Monday, July 21, 2008

No, I "get" judicial integrity

Paul Soglin says that "I don't get" his complaints about the Wisconsin Supreme Court's decision in Wisconsin Department of Revenue v. Menasha. It's not the Court's decision, he says, it is that WMC who filed an amicus brief in the case spent all that money in support of her election.

I do understand. Part of my objection was that a good deal of the commentary (Paul less so than others)claimed that Justice Ziegler's vote must have been payback to WMC. As I pointed out, the question before the Court is one on which many have disagreed. Someone can support Menasha's position without having been paid to do so.

But, Paul now says, it's not the decision, it's the way that the campaign was influenced - all that money creates the appearance of impropriety.

I understand that too, although I also think that the concept of an appearance of impropriety serves as a cover for a great deal of mischief.

But here's the thing. It's not so easy to address this problem without scrapping judicial elections. The idea that Justice Ziegler ought to have recused herself is unrealistic. Let's assume that Justice Butler had won reelection. Would Paul Soglin, Jim Rowen and One Wisconsin Now demand that he recuse himself in matters of interest to the plaintiff's bar, WEAC and other public employee unions. They all spent massively on his behalf although it is hard to know precisely who spent what since it is all bundled under the auspices of the black hole known as the Greater Wisconsin Committee.

I wouldn't. In fact, I would argue that the strong presumption ought to be that he sit since he was elected by the voters to be part of a multi-member court deciding cases by a vote of the members. When a justice stands down, the popular will with respect to who is supposed to be participating in these cases has been frustrated. Sometimes it can't be avoided, but recusal should be rare.

Public financing won't solve the problem either. As I suggested here, there is no way - and probably should be no way - to stop interested parties from being heard on issues affecting an election. Nor may it be possible to increase public financing on behalf of candidates who face oppositional independent spending.

We could, of course, appoint judges but that does not eliminate the politics, although it may make it a bit more opaque.

I am, as I have said, something of an agnostic on judicial elections. If we are to elect judges, it has to be predicated on an assumption that we trust voters to make the right decisions. And we trust those that they elect to approach cases, not without existing views on the role of courts and judicial hermeneutics, but with an open mind and intellectual integrity.

I have no reason to question that any member of the Wisconsin Supreme Court does otherwise.


illusory tenant said...

I was in the midst of writing about this, but sort of lost interest. I was also going to write in agreement with much of your earlier post on Menasha, but lost interest in that too.

In any event, I agree that "appearance of impropriety" is not enough to draw the conclusions that some of the "liberals" are reaching.

If one of the keys to the majority's decision in Menasha is its deference to the legislature's directive with respect to the weight of administrative interpretations of the statute(s), then Justice Ziegler was evidently predisposed to that attitude regardless of how much money WMC spent in support of her candidacy.

In other words, that's why WMC supported her candidacy in the first place; she didn't arrive there because WMC spent the bucks.

And when you advertise yourself during an election as a judicial conservative, then obviously you're going to attract the support of those who favor judicial conservatives, whatever that means.

(Or whether the candidate himself even understands what it means. Ahem.)

Maybe it doesn't "look good" that Justice Ziegler wrote the majority opinion and WMC filed an amicus brief.

But without anything further than that, I don't think it's fair to accuse her of political or corporate bias especially, as Soglin admits, when that conclusion doesn't even take into consideration any analysis of the majority's reasoning in Menasha.

Scot1and said...

Again, I go back to my comments regarding the Court's activism with the economic loss doctrine. In Stuart, Roggansack noted in dissent that she believed that an architect drawing plans provided a product rather than a service, she considered architecture plans to be a product (ELD only applies to goods and not services).

But here, she was willing to join the majority to hold that customized computer programs are not products. At least to me, it seems as though there is a double standard regarding what is a good and what is a service. But I am curious, does this holding mean that Roggansack et. al. would not apply the ELD to bar false representations against Mensha?

Anonymous said...

Rick. You ought to know by now, that the left cannot abide losing.
They cannot abide those with a different opinion than theirs. They are manic.

I'm sure you know that.

Dad29 said...

One could always speculate on 'the appearance of impropriety' in viewing HRC's alleged naked-shorts in pharmaceutical companies prior to the release of her national health insurance plan during BillyBoy's Presidency.

Rick Esenberg said...

Super id

I can't help but point out that you are confusing two different questions. (Occupational hazard, I guess). The issue in Menasha was not whether a customized computer program is a product. Whether they are or they aren't, the legislature has decided that they are not to be taxed. The question before the court was whether the program that Menasha bought was a customized computer program. The majority wanted to defer to the Tax Appeals Commission's determination that it was.

While it is certainly true that the reasons that Roggensack may have relied on in concluding that architectural services were a product might have lead her to conclude that customized software is as well, that wasn't the question before her. While you could interpret the term customized computer program in terms of whether it is a service as opposed to a product, the majority, relying on regs and the idea that it ought to defer to the Commission, did not do that.

Having said all that, I agree that the ELD is a mess, although not because of "activism."