Thursday, March 20, 2008

But who's right?

We have dueling statistics regarding how often Justice Louis Butler votes in favor of criminal defendants. The Coalition for America's Families says he sides with defendants 60% of the time. Justice Butler says it's 25%.

Jessica McBride claims to have gotten a copy of the Butler's campaign's analysis and finds what appear to be a lot of flat out inaccuracies. Illusory Tenant claims, without proof, that she had a draft and argues that her claim that the Butler camp mischaracterized the case are not always correct. (Although, in the example that he offers, McBride was spot on. If the Butler campaign is contending that the Court's decision in State v. James E. Brown is not a ruling in favor of a criminal defendant, it is wrong. That the decision appears to be correct is not the point here. We're trying to get the numbers straight.)

I can't quite follow how the way in which the cases are characterized in the list that Jessica posts and perhaps it isn't the final analysis. But at least she is making an effort to get at the truth. Our friend Illusory Tenant seems to want to discredit the effort by sniping at the edges.

Now, I suppose that he will say that the number is meaningless and taken by itself, I agree. Although 60% seems very high, the number would be more meaningful if compared to the numbers for other justices. Even then, one would have to make a judgment as to whether one disagrees with Justice Butler's approach.

But since both sides are throwing around dramatically different numbers, wouldn't it be nice to know why they are so different? I guess I'd be more interested in that than playing a game of the dozens with Jessica McBride.


Anonymous said...

Using an incomplete draft document is just sloppy and bad journalism.

illusory tenant said...

I have proof. Her list is incomplete. You should be able to see that for yourself, since it only contains 62 cases, whereas a 3/11 Butler press release makes reference to 70.

Prima facie incomplete, n'est-ce pas?

But hey, at least Butler didn't include for 9,000 uncontested traffic tickets.

Display Name said...

"The dozens"?

Think Jess is up for it, or are you just gettin' all shadowy and racial again?

Rick Esenberg said...

Well, there are allegations of overinclusive and underinclusiveness, so I don't know what those numbers mean.

But, beyond that, she is clearly raising some serious issues. Is the Butler campaign really counting Knapp as a ruling against a criminal defendant? You can pick around the edges, but it doesn't mean that there isn't a question regarding the accuracy of the Butler summary.

illusory tenant said...

Is the Butler campaign really counting Knapp as a ruling against a criminal defendant?

No, it is not. As I said, McBride obtained -- and relied upon -- preliminary, incomplete data.

You got one thing right though, she is clearly raising some serious issues -- of credibility, and I don't mean Justice Butler's.

Moreover, as I said, McIlheran has done a serious disservice to his own and his newspaper's credibility by linking uncritically to McBride's overheated accusations.

I doubt this is a hill you want to die on, Professor.

Mike Plaisted said...

I just posted my analysis -- I'd be interested in your thoughts.

I think the draft she had may have "claimed" some things in error because of some staffer messing up on their complicated color-code. But, I know, she is not interested in giving Butler or his campaign the benefit of the doubt.

Anonymous said...

From McBrides post -

“The ad references Justice Butler’s strong record of holding all wrongdoers accountable,”

Butler holding all wrongdoers accountable? What a joke.

Anonymous said...

For all you attorneys--shouldn't you be concerned that Butler APPLIES the law to all cases? And, if the law happens to favor a "criminal", then go to Madison and ask legislators to change the law. All I want in ANY judge is for the judge to apply the LAW! Even you attorneys should understand that!

Anonymous said...

anon 3:45 said -

"All I want in ANY judge is for the judge to apply the LAW!"

I think the way it really works is that you figure out if you're for or against something and then you find the laws and precedents that you can fit or explain into your theory.

I still think we should be digging deeper into world and political views. Our laws are made up of what are world and political views. There is no reason why judicial candidates shouldn't answer those type of questions.

Anonymous said...

"I think the way it really works is that you figure out if you're for or against something and then you find the laws and precedents that you can fit or explain into your theory."

This is a pretty good explanation of how the "Witch of Waukesha" approaches life. If she confronts a Democrat/Liberal (as she perceives the incumbent Supreme Court Justice to be) she knows that he/she is vile and evil and then she sets about to prove it. This is precisely how her simple, simple mind works.

Anonymous said...

"Our friend Illusory Tenant seems to want to discredit the effort by sniping at the edges."

What's new?

William Tyroler said...

I can't quite follow how the way in which the cases are characterized in the list that Jessica posts and perhaps it isn't the final analysis. But at least she is making an effort to get at the truth.

If you can't quite follow how she's characterizing the cases then it doesn't quite follow that she's making an effort to get at the truth. What she's doing is making an effort to carry water for Gableman. The heading she gives her post says all you need to know: "Butler gins up phony stats on crime, but when will the media notice?" (She polemicizes Knapp as a "pro criminal" decision, by way of further illustration.)

What's phony is her methodology. She purports to track whether he "sides" for or against criminal defendants, but I don't know how you measure that, let alone what its ultimate significance might be. If you vote in favor of a re-sentencing, an event which would subject the defendant to a greater sentence (assuming, of course, an initial sentence below the maximum), have you sided for or against the defendant? If you interpret a statute in such a way that the defendant immediately in the dock gets off the hook, but future defendants are more likely to be ensnared in a prosecution: have you sided for or against criminal defendants?

Take note that her idee fixe -- that Justice Butler "sides" with criminal defendants -- simply apes the CFA's assertion. It is she who is plainly taking sides: with the anti-Butler forces.

But she's not only imprecise, she's also wants it both ways. Thus, she condescendingly derides Justice Butler for making what she deems "a serious error in the law by misclassifying two sexual predator cases as criminal cases (Brown and Bush)." Too clever by half. Yes, these are technically civil cases but it was the Gableman campaign (or its stalking horse) that introduced one of these cases as evidence of Butler being soft on crime. Besides, up until recently predator trials were explicitly governed by rules of criminal procedure: a ruling in one context, then, directly impacted the other.

And so on. In the final analysis, even if we could come up with agreed upon definitional markers the ultimate conclusion would be, So what? Would it matter if Justice Butler "sided" with defendants 30% of the time? 35%? Would it matter that some unfortunate drudge assigned the task of going through his entire output mistabulated some cases? Are his votes to deny defendant's petitions for review really irrelevant -- because if they aren't then this discussion is academic, given that that's exactly the outcome in the crushing majority of cases.

I actually have regard for McBride as a journalist. I suspect that in this instance she's got ideological blinders on.

(Disclosure: I support Justice Butler's election; I've donated to his campaign, if you want to factor that into my remarks.)

Anonymous said...

W-Tyroler -

let me guess, you're a liberal democrat defense attorney.

I still think Butler is in over his head and that he hasn't done anything in nearly four years to make our courts fair and inpartial.

It's time to move on and try someone new.

Sam Sarver said...

Anon 8:01:

You think Butler is "in over his head" but the guy who hasn't even been an attorney as long as Butler has been a judge won't be? What nonsense is this?

Anonymous said...

s saver -

I've been around long enough to see the peter-principal at work, to often.

You can do one thing for twenty years and have only that one experience. Or, you can do numerous things during that twnety years and only have one year of experience that applies.

I've also have met and employed highly educated people that were not very smart and uneducated people that were very smart and talented. Some people are simply more capable then others.

The Supreme Court is to be a leadership position, not a followers position. My gut tells me that Gableman compared to Butler is more of a leader and has more conviction for justice in the courts. Butler has had nearly four years and has not demonstrated any leadership.

As I said, I think it's time for a change.

Anonymous said...

Who's right?

You're right Rick, you're always right.

Display Name said...

I attended a Butler fundraising event last night. He spoke at length and answered many questions. I was very impressed. Butler strikes me as very well-qualified for the job. He's well-respected by his peers and underlings from past jobs, he's sided with the majority on the clear majority of cases at the Supreme Court, he's worked as a teacher to judges, he says he's conscientious about applying the text of the law in the style of Black and Scalia. He strikes me as professional and very fair-minded.

For those who think political or personal orientation matters in choosing a judge, he did not strike me as "liberal" in the pejorative sense of "Democrat." He never dropped a single hint to the assembled faithful that he's wink-wink ready to legislate from the bench. He seemed middle-of-the-road or even downright conservative in his personal beliefs. One of my veteran county judges was there, too, an exceedingly meticulous and conservative fellow, and as he walked out, he said (I paraphrase) "It takes a lot to impress me, but I'm impressed with him."

I'm calling you out, Esenberg. You're no dummy, but you're playing dumb and numb on this significant point. You damn well know that Butler is more well-qualified for this job and that Gableman is not. You are welcome to your opinion, judgment and speculation about which of the two better adheres to how you'd like the law to be read in the future, but from a professional qualifications standpoint you know that Butler is a far better judge than Gableman is now. You won't say Butler is the better choice. Why?

Anonymous said...

John Frost -

Did Butler say all he's done to make our courts fair and inpartial. How he's held the courts accountable?

Gee, he must have forgot that is part of his job.

Anonymous said...

Justice Butler is a bright, even-tempered, personable guy. However, there is no way his judicial philosophy is in any way "conservative." Nonetheless, he is trying to pass himself off as a conservative, claiming that he is a textualist and, I have heard, even comparing himself favorably to Justice Scalia. That's obviously a farce. Although he is doing everything possible to to avoid being characterized as a judicial activist, he plainly is one.

Rick Esenberg said...


You can call me out all day but I have accepted certain support from the Federalist Society in commenting upon the issues before the state Supreme Court. In return, I promised not to endorse or be part of anyone's campaign. So, last year for example, I declined a request from the Journal Sentinel to write an op-ed endorsing Annette Ziegler (they were looking for someone to write on behalf of both candidates).

So all I am going to do offer "opinion, judgment and speculation" as to how the law ought to be read because I promised that is all I would do.

Mike Plaisted said...

Don't hold your breath waiting for Rick to respond, John. His post says that he would like to know exactly how McBride is wrong and to see an analysis of how Butler's record in the criminal cases compares to others on the court. I did just that in a post that I referred him to yesterday, asking for his comments. He hasn't responded, and I don't expect him to. He seldom does when the facts are not on his side.

Anonymous said...

Plaisted -

Having read your blog and watched your vitriolic nature evolve over the last several months, like Rick, I wouldn't travel to your blog and offer opinion either.

Your m.o. seems to be that you seek justification and relevance through contrarian and adversarial dialogue all to feed your new-found, but albeit amateur, fame as a pundit on Wisconsin judicial matters.

The simple fact is, no one reads your blog for insight, but rather for the entertainment factor. Just like a Rush Limbaugh or Sean Hannity... You have become what you preach against.

Nary a day goes by when you aren't calling people out and attempting to antagonize a soured debate in which you employ hyperbole and megaphonic rhetoric.

When this race is over, the Wisconsin political establishment will again place you on a shelf and your days of being on Wisopinion will end.

Sorry if that hurts your feelings...

illusory tenant said...

let me guess, you're a liberal democrat defense attorney.

Compelling rebuttal.

Cf. tenant on ad hominem.

(Apologies to Terrence Berres.)

Mike Plaisted said...

Oh, Publius, get over yourself -- and thanks for your kind thoughts.

I'm not trying to do anything other than call out various entities on the right for their rank hypocricy. All I'm doing is challenging anyone on the right to show me where I'm wrong on the facts, if I'm wrong. I haven't heard anything, so I must not be.

Rick used to engage, until he got involved in the WMC campaign against Louis Butler and for their recruit, Gableman (his Federalist Society money and their 501(c)(3) exemption notwithstanding). Now, it looks like he's shrouded me, like John Houseman in The Paper Chase. That's fine, but he can only hide from the true (moderate) facts of Butler's record for so long.

So, besides the ignoring silence, we have personal attacks like yours, Publius. But, like those on Nixon's enemies list and those who have suffered right-wing smears in recent years, like Michael Moore and Cindy Sheehan, I wear your weak comtempt like a badge of honor.

Display Name said...

What exactly did the Federalist Society buy? Perhaps you can clarify and extend to whatever degree you're comfortable with. (And of course, as the old joke goes, now we're really just haggling over the price. I hope you got a good price. I don't know about your menu of services, but I charge extra for the acts involving devices, contortion or denial of my intellect.)

Are they paying for your commentary on "how the law ought to be read" or are they paying for your silence at that exact moment when your considerable brain happens to notice the glaring and probably important differences in the candidate's resumes? Can you see why some might think it's the latter and not the former, seeing as the former was given away for free on this blog before any campaign started? If so, it might also lead one to think that WMC and the Federalists knew in advance which way your brain would be compelled to endorse, given this match-up, and that they were buying some insurance for their desired outcome. Does "commentary on the issues" preclude discussing what makes a good Supreme Court judge? If not, why avoid that elephant in the room? Why would someone pay you to avoid that discussion?

Is it just more fun and distracting to engage in McBride's sloppy trainspotting, creating nearly meaningless statistics that show proportions in outcomes of cases that have happened to come before the review of the court in the past few years? I'm no lawyer, but wouldn't such study say just as much about the mistakes of the lower courts as those at the highest?

Anonymous said...

You don't get it. Publius has it right. You engage in personal attacks all of the time, whether in your own blog or in response to the posts of others. You have a very demeaning attitude towards Prof. Esenberg. You call him names and always make it known (in a mocking fashion), that this is his first year as a prof at Marquette. Never mind his obvious intelligence and 16 years at Foley. It is quite obvious why you choose to point that out over and over and over... I don't blame him for not responding to your crap. And not everybody likes to read it either.

Mike Plaisted said...


You are right. I do needle the good professor about the credentials the rest of the right-wing has used his professor-ness to puff up the stuff he has always said anyway. It's like Gableman pretending to be an arson prosecutor when he last his only such case. If you are going to use those "credentials" to brag about yourself (or, for people using Esenberg, to brag about people who agree with you), a few facts to put it all in perspective are fair, I think.

I think the funniest things about right-wingers is that they can call people names all day long (on the radio, on blogs, look at some comments on my blog)
-- they can dish it out but they can't take it. It's easy when you guys are all talking to each other. Sorry to intrude and call you on your usual stuff.

Anyway, he just posted another one that responds to my post yesterday, somewhat, so, nevermind...

illusory tenant said...

I'm no lawyer, but wouldn't such study say just as much about the mistakes of the lower courts as those at the highest?

Quite so, and an excellent point.

Terrence Berres said...

Anonymous 11:49 AM said "Justice Butler ... is trying to pass himself off as a conservative, claiming that he is a textualist and, I have heard, even comparing himself favorably to Justice Scalia."

Justice Scalouis is a surprise, even in light of the current District II Court of Appeals race, but he's not denying it in today's Milwaukee Journal Sentinel online chat.

"Q: Daniel of Milwaukee - Good afternoon, Mr. Justice. In remarks to the Milw. Bar Assn., you described your method of statutory interpretation as textualist in the mold of Scalia & Black. Do you approach constitutional and/or administrative law cases in the same way you approach statutory construction?

"A: Louis Butler - Daniel, thank you for the question. In the interpretation of administrative law, and rules governing administrative agencies, our process is essentially the same as statutory construction. However, there is a difference, in that we do provide deference to administrative agencies in certain circumstances. With respect to interpreting the constitution, that is complex -- while we look at the language of the founding fathers, we must also look at the historical foundations of our constitution and the intent of our founding fathers."