Sunday, March 29, 2009

Same old stuff

As I place my last law review article of the spring submission season, its time to return to the blogosphere. I want to pay a little attention to the state Supreme Court race, as anticlimactic as it has turned out to be. I think I have been fairly consistent in suggesting that much of the angst that has been expressed about the "ethics" of judicial campaigning is simple partisanship.

When conservatives accuse a liberal justice of "siding with criminals" or not standing up for the victims of crimes, they are making a consequentialist argument about a real philopsophical difference. In the case of the current race, the Chief Justice's views on the law and her interpretive philosophies make her far more likely than most other members of the Court to grant relief to criminal defendants. To say that she "sides with criminals" is, of course, an oversimplification but then so is most campaign rehetoric.

But overly simple reliance on consequences comes from the other side as well. The Abrahamson campaign's claims that she stands up for victims and helps people are also consequentialist claims that ignore the complexity of the issues in, say, the lead paint decision. The Greater Wisconsin Committee's latest ad attacking Randy Koschnick is just the left's spin on last year's ads attacking Louis Butler by emphasizing some decisions in which he ruled in favor of the claims of some people who did bad things. It gets at what is a real philosophical difference in a ham handed way. That's what attack ads do.

There is part of me that remains annoyed that neither side will engage in the debate that the public deserves. But perhaps I expect too much.

6 comments:

AnotherTosaVoter said...

Don't hold your breath.

Idiotic campaigning appeals to the idiots who are most likely to vote - partisans. A routine scan of the hack blogs will tell you that.

Not to mention most other people are either too stupid or too disengaged to thoroughly grasp the complexities to which you refer.

Democracy being the worst, except for all the others, and all.

Dad29 said...

Well, Rick, some folks just don't want to talk about Constitutional principles. That would spoil all the fun.

By the way, I think that one could actually construct a 30-second or 1-minute ad which makes a Constitutional point.

jp said...

To AnotherTosaVoter;

Well…EXCUUUUUSE ME!

Anonymous said...

I vote based on qualifications. UW grad, law school professor (tax law!) vs. the lowest common denominator law school in the midwest. Why did he go there? Because that's the best place he could get in.

John Foust said...

I think the most obvious strike against Koschnick is exactly what Prof. Esenberg said:

"I want to pay a little attention to the state Supreme Court race..."

When you're quiet, I know why: When you can't defend the client's actions, talk about something else.

I guess if we want commentary and more detailed analysis, we'll just have to visit Illusory Tenant. Reading Illy T makes me wish more reporters would steal from blogs.

Dad29, you think those TV stations should've pulled GWC's ads because Koschnick said so? That's strictly constructing the First, the way a SC candidate should?

Clutch said...

When conservatives accuse a liberal justice of "siding with criminals" or not standing up for the victims of crimes, they are making a consequentialist argument about a real philosophical difference. In the case of the current race, the Chief Justice's views on the law and her interpretive philosophies make her far more likely than most other members of the Court to grant relief to criminal defendants. To say that she "sides with criminals" is, of course, an oversimplification but then so is most campaign rhetoric.

No. When conservatives accuse a liberal justice of "siding with criminals", they are not arguing; they are accusing. The two are distinct accomplishments, one would expect a law instructor to understand. Calling someone a jackass is not to argue that he is a jackass; saying that Abrahamson "sides with criminals" is not in itself to argue a damned thing. Right from the start, then, the apologetics begin: the most obvious smear-language gets elevated to the level of an argument.

The point about the absurdly poor reasoning occasionally deployed in support of such pro- and con- characterizations in this race is precisely what undermines the idea that such descriptions as "sides with criminals" can be any better than crass mendacity, rather than, say, slightly flat-footed simplifications of genuine legal philosophies. Such reasoning proceeds, typically, by first misdescribing and then arbitrarily focusing on a small set of outcomes (extracted from a vastly larger set), the "philosophical" explanations for which are precisely what cannot be read off such scattered and cherry-picked gleanings.

So much the worse for the Gableman/Koschnick/GWC strategy of substituting misrepresentation and cherrypicking for argument. So much the worse, also, for the Esenberg strategy of simply pronouncing that philosophical differences loosely corresponding to the smears of partisan hacks, one of whom is actually a candidate in the election, can be inferred from the record (without actually burdening a reader with the details of the alleged inference).

That the Chief Justice "sides with criminals" is no more an "oversimplification" than to say that John McCain was a virulent racist in his late presidential campaign is an "oversimplification": it takes the worst interpretation of a few incidents among thousands that don't fit that description, judges them by partial and non-obvious consequences, and then attributes to the person the intent to have those consequences. It is, in fact, a horseshit lie. But I will refrain from attempting to read Esenberg's intentions out of the potential consequence that his rhetoric here acts to whitewash such a horseshit lie.