Friday, March 30, 2007

Only One Wisconsin Now but so much silliness

Some one could work full time responding to the inanity of the stuff they put out at One Wisconsin Now. The latest is an attack on Annette Ziegler for representing W.R. Grace in asbestos cases. Did you know she did it in 92.37% of the cases in which she appeared on the pleadings in state and federal courts? And, although we know nothing about the merits of those particular cases, the company has been accused of doing bad things in other contexts.

First, the percentage is a bit misleading. Asbestos cases generally involve a large number of plaintiffs who think that they may have been exposed to asbestos and that it may be causing current health problems suing an even larger number of defendants who may or may not have made asbestos to which the plaintiff was exposed. It is high volume work. If you looked at my current caseload, "most" of the cases are asbestos suits, even though my client never made anything with asbestos in it and I spend virtually no time on those matters. We got on some list that circulates among plaintiffs' lawyers and we keep getting sued and dismissed. The point is that, if you do any asbestos work, it is going to involve an awful lot of cases.

But I suppose that W.R. Grace was a more active defendant. A lot of companies used asbestos. Let's assume that Annette Ziegler spent almost all of her time on those cases. (This could explain why she became a judge; they are boring.) Apparently One Wisconsin thinks that this means these companies are not entitled to a lawyer. That would be a dangerous thing to assume because there has been substantial litigation abuse by lawyers representing plaintiffs in asbestos cases. It took defense lawyers to find that.

Even worse, One Wisconsin would presumably argue that no criminal defense lawyer should ever be appointed to the bench. They represent a lot of really bad people. It's kind of hard to avoid; criminal defendants being what they are.

Or maybe One Wisconsin thinks that no one is worse than a corporation. In that case, it may want to a close look at the client base of Godfrey & Kahn, Linda Clifford's law firm. It consists largely of corporations and rich people. (They tend to be the only ones who can afford firms like that.) The firm describes it's practice as "predominantly business-oriented." I happen to think that's just fine, but perhaps One Wisconsin should alert the people.

The irony, of course, is that Annette Ziegler, as a young associate, had little to do or say about who her firm's clients were and which of them she worked for. Representing asbestos defendants is a good and necessary thing as is representing people who are accused of crime. Dumping on lawyers for the clients they keep is neither.

(NB: And, yeah, I think that the Ziegler commercial taking a shot at Linda Clifford for being an "immigration lawyer" is just as unenlightening.)

Thursday, March 29, 2007

Marquette moves up?

Via Althouse.

The latest US News ranking of law schools has apparenty been leaked. Although lots of people in the law school world hate this ranking, they have to take it seriously because others do. My own sense is that the rankings are largelty self-perpetuating and probably are influenced to a significant degree by things that your average member of the public or prospective law student would not value as much as your average law professor.

Last year there was a minor story locally because Marquette dropped a space or two and this took it out of the "second tier." If this leak is correct, then it has now moved up enough spaces to rejoin the top 100. This is a good thing.

So for those of you who like to criticize me because I teach part-time at a "fourth tier" law school (which is, you've got to admit, a pretty lame attack), your game is through.

In related news, I will be teaching a course on the Wisconsin Supreme Court this fall.

The relationship between judicial restraint and judicial independence

Retiring Justice Jon Wilcox is concerned about the tone of the Supreme Court race and the amount of money it attracts. He is concerned that it creates a perception that judges must be on "one side or the other."

I am sympathetic. While there is a sense in which judges are on a particular "side," it is not - even with judges whom I might regard as more "activist" and "results-oriented"- not quite the same as a politician being liberal or conservative, Democrat or Republican. Even "unbound" judges operate within closer quarters.

But the money and the heat seem to be inevitable consequences of the court's more aggressive use of its authority. If the court is going to take on more and more of our collective decisionmaking and if it is going to treat statutory and constitutional text more as starting than ending points, then the rest of us are going to increasingly see them as just another set of political actors. We will be less concerned with lawerly virtues and more interested in ideology, since that it what we're going to get anyway.

We can decry all the special interest money but that money is being spent by people who know what is at stake here. And I'd suggest that the it is not the money that causes judges to "take sides" but "taking sides" that brings in the money.

Wednesday, March 28, 2007

Want people to move to Milwaukee? Make it safe.

Michael J. Mathias has a solution for problems in Milwaukee. He thinks that we should move there. I actually agree. Not that I think all people of good will must move to Milwaukee, but there is no way that the city can succeed unless it can attract the middle class.

But here's the problem. As Mayor Norquist used to say, a great city cannot be built on charity. And people will not move into the city unless they believe that they are safe, that their children will be well educated, that they won't be taxed into dust and that their property values won't collapse. You can argue that they ought to have "the courage" to be "urban pioneers" in the face of these concerns or you can criticize the reluctant for being whiners who selfishly care about the well being of their family, but that won't change a thing.

I agree that a good deal of what is said about Milwaukee being unsafe is overblown (parts are), but, after almost 40 years of watching politics (I started to go nerdy at a very young age), convincing people who are concerned for their safety that they should not be is like trying to stir concrete with a blade of grass.

It seems to me that friends of the city too often forget the need to consider the impact of urban policies on making the city attractive for and friendly to the middle class.

Tuesday, March 27, 2007

The Shark also rises

For those of you who wake up too early tomorrow on Thursday and need to get back to sleep, I will be on Joy Cardign's show on Wisconsin Public Radio between 7 and 7:30 am discussing - you guessed it - the Wisconsin Supreme Court.

Mr. Kane, I know the answer !

In the wake over the midafternoon shooting of Paul Huggins, Eugene Kane asks where the anger is when a black person is senselessly killed in broad daylight in Milwaukee ?

I think I know.

It is largely on the political right. People like Sykes and Wagner have been up in arms over inner city violence for quite some time. Kane's colleague, Patrick McIlheran, has been all over it. Even I have written about it in the paper and on this blog.

The reason that there is little or no response on the left is not because liberals like violence in the streets. It is because addressing the problem directly, i.e., by acknowledging that urban violence is not simply a reflexive response to conditions imposed from the outside that the affected communities can do little about, "feels racist." It seems like "blaming the victim."

So they either snipe at the responses to violent crime (police brutality! veiled racism!) or call for things that you and I and our grandchildren and theirs will never see (an end to inequality!). This amounts to no response.

And that's where real hostility to the victim lies. There is relegating poor black people to life in a shooting gallery. Paul Huggins did not have to stop at 43rd and Capitol (and if you believe, as I do, that this particular neighborhood is not that bad, pick another). Neither do I. Other people don't have a choice.

Kane writes:

I don't play the usual game in town that calls for quick response to a white death while a black death just reaffirms the black community's violent dysfunction. I also don't pay much attention to frightened suburbanites who vow never to visit the central city because of reported violence.

Fair enough. But what game do you play and how is it going to make a difference?

Monday, March 26, 2007

Shark about town

I will be speaking at noon today on the Milwaukee Bar Association on the white paper that I recently wrote on the Wisconsin Supreme Court. If you are a lawyer, come and get a free CLE credit. Whether you are or not, lunch is free. Or, more accurately, the only cost is having to listen to me and, if that proves to be too much, Real Chili is across the street.

For those of you in Madison, I will be discussing the white paper and judicial restraint on WIBA between 3 and 4 this afternoon.

Friday, March 23, 2007

One Wisconsin Now: Sun rises in the east!!!

You'd expect a political hit piece from the folks at One Wisconsin Now but its "analysis" of Annette Ziegler's rulings on cases involving West Bend Savings Bank is, to be gentle, unsophisticated. Here is the shocking conclusion:

Ziegler has ruled in favor of West Bend Savings Bank in 43 out of 44 cases (97.7%) either by awarding them a financial judgment or agreeing to their motion to dismiss a case. In 40 out of 41 cases (97.6%) where there was a monetary judgment, she sided with West Bend Savings bank.

Does this mean Ziegler improperly favored West Bend? Does it even hint at that? Isn't 97% a really high number?

It might seem so until you stop and consider the types of cases that banks are involved in. Generally speaking, they sue people to whom they lend money and who do not pay it back. In virtually every such case, these people may have an excuse - even a sympathetic one ("I was diagnosed with cancer," "I lost my job") - but they do not have a legal defense. The two nondefaulted cases cited in the press involving West Bend reflect that. Judge Ziegler should have disclosed or recused, but the defendants would have lost in front of any judge because they had no case.

As a rookie lawyer at Foley & Lardner, I had to take a six month stint doing collections work for that was then First Wisconsin. I probably sued 20-30 every week for six months, bringing over 700 cases. My recollection is that only two of those 700 filed an answer and neither of them had a valid defense.

It's in the nature of the thing. Banks don't sue people who pay them back and they rarely make a mistake about whether that has happened - much less one that goes uncorrected past the time when collection efforts have failed and the matter goes to court. (This is not because banks are morally superior entities, but because a bank that couldn't keep track of who paid it back would not be in business for long.)

My guess is that West Bend wins a comparable percentage of its cases before all the judges in Washington County as do all the other lenders that go to court out there. If Judge Ziegler did favor West Bend, it is not possible to tell from One

Annette Ziegler did fail to follow a prophylactic rule in these cases - at least in the few where the defendant did not default. That is one factor among many to be considered in choosing between the Supreme Court candidates. But One Wisconsin's study is not, although it may be worth keeping in mind when evaluating any future "research" that it may conduct.

Thursday, March 22, 2007

Will someone march now?

Will anything change in light of the disturbing daylight shooting of boxing coach Scott Huggins at 43rd & Capitol? Although the brazen nature of the crime is stunning, my initial reaction is that this is not new. It may capture our attention because the victim was an outsider - someone passing through - and not an inner city resident to whose plight the larger community (and much of the political leadership within the city) has become inured.

So far, the attitude of both surburbanites and, to be candid, much of the area's African-American political leadership, is that nothing can be done. The former, quite properly, denounces the thugs who commit these crimes, while the latter tends to discuss anything but the real problem. The absence of jobs; the fact that racism, while greatly diminished has not been entirely eliminated; the high rate of incarceration among African-American males - all of this is important, but none of it can be resolved until the central city becomes a place where people can live and work without fear and raise a family without losing their children to wild streets.

It shouldn't take the shooting of a guy from Waukesha to get our attention. We should have recognized a crisis long ago.

But what do we do?

Tuesday, March 20, 2007

Be sure to wear flowers in your hair

I gave this to the Reddess who, I believe, used it on Charlie Sykes' show this morning.

The protests last night at the Army recruiting center at UWM cause me despair over the coming generation. In our day (more accurately, the day of our older brothers and sisters), when we wanted to protest a war we did it with style and panache.

We stuck flowers in rifle barrels. We did not "spread what appears to be human waste" on windows.

Snail blogging the Supreme Court debate.

Last night, Supreme Court candidates Annette Ziegler and Linda Clifford debated before a packed house at the Marquette Law School. I attended and have a few general impressions.

1. Linda Clifford's candidacy has become primarily about Annette Ziegler. In her opening statement, she went quickly to the "conflicts" issue which she termed a "scandal." She returned to it often, perhaps at the expense of making a case for herself. Even her argument that the court needs some seasoned practitioners (as opposed to another trial judge) is largely a response to Ziegler's "I am a judge" theme. She doesn't seem to be articulating a case for herself, with a possible exception that I'll explore below.... My guess is that her polls have her behind.

2. Annette Ziegler's campaign is all about the fact that she is a judge and was a prosecutor. As I have blogged before, it does not surprise me that she would emphasize this, but I don't think its important at all. John Wilcox, who is retiring, and Louis Butler were both trial court judges. Yet they are very different justices. I am far more interested in someones quality of mind and judicial philosophy than whether they sentenced drunk drivers or negotiated plea agreements. Judge Ziegler suggested that her service as a trial court judge was like having to do all the basic jobs in her parents' hardware store before she was permitted to run the cash register. A charming analogy, but flawed.

3. Linda Clifford may be blowing the "conflicts" issue by trying to take too much. She began the debate by asking whether Ziegler ignored the rules regarding her husband's directorship or didn't know about them. Ziegler won't say, but her response implicitly focuses on the first part of the question. She is taking pains to reassure people that she is not a bad person. She argues that most of the West Bend cases were defaulted (so there was no opportunity for waiver and, really, nothing to do) and, of those that were not, the defendant had no defense. She did not stand to benefit, etc. She says she wishes she had "done better" but won't admit that she did wrong. In response, Clifford seems to want to hold on to the first possibility and to suggest that Ziegler is unethical. I think she's losing that argument and might be better served by arguing that the failure to recuse was sloppy.

4. There was little illuminating conversation about judicial philosophy, but there was an interesting remark by Clifford in response to a question about what areas of the law she thought were likely to require examination by the court. She mentioned issues around the public financing of education and the "first amendment" issues around school choice. The court rejected a challenge to the current financing system in Vincent v. Voigt, but there were lots of opinions (six of the seven justices wrote) and plenty of grist for future mills. The court also rejected establishment clause challenges to school choice in Jackson v. Benson.

Would Justice Clifford like to revisit those decisions? There is no way to know. But it does make for interesting speculation. (Update: Daniel Suhr at The Triumvirate and Patrick McIlheran also were struck by this - and blogged on it before I did. "But how you never gonna be a little slow ? A little late?" - Avon Barksdale.)

5. Linda Clifford did sent signals to her base. She emphasized that she had come from a "union" household and that, as a result, she had "learned something about solidarity." At one point, she even suggested that it was time to put a "steelworker" on the court.

6. Annette Ziegler also went on the attack, raising the question of whether or not a Justice Clifford would recuse herself from cases that benefit the plaintiff's trial bar of which her husband is a prominent member. Clifford's response was technically accurate - it is hard to say if we don't specify the case and she doesn't know what her husband's practice would be at the time - but also a bit of a dodge. We can pretty sure that things like malpractice damages caps are coming back and that these are of immediate economic interest to plaintiff's med-mal lawyers. Does Clifford think that's a problem or, as she once suggested, would she only recuse herself in cases where her husband was actually appearing? She didn't say much other than that she would do the right thing. However, she did return an interesting volley to Ziegler. Wouldn't cases that are of interest to real estate developers, i.e., may create a rule of law substantially affecting their profitability, raise issues for a Justice Ziegler?

The debate was a bit frustrating in that the most important issue, i.e., the candidates' judicial philosophies, were largely sidestepped and, when addressed at all, handled somewhat cryptically. Both of these candidates have passionate supporters who are fully aware of why they believe that one or the other should be on the court. But little of that was on display last night.

The debate was moderated by former Channel 4 anchor, Mike Gousha, now a Distinguished Fellow in Law & Public Policy at Marquette. He was flanked by Journal-Sentinel reporter Greg Borowski and MULS Professor Dan Blinka. All three did a very nice job of respecting the conventions and ethics of judicial debates while trying to ask some questions that would actually get at something we care about.

Monday, March 19, 2007

An undisturbing verdict

According to Jessica McBride, Avery defense counsel Dean Strang expressed the view that his client might be innocent and that it is sad that "in human life we haven't mastered justice any more than we have."

You certainly have to cut some slack for a guy who just lost a case, but this is a curious remark. It does not advance Avery's legal interests (at least not in any legitimate way) for Strang to publicly suggest his innocence. Attorneys are generally prohibited from making extrajudicial comments on the guilt or innocence of a criminal defendant of those statements are substantially likely to materially prejudice an adjudicative proceeding, so he presumably does not believe that it will help Avery with motions after, on appeal or on remand should the verdict be set aside. That seems right.

This suggests, however, that Strang may actually believe that Avery was innocent and, necessarily, that the cops framed him. (I'm not sure there is any other innocence scenario). That is an extraordinary claim in any set of circumstances but particularly after a trial in which, at best, the defense introduced speculation as to how Avery might have been framed and then essentially argued that the state hadn't proved beyond a reasonable doubt that he wasn't.

Unlike some folks, I am not offended by the idea of such a defense (although it seems to be full of ethical landmines). Based on what we saw here, however, I think we can probably feel ok about justice.

Shark on Dead Tree

In the event that you missed it, I had a column in yesterday's Milwaukee Journal Sentinel. Ricardo Pimentel asked that I write it in order to contrast with the editorial board's piece on the 4th anniversary of the invasion of Iraq. While I did not see their piece (and they did not see mine), we kind of figured that there would be differences.

Thursday, March 15, 2007

Restraint matters

Yesterday morning, I participated in a media conference call with Kellyanne Conway in which we rolled out my white paper on the Wisconsin Supreme Court and an opinion poll conducted by Kellyanne's firm, the polling company.

I fully appreciate that there may be a limited audience interested in a conversation about judicial philosophy (as opposed to which candidate is or is not the incarnation of one form of evil or the other), but I think it is important and is most decidedly not, as my Backstory colleague, Jim Rowen, suggests in a comment to an earlier post, "something of a false issue." He could not be more mistaken.

Jim thinks that activism is in the "eye of beholder" and there are certainly reasonable people who disagree about when the line between enforcing and creating law in a way properly left to the legislature has been crossed. That people disagree about what whether some particular thing falls within a category does not mean that the category does not exist or is meaningless.

Jim directs our attention to a recent panel decision of the D.C. Circuit court of appeals in a case called Parker v. District of Columbia. The decision struck down D.C.'s ban on private gun ownership. Jim says "[c]onservatives hailed the decision because they disagree with gun control - - but I'm guessing that if a court struck down a law or ruling as equally dear to the right, conservatives would be all over that court for...activism! "

As John McLaughlin might say "WRONG!" The Parker court did interpret the Second Amendment to create an individual - as opposed to a collective - right to bear arms. Most courts (all but one circuit, really) have gone the other way. Parker may be wrong, but it is not "activist" (to oversimplify for a moment) in that it does not disregard a clear constitution command or create extra-constitutional restrictions on the political branches. Parker is rooted in constitutional language providing that "a well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

This language must mean something and deciding what it means is what courts do. Perhaps the prefatory reference to a militia ought to be read as a restriction upon, rather than an explanation for, the right to keep and near arms (such that one only has such a right as part of an official militia). Maybe not. But the individual right found in Parker is rooted in constitutional text. It is not, like the abortion right in Roe, spun from ... well, nothing really. Not even whole cloth.

We can argue about Parker, but I don't think it implicates the "activism/restraint" debate. Although restraintist judges might be expected to evince a healthy respect for precedent, this does not mean that error, once made, is forever immune from correction.

Instructive comments in the Supreme Court race

Yesterday, I suggested that Linda Clifford's comments on the state Supreme Court's decision striking down limits on medical malpractice caps was instructive on the issue of judicial activism.

I think it is helpful to use a candidate's comments to illustrate the issue because many people commenting on the race - people like John Nichols, Dave Zweifel, Bruce Murphy and Bill Leuders - seem to have no conception at all of what they are talking about when it comes to questions of activism versus restraint.

Although some of them have lamented "partisanship" in the race, ideological partisanship is, ironically, the only lens through which they seem able to view it. Decisions, in their mind, are either "conservative" or "liberal. Although Zweifel and Nichols seem to be such strident partisans that they regard liberal decisions as rooted in a neutral principles in a way that conservative decisions are not, Murphy and Lueders seems to adopt a more cynical stance, i.e., "activism" is in the eye of the beholder.

To some degree this is self-evident. Pure objectivity is generally beyond us, but there is, nevertheless, a constellation of approaches to judging that can objectively be called activist and this is where Ms. Clifford's comments (like her previous onservation that the constitution must be allowed to "breathe" and give society "what it needs") are instructive.

"Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”,”she said.

Unless the cap was, as she puts it, "categorically unconstitutional" then the result was wrong. These malpractice caps were enacted by the people's democratically chosen representatives. Unless they are, for some reason, "categorically unconstitutional" then the court has no business setting them aside - whether or not Linda Clifford or a majority of justices think they are "too low." While our state's constitution does place certain limits on the legislature, the policy preferences of a majority of justices on the state's supreme court are not among them.

Some of you might wonder why we should care. Isn't this just geeky lawyer stuff? If the result is right, why worry about whether it was legitimate? The answer goes to the very foundation of democracy. Judges get to set aside the actions of our elected officials only when those actions violate some constitutional limitation on what election officials are permitted to do - not because judicial officers believe that "in this day and age" the legislature has chosen poorly or society "needs" something else.

Judicial restraint is normally associated with conservatives because, in recent years, judicial activism has generally been deployed in the furtherance of liberal causes, but that has not always been the case. As I have blogged before, the sort of ur-activist decisions are the notorious Dred Scott case and a later decision (1905) called Lochner v. New York in which the Court rolled out a concept called substantive due process (a bit of an oxymoron) to advance an extra-constitutional theory of property rights. (Lochner struck down a law limiting the hours that one could work in a bakery.)

Let's flip the malpractice caps. Say the legislature decided to remove them. A restraintist conservative judge (think of me) might regard that as poor public policy, but the legislature would be absolutely within its rights to do so - or even to enact other legislation that might be helpful to malpractice plaintiffs in a way that I think would harm medical care in the state. "Doing whatever is right" or "giving society" is simply not an accurate description of the judicial function. If you want to do those things, run for the legislature or for Governor.

Wednesday, March 14, 2007

Everyone has conflicts

As I have blogged recently, I think that much of our "outrage" over candidates' "ethical lapses" - on both the right and the left - is selective. We aren't so much concerned about ethics as we are about scoring points.

I was struck by this again when reading Linda Clifford's comments about the recent Wisconsin Supreme Court decision striking down caps on noneconomic damages in medical malpractice cases. “Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”

This statement provides another teachable moment about judicial activism and restraint, but, first, I want to pause over the ethics issue. We do not know if a Justice Clifford would have recused herself from that case. Perhaps her willingness to address it suggests that she would not have. In any event, she has now publicly supported the notion that the court should have something to say about legislatively-enacted damage caps and this suggests an interesting question.

Shouldn't she remove herself from that issue?

Linda Clifford's husband is a plaintiff's side medical malpractice lawyer. Because he earns a percentage of his client's recovery, damage caps reduce his income. No - or higher caps - increase it. A lot. Judicial invalidation of those caps is likely to have a far more direct - and significant - impact on the Clifford family income than the cases for which Annette Ziegler has been (correctly) criticized.

The Judicial Code requires recusal or waiver when a judge's spouse "is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding." Although one can certainly argue that recusal on the Supreme Court level ought to be more reluctantly chosen, if we believe that judges should not rule on things in which their spouse has a substantial economic interest, shouldn't a justice whose husband is a malpractice lawyer stay away from malpractice issues? Doesn't that raise just as much concern as a judge who rules on a case that might have an indirect and attenuated impact on the value of some stock?

Perhaps it is a question on which reasonable people will differ, but don't you think that the positions that we would take on it are more likely to be driven by which candidate we prefer than the merits of the question itself?

More importantly, if those who suggest that judicial ethics is the most important - perhaps even the only - issue in the race really mean it, shouldn't they demand that the candidates address the issue? The Supreme Court decides lots of cases with a substantial impact on the economic interests of the injury bar. Wouldn't you think that "ethics voters" would want to know how a candidate whose own finances are intertwined with those interests views this potential conflict?

Tuesday, March 13, 2007

Atheist out of the closet

If you hang around bookstores, you get a sense of cultural trends. One of the latest seems to be evangelical atheism. Richard Dawkins, Daniel Dennett and Sam Harris not only do not believe in God, they want to share this "good news" with the rest of us.

My own sense is that this is sort of 19th century, but debate tends to be a good thing. What gives me pause is the argument that atheistic proselytization reflects some type of immutable characteristic that the larger society must not only tolerate, but accept in the same manner as race, ethnicity and, more recently, sexual orientation.

Thus the Secular Coalition of America, a recently formed group that seems to want to create an identity politics of nonbelief, celebrates the fact that it has found a "nontheistic" Congressman, Pete Stark (D-Calif. - but you could have guessed that part), and suggests an inconsistency between the constitution's prohibition of a religious test for public office and the fact that most people would be reluctant to vote for an atheist.

Is that right? Isn't there a difference between assessing people on a characteristic that they do not choose and that is almost certainly unrelated to what we regard as truly important about an individual and forming judgments based upon a person's worldview? It is one thing to abjure legal standards for office holders and another to argue that people must ignore what is arguably the most important belief (or nonbelief) that an individual holds.

In at least one sense I am sympathetic. We tend to be uninformed about world views that we do not hold and our first presuppositions may be inaccurate; Amanda Marcotte being a recent notorious example. Someone's conservative Christianity might be very relevant to understanding him, but Marcotte couldn't be bothered to learn the first thing about conservative Christianity. A famous historic example is some protestant reaction to the candidacy of President Kennedy.

But doesn't that suggest that we be cautious, as opposed to indifferent, about a candidate's religious (or irreligious) world view?

I raise the issue because we seem to be congenitally unable to have a rational public conversation once something is successfully labeled as "discrimination" or "bias." Particularly for us baby boomers, racial enmity (more accurately, its death throes) was the great sin of our youth. If you pitch something to us as a matter of "equality" and "prejudice", we tend to check our critical faculties and get on board.

Atheists are certainly entitled to voice their views and to live without civil disabilities. But the notion that they might be the 21st century's next protected class seems wrongheaded.

Monday, March 12, 2007

Pakistani lawyers are real men

These guys don't just file papers and make speeches. They riot. And no casual Fridays while they are at it, either. Full dress blacks.
Reminds me of the time when we restricted fishing trips for summer associates at Foley & Lardner.

Wednesday, March 07, 2007

Scooter, Annette and Dennis

So I go to Arizona last week (for the winter meeting of The Federation) and come home and come down with the flu. I think these warm climates just weaken us. I think I am (I hope) in that beginning stage of recovery where you are up all night because you have slept the last two days. Hence, I blog at 3 in the morning.

What strikes me at this odd hour is the similarity between the reactions of Harry Ried to the Libby verdict, the Wisconsin left to the story about Annette Ziegler's conflicts and, I must be fair, of the Wisconsin right to the report of a DOT attorney traveling to Pennsylvania to argue about Dennis Troha's tax bills. All claim to be outraged, but they are, in fact, exultant. All are rejoicing in the presumed ethical faults of the other side - not necessarily because they are that interested in ethics (although they may be) - but because it is the other side that has (apparently) stepped in it.

Ried is the worst because the facts are well known. He responds to the Libby verdict by observing that "It's about time someone in the Bush Administration has been held accountable for the campaign to manipulate intelligence and discredit war critics." But he knows - he knows - that the case was not about that. Fitzpatrick found no crime in the supposed "outing" of Valerie Plame. The case had nothing to do with the manipulation of intelligence. If intelligence was manipulated, Joe Wilson did not uncover it because his trip to Niger was singularly unenlightening on the subject of Iraq's nuclear program. The case was about whether the fact that Libby remembered old conversations with Tim Russert and Matthew Cooper differently than they did means that Libby was lying about the conversations. That would constitute perjury and obstruction of justice. But there was no crime in what Russert and Cooper claim he told them. If Libby had just said the same thing that Russert and Cooper said (or had the jury concluded he was honestly mistaken), there is no crime at all.

The local left's glee over Annette Ziegler's apparent failure to disclose a conflict in some cases involving West Bend Savings has nothing to do with a fanatical attachment to judicial ethics. That is reflected in the fact that all of this first began over Ziegler's alleged "tardiness" in recusing herself from a case involving Wal-Mart - something that every one who has been inside the bar in a courtroom immediately recognized as a nonissue. They wanted a "gotcha." That wasn't one, but apparently Clifford's hitman (or "private investigator") eventually dug one up. Good on him but, if Ziegler hires some "out of town talent" to root around in Clifford's past and finds a failing (there are very few of us that have not flubbed something sometime), will they be outraged or circle the wagons? Last fall, I heard countless folks on the left tell me that they were voting for the Governor because while, to dress up the language a bit, he may be ethically "different" but he is on our side. So I'm betting on the latter.

I don't want to jump into the same thing on the revelation that the state DOJ sent a lawyer to Pennsylvania to argue for the reduction of Dennis Troha's tax bill in that state. I do not do tax law, but I would want to know if there is some tax allocation issue, i.e., states essentially arguing over the same money, that required the agreement of Pennsylvania and Wisconsin and the extent to which there were similar efforts made on behalf of people who did not contribute to the Doyle campaign (or who are not huge state institutions like Schneider National). The press reports are conflicting on that. My guess is that this is still going to stink, but, for now, I'll stand down.

A primer on judicial conflicts

As the various and sundry readers of this blog know, I am very interested in the issues of judicial activism and restraint. To that end, I am working with the Federalist Society on an educational project concerning those issues (I wrote a white paper that will be released next week) and the Fed-Soc has engaged a media firm to handle publicity that has also done such dastardly things as work for the Swift Boat veterans and promotion of Ann Coulter's books. Despite what this guy says, none of us are part of the Ziegler campaign. I am all about judicial restraint and not any particular candidate.

But I also think that one of the purposes of this blog (with its small, but elegant and influential readership) is to provide commentary on local legal issues. I have commented on allegations that Ziegler acted on cases when she had a conflict of interest. More facts have come out and, although the reportage has not been awful, there is a "he said, she said" quality about it that obscures key points - some in a way that is favorable to Judge Ziegler and other in a way that is not.

First thing, if the facts are as reported then Judge Ziegler was wrong in not recusing herself or obtaining waiver in cases involving West Bend Savings & Loan. SCR 60.04(e)(4)(1) makes recusal or waiver mandatory when, among other things, a judge's spouse is a director of a party. No judgment call to make.
In that sense, my Backstory colleague Jim Rowen and Jay Bullock would be right in that an argument that recusal should be decided based upon "a gut check" has a certain "truthiness" about it. It might seem right, but it is wrong.

(I think you could argue that this even applies to defaulted matters, but processing them is generally so close to clerical that I suppose no one really cares.)

But there is a slightly different test when the question is whether you should recuse yourself because you own stock in a party. That is not automatic. In that case, recusal or waiver is required when a judge "has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. "

This does bring us back into the realm of the gut check so statements that recusal is "mandatory" whenever there is a "conflict" may serve for the West Bend Savings matters but not for other matters under examination. For example, in cases involving United Health Care (in which the Zieglers apparently own stock), she may well have decided that her interest could not be substantially affected by the matter. In some cases, the idea that the judge must make a judgment call is not "truthy." It is the truth.

There is irony, however, in the fact that Jim and Jay roll out Colbert's concept of truthiness (following your gut over the facts) to criticize a judicial candidate for, as Jim put out, "listen[ing] to [the] gut instead of pesky, bookish facts - - like, say, those in a published code of conduct - - to get to the truthiness of correct official behavior?"

They are doing this in support of a candidate who says she wants to let the state constitution "breathe" in order to reflect "what society needs." Isn't that "truthiness" as a rule of decision?

Monday, March 05, 2007

Constitutional chameleon

Once again, I am not connected in any way to any candidate for the Supreme Court, but Linda Clifford's statement that "I am willing to let the (state) constitution breathe and reflect what society needs in any given context ...." is a teachable moment.

At first blush, this might seem reasonable. Why not give society "what it needs?" (Or, more accurately, what Linda Clifford thinks it needs.)

The problem, of course, is that we generally expect judges to apply the law and the legislature to make it. Although the constitution can trump legislation, we accept that because, at some point, the constitution was consented to by the people. The people decided to place certain limitations upon their elected representatives.

If you allow the constitution to "breathe" (i.e., "change") to reflect what you think society needs, you have lost the legitimacy that the consent of the people confers. They never agreed to whatever it is you think the constitutional document is exhaling today. You have substituted your judgment for theirs.

We could have chosen to be governed this way. We could have said that we'll just elect seven wise people to do whatever they think is right. But we didn't. We chose democracy and a judiciary that applies the rules (statutes and constitution) that the people make.

Of course, there are nuances, subtleties and matters of degree involved here. We can make it as complicated as it needs to be, but, at the end of the day, this isn't lawerly inside baseball. It goes directly to who gets to make the decisions that govern our common life. If you want to be ruled by judges, then a living, breathing and mutating constitution is a good thing. If you don't, it's not.

You decide.

Haven't we created Doyle and Troha?

I was in Scottsdale at a legal conference last week, so I am a little late to Troha-gate, the indictment of a Kenosha casino developer who may have been a bit overzealous in funneling money to Jim Doyle.

My initial impression is that it will be a tough case to make. Quite clearly, Troha wanted to buy Doyle's support for the Kenosha casino, but its far from evident that the family members who supposedly made dummy contributions wouldn't have as much interest in that as he did.

A lot of attention will be focused on what Doyle knew and when did he know it, but that seems like the wrong question. Of course, he knew that Troha was trying to buy support for the casino. If he didn't, he's too stupid to be governor. Now that there is gambling going on, we should not be, like Captain Renault, "shocked, shocked" to find that there are people who will pay to play.

More attention will focus on what promises Doyle may have made and, again, unless he is too stupid to be Governor, he did not make any. He promises that, if the Kenosha casino comes before him, he will review it and make his decision based upon "what's best for the people of Wisconsin."

That's the odd part. By putting the Governor in the position of granting licenses to print money, it is hard for me to see what possible interest of the people of the state of Wisconsin we could be advancing. Casino compacts are all about giving people the right to operate a business (one incidentally based largely on ripping off poor people) with little or no competition on a tax advantaged basis. It's a wonderful power for a Governor seeking campaign contributions to have.
But there is no question of the public welfare being served.

Maybe Troha was dirty. Maybe Doyle was dirty. But the larger truth is that the whole undertaking is dirty.

Friday, March 02, 2007

Multiculturalism eats its elders

There is quite the dust-up at the University of Wisconsin Law School over remarks by a professor concerning the difficulties of fashioning law in a multicultural society (or, more accurately, in a way that honors the presumptions of political multiculturalism). Professor Leonard Kaplan referred to a series of stereotypes about Hmong people and, although its not clear from news reports precisely what he said, at least one student took his remarks to mean that he believed that the stereotypes were "true" and sent an e-mail around that has brought all manner of grief. Students who were not in his class claim that they cannot go to class and cannot sleep. There has been a bombardment of apologies.

What did the professor really say? What did he mean? If not the sweeping remarks that were reported, did he say anything about cultural differences that was - in any sense - true? None of that matters because, in suggesting - whether he agreed or not - that Hmong culture differs in ways that may not be admirable, he has violated the first principle of campus multiculturalism. You can never remark upon anything that might bear unfavorably on a historically disfavored - and, therefore, now favored - group. If you do, no response on the part of those who have been harmed is too hysterical and no quantum of apology is adequate.

What is ironic is that Kaplan may have felt himself to be acting in accordance with multicultural practice, arguing that cultural differences must be identified and respected, even if they are products of poverty or a lack of education.

But in turning multiculturalism into a faith rather than a reasoned perspective, can we really be surprised that students react emotionally to what they perceive (even incorrectly) as blasphemy?

Thursday, March 01, 2007

The prophet Al, peace be upon him

I really try to give people the benefit of the doubt. I really do. But I am at a loss to know how there can actually be people who don't find Al Gore to sanctimonious and insufferable. He produces this hysterical academy award winning power point which takes something that many people agree on and exaggerates in a way for which there is virtually no evidence. This qualifies him as some kind of prophet.

Maybe I could understand that. Isaiah was also a pretty excitable guy, but I can't imagine that he spent the day decrying the persecution of Judah and then cozying up to the Babylonians at night. Al calls for the unwashed of the world to live in tiny houses and walk to work and then gets on a private jet and lives in Nashville's version of the Taj Mahal - when he's not at one of his other cribs. The earth just looks like a Big Mac to Al.

The idea that its ok for his family to exceed the energy consumption of half of the member
-states of the U.N.'s Human Rights Commission because he buys carbon credits is odd in at least two ways. First, one would not expect a champion of the little guy to claim that he can sin freely by paying indulgences (and-ironically- perhaps with money earned by his enviro-jeremiad). Second, it turns out that carbon credits are too cheap to have much impact. Not only does Gore want to buy virtue, but he wants a bargain.

Maureen Dowd recently quoted Gore as saying that his great failing as a politician was that he was always ahead of his time, what with inventing the internet and the lockbox. The most amazing thing about him is that he probably really believes that.