Murphy's take on the law not quite right

I was in Madison for the first day of the state Supreme Court's 2011-2012 term, arguing on behalf of the petitioners in Wisconsin Prosperity Network v. Myse. I am happy to report that the Court was fully able to function as a court with the Justices, who seemed well informed, attending to arguments and asking questions. Perhaps the rest of us can focus a bit more on the law and a little less on the drama.

But before I go, I see that Bruce Murphy is just not impressed with Ann Althouse and me. He thinks we apparently had no basis for criticizing Bill Lueders early report of the incident between Justices Bradley and Prosser and think events have somehow vindicated that view.

Here's the thing. Lueders' report was superseded within a few hours by a much more comprehensive report by the Journal Sentinel that placed the incident in an entirely different light and, as it turned out, was a far more accurate description of the event. Although Murphy says I failed to marshall facts in support of my criticism, the conclusion that offends him was immediately preceded by an argument that the almost contemporaneous reports of the view of more than one witness were much different than Lueders' initial report.

Of course, I am not saying that Lueders is a bad reporter. People in a position to know speak well of him. I just thought that this report seemed to be rushed out and was almost immediately shown to be incomplete.

In the same piece, Murphy reports some old news from a very good reporter, David Ziemer at the Wisconsin Law Journal, to the effect that Justice Crooks often joins with the conservative majority and, therefore, people who claim that there is a 4 to 3 liberal split are dumb, piling on Professor Althouse again.

I agree that Justice Crooks is less firmly in either camp than some of the others, but you have to look at a much smaller subset of cases to address the "liberal" v. "conservative" issue since not all cases present an occasion for that divide and, in some, it is much more salient than in others. Depending on how you define that universe cases, the description of a 4-3 split - while always only a rough approximation of a complicated reality - makes some sense.

Of course, I always try to qualify identification of judges as "conservative" or "liberal." These descriptions are not wrong but they aren't the same as when used in a nonjudicial context. They don't necessarily lead to results favored by the conservative or liberal political camp and judges operate in a far more constrained environment than politicians.

But Althouse and others are not wrong when they speak of a 4-3 split and no lawyer who actually practices public law in this state would dispute it.