Thursday, April 24, 2008

We can't all be Nino

There were many silly things said in our recent election for state supreme court. One was Justice Butler's claim to be a textualist in the mode of Antonin Scalia. Trust me, I do this stuff for a living. The idea that Louis Butler is anything like Nino Scalia is a laugh line.

Blogging lawyer Illusory Tenant seems to think that he has proven it to be so because, he believes, Scalia may take a similar approach to the scope of the Confrontation Clause in a case currently pending before the Supreme Court (Giles) as Butler took in a similar case decided by the Wisconsin Supreme Court (Mark Jensen). The idea is that the only exceptions to the right to confront a witness ought to be those that were recognized at the time of its adoption. Butler came to the conclusion - and so may Scalia - that a defendant's confrontation right is violated by the admission of hearsay from a witness who he is alleged to have killed unless there is proof that he killed the witness in order to silence her testimony.

We can argue about the desirability of such a distinction. It seems like an odd place to draw the line once we accept (as everyone seems to) that the confrontation right is not absolute. On the other hand, it places some boundaries on an exception that threatens to get rather large. Scalia's point - and one employed by Butler - is that desirability is not the question. Rather, we have to get at the actual meaning of the constitutional language without regard to what we think it ought to say.

The problem with drawing some larger conclusion from the Giles/Jensen example is that while this is - with imperfections - a consistent interpretive methodology for Scalia, it really isn't for Butler. Cases like DuBose and Knapp were not rooted in the original meaning of the constitutional language at issue. Jerrell C.J. certainly constituted an aggressive and extraordinary spin on the Court's supervisory power to compel a result that could not be rooted in the Constitution or statutes. It is very hard for a textualist to reach a decision like Dairyland Greyhound Park in which the court held that a constitutionalists amendment outlawing casino gaming actually permits a Governor to agree to its unlimited expansion on Indian reservations or to read our constitution's right to bear arms in the constricted manner that Justice Butler and a majority of the Court have adopted in order to preserve the state's broad prohibition on concealed carry.

In point of fact, those who supported Justice Butler and who, like IT, considered him to be one of the smartest judges in the country were generally not textualists and favored his reelection because they thought he was not either.

I have said nice things about Tom in the past and I mean them. But the point I made above is one which I think that most court watchers would agree with (although some would deny that what Scalia wants to do is possible). Patrick McIlheran understood that (he's an excellent journalist and did some great background interviews) and, in writing a column headed "No one here but us Scalias" turned the best phrase in a dreary campaign. To write as, Tom does that McIlheran's views are "absurdist fluff," "exceptionally silly, "manifestly supercilious" and "ill-informed scribblings" is not only adjectivally overdosed but thoroughly incorrect.

On the other hand, if what we want is more Scalias, I assume that Tom is looking for someone to run against Chief Justice Abrahamson.


illusory tenant said...

I'm pleased that you find it funny, but this has never been a question of outcomes or partisanship for me but rather a question of merit and competence.

Even so, as I mentioned at Sam Sarver's blog, I would most certainly support a meritorious "conservative" over an incompetent "liberal."

While your defense of Patrick McIlheran is touching, and speaking of background interviews, McIlheran conducted one with Butler himself during which he was not only not even minimally sentient, he arguably wasn't even conscious.

Republicrat said...

Thank you, IT for taking the higher ground -- merit and competence over outcomes or partisanship.

Sometimes I forget that you liberals are looking out for the greater good. I also forget that you know better than the general public what's good for them -- until the Barack Obamas and Thomas Franks of the world remind me of their -- and your -- beneficence.

illusory tenant said...

Earth Day was Tuesday, Republicrat, so you're a bit late in burning your collection of ceremonial strawmen on Prof. Esenberg's virtual front lawn.

Apart from never having argued any of those things, however, I do appreciate sarcasm, so thanks for that much at least.

Republicrat said...

Thanks, IT, for an equally sarcastic reply. I never said you made such an argument -- it's more about how your argument is framed. I realize that you are intelligent (likely far more so than I am) -- intelligent enough to realize that making any such argument explicit in public is not a good idea. Obama, surely suffering from Hillary fatigue and the illusion of privacy, was not so fortunate.

In any event, and aside from what you call a straw man and what I call an irrelevant tangent, how strong is your assertion on Sam Sarver's blog? How incompetent must a "liberal" be for you to vote for a meritorious "conservative"? Whom did you vote for in the Sykes-Butler campaign?

Despite my disagreement with her on occasion, I will be voting for the Chief Justice this coming year.

illusory tenant said...

Republicrat, I wasn't being sarcastic. And the primary strawman was that I think I know better than the general public (for lack of a better term).

I don't believe for a minute that I know better. The general public is at least as capable as I am of knowing the score.

I learned it, and there's absolutely no reason why anybody else couldn't (especially if I can).

But unfortunately the loudest speakers in this particular election were clowns and liars (jokers to the right), and that goes for all of the 3rd party advertising -- although even Butler's 3rd party supporters were several orders of magnitude more honest than Gableman's. Or, the worst of the worst, Gableman's own.

I've never even implied that I think I know better than the general public, only that the general public may not follow these things as closely as some of us do.

And the some of us who do that followed this one especially closely found it pretty easy to separate the bereshite from the bullsh*t (pardon the uncharacteristically timid asterisk, I heard this was a family blog).

But hardly anybody was listening to us, or else they would have listened if they even knew we existed. We don't have 50k watts and the public airwaves [insert Fairness Doctrine joke here] over which to howl like a stuck primate every morning.

That's all I'm sayin'.

How strong is your assertion on Sam Sarver's blog? How incompetent must a "liberal" be for you to vote for a meritorious "conservative"?

I mean it. As for the hypothetical, let's just say that if the roles were reversed, I'd have had a Gableman sign on my lawn. H*ll, I'd have sewn a Gableman patch on my suit jacket, like the WMC one he has on his robe.

And the reason I said I'd changed my mind about electing vs. appointing Supreme Court judges is not because I don't think the voters can handle it. It's because the nominee couldn't handle it.

He has a responsibility -- indeed, an obligation -- to at least treat the office he seeks with respect. And he failed on that account. Miserably.

So it's no fault of the general public. It's the fault of people who want to abuse the court's function because they have enough money to do it and they need to protect that investment so they're more than willing to say anything in service of that money.

[Seriously, have you ever heard anyone refer to the United States Constitution as a "needless technicality" -- in fact, the very provision that none other than Justice Antonin Scalia was vigorously defending the other day (on precisely the same grounds as Justice Louis Butler)?]

And putting a stop to that is worth the price of removing the selection process from the relatively small number of people who bother to exercise it anyway. I'm only talking about the Supreme Court, incidentally.

A competent Supreme Court comprised of our best legal minds is surely the least we can expect for this great State. We have an abundance of those minds here, and we shouldn't settle for less.

An appointment process can at least ensure that only the most talented are considered to begin with and the general public can continue to participate in whatever "liberal" vs. "conservative" controversy erupts then. But the debate will necessarily be of a higher quality. Anything would be of better quality than the recent unpleasantness.

Surely the general public would appreciate a more heightened debate as opposed to getting taken for and treated as suckers by third-party special interest groups, most of whom do not have the public's own special interests at heart whatsoever.

Whom did you vote for in the Sykes-Butler campaign?

Dude I didn't even know who either of them were until about six years later.

And I wouldn't tell you who I voted for anyway. You're not supposed to do that, are you? It's a sacred trust. But the statute of limitations has run on at least one of my secret ballots, and I can now reveal that I voted for Sheila Copps in 1986.

I think that was the year Brian Mulroney's Conservatives (yes, that's actually the name of the party -- there's no "Democrat," "Republican" euphemisms up there) went from 275 seats in the House of Commons to three.

Those were the days my friend.

William Tyroler said...
This comment has been removed by the author.
William Tyroler said...

Is (was?) Louis Butler "a textualist in the mode of Antonin Scalia"? Beats me. But at least Scalia's intellectual integrity leads him to take positions, as in confrontation clause cases going back at least to Coy v. Iowa, that defy ideological categorization. Very recently,

Scalia told CBS News' "60 Minutes" that he may be conservative, but he is not biased on issues that come before the Court. "I mean, I confess to being a social conservative, but it does not affect my views on cases," Scalia said in excerpts released Thursday.

The same can't reasonably said about Gableman. Indeed, as iT indicates above, Gableman ran on the idea that the confrontation clause is a "needless technicality." Butler may not be a Scalia-type textualist, and the claim that he was may or may not be "silly" as Professor Esenberg indicates. But if the idea is that Scalia-type textualism is a bulwark againt judicial "activism" (a premise not explicitly made by the post, to be sure, but certainly seems implicit), then it's fair to ask whether Butler's replacement will be an improvment in this area. Unfavorable comparisons of Butler to Scalia obscure this question. The race is over, Professor Esenberg's preferred candidate won. Is Gableman likely to be a "textualist"? He has no body of work that I know of to support any conclusions, so we're limited to his public pronouncements during the campaign, and they therefore represent something like a mandate. Those pronouncements may make his supproters confident that he'll support the result that they prefer in any given case but they don't, to my mind anyway, give any confidence of Scalia-type textualism. Even if Butler's detractors are correct, they have in all likelihood merely replaced one type of result-oriented jurisprudence with another.

Terrence Berres said...

"Is (was?) Louis Butler 'a textualist in the mode of Antonin Scalia'? Beats me."

I noticed Justice Butler never had colleagues nickname him "Scalouie".