Cooking with Esenberg

[Edited to add, Friday, March 28, 11.50 p.m.
Esenberg, to my knowledge, has yet to address any of the substantive questions I posed to him below, which I'd previously left at his blog as well. They seem like pretty straightforward questions to me, and I could answer them all immediately. Lately Esenberg has busied himself with still more defenses of McBride, and has been lauding her work, despite the fact that she has presented no useful or meaningful details for her conclusions. In the meantime, Prof. Esenberg has a few more questions to answer, which I've left in the comments section of his post here, one of four he's produced today, none of which reveal the sources of McBride's conclusions.]

The Coalition for America's Families (CFAF), a local conservative GOP outfit, claims that Wisconsin Supreme Court Justice Louis Butler "sided with criminals 60% of the time." This is, as I will continue to demonstrate, a thoroughly bogus fabrication. Here's another quick hit in the meantime.

In State v. Harris, a unanimous court, including Justice Butler, voted to affirm the criminal conviction of Harris, who was busted for possession with intent to deliver cocaine.

But CFAF doesn't even include Harris in its phony "analysis." Why not? Because, CFAF says, "This [case] came up after CFAF Ads began." Well, so what? You want to attack Butler for his record in affirming criminal convictions, and you toss out a case where Butler affirmed a criminal conviction because it doesn't coincide with your own schedule of manipulative jiggery pokery?

Because it's not convenient to your project of attacking Justice Butler with what are essentially lies? Give me a break.

This is how the conservative Republican "family values" crowd operates, apparently. The truth is, in cases involving criminal convictions, Justice Butler's votes went to reversing only about 25% of convictions, and that is not including Jerrell, C.J., a juvenile case that Marquette Law Professor Rick Esenberg says shouldn't be included in the calculation.

So even if one defers to Esenberg's quibbling, the number is a far, far cry from 60%, let me assure you.

Speaking of Esenberg, he made a rather illuminating remark the other day on this issue. In the course of supposedly evaluating the Butler campaign's list of 70 cases released in support of Butler's record in reviewing criminal appeals, Esenberg claimed, in a blog post provocatively entitled "It's not getting any better,"

First, the campaign has included a number of cases involving civil commitments or adjudications of delinquency, in which there was no conviction at all.

"A number," Prof. Esenberg? What number might that be? Here's the comment I left at Esenberg's blog, Esenberg's words in bold:

First, the campaign has included a number of cases involving civil commitments ...

Two.

One of them, State v. Richard A. Brown, has been used repeatedly to attack Justice Butler.

Do you seriously expect him not to make reference to it in his defense?

The other, State v. Bush, is about as "anti-criminal" as it gets.

Do you seriously expect Butler not to cite this case in defense of the scurrilous attacks against his record?

or adjudications of delinquency, in which there was no conviction at all.

Adjudication, singular. There is but one juvenile case on that list. And you yourself have used it to criticize Justice Butler.

Do you seriously expect him to not make reference to it in his defense?

Let me ask you one more time: Who exactly is it that's "sniping around the edges" on this issue?

The latter reference is to Esenberg's accusation against me that I have only been "sniping around the edges" when it comes to Butler's record in cases involving criminal convictions. It's pretty obvious now who's "sniping around the edges," and it's also pretty obvious that Esenberg hasn't evaluated the figures released by Butler's campaign anywhere near as closely as I have.

Esenberg, like Jessica McBride, wants it both ways. They want to be able to criticize Justice Butler on certain cases, but they don't want to let Justice Butler cite to those very same cases in his own defense. How shamefacedly dishonest can you get?

But, you know, I'm not a scholar. However, I can see that dishonesty has been pretty much the hallmark of Burnett County conservative Republican Michael Gableman's campaign, so it's not all that surprising that his supporters have caught the bug.

Esenberg never answered my questions, incidentally, nor has he acknowledged how profoundly misguided his reference to "a number of cases" is. But that hasn't stopped Prof. Esenberg from accusing Butler of "cooking the numbers." We will see what Esenberg has to say about CFAF's little project, where, unlike in Esenberg's case, it can actually be demonstrated that they "cooked the numbers."

Gableman, who is quickly running short of GOP talking points now that they're getting systematically debunked on a daily basis, was even reduced to appealing to Esenberg's supportive observations during a debate with Justice Butler in Madison last night.

Esenberg continues to insist he isn't supporting either candidate in this election. Yet, at his blog, he's rushed a number of times to the defense of "Scoop" McBride, whose bungling attempt to analyze Justice Butler's record makes her a laughing stock.

Esenberg would sooner believe some ridiculous partisan hack than a sitting Justice of the Wisconsin Supreme Court. That's what gets me.

Yet Esenberg obviously hasn't looked at the numbers very closely either, as I have, nor has he said a word about CFAF's and others' complete falsehoods. But no, Esenberg isn't supporting either candidate. Not at all.

Maybe he's got some Florida swampland for sale also. Or credibility.

How many sharks can one Shark jump?

Clearly, an infinite amount.

Sometimes I swear WisOpinion.com, the local aggregator of Wisconsin's "opinion leaders," links to stuff just for giggles, much like Jerry Falwell used to get invited on the Sunday morning chat shows so the producers and news editors could chuckle at him. Case in point, Rick Esenberg's pretend lament at the state of affairs on the Wisconsin Supreme Court.

Recall that Bill Lueders broke the story Saturday morning. None of Lueders's sources were named, but he obviously had them. By Saturday evening, the Milwaukee Journal-Sentinel had managed to obtain a statement from Ann Walsh Bradley, a justice of the Wisconsin Supreme Court, confirming the substantive details of Lueders's story. The Journal-Sentinel also obtained a statement from the accused, David Prosser, that did not deny some physical altercation had taken place, but rather simply varied from the perspective of Justice Bradley's account.

Peake fantasy

Furthermore the Journal-Sentinel obtained statements from two anonymous sources — who remain anonymous as of this writing — neither of which deny some physical altercation but, as does Prosser, present a different perspective of the alleged altercation. So what does Rick Esenberg, an actual professor of the law, make of all this?

Well, first of all, he denounces Lueders for "an embarrassingly bad piece of work" despite the fact that Lueders's report was confirmed by a justice of the Supreme Court who went on the record to confirm it.

What's embarrassing or bad about it exactly, he doesn't deign to reveal, but the professor's unsupported assertions suit perfectly the obfuscatory narrative Esenberg and his fellow travelers are seeking to forward.

And despite even the fact of Justice Bradley's affirmations, Esenberg pronounces her allegations "fantastical," conveniently overlooking Justice Prosser's self-admitted history of aggressiveness toward Chief Justice Shirley Abrahamson, whom he had previously threatened to "destroy," and who is relatively small in stature and who is nearly a decade the elder of Prosser. Moreover Bradley had warned against Prosser's behavior in emails she released to a Journal-Sentinel reporter months ago.*

Now all of a sudden the latest in an apparent pattern of reckless and intemperate behavior is "fantastical," like a Mervyn Peake novel.

Justice/Gableman

But what is most remarkable — outrageous, really — about Esenberg's own reckless missive is that he suggests the Wisconsin Judicial Commission back off from carrying through its investigation:

[T]he worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. [**]

Let's review a couple of things here.

Justice Prosser would be the third consecutive Wisconsin Supreme Court justice subject to an investigation by the Wisconsin Judicial Commission, all of them self-advertised "conservatives," and all of them members of the court that just two weeks ago abandoned bedrock principles of legal procedure, invented from whole cloth a novel fabrication of the court's jurisdictional authority, imported into its written order and opinions alleged facts that were never even mentioned by any party or court as the case wended its way toward the Michael/Gableman Four, and for all intents and purposes untenably reprimanded a careful, review-proven conservative circuit judge for — ironically — supposedly abusing her authority, a reprimand meted out by the same court that had just moments before whipped into existence its own purported authority.

The allegations Esenberg is talking about are those of Justice Bradley who, it bears again repeating, went on the record to confirm the pertinent details of Lueders's "embarrassingly bad" report. And the "controversions" Esenberg is talking about are those anonymous sources quoted by the Journal Communications, Inc. flagship daily newspaper.

Blinka job safe

Not only does Esenberg accord the latter equal weight, he accords them such countervailing authority that, Esenberg reasons, they should not only drive the Wisconsin Judicial Commission's investigation but in fact discourage the Commission from proceeding. All one might say to that is, thank gods Esenberg is not teaching the law of evidence over there.

Esenberg's "will of the voters," it needs also to be recalled, is Justice Prosser's 0.46% margin of victory over challenger JoAnne Kloppenburg, who for her part realized double-digit (not double-decimal point) surges in popular support between February's primary contest and the April 5 general election — especially in the State's most conservative counties.

Thus would it "smack of a coup" were the Wisconsin Judicial Commission, which is charged by State statute to investigate unprofessional behavior among the State judiciary, to pursue its mandated obligations.

It's quite the amazing performance by Rick Esenberg, who has a long and fairly well documented history of amazing performances. It's . . .

Ta Da! Ol' Prof. Rick is right about one thing though:

Lawyers have been worried about the divisions on the Court [**] for some time now. ... No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters.

Oh, but I'm sure they would like to say plenty about it, and what they would mostly say Esenberg probably wouldn't want to hear. Because the current divisions on the court are directly traceable to Mike Gableman, who none other than Rick Esenberg championed by defending some of the most disgraceful attacks on former Justice Louis Butler's reputation, character, and professionalism, and whose own then-research assistant's gibberish Esenberg is still publishing at the Marquette LS faculty blog.

Esenberg's "worried lawyers" ain't going to forget. It's one thing to get along — and a good thing — but it's quite another to abandon principles because some partisan ideologue is boo-hooing like a sad crocodile.

Your humble correspondent may not be the disinterested academic ivory tower dweller Rick Esenberg is presented as by Journal Communications, Inc.'s panoply of media dispensaries but I surely do know that much.

* There was some considerable right-wing pearls-clutching over Justice Bradley's handing over the emails to the reporter. However, go have a look in the WisconsinEye.org video archives for the court's open administrative conferences and you will find both Justices Prosser and Roggensack releasing sheafs of interchambers emails to the press.

The political right's shameless hypocrisy is quite the spectacle to behold.

** You do not capitalize court here. Capitalizing court here would be a signal for the United State Supreme Court. This from a professor of law.

An Esenbergian interlude

Would you forsake your house and home,
Would you forsake your baby?
Would you forsake your husband too,
To go with Blackjack Davey?
Ride off with Blackjack Davey?

Well I'll forsake my house and home,
And I'll forsake my baby.
I'll forsake my husband too,
For the love of Blackjack Davey,
Ride off with Blackjack Davey.

— Blackjack Davey — Traditional (a.k.a. Child Ballad #200).

Now, I don't know whether Blackjack Davey was a lawyer or not, but he sure as hell did some pretty effective persuasive arguing, judging from the way things turned out betwixt he and the lady of the house.

I'm going to get back to my series on the Coalition for America's Families' hatchet job against Wisconsin Supreme Court Justice Louis Butler, but since there's no longer any sense of urgency, I'm going to take a little bit more time over it, and hopefully the individual posts won't be so long.

But first I want to say something about my friend Prof. Richard Esenberg of Marquette Law School, who I've mentioned throughout this series, and who I'm going to be mentioning some more. Anyone who's been following over the past several weeks knows that Prof. Esenberg has also spilled a lot of virtual ink on questions related to the recent State Supreme Court election campaign. He's done so not only in response to many of the things I've written here but also to raise and argue a number of other points, many of which have considerable merit. Not necessarily definitive, but considerable.

But ultimately I've been focused only on one or two central themes, and a lot of what Esenberg has written doesn't engage those themes as directly as I have. That's not a criticism, or even a suggestion that Esenberg would prefer not to directly engage those themes. Of course he's free to write about what he wants, or what he considers more important, and he often does so quite compellingly.

Nevertheless, let's just say that there are several things upon which Prof. Esenberg and I fundamentally, and perhaps even irreconcilably, disagree. And not only do we disagree on a number of conclusions, I occasionally object strongly to the methods of reasoning he uses to reach those conclusions. And furthermore, I think some of the premises he puts to use in furtherance of that reasoning in order to reach those conclusions are deeply flawed. Deeply.

And I believe strongly that, given the time and the opportunity, I could convince Prof. Esenberg on a number of those questions, or at least show him why some of his conclusions, in the end, cannot be legitimately defended.

Prof. Esenberg knows what I think; he's no dummy. More importantly, Prof. Esenberg welcomes criticism like mine. In fact he invites it, and he enjoys engaging it, if only for the enervating intellectual exercise. Much like Justice Butler, as a matter of fact, who continually invited Mike Gableman to engage the substantial elements of Butler's opinions for the Supreme Court. Except Gableman wouldn't — and, I'm practically convinced, is unable to — engage that debate.

More recently, Prof. Esenberg — who I trust I can fairly call Rick now — and I have exchanged a small volume of private correspondence. And I'm not going to go into the details of that, because much of it involves stuff that's nobody else's business but ours.

I have no idea how many thousands of people I've met during my life. It's been lots. And I've met, conversed with, fought with, partied with, worked with, people from every station in life. From homeless women in the streets of Soho and beggars in Tangier to the CEOs of companies doing hundreds of millions of dollars worth of business every year. And just about everyone in between. I don't exaggerate.

I've also spent a lot of time thinking about ethics, and morality, and religion. The latter is another subject upon which Prof. Esenberg and I disagree fundamentally, but I certainly don't presume to persuade him on that account. I wouldn't even try and I totally respect his personal views within that particular bailiwick of inquiry.

The haiku version is, I think that by this point in my life I know what I'm talking about when I say the following.

I want to say now, as clearly as I can — and I hope Esenberg forgives me for employing the traditional vernacular of my former incarnation as a construction manager — that Rick Esenberg is a fucking mensch, of the highest order, and he has justly earned my unequivocal respect as a person. Absolute and unequivocal.

Now back to the hardball presently.

The Journal-Sentinel's Rick Esenberg Disclaimer

I see David Haynes and the mandarins on the Milwaukee Journal-Sentinel editorial board have added a disclaimer to Marquette University Law School professor Rick Esenberg's attempt at defending Mike Gableman's reported acceptance of a gift or favor from Michael Best & Friedrich, to the effect that Esenberg recently presented oral argument before the court on which Gableman sits. Judges are prohibited by the Wisconsin Code of Judicial Conduct from accepting gifts or favors from lawyers or firms if they have or are likely to come before the judge.

That's a relatively innocuous disclaimer compared to Esenberg's prior relationships with the Gableman political campaign. Esenberg appeared in a video produced by Wisconsin Manufacturers & Commerce which was distributed at a series of WMC luncheons in 2008. Rick Esenberg's former research assistant at Marquette, Daniel Suhr, assembled a "white paper" criticizing the record of former Justice Louis Butler — perhaps the only actor deserving of the appellation "honorable" in this whole sordid affair — the misrepresentations of law contained in which Esenberg strenuously defended at his blog, where Esenberg also repeated and purported to rationalize some of the sleaziest accusations against Justice Butler.

And Rick Esenberg's Bradley Foundation-funded Kulturkampf boutique law firm, the Wisconsin Institute for Law and Liberty, hired Tom Kamenick, a former clerk of Gableman's, as an associate. It's like incest but without the sex. Given the foregoing, the Journal-Sentinel's disclaimer is a bit of a joke. The fact that Esenberg argued a case before the Supreme Court isn't such a big deal, unless you realize what case it was, which the Journal-Sentinel's disclaimer doesn't identify.

The case is Wisconsin Prosperity Network v. Myse and Esenberg presented the argument instead of James "Carried ... feet first" Troupis, who represented Justice David Prosser during the latter's political campaign last spring. It's also the case from which Prosser disqualified himself in September, 2011 apparently after being pressured by the Journal-Sentinel's reporting, even though this blog had pointed to the potential conflict of interest as early as the previous April.

Speaking of which case, Prosser and Gableman literally rewrote the Wisconsin constitution to grant an injunction in 2010 in favor of the plaintiffs, a who's who of conservative Republican activists, the granting of which was executed even before the court had decided whether to take jurisdiction of the case. A decision is forthcoming in Myse but a date hasn't been announced. This blog wondered several weeks ago how a divided court is going to address the posture of that injunction.

The Journal-Sentinel is a wholly owned subsidiary of Journal Communications, Inc., which itself is in effect a wholly owned subsidiary of the WISGOP. The transparency of these relationships is remarkable.

But yeah, thanks for the illuminating disclaimer. Great public service.

Right-wing condescension in Wisconsin, Day Two

CAPITOL KAOS, Agent Rick reporting for Faux News duty

I finally had a chance to listen to Joy Cardin's March 30 interview with Marquette professors of law Ed Fallone and Rick Esenberg, discussing the events unfolding in Judge Maryann Sumi's courtroom in Madison. The link is here, and it's about 35 minutes. Prof. Fallone has got it together, and you'll hear little more from him than you've already read on this here blog over the past week, starting last Friday.

Esenberg, on the other hand, is priceless, so desperately does he want it to be 1943, when the Wisconsin Supreme Court ruled that a dicey procedure* in a political branch might not be enjoined.

But much has changed since then, most importantly the enactment of the Open Meetings Law, which set in place a number of directives to the courts that make Prof. Esenberg's 1943 case considerably less significant than he makes it out to be. But Prof. Esenberg is having none of it, and literally sneers at anyone who thinks differently.

But first, Esenberg has apparently forgotten about the chicanery perpetrated by the Republican Senate leader Scott Fitzgerald, who Esenberg helped advise that a six-months-pregnant woman might be "carried ... feet first" over that legislative chamber's threshold:

The mess that we find ourselves in now is because, I believe, that the circuit court failed to give adequate attention to whether or not this was a morass into which she should have plunged in the first place.

It's laugh-out-loud stuff, and the gist of Esenberg's complaint is that Judge Sumi hasn't explained to Esenberg every step of her reasoning up to this point: Rick is "extremely disappointed" that Judge Sumi hasn't acknowledged Rick's concerns, which is absolute nonsense because the one case upon which Rick hangs his hat is referenced throughout documents filed with the court, including, significantly, the District IV Court of Appeals certification of Ozanne v. Fitz to the Supreme Court. Rick suggests Sumi is simply ignoring it. Poor guy.

And unfortunately for Prof. Rick, it isn't the only case.

Another thing that bothers Rick is that Dane County District Attorney Ismail Ozanne didn't sue the Legislative Reference Bureau along with the secretary of state. But if your objective is to enjoin publication, which is a legal term of art and is what is required by the constitution and the statutory framework, then why would you sue the Kinko's kiosk?** This concern catapults Prof. Esenberg into full sneer-mode:

The one thing I think should have happened here is that a lawyer who read the law, and I'm talking about the statutes and, y'know, not a publication that is sent to schoolchildren to explain to gradeschoolers how, y'know, a law goes into effect, but actually read the law ...

And if you think "sneering" is an exaggeration, go to 32:45 of the interview. Evidently invoking "schoolchildren" is a rhetorical specialty of Rick's, because he pulled the same stunt on me when I pointed out that Michael Gableman's ethics case was still pending after the Supreme Court delivered its opinions — or "writings," as they have become known — in the matter. Rick told me I needed to consult something other than "horn book" civil procedure, which is like accusing someone of only having read the CliffsNotes version of The Brothers Karamazov or, as Rick would put it: "[G]o read Sartre."

But then, lo and behold, Wisconsin Supreme Court Justice N. Patrick Crooks, who has been a trial judge and an appellate judge for 30-plus years, appeared before a special committee of the legislature to point out that, yes, the complaint against Gableman is still pending because — just as this space had explained earlier — Gableman failed to win his motion for summary judgment, which is the question an appeals court panel had convened to hear in September of 2009.

So, yes, I had certainly consulted something other than a horn book: I consulted something called the law prior to making the claim, as did Justice Crooks prior to affirming it, as has, obviously, Judge Maryann Sumi. She's not conducting this hearing — and they call them hearings for a reason — for the special benefit of Marquette's Rick Esenberg.

Rick has a right to his argument — which is wrong, as it turns out — but he has no cause to sneer and especially no business sneering at a presiding trial judge simply because she hasn't acknowledged Prof. Rick's existence. The hubris, as they say, is strong with this one.

But the truly depressing thing is, the local nut-right simply accepts Prof. Esenberg's words as Gospel, and his sentiment find its way into the appalling personal attacks against Judge Sumi among the basest dregs of the Milwaukee Journal-Sentinel's comments threads.

Meanwhile what Judge Maryann Sumi is doing is an exemplary job and she's clearly — crystal clearly — been doing her homework.

* There is procedure and there is substance, a fundamental distinction in all law, and a very important distinction in this case. It's why the Justices of the SCOTUS were moved to devise the intuitively redundant expression, "procedural due process."

** No disrespect to the LRB, but it's the best metaphor I can think of to describe a core question of the case. Amusingly, Esenberg accuses the LRB of injecting politics into the proceeding when in fact the LRB is the least political party, named or unnamed, to the proceeding.

Rick's nature trick: Hide the denial

So Professor Esenberg doesn't care for certain descriptive English words, as he indicates in his latest missive on what he's christened "Climatequiddick," which is apparently a light-hearted and cute allusion to the tragic drowning of Mary Jo Kopechne in 1969.

The careful reader will note that what has got Prof. Esenberg's dander up was this post, highlighting his false claim that compilers of a chart on the cover of a 1999 report of the World Meteorological Organization "combin[ed] two different measurements and pretend[ed] they are the same thing and mischaracteriz[ed] what data show."

This is the claim of Prof. Esenberg's with which I took issue. Except he avoids this and instead inventories a collection of vocabulary employed from time to time at this blog (which is part of the internets and tends occasionally to adopt its vernacular, although I don't believe I have ever used Ms. Kopechne as a figure of fun):

"Teabagger", "wingnut", "not very smart", "moron", "calumnist" "ignorant," "fraud," "dishonest," "lying," etc. You'd think that arrogance, if it must be expressed, should be earned, but I guess that "denializer" is not so bad.

This is supposed to be an argument, I guess, so please feel free to use the search function at the upper left corner to determine whatever context they were used in and if it was even me that was using them and not as part of a quotation from somebody else.

For example, "teabag," the verb, was coined by a Fox News reporter.

"Morons," as Prof. Esenberg conveniently overlooks, is what his friend Charlie Sykes called some Milwaukeeans who held a vigil at North Ave. and Oakland on Friday night to commemorate the conference on climate change currently underway in Copenhagen.

It's my understanding that Charlie Sykes is not exactly a shrinking violet himself when it comes to colorful language describing his perceived political adversaries (in this case, the youthful idealists that Sykes so abhors and mocks at every available opportunity).

So how come Prof. Esenberg doesn't similarly take Sykes to the woodshed, if it's so terribly not nice to call people morons? Evidently it's acceptable as long as you're Charlie Sykes, whose obsequious consideration of Prof. Esenberg is as a "renaissance man."

(Perhaps he'd settle for just "medieval warming period man.")

"Calumnist" is a term coined by yours truly (I think [eta: not]) to characterize the Milwaukee Journal-Sentinel's self-described "right-wing guy" Patrick McIlheran, because that's exactly what he is.

"Calumny," in fact, is a relatively mild description for McIlheran's fatuous rhetorical efforts, e.g., to falsely tie one of Obama's advisers in the Department of Education to the notorious North American Man-Boy Love Association, which is what McIlheran did.

As a matter of fact, it was McIlheran's series of gross distortions, risible misunderstandings, and deployment of so-called "experts" like the Third Viscount Monckton of Brenchley that inspired a number of posts here on the topic of "Climategate."

I personally find it more than a little appalling that the biggest daily newspaper in the State of Wisconsin would see fit to publish such pure nonsense, but that's just me. It's a crazy expectation, I know.

Call me a youthful idealist (and see you at Pizza Man).

As for frauds, "dangerous frauds" is how McIlheran described scientists whose private correspondence was unlawfully uploaded to a computer server in Russia last month.

And "dangerous frauds" is how McIlheran has described those scientists despite being comically unaware* that the much-celebrated "decline" referenced in one of those e-mails was not a decline in measured temperatures but rather a decline in sensitivity to changes in temperature observed within a particular collection of a particular species of tree in a particular location in the Northern Hemisphere.

Except I have never seen Prof. Esenberg condemning Mr. McIlheran for his hysterically reactionary "opinions," which are themselves in turn grounded on his not even knowing what the hell he's talking about. No, instead Prof. Esenberg rambles away about Al Gore, who has nothing to do with any of this, as far as I'm concerned.

Ironically, it was none other than Prof. Esenberg who wrote:

On the left, bloggers like Illusory Tenant are redefining the term "denialist." There is, they say, nothing to see here and "wing nuts" who say other things are so stupid — not at all like us smart people.

Now suddenly he affects to be troubled because I placed him in the denialist camp (for good, empirical reason, as opposed to faux-trage at choice of the same nouns and adjectives his local right-wing colleagues use), an awfully slippery double standard on his part.

While I never said there is nothing to see here, I did predict very early on that the political right would attempt to construct fallacious bales of straw from what seemed to me little more than scientists "sharing around some catty messages with each other."

Which is precisely what has happened. And, despite Prof. Esenberg's continuing use of his own coined expression "Climatequiddick," he's yet to address the question I'd put to him more than once: "So I'll ask again: Is this really all you guys have? 'Hide the decline'?"

Still waiting.

* For two weeks, after which he dismissed as a "subtlety" the somewhat fundamental question of whether temperatures were rising or declining. I'm not kidding. "Renaissance man" notwithstanding, it hardly comes as a surprise that Mr. McIlheran looks up to Prof. Esenberg as he "whom I want to be as smart as someday."

To be sure, Prof. Esenberg is in fact very smart indeed, which makes some of the positions he stakes out that much more questionable.

Like this one, for example:

The rationale behind the recusal motions filed against Michael Gableman are [sic] primarily (although not quite entirely) based on the now infamous Reuben Mitchell ad and certain statements made by Gableman’s lawyer, Jim Bopp, in the course of defending Justice Gableman on ethics charges stemming from the ad.

While Attorney Rob Henak is a talented advocate, I don't believe he's quite mastered time travel, as his original motions were filed in April, and Jim Bopp didn't deliver his statements until September.

Yeah, I'm an elitist. So what?

Marquette Law School Prof. Rick Esenberg did not deliver his best work to the Milwaukee Journal-Sentinel's Crossroads section yesterday. "Half-hearted," is how I'd charitably describe it.

If I were allowed to read between the lines, I'd say that Prof. Esenberg is nearly as revolted at the most recent State Supreme Court election as I am. The only reason I say "nearly" is because he received the reward he sought: the replacement of one of the smartest and most highly regarded judges in the country with a de facto and de jure Homer Simpson.

I also have to wonder if Esenberg actually voted for Mike Gableman or, like my piano student James, did the right thing but held his breath for the wrong outcome. At least, that's what I told James he'd done. (He laughed; James also has a sense of humor.)

It's impossible to take seriously Esenberg's portrayal of the two candidates as "reasonable lawyers with deep philosophical differences," as if there were comparable records from which to draw this implied equivalence of competence. Was Esenberg even paying attention? The only thing we ever heard from Gableman was the same old tired, empty GOP namecalling, of himself as a "textualist" (all judges are textualists — what, do you think the law is written in ham sandwiches?) and Justice Louis Butler an "activist" who decides cases in advance based on personal whims.

In other words, meaningless and — more to the point — baseless and indefensible rubbish. If Gableman has a philosophy, or is capable of enunciating one, or even knows what a judicial philosophy is or what it means to have a judicial philosophy, then maybe Prof. Esenberg can fill us in. But he certainly wouldn't be getting any of his impressions from Gableman himself. All Esenberg would be able to do is criticize Justice Butler's extensively documented jurisprudence and then claim Gableman represents his opposite number. Which is essentially all Esenberg has been able to muster in the first place.

Esenberg's anecdotal allusion to Ted Kennedy's goofball performances at Senate Judiciary Committee hearings on federal court nominees is every bit as unconvincing. Hardly anybody takes Kennedy seriously in that context. More the norm — or at least the ideal — is Arlen Specter's justly celebrated grilling of Robert Bork, which Ronald Dworkin described as one of the most compelling examples of American democracy in action.

And contrary to popular Republican "wisdom," Bork borked himself; it wasn't Ted Kennedy who borked Bork. That pesky Indiana law review.

Or how about the repugnantly obsequious tongue-bathings of GOP committee members like Orrin Hatch or — the worst of the worst — Jeff Sessions, whose inquiries of G.W. Bush judicial nominees elicit about as much probative intellectual content as asking the prospective Article III judges for their favorite brownie recipes, and then to comment approvingly on their own magical deliciousness.

As a newly minted supporter of a Wisconsin Supreme Court appointment process, even I'm willing to put up with those sorts of vacuous charades.

American democracy, let us recall, is decidedly not of the direct variety. The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms, because the Framers understood that the mob's inflamed passions would compel it to turf its representative yahoos out of office almost as quickly as it had installed them. And inflamed passions are the antithesis to the rule and the process of law.

The power of incumbency (a.k.a. hockey socks full of cash contributions stuffed in exchange for obeying moneyed interest groups) has changed all that for the most part, of course.

The call for the appointment rather than the popular election of judges inevitably invites catchy GOP charges of "elitism" from those who would prefer appellate courts empaneled with Homer Simpsons and Fred Flintstones. Bring on such charges, I say. Of course it smacks of elitism. Our highest appellate courts are supposed to be comprised of the elite. They are the elite. Anybody from Plato to Thomas Aquinas to James Madison and Alexander Hamilton (the poster boy for American political elitism) can tell you that.

Or Thomas Frank, whose What's The Matter With Kansas? Esenberg also disparages yesterday (without explaining why). Frank shows exactly how conservative caterwauling about "liberal elitism" is a fatuous joke and in fact a ridiculously embarrassing false pretense to political and cultural victimhood on the part of conservatives.

By close analogy, witness the disingenuous howls of persecution by American Christians, 85% of the population, driven back into their caves like the Essenes by a handful of atheists, many of whom are reluctant to identify themselves as such for fear of being scorned and shunned to the detriment of their very careers.

Ultimately, Prof. Esenberg's vaguely Churchillian thesis appears to be that popularly electing our State Supreme Court is the least worst option available. He can't possibly be serious, especially while at the same time declaring that he loves the law (which I don't doubt for one instant).

For one thing, an appointment process will have the meritorious effect of excluding the Mike Gablemans from our highest courts of appeal. That alone is enough to commend such a process. The strange case of Harriet Miers aside, does anybody seriously think the likes of Mike Gableman would be mentioned in the same breaths as the likes of John Roberts or Samuel Alito, even by Karl Rove?

Obviously a method of appointing — as opposed to the popular election of — judges will not erase the political content of the selection process. Who ever said it would? And what isn't political in this country? One of the reasons I got a law degree was so I could better understand the daily newspaper. Everything is political here, and all politics ultimately rests on some legal question.

And conservative Republicans needn't be concerned they'll be forbidden from engaging in precisely the same lobbying of a judicial selection committee with which they're able to insult the public's intelligence now. Happily, Wisconsin Manufacturers & Commerce will still retain its ability to micturate all over the Bill of Rights.

I have no idea what success State Rep. Frederick Kessler's proposed constitutional amendment will enjoy, if any. But, given the experience of Wisconsin's latest Supreme Court election, I wouldn't be able to bring myself to not support it.

Speaking as someone who also loves the law, the election was a shameful affair, and one can only pray it never happens again. Even I will pray, to Saint Thomas Aquinas, if that's what it takes.

Esenberg rigs the jury

Gableman made every reasonable effort to ensure that the Ad was accurate by being familiar with the arguments advanced by Butler. — The Honorable Respondent, paraphrased

Here's a somewhat entertaining "hypothetical" from Marquette law professor Rick Esenberg this morning. He's wondering whether "the state should sanction people for election communications."

One of the two examples he places on offer is a portion of then-candidate Judge Michael Gableman's famous teevee ad. But the appropriate question presented by Gableman's shenanigans is not the one posed by Esenberg, but rather whether the judiciary may promulgate and enforce ethical guidelines for its membership.

Of course it may, and does.

Even Gableman dropped his anticipated constitutional challenge to the rule (and the Wisconsin statute) he stands accused of violating.

Perhaps fearing the obviously affirmative answer to the proper question, Esenberg poses the broader query, and then compares Gableman's handiwork with some third-party gay marriage robocall.

The comparison is not only inapt but pointless. Michael Gableman, a judge, was operating under a separate set of constraints, for a separate set of individuals: judges, running for judgeships. There exist no such constraints upon third-party citizens' groups.

Esenberg is asking a different question, so of course he'll get a different answer, which ignores the particulars of Gableman's pickle while at the same time holding Gableman forth as an example.

More interestingly, Prof. Esenberg once again takes up his cudgels as a Mike Gableman amicus by insisting of the teevee ad under consideration, "Each sentence, taken individually, is true."

Except they aren't.

Butler didn't find a loophole, the State of Wisconsin found a loophole. And even if a loophole was found by the defense, it was found not on appeal but by a different lawyer at trial, who raised and preserved his objections based on the plain text of the law, which forbids the introduction of a sexual assault victim's past sexual history.

Prof. Esenberg conveniently sidesteps this predicament by pronouncing loophole "a meaningless term when used by the right with respect to criminal law."

He has got to be kidding.*

This is the same Rick Esenberg who lent Marquette Law School's considerable prestige to his fellow travelers at Wisconsin Manufacturers & Commerce, which outfit went on to produce not just one but two television ads playing almost exclusively on the said "meaningless" term, in precisely that criminal law context.

And the argument (WMC called it a loophole, that meaningless expression whose meaning appears miraculously on page 954 of the industry bible, 7th ed.) in the particular dissent of Justice Butler's those ads were exploiting was later affirmed by none other than Justice Antonin Scalia & Co. of the United States Supreme Court.

Meanwhile Prof. Esenberg was diligently defending some of the sloppiest, most vindictive, and borderline libelous "opposition research" produced during the entire election campaign.

Sometimes it's difficult to take him seriously.

However, to answer his question: Yes, Prof. Esenberg's aforementioned labors should be protected against state sanction.

* Moreover, how in this world can an English sentence be "true" (or false) if its very object is "meaningless"? Bueller? Wittgenstein?

Shark for the defense

My outspoken admirer Rick Esenberg has published a lengthy apologetic for what, in my opinion, is a political attack piece against Wisconsin Supreme Court Justice Louis Butler, one of the cases involved in which I discussed here.

While much of Esenberg's reaction is devoted to Mike Plaisted's riotously entertaining missive (which Plaisted's since updated to address Esenberg's concerns), he does considerately take a few moments to essentially confirm the veracity of what I wrote earlier. Then he suddenly shifts gears to charge that, "The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth."

Since Esenberg is a reasonably reflective and fair-minded fellow, I'll extend to him the presumption that he's not addressing your humble correspondent with that remark. However, one finds it hard to resist the ironic "disinformation" bait, and I left this comment beneath Esenberg's blog entry, to which I've added a few clarifications below:

Please read Suhr's characterization of Knapp again. First, he describes it as a Fourth Amendment case, but it's a Fifth Amendment case. While Knapp raised Fourth Amendment arguments in his resubmitted briefs they were not addressed.

(Incidentally, contrary to your claim that judges don't make rules, the fruit of the poisonous tree doctrine happens to be exactly that: a judge-made rule.)

As I had explained, one of the cases that informs Knapp is United States v. Patane. While there are many other decisions that conflate Fourth Amendment search and seizure doctrine with that of the Fifth Amendment's self-incrimination clause, Patane isn't one of them. Apart from Justice Thomas's initial statement of the question presented in Patane ("whether a failure to give a suspect the [Miranda] warnings ... requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements"), Thomas goes on to explicitly distinguish the circumstances of Patane as "unlike unreasonable searches under the Fourth Amendment."

And, as I said, Knapp itself was distinguishable from Patane because its Miranda failings were intentional. So, who knows whether Suhr's description of Knapp as a Fourth Amendment case was a misunderstanding, simply an extravagant typo, or what. On its face, it's a gross error, especially given the discussion contained in the very case Suhr claims Justice Butler arrogantly failed to defer to:

Then Suhr describes Knapp's result as "arrogance" and an example of a "failure to defer to the U.S. Supreme Court." In this case, there exists no such requirement to defer to SCOTUS, nor is it even clear what SCOTUS requires under the circumstances, which is what I explained, and what you appear to agree with.

Do you seriously contend that Suhr's remarks demonstrate a fair -- or even honest -- representation of this case? I certainly don't, especially when his conclusions are based on an observation that raises the question of how closely he read it, if at all. He obviously didn't attend very closely to the SCOTUS decisions to which he claims Butler "failed" to defer, yet he portrays Butler as "arrogant"? Please.

Next comes Esenberg's tasty little plum:

The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth.

I sincerely hope you're not talking about me here. But, speaking of spinning from whole cloth, how about Suhr's representation of Kohn v. Darlington Community Schools: "Justice Butler, in dissent, says he would strike the statute down for violating his expansive reading of the federal and state constitutions' equal protection clauses."

Emphasis added. Now that is a fabrication from whole cloth. Butler "says" no such thing, and in fact his analysis is based on whether the substantive changes to the repose statute rescue it from the court's prior holdings in Kallas and Funk. So if there is such an expansive reading as Suhr believes, it belongs to the 1975 and 1989 versions of the court, long before Butler appeared on the scene.

I must add a tip o' the hat to my good friend at Complete Defeasance, an experienced civil litigator, who also had a look at Kohn and reported here.

Esenberg accuses me of "shift[ing] away from what Daniel said to statements made by Charlie Sykes":

As for Charles J. Sykes, Suhr cited him as a source, not me. It's not my problem Suhr's attitudes appear to vibrate in consonance with Sykes's errors.

Moreover, I would have thought it pretty obvious why Sykes was invoked, because what we have on display here is a gaggle of conservative propagandists, not just Daniel Suhr, that are engaged in attempting to foist unwarranted and ill-informed invective against Louis Butler in the months leading to the April election. And there will be much more to come.

Finally, I just noticed that someone called "Fred" has left another comment in Esenberg's thread:

"They can do better than that." - Esenberg

From reading the original posts and the comments here I conclude they can't do better.

Perhaps Fred would like to take a shot at actually addressing what's been presented here, and elsewhere, but something tells me that such measured considerations won't be forthcoming.

According to Mr. Suhr's website, enthusiastic downloaders of his "white paper" caused a server to crash yesterday. Let's hope they read it a little more closely than Suhr has read either Knapp or Kohn (not to mention Patane and Seibert).

I would caution them, however, that a closer reading may severely undermine their political rhetoric, along with that of their vocal champions in the local media actively engaged in providing free campaign messages on behalf of Michael Gableman.

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.]

Treading on Louis Butler

Daniel Suhr, the author of the anti-Louis Butler "white paper" discussed here and here (and elsewhere) has responded to some of the criticisms over the manner in which he'd portrayed Butler's opinions in a number of Wisconsin Supreme Court cases.

While it's a response, I can't say it's much of a defense.

Of the two cases discussed at this here blog, Suhr says of the first, State v. Knapp: "Prof. Esenberg has already dispatched the criticism of my characterizations of Knapp ... quite effectively."

He has? That's news to me. Among Esenberg's remarks were the following: "IT's criticism is not ... just flatly wrong." (Thanks, I think.) "He wants to say that the federal rule was not crystal clear and that is certainly so." "IT correctly observes [that Patane] had no majority opinion."

Esenberg's only "dispatch of criticism" (if you can call it that) was to reiterate that the constitutional provision the Knapp majority ultimately based its own opinion on was not the Fifth Amendment itself, but its practically identical corollary in the Wisconsin constitution, Art. I, Sec. 8: "No person ... may be compelled in any criminal case to be a witness against himself or herself." (The Fifth Amendment reads, "No person ... shall be compelled in any criminal case to be a witness against himself." I'll save the "may vs. shall" linguistic perturbations for another time.)

However, this is no defense of Suhr's claim that Butler and his colleagues "set aside" the U.S. Supreme Court's interpretation of the Self-Incrimination Clause. As I said, Butler discussed it in considerable detail. And, as Esenberg confirms, it isn't all that clear anyway. Moreover, Suhr describes the result in Knapp as the product of Butler's "arrogance," and as a "failure to defer" to the U.S. Supreme Court. Where's the defense of that hyperbole?

As Esenberg himself points out (and even cites another SCOTUS case in support of the proposition), there is no such requirement of "deference" to SCOTUS under the circumstances. Personally, my own civil libertarian inclinations put me at a loss to explain what's so objectionable about a State court undertaking a slightly more expansive reading of the freaking Bill of Rights than the U.S. Supreme Court and then to have that reading characterized as "arrogance." That is the statement that requires a substantive defense, if you ask me.

Furthermore, from a broader ideological perspective, I'm puzzled as to how conservative fanboyz of the Federalist Society can, consistent with their other views of federalism, decry an individual State's move to insulate an interpretation of its own constitution from federal review (read: federal interference). A move, as Esenberg reminds us, that is itself grounded in SCOTUS doctrine.

As far as I'm concerned, this is simply more evidence that the conservative epithet, "judicial activism," is most often little more than code for "stuff I don't like."

Daniel Suhr's reply to his critics over the other case, Kohn, is even more illuminating. "I’m not going to go around waving it as a red flag activist case," he says. Sounds like a major concession and a retreat, to me. And yet, there it is in his "white paper," presented as a demonstration of Butler's "arrogance" and "failure to defer."

Well, guess what. You can't have it both ways.* If you're going to present Butler as a "judicial activist, arrogantly failing to defer" to other political entities, then don't use Kohn as an alleged example of same. Because it's not.

I have absolutely no objections to anyone discussing and criticizing Butler's — or anyone else's — jurisprudence; in fact I may be even more of a "dork" than Suhr himself in that sense, and I encourage such discussions. And I congratulate Suhr for taking the initiative. But it seems to me Suhr had a political objective in mind before he went sifting through Butler's opinions in search of evidence to support his preordained goals.

It's also obviously no coincidence that Suhr selected Rick Esenberg's indicators of "judicial activism" with which to measure his partisan interpretations of Butler's opinions. There happen to be other criteria defining the notion of judicial activism than Esenberg's, some of which point to conservative judges as the activists.

It's Suhr's use of inflammatory verbiage such as "arrogance," "failure," and "judicial fiat" to describe Butler's opinions that has not been adequately supported. Not even close. This is what I meant by "overly simplified, if not misleading." And it's also why I've characterized Suhr's paper as more a slanted political attack piece than considered analysis.

Once again, the import of Suhr's reaction to the Kohn criticisms is to support the view of conservatives' colloquial use of the expression "judicial activism": stuff I don't like.

But many of us knew that all along. And many of us would like to see a more convincing argument as to why Louis Butler should be removed from the bench and replaced with a virtually unknown entity from the Wisconsin hinterlands, which is what Suhr, Sykes, Esenberg, et al appear to be recommending. While I have nothing whatsoever to do with Justice Butler personally, nor his campaign, he strikes me as far more eminently qualified to continue in his position than do the credentials of his challenger to usurp it.

* Follow the link for, among other things, an example of Louis Butler's strict constructionist, originalist methodology: State v. Jensen.

For Gableman, every case is a controversy

Somebody has finally written something of two motions* currently before the Wisconsin Supreme Court, requesting that embattled judge Michael Gableman stand aside from participating in a criminal appeal, the review of which the court accepted last year.

One of the motions is directed toward Gableman himself — which he will almost certainly deny — and the other asks the court to consider Gableman's recusal on due process of law grounds, the factual basis for which constitutional argument is his well documented behavior during an election in which roughly 9.5% of Wisconsin's eligible voters managed to position him on the far right of the high court bench.**

David Ziemer in the Wisconsin Law Journal describes the broad contours of the motions in a report that also features a couple of remarkable observations from some famous local conservative Republicans. First there is this non sequitur issuing from Marquette University law professor Rick Esenberg:

Esenberg said the Massey case and the issues raised by Henak differ, which is why the motion has little chance of success.

In fact "the Massey case" (Caperton v. A.T. Massey Coal Company, Inc.; see the SCOTUS Wiki) is mentioned only tangentially in one of the motions, which expressly acknowledges that the questions presented by both cases are merely "similar," in that each involves third party contributions to judicial campaigns.

So it's less than clear why Allen's motion has "little chance of success" simply because it's different from Caperton. Not only that, but Caperton hasn't even been decided yet, so nobody knows what — if any — direct application it will have to Gableman's latest imbroglio.

According to Ziemer, Esenberg claims that "virtually all judicial candidates employ a 'tough on crime' philosophy, including Chief Justice Shirley S. Abrahamson during her recent re-election campaign." Prof. Esenberg waxes syllogistic:

"If this motion is granted, then she — and virtually every other candidate who has ever run a contested race — should also be required to recuse themselves as well," Esenberg said.

Emphases added. But this doesn't at all follow either, given the substantial and substantive factual dissimilarities.

Gableman's campaign was devoted almost exclusively to this so-called "tough on crime philosophy" and isn't even remotely comparable to Abrahamson's. Rather, a prominent theme of the Chief Justice's recent campaign was an emphatic disabusing of the notion that judges "side" in advance with either plaintiffs or defendants.

Not only did Gableman continually and demonstrably promise to be an "ally" of law enforcement and its "war on crime," he went well out of his way to denigrate the professional experience of his opponent — so much so that Gableman has found himself up on ethics charges — and even further to disparage the very statutory and constitutional protections to which criminal defendants are entitled.

Abrahamson most certainly engaged in none of that business.

Moreover, the suggested test for Gableman's recusal under the circumstances is not simply whether or not he believes he can perform as an impartial magistrate, but whether a reasonable observer — in this case, the defendant/appellant, Allen — believes Gableman can, based on Gableman's own continuously repeated demonstrations.

This is a point that even the other conservative Republican quoted in Ziemer's story, Wisconsin Attorney General J.B. Van Hollen, appears to have overlooked:

Van Hollen said the motion [sic] "is an attack on our system of electing judges."

Van Hollen added that during an election, judicial candidates are allowed to express their views, within the limits of the law, and Gableman’s actions in 2008 were no different than past years.

"This in no way disqualifies them [justices] from being fair and impartial in a specific case," Van Hollen stated.

The latter is a daringly unequivocal claim. And it can only be true if one accepts that Gableman's actions were "no different than past years." But Gableman's actions were clearly quite different, in that they've succeeded in placing him in the unprecedented situation of being under investigation by the Wisconsin Judicial Commission.

No less an authority than former Wisconsin Supreme Court Justice Janine Geske had never seen anything like it, describing Gableman's shenanigans as "sinking to new lows," and one may safely accord considerably more deference to her observations than to Van Hollen's.

While it's true that a large amount of financial, media, and other support came from third parties (including, instructively, Rick Esenberg), not only did Gableman do nothing to set himself apart from those attacks against his opponent, but Gableman embraced them enthusiastically by featuring them prominently in his speechifying, his campaign literature, and at his campaign website.

(That website has long since been reduced to a lone index page bearing nothing but a logo, but much of it was previously retrieved and is attached as appendices to the motions for recusal.)

If anything was an attack on Wisconsin's system of electing judges, it was the disgraceful campaign of Gableman and his supporters.

Diane Sykes, the George W. Bush-appointed Seventh Circuit Court of Appeals judge, herself a former Wisconsin Supreme Court justice, called it "utterly inconsistent with the judicial role," and Gableman's notorious teevee ad a "particularly base and deceptive attack."

In any event, Caperton is more similar to Michael Gableman's situation than Esenberg lets on, since it deals with the appearance of bias created by massive campaign contributions to a judicial candidate by third party interests and according to the due process analysis, the appearance of bias is all that's required.

It was a core promise of Gableman's campaign he would not only be biased in favor of law enforcement but biased against criminal defendants. I don't know how even Esenberg could rebut that.

More specifically, one of the notable parallels between Gableman's case and Caperton is the involvement of the business outfit Wisconsin Manufacturers & Commerce, which spent millions of dollars on Gableman's behalf and ran literally thousands of radio and television spots in the weeks before the April, 2008 election disparaging Gableman's opponent for his work decades ago representing criminal defendants.

Rick Esenberg is often presented in the local press as a detached, academic observer, a special favorite of right-wing dissemblers like Charlie Sykes and Patrick McIlheran, and it was in that apparent capacity that he lent himself and Marquette University's prestige to WMC in a video presentation that laid the groundwork for WMC's and ultimately Gableman's notorious attacks on his political opponent.

But Prof. Esenberg's subsequent energetic defenses of the most fanatically and egregiously dishonest of Michael Gableman's supporters did much to detonate that facade of academic disinterest.

* The motions and related documents are available here.

** One of the reasons why Gableman's ethics investigation merits a public hearing — the one his lawyers are seeking to avoid — is so that the remaining 81% can learn more about what antics he got up to.

Closing statement on Fitz Van Walker arrogance

For the record, Tuesday, March 29, in the Year of our Lord 2011:

I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.

— Robert Jambois, atty. for Assembly Minority Leader Peter Barca

The hearing continues Friday* and it is not going well for JBVH & Co.

Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.

And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.

The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.

I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.

The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.

* April Fools Day, the third anniversary of Mike Gableman's election.

** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.

Prophecy, is what Oliver Wendell Holmes, Jr. called the law.

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.

That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).

Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.

Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).

The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****

Fitzgerald in turn acted on the basis of that advice.

More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.

By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.

Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.

*** Who had done nothing whatsoever unlawful.

**** Face down or face up was left to Big Fitz's wise discretion.

Blogger, heal thyself

Marquette University law professor Rick Esenberg has once again taken up the question of "civility" and thus admonishes the local blogosphere:

They take opposing arguments out of context or restate them inaccurately and in bad faith.

What might be useful there would be an example. Fortunately I have a near-perfectly illustrative example right here, from this blog, quoting a complete, stand-alone proposition:

That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false. — law professor Rick Esenberg

Replies Prof. Esenberg:

You're taking my comment out of context. I was discussing the constitutionality of sanctioning political speech, not speculating on Justice Gableman's intent — about which I have no knowledge.

The comment was no more nor less taken out of context than it would be to take "You're taking my comment out of context" out of the context of the two sentences above.

Rather, it communicates a discrete, very particular idea that goes directly to one of the crucial elements of the code of judicial conduct Gableman is accused of violating: Intent. Prof. Esenberg well knows this and only pure sophistry can facilitate his evasion.

And even if I was "taking it out of" some context I was addressing it in its proper context: the record of the Wisconsin Judicial Commission's case against Gableman, the initial impetus for which is the object of the very remark of Esenberg's that he's suddenly now claiming was taken out of context. Mighty tricky, I do reckon.

Alas, it's nothing but a trick.

You don't get to cry 'context!' just because you are at once discussing a broader topic and then make an individual statement which has no necessary connection to that larger topic (in this case, Prof. Esenberg claims, the constitutionality of sanctioning political speech).

If I'm talking about going to the Packers game and mention how much I love the stadium brats at Lambeau Field, it serves me little effective purpose to subsequently recant loving the stadium brats because, hey, I was only talking about the Packers game.

Finally — and read these one more time — watch how Prof. Esenberg actually denies what he'd previously written:

1) That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.

2) [I was] not speculating on Justice Gableman's intent — about which I have no knowledge.

But of course contemplating Gableman's agony seeking (and then "certainly" finding) support for inferences as to Gableman's true/false beliefs is "speculating on [his] intent." That's exactly what it is.

Bad faith, indeed. Once we see the good faith, then perhaps we might begin to concern ourselves with the requisite "civility."

Better yet, if Prof. Esenberg ever takes to exposing his fellow travelers Charlie Sykes and Patrick McIlheran, both of whom operate in a perpetual paradigm of bad faith, that would really be something.

Reading helps

True, it does. Writes law professor Rick Esenberg:

Contrary to the uninformed speculation of this blogger, I am familiar with Sotomayor's record and, as I said in the column (reading helps), it is conventional if "liberal."

Except I didn't say he wasn't.

I said the contrast between the two columns that appeared on the front of a section in yesterday's Milwaukee Journal-Sentinel was that one was based on an examination of her record and the other discussed what Esenberg calls Sonia Sotomayor's "political assumptions" (although the political assumptions in evidence are primarily Esenberg's own, derived as they are from a couple of offhand remarks made by the judge in informal settings).

Since Judge Sotomayor hasn't yet been afforded the opportunity to explicate her comments, in the meantime Esenberg's personal speculation remains exactly that: a set of political assumptions.

More to the point, I was sarcastically observing that it was pleasant to discover the Journal-Sentinel soliciting an opinion column for once from some lawyer other than Rick Esenberg.

The icing on that cake was that the other lawyer, Edward Fallone, appropriately focused on Sotomayor's record and accomplishments rather than the aforementioned offhand remarks, which have elicited a cri de guerre — however tenuous and speculative itself — from conservative Republicans in search of any justification to oppose Sotomayor's nomination to the U.S. Supreme Court.

In spite of her record and in spite of her accomplishments.

Now this morning Esenberg claims he isn't all that interested in Sotomayor's 16-plus-year record as a federal judge anyway — she is merely "conventional," sniffs the professor — but only in those decisions of hers that reached the Supreme Court on appeal.

I'll leave it for the actual uninformed speculators to divine why that, then, wasn't the subject of Esenberg's Journal-Sentinel column, instead of its being yet another rehearsal of the now-familiar conservative Republican talking points.

Speaking of the relatively miniscule number of cases where the Supreme Court accepted an appeal from one of Sotomayor's decisions, the Court will shortly rule on Ricci v. DeStefano, the celebrated firefighter "discrimination" case out of New Haven, CT.

The case has inspired some of the most ridiculously incoherent and ill-informed commentary from miscellaneous conservative Republicans, who normally demand that judges defer unwaveringly to the "will of the people," as expressed by statutory language and promulgated by the executive branch through administrative law.

That is what Sotomayor and the other judges did, in determining that New Haven scrupulously and in good faith adhered to the requirements of federal law. Suddenly and with suspicious convenience, doing so is practically grounds for impeachment.

Talk about your political assumptions.

In the event that Sotomayor and the Second Circuit are reversed, and barring any earth shattering upheaval of federal affirmative action policy — a.k.a. "judicial activism" — the district judge who originally ruled in Ricci will likely be admonished for not according due weight to a certain set of evidentiary facts presented in the initial lawsuit.

The Court's conservative judges shall accomplish this by enforcing judicial policy, policy fabricated by conservative judges and today reiterated and perhaps even strengthened by conservative judges.

And conservative Republicans will applaud heartily, even as they continue to deride Sonia Sotomayor for informally and impertinently alluding to the very process about to be revealed.