Christian Schneider

Author, Columnist

Category: Courts (page 1 of 2)

How a Bill Does Not Become a Law: An activist Dane County court has brashly upended the rules of lawmaking

Schneider22.1Every two years, the Wisconsin Assembly issues an activity book for schoolchildren. The book includes a cartoon called “How a Bill Becomes a Law,” which details the happy life of an ebullient piece of legislation named Bill.

Bill leads a simple life — all he wants to do is one day earn the governor’s signature on his belly and become law. The cartoon follows his traditional journey, from hearings held on his merits, to committees voting him out, to both houses of the Legislature passing him before sending him to the governor to become law.

Such has been the legislative process since Wisconsin’s inception in 1848. Yet in recent years, Bill’s celebration upon being signed by the governor would be a bit premature. Having lost control of the Legislature and the governorship, Wisconsin Democrats have added another step: To become law, Bill must first pay a visit to the Dane County Circuit Court.

Dane County has the distinction of not only being the home of state government; it is also indisputably one of the most politically liberal counties in America. And despite being only one of Wisconsin’s 69 state circuit courts, it has essentially become a second legislature.

Our friend Bill may have earned the imprimatur of legislators elected from all over the state and the signature of a governor elected by a majority of Wisconsin voters, but a single Dane County judge can derail Bill’s attempt to find a cozy home within the pages of the state’s statute books.

This is a problem not just for poor Bill, but also for the unfortunate citizens around Wisconsin who elect Republicans to the state Assembly, Senate and governorship. The ballots of millions are counteracted by the vote of one robed master elected by a strongly progressive electorate, whose elevated position is not earned by any specific legal skill or expertise, but instead his or her proximity to State Street. In fact, until recently, any lawsuit against the state of Wisconsin had to be filed in Dane County, giving its Circuit Court an elevated importance over any other local court in the state.

And thus, the Dane County Circuit Court has become a legal ATM for the state’s progressives: Insert a court challenge, and out comes a favorable opinion that will cost your opponents buckets of cash to appeal.

So-called “venue shopping” like this isn’t all that new. For instance, the federal court in Marshall, Texas, has been traditionally known to be friendly to those seeking money for patent infringements, and large companies from around the nation typically end up in this small Texas town. Quick trials and plaintiff-friendly juries are the norm in Marshall (as is its annual Fire Ant Festival), making it a popular vacation spot for lawyers.

Of course, picking a friendly federal appeals court is tricky, given that you have to predict what the lower courts are going to do. But those looking for anti-business outcomes are generally served well by filing cases in the jurisdiction of the notoriously liberal 9th U.S. Circuit Court of Appeals, which covers nine western states. In 2011, the U.S. Supreme Court either reversed or vacated 19 of the 26 cases it reviewed from the 9th Circuit; two years earlier, the supremes shot down 94 percent of its cases.

The Dane County Circuit Court has proven itself another great haven for liberal venue shoppers. In March 2011, it found itself in the middle of a national controversy when Dane County District Attorney Ismael Ozanne filed a lawsuit attempting to block implementation of Gov. Scott Walker’s new law restricting public sector collective bargaining. Unable to prevail legislatively, Democrats attempted to sink the bill in the courts. And they found a very sympathetic ear in Dane County Circuit Judge Maryann Sumi.

It was important that Democrats get a lawsuit moving quickly; on April 5, Supreme Court Justice David Prosser was up for election in a race that would decide the high court’s ideological balance. Having a case pending in a state court would bolster the impression that the Prosser election was really an election about whether Walker’s broadside to the public unions would stand.

On March 16, seven days after the Wisconsin Senate passed the collective bargaining bill, Ozanne filed a lawsuit seeking not to overturn the law, but to prevent it from being published in the first place. Two days later, Sumi heard one day’s worth of testimony, issued a temporary restraining order stopping publication of the law and quickly left town on a weeklong family vacation.

On his blog, Marquette University law professor Rick Esenberg said he was “astonished” at Sumi’s ruling, noting that in 1943, the state Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. “A bill, in the court’s view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere,” noted Esenberg.

On April 5, Prosser narrowly defeated his liberal challenger, JoAnne Kloppenburg. On May 25, attorneys at the state Department of Justice sent Sumi a letter indicating that they might seek her recusal. The very next day, Sumi issued her opinion striking down the law in its entirety.

Within months, the state Supreme Court assumed its role as the state’s legal janitor and cleaned up the mess Sumi had made. (She ruled that the state Senate violated the open-meetings law, but failed to acknowledge the pertinent exemption for legislative actions.) In a contentious decision that led to accusations of justices choking each other, Prosser excoriated Sumi, writing, “In turbulent times, courts are expected to act with fairness and objectivity. They should serve as the impartial arbiters of legitimate legal issues. They should not insert themselves into controversies or exacerbate existing tensions.”

While the Supreme Court vacated Sumi’s decision, the pro-union litigants were not done. On Sept. 14, Dane County Circuit Judge Juan Colas once again struck down Walker’s law, this time based on a challenge from Madison schoolteachers and Milwaukee city employees. The ruling blocked the law from being applied to school and local government workers, but it remains in effect for state workers and employees of the University of Wisconsin System. The case is being appealed.

Yet another case of “Walker nullification” took place when Dane County Circuit Judge David Flanagan, who had signed the recall petition against Walker, struck down a Walker-approved law requiring photo identification to vote. Inexplicably, Flanagan did not disclose that he had signed the petition.

While the U.S. Supreme Court upheld a similar voter-identification law in Indiana, Flanagan ruled that his opinion should effectively trump the Supreme Court because the Indiana law allows a voter 10 days after casting a provisional ballot to produce identification, while the Wisconsin law allows only three days.

The fact that Dane County always got the first crack at adjudicating lawsuits against the state clearly irritated Republicans, who in 2011 passed a law allowing plaintiffs suing the state to pick venues other than Dane County. Legislative Republicans took advantage of this new law during the Walker recall process, when they sued the state Government Accountability Board in Waukesha County, which they considered a friendlier venue.

This new law, however, does nothing to stop liberal groups from filing suits in Dane County. Esenberg noted that constitutional challenges to enacted legislation are “nothing new,” and that challenges aren’t always illegitimate. But he notes that cases filed by Democrats in Dane County have become uniquely problematic, given that Dane is a “company town.”

“You have exceptionally politically charged cases being brought in a county which has this sort of this toxic combination of being both politically homogeneous and politically aroused,” said Esenberg. “You had these pieces of legislation coming before elected judges in a county where people were marching in the streets, pretty much all in opposition to these things, which raises questions about the political pressures that may be brought to bear on a judge who finds himself or herself in that situation.”

And while the ability of circuit courts to strike down state laws is not new, the recent hyper-partisan way in which the courts are being asked to function will have long-lasting impacts on Wisconsin law. Scott Walker and the GOP Legislature may only be with Wisconsin for the span of a few years; the precedent of litigating everything as a political weapon may be with the state forever.

Those ideological pressures placed on circuit courts will likely boil up again now that the Legislature has passed a much-discussed bill to allow an iron ore mine in northern Wisconsin. Environmental groups are expected to file suit at some point to block the mine. And that move for an injunction will almost certainly be filed in Dane County.

Some judicial observers have argued that it doesn’t matter where cases like this begin, as long as the Supreme Court is there to serve as a backstop to Dane County. For conservatives, this reasoning is problematic.

First, while the makeup of the court currently leans conservative, the court is usually only one April election away from switching ideologies. Liberals need but a single seat, in other words, to turn the court from a stop sign to a green light for Dane County opinions.

One thing is certain — the more the lower courts are seen as mere political arms, the worse it is for the reputation of the Supreme Court. Some conservatives have grown frustrated that the Supreme Court hasn’t yanked jurisdiction away from the appellate courts and struck down Flanagan’s photo identification ruling, for example.

But as one justice told me, that’s not at all how the Supreme Court should work. The court, instead, should almost always let the process work itself out. Setting a precedent of clutching politically expedient cases away from appellate courts could be terrible for the right, especially if liberals regain control of the Supreme Court.

In the wake of the recent Dane County decisions, the Republican Legislature has also proposed changes to how cases are handled. One proposal, for instance, would have prevented circuit courts from blocking duly enacted laws. Esenberg believes this would be a mistake, not only given that some laws should be invalidated, but also because politics are cyclical, and one day Republicans will need lower courts to block the actions of a Democratic governor.

Esenberg proposed a potential remedy for over-politicization of the courts: If a circuit court wants to issue an injunction to block a state statute, the party opposing the injunction has 10 days to appeal.

According to Esenberg’s proposal, if the ruling isn’t appealed in 10 days, the stay is lifted and the injunction is effective. If the ruling is appealed, the stay would remain in place, and the appeals court would have to lift it. If both the appeals court and circuit court agree on the injunction, then it stays in place.

But regardless of what reforms might pass, Republicans will not be able to legislate Dane County out of existence. Challengers to Scott Walker’s agenda will continue to look to the Dane County courts to block the will of the people. And liberal judges will continue to garner awards like Sumi’s for being the State Bar of Wisconsin’s “2011 Judge of the Year.”

And this will be bad news for our good friend Bill, who will have to routinely pack his bags for Dane County. Maybe the state can get him some Badger football tickets to make his frequent stays more pleasant.

Prosser Dominates “Fairest Election Ever”

For years, so-called “good government” groups had been fighting to “level” the playing field in judicial elections.  They always believed that public financing of elections virtually eliminated advantages for certain candidates.  Last session, such a framework was passed into law.  (Perhaps not-so-ironically, this occurred when conservatives were elected to a majority on the Wisconsin Supreme Court and Democrats controlled the Legislature and Governorship.)

Liberals celebrated the new “fairness” in Court elections.  In last week’s Isthmus newspaper (to which I contribute a column), editor Bill Lueders asked aloud whether this month’s Supreme Court primary was the “fairest election ever.”

Said Lueders:

That means the Feb. 15 primary will occur on a relatively level playing field, with each contender having roughly equal resources. (Whether this will hold true for the general election is unclear, as court challenges or the GOP Legislature could yet kill public financing.)

On Tuesday night, we saw the results of the “fairest election ever.”  Incumbent Justice David Prosser dominated his opponents, receiving 55% of the vote in a four-way primary.  Prosser will now face his closest challenger, JoAnne Kloppenburg, who received 25% of the vote, in the spring general election.

So why did Prosser win by such a large margin in a primary election in which spending was equal?  Perhaps it was due to Wisconsin residents’ preference for conservatives on the Supreme Court.  But it likely had a lot to do with Prosser’s status as an incumbent.

And this is how, as argued on this blog previously, public financing harms challengers.  If spending is level, races will almost always favor the incumbent, as being in office had enormous advantages.  Incumbents have name recognition, voter contacts, and a record on which to run.

In order to overcome that advantage, challengers often need to spend more money to get their message out.  But when each candidate has only a $100,000 grant to spend, it is much more difficult to overcome the natural advantages of incumbency.

So while liberals may have thought the Supreme Court election was “fair,” it was anything but.  The most equitable way to conduct elections is to allow fundraising that translates into increased political speech.  Otherwise, voters will be inclined to support the guy they know.

Courting Politics

The Wisconsin Supreme Court is disgusted with how political the institution has become.  In fact, they are so repulsed by the political tone the Court has taken, they are trying to fix it by using the most powerful tool they have:


Generally, we think of “politics” as the act of trying to get someone elected.  But three liberals on the Wisconsin Supreme Court are doing the opposite – essentially trying to get one of their colleagues un-elected.  Their shady effort to force Justice Mike Gableman to recuse himself from criminal cases is merely a veiled attempt by his ideological opponents on the Court to nullify the election in which the conservative Gableman beat liberal Justice Louis Butler in 2008.

It’s not as if liberals exactly take any hints from the voters, anyway.  In 2000, Butler lost to conservative Diane Sykes in a race for the Supreme Court.  Shortly thereafter, when a seat opened up, Democratic Governor Jim Doyle appointed Butler to the Court, ignoring the previous popular vote.  When the voters threw Butler off the Court in 2008 in favor of Gableman, the Obama administration appointed Butler to a federal judgeship.  (Maybe if Butler loses one more time, he’ll be ready for a U.S. Supreme Court nomination.)

Clearly, elections are of minimal importance to liberal jurists.  And we’re seeing that phenomenon in action with the Court’s actions to essentially overturn Gableman’s victory over Butler.

During the Butler/Gableman campaign, Gableman ran an ill-advised ad that accused Butler of being soft on crime.  The ad dealt with Butler’s time as child molester Reuben Lee Mitchell’s defense attorney, accusing Butler of freeing his client so he could then go on to molest another child.  In fact, Mitchell served out his entire term and only molested another child after his initial term was over.

The discretion in airing the ad was questionable – especially since the candidate himself ran it.  (We normally associate those types of ads with third parties, which will be discussed shortly.)  But Gableman didn’t show any bias against criminal defendants, and he didn’t break the cardinal rule of judicial elections by commenting on any future issues that may come before the Court.  He was merely doing what Supreme Court candidates do these days, by painting himself as a jurist who upholds the criminal laws as written.  (It should also be noted that Butler himself ran ads bragging that he’s “protected the public from criminals” and saying “if you rob someone, you should be punished.”*  Chances of recusal motions being filed from criminal defendants if Butler had won: zero point zero.)

In fact, just a year later, Chief Justice Shirley Abrahamson ran her own campaign, having clearly learned the lessons of modern judicial campaigns.  Abrahamson’s television ads featured Dane County Sheriff Dave Mahoney driving around in his squad car, informing the viewer of Abrahamson’s work “protecting Wisconsin families.”  While much more vague than Gableman’s appeal, it was clearly meant to send a similar message: Shirley’s on the side of law enforcement.  (See the ad here.)

However, nobody seems to care what legally intemperate statements Abrahamson made during her campaign – including her claim that she’s “helping homeowners work out solutions to home foreclosure” and “protecting consumers from abuse.”  One would imagine any bank or business interest appearing before the Court might object to Abrahamson’s depiction of their industry as predatory.  (Furthermore, even ex-gubernatorial candidate Barb Lawton – BARB LAWTON!has pointed out that a quarter of Abrahamson’s donors will come before the court in some fashion.  If you’re a lefty and Barb Lawton calls you out, you have done something historically objectionable.**)

Yet it’s the Gableman campaign’s TV ads that are now keeping defense attorneys up late at night, filing motions for him to recuse himself in criminal cases.  Such was the case last week when Assistant State Public Defender Ellen Henak filed a motion attempting to force Gableman from participating in a case dealing with how sentencing credits are counted in Wisconsin versus other states.  While standing in front of the Court, Henak nailed herself to a cross of fabrication, arguing that the Court was “forcing” her to move ahead with oral arguments against her will.

While the substance of the case is fairly run-of-the-mill procedural stuff, the Court’s public reaction to it has been unprecedented.  The tumult began the week prior to oral arguments, when three of the Court’s liberal justices issued a public statement urging postponement of the case until Gableman’s situation was rectified.  This is the first time many long-time Court observers can remember justices serving as their own press secretaries and discussing a case openly before it even hits their chamber.  Three conservative justices then responded via the media themselves, saying Gableman’s case before a three-member panel has been taking too long.

Of course, Gableman took part in the oral arguments for the case last week.  He simply has no choice – if he recuses himself from a criminal case just once, then defense attorneys across the state will smell blood in the water and grab hold of that loophole as long as he’s on the court.  The legal toothpaste will then be out of the tube.  In fact, it is rumored that some notable defense attorneys are already urging criminals to automatically file recusal requests as soon as their case gets to the Supreme Court, simply to tighten Gableman’s briefs (so to speak).

In the mean time, all the usual suspects arguing for public funding of Court elections have been coming out of the woodwork, saying that all this unrest is somehow the result of too much money in Supreme Court elections.  In fact, this argument has exactly nothing to do with the Court’s current conundrum.  Gableman’s ad was run by the candidate himself, not the “shady” third parties that taxpayer financed elections are supposed to thwart.  If Gableman had been handed a $200,000 check by the taxpayers of Wisconsin, he likely would have run the same ad.  Abrahamson would probably have used the money to continue to paint herself as tough on crime.  Using the Gableman brouhaha to argue for public financing is like a doctor removing your pancreas if you’re complaining of an ear ache.

So it is clear that politics has taken hold of the Wisconsin Supreme Court.  But it has nothing to do with elections.  Instead, it has to do with the desire of three of the Court’s justices to nullify the results of a popular election when it comes to criminal matters before the court.  And there’s no amount of campaign finance reform that can undo the desire of individual justices to politicize the institution by trumping up phony ethics charges.


*-Butler’s harsh “anti-robbing people” stance clearly lost him the much-sought-after “Flamboyant French Safe Cracker” demographic.

**-Lawton also claims that special interests spent less on the Abrahamson/Koschnick race than the Butler/Gableman race because of the “diminishing of the stature of the court.”  This is Olympic-level goofballery.  Special interests spent less because Abrahamson has been on the Court for 30 years, and her race with Koschnick was never close.

In other news, WPRI has obtained a behind-the-scenes video of the justices settling their battle behind closed doors:

Who’s Telling the Truth About the Court?

These days, it’s hard to get the Wisconsin Supreme Court to agree on anything.  But back in December of 2007, the Court stood united in its push for public financing of Supreme Court elections.  Earlier in the year, conservative Annette Ziegler had run a successful race against liberal attorney  Linda Clifford that featured substantial advertising from interested third party groups.  In their zeal to restrict these types of ads, the Court issued a letter calling for full public financing of court races, saying “Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public.”


The Ziegler race was followed up in 2008 by Mike Gableman’s race against incumbent Justice Louis Butler – a race which featured ads that clearly obfuscated the role of a Supreme Court justice.  The ads – run primarily by the candidates themselves – portrayed the Supreme Court as some kind of law enforcement board, intent on keeping criminals in prison.  (We denounced this tactic at the time.)

Following Gableman’s victory, ideas started to flow on how to get court elections back to focusing on what the court actually does.  The Wisconsin State Journal has been on a Don-Quixote like quest to eliminate judicial elections altogether, believing voters aren’t capable of picking their own justices.

But the issue of public financing of Court elections still lingers.  Public financing supporters believe that shutting down independent ads and leaving the electioneering up to the candidates themselves will leave voters with a much clearer understanding of the role of the Supreme Court.

To those people, I offer this television ad from Chief Justice and current candidate Shirley Abrahamson:

You need to a flashplayer enabled browser to view this YouTube video

As you can see, Chief Justice Abrahamson is going to help you wiggle out of your bad mortgage – regardless of any kind of contract you signed, or regardless of whether any case dealing with your mortgage is actually before the Court.  Also, Abrahamson is “protecting consumers from abuse,” whatever that means.  She “stands up for all of us.”  Then, the denouement, from Abrahamson’s own mouth:

“The best thing a judge can do is to help people.  That’s what I do.”

Is she serious?  The best thing a judge can do is to apply the law as written to certain facts of a case.  The judge’s role isn’t to “stand up” for anyone.  “Standing up” for people means writing your own new laws to generate a favorable outcome – whether or not it actually ends up hurting people in the long run.  (Incidentally, where are these cases that “help people?”  Doesn’t being a judge necessarily mean resolving disputes in which some party eventually ends up not being “helped?”)

So I dare anyone to look at  that ad and tell me with a straight face that leaving campaigning up to the candidates themselves is going to give anyone a clearer idea of what the Court does.  If anything, Abrahamson’s own ad leaves voters with a cloudier understanding of her role as a judge – this is an ad that could easily be run by a candidate for legislative office.  That ad does more to undermine Abrahamson’s own “impartiality” than any ad by a third party could.

All public financing will do will be to shut out advertising that might actually set the record straight on Abrahamson’s record. So it’s no wonder Abrahamson favors public financing in Supreme Court races -with it in place, she could continue to exploit people with bad mortgages with impunity.

Wisconsin\’s Spiraling Retiree Health Costs

Imagine you\’re a young guy who has just started dating the girl of your dreams.  You get around to the discussion of how many people she has \”been with.\”  She says \”two.\”  (That\’s what girls always say, usually accompanied by an extensive story about how she dated some guy for years.)

Now imagine there was a Girlfriend Registration Service, where prospective girlfriends had to report their past exploits.  Everything is on there – the Spring Break trip to Cancun and everything.  When you go look up the new love of your life, you find out her number isn\’t two – it\’s 34.

Fortunately, for us, there\’s a Girlfriend Registration Service for local governments – called the Government Accounting Standards Board (GASB).  A few years ago, GASB began requiring local governments start reporting the amount of health care costs they owe to retirees in the future.  Previously, governments just paid these costs on a year-to-year basis.  But now, they have begun reporting their future unfunded liabilities – and in many cases, they are stunning.

Today, the Wisconsin Policy Research Institute released a report detailing local government postemployment liabilities. A review of financial documents reveals that the Wisconsin governments required to report their liabilities carry nearly $6 billion in future retiree health care costs. Of this amount, the largest three liabilities are carried by governments in the Milwaukee area: the Milwaukee Public School (MPS) district at $2.2 billion, Milwaukee County at $1.5 billion, and the City of Milwaukee at $806.3 million.  In many cases, these liabilities dwarf the annual budgets of these governments (for instance, the MPS budget is $1.2 billion, while their liability is $2.2 billion.)

Taxpayers are wondering why they pay more and more in taxes, yet see little direct benefit.  This may be a reason why – a growing chunk of the taxes they pay go to people who don\’t even workfor the government anymore.

Wisconsin’s Spiraling Retiree Health Costs

Imagine you’re a young guy who has just started dating the girl of your dreams.  You get around to the discussion of how many people she has “been with.”  She says “two.”  (That’s what girls always say, usually accompanied by an extensive story about how she dated some guy for years.)

Now imagine there was a Girlfriend Registration Service, where prospective girlfriends had to report their past exploits.  Everything is on there – the Spring Break trip to Cancun and everything.  When you go look up the new love of your life, you find out her number isn’t two – it’s 34.

Fortunately, for us, there’s a Girlfriend Registration Service for local governments – called the Government Accounting Standards Board (GASB).  A few years ago, GASB began requiring local governments start reporting the amount of health care costs they owe to retirees in the future.  Previously, governments just paid these costs on a year-to-year basis.  But now, they have begun reporting their future unfunded liabilities – and in many cases, they are stunning.

Today, the Wisconsin Policy Research Institute released a report detailing local government postemployment liabilities. A review of financial documents reveals that the Wisconsin governments required to report their liabilities carry nearly $6 billion in future retiree health care costs. Of this amount, the largest three liabilities are carried by governments in the Milwaukee area: the Milwaukee Public School (MPS) district at $2.2 billion, Milwaukee County at $1.5 billion, and the City of Milwaukee at $806.3 million.  In many cases, these liabilities dwarf the annual budgets of these governments (for instance, the MPS budget is $1.2 billion, while their liability is $2.2 billion.)

Taxpayers are wondering why they pay more and more in taxes, yet see little direct benefit.  This may be a reason why – a growing chunk of the taxes they pay go to people who don’t even workfor the government anymore.

More Women Mad at Me

It appears I have kept my decades-long streak of displeasing the ladies alive.

Today, the League of Women Voters issued a release critical of my column of last week, where I argue that trying to make legislative districts \”electorally competitive\” actually gives Assembly Democrats an eight-seat head start come election time. Otherwise, African-American votes are diluted and civil rights litigation hilarity ensues. In effect, this gives Democrats an eight seat \”handicap,\” a golf metaphor that appears to be lost on Andrea Kaminski, the author of the LWV release.

In their release, the LWV argues… well… actually, I\’m not exactly sure what they\’re arguing. Their main talking point seems to be that I don\’t have anything to write about. They\’re probably right in that respect. Maybe we can set up a public debate where we argue the merits of my workload. Other than that, they don\’t seem to make any point that refutes anything I said in the column. For the sake of clarity, let me boil it down:

  • When you make electoral competitiveness a standard for legislative redistricting, it is impossible to make inner-city districts competitive. Doing so would require diluting the African-American vote, a strategy of segregationists.
  • As a result, there are at least eight Assembly districts (and at least two Senate districts) that will be exempt from the competitiveness standard. This gives Democrats an eight-seat head start in legislative elections.

Ms. Kaminski reiterates her support for having an \”independent\” board drawing district lines, since the Legislature can\’t be trusted to do so. In fact, the courts actually set the boundaries every decade. The Legislature generally writes their plan, then it goes to court, where judges eventually draw the lines. It has been this way in every redistricting since at least 1974.

In any event, I am honored to now be Public Enemy #1 over at the League of Women Voters. They are welcome to get in line – it forms on the left.

From My Keyboard to God’s Ears

Yesterday, the U.S. Supreme Court held arguments on the so-called “Millionaire’s Amendment” section of the McCain-Feingold campaign finance law. The provision in question limits how much a candidate can spend on their own campaign, presumably to prevent them from being corrupted by… their own money.

During oral arguments, Justice Scalia ridiculed the notion that laws can somehow “level the playing field” for campaigns. Scalia sarcastically suggested we should next require that the more eloquent candidate talk with pebbles in his mouth, in order to guarantee more egalitarian elections.

If that sounds familiar, it’s because I made a very similar point in a column early this year. To wit:

For instance, we need to eliminate Barack Obama’s good looks from the equation. From now on, Obama should be forced to wear a ridiculous, bushy fake mustache when he gives speeches. We’ll see if women voters are as enthusiastic about his message of hope when he looks like Borat. (Although, admittedly, he might earn my vote if he did so.)

Next, we need to equalize the market for celebrity endorsements. When Chuck Norris endorses Mike Huckabee, every other candidate in the field will be assigned a taxpayer-financed washed-up action star to serve as their campaign spokesman. Jean-Claude Van Damme, we need your cell phone number – looks like John Edwards is cratering!

Under my plan, candidates will be barred from playing instruments while on the campaign trail. Everyone remembers Bill Clinton’s thrust in popularity after he played the saxophone on late night television. Mike Huckabee recently showed up on Jay Leno playing the bass guitar. (Less memorable was Steve Forbes’ performance of Black Sabbath’s “Paranoid” on the triangle.) Whether a candidate can play a few notes on an instrument doesn’t tell me what I need to know about their position on CAFTA.

Finally, we need to get rid of all these troublesome catchwords that seem to be getting people so excited. Obama should be limited to two uses of the word “hope” per speech. Huckabee should only be allowed to refer to God as “the man who lives in the clouds,” and will be limited to using the following joke, written by my four year-old daughter:

Q: “What did the fish say to the seaweed?”

A: “Fish can’t talk!”

All of these important reforms will give real people a chance to run for office. Real ugly, dull, uninformed people.

So since I don’t expect anyone else to toot my horn, I will take this opportunity to do it myself. Or, at least before Wisconsin amends its Constitution to ban tooting your own horn.

The Voters Should Keep Speaking

With the Supreme Court race in our rear view mirror, the usual hysterics are taking place with regard to how we select our justices. According to Jay Heck from Common Cause, \”This was the most nasty, negative, demoralizing statewide election in Wisconsin history. . . . This is about as low as you can go.\”

Consider me among those not \”demoralized.\”

The election of conservative Judge Mike Gableman has set the media on fire. Much of the reaction resembles the state being hit by a hurricane, not the state electing a conservative Supreme Court justice. The Wisconsin Democracy Campaign\’s Mike McCabe, who must have a heck of a cell phone plan with all the calls he gets from state newspapers, said \”\”Wisconsin is in the midst of a hostile takeover of its court system.\”

This article from the Milwaukee Journal Sentinel goes on to quote SEVEN individuals who think we should completely overhaul our system of electing judges. Not content with just that pitch for campaign finance reform, the paper today also ran an editorial describing the Supreme Court race, titled \”Tawdry and Despicable.\”

Naturally, had Butler won, we wouldn\’t be hearing any of these calls for blowing up the system – everything from eliminating free speech to publicly funding elections to doing away with elections altogether. Everything would be golden until next year, when the balance of the Court would be up again.

But there are some interesting facts that the Journal Sentinel seems to leave out. Take, for instance, the results of the last four Wisconsin Supreme Court races:

2000: Conservative woman defeats liberal man (Sykes v. Butler)

2003: Conservative woman defeats liberal man (Roggensack v. Brunner)

2007: Conservative woman defeats liberal woman (Ziegler v. Clifford)

2008: Conservative man defeats liberal man (Gableman v. Butler)

Could it be possible that Wisconsin voters simply prefer conservative justices? Is there even a remote chance that the people who voted wanted their justices to adhere to a strict reading of state law?

In fact, it could be that all those \”scary\” ads had little to do with the race. The Sykes and Roggensack races were low-profile elections, yet the conservatives won in each case (Sykes by a nearly 2 to 1 margin).

Consider also the 2006 elections, when Republican J.B. Van Hollen won the race for Wisconsin Attorney General amid a Democratic tidal wave. How could this be? Could it be possible that voters are actually sophisticated enough to know what they want from specific elected offices? If voters knew what they were doing, that would ruin the whole fairy tale about how they are unduly influenced by campaign advertising, and how they\’re not qualified to pick judges.

Put simply, you want a conservative to keep bad people from doing things to you, but you want a liberal when you want to do things to bad people. (Oil companies, pharmaceutical companies, Dick Cheney)

Yet the state media can\’t comprehend the fact that in electing Gableman, they were only doing what they have done for the past decade – electing a conservative. It doesn\’t matter how much people spend or how much press coverage there is of the race.

Had Gableman lost the election, conservatives certainly would have been bummed out. But how many would be calling for an overhaul of the electoral system? Answer: none. When Democrats and liberals are elected, the Right lives to fight another day. Fortunately, they have enough class to refrain from insulting the will of the people.

For Gableman, the Work Now Begins

As everyone knows by now, Burnett County judge Mike Gabelman beat incumbent Justice Louis Butler in a race for a seat on the Wisconsin Supreme Court last night. Butler should have known he was in trouble when he got a call from Paula Abdul telling him he \”looked gorgeous.\”

Interestingly, the people who seem to be most stunned about Gableman\’s victory seem to be Gableman\’s own supporters. While people who backed Gableman certainly agreed with his stated judicial philosophy, he never demonstrated a grasp of the issues most important to the Court. This was due, in part to the race\’s misleading focus on criminal justice issues. It is also due to the fact that Gableman often eschewed actual debate with Butler in favor of calling him a \”judicial activist.\” In the candidates\’ final debate, Gableman answered virtually every question with the words \”judicial activism,\” rather than explaining any of his own positive philosophy. (He crossed the line the next day at the dry cleaners – when asked if he wanted extra starch, he accused the dry cleaner of legislating from the ironing board.)

Yet despite any misgivings supporters had about Gabelman\’s electability or the campaign he ran, the bottom line is that he won. So it\’s hard to argue tactics – clearly his campaign knew what they were doing. But it doesn\’t make it any less shocking that what was essentially a second-tier candidate ended up on the Supreme Court in a year that was supposed to be dominated by liberals.

So now the blueprint for winning a Supreme Court seat is pretty much set. Criminal justice, criminal justice, criminal justice. The best advice I can give Chief Justice Shirley Abrahamson for her 2009 race is to get a picture of her beating a homeless crack addict with a billy club, ASAP.

As for Butler, he actually seems like a good guy. In debates he was composed, knowledgable, and personable. Yet for all of his charm, he never seemed to grasp the problems voters might have with a justice
that disregarded the plain meaning of the law as often as he did. In his final TV ad, he bragged about ruling in favor of widows of men killed in the Miller Park construction accident. He stood up for children \”hurt by unsafe products.\” (Presumably the ridiculous lead paint case.)

While it\’s wonderful that these widows and children were able to get some kind of relief, it still leaves one question: what was the law? Being a justice isn\’t about handing out Christmas presents to the aggrieved. It\’s about interpreting the statues as written by the Legislature. Certainly, I would be appreciative if Louis Butler could get me in a hot tub with Natalie Portman. But I\’m fairly sure there\’s no law authorizing such a meeting. (Mental note to self: begin lobbying Legislature for such a law.)

Voters likely saw that Butler\’s presence created a Court majority run wild. In fact, his mere presence on the Court was an affront to the voters. After Butler lost to Justice Diane Sykes by a 2-to-1 margin initially, Governor Doyle ignored the will of the electorate and appointed Butler to the bench anyway. This was the judicial equivalent of mooning the voters.

Butler is smart and capable, and his punishment will be to move to a high-class law firm and make five times as much money as he made on the Supreme Court. So while it may hurt his feelings that he lost to Fred Flintstone now, he\’ll do just fine. (In the final debate, you could see on Butler\’s face that he couldn\’t believe they got this guy to run against him.)

But now that he\’s on the Court, Gableman will have to prove that he was worthy of all the support he received. He has to display an intelligence and grasp of the issues that seemed to be lacking in his campaign. In short, he has to bloom where the voters planted him.

Electing Judges: Save us from the Horrors of Democracy

The candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court.., the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

– Abraham Lincoln, First Inaugural Address


Wisconsin government has been infected by a poisonous presence. Apparently, this corrosive phenomenon is so dangerous, it has prompted one of the largest newspapers in the state to call for a constitutional amendment to eradicate it. And what exactly is so damaging to our democracy?

Well…democracy, actually.

Disillusioned by the spending in and tone of the state’s recent Supreme Court elections, the Wisconsin State Journal has repeatedly called for justices to be picked by an “impartial” committee, rather than by popular vote.[i] They argue that the concepts and rulings handled by the Court are far too complex for your average voter, and submitting judges to common elections is a vulgar way of picking such sacred positions. According to supporters of “merit” selection, picking judges via election is like painting a Matisse with crayons.

In their four (to date) editorials pushing such a “merit” system of picking judges, the State Journal repeatedly cites the need for “qualified” judges who don’t “appear” corrupt. Yet they cite no judge currently on the bench who they consider unqualified as a result of being picked by popular election, and they can’t name a single court action or decision handed down that is the result of this supposed “corruption” that would lead them to disenfranchise every voter in Wisconsin. Apparently they believe that one of these days, the produce manager at your local grocery store is going to slip by a confused electorate and end up on the high court.

The conceit inherent in their position lies with their elevated view of the Supreme Court. Supporters of appointed judges apparently believe in the concept of “judicial supremacy,” which gives the Court heightened importance over the other two branches of state government. Yet one must ask the obvious question: Why is democracy acceptable when picking legislators, who write hundreds of new laws each year, but not judges, who will rule on a fraction of a percent of those laws? It would seem that the 132 legislators who write all of our laws and formulate budgets would be much more susceptible to corruption. Why bother electing them?

A system of picking judges via backroom dealing runs counter to the very principles on which our government is founded. One doesn’t have to read too far into the Declaration of Independence to find that our government derives all of its powers from the “consent of the governed,” not from “people who the State Journal thinks are swell.”

In fact, one of the harshest criticisms of the court system as it currently exists is the extent to which it is insulated from public opinion. Interest groups can often convince sympathetic judges to enact new laws that would never make it through the legislative process. For instance, Wisconsin voters in 1993 approved a constitutional amendment to ban casino-type Indian gaming in the state. In the 2004-05 term, the Wisconsin Supreme Court interpreted the strict ban on gaming expansion to mean tribes could offer any types of gambling they wanted – the exact opposite of what voters had approved. This year, voters will be able to offer their opinion about whether that case was decided correctly. Yet proponents of the “merit” system would deny the public that opportunity, thinking that somehow silencing citizens makes for a fairer Court.

The true irony in the State Journal’s argument is that any change to the way judges are picked would have to be made via constitutional amendment – which, of course, must go before the full public for a vote. So the voters would have to go to the polls and affirmatively vote away their right to determine how their laws are interpreted. Then again, the paper thinks you as a voter are easily confused, so maybe they think we’d pass such an amendment. In fact, given the importance of constitutional amendments, maybe we shouldn’t leave those up to voters, either. Perhaps we should just appoint a “nonpartisan” board to determine what our Constitution says, instead of suffering through those messy elections.

Perhaps the most interesting part of the State Journal’s crusade is the role that the paper itself plays in setting the tone of judicial elections. Recent paper articles pertaining to the ongoing judicial election have dealt solely with each campaign’s charges and counter charges. So while the newspaper decries the “mudslinging” in judicial races, they gobble up the candidates’ press releases like fried cheese curds. Perhaps the Wisconsin State Journal could begin to remedy the poorly informed electorate by actually reporting on something other than what the candidates and third party spenders tell them to.

Instead, their solution is to shield our virgin eyes from the horrors of democracy, as if we are all incapable of judging candidates rationally. Clearly, we are all simple-minded rubes who sit in front of our glowing televisions and take the advertisements we see literally. Discussion of a candidate’s judicial philosophy or past rulings is off-limits, labeled as “sordid” campaigning. It seems to be a risky proposition for a newspaper to repeatedly accuse its own readers of being incapable of having an opinion about how the laws under which they choose to live are interpreted.

In 1903, voters approved expansion of the Wisconsin Supreme Court to seven elected judges, via constitutional amendment. That year, the Dane County Bar held a meeting to pick the judicial candidates it thought were most “qualified” to serve, in an attempt to bully voters unto supporting their preferred picks.

At the time, one strong voice ripped the Dane County Bar’s maneuver, pointing out that their supposed “nonpartisan” recommendations were all loyal soldiers in the LaFollette administration. To wit:

“The Madison Democrat diverts itself from day to day in forecasting judges. It gives names by the dozen, all ardent workers in the LaFollette vineyard for years. They have earned their reward, intimated the Democrat. It indicates that unconsciously the public is losing the solemn sense that long attended the investiture of the ermine. Meanwhile, the work of projecting the “organization” into every nook and cranny of the state goes forward.”

If only the Wisconsin State Journal still stood up for the rights of the voter like it did on March 25th, 1903.

-March 6, 2008
[i] Puzzlingly, one of these editorials attempted to make the case that democracy isn’t really all that important, since most judges begin their tenure as appointees, anyway. Apparently, appointing judges will help fix a broken system where most judges are already appointed. How does it benefit the system to do more of what the paper thinks is a bad thing?

Supreme Disinformation

I hate to beat a dead horse (see previous post), but come on, Wisconsin State Journal.

Here\’s yesterday\’s headline with regard to the State Supreme Court race:

Gableman Won\’t Retract Letters

The dust-up is about a letter sent by Judge Mike Gableman that references a vote cast by Justice Louis Butler to free a convicted sex offender. Butler claims the charge is unfair, since the individual was never freed. Gableman counters that the fact the offender was never released had nothing to do with Butler\’s vote – in fact, the sex offender was retained in spite of Butler\’s vote, not because of it.

Either way, it\’s pretty clear what the State Journal thinks about the dispute. Naturally, it\’s incumbent on Gableman to \”retract\” the letters, since the paper likely thinks they\’re so unfair. The presumption of wrongdoing is always with the conservative candidate, who then must \”retract\” whatever point they were trying to make. The headline could have easily been written thusly:

\”Butler Defends Vote to Release Sex Offender\”

Fat chance of that. Anyway, lest this become just another conservative sour-grapes screed about the \”liberal media,\” (too late, I know), there is a broader point to all this.

The State Journal has been breathlessly editorializing about how Wisconsin should do away with elected judges, and go to a \”merit based\” system, with judges being picked by some \”impartial\” board. (Perhaps as \”impartial\” as the State Bar.) They believe that the political process is clearly much too crude to pick \”qualified\” judges, despite not being able to offer a single example of how any sitting justice isn\’t \”qualified.\” Say what you will about the jurisprudence of Louis Butler and Annette Ziegler, but they are both most certainly qualified to be on the high court.

The irony here is, when given a chance to actually cover a Supreme Court race, the State Journal does nothing but cover the most political of issues in the campaign. In a sense, they are themselves contributing to the disinformation that they so fervently decry. We can\’t elect judges because they get such bad information during a campaign, but they get such bad information during a campaign because that\’s all they\’re willing to cover.

Where are the stories analyzing Mike Gableman\’s philosophy as a judge? Where are the stories analyzing Louis Butler\’s reasoning in lead paint lawsuits? It\’s not like there\’s not an extensive paper trail on both these guys that might serve as a blueprint for their future jurisprudence. Instead, it\’s easier to sit back and wait for their press releases to hit your inbox.

In a sense, the State Journal is right – the public does get slanted, ill-informed facts during a judicial campaign. Only it\’s not the candidates and interest groups that are spreading the misinformation.

The Best Headline Money Can Buy

It wasn\’t until Saturday that I realized there was a newspaper sitting in my driveway. This concerned me, since I do not subscribe to a newspaper. It turned out that it was Friday\’s Wisconsin State Journal.

This has happened before – a paper just shows up in my driveway, unsolicited. I asked my wife how that is any different than littering. If I didn\’t ask for it, how can paper companies just show up and throw stuff at my house? Maybe I should show up at the State Journal offices and dump off an old couch I\’ve been trying to get rid of. My wife said it\’s not any different than getting junk mail, but I objected to that comparison. For one, the postman doesn\’t show up and throw your junk mail all over your front yard.


As I opened this interloping newspaper, I noticed a big headline on the front page:

\”Gableman\’s Appointment Questioned\”

Wow, that must be pretty big news with a headline that prominent. I wonder what neutral, independent, well-respected third party is questioning Judge Mike Gableman\’s appointment to the Burnett County Circuit Court?

In fairness, the article does point out that it is the \”left-leaning\” Greater Wisconsin Committee that has made this accusation. (To say the GWC \”leans\” liberal is like saying Richard Nixon \”leans\” dead.)

But the damage is done with the headline alone. The chances of this headline ending up in a television ad down the road now stands at 95 percent. The only thing that would prevent this headline from showing up on your TV screen at home would be if a picture surfaced of Gableman dressed in traditional Somali garb.

This is one of the reasons nobody should really be all that choked up about the Capital Times newspaper ostensibly going under. The only purpose that paper served was as a headline factory for left-wing campaigns. Of course, nobody in Milwaukee or Amery or Wausau knows what the Capital Times is, so when a clipping of one of their headlines showed up in a TV ad, people statewide falsely assumed it had a modicum of credibility. Wisconsinites may recall Governor Jim Doyle\’s bogus ad accusing Mark Green of \”corruption.\” One of the headlines featured was one from the Capital Times that read \”Mark Green\’s Lawlessness.\”

The true irony of the article lies with the Wisconsin State Journal\’s breathless cheerleading for campaign finance reform. In editorial after editorial, the State Journal urges limits on what outside groups can spend on campaigns. Yet, the only thing that really makes this story newsworthy is the amount of money the GWC is spending on spreading it around. Thus, by reporting this story, the State Journal is carrying water for an evil third party, who it believes shouldn\’t otherwise be able to speak during a campaign. If the Wisconsin Restaurant Workers Association were to issue a statement that accused Justice Louis Butler of being a bad tipper, it probably wouldn\’t be covered. However, if they spent $200,000 on an ad buy saying the same thing, it may sneak its way into the paper. (It would also mean that we\’re all probably tipping too much.) And thus, the cycle is complete.

So congratulations to the Greater Wisconsin Committee on this big victory. You paid a lot of money for that headline, make sure you enjoy it.

Dead Book Walking

I\’m just about finished with Jeffrey Toobin\’s \”The Nine: Inside the Secret World of the Supreme Court,\” which purports (as the title suggests) to be an inside look at what makes the U.S. Supreme Court tick.  It\’s an entertaining read, but can hardly be considered a serious examination of the Court, given the baseless opinions Toobin offers, and the factual errors even I was able to pick out.

For instance, on page 234, Toobin criticizes Justice John Paul Stevens thusly:

\”His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989.  In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because \’it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgeling Colonies into a world power.  It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.\’\”

Naturally, Toobin thinks that \”out-of-character\” for the reliably liberal Stevens means \”wrong.\”  Fair enough.  But he is actually incorrect in saying that Stevens \”sided with the conservatives\” in the case.  (In fact, since he acknowledges that the Texas v. Johnson case is a \”famous\” case, he should have figured people could easily look it up.)

In Texas v. Johnson, the majority opinion was written by the liberal Justice Brennan, who was joined by justices Marshall, Blackmun, Scalia, and Kennedy.  Dissenting were Chief Justice Rehnquist and justices O\’Connor (the hero of Toobin\’s book), White, and Stevens.  Of the \”conservatives\” on the Court, Scalia and Rehnquist split (I, personally, happen to agree with Scalia).  Even the moderate Republican appointees, O\’Connor and Kennedy, split.  So in his rush to paint conservatives as willing to suppress free speech rights, Toobin gets his votes exactly wrong.

There are a number of these errors in the book that intend to make the Court\’s conservatives look like intellectual lightweights, guided solely by partisanship.  Toobin\’s treatment of the 2000 Bush v. Gore case is particularly troublesome, as he repeatedly asserts that the Court badly mismanaged the case – without even paying lip service to the arguments for the Court agreeing to take it up.  It\’s almost as if he forgot the national circus that the repeated vote counting in Florida caused, and he can\’t conceive of the Supreme Court\’s role in wanting to rectify the situation.  And he broadly asserts that the reason the Court took it up was purely partisan – without offering even a shred of evidence.  Justices Scalia and Thomas are particularly portrayed as buffoonish, while much more ink is given to the \”deep thinking\” and \”thoughfulness\” of Breyer, O\’Connor and Souter.

A number of Toobin\’s errors have been chronicled in depth on other blogs. 

That all being said, it is a good read, especially if you want a perspective on the big cases of the past 15 years.  But I hate being stuck in a situation where I have about 100 pages of a book left to read, and I\’m not exactly sure whether I\’m going to be getting factual information the rest of the way home.  I feel obligated to finish, since I\’ve invested the time to get this far, but I\’m skeptical of what I\’m being told (from what I understand, I\’m about to learn how Samuel Alito is the root of all evil in the U.S. judicial system, so I\’m bracing myself.)

SIDE NOTE:  Toobin advances the tired and commonly-used idea that conservatives on the court are exercising their own brand of \”conservative judicial activism.\”  I would suggest reading Rick Esenberg\’s Wisconsin Interest piece on \”activism\” versus \”restraint\” if you inexplicably have found yourself making this argument.

Baby Name Overturned

Between members of the U.S. Supreme Court, there has recently been a spirited debate about the role foreign law should play in instructing our High Court.  Justices such as Stephen Breyer argue that foreign law has a place in influencing U.S. decisions, while Antonin Scalia believes that foreign law shouldn\’t play a role in how we interpret our laws.

After reading this story, Scalia\’s case just got stronger.

Court says baby can\’t be named \’Friday\’

ROME (AP) — What\’s in a name? If the name is Friday, shame and ridicule, according to Italian judges who forbade a couple from naming their child like the character in \”Robinson Crusoe.\”

\”They thought that it recalled the figure of a savage, thus creating a sense of inferiority and failing to guarantee the boy the necessary decorum,\” the couple\’s lawyer, Paola Rossi, said Wednesday. The couple are considering appealing the decision to Italy\’s highest court, she said.

Mara and Roberto Germano, whose son was born on Sept. 3, 2006, had the boy named and baptized Venerdi, Italian for Friday. Even though the boy was not born on a Friday – it was Sunday – his parents liked the name, said Rossi.

\”They wanted an unusual name, something original, and it did not seem like a shameful name,\” Rossi said in a telephone interview. \”We think it calls to mind the day of the week rather than the novel\’s character.\”

Since city hall officials are obliged by law to report odd names, the matter ended up before judges in Genoa, the northern Italian city where the couple live.

Last month, an appeals court stated that Friday falls into the category of the \”ridiculous or shameful\” names that are barred by law, as it recalled the native servant in Daniel Defoe\’s novel.

The judges wrote that naming somebody Friday would bar him from \”serene interpersonal relationships\” and would turn the boy into the \”laughing stock of his group,\” according to a report in La Repubblica this week.

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