Tuesday, March 20, 2007

Snail blogging the Supreme Court debate.

Last night, Supreme Court candidates Annette Ziegler and Linda Clifford debated before a packed house at the Marquette Law School. I attended and have a few general impressions.

1. Linda Clifford's candidacy has become primarily about Annette Ziegler. In her opening statement, she went quickly to the "conflicts" issue which she termed a "scandal." She returned to it often, perhaps at the expense of making a case for herself. Even her argument that the court needs some seasoned practitioners (as opposed to another trial judge) is largely a response to Ziegler's "I am a judge" theme. She doesn't seem to be articulating a case for herself, with a possible exception that I'll explore below.... My guess is that her polls have her behind.

2. Annette Ziegler's campaign is all about the fact that she is a judge and was a prosecutor. As I have blogged before, it does not surprise me that she would emphasize this, but I don't think its important at all. John Wilcox, who is retiring, and Louis Butler were both trial court judges. Yet they are very different justices. I am far more interested in someones quality of mind and judicial philosophy than whether they sentenced drunk drivers or negotiated plea agreements. Judge Ziegler suggested that her service as a trial court judge was like having to do all the basic jobs in her parents' hardware store before she was permitted to run the cash register. A charming analogy, but flawed.

3. Linda Clifford may be blowing the "conflicts" issue by trying to take too much. She began the debate by asking whether Ziegler ignored the rules regarding her husband's directorship or didn't know about them. Ziegler won't say, but her response implicitly focuses on the first part of the question. She is taking pains to reassure people that she is not a bad person. She argues that most of the West Bend cases were defaulted (so there was no opportunity for waiver and, really, nothing to do) and, of those that were not, the defendant had no defense. She did not stand to benefit, etc. She says she wishes she had "done better" but won't admit that she did wrong. In response, Clifford seems to want to hold on to the first possibility and to suggest that Ziegler is unethical. I think she's losing that argument and might be better served by arguing that the failure to recuse was sloppy.

4. There was little illuminating conversation about judicial philosophy, but there was an interesting remark by Clifford in response to a question about what areas of the law she thought were likely to require examination by the court. She mentioned issues around the public financing of education and the "first amendment" issues around school choice. The court rejected a challenge to the current financing system in Vincent v. Voigt, but there were lots of opinions (six of the seven justices wrote) and plenty of grist for future mills. The court also rejected establishment clause challenges to school choice in Jackson v. Benson.

Would Justice Clifford like to revisit those decisions? There is no way to know. But it does make for interesting speculation. (Update: Daniel Suhr at The Triumvirate and Patrick McIlheran also were struck by this - and blogged on it before I did. "But how you never gonna be a little slow ? A little late?" - Avon Barksdale.)

5. Linda Clifford did sent signals to her base. She emphasized that she had come from a "union" household and that, as a result, she had "learned something about solidarity." At one point, she even suggested that it was time to put a "steelworker" on the court.

6. Annette Ziegler also went on the attack, raising the question of whether or not a Justice Clifford would recuse herself from cases that benefit the plaintiff's trial bar of which her husband is a prominent member. Clifford's response was technically accurate - it is hard to say if we don't specify the case and she doesn't know what her husband's practice would be at the time - but also a bit of a dodge. We can pretty sure that things like malpractice damages caps are coming back and that these are of immediate economic interest to plaintiff's med-mal lawyers. Does Clifford think that's a problem or, as she once suggested, would she only recuse herself in cases where her husband was actually appearing? She didn't say much other than that she would do the right thing. However, she did return an interesting volley to Ziegler. Wouldn't cases that are of interest to real estate developers, i.e., may create a rule of law substantially affecting their profitability, raise issues for a Justice Ziegler?

The debate was a bit frustrating in that the most important issue, i.e., the candidates' judicial philosophies, were largely sidestepped and, when addressed at all, handled somewhat cryptically. Both of these candidates have passionate supporters who are fully aware of why they believe that one or the other should be on the court. But little of that was on display last night.

The debate was moderated by former Channel 4 anchor, Mike Gousha, now a Distinguished Fellow in Law & Public Policy at Marquette. He was flanked by Journal-Sentinel reporter Greg Borowski and MULS Professor Dan Blinka. All three did a very nice job of respecting the conventions and ethics of judicial debates while trying to ask some questions that would actually get at something we care about.


Anonymous said...

I thought the color of a judges robe is black, not green.

I listened to the debate and should have counted all the times that Ziegler said she's proud. Shouldn't it remind you and all Marquette of the Proverb that says that pride comes before a fall?

Dad29 said...

Yah, Rick, it appears that this election is all about politics and nothing about philosophy.


Anonymous said...

Maybe it is just about politics... does Wisconsin want a liberal activist from Leftyville or a conservative judge from Washington County sitting on the Supreme Court?

Does Wisconsin want a balanced court or one that is tilted to the left?

Mark from Germantown

Anonymous said...

Charlie Sykes seems to be saying that the judicial rules or laws do not apply to your candidate. Could you explain why?