Friday, January 25, 2008

Judicial campaign etiquette

I had what I think was an illuminating exchange with the increasingly vitriolic local blogger Mike Plaisted at his site. He thinks that it was unfair for a Gableman campaigmn official to say that Justice Louis Butler "consistently sided with criminal defendants" in a series of cases. This, he says, draws into question Justice Butler's impartiality.

I disagree. I assume that Butler's ruling on matters of criminal procedure stem from his view of the pertinent constitutional provisions. I may disagree with those views but my criticism would not be that he isn't impartial.

Still, how do we frame that disagreement? I have blogged about the tension between the demands of the judiciary and our state's choice to elect judges. There is no easy resolution of that tension which is one of the reasons that I dislike truth commissions who suggest that there is.

But seeking to clarify what may or may not be permitted, I asked Brother Plaisted whether it would be permissible if someone had said that candidate X "frequently misreads the law to expand the rights of criminal defendants and impair the function of law enforcement."

After a bit of prodding (I'm getting used to it), Plaisted's answer was "no." Apparently, by his reading of the rule governing conduct in judicial elections, one can discuss the legal niceties of a particular case (what restrictions would be placed on that is unclear), but cannot categorize a judicial candidate's philosophy or perspective on a particular issue.

I find that to be an extraordinary position. Were the state to attempt to enforce that, it would be clearly unconstitutional. Even as an unenforceable aspiration, it seems ill advised and inconsistent with the way in which lawyers regard judges and in which judges function.

A judge does not approach each case anew with no preconceived notions of the law. If Louis Butler or Michael Gableman had no opinions about the 4th or 5th amendments, it would mean that they had not thought about them and were, for that reason, unqualified for the high court. (Happily, this is not the case.) To be open to the arguments in a new case is not to pretend that one has no views on the legal issues involved.

Differing views on those legal issues matter and it seems to me that it is fair to debate them.

Let's change the hypothetical. Imagine that Justice Thomas served on the Wisconsin Supreme Court and was running for reelection. His opponent releases a statement saying that "Justice Thomas consistently misreads the law to prohibit race-based measures to improve the lot of minorities."

I would not agree with that statement but I would not regard it as beyond the scope of proper campaign discourse because it "questioned" Justice Thomas' "impartiality." What it questions is Justice Thomas view of equal protection.

I am perfectly aware that criminal cases are a source of difficulty in judicial elections because the public will tend to undervalue the procedural rights of defendants. To use an example pertinent to the current election, some people may criticize Justice Butler for his decision in State v. Anderson, a 4-3 decision in which a new trial was ordered for a man convicted of brutally raping and murdering a young woman in Madison. Fair enough (three justices did go the other way), although, based on what I know of the case, I probably would have agreed with Justice Butler. I don't know that the guy is innocent, but it looks like he deserved a new trial. Even a conservative may side with the claims of a criminal defendant.

But that can hardly mean that the question of a judges' views on the rights of criminal defendants is off the table.

I really don't see an alternative to an open and robust debate of the issues.
The argument that this type of close restriction of campaign speech is required for an independent judiciary (and that term is quite clearly going to be a talking point)is a bit of a non sequitur. We obviously don't believe that the judiciary ought to be independent from the public in the sense that the public can't evaluate how it has decided cases. If we felt that way, we wouldn't elect judges.

40 comments:

iT said...

Your attempt to draw an analogy between the cheap epithet "Loophole Louie" and charges that Scalia opposes the rights of women seems misplaced. First of all, Scalia does oppose the rights of women, insofar as those rights are a creature of federal jurisprudence. He doesn't believe those rights are manifested by the Constitution, and he opposes them on those grounds. Second, it may be said that Scalia employs a principled doctrinal methodology in support of that opposition. I've little doubt you'd agree with that.

On the other hand, "Loophole Louie" implies (to put it mildly) that Butler actively searches for and applies "loopholes" in the law to justify his advance conclusions. While it's practically a matter of judicial notice that Scalia opposes the Court's divination of reproductive rights from the Constitution, can Sykes (or anyone else) similarly provide evidence of the charge against Butler?

Of course they can't. "Loophole Louie" is about the best they can do.

Rick Esenberg said...

1. I did not draw an analogy between the term "Loophole Louie" and the charges that Scalia opposes the rights of women. I drew an analogy between the latter and my hypothetical about saying that a candidate frequently misreads the law to expoand the rights of criminal defendants which Mike says ought not to be permitted in a judicial campaign.

2. For the third time, I wish Charlie and others would not use that term. I think it is disrespectful to a sitting justice of the state supreme court. I only added that other people tend to be more acerbic about politics than I choose to be and that's not always a bad thing. I also can see that someone may disagree with my sense of propriety and, unlike you all, I am not setting myself up as the speech police. If you want me to tell Charlie that I wish he wouldn't say that, I'll try to remember next time I see him.


3. But I don't think it necessarily has the connotations that you say it does. It seems to me that the point is that Butler takes a more expansive view of the rights of criminal defendants.

4. For you and Plaisted to deny that is disingenuous. There is no lawyer in the state who knows anything about the court who wouldn't conclude that Chief Justice Abrahamson and Justice Butler are more likely to find that a defendant's rights have been violated than, say, Justices Wilcox and Prosser. This doesn't mean that they always find for the defendant (they don't) but it is a significance difference between their jurisprudence and that of Wilcox and Prosser (who don't always rule against the defendant.)

5. I don't recall anyone saying that Justice Butler doesn't employ a principled methodology in support of these views. In fact, I have gone out of my way - in my white paper, WI Interest piece, the WMC video and every talk I have given - to say that he and the Chief and the others on the court do just that. In this context,for example, Justice Butler is more willing to rely on statistics from advocacy groups to fashion broad prophylactic rules restricting police conduct. I think he has generally been wrong to do this but it's not unprincipled. I just advocate for different principles.

6. Finally, you fall into the very trap that you accuse Schmitz of in saying that Scalia "does oppose the rights of women." I suspect that Scalia thinks that women have all sorts of rights - just as many as a man. What he doesn't believe is that they have a consitutional right to an abortion. If we were to apply the hypersensitivity to talk about judges that Mike and the WJCIC want to impose, then Linda Greenhouse and Dahlia Lithwick are going to have a hard time.

Anonymous said...

The WJCIC should demand that Justice Butler immediately and publicly disavow the venomous attacks by his supporters "it" and Plaisted on Judge Gableman.

Dad29 said...

I really don't see an alternative to an open and robust debate of the issues

That's because you are interested in finding the best argument for/agin some candidate.

Others are NOT so inclined.

iT said...

I did not draw an analogy between the term "Loophole Louie" and the charges that Scalia opposes the rights of women.

Oh? Because this is how I understood the illuminating exchange on the subject:

Plaisted: I think the better question is: do you think your friend Charlie Sykes' use of the phrase "Loophole Louie" every time he mentions Butler is fair comment?

Following this there is intervening commentary, but then this:

Esenberg: Here's where we get back to Sykes and Schmitz. ... Look at the way in which the popular press and politicians discuss the opinions of Scalia and Thomas. They oppose the "rights of women" or "workers." If you apply these standards, then this type of talk impugns the integrity of the judiciary. Granted, they aren't running for election, but isn't the principle the same?

Sykes' use of the phrase "Loophole Louie" ... Here's where we get back to Sykes ... isn't the principle the same?

No, the principle isn't the same, as I pointed out above.

But I don't think it necessarily has the connotations that you say it does. It seems to me that the point is that Butler takes a more expansive view of the rights of criminal defendants.

Are you kidding me? I was born at night, but not last night. You know exactly what "loophole" means in this context. This is you being the speech police, attempting to softening the effect of what is essentially a political smear into some kind of considered analysis on due process or rational basis scrutiny. Not buying it, sorry.

As for the rest, Lord knows I, of all people, am not the speech police. I'm not on the WJCIC committee. I'm not Mike Plaisted, either. While we may agree on many things, he's a separate person with a different approach. I've never denied Butler's general disposition. I've never accused Schmitz of anything, and I expressly qualified the rights to which Scalia is opposed. He is opposed to federal reproductive rights derived from the Constitution -- I said that already. Of course he believes women have all sorts of other rights.

And as I said right here a long time ago, OWN's initial concern was raised by some comments issuing from Gableman's campaign and their potential alignment with the "pledges, promises, or commitments" that the Code of Judicial Conduct proscribes. The WJCIC doesn't proscribe them.

Nevertheless, the WJCIC itself has been characterized hither, thither, and yon as "speech police" and its proffered advertising agreement as an "attempt to stifle speech."

You have gotten one thing, right, however, and that is that many people are probably not so much interested in either the substance or intent of SCR Chapter 60 as they are in playing at partisan hysterics.

And Anon 3:34, show me one "venomous attack" I've made against Judge Gableman and I'll kiss your ass on City Hall steps.

iT said...

Soften, not softening, and no comma after "gotten one thing."

Rick Esenberg said...

Well, the intervening commentary included me saying that I didn't endorse the use of that term and included my request that Mike address my hypothetical and his response.

My point about your apparent endorsement of the statement that Scalia opposes the rights of women is based on your own words: "First of all, Scalia does oppose the rights of women," This is at best, the functional equivalent of saying Butler sides with criminal defendants. I know what you meant but. even in this context, you stumbled into endorsing an overly broad (and literally false) statement as a shorthand for what you meant.

I understand (and appreciate) your recognition that Scalia's views are based upon a principled methodology, But, if I am to read the statement that he "opposes the rights of women" with as little generosity as you apply to "loophole Louie" or others apply to Schmitz' statement, I would interpret it to mean that Scalia is a misogynist. He "opposes" women.

Think on that before you endorse WJCIC's Marquis of Queensbury rules.


And that's my problem with them. Their reading of the SCRs is both unconstitutional and hardly mandated by the language of the rules themselves.

iT said...

[Y]our own words: "First of all, Scalia does oppose the rights of women," ...

"... insofar as those rights are a creature of federal jurisprudence. He doesn't believe those rights are manifested by the Constitution, and he opposes them on those grounds."

Is that even controversial? Oy vey. Misogynist?!

And I know that you are above cheapjack invective like "Loophole Louie." As far as I'm concerned, it doesn't deserve any generosity of interpretation.

Indeed, it says much about the speaker and nothing about the object it fails to describe. None of it flattering, I'm afraid.

But hey, let them keep at it, if they insist on making vacuous fools of themselves.

Anonymous said...

I give Plaisted credit for publishing under his own name. Normally, you wouldn't expect a total horse's ass to use his own name, so he gets credit for, well, I guess, arrogance.

iT said...

"Normally, you wouldn't expect a total horse's ass to use his own name."

Great point, Anonymous!

Anonymous said...

Justice Butler must publicly disavow his supporters who ask critics to "kiss their asses." If he fails to act, he is complicit in the coarsening of public debate.

iT said...

Justice Butler must publicly disavow his supporters who ask critics to "kiss their asses."

Hello again, Anonymous 11:58! Here's what I said:

"[S]how me one 'venomous attack' I've made against Judge Gableman and I'll kiss your ass on City Hall steps."

Evidently the struggle over substantive questions, which often requires rudimentary reading comprehension skills, may be, in some cases, all for naught.

Incidentally, here's what Judge Michael Gableman told the Milwaukee Journal-Sentinel last month:

"Gableman said his approach to cases involving law enforcement, for example, will show a clear choice between Butler and him.

"'My philosophy is to apply the plain language of the law and not to look for ways that offenders may escape the consequences of their actions,' Gableman said."

The "clear choice" means Gableman will not "look for ways" for criminal defendants to win their appeals. And who, pray tell, is it that does "look for ways" for criminal defendants to win their appeals?

That is also what is meant, in considerably less sophisticated language, by "Loophole Louie."

I rest my case.

Mike Plaisted said...

Bravely un-anonynous as I am, I now find myself the subject of name-calling and false accusations by anonymous posters. My moment appears to have arrived.

As does IT, I challenge Anony to point out any attack, "venomous" or otherwise, that I have leveled at Judge Gablemen, without the invitation for public displays of (non)affection if proven wrong. My understanding is that there is not much of a judicial record to discuss, much less attack, with Gableman, which I would say is part of his problem, if he is presenting himself as a more distinguished jurist than Jouis Butler. I am unaware of anyone in that league.

The issue as I see it continues to be the level to which WMC and its surrogates should or will stoop to tear down Justice Butler. This entire discussion propagated by Rick and others -- that, as long as we elect justices, anything goes -- is a new concept in Wisconsin, designed only to open the doors to emotional appeals to fearful voters; trying to make an election for Justice like a race for Sheriff, with slamming jail cell doors and claims of setting the guilty free.

Anonymous said...

Judge Gableman is a man who former Nebraska Senator Roman Hruska would love. It was Hruska, of course, who, when defending a Nixon appointee to the US Supreme Court, noted that "even the mediocre deserve representation." That nominee, whose name escapes me, was never confirmed.

Gableman's mediocrity is apparent from his legal pedigree. He used his Ripon College degree to matriculate at Hamline Law School. You can line up the law schools in the Midwest top to bottom and Hambone will be last on anyone's list.

It's obvious WMC couldn't find an "A List" or even "B List" candidate this time around. Gableman is, at best, a "D List" candidate. You can't make a silk purse our of this sow's ear.

Anonymous said...

Anon 10:00 AM -

Isn't it amazing that a guy like Gableman could have more integrity and interest in justice then your guy Butler. I guess that doesn't come from a law school but is needed in our Supreme Court.

Mike Plaisted said...

"more integrity and interest in justice"? Hmm... Can't wait to see how that talking-point plays itself out.

Dad29 said...

He is opposed to federal reproductive rights derived from the Constitution

IT, are you referring to "Privacy" rights which are not mentioned anywhere except in Griswold?

Dad29 said...

Anony 10:00, whether Gabelman is a Rhodes Scholar or not is irrelevant.

I think that's what "elections" are all about, no?

"Acclamation" is not practiced in this country.

iT said...

Not Griswold specifically, Dad. Griswold had to do with contraception, female and male. I was referring to rights related to pregnancy which, at least until men are engineered to conceive, are essentially within the exclusive purview of women.

Other Side said...

The person referred to by Hruska was Judge G. Harrold Carswell.

Anonymous said...

if I am to read the statement that he "opposes the rights of women" with as little generosity as you apply to "loophole Louie" or others apply to Schmitz' statement, I would interpret it to mean that Scalia is a misogynist. He "opposes" women.

You mean that "Loophole Louie" is used in sentences that, were they seen in their entirety, would make clear to any English-speaker that the expression bears no derogatory meaning?

Because that is obviously what it would take for there to be a parallel between "Loophole Louie" and the carefully trimmed quotations you offer. Yet that seems ridiculous on its face, leading one to wonder why such a false parallel would even be run up the flagpole.

Still -- I suppose one could hope for examples. Cases where someone says "Loophole Louie", and then immediately goes on to say, "...by which I don't mean to demean Justice Butler by using a diminutive of his name that he does not publicly use, nor to suggest that he exploits loopholes in the law rather than upholding the law; rather, I aim to convey [unfathomable communicative goal that could somehow remain after factoring these two out]."

A few of those might elevate the "uncharitable interpretation" argument from its prima facie wretchedness.

Anonymous said...

"the carefully trimmed quotations you offer"

Ah, grammar. That should read "quotation", singular. I'm talking about your quote-mine from IT, not the Schmitz references (though my remarks may be true of them as well).

Anonymous said...

J. Butler hasn't done anything to assure that our courts are fair and impartial, he's just another "me to" guy on the court.

We need someone that uses the power of the Court to do good when he sees injustice being done and that isn't J. Butler.

I'm not sure it's Gableman but his background looks like he's not a me to guy.

Rick Esenberg said...

You mean that "Loophole Louie" is used in sentences that, were they seen in their entirety, would make clear to any English-speaker that the expression bears no derogatory meaning?

No, but I think the derogatory meaning is directed at how he decides criminal cases. But I'm not going to spend more time on the L.L. issue because I've said repeatedly that I don't think it ought to be used.

But Anon 6:27 gets to the heart of the problem. He or she may want people to speak with the care that I hope (but may not manage) to use when speaking to my Civ Pro class in a few hours. Cerainly that seems to be what Basting was driving at when he suggested that Schmitz had violated some commonly held "rule" applicable to statements in such campaigns. That's an unreasonable standard to impose on public dicourse in a judicial campaign.

It's unreasonable because people - even well informed people - don't talk like that which is why I used the Scalia hypothetical.

I didn't "carefully edit" IT's quote because the import of what he was saying was to defend the "Scalia opposes the rights of women" charge that I hypothesized.

But let's take the whole statement:

First of all, Scalia does oppose the rights of women, insofar as those rights are a creature of federal jurisprudence. He doesn't believe those rights are manifested by the Constitution, and he opposes them on those grounds.

This still flunks the Basting test in that it suggests that what Scalia opposes are the constitutional rights of women - a statement that could be read to question his impartiality and - and is literally false to boot.

Now IT may say "give me a break, you know what I meant. I was using the phrase "rights ot women" in the odd parlance of the Democratic Party where they apparently begin and end with the abortion license." (Actually, I suspect that he wouldn't say it quite like that, but it's my blog and my comment.)

That's where all this bothersome free speech comes in. Everything we know about it suggests that we can't expect people to fairly and accurately monitor speech as closely as you all would like to.

So, if you don't like what Gableman or Schmitz said about Butler, then explain why its wrong. If you think that Knapp and DuBose and the rest were rightly decided, explain why. But don't try to change the subject through a tendentious reading of the SCRs that, were the Court to adopt it, would be clearly unconstitutional.

iT said...

I have no idea what the Basting test is. Do you?

And I was not defending the statement about Scalia. It isn't for me to defend anyway, since it wasn't me who came up with it in the first place. I was simply pointing out that the comparison you drew, and your positing its similarity “in principle” (your words) is inapt.

Setting aside the fact that “Loophole Louie” is plainly derogatory on its face, the competing “principles” are that Butler reaches his conclusions in advance and then searches for “loopholes” to justify them, whereas Scalia arrives at his after the facts and after considered application of his doctrine.

Simple, really. If anything, my comments here have been in defense of Scalia. “Loophole Louie,” as I understand it, is the equivalent of a playground taunt, meritless, and indefensible.

Anonymous said...

“Loophole Louie,” as I understand it, is the equivalent of a playground taunt, meritless, and indefensible.

Hmm. Many pixels have now died as IT obsessively thrusts his lance at this particular straw man. The moniker was coined years ago, while Butler was a practicing defense attorney, a term of guarded respect meant to convey his ability to get his clients out of terrible jams. It was tossed around the local courthouse well before Butler ever got to the supreme court (and, if memory serves, made an appearance or two the old Milwaukee Journal or Sentinel; maybe someone with access to Nexis could check). Sykes didn't make up the label.

Why does this matter? Well, maybe IT can dampen his/her/its rhetoric a bit. Is the label merely a "cheap epithet" as IT would have it, or is it just a matter of Sykes trying to hoist Butler by his own petard? And if the latter, then maybe, just maybe, IT's gaze can turn elsewhwere.

iT said...

Thanks for reminding me, Anon, that even "former public defender" is being used as a negative against Justice Butler.

Anonymous said...

Thanks for reminding me, Anon, that even "former public defender" is being used as a negative against Justice Butler.

Pleased to oblige.

Believe it or not, the Wisconsin electorate is mature enough to handle the idea that a former PD is qualified to arbitrate their rights. And that those rights can -- should -- be set above those set by SCOTUS. If, that is, given the chance through open, even contentious, discussion.

Brad V said...

"We obviously don't believe that the judiciary ought to be independent from the public in the sense that the public can't evaluate how it has decided cases. If we felt that way, we wouldn't elect judges."

Precisely; if Wisconsin has determined constitutionally that it wants to elect judges (and refrains from amendments to the contrary), then it should expect the trappings of an election. Individual judicial candidates and their campaigns can still choose to rise above politics as usual, though. Allowing them that chance is a token of respect for the electorate. Well put.

iT said...

Hey, I'm all for open, contentious discussion, and I don't care how many innocent pixels are slaughtered in the process.

Here's the thing, though. I don't need to remind the elite readership of this blog that ours in an aggressively adversarial legal system.

It makes me laugh when I see Butler ominously portrayed as a "former public defender" while Gableman is championed for his experience as a State prosecutor.

But when you strip away the, "Law enforcement, Rah! Rah!; criminal defense attorneys, BOO!!" rhetorical trappings, what remains are two equally valid sets of objectives.

In other words, I certainly don't hold it against Gableman that he chose the law enforcement route, nor should any objective observer think less of Butler for being a PD.

In fact, there's honor in PD work and it often requires a lot more legal acumen than does the average ADA. And legal acumen is what's required especially on the appellate courts.

Anonymous said...

It makes me laugh when I see Butler ominously portrayed as a "former public defender" while Gableman is championed for his experience as a State prosecutor.

Agreed. More: prosecutors are over-represented in the judiciary; a former PD ensures a rather modest amount of viewpoint diversity on the bench. That case ought to be openly and honestly to the electorate.

Loophole Louie? The name was once worn without apparent shame if not with pride. And why not? What else do lawyers do but look for "loopholes"? Including prosecutors. I don't care how Sykes uses it. The label suggests someone good at his trade, and indeed that is its origin.

In fact, there's honor in PD work and it often requires a lot more legal acumen than does the average ADA. And legal acumen is what's required especially on the appellate courts.

Agreed as to the honor part. (I assume the "more legal acumen" part is merely polemical.) But why not then make the "former public defender" tag a prideful part of the campaign? Even if it means taunts from the likes of Sykes. I've got more faith than IT, apparently, in Butler's ability to win a decisive victory based on straightforward appeal to an individual-rights centered jurisprudence. And such a decisive victory would represent a defeat to the taunts that some would bar from open expression.

iT said...

Good comments, Anon. I'm not all that concerned about Butler's losing the election, nor about whether Sykes's howler monkey act will have much of an impact.

My impression is that anyone clinically daft enough to take Sykes seriously is a lost cause by this point anyway.

Anonymous said...

Apparently, by his reading of the rule governing conduct in judicial elections, one can discuss the legal niceties of a particular case (what restrictions would be placed on that is unclear), but cannot categorize a judicial candidate's philosophy or perspective on a particular issue.

Say what?

That's an astonishing misrepresentation; or it's an allusion to something other than Plaisted's answer to the only question you seem to have asked him on the matter.

Your question: "What if [Schmitz] had said that candidate X... 'frequently misreads the law to expand the rights of criminal defendants and impair the function of law enforcement.'"

Now you describe the alleged aim of "impairing the function of law enforcement" as a judicial philosophy -- and bridle at Plaisted's finding it low and unwarrantable? Good grief.

Your conjectured question is oily, and Plaisted's reply a perfectly reasonable understanding of the Supreme Court Rules. MP responded:

"I would say that is unfair comment in a judicial campaign -- it is unjustly impugning the integrety of the bench to say that a Justice takes sides and uses the law to reach a desired result for one side of the other. Tell us why the law has been "misread" (you can always start with the dissent) and tell us what the proper reading is."

What a thought: that one could make a compelling case against a candidate by arguing points of law in specific cases, rather than by invoking partisan smears and base generalizations about motive! It is hard to fathom how the invitation to substantive dispute gets torqued and spun as mere futzing about with "niceties".

Anonymous said...

whether Sykes's howler monkey act will have much of an impact
Great line!

Rick Esenberg said...

Anon

Your comment illustrates why this type of thing won't work. Who said anything about "impairing the function of law enforcement" being "an aim?" In my hypthetical statement, it's effect. That effect, the argument would continue, is why it's undesireable to misread the law in this way.

If you're argument is "well, that's unclear" or "someone could read it that way," then I suppose that someone could insist upon inserting "tragically, if unintentionally" before "impair." But the mere fact that we are having this debate about constitutionally protected speech is enough reason to jettison the entire project. insert "unintentionally" before "impair."

Anonymous said...

Indeed, Mr Esenberg, an ill-formulated construction that courts interpretation as an allegation of bad motive -- in a discussion that has already focused on other cases of such allegations -- is reasonably characterized as dirty pool. But if all you meant was that these fictional misreadings of law unintentionally had the effect of impairing the function of law enforcement, notice that at least two consequences seem to follow:

1. It is now baffling that you would have twitted Mike Plaisted for his response to your example, since his response was (and must clearly have seemed, from your perspective,) a reasonable response to a misreading created by your unclarity. Why on earth would you not simply have said, "Ah, my bad; I meant unintentionally," rather than pretending that Plaisted had produced a poor answer to your intended question?

2. Your own claim that your question raised the issue of judicial philosophy/perspective (and the corresponding complaint that Plaisted wants to rule such issues out of discussion) becomes entirely obscure, since no philosophy or perspective is even identified in your question, on the New and Improved reading -- just a curious ex hypothesi trend of (perhaps otherwise unrelated) decisions with a common negative consequence.

Rick Esenberg said...

Anon

You still are completely missing the point. What we are discussing is not how to characterize the rulings of any justice but how closely we ought to police what is said in judicial campaigns. Of course there is more to say in connection with my hypothetical about misreading the law. You can say that it hasn't been misread. You can say that the results don't impair the function of law enforcement or, if they do, are a justified cost of liberty.

But I don't think you can storm off in umbrage about your interlocutor violating the rules of man and God when it comes to judicial races. You ought not be able to avoid meeting the criticism by claiming that the state bar "says that you can't say that."

This is what's going on here. Mike and IT don't want to talk about Knapp and DuBose and whatever cases become an issue. They want to talk about what Schmitz or Sykes or Gableman said and how WMC supports it and how this is a threat to the "independent judiciary" - a phrase that is abused every bit as much as judicial activism.

iT said...

Mike and IT don't want to talk about Knapp and DuBose and whatever cases become an issue.

This is prima facie demonstrably false, and you know it, Sir. I have discussed Knapp in considerable detail, along with several other cases.

As a matter of fact I've discussed the federal cases upon which Knapp directly relies, and its alleged progeny (which turn out to be no such thing).

They want to talk about what Schmitz or Sykes or Gableman said ...

That too. Better believe it.

Anonymous said...

You still are completely missing the point. What we are discussing is not how to characterize the rulings of any justice but how closely we ought to police what is said in judicial campaigns.

Your complaint, recall, was (inter alia) that unreasonable limitations on the former were an argument against the latter.

Especially with respect to the freedom to characterize the "philosophy" or "perspective" demonstrated by those rulings; and with specific concerns about WJCIC (and Supreme Court?) guidelines.

Thus I submit that I have not missed the point even a little bit, but have instead nailed the point to the wall -- grape jelly though it turned out to be.

schuess said...

As a Marquette law grad, I am disconsolate over the fact that WMC propaganda was key to getting Justice Ziegler elected. And then I see that a Marquette professor (Esenberg) does a video for the WMC. And now we have this ad from the WMC backed Gableman campaign ripping Justice Butler for representing a client. I hope that Professor Esenberg joins J. Geske and comes out strong against this ad. It's time for the Marquette people to distance themselves from the shamelessness of the Gableman campaign.