Saturday, December 29, 2007

Speculating on McCain

We have only a few more days to await the verdict of the people of Iowa. I admit to being put off by our emphasis on early contests in two small and unrepresentative states. They wouldn't matter if we said that it didn't.

What I find interesting this morning is the divide between the preferences of Republicans and Democrats and the head to head match-ups. The aggregation of polls at Real Clear Politics shows that two candidates who generally run poorly in national partisan samples are the strongest general election that either party could field: John McCain and John Edwards.

BY RCP average, McCain beats Clinton, ties Obama and loses to Edwards. All other GOP candidates, on average, lose to all three Democrats. Clinton and Obama beat everyone but McCain and Edwards beats all GOP challengers.

I don't presume that this is the final word on these matters and the difference between Obama and Edwards is rather slim. (Obama does a little better against Giuliani), but look at the national partisan polling. Clinton still has a huge lead on Obama and Edwards runs a very poor third. McCain runs a closer third, but he is still third.

It's easy to see an Obama nomination but less so for Edwards. He's doing well in Iowa but nowhere else. I don't see how anything other than a clear win in Iowa breaks the Obama/Clinton dynamic.

On the GOP side, McCain is not in Iowa and is in striking distance of Romney in New Hampshire. It seems like he has to hope for a Huckabee embarrassment of Romney in Iowa (maybe coupled with a surprisingly strong third place finish for him) and wins in New Hampshire and Michigan that make it a Giuliani-McCain race. The idea would have to be that the social conservatives unite behind him and that he undercuts Giuliani's advantage on national security.

Two problems with this scenario: Does McCain have the money and has he irritated GOP regulars with his perceived pandering to the media in a way that cannot be forgiven?

If he does, there is the possibility of two intriguing general election matchups. One would be intergenerational. John McCain is 25 years older than Barak Obama. (He is almost exactly my mother's age!) Will we elect a guy who will be 72 on Inauguration Day?
The Clinton-Dole race, to me, reflected the fact that we are just a tad youth obsessed here.

On the other hand, one of Obama's weaknesses is his lack of experience. The guy is three years out of the Illinois legislature. Are we really going to make him the most powerful leader on Earth? That strikes me as less than serious.

Just as intriguing - maybe more so - is a Clinton-McCain matchup. McCain is not a boomer but he stands in for one side of the sixties divide over Viet Nam and the values of the counterculture. Hilary was on the other. How are we going to react to fighting that war again?

Thursday, December 27, 2007

Man born without sense of Irony?

Mike McCabe of the Wisconsin Democracy Campaign ,responding to allegations that the group's failure to file a complaint against a couple of pols who may have violated state ethics law in promoting an issue that WCD's partners and donors overwhelmingly support, struggles with a tagically impaired sense of self awareness:

"When an issue comes up, McCabe said he never consults the interest groups supporting his organization. If he did, he said, it would all but paralyze his outfit.

"We decided a long time ago that we just have to go out there and look honestly at where the money's flowing and call 'em as we see them," McCabe said.

"There's always going to be somebody mad."

It must be quite a burden to have, as your life's mission, to do what you believe that almost no one else can. This must be why WCD shouldn't have to disclose where its money comes from. Because, you know, it doesn't matter.

Tuesday, December 25, 2007

Merry Christmas from the Shark and the Shepherd

From Benedict XVI's Christmas homily:

The message of Christmas makes us recognize the darkness of a closed world, and thereby no doubt illustrates a reality that we see daily. Yet it also tells us that God does not allow himself to be shut out. He finds a space, even if it means entering through the stable; there are people who see his light and pass it on. Through the word of the Gospel, the angel also speaks to us, and in the sacred liturgy the light of the Redeemer enters our lives. Whether we are shepherds or "wise men" - the light and its message call us to set out, to leave the narrow circle of our desires and interests, to go out to meet the Lord and worship him. We worship him by opening the world to truth, to good, to Christ, to the service of those who are marginalized and in whom he awaits us

Sunday, December 23, 2007

Christmas peace revisited

In response to my column in the Journal Sentinel in the Christmas wars, I got a few comments - here and by e-mail - and I wanted to acknowledge those and comment on Dan Barker's opposing piece.

A few commenters thought it odd that a law professor would say something as simple as "get a grip." Of course, I said it after alluding to the ways in which we could have a lengthy and complicated discussion about the place of religion in public life in some context other than an 800 word op-ed. I also said I would not discuss what the law is (to the extent anyone can say) because that's not what my assignment was.

But, believe it or not, sometimes a little bit of common sense goes a long way in the law. If it seems odd to you that Merry Christmas on the City Hall marquis is regarded as an establishment of religion, it may just be because it is odd.

A few commenters raised the historical argument. Don't we have a "Godless Constitution?' The answer is "yes" and "no." It is quite clear that the framers thought that compulsion in matters of religion was both wrong and impossible. I think is also clear that they contemplated a separation of church and state. This is why I don't agree that America is a "Christian Nation."

But that doesn't mean that they intended to construct the type of formalistic wall that Dan Barker thinks ought to exist. In Dan's world, even the slightest whiff of religion in association with the government ought to give us a case of the vapors. However much Dan thinks this is hardwired into our Constitution, we actually got through most of our history without it.

In the past, some commenters have criticized people like David Barton who argue the "Christian Nation" hypothesis. I agree that this is usually "law office history," picking and choosing what supports a desired conclusion. But those who argue for the absolute wall do the same thing.

Such a concept would, moreover, be anachronistic in that it does not rest well with the modern pervasiveness of government. The commenters see a world in which areas of life that are too closely associated with government or public life are to be religion free while people pursue their individual faiths on their own and out of sight.

But, when government gets involved in much of our lives - teaching our children, freeing us from our addictions, pulling us from our poverty, instructing us on public morals - a religion free public square is not a neutral one. If government is going to tell us how to live (a prospect that the founders probably did not have in mind), then it can hardly avoid involving itself in matters where religion is concerned.

As I suggested in the column, this has an impact on religion because most scholars now believe that religion is formed in community and affected by what goes on around it. If you create an environment where religion is to be kept in the dark, you do one of two things. You either eviscerate it or you make it a counterculture that exists precariously within the larger culture.

For these reasons I have concluded that a less ambitious establishment clause is in order. We can't be neutral. We can't be absolutely even handed. We can be respectful and defend freedom of conscience. But driving Christmas from the public square does not serve either.

This doesn't mean that we ought to put the government into the religion business. That would be a horrible mistake. But it is where "get a grip" comes in. Creches and Christmas Trees are not the first step to Inquisition.

So I think its ok for merchants and even, to a limited degree, the government to acknowledge the religious nature of the holiday. Some ask how we are to decide which holidays are recognized? That's a fair question but, at the level of trees, creches and celebratory messages, I don't think it ought to be constitutionalized. My guess is that we will see acknowledgement of the Jewish High Holy Days and Ramadan. We won't see the celebration of L.Ron Hubbard's birthday.

Some commenters raise examples of Christian intolerance, including a much circulated story about how some kids claiming to be Catholic abused some Jewish kids on a subway.

Do I think that's ok ? Given that my sweet little grandson is about to enroll in Jewish Day School, I think it's fairly obvious that I don't. I might add that, assuming the story's accuracy, if Christian kids are abusing Jewish kids on the subway, the former are in need of remedial Sunday School.

But I don't think acknowledging Christmas will let loose packs of Christians wilding in the streets. If anything, it's telling people that they ought to shut up that breeds resentment.

One commenter leaves me with the lyrics (all of them) to Jackson Browne's "Rebel Jesus" in which he channels John Dominic Crossan and a smug teenage boy. I know the song. It's on a Chieftan's Christmas CD that we have. I heard it just the other day.

My first reaction is always to wonder how I missed all the "heathen" and "pagan" eleemosynary institutions that must populate Jackson's world. Where is the Bertrand Russell Center for Cardiac Care and the Wiccan Magic Circle and Heart Hospital? Because we know the Christians couldn't have started such places.*

But it's Christmas, so if Jackson means (and the commenter intended) to remind Christians that their faith means something the year around, I heartily agree.

Finally, both Barker and some commenters let the guard slip. These creche scenes are offensive because they tell us that we are not perfect in and of ourselves. We are in need of redemption and subject to a higher standards than our own preferences.
The source of that redemption is not in power or genius, but in love; a revelation that mocks our pretensions and has been a scandal for two thousand years.

So, for those who keep it, Merry Christmas.

* At the risk of belaboring what should be obvious, I know that people of other belief systems do charitable works. I'm commenting on Browne's "Gee, Mom & Dad and their lousy society are no good hypocrites" tone.

The Shark on Dead Tree

I have a column in today's Milwaukee Journal Sentinel. I will be writing for the Crossroads section on a semi-regular basis.

Friday, December 21, 2007

Another limit on state religious impositions

You know that religion is way into politics when Tim Rock is prooftexting.

I am intensely interested in the intersection between religion and politics and public life. I believe that the latter must inform the former, but that the impact it will have is always mediated by individual conscience and empirical judgments. Faith will tend to identify the values to serve, but not the particular policies that will serve them.

In connection with some scholarship that I am working on, I have been dipping into theological writings on worship. Here is what a scholar named Gordon Lathrop, writing in a book called Holy Ground, has to say regarding the implications of the Christian Eucharist:

"Participants in the eucharist ought to be seen as fiercely questioning any easy cultural assumptions: that what we are is equal to what we own; that we may have all the energy we want, that what vehicle we drive is nobody's business but our own but our own; that we should have a great variety of foodstuffs and clothing, building materials and consumer goods,drawn from all over the wood at very low prices; that other people's salaries or poverty are not connected to our habits of consumption."

I actually agree with this, although I would add that Dr. Lathrop (and every one) should also fiercely question the easy (and erroneous) assumptions about economics that seem to lie behind this passage.

But holding up the underlying value of interconnectedness and regard for others is just good Christianity. (Yes, I agree that other faith traditions may do the same thing.) Just what it means in the world is for us to work out.

But, as we work it out, there should be a presumption against culture and the imposition of any one solution by the state. Look at the breadth of the Lathrop quote. Placing in the hands of the government - even a democratically chosen one - such power over life is a prescription for tyranny.

There is a difference between hearing an admonition to care for the poor and any particular anti-poverty policy or, for that matter, voting to compel your neighbor to care for the poor. Easy prooftexting is dangerous on the left as well as on the right.

Thursday, December 20, 2007

Reviewing the WIsconsin Judicial Integrity Committee

The Wisconsin Judicial Campaign Integrity Committee has released its response to One Wisconsin Now's complaint about some campaign literature put out by Supreme Court candidate Mike Gableman.

In a three paragraph statement, the following words are the only one that purport to address the Gableman communication: "While the Committee has decided that no formal action is necessary ...."

What does this mean? The committee is not empowered to take any "formal action" or to do anything other than what any other citizen can do. Does the committee mean to say that it thinks that Gableman communication does not violate the rules? Or does it mean to say that it might, but its not bad enough to warrant further action?

Having said as little as it did about the actual issue it was asked to comment upon, the statement goes on, at some length, about the nature of the judiciary and campaigns that seems to be intended as an indirect criticism of the Gableman piece. If so, it must be rooted, not in a belief that he has violated any rules, but in a sense of the committee that his literature was not to their taste.

The money line seems to be that "advertisements that state or imply that a candidate who has been or will be biased in favor of a particular party to the legal system undermine public trust and confidence in a fair and impartial judiciary."

Did Gableman do that? One can certainly read the statement to imply that but, with all due respect, if you are going to assume the mantle of an impartial arbiter of the propriety of campaign discourse, it behooves you to be clear about such things. If you think a candidate did something that he should not, say so and explain why. Don't try to sneak in an elbow.

As for the statement as it applies to the Gableman literature, you can always argue that the statement was crude. This is going to be true of many advertisements in judicial campaigns because a full and complete explication of the issues is going to be beyond the limitations of most forms of campaign communication and, perhaps, beyond the understanding (or, maybe more accurately, the interest) of the general public.

Having said that, it seems to me that one of the ways in which judicial candidates can differ is in their philosophy regarding the scope of procedural protections for criminal defendants. This doesn't mean that a one candidate is always going to side with the prosecution and the other with the defense (to be specific, Justice Butler has not done that), but that they have different views of the proper balance to be struck in those cases where people can differ over what the statutes and Constitution require. For example, I think it's fair to say, that one of the ways in which former Chief Justice Rehnquist differed from former Justice Brennan was in their conceptions of the precise nature of the 4th and 5th amendments.

There are traps in the public discussion of such issues because lay people are likely to undervalue the rights of the accused, but we in Wisconsin have decided to elect judges. If the committee means to suggest that the identification and discussion of these differences is beyond the pale of appropriate campaign discourse, we are going to be left with a somewhat sterile debate.

And, in light of the prospect of substantial money being spent on this race, what are the implications of the statement for arguments that a candidate will be beholden to the interests that contribute to, or spend money on behalf of, his campaign? Does that undermine confidence and trust in the judiciary? Will OWN follow the committee's advise on that issue?

It is possible that the statement reflects a divided committee and is a compromise of competing views. I would have argued against a compromise statement. If an issue brought to the attention of the group is such that the members differ, then it seems to be more candid and instructive to say so rather than to forge a false unanimity. If intelligent and reasonable lawyers disagree on what a standard requires, then I think it informs the public to say so.

Wednesday, December 19, 2007

The myth of public financing

Bruce Murphy says the Supreme Court is at risk due to independent expenditures and calls for public financing.

I agree that the need to raise money in a judicial campaign has an impact on who runs. One impact, that Murphy and few others note, is the rise of self funded candidates. Although they might be good justices, a credible case can be made that at least three members of our Court might not be there if not for their ability to devote personal wealth to their campaigns.

Of course, that's a phenomenon that we see in all sorts of campaigns. It doesn't result in conflicts of interest. We get candidates who will be "nobody's Senator but yours," but who might also be nobody's choice if they didn't have so much wallet.

Public financing actually might solve that problem, but it won't solve the one that Murphy and others seem most currently exercised over.

What upsets them about the last Supreme Court election is not the money that Clifford and Ziegler raised, but the money that was spent on their behalf by others; mostly by WMC for Ziegler.

If someone is willing to spend that type of money on behalf of a self funded candidate who does not lack for campaign money, why wouldn't they spend it on behalf of a publicly funded candidate?

As I have written before, it is highly unlikely that any public financing bill can constitutionally stop groups from running issue ads during a campaign.

If that's true, then public financing might address the advantages of self funded candidates and the need to raise direct contributions, but it won't solve the problem that its advocates seem to emphasize as its rationale. Advocacy groups will still spend.

Tuesday, December 18, 2007

Felony silverware possession

I don't bash public school teachers or even administrators. As I have said before, my sister in an administrator in MPS and my daughter-in-law just started teaching at an MPS high school. I have a brother-in-law who works as a guidance counselor and a sister-in-law who is a physical therapist in a public school district.

So I can't believe that most public schools would have a little girl arrested for bringing a steak knife to school to use to ... cut steak.

But here's my question. The actions of the school officials seem to reflect a level of stupidity that I have never encountered in any organization with which I have been affiliated or even remotely acquainted. I have met very few individuals who would be dumb enough to do this.

I guess I can understand having a policy that prohibits kids from bringing things like steak knifes to school. But having the kid arrested? Suspending her for ten days?

Yet this isn't really an isolated story. We've heard of actions like this before.
My sense is that this is a product of a mentality that regards the "weapon" itself as intrinsically evil. Sort of like an evil totem that infuses its spirit into those who possess it.

Can anyone - anywhere - defend this?

Inquisition by plastic angels

I have a piece in this coming Sunday's Journal Sentinel on the Christmas Wars, so I don't want to address that directly. I do want to comment on the battle of the Green Bay city hall.

It's turned into a mess. The city seems to have tried to deflect any constitutional objection by turning the city hall into a limited public forum. This concept applies to circumstances in which government has opened up something - usually a building or a meeting room - for use by private speakers. The government has some leeway in setting the subject but none in picking and choosing among viewpoints. So, if it permits a library meeting room to be opened up to discuss contemporary issues, it can't exclude any point of view on contemporary issues and, the Supreme Court has made clear, cannot exclude religious perspective on those issues either.

Having done this, it has to permit Wiccan displays. It would have to permit atheist displays. It has to accept the Festivus pole. It may even have to accept the Flying Spaghetti Monster. It turns the roof into a a Babel of conflicting symbols. It makes it a farce.

The proper way to do this, lawyers will tell you , is to include various symbols of the Christmas season. Throw up Santa Clause, include a Menorah and maybe you can sneak in a creche.

My own view is that government acknowledgement of the fact that most of its citizens are celebrating a religious holiday ought to present no real constitutional problem. It doesn't establish religion. It doesn't oppress nonbelievers. Government ought to act with sensitivity to minorities but attempting to enforce a rigid rule of neutrality among any and all symbols imagineable is a fool's game.

However, we can be sure of this. If the Freedom From Religion Foundation has the time to worry about ceramic figures in Peshtigo and Green Bay, we can be fairly certain that there is no real threat of theocracy.

Monday, December 17, 2007

WMC is giving the state nuggies

Paul Soglin calls WMC a "bully" because ... well, it's not clear why. He is unhappy because they talk about Wisconsin being a state with very high taxes. Can Paul prove this is not the case? No. We are a high tax state.

But WMC apparently should not say so because when you take all sources of revenue into account, we doesn't rank as high. The reason is said to be that we have lower user fees and get less federal money, but any way you crunch the numbers, Wisconsin's spending is above average.

I also suspect that WMC might hold Paul and administer and atomic wedgie while arguing that taxes are not the same as user fees in their economic impact.

The impetus for Mayor Soglin's most recent missive is the release of the Institute for Legal Reform's study on liability law in the 50 states. In 2006, Wisconsin was ranked 23rd. In 2007, it moved up to tenth. WMC apparently put out a press release last year, but not this year. That's shocking. An advocacy group acting like persons who advocate.

(Actually, WMC appears to have linked to the 2007 study on its website almost three months ago, but whatever.)

Paul doesn't like the study because it surveys, well, people like me. People who have represented national companies on liability matters. He writes "{i]t is not a cross section of the public, it is not even attorneys who represent ordinary people. All 1,599 attorneys are corporate attorneys representing the interests of a narrow element of our society." (This would be the one that creates jobs.)

It's certainly true that if we surveyed a group of plaintiff's lawyers, we'd get a different result. (Ordinary citizens would not, I think, have much of an opinion.) But the point of the survey - and WMC's use of it - is to focus on how the state is viewed by business and on how that might affect job growth and the overall economic climate. Surveying people who deal with this stuff on a daily basis does not seem like an unreasonable thing to do.

But doesn't the survey say that we improved? I guess, although I can't imagine why. Nothing really happened that would have warranted a dramatic change one way or the other. Maybe other states got worse. Maybe a different sample saw things differently.

We can argue about what this means but I am not sympathetic to Paul's implication that WMC is to be criticized for being critical of the business climate in the state as if too much candor will drive others away. If the business climate needs to be improved, it does. I can see no virtue in pretending otherwise.

Saturday, December 15, 2007

The Other N Word

The Brew City Brawler is up in Patrick McIlheran's face for supposedly suggesting that Hitler was a "liberal," He burns down that straw man but can't quite avoid the temptation to say that, no, Hitler was sort of like an American conservative.

Patrick did not say that Hitler was a liberal. He suggested, in one sentence, that Hitler cannot really classified as being "on the right" as we use that term in the US in 2007, cited to a recent work that suggests Hitler bought the loyalty of Germans with an elaborate welfare state based upon plunder of the property of Jews and of occupied territories.

On that score, I think he is right. Hitler was not exactly a limited government type of guy and no advocate of property or free markets. As for our contemporary religious right, he hated Christianity as well as Judaism, although the Nazis certainly attempted to co-opt Christianity for their own ends and too many Christians were happy to be co-opted.

Of course, this doesn't mean that he was anything like an American liberal and Patrick made no such claim.

Patrick's point was that some people us the term "right" to refer to anything they don't like.

Other folks do the same thing with the term "left." I don't have the link but it seems to me that during the local Coexist wars, someone posted about Islam being a religion of the left and Christianity a religion of the right. That is just ignorant nonsense. Chritianity identifies values and makes claims about the nature of human beings that are full of implications for politics - they provide the raw material with which we work - but just as there is no male or female, Jew or Greek in Christ (Gal. 3:28), neither is there Democrat or Republican.

Friday, December 14, 2007

Contributions and Recusals

My sometimes Backstory colleague Jim Rowen begs to differ with my thoughts on the recusal of Supreme Court justices and what can be accomplished by the public financing of Supreme Court elections.

He bases the first on my comments in an interview by Patrick Marley that were paraphrased in an article in Thursday's paper on the Wisconsin Supreme Court's deadlocked decision in a case involving the ability of a town to declare a development moratorium.

The paraphrase was reasonable. My point is that recusal by a justice on a collegial law-developing court ought to be undertaken with great care. Justices are elected to decide and, unlike in a lower court, no one will replace a justice who steps aside.

Jim thinks that Justice Ziegler should have stepped aside anyway but that's a subject that I did not comment upon. In fact, I made it clear to the reporter (Patrick Marley) that I had no opinion on her decision to recuse herself in this case. I said that's a call for her to make. Marley was I thought appropriately careful not to imply that I was saying anything about Justice Ziegler's decision in that case.

I disagree with Jim, however, to the extent that his comments can be read to meant that she ought to recuse herself because her political opponent have made her "radioactive" or that she ought to do something other than what she would otherwise think is right because of her pending disciplinary matter. The former, in particular, would make justices hostage to public pressure.

Jim is in favor of public financing because he wants to wring money out of judicial elections. But, as I pointed out in the post to which he is referring, it is unlikely that any public financing bill that is constitutional can do that.

Emoting on waterboarding isn't enough

It seems to be that much of the debate about the use of waterboarding on suspected terrorists involves posturing rather than a willingness to address the tough issues presented by using extremely aggressive interrogation techniques to attempt to avoid extremely harmful events. Here's where I think the deabate gets off the rails.

Does it matter whether waterboarding can be called torture? Let's put aside whether it fals within the statutory of torture so we can focus on the question of what the law ought to be. I think it certainly can be called torture, although it is still substantially different from forms of torture that inflict bodily harm. It does not result in physical injury (although I suspect that there is always a risk involved in inducing extreme stress), but it also seems to be extremely unpleasant and terrifying. Call it torture, but does that answer the questions we are presented with? I suggest that it does not for the following reason.

Few people really believe that torture is never justified. Imagine that we have uncovered a plot to detonate an old Soviet nuke somewhere in New York. We know that the weapon is in country but we don't know where it is or when it will be detonated. We have captured one of the plotters but have been unable to crack him through traditional interrogation techniques.

Should he be waterboarded? It won't kill him. It won't injure him. It might save millions of lives.

You can't duck this by saying that torture "doesn't work." Experts who advocate waterboarding in this type of situation are not sadists. There is a difference between waterboarding to extract a confession and doing it to obtain objectively verifiable information to prevent an attack.

Unless you can say that you would allow New York to blow up rather than waterboard, then you cannot advocate a complete ban on the technique.

If you are willing to let New York go, I think you are in a very small minority. The fact that leading Congressional Democrats, including Nancy Pelosi, were aware of waterboarding and raised no objection until its use became public and the political winds had shifted underscores this.

(Incidentally, can Pelosi's conduct on this issue be described as anything other than reprehensible? How can you fail to raise an objection to something and, then when it becomes public (and is no longer being used), act as if those who did what you wanted them to do were immoral and criminal?)

I don't think that you can avoid answering by saying that this hypothetical could never happen. The former CIA agent who has said that Abu Zubadayh was waterboarded says that the information that was obtained disrupted "maybe dozens of attacks."

But I agree that it will be a rare circumstance and suggest that those who advocate waterboarding somethimes miss the following.

Permitting waterboarding is dangerous and requires stringent limitations. Although waterboarding may not cause permanent injury, it does involve the infliction of extreme discomfort and panic and risks opening the door to other more damaging forms of interrogation. (I am less moved by the argument that it subjects American captives to harsh interrogation because I think they would be anyway.) It should never be used to extract confessions or uncorroborated accusations. It seems to be that it ought to be used only to prevent serious attacks that we have reason to believe (from other sources) may be in process and only upon Presidential approval with Congressional disclosure. It should not be used in circumstances when the Geneva Conventions apply.

If you accept those guidelines (or can think of better ones that would still acommodate my hypothetical), then isn't the prohibition passed by the House a bad bill that ought to be vetoed?

Wednesday, December 12, 2007

Let's talk about issues - judicial and otherwise

I had a very pleasant morning in Madison speaking about the Wisconsin Supreme Court with members of the Center Right Coalition. Denizens of the local blogosphere might have recognized attendees like Steve Eggleston, Brian Fraley, Christian Schneider, Jo Egelhoff and Deb Jordahl. (If I missed anyone, I apologize.) A number of other political movers and shakers were also present.

I then came home and hosted a very enjoyable and pleasant discussion of the presidential elections with some faculty colleagues of varying political bents and, finally, sat civilly at the US Cellular Arena while the Reddess, clad in the cardinal and white of her alma mater, cheered (kindly and gently) Wisconsin's obliteration of my inept and uninspiring Milwaukee Panthers. So I am feeling very civic.

Some of the questions and comments in Madison were around the newly formed Wisconsin Judicial Campaign Integrity Committee, a group of private citizens that proposes to comment on the nature of campaign discourse in the coming Supreme Court election.

One Wisconsin Now has apparently "filed" a complaint (actually asked this group to comment) on some campaign literature distributed by candidate Michael Gableman. It has announced that the group has "accepted" its complaint (more accurately, it has said it may comment on the issue OWN has raised).

I have not seen the literature in question but apparently it criticizes certain past decisions of the Court in which the incumbent Louis Butler was in the majority. OWN wonders whether (more accurately argues that) this is in violation of SCR 60.06(3)(b) which says that a judge or candidate for judicial office shall not "with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office." OWN suggests that some of these cases "concern" issues that could return to the court "in another consideration of the same issues."

A few things should be kept in mind as we work our way through this. First, this rule implicates First Amendment concerns. In a case called Republican Party of Minnesota v. White<, the Supreme Court considered a rule of judicial ethics in Minnesota that precluded judges or judicial candidates from announcing his or her views on disputed legal issues. It held the rule unconstitutional as an infringement of free speech unjustified by any state interest in ensuring judicial impartiality.

Here in Wisconsin, Wisconsin Right to Life send questionnaires to judicial candidates asking for their personal views on certain issues that might be involved in future cases. Some candidates declined to answer, stating that this rule (and a few others) precluded them from answering.

In Duwe v. Alexander, a federal district court held that this rule (and others) did not or constitutionally could not preclude answers to the relevant questions. With respect to 60.06(3)(b), the district court (Judge Shabaz) said that 60.06(3)(b) was constitutional on its face, but apparently only because he read it to apply only to an actual commitment to decide a case in a particular way. He held tht it could not be applied to bar answers to WRTL's questions. An opinion or statement of a predisposition on an issue was not barred by the rule.

I think, then, that it is highly unlikely that this rule could be constitutionally applied to prohibit judges or judicial candidates from discussing past decisions of a court. In fact, when Justice Butler spoke recently at Marquette University Law School, he discussed several of the more controversial cases from the past few terms and these cases did, as almost every case does, involve issues that might come before the court again, particularly "in another consideration of the same issues."

I don't criticize him for that. To the contrary, even though I strongly disagree with the outcome in at least one of the cases he discussed, I applaud him for his candor. It's what we ought to be talking about.

Monday, December 10, 2007

The futility - and maybe the undesireability - of public financing

All seven justices of the Wisconsin Supreme Court have signed a letter calling for public financing of judicial elections. I can sympathize. The need to raise money is one of the worst things about running for office and has been made worse - over the past thirty years - by campaign finance regulation. It used to be that a promising politician like Eugene McCarthy or George McGovern would capture the interest of someone like Herb Kohl or Jon Corzine to fund their campaigns.

But contribution limits forced candidates to fill their campaign bucket with a teaspoon, such that a candidate's pre-campaign notoriety and ability to dial for dollars control everything. Because you can't constitutionally prohibit people from spending their own money, now Kohl and Corzine (or Forbes), rather than support someone who actually has the skill set to be an effective public official, run themselves. Nothing against the rich guys, but you tell me which system was better.

One problem with public financing is that it is likely to be at a low level (particularly if it is voluntary), thus making challenges to incumbency even more difficult than they are now. Another is determining who qualifies. Set the threshold too low and it gets too expensive. Set it too high and the purpose is compromised, if not defeated.

But the largest problem is that you can't shut up people when their interests are at stake. Who is on the Wisconsin Supreme Court or in the Senate - matters a great deal. Focusing on judicial elections, to the extent that the Court feels itself relatively less constrained in the interpretation of constitutional and statutory language and, therefore, freer to do "what is right," it starts to look more like a political institution and people will treat it accordingly.

So if you prohibit people from giving to candidates, their dollars will move to independent expenditures. After the Supreme Court's ruling in Wisconsin Right to Life v. FEC, it is unlikely that any law can constitutionally prohibit issue ads during an election.

I don't think that this is all the terrible. There seems to be plenty of money on both sides of the aisle. It's messy and imperfect but seems preferable to the suppression of speech.

But I want to be provocative. One of the dangers of democracy is that an unrestrained majoritarianism succumbs to demagoguery and a majority votes to pick the pockets of the minority. We have generally removed the constitutional constraints on this.

The founders, particularly Madison, felt that balancing factions against one another helped to secure liberty. Is there a sense in which allowing those with resources or an intense interest in the outcome to use those resources to get their message out serves as a hedge against the triumph of class envy and the associated destruction of the golden goose that is the free market?

Knock yourselves out.

The Shark in Mad Town.

This Wednesday at 9, I will be speaking at a meeting of the Center Right Coalition at the Madison Club.

The subject is the Wisconsin Supreme Court. I understand that there will be free food.

What's the matter with Huck?

It's shock and awe for Mike Huckabee right now. When you are taking incoming at the HuffPo and National Review Online, it's got to feel all Bastogne.

I am not a Huck supporter, but I am intrigued by the animosity he raises on both the right and the left. Could there be a whiff of realignment in the air?

In books like What's The Matter with Kansas. left liberals have lamented "social values" voters who often have lower incomes and frustrate the left by refusing to "vote their pocketbooks," i.e., support candidates who advocate greater redistribution of income. Similarly, politicians who appeal to those moral values can't really mean it. It's the cynical exploitation of "wedge" issues.

These social values voters are told that they need to come to their senses and get over their attachment to quaint moral niceties. They need to make common cause with Democrats who, while they may support what these folks regard as moral license, will at least try to throw them a few more bucks.

There are, of course, huge problems with this. First, it assumes that redistributive policies will make Kansas better off and that Kansans should have no moral objection to taking someone's money. It's possible that Kansans might beg to differ.

Second, it assumes a separation between social and economic issues that may not be there. One of the tragedies of the modern left (both here and abroad) is that it tends to forget that economic prosperity requires a cultural capital that is not itself a function of economic materialism. This wasn't always the case. I think a very good argument can be made that the sexual revolution, whatever good it has done, is also indicted as a co-defendant in the persistence of the underclass in a prosperous country. Maybe they know that in Kansas.

But let's assume that there is a disconnect between the social values and economic interests of these voters. Why should they reconcile them by throwing their social values away? Why not demand a candidate that will cater to both? Maybe nothing is wrong with Kansas. It's just that the political parties have forged world views and coalitions that aren't how they see things in Topeka.

Huckabee offers a mix of economic populism and moral conservatism that we don't generally see anymore. I do not believe that he would abandon free market principles but it does seem likely that he would govern to the left of the GOP platform on economic issues in some rather significant ways. At the same time, he is likely to be a champion for moral conservatism.

So there is something for both Democrats and Republicans not to like and, perhaps, to fear.

Thursday, December 06, 2007

Mitt Romney is no JFK. His speech was better.

What do we think of Mitt Romney's speech on faith and politics? People are comparing it to JFK's speech to the Houston Baptists in 1960, but it's very different. Kennedy spoke at a different time, but, for ours, Romney's is far more profound.

Kennedy went to great lengths to essentially say that his faith was a private thing, unlikely to affect anything that he did in public life. I am unconvinced that was or could be true, but it may have been in keeping with a time that had not yet learned what the "absolute separation" of religion and public life would mean.

Romney did not make the same claim. Faith, he said, is important. But what is important, in politics, is the way in which faith informs public life, i.e., how it impacts temporal policies. He acknowledges that it does. But Romney says that his Mormonism, in that regard, is within the best tradition of the Abrahamic faiths. It says things about the value of all human beings and the value of freedom that are ultimately consistent with what most of us believe.

What I find odd about the reaction to this is the extent to which some people, who could care less about contentions regarding a God in which they do not believe, want to say that Mormon views about the nature of the reality we cannot see (and which they think is not there) differs from those of mainstream Christianity. So we see atheist bloggers on the HuffPo getting into debates about the nature of Christ that we have not seen since Nicea. Don't you see, they claim, he is theologically unsound

You know what? I think he is. You know that else? It doesn't matter. People can believe all sorts of things about the nature of God, but if the distillation of that into how we live today is consistent, then we can, despite our theological differences, make common cause.

There has been some criticism about the lack of a nod to those who do not believe. During Backstory on WMCS last night, my colleague Dave Berkman tried to argue that Romney was saying that atheists ought to be excluded from the political process. (Ironically, Dave went on to argue that people of faith should keep it entirely out of politics, even, at my instigation, criticizing Martin Luther King for being too religious.) After the show,Dave sent me an e-mail mentioning similar criticism by Keith Olberman.

We are so used to the idea that political speeches have to throw a bone to each and every potentially offended party that his failure to do so draws attention. Romney did not say atheists should be excluded from anything. What he did do is claim that faith informs reason and that faith requires religious liberty. Implicit in that is the freedom not to believe.

Finally, some have said that he attacked Islam. Actually, that is a bone that he did throw. But he also pointed out the obvious. There is a problem in the world that is rooted in a theocratic interpretation of Islam. Calling intention to that is not an attack on all Muslims.

Who cares about conflicts?

One of the interesting side stories in the virtual schools litigation is that DPI initially approved the school. WEAC then sued Libby Burmaster, in her capacity as Superintendent of Public Instruction, seeking to close the school.

DPI then reversed itself. In December 2004, Burmaster moved for summary judgement against herself.

Why the reversal? I don't know but I do know, that when Burmaster ran for relection in 2005, WEAC spent over $340,000 in her behalf.

Did she go in the tank for WEAC support? I think it's more likely that Burmaster just instinctively shares every assumption of WEAC and the educatuion bureaucracy. If I recall correctly, they supported her in 2001 as well.

But this sure looks odd. Why aren't our friends at the Wisconsin Democracy Campaign upset? Where is One Wisconsin on this?

Wednesday, December 05, 2007

Signing off virtual schools

I have just gotten around to reading the Court of Appeals decision in the virtual school case, Johnson, et al. v. Burmaster, et al. I did, however, get an earful about it from a lawyer for some of the parents over lunch today.

Much of the public discussion around this case has revolved, or will revolve, around whether it is good policy to provide parents with this type of educational option. Apparently the kids at the Wisconsin Virtual Academy do fairly well and there seems to be little doubt that WEAC's opposition to it involves more than a little self interest.

But these weren't the issues before the Court. It was charged with deciding whether state law permits these schools, and not whether or not they are a good idea.

There were three issues. The first two had to do with where the school was located and where the children attend. State law requires that the answer to both questions be the district that chartered the school, Northern Ozaukee. The school's administrative offices are located there but its teachers work from home around the state and the students, who do their work at home, also live in various locations. The Court of Appeals held that the district is, literally, located wherever its teachers live and that its students attend at wherever their home happens to be. You can read the statute that way, but that reading is by no means compelled. It seems just as plausible to say that the school is located, and children attend, at the location where the administrative offices are located.

A more difficult issue was presented by state law requiring that any person teaching in a public school be a licensed teacher. Although certified teachers do supervise and monitor and participate in instruction, I think some of the public commentary that I have heard overstates their role. Most of the work is done by students in association with their parents.

Does that constitute "teaching" in a public school? I can imagine a court concluding that there is some point at which so much responsibility is left to parents that they have essentially come to fill the role of a teacher and, while they can do this if they are home schooling, they cannot do it if their child is enrolled in a public school.

But that's not what the court did. It referred to the definition of teaching adopted by DPI in the state administrative code. Teaching, according to DPI, is "improving learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents,and evaluating the effects of instruction."

My initial reaction to this is that it is an odd definition. Teaching does include all of these things but the definition seems to leave out the one thing that parents in the virtual school seem to have the primary responsibility for and that is implementing the instructional program that has been planned and prescribed by certified teachers and that is assessed and evaluated by certified teachers.

But putting that aside, what is stranger is that the Court of Appeals seems to think that the statute is violated by the mere fact that parents engage in activities that can be called teaching without regard to whether those activities are undertaken under the direction of, or in support of the efforts of, certified teachers and without regard to how much teaching is delivered by parents and how much is delivered by certified teachers.

On the court's analysis, any school with robust parental involvement and assistance in delivering instruction would be in violation of the statute. The court recognized this potential, but said that if the statute is capable of such a construction the legislature should fix it.

For those of you who have or will read the opinion, I know that the court cites a paper I wrote in support of the proposition that courts shouldn't rush in to solve problems that the legislature had ignored, but, while I am happy that they accept the principle (and flattered that they would read my work), it is not clear that they applied the principle correctly. The fact that their reading of the statute might warrant a conclusion that "all public schools violate the statute" does not mean that they should "fix" the statute. It suggests that their reading is wrong.

It seems to me that they ought to have concluded that a parent assisting his or her child is not a teacher or that the statute forbids, not all teaching by parents, but the usurpation of the teacher's function by the parents. That would require the articulation of some standard for determining whether there has been usurpation and the application of it to the particular facts of this case. That didn't happen.

Had it happened, the court may still have concluded that there was still too little teacher and too much parent for a public school. But, in making that determination, it would have had to explain when parental involvement becomes teaching and that would have given WIVA an opportunity to restructure its program and continue in operation, rather than simply shutting it down and leaving its students outside the virtual classroom door.

Update: Lawyer blogger Mike Plaisted says that criticism of the breadth of the court's analysis is "typically nuts" noting that the court disavows any suggestion that it is illegal for parents to help their kids with their homework. He's not responding to me and I never said that, but it underscores the problem with the way in which the court did this: Why isn't it illegal given the way in which they conclude that the parents here are "teachers?"

The court suggests that the problem is that they are not permitted to do help, but are required to help in order for the school to operate. They don't mean that. It can't be unlawful for a public school to demand parental involvement in tasks that might come within their broad definition of teaching.

I am sure that what they wanted to say that WIVA places too much responsibility on the parents and that there is a point at which a parent can be doing so much that he or she becomes the teacher. I can buy that, but how are we to decide that however much responsibility the parents exercise here is too much? Is it a function of face time? Does it depend upon who makes what decisions? After all, all of the things that are set forth in the admin code's definition of teaching seem to have been controlled by licensed teachers.

In any event, if they really meant to say that the mere exercise of teaching functions by parents is not illegal but, in this case, the parents were asked to do too much, it would have been helpful to articulate a standard and, probably, would have required remanding the case back to the trial court because there were apparently factual disputes over how much parents are involved and how little teachers are involved.

That would not have resulted in the precipitous closing of the school.

It also may have given WIVA a chance to change what they do to come into compliance with whatever the standard happens to be.

That would not have resulted in the precipitous closing of the school.

Monday, December 03, 2007

Date rape - not legal but safe and rare?

A lot of time we hear people argue that they agree that something is wrong, e.g., abortion, teen sex, drug use, but that we need to do something that facilitates it. e.g., make it legal, provide contraceptives, offer needle exchanges, because it's "going to happen anyway" and we should make sure that it is undertaken in the safest way possible.

I think this argument only works when you don't think that the thing to be facilitated, e.g., abortion, teen sex, drug use, is a serious moral wrong. My law school classmate Robby George offers an illustrative hypothetical to the good folks at Mirror of Justice:

Crimes involving the use of date rape drugs are increasingly common on campuses and elsewhere. The overwhelming majority of such crimes are committed by men on women. Evidently, the drugs are widely available and easily obtained. There doesn't seem to be much that can be done to prevent men who want the drugs from obtaining and using them.

Rape is in itself a horrible crime--always and everywhere. It is, in my opinion, an intrinsically--and gravely--evil act. Where date rape drugs are used, the offense has additional dimensions. Often the drugs are themselves harmful and dangerous. Victims can suffer lasting injuries and even die as a result of ingesting the drugs.

Now, imagine that a date rape drug is synthesized which is just as effective as the ones sold on the street, but (in itself) considerably less dangerous to victims. The risk of injury and death is substantially lower. The cost, however, is higher.

How should we respond to a proposal to make the new, safer drug available through the University Health Center on a subsidized and confidential basis? (Let us stipulate that there is no legal impediment to doing so. Imagine that the drug is sometimes legitimately distributed over the counter as a "sleep aid.") The argument is that, though we don't want to encourage date rape and the use of date rape drugs, we need to be realistic. Date rape happens and will continue to happen despite our ongoing efforts to discourage it; date rape drugs are going to be used; we are not going to be able to turn back the clock and makes these drugs cease to exist. Let's at least lessen the potential harm to women who are victimized.

Speaking for myself, I would firmly say no to this proposal. But, then, I am a moral conservative. I don't think we should subsidize and facilitate immoral behavior, even for the sake of preventing injuries and deaths a certain number of which will surely occur as a result of date rapists using unsafe drugs instead of the safer drugs they would have been using had we subsidized them and made them available.

What I don't know is whether liberals would agree with me as to whether the proposal should be rejected. My sense is that most liberals do not share the general principle on the basis of which I myself would reject the proposal. But, perhaps other grounds are available to them for rejecting it. I don't think they would want to say that by subsidizing and distributing safer date rape drugs we are tacitly approving date rape. They might, however, say that the policy of subsidizing and distributing the drugs would result in more date rape by contributing to a cultural climate in which date rape comes to be regarded by potential perpetrators as acceptable conduct. But, then, liberals generally don't reason this way about, say, promiscuity when considering whether to subsidize and distribute contraceptives on campus. Most liberals I talk with seem to believe that the policy of distributing birth control pills, placing condoms in jars in student lounges, etc. doesn't affect students' beliefs about sexual morality or alter their conduct. The amount of promiscuous sex will remain the same, they say, whether or not condoms are subsidized and distributed; the only difference is whether the sex will result in unwanted pregnancies and venereal diseases that might have been prevented had condoms been used.

In any event, let's assume, just to test the principle, that we have reliable studies to show that easy access to cheap safer date rape drugs does not increase the number of date rapes in general or the number of date rapes in which date rape drugs are used. It does not turn non-rapists into rapists. The rate of date rape snd the use of date rate drugs will remain the same. The only difference will be that victims will have a lower incidence of injury and death from the drugs themselves.

On this assumption, what is the correct answer from the liberal point of view? Should a University Health Center subsidize and distribute the safer date rape drugs or not

How do you respond other than by arguing that these other things are not as morally repugnant as date rape? If that's your only response, then you can see how the "safe, legal and rare" argument won't work with people who think that abortion is a moral wrong on the level of date rape.

Plan B and conscience

The Wisconsin State Assembly is considering a bill to require hospitals to administer emergency contraception to rape victims. Many people believe that the drug, known by the infelicitous brand name "Plan B", is considered by many to be an abortifacent because it tends to prevent a fertilized egg from implanting in the uterine wall.

The bill originally had conscience protection for individual doctors and nurses, but not for the hospital as an association. In other words, a Catholic hospital with a policy against the drug would have to administer it.

An Assembly committee adopted an amendment by Mark Gundrum that provided such protection to hospitals who adopt policies against administration of Plan B on religious or moral grounds.

For reasons that I won't get into here, I support that. But doesn't it defeat the purpose of the bill? Are there any hospitals that refuse to administer Plan B except on moral or religious grounds? It seems to me that if you don't think that it is wrong to do so, then giving the drug would be a rather obvious and simple thing to do.

This brings me back to my original reaction to the unamended bill. It seems clearly targeted at the practices of hospitals and health care providers who have religious objections to Plan B.

Does that raise constitutional concerns? Does it interfere with the right to free exercise of religion. The US Supreme Court has held that a neutral law of general applicability will usually not be unconstitutional even if has the collateral effect of interfering with someone's religion. The leading case involved Native Americans whose sacramental use of peyote violated state drug laws.

There is, however, an exception when the law was, in fact, aimed at a religious practice. But it has been often been narrowly interpreted and I think it would be a tough slog here.

The free exercise guarantee in Wisconsin's constitution has, however, been more generously interpreted by the Wisconsin Supreme Court. That,too, is New Federalism. In Wisconsin, a law that substantially burdens religious exercise must be necessary to achieve a compelling state interest. This is a tough standard but there has been surprisingly little action following the case that established it.

So ... will the legislature strip out the exemption? If it doesn't, will there be any pro-life energy against the bill? Is this the battlefield that you want to die on?

But don't the sponsors of the bill (if they are doing something other than posing for a press release) have to try to strip the amendment?

If so, will there be a constitutional challenge?

Sunday, December 02, 2007

Barack is Your Man

Bill Clinton was our first black President, so apparently Barack Obama is left to be our first female Commander in Chief.

He's making a pitch for women. It goes like this.

Women, he said, “can look at a whole series of issues and know, ‘You know what? This guy’s going to fight for us, partly due to biography.’ Because I know what it’s like to be raised by a single mom who’s trying to work and go to school and raise two kids at the same time, doesn’t have any support from the father.

Just two things. First, why does he assume that what women want is a government that will do for them what a man won't. Second, is biography really destiny? I, for example, can make the same claim for a good chunk of my childhood (although my Mom didn't go to school) but Sen. Obama and I aren't exactly political twins.

Saturday, December 01, 2007

True threats and double agents

The internet can be a mixed-up, crazy, shook-up world. A commenter on Boots & Sabers leaves a rambling post expressing outrage at the level of teacher's salaries and West Bend and suggests that the shooters at Columbine High School, who he calls Young Republicans, had the solution. "One shot at a time." Here is the post:

Looking at those teacher salary numbers in West Bend made me sick. $60,000 for a part time job were (sic) you 'work' maybe 5 hours per day and sit in the teachers lunge (sic) and smoke the rest of the time. Thanks God we won on the referendum. But whining here doesn't stop the problem. Weve (sic) got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like Eric Harris and Dylen Klebold members of the Young Republicans club at Columbine. They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberls (sic) rip them; they were heros (sic) and should be remembered that way."

The folks over at West Bend High School either get genuinely concerned - or see a chance to make what they think is a point - and go to the cops. Here's a guy threatening to shoot a teacher.

But it turns out the offending poster is James Buss, a teacher. Lest we think that he is a self hating teacher seeking suicide by homicidal maniac, it turns out that he is the former president of the Oak Creek teacher's union. He was either trying to be sarcastic or to discredit critics of the level and nature of educational spending.

But the cops arrest him and here is where the fun really begins. Can he be prosecuted or was he engaged in constitutionally protected speech?

The pertinent Supreme Court thread here is those cases permitting the state to prohibit only "true" threats. In a recent case, the Supreme Court upheld, in part, a statute outlawing cross burning with the intent to intimidate.

But ... the Court (although different Justices had different reasons) also held unconstitutional the statute's presumption that, if you burned a cross, you did, in fact, intend to intimidate. And, in the course of her opinion for the majority, Justice O'Connor seemed to announce a more subjective test for true threats than had been the case:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 (“political hyberbole” is not a true threat); R. A. V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. the Court upheld a statute that criminalized cross burning with the intent to intimidate.

Some lower courts have interpreted this to mean that the speaker must have intended to communicate a threat. Prior to this, the test had generally been understand to be objective, i.e., how would reasonable recipients of the message understand it?

Of course, there is still an objective aspect to all of this. The threat must be "serious" and I think there is an issue as to whether any one could reasonably have read the comment as serious. It's exaggerated nature and reference to the Young Republicans suggest that it is either satire or an obvious (and badly executed) hoax. But lunatics say many things and let's assume that it could be taken seriously.

Did our hoaxer intend a "serious threat"? He certainly wasn't really threatening the West Bend teachers, but the Court has told us that is apparently not determinative.

Normally, we know that the speaker at least intended the sentiments expressed. Kluxers who burn a cross may not intend to intimidate, but we know they aren't expressing a message of racial harmony.

Buss. however, is either a clumsy and unfunny satirist or a doubled troll. He is a riddle, wrapped up in a mystery, inside an enigma.

Of course, if he intended the post as a satire, he did not intend it to be a threat.

But what if he intended a hoax ? What if you see Buss, as Owen Robinson did, as "posing as a conservative, right-wing whack job to discredit" critics of teacher's salaries by suggesting that they are the type of people who would act violently?

If that is what he was up to, then couldn't you say that he did intend to make a serious threat? He wanted people to take it seriously, so they would think poorly of those with whom he disagrees. Maybe it was a "true threat" and he can be prosecuted.

My lawerly instincts tell me that Buss should not be prosecuted. Even if you take the post at face value, the threat was not direct enough. In addition, he left a later comment saying that he was not advocating shooting teachers and attributing his attitude to a local radio talk show host Can you treat something as a trie threat when it is immediately disavowed? Nor do I think that a jury could find beyond a reasonable doubt that it was not intended to be satire. But it's a nifty problem.

One thing does seem clear. Owen reports that the West Bend police told him that they didn't think that the poster intended to harm anyone but that he had to be punished because the post might encourage someone else to act violently. That would seem to be clearly unconstitutional.

Friday, November 30, 2007

Zombie Cockroaches!

Wasn't Vampira in the original?

Black v. Blue

I don't do much sports here but tonight is the happy occasion of the renewal of a cross town rivalry between UWM and Marquette in men's college basketball. Maybe I should say that it is (with luck) the beginning of one since the old series wasn't much of a rivalry. UWM never won.

Although my day job is now at Marquette, I graduated from Milwaukee. Those loyalties stick. I am perfectly fine with ringing out ahoya on most days, but not tonight. A few years ago, UWM, now with a Division I program, started agitating for a game with MU and there were about three years (2003-04, 20045-05, and 2005-06) when we almost certainly would have won.

But not this year. I've seen our team and I doubt that they will stay within 20. Still it's good to see the two schools play.

My outrage is selective? Your outrage is selective...

Political bloggers love to play pin the tail on the hypocrite. I do it too. I admit it. Nothing pleases us more than to be able to say that someone we disagree with has fed the goose but starved the gander. Given that there are very few human beings who can be absolutely consistent, there are always opportunities.

It's not a bad thing. Taking a principle and asking whether it applies to a different situation is a perfectly good way to clarify it.

But it does have this tendency to degenerate into a game of gotcha. Recently, I played the game to point out that there seem to be some rather serious legal questions surrounding Jennifer Morales proposing and voting on the extension of health benefits to the domestic partners of MPS employees. I looked at the state ethics code and the interpretations of the code by the ethics board. My point was not so much to accuse Morales of selling out the public for her own private benefit (I suspect that she'd favor domestic partner benefits even if she wasn't living with an MPS teacher) as to point out that there are apparently some problems with her acting on the proposal. I can see an argument in her favor (the city attorney has supposedly made it) and we know that legislators and public board members have to set their own salaries but, yet, there seems to be a rather substantial argument that she shouldn't act on this. And, even if she has a legal out, it certainly doesn't look good.

To the extent anyone has responded to this point, it has generally been to say that domestic partner benefits are a good thing. But that's no response just as it was no response to say that the cases that Annette Ziegler should have recused herself on but did not were decided correctly.

So I - and other people who raised the issue - were playing the game.

Anne Quimby Mathias has taken the game to a new level. She is playing a meta-version of the game, trying to pin the tail on the tail on the one who pinned the tail on the hypocrite. (If that's hard to follow, think of a dog.)Charlie Sykes raised the point about Morales' conflict. She is now accusing Charlie of inconsistency for never raising the fact that there are other board members who are married to MPS employees and who presumably act on employee compensation matters.

The domestic situation of those board members wasn't implicated by the domestic partner proposal. But I think the proper response to this is to double down.

Of course, the same issue applies to them. In fact, doesn't it seem a little cozy to have MPS board members married to MPS employees? If we are concerned with high ethical standards and avoiding even the appearance of impropriety, shouldn't these board members (or their spouses) resign? I know that Pundit Nation is concerned about integrity in public office because it has repeatedly weighed in on the Ziegler issue.

The tail, Ms. Mathias, is to you.

Thursday, November 29, 2007

Be careful what you wish for

Political use of ethics charges seem to me to be the last refuge of scoundrels. (Note to the sensitive: that is a figure of speech, I am not calling any individual a scoundrel.)

The controversy is over the need for Justice Ziegler to recuse herself in a tax case being argued today. WMC is not a party to that case, but is participating as amicus curiae ("friend of the court") and has filed a brief supporting the position taken by the Menasha Corporation which, as you might imagine given WMC's policy preferences, would, if sucessful, tend to reduce business taxes. It apparently has also contributed to the expenses of the case.

WMC made a substantial independent expenditures in support of Ziegler's candidacy. Nothing in the judicial code of ethics requires a judge to either disclose these things to litigants (they are public in any event) or to recuse herself in cases where parties or their attorneys or amici have contributed to or otherwise supported her campaign. The code does, however, remind judges to keep in mind their obligations to act in an impartial manner when soliciting (to they extent they may be involved) or accepting campaign contributions. (Of course, she did not "accept" WMC's expenditures. They were independent.)

There is some consternation on the left over her decision to stay on the case. I don't find it all that persuasive. WMC did spend a great deal of money, but it is an advocacy group. It doesn't seek special favors as much as it tries to identify candidates who it believes will support it's position. It isn't even a party to the case. It simply supports a particular outcome.

I think my colleague Janine Geske had it right when she said that, if we require justices who have received campaign contributions to recuse themselves in cases where parties have contributed, we won't have a court. I think that recusals are particularly problematic on the Supreme Court which is a collegial court of last resort resolving important questions of law. There ought to be a presumption against recusal.

The left is proposing a standard that it can't possibly mean to consistently follow. Imagine that Justice Butler is reelected this spring. Assume (as I suspect will be the case) that WEAC makes independent expenditures on his behalf or PAC contributions to his campaign. Suppose (as I also think will eventually happen) a case comes before the court challenging Wisconsin's system of school financing. WEAC will certainly support that challenge. Do they want Justice Butler to recuse himself?

But we don't have to use a hypothetical. The Journal Sentinel reports that Justice Butler says that one of the lawyers for Menasha Corporation is my former partner Maureen McGinnity who contributed to Justice Butler's campaign and sits on his finance committee. Mo is very connected and wildly energetic. I am sure that her support is very important to Justice Butler.

(He apparently was late in reporting this. I suspect that was a glitch and not intentional given that the information is so readily available to anyone.)

Should he recuse? Only he knows but the fact that he will not strikes me as quite reasonable. I don't presume that he would sell his soul for campaign support. (Incidentally, there is nothing sinister about Mo supporting Justice Butler. Given her views on these matters, it is what I would expect.)

Wednesday, November 28, 2007

A friendly question

My Backstory friend Jim Rowen is concerned about political and social dialogue in our community. So am I. It's one of the reasons that I continue this blog which, to date, has resulted in neither fame nor fortune. Jim was concerned that Charlie Sykes characterized one of his posts about the blogosphere's Coexistential crisis as "hating" conservatives. He wrote:

And let me point out that I get along fine with any number of conservatives, including my "Backstory" (WMCS-AM 1130) roundtable colleague Rick Esenberg, the conservative blogger and Marquette Law School teacher.

Have we disagreed about many things? Of course. That's part of the reason Eric Von had us as regulars (I have fallen away: Rick is more reliable). But do I hate Rick?

Of course not. And I'd be shocked if he said he thought I do.

No need for JIm to be shocked. I am relatively sure that he doesn't hate or even dislike me, although I do recall a crack about my shirt and tie combination that wounded deeply.

And I disagree with Charlie's characterization of his post but still there is something about Jim's comments on the question of dialogue that lead to some questions. In a more recent post, he has this to say about Bumper Battle:

This nasty little Internet and media outburst in Milwaukee could lead to something genuinely useful, even uplifting: a productive moment in the community's history - - if powerful media owners and personalities that have decided, for now, to side with intolerance can make the break and shift towards dialogue, and then genuine community-building in Milwaukee.

This is a theme in Jim's writing on the topic. Talk radio, he says, "stirs the pot" and results in divisiveness.

Here's my problem. First, I draw a distinction between Belling and the rest of the conservative talkers. Whether by virtue of his chosen schtick or his personality, I think that he sometimes does cross the bound of reasoned and civil discourse. Only yesterday, for example, in discussing the effort to censor Walid Shoebat, I think he made some remarks about American Muslims that were irresponsible. But I could say the same about a number of commentators on the left.

But I don't hear that from Sykes, Harris and Wagner. I didn't hear it from McBride. They are, of course, entertainers and the need to draw an audience is going to cause them, from time to time, to oversimplify and even to take cheap shots. Given that they are out there every day, I am sure that you can find examples of times in which they were less than reasonable as I am sure that you could if you scoured this blog. I am probably a bit more careful about what I say but I am doing a different thing and my readers are measured in the hundreds and not the thousands.

Mostly what I hear on TMJ (I can't speak to Weber and McKenna because I don't hear them enough) is fairly mainstream conservatism. This is also what I read from Patrick McIlheran. I think that's what you get here. The uncomfortable feeling that I get from Jim is that he thinks that constitutes "stirring the pot" in some way that is harmful and ought to be abjured by responsible people.

So why I am fairly certain that Jim doesn't hate me (and I like Jim), I have a hard time seeing why, by his lights, I am not "stirring the pot" as well.

Does it stir the pot to say that taxes are hight and, if at all possible, should not be raised and even lowered?

Does it stir the part to notice the obvious facts that crime in certain parts of Milwaukee have gotten out of hand and that this seems to be related to a cultural breakdown that is unlikely to be remedied by summer jobs and midnight basketball?

Does it stir the pot to believe that changing the way that virtually everyone in virtually every place and virtually every time have understood marriage until about last Wednesday may result in unintended consequences?

Does it stir the pot to recognize the rather obvious fact that there is a virulent form of radical Islam that has taken over enough national governments and is followed by enough folks around the world to become a rather large problem?

Does it stir the pot to demand that light rail and other forms of transit be, you know, economically justified?

I doubt that Jim wants to say this, although I suspect that some would. But that seems a passing strange way to achieve dialogue and strive for inclusion.

Tuesday, November 27, 2007

I am not Panther proud tonight

I am not so happy with my alma mater just now. The University of Wisconsin-Milwaukee proposes to charge the Conservative Union, a student organization, $ 2500.00 for security costs in connection with an appearance of Walid Shoebat, a reformed PLO terrorist who speaks against jihad.

I know little about Shoebat. I understand that certain groups accuse him of being an "Islamophobe" and an evangelical Christian "extremist." For all I know, he may be both. It is clear that he thinks that virulent forms of Islam are dangerous and widespread. But that's not the point.

You never know how accurate a news report is, but it seems that the amount of the fee may have been set based upon the anticipated reaction to Shoebat's views. As a general matter, this is unconstitutional. The government has the right to charge for the cost of policing an event, but, in general, it can't set that fee based upon an assessment of the speaker's views and the likely reaction to it.

The paper notes that other universities have banned or restricted Shoebat speeches, but they are private institutions. UWM is a public university and, while it may impose reasonable time, place and manner regulation, it does not get to engage in viewpoint discrimination. Basing the amount of a fee upon what a speaker will say and how others may react to it does that.

Apart from its constitutional obligations, there may be an educational opportunity here. Mohamed Elsayed, President of the Muslim Student Organization, wants to know "[w]here is the boundary between freedom of speech and hate speech?" I can tell him. With the exception of a few very narrow categories (e.g., speech that will incite imminent violence)that aren't remotely implicated here, there isn't one. I wish that my school would have stood up for that. Bad timing for end of the year fundraising.

Dime store political psychology on Bumpergate

I know that I said I was done with Bumpergate but there is a residual point that are banging around my head and I need to it out of there so I can spend the rest of the preparing for next semester's Civil Procedure class and reading theology in connection with some scholarship that I am working on. Both require a mind freed of distractions.

Why was this the source of so much bloggy excitement? I posted twice about it even though I said that I wouldn't put the original sticker or the parody on my car. (The only thing on my car is a Marquette parking sticker and they made me put that there.)

There are cynical explanations. One is that the thing started with Charlie Sykes who serves as both a foil and a leader in Wisconsin's Blog World. Another is that it gave an opportunity for both sides to put on the silk of moral high dudgeon and that feels so good against the skin.

But I also think it touched on some of the fundamental differences that we have. My view is that the difference between liberals and conservatives is the emphasis they place on competing goods. We believe, at core, in much the same things but we assign them different values, often because of different assessments of empirical matters.

What follows is blog-abbreviated and thus oversimplified. Still I think that it is instructive.

One of the goods that left liberals place a high value on is the need to be solicitous of certain (but not all) minorities who they believe that the mainstream culture has treated or is likely to treat unfairly. They saw McMahon's parody as offending that value.

It's not that conservatives don't value that good, but they generally don't think that, in our time and place, it is quite as salient as a guiding principle for public action as their friends on the left. They are more interested in active (and personal) virtues (by this I mean something other than tolerance or voting for what are perceived to be morally superior social policies). They are more likely to see these virtues as rooted in distinctive faith and cultural traditions and more likely to see external threats to the culture in which they are rooted as something that must opposed rather than accommodated. Liberals don't reject these active virtues as much as they see them as less salient in resolving public controversies. That some of them seem to revolve around sex and marriage underscores their perception of conservatives as hostile to the "other."

Knowing all of this, conservatives were more likely to see the original bumper sticker as denying the existence of these transcendent values and as tolerating the intolerable. They were more likely to see the parody as an attack on the original bumper sticker than as a general indictment of Islam.

I think this is one of the reasons that people were drawn to the controversy. One might have thought that an appropriate reaction was to pronounce a pox on both the sticker and the parody. The sticker is hopelessly devoid of content (so much so that it needed a footnote) and the parody had too much (and, therefore, also needed a footnote that it wasn't saying that all Muslims are like Nazis). But we all got past that because the issue seemed to be saying something about a difference that we feel is important.

Monday, November 26, 2007

kumbaya is not enough

Mike Plaisted says that I am in my mode of defending the indefensible. As he well knows, that is what we are trained to do so here's my final word on Bumpergate.

I think that those who are criticizing the parody are weakening their point by making an argument that it somehow offends Jews by placing a swastika where the Star of David was in the original. That's just silly. No one could reasonably interpret the parody to be conflating the two.

Obviously, the parody can be understood as an attack on Islam. I read it as a criticism of the type of naive liberalism that will stand up for nothing if it can be interpreted as an attack on the "other," but reasonable people might have a different interpretation and that's why I would never put the parody on my car either. (Actually, I don't do bumper stickers but that's another story.)

So why talk about the Star of David? Do the critics think that is a more sympathetic argument? Maybe it helps avoid an uncomfortable conversation.

The point of the parody is that there are some preconditions to coexistence. There are people with whom we cannot get along - at least not unless they change. The Interfaith Council knows that. John McAdams links to the program of a conference that they sponsor called Common Ground. My own reaction to the program is that it sounds like the type of divisive racial scapegoating that makes actually finding a common ground so difficult. It seems to me to be aimed at opening wounds rather than healing them.

But I suppose the IC folks involved with the conference would tell me that they believe that reconciliation is possible only after we confront what they see as the truth and bring about change that they believe to be needed. I don't see the conference as accomplishing that, but I see the point that coexistence is not simply a matter of tolerance. There are values that must be shared like not hanging nooses in my front yard or not blowing yourself up on the bus.

Of course not all Muslims are jihadis or believe in Sharia law. From what I can tell, the overwhelming majority of Muslims in the United States are not and do not. we have Saudi Arabia and Iran but we also have Turkey and Indonesia. Still, the sad fact is that, around the world, there are enough jihadis and adherents to Sharia that it's become rather a huge problem. It's not clear that this problem can be countered by the expression of even a noble sentiment.

Responding to the threat of Islamic terror is difficult. European countries who must reckon with the presence of large populations within their borders who do not share many of the values of the majority face some very hard questions. The desire to coexist is the right instinct, but it alone won't get us very far.

Saturday, November 24, 2007

Santorum's challenge

The biggest tragedy of the 2006 elections was that Rick Santorum lost. He is now a Senior Fellow at the Center for Ethics and Public Policy. He recently tried to organize a bipartisan debate of the presidential candidates on the role of faith in fighting poverty. It was cancelled because apparently Hillary Clinton was the only one who agreed to show.

In this op-ed, he lays out what I think is the biggest challenge for Christian conservatives. We believe in limited government and we know that a free market and restrained taxation results in the greatest level of prosperity for all. But we also know that poverty persists and our faith is quite clear that we may not be indifferent to this.

My own view is that anti-poverty programs must follow the Catholic principle of subsidiarity. They must be of limited duration and, in the United States, must focus on changing the culture of poverty. But then they ought to be generous.

The Democrats are still too much the party of government and too committed to their own racial strategy. While they are not so hot on laissez faire in economics, they just love it when it comes to personal life. They will never accomplish much on poverty.

But we Republicans aren't talking about it. Santorum is. It's too bad that he's not doing it in the Senate.

H/T: Rick Garnett at Mirror of Justice.

Friday, November 23, 2007

November 22 1963-2007

Yesterday was Thanksgiving, but it was also the 44th anniversary of the assassination of President Kennedy. Local blogger Jim Bouman, who has apparently returned from from Canossa, remembers where he was and what he thinks of the larger significance of the assassination. More on the latter later.

For boomers (although he's on a tad pre-boom and I'm in the latter half of it) talking about where we were on November 22, 1963 is just something we love to do. I was in second grade at Holy Family school in Whitefish Bay. The nuns told us the President had been shot and we prayed. I remember thinking that the President was in Washington and that Washington was up near Alaska and Alaska was near Russia. Maybe he went across enemy lines and got clipped. Later on I remember feeling chastened by how adult the whole thing was. Of course, I thought. The world was so much duller than I wanted it to be.

In any event, the nuns told us a bit later that the President was dead and that we were going home. After another prayer, I walked home down Hampton to my house on Oakland. I still remember stopping to cry under a birch tree on the corner of Cumberland and Hampton. If I can be permitted, my parents got divorced the next month and, for me, the tragedy of the assassination has always been bound up with that personal tragedy. Maybe for that reason, I've always been fascinated by the assassination.

So, as has often been the case, I've been reading a couple of books on the topic. One is When the News Went Live; Dallas 1963, a memoir of those few days by some Dallas journalists. That book, along with some historic material on John McAdams excellent assassination website and the rebroadcast of NBC's coverage a few years back, underscore how quickly it became obvious that day that Oswald was the shooter. If that doesn't convince you, this guy and this one have destroyed the conspiracy theories.

Here's where Jim Bouman's reaction to the assassination comes in. He is apparently not a conspiracy theorist. But one of the reasons that conspiracy theories have persisted in the face of such overwhelming evidence to the contrary is that the assassination narrative flew in the face of the reigning liberal consensus that political violence was all on the right and that the Cold War had to be called off.

Yet Kennedy was shot by a communist. The other book I am reading is Camelot and the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism by James Pierson. The fact of a violent act by a leftist didn't fit the story that left-liberals wanted to tell. Recall Jackie Kennedy's reaction: "He didn't even have the satisfaction of being killed for civil rights. it had to be some silly little Communist."

So, the assassination had to be spun, not as a political slaying, but as a symptom of a country gone wrong. It wasn't so much Oswald that killed Kennedy but a violent America. Mr. Bouman states the correlation - if not the assertion of cause and effect:

From there, this benighted nation spiraled downward, through a decade of assassinations and escalations and cities-in-flames and profound alienation, then went on to decades of self-indulgent, self-congratulatory excess and hubris, arriving finally at today's sorry state of the American nation, it's leadership and its prospects.

In the standard liberal narrative, the assassination, in this view, becomes just another symptom of a sick culture rather than the act of a sick man consumed by ideology. Maybe that's what Bouman means. Or maybe he means that an act of political violence caused us to go off the rails.

But Pierson argues that it is not the death of JFK, but the recasting of the liberal narrative encouraged (although not entirely caused) by the reaction to the assassination that contributed to a societal sickness. Pierson argues (but I doubt Bouman would agree) that liberalism has paid a price for this reaction to the slaying, losing its confidence and its roots in commonly held American values.

I suppose there is a sense in which that lead to the leadership that we have now in that America has generally rejected the antinomian left (although I think we also needed to shed industrial age liberal economics as we moved into a post-industrial age.) Of course, Pierson and I might characterize that leadership (and America's prospects) much differently than Bouman, but look for agreement where you can find it.

Wednesday, November 21, 2007

Happy Thanksgiving

Continuing a tradition (actually I did it last year) here at the old blogspot, I reproduce my 2005 Thanksgiving column from the Milwaukee Journal Sentinel.

The virtue of gratitude
By Rick Esenberg

Posted: Nov. 23, 2005
Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gew├╝rtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is