricornes.

A big part of the gay agenda for decades

Or, the continuing legal education of Kevin Binversie

[A] big part of the gay agenda for decades has been to repudiate what are regarded as overly restrictive expectations of monogamy and sexual fidelity . . . the rise of multi-partner relationships as a way of life has been a major force in the decline of marriage. — Prof. Amy Wax, Federalist Society

That's interesting, Prof. Amy Wax. Unchastity, you say?

[B]ecause certain people view homosexuality as particularly reprehensible and immoral conduct, several New York courts have concluded that imputations of homosexuality are slanderous per se. [This] Court recognizes that many in our society no longer hold such beliefs, and that gay and lesbian persons have achieved many civil rights that were once denied them due to their status. However, homophobia is sufficiently widespread and deeply held that an imputation of homosexuality—at least when directed to a man married to a woman—be deemed every bit as offensive as imputing unchastity to a woman. I therefore agree with those New York courts who have added "imputations of homosexuality" to the list of these types of statements that are per se slanderous. Gallo v. Alitalia-Linee Aeree Italiane-Societa, 585 F.Supp. 2d 520, 549 (S.D.N.Y. 2008) (citations omitted).

Huh.

I wonder what a Wisconsin court, among which have indeed affirmed that "imputing unchastity to a woman" is per se defamation, would say.

John Nichols on looking bad on "The Ed Show"

An occasional society of Federalists newsletter

John Nichols, who writes for The Nation and the Madison Capital Times, was on MSNBC last night telling Ed Schultz there needs to be a federal investigation into the Wisconsin Supreme Court election.

The only reason he gave is that it looks bad and I agree, it does look bad from a variety of angles. But simply looking bad doesn't raise any federal questions — that is, those that fall within the exclusive ambit of the federal government* — or even implicate any of the provisions of the 14th Amendment, which is one route through which the feds might exercise authority over the preserve of an individual State.

Furthermore one of those relevant provisions, the Equal Protection Clause, is generally a last resort, and almost never a first resort.

And besides, as a practical matter, there's no reason to believe federal authorities are any more competent to review whatever irregularities may have occurred. US Attorney General Eric Holder should perhaps apprise himself of the situation through his agents on the ground here at the US Attorney's Office, but it's probably much better if he and his colleagues don't even comment at this juncture.

Except maybe to reinforce the point that this is Wisconsin's business.

There's already enough nonsense flying around as it is (including, arguably, these appeals for an immediate federal intervention**).

On the other hand it's always struck me as a failing of the US Constitution that it leaves the administration of elections to individual States, which in turn leave them to individual counties, to individual precincts, and ultimately to individual persons like Kathy Nickolaus, a renegade partisan elections official with her own cumbersome, jerry-rigged, and outdated computer applications.

That's nuts, in a word.

While the election at issue here was only a Statewide affair, Nickolaus has apparently used her same idiosyncratic procedures during fall elections, which involve federal offices. There needs to be federal standards that would restrict the actions of Kathy Nickolaus and others like her. That much is pretty obvious to this observer.

And while the federalist electoral regime was all good when scraps of parchment and quill pens were the only means of voting, those obsolete presumptions of the olden days just don't cut it anymore.

* Or at the least within a shared federal/State ambit.

** According to one headline I scanned over last night, Justice Prosser called them "preposterous." Your humble scribe is inclined to concur.

Legal Disclaimer: Not affiliated with the Federalist Society.

FedSoc not even trying to conceal bias anymore

Scholar will harangue the faithful Thursday

Under its previous name, the Judicial Confirmation Network worked for the confirmation of President George W. Bush's nominees for federal judicial seats. After Barack Obama was elected, the group changed its name to Judicial Crisis Network and focuses more on blocking current nominees.

Admission is $20, 25% discount for clergypersons*

* Includes all-you-can-carry chocolate brownies.

Earlier: Federalist Society vs. observed reality

Snark (and Shepherd) of the day

"A reference to horn book Civil Procedure does not cut it here."

— Marquette University professor of law Rick Esenberg

I lol'd.

And take solace in the fact that even a former Supreme Court Justice and former Dean of the Marquette law school, Prof. Janine Geske, is similarly unsure as to the case's procedural posture at this point.

What one really needs to be skeptical of are Prof. Esenberg's conclusory pronouncements, not openminded contemplations of possible procedural alternatives going forward. (And I don't rely on any horn book for that view, as I've never owned one in my life.)

Prof. Esenberg, it's useful to recall, assisted in enabling Wisconsin Manufacturers & Commerce to wage its multi-million-dollar political campaign against Justice Louis Butler. WMC even named its campaign after one of Prof. Esenberg's Federalist Society memorandums, and Prof. Esenberg (and McIlheran) went to bat repeatedly for one of Louis Butler's most scurrilous attackers. As such, he's not exactly a disengaged academic observer.

And, thanks to that torrent of politically motivated B.S. raised against Justice Butler, the nomination of this principled, capable, and highly qualified judge to the federal district court flounders still among a gaggle of disingenuous Republican hacks in the U.S. Senate.

Gableman's "distasteful" escapades pale in comparison to that effect.

Federalist Society vs. observed reality

Back in October, 2008, Federalist Society co-founder and law professor Steven Calabresi wrote, "If Mr. Obama wins we could possibly see ... the mass freeing of criminal defendants."

Mr. Obama won.

Then on Wednesday the U.S. Department of Justice wrote, "During 2009 ... [t]he federal prison population increased by 6,838 (or 3.4%) which accounted for all of the increase in the U.S. prison population."

Keep up the objective scholarship, Perfesser FedSoc.

Come Monday, the next Harriet Miers

What, run out on a rail by the Federalist Society and Jay $ekulow?

Yesterday, I read everything Elena Kagan has ever published. ... Kagan's work reminded me of Orwell's observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever."

Consider that Obama and Kagan joined the Chicago law faculty in the very same year, after both were Harvard Law students and members of the Harvard Law Review. (The difference between a "crony" and a "colleague" is often something of a sociological mystery.)

A quasi-scholarly concern troll.

The Commerce Clause and the individual mandate

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ... [and] [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...

— United States Constitution, Article I, Section 8

I see our friend conservative law professor Rick Esenberg is fretting again (or is fretting still and forever, I suppose) over his bugaboo Barack H. Obama's inexorable march to socialism, so I thought I'd pull up some comments I left at his blog several months ago, on the subject of the constitutionality of the so-called "individual mandate."

It began when Prof. Esenberg's "nonpartisan" pal Charlie Sykes mocked Speaker Nancy Pelosi for stating an obvious truth: that Congress's power to regulate interstate commerce, including, obviously, that related to health care, is "essentially unlimited." Prof. Esenberg, as is his wont, leaped quickly to Charlie Sykes's defense.

It was essentially unlimited then, and it is today.

Anyway ...

Esenberg: So it is incorrect to say that nobody has suggested the Commerce power as justification for a mandate.

[The initial point, which still stands, is that Speaker Pelosi hadn't suggested it. And Charlie Sykes remains a partisan buffoon.]

Okay, you got me. Mark Hall did suggest it, although he too emphasizes primarily the tax power — my point, again.

But his Commerce Clause argument is secondary and lacks the required force and finally amounts to little more than an assertion plus an unconvincing appeal to the Necessary and Proper Clause (which should be renamed the Necessary Necessary and Proper Clause because it's always necessary when your claim of Commerce Clause reach is ... reaching).

It may be that the courts will devise a rationale for approving a federally mandated commercial purchase based on those courts' own prior holdings, but it would be in effect the fabrication of a power not expressly delegated to Congress by the Constitution.

(Indeed, the courts are more legitimately imbued with the power to consecrate an unconstitutional Act of Congress than is Congress to make that particular Act in the first place, but that's still no reason to accept as axiomatic that the courts' decisions are correct.)

As Prof. Hall puts it, the question of Congress's power to regulate the commercial aspects of health care is a trivial one easily disposed in favor of Congress but for one provision: the individual mandate. And Hall indicates "the only plausible objection is that mandating the purchase of insurance is not the same as regulating its purchase."

But he doesn't engage this objection, which he just allowed was crucial; rather, he proceeds instead to address his opponents' distinguishing regulating insurers from regulating people, but that is not the proper distinction. Prof. Hall thus glides past his own crucial distinction without so much as a how-do-you-do.

Objects that are "in" commerce

The most forceful statement of Prof. Hall's argument is that the individual mandate "directly affects interstate commerce," not that it is interstate commerce, which might be enough to satisfy some of the second- or fourth-generation interpretive case law, but I don't think it survives the level of scrutiny that must be applied when one is determining whether an Article I enumerated power even exists and in particular one so coercive on the part of the federal government (Super Duper Strict Scrutiny, h/t Arlen Specter).

In any event, the distinction is not between "what" and "who" but rather between what is "in" commerce and what is not. That is, the permissible objects of regulation are only those which are "in" commerce (or so the Court has taught since Chief Justice John Marshall, a contemporary of the Framers, presided).

Before the mandated purchase takes place, there is no commerce — and therefore nothing in commerce to regulate. It is only by Congress mandating individuals to make commercial transactions that there becomes something in commerce.

So the question presents as, 'Can Congress force a private party to initiate the transaction that will bring into existence the commerce Congress may regulate.' If the answer is yes, then it's not on account of anything the Commerce Clause says.

An analogy, not perfect, but illustrative: Biology makes no claim to the origin of life; it assumes life, and that is where its study begins, and not before.

Both necessary and proper

Although it may be necessary under certain circumstances for Congress to somehow initiate the commerce it wishes to then regulate (which it can do by taxing and spending), it has avenues other than forcing — on penalty — private commercial transactions. If there are other ways to accomplish the objective, then this one is by definition not necessary.

For example, Congress can initiate those transactions itself, which is how I suggested that single-payer, universal health care would more comfortably conform with constitutional requirements (not to mention satisfy the aspirational goals described in the Preamble).

But even if the individual mandate mechanism was deemed "necessary" according to some necessarily circular reasoning, it also needs to be "proper" and I'm finding it difficult to apply that adjective, in the constitutional context, to the creation of a brand new, clearly unenumerated power of Congress (or at the least, unenumerated within the Commerce Clause).

So did I pass the Federalist Society entrance exam? (I hope not.)

The Federalist Society's Obama nightmare

Remember top Federalist Society law professor Steven Calabresi's terrifying vision of "the mass freeing of criminal defendants" if Barack Obama was elected? Turns out he was exactly right!

As of January 2010, there were 1,403,091 persons under the jurisdiction of prison authorities, 5,739 fewer than on December 31, 2008, the first year-to-year drop in the nation’s prison population since 1972.

Obama let out all the sex predators! Probably the superpredators also! Wait, what? Those figures were collected from State prisons?

In the same period, the population in federal prisons increased by nearly 7 percent.

Oh. Never mind.

Two really incredible, startling surprises

In law school, she was hugely involved with the Federalist Society. I remember her as a religious Christian.

Yoo helper not quite fully redacted.

Who, exactly, is to blame?

Wisconsin Supreme Court Justice David Prosser writes:

The Allen motion ... has been followed by nine additional recusal motions against members of this court [seven of which are "against" Gableman]. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against [Gableman] in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court. The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court.

Or, alternatively, Gableman should have anticipated the controversy that he engendered by engaging in scurrilous political subterfuge.

Savagery, indeed. Sorry, but it's mighty hard to sympathize.

That the court today divided 3-3 on Allen's motion to disqualify Gableman (who did not participate*) means the motion is neither granted nor denied.** Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion, thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

So beware those nasty unintended consequences. Heckuva job, etc.

* Which may seem obvious, but according to the lead opinion, Gableman was undecided for some time over whether to participate on the more impersonal question of whether the court, as an institution, had the authority to overrule an individual judge of that court's own decision not to disqualify himself from a case.

** Rather, the motion is "not granted." Furthermore, as Chief Justice Shirley Abrahamson put it: "As a practical matter, Justices Prosser, Roggensack, and Ziegler are implicitly telling all litigants in Wisconsin that they need to go to the federal courts to seek relief from a Wisconsin justice who they believe is biased."

Perhaps that's another clue as to the meaning of "Federalist Society."

Earlier: Bopp's demagoguing was completely unnecessary.

Bopp protected from Gableman's views: FedSoc

Hard to believe the stuff these Gableman apologists dream up.

Here's something,* objecting to negative reactions to statements made by Indiana lawyer James Bopp, statements made while representing and on behalf of his client, Michael Gableman:

The first big assumption is that every word said by an attorney automatically and verbatim represents the exact personal thoughts of the client.

Nobody even remotely suggested such a thing but, anyway ...

The [Wisconsin] Rules of Professional Conduct state that an attorney’s representation of a client does not constitute an endorsement of the client's "views or activities" (SCR 20:1.2(b)).

Here's how SCR 20:1.2(b) reads:

A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

In other words, the rule purports to insulate the attorney from having attributed to him the client's views. For obvious reasons, such as a lawyer providing representation to a white supremacist, or to a doctor who performs abortions (as is explained in the Comments published below SCR 20:1.2(b)).

The purpose of the rule is to help ensure that even clients "whose cause is controversial or the subject of popular disapproval" may secure legal representation. Exactly opposite of what the Federalist Society's student recruiter is trying to show, which is that the client is protected from the attorney's political, etc., views. Baloney.

To be sure, SCR 20:1.2(b) protects Bopp against being ascribed the opinions of Gableman by dint of Bopp's legal representation, not the other way around. But what Wisconsin law says, as the learned counsel William Tyroler (who, to the best of my knowledge, is neither from Indiana nor on the FedSoc payroll) put it here some time ago:

"Surrogates" — client Gableman and counsel Bopp enjoy a principal-agent relationship (as do all attorneys and their clients). State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) ("The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty.") In a word, Bopp is Gableman's mouthpiece. We can assume that Bopp, the agent, utters words approved by and therefore attributable to Gableman, the principal.

Yet the FedSoc official soldiers on nevertheless:

In a similar way, an attorney’s unscripted response to a reporter’s question should not be treated as though it came from the mouth of the attorney’s client as an exact representation of his personal thoughts on the matter.

Nothing but hyperbole here and in any event not similar to the present situation. Moreover, Bopp made substantially identical remarks in court, on the record, in the course of directly presenting Gableman's defense to a panel of three Wisconsin appellate judges.

Live and in person.

Agent Jim Bopp's statements are reasonably understood as those of his principal, Michael Gableman. That's what the law says.

And I clearly recall a number of occasions when Gableman promised to follow the law (as opposed to following the rules, which seems to have been an endeavor more distinguished by its arbitrariness).

* Intriguing too, is the Federalist Society employee's own objection to Justice Butler's disposition toward the accused's right to present evidence in his defense at trial: Forest Shomberg is innocent.

Is it any wonder, then, that he would champion Bopp's strategeries?

It's little wonder Prosser lit into McCabe

Some observers made note of a testy exchange Wednesday between Wisconsin Supreme Court Justice David Prosser and activist Mike McCabe, at the court's public hearings on rules for judicial recusals.

Justice Prosser teed off on Mr. McCabe over several items the latter had published at his "Big Money Blog," which is part of McCabe's Wisconsin Democracy Campaign project (a useful resource, btw).

The justice was annoyed — to put it mildly — by McCabe's suggestion last June that Prosser was to sit in judgment of former State legislator Scott R. Jensen's criminal appeal, even though the record clearly shows as early as the preceding February that Prosser wasn't participating in the case.

Prosser and Jensen are estwhile colleagues in the Wisconsin State Assembly, where they served consecutively as speaker.

To make matters worse, after being notified by the Supreme Court, McCabe printed a correction the next day which, instead of leaving bad enough alone, sarcastically wondered whether Prosser was planning on appearing as a "character witness" on Jensen's behalf.

(At least, I assume it was sarcastic. Either that or McCabe believes "character witnesses" regularly appear at oral arguments before the State's highest appellate court. They do not.)

While it's true that Justice Prosser was a witness during Scott Jensen's trial at Dane County in 2006, Prosser was doing so under a subpoena — that is, an order of the court — to appear. The more serious problem with McCabe's sarcasm is that he quoted from the Wisconsin Supreme Court Rules, in particular a passage forbidding judges from "testify[ing] voluntarily as a character witness."

McCabe's implication — at least — is that Justice Prosser violated the code of judicial conduct in 2006 and was by McCabe's insinuation preparing to violate it again in 2009. One generally needs evidence for those sort of accusations, or at least supporting documentation that someone credible has made them.

But unfortunately McCabe didn't reproduce the comment below the rule (SCR 60.03(2)), which notes, "A judge may, however, testify when properly summoned." Which is to say, there is a considerable legal (and, by extension, ethical) distinction between testifying voluntarily and testifying after having been properly summoned.

And had McCabe undertaken one of those "Google is your friend" adventures, he would have easily discovered Justice Prosser telling then-Milwaukee Journal-Sentinel reporter Steven Walters, "I've been subpoenaed as a witness in a criminal trial, and witnesses are expected to cooperate."

Indeed, they are. At risk of contempt.

Moreover, and while I admit I don't follow these things as closely as many others do, it's not clear to me that Prosser was specifically called as a "character witness," although he reportedly fielded a question or two concerning Scott Jensen's character.

I could be mistaken, but it appears that Justice Prosser was solicited as a witness primarily to testify generally about so-called political campaigning* by lawmakers and their aides during his tenure as a Republican leader in the State Assembly.

That's another important distinction Mr. McCabe should have taken into consideration and I would distrust (both intuitively and from vast experience) any and all press descriptions of Prosser's status as a "character witness" — which is a legal term of art as it appears in the Supreme Court Rules — without more support.

I'm all for criticizing politicians (and, sad to say, judges in Wisconsin are undeniably also politicians) but when one ventures into substantive allegations, one had best do one's homework in advance.

And, unfortunately, at least one other local blog has repeated similar allegations of wrongdoing against Justice Prosser, and it's hoped that correctives are issued in light of the foregoing.

That would serve to defuse Prosser's larger point, which was that some of those who are purportedly concerned about public perception of fairness in Wisconsin courts are themselves occasionally engaged in unwarrantedly undermining that very perception. It's a fair cop.

Anyway, to make a long story even longer, I can't say I blame Justice Prosser one bit for blowing his stack at what quite obviously and evidently justifiably appear to him to be Mr. McCabe's sloppy reporting and insinuations of impropriety. So would anybody.

* I say "so-called" because there exists a reasonable difference of opinion as to what constitutes political activity within the context of attempts to codify its definition. At one end of the continuum are those whose view is that practically everything elected officials do counts as political activity. I'm sympathetic to those observations.

Which is one of the reasons why it seems to me that electing judges is not the most compelling among other potential mechanisms.

I believe I'm in alignment with the Federalists on that account (the actual, original Federalists, that is, not the "Federalist Society").

Also — Prosser and McCabe: One more thing

Not quite full disclosure

Marquette University visiting professor of law Richard Esenberg, in the course of delivering an effusive bouquet to Bradley Foundation chairman Michael W. Grebe, helpfully notes:

By way of full disclosure, Bradley funds the Wisconsin Policy Research Institute and I have a relationship with them.

The WPRI is what's known as a conservative "think tank."

Now perhaps it depends on what one means by "full disclosure," I suppose, but what Prof. Esenberg deigns not to disclose is that the Bradley Foundation also donates generously to the Alliance Defense Fund and Esenberg has a relationship with them as well.

Esenberg's co-counsel on the case of Appling v. Doyle, a challenge to Wisconsin's domestic partnership law,* includes two ADF attorneys, Austin Nimocks and Brian Raum. Both lawyers hail from ADF HQ in Scottsdale, AZ, but presumably have an interest in Wisconsin affairs.

One indication of that interest may obtain from the title of a 2003 tome authored by the ADF's chairman, Alan Sears: The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today. (The Homosexual Agenda was revealed to begin at 6 a.m. every day.)

Among the ADF's mottos is "Without Christ, we can do nothing."

The non-adherent is advised to bear the latter admonition in mind when considering offering oneself up as a potential ADF plaintiff.

Ms. Julaine Appling, who has long engaged in a frightful battle of wits against Satan and all of His minions, undoubtedly qualifies.**

This is easily available public knowledge, of course, but Prof. Esenberg's selective revelation doesn't appear to satisfy his own invocation of "full disclosure." They are the words he chose, after all.

Also worthy of helpful note is the fact that the Bradley Foundation recently forked over a check for $250K to The Federalist Society for Law and Public Policy Studies, whose student division's deputy director*** turned up at the same law school faculty blog last week to distribute an edition of a FedSoc newsletter containing this comically antiseptic description of Mike Gableman's celebrated teevee spot:

The one television ad run by the challenger’s campaign drew national media attention for its aggressive tone.

Well, sure, that's one decidedly passive way of putting it. Another is to say it amounted to a statement deliberately misrepresenting the record of his political opponent, contrary to both the letter and the intent of Wisconsin Supreme Court Rule SCR 60.06(3)(c).

Yet another is to portray it bluntly as has the Wisconsin Judicial Commission: Gableman lied. Furthermore, the FedSoc employee in question failed to disclose his own whimsical shenanigans in service of none other than Mike Gableman and his political ambitions.

However, that's perfectly understandable, for a variety of reasons.

* Ain't it just so typical of those scheming liberals to short-circuit the democratic process and head straight into court. In this case, straight into the Wisconsin Supreme Court, the lower court finders of fact be damned (no pun intended; please see the following footnote).

** The named defendants being resistant to service of process, thus the selection of Gov. James Doyle et al as their corporeal stand-ins.

*** That is, a compensated FedSoc employee, not simply a member.

F. James Sensenbrenner* v. U.S. Constitution

Neither your advice nor your consent are required, Congressman. So why should they even be solicited. When the Sarah Palin/Sean Hannity ticket triumphs, then you can nominate Michael Gableman.**

"Under the Bush administration ... "

They consulted the Federalist Society. Cry us a river, Uncle Jimbo.

"The people of Wisconsin deserve better."

Why do these conservative Republicans insist on attacking good people? Go and bother one of your own, like maybe David Vitter.

* (R-Mequon Country Club).

** Gableman managed roughly 9% of registered voters in the election to which Rep. Sensenbrenner refers. Quite the powerful mandate and, believe it or not, the basis for Sensenbrenner's "argument."

He's also neck-deep in battling charges he lied about his opponent.

Even so, it was fully 9% more than either Clarence Thomas or Antonin Scalia or John G. Roberts ever collected in their lives, yet I don't hear Mr. Sensenbrenner complaining about any of those three perfectly legitimate exercises of a duly elected president's executive power.

eta: A commenter at a Milwaukee Journal-Sentinel politics blog reminds us and Mr. Sensenbrenner how former Attorney General John Ashcroft was defeated in a popular election "by a CORPSE."

Which is amusing, but not analogous to the meritoriousness of Louis Butler's nomination, although the usual partisan hacks will assert otherwise. Hopefully the Republicans on the Senate Judiciary Committee are able to restrain themselves during Butler's hearing.

Given the presence of Tom Coburn and Jon Kyl, there's no guarantee.

Oh, and one more thing:

The voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge.

"Elitist"? Perhaps. But in complete accord with the Framers of the Constitution. Who also limited F. James Sensenbrenner to two-year terms and kept him away from the judicial selection process.

In their wisdom.

Sotomayor and the Volokhians redux

Last week it was noted here that professor of law and Volokh conspiracist Ilya Somin had deployed a criticism of Judge Sonia Sotomayor that missed its mark by some considerable margin.

In a nutshell, Somin had attacked Sotomayor over the case of Kelo v. City of New London, where the Fifth Amendment Takings Clause was exercised in Connecticut to further a local building development.

Somin said Sotomayor was wrong to refer to the area in question as "economically blighted" because, Somin claimed, the Court in Kelo determined that "the area in question was not blighted" (italics his).

This isn't exactly correct, as I explained. What the Court acknowledged was that the individual properties (in contrast to Sotomayor's "area") the government had taken were not blighted:

There is no allegation that any of these properties [that is, the individual ones subjected to the Takings Clause] is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

Then last Thursday Prof. Ilya Somin appeared live in person before the Senate Judiciary Committee.

In his prepared remarks, Prof. Somin made reference to "'blight' condemnations of the sort licensed by Kelo." Quote, unquote. This observation in turn is supported [sic] by a footnote to an earlier piece of Somin's that appeared in a 2006 issue of Legal Times.

But there was no "blight condemnation" at all in Kelo, as Somin himself had pointed out previously at the Volokh Conspiracy.

In sum, Prof. Somin had criticized Judge Sotomayor for calling something other than those individual properties "economically blighted" yet here he is — facing Congress, no less — describing the case in terms that the Kelo majority had expressly repudiated.

Except Prof. Somin never criticized himself, only Judge Sotomayor.

How does that work, one might ask. Here, let me show you it:

This made me wonder whether Judge Sotomayor was in fact recalling Prof. Somin's own prior Legal Times scholarship and I put the question to Prof. Rick Esenberg of Marquette Law School, who was leveling the same criticism against Sotomayor as had Somin.

"I stand by my statement," came his retort. Although now he's retreated to alleging merely that Sotomayor's observation "left an impression" of her misstating the case. Oh. Well, then.

It's funny, because many other conservative critics of Judge Sonia Sotomayor are chastising her for misstating the law and for being unclear. How do you get to do both? Easy: assume the worst of her, obviously, and then labor mightily to discover it somehow.

Among the more egregious examples of this transparently fallacious technique (in reverse) appears at an online "debate" hosted by the conservative Federalist Society, which can be located here.

During the course of the discussion, one of the participants invokes the experience of Clarence Thomas, who had responded to the Senate Judiciary Committee's inquiries into his views on abortion by saying that he hadn't really thought much about Roe v. Wade, even though the decision came down while he was in law school.

Many observers found this claim to be at least mildly preposterous, pronounced as it was some 17 years after the Court's opinions in Roe.

Yet the Federalist Society disciples seem to be of the opinion that Thomas's remarks are themselves at worst "unclear," and therefore Thomas's words are naturally entitled to a careful and meticulous parsing weighted heavily in his favor and with personal anecdotes, leading inexorably to the preordained determination that whatever Thomas had said must have been righteous, upright, and True.

But as for Sotomayor's "lack of clarity," well, it can only be either that she's stupid or she's lying. Nope, no double standard here at all.