Saturday, September 29, 2007

Just being neutral

An adjunct professor at a community college claims that he was fired for telling students that the story of Adam & Eve was a fairy tale and should not be believed. (There was apparently also a question of his classroom manner, but let's put that aside for a moment.)

Under widely held views of the Establishment Clause and the separation of church and state, wasn't the school well within its rights? In fact, might it not be said that it acted prudently?

You could try to argue that the teacher had First Amendment rights to say what he wanted, but the trends in free speech protection for government employees run against that. The fact that he was at a college may help him there, but I am more interested in the Establishment Clause issue than the scope of an academic freedom excepion to the principle of this case (something about which I feel rather sympathetic.) Say he was an elementary or high school teacher. That might leave open a ray of hope for such an argument, but it's probably not much more that a single beam.

In any event, even if he had free speech rights, doesn't the school have a compelling reason to restrict them, i.e., avoiding an Establishment Clause violation?
If it's the duty of the state to remain neutral on questions of religion and not to endorse either religion or irreligion, how can the administrators of the college permit this guy to tell students that their religious beliefs are wrong?

Friday, September 28, 2007

Still confused about facts

Paul Soglin has tried to clarify what I thought was a rather elliptical satire of John McAdams' study on racial disparity. I don't think that he has managed to salvage his point. Here is what he now says about McAdams study:

McAdams uses his preconditioned prejudices and right-wing social theories to dictate the outcome. Any person with a brain in their body would look at the data and conclude that Wisconsin does lock up too many blacks and try to figure out how to solve that problem.

Well, yes, but, in order to do that, wouldn't one have to know why Wisconsin locks up too many blacks? Is it because of differences in the crime rate or is it because of bias in the criminal justice system? That's what McAdams is after. If it's not due to bias in the criminal justice system (his argument) then the Governor's Commission on Reducing Racial Disparities in the Criminal Justice System is barking up the wrong tree if it insists on solutions focused on the system. In fact, as Professor McAdams points out, those solutions might even make conditions in the central city worse if, as a result of an obsession with improving the numbers in the criminal justice system, we adopt policies that impair law enforcement and result in more inner city crime. Poverty can cause crime but crime can also cause poverty.

As I wrote yesterday, Paul is confusing a social scientist's attempt to explain a phenomenon with a value judgment that the explanation means that the phenomenon should be accepted. McAdams is arguing that the disparity is "explained" by something other than bias in the criminal justice system and that, given the situation on the ground, the racial disparities that we see are should be expected.

But that is a claim about facts. It is not a judgement about whether those facts are good or bad or whether they deserve some response outside of the criminal justice system.

Paul asks what we should do to change this and that is a fair and important question. But it can't be answered until we know what needs to be changed. We can't remedy a disparity until we know why it exists. That is the task that John set for himself.

Paul apparently doesn't like the title of John's article: "Is Wisconsin Locking Up Too Many Blacks?" because answering the question in the negative somehow implies complacency about racial disparities. But the title (which he may not have even chosen; I have a piece in the same magazine and I didn't choose the title) is obviously a reference to the Governor's Commission and the question of bias in the criminal justice system. If there are disparities in the crime rate that explain the disparities in the outcomes of the criminal justice system, then the criminal justice system isn't locking up too many blacks.

This says nothing about whether whatever is causing the disparity in the crime rates is acceptable or, if it's not, what can be done about it. Paul says he votes for eliminating poverty. Wonderful. That's a great goal to have and we can talk about how to do it. But, as Professor McAdams suggests, if the problem is, for example, racial disparities in the poverty rate leading to racial disparities in the crime rate leading to racial disparities in the incarceration rate, focusing on the last element in the chain won't eliminate poverty and may make it worse.

Thursday, September 27, 2007

Let's not confuse outselves with facts

I am a bit surprised by Paul Soglin's response to John McAdams study on racial disparities in incarceration rates in Wisconsin. I want to think its entirely tongue-in-cheek and not an anti-intellectual refusal to understand what the study was trying to say, but it's a powerful hard thing to do.

First, let's look at the study. This is how Mayor Paul (that's how you address mayors in Madison, right?) sums up the study:

The McAdams report suggests that Milwaukee homicide numbers are within reasonable expectations. In fact more murders can be tolerated. McAdams's methodology changes the way we analysis all crime data including homicides.

But, as Hizzoner must know, the McAdams report does not suggest, imply or even cast a sidelong glance at any such thing. Professor McAdams does not say that the number of homicides in Milwaukee is what we would expect or that it is acceptable. In fact, strictly speaking (always a good thing), the study says nothing about the homicide rate. What he was looking at is disparities in what happens to blacks and whites after a crime has been committed.

In connection with that, he is trying to get under numbers that show that the disparity in black and white incarceration rate is higher here than it is elsewhere. One thing that you need to know in order to assess why that is so is to look at whether the black population here commits crimes at a rate that is higher than elsewhere.

That's not easy to do. If you use conviction and arrest records, you might just be reflecting biases in the system that occur before those stages in the process. So John wonders whether the nature of the black population in Wisconsin differs from those states where the incarceration disparity is lower. He hypothesizes that states where the black population is more likely to be urban and poor may have a larger disparity than in states where it is less likely to be urban and poor. He constructs a model, runs the numbers and - whallah!- there seems to be precisely the correlation that he hypothesized.

This isn't airtight but it is instructive. Maybe what Paul is attacking is the notion that a social scientist might try to control for potential explanatory factors as a way of testing accusations of discrimination. If that's the case, then I shouldn't think he will have many friends on Bascom Hill.

In any event, he is conflating the idea of what those explanatory factors predict with a value judgement about whether the results are acceptable. Studies may show that people with cholestorol in excess of a given number can be "expected" to have a higher incident of heart disease. That doesn't mean that the fact that they have that rate of disease is fine and dandy. But it does tell us that the problem of heart disease might have something to do with cholesterol and not eye color, just as McAdams' numbers suggest that the disparity might be related to something other than racist Badgers.

One possibility is that urban, poor blacks are more likely to commit crimes than non-poor, rural blacks. That's not an outlandish hypothesis. It even scans with some liberal notions about the root causes of crime. Whatever its value, it is not the same as saying that the disparate crime rate can be tolerated.

Another possibility is that poor urban blacks get locked up more often than whites or nonpoor and rural blacks for reasons that have nothing to do with a greater propensity to commit crimes. The numbers suggest that, if this is true, Wisconsin may be no worse than anywhere else but, once again, that's not the same as saying that, for example, nationwide bias against poor blacks in cities is OK.

Professor McAdams acknowledges this second possibility, so he goes on to look at other numbers to see if he can find any evidence of that. I plan to post on that later, but I am really surprised to see this anti-science attitude from a denizen of the Party of Reason.

Ruminations on the Ziegler case

I haven't thought this through but I think it's interesting.

One of the requests for information by the panel reviewing the Judicial Commission's recommendation of a reprimand for Justice Annette Ziegler strikes me as intriguing. The panel wants to know when Justice Ziegler conceded that she had violated a rule requiring her to recuse herself from cases involving West Bend Savings & Loan.

On the one hand, this seems unexceptional. One factor commonly considered in attorney discipline is the degree to which the lawyer was forthright in response to allegations of wrongdoing and what that tells us about whether he or she understands what happened. Why should it be different with judges?

But in the run of cases, this involves conduct with clients and the Office of Lawyer Regulation - the agency that investigates and brings charges of attorney misconduct. It tends not to involve what people say in an election campaign.

My recollection is that candidate Ziegler did not comment directly on the allegations of a rule violation. She said she welcomed an investigation and jumped to the claim that the cases were decided properly, i.e., the plaintiff and defendant eventually got the right result. If by result, one means the ultimate judgement in the case, that seems right as far as anyone can tell. She characterized the whole thing as "no scandal" which isn't quite the same thing as saying that she did not violate the rule (although I suppose one could argue that it bears upon her understanding of the rule).

Could the panel (and Supreme Court) now take into account the fact that she did not concede a violation during the campaign in deciding upon discipline? Would that raise First Amendment concerns in that it would penalize her for not engaging in certain types of speech in a context other than responding to regulatory authorities? We know that not all aspects of the Judicial Code may withstand First Amendment scrutiny. Judge Shabaz recently held that construction of the code to prohibit judicial candidates from answering questions about generic issues like the death penalty is unconstitutional. Should the discipline of a judicial candidate be affected by the fact that he or she may have avoided admitted a rule violation during a campaign?

Wednesday, September 26, 2007

Shark on Dead Tree

I have an article on the Wisconsin Supreme Court in the recent issue of WI Interest.

Talk radio dysfunction

Some of the websites that make it their business to stalk Bill O'Reilly carried an item about O'Reilly's supposedly offensive "restaurant review" of Sylvia's in Harlem. O'Reilly had apparently taken Al Sharpton to dinner there. The "review" was objectionable because O'Reilly focused on the civil behavior of the patrons about which he was said to be "surprised." Nationally, CNN has picked it up. Locally, Paul Soglin and Eugene Kane repeated the point.

I doubt that either of our local friends actually listened to the segment, It was apparently part of an extended commentary on racial stereotypes and the way in which people respond to the legacy of racial expression. (The excerpted segment left out some of this context.) He followed the reference to Sylvia's with a story about his grandmother's prejudice. (I admit that Bill is fond of the first person narrative.) He argued with her about it as a high school kid but, he said, she was unable to get past stereotypes and the fear that they generated, She expressed this fear, according to Bill, in "irrational hostility." He then went on to say that she was "old school but, today, rap culture creates stereotypes that are not reflective of the larger black community.

I suppose that the criticism will be that O'Reilly said that he "couldn't get over" how Sylvia's was just like any other place. This may be a sin that those who are committed to the aggressive enforcement of a complicated web of mandatory circumlocutions in all discussions of race will never forgive. But what does it mean anyway? Did the scene at Sylvia's stick with him because he was surprised or did it stick with him because it drove home to him that, in a society where we still mostly stick to our side of the racial divide, we are more the same than we are different ? All I can tell you is that he expressly said the latter. ("We're the same.")If this is, as CNN says, his "Don Imus" moment then we simply can't talk about race in this country. Ever.

One would think that people who seem to be convinced that talk radio's audience consists of closeted Klansmen would be happy that someone took the time to set matters straight.

Although recent posts by Mayor Soglin and my erstwhile Backstory colleague Jim Rowen focused on a different R-word (the ubiquitous "rant" although Paul did not actually use it), there seems to be this idea that talk radio hosts (and conservatives generally) must be, among other things, racist or ignorant about race because they disagree with us on certain aspects of racial and urban policy. We know that we are right and that all right-thinking people must agree with us, so there must be something wrong with those who don't. (That Jim offered as a reasonable alternative Joel McNally (a man whose public persona embodies the concept of smug and who doesn't seem to have had a new idea since 1969) sort of drives my point home. I am perfectly willing to believe that people enjoy Joel, but it's not because he engages in open-minded and far-ranging intellectual discourse. It's because he tells them they are right.

In fairness to both Paul and Jim, they were more than willing to engage me in a discussion of urban issues - something that I hope to get back to when I am settled in my new gig. But forums that are far more popular than our blogs, while they are not and cannot be graduate school seminars, are not an intellectual wasteland and the people who populate them are not benighted morons or evil pipers.

Tuesday, September 25, 2007

Don't pray for murder victims

I agree that it is a shame that the Madison-based Freedom From Religion Foundation was able to convince the state to remove a prayer and a hymn from a memorial service for murder victims. I guess we're all safe from theocracy for another week.

But the sad fact is that their legal position wasn't crazy and I understand why the DOJ caved. There is room to defend the prayer and hymn. One could, for example, argue that this is more like an invocation opening a session of the legislature than it is like a graduation ceremony at which attendance is, at least practically, "mandatory" and the audience consists of minors.

But the fact of the matter is that under either the Court's here today-gone tomorrow-back next week (and aptly named) Lemon test or under Justice O'Connor's much maligned endorsement test (a/k/a What Would Sandra D)o, the ceremony was very vulnerable to court challenge.

Both the Lemon and endorsement tests (arguably a restatement of Lemon) are so malleable as to be meaningless. As I argued in a recent scholarly piece (and as many others have), the concept of endorsement is problematic. It tends to work in a disaggregated fashion with the question of endorsement turning only on the particular action in question without consideration of everything the government does or does not do. It requires judges to adopt the mindset of a hypothetical observer who may bear no relationship to what real people think. It assumes that neutrality is an achievable goal. It's not. The idea of segregated secular and spiritual worlds is a very modern liberal protestant concept. It embodies a conception of nonestablishment that is very questionable on historic and policy grounds.

Eugene Volokh thinks that a recent decision from the 9th Circuit holding that the transfer of federal land on which people have been constructing a memorial cross to a private party violates the endorsement test might serve as a vehicle for jettisoning the test altogether.

I am not so sure. I agree that it is possible that there may be four justices willing to eliminate or substantially modify the endorsement test. But will they believe that they can get Anthony Kennedy to buy into something that they can agree with. Kennedy has, on the one hand, suggested that coercion has something to do with violations of the establishment clause but he has attended to define it expansively, such that it may simply collapse into non-endorsement.

Saturday, September 22, 2007

The problems with Jena

Although its been under the radar for a while, the Jena 6 have now burst into the national consciousness. As is usual with this type of thing, our reactions are formed as much by our preconceived notions as by the facts of the case. I'm no exception. For me, it's not so much about the response to Jena as it is the fact tht only incidents like this tend to generate urgency among leaders like Jesse Jackson and Al Sharpton.

It seems to me that there is reason to be concerned about what happened in Jena. Whether or not the discipline meted out to the kids who hung a noose in a tree that was apparently regarded as a "whites only" lounging spot, it seems clear that school officials did not take it sufficiently seriously. In our world, swastikas on synagogues, nooses in places where black people want to go, etc., are not harmless pranks. Although I do not think that anyone should be shocked that a group of kids who beat another unconscious are charged with felonies (just as nooses in a tree are not a "prank," this was not a schoolhouse scuffle), it does seem like charges of attempted murder for the assailants were over the top.

But it seems silly to suggest, as Jesse Jackson does, that this is the new Selma or to imply, as Leonard Pitts has, that these events are somehow comparable to the type of jury nullification and official complicity in violence against blacks that we saw in the south fifty years ago. The charges may have been too harsh but they have since been reduced. The response to the nooses may have not been harsh enough, but the school certainly didn't tolerate them.

But Jackson and Al Sharpton are excited about Jena because, even if it must be played for more than it's worth, it allows them to do what they do best - get folks riled up over the traditional - white - villians.

This isn't all bad and wouldn't be bad at all if Jackson or Sharpton or others with similar clout had any other cards to play. One would think, for example, that 2007's Selma might be revolve aroung that which constitutes the greatest threat to black aspirations. One might think that it would have something to do with the violent conditions in America's central cities or even the poverty that we find there. But that can't so readily be portrayed as a matter of "us v. them" or "good v. evil." As D.L. Hughley jokes, it feels good to believe - for a moment - that everything will be better now that we got rid of Don Imus.

Of course, there are larger issues of discrimination in the criminal justice system about which we always want to be reasonably diligent. But I can't help but believe that if this is where all of the energy is directed, larger problems go unaddressed.

Jason Whitlock gets at some of this when he writes that all of this concern about one member of the Jena 6 who has been tried - Mychal Bell - comes a little late. A father who was not part of his like and authorities who may have coddled him in the aftermath of earlier offenses because of his prowess as a football player might have done better by him. But these things - particularily the absence of fathers - seem harder to use as the basis for public morality plays and vehicles for protest. That's a pity.

Thursday, September 20, 2007

So, Governor, what have you got?

Haven't the Assembly Republicans put the ball into the Democrats' court by passing a partial funding bill that essentially accepts the Governor's proposals for education funding and aid to local governments? Whether or not it is ideal to pass just part of the budget now, it seems to me that the gambit does make clear that the next move needs to come from the Democrats. On what are they willing to compromise in order to complete the budget?

At this point, conventional negotiation practice would have the Republicans do nothing. Most people are very loathe to negotiate against themselves and the dynamics of the process suggest that the Dems must now move before the GOP does.

Of course, the Dems are angry because the GOP has put this challenge to them in a public way. By making a huge concession, the Republicans have effectively made it impossible for the Dems to hold out past September 28 and blame the resulting local tax increases on the Republicans.

Smart money would say that they throw Healthy Wisconsin over the side. Doyle has said that he won't sign it anyway and, once again outflanking the Ds, Huebsch has said he'll guarantee a hearing on the proposal in the future (a hearing on that mess should be the last thing the Democrats want).

Of course, that won't get a budget done and, if it doesn't happen in time to avoid local tax increase, the Dems are pretty much dead in the water if they plan to blame the hike on the Republicans. Passing a budget in series is not ideal (no one says it is) but the voters are likely to think that it's better than $600 million in property taxes. The tax hike is the Wisconsin equivalent of a "government shutdown" and the Republicans have stolen the issue.

The GOP move was politically astute and it cannot, as Doyle has tried to do, be dismissed as theatrics. It may have been calculated to embarass the Dems for their intransigence but it also involved real - and substantial - concessions.

Well played - as both politics and policy.

Wednesday, September 19, 2007

Pask Revisited

I wanted to post briefly in response to local lefty blogger and criminal defense attorney Mike Plaisted's suggestion that my comments on the Pask case were too gentle on my "wing-nut friends." Part of the answer, of course, is that I am not into bashing people here. If I am not going to go postal on people who I think are mostly wrong, why would I do that with people that I think are mostly right?

But more fundamentally, I think that Mike (who I believe to be an intelligent fellow and a very good writer} and fellow lawyer blogger Illusory Tenant mistate some of the criticism of Judge Van Akkeren that I have heard. I have not listened to Belling's discussion of the case, but I have heard some of the discussion on Charlie Sykes' show. It was not always exactly what I would expect in a law school classroom (why should it be?), but the discussion did not take place without regard to the requirements of the law. Sykes and his callers were well aware of the statutory requirement that a child be enticed into a building or secluded place and tried to address that requirement. Some local conservative bloggers were sufficiently cognizant of that issue that they went out and videotaped the area in question. I can't say that I agree with everything that they have said and some of it was overwrought, but I am not going to dismiss public discussion of a difficult case as ignorant.

Without getting the precise context in which this happened, I am not prepared to say that the judge was wrong. But having seen video of the area, I think it is far from obvious that there was no secluded place into which Plask may have been leading the child.

And if it wasn't obvious, then the verdict ought to stand.

Jeff Wagner suggests that the statute be amended to eliminate the "destination" requirement. He advocates redefining child enticement to consist of 1)enticing a child with 2)intent to assault that child. He argues that it may be hard to prove the requisite intent where the defendant was not luring a child into an area in which an assault might conceivably happen, but that, if the requisite intent is found, it ought not to matter where the assault was intended to occur.

I wonder if any jurisdictions have so defined it. The civil libertarian in me is skeptical. "Enticing" is such a minimal element. Couldn't it be satisfied by someone asking a kid to "come here"? Jeff's proposal seems to be a bit too close to criminalizing intent. (Call it the Aqualung law.) That makes me a little hinky because we want people convicted for what they do and not who they are (or seem to be). Wagner is not proposing the latter, but I worry that is what it might become in practice. Although intent would presumably have to be proven by the defendant's conduct in the incident at issue (and not by his prior record), there is normally not going to be the type of blatant commentary as was allegedly made by Pask here and you worry about basing intent on extraneous matters. Having a location requirement does not, as Jeff points out, address that directly but maybe it does narrow jury discretion in a way that reduces the risk of bad convictions.

The Party of Reason

One of my vices is an inability to be reasonable about what I spend at bookstores. Because I indulge this vice, I hang around in these places more than the average guy and, consequently, see a lot of publishing trends. I saw the Chick-Lit thing coming a mile away.

A more recent trend is books by people on the left who complain that people on the right are somehow a)idiots b)psychologically maladjusted and 3)brilliant con artists. All at the same time.

This trend follows hard upon a series of books suggesting that we are on the verge of theocracy.

This is not a new thing for the American left. Richard Hofstadter made a reputation in the '60s suggesting that the nascent conservative movement reflected then in Goldwater's nomination as the GOP presidential candidate was rooted in paranoia and other forms of psychological maladjustment.

I concede that conservatives also make hay by burning the evil straw men that supposedly represent the other side (see, e.g., Coulter, Ann)and people will always enjoy seeing their views validated in entertaining, albeit unfair, ways (Coulter, like Michael Moore can be and the late Molly Ivins sometimes was, is often very funny.) A little hyberbole can be good fun.

But too much is a sign of weakness. You can't win a battle of ideas when by telling yourself that you have already won. In a recent essay in the Weekly Standard, Noemie Emery summarizes some recent conceits on the left advanced by some relatively respectable people (Al Gore, Michael Lind, Joe Conanson)in the following way:

Here are some other choice fancies that the Party of Reason believes:

* Global warning causes both hot and cold weather, just as elections are stolen when the Democrats lose them, but are stolen too when they win.

* A country in which dissent is a flourishing industry is on the brink of a great fascist crackdown, as you can tell by all the books written attacking the president, the plays put on that call him an idiot, and the movies that call for his death.

* When exit polls indicate a different result from the actual vote count, the polls are correct and the vote count is fraudulent, a fact covered up by journalists who are (a) Democrats by something close to a nine-to-one ratio; and (b) dying to uncover a huge government scandal, so that they too can be famous like Woodward and Bernstein, make millions of dollars, and be played in the movies by Hollywood stars.

* That the Presidents Bush, from Yale and a long line of Yankees, who made the careers of the first black secretaries of state ever named in this country, are secretly longing to bring back the South of 1859.

* And, that the Republican party, whose frontrunners are a once-divorced actor (just like Ronald Reagan), a Mormon from Massachusetts by way of Michigan, and a thrice-married Italian Catholic from the streets of Brooklyn, is a shrunken husk of a regional faction, punitive, narrow, and wholly obsessed with extreme social mores, relying on extralegal repression to perpetuate itself in power. To the more intense members of the reality faction, all of this makes perfect sense.

Ah, reason! How sweet it is, and to what lengths it can lead you, when you think that you have a monopoly on it. Political parties are coalitions of interests, fighting it out in a series of struggles, in which no side has a patent on wisdom and virtue, and no wins are ever complete. People who understand this maintain their own balance and bearings, but those who insist they are fighting for reason lose what remains of their own.

Tuesday, September 18, 2007

Let's stay on North Avenue

A bit over a week ago, I wondered if Bob Donovan's broadside regarding the lack of urgency regarding crime in Milwaukee - followed by a similar statement from Sheriff David Clarke - would elicit a response. The answer is apparently not and perhaps that is because the messages carried too much baggage. Donovan called out African-American aldermen in particular and Clarke included a riff against Spencer Coggs that seems to have been a reflection of some type of extraneous dispute.

This allowed the pols to respond by making the story about them. "I did this." "I didn't say that." Even Common Council President Willie Hines, who I think has the potential to be part of the solution, issued a statement saying that Donovan's attack on particular politicians had discredited certain policy initiatives.

This response is, on one level, understandable. I would not have phrased things the way Donovan and Clarke did. Perhaps they were unfair to some elected officials and no one likes to be criticized unfairly.

But I think that the problem is too big and too urgent to be about the politicians. Who holds what office is not as important as addressing a crisis. I would prefer to read Donovan and Clarke's statements as reminders that, if you are not part of a solution, you are part of the problem. Business as usual is no longer an option.

It seems like, at some level, even Eugene Kane agrees, writing that "I hesitate to criticize aldermen such as Tony Zielinski or Bob Donovan for suggesting far-fetched crime solutions such as the Guardian Angels or bringing in the National Guard. At least they are brainstorming for ideas rather than remaining silent."

After my post on Donovan, an aide to one inner city elected official told me that his boss does not wish to attack the African-American community and I am sympathetic to that. People like me - especially white people like me - who believe that inner city decline is best addressed by increased law enforcement in the short run and interventions aimed at changing a dysfunctional culture in the long run have to be careful about not crossing a line that turns concern about the vast majority of poor blacks who are being victimized by a small cohort of thugs into a general indictment of poor black people. The problems that we see in the central city today are not outgrowths of "African-American culture." They are, in fact, antithetical to historically strong family values that helped blacks weather slavery and decades of invidious discrimination. I actually believe that "we" - the larger society - created the problem, but, unfortunately, however much we contributed to its origin, "we" cannot simply spend our way to a solution.

But since Donovan and Clarke did not light a prairie fire, let's go at it in another way. In last Sunday's Journal- Sentinel, Barbara Miner rode the bus down North Avenue, observed what I admit are poignant disparities. I've been down that route many times (although, being less politically correct, I drive). She retreats reflexively into a series of failed assumptions and policies well addressed in this post by Patrick McIlheran.

But even if she offers bad solutions, she did observe some things that deserve our attention. The poorer parts of North Avenue that Barbara observed will never be anything but that as long as they can accurately be called, as they are today, Little Beirut. Isn't the first thing that we owe to the people who live there an end to that name?

Monday, September 17, 2007

May the Original Intent Be With You

Happy Constitution Day! I hope that you got your all your decorations up.

In the category of self promotion, I will be participating in a Constitution Day panel at Marquette this noon. My charge is to say a few words about freedom of speech in light of Wisconsin Right to Life v. FEC and Morse v. Frederick (better known as the "Bong HiTs 4 Jesus" case). Several of my new colleagues, as you can see, have other interesting things to say.

Saturday, September 15, 2007

Going slow on the Pask case

I understand the wide spread revulsion in the wake of Judge Timothy Van Akkeren's decision to set aside a jury verdict finding Mitchell Pask guilty of felony child enticement. Pask appears to be a seriously bent individual and it seems absolutely clear that he intended evil when he tried to lure a nine year old girl into a park shelter. If Pask does go to jail behind this, most people would instinctively feel that he deserves it and that Sheboygan is that much safer.

But, as the lawyer-cliche goes say, hard case make bad law. The power of the state to lock people up is an awesome thing so we are careful about how we exercise it. While all of us are influenced in this by Pask's prior criminal history, we don't quite trust ourselves to give a defendant's prior criminal history the proper amount of weight and generally do not allow it to be considered on the question of guilt.

When, as here, we propose to punish people for an attempted crime, we generally require not simply that they intended to do it, but that they take some step toward the deed.

Finally, we construe and apply criminal statutes strictly. If the elements of a crime are A, B and C, we require that all of them have been done and it doesn't count if you almost did C or did something that was not C but was an awful lot like it.

In this case, there seems to be no doubt that Pask had the requisite bad intent. But it was still Van Akkeren's job to make sure that there were facts upon which a jury could have found that Pask tried to entice the little girl into a "building ... or secluded place."

I don't know enough about the case to say whether there were or were not. I don't know, for example, whether the jury was instructed or the prosecution even argued that the park shelter was a "building." That seems a bit counter intuitive, so my guess is that they did not.

Was the park shelter (or the area surrounding it)secluded? The instruction to the jury was that the area be screened or, and this may be where he erred, remote from others.

The jury thought so but you can imagine a completely incongruous verdict. Say someone was trying to get a little girl to sit next to him on a bench in Times Square at noon. That is really creepy but, if a jury came back with a guilty verdict, you'd have to set it aside. The law doesn't apply to mere creepiness or bad intentions.

Of course that wasn't this case and I think its far from clear that this park shelter could not be considered remote in the context of this case. Were others around? Might it not have provided him with enough protection from observation that it a jury could reasonably conclude that it was secluded? Does the mere possibility that, if someone had been in the right place, they could see into the shelter or that someone could have been traveling down a road a few feet away preclude a guilty verdict in all cases? What of one juror's claim that there were hiding places in the immediate vicinity of the shelter?

All of this needs to be considered in light of the fact that it is not the judge's job to substitute his judgment for that of the jury. The question he must ask himself is whether, given the applicable legal standard, they could have concluded he was guilty and not merely whether, had he been on the jury, he would have agreed.
It would not surprise me if the judge was a bit overweening in his application of the statute, but I can't say that right now. I will say that this video by Steve at No Runny Eggs does not convince me that he was right. (H/T: Jessica McBride.)

All of this does reflect the fact that there are aspects of our criminal justice system that seem counterintuitive and that can, in given cases, make people very uncomfortable. When people ask me, as my wife just did, what will happen if Pask is freed but goes out and rapes someone, I have no response but to say that it would be horrible.

But this is the way the law works and, believe me, you wouldn't want it any other way.

Of course, Van Akkeren's actions should be subject to public scrutiny and comment. Lefty bloggers who sneer at those who are concerned by what happened here are indulging in a bit of elitism and ignoring some real tension between what seems right in a particular case and the need to maintain a system of criminal justice that appropriately limits the power of the state to lock people away. People feel that tension and it does little good to tell them that they are ignorant for it.

But, when we are assessing judicial conduct, we have to keep in mind what the law requires even if we wish, in this case, that it did not.

Friday, September 14, 2007

Sykes, Gousha and Deep Thoughts

I have not been feeling the blog this week but when the conservative Cheddarsphere's Blogfather speaks twenty feet from my office, I've got to say something.

Charlie Sykes participated in a series of the "Conversations" hosted by my colleague and new next door office neighbor Mike Gousha. The event was well attended and interesting. Good questions; provocative answers.

John McAdams did a nice job of live blogging the event. One thing to add. He says that a question about whether talk show hosts screen out dissenting callers was also an accusation. It is, but not by the guy who asked it. I asked it because I have spoken to enough people in that business to know that this is precisely what they do not do. It would make for boring radio which would make for poor ratings which would make for unemployment.
Yet people persist in believing it. I asked the question to clarify that.

I wanted to focus a bit on one question from the audience. John Pauly, Dean of the College of Communications at Marquette, wondered whether there was a contradiction in conservatism around the question of what binds us to one another as human beings. How, he asked, should conservatives define the human community?

Charlie agreed that there was often a contradiction between the more stridently libertarian aspects of conservatism and what he agreed was an essential need for human community.

This is an issue that fascinates me and my own view is tentative. I want to say that the conservative sense of community is more organic in the sense that it tends to base itself in something deeper than the political community and more particular than the "human race" - although it may recognize the rights and worth (are those things also in tension?) of all humans. This tends to result in a community that is at once more libertarian and more authoritarian - the latter because community is more likely to be seen as built around shared values that impose obligations on its members. Therein lies the tension - loosely reflected in the uneasy alliance of economic and social conservatives.

Of course, this tension may exist in left liberalism as well and maybe you'd be better to argue that the distinction between it and conservatism lies in the directions in which the movements tilt. Thus you have Michael Barone's concepts of hard and soft America (also alluded to by Charlie during yesterday's program).

I don't have time for more this morning.

Tuesday, September 11, 2007

9-11 reflections

It's 9-11, so we have to blog about that. I thought I'd react to the Osama Bin Laden's recent state of our union message and the response to General Petraeus bearing the bad news that, in his view, the surge is working.

In our local political blogosphere, Jessica McBride caused a stir by claiming a correspondence between Bin Laden's rant and what we hear from some Democrats. Her post is more nuanced and analytical than her critics admit (what is it about this woman that so inflames the left precincts of the Cheddarsphere?). But I'll agree that, while much of Bin Laden's screed does resemble a hard left diatribe of the type that I would expect to find on, I wouldn't expect to hear it from the podium of the Democratic National Convention. I think that we can agree that both Democrats and Republicans don't like Al Qaeda.

Jessica's post provoked some "so's your mother" responses, such as, for example, a link to an astonishingly stupid post by Kos comparing the Republicans to Al Qaeda. That Markos is unable to see the difference between opposing same-sex marriage and executing gays and lesbians is just more proof that the ability to make critical judgments is not essential for success as a polemicist. I would never have imagined that support for a two parent family and traditional morality was the equivalent of forcing women to wear burkas. That must be a very slippery slope.

We also see, again, the argument that Bush went to Iraq and let Bin Laden evade capture and that the Iraq war is a distraction from the war on terror. As to the first point, my guess is that we'd pretty much need to invade and occupy a chunk of Pakistan to get Bin Laden. Who on the Democrat side of the aisle is up for that? Obama claimed to be, but I doubt that he meant it.

What Bin Laden's statement does seem to tell us is that he thinks that the Iraq war is significant. Maybe Bush did fight the wrong war. Maybe he actually is a diabolical genius and managed to draw Al Qaeda into a battle half way around the world instead of in our own public spaces. I don't claim to know, but it does seem incontrovertible that failure in Iraq will hurt resistance to Islamic terror.

Maybe that failure is inescapable, but, if it's not, we ought to be very interested in avoiding it. This is why the knee jerk response to General Petraeus on the part of congressional Democrats is so disconcerting. Couldn't he be right? Does it really make sense to pronounce his report DOA because it doesn't say what the Dems thought it would? If they had already decided that the surge wouldn't work, why did they confirm Petraeus and ask him to report back? Even if you think Petraeus is wrong, wouldn't it have been more politic to at least pretend to listen?

Sunday, September 09, 2007

Not so easy on Healthy Wisconsin and abortion

Seth Zlotocha and Cory Liebman from One Wisconsin want to get all over Wisconsin Right to Life for its claim that the Senate Democrats' "Healthy Wisconsin" plan will require the state to pay for lots of abortions. They claim that the state health plan pays only for "therapeutic abortions" which they define, without citation other than to the unsupported assertion of some Democrat legislators, as being somehow being limited to those "necessary to the life of the mother" or necessary to "preserve the health of the mother." (Whatever these mean.)

This struck me as odd. Seth is a bright guy, but I know and have worked with the good people at WRTL. They are very professional and very careful. They take great pains to be accurate. Could they have flubbed this one?

No. WRTL is all over this. The state's standard plan covers all legal abortions. Of course, we don't know if that will be the "Cadillac" that HW seeks to emulate. The state also has HMO options providing the uniform schedule of benefits that Seth cited (he must use an HMO). The uniform schedule says it covers services "such as" "therapeutic abortions." I think its reasonable to read that as a limitation. But the term is not defined and, of course, can be defined in a way that is tantamount to no limit at all by construction to cover mental health, small risks of minor consequences or the abortion of babies with Down's Syndrome or similar maladies.

What has actually happened? The state is apparently claiming it has no idea how many abortions it pays for.

Friday, September 07, 2007

The end of l'affaire Ziegler

In yesterday's legal news, the Judicial Commission has issued a complaint against Justice Anette Ziegler for failing to recuse herself from some cases involving West Bend Savings & Loan of which her husband is director. I haven't seen the papers but apparently the Commission and Ziegler have agreed to recommend a public reprimand.

I occasionally review these things with respect to attorneys as a court appointed referee. Here the recommendation will be reviewed by a three judge panel. As in attorney discipline cases, the panel will make a recommendation to the Court. Neither the panel nor the Court has to accept the recommendation. At least in attorney discipline, most consensual reprimands are accepted.

I think the recommendation is about right. She has no prior discipline and it appears that the error was a result of carelessness rather than any malicious intent. No one was injured and she seems to have expressed the appropriate contrition.

Yesterday, during Backstory on Eric Von's show, Eric suggested that the discipline should be affected by the fact that she is on the Supreme Court. He argued that "we ought to expect more" of such people. I suppose that could be a pertinent consideration. One of the purposes of attorney and judicial discipline is to protect the public from lawyers and judges who cannot or will not conform their conduct to professional standards.

But, as I pointed out, we can't lose sight of the fact that our state Constitution provides for an elected judiciary and to remove or suspend a sitting Justice of the state Supreme Court is to interfere with a choice that the voters have made. While circuit court judges are elected too, there is no expectation that each will sit on all cases that come before the circuit court. In that sense, the fact that she is now on the Supreme Court could actually cut against harsher discipline. (I also think that there can be a different recusal calculus on the Supreme Court in situations where recusal is a judgment call.)

Thursday, September 06, 2007

Donovan deserves an answer

Doesn't Bob Donovan's criticism of the (relative) silence of inner city elected officials over the continued spasms of violence in their districts require a response? Something other than that he is stupid, crazy, racist or uncouth?

Why is there so little political energy behind this issue by the representatives of those most effected by it? One gets the sense that certain black politicians are more concerned with racist cops than criminals. Is that plausible? The Jude beating was awful but is that where the greater threat lies?

One gets the sense that concerns over racial equity in the criminal justice system trump considerations of public safety. We can't get tougher on violent offenders because there are too many black men in jail already. Isn't that somewhat self-defeating? Will allowing neighborhoods like "Little Beirut" to stay the way they are increase or decrease the number of black males in prison in ten years? Can't we address two problems at once here?

Is the reason for this silence a belief that there is nothing that we can do about crime? Is it that some political leaders believe that the only solution to inner city crime is for the government to somehow change life in the inner city so that those who now commit crimes will then respond in some other manner? I can imagine that someone might have believed that was possible in 1967. Does anyone really believe it today? And even if you do, don't we have to stop the bloodletting till comes the revolution?

Donovan deserves a response that can serve as a vehicle for further public discussion. The cynical part of me says that the incongruity of this silence on the part of those whose constituents are suffering the most is just another example of the age-old political ploy of making hay over blaming someone else. But I do allow that it is more complicated than that. There are reasons for this curious response other than mere demagoguery and political cynicism.

We may be able to get past that, But it would help if Donovan gets an answer rather than an insult.

Wednesday, September 05, 2007

No free health care

So what do proponents of government health care think of John Edwards' proposal for mandatory doctor visits and diagnostic tests? Isn't there a certain logic to this? If health care costs are going to be collectivized, then don't the rest of us have the right to demand that you behave in a way that does not waste our money? If I am to be my brother's keeper, then don't I also become his master?

Why would these mandates be limited to things like annual check-ups and mammograms? Why wouldn't I also want to insist that you stop smoking on my dime? Lose weight?Stop having unprotected (or promiscuous) sex? Limit your drinking?

It reminds me a bit of Ann Coulter's response to Libertarians who wanted her to endorse the legalization of drugs in return for the party's nomination for Congress. She said that she would do so as soon as she was no longer required to pay for the social costs of drug use.

We hear that they don't do these things in other single-payer systems and that may be so. But they do place a collective cap on health care costs and then ration care in a way that makes HMOs look warm and fuzzy. I keep hearing that we aren't going to do that. In any event, we see employers increasingly concerned with the personal behaviors of their employees and a major presidential contender proposes that we start down that road.

If you believe in collective responsibility for the cost of health care, what are the principles limiting collective judgments about behavior that affects the cost of care? Do we draw a clear line and say that people can do whatever they want to themselves? Is it really possible to maintain that position?

Monday, September 03, 2007

The limits of Constitutional history

It turns out that I spent the beginning and the end of last week in the hospital, first for a moderately invasive medical procedure and then for a difficult to diagnose (but ultimately easy to resolve) complication. I am now better than ever. (Ed. That's not saying much!)

While I was gone, an interesting debate broke out in the comments section of a post on Larry Craig. The issue was whether the US was founded as a Christian nation and much of the discussion focused on the religious views of the founders.

There is a tradition of noting that some of the founders were Deists or Unitarians and implying an intention to create a thoroughly secular public order.

My sense is that the better scholarship (and perhaps the emerging - or at least the latest - consensus) supports a somewhat different view. It is hard to argue that the founders imagined the type of naked public square called for by groups like Americans United and the ACLU or the robust wall of separation that the Supreme Court has sometimes sought to maintain.

It is a bit anachronistic to extrapolate from views held in the context of a society in which religious differences were almost entirely between differing Christian sects. Unitarians then were not quite what we know to be Unitarians today - generally folks who like church but aren't all that enamored with the God thing.

In any event, the question before us is not so much the religious views of the founders but the regime they created. The state of Thomas Jefferson's soul may be interesting but, ultimately, it's just not that relevant. (Jefferson, incidentally, was not even at the Constitutional Convention.) Whatever he - or any of the others - "truly believed", it is hard to make an historical argument for, as one prominent law professor puts it, public life as a "religion-free zone."

On the other hand, I am uncertain what it is supposed to mean to say that the United States is a Christian or Judeo-Christian nation. It is certainly descriptive to say that it has been, for it's entire history, a nation largely made up of Christians and Jews. One can also make an argument that its constitutional principles and national character have a Judeo-Christian pedigree.

But what does that mean? A person can endorse those principles without being a Christian or Jew, even if you think she is living on borrowed intellectual capital. It seems axiomatic that, even if you believe (as I do) that there is more room for religious expression in public forums than some of our jurisprudence would permit, there is a clear constitutional proscription against establishing a national religion and a rather unqualified guarantee of religious freedom.

I am with the late Chief Justice Rehnquist that trying to describe this as a "wall" is a useless metaphor based on bad history. I agree with Justice Reed that there is a certain folly in basing a rule of law on a figure of speech. But I also can't see much help in calling the U.S. a Christian nation. That is, in many ways, an accurate description, but it's not a rule of decision or a legal status.

Sunday, September 02, 2007

Is Fr. Harak beyond the pale?

I really like the young guys and girls at GOP, some of whom have beenconducting a campaign, to dissuade classmates from taking a course offered by Fr. Simon Harak. I think it's worth some discussion. I'll assume that the public statements and political activities highlighted by the bloggers (and by Professor McAdams at Marquette Warrior) are representative of Fr. Harak's non-academic activities. To my ear, they reflect a certain truculent softmindedness. Fr. Harak sounds like the kind of guy who, having rejected one set of simplistic pieties, embraces another. More succinctly, his politics seem silly.

But isn't the real question what he does in the classroom? I am sure that there are plenty of people who think my politics are misbegotten but what I do in class is not a reprise of this blog or other non-academic writing and speaking that I may do. In class, I have a responsibility to ensure that all serious arguments are thoroughly explored. I make a point of telling students that I routinely give "A"s to people who subscribe to (and argue well for) positions that I think are wrong.

It may well be that Harak does not do that. The "Center for Peacemaking" that he directs certainly does not sound like it is a place for activism and is not intended for serious study of what does and does not lead to peace.

But I am not enthusiastic about judging a teacher by the positions that he or she takes outside the classroom. Some times, as with Kevin Barrett's views on 9-11, outside activities suggest that someones capacity for critical thought is seriously impaired. On the other hand, Noam Chomsky is apparently a brilliant linguist even if his political writings suggest, at best, a 40 watt bulb.

Maybe there are some views that are so reprehensible as to exclude someone from the university. But I'd prefer to err in favor of permitting a broad swath of opinion.

Fr. Harak is teaching an introductory Theology course. Isn't the better approach to challenge him to fairly introduce (as he may already plan to do) even those important theological perspectives with which he may disagree?

Students certainly have a right to criticize faculty. But people with whom we disagree - even strongly - may turn out to be very good teachers.