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
Showing posts sorted by relevance for query Prosser. Sort by date Show all posts
Showing posts sorted by relevance for query Prosser. Sort by date Show all posts
October 30, 2009
August 31, 2011
Prosser, J., did not participate.
Apparently there's been a flurry of motions in the case of Wisconsin Prosperity Network v. Myse, a challenge to a campaign finance disclosure rule propagated by the State Government Accountability Board, which oversees Wisconsin's electoral processes.* This space noted back in April that the petitioners' lead attorney, ubiquitous Republican activist James Troupis, was hired by Justice David Prosser to defend the latter's 0.46% margin of victory over challenger JoAnne Kloppenburg.
Four months later, the local press finally took notice, contacted some experts in legal ethics, who unanimously cast Prosser's continued participation in the case in a dim light, and Prosser was forced to issue a public statement and formally request of the parties their views as to whether or not he should disqualify himself from hearing the case (oral arguments are scheduled for next Tuesday, September 6). It appears WEAC, the teachers' union that was granted intervenor status on behalf of the respondent Government Accountability Board, filed a motion requesting Prosser's disqualification, which Mr. Troupis countered.
On August 18 the court ordered all of the parties to respond to a set of ten questions, the tenor and substance of which might incline one to believe there is a strong possibility that this case — which is an original action, meaning the petitioners went straight to the State Supreme Court, bypassing both the trial court and the court of appeals — will be dismissed. Justice Prosser did not participate in that August 18 order.
And yesterday the court granted WEAC's request to respond to Troupis's response on the question of Justice Prosser's recusal. Obviously Prosser did not participate in that order either but another component to yesterday's directive addressed the continuing written arguments pursuant to the August 18 order; that is, the substantive elements of the case as opposed to the ancillary question of Prosser's participation.
So while Justice Prosser has made no announcement** as to whether he'll sit in on Troupis's presentation next Tuesday, he's at least in some sort of holding pattern with respect to taking part in the court's continuing deliberations. And since the parties now have until this Friday at 5:00 p.m. to file their next collection of papers, we probably won't hear anything of Justice Prosser's disqualification until nearly the last minute.
The present action dates back one year, when Justice Prosser and his mutual admirer Mike Gableman issued a temporary injunction against the Government Accountability Board prior to their determining whether the Supreme Court even had any judicial authority at all over the case.
I admit I'm far from the sharpest knife in the drawer, but that's still a bit of a head-scratcher to me, injunctive power without the jurisdiction.
See also: Koch outfit friend of the [Wisconsin Supreme] court
* Gordon Myse is a former member of the Board and in fact weighed in on the recusal controversy, telling the Milwaukee Journal-Sentinel's Patrick Marley, "I think the fact that [Prosser's election] lawyer appeared in a case before him is objectively a conflict in almost anybody's book."
** Contrary to last week's ill-sourced Think Progress assertion. In the spirit of "Know thine enemy," you'd expect TP to have apprehended the fact it was relying on another one of these right-wing "news services" — in this case a Chamber of Commerce front — but it was not to be.
Four months later, the local press finally took notice, contacted some experts in legal ethics, who unanimously cast Prosser's continued participation in the case in a dim light, and Prosser was forced to issue a public statement and formally request of the parties their views as to whether or not he should disqualify himself from hearing the case (oral arguments are scheduled for next Tuesday, September 6). It appears WEAC, the teachers' union that was granted intervenor status on behalf of the respondent Government Accountability Board, filed a motion requesting Prosser's disqualification, which Mr. Troupis countered.
On August 18 the court ordered all of the parties to respond to a set of ten questions, the tenor and substance of which might incline one to believe there is a strong possibility that this case — which is an original action, meaning the petitioners went straight to the State Supreme Court, bypassing both the trial court and the court of appeals — will be dismissed. Justice Prosser did not participate in that August 18 order.
And yesterday the court granted WEAC's request to respond to Troupis's response on the question of Justice Prosser's recusal. Obviously Prosser did not participate in that order either but another component to yesterday's directive addressed the continuing written arguments pursuant to the August 18 order; that is, the substantive elements of the case as opposed to the ancillary question of Prosser's participation.
So while Justice Prosser has made no announcement** as to whether he'll sit in on Troupis's presentation next Tuesday, he's at least in some sort of holding pattern with respect to taking part in the court's continuing deliberations. And since the parties now have until this Friday at 5:00 p.m. to file their next collection of papers, we probably won't hear anything of Justice Prosser's disqualification until nearly the last minute.
The present action dates back one year, when Justice Prosser and his mutual admirer Mike Gableman issued a temporary injunction against the Government Accountability Board prior to their determining whether the Supreme Court even had any judicial authority at all over the case.
I admit I'm far from the sharpest knife in the drawer, but that's still a bit of a head-scratcher to me, injunctive power without the jurisdiction.
See also: Koch outfit friend of the [Wisconsin Supreme] court
* Gordon Myse is a former member of the Board and in fact weighed in on the recusal controversy, telling the Milwaukee Journal-Sentinel's Patrick Marley, "I think the fact that [Prosser's election] lawyer appeared in a case before him is objectively a conflict in almost anybody's book."
** Contrary to last week's ill-sourced Think Progress assertion. In the spirit of "Know thine enemy," you'd expect TP to have apprehended the fact it was relying on another one of these right-wing "news services" — in this case a Chamber of Commerce front — but it was not to be.
April 5, 2011
Mike Plaisted for Wisconsin Supreme Court
If you've been following this little corner of the internets for awhile, you know it gets geared up — almost to the point of obsession — during State Supreme Court elections. Not this time around. But I've been paying close attention, albeit with less interest than horror.
I don't think it's the wisest idea among alternatives to subject positions on the court to popular elections, and this one is proving why, because among those alternatives is merit selection, and the related events unfolding are turning merit selection on its head.
While Assistant Attorney General JoAnne Kloppenburg is certainly qualified to the position well beyond the de minimis requirements, if you strip away all the horse hockey that's been played out by all manner of individual and groupthink third-party entities on both sides of the partisan divide — and by the candidates themselves, occasionally — and evaluate the two hopefuls on those merits which are most relevant to consider, then Justice Prosser wins hands-down.
The reason I say this is because I have heard barely a statement from Atty. Kloppenburg about any decisions of a court or any legal doctrine or any judicial philosophy whatsoever, apart from the ad nauseam boilerplate, "I promise to be fair." Perhaps she is a scholar, but she's produced no indication of scholarship and she's been presented with innumerable opportunities and declined — putting it politely — to do so at each. One can't simply move ahead and assume scholarship.
It's nothing personal — as I say, I would expect her to perform admirably — and I don't blame her for playing it safe by not getting into the various meats and the sundry three-pronged potatoes, if that is what she's doing, but I'm just not hearing from a Supreme Court candidate what I should expect to hear, which is, something more than a superficial familiarity with the core businesses of the court: absorbing, expounding, and developing legal doctrine.
And when I heard from the candidate, as we did during the jockeying for position leading to the February primary that Atty. Kloppenburg sought to make an issue of the Mike Gableman imbroglio but then admitted she hadn't even reviewed all the briefs in Gableman's ethics case (and there aren't all that many of them) I became suspicious, and unfortunately that suspicion has never been sufficiently allayed.
So to begin with, there's that.
Next, there is this: The currently popular portrayal of Justice Prosser as some kind of unhinged misogynist nutcase is patently ridiculous.
I have met him and I have spoken with him, and you couldn't ask to meet or speak with a kinder and more considerate fellow. I have also heard him speak in a professional — as opposed to electioneering — context, reviewing the cases from the court's previous terms.
The guy clearly knows his stuff and has given a lot of thought to that stuff over the course of a lot of years. Whether your humble correspondent agrees with his methods or his results is of no moment to any evaluation of Justice Prosser's knowledge and legal acumen. He's unquestionably got the judge-chops. (That's understatement.)
I love me some Scot Ross and OWN, but if all you can find to prove up the proposition that the incumbent is the temperamental equivalent of Genghis Khan are clips of the justice getting totally justifiably angry with Mike McCabe when the latter strode into the justice's courtroom fresh from lying recklessly about the justice in some blog-opinion pieces, then you can't have much of a case.
If I was Justice Prosser, that video would have been of me chasing Mike McCabe around the gallery with a Super Soaker or having one of those theatrical 10-ton weights lowered quickly onto his head as he stood at the lectern. So, more power to Prosser on that account.
It's been revealed that Justice Prosser evinced a malicious disrespect for the Chief Justice, and for her office. In no way am I defending that — it's indefensible — but that there court has some serious issues and Justice Prosser at least once lost his sh*t as many of us all-too-human beings do on occasion. For anyone's edification, those serious issues are adequately preserved in the public record.
All of the court's open administrative hearings are archived at WisconsinEye, and there are many moments of viciousness, just less overt than Prosser's total biotch-explosion. (Easily the most resentfully sarcastic and disrespectful toward the Chief Justice is Mike Gableman.) So it's hardly surprising Justice Prosser blew his stack; what's unacceptable is the manner in which he blew it.
However the presentation of Justice Prosser as a "moderate" and a swing vote on the court is almost equally misleading. There are a couple of ways to approach a court's term of cases: one as a scholar of the law, and one as a political scientist. Ideally, you approach the court's body of work as both. Simply compiling cases according to percentages of who sided with whom can be wildly inaccurate. We saw a good example of this in the hopelessly unconvincing Journal Communications, Inc.* endorsement of Prosser over the weekend.
Those cited percentages lend little credence to the ends to which they were put by Journal Communications, Inc. (although they're well understood by their compiler, David Ziemer, who incidentally is one of the sharper legal writers around, despite having the U.S. Reports citation to Lochner v. New York tattooed on his right bicep**).
For one thing the percentages don't embody a sufficient recounting because some of those majorities are unanimous. You have to look first to the split decisions, then more closely at which justices are concurring and dissenting with each other, and on what grounds, and then especially closely to the results and the reasoning that obtained those results in each individual case to determine the particular questions under consideration and the connexion between the reasoning and the results. And then you make your evaluation of the data based on the legal and poli sci principles you've studied.
Having performed those moves to a not inconsiderable extent over the years, I think it's fair to say that Justice Prosser is a pretty conservative judge, but in the political sense. That is, his results are often politically conservative but his methods are not judicially conservative. That's where I get a little suspicious, and I say this as a fan of Clarence Thomas who, for whatever else you can say about the man — and there is plenty — is consistent in his methods.***
Justice Prosser, for example, has joined an opinion of Gableman's purported to find within the First Amendment's Free Exercise of Religion Clause the right to fire employees in blatant violation of age discrimination law, and in contravention of court orders from magistrates right up to and including the court of appeals, without once explaining — de novo, as a true judicial conservative should and would have — how on whatever specified god's green earth firing employees is a free exercise of religion in the first instance.
That's not judicial conservatism, but that is political conservatism.
A conservative begins with the Constitution, she doesn't set off on some meandering and merely persuasive detour throughout the circuit courts of Delaware and New Mexico and then wind up back somewhere near the Constitution because Judge So-and-so with jurisdiction over Jefferson Parish, LA apparently held as such.
More recently Justice Prosser, again in full concert with Gableman, literally rewrote the Wisconsin constitution in order to enjoin a party to a case even before the Supreme Court had decided to take jurisdiction of that same case. And they didn't present a compelling reason to do so; they couldn't have, simply for the fact there are compelling reasons why the constitution does not mean what they had to insert an entirely new phrase into it to make it mean. That's not judicial conservatism, but that is political conservatism.
Justice Prosser, before Gableman's time but together with Justice Roggensack and with Justice Ziegler's ideological predecessor Justice Wilcox, endorsed a ludicrously unconstitutional amendment to the State's criminal procedural framework that handed over to the executive branch of State government an impermissibly unilateral control over a defendant's life, liberty, and property. That's not judicial conservatism, that's political conservatism.
And Justice Prosser produced from disturbing the thin air by waving a whole cloth at it an exception to Wisconsin's concealed carry law that the text of the statutes in nowise authorized or even implied. That's not judicial conservatism but it is political conservatism.
Then there's the recusal controversies, where Justice Prosser, once again together with the present hard-right bloc, adopted verbatim rules drafted by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, two archetypal business lobbies. Now as an appearance of impropriety, the circumstances are troubling. However, just because the rules were drafted by corporate concerns doesn't make them bad rules. To so conclude is fallacious.
But the legitimate and legitimately remarkable trouble with the rules for judicial recusal is that they were submitted and adopted verbatim and then the drafters — not the adopting justices — noticed that the rules caused an "absurd" — to coin a legal term of art — result within the framework of the code of judicial ethics. So only by their own detection of the discrepancy and by their own volition, the drafters had to resubmit the rules for (once again, verbatim) re-adoption by the four conservative justices.
Awkward! Alright. I could go on, but I already have.
Thus is my view of Justice Prosser that he is less a judicial conservative than a political conservative, and I'm not saying there is anything inherently wrong with that. It's a legitimate position. But just be aware of it. Of course this is merely my opinion, but I like to think that, as a reasonably diligent student of the law and of the court, I bring at least a little bit of credibility to support it.
You may disagree, and that's cool too.
In conclusion, however, the popular consensus in this Great State of Wisconsin appears to indicate the favoring of Supreme Court elections. So I accept that and incorporate it into my reasoning. Although personally I'd rather not do that, the supporters of judicial elections — including Justice Prosser himself — force me to.
And it is in that political spirit that I completely and wholeheartedly support without reservation the efforts of the left to shift the political balance on the court, if only for one very simple reason: What Justice Gableman, WMC, and their other fellow deceitful travelers did to the popular reputation of former Justice Louis Butler throughout 2007-08 was repulsive, and almost unspeakably vile.
I have never met, nor heard from, any lawyer or judge who does not hold Louis Butler in the highest professional and personal regard and if you think Justice Prosser is getting unfairly portrayed this time around, that is nothing compared to the disgraceful calumnies, both overt and subtle, that the political right heaped on Justice Butler.
And the worst of the perpetrators was none other than our Michael Gableman, who violated the aforementioned code of judicial ethics and then himself and by his counsel fought arrogantly in defense of the indefensible, taking no prisoners along the way.
So to the extent that electing JoAnne Kloppenburg negates whatever power Gableman wields on the court — and there's no question that her election would effectively mitigate his influence to a considerable degree — I say, go for it, all you young punks and all you union thugs and all you dirty co-op hippies. You have my seal of approval.
More importantly, while you can argue 'til you're red-State-in-the-face that it's inappropriate to topple Justice Prosser because Scott Walker and Scott Fitzgerald and J.B. Van Hollen are erratic and reckless custodians of the body politic and I would probably agree that it is inappropriate, I'm helpless because the present politicization of the court is directly the outcome of those who support judicial elections.
Which is to say, in other words: Hey, I'd really like to come to your assistance, but you won't let me. And which is why I today endorse my bestest buddy Mike Plaisted**** for the Wisconsin Supreme Court.
Selah.
* Style note: This blog will hereafter attribute opinion pieces in the Milwaukee Journal-Sentinel to the corporate entity, Journal Communications, Inc. Straight news reporting — such as it exists anywhere — will continue to be citated to the Journal-Sentinel.
** Mercifully I have no personal knowledge of this statistic; Counselor Ziemer admitted to it on the internets.
*** The recent kerfuffles regarding Mrs. Virginia Thomas are at once amusingly abhorrent and abhorrently amusing, but there's no substance there. Nothing would cause Justice Thomas to vary from his inexorably reductionist pursuits. If anybody out there is seriously expecting Clarence Thomas to stand aside from some Tea interested-Party case, then you are high, as the kids say.
**** Also, because: "He is a good writer." (Very good, in fact.)
I don't think it's the wisest idea among alternatives to subject positions on the court to popular elections, and this one is proving why, because among those alternatives is merit selection, and the related events unfolding are turning merit selection on its head.
Groupthink
While Assistant Attorney General JoAnne Kloppenburg is certainly qualified to the position well beyond the de minimis requirements, if you strip away all the horse hockey that's been played out by all manner of individual and groupthink third-party entities on both sides of the partisan divide — and by the candidates themselves, occasionally — and evaluate the two hopefuls on those merits which are most relevant to consider, then Justice Prosser wins hands-down.
The reason I say this is because I have heard barely a statement from Atty. Kloppenburg about any decisions of a court or any legal doctrine or any judicial philosophy whatsoever, apart from the ad nauseam boilerplate, "I promise to be fair." Perhaps she is a scholar, but she's produced no indication of scholarship and she's been presented with innumerable opportunities and declined — putting it politely — to do so at each. One can't simply move ahead and assume scholarship.
It's nothing personal — as I say, I would expect her to perform admirably — and I don't blame her for playing it safe by not getting into the various meats and the sundry three-pronged potatoes, if that is what she's doing, but I'm just not hearing from a Supreme Court candidate what I should expect to hear, which is, something more than a superficial familiarity with the core businesses of the court: absorbing, expounding, and developing legal doctrine.
Imbroglio
And when I heard from the candidate, as we did during the jockeying for position leading to the February primary that Atty. Kloppenburg sought to make an issue of the Mike Gableman imbroglio but then admitted she hadn't even reviewed all the briefs in Gableman's ethics case (and there aren't all that many of them) I became suspicious, and unfortunately that suspicion has never been sufficiently allayed.
So to begin with, there's that.
Next, there is this: The currently popular portrayal of Justice Prosser as some kind of unhinged misogynist nutcase is patently ridiculous.
I have met him and I have spoken with him, and you couldn't ask to meet or speak with a kinder and more considerate fellow. I have also heard him speak in a professional — as opposed to electioneering — context, reviewing the cases from the court's previous terms.
The guy clearly knows his stuff and has given a lot of thought to that stuff over the course of a lot of years. Whether your humble correspondent agrees with his methods or his results is of no moment to any evaluation of Justice Prosser's knowledge and legal acumen. He's unquestionably got the judge-chops. (That's understatement.)
Super Soaker
I love me some Scot Ross and OWN, but if all you can find to prove up the proposition that the incumbent is the temperamental equivalent of Genghis Khan are clips of the justice getting totally justifiably angry with Mike McCabe when the latter strode into the justice's courtroom fresh from lying recklessly about the justice in some blog-opinion pieces, then you can't have much of a case.
If I was Justice Prosser, that video would have been of me chasing Mike McCabe around the gallery with a Super Soaker or having one of those theatrical 10-ton weights lowered quickly onto his head as he stood at the lectern. So, more power to Prosser on that account.
It's been revealed that Justice Prosser evinced a malicious disrespect for the Chief Justice, and for her office. In no way am I defending that — it's indefensible — but that there court has some serious issues and Justice Prosser at least once lost his sh*t as many of us all-too-human beings do on occasion. For anyone's edification, those serious issues are adequately preserved in the public record.
A total biotch-explosion
All of the court's open administrative hearings are archived at WisconsinEye, and there are many moments of viciousness, just less overt than Prosser's total biotch-explosion. (Easily the most resentfully sarcastic and disrespectful toward the Chief Justice is Mike Gableman.) So it's hardly surprising Justice Prosser blew his stack; what's unacceptable is the manner in which he blew it.
However the presentation of Justice Prosser as a "moderate" and a swing vote on the court is almost equally misleading. There are a couple of ways to approach a court's term of cases: one as a scholar of the law, and one as a political scientist. Ideally, you approach the court's body of work as both. Simply compiling cases according to percentages of who sided with whom can be wildly inaccurate. We saw a good example of this in the hopelessly unconvincing Journal Communications, Inc.* endorsement of Prosser over the weekend.
Those cited percentages lend little credence to the ends to which they were put by Journal Communications, Inc. (although they're well understood by their compiler, David Ziemer, who incidentally is one of the sharper legal writers around, despite having the U.S. Reports citation to Lochner v. New York tattooed on his right bicep**).
Connexionz
For one thing the percentages don't embody a sufficient recounting because some of those majorities are unanimous. You have to look first to the split decisions, then more closely at which justices are concurring and dissenting with each other, and on what grounds, and then especially closely to the results and the reasoning that obtained those results in each individual case to determine the particular questions under consideration and the connexion between the reasoning and the results. And then you make your evaluation of the data based on the legal and poli sci principles you've studied.
Having performed those moves to a not inconsiderable extent over the years, I think it's fair to say that Justice Prosser is a pretty conservative judge, but in the political sense. That is, his results are often politically conservative but his methods are not judicially conservative. That's where I get a little suspicious, and I say this as a fan of Clarence Thomas who, for whatever else you can say about the man — and there is plenty — is consistent in his methods.***
Justice Prosser, for example, has joined an opinion of Gableman's purported to find within the First Amendment's Free Exercise of Religion Clause the right to fire employees in blatant violation of age discrimination law, and in contravention of court orders from magistrates right up to and including the court of appeals, without once explaining — de novo, as a true judicial conservative should and would have — how on whatever specified god's green earth firing employees is a free exercise of religion in the first instance.
That's not judicial conservatism, but that is political conservatism.
Judge So-and-so
A conservative begins with the Constitution, she doesn't set off on some meandering and merely persuasive detour throughout the circuit courts of Delaware and New Mexico and then wind up back somewhere near the Constitution because Judge So-and-so with jurisdiction over Jefferson Parish, LA apparently held as such.
More recently Justice Prosser, again in full concert with Gableman, literally rewrote the Wisconsin constitution in order to enjoin a party to a case even before the Supreme Court had decided to take jurisdiction of that same case. And they didn't present a compelling reason to do so; they couldn't have, simply for the fact there are compelling reasons why the constitution does not mean what they had to insert an entirely new phrase into it to make it mean. That's not judicial conservatism, but that is political conservatism.
Justice Prosser, before Gableman's time but together with Justice Roggensack and with Justice Ziegler's ideological predecessor Justice Wilcox, endorsed a ludicrously unconstitutional amendment to the State's criminal procedural framework that handed over to the executive branch of State government an impermissibly unilateral control over a defendant's life, liberty, and property. That's not judicial conservatism, that's political conservatism.
Deeply disturbance
And Justice Prosser produced from disturbing the thin air by waving a whole cloth at it an exception to Wisconsin's concealed carry law that the text of the statutes in nowise authorized or even implied. That's not judicial conservatism but it is political conservatism.
Then there's the recusal controversies, where Justice Prosser, once again together with the present hard-right bloc, adopted verbatim rules drafted by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, two archetypal business lobbies. Now as an appearance of impropriety, the circumstances are troubling. However, just because the rules were drafted by corporate concerns doesn't make them bad rules. To so conclude is fallacious.
But the legitimate and legitimately remarkable trouble with the rules for judicial recusal is that they were submitted and adopted verbatim and then the drafters — not the adopting justices — noticed that the rules caused an "absurd" — to coin a legal term of art — result within the framework of the code of judicial ethics. So only by their own detection of the discrepancy and by their own volition, the drafters had to resubmit the rules for (once again, verbatim) re-adoption by the four conservative justices.
Awkward! Alright. I could go on, but I already have.
Thus is my view of Justice Prosser that he is less a judicial conservative than a political conservative, and I'm not saying there is anything inherently wrong with that. It's a legitimate position. But just be aware of it. Of course this is merely my opinion, but I like to think that, as a reasonably diligent student of the law and of the court, I bring at least a little bit of credibility to support it.
You may disagree, and that's cool too.
Forcible
In conclusion, however, the popular consensus in this Great State of Wisconsin appears to indicate the favoring of Supreme Court elections. So I accept that and incorporate it into my reasoning. Although personally I'd rather not do that, the supporters of judicial elections — including Justice Prosser himself — force me to.
And it is in that political spirit that I completely and wholeheartedly support without reservation the efforts of the left to shift the political balance on the court, if only for one very simple reason: What Justice Gableman, WMC, and their other fellow deceitful travelers did to the popular reputation of former Justice Louis Butler throughout 2007-08 was repulsive, and almost unspeakably vile.
I have never met, nor heard from, any lawyer or judge who does not hold Louis Butler in the highest professional and personal regard and if you think Justice Prosser is getting unfairly portrayed this time around, that is nothing compared to the disgraceful calumnies, both overt and subtle, that the political right heaped on Justice Butler.
Punks, thugs, hippies on your marks
And the worst of the perpetrators was none other than our Michael Gableman, who violated the aforementioned code of judicial ethics and then himself and by his counsel fought arrogantly in defense of the indefensible, taking no prisoners along the way.
So to the extent that electing JoAnne Kloppenburg negates whatever power Gableman wields on the court — and there's no question that her election would effectively mitigate his influence to a considerable degree — I say, go for it, all you young punks and all you union thugs and all you dirty co-op hippies. You have my seal of approval.
More importantly, while you can argue 'til you're red-State-in-the-face that it's inappropriate to topple Justice Prosser because Scott Walker and Scott Fitzgerald and J.B. Van Hollen are erratic and reckless custodians of the body politic and I would probably agree that it is inappropriate, I'm helpless because the present politicization of the court is directly the outcome of those who support judicial elections.
Which is to say, in other words: Hey, I'd really like to come to your assistance, but you won't let me. And which is why I today endorse my bestest buddy Mike Plaisted**** for the Wisconsin Supreme Court.
Selah.
* Style note: This blog will hereafter attribute opinion pieces in the Milwaukee Journal-Sentinel to the corporate entity, Journal Communications, Inc. Straight news reporting — such as it exists anywhere — will continue to be citated to the Journal-Sentinel.
** Mercifully I have no personal knowledge of this statistic; Counselor Ziemer admitted to it on the internets.
*** The recent kerfuffles regarding Mrs. Virginia Thomas are at once amusingly abhorrent and abhorrently amusing, but there's no substance there. Nothing would cause Justice Thomas to vary from his inexorably reductionist pursuits. If anybody out there is seriously expecting Clarence Thomas to stand aside from some Tea interested-Party case, then you are high, as the kids say.
**** Also, because: "He is a good writer." (Very good, in fact.)
February 10, 2011
Charlie Sykes: Justice Prosser is a political phony
"Follow the logic."— Ancient WISGOP saying
Hypocrisy, Count I:
Plus two former executive branch officials — one is the ridiculously partisan operative Margaret Farrow — both of whom are Republicans.
Verdict: Prosser FTW.
Hypocrisy, Count II:
Verdict: Prosser FTW.
Hypocrisy, Count III:
Yet only days later, Justice Prosser told the same interviewer:
What he meant was he was not only a member of the Republican Party, he was a Republican legislator in the Wisconsin State Assembly for 18 years, including six as minority leader and two as speaker.
Moreover, exactly as fits Charlie Sykes & Co.'s groundless allegations of "political phoniness" and hypocrisy against Atty. Stephens, Justice Prosser went on to disassociate himself from those former political affiliations for the purposes of fair and impartial judging.
And rightly so, to the equal credit of both candidates.
Therefore those affirmations of impartiality made by both Justice Prosser and Atty. Stephens are identical, the only difference being Prosser having raised the issue without being urged to do so.
"Gone out of his way," to coin a phrase.
Verdict: Prosser FTW.
Finally:
It's abundantly clear who's pushing the dishonesty around here.
* a.k.a. the Fairness Doctrine.
** He also gave $500 to Shirley Abrahamson, which anybody who witnessed his fingerpointing mini-tirade toward the Chief Justice at last week's open administrative hearing might imagine he regrets.
Three more contributions totaling $650 were dispensed throughout 1997 and 1998 to former Republican Governor Tommy Thompson. Thompson appointed Prosser to the Supreme Court in late 1998.
The source for these figures is the same one as Sykes's "good catch."
Stephens has gone out of her way to define herself as the "open-minded" candidate . . . Her self-proclaimed "open mind" and "unbiased" approach ring hollow when viewed in the larger context of her actions. — Thus sayeth "a new group in town"Here's our medium wave squawker calling Wisconsin Supreme Court candidate Marla Stephens "a political phony" because "a new group in town" has brought some really serious charges of hypocrisy! "Good catch," enthuses the local wing-nut "blogfather." Let's examine the record, before the EPA adds Sykes to its schedule of air pollutants.*
Hypocrisy, Count I:
Stephens released the names of thirteen former and current state legislators who have endorsed her campaign. All are Democrats including Joe Wineke, former Chair of the Wisconsin Democratic Party.It's a pity neither Charlie Sykes nor his "new group in town" checked Justice David Prosser's own website, which lists endorsements from dozens (75 to be exact) of elected officials. Every single one of them is a Republican (including some real dandies, like Glenn Grothman).
Plus two former executive branch officials — one is the ridiculously partisan operative Margaret Farrow — both of whom are Republicans.
Verdict: Prosser FTW.
Hypocrisy, Count II:
Since 1999, Stephens has contributed $2,875 to Wisconsin political campaigns. All of Stephens' contributions have been to Democratic and liberal candidates.In fact only $1,725 of that, in increments no larger than $100, was to candidates running for partisan offices. Meanwhile Justice Prosser was donating $3,150 to "Republican and conservative candidates."**
Verdict: Prosser FTW.
Hypocrisy, Count III:
She describes herself as "a member of the Democratic party, on and off, throughout [her] life."She did say that, but she wasn't "describing herself" as such, she was responding to Frederica Freyberg's direct question, "What is your [political affiliation]." That phony hypocrite! — answering truthfully.
Yet only days later, Justice Prosser told the same interviewer:
Well, let me say this. I have the most partisan background of any member of the court.And indeed Justice Prosser was positively advancing this self-description of his own volition, as his averment was in response to Ms. Freyberg's inquiry, "What is your judicial philosophy."
What he meant was he was not only a member of the Republican Party, he was a Republican legislator in the Wisconsin State Assembly for 18 years, including six as minority leader and two as speaker.
Moreover, exactly as fits Charlie Sykes & Co.'s groundless allegations of "political phoniness" and hypocrisy against Atty. Stephens, Justice Prosser went on to disassociate himself from those former political affiliations for the purposes of fair and impartial judging.
And rightly so, to the equal credit of both candidates.
Therefore those affirmations of impartiality made by both Justice Prosser and Atty. Stephens are identical, the only difference being Prosser having raised the issue without being urged to do so.
"Gone out of his way," to coin a phrase.
Verdict: Prosser FTW.
Finally:
Media Trackers is a Wisconsin-based organization dedicated to media accountability, government transparency, and quality fact-based journalism.Not quite. Rather, this "new group in town" is dedicated to laughable, painfully amateurish drek. Which is right up Charlie Sykes's alley.
It's abundantly clear who's pushing the dishonesty around here.
* a.k.a. the Fairness Doctrine.
** He also gave $500 to Shirley Abrahamson, which anybody who witnessed his fingerpointing mini-tirade toward the Chief Justice at last week's open administrative hearing might imagine he regrets.
Three more contributions totaling $650 were dispensed throughout 1997 and 1998 to former Republican Governor Tommy Thompson. Thompson appointed Prosser to the Supreme Court in late 1998.
The source for these figures is the same one as Sykes's "good catch."
April 8, 2011
Famous last words and a bipartisan laughing stock
"Waukesha County could not save Prosser."That would be yours truly, tapping away one recent Wednesday morning. How morbidly wrong your scribe now appears to be.
I was correct at the time, however, around the previous midnight hour when overwhelmingly Republican Waukesha County finally reported 100% [sic] of its election returns (WaukCo. had been sitting on the AP's results page at 25% for a couple of nailbiting hours).
Armed with an MS Excel file of February's primary results* and comparing in realtime how Assistant Attorney General JoAnne Kloppenburg was improving her general election score dramatically in county after Wisconsin county (every one of which — contra Scott Walker's ludicrous averments, made now even more so in the wake of a rogue election official's enormous bungle — was not Dane County) it was rapidly becoming apparent that the election would hinge on the ferocity of Kloppenburg's clobbering in Waukesha Co. (for the per se clobbering was never in doubt). Sure enough as Tuesday evening turned to Wednesday morning it had grown clear enough that Prosser's Wauk-klopbering was not severe enough to carry the State.
Forfeit a couple Hun
Kloppenburg had previously accomplished her initially required milestone event, reversing Milwaukee County from 54-46 Prosser to roughly 55-45 K-Burg, the 100% [sic] returns from Waukesha County only put Prosser ahead by a couple of hundred votes and based on what was left and Kloppenburg's rising fortunes throughout the rest of the State's most populous counties,** Election Central here reckoned Justice Prosser would quickly forfeit those couple hun, and remain behind the point of no returns, and start packing his bags for July 31.
Which is pretty much exactly what happened until Kathy Nickolaus, a WaukCo. Republican Party True Believer with an apparently lengthy and documented history of extraordinary incompetence, suddenly "discovered" circa 14K ballots from Brookfield yesterday afternoon.
Now it's gotten so bad somebody's had to retain Ben Ginsberg, Esq., of Washington, DC (favorite place in the whole wide world of the "Tea Party" crowd, courted early and often by Justice Prosser, who today happens to be the somebody that's retained Mr. Ginsberg).
Separation of utterances
You may remember one Brian Nemoir, Justice David Prosser's campaign manager, who uttered the now-infamous December 8, 2010 statement of compliance pledging Prosser's fealty to the recently-elected GOP legislative and executive branches of government.
In my view Prosser should have loudly and forcefully jettisoned Nemoir on December 9, 2010, perhaps by figuratively having him rolled over by one of Scott Walker's old federal stimulus-funded, Canadian-made Milwaukee County Transit System motorcoaches.
Instead, Prosser distanced himself over time from the pledge to varying degrees, for the longest while saying little more than, 'Those aren't the words I would have used,' which struck me as particularly unsatisfying because if there's anybody who knows how many different ways there are to say the exact same thing, it's a lawyer.
The Prosser campaign's December pledge of fealty to the Fitz Van Walker regime remained firmly affixed to the candidate's hide right up until two days before the election, when Journal Communications, Inc. ran it all by us one more time in the course of its incoherent endorsement of the politically conservative Supreme Court justice.
Waukesha ha ha
"Waukesha County" is a punchline among liberals — its mere mention invokes the equivalent velocity of eye-rolling as, for example, does "Charlie Sykes" — and even candidate Kloppenburg made a Waukesha County crack at an appearance in Shorewood (an administrative suburb of Milwaukee but in fact an integral part of Milwaukee).
Funny thing is, it's even a punchline among conservative Republicans.
During one especially candid conversation with a Dane County Republican (that would be yer proverbial hen's tooth) official from a couple of weeks ago (I don't have the link handy; I'll dig it up and post it later) Nemoir's mal-spelled renunciation of the bedrock American constitutional doctrine of separation of powers presented itself.
Quipped Justice Prosser: 'Well I guess there's just a little too much Waukesha County in Brian Nemoir.' Yep, we are knowing the feeling.
* Why the expert wag professors and lawyers insist on comparing Tuesday's results with last November's — or those of the 2008 presidential election, fer the luvva gawd — is beyond your humble correspondent's ken. The political landscape has been altered so substantively by Fitz Van Walker's sundry lawless antics that those prior contests are all but meaningless to the present one. The most directly relevant and of most recent and timely vintage of temperature-taking of the public's attitude toward the Wisconsin Supreme Court general election is, obviously, the Wis. S. Ct. primary election. Or it could be also that the local press has roughly only two of each expert wag professor and lawyer in its desk Rolodex.
More likely the latter, as The Truth is Out Here, and not necessarily anywhere within Journal Communications, Inc. County and environs.
** And a touch of intuition, the poli scientist's ancient Chinese secret.
eta: Jay Bullock debunks once again the Opéra Bouffe that is WPRI.
September 12, 2011
Wisconsin Supreme Court on civility and public trust
This Thursday, the Wisconsin Supreme Court will convene in public for a conference devoted to, among other things, Civility and Public Trust and Confidence. The court has been in the news lately because some of its members don't get along too well. Some observers have wondered why.
Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."
Around 7:20, Gableman gets to insulting his fellow justices:
This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.
So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.
And ironic accusations they are, considering Gableman's own behavior.
Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:
More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).
Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.
This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.
Still wondering.
* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.
Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."
Around 7:20, Gableman gets to insulting his fellow justices:
A judge or a justice should not misuse their position, their office, their temporary office of the court, to supplant or replace the law with their personal, political, or social views. I saw that happening in Madison four years ago when I decided way up in Burnett County that it wasn't me who was failing to understand what Shirley Abrahamson, Ann Walsh Bradley, Pat Crooks and Loophole Louie [sic — it's Louis, rhymes with Lewis; as you can see and hear, Gableman is unrepentant of his judicial ethics violations] Butler were doing to the law [laughter]. It was they who were failing in their sacred vow to follow the law as written and not substitute their own political, social, and personal views for what they think the law ought to be. Thank you [applause].Notice how Gableman says "Thank you" before the applause starts.
This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.
So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.
And ironic accusations they are, considering Gableman's own behavior.
Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:
Former [Wisconsin] governors Tommy Thompson and Patrick Lucey, two who you probably cannot find with more divergent political views, are the co-chairmen of his campaign.Which is funny because just a couple of days later:
Lucey "resigned as honorary co-chair of Justice David Prosser's re-election campaign and endorsed his opponent, State Assistant Attorney General JoAnne Kloppenburg. Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," adding that "Prosser has lost that most crucial of characteristics for a Supreme Court Justice — as for any judge — even-handed impartiality." Lucey also cited Prosser's "disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."That's right, Prosser's own campaign chairman abandoned ship.*
More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).
Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.
This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.
Still wondering.
* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.
April 7, 2011
Wisconsin's GOP counties love Kloppenburg
Because #wiunion GTFOTV State-wide, is why
Contrary to Governor Scott K. Walker's absurdist claim that 'Wisconsin is divided between Madison and the rest of the State,'* Assistant Attorney General JoAnne Kloppenburg posted some of her biggest advances in Republican strongholds during the Supreme Court election on Tuesday. Walker also denies the election had anything to do with his disastrous legislative projects, which have attracted more civil lawsuits than a Chevrolet Corvair at a McDonald's drive-thru.
Meanwhile others among the more imaginative of the nut-right are attempting to forward the claim that incumbent Supreme Court Justice David Prosser was the victim of poor voter turnout in Republican-dominated counties. (They're also making utterly baseless charges of "voter fraud,"** but the Brawler can handle those.)
Then there's a bizarre item in the lefty Capital Times of all places, the less said about the better. T'aint no big deal, the piece's sources therewith assert, that the Fitz Van Walker administration just handed the Supreme Court to an army of motivated punks, thugs, slobs, and hippies,*** a spectacular political failure for the ages.
Those speluncean zanies
The only explanation I can come up with is that a feature expedition article for Spelunker's Quarterly made its way over to the Capital Times, in which local GOP mandarin Mark Jefferson spun so hard and drilled so far into Earth's crust he ran right into UW professor Howard Schweber down amongst the deepest strata of psychological denial.
It's funny because not too long ago, the local conservative intelligentsia, Journal Communications, Inc. products Charlie Sykes, Patrick McIlheran, and Rick Esenberg, were telling anybody within fearshot that incumbent Justice David Prosser would cake-walk back onto his politically conservative high chair, and so thoroughly convincing was his 55-point majority in the winter primary.
It might be recalled that on February 15, Scott Walker was just getting underway with his various assaults on the Wisconsin constitution and on the duly enacted laws of the State. In fact this space predicted that liberal success in the Supreme Court would be contingent on the degree Walker and his fellow desperadoes were inclined to test the patience of the good people of the Badger State.
Turns out them desperadoes was pretty darned inclined.
The February 15, 2011 primary
Prosser won the February 15 primary against three opponents: Kloppenburg, Assistant State Public Defender Marla Stephens, and Madison attorney Joel Winnig. In terms of political disposition, I don't believe there was anything to choose among the three candidates.
(This space had also recommended JoAnne Kloppenburg as the most politically viable to go against Prosser, as the wing-nut sleaze machine would have made mince meat out of Atty. Stephens, who has devoted her career to enforcing the Bill of Rights, and that is an unpardonable offense to conservatives, as we well learned in 2008.)
Indeed, Atty. Stephens almost immediately threw her wholehearted support behind Atty. Kloppenburg. As far as I know Atty. Winnig retreated to the shadows and endorsed no candidate. Nevertheless, it seems to me sound reasoning to treat the trio's primary vote in the aggregate. And thus did Justice Prosser win the State, 55-45.
And so did Kloppenburg and her energetic supporters have their work set to that gap-closing, and they did indeed succeed in clawing back Prosser's margin. How they did it is as plain as the Arabic numerals.
Gotcher numbers right cheer
Kloppenburg pulled off the biggest flip in Milwaukee Co., which went 54-46 to Prosser in the primary — about the same as his Statewide figures — to 57-43 in favor of Kloppenburg. She couldn't have won the election without turning that margin in particular. But on account of a disappointing turnout in Milwaukee and the slender overall margin of Kloppenburg's victory, she clearly couldn't have won on that accomplishment alone, and that is where the predominantly Republican territories throughout the State came to her rescue.
Since the February primary, Kloppenburg gained in 22 of the State's 24 largest counties, only dropping a couple points in Marathon Co., which went from 51-49 Prosser to 54-46, and Sheboygan Co., where Prosser profited by one, closing out Tuesday with a 63-37 romp.
More impressively, Kloppenburg added eight, five, and nine points respectively amongst the State's three most notorious**** Republican county-enclave-bunkers: Waukesha (3),***** Washington (7), and Ozaukee (14). In addition the AAG picked up six points in Racine Co. (5), ten in Jefferson Co. (18), 11 in Fond Du Lac Co. (16), and a startling 14 points in Winnebago Co. (8), where Kloppenburg choppenburg'd Prosser's margin from 66-34 in February to 52-48.
Kloppenburg Republicans FTW: WMC, AFP, WTF, LOL
Other of the more populous Justice Prosser-won counties where JoAnne Kloppenburg produced significant headway were: Dodge (19), 11 points.; Outagamie (6), 11 points.; Kenosha (12), nine points; Walworth (17), four points; and Wood (22), three points.
That is, all over the State, not just in Madison, and especially in counties otherwise heavily dominated by Republican voters.
So anybody who you catch peddling Republican Governor Scott Walker's terrified apologetica is handing you a phony bill of goods which must be rejected outright. When that guy tweets "Mmm. Burgers" or "O hai Scotty here look a sandwich kthxbai," the implied relaxation is a façade, 'cause there's a hellhound on your trail.
* "The 'backlash' is largely a Dane County phenomenon," rejoins Marquette professor of law and local right-wing media celebrity Rick Esenberg — who apparently never wearies of being almost irretrievably incorrect — and claims, without a scintilla of evidence, that "the Kloppenburg margin is driven almost entirely by votes in a county [Dane] that had become an ideological fever swamp ... "
Sidesplitting stuff, and just so, so wrong. And the guy has been on the radio and the teevee and the op-ed pages and the internets trafficking this and related nonsense nearly continuously lately.
It shocks the conscience, truly.
** Issuing from — who else — the medium wave jackanapes C. Sykes in tandem with the ludicrous Wall Street Journal pundit J. Fund.
*** Those aren't my epithets, those are actual conservative Republican epithets, perhaps most famously "slobs," which was coined by Assistant Majority Senate Leader Glenn Grothman, the Louie Gohmert of Wisconsin politics. However the author uses them here (just in case it wasn't obvious) as terms of endearment.
**** The three were the only three counties not swept by Chief Justice Shirley Abrahamson in the last State Supreme Court election of April, 2009, and proving once and for all, as the wing-nut never tires of not telling you, that Wisconsin absolutely will not abide a liberal judge.
***** The figures in parentheses represent the rank, by all 72 Wisconsin counties, in number of total votes cast on Tues., April 5.
Contrary to Governor Scott K. Walker's absurdist claim that 'Wisconsin is divided between Madison and the rest of the State,'* Assistant Attorney General JoAnne Kloppenburg posted some of her biggest advances in Republican strongholds during the Supreme Court election on Tuesday. Walker also denies the election had anything to do with his disastrous legislative projects, which have attracted more civil lawsuits than a Chevrolet Corvair at a McDonald's drive-thru.
Meanwhile others among the more imaginative of the nut-right are attempting to forward the claim that incumbent Supreme Court Justice David Prosser was the victim of poor voter turnout in Republican-dominated counties. (They're also making utterly baseless charges of "voter fraud,"** but the Brawler can handle those.)
Then there's a bizarre item in the lefty Capital Times of all places, the less said about the better. T'aint no big deal, the piece's sources therewith assert, that the Fitz Van Walker administration just handed the Supreme Court to an army of motivated punks, thugs, slobs, and hippies,*** a spectacular political failure for the ages.
Those speluncean zanies
The only explanation I can come up with is that a feature expedition article for Spelunker's Quarterly made its way over to the Capital Times, in which local GOP mandarin Mark Jefferson spun so hard and drilled so far into Earth's crust he ran right into UW professor Howard Schweber down amongst the deepest strata of psychological denial.
It's funny because not too long ago, the local conservative intelligentsia, Journal Communications, Inc. products Charlie Sykes, Patrick McIlheran, and Rick Esenberg, were telling anybody within fearshot that incumbent Justice David Prosser would cake-walk back onto his politically conservative high chair, and so thoroughly convincing was his 55-point majority in the winter primary.
It might be recalled that on February 15, Scott Walker was just getting underway with his various assaults on the Wisconsin constitution and on the duly enacted laws of the State. In fact this space predicted that liberal success in the Supreme Court would be contingent on the degree Walker and his fellow desperadoes were inclined to test the patience of the good people of the Badger State.
Turns out them desperadoes was pretty darned inclined.
[Search this blog: CAPITOL KAOS]
The February 15, 2011 primary
Prosser won the February 15 primary against three opponents: Kloppenburg, Assistant State Public Defender Marla Stephens, and Madison attorney Joel Winnig. In terms of political disposition, I don't believe there was anything to choose among the three candidates.
(This space had also recommended JoAnne Kloppenburg as the most politically viable to go against Prosser, as the wing-nut sleaze machine would have made mince meat out of Atty. Stephens, who has devoted her career to enforcing the Bill of Rights, and that is an unpardonable offense to conservatives, as we well learned in 2008.)
Indeed, Atty. Stephens almost immediately threw her wholehearted support behind Atty. Kloppenburg. As far as I know Atty. Winnig retreated to the shadows and endorsed no candidate. Nevertheless, it seems to me sound reasoning to treat the trio's primary vote in the aggregate. And thus did Justice Prosser win the State, 55-45.
And so did Kloppenburg and her energetic supporters have their work set to that gap-closing, and they did indeed succeed in clawing back Prosser's margin. How they did it is as plain as the Arabic numerals.
Gotcher numbers right cheer
Kloppenburg pulled off the biggest flip in Milwaukee Co., which went 54-46 to Prosser in the primary — about the same as his Statewide figures — to 57-43 in favor of Kloppenburg. She couldn't have won the election without turning that margin in particular. But on account of a disappointing turnout in Milwaukee and the slender overall margin of Kloppenburg's victory, she clearly couldn't have won on that accomplishment alone, and that is where the predominantly Republican territories throughout the State came to her rescue.
Since the February primary, Kloppenburg gained in 22 of the State's 24 largest counties, only dropping a couple points in Marathon Co., which went from 51-49 Prosser to 54-46, and Sheboygan Co., where Prosser profited by one, closing out Tuesday with a 63-37 romp.
More impressively, Kloppenburg added eight, five, and nine points respectively amongst the State's three most notorious**** Republican county-enclave-bunkers: Waukesha (3),***** Washington (7), and Ozaukee (14). In addition the AAG picked up six points in Racine Co. (5), ten in Jefferson Co. (18), 11 in Fond Du Lac Co. (16), and a startling 14 points in Winnebago Co. (8), where Kloppenburg choppenburg'd Prosser's margin from 66-34 in February to 52-48.
Kloppenburg Republicans FTW: WMC, AFP, WTF, LOL
Other of the more populous Justice Prosser-won counties where JoAnne Kloppenburg produced significant headway were: Dodge (19), 11 points.; Outagamie (6), 11 points.; Kenosha (12), nine points; Walworth (17), four points; and Wood (22), three points.
That is, all over the State, not just in Madison, and especially in counties otherwise heavily dominated by Republican voters.
So anybody who you catch peddling Republican Governor Scott Walker's terrified apologetica is handing you a phony bill of goods which must be rejected outright. When that guy tweets "Mmm. Burgers" or "O hai Scotty here look a sandwich kthxbai," the implied relaxation is a façade, 'cause there's a hellhound on your trail.
* "The 'backlash' is largely a Dane County phenomenon," rejoins Marquette professor of law and local right-wing media celebrity Rick Esenberg — who apparently never wearies of being almost irretrievably incorrect — and claims, without a scintilla of evidence, that "the Kloppenburg margin is driven almost entirely by votes in a county [Dane] that had become an ideological fever swamp ... "
Sidesplitting stuff, and just so, so wrong. And the guy has been on the radio and the teevee and the op-ed pages and the internets trafficking this and related nonsense nearly continuously lately.
It shocks the conscience, truly.
** Issuing from — who else — the medium wave jackanapes C. Sykes in tandem with the ludicrous Wall Street Journal pundit J. Fund.
*** Those aren't my epithets, those are actual conservative Republican epithets, perhaps most famously "slobs," which was coined by Assistant Majority Senate Leader Glenn Grothman, the Louie Gohmert of Wisconsin politics. However the author uses them here (just in case it wasn't obvious) as terms of endearment.
**** The three were the only three counties not swept by Chief Justice Shirley Abrahamson in the last State Supreme Court election of April, 2009, and proving once and for all, as the wing-nut never tires of not telling you, that Wisconsin absolutely will not abide a liberal judge.
***** The figures in parentheses represent the rank, by all 72 Wisconsin counties, in number of total votes cast on Tues., April 5.
September 3, 2011
"I'm aware of a story involving another justice."
In light of our friend Mike Gableman's repeated claims that Wisconsin Supreme Court Justice Ann Walsh Bradley had "hit" or "struck" him on the head on September 18, 2009, let's revisit a portion of Justice David Prosser's testimony to Dane County Sheriff's Office detectives on July 8, 2011. At 1:30:28, one of the detectives begins asking Prosser whether he was aware of any earlier instances of Justice Bradley "doing something to somebody else in the past," having "had physical contact with somebody." At 1:31:25, the detective gets down to brass tacks:
On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.
Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.
(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)
The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.
And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?
And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.
Wisely, in my humble estimation.
In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.
Aina? Inquiring minds want to know.
Detective: Had you witnessed Justice Bradley ever charge at anybody like this in the past?Now, recall that Mike Gableman told the detectives on July 5, 2011, that Justice Bradley had "hit" him on the back of the head on September 18, 2008 and that he, Gableman, had never told anyone about this alleged incident prior to his July 5, 2011 interview with Dane County detectives.
Prosser: I have never seen her charge anybody once.
Detective: Okay. Is there a reason, uh, are you aware that anything like that's happened? Before [June 13, 2011]?
Prosser: Yes.
Detective: You're aware of an incident specific with Justice Bradley ...
Prosser: Yes.
Detective: ... that she has charged other people. Anything that you've witnessed?
Prosser: Yes.
Detective: Okay. Did that just contradict what you just earlier said? Because I thought you just said you never witnessed anything. Is that correct or am I a little off on that?
Other detective: You're aware of it?
Prosser: [Sighs] I ... [chuckles]. Okay, I'm aware of a story involving another justice. I didn't see that.
Detective: Okay.
On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.
Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.
(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)
The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.
And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?
And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.
Wisely, in my humble estimation.
In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.
Aina? Inquiring minds want to know.
September 8, 2011
Wisconsin SC Justice David Prosser: Evil genius?
Wisconsin Public Radio reports:
Moreover, because Wisconsin Prosperity Network v. Myse is an original action, filed directly with the Supreme Court, there is no lower court decision to stand, in the event of a high court deadlock. Therefore, contrary to Wisconsin Public Radio's claim — and the claims of other press reports — such a division would not allow the rule to go forward, but rather serve to keep the court's August 13, 2010 injunction in force.
So not only would 2011 be the year of "supervisory/original jurisdiction," it would also be the year of the "temporary/permanent injunction."
Yet another remarkable wrinkle of this case is the fact that Justice Prosser was part of the majority that ordered the injunction in August, 2010, ceased participating in the case in August, 2011, and finally, on September 2, 2011, formally disqualified himself from the case (the Milwaukee Journal-Sentinel editorial board took credit for Prosser's disqualification this month, even though this here blog had pointed to Prosser's conflicting relationships with James Troupis way back in April).
That is, Justice Prosser's non-availability for formation of a majority disposition may prevent the Supreme Court from undoing that which Justice Prosser himself hath wrought. And, finally, it may be recalled that a majority of the court — complete with a concurring opinion authored by Prosser and joined by his close political ally Mike Gableman — exercised the extraordinary power of injunction prior to deciding whether it even had jurisdiction over the case in the first instance.
And by way of doing so, literally rewrote the Wisconsin constitution.*
Unprecedented, or, less charitably, making-it-up-as-they-go-along.
* How anybody considers this "conservative jurisprudence" is beyond me.
Prosser recused himself from this case under public pressure because it was scheduled to be argued by Jim Troupis, Prosser's friend and an attorney in his successful recount earlier this year. Troupis was not in court for arguments. That could leave the court with a 3-3 split, which would allow the rule to go forward.But see:
IT IS ORDERED that to preserve the status quo, the respondents are enjoined from enforcing the amendments to Wis. Admin. Code § GAB 1.28 published on July 31, 2010, pending further order of this court. — Wis. S. Ct., August 13, 2010That is, enforcement of the rule, which requires disclosures from individuals making "express advocacy" on behalf of specific political candidates, is prohibited by the court's August 13, 2010 injunction. And, if the Prosser-less court is unable to reach a majority disposition, then no "further order" can be made reversing the order of injunction.
Moreover, because Wisconsin Prosperity Network v. Myse is an original action, filed directly with the Supreme Court, there is no lower court decision to stand, in the event of a high court deadlock. Therefore, contrary to Wisconsin Public Radio's claim — and the claims of other press reports — such a division would not allow the rule to go forward, but rather serve to keep the court's August 13, 2010 injunction in force.
So not only would 2011 be the year of "supervisory/original jurisdiction," it would also be the year of the "temporary/permanent injunction."
Yet another remarkable wrinkle of this case is the fact that Justice Prosser was part of the majority that ordered the injunction in August, 2010, ceased participating in the case in August, 2011, and finally, on September 2, 2011, formally disqualified himself from the case (the Milwaukee Journal-Sentinel editorial board took credit for Prosser's disqualification this month, even though this here blog had pointed to Prosser's conflicting relationships with James Troupis way back in April).
That is, Justice Prosser's non-availability for formation of a majority disposition may prevent the Supreme Court from undoing that which Justice Prosser himself hath wrought. And, finally, it may be recalled that a majority of the court — complete with a concurring opinion authored by Prosser and joined by his close political ally Mike Gableman — exercised the extraordinary power of injunction prior to deciding whether it even had jurisdiction over the case in the first instance.
And by way of doing so, literally rewrote the Wisconsin constitution.*
Unprecedented, or, less charitably, making-it-up-as-they-go-along.
* How anybody considers this "conservative jurisprudence" is beyond me.
November 6, 2009
Prosser and McCabe: One more thing
"Appalled" writes:
However, first of all, this wasn't adversarial trial process, this was an open hearing on a series of proposed judicial ethics rules.
While there were a number of written petitions reflecting competing and even directly contradictory views filed with and defended before the Wisconsin Supreme Court, this was not a case of "Smith v. Jones" or "State v. Brown" where true adversaries in the legal sense are situated at either side of the versus.
Second, to whatever extent that Justice Prosser's conduct was "deplorable," I wasn't defending that. I was defending his reasons for getting upset, those reasons being a set of facts entirely separate from the demeanor of the speaker relating those facts.
Moreover I don't even find Prosser's conduct "deplorable," under the circumstances. That's his court, after all, and any lawyer — or any non-lawyer, like Mike McCabe* — who ventures into any court had better be well prepared for whatever dyspepsia a judge might or might not be affected by that morning. It's part of the job.
(And I'm here to tell you that — to cite but one of innumerable examples — an irate pipefitter superintendent makes even the grumpiest jurisprude look like Saint Francis of Assisi.)
But does the judge have a point, is the pertinent question. Yes, Justice Prosser did have a point, and a valid one in my estimation, as I explained pretty clearly. It doesn't much matter to me whether he expressed it placidly or hysterically (he was somewhere in between).
Yesterday in the Madison Capital Times Dave Zweifel also addressed the same episode. During Justice Prosser's questioning of Mr. McCabe, at least four matters were raised: (1) not hearing Scott Jensen's appeal (2) appearing as a witness at Scott Jensen's trial (3) so-called "thievery" and (4) a cup of hemlock.**
Notice Zweifel doesn't engage either (1) or (2), which were the particular topics this space took up, except to proffer this awkward grammatical construction:
Particularly as he was subpoenaed to do so.
You want to locate something to legitimately disagree with Justice Prosser about, go read the majority opinion he fully joined in State v. David S. Stenklyft (and then read the concurrences/dissents,*** to discover a constitutional lesson in adversarial process).
* The non-lawyers admitted inside the bar are more often the ones dressed in orange pants and chained to the floor.
** A reference to Plato's Phaedo, which originally had something to do with corrupting the youth of Washington County.
*** Jeff Sessions never heard about them from the Moonie Times.
I don't know if "Illusory Tenant" is a lawyer or just someone who regularly stays at the Holiday Inn, but as an attorney it is truly frightening to think that [those comments about Justice Prosser and Mike McCabe] might have come from a fellow member of the Bar.Hang on just a minute there, counselor. I have plenty of appreciation for the adversarial system, much of it demonstrated herein.
Justice Prosser did indeed "blow his stack" and anyone who defends his deplorable conduct does not have sufficient appreciation for and devotion to the adversarial system that relies on a contest between advocates representing their party's positions and then an impartial person or group of people trying to determine the truth.
However, first of all, this wasn't adversarial trial process, this was an open hearing on a series of proposed judicial ethics rules.
While there were a number of written petitions reflecting competing and even directly contradictory views filed with and defended before the Wisconsin Supreme Court, this was not a case of "Smith v. Jones" or "State v. Brown" where true adversaries in the legal sense are situated at either side of the versus.
Second, to whatever extent that Justice Prosser's conduct was "deplorable," I wasn't defending that. I was defending his reasons for getting upset, those reasons being a set of facts entirely separate from the demeanor of the speaker relating those facts.
Moreover I don't even find Prosser's conduct "deplorable," under the circumstances. That's his court, after all, and any lawyer — or any non-lawyer, like Mike McCabe* — who ventures into any court had better be well prepared for whatever dyspepsia a judge might or might not be affected by that morning. It's part of the job.
(And I'm here to tell you that — to cite but one of innumerable examples — an irate pipefitter superintendent makes even the grumpiest jurisprude look like Saint Francis of Assisi.)
But does the judge have a point, is the pertinent question. Yes, Justice Prosser did have a point, and a valid one in my estimation, as I explained pretty clearly. It doesn't much matter to me whether he expressed it placidly or hysterically (he was somewhere in between).
Yesterday in the Madison Capital Times Dave Zweifel also addressed the same episode. During Justice Prosser's questioning of Mr. McCabe, at least four matters were raised: (1) not hearing Scott Jensen's appeal (2) appearing as a witness at Scott Jensen's trial (3) so-called "thievery" and (4) a cup of hemlock.**
Notice Zweifel doesn't engage either (1) or (2), which were the particular topics this space took up, except to proffer this awkward grammatical construction:
Prosser [was willing] to testify on behalf of former Assembly Speaker Scott Jensen's misconduct in office trial, a move that startled the State's law enforcement community.It's hard to tell what the object of "on behalf of" is in this sentence — Scott Jensen? misconduct? the trial itself? — but both the purpose and substance of that testimony are the subjects of reasonably differing interpretation and it's grossly unfair to impugn Justice Prosser purely for having delivered it.
Particularly as he was subpoenaed to do so.
You want to locate something to legitimately disagree with Justice Prosser about, go read the majority opinion he fully joined in State v. David S. Stenklyft (and then read the concurrences/dissents,*** to discover a constitutional lesson in adversarial process).
* The non-lawyers admitted inside the bar are more often the ones dressed in orange pants and chained to the floor.
** A reference to Plato's Phaedo, which originally had something to do with corrupting the youth of Washington County.
*** Jeff Sessions never heard about them from the Moonie Times.
March 13, 2010
Justice Prosser delivers magic words to Tea Party
Via WisPolitics.com:
The WJC's most recent filing with Justice Prosser's court, of February 10, contains the word "lie" 15 times over the space of 14 pages.
Not that the Tea Party-ers want to be reminded of those embedded elements of defamation in the code of judicial ethics, of course. Particularly with the Tea Party-ing Respondent himself in attendance.
Makes you wonder who it is that's politicizing the court. As for "outside influences," presumably Justice Prosser didn't have in mind the $100K+ that Gableman's political campaign collected from Manhattan, Denver, Arkansas,** Oregon, Florida, and elsewhere.
I have the utmost respect for the courts, for the institution. But if there are to be judicial elections then their participants must set themselves apart from and above the elections to the political branches, as befitting the special integrity of the offices sought. Lamentably, the trend recently is in the opposite direction.
When judges are found to have a constitutional right to lie, something, somewhere along the way, has gone amiss. Not because there's anything wrong with the First Amendment, but because someone has decided to stretch judicial ethics to their outer limit, where yet another judge must be put in the uncomfortable position of delivering the affirmation. Thus do the poor perceptions proliferate.
Anyway, my impression is that Justice Prosser is anticipating a 2011 challenge from Randy Koschnick — whose political presentation makes Prosser look like Ruth Bader Ginsburg — and seized on this Tea Party jamboree as an advance opportunity to out-Koschnick Koschnick.
Game on.
Also, no Tea Party is complete without the obligatory pipefitter:
* Those two most recent before the one most recent, that is.
** Bentonville, AR, where Jimmy Hoffa is said to be interred.
Conservative state Supreme Court Justices Michael Gableman and David Prosser, a former GOP state lawmaker, also attended.As opposed to the ideological activists who claim they don't.
Prosser, who's up for re-election next year, said the judiciary is under attack in the State from outside influences "spearheaded by ideologues who like activist judges who legislate from the bench."
Referring to the two most recent state Supreme Court contests,* which were won by Gableman and another conservative, Annette Ziegler, Prosser said those interests "are attempting to nullify two recent [Supreme Court] elections by harassing, defaming and intimidating the winners and trying to force their withdrawal from key cases."Good grief. I don't know who's "defaming" Gableman, but perhaps Justice Prosser might recall the facts underlying the Wisconsin Judicial Commission's complaint he'll be hearing on April 16.
Further, he said, "They’re attempting to gum up future elections with requirements and restrictions that will make it impossible for a candidate to control his or her own campaign."
The WJC's most recent filing with Justice Prosser's court, of February 10, contains the word "lie" 15 times over the space of 14 pages.
Not that the Tea Party-ers want to be reminded of those embedded elements of defamation in the code of judicial ethics, of course. Particularly with the Tea Party-ing Respondent himself in attendance.
Makes you wonder who it is that's politicizing the court. As for "outside influences," presumably Justice Prosser didn't have in mind the $100K+ that Gableman's political campaign collected from Manhattan, Denver, Arkansas,** Oregon, Florida, and elsewhere.
I have the utmost respect for the courts, for the institution. But if there are to be judicial elections then their participants must set themselves apart from and above the elections to the political branches, as befitting the special integrity of the offices sought. Lamentably, the trend recently is in the opposite direction.
When judges are found to have a constitutional right to lie, something, somewhere along the way, has gone amiss. Not because there's anything wrong with the First Amendment, but because someone has decided to stretch judicial ethics to their outer limit, where yet another judge must be put in the uncomfortable position of delivering the affirmation. Thus do the poor perceptions proliferate.
Anyway, my impression is that Justice Prosser is anticipating a 2011 challenge from Randy Koschnick — whose political presentation makes Prosser look like Ruth Bader Ginsburg — and seized on this Tea Party jamboree as an advance opportunity to out-Koschnick Koschnick.
Game on.
Also, no Tea Party is complete without the obligatory pipefitter:
"I demand less involvement in my personal life," said Defender of the American Dream Joe the Plumber, drawing applause.Fortunately Joe is biologically incapable of producing an egg.
* Those two most recent before the one most recent, that is.
** Bentonville, AR, where Jimmy Hoffa is said to be interred.
September 3, 2011
Facts hard to come by in Supreme Court kerfuffle
A couple of readers have commented as to Wisconsin Supreme Court Justice David Prosser's height, further to his colleague Mike Gableman's description of Prosser relative to Justice Ann Walsh Bradley: "Gableman believes Justice Bradley is a little bit taller than Justice Prosser."
To wit:
Don't most people know how tall they are?
* That's an .mp3, so you can download it and put it on your iPod.
To wit:
I can say with confidence there is absolutely no way Prosser is 5'9", regardless of how he describes himself. Probably 5'6".And:
The truth is that Prosser is nowhere near 5'9". I'm 5'8", and he's a lot shorter than I am.According to Prosser himself:
Detective: How tall are you, sir?For the record (the question is at 1:02:23).*
Prosser: Five-nine.
Detective: You're five-nine.
Prosser: Yeah.
Don't most people know how tall they are?
* That's an .mp3, so you can download it and put it on your iPod.
August 28, 2011
What exactly set Justice Prosser off
In his own words:
For indeed it was the Republican leader in that body, Rep. Jeff Fitzgerald, who publicly warned the court of that ultimatum.
And this, ironically, was a separation of powers case. Separation of powers is a constitutional law doctrine which presumes the independence of the judiciary from the other two political branches of government.
Has any reporter or editorialist mentioned this at all?
The delay, Justice Prosser tells us, came about because over the weekend prior to the altercation in Justice Bradley's office, he had authored a concurring opinion to complement the three other conservatives' unsigned order. Also over that weekend, Chief Justice Abrahamson had written a dissent in counterpoint to the order and was surprised by the appearance of Justice Prosser's concurrence on Monday.
The Chief therefore needed additional time to revise her dissenting opinion to include addressing the issues raised by Prosser that were not present in the order. Justice Prosser claimed Chief Justice Abrahamson shouldn't have been surprised at his concurring opinion because, "The discussion was very clear that there was going to be, that there was at least a possibility, that the majority were going to write more than was in the order, and I'm the natural person to do that. I think anybody with any brains would have known that I was writing an opinion."
Thus even though only "a possibility" existed, "anybody with any brains would have known" he was writing, according to Justice Prosser.
Not exactly the most rigorous logic in establishing that presumption.
Nor particularly charitable where collegiality is ultimately at issue.
I absolutely have a recollection of [the Chief Justice] saying, 'I may not be done 'til Wednesday.' Now that's the day after the Assembly would have had to vote on this all over again.Immediately upon hearing that, Justice Prosser tells her, "Chief Justice, I have lost confidence in your ability to lead this court." According to Justice Prosser, his three conservative colleagues, Justices Roggensack, Ziegler, and Gableman, had been getting "very, very antsy" at the prospect of not having their order released in time to save the Assembly Republicans the trouble of voting on the collective bargaining bill again.
For indeed it was the Republican leader in that body, Rep. Jeff Fitzgerald, who publicly warned the court of that ultimatum.
And this, ironically, was a separation of powers case. Separation of powers is a constitutional law doctrine which presumes the independence of the judiciary from the other two political branches of government.
Has any reporter or editorialist mentioned this at all?
The delay, Justice Prosser tells us, came about because over the weekend prior to the altercation in Justice Bradley's office, he had authored a concurring opinion to complement the three other conservatives' unsigned order. Also over that weekend, Chief Justice Abrahamson had written a dissent in counterpoint to the order and was surprised by the appearance of Justice Prosser's concurrence on Monday.
The Chief therefore needed additional time to revise her dissenting opinion to include addressing the issues raised by Prosser that were not present in the order. Justice Prosser claimed Chief Justice Abrahamson shouldn't have been surprised at his concurring opinion because, "The discussion was very clear that there was going to be, that there was at least a possibility, that the majority were going to write more than was in the order, and I'm the natural person to do that. I think anybody with any brains would have known that I was writing an opinion."
Thus even though only "a possibility" existed, "anybody with any brains would have known" he was writing, according to Justice Prosser.
Not exactly the most rigorous logic in establishing that presumption.
Nor particularly charitable where collegiality is ultimately at issue.
March 16, 2011
Shorter Kloppenburgs
Quick impressions of candidate for Wisconsin Supreme Court JoAnne Kloppenburg's interview with the Appleton Post-Crescent yesterday.
Themes: David Prosser is an unreconstructed partisan / Michael Gableman / rules for judicial recusal. Prosser has failed to lead the court out of internecine turmoil. Kloppenburg's record is 6-1 (with one pending) in Supreme Court arguments. Reminds us Wisconsin Manufacturers & Commerce- and Wisconsin Realtors Association-drafted rules for recusal were adopted verbatim by Prosser et al. Response to viewer question: Hasn't got in touch with her boss, Attorney General J.B. Van Hollen, for endorsement yet (doesn't have his personal phone number). Doesn't care who Prosser contributes to or who supports him, Kloppenburg's perceptions of Prosser are formed from his own statements. In re ongoing political uproar out of Madison: Voters don't want me to prejudge current events at the Capitol, but some statements Prosser has made indicate his prejudgment. Quoting Prosser: "You can take the man out of the legislature, but you can't take the legislature out of the man." Judges shouldn't rule in fear of being swept from office by third-party special interest groups (citing Iowa's recent experience over SS marriage).
Video here (approx 40 min).
And, from last week, a candidates' forum in Waukesha (audio only) with Justice Prosser on hand to offer rebuttals to some of the above.
Themes: David Prosser is an unreconstructed partisan / Michael Gableman / rules for judicial recusal. Prosser has failed to lead the court out of internecine turmoil. Kloppenburg's record is 6-1 (with one pending) in Supreme Court arguments. Reminds us Wisconsin Manufacturers & Commerce- and Wisconsin Realtors Association-drafted rules for recusal were adopted verbatim by Prosser et al. Response to viewer question: Hasn't got in touch with her boss, Attorney General J.B. Van Hollen, for endorsement yet (doesn't have his personal phone number). Doesn't care who Prosser contributes to or who supports him, Kloppenburg's perceptions of Prosser are formed from his own statements. In re ongoing political uproar out of Madison: Voters don't want me to prejudge current events at the Capitol, but some statements Prosser has made indicate his prejudgment. Quoting Prosser: "You can take the man out of the legislature, but you can't take the legislature out of the man." Judges shouldn't rule in fear of being swept from office by third-party special interest groups (citing Iowa's recent experience over SS marriage).
Video here (approx 40 min).
And, from last week, a candidates' forum in Waukesha (audio only) with Justice Prosser on hand to offer rebuttals to some of the above.
June 26, 2011
Top blogger Ann Althouse gets her source
Inexplicably popular blogger and alleged professor of law Ann Althouse "tweeted" yesterday that reports Wisconsin Supreme Court Justice David Prosser seized a colleague, Justice Ann Walsh Bradley, around the throat were "unsourced." However they were not unsourced but anonymously sourced, a crucial distinction that should have been immediately apparent to a self-styled media critic such as Althouse and furthermore one who is surely familiar with the traditional discretion of the justices' law clerks, who are often privy to the court's private conferences.
The alleged professor of law went on to warn "you people" on Twitter they may be subject to a defamation action, apparently either unaware or forgetful of the substantial burden imposed on public figures (e.g., Prosser) which requires proof a defendant acted in "actual malice."
And all of that addlepated nonsense packed into one "tweet."
Anyway, now Althouse has her source:
Following which report Althouse adds, "From what I have heard, Bradley is significantly larger than Prosser." What, she's never even seen them?
It's strange that Althouse, who allegedly professes the law in Madison, Wisconsin, has not attended a hearing at the State Supreme Court, which also sits in Madison (just a brief sashay down State St. in fact).
Justices Prosser and Bradley sit side by each (second and third from the left,* respectively, where the latter appears no larger than the former).
And damn near everybody is "significantly larger" than Chief Justice Shirley Abrahamson,** who Prosser previously threatened to "destroy."
Althouse could measure their physical attributes as they ascend the bench, in order to confirm her own "unsourced" assertion that "Bradley is significantly larger than Prosser," whatever that's supposed to mean.
Did not David slay Goliath?
Moreover, Althouse might do well to revisit the law of self defense, if that is indeed among the topics she allegedly professes to law students.
You don't get to strangle somebody who merely raises their hands.
* Conservative hero Mike Gableman is on the far right, where he invents the Supreme Court's jurisdiction from whole cloth and forward slash.
** Not only have I seen the Chief Justice, but I have met her, more than once, and I'm not even an alleged University of Wisconsin law professor.
eta: Much, much more from Wis. Atty. Briane Pagel.
The alleged professor of law went on to warn "you people" on Twitter they may be subject to a defamation action, apparently either unaware or forgetful of the substantial burden imposed on public figures (e.g., Prosser) which requires proof a defendant acted in "actual malice."
And all of that addlepated nonsense packed into one "tweet."
Anyway, now Althouse has her source:
"The facts are that I was demanding that [Prosser] get out of my office and he put his hands around my neck in anger in a chokehold," Justice Ann Walsh Bradley told the Journal Sentinel.Prosser denies everything.
Following which report Althouse adds, "From what I have heard, Bradley is significantly larger than Prosser." What, she's never even seen them?
It's strange that Althouse, who allegedly professes the law in Madison, Wisconsin, has not attended a hearing at the State Supreme Court, which also sits in Madison (just a brief sashay down State St. in fact).
Justices Prosser and Bradley sit side by each (second and third from the left,* respectively, where the latter appears no larger than the former).
And damn near everybody is "significantly larger" than Chief Justice Shirley Abrahamson,** who Prosser previously threatened to "destroy."
Althouse could measure their physical attributes as they ascend the bench, in order to confirm her own "unsourced" assertion that "Bradley is significantly larger than Prosser," whatever that's supposed to mean.
Did not David slay Goliath?
Moreover, Althouse might do well to revisit the law of self defense, if that is indeed among the topics she allegedly professes to law students.
You don't get to strangle somebody who merely raises their hands.
* Conservative hero Mike Gableman is on the far right, where he invents the Supreme Court's jurisdiction from whole cloth and forward slash.
** Not only have I seen the Chief Justice, but I have met her, more than once, and I'm not even an alleged University of Wisconsin law professor.
eta: Much, much more from Wis. Atty. Briane Pagel.
August 15, 2011
Koch outfit friend of the [Wisconsin Supreme] court
"This relationship is one of those thumbs on the scale." "Prosser should step aside now." "It's a bad idea to stay on the case."Herewith a "friend of the court" brief filed by the Institute for Justice, Minnesota chapter (a.k.a. "out-of-State agitators"), in the case of Wisconsin Prosperity Network v. Gordon Myse, a challenge to a State of Wisconsin campaign financing rule. The Institute for Justice was "initially funded" by the Bros. Koch and is sustained by 2.4 millions of dollars in Milwaukee's own Lynde and Harry Bradley Foundation generosity.
Wisconsin Prosperity Network is one of ten petitioners to the Wisconsin Supreme Court, which ten also includes such local right-wing luminaries as Republican candidate for Senate Kim Simac, the shouting Tea Party preacher "Apostle" David King, the Koch Bros. front group Americans For Prosperity, and the MacGyver Institute, which maintains what it calls — in what just has to be an ironic, postmodern jape — a "news service."
All are represented by oft-celebrated WISGOP counsel, James Troupis, along with our friend Rick Esenberg, known to profess the law — and lay effusive bouquets on the Bradley Foundation — at Marquette University.
Which is all fine and dandy, I'm sure, quite apart from the fact Supreme Court Justice David Prosser, to whose considered deliberation the petition now falls, retained one James Troupis to preserve Justice Prosser's bid to maintain his position among the "conservative" majority of that court, for the next ten years, and for which Mr. Troupis did zealously advocate (and did promptly bill a cool seventy-five thousand).
Notwithstanding its dubious provenance, is the Koch/Bradley amicus brief meritorious? Perhaps. The First Amendment is — and should be — an imposing barrier to restrictions on political speech. After all, it was none other than Justice Prosser who ruled that a State Supreme Court may not oblige its members, through a reasonable code of ethical judicial conduct, to refrain from slandering their colleagues without offending the First Amendment (a ruling that offends the intelligence).
Nevertheless it's worth noting that one of Justice Prosser's colleagues, Mike Gableman — for it was his unethical shenanigans to which the aforementioned ruling was designed to protect* — publicly interrogated a Wisconsin attorney for her alleged ties to the Open Society Institute, which for present purposes might be seen as a "liberal" corollary to the Koch/Bradley consortium. We thank Justice Gableman for providing the illumination upon his vague paranoias, but we don't expect any similar grilling of the petitioners' counsel during oral argument Setpember 6.
Another unique feature of this case dates to last August, when Justices Prosser and Gableman literally rewrote the Wisconsin constitution.
They did so to articulate a power of theirs which they had just divined, the power to prevent the two other equal branches of government from operating. This they did before even deciding whether the petitioners — or "Apostles," in at least one instance — had even bare standing to sue.
Whereas Article VII of the Wisconsin constitution empowers the Supreme Court to "issue all [injunctions] necessary in aid of its jurisdiction," the two self-advertised conservatives inserted language to the effect of "necessary in aid of deciding whether or not we have its jurisdiction."
More detail here and here.
There's a pretty decent argument to be made that Prosser/Gableman were way out of line, in terms of what "in aid of its jurisdiction" means in the Wisconsin constitution. It contemplates a jurisdiction that has been taken, a case that has been accepted in compliance with the judiciary's enumerated powers of jurisdiction. It doesn't contemplate empowering the court to slap injunctions on the executive branch prior to making any other judicial determinations at all, including whether or not the court itself has jurisdiction over the action in the first place.
If you haven't the jurisdiction, then how can you issue the injunction?
And it wasn't the last time the duo fabricated a novel judicial power.
I have no idea what's so "conservative" about either of them, frankly.
Except that they're "pro-life," or something.
* Here's a short film of Gableman, J. returning the favor, featuring Gableman denouncing, inter alia, "out-of-State influences." Seriously. Special disapprobation is reserved for Jesse Jackson, for some reason.
March 18, 2011
They're the ones who want to elect judges
And this is how those elections are "repurposed":
Now [Scott Walker's] opponents are itching for payback, and it appears they're going to start taking out their frustrations on conservative State Supreme Court Justice David Prosser.Such is life.
Prof. Charles Franklin, UW-Pol Sci, is skeptical, advising the malcontents to direct their energies to the recall elections of Senate Republicans (although there's no reason why they can't do both):
"If you try to bring Prosser into it, you have a harder time explaining why (he) is a part of it."What, didn't Prof. Franklin get the memo?
Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and [Republican] legislature. — Prosser for Supreme CourtThere: Explaining all done.
Story by AP
IMG by Xoff
See also: Club For Growth tops $321K touting Prosser in primary*
R.J. Johnson, a key adviser to Wisconsin Club for Growth, a conservative group backing Gov. Scott Walker's budget-repair bill, said Tuesday that the organization will stay "actively engaged in the budget debate." Johnson is a former political strategist for Walker. — Milwaukee Journal-Sentinel, 2/22/11Prosser, Walker, same backers, same agents. It's not that hard.
Justice Prosser's term ends July 31, 2011, for those tracking the expanding docket of lawsuits against Wisconsin's Republican leaders.
They are defending against two on one day, tomorrow in Madison.
* Nine point three per cent voter turnout.
August 20, 2010
Wisconsin's conservative activist justices
Concludes Wisconsin Supreme Court Justice David Prosser:
What the Wisconsin constitution says is:
In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.
So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?
Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.
Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.
And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.
But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.
Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?
Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.
It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.
At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**
* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.
Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).
In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).
Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.
** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.
Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.
And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."
[T]he court clearly has jurisdiction to take all actions necessary to consider whether to exercise its original jurisdiction over the substance of the matter. Wis. Const. Art. VII, § 3 (may hear original actions and proceedings) ...Emphasis added.
What the Wisconsin constitution says is:
The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.An original action is one filed directly to the Supreme Court. Original actions are exceptional to the Supreme Court's primary constitutional roles as a court of appeals and as the superintendent of lower courts. If and when the Supreme Court accepts an original action, it has "found" that exceptional original jurisdiction.
In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.
So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?
Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.
Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.
And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.
But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.
Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?
Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.
It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.
At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**
* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.
Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).
In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).
Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.
** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.
Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.
And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."
Subscribe to:
Posts (Atom)
