Wednesday, February 27, 2008

Playing the Farrakhan card

Ann Althouse takes apart Barack Obama's response to the question in Tuesday night's debate about Louis Farrakhan. Obama was playing politics, trying to distance himself from Farrakhan while trying to hang on to whatever Farrakhan's support might bring him. He makes clear that he rejects Farrakhan's anti-semitism while dancing away from the idea that he ought to explicity reject his support.

I can understand why he wants to do this. Farrakhan has some support within the African American community and Obama wants to avoid getting cross-wise with anybody over that issue. He would have preferred to avoid the question altogether but tried to minimize the damage from Russert's question, even calling this virulent racist "Minister" as in "I have been very clear in my denunciation of Grand Dragon Duke's racist remarks.) (If you don't think that how he treats Farrakhan is an issue, listen to WMCS sometime.)

Hillary tried to push him on it but gave up too soon. What she should have done is ask a follow-up: "Will Louis Farrakhan have a place at the table in the Obama administration? He will be persona non grata in mine."

Maybe she felt that, the Democrat coaliton being what it is, that would be going too far. That's hard to believe (I think she just blew it), but McCain won't hesitate to draw that line.

How would Obama answer? I don't see how he could do anything other than say that Farrakhan won't be invited to the White House. But, if David Duke endorsed McCain (he has, in fact, said he sees no difference between McCain, Clinton and Obama; they are all equally terrible in his view), you'd see no hesitation or equivocation about rejecting him, his support and his statements. His very existence would be regretted and McCain might even allow as he wishes that Duke had never uttered - or even heard - his name.

Is there a difference?

I understand that some people think that there is, but, politically, Farrakhan is poison. If it came to it, I suspect that Obama would not hestitate to throw him under the bus, but there is a lot of hard left stuff in Obama's background and record that will not be so easily jettisoned. We don't hear it from Hillary because it can't much help her in a Democrat primary. But we will hear plenty in the fall and, until we do, the Democrats should hold off on ordering the champagne.

Voter fraud's veil of ignorance

I haven't had a chance to spend much time with the Milwaukee Police Department's report on irregularities in the 2004 election and probably won't until later today. I agree with Jay Bullock that it's something of a political Rohrschach test. (Subliminally influenced there, Jay?) The voter ID issue in general is such an issue. My sense of the issue is that voter ID would deter very few votes and prevent very little fraud. Where you come down tends to turn on how you weigh the ease of voting vs. the potential for fraud.

But I approach the debate with one huge qualification. There is really no way to know how much fraud there is because, at least in Wisconsin, we have created a system where it is damn near impossible to get caught. I assume that there is not wholesale schemes to game our elections because I suspect that somebody involved would talk, but no one can really know. And, when elections are as close as they have been here, even a little cheating can go a long way.

I have always thought that the combination of no real identification requirement combined with same day registration (along with partisan registrars)pretty much amounts to a license to cheat. I don't know how many people actually do so, but, then again, neither does anyone else.

In the 2004 election, I watched a guy from a Democrat front group (Americans Coming Together)register people at the polls on election day based on things like a lease or utility bill. In that particular case, I am confident that he did not knowingly abet fraud because I happened to know the guy (we worship at the same church) and I don't think he'd do that. But I also know that he had no way to tell if he was being gamed and neither did I (or the other seven lawyers that were lolling around the polling place).

But, without regard to who it hurts or helps, shouldn't this make us uncomfortable?

Monday, February 25, 2008

"Swift boaters" respond

Don Daugherty has responded to the Mike McCabe "swift boat" innuendo (that was brought to me, at least, by Illusory Tenant, whose post was brought to may attention via a phone call) as follows:

Mr. McCabe – I just gotta respond to your post. Neither Rebecca, Dan, David nor I have any interest in “Swiftboating Our Supreme Court.” However, to use your language, I guess we can be fairly accused of wanting to “swiftboat” (or, as I prefer, to “bork”) the WJCIC.

Please let me also correct you on what the Federalist Society does and doesn’t do, as well as what Rebecca, Dan, David and I are doing and not doing.

The Federalist Society does not support any candidate for judicial or other office. Similarly, I am not publicly supporting either Justice Butler or Judge Gableman, and I’m not aware of Rebecca, Dan or David doing so either, so your statement that we’re trying to “talk up conservative candidate Michael Gableman” is incorrect. Although, again, we can be fairly accused of trying to make members of the State Bar, and the public generally, aware of serious concerns we have about the WJCIC, nothing we have done or will do can be characterized as being between “the low road and the gutter.” We are simply exercising our right to publicly question the wisdom behind the WJCIC, and doing so in a responsible manner, I think.

We’re all proud members of the Federalist Society and participate in its efforts to raise public awareness about issues relating to the state courts (e.g., the role of such courts, judicial philosophy, etc.), but we speak on own behalves. We are not “working at the behest of” anyone. To the extent the Federalist Society facilitates getting our voices heard, that’s great. To the extent the Federalist Society engages the CRC to help do so, also great. (The Cap Times wrote about it a couple of years ago, so it’s old news.) Presumably, your organization engages others to help get your message out, as do Justice Butler, Judge Gableman, the Greater Wisconsin Committee, One Wisconsin Now, and many other people who want to participate in public debate. All great. But, so what? Rather than who is helping who help who say something, the much more important topic is what is being said – here, whether the WJCIC is a good idea or not.

To that end, we are scheduling a debate about the WJCIC to take place in Milwaukee sometime over the next few weeks. (Details will be posted shortly on our Milwaukee Federalist Society website, We have extended several invitations to the WJCIC and its chair, Tom Basting, to represent the WJCIC’s position at the debate, but so far they’ve ducked. It’s not going to be much of a debate if nobody shows up to defend the WJCIC, so I ask that you and anyone else concerned about how judges are elected in Wisconsin to please encourage Mr. Basting and his committee members to participate. Also, we have asked the American Constitution Society, which is essentially the liberal answer to the Federalist Society, to co-sponsor the debate and hope that they will do so.

As stated in our January op ed,, our criticisms focus on the problems caused by using the mantle of the state’s leading organization of lawyers to police speech protected by the First Amendment. However, it’s turning out that not only is the WJCIC a really, really bad idea in theory, but it’s much, much worse in practice. As evidence of this, look at e-mail uncovered recently between WJCIC members, WJCIC has a responsibility to come forward and defend what it is doing, especially given that it is funded with dues that Bar members like Rebecca, Dan, David, and I are required to pay. Our upcoming debate will be a perfect opportunity for WJCIC to do so.

Thanks for the chance to respond, and I hope you’re able to attend the debate. Don Daugherty

By way of full disclosure, I am supposed to be one of the panelists for this debate.

A political Rohrschach test

Doesn't the way that you respond to this quote from Michelle Obama say something about your underlying political philosophy?

Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.

I'm not talking about partisanship. Oh yes, it's good to be informed and involved and out of your comfort zone, but is getting you there a proper function of the state? Doesn't this suggest that much of life ought to be politicized? Doesn't it endorse a revolution from above? You won't push Obama; he will push you.

I understand that he is talking about politics, but should politics change your life?

I know that some of the readers of this blog are nonplussed that anyone would think that the Obama campaign has anything approaching a messiah complex or that it is hard left (two different, although related, propositions). But there seems to be a creepy statement supporting one or the other of these propositions every other day.

Interesting Stats

Orin Kerr points out an article by Lori Ringhand counting the number of times that members of the Rehnquist court voted to strike down legislation over a given period. With the exception of Chief Justice Rehnquist (who was markedly less inclined to strike down legislation), Kerr reports that all of the Justices voted to strike down legislation between 57 and 67 times.

What is interesting is that the "conservatives" were far more likely to strike down federal laws while the "liberals" were more likely to strike down state laws. This is what you'd expect but it tends to illustrate that the debate around "judicial activism" is not really about striking down legislation. That certainly is part of it but how many times and under what circumstances legislation is struck down is going to depend on what legislatures do. Professor Ringhand's numbers, while not, I suppose, unexpected or an entirely new revelation, prompt us to think more about the underlying philosophies in the activism/restraint debate.

Bumble On

State Bar President Tom Basting has apparently decided that he wants to push the train wreck that is the Wisconsin Judicial Campaign Integrity Committee down the track. A press release notes that Michael Gableman has signed his own "clean campaign" pledge. The WJIC, although it claims not to know what the Gableman pledge says (wouldn't a few mouse clicks have remedied that?), promises to hold him to it.

Of course, the self assumed mantle of arbiter of campaign etiquette (enhanced by the imprimatur of a state bar that apparently never authorized Basting's project)was precisely the reason not to sign WJCIC's campaign pledge. This group has no more authority or status than anyone else who might choose to comment on the supreme court race. After last week's e-mail fiasco, it has a lot less credibility

The press release also calls on Gableman to join Justice Butler in renouncing third party advertising. Perhaps he will, but it is, at best, easy virtue. These third parties have reasons of their own to speak on the race and they are not going to stop.

And is it even virtue? Do I want my candidates for Supreme Court to renounce the exercise of first amendment rights?

Sunday, February 24, 2008

More Sunday boomer indulgence

When I was 8 or so, the first band that I really liked was the Animals. I still have the group's first US album with my drawings on the back. The Animals that I liked - basically a very spare British blues band that more or less covered traditional numbers by people - were mostly over by the end of 1965. The band reshuffled and veered off into psychedelic rock which they did not do well.

But for your Sunday edification, I am offering a version of "Tobacco Road" performed by a later iteration of the group captures much of what I liked (and still like) about the early Animals, although it's a bit tarted up. I pick Tobacco Road because this is, after all, a conservative political blog.

As today's bonus, I can't help buy offer this version of the Animals' ur-hit, House of the Rising Sun, marred a bit by the insertion of annoying karaoke prompts. If you don't know this song, you aren't entitled to sing it.

Friday, February 22, 2008

Who's swifting who?

Blogger Illusory Tenant* wants us to know that Mike McCabe thinks that the Supreme Court race must be headed between the "low road and the gutter." In that, McCabe is just part of the drumbeat. The usual position is that this is WMC's fault although the only attack ad so far has been put out by the Greater Wisconsin Committee.

But McCabe finds ominous portents in the fact that the Federalist Society has hired a Washington media firm, CRC, to publicize its state court educational project. CRC is setting up media interviews for a group of lawyers who wrote an op-ed critical of the WJCIC. (Full disclosure: CRC facilitated an interview of me on Vickie McKenna's show in Madison yesterday.)CRC was retained by the Swift Boat Veterans for Truth and , I guess, they were bad and so CRC is bad and so all of CRC's clients are bad. It's a law of mathematics or something. These lawyers are, McCabe says, going to talk up Michael Gableman.

But he is wrong on all counts. These lawyers are not going to comment on the relative merits of the candidates and they are, in my experience, a rather bright and high minded bunch who are concerned about free and open discourse in judicial campaigns. IT or McCabe can disagree with them, but they won't find them in the gutter or on the low road.

*In the original version of this post, I responded to a paragraph that I assumed was written by blogger Illusory Tenant. He was actually reproducing a post written by Mike McCabe at the Wisconsin Democracy Campaign. I initially corrected it in a way that suggested that IT may be adopting what McCabe said. Since he has made clear that he does not want to own McCabe's statement, I have, with apologies, revised my post once again. We ought to be the master of our own thoughts and, if he says that he doesn't buy into McCain's innuendo, I'll respect that. My point in posting was not to attack anyone but to defend some people who I hold in high regard. So I will, humbly, try again.

Wednesday, February 20, 2008

Speech police or keystone cops?

Yesterday, the Club for Growth released the fruits of an open records record request that netted it at least some of the e-mail communications among members of the Wisconsin Judicial Campaign Integrity Committee.

Apparently, the video of an interview that I did with Jim Pugh of WMC came to the committee's attention. They decided not to take any "action" because they thought it was "debatable fair commentary" and that we'd be fortunate if election comentary remained "on the high plane of Prof. Esenberg's video." But the issue did prompt committe member Bill Kraus (who agrees that there is no action required by the committee) to suggest how the video (which he refers to as part of "the enemies tactics") is an opportunity for the Butler campaign to respond to my "oversimplifications." Another committee member Dennis Dresang agrees and says that Kraus' "suggestion" was well stated.

I understand that he may say that he is just expressing his personal views, but it certainly creates the impression of bias and seems to be one of the themes that emerges from the e-mails. Kraus is blatantly partisan.

But there is a more serious problem. Kraus' partisanship seems to have infected the committee's response to only complaint that it has acted upon.

In response to One Wisconsin Now's complaint about a Gableman mailing criticizing some criminal law cases, Judge Deininger points out that there is nothing in the mailing that "crosses any boundaries" and that what the Gableman literature said was consititutionally protected. He suggests that the complaint is an attempt on the part of one side to enlist the committee in its cause and warns the group that its response will, for that reason, have an impact on what will happen in the future.

The other members don't seem to have heeded that caution. Kraus immediately ignores the fact that the Gableman literature was constitutionally protected, announcing that he prefers candidates who say what they will do or who they are. He wants the committee to create a bright line. Other committee members agree. They should "draw a line in the sand" and "fire a shot across the bow" by issuing a mild rebuke. And that's what they did.

Now keep in mind that this is not just a group of citizens. This is a project of the State Bar to which every lawyer in the state who wishes to be licensed to practice must belong and support. It is, under applicable law, an arm of the state.

And so it issues a statement invoking all of that authority to rebuke a statement that it acknowledges is constitutionally protected speech and does not violate the Judicial Code because it would "prefer" that the candidate say something else.

That the committee wants to impose its own rules on the process is bad enough, but the rule that Kraus, at least, wants to impose is not even handed. You don't beat an incumbent without criticizing him. Not only was the committee's "mild rebuke" illegitimate, it was not evenhanded.

This reflects why the whole project was misconceived from the outset. The committee's belief that it can impartially police the campaign in a way that transforms campaign discourse and respects the constitution is self delusion. They are a cure that is worse than the disease. They ought to disband.

Tuesday, February 19, 2008

More than a gaffe?

Some of my readers just can't understand why I would suggest that Obama's supporters, and maybe even the Obamas, have a rather elevated view of their own importance and seem to be suffering from an extended bout of political tachycardia.

Good liberals like Paul Krugman, Sean Wilentz and Doris Kearns Goodwin have noticed the same thing, but maybe they are also victims of the vast right wing propaganda machine. That machine couldn't put a pebble in John McCain's path but it somehow has - and continues to - distort our national political disccourse.

The evil geniuses have apparently gotten to Michelle Obama who announced that, for the first time in her adult life, she is proud of her country because hope is making a comeback.

It's hard to know where to start with a statement like this. As politics, it is a breathtaking gaffe. For a Harvard educated lawyer married to another, it suggests either a certain elitism ("hope" exists only for people like us) or a petulant lack of gratitude.

But most importantly, it reflects an overwrought sense of self importance. Michelle Obama apparently thinks that her husband reflects a resurgence of hope so unique and powerful that she can only now be proud of a country that has fought an bloody internal war to end slavery, ended two holocausts in Europe in which it had no direct stake, faced down global communist totalitarianism, underwent a civil rights revolution (from which she and her husband, deservedly, have spectacularly benefited), created a prosperity unheard of in human history and that has served, along with - really less than a handful of - other western nations England and sometime France) as a beacon for ideals of equality and liberty (even if we have not always managed to live into then.)

I understand that she made a mistake. But what concerns me is why she made this mistake. Maybe it was just the understandable enthusiasm of the campaign. But it reflects, at best, a stunning lack of self awareness and, at worst, a campaign that believes its own myth.

Monday, February 18, 2008

More thoughts on Obama

There seems to be a lot of interest in talking about Obama. Here at S-squared, a series of posts last week attracted a fair amount of traffic and comments.

I think there are actually two issues here. The first has to do with the particular message that Obama is advancing. While that message (as opposed to what you could find in position papers) was a bit obscure at first, I think the campaign has moved to harden it and it is a fairly unreconstructed economic populism and protectionism.
While the rhetoric does not match Obama's particular policy proposals (which, while certainly expensive, seem more modest than his claims for global and generational change suggest), the message seems to at least imply that we are all suffering and it is the fault of a few.

This message is, in my view, false and informed by bad economics. It is demagogic and points toward some dangerous policies. But I know that others disagree and, to the extent that Obama can argue eloquently for their view of the world, he is like Reagan. But there's more.

The message is not unrelated to the messianic tendencies of Obama's campaign because it promises a degree of deliverance from the state that it cannot possibly deliver and that can, if attempted, cause more harm than good. But there's more.

The excitement over Obama seems to outstrip his particular policy positions and, for many, doesn't seemed tied to any particular view of the world but to the atmospherics surrounding his campaign. Obama has done a good job of capitalizing on the understandable enthusiasm of African Americans (and not a few whites) for a black presidential candidate (it's another post but I don't intend this as a criticism) and the weakness of young voters (in most places and at most times) for millenial politics.

This has resulted in the trope that Obama represents something new that transcends old politics. In the comments to my earlier posts, some tried to argue that Obama is somehow changing how we do politics but, for the life of me, I can't see how that is supposed to be so. The message is not new and it's not unifying. If you like the message, I can understand your enthusiasm for the "new" world you believe it will usher in, but what you are excited about is victory in the old political battles, not their transcendence. That you want people to be excited and "believe in" government is not particularly distinctive.

The enthusiam that has, so far, masked this is not simply "popularity." It threatens to give allegiance to a political candidate and cause a degree of intensity that it is out of order with what candidates and politics can deliver. It gives the candidate the role of a Messiah and the campaign the aspects of a Crusade. If that doesn't make you uncomfortable, then we are not simply on different pages, we are reading different books.

(NB: Of course, we have these dangers on the right. Folks on the left have rightly criticized some of my conservative brothers and sisters for conflating support for every aspect of the War on Terror with patriotism. )

Sunday, February 17, 2008

Paleo-rock Sunday

Today's old rockers: Ten Years After, an English blues band fronted by Alvin Lee who was said to have - and perhaps still has - the fastest fingers in the west. This performance of "Goin' Home" was at Woodstock.

Ten Years After also recorded what may be, even if it was not so intended, the greatest conservative rock song of all time, "I'd Love to Change the World." The band never performed the song live, although here is a recent version by a reconstituted Ten Years After without Alvin Lee. Not quite the original, but not bad.

Who will Obama unify?

The Reddess and I spent a pleasant evening at the Ozaukee County Republicans Lincoln Day dinner. Radio talker Vickie McKenna did a great job as MC. The evening reinforced my sense that Obama would unite the GOP base behind McCain just as much as Hillary would. It won't be the same type of visceral distrust, but I think it's becoming clear that Obama is, as my lefty Backstory colleague Dave Berkman (who I see in nothing but Obama wear) agrees, the hardest left Democrat nominee since George McGovern.

So maybe his campaign is about unity.

Friday, February 15, 2008


(Caption shamelessly stolen from Vicki McKenna)

I put up a few posts suggesting that the Obama moment, suggesting that what seems to be attracting a lot of his fans right now carries the dangers of politics - and the state - as religion. There is just a whiff of what attracted so many people to the New Left.

Then, on cue, Daniel Ortega has nice things to say about Obama. He's talkin' 'bout revolution.

But there's more. Obama's Houston headquarters proudly displays flags bearing the image of the murderous Che Guevera.

The Obama camp says that the paid staffers had not yet arrived and Sen. Obama allows as that this was "inappropriate." I understand that the American left has a soft spot for Che. Much of it can be attributed to a lack of understanding as to who Che was and what he actually did which was, largely, to kill people and enjoy it. Che iconography is a lot more than "inappropriate."

Sometimes you have to get lucky to be good.

Update: Just to be clear. Contrary to what some of the commenters believe, I am not calling Obama a socialist and I know that he didn't court Ortega or hang his own Che flag. I do believe that, in the American context, he is hard left. The point of my earlier posts was that I find the enthusiasm of Obama's supporters - whether it be for a political messiah or for salvation from the state - to be troubling and to carry certain dangers. Even though it is well intentioned (who can be against equality?), we know that, taken too far, it depresses the economy and, if taken to an extreme, undermines liberty. Some of the commenters acted as if I were crazy to catch anything but a desire for unity and common sense in the Obama movement. Then comes Ortega and Che. Of course, Obama is not Ortega or Che (although his response to the Che flag was weak) and I wouldn't imagine that anyone who reads here regularly would think I was suggesting that. Still, they did and perhaps I should have planted my tongue a bit more firmly in my cheek.

No, Obama is not a communist. Yes, he seems to be advocating a view of the state and of America's place in the world which, however lovely it may sound, is dangerous.

Thursday, February 14, 2008

Audacity is just the word

Some commenters to my earlier post on Obama said that I should listen again to his speeches, so I paid some attention to his talk at the Kohl Center. Nothing that I heard changes my impression that Obama offers a grand vision of politics as salvific and all encompassing. Consider thes lines:

Today, the change we seek swept through the Chesapeake and over the Potomac.

this movement won't stop

We have given young people a reason to believe, and brought folks back to the polls who want to believe again.

bringing together Democrats and Independents and Republicans; blacks and whites; Latinos and Asians; small states and big states; Red States and Blue States into a United States of America.

To reaffirm that fundamental belief – I am my brother's keeper, I am my sister's keeper – that makes us one people, and one nation.

they need to know that politics can make a difference in their lives,

I might add the tv spot that he is running which, channeling Ted Kennedy eulogizing Robert Kennedy, says something like the "world as it is is not the world as it must be." Obama promises Big.

This combined with the overwrought reaction of his supporters who seem to think that Obama offers a "New Creation" (a term that I have read he actually used in a speech, although I can't confirm that) strikes me as creepy and dangerous. Messianic politicians tend to make conservatives nervous. We know that the world does not so easily bend to our will. (And, just to preempt comments that miss the point, I agree that there have been huge ways in which Bush did not get that.)

But, as noted in today's Journal Sentinel, the campaign is moving into a period of providing more specifics and, as I suggested in my post (the positions aren't new), unity is exactly not what Obama has on offer. What he's selling is class warfare and scapegoating. Consider these lines:

overcome decades of money and the influence; bitter partisanship and petty bickering that's shut you out, let you down and told you to settle.

ExxonMobil made $11 billion last quarter. They don’t want to give those profits up easily.

He rails against NAFTA and the reality of global trade. He promises tons of new spending and a middle class tax cut. He paints a picture of the United States as a nation of economically disadvantaged folks who just can't quite get over because the rich have denied them. We don't need to make hard choices. We just need to fight the Power and take it back.

This is old fashioned economic demagoguery and brain dead economics. It tells people - not just poor people but the vast middle class - that their frustrations are someone else's fault and all that stands between them and what they want is Mean People. It assumes that money just exists and, if someone has too much of it, all we need to do is take it.

Now, I appreciate that, if you are a left liberal, you eat this stuff up. But tell me how it is about unity? Tell me how it unites red and blue states, Republican and Democrats.

If it is unity, it is a unity imposed by the state. You will be your brother's keeper whether you want to or not. More accurately, the state will be your brother's keeper and you will pay for it.

I know that, if you are a left liberal, you don't see the danger in that. You think that the state can assume responsibility for huge chunks of your life without making any untoward demands on you or having any negative impact on the behavior of people for whom security has, to a greater or larger degree, replaced responsibility and opportunity. Facts suggest otherwise.

You may object with the idea that Obama is not proposing anything as radical as my criticism suggests and, in the event, that will probably prove to be true. Even if he thinks he can remake the world, he will find out that a leader must often say "No, we can't."

But's that's not how he's running. This is a campaign mixing messianic politics with the politics of division and scapegoating. History doesn't teach us many nice things about that.

For those of you who are disappointed with John McCain, take note.

Tuesday, February 12, 2008

Selling out for Mom?

I have two comments about Pimpgate. First, it was sort of a brain dead comment reflecting an inability to get the slang right. Chelsea Clinton is a 27 year old woman, not the kid that had to spend her adolescence in the White House. It generally does not require pimping to get a daughter to campaign for her mother. Heck, my son is not really a conservative but I suspect that, if I ran for office, he'd be out there.

But can we suspend the indignation? Aren't you fed up with offense as a political tactic?

Monday, February 11, 2008

Does Obama embody the General Will?

Rob Vischer at Mirror of Justice links to a fascinating op-ed by a Roman Catholic priest, Jonathan Morris. Fr. Morris writes:

As soon as politics, for the sake of politics, becomes a society’s principle passion — its object of hope, its pearl of great price — that society has already subjected itself to a type of totalitarianism. Unwittingly, it has relinquished a citizen’s and a people’s privilege and responsibility of self-determination. It has bet the outcome of the common pursuit of happiness on the eventual good actions of chosen elite.

There is certainly a distinction between politics as a form of religion and garden variety enthusiasm for a candidate, but isn't there danger in the notion that much of life ought to be politicized? Should we really view politicians as people who will care for us and help us through large parts of our lives?

Hillary Clinton certainly conveys that message. She is quite clear that it takes a village to raise a child and equally clear that the state runs the village. This is the politics of meaning. The problem, of course, is not with the search for meaning but with the looking for it in politics.

But Obama has taken the desire for a political savior beyond rationality and I find it - I can't help myself here - more than a bit creepy.

A writer, who supports Obama, expresses her concern that people making phone calls on his behalf are encourged to skip policy and share personal stories of how they "came to Obama." In a Frank Luntz focus group, one Democratic voter says that an attraction of Obama is that he will unify the country because "when we all have our own opinions and argue to death, nothing gets done." The Body must unite behind its Head. The video that everyone is so excited about actually obscures whatever Obama is saying save for a few platitudes and the phrase "yes, we can."

While I think it is a legitimate criticism of the Obama campaign that its messaging is deliberately vague on what it is that we can do and whose time it is that has come, I find the subtext embodied in that lack of particulars even more disturbing. If the message is not that we can do these specific things, then we must be able to do anything and everything. On one level, this is an appeal to nothing in particular. It simply invokes an aesthetic. Who knows what it means, but it sounds pretty and looks good.

On another level, it immanentizes the eschaton. We can found paradise on earth through a benevolent state. The government can love you.

I certainly hope that Barack the man - as opposed to Obama the image - appreciates that this is not only false but dangerous.

Law professor Bill Brewbaker says that he voted for McCain "in part because nobody's going to mistake him for the messiah." But isn't messianic hope the very rationale of the Obama campaign? If the "unity" he seeks is around something other than his person, then he has to explain what it entails and he becomes, not a transcending figure, but the most liberal Senator. Substantively, Obama's policies are not new or unique; they are old and common. Perhaps that old and common liberalism is what the country wants this year. But the fact that it is not what he puts on offer suggests otherwise.

Sunday, February 10, 2008

Sunday's old hippies

Last week, we revisited the 1967 Monterey Pop Festival which was so good that we ought to stay there.

The Jefferson Airplane, before it morphed into the awful Jefferson Starship (later just Starhip), was one of those bands that evoked the tenor of the times. At Monterey, the Airplane was introduced as a sign of "what the world was coming to." It turns out that they weren't and, if I wanted to do some thumbsucking, I could draw a parallel between this song, which expresses an uncontrolled and self obliterating love, and the Dyonisian fascism that was an unfortunate part of the sixties counterculture, But, really, I just like the song.

And, once again, I offer a bonus, although it's not an old performance. In honor of my appearance at the Fourth Street Forum (which is on again this afternoon at 3 on Channel 36) on religion and politics, I offer my friends on the left some faith in politics. Michelle Shocked is a lefty folksinger who is, as she would put it, "God-crazy." She did a great gospel set at Telluride a few years back that was apparently recorded without her knowledge and recently released as To Heaven U Ride . I highly recommend it. This song, Quality of Mercy, was written for the movie Dead Man Walking.

Friday, February 08, 2008

Setting the record straight, part 4

I wanted to unpack at least one other internet exchange on the state supreme court race, although this one does not have much to do with Daniel Suhr. Once again my foil is Illusory Tenant, although more for finding a point of departure than to offer rebuttal.

IT's brings to our attention the following comment by Judge Gableman in an internet debate:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities

IT takes Gableman to task for using the verb "cite" and, while I doubt that there was any nefarious intent, it is a bit of a malapropism here. As IT points out, "the land of Oz" was a figure of speech. I think there is a Wizard connection here but more on that later.

I want to talk about the business about "social science studies manufactured at universities" and we can use the "Oz" case, State v, DuBose to illustrate what the real issue is.

DuBose is a case that teaches well. The victim knew DuBose who frequented the video shop where he works. The victim and his friends ran into DuBose in the parking lot of a bar and invited him back to his apartment to smoke dope. DuBose agreed and they did so. In the course of the proceedings, DuBose placed a gun against the victim's head and robbed him. He then fled. He was caught running around the neighborhood and placed into the back of a squad car where the victim identified him.

Yet the DuBose majority excluded the identification of a guy who the victim knew and with whom he had just been partying and who had just recently shoved a gun to his head.

Let's assume that a showup in the back of a squad car is unduly suggestive. The rule, followed by SCOTUS and SCOWIS prior to DuBose, was that the identifications arising from even suggestive showups could be admitted if, under the totality of circumstances, it was reliable. That sure would seem to be the case here.

In DuBose, SCOWIS abandoned that rule saying that not only identifications from unduly suggestive identifications but identifications stemming from any showup must be excluded even if they were, under the totality of the circumstances, reliable. They can come in, according to the court, only if there was some need to proceed in this way.

Here's where the studies come in. Let's put aside the phrase "manufactured" which is a bit of populist flourish. The majority relied on studies that purport to show that eyewitness identifications are unreliable. It is not unsual for this type of evidence to be cited to courts. Briefs icluding such work even have a name - Brandeis briefs - after former Justice Louis Brandeis who, as a litigator, pioneered this type of thing. Conservatives do it too. Just this week, the indidspensable Clarmemont Institute filed such a document in support of second amendment rights in D.C. v. Heller.

But the dissent objected to the way in which the majority used it to alter the requirements of the state constitution. They thought that tied the constitution to the latest academic fad, lent itself to picking and choosing among conflicting srudies (none of which would be subject to cross and rebuttal and findings of fact). They also argued that, in this case, the study results were mixed and could just as readily be used to create a constitutional rule against line-ups. Nor does the failure rate of eyewitness identification generally tell us much about whether it was unreliable in this case. (This is why it was fair for Daniel Suhr to say that Justice Butler "especially defended" use of the studies. He was responding to Justice Roggensack's criticism of their use.)

So where do we find a Wizard connection? IT emphasizes how complicated DuBose is and we hear that in judicial elections. You can't judge a decision, we are told, unless you read the briefs, heard the argument and know enough law to place it in context. So lay off.

This reminds me of the Land of Oz:

There is, of course, some truth in claims about the complexity of all of this. But responding to that by suggesting that popular discourse about decisions is not possible - or to simply dismiss a legitimate criticism as incompletley stated so as to suggest that there is no issue - is a luxury we can't afford if we want to elect judges. People are going to criticize and respond to criticism without launching into lengthy disquisitions just as they do when they discuss complex issues of taxes, poverty and foreign policy in nonjudicial elections. ("McCain wants to stay in Iraq for 100 years" is just as unfair as "Justice Butler loves criminals.") In fact, suggesting that a critic has manufactured an issue because there is more to it than the limitations of campaign spots will allow, is, in its own way, also misleading.

The way in which SCOWIS has picked out studies cited by advocacy groups to fashion broad rules that significantly expand judicial power is a legitimate issue. (Two other cases in which this happened are Jerrell C.J. and Ferdon.)

Thursday, February 07, 2008

A long haul coming

Am I missing something or are the Democrats almost certainly headed for an inconclusive primary season? Given the large number of uncommitted superdelegates, it seems that, unless Clinton or Obama starts dominating the remaining races in a way that neither has to date, there is almost no way either of them gets to the 1900+ delegates needed for nomination. If that's the case, there is going to be a knock down, drag out battle for delegates and over what to do about Michigan and Florida.

The conventional political wisdom is that this is bad. But is that right? Assuming that they don't slime each other (an unlikely prospect with the Clintons involved), is it possible that the added attention helps rather than hurts? Who is going to be talking about John McCain while that is going on?

It seems to be both an opportunity and a challenge for Obama. If he can come through this with his dignity intact, then the public, because of all the attention this is likely to get, may feel more comfortable with him. On the other hand, if the Dems let this slip into their default mode of group politics on steroids and he lets this subliminal message he's promoting ("it's our turn") get out of hand, it may hurt.

And, of course, there are party unity issues - particularly (and somewhat ironically) if Hillary wins. It will be hard for that to happen without causing some real hard feelings among black voters. I don't see many going for McCain, but turn out is important and, in a close election, everything counts.

If Obama wins, what does that do for the hispanic vote? Remember, we've nominated a guy who is not a hardliner on immigration and there appears to be a real disinclination of hispanics to support Obama.

And what does McCain do during all of this? Keep his powder dry. And make nice with conservatives - a task that he begins this weekend at CPAC.

On the other hand, I wouldn't be shocked if Obama ran the table.

Wednesday, February 06, 2008

Update: Romney's scenario

Not a total disaster, but not really close to what was needed. Movement conservatives have gotten behind Romney, not because they love him but because he has emerged as the conservative alternative based on the positions that he has taken - lately. In part, this was because he was self funded. People like Brownback, who may have filled this role, could not get enough traction to raise money. '06 hurt as well in that it eliminated people like Santorum and Allen who may have taken a shot. Thompson didn't want it as bad as you must. Giuliani adopted a bad strategy, was wrong on a very important issue and had a past that doesn't play well past the Hudson.

The difficulty is that Romney has little appeal beyond his position papers and, unlike movement conservatives and liberals, most people don't choose based entirely on issues. There may be some wisdom in this given that events tend to move people off their campaign platforms and from what they have done in the past.

That "wisdom," rightly or wrongly, seems to have come to the conclusion that Romney can't be trusted. While there is certainly mathematical room for him to come back, there is no reason to think that he can change the way in which he is perceived.

For my conservative friends, keep a few things in mind:

1. McCain now needs conservatives. He will need them if he wins. People don't get to be nominated for President without the ability to attend to political realities.

2. One of McCain's weaknesses (and strengths) is that his personal experience forms his public stance. Some of what we have seen from him is a response to conservatives rallying around Bush. The MSM loves him now. That will change dramatically when he is running against Obama or Clinton. History tells us that he will react to that.

3. This notion is that we need time in the wilderness is wrong for at least three reasons. Six of the justices on the US Supreme Court will be over 70 during the next Presidential term. While four of those six are in the Court's liberal wing, the next President may be able to dramatically change the balance of the Court. This cannot be changed by a future GOP President until those Justices retire or head on to the ultimate decision conference. Foreign policy mistakes, including a precipitous withdrawal from Iraq, will also have consequences - even deadly ones - that cannot be reversed by a future GOP president who will simply change policies.

In additon, it is quite possible that the next administration will have to address a resolution of the social security/medicare mess and act on health care in a way that it will be very difficult to reverse. Do you really want to be completely absent on that?

We assume that we can just lose and come back in four years. I believe that an Obama or Clinton presidency will harm the country. I am not so sure that it will be unpopular (particularly if the nominee is the engaging Obama.) It is far more likely that McCain, who will almost certainly be a one termer, would pave the way for his Veep.

Conservatives who are trashing McCain and saying that they will never support him are missing the big picture. If you think that there is no significant difference between John McCain and Clinton/Obama, you are not paying attention.

Tuesday, February 05, 2008

Shark on TV

I am doing the 4th Street Forum on Thursday.

For many Americans, politics and religion are linked.
Others want the two kept well apart.
What does the presence of religion in politics mean for pluralistic America?

Each forum is taped in front of a live audience for later broadcast on Milwaukee Public Television, Channels 10/36. The forums are free and open to the public. Come and be a part of the discussion. Participate by asking questions of the panelists. Bring your lunch or purchase it from Historic Turner Restaurant.

WHERE: Milwaukee Turner Hall, 2nd Floor, 1034 N. 4th Street (4th and Highland)

WATCH: Milwaukee Public Television will broadcast this forum on Friday, FEBRUARY 8, Channel 10, 10PM and Sunday, FEBRUARY 10, Channel 36, 3PM. It will also run on Time Warner's, "Wisconsin on Demand," (WIOD), Channel 1111. Podcasts of the programs will be posted two weeks after broadcast at Some of the programs will webcast at All programs will be available for checkout from your local public library.
MODERATOR : JACK MURTAUGH, Co-chair, 4th Street Forum Executive Committee
RENEE CRAWFORD is the associate director of the ACLU of Wisconsin. As a lawyer and community activist, the focus of Ms. Crawford's work has been on the voting rights of Wisconsinites. She is also known in the community for her political blog.

RICK ESENBERG is a Marquette Law School professor, who specializes in litigation and public law. Professor Esenberg is political writer and publishes a blog.

SUSAN VERGERONT is the associate pastor of First Presbyterian Church of Waunakee, Wisconsin. For ten years, Pastor Vergeront served in the Wisconsin State Assembly as Representative from the Ozaukee County Area.

MARCUS WHITE is the executive director of Interfaith Conference of Greater Milwaukee, which brings people together from different faith traditions to work on community social concerns. Mr. White also moderates periodically for 4th Street Forum.

If you are interested in exploring the topic further, watch "Prayer in America," which will air on MPTV Channel 10, February 12, at 8:00 PM.

Romney's scenario

What does Romney have to do to stay alive? Candor compels me to say that I don't really know but am about to offer my opinion anyway.

1081 delegates are at stake. It looks to me that, if Romney and Huckabee can keep McCain from getting over half of them, it counts as a win - maybe even a big one. McCain will still have a sizeable delegate lead but he won't be close to over the top. Because the expectation is that he emerges as unstoppable tonight, he loses if he doesn't win big. (But spin control is going to be crucial.) If it is played right, McCain's money and support as "inevitable" falters and Romney lives to hope for an anti-McCain backlash. It will be, incidentally, a huge test of whether the MSM loves McCain or a horse race more.

In addition, Romney has to get a very solid majority of what McCain does not get. This is necessary both for his own nomination scenario and to put pressure on Huckabee to quit. His continued presence in the race and capture of delegates hurts Mitt.

Finally, he can't just do this by running strong seconds. He needs some wins. It seems to me, though, given the number of GOP delegates awarded to state winners, that he is highly unlikely to accomplish the first two without achieving this as well.

How can he do this? He is going to get dusted in some big winner take all (or mostly all)states like New York and New Jersey. It seems clear that he needs a big win in California where he is going to have to take the lion's share of the congressional districts. He needs to win big, as he is expected to, in Utah and Massachusetts, but he also has to pick off a few other states. Georgia would be huge. He needs to take the Colorado and West Virginia caucuses. At least one more win would be nice, but I am hard pressed to see where it will be.

But, if he does this much, and can get some delegates from more proportionally allocating states like Illinois and Tennessee and have Huckabee clean up in Arkansas, maybe steal "winner take all" Missouri from McCain and score delegates in places like Oklahoma and Alabama, Romney could get close to a best case scenario.

But the math is tough. There will, of course, be some unpledged delegates, but it's for hard for me, right now, to see Romney with more than 300 and Huckabee with more than 120.

I think that keeps Romney alive but may also make Wisconsin his last stand.

An update tonight.

Monday, February 04, 2008

Setting the record straight, part 3

Another issue banging around the blogosphere involves the citation of Knapp by the Wisconsin Court of Appeals in State v. Cleaver. Here's what Daniel Suhr had to say:

In State v. Cleaver, the Wisconsin Court of Appeals suppresses statements given to the police when the suspect was in custody but before she was Mirandized. It further suppressed statements given after she was Mirandized as fruit of an earlier violation.

Here's the response at Illusory Tenant:

So. Now we have Suhr putting forth Cleaver for the general proposition that the physical evidence component of Butler's holding in Knapp is wreaking havoc throughout the land. Only one problem: Cleaver doesn't involve physical evidence, but it does involve the question of intentional withholding of Miranda warnings, and that is the reason it cites to Knapp.

Now, it's not at all clear that Daniel Suhr cited Cleaver for the proposition that "the physical evidence component of Butler's holding in Knapp is wreaking havoc throughout the land." He noted both the physical evidence component of Knapp and that Knapp endorsed a more expansive interpretation of cognate procedural rights under the Wisconsin Consitution, i.e., it endorsed the view that Wisconsin courts ought to step away from their usual (but not exclusive) practice of reading the relevant provisons of the Wisconsin Constitution in lockstep with SCOTUS' reading of cognate provisions in the US Constitution. (Keep this in mind; it will be important later.)

Daniel noted that Cleaver had cited Knapp (for what he does not say) and describes the case, making it quite clear that, as IT points out, "Cleaver doesn't involve physical evidence," So if, as IT says, there's "only one problem," that certainly isn't it.

Daniel's description of Cleaver is accurate as far as it goes. Cleaver involved a case in which a defendant made a statement after he was not warned and then the cops came back, warned him, and took the statement again.

But, as IT notes (turns out he did have more than one problem), the Cleaver court relied on the intentional nature of the failure to Mirandize the defendant the first time around. (I'm not sure, based on the facts recited, that the failure really was intentional, but that's what the trial court found, so we'll stick with it.)

I think that's a more salient distinction here than in Knapp because the Patane court focused on the nontestimonial nature of the evidence to be excluded. Here, as Daniel's description makes clear, this is testimonial. In addition, there was a second SCOTUS decision decided the same day in which a plurality excluded statements made in a similar context. In this case, I think the need to refer to the intentional nature of the violation is more compelling, although I am not about to claim that the failure to do so amounts to intentional "distortion" or calls into question someone's ethical makeup.

Was there any point for Daniel to cite Knapp? I think so. IT says that Cleaver did not follow that component of Knapp that chose to use state, rather than federal, grounds in excluding the evidence:

Not only that, but in one of its own footnotes, the Cleaver court further distinguishes itself from Knapp by pointing out that while Knapp was based upon a Wisconsin constitutional provision, the case under consideration, Cleaver, is based on the Fifth Amendment. Interested and attentive readers will also recall that this was the other conservative objection to Knapp: that by relying on the State constitution and not the Fifth Amendment, the Wisconsin Supreme Court had insulated its holding from federal review.

Ergo, double flat wrong.

I wish that IT had read Cleaver with more interest and attention because this characterization of it is flat wrong.

Cleaver relied on Knapp in excluding the statement:

Because Cleaver’s statements on April 26 were the result of an intentional violation of her Miranda rights, they must be suppressed.7 State v.
Knapp, 2005 WI 127, ¶83, ___ Wis. 2d ___, 700 N.W.2d 899.8

The footnote in which IT thinks that Cleaver distinguished itself from Knapp by saying that Cleaver is based on the Fifth Amendment reads as follows:

The circuit court decided Cleaver’s suppression motion on Fifth Amendment grounds. In Knapp, 700 N.W.2d 899, ¶83, our supreme court decided the suppression issue based on article I, section 8 of the Wisconsin Constitution. We may affirm a correct decision of the circuit court even though that court relied on other grounds. State v. Rognrud, 156 Wis. 2d 783, 789, 457 N.W.2d 573 (Ct. App. 1990). (emphasis supplied)

In other words, it was the trial court that used the 5th. The Court of Appeals used Knapp and Knapp, we know and it knew, uses Article I, section 8. The very point of the footnote was to observe that it was ok for the court of appeals to affirm the trial court on grounds (Art. I, sec. 8) other than those that the trial court used. (the 5th amendment)

I see no need to spike the ball and dance around (at least no more than I already have). Whoever hides behind the nom de guerre, Illusory Tenant, is a very smart lawyer and a good writer and, notwithstanding our almost constant disagreement, I enjoy his (again I get the sense that IT is a man) participation in the debate.

But the error is not entirely unrelated to the issues here. Cleaver is an appellate court decision that probably could have been decided by relying on Missouri v. Siebert, the SCOTUS case decided the same day as Patane. It did not do so because it felt itself to be directly bound by Knapp which uses state constitutional grounds. Cleaver, then, reflects a movement, lead by Knapp, to develop an independent body of law surrounding self incrimination in Wisconsin. If Cleaver were to be decided on that basis by SCOWIS (but it won't be because the court denied review over Justice Roggensack's dissent), there would be no SCOTUS review and we'd never learn if it is really controlled by the plurality decision in Siebert.

There are differences of opinion on this New Federalism which, in the criminal procedure area, will always operate to expand the rights of defendants. Some people argue that it's a good idea, either to skirt an overly conservative SCOTUS or to foster a constitutional dialogue or they defend it on legal realist grounds. Other people think that it is an entirely result driven and meaningless exercise, particularly in light of the fact that most of these state provisions were just copped from the US Bill of Rights and, in 2006, there just isn't much about the various states that is distinct in a way that relates to constitutional interpretation. Particularly in the criminal area, these critics are concerned with uniformity. Still others believe that New Federalism is a legitimate way of proceeding, but only if you can point to something in your state which is unique to it and distinguishes the state provision from the federal provision.

To suggest, as some do, that New Federalism is a well accepted and garden variety thing that ought not be an issue in the campaign ("nothing to see here") does not reflect the way in which lawyers, scholars and judges view the matter. It's an issue. Knapp raises it. So does Cleaver.

Sunday, February 03, 2008

Sunday's faded rockers

Under the general category of what might have been, I offer a clip from the debut performance of the Electric Flag at the 1967 Monterey Popr Festival. The group grew out of another fanstastic band that died too soon, the Paul Butterfield Blues Band. The Flag was the project of lead guitarist Mike Bloomfield who brought along singer Nick Gravenites. The original cast(with Bloomfield who was one of the early guitar heroes) recorded only one album. A pity. It was also a pity that Bloomfield never fully realized his talent, descending into drug and alcohol problems that killed him in the early 80s.

The barely audible chorus on this clip - sung by Bloomfield and bassist Harvey Brooks - is, of course, "wine, wine, wine."

And speaking of Monterey and what might have been, I offer as a bonus one of the most astonishing live performances of my increasingly lengthy life time.

Saturday, February 02, 2008

Setting the record straight, part 2

Returning to Illusory Tenant's jeremiad against a law student, Daniel Suhr wrote something that looked at whether some decisions written by Justice Butler have had "legs," i.e. have they led to further changes in Wisconsin law or been cited by the courts of other states.

IT focuses on two decisions of the Ohio and Vermont cases included in Daniel's piece. These courts faced the same question as that present in Knapp. Should they follow Patane (that is how they phrased it) under the Vermont and Ohio constitutions?

IT goes to great lengths to establish that Justice Butler did not "make" or "cause" these courts to rule in the way that they did. But Daniel never made that claim. He noted that they cited Knapp in reaching the same result. IT's suggestion that there is some kind of lawyers' rule or custom that one should say that they "cited Knapp after holding ..." or words to that effect is wrong. In 26 years of practice at what most people would regard as relatively high level of the profession, I have never heard of such. If I cite a case to a court or, if the court cites a case in the course of an opinion, we are generally understood to be saying that we find it to be persuasive on whatever the issue before us happens to be.

Both the Ohio and Vermont courts decided, like Knapp, not to follow Patane and to base their decisons in their state constitutions. Of course, the Ohio or Vermont Supreme Courts did not "follow" Knapp in the sense that they found it to be binding precedent. What they did do is cite Knapp as consistent with their interpretation of the Ohio or Vermont constitutional provisions that were similar to the Wisconsin provision at issue in Knapp and the federal provision at issue in Patane. As IT knows, when courts do this, it is not as some idle statement meant to satisfy the curiousity of someone who just happens to be thumbing (or, nowdays, left clicking) through the reporters. They tend to use like minded decisions from other jurisidictions to confirm their conclusions and to bolster the persuasive nature of their decision. Judges also take comfort in knowing that other courts have reached the same conclusion. We are a profession that likes company.

This doesn't mean that SCOWIS and Louis Butler "made them" do it or even that, had SCOWIS not decided Knapp as it did, they would have decided differently. But the argument that the citation of Knapp by other courts is insignificant strikes me as a strange defense of IT's candidate. I am sure that Justice Butler is proud of the fact that other courts cite his work. He would probably like to think that his work, of which I am sure he is rather fond, is influential and persuasive. I know, were I in his position, I would.

But this attempt to portray our student as inept or disingenuous also fails.

But I have more.

Setting the record straight, part 1

Our illusory friend is going all medieval over my student and research assistant Daniel Suhr again.

I dislike the implication that one of our students has somehow done bad work or failed to meet some objective standard when he has not, but Daniel is a big boy and capable of defending himself.

Besides, as I have said, politics ain't bean bag and apparently the punctilious rectitude with which one is supposed to treat elected justices of the supreme court does not apply to mere law students. Well, we all know how it is between the powerful and the weak.

More importantly, this series of posts sheds more confusion than clarity on the issues in the state supreme court race. So I am going to have to straighten a few things out. Sorry, but it's going to take some detailed discussion of the law.

Is it fair to say that the Knapp Court failed to follow the US Supreme Court's decision in United States v. Patane?

One of IT's criticisms of Daniel and others relates to a claim that the Wisconsin Supreme Court's (SCOWIS) interpretation of the Wisconsin Constitution in State v. Knapp did not follow the United States Supreme Court's (SCOTUS) interpretation of substantially similar provisions of the United States Constitution in United States v. Patane.

The argument is that there was only a "plurality" decision in Patane, i.e., while a majority agreed on the result, no five justices agreed on the rationale for that result. The implication is that, even if Patane were to be followed, it left SCOWIS free to do whatever it wanted in Knapp. Thus, it is wrong to say that Knapp failed to follow Patane because Patane lead nowhere.

This criticism misses the mark. The likelihood is that Patane did control Knapp and SCOWIS shifted the basis for its decision to avoid that possibility.

In Knapp, the issue was whether the physical fruits of a statement obtained after the police failed to make required Miranda warnings must be excluded. A cop was in Knapp's apartment and talking to him without giving the normal warnings ("you have the right to remain silent, etc."). In the course of this, the cop asked him what he was wearing the night before and Knapp nodded at a pile of clothes on the floor that included a bloody sweatshirt. The sweatshire was later found to be stained with the victim's blood. The cop later admitted that he intentionally held off on giving Knapp Miranda warnings while he was in the apartment.

The case went up to SCOWIS twice and, the first time, SCOWIS held that the bloody sweatshirt and the fact that the blood stains came from the victim ought to be excluded from the trial, relying on the 5th amendment of the US Constitution. (Note the italics; this is important.)It set aside Knapp's conviction.

The state appealed and SCOTUS vacated SCOWIS' judgment setting aside the conviction. It sent the case back to SCOWIS with instructions to reconsider in light of its recent decision in Patane. Although, as noted above, folks make much of the fact that there was no majority decision in Patane, the fact is that five justices held that it was not necessary to exclude physical evidence obtained after a failure to Mirandize a defendant. The plurality argued that it was unnecessary to exclude such evidence if obtained as a result of a Miranda violation and two other justices (Kennedy and O'Connor)thought it unecessary to determine whether Patane's rights were violated or whether there is "'anything to deter' [by excluding the evidence] so long as the unwarned statements are not later introduced at trial." But even they 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" and expressed doubt that the exclusion of reliable physical evidence could be justified by the need to deter violations of a defendant's self incrimination rights. Because reliable physical evidence is not testimonial, these five all seemed to agree, it is not necessary to exclude physical evidence even when Miranda has been violated.

Sending the case back in light of Patane was a fairly unsubtle hint that SCOTUS thought SCOWIS got it wrong. Now, maybe you can reconcile excluding the bloody sweatshirt with the views of a majority in Patane. One possibility might be to argue, as IT suggests, that the Miranda violation in Knapp was intentional and, in Patane, it was not. Indeed, when the case came back to SCOWIS, Justice Butler's opinion emphasized this very fact.

But that was uncertain to persuade the five SCOTUS justices who were in the majority in Patane. If Miranda is limited to preventing self incriminating testimony and introduction of physical evidence obtained as a result of an unwarned statement won't risk the introduction of such testimony, then, at least in the view of a majority of the Patane justices, it may not matter that the violation was intentional. (I also think that there is a question as to whether the sweatshirt was actually obtained as a result of the intentional violation, but let's put that aside for now.)In fact, it was one of the dissenters in Patane(Justice Breyer) who wanted to make the introduction of physical fruits turn on whether the cops had, even if Miranda was violated, acted in good faith.

All in all, not so promising.

But here's the important part. We don't know if SCOTUS would have accepted the "intentional violation" argument because, after SCOTUS sent the case back, SCOWIS decided to change up and base its decision on Article I, sec. 8 of the Wisconsin Constitution rather than the 5th amendment. It did so even though, prior to Patane and the SCOTUS remand, no one had thought to make such an argument.

Because the decision was now based on Wisconsin law, SCOTUS can't review it. There is no reason to make this switch unless you think that SCOTUS is not going to uphold your interpretation of what Miranda means here. On these facts, it seems fair to say that Knapp failed to follow Patane.

To the contrary, it seems that the argument that SCOWIS didn't decline to follow Patane is a bit of misdirection.

Is it fair to criticize SCOWIS for not following Patane in Knapp?

The second criticism that IT makes is that SCOWIS doesn't have to follow SCOTUS when it is interpreting a cognate provision in the Wisconsin Constitution. This is the New Federalism that we hear everyone talking about. Although it almost always does so, SCOWIS does not have to interpret provisions in the state constitution in the same way that SCOTUS interprets identical or similar provisions in the US Constitution.

But to say that SCOWIS can do something is not to say that they ought to and there is a vigorous debate among judges, lawyers and scholars as to whether and when this prerogative ought to be taken. So to criticize SCOWIS for not following what appeared to be the requirements of Patane is fair game.

The reason that New Federalism will be an issue in the campaign is that it is generally used by SCOWIS to adopt a more liberal view of the rights of criminal defendants. In fact, the seminal article advocating New Federalism was written by Justice William Brennan in 1977 to urge state supreme courts to adopt a more expansive view of certain rights than the US Supreme Court was then inclined to do.

Daniel Suhr is apparently not a fan of New Federalism. Perhaps IT is. But criticizing SCOWIS for adopting it is not dishonest or inept.

More to come.

Friday, February 01, 2008

Thinking about McCain

What do we think about John McCain? He makes us uneasy. Two things that bother other conservatives - immigration and Guantanamo/waterboarding - are less of a concern for me. These are difficult issues where the proper resolution is somewhere between the hard left and hard right positions.

I do not like the fact that he opposed the President's tax cuts, although he has been far better than the President on spending. We know that either Clinton or Obama will seek to raise taxes and spending. Tell me, clearly John, that you won't do that and all is forgiven.

His dalliance with the overwrought view of global warming is bothersome, although the Dems are all in on that particular mania. My guess is that reality will restrain policy on this and the science will eventually turn the other way (and, if it doesn't, then some more aggressive policies will be in order.)

Where I really freeze is the area of judicial appointments. As Ilya Somin points out, the notion of appointing conservative jurists and appointing people who will save what is left of McCain-Feingold are probably irreconcileable. It is hard for a textualist or originalist (whatever your version of originalism might be)to say that it is constitutional to tell people that they cannot criticize or petition federal candidates during an election in a way that is likely to be heard or seen by the public without jumping through some fairly narrow and restrictive hoops.

To get there, you have to be willing to say that the free speech guarantee - as applied to political speech - is not as absolute as it reads or as the original intent would suggest that it is. You have to adopt an interpretive method that emphasizes the need to address imbalances in wealth and power. (Although I think that you can make an argument that McCain-Feingold exacerbates, rather than relieves, such imbalances.)

Conservative jurists aren't likely to ee things that way.

So I need to know that his commitment to conservative jurists trumps his concern for any piece of legislation, including his own pride and joy. I need to know that the people who have recently endorsed him - folks like Miguel Estrada and Ted Olson - will be the people that he listens to when he appoints judges. I want to hear a few names of people that he would be inclined to appoint to the Supreme Court.

On the other hand, I know the types of people that Clinton and Obama would appoint. In this area, while I may be uncertain about McCain, I am pretty clear on the Dems.

Most importantly, John McCain is serious about foreign policy. Obama and Clinton simply are not.

I hope that Mitt Romney can derail the McCain boom on Tuesday. I don't think that this should be over yet if, for no other reason than that John McCain has more work to do with conservatives. But I suspect that Romney will be unable to do so and that, next week, we will be pretty sure that John McCain will be the nominee.

And I'll support him.