Thursday, March 14, 2013

A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.


Anonymous said...

So the dear professor touts that Professor Fallone's run at the Wisconsin Supreme Court is simply a Seinfeld episode.

Professor, please check your facts. Incumbent justices have actually been defeated 3 times in Wisconsin--Michael Gableman defeated incumbent Louis Butler in 2008.

Now, in the link provided, Esenberg ever so nicely says that Fallone is a "bright and capable member-in-good-standing of the law-professor Left."

That's it. No background. No evidence. No analysis. Professor Esenberg, do you allow your students to make such claims without direct proof?

Moreover, Esenberg contends that Fallone's only reason for running is that he "will somehow bring peace to a court that has bickered publicly and even seen a physical altercation among its members."

Sir, Fallone reiterated the words of Justice Gableman that the Court was in a "constant cycle of hostility, recrimination, and ill will". Professor, are you also willing to take to task Gableman's assessment of the situation? Do you allow your students to offer an argument without even providing the background or context?

Here, please familiarize yourself with Fallone's specific reasons on his position.

Furthermore, why is it that this "theme is unlikely to excite the body politic?" regarding the desire by Fallone to ease tensions within the Court and repair its reputation among Badger State citizens? Any evidence, Professor Esenberg, to back up your assertion?

According to a poll conducted in 2011, Wisconsin voters seemingly distrust the inner workings of the Supreme Court. Do you not think that they would at the very least consider Fallone's reasons as to why he is seeking that prestigious judicial position?

Anonymous said...

What is Fallone's position on the Latin Kings?

Anonymous said...

"What is Fallone's position on the Latin Kings?"

Irrelevant and immaterial to the thread. Go back to bed and sleep it off!

Besides, how long has the interaction between Fallone and Fonatanez been a matter of public record?

Is it really a surprise to anyone, though, that the mouldering, zombie corpse of this "character revelation" is dug up from the March-thawed ground and re-animated?

Nicely timed for the spring election (Apr. 2), in a few weeks? Reminds me very much of the ethically-and-factually-challenged "Loophope Louie" paid-for political ads that Mike Gableman ran against Judge Butler in their Supreme Court election campaign.

Tom said...

Anon 1, check your own facts. Esenberg was counting all incumbents who had been defeated in elections, only incumbents who had previously been elected (which Butler had not - he had actually lost a previous election bid against Diane Sykes before being appointed by Doyle), who were subsequently defeated in election.

Anonymous said...

Anony1 here. Tom, the Professor did NOT make that distinction in the article. He simply made reference to incumbents. You are covering for his lack of explanation. Commendable. Now, what say you about the gist of my argument?

Tom said...

Wow, you get a chance to correct your mistake and still get it wrong.

From the professor's article - "the only two incumbents who had ever been elected to the Court to subsequently lose"

Anonymous said...

Tom, regardless of Anony1's mistake, do you have anything of substance to address his/her points? You seem hell-bent on this minor quibble.

Tom said...

Nope. My New Year's resolution was not to debate opinions with anonymous people on the internet any more. But there's too much teacher in me to let obvious factual mistakes slide.

Anonymous said...

Anony 5:43 p.m. here.

Seriously, Tom, you are also anonymous! There is NO information about you. You could be Tom from Tom and Jerry.

It's a mere cop-out on your part, similar to George Mitchell. Too bad...