Monday, April 30, 2007

And the only rationale for Ted Thompson's draft choices

The team is employing a faith healer.

Remember the separation of powers?

There is a lot of misunderstanding regarding the argument that Annette Ziegler is making regarding the Ethics Board complaint against her. I am not sure she will win, but her point stems from high school civics. We have a tripartite system of government with power divided between the executive, legislature and the judiciary. The Wisconsin Supreme Court has long recognized that this is so for Wisconsin as well as the federal government, relying on the creation of the legislative, executive and judicial branches in Articles IV, V and VII of the state's constitution.

If certain powers are reserved exclusively to the judiciary, then it follows that the exercise of those powers are, to one degree or another, immune from legislative control. For example, in a case called Complaint Against Grady, 118 Wis.2d 762, 348 N.w.2d 559 (1984), the court held that a law which called for witholding the salary of judges who did not decide cases within a specified time frame was a violation of this principle. In deciding the case, the court noted that it had invalidated a host of legislative regulations of the judiciary:

For more than a century, this court has been called upon to resist attempts by other branches of government to exercise authority in an exclusively judicial area. These have included an attempt to remove and replace a court employe, In re Janitor, 35 Wis. 410 (1874); an attempt to dictate the physical facilities in which a court was to exercise its judicial functions, In re Court Room, 148 Wis. 109, 134 N.W. 330 (1912); an attempt to legislate what constitutes the legal sufficiency of evidence, Thoe v. Chicago M. & St. P.R. Co., 181 Wis. 456, 195 N.W. 407 (1923); An attempt to regulate trials in the conduct of court business, Rules of Court Case, 204 Wis. 501, 236 N.W. 717 (1931); bar admission and regulation of attorneys, In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932), Integration of Bar Cases, 244 Wis. 8, 11 N.W.2d 604 (1943), 249 Wis. 523, 25 N.W.2d 500 (1946), 273 Wis. 281, 77 N.W.2d 602 (1956). In each of these cases we recognized areas of authority exclusive to the judicial branch and, therefore, free from intrusion by another branch of government.

118 Wis.2d at 778. (The links won't work since I cut this from Westlaw.) More recently, in a case called Barland v. Eau Claire County, 216 Wis.2d 560, 575 Wis.2d 691 (1998), the court held that judge's assistants could not be unilaterally removed even though it was required by the terms of a collective bargaining agreement signed by the county.

It does not seem at all preposterous to me to suggest that this precludes application of the ethics rules to a judge's failure to recuse herself. This is particularly true given that the applicable rule in the judicial code permits the judge to sit if the parties waive the conflict. The ethics rule does not - at least not in any readily exercisable way.

Of course, Judge Ziegler is still subject to discipline through the judicial commission. But I fear there is also a misunderstanding among our friends on the left as to the likely denouement of either that process or the proceedings initiated by the ethics board. She might get fined. She might get reprimanded. But the chances that she will not assume office are about on a par with the likelihood that I will ever grow a full head of hair again.

Sorry, guys, but Christmas won't come this summer.

Sunday, April 29, 2007

The urban right, part 1

Regular readers of this blog may recall that I am a fan of The Wire. It is an HBO series based around politics and the drug wars in Baltimore. One of the repeated themes is the extent to which life in the central city is lived under the thumb of the street crews who are in "the game" of selling drugs. Even those who try to leave the life eventually become its victims. "Snitchers" wind up dead.

So I was intrigued by an article in last month's Atlantic, illustrating the impact of the "stop snitchin'" movement (sentiment may be more accurate) in Baltimore. This particular bit of fiction is based in reality.

My first impulse, of course, is to think of Milwaukee alderman Michael McGee, Jr. who has been the sentinel of submission to street crime here. But that strikes me as too easy. I take a back seat to no one in my disapproval of McGee. Whether or not his constituents like him, he is, objectively, part of the problem, rather than the solution.

But isn't the real question why McGee's reverse Theodore Bilbo routine works? Isn't the broader question why people do stop snitching? Conservatives are amazed that, while Milwaukee's central city is plagued by an intolerable level of violence on a daily basis, the issues that have generated the most energy within that community over the past year have been the Jude beating (understandable), the proposal to use flexicuffs in MPS and the temerity of "outsiders" to become involved in the McGee recall.

It won't do for us on the right to denounce this as PC or irrational. It is both but it is also impervious to our disdain. Maybe the answer is that we have no business giving a damn. Patrick McIhleran, in a column yesterday, suggested that proponents of the city's "cause" who want suburban money need to listen to suburban viewpoints. One could say the same with respect to conservatives.

But there is a body of opinion that explicitly rejects Patrick's argument. It was in fact the prevailing view in the 60s and early 70s - and still is within certain academic circles. Conservatives, suburbanites and, for that matter, whites should shut up, listen to the oppressed and do what they are told.

Should conservatives care about the problems of the inner city? And, as I contend, they must, don't we have an obligation to understand why what seems obvious to us often has so little traction? Isn't that the beginning of persuasion?

More to come.

Semi-obligatory comments on the local Blog Summit

Regarding yesterday's proceedings at Marquette University Law School:

1. Michael Caughill (the silent partner of Elliott Stearns) is a better man than I am for having a kid in his 40s. He won't regret his decision.

2. Funniest comment of the day: Ed Garvey's statement that most of the major newspapers in Milwaukee are "right wing."

3. Most disturbing: Garvey's suggestion that the right wing blogosphere is bought and paid for by rich Republicans. If that's so, I'm getting stiffed.

4. Most condescending: Eugene Kane's assertion that he is the only black male blogger that does not just tell white people what they want to hear. I do not share the Wisconsin right blogosphere's antipathy for Kane, but that's a cheap shot at James Harris who I assume really believes what he writes.

5. Most enterprising blogger: James Wigderson who actually passed out blogging business cards to every attendee before the event started.

6. Most discerning: Christian Schneider, the blogger formerly known as Dennis York, apparently shares my enthusiasm for The Wire. I guess that's unimportant but it is a tease for a post that I'll put it up later today.

7. I have always liked the GOP3 blog at Marquette, but now that I know that 2L Daniel Suhr had the good sense to register for my course on the Wisconsin Supreme Court, I regard it with new respect.

8. There is not much to say about the program. As always, Mike Gousha did a great job. As for the comments, my own sense is that blogosphere remains a bit self-referential and focused on what type of phenomenon it is as opposed to the "MSM." I think the latter concern is totally 2006. Blogs are not going away and they are not going to be co-opted (in the aggregate anyway) by any dark force - be it political parties or what the left sees as this monolithic blob called "corporations." The real question for bloggers is: what are you trying to accomplish (even if it is only your own self-gratification) and how do you propose to do it?

9. Once again the best part of these things was to meet - or reconnect - with people. It is good to be reminded that people with whom you disagree - folks like Plaisted, Mathias and Bullock - are nice and likeable people.

Friday, April 27, 2007

What about this ethics board complaint?

A couple of thoughts on Annette Ziegler's petition to the supreme court, asking it to dismiss the Ethics Board complaint against her.

First, she is not contending that her actions ought to be free of scrutiny and, if she succeeds here, she will not have accomplished that. It would not mean that she is "above the law." Although state ethics law, by its terms, applies to judges, that doesn't resolve the question. Her argument is that the constitutional doctrine of separation of powers requires that the judiciary discipline itself, i.e., through the judicial commission. If she is right, the constitution trumps the stature.

This is not a clear winner, but there is some authority supporting her position. For example, the supreme court has held that, although the legislature can prescribe rules regarding the time in which judges should decide cases, it cannot prescribe that a judge's salary be withheld for failure to follow them.

Second, - and somewhat ironically - the rules that the judicial commission would presumably apply, i.e., the state judicial code, is arguably tougher for her than the general state ethics code. Sec. 19.46(1)(a) prohibits a state official from substantially affecting a matter in which a member of her family has a "substantial financial interest" or in which an organization with which the official is associated has a substantial financial interest. (The term "associated" is defined in a way which should capture her husband's directorship.) While I presume that West Bend can be said to have had a "substantial financial interest" in those matters, the board will have to establish that. The applicable part of the judicial code has no such requirement. Thus, if she is found to violate the 19.46(1)(a), she will certainly have violated the judicial code, suggesting that the ethics board proceeding is superfluous.

Third, apparently all this can result in for Ziegler is a fine. The Ethics Board cannot suspend her or remove her from office.

Fourth, should Justice Prosser (who contributed to Ziegler's campaign) and Justice Wilcox (who endorsed her) recuse themselves from the petition? I don't think so. If a justice cannot sit on this matter because they supported Ziegler, then there is no reason why a justice who supported her opponent should not also step down. The fact that this support was not public ought not to matter. If Prosser and Wilcox should not sit, then only justices who did not vote and had no opinion as to the race to replace one of their colleagues ought to sit.

Fifth, the answer to the recusal question has significance beyond the ethics board complaint because, if the judicial commission files a complaint, the state supreme court is the body that will ultimately rule on it.

Thursday, April 26, 2007

Throw down at the Supreme Court

Yesterday, the Wisconsin Supreme Court dismissed the lawsuit brought by gubernatorial candidate Mark Green against the State Election Board. Although the Journal-Sentinel blurb on the case does not go into it, the dismissal was not a ruling on the merits. The parties stipulated to the dismissal.

As you may recall, the issue in the case was the Board's order that Green return $450,000 that had been raised through legal contributions to his federal campaign account. This money could not have, in the first instance, been raised for his state campaign but the Election Board had allowed such transfers in the past.

The day after he made the transfer, the Board met and decided (in an essentially partisan vote) that, now, it would not permit the transfer. Green asked the Supreme Court to review the Board's action. For procedural reasons, he needed to do it by filing an original action rather than by appeal from a lower court decision. This is a rare thing and the Supreme Court (by a 4-3 vote) said that it could not decide the matter before the election.

In the election, the issue was never Green's ability to use the money, but the Doyle campaign's allegation that this all meant that Green "broke the law" and was corrupt. This was critical to Doyle because of the perception that he does not exactly follow the Marquis of Queensbury rules when it comes to raising money. One of the two themes of his campaign was to neutralize this weakness by suggesting that Green was just as bad.

In that context, the court had no option that would not inject it into the campaign. Refusing to rule was, in effect, ruling against Green.

Nevertheless, the majority decided to punt and did so by a 4-3 vote in which the perceived conservatives all dissented.

Concurring in the decision to accept the parties' agreement to dismiss, Justice Prosser takes the court to task for refusing to hear the case back when it still meant something. He contrasts its decision last fall with a famous and historic decision, Bashford v. Barstow, in which the court took up the question as to who actually won the 1855 gubernatorial election in the face of the incumbent governor's threat to refuse to abide by its decision.

Justice Crooks takes Prosser to task, arguing that the court could not have heard the case last fall because there were factual disputes (the Supreme Court is not really equipped to deal with those) and the court did the best it could.

I have not studied the matter enough to express an opinion on who is right, but it appears that, by December, the Board had essentially stipulated to all the necessary facts. It is unclear what had changed during that time.

I do believe that what Doyle and the State Election Board did to Mark Green was atrocious. Perhaps the case was not in a posture for the court to hear it, but its failure (whether justified or not) to address the issue was extremely unfortunate.

This kind of controversy is great for a guy, like me, who is developing a law school course on the Wisconsin Supreme Court. My guess is that it makes it a bit frostier around the water cooler.

Wednesday, April 25, 2007

Is Tammy Baldwin too late?

What is the rationale for a federal law , sponsored by Tammy Baldwin (D-Wis.) and others, prohibiting discrimination in employment on the basis of sexual orientation ? Its advocates concede that the private sector has largely adopted nondiscriminatory policies.

In a moment of candor, Barney Frank allows that "corporations recognize the value of diversity, the need to get the best people and the idea that a welcoming environment is good for business. "

Precisely. Economist Gary Becker won the Nobel Prize, in part, for work suggesting that, under certain circumstances, the free market will tend to drive out irrational discrimination. If I don't hire the most talented people because they are black or gay or born-again, my competitor will and, ultimately, make me abandon my discriminatory ways or get my clock cleaned in the market place.

This suggests that anti-discrimination laws are less critical when we think they are. Although they may re-inforce social rejection of discrimination, it is the self-interest of employers that is far more critical.

I have always thought that Becker's theory fails (and he doesn't think it applies in all cases) when discriminatory ideas are socially pervasive, i.e., when few or no competitors would choose not to discriminate or when the market may have a taste for discrimination that makes it rational for me not to hire employees that my customers may not like.

But, ironically, those are the circumstances in which a discrimination law is unlikely to be passed.

I think that's where we are with employment discrimination against gays and lesbians. I don't contend that it never happens but the powerful social and economic forces allied against such discrimination may make the passage of a law symbolic at best. It won't stop much additional discrimination.

Of course that doesn't mean that it shouldn't be passed. As I argued during the debate on the marriage amendment, the symbolic uses of the law is important and to say it won't stop much additional discrimination is not to say that it won't stop any.

But there is a cost to such laws. When my client tells me that it wishes to fire someone, my first question is whether that person is in a protected class. I ask this, not because I fear that they are engaged in discrimination (HR professionals are very unlikely to do so), but because it raises the ante. We have to have a "better" case than we otherwise would need. While that might sound harmless ("why shouldn't you have to have a good case to fire someone"), the law does not generally require a "reason" for the dismissal (or the resignation) of employees. When it does, a business has to factor in the probability that it will not be able to convince a judge or jury of the reason for its action.

This imposes a cost on business. Maybe the cost is worth it, but it won't do to pretend that it's free.

The other issue, of course, is whether such a law would require employers to extend domestic partner benefits. That has not generally been the case, but it would be foolish not to admit the possibility.

Tuesday, April 24, 2007

Georgia, Scott and Chuck

Last week the Seventh Circuit released its opinion in the Georgia Thompson case. One of the things that the court was concerned about was the rather vague nature of the statutes applied.

For example, one of the laws that she was convicted of makes it a crime to use the U.S. mails in a scheme or artifice to defraud, including depriving someone of the intangible right to honest services. The prosecution theory was that taking into account her bosses' political concerns deprived the state of honest services.

Another, in pertinent part, makes it a crime for a federal agent to misapply government property or funds. The theory was that, by allowing improper factors to affect the award of a travel contract and to divert it from the rightful recipient, Thompson misapplied state funds.

The panel acknowledged - at least implicity - that the language of these statutes can be made to fit the conduct in which Thompson was alleged to have engaged, but concluded that such a reading would criminalize conduct that Congress did not intend to criminalize and, with respect to which, government employees would have no advance warning of its "criminal" nature.

One can use this to make partisan hay and suggest that U.S. Attorney Steve Biskupic "must have been" pressured politically to take such an aggressive view of the law.

But this type of aggressive application of criminal statutes to what was formerly regarded to be the grimier side of politics as usual is not new or limited to Republican-appointed prosecutors.

In fact, one can argue (and I have) that the convictions of Scott Jensen and Chuck Chvala fall into the same category. The statute that they were convicted of prohibits a state officer or employees from exercising a "discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another ...."

You could argue that using legislative resources for political purposes falls within this language. But you can also argue that it is the very essence of legislative leadership. It is the leader's job to get a majority for what he or she believes to be the best policies for the state.

The decision upholding Chvala's conviction pointed to the Senate Policy manual's prohibition of campaigning on state time or with state resources. But how different is this than Biskupic's reliance on Thompson's supposed departure from the state's elaborate scoring procedure?

The cases are different in that it is clear what Chvala and Jensen were up to and not so clear in the Thompson case. But Chvala and Jensen arguably had no more idea that they were committing a crime (as opposed to ignoring legislative rules that everyone had long ignored) than, according to the Seventh Circuit, Georgia Thompson had.

Part of the increasing criminalization of politics is driven by a desire for partisan advantage, but some of it stems from a zeal to combat public corruption. I think the latter is what happened in all of these cases.

Monday, April 23, 2007

Shark in the Wall Street Journal

It is entirely self serving to notice, but my paper on the Wisconsin Supreme Court was mentioned by John Fund in Saturday's Wall Street Journal. In recounting the last campaign, he referred to the "widely distributed "A Court Unbound?" a critique of its decisions by a prominent Wisconsin lawyer which was published by the Federalist Society."

At least I hope he was right about the widely distributed part.

Thursday, April 19, 2007

The larger meaning of partial birth abortion

I want to blog a bit more about the Supreme Court's decision in Carhart, but, first, a bit of the politics. It is a repeated canard among those who favor unlimited abortion rights that pro-life folks somehow dehumanize women. I can't say that no one in the movement has ever done that, but this fails as a generalization. Despite repeated references to the abortio license as a "women's issue," public opinion polls repeatedly show no material difference in the propensity of men and women to be pro-life. The most effective thing, moreover, that the pro-life movement has ever done is the "think about it" campaign sponsored by the Veritas Foundation. The whole premise of the campaign is to appeal to the natural impulse of women to protect their children and to seek to empower them to make that choice.

The second most effective thing it has ever done is the campaign against partial birth abortion. The abortion lobby insists it is a misnomer and a canard. But the reason that the issue has had legs is that it is anything but a misnomer. The term "partial birth abortion" is a deadly accurate description of the procedure's reality and that reality is ugly.

Of course, abortionists can proceed quite efficiently (and, with a bit extra work, quite safely for the mother) without using this procedure. But the debate over partial birth abortion has humanized the unborn child in a way that may never be undone. The pro-abortion movement has claimed there is no significant difference between 1) extracting most of a child from the womb and sticking a scissors in his or head, and 2) "disarticulating" a child in the womb.


Wednesday, April 18, 2007

Preliminary thoughts on Gonzales v. Carhart

I have just printed the Supreme Court's decision this morning in Gonzales v. Carhart, rejecting a facial challenge to the congressional ban on partial birth abortions. It's a 5-4 decision with Justice Kennedy joining Chief Justice Roberts and Justices Alito, Scalia and Thomas. There is a blistering dissent by Justice Ginsburg.

I have only skimmed it. It does not completely resolve the question of partial birth abortions because the majority opinion leaves open the possibility of an "as-applied" challenge. Here that would most likely involve an actual case in which a doctor claimed that the procedure was medically necessary to avoid a significant health risk to the mother. Justice Kennedy seems to have concluded that there is medical uncertainty regarding whether the procedure is ever necessary and, in the face of that uncertainty, Congress had the authority to act. But Kennedy, at least, left open the possibility that the result may be different if, in a particular case, it can be shown that "in discrete and well-defined instances" the procedure must be used.

This does seem to overrule the approach taken in Stenberg v. Carhart seven years ago in which the majority seemed to say that the procedure must be allowed as long as there was "substantial medical authority" that banning the procedure could endanger a woman's health.

What has changed? Justice Alito has replaced Justice O'Connor. Professor Marty Lederman, writing on ScotusBlog, takes the opportunity to remind us of the decisions in which Justice O'Connor cast the deciding vote.

The majority opinion assumes the continued viability of the court's current jurisprudence on abortion as expressed in the joint opinion in Planned Parenthood v. Casey, i.e., that there is a constitutional right to an abortion. Justice Thomas, joined by Justice Scalia, wrote separately to reiterate that he (and Scalia) do not accept that jurisprudence. Chief Justice Roberts and Justice Alito did not join that concurrence. I do not read anything into that. At this point, there appear to be five votes on the court to continue the Roe regime, two to end it, and two who have not weighed in.

The real lesson of Virginia Tech

In the face of a tragedy as monumental in both its scope and senselessness, it is only human to want to think that it could have been prevented. At this point, I am hearing more of that from the left. Doesn't this support a call for more gun control? But what - other than the total elimination of firearms - would have helped? There was nothing about the killer or the gun that he bought that was in anyway extraordinary.

While eliminating the private ownership of firearms might make us safer, it strikes me as impossible. There are too many guns in circulation.

Someone, we hear, should have reached out to Cho and helped him. But someone tried. We have generally abandoned the notion of involuntary commitment and mental health treatment in the absence of a crime or the most unambiguous demonstration of imminent harm. It was seen as a civil rights issue. Should we reverse course?

The most fatuous statement is probably from Sen. Barack Obama who somehow managed to equate mass murder with outsourcing. While I'll blog more on his statement in Milwaukee later, Obama takes the concept of violence, equates it with things that he does not like and then argues that we are a "violent country" that cannot see the way in which we are connected to each other. We are left to conclude that this is what we get.

Although we could debate whether the US overemphasizes individuality over the collective, this is just thumbsucking.

On the right, we are going to hear calls for expanded concealed carry and it is certainly possible that, had someone in Norris Hall been armed, the death toll would have been lower. But the likelihood that someone will happen to have a gun at the time and place when a rare event like this takes place is too remote to influence policy. If concealed carry is a good idea, it is not because it will prevent mass murder.

The reality is that, on this side of the fall, we cannot live in a world without danger or evil. There will always be sorrow.

And there will always be, as we see in Blacksburg, great love and heroism in the face of that sorrow.

Tuesday, April 17, 2007

Tommy stumbles early

I understand that conventional wisdom is that Tommy Thompson's presidential campaign was over before it started, but I wonder if it will be formally ended by his remarks before the Religious Action of Reform Judaism. Perhaps he'll get lucky and the story will remain lost behind the Virginia Tech tragedy.

Tommy undoubtedly meant well when he said that earning money was "sort of part of the Jewish tradition" but the statement is uncomfortably close to the libel of Jews as greedy and rapacious. His apology made it worse. He was, he claimed, only referring to the "success of the Jewish religion."

While I have some Jewish ancestry, I am not an expert in the Jewish religion. But I know a bit and I do not remember the sacred admonition to get rich.

It's hard to care much about this in light of what happened yesterday in Blacksburg and perhaps Tommy is so far off the GOP radar screen that no one would have cared anyway. But this is A-ball politics and won't play in the Show.

Monday, April 16, 2007

Ludicris is not the same as Imus; he may be worse.

I've been thinking a bit more about Imus and hip-hop, spurred by some of the comments to my earlier posts.

Some folks have argued that the equation of Imus' remarks with the use of misogynist and what would otherwise be racially offensive language in "hip-hop" is simplistic and ignores context.

I am not "equating" the two as much as I am conceding that they are different and that, in 2007, hip-hop is the larger problem. A racist remark will destroy a career. Although I think there is something artificial and overwrought about our reaction to Imus and similar offenders, I can understand the need for social enforcement of what are now our norms regarding race. We know our history in this area and we want to move away from it, not back toward it.

But the avalanche that befell Imus suggests that, today, there are few worse things that one can be accused of than racial insensitivity. Imus certainly insulted the Rutgers basketball team, but his remarks - and, for that matter, the public expression or endorsement of white racism - hardly represent a serious threat to the African-American community in 2007. (This is not quite the same thing as saying that "racism" no longer exists. I don't believe that, but it's another topic.)

But the expression of hostility toward black women and the glamorization of amoral and destructive behaviors is pervasive in hip-hop and often presented in a very attractive way. (Unlike many conservatives, I readily concede that some of these guys are quite talented and that the songs can be quite clever.) This not only affects black culture but it affects white perceptions of black culture.

I understand that one can spin a whole intellectual rationale for the expression of an outlaw culture developed in response to repression and seeking the only authenticity permitted young men otherwise frustrated by oppression, blah, blah, blah. But few people outside the faculty lounge hear it that way and that is what is important.

Thursday, April 12, 2007

Obama v. the culture

Imus has been fired. But first, he made things worse. He issued a statement saying that the Rutgers basketball team shouldn't feel too bad because, after all, most n****** are "hos." Barak Obama again called for him to be fired.

Ah ... no. I'm wrong. It wasn't Imus, it was Ludicris and Sen. Obama did not call for him to be shunned, but met with him to discuss "empowering youth" - presumably by calling on them to embrace their inner Ho.

H/T: NRO's Media Blog.

Shark and Shepherd on the air

Today between 4:30 and 6:00 pm on WMCS-1290, Backstory hosted by Eric Von. Topics may include Imus, crime in Milwaukee, and Obama. I promise pearls of wisdom.

Imus and Nifong

Do the Duke rape case and the Imus controversy suggest that we are fighting the last war when it comes to race relations? With respect to Imus, where is the larger threat to the self-esteem and treatment of African-American women? Is it in the lazy attempts at "humor" of an aging shock jock or in the lyrics of about 98% of hip-hop? Who is going to have a greater impact in the African-American community? Imus or 50 Cent? After all, where does the term "ho" come from? It is not an epithet that was coined by white racists.

In the Duke case, everyone rushed to man the customary barricades. Here is the real threat to African-American women: racist frat boys. 88 Duke faculty members fell over themselves to proclaim the larger truth that the allegations supposedly illustrated. Even now, the exonerated young men are wrapping themselves in political correctness. We have, they say, lost sight of the presumption of innocence and how much worse must that be for people without resources.

There is reason to be concerned about disparities in resources in the criminal justice system. But, even allowing for that, what happened in the Duke case is that Michael Nifong assumed the role of a 21st century racial demagogue. For those of you in Milwaukee, he played Michael McGee, Jr. He got himself reelected by playing to racial fears and resentment - in this case, those of black voters. In the end, he overreached but our public offices are full of those who play the race card with more skill and success.

And, he illustrates once more, a cardinal principle of public policy. Distrust prosecutors who like to see themselves on TV.

Wednesday, April 11, 2007

Let's calm down on the Thompson case

The Georgia Thompson case has become part of the high-minded political feeding frenzy around the US attorneys issue. It is certainly true that the 7th Circuit panel was unimpressed with the government's case and it is certainly rare for the court to act as rapidly as it did.

But before we conclude that the case was so frivolous that it must have been the result of political pressure, we should remember two things. First, although I incorrectly predicted that she would be acquitted, a jury convicted her. They were convinced that she was being pressured by her bosses and that she let it affect her work on the Adelman contract.

It is tough to say with precision what the panel's rationale for reversal was because they have not yet issued an opinion. What I heard during the oral argument was a strong suggestion that , in the panel's view, those facts don't make out a crime because the selection of Adelman was not contrary to the applicable criteria. In other words, whomever she was trying to please and whatever she did, the state was not harmed. She may well have been pressured to select Adelman and she may have tried to steer the contract to Adelman as a result, but it doesn't matter because Adelman was, essentially, tied with Omega under the proper selection criteria.

Shouldn't Biskupic have known, then, that he was pursuing an overly aggressive reading of applicable law?

Maybe, but remember that the trial judge let the case go to the jury. Although the judge, Rudy Randa, is a Republican appointee, he is a well-respected judge who obviously saw it differently than the panel.

What we had here was people within the procurement process saying that a civil servant said that "her bosses" wanted the contract to go to a firm whose principals were campaign donors and that they thought she steered the process in that firm's direction. It doesn't shock me that the US Attorney was interested in that.

Tuesday, April 10, 2007

Four questions on Imus

As for Don Imus,

1. How is it possible that he thought - even for a moment - that it was ok to say that?

2. Isn't there, nevertheless, something artificial about the way in which he must now engage in extreme self-abasement and seek absolution from Al Sharpton? Perhaps it is a necessary ritual but it is no less of one for that.

3. This type of stuff on our airwaves is harmful. But how much more harmful is it than the veiled misogynism and relentless coarsening of public mores undertaken by Howard Stern and hundreds of others?

4. Why did anyone ever think that Imus was entertaining?

Monday, April 09, 2007

Stop the ringing!

I don't like robocalls. Heck, I am pretty much a telephone recluse. I rarely even answer the phone. I figure that God, in Her infinite wisdom, made answering machines for a reason.

Spencer Black wants to outlaw them.

This an odd twist among our leftish civil libertarians. I can be compelled to have to watch the most disgusting and offensive political displays in public: images of Christ in urine, burning flags, irresponsible slanders. I've got to allow people to surf for porn at the public library. But God forbid that I have to hang up the phone on a political call that I don't want to hear.

A new form of conspicuous consumption

There was a piece in the New York Times yesterday observing that the anti-union stance of companies like Starbucks and Whole Foods just doesn't seem to cause much ire among the liberals who patronize those businesses and to they cater by supposedly being "different" from your typical rapacious capitalist corporation. John McAdams directs our attention to an article on Edun, the "socially responsible" clothing line started by Bono and his wife, Ali.

Yet Wal-Mart, which has probably done more to benefit poor consumers than much of the 40 year quagmire formerly known as the war on poverty, "carries the sack."

Why is this? My suggestion is that Wal-Mart does nothing to flatter the chattering class' sense of its moral superiority. It does not tell us that they - and we(if we shop there) - are better than other people. All it does is offer basic goods at low prices. But what does that say about me ?

Friday, April 06, 2007

What does the Thompson verdict mean?

I have listened to the oral argument in the Georgia Thompson case and it was brutal. Reminded of me of an incident that occurred in a federal court trial some years ago. It was a bench trial and through a week of our opponent putting on witnesses, Judge John Reynolds kept making comments that suggested he couldn't see their case with a microscope. Friday morning, I asked one of the other side's lawyers if they were going to finish today. He responded, "we were finished some time on Monday."

The court did not buy the government's theory that the mere consideration of political factors constituted a federal crime because it deprived the state of "honest services." The fact that Adelman and Omega were virtually tied in the scoring process seemed to suggest to them that Thompson was being prosecuted merely for thinking the wrong thing, i.e., that her bosses wanted Adelman for political reasons. Because, it seemed to believe, the government could not tie that thought into any improper action, there could be no crime.

The court seemed to worry about the implications of throwing people into federal prison for having some wrong thoughts in mind during the procurement process. "What if," Judge Wood asked, she believed that Adelman would be great to work with because the account executive looked like Brad Pitt. Would the government have been deprived of honest services.

There is a sense in which the decision seems like it may have turned on the notion of "no harm, no foul."

That's what it seemed like, although we won't know for sure until the opinion comes out. This resolves the case for Georgia Thompson, but it does not entirely dispose of the political questions that have so engaged everyone around here. Did higher-ups in the Doyle administration intervene on behalf of Adelman? Is that a regular occurrence? How did Thompson come to believe (as the jury apparently felt she did) that her "bosses" wanted Adelman( particularly because, as the panel noted, there was no evidence that she was aware of the contribution)? None of this may have been pertinent to the court's decision.

Some folks are pushing the evidence that the prosecution was politically motivated, maybe a case of Biskupic trying to impress the Bush administration. I don't see much evidence of that. It was an aggressive prosecution but we've had a lot of that around here.

Thursday, April 05, 2007

More Shark on the air

Backstory returns to WMCS-1290 this afternoon between 4:30 and 6. We will be discussing the election.

Shark on the air

Between 1 and 2 this afternoon, I will be on WRJN in Racine (1400 AM) discussing A Court Unbound? and the Wisconsin Supreme Court.

The problem with disclosure

As I blogged earlier this week, the supreme court race is likely to provide the occasion for another round of campaign finance "reform." Via Owen Robinson, I see that there is a proposal to ban independent expenditures during a campaign unless the donors are disclosed.

I am more sympathetic to disclosure than restrictions, but the Institute for Justice has released a study suggesting that disclosure requirements burden the exercise of first amendment rights of free speech and association while bringing little benefit.

According to IJ, disclosure requirements have a substantial chilling effect on the willingness of people to make contributions to organizations supporting ballot initiatives and has little impact on voters' assessment of those initiatives. Voters don't know they can find out who contributed, don't know who contributed and don't seem very motivated to find out.

It occurs to me that many of the strongest supporters of disclosure are among the strongest opponents of voter identification requirements because they fear its "chilling effect" on exercise of the franchise.

But if IJ is right, disclosure will also "chill" the exercise of rights of free speech and association. It will discourage people from pooling their resources to promote the public advocacy of issues they care about.

Wednesday, April 04, 2007

Abandon all hope

Jay Bullock is keeping hope alive on this supreme court thing:

There also remains the possibility of the complaints against Ziegler working their way far enough up that she may have to resign; remember, we're talking now upwards of 100 or 150 cases in which she violated both the spirit and the plain letter of the state's judicial code of conduct. I realize that chance is remote--and, if it happens, it will look unfortunately like partisan wrangling rather than a necessary step against an unethical judge--but that's one small light we can cling to.

Turn out the lights. The chance isn't even remote. Jay makes the same mistake as Linda Clifford did. This was a real issue, but it wasn't the hanging offense that they imagined it to be.

He wants to know why Ziegler's alleged failure to comply with the judicial code is not the same as Robert Zellner fishing for porn on a school computer. He can't understand why anyone would refer to the Justice-elect Ziegler's handling of these matters as mere "sloppiness."

We've been through this again and again, but it is a huge (and wildly unfair) thing to compare an elected justice of the Wisconsin Supreme Court to a guy who cruises for porn on a school computer, so I will explain it one more time.

There are two categories of cases. Most of the "scores" Jay refers to involved cases in which she held stock in a party (mostly United Healthcare, no?). The rules say she has to recuse if 1) she has a more than a de minimis interest that 2} could be substantially affected by the outcome of the case. The Judicial Commission issued an an advisory that sets 20k as a threshold for recusal, but there are lots of judges that don't follow it as both the Wisconsin State Journal and Milwaukee Magazine recently pointed out.

Maybe they should (although I don't see this as self evident). Maybe the rule should be changed and the advisory should become mandatory. But all the rule calls for is the kind of "gut check" that she claims to have undertaken. As far as I am aware, none of those cases was likely to have the slightest impact on share value, so her conclusion that she could proceed is not unreasonable - given the limitations of the rule.

The West Bend cases are different. There, because her husband was a director, she had to recuse or get a waiver, but, as I understand it, the overwhelming majority defaulted. While I think that the rule still technically applies, there was no one to get a waiver from and really nothing for the judge to do. Processing the case is largely clerical. It's hard to get worked up about those.

There were a few (two or three to my knowledge) that were not defaulted and the question becomes: Did she intentionally disregard the rule? That is implausible. None of these cases were material to West Bend and none would have been handled any differently by any other judge. The defendants showed but they had no defense. Why would she intentionally disregard the rule if it would not benefit her or West Bend? Hence, the reference to sloppiness. She seems to have made a subjective judgment when she should not have. Not good, but few of us have not fumbled sometime along the way.

As for Zellner, maybe he did not know he was going for porn. Or maybe he didn't appreciate that it was against the rules. Or maybe the rule only prohibited viewing what was, in the teacher's judgment, really hard core porn. In that case, there might be some similarity.

I really don't have much of an opinion on Zellner, but the voters of Wisconsin did not elect an unethical person to the Supreme Court.

Reflections on the supreme court race

This is likely to leave the court where it was. It is unlikely to make it a more conservative court because Justice Wilcox was the court's most conservative member.

Reports in the paper and by bloggers like Jim Rowen suggest that this a conservative one-two punch, with targeting Justice Louis Butler (who is up for reelection next year) as the lights out cross.

While I believe that Justice Butler is an intelligent and capable jurist, I have profound differences with him on matters of judicial philosophy and constitutional interpretation. He has authored and joined in some opinions, which apart from their merits (with which I disagree), would be effective campaign fodder.

But this does not guarantee that he will face strong opposition (look at what happened with Justice Crooks) or that he is in trouble. Incumbency is extremely powerful on the court. Only one sitting justice has ever been defeated for reelection and that was the guy who voted to let the Milwaukee Braves move to Atlanta.

Linda Clifford blames her defeat on money. That sounds a bit like sour grapes, but I can imagine how disappointed she is. I tend to give defeated candidates a lot of room on election night.

But is she right? It does not seem like the Clifford campaign was underfunded. It got its message out, but that message was all about Annette Ziegler. Having received the "gift"of the West Bend cases in January, she seems to have made the mistake of thinking that she could ride it to victory. So we heard about that, tendentious statistics about sex offenders and phone calls. (The latter had to be one of the dumbest attack ads ever; didn't her people realize that most - or at least many - voters make personal calls at work?)

Everyone hates negative ads. Everyone runs them because they work and our silly campaign finance laws tend to drive money toward them. But do they work to the exclusion of all else? What we never heard was a case for Linda Clifford.

Such a case would have been difficult because it would have gone against the conventions of judicial campaigns. She would have had to run as "the friend of the people" on the court, promising (however implicitly) to look out for them.

While there is polling that supports such an approach, it also runs against popular (and legal) notions of what judges are supposed to do. My recollection is that Walt Kelley tried something like this in '97 and it did not work.

I also think Mark Graul and Ziegler did a great job of staying on message. "Clifford is not a judge." While I believe that Clifford was right on the essential irrelevance of this (although I suspect Annette Ziegler sincerely disagrees), it has great value as a campaign theme.

Tuesday, April 03, 2007

The Wisconsin State Journal on judicial activism and restraint

Sunday's Wisconsin State Journal featured an article by Dee Hall including, among other things, my comments and those of Marquette law professor Scott Moss on judicial activism and restraint. The piece is well done. I have only two comments.

First, Scott argues that a belief in judicial restraint is "simplistic and wrong " noting that judges decisions "make law" whether they want to or not. Put in that way (and I recognize that Scott can build a more sophisticated case), that argument is, I can't help it, "simplistic and wrong." People who argue for restraint do not contend that discerning the meaning of a text is mechanical or something about which reasonable people cannot differ. The debate is not about whether judges will clarify the law or even about "striking down" laws. It is, rather, about how you go about the interpretive task. To what extent do you regard constitutional and statutory text as binding rather than suggestive and to what degree are you skeptical about interpretive methods can give courts more or less unfettered discretion.

Second, the citation to studies that treat "striking down laws" as synonymous with activism is really beside the point. A judge who subscribes to a more restraintist judicial philosophy will not be freed from the need to review whether the legislature has acted consistently with the constitutional text. It is just that it is the text - and not a philosophical framework that loosely uses the text as a jumping off point - is the standard of constitutionality.

But, most importantly, I commend Dee Hall and the Wisconsin State Journal for writing about this.

The ultimate revenge of an adolescent for life

The Reddess and I attended a Stones concert a few years ago in Chicago and were a few feet from the stage. I can tell you that Keith Richards looks worse in person that he does on camera. The amazing thing is not that he has never grown up but that, when we say that he has settled into a state of permanent adolescence, the term "permanent" is apparently meant to be taken literally rather than figuratively. We used to say that only cockroaches would survive thermonuclear war. I think it would be cockroaches and Keith Richards.

So now we hear that the guy snorted his father's ashes with a cocaine chaser. There's generational turnabout for you. "Ground me, will you? One day I'll have you up my nose."

Don't question authority at UW-LaCrosse

Via the Phi Beta Con blog at National Review Online from, there is apparently more nonsense in the UW system. In response to a students' complaint that the readings for a course on management were skewed to the left, Professor John Betton responded:

I get really tired of right wing stuff. Surely you get enough of it. Do you ask for additional readings in your right wing classes. Obviously not. I resent your insulting assumption that you have the right to teach my class or that students are not familiar with right wing racist crap on immigration. Of course they are. My course is not being taught to reinforce right wing ideology. Don't you get enough of this in other classes, or do you need EVERY class to be consistent with extremist views.

The student who reports this incident hastens to add that he does not believe that he was penalized for complaining. Still, the presumption that there are "right-wing" and "left-wing" courses is troubling. I have taught some classes that address very controversial issues about which I have very strong and definite views. I have generally been upfront about what I think but it would never occur to me that 1) I did not have an obligation to thoroughly and fairly present the responsible opposition (and there almost always is one) - however much I may think it is "crap," and 2) that I should not make clear to students that there are no points to be gained by agreeing with me and none to be lost by disagreeing. If I failed to do these things, it would be because I did not accomplish what I set out to do, not because I wanted to teach my views.

Monday, April 02, 2007

Sorting out crime in Milwaukee

Some interesting threads over the weekend on crime in Milwaukee. First, Alderman Mike D'Amato's piece in yesterday's Journal-Sentinel about what to do. His response is, essentially, nothing. He wants to commission a study, but don't worry. It won't lead us to adopt "broken windows." That's so New York in the 1990s.

Mostly, he wants gun control. Let me make a concession. If I thought it could work and if the state and federal constitution permitted it, maybe it would be a good thing to remove handguns from the civilian population.

But, even if the federal constitution can be read to limit the right of gun ownership to militias, our state constitution cannot be. And even if it could, there are millions of handguns in circulation and those who use them to commit crimes are not likely to turn them in. I'm all for throwing the books at people who have handguns and should not (I am for concealed carry with stringent registration and qualification requirements) or who commit crimes with a gun, but the record of handgun control in reducing crime is unimpressive. It amounts to a nonanswer.

Second, and in contrast, is Bob Donovan's proposal for intensive policing. It's easy to lampoon this as calling for a police state and any movement toward "community policing" and "broken windows" must be undertaken with sensitivity. However, in a community where much of the social controls against crime and support for the law-abiding segment of the community (which constitutes the strong majority) have broken down, the restoration of order and a sense that it is possible to play by the rules is paramount. Patrick McIlheran makes the point well.

Finally, Patrick at Badger Blogger reminds us that the "black community" in Milwaukee is not the perpetrator. It is the victim.

Sunday, April 01, 2007

Baseball, apple pie and politics

As baseball season begins, hope springs eternal even if, in Wisconsin, baseball begins in a season that is not exactly spring. The Reddess and I will be at Miller Park tomorrow and I am cautiously optimistic about the Brewers. They have little margin for error, but it would not be shocking if they made the post-season for the first time since I was a newly-minted lawyer.

But this is a political blog, so let's skip the apple pie. My Backstory colleague Jim Rowen seems to agree but bemoans the decline in the number of African-American players, apparently believing that, if blacks are represented at a rate that is slightly below their share of the American population, this means that baseball can no longer be the national pastime.

If a sport needs to look like America, the NBA needs major social engineering. While my guess is that the percentage of white players in the league may actually have increased, they are all foreigners. How can the NBA appeal to America unless it both looks and sounds like a campaign commercial?

My wild guess is that the number of African-Americans in baseball has declined as the game has become internationalized. There has been a huge increase in the number of Latin - and to a lesser degree - Asian players. As their numbers have gone up, the numbers of native born blacks and whites have probably gone down.

A preemptive rebuttal

I sympathize with people who are frustrated with the tone of our politics and, in particular, with our recent supreme court race. The problem with these campaigns for our state's higest court is that they place pressure on the candidates to behave in a way that is quite unjudicial. We want judges to be fair and thorough, yet the candidates attack each other in ways that are exaggerated at best and deceptive at worst. We want judges to be dispassionate. Political campaigns are anything but. Clifford and Ziegler probably didn't want to get into an ugly cat fight (ed. sexist!), but here we are.

I anticipate that, no matter what happens on Tuesday (but especially if Ziegler wins), we are going to hear that the problem is money. No one would behave this way unless they were corrupted by the sirens of campaign contributions and independent expenditures. We need public financing.

The problem with public financing is and always has been that it is fundamentally anti-democratic. At one point or another, it involves the state in deciding who gets to run. There always has to be a threshold for who gets money and, unless our public financing scheme allows a meaningful opportunity for candidates to opt out (i.e., by not imposing overly stringent restrictions on private fundraising), this is going to affect who can and cannot run.

Although advocates of public funding would argue that this is better than what we have now, much of what we hate about money in politics is a result of campaign finance reform. Candidates spend an inordinate amount of time begging for money because of contribution limits that require them to fill a bucket with a spoon. Independent groups conduct themselves without the discipline that a candidate must have because they cannot contribute as much to the candidates as the stakes require.

Finally, we hear that unfettered (or less fettered) fundraising will favor the wealthy. While there is probably a Burkean argument that this is not all bad, i.e., that it acts as a brake on the politics of envy, it is not clear that this is true. The Democrats seem to have no problem raising money although, ironically, they seem to do better at attracting it in big chunks rather than through regulated "hard money" contributions. (But Howard Dean's net-based fundraising was a counter-example.)

My own bias is toward less limitation and more disclosure. Let the money flow (it will anyway) but let's make clear who is behind whom. Our 30 year experiment with comprehensive campaign finance "reform" has been one unintended consequence after another. It is time for humility.