Tuesday, January 29, 2008

What is the Basting standard?

Blogging lawyer Illusory Tenant still professes to be confused by why anyone could possibly object to the state bar using mandatory dues from all practicing lawyers in the state to police speech in the state Supreme Court race.

Let me try one more time. IT wonders what the big deal is because the WJCIC is only asking the candidates to sign on to whatever regulation of speech is already embodied in Chapter 60 of the Supreme Court rules and who could object to that?

There are two problems with this. One is that people do object to the SCRs - at least as they have been interpreted by the Judicial Commission. Last year, a federal court in Madison held the rules to be unconstitutional if applied to prohibit candidates from stating their position on a series of contested issues.

But, IT will say, the agreement says "there is "no intent" to impose standards that are stricter than the Constitution. But, if we can't simply read the SCRs as written and believe that they comply with the Constitution, then an agreement that holds them up as the gold standard is of limited value.

But that's not the big problem. The WJCIC does not, as IT implies, simply offer this agreement and promise to go away, To the contrary, it offers itself as the arbiter of what the agreement - or the SCRs - require.

Some people have pointed out the political imbalance in the committee. I can't imagine why the people who put it together didn't see that as a problem. But I think we have far more direct evidence for the proposition that the WJCIC ought not to be accepted as possessing any more authority than, say, my blog or Tenant's.

The WJCIC has given us an example of how it read the SCRs. This is where the Basting standard comes in.

State Bar President Tom Basting, writing on behalf of the committee, thinks it is a violation of the rules for a candidate to characterize his opponents positions as consistently siding with defendants. This, he says, calls into question a judicial candidate's impartiality. How far Mr. Basting would take this is unclear, but another blogging lawyer, Mike Plaisted, says that it would prohibit a candidate from saying that his opponent "frequently misreads the law to expand the rights of criminal defendants and to impair the function of law enforcement."

I have explained elsewhere why I think both are wrong - as an interpretation of the SCRs, as a matter of policy and as a measure of what ought to be constitutionally protected discourse. I have tried to point out that it does not reflect the way in which the public, lawyers and even legal academics talk about judges. It handicaps public debate on issues that matter and imposes an etiquette on discourse that we are generally able to see as chilling in other contexts. Given the rather clear suggestion that the WJCIC intends to read the rules in this way, I would not suggest that either candidate sign on to the agreement or confer legitimacy on the WJCIC as some neutral arbiter as to what can or cannot be said.

Whether or not I am right has nothing to do with the Federalist Society or WMC or any other interested party in the supreme court race. I am not "put up" to this view by any of them nor do I adopt it in furtherance of some undisclosed support for any candidate. Any one who has read this blog would now that, when it comes to political speech, I am a near absolutist.

This doesn't mean that I think anything goes or that all things said in the course of a campaign are fair. I think that people who engage in political debate would generally benefit from a dose of intellectual honesty and courtesy. As I have said there are often problems in the way that decisions regarding matters of criminal procedure are discussed in public (although these problems really have nothing to do with the SCRs or questioning impartiality or judicial dignity; they are substanive - the public values procedural rights less than lawyers (including this one) do.)

But I do not trust the state or a truth squad that imbues itself with a patina of neutrality and claims to be engaged in the disinterested application of objective standards with some special authority to declaim on these matters.

Monday, January 28, 2008

How did Obama do?

Did Obama help or hurt himself in his bid to avoid being labeled the African American candidate? I think he did fairly well. There was an enormous disparity in black and white voting patterns but his level of support among white voters did not fall as low as one poll predicted. It was low but I think he makes up for that a bit by the large margin of his victory.

Still, the Clintons don't seem to have abandoned the strategy of attempting to isolate Obama as a candidate with mostly black support as demonstrated by Bill's reference to Jesse Jackson's wins in South Carolina. On balance, I'd say that Saturday was a "B" day for Obama. He gets a big win and the publicity that goes with it, but the numbers still reflect a racial dynamic that, unless he breaks it, means that he can't win the nomination.

People assume that this racialization of the campaign will continue if Obama wins the nomination. Maybe not.

I still think that it is problematic for Obama that he remains undefined. Caroline Kennedy endorses him because .... why exactly? Because he's young and good looking like her father was when he was elected? Because he's cool? Went to Harvard ? (Believe me, its overrated)?

For almost 45 years, people have made JFK into whatever they want him to be except the one thing that he undeniably was - a fierce cold warrior. They have been able to do this because, tragically, he was killed before he became whatever he would be as President.

But Obama is going to have to be something. We know what people who chant "we want change" at a victory celebration during a primary campaign want. They tend to be partisans who want the other guys out.

But they aren't the people who will decide the election. For them, change must be defined in nonpartisan terms - at least symbolically if not substantively. Obama, so far, has doubled down on the symbolism without connecting it to anything substantive. One of the reason that has worked as well as it has is that Hillary is limited in her ability to redefine him. The thing about running against someone who agrees with you on almost everything (as Hillary does) is that she can't really challenge your theme by suggesting that it represents something undesireable. So the Clintons are reduced to haranguing about experience and, if not exactly race, the exent of Obama's racial appeal. It may work, but, right now, I'd say it's touch and go.

If Obama is nominated, that ends. He no longer gets to talk exclusively about hope and change and his personal story. He will remain the inexperienced one, but he will also become the one associated with policies that Americans have pretty uniformly rejected in presidential elections as long as I have been old enough to follow them. Maybe that changes in '08, but I don't think it'll be as easy as a lot of my Democratic friends think.

Sunday, January 27, 2008

Sunday is a day of rest

It's Sunday so maybe it's time to take a brief rest from politics. Dave Bernstein over at Volokh Conspiracy does Sunday song lyrics while, locally, we often get Saturday evening performances from Michael Mathias and others.

Being an old guy, I think I'll blog on old rock bands. I start with the latter day Fleetwood Mac. They were sort of made for the 70s. The members of the band had, at one time or the other, paired off romantically in just about every binary heterosexual combination imaginable. Their body of work was uneven. When they drew on the original Fleetwood Mac (a very different 60s blues band that spun off from John Mayall's Bluesbreakers and was fronted by Peter Green and included Mick Fleetwood and, eventually, John and Christine McVie), they could be quite good, but they also tended to schmaltz.

The band had three front persons but, ultimately, it was always about Stevie who wrote the most interesting songs and whose over the top gypsy witch persona was the most entertaining (although I think I sort of liked Christine McVie, the English keyboard player, on sort of Ginger/Mary Ann grounds). I offer, for your Sunday edification, a live version of "Sisters of the Moon", one of the better, if not so well known, Mac songs. It's also a great Me Decade song, being largely a lament by Stevie over how hard it is to be her. Note the rather large hair (this was actually filmed in the early 80s) and singing in tongues at the end.

Saturday, January 26, 2008

What's up with the Democrats and Obama?

I am fascinated by this race and gender dynamic that is going on in the Democrat presidential race. There is one poll suggesting that Obama's support among white voters in South Carolina has dropped to 10% and another shows it at 20%(but Reuters is less striking).

Maybe it's just South Carolina, but Florida poll seem to show the same thing. Could there be a real possibility that we will see enormous racial gaps in support for Obama and Clinton going forward? Obama supporters that I know fear that this will label Obama as the "black candidate" and doom him.

On the one hand, I am gobsmacked by this. Were I a liberal Democrat, I can't imagine wanting to support Clinton. I'd feel that she is much less likely to win the general and would bring back everything that was so distasteful about her husband. But I realize that this is influenced by the fact that we conservatives tend to really dislike the Clintons and liberal Democrats don't feel that way.

On the other hand, I am not really surprised that she has whittled away his support through negative campaigning. That's how the Clintons roll.

What I am not sure about is why it seems to be working. I can think of some hypotheses.

Whites are abandoning Obama because he is black. The idea that Obama can't be elected because he is black has never resonated with me. Why wouldn't a nation that canonizes Oprah and Michael elect a black President? Lingering white racism seems to be more salient when it comes to presuming that blacks we don't know fit black stereotypes, i.e., assuming that the black male walking toward you on the street is dangerous, etc. That doesn't really apply to people who reach a point in life where they run for President.

But the numbers are the numbers, so I can't rule it out. In that sense, I think its ironic that this is happening on the Democrat side given their self righteousness on race. My sense is that, if she proved to have political chops, Condi Rice could have walked away with the GOP nomination.

Liberal whites are abandoning Obama because they think a black candidate can't win. Perhaps the problem is that liberal Democrats are more likely to believe that America is a racist country that won't vote for a black so they are moving to Clinton on "electability" grounds. Now that would be really be ironic. Certainly the Clintons are trying to push Obama into being seen as the "black" candidate who lacks support outside the African American communutity.

Obama is losing the battle of conflicting entitlements. There is a great piece by Noemie Emery in this week's Weekly Standard. She argues that the language of race and gender is so much part of the Democratic base that they simply can't abandon it. In the economy of demographic entitlement, maybe it's ladies first. Think of Ellen Goodman's recent lament that we "were so busy celebrating history that we forgot to make it." On this view, you have to get a woman as President before you can have a black one.

Or maybe, for people who are inclined to believe that race and gender are everything, self identity matters and Democrat women are outvoting Democrat blacks. On the other hand, white men in South Carolina don't seem to be supporting Obama either. (According to McClatchey/MSNBC, they are breaking overwhelmingly for Edwards. He turns out to be the candidate of NASCAR Nation.)

Clinton is making her case to white voters but blacks are sticking with Obama out of racial solidarity. Just like Mormons might disproportionately support Romney. The thing about racially polarized voting is that it only tells you that race is a factor or is highly correlated with a factor. It doesn't tell you why we have polarization. Maybe white voters are actively choosing Hillary as the better candidate.

This brings me back to where I started. I can't believe that folks would really want her as President but, again, the numbers are what they are. Maybe it's Obama's lack of experience. Or maybe, if you are a liberal Democrat, you just like Hillary.

These aren't mutually exclusive and I suppose that there are cross tabs that shed more light on them. We'll certainly know more later today, but I have to go and do real work now.

Friday, January 25, 2008

Judicial campaign etiquette

I had what I think was an illuminating exchange with the increasingly vitriolic local blogger Mike Plaisted at his site. He thinks that it was unfair for a Gableman campaigmn official to say that Justice Louis Butler "consistently sided with criminal defendants" in a series of cases. This, he says, draws into question Justice Butler's impartiality.

I disagree. I assume that Butler's ruling on matters of criminal procedure stem from his view of the pertinent constitutional provisions. I may disagree with those views but my criticism would not be that he isn't impartial.

Still, how do we frame that disagreement? I have blogged about the tension between the demands of the judiciary and our state's choice to elect judges. There is no easy resolution of that tension which is one of the reasons that I dislike truth commissions who suggest that there is.

But seeking to clarify what may or may not be permitted, I asked Brother Plaisted whether it would be permissible if someone had said that candidate X "frequently misreads the law to expand the rights of criminal defendants and impair the function of law enforcement."

After a bit of prodding (I'm getting used to it), Plaisted's answer was "no." Apparently, by his reading of the rule governing conduct in judicial elections, one can discuss the legal niceties of a particular case (what restrictions would be placed on that is unclear), but cannot categorize a judicial candidate's philosophy or perspective on a particular issue.

I find that to be an extraordinary position. Were the state to attempt to enforce that, it would be clearly unconstitutional. Even as an unenforceable aspiration, it seems ill advised and inconsistent with the way in which lawyers regard judges and in which judges function.

A judge does not approach each case anew with no preconceived notions of the law. If Louis Butler or Michael Gableman had no opinions about the 4th or 5th amendments, it would mean that they had not thought about them and were, for that reason, unqualified for the high court. (Happily, this is not the case.) To be open to the arguments in a new case is not to pretend that one has no views on the legal issues involved.

Differing views on those legal issues matter and it seems to me that it is fair to debate them.

Let's change the hypothetical. Imagine that Justice Thomas served on the Wisconsin Supreme Court and was running for reelection. His opponent releases a statement saying that "Justice Thomas consistently misreads the law to prohibit race-based measures to improve the lot of minorities."

I would not agree with that statement but I would not regard it as beyond the scope of proper campaign discourse because it "questioned" Justice Thomas' "impartiality." What it questions is Justice Thomas view of equal protection.

I am perfectly aware that criminal cases are a source of difficulty in judicial elections because the public will tend to undervalue the procedural rights of defendants. To use an example pertinent to the current election, some people may criticize Justice Butler for his decision in State v. Anderson, a 4-3 decision in which a new trial was ordered for a man convicted of brutally raping and murdering a young woman in Madison. Fair enough (three justices did go the other way), although, based on what I know of the case, I probably would have agreed with Justice Butler. I don't know that the guy is innocent, but it looks like he deserved a new trial. Even a conservative may side with the claims of a criminal defendant.

But that can hardly mean that the question of a judges' views on the rights of criminal defendants is off the table.

I really don't see an alternative to an open and robust debate of the issues.
The argument that this type of close restriction of campaign speech is required for an independent judiciary (and that term is quite clearly going to be a talking point)is a bit of a non sequitur. We obviously don't believe that the judiciary ought to be independent from the public in the sense that the public can't evaluate how it has decided cases. If we felt that way, we wouldn't elect judges.

More thoughts on Obama

Last week I posted an item on Barack Obama and his minister, Jeremiah Wright. The point of the piece was as follows. Obama has ran a campaign that is long on aspirational rhetoric about hope and change and very short on what that hope and change means. (I'm not talking about what you can find stuck on a website; I am referring to the campaign's messaging.)

In addition, he is, for a presidential candidate, a person of remarkably little prior national exposure and astonishingly little Presidential caliber experience. (And, yes, this description could also be applied to George W. Bush in 2000.)Unlike, say McCain, Clinton and Giuliani, we don't know him very well. (And, yes, I agree that we don't know Romney or Huckabee all that well either.)

In light of that - and because this is an election for President and we are entitled and obligated to understand those who want the job - I blogged that it was appropriate to ask Obama to clarify his relationship with and, more importantly, his understanding and evaluation of the views of Jeremiah Wright.

I said it was appropriate because Obama himself has said that Wright has been very influential in his life.

Wright is an Afrocentric Christian minister in the mode of black liberationist theologian James Cone. Cone has championed a view of racial reconciliation that tends to be more separationist and focused on grievance which, in his view, must be addressed in particular ways before reconciliation is possible. (At least for the most part, Martin Luther King held a differing view.) My sense is that Wright generally shares Cone's view and his praise for Louis Farrakhan reflects that.

Obama's messaging is far from this, but we generally don't allow candidates to define themselves without critical examination. It seems useful then to ask Obama what he thinks about his pastor's more radical views. Not because Obama is black and we have to assure ourselves that every black candidate is not Eldridge Cleaver in MLK clothing, but because he himself has directed our attention to Rev. Wright.

The MJS excerpted this post for the Best of the Blogs and, because it was a long post (imagine that on S & S!) had to edit it heavily. What remained was fair but couldn't convey all of the nuance.

This prompted at least one caller to Eric Von's show to wonder if I am a racist. I don't see where that comes from, although I am certainly willing to clarify and hope that I have.

But I think that the Obama campaign - and those who support him - would be playing a dangerous game if they yield to the temptation to characterize criticisms of or challenges to the candidate as racist.

My Backstory colleague Dave Berkman (who I have grown to be fond of, notwithstanding politics frozen in amber since 1965)succumbed to the temptation during last night's show. Obama, in his view, has answered all questions about Wright and has kicked him under the bus. Therefore, the only explanation for raising the issue is racist.

Now, I did spend some time looking at news articles about Wright and Obama before I posted. I know that Obama has said that he has disagreements with Wright and decided not to have Wright introduce him at his presidential announcement. I do not know that he has explained, in a way likely to come to the attention of large numbers of people, just how he reconciles his own presumably kinder and gentler view of unity with those of his spiritual mentor.

Perhaps he has and I missed it, but this is not an unreasonable question. When you proclaim yourself to be devoted to unity and to getting past historic divisions, you ought to expect people to ask you what that means. Cone's view of unity is quite different than King's and these differences might matter to some people.

As I said, it could be that Obama really has addressed this in a way that I would find satisfying. Maybe I am being unfair to Rev. Wright. I am willing to listen to those who think so.

But to be told that even asking the question is racist or, as one local blogger put it, places one in the category of those with no souls is beyond the pale and exactly the wrong way to get your guy elected.

In this country, given our racial past, you can always use race to shut people up. They will back off, but they won't like it. If they perceive that you are using race to fend off what they see as legitimate nonracial questions, they will respond by disengaging from you so that you can no longer use this weapon against them.

I think that, at least to some degree, Obama understands that and is trying hard to avoid it. There are times when I wonder if the Clinton strategy is to move him away from that - to goad him into playing the race card against their attacks and thus redefining him as the "black candidate" with a limited appeal.

If that's so, they truly are some evil geniuses and those who are playing the race card in defense of Obama are playing right into their hands.

Thursday, January 24, 2008

Change you can believe in

They can be heroes.

Update: Around Wisconsin, blogger Illusory Tenant put this up first. I never clicked on his or her link so I didn't know, man. I offer it to the right side.

Wednesday, January 23, 2008

Are Berceau, Miller and One Wisconsin Now misrepresenting state abortion law?

Cory Liebman and One Wisconsin Now are promoting the efforts of some Democratic legislators to repeal Wisconsin's pre-Roe v. Wade ban on abortions. It is certainly true that the law, sec. 940.04, criminalizes abortion. It is also true, as I demonstrated in this white paper for Americans United for Life, that, should Roe be overruled, sec. 904.04 could be enforced against abortionists(although I suggest that the penalties for abortionists might not be those set forth in 940.04 itself.)

But Liebman is wrong to suggest that the law would impose "jail time on women that obtain abortions" and even jail "victims of sexual assault and those who experience serious health problems."

It would do no such thing. Sec. 940.04(3) did provide for imprisonment for women seeking abortions and that language has not been removed from the statute but it has been rendered inoperative, i.e., it has been effectively repealed.

In 1985, after Roe, the legislature passed several new laws, including sec. 940.13 which removes all criminal penalties for women seeking abortions. It reads:

940.13 Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
(emphasis added)

Thus, on the day after Roe is overuled, abortionists could be prosecuted under 904.04, but women seeking abortions could not because of the exception created by the more recent sec. 940.13.

How could Liebman have made this error? Sloppiness is one explanation. If you just read 940.04 and ignored the other statutory provisions on abortion (including those in the same chapter of the statute), you could get it wrong. Maybe you could excuse a non lawyer for failing to understand that there could be other law out there modifying the impact of 940.04.

But I rather doubt that Cory Liebman actually read the law. It occurred to me that this error likely came out of someone's talking points.

And so it did. Liebman's post links to a press release by the bill's sponsors, Rep. Terese Berceau and Sen, Mark Miller that is apparently the source of this misinformation. It says that the "criminal abortion statute outlaws abortion and provides criminal penalties for women and physicians." The release says that "[t]his 158-year-old law imposes jail time on women who obtain an abortion, even those who are victims of sexual assault or who are experiencing serious health problems. Doctors would also face stiff penalties and jail time. The antiquated statute would be enforced immediately if Roe v. Wade were to be reversed — a very real threat given the current composition of the U.S. Supreme Court." (emphasis added)

A Berceau quote then talks about people wanting to throw women in jail for having an abortion. The clear message is that we have to repeal 940.04 because, if we don't and Roe is overturned, women who have abortions will be prosecuted and sent to jail.

But, as I have pointed out, state statutes now bar criminal penalties for women seeking abortion. If Roe is overturned, sec. 940.04 could not be used to prosecute them.

Liebman can at least say that, after all, he doesn't know what he's talking about. But Berceau and Miller are legislators who we'd think would get some legal advice when they start talking about changing state law.

Well, it turns out that they did. The bill repealing sec. 940.04 (SB 398)- the very one that Berceau and Miller sponsor - includes a Legislative Reference Bureau analysis that recognizes the existence and effect of sec. 940.13:

This law (940.13) prohibits prosecution of and imposing or enforcing a fine or
imprisonment against a woman who obtains an abortion or otherwise violates any
abortion law with respect to her unborn child or fetus.

I would have assumed that legislators read the bills that they sponsor, but I have, sadly, learned that this is not always so. Maybe Berceau and Miller really think that, if Roe were repealed, sec. 940.04 could be applied against women.

Or maybe they know that there would be much broader - and energized - opposition to jailing women than jailing abortionists. Could they have chosen, in Clintonian fashion, to refer to statutory language that they know can no longer be enforced in order to mislead people into thinking that, should Roe be repealed, sec. 940.04 could be used to throw women seeking abortions into jail?

I sure hope it wasn't that.

Tuesday, January 22, 2008

More on the WJCIC

Don Daugherty and a group of lawyers who I am proud to call colleagues and friends have written an excellent op-ed on the Wisconsin Judicial Campaign Integrity Committee. I commend it.

When the WJCIC was formed, I had two concerns. One was that, like many "independent" watchdog groups, it would not play down the middle. The other, and this has a lot to do with its connection to the bar association, is that it would advocate the mystification of judicial campaigns, portraying judges as engaged in a technical exercise about which the public can have no real opinion. On this view, judicial campaigns are mostly about qualifications and endorsements.

I agree that there is something about judicial campaigns that is different. Judges aren't representatives and they are not supposed to respond to majority sentiment. They do engage in the exercise of professional judgment which, while not as inaccessible to the public as particle physics, is not fully understood by most nonlawyers. They must often follow constitutional values embodying things like freedom of speech and procedural protections for criminal defendants that the public wants in principle, but undervalues in practice.

For a lot of people, this cuts against electing judges. But we in Wisconsin have chosen otherwise, so any discussion of "integrity" in judicial campaigns must begin with the recognition that we have decided to vote on judges.

Having decided that, it seems to be that we have to allow candidates and interested parties to talk about what matters in the selection of judges and, as any lawyer or law professor will tell you, judging - particularly at the Supreme Court level - is not merely a technical exercise. Different judges can - in good faith and with acceptable professional acumen - differ on what their role is and in how the law ought to be interpreted. When we in the profession talk about who we would like to see elected or appointed, those differences (once we get past basic honesty and competence) are what distinguishes one candidate from another. Judicial campaigns would be sterile and meaningless if candidates and their supporters could not talk about such things. There are huge differences between, say, Antonin Scalia and Ruth Bader Ginsburg, but qualifications are not among them. Both are wildly qualified. If we were to have to choose between them in an election, we'd have to discuss their differing philosophies.

And there will always be a certain amount of messiness involved in that. We must talk about these issues with voters who, as I said earlier, probably lack the training and interest to fully understand them. To some extent, this is true of all political campaigns, and, in those campaigns and in judicial campaigns, political people find that they have to express themselves in ways that people will understand. This often results in a certain degree of oversimplification and hyperbole. Republicans have "declared war on the middle class." Democrats are "soft on terror."

This isn't a good thing but the best remedy for it is to allow the candidates to defend themselves from unfair attacks and to explain disputed claims. "Truth squads," unless they are going to limit themselves to the misstatement of objectively ascertained facts and other egregious errors, are unlikely to be evenhanded (as much as they might think they are) and will not allow enough leeway for robust debate.

What the WJCIC (or at least its chair) has done so far is to take the otherwise acceptable notion that campaigns ought not "to lead voters to believe that a candidate will decide issues or cases in a predetermined manner" and try to turn it into a gag. Criticizing a candidate's judicial philosophy will certainly involve suggestions that he or she has a view on certain legal issues or on approaches to judging and it is inevitable that such criticism may imply that he or she is more likely than not to rule in a certain way on those issues.

But that's not the same thing as suggesting that he or she won't decide cases impartially or carefully listen to the lawyers' arguments.

Let's move to the particular controversy. One Wisconsin Now filed a complaint over some Gableman campaign literature that took Butler to task for his rulings in a series of criminal cases. The WJCIC said that "no formal action" was required, but added a discourse about not suggesting that a candidate will rule for any particular participant in the litigation process.

That addendum was curious and troubling for reasons I sketch here, but understandable in terms of the interests of the campaigns. Anybody with a cursory knowledge of the court and these campaigns knows that Justice Butler is going to be criticized as prone to take a more liberal view of the rights of criminal defendants.

We know that it is coming because, as an observation and not a criticism, there is no knowledgeable person that could, in candor, disagree with that. Whether that is a bad thing or not is another matter. It does not stem from a lack of impartiality but, I have to believe, from Justice Butler's own view of what the law and justice requires.

But, this is a view that other impartial, smart and honest jurists may not share. It's the kind of difference that we ought to debate and not stifle.

Gableman's campaign manager, Darren Schmitz, reacts to the WJCIC statement by treating it as a vindication (it really wasn't, but that's what political guys do) and saying that Justice Butler "consistently rules" in favor of criminal defendants. The chair of the WJCIC then issues a statement calling upon him to take it back, reiterating its rule about not accusing judges of favoring one side or the other and arguing that this undermines public confidence in the judiciary.

I think what Scmitz meant to say - and the manner in which I suspect most people would take it - is that, in cases where there was some disagreement (and those are the cases that are going to get up to the Court), Justice Butler frequently sides with the rights claims of criminal defendants. Maybe he should have used those precise words. Maybe he should have said that Justice Butler has a more expansive and liberal view of the rights of criminal defendants.

I do not know that either alternative formulation would have satisfied the WJCIC. I do share its concern that the rhetoric in judicial campaigns tends to oversimplify things and attribute bad faith to people who are acting, however erroneouusly, in good faith.

But this seems to me an inevitable byproduct of choosing to elect judges. Politics ain't beanbag. While it is tempting to think that we can wring all of the messiness out of the process, there is unlikely to be anything like an evenhanded referee.

People have suggested that the WJCIC's composition is not balanced. But apart from that, this episode suggests that, for a group claiming to be a neutral watchdog enforcing objective standards of integrity, they are slicing the loaf awfully thin.

On the most hostile interpretation, Schmitz' statement is a bit like a claim by Democrats that the Republicans have changed our tax system to "favor" the wealthy. This is literally false. The system remains progressive.What it is meant to convey is that they have changed it to be more friendly to the wealthy. I'm not sure, however, that I want speech police telling them that they have crossed some line of acceptable behavior.

Part of the reason that I do not is that I doubt that the WJCIC - or any other group - is really capable of being evenhanded and thorough in enforcing such a rigorous standard. I suspect that Gableman is going to be called a tool of WMC and corporate interests. (One Wisconsin Now has already said that he is partisan. Doesn't that violate the "rules"?) Is the WJCIC going to be equally vigilant on those charges? If so, I suspect that those lawyers on the committee are going to have some fairly punk billable hours for the first quarter.

Our tradition generally holds that the remedy for bad speech is more speech. While the WJCIC has no authority over anybody, it is annointing itself as a dispassionate and honest broker. The problem is that, the more intrusive you get, the less likely that is to be so.

Monday, January 21, 2008

A message for King Day

I want to followup this week on last week's post about Barak Obama's minister which was excerpted by the Journal Sentinel and the response of some of our locals to it.

But, first, a reflection for King Day.

One of the local bloggers referred to Rev. Jeremiah Wright's affinity for James Cone who is a prominent early advocate of black liberation theology. I've taught a summary of Cone for law students, contrasting his approach to racial reconciliation with that of Martin Luther King and then drawing comparisons with threads in the case law on equal protection. I think that what Cone preached is fraught with problems that are quite pertinent to the present contorversy over Reverend Weight and Obama, but he is certainly worth studying.

In fact, I refer to his work in some recent scholarship on the government's ability to exclude worship from limited purpose public forums. Cone was quite insightful on the political implications of Christian theology for blacks' response to, and understanding of, the Jim Crow era. He cites one traditional African American prayer:

And now, Oh, Lord, when this your humble servant is done down here in this low land of sorrow; done sitting down and getting up; done being called everything but a child of God; Oh, when I am done, done, done, and this old world can afford me a home no longer, right soon in the morning, Lord, right soon, meet me at the River of Jordan, bid the waters to be still, tuck my little soul away in your chariot, and bear it away over yonder in the third heaven where every day will be a Sunday and my sorrows of this old world will have an end, is my prayer for Christ, my Redeemer's sake, and Amen and thank God

Keep religion out of politics? Not quite so simple.

Depression sets in

The Giants. They gave up 80 points in their first two games. We manhandled them in week two. The Vikings ran all over them. Even last week, the Cowboys outplayed them.
It was there to be taken. The Super Bowl. We could have broken the Pats' streak.

The team is good but you have to be good and lucky to get this far. The team is young but its quarterback has got one foot in The Villages.

A small fortune for tickets. 40 pounds of outerwear. Ice on the seats. My diet coke froze while I was drinking it. There were two Giants fans in front of us and they were so fricking nice. (I think they called Charlie's show this morning.) Couldn't throw things at them. Couldn't hate them.

It is my son's birthday. Couldn't the Packers win for him? (Ok, so he's 24. The principle still applies.)

Last night, as we arrived in home, got in bed and turned out the lights, the Reddess said the following:

Noooooooooooooo ! (Tasteless comments will be deleted.)

There is a banality in watching the other team win in overtime. Their celebration seems so normal as it perverts the moral order.

Hell is other people when the Packers lose.

The future is a cleat grinding into Driver's face ... forever.

Life is a bitch and then you can't convert third downs.

Smiling faces I can see/but not for me/I sit and watch ...

I bargain

We can win this next year. We can't ask God for victory, but, if we just get some help on the interior of the offensive line and maybe pick up a bigtime playmaker in the secondary, we'll be set. Maybe Will Blackmon will even be that guy if we believe in him. If we are good all year and do what our best and believe in Brett as hard as we can, then we can win.

And if we do win it all, that will be enough. It'll be all we need. Favre can retire then. We won't ask for more. Ever. Again. Really.

Let's try anger

The Giants beat the Packers soundly. But why?

1 Al Harris - Plaxico Burress owned him. If that doesn't happen, it's a different game.

2 The Packers O line - The pass protection was OK, but the run blocking looked like it did at the beginning of the season. Grant had nowhere to go.

3. Poor play calling - This is the hardest thing for amateurs to judge, but it seemed like they could throw down the middle and needed to exploit that until the Giants stopped it. The sideline stuff and the wide receiver screens were never there. Even over the middle, I wonder why they didn't throw more slants and short stuff. One thing that may have made the playcalling look bad is that the Giants tackled better than I have seen all year.

4. Favre got cold - People are saying that he looked cold and old, but that was just at the end. He had a great game for two and a half quarters. They were moving even without a running game. Maybe the weather finally got to him. There's a reason we tend to move south when we retire.

5. Jarrett Bush - fall on the damn ball! - He may have thought he didn't have the room for it, but why do people who play professional football for a living have so much trouble remembering this?

The Shark tries denial

What a great morning to blog about politics; it being King Day and all. I don't imagine that there's a single reason to think about anything else. I mean, how about those Nevada caucuses? Hillary wins, but, then, she really doesn't because Obama gets one more delegate. McCain gets up off the canvas (Ed. No sports metaphors!)... no, he proves that he is ageless, quieting concerns that he is over the hill. (Ed. Worse!)Then there is that state Supreme Court race with Justice Butler and Judge Gableman out on the campaign trail - probably sleeveless, shaking off the harsh Wisconsin winter and, oh, forget it.

Saturday, January 19, 2008

Shark predicts ...

What will happen tonight? I am made nervous by the lack of a Giants' victory narrative that we can evaluate. Seattle had a proven quarterback, solid defense and a great coach with a seasoned team. You could see how they could win. The Packers beat them like a drum.

The Giants don't have that story. Eli Manning has played well and I think he's going to be a very good quarterback but it doesn't seem likely that he can light up the Packers defense. Against the Cowboys, he mostly avoided mistakes and had a great drive before the end of the first half. (He is great in the two minute drill.)

They have a great pass rush (they were all over Romo) but I don't think that will rattle Favre and the back seven don't figure to handle the Packers short stuff and YAC. The Cowboys ran all over them in the first half but went away from the run in the second. The Cowboys moved the ball but, when they needed it, no one stepped up and made a play; in that sense, the fact that TO was playing hurt was huge. The Packers seem to have too many playmakers for that to happen.

There's no reason to believe the Giants can win, but ...

They have won nine in a row on the road. That's a huge thing. It bespeaks character. They are playing a third straight road game against a team that is playing as well as anyone in the NFL in their historic venue under conditions that only the Packers and , to a lesser degree, the Bears, Browns and Bills still play in on more than a rare occasion. But the Giants have won nine road games in a row.

In fact, as Bob McGinn argues in today's Journal Sentinel, the weather may increase the likelihood of a Giants win. The argument is that no one can really play in this stuff and that makes it a great equalizer. The Ice Bowl was a fluke of a game. Dallas scored touchdowns on a long option pass where Rentzel was uncovered, a return of a fumble recovery and a field goal set up by a fumble recovery. One of the Packers scores came on a blown coverage. Until that last drive, no one could really do what they wanted to do. Even then, the Packers had to, essentially, run a play they didn't have - Starr's sneak - because the backs couldn't get any traction (although, ironically, Mercein did on the last play and had to throw his arms up in the air to avoid being penalized for pushing Starr into the end zone. Good thing he went to Yale.)

My fear is that the cold takes away the passing game and the Giants get their running game going. Ryan Grant or Favre fumble a few. Sort of a reprise of the second Bears game.

On balance, I don't expect that. The Ice Bowl analogy is flawed because 1)it won't be that cold and 2) the Packers have a heated field now. Tonight, everything but the tundra will be frozen.

The Bears game analogy is flawed because the problem there was the wind. We won't have much of that tonight so it's not at all clear to me that the passing game will be taken away by the weather. It was 3 degrees at kickoff (-17 windchill) in the '96 championship game and the Packers hung almost 500 total yards and 31 points on the Panthers.

It may be a tight game because the Giants are playing well enough to make it that, unless they just run out of gas. They had a must win road game at Buffalo, a game against the Pats which they played like it was their Super Bowl and two road playoff games. You can make a case that they are playing beyond their ability and they might not have anymore of that.

I think we're looking at a tight game until the start of the fourth quarter. The Packers score a couple of touchdowns to put it away. Packers 35 Giants 17.

The green and gold are not red

It's a really long story but I have 4 endzone tickets for tommorrow's NFC championship game. Buy them so that the Reddess, Shark, Jr. and I can afford gas to get up to Lambeau to use the other three tickets that we own. (For my liberal readers, no need to worry. We'll be on the other side of the stadium, although Chris voted for Kerry.)

But this is a political blog so we need to make ideological hay of even the holy things in life and Paul Soglin dutily attempts to do this suggesting something or other on his blog about what the Green Bay Packers mean for capitalism or conservatism or something.

This seems to be the point. After noting that the Packers are non-profit*, he writes:

But if you asked Mark Belling, Charlie Sykes, and the rest of the free market New York Giant fans, they would tell you that, at best, the structure is stupid, at worst it is un-American.

I can just see them explaining to a twelve year old why this non-profit structure is wrong, it contradicts the American free enterprise system. Watch him look at you with incredulous eyes.

Watch that straw man burn.

I cannot recall any tenet of conservatism that says that non-profits are bad. Indeed, much of mainstream conservatism is informed by the principle of subsidiarity and the idea that, in most cases, freely chosen associations are to be preferred to those that are compelled by the state.

We do understand that the profits are a great incentive and there are many necessary walks of life in which they may be a necessary incentive. Many children dream of winning the Super Bowl. Few dream of offering precision seals and o-rings at a reasonable price. Still, we need then and, generally speaking, it takes a payday to get folks excited about something like that.

The point made in the comments about the NFL being sort of socialist in that it imposes a salary cap and shares much of its revenue also misses the mark. Although the NFL has 32 competing teams, it is really one single product that won't be very attractive if those teams aren't competitive.

* But his point about the Packer's low average salary is misleading. That's a product of their youth. If they want to keep this team together, that's going to change dramatically. Football players are stubbornly responsive to financial incentives.

Friday, January 18, 2008

Deep question for a cold Friday

Lawprof Rob Vischer, writing over at the incomparable Mirror of Justice, asks conservatives a good question. Using as his starting point, a statement from Rush Limbaugh on his personal desire to be independent from other persons. Rush said, although not everyone can do it, more people can that that's what conservatism is. Vischer asks us:

I understand -- and agree with, in many contexts -- conservatism's skepticism toward government as the most effective provider for human needs. But Rush seems to be taking that skepticism to another level, turning it into a principle that stands in direct conflict with the nature of the human person, as expressed through the ideas of solidarity, reciprocity, subsidiarity, and the common good. I know there are many different currents within the mighty conservative river, and so I'm likely to get many different answers, but let me try to simplify the question: is Rush disconnected from mainstream American conservatism, or is mainstream American conservatism disconnected from an authentic understanding of the human person?

There follows an interesting discussion among MOJ's contributors. I am inclined to agree with Rick Garnett who doubts that Limbaugh is stating a sophisticated, anthropological point.

But Vischer's question is still very important. Let's take the anthropological view of Professor Garnett (who I think can fairly be described as a conservative):

We [Catholics] have . . . an alternative vision to propose, one that turns the received anthropology on its head, one that emphasizes not so much our autonomy and moral self-sufficiency as our dependence and incompletion. After all, the fact that freedom of choice is a gift, and even that its value is “inestimable,” does not make it the only valuable thing; that we are distinguished by our capacity for choice does not mean that our dignity is reducible to that capacity. We are not merely agents who choose; we are people who belong, who exist in and are shaped by relationships. We live less in a state of self-sufficiency than in one of “reciprocal indebtedness;” A Christian anthropology acknowledges our limits.

I think that he has it right but of course this informs, rather than decides, our policy debates. Recognizing human interdependence does not mean that human persons ought not to be held to some measure of individual responsibility. Indeed, living into this relationship of reciprocal indebtedness and radical regard for others may well require it. Acknowledging how we live in relationship does not really tell us to what extent those relations need to be managed coercively - from the top down - by government. Understanding that human dignity lies in more than the capacity to choose may have some implications for social policy that are more identified with American conservatism than liberalism.

But - at least for Christian conservatives (and my impression is that Jewish and perhaps other theologies have the same implications), shouldn't this understanding of humanity must remain at the heart of our thinking?

In any event, Professor Vischer will be presenting a work in progress to the Marquette law faculty later this semester. I look forward to that.

Tuesday, January 15, 2008

Don't tread on Suhr

Over at his blog, Michael Plaisted is apoplectic about the video interview that I did with WMC. He says that it is "propaganda" and a "comedy star-turn." I guess he didn't like it but I don't know why because he doesn't respond to a single thing that I said, other than to suggest I mischaracterized Thomas v. Mallett (I dare him to back that up) and that, if the people think the court gets the constitution wrong, they ought to just shut up and accept what they have been told.

Mike thinks that I just must be not only wrong but somehow comical, because 1)WMC asked me to do it and 2)because, after 16 years as a litigator at one of the largest firms in the country and ten years as general counsel at an international manufacturing concern (during which time I consistently taught at the undergraduate and law school levels), I just recently decided that I wanted to devote full time to teaching and scholarship.

Maybe my observations were wrong (certainly there are smart lawyers and academics who see things differently), but you wouldn't know it from what Plaisted wrote.

I am a bit more put off, however, by his attack on one of my student for some work that was undertaken on his own without, as far as I know, direction or compensation from anyone. In describing the state supreme court's decision in a State v. DuBose, Daniel Suhr wrote that the Court "significantly departed from its own prior precedent and that of the U.S. Supreme Court."

Lawyer Plaisted (a UW grad, I think) says Daniel is wrong:

... I happen to be very familiar with another one of the cases identified by Suhr as "failing to defer to the U.S. Supreme Court". In fact, the case is exactly the opposite – getting the Wisconsin case law in line with the U.S. Supremes – not the other way around.

According to Plaisted, the DuBose Court "makes it clear that the Wisconsin Supreme Court was changing from its previous standards on show-ups to comport with U.S. Supreme Court cases on the same subject; hardly ignoring or in conflict with federal law."

He offers no support for that assertion, so let's examine it here. If you don't want to read the legal stuff that follows, the takeaway is that Plaisted's characterization of DuBose is, I don't know what else to say, bizarre. It's a bit like saying that, if the Wisconsin Supreme Court decided to abandon the rule of Brown v. Board of Education in interpreting the state equal protection clause and return to the "separate but equal" rule of Plessy v. Ferguson, it would be getting in line with the U.S. Supremes (the 1896 version.) (The Supremacy clause would prohibit such a return in real life, but you get the point.)

Here's how I see it:

In DuBose, the the state Supreme Court, in the most generous interpretation, abandoned the U.S. Supreme Court's (Biggers and Braithwaite) and its own(Wolverton)current standards for determining the admissibility of out-of-court identifications in favor of a earlier standard that, by the court's own admission, the US Supreme Court had moved away from. Current federal practice was not to exclude identifications resulting from suggestive procedures if they are, nevertheless, reliable under the totality of the circumstances. The DuBose court moved to a rule that would exclude them unless they were necessary. The Court did this in response to studies cited by the Wisconsin Innocence Project that are claimed to show that eyewitness identification is unreliable.

That this was a departure from the current Supreme Court practice is clear from reading DuBose itself. The Court characterized earlier SCOTUS decisions as focusing on whether the suggestive identification was necessary (did the police have to do it that way?) rather than whether the resulting identification was unreliable (is it likely that the eyeball witness pointed at the wrong guy?). Justice Crooks, writing in DuBose, conceded that the rule had changed: "After the Supreme Court's decisions in Biggers and Brathwaite, the test for showups evolved from an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable."

But, Justice Crooks wrote, the substantially similar words in the Wisconsin Constitution ought to be read to require more:

Based on our reading of that clause, and keeping in mind the principles discussed herein, the approach outlined in Biggers and Brathwaite does not satisfy this requirement. We conclude instead that Article I, Section 8 necessitates the application of the approach we are now adopting,[18] which is a return to the principles enunciated by the United States Supreme Court's decisions in Stovall, Wade, and Gilbert.

In other words, we are going to abandon what the Supreme Court is currently doing and go back to what we think it used to do. Whether this is a good rule (or whether it really is what the US Supreme Court used to do) is something we could discuss, but DuBose was not simply getting in line with the U.S. Supreme Court.

But you don't have to take my word for it. You can rely on what Justice Louis Butler said about DuBose in another case (Knapp which we will get to in a moment). After maintaining that the state Supreme Court has the authority (and it does) to interpret cognate provisions of the Wisconsin Constitution differently than the U.S Supreme Court reads their federal counterparts, he wrote:

Our recent decision in State v. Dubose, 2005 WI 126, __ Wis. 2d __, __ N.W.2d __, fits this framework. In that case, based in part on the extensive research on the inaccuracy of eyewitness identifications, this court relied on the Due Process Clause of the Wisconsin Constitution to conclude that showup identifications are inadmissible unless, based on the totality of the circumstances, otherwise necessary. Id., ¶¶29-34. Thus, we departed from the current federal law that centered on the reliability as opposed to the necessity of the showup. Id. (emphasis added.)

Plaisted has argued that Louis Butler is a smart and honest guy. Although I disagree with Justice Butler on many legal matters, I agree with this characterization. His defenders ought to be as candid and accurate as he was.

Mike doesn't talk about Knapp itself, but blogging lawyer Illusory Tenant does (and, yes, I said something nice about him on Jane Hampden's show; I enjoy his blog as much as I disagree with much that he [or she, how could we know?] says.)

But he wants to take issue with Daniel's characterization of the Knapp case which excluded physical evidence obtained as a result of a failure to Mirandize a suspect. (The officer asked him what he was wearing last night and he pointed to a sweat shirt on the floor that was ultimately found to be stained with the victim's blood.)Daniel wrote that the Knapp majority concluded that "Wisconsin's search and seizure clause, which is virtually identically worded, provides greater protection to suspected criminals."

IT's criticism is not, as Plasited's is, just flatly wrong. In fact, what he does is to shift away from what Daniel said to statements made by Charlie Sykes. He wants to say that the federal rule was not crystal clear and that is certainly so. But the implication that Daniel's characterization of the case is wrong ("overly simplified — if not misleading — account of his jurisprudence") misses the mark.

Let's go to the law.

As IT correctly observes (and as I said in my own white paper), the SCOTUS decision (Patane) that the Knapp court did not apply and which held that physical fruits of a Miranda violation need not be excluded had no majority opinion. Only three justices joined the plurality opinion, but, as Justice Butler wrote in Knapp, two concurring Justices agreed that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself." Maybe they'd see the Knapp facts differently (the officer in Knapp said he intentionally did not Mirandize) but they also said other things suggesting that introduction of reliable physical evidence ought not to be excluded because it was turned up in the course of an unwarned conversation.

The Siebert case, decided the same day, involved the introduction of testimonial evidence (the defendant's confession) following a Miranda violation.

There may be wiggle room between Patane and Knapp, but the court didn't take it. Again, we only need look at what the Knapp court itself said it was doing. It made it quite clear that it was basing its decision on Article I, section 8 of the Wisconsin Constitution and not on federal interpretations of the 5th Amendment. It did that explicitly and for good reason. A US Supreme Court decision, Michigan v. Long, makes clear that, if state supreme court are going to have their independent interpretations of cognate state constitutional provisions respected (New Federalism), they must make it clear that they are relying on state, and not federal, grounds. The Knapp court did that and so the state had no recourse to the US Supreme Court. It's decision excluding the evidence was final.

(It has no bearing on the issues here, but, just for the record, Knapp was convicted anyway.)

My point is that these are all legitimate issues and not the result of some WMC/talk radio/Federalist Society disinformation machine. The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth. They can do better than that.

Who is Barack Obama on Sunday?

Let's imagine that it turns out that one of the GOP presidential candidates, let's say it was Fred Thompson, turns out to attend a Eurocentric church in which the Pastor has praised a political leader (think, maybe, David Duke) who is profoundly anti-semitic and has said things like "blacks are potential humans - they haven't evolved yet." Thompson praises the pastor as his spiritual mentor and as someone who has had a profound influence on his life, but says that they don't "agree on everything."

Wouldn't this be an issue? If its important that Ronald Reagan began his 1980 campaign in Philadelphia, Mississippi and that George W. Bush spoke at Bob Jones University - if Mitt Romney must bear the weight of his church's racial past - you'd think that this connection would require some exploration.

Of course, Fred Thompson doesn't have such a pastor and spiritual mentor.

But Barack Obama does (the praise being for Louis Farrakhan who made the quoted statement about whites). David Bernstein has more at the Volokh Conspiracy.

As Bernstein points out, it's not that Obama may believe the stuff that Farrakhan does, it's in his claim to be a "uniter" who wants to move past the politics of the past. Unless Obama can somehow make the very real differences we have go away by, I don't know, changing the laws of physics, the real question behind that is "what are boundaries of unity he proposes." On what terms are we to come together?

It has always been a goal of the left to bring whites and blacks together on the common ground of white guilt and black grievance. It hasn't worked yet and it never will. Is that what Obama proposes behind his softer and gentler language?

This is going to be an issue (did Clinton plant this?) and its not an unfair one or a racially charged "smear." We'd ask these questions of my hypothetical Fred Thompson and we ought to ask them of Obama as well.

Monday, January 14, 2008

GOP3 joins the Supreme Court debate

I am going to post on the Wisconsin Judicial Campaign Integrity Committee later today and comment on this column in the Journal Sentinel but I commend Daniel Suhr's analysis of a series of decision by Justice Louis Butler as an example of the kind of debate that we can have about judicial philosophy. (Full disclosure: Daniel is one of my research assistants although I was unaware that he was doing this until I saw the post this morning and he and I are working on an unrelated project.)I haven't looked closely enough at his work to say to what extent I agree with it, but he has tried to identify some aspects of judicial method that he supports and then analyze a judge's work in light of those criteria.

What's going on

Who knows how far it will go, but there is something toxic going on in the Democratic nomination race. Clinton and Obama have been smart enough to know that appeals based on, respectively, gender and race have to be implicit. But now that they are in the clinches, claims of racial and gender entitlement and grievance are coming out. Hillary is being unfairly criticized for tearing up. Bill is insufficiently deferential to Martin Luther King. Obama is insufficiently gallant when Hillary says her feelings are hurt. Obama is trying to paint Hillary as racially insensitive.

I think both camps have tried to avoid making the identity politics that are implicit in each campaign too obvious because they know that these claims diminish the candidates by suggesting that they ought to be preferred for some reason other than their qualifications. But this stuff is rooted in the Democrat DNA nowdays and I suppose it was inevitable that it would eventually come out.

Shark does public radio

Good times ...

As Jay Bullock has announced, WUWM is doing a series of interviews with local bloggers on its Lake Effect show. Jane Hampden is the host. I taped on Friday for air tomorrow at 10 am. A few of the commenters on Jay's post suggested a lack of political balance and he claims that some conservative bloggers have turned Jane down. I would encourage our guys and girls to do it.

My interview was largely apolitical, focussing instead on the role of local political blogs and my own philosophy of blogging and how it fits into other things I do.

Sunday, January 13, 2008

The Shark Does Lambeau

Yesterday, the Reddess and I headed up to Lambeau with my brother-in-law (her brother) and our niece to see the Packers play the Seahawks. I cannot recall a game that began so badly and changed so rapidly. Let's spot them two touchdowns for sport and then administer an Old Testament smiting. If you weren't there, you probably saw it on television so you know - but I can't recall a playoff game in which a team that started so poorly became so dominant. In fact, I can't recall many playoff games in which a team was as thoroughly beaten as the Seahawks were. After fumbling twice, the Packers scored on six straight possessions and, had they not shut down their offense in the last ten minutes, almost certainly could have kept scoring.

As the snow flew, the Packers seemed to draw energy from it. Just because, here's a picture I took of Ryan Grant taking it to the one. (The Seahawks actually did a great job of closing here to prevent a score.)

At the game's beginning, everyone in our section was testy. Winter games at Lambeau put people at quite close quarters and etiquette requires adopting a small profile. We carped about who wasn't doing that. People snapped at those in front of them: "Dude, park it; there's nothing worth standing for." By the start of the second quarter, we were brothers and sisters dancing to a two hour doxology. It was sort of like the sharing of the peace at my church, you needed to high five everyone at the proper times. No one could be slighted.

As you also know, the snow got ridiculously beautiful. I don't know how it looked if you were in Seattle, but here is the view from section 125.

Mike Holmgren is one of the great coaches in the NFL. He certainly gave us some great years and he has done almost as well in Seattle. There are rumors that this was his last game. I hope that his career can end on a better note. Yesterday, everyone on the Seattle sideline stayed well clear of him.

I have no idea what will happen next week. Given the way that this team (youngest in the NFL)rolled over a very experienced playoff team after a nightmarish start, you have to be optimistic. I don't know if anyone can beat New England, but it'd be great to see this group take a shot.

Saturday, January 12, 2008

Mayor Soglin might want to consider whether "the gods" have a sense of humor

Paul Soglin thinks that Mike Huckabee is a gift to the Democrats "from the gods", presaging some time of realignment. He seems to be suggesting that Huckabee's religiosity and social conservatism will turn everyone into liberal secular Democrats.

The formulation of Paul's post (distancing himself, even humorously, from the monotheism adhered to by almost all Americans who are religious) suggests a potential blindness. I think Huckabee is just about played out, but, as I have blogged before, it also seems possible that part of his appeal points to a potential realignment in the other direction.

Secular liberals dismiss the faith and, I think, common experience that drives middle class folks who might otherwise favor redistributive or protectionist economic policies to social conservatism and votes for the GOP. They believe that these folks ought to, and someday will, forget about. as they like to put it, "God, Guns and Gays" (a characterization that is itself dismissively simplistic) and vote for people (Democrats) who will get them some money.

But why not hang on to your deeply held social values and get some cash? Particularly if, as secular liberals never seem to understand, you believe that these quaint moral values affect the nature of people's lives, including whether or not they are poor?

I think a good deal of Huckabee's success relates to the fact that he is articulate and funny in a political environment (including the Democrates) where very few candidates are either as well as the outsized influence of deeply committed and well organized groups in the Iowa caucuses. But to the extent that he represents something that goes beyond his particular case, i.e., if he has a message that means something past his candidacy (which I think will end on February 5), it may just as readily be a fusion of populist economics and populist social policy. (Cf. William Jennings Bryan).

Paul should be very afraid of that.

Friday, January 11, 2008

A simple observation on the Ziegler matter

There is still a great deal of back and forth over what the proper sanction ought to be for Justice Ziegler's breach of rules that required her to recuse herself or to disclose her husband's directorship in some cases involving West Bend Saving. A panel of judges has recommended a public reprimand. Critics say that this is not enough.

I am privileged to serve the Wisconsin Supreme Court as a referee in attorney discipline cases. If I have a lawyer who I have found to have violated (or, as is often the case, he or she admits violating), I have to recommend the degree of discipline. (The final decision on violation and discipline is always with the Court.)

If you look through the reporters, discipline varies greatly and it is tough to compare one case to another because few are exactly the same. One of the things that you look for is intent. Did the person knowingly break the rules? If not, you make an assessment as to why he or she failed to follow them and try to make a judgment about the likelihood of it happening again. You look to see whether anyone was harmed by the violation (and, if so, what can be done to provide restitution). You ask whether the lawyer understands what he or she did wrong and why it is wrong. You look at whether the lawyer properly adjusted his or her attitude (although this is more important in cases involving reinstatement after suspension). You consider his or her past - what kind of a lawyer has he or she been? Has there been prior discipline?

Rightly or wrongly, in most cases where 1) the violation is unintentional and the lawyer had no intent to obtain an unjust benefit, 2) no one was harmed and 3) there is no prior history of discipline, the recommended (and accepted) discipline is a public (or, very often, a private, i.e., nonpublic) reprimand. This is why I have argued from the outset that this case looks like a public reprimand to me.

Maybe you think that we in the legal profession aren't hard enough on our sisters and brothers who stray. Perhaps you can argue that we ought to be more unforgiving with judges. There are far fewer judicial discipline cases to provide guidance. so I can't say whether my impression from attorney cases is, as we say, "on all fours" here.

I also know that it is hard to disentangle our preferences for one candidate or another from that we think the proper resolution ought to be. But, putting aside how it ought to be applied here, I am confident that the generalization that I just made is accurate.

I report, you decide.

Wednesday, January 09, 2008

"How do we cover a candidate like Obama?/How do you hold a moonbeam in your hand?"*

Via Fishbowl DC by way of the Drudge Report:

Brian Williams gives us hardhitting reportage on the Obama phenomamama:

WILLIAMS: I interviewed Lee Cowan, our reporter who covers Obama, while we were out yesterday and posted the interview on the web. Lee says it's hard to stay objective covering this guy. Courageous for Lee to say, to be honest. The e-mail flood started out we caught you guys, we never did trust you. That kind of thing. I think it is a very interesting dynamic. I saw middle-aged women just throw their arms around Barack Obama, kiss him hard on the cheek and say, you know, I'm with you, good luck. And i think he feels it, too.

Perhaps it is courageous to admit your man crush, but it would be professional for a journalist not to compound it by announcing that this candidate is so wonderful that we can barely hang on to our virtue.

+*(The title of this post is shamelessly ripped off from Mark Steyn.)

Tuesday, January 08, 2008

Democrat New Hampshire

You've got to hand it to Hillary Clinton. The rumours of her death were greatly exaggerated. I think it has to be worrisome for Obama because she came back by attacking him and he can't really say that the attacks were unfair. What is his message? What are we hoping for? What is this Change? What's revolutionary about him other than his multiply hyphenated identity?

He can be whatever you want, but if you cast yourself as everyone's mirror, you run the risk that someone will turn it back on you. Running as the "new kind of candidate" who "transcends the politics of the past" may win a primary or two, but it grows old fast. See, e.g., John Anderson, Gary Hart, Paul Tsongas and Bill Bradley. There is a reason that politics is like it is and chances are that you were not sent by God to change that.

I think that the rest of the campaign is still about him. If he can articulate some kind of message that at least seems to have some substance, Hillary will not be able to hold her support. In that sense, the race is still his to win or lose.

Republican New Hampshire

I'm not surprised by McCain's win. He's ticked off all of us at one point or another, but has also remained sound on most things. For those concerned about national security, he offers strength without being tied to the missteps of the Bush administration. He has been generally reliable on social issues and I can't believe that, in the context of this race, immigration can hurt him. He was wobbly on the President's tax cuts, although his arguments about spending restraint are stronger now given the GOP Congress' failure to exercise any. McCain-Feingold was an awful piece of work, but the Supreme Court has gone a long way to save free speech from its predations. Maybe we can be forgiving about that.

I think that alot of people in the party wanted Romney to be the candidate that we did not have - the one without obvious flaws. But I don't think that people are willing to elect a guy who seems like a construct; someone who sheds those opinions that no longer serve him and offers little more than picking the right boxes and portraying himself as a competent manager. It seems too bloodless. The perfect looks and, as unfair as it might be, the seemingly "odd" (or at least unfamiliar) religion add to the aura of unreality. I don't think he's through. He could win Michigan and that would return him to the land of the living. But, if he loses, he ought to quit spending his money.

There was a time when I thought that Giuliani could overcome his apostasy on social issues. If he is nominated, I still think that much will be forgiven him as long as he makes clear that he intends to do the right thing on judicial nominations. But the chance that he had to get past all that was predicated on a perception of him as a winner. Sitting out the early races and letting other people win is undercutting that. I think there may be too much risk of leaking ethical messes (something that would probably be true of any big city mayor). Even if, as I suspect, they won't amount to much (like his alleged "failures" around 9-11), what is entertaining in NYC is offputting in the rest of the country. As for his personal life, I don't think that you have to be Dr. Huxtable to get elected, but it helps if your kids talk to you.

Huckabee isn't going to happen, so we are left with McCain and that may be a very good thing. There are worse things than experience and courage. His most obvious weakness is that he is 71 years old in a youth obsessed culture, but the likely Democratic candidates are so callow that this may yet be a virtue.

Monday, January 07, 2008

The Wire, Season 5.

Last night, the best show on television - ever - began it's last season. McNulty is headed off the rails. Marlo's pride seems to presage a fall - but maybe at the hands of Prop Joe rather than the Baltimore Po-lice. Carcetti, after self righteously dressing down the US Attorney's "Republican ass" for preferring the investigation of political opponents over the investigation of bodies, turns around and does the same thing. My wife thinks that something is going to happen to Ronnie - perhaps this is the empathy of one redheaded girl with freckles for another.


I have always said that if Hillary Clinton got caught in the rain, she'd melt, I understand that there is a bit of sexism in that joke, but it's hard not to think that she deserves it. Clinton's entire rationale has been her gender and there has been a certain irony in that. There are all sorts of women in our world today who have accomplished all sorts of things that are wholly unrelated to their husbands. The whole "two for one" argument in Bill Clinton's first campaign was dated even then. A woman who goes to Yale Law School and becomes a partner in a decent law firm was not unusual even then. Hillary's chops as a gender pioneer went by the wayside long ago.

Her attacks on Obama now strike me as unlikely to work, in part, again ironically, because of the baggage from her husband's campaigns. The Clintons are consummate politicians. They will say or do anything. We - or at least enough of us - forgave it in Bill because he still managed to be engaging to those who wanted to believe in him and things went smoothly enough while he was in office (largely, I think, a function of the dotcom boom and a GOP Congress that pretty much prevented him from doing anything.)

But I think she has a point when she cautions against swooning over Obama. He is said to remind us of JFK and there is a sense in which I agree. JFK was lots of style but what substance he had (fierce cold warrior) is not one that the modern Democratic party much cares for. He did, in the end, come around on civil rights but the heavy lifting on that issue was done by Eisenhower and Johnson.

Obama is smart and articulate. He is supposed to have a great "message" but what is that message? As near as I can tell, it boils down to the fact that he hasn't been there before and we should hope for great things, somehow putting aside the "divisions" ot the past. While he says he eschews identity politics, the case for him being the one to do all this seems to rest entirely on his multiple identities. Black and white. Christian and Muslim. Ivy League elite and of humble origins. American and cosmopolitan.

I have a colleague who likes to say that people don't vote on a careful consideration of the issues, but in impression and image. I think that is often right as a descriptive matter and it seems to be what Obama is banking on.

But is it a good thing. Here Hillary has a good line. You campaign in poetry but you govern in prose. She wants to say that this favors her because she's the experienced one but I am not sure, in the end, that the voters are going to give her all that much advanced placement for living in the White House.

Four years ago, Barak Obama was in the Illinois state legislature. He makes a great virtue out of not voting for the war in Iraq. Well, he didn't vote against it either because he didn't have to. The notion that this guy, however smart and articulate he might be, is ready to be the most powerful man on Earth is wildly implausible. When he has spoken on foreign policy, he has shown a tendency to gaffe and exhibit a dangerous shallowness.

It certainly will be a historic day when an African American is elected President but the significance will not be so much what it changes (Condoleeza Rice would be a very different President than Barak Obama) as the way in which it confirms the change that has already happened. Obama's personal history means nothing. His soaring rhetoric means little. What matters is whether he can speak in prose.

Thursday, January 03, 2008

The Shark hits the Big Apple

I am in New York for the annual meeting of the American Association of Law Schools and the simultaneous meeting of the faculty division of the Federalist Society. Tomorrow morning, I have to present a work in process entitled "Of Speeches and Sermons: Worship in Limited Purpose Public Fora." (Trust me, it's fascinating.) The piece draws on theological conceptions of worship to consider whether sermons differ from speeches from a religious perspective in a way that should be constitutionally significant for private speakers in government forums. I am getting it down to the requisite time limit tonight in the city that never sleepsand this is putting off my homework. I am really Mr. Fun.

But earlier, I attended a reception and panel discussion on executive power. I was disappointed because one of the leading academic critics of the Bush administration's exercise of executive war powers, Sandy Levinson, was scheduled to be on the panel but did not show up. Still I leave you with some provocative statements and concepts from some of the panelists. It is impressionistic and does not try to summarize the complete gist of what each had to say.

Harvey Mansfield, political theorist from Harvard - We want, not a mediocre country, but a great one and our greatness is measured by the greatness of our Presidents. Our constitution allows for greatness to rise above ordinary law. This sounds over the top to me as well (and his presentation was far more nuanced than this), but one member of the audience asked: Would you prefer Buchanan to Lincoln? I might add: who will remember Jimmy Carter as anything but a disaster? To say that there can never be a tension between the exercise of reason and the rule of law may not quite comport with reality. Another audience member suggested that, in a time of war, the overriding presupposition is to put your foot on the enemy's neck lest he put his foot on yours. The law, he said, will never help us to do this because it can only limit - and not direct - the exercise of power. It cannot help win the war. Isn't there both truth and great risk in that statement?

Neomi Rao, lawprof at George Mason - Those who criticize the executive's filling in interstices in the law in the areas of war and foreign policy rarely do so with respect to similar exercises of discretion with respect to the domestic administrative state. She had a lot to say about post hoc limitations on the executive. (Thanks to blogger Illusory Tenant who obviously wants a job as my proof reader.)

Ilya Somin, lawprof at George Mason - He argued for a more limited executive authority. We ought to be risk averse with respect to the threat of tyranny, so we can accept the riskiness of liberty. Congress may be more likely to be mediocre, but less likely to be mad.

An interesting comment was made by one member of the audience who said that, at a certain level of generality, everyone might agree with each speaker. Executive discretion in a time of crisis is vital. Unfettered discretion is dangerous. The devil is, as always, in the details.

Tuesday, January 01, 2008

15 predictions for 2008

1. In Super Bowl, Brett Farve passes for over 300 yards and three touchdowns, but the Packers can't stop Tom Brady and the Pats' passing attack. New England 41 Green Bay 34.

2. Al Qaeda in Iraq, having read history, tries to mount its equivalent of the Tet offensive, by attempting a major terror attack in Baghdad's Green Zone.

3. The Marquette Golden Eagles make the Elite Eight in the NCAA tournament. The Milwaukee Panthers have another sub-.500 year and Rob Jeter is fired as head coach. He is replaced by Bruce Pearl assistant Tony Jones.

4. Scott Walker is reelected as County Executive.

5. Michael McGee, Jr., is convicted of both state and federal charges and gets a rather lengthy prison sentence, prompting minor demonstrations. Fred Gordon replaces him on the Common Council.

6. The Milwaukee Brewers get off to a poor start and Ned Yost is fired and replaced by Ted Simmons. This time, the team finishes strong, but is once again edged by the Chicago Cubs for the NL Central Division championship but make the playoffs as a wild card. The Cubs, however, win their first series since 1908, clearing the way for another century long hiberbation.

7. Fidel Castro dies and there is political upheaval in Cuba.

8. The race for Wisconsin Supreme Court is expensive and heated. I won't predict a winner, but the legislature will pass a public financing bill for Supreme Court elections. We won't know this in 2008, but it will accomplish very little.

9. The challenge to Wisconsin's marriage amendment will lose in the circut court.

10. Brett Farve will not retire.

11. Barak Obama will win the Democratic nomination. His running mate will be Bill Richardson.

12. The Democrats lose seats (including Steve Kagen's), but hold the House and pick up two Senate seats. The balance of power in the state legislature will remain essentially unchanged.

13. John McCain is elected the 44th President of the United States. His running mate is Alaska Governor Sarah Palin. (Actually, I think it will be Tim Pawlenty but this seems more intriguing.)

14. The Packers win the NFC North again with a 12-4 mark. The UW football team will be 6-6.

15. Ann Coulter will announce her engagement to Paul Krugman.