Premature attack in the Supreme Court race

One Wisconsin is all over Supreme Court candidate Annette Ziegler for "accepting" a case involving the Hartford Board of Zoning Appeals' approval of an automotive operation at a Wal-Mart Supercenter. Blogger Cory Liebman notes that Judge Ziegler owns stock in Wal-Mart and "wonder[s] why Annette Ziegler would have accepted such a case despite the possible conflict of interests." He goes on to ruminate on whether she will be a justice who favors the dreaded "powerful corporate interests."

This may be a case of letting one's partisan's interests get in the way of actually taking the time to understand what happened here. All that has happened is a complaint (technically a petition for review and supporting documents) were filed with the court. I assume that Cory Liebman is not a lawyer so I don't expect him to understand how the filing of a lawsuit works, but he should take the time to find out if he wishes to comment on it.

So for Cory, here's a primer: Someone walks into (or sends something into) the clerk's office. The case is accepted by a clerical employee and randomly assigned to a judge. After the party who filed the case (not even the clerk) serves the documents on the other side, there is an automatically prescribed period of time for the other side to respond (usually by filing an answer). During all this time, the judge does exactly nothing and may or may not even be aware of the case. At some point, when it does require her attention, she may make a decision to either recuse herself or disclose her interest to the parties.

I would think that Judge Ziegler's holdings in Wal-Mart might very well be something she may want to disclose to the parties (although I don't know that they require recusal; this decision isn't going to affect the share value), but, whatever you think of the matter, it is premature to criticize her for not doing something in a case in which there have been no appearances in court and which she may or may not even be aware of.

And, if they weren't so eager to score a "gotcha", One Wisconsin might have held their fire until they actually had a point to make.

What happened in the Avery case?

I am in D.C. tonight but heard, as I was leaving, that sexual assault and kidnapping charges against Steven Avery have been dropped, although the charge that he killed Teresa Halbach remains. I am just guessing, but the problem seems likely to be Brendan Dassey. He's evidently recanted. Dassy may apparently still testify under an offer of immunity(which may not, incidentally, immunize him from the charges against him in connection with the Halbach slaying - a prospect that Peter DiGuadio - finds unsettling - but only against use of whatever he says against him). But it seems fairly evident that he won't be telling the horror story that he told detectives. Without testimony regarding the holding and rape of Teresa, it may be that the only thing the DA can establish is that she went to Avery's property, her car was found there, Avery's blood was in her car, his DNA was on her ignition key which was found in her house(although they took awhile to find it) and that her remains were found on his property. Maybe that's enough for the murder but it does not establish that she was kidnapped or raped.

It'll be a strange case because, although I haven't followed their strategy, the defense may put in Avery's prior criminal history, i.e., the rape charge on which he was exonerated, to argue that he was framed here. Can it work? At first blush, it seems impossible to be sure that it won't. The evidence against Avery seems no stronger than that against O.J. While there is no good reason for Teresa's car and remains to be on his property (there was nothing incriminating about where Nicole Brown and Ron Goldman were found), you can explain a lot away if you can get the jury to believe that the cops were planting things. Although the defense won't be able to exploit the inflammatory racial angle, there is the argument that "they did it before" although Avery's first conviction seems to have turned wholly on a bad eyewitness ID.

Still, there is the prospect that this guy could walk when almost everyone in the state has heard his nephew's confession, seen that creepy photo in the Journal Sentinel and is convinced that he did it.

The big loser in that - unfairly, I think - will be the Wisconsin Innocence Project. It did nothing but what was right in Avery's first case, but these fine distinctions are often ignored and, to at least some degree, the fallout might be a natural consequence of the tendency on the part of many in the criminal defense bar to portray themselves as fighting against a "system" rather than defending a client. This leaves them open to charges of undermining the system when a jury goes off the rails - as it did in the OJ case. (I am not saying that acquitting Avery would be "going off the rails." He is innocent until proven guilty and we have not heard the case.)

Critics of the system would say that this is simply "blaming the messenger" and there is some truth in that (even if I don't buy most of their message) but we may be in for quite the spectacle. Because the emotions surrounding this will run high, I hope that the media and public commentators will be careful to be measured and accurate. Our system is set up to err in the side of the wrongful acquital over the wrongful conviction, but public perceptions of the latter can enrage just as much as the former.

King Franklin

Via the Volokh Conspiracy, George W. Bush is not the first President to be accused to trying to be a dictator. These are political cartoons critical of Franklin Roosevelt's court-packing plan. FDR wanted legislation that would permit him to appoint one additional Justice for every then-sitting Justice over 70. That would have given him six new appointments and allow him to change the character of a court that had been striking down some of this legislation.

A debate on inequality

I had already seen it, but the Journal-Sentinel'sPatrick McIhleran, fast becoming one of the most well read men in Milwaukee, directs us to a piece by George Mason ecoomist Tyler Cowen in the New York Times. Cowen talks about the sources and consequences of economic equality (which he finds neither nefarious or, in the US, staggering) but also makes a philosophical point which is what catches Patrick's eye. Cowen writes:

The broader philosophical question is why we should worry about inequality — of any kind — much at all. Life is not a race against fellow human beings, and we should discourage people from treating it as such. Many of the rich have made the mistake of viewing their lives as a game of relative status. So why should economists promote this same zero-sum worldview?

What matters most is how well people are doing in absolute terms. We should continue to improve opportunities for lower-income people, but inequality as a major and chronic American problem has been overstated.

Cornell lawprof hEduardo Penalver ,writing on the excellent Mirror of Justice blog, has a different view:

Relatedly, but perhaps more deeply, Cowen ignores the extent to which society is a joint venture -- that we are all, rich and poor, in this together. Maintaining this joint venture as a going concern requires a degree of social cohesion and other-regarding concern, what the Church calls "solidarity." And, as the Second Vatican Council put it in Gaudium et Spes, excessive economic inequality, by itself, undermines that solidarity, and therefore weakens the viability of the social order.

I think Professor Penalver has a point, although economic inequality does not "weaken the viability" of the social order in a vaccuum. The extent to which those with less resent those with more is not unrelated to the extent to which opinion elites (think Sen. Webb after the SOTU address) foster that resentment.

What is missed is the extent to which to which some measure of income inequality is related to raising absolute wellbeing. Much income inequality is created by innovation - if you invented the light bulb or the technologies that made possible the personal computer - you are going to get very rich. At a time or in a place where these things are not happening, the distribution of wealth will be, all things equal, much flatter.

If we want to encourage people to work hard and develop their talents, we have to, for lack of a better term, put something in it for them. People on the left think that we in the United States go "too far" in that direction, but can it be a mere coincidence that we have the most dynamic economy in history?

Hearing about the issues in the Supreme Court race

Yesterday, the Milwaukee Bar Association and several other lawyers' organizations held a judicial candidates forum. The forum was hosted by Mike Gousha, newly named Distinguished Fellow in Law & Public Policy at Marquette Law School. I was interested in the remarks of the Supreme Court candidates.

Madison attorney Linda Clifford criticized Judge Ziegler's campaign for a fundraising letter, signed and written by Margaret Farrow, that, in her view, constituted "meaningless labeling and name calling” amd that "attacked the integrity of the court." She said the letter reflected a lack of judicial temperment and called upon Judge Ziegler to renounce what she saw as a product of "extremist elements" in our state.

You can read the letter here. I would not use some of the language that it used, but I am not a fundraiser either. Nor is it a simple matter to attribute what is said in a fundraising letter to a judicial candidate. The state's code of judicial conduct prohibits a judge from personally soliciting or accepting campaign contributions. While I suppose you could review or repudiate a fundraising letter, there needs to be a barrier between the candidate and fundraising that does not exist for other types of office.

My concern is not the particulars of the letter, but to make clear that the a debate on the proper role of the judiciary - even if it does involve criticism of some of the court's past decisions - is not an assault on the court. What concerns me is the risk that we essentially remove the issue of judicial philosophy from the race by conflating criticism of the court and the way in which at least three of its members (who are lawyers of intelligence and integrity)see their roles with a meaningless "attack."

Without getting into everything it says, the letter says that a majority of the court has made decision that are indeed tantamount from legislating from the bench and that have usurped the role of the legislature. That is a strong criticism, but it is one that has been made by the dissenters in some of the court's cases.

For example, Justice Jon Wilcox, dissenting in Thomas v. Mallett, 2005 WI 129, 285 Wis.2d 236, 701 N.W.2d 523, a case holding that a plaintiff may sue the manufacturers of lead paint pigment without proving which ones made the pigments to which he was exposed, says that "the majority opinion amounts to a little more than this court dictating social policy to achieve a desired result" and that it did not "conduct a fair and neutral evaluation of the merits of the parties' arguments in light of the state's laws and constitution."

In State v. Jerell C.J., 2004 WI 105, 283 Wis.2d 145, 699 N.W.2d 110, a case requiring that all custodial juvenile interrogations must be electronically recorded, dissenter Justice David Prosser said that the majority's opinion constitutued "legislating from the bench."

In Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis.2d 573, 702 N.W.2d 440, a case that struck down limits on malpractice judgments, Justice Patience Drake Roggensack wrote in dissent that the majority opinion "'talks the talk' about legislative enactments and the heavy burden the challenger to a statute has, ... but it does not "walk the walk."

This is strong language (and I could list more examples), but I do not believe that Justices Prosser, Wilcox and Roggensack lack respect for their colleagues. In disagreeing over important matters, people often speak sharply.

As the campaign proceeds, I hope that the candidates will engage in a frank discussion of their views of the role of the judiciary. I want to hear how they believe a judge ought to decide cases rather than simple bromides about "qualifications" and "following the law." Courts deserve respect and I agree that candidates for judicial office should not promise to decide particular cases in given ways or run as partisans. But that doesn't mean that they get to ignore the elephant in the living room - which, in this race, is when and how a judge should override the enactments of the legislature, when he or she should depart from settled precedent and upon what principles and values he or she should base decisions.



There are people who think that this type of judging is justified. I don't. But whether or not it is and what these candidates think the role of a judge should be is - without qualification - the most important issue in the race for Supreme Court; that is every bit as important as the race for Governor.

The meeting must have adjourned without action

WisOpinion.com tells us that, on this day in Wisconsin history, there was a meeting in Monroe to discuss what was seen, in the quaint language of the day, a "moral crisis." There had apparently been 40 out-of-wedlock births in Green County in 1959.



There were 114 in 2004.

Global Warming Answer

Jay Bullock wonders why conservatives are so invested in, as he puts it, "denying" global climate change. He wants someone to explain. I'll try.

First, I am not sure that it is correct to say that we "deny global climate change" although some do. It is one thing to observe an increase in global temperatures and even to accept the notion that human activity has something to do with it. It's quite another to buy into Gorean hysteria over what that means and what ought to be done about it. Contrary to Jay's assumption, there is no scientific consensus about that.

Second, I should acknowledge (as I suspect he would) that broad generalizations about what people on the "right" and "left" do and think are only going to be that. But blogging ain't rocket science so let's play.

I might turn Jay's question around. Given a few facts, why are folks on the left so quick to come to the conclusion that everything that we think we know is wrong and that the world as it exists must change dramatically? Jay's comments about the conservative Christians "rejection" of evolution is a case in point. He says that he understands why such folks might embrace "pseudo-science" because "[evolutionary theory's] implications reject the foundation upon which much of their religion is premised: God created the earth and everything on it, and to suggest that human life, which they believe is made in God's image, is a mere accident of biology is quite literally sacrilege."

It is these "implications" that most of us reject. Scientists have proven that evolutionary change exists. They have not proven - and probably never could prove - that life is a "mere accident of biology." Embracing that conclusion, which so many on the secular left believe is an acknowledgment of "scientific truth", is actually an act of faith.

Al Gore's silly movie is an example of this. Starting from the presumption that there is a consensus about the fact that global temperatures have risen and human activity probably has something to do with it, he implies that this consensus includes his dire predictions and extreme (and probably counter-productive) recommendations. The result is ManBearPig.

If I had time for more thumbsucking, I might suggest that these leaps of faith are rooted in a tendency on the part of the left to be skeptical of convention and to, as we reactionaries say, "immanentize the eschaton." But that might be my own kind of overreaching.

A primer on judicial restraint - inital thoughts

Bruce Murphy of Milwaukee Magazine thinks that he has the lowdown on Wisconsin Manufacturers & Commerce and, who knows, maybe he has. Murphy argues (with, it seems, not much evidence) that WMC supports Judge Annette Ziegler for Supreme Court because he expects her to be pro-business. He points out, properly, I think that "judicial restraint" and "pro-business" are not synonymous.

In fact, a fairly standard interpretation of American constitutional history is that an early paroxysm of judicial activism was "pro-business" with the Court striking down progressive and New Deal economic regulation without adequate constitutional justification in what is frequently known as the Lochner era.

Different people define restraint and activism in different ways and others deny that there is any such distinction. (Sometimes I wish we could use more precise terms.) In my view, however, what distinguishes "activism" from "restraint" (and the terms are admittedly relative) is not "anti-business v. pro-business" or even "liberal v. conservative." Rather the distinction turns on the extent to which a judge bases his decision on some external authority rooted in the consent of the governed, i.e., a statute or the constitution, interpreted in some way that makes it something other than whatever the judge wants it to be. As Chief Justice Roberts has said, a judge is like an umpire. A judge enforces the rules; she doesn't make them. This implies that the rules come from somewhere else and that they are sufficiently definite to be "applied" rather than "discovered."

It is for this reason that Murphy is wrong when he says that an argument that the a ban on same sex marriage violates the United States Constitution is not activist. He expresses disbelief that "an activist is someone who wants our laws and amendments to conform to our nation’s founding document .... This would tickle James Madison."

My guess is that James Madison would be more than "tickled" by the idea that the United States Constitution creates a right for two men to marry. "Nonplussed" might be more like it.

The reason that the argument that a same-sex marriage ban is unconstitutional is "activist" is that it is not fairly inferable from the constitution itself. It would either have to be based on some notion of "privacy" - a term that is not itself found in the document and that is not capable of principled definition drawn from the constitution - or in a novel interpretation of the equal protection clause. That novel interpretation would have to apply the clause in a way that its framers would have opposed (and yes they did intend that it be applied to blacks) or would have to adopt a form of garden variety equal protection review that would have no limiting principle and empower the court to strike down virtually any law it did not like.

Whatever you feel about same-sex marriage, the idea that a judge should find that it is compelled (or, for that matter, prohibited) by the United State Constitution is about as activist as you can get.

Whether WMC wants a "restrained" or "pro-business" justice is something I do not pretend to know and I am not going to express a judgment about any of the candidates running for the state supreme court. But in our current judicial environment (particularly in Wisconsin), activist decisions most often yield results that can be characterized as "liberal" or "anti-business." As I said, restraint does not have to equal conservative or pro-business and often, in our history, it has not. Still, it wouldn't be crazy for WMC to conclude that they are better off with a justice who has a philosophy of "restraint" than one who does not. Whether it has gotten it right is, I hope, one of the things that the campaign will explore.

Elegant and eerily lyrical sickness

Via Jessica McBride, one of the featured films at Sundance is a documentary about guys who love animals. I mean really love them.

It's not surprising that a chunk of the people who frequent Sundance regard this as "an elegant, eerily lyrical film." The stereotype of the intellectual who thinks transgressive is synonymous with profound is old, but resilient.

The movie is, they say, not graphic and the director claims to have "aestheticized the sleaze right out of it." I'm skeptical, but maybe he did. Leni Riefenstahl managed to make a Nazi Party gathering in Nuremburg look pretty neat, too. It is art, I suppose, but what do you make of art that distorts reality and your own moral compass?

This movie, Zoo apparently consists of "elegiac visual re-creations intended to conjure up the mood and spirit of situations." These "situations" apparently involve the "marriage of the completely strange mind-set and the beauty of the natural world ...." How deliciously outre. Sundance is just so out there.

To paraphrase Stan Marsh, "Dude, they're horses."

Keeping Milwaukee poor

Via Dan Knauss

I understand that there will a meeting on tonight at 6pm at the DNR building (2300 MLK Dr.) in rooms 140/141 to provide information about a proposed 5 story condominium and retail development in the old Christian Faith East Church at 2001 N. Holton St. (Holton and Brown). The local alderman, McGee, Jr., apparently opposes it because it will drive up property values at 5th & Center and is "anti-black gentrification."

I can't make it which is a shame. I'd sure like to hear Alderman McGee explain how keeping tax base and the middle class out of Milwaukee will make the city stronger.

In any event, there are some already some pretty pricey properties between Holton & Brown and MLK and, in that neighborhood, some fairly clear - if invisible - boundaries between gentrified and nongentrified areas with few of the benefits of the former spilling over into the latter. I'm sure that Alderman McGee's bold policy initiatives like more cruising and no snitching will keep it that way.

Patterson, Steele and McGee, Jr.

As Patrick McIlheran points out Shelby Steele has an extraordinary piece in Crossroads yesterday regarding the end of the idea of white supremacy. The standard response to this is that racism is still just as virulent - or still pretty virulent - but "subtle."

How one can believe that such a racial hegemony can exist when to even hint at it in public will destroy your career is beyond me? Obviously there are still racists of the old stripe and certain racial stereotypes persist to varying degrees, but, as Steele points out, in twenty-first century America "swims upstream in an atmosphere of ferocious intolerance."

Patrick doesn't mention it, but Orlando Patterson's companion piece is just as extraordinary. Her writes:

If one acknowledges that individual attitudes, values and behaviors are the main sources of the problems young black men face - the undeniable existence of racism notwithstanding - then the right strategy is to explore the nature of these values and to understand the factors that reinforce and sustain them.

Patterson is no conservative, but he too rejects the notion that the problem is racism and the solution is external. He goes on to argue that the government has a role to play in fostering the internal development of the black community (something that I do not completely disagree with) but he makes clear that the solution lies in changing inner city culture.

Patterson - and Steele - would be quick to point out that this culture is not intrinsic to African-Americans. It is a relatively new development and, in my view, white people (including - or even primarily - white people on the left) bear a great deal of the blame. But the fact that it is not an inevitable consequence of poverty and, in many ways, antithetical to the way in which the black community weathered slavery and the very real and pervasive racism of the first 100 years antebellum makes it all the more tragic.

But here in Milwaukee, too much of the "official" leadership of the city carries water for Michael McGee, Jr., and plays the race card. Good to keep you in power, but not to change things.

Muslims and 24

I can understand why Muslim groups might be concerned about the potential for ordinary law abiding Muslims to be conflated with terrorists, but the problem is not, as some of them seem to think, dramas about Islamic terror such as this season of 24. The problem is not, as Rabiah Ahmed of the Council on American-Islamic Relations (who says she is now afraid to go to the grocery store) isn't that the public "will be unable to differentiate between fiction and reality." Its not fiction that Ms. Ahmed should be concerned about, it is the fact of Islamic terror around the world.

As the Fox network points out, villians in past seasons of 24 have included "shadowy Anglo businessmen, Baltic Europeans, Germans, Russians, ..., and even the (Anglo-American) president of the United States ...." No one was concerned about violence breaking out against any of those groups because the fact is that we don't have a global problem with German or Anglo terror (and violence in Russia and the Baltics is pretty much intramural).

At least in the four episodes to date, the show has bent over backwards to be politically correct. Jack Bauer is running with a repentent Muslim terrorist (how many of those have there been?) and the unfairly detained head of the fictional equivalent of CAIR has refused release so he can feeding information to the feds. The terrorists are obviously Muslim but, if one was oblivious to the real world, you'd never get the idea that Islam is a motivating factor in the violence. There has been, near as I can recall, any airing of real world terrorist "grievances" - no mention of Israel or the dominance of infidels. Unlike the real terrorists on 9-11, there have been no cries of "Allah Akhbar" or the religious ablutions prepatory to "martyrdom" that are characteristic of suicide bombers.

One of the amazing things about the post 9-11 world (apart from the fact that the U.S., under the leadership of the "worst President ever," has not been hit again) is how little anti-Muslim violence there has been. The FBI reported 128 "anti-Islamic" hate crimes in 2005. There were 848 such crimes against Jews. Even in 2002, the first calendar year after 9-11, there were only 155 incidents attributed to anti-Islamic bias as opposed to 931 anti-semitic incidents.

I think Ms. Ahmed will be ok at the local 7-11. The Muslim community in the United States does not seem to be dominated by extremists and most Americans understand that.

But, if Islamic terror does return to the United States (or increases abroad), there will be a challenge for the Muslim-American community. A disposition toward tolerance will, rightly or wrongly, go only so far. One of the things that groups like CAIR might do is make clear that they are on the side of the angels. While I understand that they have made pro forma denunciations of terror, they have devoted far more energy, as Gabriel Schoenfeld points out in Commentary, to "an oppositional stance vis-a-vis the Bush administration and the war of terror...."

Wisconsin Right to Life goes to Washington

The U.S. Supreme Court has agreed to hear Wisconsin Right to Life's challenge to application of McCain-Feingold to genuine issue ads run "too close" to a federal election or primary. WRTL sought to run ads urging Senators Kohl and Feingold to vote on the President's judicial nominees. McCain-Feingold prevents the use of the organization's general treasury funds for ads mentioning a candidate for federal office within thirty days of a primary or sixty days of a general election (if it is broadcast to an audience with more than a specified number of folks where the candidate is running).

Writing at the Election Law Blog, Prof. Rick Hasen thinks that this may begin to roll back the McCain-Feingold regime. He thinks this is a bad thing. I don't.

Campaign finance regulation that goes beyond disclosure to the placing limits on the extent to which persons and groups can communicate about an election or about the issues at a time when both candidates and the public are paying attention is a rather significant restriction on freedom of speech. I can't get past that.

I understand the argument that "spending money" is not speech, but this case is not about contributions to a candidate. It is about the ability of an advocacy group to communicate with the public at an appropriate time. If all the first amendment protects is our ability to stand on a tree stump and speak to whoever is within earshot, it doesn't protect much.

The tragedy of McCain-Feingold's restriction on speech is compounded by the fact that it has done exactly nothing to limit the supposedly corrupting influence of money that is spent on politics. The need to raise money is just as overwhelming and people with a lot of money to spend are just as important.

We've now had about thirty years experience with campaign finance reform and, while I think disclosure is important, limits on contributions and expenditures have done nothing to make our politics less corrupt or our candidates less driven by the need for cash. To the contrary, "reform" has made it harder (and much less attractive) for candidates without personal resources or who are not incumbents to run. Trying to raise enough money to run in the increments permitted by campaign finance laws is always extremely difficult and often offputting. There are lots of good people who won't run for public office because they do not want to spend a year of their lives begging for money.

Some folks, take Fighting Ed Garvey as an example, want public financing. This has a superficial appeal, but I have never heard anyone explain how it could be implemented without doing serious damage to the political process. Would you make it illegal for a candidate to spend more? Would you prohibit all independent expenditures? If you don't, the purpose of public financing is likely to be subverted. If you do (and if the courts permit it), you have undermined the first amendment in some very frightening ways.

Frightening, in particular, because we won't be able to give public money to everyone. The candidate who once came out of nowhere will now stay there.

Maybe there is a way to do it, but I have yet to hear it.

NOTE: An earlier version of this post did not make clear that the prohibition was on ads funded through general treasury funds of a corporation and union.

What's wrong with the un-oath

In the Cap-Times, John Nichols asks about what is wrong with the "I don't mean it" oath to uphold the state constitution authorized by the Madison City Council. Since he doesn't get it, I will explain.

Nichols wonders what is wrong with "coupling a declaration of loyalty to a constitution as it is currently written with a promise to work to make the document more reflective of the American promise that all citizens are deserving of equal protection?"

My answer is: nothing. Let me give you an example. Where I ever to be appointed to be a federal district judge or appointed to high federal office, I'd happily say - in a supplemental statement - that I would like to see the erroneous interpretation of the Constitution that confers a virtually unlimited right to abortion overturned. But, until it is, I would be bound - as an executive officer or inferior federal magistrate - to follow it.

In the unlikely event that I ever were nominated to the federal bench, you can bet your life that this would be the central issue in my confirmation hearing. Having said in public that I think Roe V. Wade was wrongly decided, would I - until it is overruled - uphold it? It's a legitimate question and my answer would be that I would. It would be my obligation.

The problem is that the Madison oath goes beyond a statement that "I will work to improve the constitution" and "I'll uphold it as written." It says that the vote to uphold the constitution is taken "under protest," IEEE, "I wouldn't do it unless someone made me." It pledges the oathtaker to work "to prevent any discriminatory impacts from its application."

The last part sounds good, but it's a sound bite. The people who are taking the oath "under protest" think that it is inherently discriminatory not to let two guys marry. The promise to prevent "discriminatory impacts," makes the alternative oath a simultaneous promise to uphold and to undermine our constitution. It's as if I swore to uphold Roe and to prevent its application from allowing any innocent human beings to be killed. I have promised to do two things that I think cannot be done at the same time. You wouldn't take it seriously and I don't take the Madison oath seriously.

Nichols would not be convinced by any of this because he thinks that not allowing people of the same sex to be married is tantamount to slavery or to not allowing women to vote, as if gays and lesbians are being held in involuntary servitude or denied the right to vote or to contract or to be employed. That's his privilege. But the majority of people in Wisconsin - at least outside the confines of Dane County (and maybe LaCrosse where the amendment lost by 16 votes) - disagree.

Subsidize us

Its not a new story but I first heard it on Fox News last night. There is apparently some possibility for the extinction of redheads by the year 2100.

This means that my home is a habitat for an endangered species. Doesn't that entitle me to a property tax exemption? Some government funded maintenance? We are teetering on the abyss here. I wouldn't want the Reddess to succumb for a lack of supplies from Sephora.

And its not just her. I have paid for my (not as redheaded)son's college education so that he will be able to properly raise little endangered redheads. I think some payback is in order.

Has Bush surrendered on terrorist surveillance - or has he won?

As I drove home from UWM's win over UIC (one of the few bright spots in a rebuilding season), I heard Mark Levin (and Andrew McCarthy)express dismay that the Bush administration had "pulled the plug" on the Terrorist Surveillance Program and will now go to the FISA court and try to prove probable cause before listening to international communications in which one of the communicants is believed to be a member of Al Qaeda or associated terrorist organizations.

At issue is a letter from Attorney General Gonzales to Senators Leahy and Specter in their capacities as Chair and ranking minority member, respectively, of the Senate Judiciary Committee. General Gonzales does say that "any electronic surveillance that was occurring as part of the [TSP]will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."

But the key may be why that is so. Gonzales begins the letter by saying that, on January 10, an FISC judge issued orders authorizing the government to "target for collection international communications into or out of the United States where there is probable cause to believe" that one of the communicants is a member of Al Qaeda or a related terror organizationed

Does this mean that the government must go to the FISC and get probable cause for each communication (or each communication involving a particular communicant)? That seems unclear, but I think that it may not. The letter says that the orders are innovative and complex and took a long time for the government to develop. There would be nothing particularly innovative and complex about case by case determinations of probable cause for the interception of communications between identified parties. Courts do that all the time.

Gonzales says that any court authorization would have to offer the same speed and agility as the TSP and that these orders do. Therefore, he concludes "under these circumstances," the President has decided not to reauthorize the TSP.

Law prof Orin Kerr blogging at the Volokh Conspiracy reads the letter to say that DOJ has persuaded a judge to authorize the entire TSP and, while I suspect that there are things in the orders that were not in the original program, my guess is that he is right.

Nullification in Madison

My latest post at Consitutionally Correct addresses how the Madison City Council is channeling John Calhoun. You will recall from seventh grade history that Calhoun was, among other things, a former Vice President, Secretary of State and, I think most famously, a Senator from South Carolina who defended slavery and state's rights. Calhoun believed that states could nullify any federal law that, in their view, was unconstitutional. Madison proposes going him one (or two) better by allowing individual officers to nullify the constitution itself.

A challenge to the Governor

In principle, there is nothing wrong with Governor Doyle creating a panel to study the incarceration of minorities in Wisconsin. The rates at which, for example, young African American males wind up in prison are troubling whether or not they reflect discrimination in the criminal justice system. Something is going wrong somewhere.

In practice, however, it is likely to be a disaster unless Doyle appoints a panel with a diversity of viewpoints as opposed to simply diverse pigmentation and gender.

The traditional line on the left is that this is fairly materialistic. Paul Soglin assumes that position. The problem is a function of the absence of jobs and the government needs to create more.

He's not completely off base. I am not reflexively opposed to government programs that help inner city kids find productive things to do, but, mostly, this sounds to me like the maintenance of a faith in the face of the facts. The idea that a significant number of offenders would be law abiding if only someone gave them what would almost certainly be a relatively low paying job not only underestimates the extent to which such jobs are already available, but it ignores the degree to which culture and family background have consistently undermined government anti-poverty programs.

The traditional line on the right has been that young black males go to prison more often because they offend more often - and (this is the thing that is so often ignored on the left)their victims are almost always other blacks. James Wigderson points this out and he has the advantage of being right.

Studies, such as the one cited by the Governor, try to wave this off, but not very convincingly.

Still, there are ways in which - even controlling for the extent and severity of offenses - there is probably still a "racial" effect in the criminal justice system. You are far better off in the system if 1)you have the money for a lawyer and 2)you have a supportive family. The lawyer is not likely to get you off, but he or she will make sure that the charge on which you are convicted is as lignt as it can be and that you get heard on sentencing.

A supportive family will give the judge some reason to think that you may have half a chance to pull yourself together.

People on the left (or at least the thoughtful among them)know that, but their response tends to be to assume that culture and family breakdown must be taken as a given or as some inevitable by-product of poverty. Government, they say, should act in ways that mask the racially disprortionate impact of this (by making sure that minorities are not "overrepresented" in prisons) or try to provide - generally when it is too late - what strong families and culture would have.

I think the premise of that view is wrong. There are numerous examples - including the pre-civil rights era African American community - in which families and culture were strong in the face of poverty and discrimination.

The prescription is futile. We can make sure that our prison population looks like America, but we can't do the same with our population of criminals or, and this is key, victims. Blacks are "overrepresented" in that population as well. Maybe King Day would have been an appropriate occasion to appoint a panel to study that.

Nor can government provide what families and culture have not. It can try (sometimes, as in the case of foster care, it must) but treating the symptoms is never as effective as going after the cause.

I think that dialogue between the left and right on this would be useful, but will the Governor make appointments to this panel that will permit that to happen?

S-squared at C-squared

My most recent post at Constitutionally Correct addresses the nascent rebellion in Madison city government.

Happy King Day

The next time sometimes expresses concern with President Bush's God-talk and with his belief that, as a leader, his charge is to discern God's will and act accordingly, keep in mind the final paragraph of Martin Luther King's last speech:

Well, I don't know what will happen now. We've got some difficult days ahead. But it doesn't matter with me now. Because I've been to the mountaintop. And I don't mind. Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I'm happy, tonight. I'm not worried about anything. I'm not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

- Delivered on April 3, 1968 in Memphis, Tennessee.

Somewhere they are lining up to run against Kagen

Steve Kagen has been in office for less than two weeks but he already looks like a one-termer. This is what happens when we elect a guy whose qualification for public office was pretty much limited to 1) he had a lot of money to pour into his campaign and 2) he was not a Republican in a Democrat year. Of course, Dems will defend him as long as his conduct stays on the near side of the Mark Foley line just as, I suppose, Republicans would defend a GOP version of Kagen. A politically astute (Democratic)colleague once told me that she did not care how smart or offputting a legislator was because all they are is a vote and, as long as they vote the right way (i.e., her way), the rest does not matter. There is, I think, wisdom in that.

Religion and the right

There has been a minor controversy among conservatives set of by an article by Manhattan Institute scholar Heather McDonald in the American Conservative. Ms. McDonald has done some great work and is a respected commentator. In the American Conservative, she proclaimed her atheism and expressed some discomfort with the religiousity of her colleagues on the right. She elaborates here, expressing the view that conservativism should be based on reason and logic and that one need not be religious to be moral or even, it seems, to hold rather traditional moral values.

Ms. MCDonald's criticisms of religion are neither novel or very insightful, resting largely on the way in which some people misuse, or express childlike views, of their faith. If you believe that the Lord is going to bring you a Mercedes Benz or that God will ensure that the good (or your version of the good)will always triumph, you have some more theology to study.

On the other hand, I am not troubled, as Heather apparently is, that people bring their neediness before God through petitionary prayer or that they express gratitude toward the Almighty when things go well. There is, for her, an illogic in asking for what you know you cannot always have or being thankful for that which you just as easily could have been denied. I can understand that God's creation is not run for my personal benefit and yet bring my desires before God if for no other reason than to express and acknowledge that I am a part of that creation. I can be thankful - when I am able - for being part of that creation even when I know that it will sometimes entail things that I do not want and will not like.

I agree with her, however, that even those on the religious right (of which I think I am an auxilliary member) need to be able to make arguments that may appeal to those who do not share their faith presuppostions. But we do.

I also agree that one can have a morality - even a traditional one - without being religious. On the other hand, morality cannot be based solely on reason and logic since these require first principles to which we cannot reason. These first principles have to come from somewhere and often people who are say that their "first principle" are not religious are simply standing on the foundation applied by our Judeo-Christian tradition.

WPRI has something to say

Some commentators are on the left have been cavalierly dismissive of the Wisconsin Policy Research Institute's analysis of the Wisconsin Health Plan, shooing it away because its authors raise what are some fairly commonplace economic concerns about government-provided healthcare and the anomalies that arise when those who decide on whether to use something are not those who pay for it.

Seth Zlochota suggests that we need not even read the WPRI study, in part, because the guys who wrote it aren't all in on government health care.("All [they]do is lay out a theoretical groundwork for why we shouldn't have health insurance.") My Backstory colleague Jim Rowen who might have carefully analyzed the study chooses to tell us that we don't need to because the WPRI represents something called Corporate Libertarianism as if economic facts can be dismissed as "mean" and "selfish."

The WPRI, like the Legislative Fiscal Bureau before it, makes what seems to be an unassailable case that the Wisconsin Health Plan could not be funded by payroll taxes ranging to 12%. The WPRI estimates that an average (not maximum) payroll tax of 17.1% (according to the current allocation, 15.1% on the employer and 2% on the employee) would be required.

WPRI critics like Seth dismiss by arguing that the state as the doorkeeper for qualifying health plans could negotiate big provider discounts but, if WPRI were right, the simple expedient of having the state pay for health insurance would result in a 25% reduction in costs. It is hard to believe that could happen, unless it occurs in the same way that the Canadian government has reduced costs, i.e., by making more expensive care (e.g., surgeries) less available.

WHP proponents say that the payroll tax will simply replace all (or, as WPRI corrects) most of what employers pay for health care now and there is a great deal of truth in that. Maybe an increase in employer costs is a fair tradeoff for increased coverage and decoupling coverage from one's current job (which itself causes economic inefficiencies).

But there are reasons to pause. A 15% tax on adding new payroll (both new jobs and salary increases) may have serious economic consequences, depressing labor intensive businesses, supressing wage increases and putting certain Wisconsin businesses at a competitive disadvantage.

Providing a free policy with state mandated benefits effectively politicizes health care. What will and will not be provided and how quickly it will be provided and at what quality becomes - increasingly - a political question (although the WHP as initially conceived does retain some elements of competition and consumer choice.) This not obviously better than the current system. It will solve some problems, but it will create new ones.

My own sense is that there is a case to be made for mandating that everyone over the age of 21 buy and maintain a high deductible policy with some type of subsidy (health insurance stamps?) for low income persons combined with health care saving account (again perhaps with subsidy for poor persons like the WHP). The mandatory aspect may be required because of the "free rider" problem inherent in health care. We are not going to (and should not) turn seriously injured or ill persons away from emergency rooms because they did not - or could not - buy insurance.

Barbara Boxer is a real woman

Barbara Boxer has behaved despicably. During testimony by Secretary of State Condoleeza Rice yesterday before the Senate Foreign Relations Committee, she suggested that Secretary Rice can't understand the cost of war because she has no children:

"Who pays the price? I'm not going to pay a personal price. My kids are too old and my grandchild is too young," Boxer said. "You're not going to pay a particular price, as I understand it, with an immediate family. So who pays the price? The American military and their families."

There is a sense in which I think it helps to be a woman to understand how hostile this question is. The Reddess was apoplectic over it. "You wouldn't know because I have kids and you don't" is a putdown among women that is regarded as uniquely hurtful.

Beyond that,what is Sen. Boxer's point anyway? Is it that Condoleeza Rice does not care about casualties because they won't include her direct descendants? Is it that she can't understand the value of human life because she is not married and has no children?

Perhaps she was trying to emphasize that those who decide on war are making decisions about other people's lives, but that is both trite and inconclusive. There is no choice in Iraq which will result in no one dying and the idea that Secretary Rice does not understand the stakes because she doesn't have a child at risk is silly. One could just as easily argue that, if a President or Secretary of State did have a child in the military, his or her judgment would be impaired by a desire to preserve the life of a loved one as opposed to making a decison that is in the best interests of the nation.

Sen. Boxer's comments are an evasion of the real issues surrounding Iraq policy. Too often, rather than engage those with whom we disagree we impugn their motives or intelligence or compassion. We just can't fathom that intelligent people acting in good faith and who are just as moral and caring as we are might come to a different conclusion about important questions.

Let the minimum wage go

Assuming that it passes the Senate, I do not believe that President Bush should veto the minimum wage increase passed by the House. This is just not a very significant piece of legislation. In 2005, only about 1% of the population actually earned the minimum wage and most were young part-timers. Of course raising the minimum wage from $5.15 to $7.25 would affect more than just these folks. The liberal Economic Policy Institute thinks it is around six million (which gets us up near 5%) (although in Wisconsin it would apparently affect relatively few), but it is not clear that they adjust for tip income for restaurant workers which has a huge impact on the numbers.

The key is that very few wages are fixed to the minimum. Very few people are paid what they are paid because it is the least the government will allow. The interplay of supply and demand in the labor market almost always results in a wage above the federal minimum. This suggests that we are not in a situation where there is a dramatic oversupply of low skill workers resulting in employers being able to pay much less than the value added by these workers.

Much of the discussion around the minimum wage suggests that it will result in more money for low wage workers and, for some, it will. But it is highly unlikely that every - or even most - people who work for somewhere between $5.15 and $7.25 an hour are actually worth more than that to their employer. It is inevitable that, as some see wage increases, others will lose their jobs or see a reduction in hours. Whether or not the net result is more money for poor workers is far from clear. The fact that wages are not determined by the minimum also casts doubt on whether there will be a large "spillover" effect (i.e., increases for people currently above the minimum) that proponents of an increase presume. It may turn out that a minimum wage increase is not very compassionate at all.

But the impact is likely to be small and there is just no way that Bush can win by trying to explain a veto. This may be bad policy but its not worth the fight.

The Dems discover self reliance

I have no idea whether the President's new plan for Iraq will work. A lot may turn on whether the Iraqi government will rise above the sectarian fray and there is not a lot of reason to be optimistic about that. On the other hand, I think that any significant steps to make that happen are likely to take place - or have taken place - behind closed doors.

But the Democrat's response - at least as reflected in Durbin's speech and the statement released last night by Pelosi and company - is shockingly insubstantial. We should announce our departure because then the Iraqis will realize that they must help themselves.

On the one hand, I suppose that we should be happy that the Dems have discovered self-reliance. I have not often heard them agree that the withdrawal of government support might induce the recipient to help himself.

But in this case, it seems like a nothing more than a dodge to avoid admitting that what they want to do is admit defeat and quit. I don't know if the Iraqi government is up to controlling sectarian violence but my guess is that it certainly won't be until the thugs (both sunni and shiite are pacified to a far greater extent than is currently the case). If the US announces that it is about to bug, my guess is that Mailiki and company would see there path to survival as shiite "victory." Peace will no longer look like an option.

Bush's statement that our commitment in Iraq is not open-ended is true whether he meant it or not. While there are not - and should not be - deadlines for withdrawal, there are, whether the administration sets them or not, deadlines for showing progress. While things may get worse before they get better, there is going to have to be some demonstrable progress in 2007. If there is not, both parties will run away from the war in 2008.

The challenge may turn out to be demonstrating that this progress has been made since it is unlikely to be the kind of victories that conventional wars produce. We won't "take" anyplace because we already hold them. What we will do is make them safe and that will be reflected in an absence of news.

The media and hate crimes

Eugene Kane links to an interesting piece in the L.A. Weekly about press coverage of a case in Long Beach in which a mob of blacks allegedly viciously beat some white girls while shouting anti-white slogans and epithets. Kane, to his credit, thinks that the media has downplayed the case and its racial element because the perpetrators are black. The article considers how the media should cover this "man-bites-dog" story and quotes several commentators as wondering whether blacks "can" commit a hate crime or whether hate crime laws should be used against blacks.

First, is this really a "man-bites-dog" case? FBI statistics for 2005 show 3200 "anti-black" hate crimes (mostly committed by whites) and 935 "anti-white" offenses (mostly - but less so - committed by blacks). Looked at another way, the FBI identifies 1803 white "anti-black" offenders and 368 black "anti-white" offenders. Although I am just eyeballing the statistics, this strikes me as roughly congruent with the relative proportions of blacks and whites in the population. If we are going to have a thing called "hate crimes" it seems that blacks are at least just as likely to be charged as whites.

Apparently, that bothers some people. One concern, I suppose, would be over inciting white racism. If we publicize stories like the Long Beach attacks, we will be feeding white prejudices. Much of the same attitude can be seen among those who believe that it is problematic to put too much focus on high crime rates in the black community.

I am skeptical that much is ever accomplished by suppressing facts and the hate crime statistics themselves suggest that anti-black violence is not - proportionally - a more significant problem than anti-white violence undercutting the notion that there is a white monster just looking for an excuse to get out. I think this concern hints at a problem with hate crime laws which I will discuss below, but it is not a reason to cover up the wrong type of hate crime.

Another argument, expressed by Fara Chideya, of NPR, sounds like this:

"Some people say black folks cannot be racist because the root of the issue is power. So what do you make of this crime where you've got 12- to 17-year-olds and, you know, black people attacking whites? Is this a traditional hate crime? Should it be prosecuted as such? People in the community are kind of divided about that."

This has always struck me as a nonstarter. What, after all, is the evil in racism? I think that what resonates for most people is the denial of a person's individuality. The racist treats members of the disfavored racial group as things characterized by their race and whatever is associated with it rather than as unique human beings created in the image of God. It is just as bad when members of racial minorities do this as when the majority does it and, as the Sunnis and Shiites are showing us in Iraq, it can be just as deadly.

This brings me, at last, to one of the reasons that I oppose hate crime laws. While I understand the rationale - that an act motivated by race undercuts the notion that we should not act on the basis of race and risks the inflammation of racial tensions - that rationale does not seem to be well served by this kind of law. In deciding what it is or isn't a hate crime, we let considerations of race in through the backdoor. The idea that these laws can be administered and talked about in an apolitical way that is not itself infused with racial considerations seems impossible as suggested by the Long Beach case itself. In singling out racial crimes for heightened prosecution, it seems that we are as likely to inflame as to assuage racial tensions.

Between game thoughts on McGee

A local academic sends an e-mail reminding me that aldermanic demogaguery in Milwaukee was certainly not limited to the McGees. Some of us remember Bob Anderson, a south side alderman, whose singular contribution (besides constituent service)was to rile people that his constituents didn't like. Other than that the city was no better for his 32 years on the council and I suspect that the McGee legacy will be just as rich.

My correspondent (who I do not have permission to name)also remarks upon the similarity betwwen McGee and segregationist politicians like George Wallace and Pitchfork Ben Tillman, a connection that had occurred to me. The point is not that all are racist, but that they prosper by convincing voters that antagonizing the "right" people is tantamount to accomplishment.

There are lawyers who prosper in the same way. They impress clients by being ineffectually beligerent.

Stevens and the Ford funeral

Writing on National Review Online, Ed Whelan engages in a bit of speculation that I wish would have occurred to me. Gerald Ford has said that he is happy to have his Presidency judged on his appointment of John Paul Stevens to the Supreme Court. What else could it be judged on besides pardoning Nixon and WIN buttons? Personally, I am going to decline President Ford's invitation because it is too soon to speak ill of the dead?

What Whelan wonders is whether Stevens would regard Ford's Episcopalian (explicitly Christian) and state-funded funeral as a violation of the Establishment Clause? As a matter of pure prediction, my guess is that he wouldn't, but it is hard to dispute Whelan's view that the principles that Stevens has followed in cases involving church and state more or less lead to that conclusion. He has rejected the notion that a private choice (here that of the Ford family)justifies paying for religious indoctrination. Here it paid for worship. He has been unwilling to give religion in state settings a pass because it is longstanding and traditional, voting to ban opening sessions of the legislature with prayer.

Here we had the government pay for a service chock full of state luminaries in which military choirs sang the songs praising, and invoking the mercy and salvific power, of Jesus Christ. Might not that advance religion? Might not a reasonable observer think that the state is endorsing Christianity?

Of course, I can think of distinguishing arguments but they are all hard to reconcile with the radically secularist view of the Establishment Clause that Justice Stevens (and, for that matter, Ginsburg and Souter and, generally, Breyer) have generally advanced.

This leads me to Justice Stevens' recent claim that he is a judicial conservative. He is as much a judicial conservative as I am a radical Trotskyite. Yet he feels compelled to claim the label. I think it has something to do with our residual sense of the nature of judging. Judges should be circumspect and loathe to advance their own points of view. Justice Stevens probably seems himself as following that ideal and "conservative" seems like a better way to describe that than "liberal."

My own view is that he has not been that kind of a judge, having embraced interpretive theories that makes it well nigh impossible to be circumspect. Still, the idea that he wants to be thought of as conservative is telling.

Blogging at the Volokh Conspiracy, lawprof Orin Kerr had another take, suggesting that Stevens was using "judicial conservatism" in what he sees as an old and outdated sense of the term, i.e., persons who resisted dramatic changes in the foundation of American law. I suppose that the argument would the that, having been appointed following very dramatic changes to the foundations of American law that were wrought by the Warren Court, Justice Stevens resisted "changing" those new foundations, i.e., rolling them back. I suppose (although I'm not sure the record doesn't suggest a willingness on his part to continue the revolution), but that seems to deprive the term "conservative" of any useful meaning (and perhaps Professor Kerr would agree)

New candidate in the Sixth

In my mailbox this morning was an announcement that Una Van Duvall is gathering signatures to run against Michael McGee, Jr. in the upcoming recall campaign. I do not know her but I suspect that I know some of the people behind her campaign (not talk radio or doctrinaire conservatives) and that speaks well of her. She would have to go along way to do more harm than McGee. While running two candidates against McGee (and, however unfair this sounds, splitting the votes of people who want responsible leadership)might seem like a bad tactic, there might just be too much gime on Jordan's forces.

It takes a village

A court of appeal in Canada has ruled that a child can have three parents - the biological mother and father and the mother's lesbian partner. My post on the decision at Constitutionally Correct is here and the point was that the slippery slopes that were dismissed as scare tactics in the course of the same sex marriage debate have proven - again - to be quite real and very immediate.

Why should anyone care? If two parents are better than one, why wouldn't three be better than two? Part of my concern is Burkean, i.e., the notion that we should tread lightly when it comes to longstanding and fundamental social institutions. We really can't know the impact of suddenly deciding to raise kids in a way that, in most places and at most times, they have never been raised.

But only part of my concern is precautionary. I think that mothers and fathers matter and I think the exclusivity of the relationship between a child and his mother or father matters. Many adults care about and care for children, but there only a one mother and one father are likely to have that unconditional and special regard for a child that good parents have. The notions that kids are best raised by committee, that the roles of mothers and fathers are not distinct and valuable in their distinctiveness or that children are not, in the great run of cases, best off when their own mothers and fathers are together all seem quite far-fetched to me.

This is not to say that litte D.D., as the child is identified by the court, might not do fine. Some kids - and some parents - will thrive under any set of circumstances and there will always be ancectdotal evidence in support of just about any family structure. But social institutions need to be set up to encourage what works in the run of cases.

Once again, the greatest impact of reshuffling social institutions to avoid the appearance of discrimination against gays and lesbians may be on heterosexual relationships. The Christian Legal Fellowship of Canada wonders what's next:

There is no doubt that this decision will cause a whole new vista of legal issues and many new court actions as it impacts parental rights and obligations particularly in marriage breakdowns or situations where one or more members of three parent families part company. Deciding what is in the best interests of the child in those circumstances will prove extremely complex, costly and potentially chaotic.

What will prevent this ruling from having similar application to heterosexual marriges upon breakdown and subsequent remarriage? Can one or two step-parents now apply for legal status as a parent and ultimately lead to four or even six parents being recognized by the courts as having say over the child's upbringing? Will the third or fourth or fifth or sixth parent be afforded equal say? What about the child? What say will he/she have in terms of which parent or sets of parents they choose to live with?

David Frum, commenting on National Review Online, is reminded of Evelyn Waugh's comment to Nancy Mitford: "He said that because she had no understanding of the implications of her (left-wing) politics, that for her the future was always full of lovely surprises. Whereas he had to live through every catastrophe twice, once in anticipation, and then again in reality .... "

Mystery judges

Wisconsin Right to Life and a group of individual plaintiffs have filed a lawsuit (to see the complaint follow the judicial accountability link) challenging certain judicial canons that prohibit candidates for judicial office from commenting on matters that may become before him or her and that require recusal if a judge has "committed" himself or herself on a question. There is a rationale for the rules. A judge is supposed to listen hard to the arguments made by the lawyers and give them full consideration.

But no one who is qualified for high judicial office does not have an opinion on the day's legal controversies. If you tell me, for example, that you have no view on Roe v. Wade, then I can only conclude that you haven't thought about it and, if you haven't thought about it, you have no business aspiring to high judicial office.

While it may be that candidates for judicial office should have opinions that they don't talk about, this seems inconsistent with the reality of high courts today. Lawyers who are objectively well qualified may have radically different views of the roles of a judge and the manner in which legal texts are to be interpreted. It is not really possible to make an informed judgment about a candidate without getting at this.

This is particularily true when judges are elected (something that I generally oppose) and nuanced discussions of abstract philosophy are not possible. Candidates are left to communicate their stances (often inaccurately) through code words and often focus on things that have little to do with the office they are running for. In next spring's supreme court election, for example, both candidates may say they are "tough on crime" and maybe they are. But that tells you next to nothing about what they will do on the Supreme Court.

The canons rest, in part, on the notion that a person, once committed, won't change his or her mind. But if that's the problem, they fall short. They don't prohibit having an opinion, they just say that you shouldn't tell anyone what it is.

This notion is not necessarily correct. I am not a judge but I do serve as a referee (essentially a trial court judge) in a cases where disciplinary charges have been brought against attorneys. I often find myself changing my mind in the course of writing a report as I consider the arguments and review the evidence. The annals of the Supreme Court are full of stories of Justices who have "evolved" in office. It is this type of open-mindedness - and not closed lips - that we should seek.

Let us bravely hide

Brave Sir Robin ran away.
Bravely ran away, away!
When danger reared its ugly head,
He bravely turned his tail and fled.
Yes, brave Sir Robin turned about
And gallantly he chickened out.
Bravely taking to his feet
He beat a very brave retreat,
Bravest of the brave, Sir Robin!

Massachusetts Governor-elect Deval Patrick does not want to amend the commonwealth's constitution to ban gay marriage, calling it a "matter of conscience." But he proposes that the state legislature exercise what he sees as virtue, not by voting against the a proposed amendment supported by the signatures of over 170,000 Bay Staters, but by refusing to vote on it all. Growing a conscience apparently does not require having the courage to stand up and be counted.

Governor-elect Patrick (who was a year behind me in law school)has done this notwithstanding a ruling by the Massachusetts Supreme Judicial Court that, while it has no authority to force a vote, the legislature nevertheless has a constitutional obligation to vote. Ignoring the moral suasion of the Pope because he has no divisions is old news, but, in Massachusetts under the new Governor, this old rule apparently applies to the courts as well.

Update: It didn't work.

Burn these words!

Lake Superior State University has published its annual list of "banned" words and phrases. They include "awesome", "we're pregnant" and "undocumented alien." The first is an example of our increased inability to hang on to the subtlety of meaning and the latter two reflect the way in which the need to make a point overcomes accuracy. (If you don't believe this, ask yourself if "we" are still pregnant in the middle of labor.)

The list also bans Steve Colbert's notion of "truthiness" which, as used by its originator Steven Colbert, was just a shorthand for suggesting that people with whom one does not agree are stupid.

The school calls for an end t combined celebrity names like "Brangelina" and "Tomkat," a concept that KarRick heartily endorse.

I would have added "in harm's way", "jumped the shark" and the execrable "and I don't play one on TV."