Sunday, January 31, 2010

Shark on Dead Tree

I have a column on Citizens United in this morning's Milwaukee Journal Sentinel.

Taking the other side, Noah Domnitz wants to argue the the decision was "judicial activism" because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say "restricted" because, after Citizens United, corporations still can't use treasury funds for contributions or coordinated expenditures.)

I disagree. Mr. Domnitz does not define "judicial activism" but seems to equate it with departure from precedent and overturning laws.

This oversimplifies the concept. Judicial restraint suggests that precedent and long standing arrangements ought to be respected, but not that they can never be revisited. It counsels respect for legislative enactments but to allow clearly unconstitutional laws to stand is its own form of activism - a failure to apply what - in our system - is the supreme law of the land.

The majority in Citizens United was well aware of the issues raised by its decision to overrule certain prior decisions and invalidate what was left of the "blackout" provisions of McCain-Feingold. The key case that Citizens United overturned - Austin v. Michigan Chamber of Commerce - is a 1990 decision that has figured in only a few subsequent decisions of the Court. Both Justice Kennedy's majority opinion and Chief Justice Roberts' concurrence go to some lengths to explain that Austin is inconsistent with other decisions of the Court and has not proved to be workable in the intervening years. (As I point out in my column, the ideas that restricting expenditures on speech restricts speech and that corporations have speech rights are hardly new.) Because Austin has figured in relatively few other cases, the majority reasoned, there is no substantial reliance interest cautioning against a change in the law.

Citizens United also invalidated parts of the McCain-Feingold (passed in 2002) and part of the Court's decision in McConnell v. FEC, decided in 2003 and already substantially undercut by Wisconsin Right to Life v. FEC (2007). Both flow from its decision to abandon Austin.

None of the justices have ever said that judicial restraint requires inflexible adherence to precedent. There are reasons to abandon prior cases that were in error and have proved unworkable and inconsistent with other doctrine. The majority carefully considered those reasons and decided that overruling Austin was justified.

To think otherwise, would be to say that, for example, Brown v. Board of Education was an "activist" decision. There are some who think this, but I don't. In my view, Plessy was the decision in which principles of judicial restraint were abandoned. The Court ignored the clear implications of the Fourteenth Amendment in order to avoid disrupting the racial regime in the South. The problem is that, in enacting the Fourteenth Amendment, the people of the United States made it quite clear that regime was to be disrupted - in fact, to be destroyed. The majority ignored that law in order to impose what they (incorrectly) thought was a rule ("separate but equal") that would better serve social peace.

Cross posted at the Marquette University Law School Faculty Blog

Friday, January 29, 2010

Rail as Religion

I have to confess that I kind of like trains. I think its crazy to drive to downtown Chicago unless your schedule leaves you no other choice. But I was struck by this statement in a Journal Sentinel article about the silly extension of high speed rail from Milwaukee to the Dane County Regional Airport. Rick Harnish, executive director of something called the Midwest High Speed Rail Association, says the following: "Currently, people are forced to drive, and that's the most expensive and least productive way to travel ...."

As a categorical statement, that's just false and it reflects a frustrating tendency on the part of rail advocates who seem to want rail for rail's sake. Rail is a system for transporting people between two fixed points. It works well when a sufficient number of people want to move between those two fixed point with one of them being, more of less, the starting point and the other the end point. This is the case with transit between downtown Milwaukee and downtown Chicago.

It is most decidedly not the case with transit between downtown Milwaukee and the Dane County Regional Airport. The need to make a second trip - between the airport and where ever in Madison travelers really want to go - will make travel by train more expensive and less productive than travel by car.

A high speed train between downtown Milwaukee and the Capitol or University might make sense. This train - as a way to get to Madison - does not.

Yet rail advocates will support it just because it's rail.

Shark in Newark

Earlier this week, I had the pleasure of workshopping a paper at the Seton Hall University Law School. The paper, tentatively titled "“Lost Languages: The Same Sex Marriage Debate and the Limitations of Liberalism,” uses the same sex marriage debate to consider the way in which what I believe is the frequent failure of proponents of same sex marriage to understand what opponents are saying stems from the contemporary assumptions of political and legal discourse. I contrast those assumptions with those of Catholic Social Thought and argue for more openness to arguments that recognize the impact of our particular understandings of tolerance and equality on cultural capital. The paper is not,strictly speaking about same sex marriage, and I point out that the kind of "thick" cultural arguments that I want to make more room for can be deployed in favor of same sex marriage as well as against it. In fact, I suggested that one of my students take that approach in her Law & Theology term paper since she wanted to reconcile support for traditional marriage and concern over its decline with her support for same sex marriage. She got an A.

I had dinner at a nice tapas restaurant in the "Ironbound" or "Down Neck" neighborhood of Newark. It was nice to see that not all of Newark is devastated. I still wonder why it doesn't become more gentrified. I understand that Jersey City is closer to Manhattan but it's gotten pretty expensive too.

Wednesday, January 27, 2010

Shark at Turner Hall


America and Wisconsin have been rocked by economic trouble, dismayed by partisan stalemate,
worried about expensive and expanding war. Where are we headed?
A Wisconsin report card and crystal ball on Obama’s presidency.

Each forum is taped in front of a studio audience for later broadcast on Milwaukee Public Television, Channel 10.1. The forums are free and open to the public. Bring your own lunch - come and be a part of the discussion. Participate by asking questions of the panelists.

WHERE: Milwaukee Turner Hall, 2nd Floor, 1034 N. 4th Street (Main entrance across from the Bradley Center on 4th; elevator access off the parking lot on 4th and Highland.)

WITH HOST - ENRIQUE FIGUEROA, PhD, Director, Roberto Hernández Center, UW-Milwaukee,

RICK ESENBERG, JD teaches election law and civil procedure at Marquette University Law School. His research interests include law and religion; the regulation and nature of public discourse; and Wisconsin Constitution and state courts. Professor Esenberg publishes a blog called “Shark and Shepherd.”

ANNE GURNACK, PhD is a political science professor at UW-Parkside. Dr. Gurnack’s teaching and research include public policy and politics; health and welfare policy; and public administration.

RICARDO PIMENTEL is the editorial page editor and vice president for the Milwaukee Journal-Sentinel. Mr. Pimentel is a former Washington D.C. correspondent for McClatchy Newspapers, where he covered Congress, federal agencies, and the U.S. Supreme Court.

GARY SHELLMAN, PhD is president of the Greater Milwaukee United Nations Association. He is also the Wisconsin representative of the American Council on Germany. Dr. Shellman serves on the Governor's Commission on the United Nations, and he is the former deputy director of UWM Institute of World Affairs.


Milwaukee Public Television will broadcast this forum on Channel 10.1, Friday, January 29, 10PM and Sunday, January 31, 9AM.

Full-length viewing of each program will be available at and will post on Monday, February 1. Refer to program number 813.
Programs also run on Time Warner's, "Wisconsin on Demand," (WIOD). Check listing.
Also check out 88Nine Radio Milwaukee's 4th Street Forum Short Takes -

Sunday, January 24, 2010

Songs of Betrayal

For obvious reasons.

He may have been someone once by the sound of his call
Now he answers to no one
No one at all (H/T: Reddess)

We evidently done wrong.

But we're really happy for you.

Because we don't care. (Warning: Explicit lyrics.)

Because once we're even its over.

One way or another

But good luck.

Thursday, January 21, 2010

Has The Supreme Court Declared Victory for the Moles?

In a recent piece in the Harvard Journal of Law & Public Policy, I say - as has at least one other commentator - that campaign finance reform is like a never ending game of Whack-A-Mole. Hit one and another one pops up. Stop money here and it flows over there.

On the day that the United States Supreme Court decided District of Columbia v. Heller, I wrote on my personal blog that Heller was not the most important decision of the day. I thought that honor belonged to FEC v. Davis, a decision that struck down the "millionaire's amendment" in the "McCain-Feingold" Bipartisan Campaign Finance Reform Act, a provision that raised contribution limits for candidates facing wealthy self-financed opponents. Davis made it clear that a majority of the Court rejected "equalization" as a rationale for the regulation of election related speech. It was my view that this would lead to the invalidation of the provision of "rescue funds" (addtional money provided in response to higher levels of spending by privately financed candidates or independent groups) in public financing schemes, a position which I developed more fully in the Harvard JLPP piece.

That shoe has not yet dropped, but a size 14 flowing from the same doctrinal position did drop this morning in Citizens United v. FEC.

For decades, Congress has prohibited the use of corporate and union treasury funds for campaign contributions. That prohibition was extended to campaign expenditures although the Court's decision in Buckley v. Valeo and subsequent cases made clear that this prohibition could only be applied to expenditures on communications that expressly called for the election or defeat of a named candidate. They could not be applied to issue advocacy, even if that advocacy was critical of a named candidate during an election campaign.

Congress tried to eliminate that type of unregulated issue advocacy in the McCain-Feingold Act by prohibited expenditures of corporate and union funds to finance certain communications that mentioned a candidate for federal office within a specified number of days of an election involving that candidate. After the Rehnquist Court rejected a facial challenge to that prohibition in McConnell v. FEC, the Roberts Court upheld an as-applied challenge in Wisconsin Right to Life v. FEC. In the latter case, a five justice majority essentially held that the ban could be applied only to communications that were not capable of being construed as issue advocacy. This was widely seen as a return to the pre-McCain-Feingold regime in which corporations and union funds could be used for ads that avoided the "magic words" of express advocacy. Seven justices (and almost every commentator) thought WRTL overruled McConnell. As I recall saying at our commemoration of Constitution Day in 2007, if Justices Stevens, Kennedy, Scalia, Souter, Thomas, Breyer and Ginsburg all agree on a proposition, it is a metaphysical certainty that the proposition is correct.

But the Court's then existing precedent, in particular, a case called Austin v. Michigan Chamber of Commerce had upheld the prohibition of the use of corporate and treasury funds to finance express advocacy.

Citizens United is a non-profit corporation that has produced and wished to disseminate a film called Hillary: The Movie. It did not expressly advocate the defeat of Hillary Clinton in her bid for the Presidency, but the district court found that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would be a dangerous place if she were elected, and that viewers of the movie should vote against her. Citizens United wished to run broadcast ads promoting the movie and to make it available through video on demand, thus bringing it within the purview of McCain-Feingold.

Today, the Supreme Court overruled Austin. As in Davis, it flatly rejected the argument that the abridgement of corporate speech could be justified by a desire to equalize resources devoted to campaign advocacy. It adhered to the Court's longstanding distinction between contributions and contributions, but, in this case, abandoned the distinction between express and issue advocacy, finding that Hillary:The Movie was the functional equivalent of express advocacy. Nevertheless, the ban was unconstitutional.

I have not yet had a chance to fully study the opinion but a few things suggest themselves.

First, my argument against the constitutionality of rescue funds is bolstered and is likely to extend even to systems, like Wisconsin's recently enacted Impartial Justice Act, that limit rescue funds to "matching" or "counteracting" express advocacy.

Second, independent expenditures will become even more influential, further removing control of political discourse from candidates. This suggests that the project of campaign finance reform may be about to implode. Although constitutional doctrine permits it, it may make no sense to sharply curtail contributions while expenditures are virtually unregulated.

Third, the battle, it seems to me, shifts to disclosure. McCain-Feingold requires groups like Citizens United financing communications like Hillary:The Move to identify themselves and to disclose certain of their donors. The Court upheld that part of the law even insofar as it applies to issue advocacy. It held open, however, the possibility for as-applied challenges if a group could show a reasonable probability that disclosure would subject its donors to threats, harassment or reprisals from government officials or private parties. Citizens United made no such showing.

I'm sure I'll have more later.

Cross posted at the Marquette University Law School Faculty Blog.

Tuesday, January 19, 2010

It Should Be An Interesting Evening

I actually voted in the last election in which a Republican Senator from Massachusetts was on the ballot. I was a first year law student living in the Allston neighborhood of Boston (just accross the Charles from Cambridge). Ed Brooke lost that fall to Paul Tsongas. It's been Democrats ever since.

Tip O'Neill was my Congressman back then and he used to say that all politics are local. But the race between Scott Brown and Martha Coakley is not. It's all about ObamaCare. If it wasn't before the President flew into Boston, it is now.

There is no way for the White House to win this. Even if Coakley squeaks out a victory, a general election for the Senate in Massachusetts is not supposed to be close. Massachusetts will elect a Republican governor, but its national politics are deep blue (although Reagan carried the state twice). If Brown wins, the Blue Dogs will be in revolt. Heck, they may be anyway. The President has to hope the polls are wrong. That seems unlikely.

Monday, January 18, 2010

Politics Causes Brain Damage

I almost dropped my Sunday New York Times yesterday when I read former Democratic Senator and presidential candidate Bob Kerrey's statement that Massachusetts is about to elect a Senator who "doesn't believe in evolution." Of course, what Scott Brown doesn't believe in is ObamaCare. Apparently Bob Kerrey can't tell the difference.

Or, more accurately, he doesn't think there is one. The self evident correctness of his preferred position is so obvious that all opposition can only be based on ignorance or self interest.

The comment itself doesn't surprise me. That it comes from Bob Kerrey, who is smarter than that, does.

Sunday, January 17, 2010

What Is the Theme Song For The Packers Season?

It depends.

Here was the plea of the O-Line.

The lament of the secondary (at least against the Cardinals).

(Incidentally, in 1973, when your girlfriend played this in the background when you were on the phone, it meant trouble.)

For the wideouts and Jermichael Finley

For Aaron Rodgers

For the Packers in the third quarter of the wild card game

And for Packer Nation

There's a train coming. Just get on board.

Saturday, January 16, 2010

More on Robertson

For those interested in the Robertson controversy, there is an excellent discussion on the always wonderful Mirror of Justice site. In response to a commenter to my earlier post, Pat Robertson is not a despicable person. He has done more good for more people than I ever will, notwithstanding his often retrograde theological views and the harm that they can cause.

Friday, January 15, 2010

ObamaCare In Critical Condition

In past posts opposing the centralization and federal management of health care, I've argued that public choice theory ought to cause us to be skeptical of replacing markets with the allocation of goods by legal command. The idea is that highly motivated insiders will hijack the political process and engage in rent seeking that diminishes social welfare. Some commentators have been skeptical. They have more faith in the political process to rationally and efficiently decide who should get what.

But doesn't the mere assembly of the health care package prove my point? It's full of rent seeking. We know hear that the unions are to be exempt - until 2018 - from the luxury tax on cadillac health plans. We've seen the Louisiana Purchase, the Cornhusker Kickback and the Florida Favor.

I can't get myself to believe that Scott Brown will beat Martha Coakley in Massachusetts next week. But if he does, this bill - as we know it - is dead. Or the Democrats will be in November.

The Unorthodox Pat Robertson

Certain quarters are bound to use Pat Robertson's comments about Haiti's "pact with the devil" to dismiss and caricature conservatives and traditional Christianity. But Robertson's remarks are decidedly unorthodox. One of the central problems in theology is the matter of theodicy. If God is good and powerful, then why do bad things happen?

There are a number of responses to this question, but the notion that those who suffer misfortune deserve it is inconsistent with mainstream Christian thinking (as is the recently popular Prosperity Gospel.) Over at NRO, Peter Wehner does a good job of explaining why. The Book of Job offers essentially the same critique. Job did nothing to deserve his misfortune.

Rejecting the idea that we get what we deserve - and only what we deserve - is disquieting, but it is orthodoxy.

Robertson is, of course, right that we should pray for the poor people of Haiti. But we should also send airdropped supplies and C-130s.

Monday, January 11, 2010

Green Bay Agonistes, the End.

First, we vent.

Yeah, the Packers got screwed by the officials on the game ending play - and on a number of other plays. Sure,Rodgers should have hit Jennings on the first play of overtime and maybe he held the ball too long on the last play. Yes, Capers should have blitzed more; it could have hardly made things worse. Agreed, the offensive line still played poorly. Absolutely, the Packers, at the end, generally had three to four guys on the field who are almost completely incapable of covering NFL receivers.

But ...

We saw one of the greatest comebacks in playoff history. Had Rodgers hit Jennings - a matter of inches - he'd be a national celebrity. He'd have had a place in NFL history no matter where the rest of his career takes him. Perhaps he should have taken a sack on the last play of the game, but he had to know that there was almost no chance that the Packers would have stopped the Cardinals once they got the ball back.

This looks like it was a transitional year. Rodgers emerged as one of the top five quarterbacks in the league. The team learned to play a 3-4 with personnel not quite suited to it.

But there are three things that must happen now. The Packers must obtain one - and perhaps two - offensive tackles. To go into next year thinking that Tauscher and Clifton can get us through another year would be criminal. If they can't be drafted, they must be bought.

They must pick up a cover corner and a competent backup safety.

Finally, they need one more atheletic linebacker along the lines of Clay Matthews. AJ Hawk in pass coverage is painful.

Do these things and hope is alive.

Sunday, January 10, 2010

Songs for a cold Sunday ...

It's colder day by day

A white curtain has come down

It's like being lost under ...

But the springtime take a long way around.

And one in honor of health care reform ...

Thursday, January 07, 2010

What Happens Next With Butler Nomination?

Update: Apparently, the administration is going to try again. The blogger known as the Brew City Brawler seems to think there is some inconsistency between this post and comments I made to a reporter at the Wisconsin Law Journal. Tom Foley wonders as well. For the three people who care, I respond below.*

The nomination of Louis Butler to the United States District Court for the Western District of Wisconsin has been returned. This means that he must be renominated and perhaps he will be.

I am not much impressed by the argument that Butler should not be approved for the federal bench because he lost two statewide elections. Federal judges are appointed by the President and it is hardly a surprise that President Obama would nominate judges with the views close to those held by former Justice Butler. If the voters wanted a different type of federal judge, they should have voted for John McCain. (As I spent some considerable time in the fall of 2008 arguing.)

Nor is there a competency question. Louis Butler is a very smart lawyer; clearly possessing the professional qualifications to sit on the federal bench.

The reason to oppose his nomination, if there is one, is that one disagrees with his judicial philosophy and political presuppositions. And I think that's what's been happening. The opposition to this nomination is yet another reverberation of the Court's 2004-05 term.

Whether the nomination is sent back to the Senate will depend, I suppose, on how much capital the administration wants to expend.

* In the WLJ, I was quoted as saying that “[w]hile one could argue that a person who has twice lost a statewide judicial race ought not to be elevated to the federal bench, I doubt that argument will carry a great deal of weight with the senators or the White House ...” This, according to Mr. Brawler, was a puerile attack on Butler's nomination and wonders whether I have flip-flopped.

I had forgotten that I commented to the WLJ on this. It is not clear to me why Mr. Brawler would regard those remarks as an attack or why he would be surprised that I am not impressed today by an argument that I said then would not carry much weight with the White House or Senate.

BCB wonders if I was misquoted or if other remarks were left out. It turns out that I e-mailed these comments to Jack Zemlicka so I know precisely what I said. I was not misquoted, but there was a sentence that Jack (quite justifiably) did not choose to print), After praising the nomination of my former partner, Bill Conley, I said:

"Justice Butler is also an excellent nominee in a Democratic administration.
While one could argue that a person who has twice lost a state wide judicial
race ought not to be elevated to the federal bench, I doubt that argument
will carry a great deal of weight with the Senators or the White House."

My point is that, if you want a judge with Justice Butler's legal philosophy, he is an excellent choice. As readers of this blog know, I have also said that he is a jurist of integrity and intelligence, albeit one that I often disagree with and who, for that reason, probably wouldn't be my choice. But when you elect a candidate like Barack Obama, this is more likely to be the type of candidate that will be nominated. If you don't want that, don't elect liberal Democrats to be President.

To belabor the obvious, there is absolutely nothing wrong with Jack Zemlicka omitting the sentence reproduced in bold. He obviously thought it more newsworthy to report a view that the election issue - which was being raised by a number of people at the time - would not carry much weight. That strikes me as a reasonable journalistic judgment.

Health Care Bleg

To my liberal friends, how is this thing supposed to work? I see little that will cause more people or employers to ensure. The penalties associated with the individual mandate are not high enough and the 8% tax would seem to be inadequate to incentivize those employers who currently do not provide insurance to provide it or to generate sufficient income to cover those uninsured persons. The limitations on insurer underwriting and actuarially determined premiums seems certain to raise premiums and the mandated coverage of preexisting conditions seems to create an incentive for persons to wait to insure until they need it.

If this is a first step toward single payer coverage, it seems to be a step calculated to screw up health care so much that single payer begins to look more palatable?

Wednesday, January 06, 2010

The Problem with Hit Girl

Charlie Sykes and James T. Harris, via Hot Air, draw our attention to a trailer featuring a character named "Hit Girl," an eleven year old girl trained by her father to be a foul mouthed vigilante. The character is apparently one of several in a soon to be released film called "Kick Ass," based on a Marvel comic book of the same name.

In the trailer, the kid, dressed in a brightly colored wig and a bubblegum outfit that is a cross between a ninja's shinobi shozoko and a Catholic school girl's uniform, drops "f" and "c" bombs and blows away bad guys with a very big gun. All of this takes place to the tune of the theme song from the old Banana Splits cartoon as reprised by the late seventies punk band, the Dickies.

So who cares? The malt shoppe scene where she tells her father that "I am just f****** with you" is kind of funny, isn't it? I am not one to be much bothered by profanity, although there is no excuse - none - for using the "c" word.

Charlie refers to the thing as having the character of child porn and I think that's right. Nothing in the trailer is sexual, but one of the reasons that we hate child porn or the sexual abuse of children is that it constitutes the exploitation of persons who are not yet ready to consent to that type of activity and it robs them of the period of innocence that we believe is necessary to become a well formed adult.

And doesn't that apply to turning your child into a vigilante? In fact, doesn't the use of the Banana Splits song ("tra la la, tra la la la") and the cute little costume (sure to be a Halloween favorite)take that very pathology and turn it into a joke?

The move is R rated, so presumably most kids won't see it in the theater but that's not only - maybe not even principally - where most movies are seen these days. While it is certainly right to say that parents ought not to let their kids see it, that's easier said than done when the culture is replete with references to these "forbidden' films and every kid's house has become a multiplex.

Of course, I don't think that a kid will see "Kick Ass" and turn into a violent thug. It is common for libertines to characterize objections to the coarsening of the culture in this way. The argument is lazy.

Modern society has created a bit of a problem for itself. Technological advances and the need for a much longer period of education has created a lengthy adolescence or period of time in which young men and women cannot assume the responsibilities of adulthood. This is a difficult period and it is not helped by a culture that bombards them with images of the temptations and potential vices of adulthood - things that are best handled with the maturity that is tempered by responsibility.

I don't know many parents of pre-pubescent and adolescent children who don't wish Hollywood would shut up. "Kick Ass" might be a decent movie (although it doesn't look like it) and I get the sense that the comic book has a darker and more tragic sensibility, but does it really have to be marketed like a frothy celebration of "Girl Power?"

What the Cap Times Did Not Tell Us About the Wisconsin Supreme Court

One of my professional interests and charges is to follow the Wisconsin Supreme Court. About now, it's a fascinating beat. Last month, the Capital Times covered the Court's December 7 administrative conference. As Daniel Suhr pointed out on our faculty blog, the article leaves a bit to be desired.

The article spends a great deal of time emphasizing the testiness that was on display during a public administrative conference held by the Court on December 7. That's fine as far as it goes. The conference was certainly contentious and, at times, less than congenial. Part of that is due to the Court's decision to hold its administrative conferences in public, thereby putting sausage making on display.

But it's not just that. There have been many other indications of bad feeling on the Court, and that contention is not new. When the Chief Justice ran for reelection in 1999, a majority of the Court (crossing ideological divides) endorsed her opponent. That must have made for a few frosty decision conferences. The Court's decisions and the concurrences and dissents of the individual justices have exhibited a certain heat for quite some time.

I do wish that the justices could find a way to dial down the heat that seems to characterize their deliberations. The justices are human and we all lose our religion now and then, but I hope that the testiness that has characterized some of the Court's recent public deliberations - and some of the individual justices' written opinions - can be reduced.

Talk to enough people and it becomes apparent that much of what drives this happens out of the public view. The conference gave us a peek at some of that and this is the story that the Cap Times failed to tell.

First, there is the question of why the Court was in administrative conference at all. This past October, it voted 4-3 to adopt certain amendments to the Code of Judicial Conduct. These amendments made clear that campaign contributions and independent expenditures do not, in and of themselves, require recusal. This is not to say that contributions and expenditures, in combination with other circumstances, cannot create a potential for bias that requires recusal. (Indeed, the United States Supreme Court's decision in Caperton tells us that they might.) But the fact of a contribution or expenditure - by itself - is not enough.

All in all, the amendments esssentially restated what has generally been the practice, i.e., judges generally do not automatically step aside because of campaign contributions. Indeed, that the amendments do not provide new and more definitive guidance seems to be the basis of much of the criticism of the decision to adopt them and do no more.

There is something to the idea that more guidance on recusal is required. I am in the midst of writing a paper on that in light of Caperton, so I am certainly not opposed to more discussion and debate on the topic. (I'd like to think that my forthcoming contribution to the discussion and debate would look great in some top 20 law journal!)

But it seems quite clear that the majority adopted these amendments because they wanted to dispel what they believe to be unfounded calls for the recusal of certain members of the court. See, e.g., the suggestion that Annette Ziegler should have recused herself because WMC filed an amicus brief in a case. Thus, Justice Prosser's comments at the conference that he wanted to act promptly rather than allow certain members of the Court to "dangle in the wind."

As is normally the case, an order adopting these amendments was circulated among the Justices. David Prosser and Annette Ziegler declined to approve of the order as drafted, although only Justice Prosser publicly annnounced that he was no longer willing to approve of the rules as submitted. There seem to be two problems. Understanding the nature of the problems is helpful in assessing what was going on in the hearing. So bear with me.

The first is an inconsistency in the language employed in the amendments proposed by WMC and WRA. WRA's proposal sought to amend SCR 60.04(5) to say that recusal is not required solely because of campaign contributions by "persons and other entities before the Court." WMC's petition sought to amend 60.04(6) to make clear that recusal is not required solely because of an independent expenditure or issue advocacy communication, but it referred only to "parties" before the Court.

Obviously, the WMC language could be read to apply to a more narrow class of persons, excluding lawyers and amici. Although it is sometimes said that all standards of construction are contradicted by another, adoption of both amendments by the Court could be seen as establishing that there are "persons before the court" other than parties and that new 60.04(6) provides a more narrow clarification - or limited "safe harbor" - than new 60.04(5). In other words, while contributions and expenditures by parties are not, in and of themselves, cause for recusal, perhap independent expenditures (but not contributions) by amici could be.

It seems clear that this is not what was intended. It is hard to imagine a rule that would say that recusal could not be based solely on independent expenditures by a party, but could be based solely on expenditures by an amici.

Reconciling the language does seem to be a matter of clarification. With respect, it is not, as Justice Bradley claimed "very substantive" and it is not, as Justice Crooks argued, "difficult to understand." It is not unusual at all for courts to fine tune the wording of an order without a new hearing or other public process.

The second problem is much like the first. It is a concern on the part of Justice Prosser about language in WRA's petition to amend SCR 60.06(4) to say that, while a judge may not solicit campaign funds (a provision recently held unconstitutional by a district judge in Madison and currently on appeal), his or her committee can solicit or accept funds from "lawyers or parties or entities involved in a proceeding over which the candidate is presiding." Justice Prosser seems to be concerned that this could be read to apply only to the chief justice or presiding judge in a multi-member court. This too seems to be a relatively minor clarification of the language.

So, to begin with, the majority seems to have been upset that the conference was being held at all, believing it to be unnecessary and likely to have the effect of adding fuel to what the majority clearly believes to be unfounded allegations of bias and corruption. There is a certain logic to this.

In response, the minority makes two arguments. The first is that the amendments were adopted verbatim and they seem to think (this was the point that lead to the flare up between Justices Crooks and Prosser) that the majority shouldn't "go back" on that without further public proceedings. The Chief Justice goes to great lengths to get the majority to concede that they had somehow "backed off" their earlier position which was now "dead in the water." The majority - Justice Prosser in particular - kept saying that they only wanted to clarify - that they were still adopting in essence - what they had adopted "verbatim." (More on that term later.) I think the extended verbal gamesmanship on this both reflected and contributed to the tension among the justices.

Second, Chief Justice Abrahamson expressed concern that the matter not be delayed. This is fair - and that very concern was offered by the majority as a justification for acting in November. But it was apparent that Justice Prosser was not going to approve the order as it was written. It was clear that he did not want to make major changes. It was clear that he was not prepared to offer an alternative at the conference. It seemed evident from the outset that nothing was likely to be accomplished that day (although in the end, it almost was).

So the administrative conference simply put on display the difference of opinions regarding adoption of the WMC and WRA amendments. But two things that happened in the hearing seemed to have aggravated the tension between the Court's two factions.

The first was Justice Bradley's decision to read her dissent. Justice Prosser encouraged her to do so, although, it is fair to observe, not in an approving sort of way. Justice Gableman seemed to believe that the better practice would have been to wait for an order to dissent from. This would also permit the majority to contemporaneously respond.

The dissent criticizes the majority for adopting the amendments without revision and extended deliberation. It is clear that Justice Bradley feels very strongly about the matter. Read in a rising voice, her dissent refers (in an understanding, if not necessarily approving way) to a number of rather intemperate editorials from newspapers across the state accusing the majority of legalizing "bribery" and putting justice "for sale."

Although the Cap Times noted Justice Prosser's sarcastic remark at the conclusion of the dissent ("Are we supposed to applaud?"), it is not hard to see how he might have been offended by a suggestion that the majority's action somehow justified editorials accusing the Court of legalizing bribery.

Justice Roggensack suggested that Justice Bradley wait in the interest of "public congeniality." For her part, Justice Bradley said she would not be "silenced."

It is not clear how that could happen, but, immediately after, the Chief Justice tried to support Justice Bradley's concern. She made some rather extraordinary remarks about her perception that certain members of the Court were holding orders because they did not like what was written in a dissent or concurrence. After being questioned by Justice Roggensack, Chief Justice Abrahamson actually identifed a case - State v. Carter. (There are two Carter cases currently pending, but I assume that she is referring to the case in which Ellen Henak has filed a motion to recuse Justice Gableman).

This is what led to Justice Roggensack's remark about "posing for holy pictures." She apparently thought that the Chief was attempting to deflect charges that she is responsible for holding up a resolution of the recusal issue. Justice Roggensack expressed her disagreement with the Chief Justice's characterization of the Carter matter and then, in another extraordinary exchange, suggested that the Chief Justice had actually delayed the order in State v. Allen. (This is the first case in which a motion to recuse Justice Gableman was filed by Rob Henak.)

The Chief Justice denied that and seems to contend that the order is awaiting finalization of her dissent and the majority's response. Justice Roggensack, perhaps for the reasons expressed below, thought that the order should have been issued with opinions to follow.

These things are normally not discussed publicly and, it was in response to the Chief Justice's objection to discussion of the Allen case, that Justice Roggensack said "you opened the door, kiddo."

Whoever opened it, one does wish it would have remained closed. But therein lies the story that the Cap Times did not tell.

I believe that the recusal motions should be denied - and quite easily at that. I am not going to criticize the lawyers who make them as long as they are made - as they have been - in a professional manner. I understand that, at least in part, the recusal efforts are motivated by a certain view of the relationship between judicial elections and criminal justice, as well as by a certain frustration with the public's ambiguous attitude toward the adversary system and the resulting impact on criminal justice. A lawyer must zealously defend his or her client and judges, for the most part, understand that. Indeed, at the conference, Justice Roggensack complained that the failure to act on the motions was giving lawyers the impression that they have to make these motions to adequately represent their clients because there might be "something there." She seems frustrated with the Court and not the lawyers.

So the problem isn't that the motions were made. It's that they haven't been decided. Effectively removing an elected member of law developing court of last resort from all criminal cases would be, to put it mildly, quite unusual. As Justice Prosser argues in his concurrence in DeBraska v. Quad Graphics, recusal of Supreme Court justices can have significant costs.

If I am reading correctly between the lines of what was said, at least one of these motions has been denied, but the orders are being held up. Of course, I have no way of knowing why. Certain of the justices seem to believe that these requests ought to have been summarily dismissed* and that the failure to do so is a product of the Court's ideological and personal divisions. At the very least, it seems to have exacerbated those tensions and this has crept into the debate about recusal rules.

That tension is, I think, also exacerbated by the tone of much of the public debate on these questions. I, for example, sympathize with Justice Prosser's frustration at certain "reformers" who, in his view, make a living (and seek certain ideological outcomes) by (sometimes) selective and unfounded allegations of corruption. It is one thing to make a sober case for recusal under certain circumstances. It is quite another to indulge in a disrespectful and uninformed demagoguery. We can discuss the role of money in politics without channeling Huey Long. As noted above, it has been some of the more aggressive and unfounded calls for recusal that seems to have motivated the prompt and "verbatim" adoption of the WRA and WMC amendments in the first place.

It is quite clear, of course, that the minority did not want to move so quickly and, in the conference, the Chief Justice and Justice Bradley repeatedly expressed or implied criticisms of the adoption of amendments "verbatim." It seems to me that the problem, if there was one, was not use of the word "verbatim" in the motion passing the amendents. That would certainly not preclude the majority from clarifying the language if it wants to. It is in the desire to quickly adopt the amendments and then consider the matter closed.

In a revealing comment at the end, Justice Prosser suggested that he views much of this public pressure for recusal as an attack on the election of judges.** If commonplace campaign activity results in an inability to hear cases, the electoral system - at least one in which there is vigorous public participation and high salience - breaks down.

At the end of the hearing, Justice Prosser began to offer clarifying language but the Chief Justice stated that she must end the conference, having made a commitment to attend a bill signing.

More to come.

* At one point, Justice Roggensack say that they should have acted per curiam in Allen ,i.e., issued an unsigned opinion. This isn't necessary indicative of a summary action, but may have revealed some of her thinking on the matter.

** In yet another fascinating exchange, Justice Prosser said that the Court had held action on the LWV proposal (which would have strangled fundraising in state wide judicial races)to ensure that it would not hamper the Chief Justice's reelection campaign. I would have doubted that, but she did not contradict him. In any event, I rather doubt that adoption of the LWV proposal would have had any impact on the 2009 race and it has now been rendered largely moot by the recently enacted limit on contributions. There cannot be contributions in excess of $1000.00.

Cross posted at Marquette University Law School Faculty Blog.

Saturday, January 02, 2010

Predictions for 2010

1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.

2. The Republicans pick up seven seats in the Senate and twenty in the House.

3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.

4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.

5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.

6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.

7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.

8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.

9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.

10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.

11. Nothing happens at the Mexico City climate summit.

12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.

13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.

14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.

15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.

Creative Destruction Is Both

I've mentioned a few times that I appreciate the writing of Jim Manzi on the question of climate change. He does a good job of cutting through to the fog to find what seems to me to be the most reasonable position on AGW.

So it doesn't surprise me that Manzi has an interesting piece in the fantastic new journal National Affairs on the tension between policies promoting growth and those promoting social cohesion. You should read it all but one of the propositions is that, while liberals assume the material wealth that they seek to distribute without an adequate regard for the way in which redistributive policies will impede its production, conservatives assume the cohesion - I would prefer the word "social capital" - that the operation of markets and individualism promoted by capitalism can tend to undercut.

The conservative ascendancy was, in large part, as result of Democratic policies that either ignored the creation of wealth or believed that it was no longer possible. If conservatives are to avoid a liberal ascendancy, we need to think about cohesion and the importance that the benefits of growth - while they need not and probably cannot - be equally distributed, ought to be widely shared.

One of the things that brings to mind - and Manzi addresses it rather indirectly - is the extent to which the dichotomy between economic and social issues is a false one. One of the persistent causes of poverty is the deterioration of social capital in poor communities. There is a reason for many of the "judgmental" moral standards that have traditionally characterized American society.

The problem, it seems to me, is that we have lost our ability to discuss these things. The overriding memes of our generation - tolerance, equality and individualism - make it almost impossible to talk about anything but materialistic and reductionist responses to social problems.

Cross posted at Marquette University Law School Faculty Blog.