Tuesday, January 29, 2008

What is the Basting standard?

Blogging lawyer Illusory Tenant still professes to be confused by why anyone could possibly object to the state bar using mandatory dues from all practicing lawyers in the state to police speech in the state Supreme Court race.

Let me try one more time. IT wonders what the big deal is because the WJCIC is only asking the candidates to sign on to whatever regulation of speech is already embodied in Chapter 60 of the Supreme Court rules and who could object to that?

There are two problems with this. One is that people do object to the SCRs - at least as they have been interpreted by the Judicial Commission. Last year, a federal court in Madison held the rules to be unconstitutional if applied to prohibit candidates from stating their position on a series of contested issues.

But, IT will say, the agreement says "there is "no intent" to impose standards that are stricter than the Constitution. But, if we can't simply read the SCRs as written and believe that they comply with the Constitution, then an agreement that holds them up as the gold standard is of limited value.

But that's not the big problem. The WJCIC does not, as IT implies, simply offer this agreement and promise to go away, To the contrary, it offers itself as the arbiter of what the agreement - or the SCRs - require.

Some people have pointed out the political imbalance in the committee. I can't imagine why the people who put it together didn't see that as a problem. But I think we have far more direct evidence for the proposition that the WJCIC ought not to be accepted as possessing any more authority than, say, my blog or Tenant's.

The WJCIC has given us an example of how it read the SCRs. This is where the Basting standard comes in.

State Bar President Tom Basting, writing on behalf of the committee, thinks it is a violation of the rules for a candidate to characterize his opponents positions as consistently siding with defendants. This, he says, calls into question a judicial candidate's impartiality. How far Mr. Basting would take this is unclear, but another blogging lawyer, Mike Plaisted, says that it would prohibit a candidate from saying that his opponent "frequently misreads the law to expand the rights of criminal defendants and to impair the function of law enforcement."

I have explained elsewhere why I think both are wrong - as an interpretation of the SCRs, as a matter of policy and as a measure of what ought to be constitutionally protected discourse. I have tried to point out that it does not reflect the way in which the public, lawyers and even legal academics talk about judges. It handicaps public debate on issues that matter and imposes an etiquette on discourse that we are generally able to see as chilling in other contexts. Given the rather clear suggestion that the WJCIC intends to read the rules in this way, I would not suggest that either candidate sign on to the agreement or confer legitimacy on the WJCIC as some neutral arbiter as to what can or cannot be said.

Whether or not I am right has nothing to do with the Federalist Society or WMC or any other interested party in the supreme court race. I am not "put up" to this view by any of them nor do I adopt it in furtherance of some undisclosed support for any candidate. Any one who has read this blog would now that, when it comes to political speech, I am a near absolutist.

This doesn't mean that I think anything goes or that all things said in the course of a campaign are fair. I think that people who engage in political debate would generally benefit from a dose of intellectual honesty and courtesy. As I have said there are often problems in the way that decisions regarding matters of criminal procedure are discussed in public (although these problems really have nothing to do with the SCRs or questioning impartiality or judicial dignity; they are substanive - the public values procedural rights less than lawyers (including this one) do.)

But I do not trust the state or a truth squad that imbues itself with a patina of neutrality and claims to be engaged in the disinterested application of objective standards with some special authority to declaim on these matters.

14 comments:

iT said...

Dude. The least you could do is link to my post in question so people could have a gander for themselves. Let me show you it:

Loophole hooey and the WJCIC.

Rick Esenberg said...

I was in a hurry this morning. All fixed.

John Foust said...

Attorneys often seem to think they have special powers to declaim on many subjects, don't they? Is the State Bar's use of mandatory fees similar to or different from, say, the UW's use of segregated fees, or unions promoting candidates?

Should we give the WJCIC a chance to demonstrate that it can "play down the middle," or should we squash it as quickly as possible before they can show us how they'll operate? Does the State Bar conduct any other public-info efforts that we should also find distasteful?

Anonymous said...

If you listened to the online "debate" tonight, this exchange (as reported by the AP) was priceless:

The moderator opened by giving each candidate the opportunity to ask the other a question. Here's the doozy that Gableman opened with, and Butler's response:

"Gableman asked Butler why he was saying he has the most experience even though he has less experience as a circuit court judge than Gableman does.

"Butler responded that he's been a judge longer than Gableman has been an attorney."

Zing!

Gobble-Gobble-Gobbleman isn't ready for prime time, folks! This time WMC has dropped too low down to food chain.

Anonymous said...

Bravo -- Good post and position regarding this critical issue.

There is the crowd that cares that the appearance of the courts is that they're fair and impartial and then there are those that care that the Courts are fair and impartial.

I don't believe the State Bar (or anyone else) should have any part in stifling (free) speech that could help the public to determine what is going on in the Courts.

it - is just showing us the little world he lives in, again.

iT said...

Funny, I made it clear it didn't make any difference to me one way or the other whether the candidates sign the agreement, the plain language of which was the focus of my post. But I support Basting's initiative.

I don't believe he has any "special authority to declaim on these matters" beyond the heightened B.S.-detecting senses any competent lawyer should cultivate with respect to legal questions, and thereby the misleading portrayal of those questions in the world at large. Nor has he claimed any.

But the integrity of the judiciary is something worth protecting. I have no particular objection to Gableman's 'Butler consistently sides with criminals / but I am a stark contrast' talking point combo. Personally, I think it's fatuous, but I don't believe it violates any "rules," other than the rules of fatuousness. It's not me that's living in a "little world."

Basting's letter to Gableman is a perfectly legitimate explication of the judiciary's function, in that there is a distinction between the objective application of law to facts and "taking sides." Maybe Darrin Schmitz didn't quite grasp that, and maybe he does now. Who knows.

If Esenberg objects to his Bar dues paying for the education of Darrin Schmitz, then God bless him, I say.

Anonymous said...

it -

I do think you live in a little world because not long ago you made it clear that you think that the official goverment language should be athieism when Van Hollow spinelessly did not allow a Lutheran Pastor to speak at a cerermony for our troops.

Now you are for more censorship by supporting a group who is going to try and control campaign speech. My guess is that you would also be in support of the groups (whoever they are) that are intimidating pastors and churches in the primary states to not become involved in the campaign.

All people have the right to speak up in our campaigns and should not be stifled by any intimidation. Let the candidates and supporters battle it out without this unnecessary fear.

Anonymous said...

How far Mr. Basting would take this is unclear, but another blogging lawyer, Mike Plaisted, says that it would prohibit a candidate from saying that his opponent "frequently misreads the law to expand the rights of criminal defendants and to impair the function of law enforcement."

This is a poor showing, Mr Esenberg.

As you recently conceded in the comments of your earlier post, the material you quote here is ambiguous between (its primary reading as) suggesting a deliberate aim or philosophy of impairing the function of law enforcement -- oily, low, thuggish projection of motive -- and the claim that one's misreadings unintentionally have that effect. (Which is more substantive and above-board, but correspondingly harder to actually make stick, on account of requiring cogent argumentation case-by-case rather than smears and straw men.)

After much sighing and eye-rolling about how one obviously could just as well have read "unintentionally" into your hypothetical quote, you have now gone straight back to leaving such a qualification out of the quote, and not mentioning it outside the quote either. Why? Because, of course, Mike Plaisted in no way disagreed with either the letter or the spirit of the quote so qualified.

Please do be honest about the mismatch between what you really meant (as you've since claimed) but poorly said, and what Plaisted responded to.

iT said...

Not so, Anon 12:25 PM. In fact I even support your right to lie like a rug.

Anonymous said...

it -

do my knowledge you haven't changed your positions., have you?

iT said...

Anon 7:42 AM, those are not my positions so your latest question is of the "When did you stop beating your wife" variety.

Rick Esenberg said...

Anon 6:12

First, you seem to be misreading my hypothetical as my own statement.

Second, the point isn't whether I would endorse the hypothetical or whether I think it would be possible to phrase the sentiment in some way that is "fairer" or "more accurate" but whether we should read the SCRs to prohibit such a statement.

I say that this whole exercise of trying to distill its "true" or "primary" meaning (which certainly doesn't have to be what you suggest)takes us well past what the First Amendment permits and I find it passing odd that people who fancy themselves civil libertarians would say otherwise.

Anonymous said...

it -

I want the public to hear and I want Judicial candidates to answer all questions without having some unconsitutional privilege to hide behind.

In the past people have been only been voting for a name on the ballot. Now we find out that we could have been hearing the issues of the day in these races all along. Quite frankly, that sucks. The public needs to hear, that is what elections are for.

The judiciary is not a secret society and I would think that people agreeing to rules that they don't have too are trying to hide something from the public.

iT said...

Anon 11:05, I'm with you on those general principles. My immediate concern has been with the wildly misrepresentative characterizations of Justice Butler's record.