Wednesday, June 10, 2009

Recusal for the goose and gander

My comments on the Supreme Court's decision in Caperton v. A.T. Massey Coal Company are up at the Marquette University Law School Faculty Blog.

Here I'd like to comment on the triumphalist posts of Bill Christofferson and Paul Soglin, claiming that Justices Annette Ziegler and Justice Michael Gableman must recuse themselves from ... well, its not clear. Soglin doesn't say and Christofferson claims that it should be all cases "involving" Wisconsin Manufacturers Commerce. Of course, WMC is rarely a party before the Court so what he really means is cases in which - who knows - WMC has filed an amicus brief or has members who might benefit or in which "business interests" are at stake.

Of course, Bill and Paul are is not lawyers (ed: Soglin is too a lawyer) and what I have learned over my years in the blogosphere is that they don't care about what they don't know. Bill, in particular, when commenting on legal matters is almost universally wrong. I don't blame them for this. Politics - and that is their game - ain't bean bag.

But let me grant them a point. They could turn out to be right although I think it unlikely. The reason they could be right is that the majority opinion in Caperton is not a model of clarity and provides uncertain guidance for the next case. Justice Kennedy speaks of a need to recuse when, viewed objectively, there is a potential for bias. That's a rather broad and vague standard that could be applied in lots of cases.

But then he writes of a particular person with a personal stake in a particular case that is pending or imminent at the time and who has had a disproportionate influence on the process. Is that it?

WMC rarely has a personal stake in a case and, putting that aside, there were very few cases pending or imminent at the time of the election in which it could be said to have a more general interest.

If the latter is the measure of the due process right to recusal, then my happy liberal friends are wrong and will be sorely disappointed. My own view is that this is the most likely - and correct - outcome. In other cases, the Court has emphasized the speech rights of judicial candidates and the rights of organizations to comment on matters of public interest and, subject to reasonable regulations, candidates. It would, I think, be inconsistent with that jurisprudence to make recusal the price of speech.

I intend to explore that idea in a law review article, but, of course, it might not turn out that way.
If it does not, I fully expect to see Bill Christofferson and Paul Soglin call for the recusal of Chief Justice Abrahamson and others who have been supported by the Greater Wisconsin Committee in cases of interest to the trial lawyers, unions and casinos.

No, I don't.


Terrence Berres said...

Paul Soglin isn't a lawyer? We were told he was the guy wearing a T-shirt in the graduates' photos that used to be displayed at UW Law School. As I recall the new student tour, that stop was "See this guy? He's the mayor now."

Brett said...

This ruling makes it that much more important in Wisconsin to show transparency in PAC contributions. Transparency will show whether a party with a case in controversy pending has, in fact, funneled substantial contributions to aid a particular campaign.

Anonymous said...

"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to be able to obtain justice freely, and without being obliged to purchase it . . . ." So says the Wisconsin Constitution (Article I, sec. 9). The principle traces its roots to Magna Carta. Justice shouldn't be for sale. This isn't rocket science, it's elementary.

Dad29 said... Justices elected with Government money will be completely dispassionate when judging Government-involved cases?

Or elected with WEAC money when judging education-related cases?

Or elected with LBGT money when deciding, say, Constitutional marriage issues?

Anonymous said...

The Governor of South Carolina lost his case in there Supreme Court that now forces them to take stimulus money he refused.

In an interview, he mentioned something about the justices are appointed rather than elected. Dad29, is this what your saying could happen?

Anonymous said...

Oh noes. Now our money's turning gay?

xoff said...

Unlike WMC, the Greater Wisconsin Committee has never been a party to a Supreme Court case nor filed an amicus brief. It is a public interest advocacy group. You don't need to be a lawyer to see the difference between those two organizations.

Annette Ziegler, elected with more than $2-million in WMC spending, wrote the decision in the Menasha Corp. case, in which WMC filed a brief. Her decision was worth something in the neighborhood of $300-million to the people who spent the $2-million to elect her. See any problem with that?

Rick Esenberg said...


Bill, with all due respect because we know people in common who speak well of you and because I know, from Eric's show, that we share a common love of dogs, that is unadulterated bulls***.

Filing an amicus brief doesn't mean you have a pecuniary interest in the case. It means that you favor one outcome or the other. That might be for financial reasons. It might be for ideological reasons.

Whether GWC files amici is not the point. It truly is a shadowy conduit. We know WMC's money comes from business people. I have asked you and Soglin this before so I know you won't answer, but where does GWC's money comes from? Are you prepared to say that it does not come from unions, trial lawyers and casinos? Is GWC prepared to come clean as you want WMC to do?

The answer, of course, is that GWC's moneyt comes from people who do file amici - unions, casinos, trial lawyers. Do you want Chief Justice Abrahamson to recuse herself in, for example, a case that addressed the constitutionality of the school funding formula? The case could be worth hundreds of millions to the teachers union.

Anonymous said...

"Whether GWC files amici is not the point. It truly is a shadowy conduit. We know WMC's money comes from business people."

Well, Professor, you ought to recognize "unadulterated bulls***" when you type it just as well as when you read it.

Yes, WMC gets some corporate money from the Wisconsin CEOs and underlings who it shakes down for its issue ad money bag, but it also shakes down some of the less savory entities which also give to the Club for Growth and other seedy right-wing apologists. You think somehow that the WMC money-givers are somewhat more "pure" than the GWC money-givers? If that's the depth of your analysis, let me tell you about the wonderful ocean-front lot in Key Biscayne I have for you!

Case in point would be the cretins in Michigan who own Amway. The have been forced to pay big bucks in Ohio for illegal campaign activity of the type they engaged in here when Justice Wilcox was reelected. That case is still pending before the new Government Accountability Board, FYI. These are the low-life slugs who write corporate checks to WMC for its misleading ads (which mislead no less than the GWC ads).

All of these groups are equally slimy -- just because one sides up with the wingnuts doesn't make it "better" than the one which sides up with the tinfoil crowd.

Anonymous said...

Let me correct an error I made in the last post. The crooks from Amway are not under continuing scrutiny for their activity in the Wilcox Supreme Court race but for their activity in the 20th Senate District in 2006 when John Lehman was elected to the State Senate. The Amway creeps uses corporate money to engage in direct advocacy in that race, in clear violation of Wisconsin law. These creeps paid a multi-million dollar fine in Ohio for the same kind of illegal conduct. These are the folks that WMC also shakes down for its slimy issue ad campaign money pot, Herr Professor, and they are at least as creepy as the folks the GWC shakes down. Unregulated issue ads are political vomitus.

Rick Esenberg said...


Please read carefully. I don't claim that WMC is "better" than GWC or that its contributors are more "pure." To the contrary, I was suggesting that the groups are equivalent. It was Bill who claims that GWC is "purer" because it is a "public interest advocate." Both groups, it seems to me, have contributors who are motivated by their self interest and contributors who are motivated by their perception of what is in the public interest.

The only difference that I noted is that because WMC self indentifies as a business group and does things other than contribute to campaigns, it is easier to infer where it money comes from.

As far as WMC "shaking down" business people, I can only say that I have served - still serve - as general counsel and an officer of a WMC member and it does not "shake down" - it has no particular leverage over the members whose dues it relies upon - it asks.

Personally, I think that both WMC and GWC have a right to be heard. I also tend to think that their respective donors should be alloweed their anonymity. But I am not the one calling for recusal and regulation.

Anonymous said...

You can call it what you will, but I am equally familiar with how WMC operates in this area. It isn't a "shakedown" in the Mafia sense, but promises are made that the money will be used to destroy particular candidates -- no holds barred.

Given the demonstrably despicable tactics of the family which owns Amway (DeVos?), do you think that those slimeballs would give corporate money to WMC without the understanding that it will be used for thermonuclear attack ads?

There is a range of ethics and responsibility across the corporate world. On one end you have the folks at NML, and on the other end you have the DeVos family. I doubt that WMC gathers much for this purpose when it calls on the folks at 720 East Wisconsin but I know that it cashes up big time when it makes the same call in Grand Rapids.

Again, as noted before, issue ads where the source of the money is secret is political vomitus regardless of which side of the mouth which spews the vomit.