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.


Display Name said...

Was this a recreational project, or did Daniel prepare this for someone for a purpose?

From your perspective as a professor, how do you assess the depth and breadth of the references in his footnotes?

Anonymous said...

The "New Federalism" used to be a positive catchphrase for judicial conservatives, when applied to the Rehnquist Court's admirable struggle to return the Commerce Clause to its pre-Wickard, Lochner-era salad days.

Now suddenly it's a pejorative condemnation of State judges casting an expansive eye toward the Constitution's first eight Amendments and their local corollaries.

Whither States' rights! Hard to say anymore.

Rick Esenberg said...


The poor guy had to put up with me grading his paper for class so I am not going to grade his blog, other than to say, whether you agree or disagree, this is one example of how we can discuss the issues in a judicial race without making it substanceless or requiring candidates to make commitments that they ought not to make. I leave it to you and others to carry the debate on the other side.

Display Name said...

You answered my second question but not quite my first... Please don't tell me that this was a paper for a class of yours.

Is "disturbing proclivity" one of those objective and precise legal terms like "a technicality" or "dangerously close"?

I think it would be great to have a healthy discussion of decisions before a Supreme Court election. Look at how much it helped last time!

As for where I stand, I've yet to make up my mind. If I were writing a paper like this, should I start from this undecided sort of position, or should I have my mind made up beforehand and then only select references to match my preconceptions?

Rick Esenberg said...

As I said in my post, this had nothing to do with my class or research. I learned about it when I read it yesterday morning and, since I am interested in how people can address substantive issues in judicial campaigns, I thought I'd point to it.

I assume that Daniel did this for his blog. Your implication that it somehow should be judged by the standards we would apply to a law review article or brief seems wrong to me. It's a piece for popular consumption and debate. I wouldn't expect the same kind of detail and elaboration as I would in another context. As for that, I can vouch for the fact that the young man is quite capable of "deeper" work.