Thursday, January 07, 2010

What Happens Next With Butler Nomination?

Update: Apparently, the administration is going to try again. The blogger known as the Brew City Brawler seems to think there is some inconsistency between this post and comments I made to a reporter at the Wisconsin Law Journal. Tom Foley wonders as well. For the three people who care, I respond below.*

The nomination of Louis Butler to the United States District Court for the Western District of Wisconsin has been returned. This means that he must be renominated and perhaps he will be.

I am not much impressed by the argument that Butler should not be approved for the federal bench because he lost two statewide elections. Federal judges are appointed by the President and it is hardly a surprise that President Obama would nominate judges with the views close to those held by former Justice Butler. If the voters wanted a different type of federal judge, they should have voted for John McCain. (As I spent some considerable time in the fall of 2008 arguing.)

Nor is there a competency question. Louis Butler is a very smart lawyer; clearly possessing the professional qualifications to sit on the federal bench.

The reason to oppose his nomination, if there is one, is that one disagrees with his judicial philosophy and political presuppositions. And I think that's what's been happening. The opposition to this nomination is yet another reverberation of the Court's 2004-05 term.

Whether the nomination is sent back to the Senate will depend, I suppose, on how much capital the administration wants to expend.

* In the WLJ, I was quoted as saying that “[w]hile one could argue that a person who has twice lost a statewide judicial race ought not to be elevated to the federal bench, I doubt that argument will carry a great deal of weight with the senators or the White House ...” This, according to Mr. Brawler, was a puerile attack on Butler's nomination and wonders whether I have flip-flopped.

I had forgotten that I commented to the WLJ on this. It is not clear to me why Mr. Brawler would regard those remarks as an attack or why he would be surprised that I am not impressed today by an argument that I said then would not carry much weight with the White House or Senate.

BCB wonders if I was misquoted or if other remarks were left out. It turns out that I e-mailed these comments to Jack Zemlicka so I know precisely what I said. I was not misquoted, but there was a sentence that Jack (quite justifiably) did not choose to print), After praising the nomination of my former partner, Bill Conley, I said:

"Justice Butler is also an excellent nominee in a Democratic administration.
While one could argue that a person who has twice lost a state wide judicial
race ought not to be elevated to the federal bench, I doubt that argument
will carry a great deal of weight with the Senators or the White House."

My point is that, if you want a judge with Justice Butler's legal philosophy, he is an excellent choice. As readers of this blog know, I have also said that he is a jurist of integrity and intelligence, albeit one that I often disagree with and who, for that reason, probably wouldn't be my choice. But when you elect a candidate like Barack Obama, this is more likely to be the type of candidate that will be nominated. If you don't want that, don't elect liberal Democrats to be President.

To belabor the obvious, there is absolutely nothing wrong with Jack Zemlicka omitting the sentence reproduced in bold. He obviously thought it more newsworthy to report a view that the election issue - which was being raised by a number of people at the time - would not carry much weight. That strikes me as a reasonable journalistic judgment.

100 comments:

Daniel Suhr said...

I think it's worth noting that only two judicial nominees were returned, Justice Butler and Magistrate Judge Chen of the Northern District of California. This indicates the political capital invested by Senate Republicans, and their allies on the outside, in defeating these two nominees, and increases the amount of pushing the White House will have do if the President chooses to renominate them.

Anonymous said...

What capital? The Republicans in the Senate voted on a nearly party-line basis to oppose the nomination of David Hamilton, a distinguished and capable judge who had the temerity to rule that beginning sessions of the Indiana Legislature with overtly Christian prayers violated the Establishment Clause. Of the Republicans, only Richard Lugar, the Republican Senator from Indiana, who was well informed by his lawyer constituents (including local Federalist Society types) of Hamilton's qualifications, voted for Hamilton. The Republicans in the Senate will vote to obstruct Butler's nomination no matter what. Obama can count on 60 Democratic and independent votes in support of Butler, a capable jurist supported by both home state Democratic Senators. He shouldn't have to do any arm-twisting to get their support. And they shouldn't yield to the obstructionist tactics of the opposition party.

Anonymous said...

The Federal Court has a larger responsibility then what J. Butler is qualified.

I cannot think of a thing he did on the Court that made Wisconsin justice system more trustworthy.

Anonymous said...

Anon 6:33. If you're going to wager an opinion on Justice Butler's record, it's best to be familiar with it. God knows what you mean by making a system "trustworthy," but I'll note that Justice Butler He wrote the opinion that said that criminal defendants do not have a right to lie to police (over objection from Justice Prosser, calling the opinion "too logical"). How does that not make a system more "trustworthy"?

Anonymous said...

Who is more qualified to serve on the Supreme Court? The idiot who graduated from the 4th tier law school?

Anonymous said...

"He wrote the opinion that said that criminal defendants do not have a right to lie to police"

I suppose you believe this qualifies him for the Federal bench?

A trustworthy court must be fair and impartial and I do not know of anything J. Butler did to assure people that they are.

Leaving the courts the way they were or worse when he was appointed is not acceptable qualification for a Federal appointment, in my opinion.

Anonymous said...

I agree with Rick that Justice Butler is qualified for many reasons, the least of which is his opinion that held defendants have no Fifth Amendment constitutional right to lie (compare J. Gableman's First Amendment assertions to the contrary). I pointed that out to help you understand how misguided your position on "trustworthiness" really is.

Otherwise, your position that J. Butler isn't qualified because you dont' know what he did is stiflingly stupid, which is exactly what Article III is meant to circumvent.

Brett

Anonymous said...

Brett -

You obviously have never hired or promoted anyone...your ignorance is excusable.

Anonymous said...

Butler wrote one opinion that was friendly to law enforcement. So what? Butler provided the crucial fourth vote to reverse two murder convictions, a sexual assault conviction and suppress evidence in another murder case. Butler also dissented from a number of cases where the convictions of violent criminals were upheld. It's bad enough that Lynn Adelman is a federal judge in Milwaukee. We don't need another hug-a-thug federal judge in Madison.

In addition, Butler cast the deciding vote to delay deciding Mark Green's appeal of an adverse Election's Board decision (which cost Green a large part of his campaign funds) until after the 2006 election. After Butler gave this gift to Jim Doyle (In return for his appointment?) Doyle attended a fundraiser for Butler's 2008 Supreme Court race. No conflict of interest there right? If I was a Republican I would seriously question Butler's ability to be impartial in any case were the Obama Administration was a party.

Anonymous said...

Obama announces he is renominating Butler shortly after Doyle proposes his global warming bill for Wisconsin.

Is this only coincidence?

George Mitchell said...

Lots of comments cloaked in anonymity.

Louis Butler's role in the Supreme Court's casino gambling reversal, and the many cases noted in Judge Sykes' Hallows lecture, speak to his "qualifications." Being smart is not enough.

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