Monday, April 27, 2009

Reading the Memos, part 2

The local blogger Illusory Tenant didn't like my choice of language in beginning a series of posts of the DOJ interrogation methods. I chose it carefully and I think it accurately reflects the way in which most of the public discussion has proceeded.

So what about the memos? First, some context. In Sunday's New York Times, Frank Rich claims that, in a 2002 memo, then DOJ lawyer Jay Bybee "proposed" a series of interrogation methods. He did no such thing.

Rather, Bybee was asked to opine as to whether certain methods that were described to him would violate 18 U.S.C. section 2340A which prohibits persons outside of the United States from committing or attempting to commit torture. Section 2340 defines torture as conduct specifically intended to inflict "severe physical or mental pain or suffering" on persons in custody. He was not asked whether such methods are "effective" or whether they were appropriate as a matter of policy or morality.

Some critics of the DOJ interrogation memos have been put off by what they see as their "clinical dispassion" or "lawyerly detachment" in the course of discussing rather unpleasant subject matter. One should, they say, "know torture when they see it" without reference to the language of the law.

That may be true as a moral matter and I'll get to that. But we enact laws for a reason and the statute in question prohibited only some impositions of physical or mental pain and suffering. It did not rule out all coercive or stress-inducing interrogation techniques. It is hard to know, then, how else would would go about evaluating whether proposed practices fall within the specific statutory language than by deciding what the language means and comparing it to the facts.

But others - defenders of the Bush admonistration - argue that the memos can be defended by showing that the methods used obtained results. Whether one can defend torture on consequentialist grounds is an important moral question, but it is really irrelevant to the legal question that was before DOJ. Whether the methods "work" or not is not part of the legal definition of torture.

The Bybee memo does not distinguish severe physical pain from severe physical suffering. It declined to treat "pain" as a concept distinct from "suffering." A latter 2005 memorandum seems to have departed from that approach, noting that the statute is worded in the disjunctive. On that view, it is possible for an act to inflict severe physical suffering even if it does not inflict severe pain. The latter memo concluded, however, that for physical suffering that does not rise to the level of severe pain, it must be enduring and not merely transitory. The latter memo concluded that the two concepts are related, however, in that conduct that inflicted a greater level of pain (even if not severe) would not have to last as long as conduct that did not to be considered severe physical suffering within the meaning of the statute.

This means that any infliction of severe physical pain - even of very short duration - would constitute torture. But conduct that did not inflict severe physical pain might also constitute torture if it inflicted enough physical suffering for a long enough period of time.

The memos also distinguish physical from mental pain and suffering. Physical pain and suffering is, they argue, distinct from mental pain and suffering and the latter cannot constitute the former. This is important because the statute provides a specific definition of mental pain and suffering which, according to the memos, required specific predicate acts and prolonged mental harm. The two predicate acts that are most pertinent to the techniques at issue are the "threat of imminent death" and the "infliction or threatened infliction of severe physical pain or suffering."

It seems to me that the view adopted by the 2005 memorandum is a fairly straightforward bit of statutory construction. Yes, it's uncomfortable to make the distinctions that it makes but that is what the statute calls for. While I might have argued that the concepts of mental and physical pain and suffering cannot be so readily distinguished, i.e., there could be conduct that inflicts some level of physical pain and suffering that is not itself enough to qualify as torture but that, in combination with the mental pain and suffering that it produces is enough to cross the threshold but I am not certain that this distinction would have materially affected the analysis of the particular interrogation methods at issue.

The memo also noted that there was a "specific intent" requirement, i.e., that the persons engaging in this conduct have to intend to cause the requisite pain and suffering. Although the memos focussed on this, noting that the authors had been informed that the interrogators did not believe that their methods would cause such harm, I don't find that part of the memos very helpful. They were advice to the government on what to do and not to do and I don't think, if something actually does inflict the requisite harm, that the government gets off the hook for keeping interrogators in the dark.

But so far, I think we have at least workmanlike effort to state the law. But what about application of the law to the particular methods under contemplation?

Sunday, April 26, 2009

70s Sunday

More 70's music to honor our 70's President.

Mott the Hoople marked the extinction of the Sixties. "And my brothers back at home/ with his beatles and his stones/We never got it off on that revolution stuff/What a drag too many snags"

David Bowie took transgression just a little further.

I have to admit that I had a crush on her:

And this was the theme of everyone's Homecoming:

And this was for Prom:

Reading the memos

I am reading through the Justice Department memos on whether certain enhanced interrogation techniques constituted legally prohibited torture and plan a series of blog posts, dealing with the legal analysis in the memos and the larger question of when and if something that might fall within the "definition" of torture could ever be justified.

But before I do that, it helps to set the guidelines for the debate. Much of our converation on the issue is superficial. We have one side screaming "torture" without much thought about what was actually done and how often. There is little, or no, consideration of what was at stake in the period immediately following the 9-11 attacks.

We have the other side invoking "national security" and the spectre of the ticking time bomb without, again, much consideration of what was actually done and whether the larger moral and strategicand political issues.

We should start, I think, by waiting to emote. 9-11 was an awful and unprecedented attack on US soil. As bad as it was, it was a near miracle that only 3000 persons were killed. Given the nature of an open society and the lethal nature of readily deployed technologies, it is unlikely - and perhaps impossible - that security measures alone will thwart attackers. It is imperative to detect potential plots.

Of course, this must be done in a way which is consistent with life in a liberal and civilized democracy. But our desire to preserve the latter cuts both ways. We have to keep in mind the ways in which our responses to terror can undermine the values of such a society, while also acknowledging that terror will destroy such a society. I don't know how many 9-11s a liberal society can survive, but it is probably a smaller number than we might imagine.

So I don't think it was outrageous to ask whether a series of interrogation techniques which the experts involved believed were likely to lead, not to "confessions" (there was no need for that), but information that would help prevent future attacks. Certain of these techniques (e.g., water dousing, sleep deprivation and waterboarding), which were to be applied only to persons that everyone concedes were involved with Al-Qaeda and its attacks, certainly involved the imposition of physical and mental distress. Indeed, the purpose of their use was to create a level of discomfort sufficient to wear down the prisioner's resistance to interrogation.

On the other hand, they were extremely unlikely to result in lasting or prolonged harm and the law does not prohibit the imposition of phyical and mental distress, but "severe pain and suffering, whether physical or mental." In other words, there is some level of pain and suffering which may be inflicted without amounting to torture.

Whether these techniques were in fact prohibited remains to be seen, but the answer is not obvious and, in light of what was at stake, I am not prepared to say it was odious to ask. Whether the imposition of less than severe pain and suffering is, even if legal, an unwise or immoral policy is yet another question. All I am saying now is that we should take these questions seriously.

Now, did DOJ get it right?

Tuesday, April 21, 2009

Shark on the air

Unless I am edited out, you can catch my comments on the open carry memorandum tonight on Channel 12 news. Just remember, the camera adds 50 lbs and conceals rugged good looks.

Why judges aren't legislators

I have not yet had a chance to blog on Judge Sarah Evans Barker's intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not "make sense" or is "unworkable." I don't say that it can never be done (as Justice Scalia has said, "I, too, am a sinner"), but it is a principle with no readily defined stopping point.

So what, you may ask, does this have to do with Attorney General Van Hollen's Advisory Memorandum stating that there is a constitutional right to openly carry firearms? Well, there is a history. In the 1998, the voters amended the Wisconsin Constitution to create an very broad right to "keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." This is, to put it mildly, in tension with Wisconsin's extraordinarily broad prohibition of concealed carry. There are virtually no exceptions and no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was "anomalous." One might have expected that the anomaly would have been eliminated by declaring the statute to be unconsitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case by case basis, deciding when the need for security was compelling enough to result in consitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high crime area but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.

And, if General Van Hollen is right, so she does. If I am concerned for my safety (I am not) when I walk my three enormous but pacifist Golden Retrievers, I can holster my Ruger SR9 and go sauntering down the trail. Although Van Hollen does not cite the Court's concealed carry trilogy and it is quite possible that Art. I, sec. 25 would protect open carry even in their absence, any other outcome would have almost read the constitutional protection out of the constitution.

But is this the best outcome? Rather than rewrite the concealed carry statute by finding constitutionally compelled exceptions, wouldn't it have been better to strike down the statute and force the legislature to pass a concealed carry regime that would have passed constitutional muster? Such a scheme might have permitted concealed carry for those who obtain the proper training (guns are dangerous; if you buy one without proper training, you're crazy) and enact appropriate time, place and manner restrictions.

Cross posted at Marquette Univerity Law School Faculty Blog

Monday, April 20, 2009

Terrorists like me

I know that the Bush administration put out at least two reports discussing threats from leftwing extremists but at least they made clear that the concern was extremist groups and not liberals who might morph into terrorists. Last week's DHS document, the misnamed "Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment" is an embarrassing piece of propaganda. It fails to define "right wing extremists." It misidentifies "hatred of particular religious, racial or ethnic groups" as right-wing (it can just as easily be left wing).

It argues that the economic downturn and the election of a black president may radicalize these unnamed and undefined groups. But it presents precisely no evidence that this has happened or might happen in the future. In fact, it says that DHS "has no specific information that domestic rightwing* terrorists are currently planning acts of violence ...." (Nor, I might add, does it offer any general information.)

Because of the looseness of its language, suggests that any group might be "extremist" if it is "antigovernment" or "dedicated to a single issue, such as opposition to abortion or immigration." It comes perilously close to identifying as extremist any one who is critical of the administration:

Rightwing extremists are harnessing this historical election as a recruitment tool. Many rightwing extremists are antagonistic toward the new presidential administration and its perceived stance on a range of issues, including immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use.

That's not what they mean, you say, and I hope not. But this is a bulletin to law enforcement agencies across the country. How could an agency possibly respond to it than to conclude it is being asked to monitor right wing political groups.

The report could have been written by that noted neurophysiologist Janeane Garafolo as part of her enmerging limbic brain theory. (Physiognomy can't be far behind.)

Of course, any agency during any administration can put out a piece of crap like this. What is disturbing is Janet Napolitano's defense of it.

Sunday, April 19, 2009

Embarrassing Sunday songs (?), part I

The seventies have not stood up. But I was there and so was the President. It seems that, while I don't want to go back, he does. So a little 70s music is in order.

We'll start with some one hit wonders, like Shocking Blue:

Or Climax:

Golden Earring:

And Smith (while this is actually from 1969, I associate it with the early '70s):

Thursday, April 16, 2009

Keith Olberman meets Peter Griffin

The propensity on the left to refer to the tax protesting as "tea bagging" is, at best, adolescent (Beavis: They're teabagging, heh, heh. Butthead: Yeah, heh, heh, heh) and, at worst, intentionally derisive of people who they assume must be socially conservative. For those social conservatives, who may be open to arguments for a more expansive use of government to, say, reduce poverty or equalize economic circumstances, it is offputting.

Policing campaign ads?

As I have blogged in the past, I am no fan of last year's Gableman campaign ad regarding Louis Butler and Reuben Mitchell. It is wildly misleading and was a political mistake. The ad was an extremely small buy. Very few people actually saw it run as a paid piece. But it got a lot of attention for its distortion of the facts - "earned" media - and that was all bad. Politicos have told me that they believe the ad almost cost Gableman the race.

But I am nevertheless concerned about state sanctioning people for campaign speech. In fact, I am so interesting that I am working on a paper raising the question: should the government police "lying" in campaign ads? If so, what should the standard be?

Let's put aside, for a moment, the suggestion that judges should be held to a "higher standard." It isn't self evident to me that we should not expect our legislators and executives to be just as honest as our judges or that misleading campaign ads don't harm public confidence in the integrity of our institutions in the same way for nonjudicial as well as nonjudicial races. The US Supreme Court, moreover, has recognized broad speech rights for judicial candidates. In any event, that's a discussion for another day.

But here's the question. The Gableman ad fetured the following text:

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.

Each sentence, taken individually, is true. Put together, they suggest that Butler got Mitchell off and he raped another child. Not true. Butler's argument for a "loophole" (which is a meaningless term when used by the right with respect to criminal law and the left when referring to taxes)did Mitchell no good. He committed his subsequent crime after serving his sentence.

But contrast it with this robocall by Fair Wisconsin in opposition to the marriage amendment:

“I’m calling today to urge you to send a message to everyone that marriage in Wisconsin should not be changed. Vote ‘no’ on the marriage amendment and send a message that you care about our family values and our children. We don’t want activist judges getting involved to determine what marriage means. We know in Wisconsin marriage means a man and a woman. Vote ‘no’ to stop activist judges. Vote ‘no’ to protect our values. Vote ‘no’ on the gay marriage amendment.”.

Once again, each sentence, taken individually is true. But the clear implication - and clear intent - is to make the voter think that a "no" vote is a vote against gay marriage.

Should the state sanction people for election communications like these?

Wednesday, April 15, 2009

Crabby thoughts on tax day

I did not go to a tea party today. Too many bright young people who are worried that maybe they really don't understand the interplay of Rule 18(a) and subject jurisdiction. What was it that I said about the Asahi factors? They'll do fine but they need a bit of clarification. It's what they pay for.

I don't agree with everything I read on the signs at the various demonstrations. We don't need to abolish the Fed (although its turning out that the Fed had a lot to do with our recent unpleasantness) and I'm still not ready to call the President a socialist, although his lurch to the left has surprised even me.

But there's a point here that is not defined by some of its more extreme manifestations. Just what are we doing? The Obama budget numbers are staggering. It doesn't do to say that the deficit increased during the Bush administration and that the GOP Congress abandoned fiscal responsibility. To paraphrase the Boss, Obama's here and they're all gone. Obama is doubling down on Bush's fiscal inattention. What he has proposed is not serious. It can't be sustained and, at some point, he's going to have to tell us what he really has in mind.

What is frustrating is the refusal to acknowledge facts. Obama is raising taxes on people making under 250k. He can't do what he wants to do without raising them a whole lot more. The Bush "tax cuts for the rich", in regards to the ordinary income tax, were actually an across the board reduction. (Capital gains and dividends taxes are another matter but actually resulted in the collection of more taxes and present a different set of issues.) The income tax is not rigged against the middle class. It is, in fact, highly progressive. (In fact, it could be argued that part of the GOP
's political problem stems from the fact that almost half of us pay little or no income tax.) You can claim that it should be even more progressive, but facts are pesky things.

Monday, April 13, 2009

Should Bill Clinton have been born?

Some times the intellectual shallowness of politicians and the hypocrisy with which it is greeted is stunning. Our Secretary of State recently received the Margaret Sanger award from Planned Parenthood. According to Kathyrn Jean Lopez, Secretary Clinton announced that she is “really in awe” of Sanger. “The 20th-century reproductive-rights movement," she said, "really embodied in the life and leadership of Margaret Sanger, was one of the most transformational in the entire history of the human race ...”

I suppose it would be worse if she accepted the Strom Thurmond Award for the defense of federalism, but it ought to be people like me, who disagree with Planned Parenthood about so many things, who should be claiming that its movement for "reprodutive rights" (i.e., abortion, but people from State are devoted to euphemism) is embodied in the hateful persona of Margaret Sanger.

Here are some money quotes from the patron saint of "reproductive rights:"

"We want fewer and better children . . . and we cannot make the social life and the world-peace we are determined to make, with the ill-bred, ill-trained swarms of inferior citizens that you inflict on us.”

"Every feeble-minded girl or woman of the hereditary type, especially of the moron class, should be segregated during the reproductive period."

"Birth control must lead ultimately to a cleaner race."

"Our failure to segregate morons who are increasing and multiplying ... demonstrates our foolhardy and extravagant sentimentalism ... [Philanthropists] encourage the healthier and more normal sections of the world to shoulder the burden of unthinking and indiscriminate fecundity of others; which brings with it, as I think the reader must agree, a dead weight of human waste. Instead of decreasing and aiming to eliminate the stocks that are most detrimental to the future of the race and the world, it tends to render them to a menacing degree dominant ... We are paying for, and even submitting to, the dictates of an ever-increasing, unceasingly spawning class of human beings who never should have been born at all."

Awesome. Just ... awesome.

The Pirates Be Dead

I don't think it was a remotely tough call, but President Obama did the right thing in giving the green light to the Navy to use force against the pirates holding Captain Richard Phillips. He would have done the right thing even if the rescue had gone poorly. These decisions are made - and must be evaluated - before the fact.

One of the things that annoys me, though, in the reporting of these things is the phrase "shoot to kill." As a general matter, there is no other way that responders shoot in these circumstances. Police officers, for example, are trained to aim at an area that is immediately below the target's neck and up to his eyes. If you are hit there, you are not likely to make another move which is the point. Police shoot to stop - immediately. A corrollary of this is that the target is likely to die. Because of this, cops are trained to use lethal force only where there would be justification to kill the suspect.

Maybe Navy SEALS have more leeway. Their training is unbelievable and I have heard that trained snipers will sometimes try to take less than a lethal shot. But I can't imagine why you would do anything but take a head shot here. You had to immediately incapacitate these guys and, unfortunately, there is no other way to do that.

Another thing. While this may dissuade pirates from ever again accosting a vessel flying a US flag, the only way that piracy will be eliminated is if this is the universal response. No ransom. No negotiations. Death or prison. Every time.

Sunday, April 12, 2009

Easter Songs

Christ is risen - or so it is believed by about 79% of us (11% aren't sure). So how is that belief reflected in today's musical selections.

I have no idea of the nature of Bruce Springsteen's religious beliefs. His genius is being able to express an American ethos. More than perhaps anyone else, he expressed an American response to 9-ll. In a Christian country (and don't go all "Wallbuilders suck" on me, I am talking culturally and historically, not legally), it makes sense that this response would trade on Christian imagery.

He invoked both Good Friday:

And, in one of the most remarkable pieces of popular poetry in my life time,Easter. Is that what he meant? When you use this type of imagery, it doesn't matter what you mean. It is what will be understood:

But the Easter belief is hard. It is about what has happened and what we hope will happen. It leads us back to Advent:

We trust that someday and in someway it will be fufilled. As for U2 and, as he calls himself, that "insufferable little Jesus" Bono, they "mean it, man":

Wednesday, April 08, 2009

My own election reflections

I understand that, during an on-air conversation with my wife, Charlie Sykes called out my recent lack of blogging. I may not follow his orders, but Karen's are another matter. So here I am.

I have a little time today to reflect upon the election post-mortems. I was struck by the cluelessness (which I suspect, at least in the first case, is strategic rather than actual) of Paul Soglin and Ed Garvey.

Soglin says that the Abrahamson campaign proved that you "do not have to run from your core beliefs to win a state wide election to the court." He contrasts this with the campaigns of former Justice Louis Butler and Linda Clifford who did not run from their core beliefs and lost.

Really? What does it mean to run from your core beliefs? The Abrahamson campaign portrayed the Chief Justice as an "ally of law enforcement." It argued that her job was to "stand up" for Wisconsin families. Shirley Abrahamson is far too smart to believe that either claim accurately describes the role of a Supreme Court justice.

I would not go so far to claim that the campaign constituted "running from" the candidate's core beliefs, but neither did it reflect their embrace. To the extent that there was a substantive message that focused on issues (which are the things that implicate "core beliefs")rather than qualifications, it was that she is a "tough on crime" justice as opposed to some other candidates or jurists who may not be. No one who knows anything about the Wisconsin Supreme Court could say, with a straight face, that this reflects reality. The Chief Justice's views on criminal justice may be the correct ones but, as an empirical matter, there is no one on that Court who is less "tough on crime", i.e., more likely to support the claims of criminal defendants, than she is.

In fact, the Chief Justice is a nationally famous proponent of New Federalism, including the idea that state courts ought to, from time to time, read state constitutional protections for criminal defendants more generously than the United States Supreme Court reads cognate provisions in the United States Constitution. That may or may not be a good idea (it is certainly within the Court's power), but I failed to notice celebration of that core belief. I do not recall that the campaign applauded her application of the state's concealed carry law over its constitutional amendment guaranteeing the right to keep and bear arms. I missed the ad emphasizing the attempt to save Wisconsin's families by voting to invalidate the school choice program. I didn't catch the law enforcement officers explaining why they are so glad that they may no longer use show-ups.

There's nothing unique about this. All candidates deemphasize the less popular aspects of their record, i.e., they run away from those core beliefs that will not help them win. But Soglin should not be so quick to had out laurels. The Chief Justice is a good candidate but has not managed to transcend the laws of nature by which almost all candidates must live.

What the election proved is that, when you have a national reputation, decades of incumbency and outspend your opponent by, I don't know, twenty to one, you will win.

Soglin is also wrong, I think, about Randy Koschnick. He claims that "WMC and the Americans for Prosperity left him out on a limb, having encouraged him to run, promising money, and then sitting out the election." I have some personal knowledge of the matter and am confident that they did no such thing. He believes that they will "repay" Koshnick in a future race. I think that is highly unlikely. Judge Koschnick was a good candidate who did not get the public exposure that he deserved, but he was not sandbagged and 41% statewide does not normally get you a second chance.

Soglin says that Koschnick's defeat shows that "the WMC, All Children Matter crowd, those who called for a full all-out negative television campaign against Abrahamson ... were vindicated." But these groups did not call for such a campaign. Indeed, for reasons of their own, they declined to do so.

I appreciate that Mayor Soglin is a political operative in whose interest it is to project on the WMC and other conservative groups whatever serves his purpose. But,if he really believes the things he wrote here, I'm thinking that the sixties are alive in Madison in more ways than one.

Ed Garvey, on the other hand, has, at best, a tenuous connection to reality - at least in the post-Wobblies era. In his view, WMC sat out the race to avoid the plague of public financing. Although I am still in the process of determining where it will appear, I have a paper forthcoming called The Lonely Death of Public Campaign Financing. In all likelihood, public financing of elections would enhance the influence of groups like WMC and the Greater Wisconsin Committee who cannot be prevented from running election cycle issue ads. I think they would love to be tossed into that briar patch. Face it, Ed, the dream is over. Moby Dick has eluded you. Sail the Pequod back to your proletarian mansion on the lake before he carries you away. Or call me Ishmael.

Sunday, April 05, 2009

Sunday Songs

Here's my gift to you. Although they have graced these pixels before, the Cinncinati based husband and wife team Over The Rhine is one of the greatest bands that deserves to be better known. So I'll introduce them to the teeming masses of Shark Nation. (Masses is a relative term.

Here is a remake of Fever.

Given that it's Holy Week, I thought I'd add Jesus In New Orleans.

Although this lacks a little production, OTR's Ohio is one of the most hauntily beautiful songs that I have ever heard.

But since I know that Sunday is for oldies, here is CSNY's song of the same name.

And we can't talk songs about Ohio without remembering Chrissie.

Friday, April 03, 2009

The watchdog is sleeping

No one cares much about this year's race for Wisconsin Supreme Court. For a variety of reasons, Randy Koschnick failed to engage conservative interests (it is not because they don't care) and lacks the resources to wage a credible campaign. I understand why this is the case, but it is unfortunate.

Still, there is a race and there is discourse. Last year, the much criticized Wisconsin Judicial Campaign Integrity Committee reminded us that judges have no constituents and judicial candidates ought not to suggest that they do. Although the Committee took "no formal action" against then candidate Michael Gableman (it had no power to do so), it expressed its concern about Gableman materials suggesting that, while Gableman supported law enforcement, Justice Louis Butler ruled too often for criminal defendants. Responding to a complaint from One Wisconsin Now, the committee said that the controversy:

reminds voters (as well as candidates and their supporters) that judges are not elected to “represent” the interests of any specific group or political agenda, as is commonly expected of candidates for non-judicial office. Rather, their role is to administer justice in a fair and impartial manner; to be arbiters of conflict, not spokespersons or representatives for various parties to a legal proceeding, such as law enforcement, prosecutors or defendants in criminal proceedings.

In an op-ed, Committee Chair (and State Bar President Tom Basting) wrote, in connection with same materials, that "committee members were very concerned about the choice of words used to illustrate these differences because they implied that candidates for judicial office represent (or ought to represent) the interests of specific groups."

While I agree that it is wrong to view judges "as part of law enforcement," I had some differences with the WJCIC on what that implies for judicial campaign speech, but there's no point in rehearsing it here. My question is different.

Where is the WJCIC? We know that it has been reconstituted for the 2009 election but it seems to have either come over to my side or to have nodded off. The Abrahamson campaign is out with an ad extolling the Chief Justice for being "law enforcement's ally." Again, while I think that judges are not supposed to be law enforcement's ally (and Chief Justice Abrahamson, for better or worse, is not), I would not complain of the ad for that reason. Criticizing opponents for being too "pro-criminal" or claiming that a candidate supports law enforcement is way of communicating a philosophical position in the context of a campaign ad directed to lay persons. These claims are not completely accurate and are somewhat hamhanded, but, then, most political advertising shares those shortcomings. (Whether this ad accurately conveys the candidate's philosophical position is another matter.)

But the WJCIC (and apparently One Wisconsin Now)sees things differently.

So where are they? Why isn't this ad "of concern" to members of the Committee? Why isn't its implication that judges have constituents or represent the interests of a specific group (in this case, law enforcement) a teachable moment?

Did I miss something?

Judical Campaign Talking Blues, Part 1

March law review madness has pretty much kept me from getting my blog on, so I have a whole slew of pontification on back order.

One of the things I am wondering about is campaign rhetoric in judicial elections. We all hate it, but why?

I have been thinking about it through the lens offered by one of my favorite law school professors, Duncan Kennedy. He said that there were two species of error in the way that non-lawyers think about the law. One is lay cynicism - the idea that judges do whatever they want to and that judging was just politics by another name. (There was, of course, a sense in which Duncan believed this - probably still does - but it was at a structural rather than decisional level.)

One of the things that I think we hate about many judicial campaign ads is that they appeal to this lay cynicism. The adverts excorciate an opponent for siding with criminals or corporations. They promise that candidate Joe Brown will support law enforcement and "keep us safe." They criticize a judge for enforcement of, say, the Fourth Amendment on behalf of a bad guy and illustrate the point with an empty swing or a dead body. We don't like the ads because they take an overly consequentialist view of the judicial role and mislead the public about the way in which the law might constrain the discretion of a judge and that broader interests may compel a result that, viewed in isolation, seems wrong.

But some critics of this type of campaigning advocate call for appeals to lay naivete - the idea that judging is a technocratic process in which political and philosophical differences are unimportant. Judges are technicians and legal acumen is all that matters. Judicial elections, they say, ought to be about qualifications, experience and endorsements.

This, in my view, is just as misleading. Those of us who consider ourselves "in the know" on the matter of judicial decisionmaking know that political and philosophical differences do matter. To pretend that they are not there is to see the law as Holmes brooding omnipresence in the sky. Something the cognoscenti know (or think they know) that it is not.

So how should judicial candidates conduct themselves? More to come.

Cross posted at Marquette University Law School Faculty Blog.