Tuesday, March 25, 2008

Everyone's Business: Emerging Issues in the Wisconsin Supreme Court

My latest white paper has just been published by the Federalist Society and is on line here. Some commenters on this blog have been interested in my relationship with the Federalist Society. I am part of its State Courts project which attempts to raise issues about state supreme courts often in conjunction with a supreme court race because that is when the public is interested. The Society takes no position on the races and that is why I decided not to endorse or be involved in any campaign - both in 07 and now.

This blog is not part of that effort, although there is obviously a great deal of overlap between what I write here and what I might do as part of the Federalist Society's project.

One of the things that the Society often does in connection with its project in the various states is to engage an academic or practitioner to write a white paper. I did that last year on judicial restraint and this year on emerging issues before the Court. Because that takes a lot of time, the Society offers an honorarium and some money for research assistance.

But the Federalist Society does not tell me what to say and does not edit my work - apart from being kind enough to catch a few typos and other small things. The views expressed are mine and mine alone as are any errors.

This year's white paper does not, if I recall correctly, even contain the words "Butler" or "Gableman." The point is to offer some areas where the Court is about to or might act - in the interest of educating the public about how important these elections are. The discussion of those issues is fairly descriptive, although there is some editorial comment.

Finally, a point of clarification. I know that one reader of this blog has contacted the Milwaukee Federalists to ask them to comment of the fact that I was being "paid to comment on issues in the Supreme Court race." That's not really accurate. First, my relationship on this is with the national office, not the Milwaukee Chapter and, second, what I have been or will be paid for is to write this white paper and last years.


John Foust said...

Don't be so shy or oblique! Yes, the entire text of my inquiry, sent yesterday at 3 p.m., was "Prof. Esenberg has claimed the Milwaukee Federalists have paid him to comment on issues in the Supreme Court race, but that a condition of this is that he cannot endorse any candidate. Do you care to elaborate on this arrangement?"

I have not received a response from them so far, unless we count this post. I thought my phrase was an accurate summary of what you've said before: that they hired you to talk about the issues, but not endorse any candidate in the race. (I believe I was recalling "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.") Blame it on my love of journalism and fact-checking that leads me to probe like this. I really wanted to ask about the price, but I didn't want to seem gauche.

To what extent do you think you and this blog are deliberately working against Butler and for Gableman, and how does that square with your promise for this service?

I'll quote your white paper's second paragraph: "Since the release of A Court Unbound?, Justice John Wilcox, commonly regarded as a “restraintist” or (if you prefer) a “conservative,” has been replaced by the newly elected Justice Annette Ziegler, a jurist widely thought to essentially share Justice Wilcox’ jurisprudential outlook. As this paper goes to press, there is yet another election, this time pitting an incumbent against a challenger thought to have a materially different judicial philosophy."

Wow, you're right, you didn't mention Butler or Gableman or endorse anyone, nor tell any Federalist symp which way to vote! And the other subjects telegraph to the faithful and the patrons as well: school choices, the apocalyptic threat of gay marriage, liability, insurance.

I think I spotted a typo: "We don’t want candidates to promise how they will decide any particular case". You and WMC and AFP and the Federalists (especially the MKE officers who let the Journal forget to mention they were officers when they wrote that op-ed) and the U.S. Chamber and the insurance companies and Gableman don't really mean it that way, do you?

Disclaimer: No one paid me to have this opinion or withhold this opinion.

Anonymous said...

J. foust -

I wish you were more interested in having a Supreme Court that did there jobs to make sure our Courts are fair and impartial then you are in trying to nail Esenberg with a weak case.

J. Butler hasn't done anything to my knowledge to make sure our courts are fair and impartial. We would not have to worry about anyone trying to buy justice if the Supreme Court did this part of the job.

If you want to continue to have judges breaking the rules without apparant concern for what the High Court will do, then just keep ignoring this important issue. But, if you want fair Courts think again about your support for Butler.

illusory tenant said...

hasn't done anything to my knowledge

You again. Did you ever wonder whether your strange claims say less about the objects to which they're directed and more about your knowledge? Because you should.

What I wonder is how many people are actually behind these various "anonymi" that post here. My guess is two or three, tops.

Anonymous said...

It sounds like the Federalist Society's (reasonable) position is that it's not worth responding to John Foust.

Rick Esenberg said...

Well, first of all, you sent your request to the wrong people. You may have to wait for a response. Second, you have not quoted everything that I said. I have received certain support to comment on the issues (not the race) in the form of support from a pr firm that placed an op-ed and arranged a few interviews. I was paid to write these white papers. It wasn't a lot and I would have done it for free but given that I now earn an academic salary, I appreciate it.

As far as deliberately working for Gableman, I have commented on the characterization of cases - sometimes in ways that might be taken as defending his supporter's view of them and sometimes not. I have commented on ads, including criticism of some that he and his supporters have run. I have commented on the Butler campaign's analysis of his votes in criminal cases but I have also reported my impression that the Chief Justice and Justice Bradley seem to be more favoraby inclined to the rights of criminal defendants. I would comment on the CFAF analysis if I had a copy of it.

If your problem is that I am a conservative so my views would tend to diverge from those of Justice Butler, it's kind of hard for me to avoid that.

Anonymous said...

Hey Foust

Consider this. If you stop sticking your nose into other people's business and stop writing
parodies of other people's blogs
(all fine conservatives may I add), you might, just might, develop some type of a life for yourself.

Publius said...

I find it interesting that the State of Wisconsin has taken great steps in tort reform.

State Marriage Amendments, no matter how benign, are usually the subject of countless lawsuits and challenges. This is because they are thought to be intolerant of non-classical lifestyle choices. Not because of the protections they enforce.

Open debate on The Judiciary is always important; “The Rants and The Raves” are a part of that.

I wax philosophically this time of day because ” it’s Miller-Time” here in California.

Rick Esenberg said...

Have one for me, bro.

John Foust said...

Yes, I sent my request to the Milwaukee branch. If you'd mentioned whether it was the Milwaukee or the national group who hired you, I missed the clue, so I thought I'd ask the local group. Is this relevant somehow?

You said "I have received certain support to comment on the issues (not the race) in the form of support from a pr firm that placed an op-ed and arranged a few interviews." Is that a new admission that you have other patrons beyond the national Federalists? Which PR firm was this, and who hired them? Was this disclosed in the op-ed and interviews?

Of course we all understand you're a conservative and that you're well-qualified and competent to pontificate on legal issues. I think any sober observers (yourself included, I hope) can see that Butler is also well-qualified and competent to hold his position, and that Gableman doesn't have a comparable resume. I also think it's kind of silly for you to suggest that you're not endorsing anyone in this race. In short, you've been paid to endorse Gableman for political purposes.

Rick Esenberg said...

John, that's an irresponsible and cheap allegation without a shred of evidence. Sometimes when people spend a lot of time writing things, they get paid for it. The identity of the PR firm for the Federalist Society's state courts project is not a secret (they approach the press, for goodness sakes) and was commented on as early as a year ago. If you can't find it, just click on the link to the quote from Dave Zweifel on the front page.

None of this has anything to do with this blog and the only judicial candidate that I have endorsed is Lisa Neubauer.

Anonymous said...

Let's be honest, Rick. One of the reasons you are staying out is because you know that the challenger is an idiot who is unqualified to serve, as compared with the sitting Justice he seeks to replace.

The idiot categorization might seem a bit harsh, but look at the challenger's pedigree. He's been an educational bottom-feeder at every stage. Yes, it is true that the William Mitchell School of Law in the Twin Cities produced a Chief Justice of the United States Supreme Court, but I don't think that anyone believes that the blind squirrel has found another acorn in the case of the would-be Justice. (And William Mitchell is one rung up the food chain from the 4th-tier law school which accepted him.)

Too bad that WMC couldn't persuade someone like Judge Brennan to run so that we could have had a vigorous debate between two intelligent candidates.

Republicrat said...

Foust -- I'm not sure what point you're trying to make. Unless campaign finance laws are at issue (I admit to being particularly uninformed when it comes to the intricacies of incumbent-protection laws), I don't think you're doing anything other than running interference on the issues.

Calling Esenberg a paid stooge is as pointless as claiming Gableman will lock up criminals. Surely, you're not claiming Esenberg was paid TO write from a certain viewpoint -- his previously widely known conservative views are surely the reason he's been paid.

John Foust said...

Frankly, campaign finance laws never entered my mind. It's rather simple. I think Esenberg's repeated claim is false. He says he can't endorse a candidate as a condition of his paid service. I say he is endorsing Gableman. The lede of his latest white paper tells the faithful how to vote: which candidate is ours, which is not. I think the Federalists (national or local) knew which candidate they wanted to elect or which they wanted to torpedo before they paid Esenberg to write his white papers. Of course they knew where he stood - that's why they bought him. Nothing wrong with that.

My irresponsible and cheap allegation that's apparently touched a nerve? Not that he's a paid stooge, but that they're actually paying for his intellectual silence in other areas. They knew he'd rail against judicial activism. Esenberg might normally admit that Butler is a good justice, or that Gableman is distinctly less qualified than Butler, but now he's voluntarily limiting his intellect and words in order to please his patrons. Similarly, I think Esenberg's grad student at GOP3 knew where his bread was buttered, too, when he magically independently produced pro-Gableman pieces.

Finally, I think it's misleading to the public if the Journal doesn't reveal that Esenberg's been paid to position an op-ed, or that they didn't reveal the authors of another pro-Gableman piece as the officers of the Milwaukee Federalists. Not necessarily Esenberg's fault, as we may never know if he or they had an opportunity to disclose their motivation or if the Journal even cares. When I went to fact-check for a shred of evidence, I'm accused of shadowy skullduggery.

Anonymous said...

Foust's dogged journalism has revealed that members of the Federalist Society tend to have conservative/libertarian views and oppose judicial activism. How extraordinary.

John Foust said...

Boy, with all the anonymous helpers, you'd think we were reading The New York Packet. Join together and use the magic of your anonymous Federalist power sword! Step right up and defend Gableman's skillz against Butler's!

Republicrat said...

Mr. Foust --

Why the continued obfuscation from the substantive issues involved in the race (which you refer to, but continue to ignore in favor of non-issues like payments from the Federalist Society and anonymous comments)?

Who cares that anonymous commenters -- myself included, I suppose -- are making arguments contrary to your own? Fine -- I'll praise you for your courage in commenting in your own name. I'll admit that I don't have that courage.

Sure, ignore some of the crazier anonymous commenters on this blog (you, Esenberg, and Illusory Tenant have wisely done so for a while now). But why avoid responding by accusing others of lacking the courage that you have? Are their points less valid?

As to your inquiry: who cares? Is Esenberg required to objectively describe all of Gableman's and Butler's strengths and shortcomings? Is the Federalist Society really paying for his silence on Gableman's Hamline education? Have your comments been interspersed with admissions that Butler has his own shortcomings (see, for example, what he referred to as an "easy" decision in the casino case)? I, for one, don't expect you to do so.

As to the JS column -- again, what does it matter? Does his probably nominal financial support make his points any less valid? Do you really think the public will receive his opinion more coolly because of the financial support?

Let's get back to the real debate, which is the candidates' relative qualifications, not false controversies.

Anonymous said...

it -

please enlighten me to all the wonderful things that Butler has done in his years to make our courts fair and impartial...

oh,I see, there really isn't any, your comment was just an ad hominem.

Rick Esenberg said...

I think it's misleading to the public if the Journal doesn't reveal that Esenberg's been paid to position an op-ed

I have not been paid "to position an op-ed." The paper pays me for the op-eds that I write just as they pay other columnists. None of those op-eds have had anything to do with this.

As far as not endorsing, that's my choice and I made that choice because of other work that I do related to the court. I don't think I would be legally barred from doing so on this blog (I have gotten no support from anyone for anything here)but I decided not to, said I wouldn't and I won't.

Anonymous said...

Stop arguing whether Rick has endorsed Gableman.

He supports Gableman for election. He wants Butler defeated.

It's that simple.

Anonymous said...

Gotta love the bought and paid for Democrat hacks on this thread, like Foust. Hey loser, why not admit how much money you're getting from your Democrat friends?

Anonymous said...

It seems doubtful that anyone, Democrat or otherwise, would pay for what Mr. Foust produces.

John Foust said...

Sorry, Crat, but you're barking up the wrong tree. I can think of lots of justifiable reasons why people might want to post anonymously. Debating whether these particular anonymi meet these criteria is a question for another time. They seem to know me, so I guess they want to stay secret so I won't know them. OK. Respond to what, exactly? I was taunting them to come up with something substantive, not just weak insults. If you can find any substantive questions in the anonymous posts prior, please illuminate. (In 2:25, 4:24, 6:25, I see no questions for me, in 6:04, nothing for me, in 10:29, more ad hominem).

I am sure every judge and justice has their own shortcomings, Butler included. He has more time on the high-profile bench, so there's probably more fat to chew than you'd have in the cases from a northwoods judge.

As for the subsequent anonymi, I'm not registered with any party. As I've said here before, my opinions are my own and no one paid me to write them or leave anything out. Everyone has a price. Does anyone want to pay me to stop voicing my support for Butler? It would make me ever so academic-ish.

Professor, you said "I have received certain support to comment on the issues (not the race) in the form of support from a pr firm that placed an op-ed and arranged a few interviews." If I was wrong to assume that "certain support" was another admission you were paid to write, please accept my apology. Are you talking about the Federalists or the WMC? If you want to go so far as to say whether they paid for dinner when you were on tour, go right ahead. It's getting hard to tease out the facts.

Anonymous said...


You stole my words...YOU are barking up the wrong tree.
You seem to be trying to engage Prof Esenberg in a game of "gotcha" (or fetch). You are more interested in trying to guess the intentions of why Esenberg does what he does than focusing on the important issues of the upcoming judicial races. To his credit, he doesn't seem to be falling for your attempts to take him down buddy. Why are you so obsessed with him?

And who anointed you the official fact checker of the Prof anyways?

Anonymous said...


A Democrat poster whining about anonymous posts!

Welcome to our world, champ.

BTW - how's your anonymous friend IT doing?

Real couragous of him to sit behind is weird handle, huh?

Anonymous said...


Dad29 said...

So, John, which Prestigious Law School accepted A. Lincoln?

Much as I like the company of Mr. Esenberg, and understand that his mental acuity was the reason for his acceptance to Yale Law, I do not find Law School Name Credentialization to be the be-all/end-all in determining what lawyer is best for XYZ assignment.

Should we discuss the number of MENSA members who are entirely devoid of social and/or business accomplishment? How about the number of lawyers (and MD's) who are addicted to alcohol?

Your constant attacks on Gableman's credentials betray a certain elitism which is not fitting for a citizen of a democracy, John.

Or are Libertarians just Meritocratists?

Tell me about the Collegiate Credentials of Bill Gates, John, or how SO MANY data processing professionals told us that "MS Basic is crap and will be dead and buried by 1980."

Remember, John?

Rick Esenberg said...


I was accepted at Yale, but I went to Harvard. Please.

Let me just disclose the hell out of this. For the record, I did not go "on tour" with the WMC. I sat down for a videotaped interview that I understand they used on this "tour." I did it in Madison when I was there to speak to another group. I got paid nothing - by WMC or the other group. I didn't even get my parking paid for although I believe that there was orange juice and pastries. I think I limited myself to the OJ. (Jim Pugh did give me directions to the Madison Club, so there's that.)

I have never received a dime from WMC (or anything else) from WMC with respect to any of this. I did represent them once years ago in filing an amicus on, I think, whether the state could require freight trains to have a manned caboose. No joke. I think our side may have lost, but I'd have to check on that.

A pr firm doesn't pay you. It sets up interviews and, well, publicizes. I refer to it as "support" because it is. I did get some media training from them in DC and I believe that they sent out for lunch. I had the turkey and, although I must apologize to my wife who does not tolerate such things, chips.

Was I "paid" to be silent? Well, I can imagine that how both sides would want to pay good money to make sure that I didn't exercise my enormous influence to sway the election. ( I think I could deliver my son and, on a good day, my Mom. The Reddess is a stubborn one - there's really nothing I can do there.) But, alas, no one has.

Actually, I agreed to be part of the Fed Soc's educational project in January of 2006. I was told that, if I wanted to participate, I shouldn't be part of anyone's campaign although I was free to vote and contribute. I have interpreted this to mean that I shouldn't endorse although, strictly speaking, I guess no one has ever really told me that.

I agreed to do this white paper in September 2007. I suggested the topic. I had not heard of Michael Gableman at the time. In fact, I am not sure that I had ever heard of Burnett County, although I had heard of Hamline.

I have never earned a dime from this blog. I put up that google ad thing but ... nothing. Maybe I should try one of those tip jar icons? Or should talk to Wigderson.

illusory tenant said...

I've never been better, thanks for asking, Brian. If I were any better, I'd cancel my health insurance. If I were any better, there'd have to be two of me. If I were any better ...

By the way, Brian, I've read a number of your comments and in my opinion, you'd have been far better off staying anonymous.

Dad29 said...

I was accepted at Yale, but I went to Harvard.

...well, SOMEPLACE out East, anyway.

John Foust said...

Dad29, you're barking up the wrong tree. I'm no credentialist. I look for people who can do a job well. Do you? I didn't bring up Hamline (at least this time). As I've asked you before, how would you compare two candidates? There's a big difference in the experience and abilities of these two candidates. I don't think this is a case of the evil of two lessers. I think Butler is far more capable of doing this job. He is already doing the job. Gableman does not strike me as a legal eagle. In the recent debate, I think he came off as robotic and evasive, and didn't seem to have a deep understand of anything legal except his talking points. ("Don't forget, Mike, never call him Justice, always call him a criminal defense attorney.") I think the RPW/WMC/etc. recruited him in their time of need. You're naive if you don't think this isn't part of an extensive national campaign to fill state courts with judges who make their patrons' wishes come true.

As for your computer analogies, you won't need to look far to find criticism of Gates' talents and the decades others have spent working around the wonders of Windows. "Those who do not understand Unix are condemned to reinvent it, poorly." Nonetheless, he did have excellent SATs and did attend Harvard. But what did he know? He wanted to be pre-law.

Thank you for the menu run-down, Professor. Ah, my old buddy Pugh. I knew him when, but I'll never tell, Jim. As for blog revenue, us unmarried know the real benefits are the groupies. T-shirt sales are for chumps. If you want one, though, I'll put the Boots & Kittens logo on Cafe Press. I'm a Ferengi-class capitalist at heart.

It's your choice as to whether you can endorse. Berres did forward a reply from the national HQ: "The Federalist Society State Courts Project makes local legal experts available to speak to the media about current legal issues such as the Wisconsin Supreme Court election. The Federalist Society State Courts Project released both a poll and a white paper in Wisconsin this year. This is just one aspect of a greater educational campaign to help raise awareness of issues surrounding state supreme courts, esp. issues of judicial philosophy and whether state supreme courts are respecting their limited constitutional role by practicing judicial restraint. The State Courts Project does not support any candidates for judicial office. The local legal experts are speaking for themselves and not on behalf of the Federalist Society. They are free to support any candidate they choose to, but cannot be paid members of judicial campaigns."

GOP3 Brian, read more closely. It's a skill you'll need later in life. As I said, I defend the right of people to post anonymously, if a blog allows it. I've even been kicked off blogs for defending that right, and pointing out its e-limits, and was unjustly insulted for it. Are you just cheering the anonymous ad hominem pot-shots here?

Anonymous said...

Such courage, IT.

I wonder if you even have to hide from your colleague ambulance chasers your blogging hobby at work. Why are you so scared of people knowing who you are?

Anonymous said...

I have a feeling by your affiliations that we agree philosophically on many issues. However, your posts make you, and by extension those who agree with you, appear to be on empty intelectually. Maybe you should stay out of the serious legal stuff and stick to your angry, ill-considered posts about whatever ruffles your feathers that particular day. I guess this is an anony comment, so I must be "scared," and I must admit sometimes the things you write do scare me for all conservative-minded individuals. I have a feeling I am not the only one with this opinion around these parts.

Dad29 said...

John, it is VERY clear to me that Butler's mindset and mine are radically different.

So I will NOT vote for Loophole Louie.

Hope that clarifies it for you.

Anonymous said...

Oh please, "anon." Can we at least not pretend to post on behalf of idealogies we disagree with?

IT, how about instead of posting as literally "anonymous" actually coming out in the open? What on Earth are you so afraid of?

Why is it that liberal hacks believe they can attack the integrity of someone like Esenberg, and then when challenged on it, whine about being attacked?

Get real.

Publius said...

I did not go to College
But, my locks are all from Yale
I studied Mister Colledge
Before he learned to sail
My SAT’s were Zero, which was tough to see
They said number 2 pencil, I used a number three

I ain’t the sharpest Knife in the Drawer
As you can plainly spot
This is getting a kinda sophomore
This plurium interrogationum is shot.