If, to paraphrase Rahm Emmanuel, a good crisis leads to opportunities, one opportunity is for policy wonks to speak truth to the frivolity of politics as usual.
The public may be willing to listen to facts that it would otherwise prefer to ignore.
Thus, we have Paul Ryan's moment. As Robert Samuelson points out, a once obscure Congressman from Janesville, Wisconsin has done "something no one else in Congress or apparently the White House has done: design a specific plan to control long-term government spending and budget deficits." While I don't agree with everything in Ryan's Roadmap 2.0 (you can't eliminate capital gains tax and eliminate both the corporate income tax and tax on dividends), but it is, as the Economist put it "an honest and daring proposal." While his plan, like Obama's, will cut Medicare spending, it does so in order to return the plan to solvency and not to finance a new entitlement. Combined with Ryan's health care plan, it stands a better chance of "bending the cost curve" than Obama's top down approach.
Ryan's performance at the health care summit further burnished his image and saw him seizing Rahm Emmanuel's opportunity. Investor's Business Daily says that his criticisms of the Democrats' health care proposals are still awaiting a response.
Sunday, February 28, 2010
Who "Won" at the Health Summit?
I suspect that it was whomever you want to have won it. Few people actually sat and watched it and we can now all pick and choose those soundbites that we like.
There is a sense, however, in which I think it was a mistake for Obama to do it. It inevitably presented him as less than Presidential - as, at best, a first among equals and a rather petulant one at that. I'm not sure that there could have been any other outcome. If you are going to sit around a big table and exchange ideas, one becomes - in some sense - comparable to those you are exchanging them with.
That might not be so bad. We don't like our Presidents to act imperial. But then one ought not to assert Presidential superiority ("there was imbalance because I'm the President," "the election is over'). In that context - around a circle created for dialogue - it comes across as haughty.
And coming across as haughty is not what Obama wants to do. The perception fueling his decline in the polls is that the idea is that his policy proposals are too ambitious and threaten to interfere not only with the part of, say, the provision of health care that we don't like but also the part that we do like. Given that an overwhelming majority of Americans like their health care, that is not a good place to be.
Of course, I don't think that there is anything unfair about this. The problem with ObamaCare is that it overcentralizes the provision of care in a way that threatens to stifle medical innovation and that will create unacknowledged winners and losers. The Senate bill, in particular, is set up to fail. The President's recent proposal falls back on price controls.
Here's the New Nixon.
There is a sense, however, in which I think it was a mistake for Obama to do it. It inevitably presented him as less than Presidential - as, at best, a first among equals and a rather petulant one at that. I'm not sure that there could have been any other outcome. If you are going to sit around a big table and exchange ideas, one becomes - in some sense - comparable to those you are exchanging them with.
That might not be so bad. We don't like our Presidents to act imperial. But then one ought not to assert Presidential superiority ("there was imbalance because I'm the President," "the election is over'). In that context - around a circle created for dialogue - it comes across as haughty.
And coming across as haughty is not what Obama wants to do. The perception fueling his decline in the polls is that the idea is that his policy proposals are too ambitious and threaten to interfere not only with the part of, say, the provision of health care that we don't like but also the part that we do like. Given that an overwhelming majority of Americans like their health care, that is not a good place to be.
Of course, I don't think that there is anything unfair about this. The problem with ObamaCare is that it overcentralizes the provision of care in a way that threatens to stifle medical innovation and that will create unacknowledged winners and losers. The Senate bill, in particular, is set up to fail. The President's recent proposal falls back on price controls.
Here's the New Nixon.
Friday, February 26, 2010
Some Thoughts on Redistricting
As we head into the fall election cycle, one of the most important consequences of state legislative and gubernatorial races will be the impact on redistricting in 2011.
Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.
As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan.
If one party controls both houses of the legislature and the governor’s chair, it is possible to materially affect the outcome of congressional and legislative races for the next ten years with little prospect for legal challenge.
If there is split control, it is highly unlikely that the legislature and governor will produce a map. Judges wind up drawing the lines.
Some states have tried to avoid the political nature of redistricting by moving to nonpartisan commissions. One interesting recent example is California.
In 2008, voters narrowly passed Proposition 11 which creates a fourteen person redistricting commission. Anyone can apply. 31,ooo people did. A panel of three state auditors (with some challenges by legislative leaders) must now winnow that number to 60 based on considerations of qualifications, impartiality and diversity. Of that 60, eight people are chosen at random and they select the other six.
The commission is supposed to use traditional nonpartisan districting criteria. There is, of course, no way that the plan would have been enacted by the California legislature which is strongly Democratic (and thus confident that their party would control the process) and, by definition, made up of incumbents who notoriously draw lines to protect themselves. In recent election cycles, incumbent state legislators have had about a 99% reelection rate in California.
UCLA law professor and election law expert Daniel Lowenstein is heading an effort to repeal Proposition 11 with the backing of certain Democratic members of Congress. Professor Lowenstein calls it a “Rube Goldberg” system in which the machinations of interest groups will be hidden and immunized from public accountability. It does seem a rather odd construct.
Of course, there are partisan undertones to Proposition 11 as is almost always the case in redistricting. It’s not surprising that Republicans would support it. It gives them an equal seat at the table that they would be very unlikely to gain as a result of state legislative races. In addition, some experts argue that Republicans tend to benefit from “neutral” redistricting principles, i.e., compactness, contiguity, respect for political boundaries, etc. This is not because Republicans are less interested in gerrymanders, but because – or so the theory goes - certain Democratic voters – in particular, racial minorities – tend to be geographically concentrated. In addition, because turnout in such populations is often lower, creating majority-minority districts to, say, protect a redistrict from challenge under the Voting Rights Act is generally thought to require creation of a supermajority, further packing Democratic voters.
Interesting times are ahead.
Cross posted at Marquette University Law School Faculty Blog
Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.
As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan.
If one party controls both houses of the legislature and the governor’s chair, it is possible to materially affect the outcome of congressional and legislative races for the next ten years with little prospect for legal challenge.
If there is split control, it is highly unlikely that the legislature and governor will produce a map. Judges wind up drawing the lines.
Some states have tried to avoid the political nature of redistricting by moving to nonpartisan commissions. One interesting recent example is California.
In 2008, voters narrowly passed Proposition 11 which creates a fourteen person redistricting commission. Anyone can apply. 31,ooo people did. A panel of three state auditors (with some challenges by legislative leaders) must now winnow that number to 60 based on considerations of qualifications, impartiality and diversity. Of that 60, eight people are chosen at random and they select the other six.
The commission is supposed to use traditional nonpartisan districting criteria. There is, of course, no way that the plan would have been enacted by the California legislature which is strongly Democratic (and thus confident that their party would control the process) and, by definition, made up of incumbents who notoriously draw lines to protect themselves. In recent election cycles, incumbent state legislators have had about a 99% reelection rate in California.
UCLA law professor and election law expert Daniel Lowenstein is heading an effort to repeal Proposition 11 with the backing of certain Democratic members of Congress. Professor Lowenstein calls it a “Rube Goldberg” system in which the machinations of interest groups will be hidden and immunized from public accountability. It does seem a rather odd construct.
Of course, there are partisan undertones to Proposition 11 as is almost always the case in redistricting. It’s not surprising that Republicans would support it. It gives them an equal seat at the table that they would be very unlikely to gain as a result of state legislative races. In addition, some experts argue that Republicans tend to benefit from “neutral” redistricting principles, i.e., compactness, contiguity, respect for political boundaries, etc. This is not because Republicans are less interested in gerrymanders, but because – or so the theory goes - certain Democratic voters – in particular, racial minorities – tend to be geographically concentrated. In addition, because turnout in such populations is often lower, creating majority-minority districts to, say, protect a redistrict from challenge under the Voting Rights Act is generally thought to require creation of a supermajority, further packing Democratic voters.
Interesting times are ahead.
Cross posted at Marquette University Law School Faculty Blog
Wednesday, February 24, 2010
A Hard Rain's Gonna Fall
The Wisconsin Policy Research Institute has issued a study showing that public employee pensions are far more generous than the retirement benefits of private employees. That's not a surprising conclusions. Hitting your "30" or whatever the number is has become a cultural reference for public employment. Government employees can typically retire much earlier at a guaranteed salary with health care benefits. Public employees typically defend these benefits by arguing that they accept lower pay in return for these benefits. We trade income, they say, for security.
Before I get attacked by the usual crowd, I should point out that I was raised by a fire fighter. I understand the arguments in favor of outsized public employee pensions. But, having come from a family where almost everyone worked for the government, I also understand their weaknesses.
It is not clear that the great majority of public employees would make more doing "comparable work" in the private sector. The argument for "enhanced" benefits are most salient for professional employees. Government payrolls are much flatter than private sector payrolls. A lawyer can make a lot more in private practice than in government service - although not all - perhaps not even most - do. An alternative explanation is that the role of public employee unions in electing the officials across the table compromises the bargaining process and providing outsized benefits - which are less visible to the public - is the result.
However you see this, what is becoming increasing clear is that government entities can no longer afford to pay these generous benefits. As Bruce Thompson pointed out in Sunday's Milwaukee Journal Sentinel, the Milwaukee Public Schools are awash in unfunded liabilities to future retirees. Its burden rate is, depending on how you calculate it, three to four time what it is in the private sector. This has - and will continue to - hollow out what can be spent on education.
This is a problem that the city cannot tax its way out of and the state is unlikely to come to the rescue. It's got problems of its own and an often unexamined dynamic of Wisconsin politics is that outstate voters are, at best, indifferent and, at worst, hostile to the City of Milwaukee.
The problem is hardly limited to Milwaukee and Wisconsin. If you want to be depressed, spend some time here.
The problem won't go away by dismissing people like Bruce Thompson as "anti-public education" or Scott Walker as "anti-Milwaukee County" (as if the county was synonymous with its government). Unfunded pension and health care liabilities are a huge threat to effective public education or county government. Ignoring the problem does not solve it.
Before I get attacked by the usual crowd, I should point out that I was raised by a fire fighter. I understand the arguments in favor of outsized public employee pensions. But, having come from a family where almost everyone worked for the government, I also understand their weaknesses.
It is not clear that the great majority of public employees would make more doing "comparable work" in the private sector. The argument for "enhanced" benefits are most salient for professional employees. Government payrolls are much flatter than private sector payrolls. A lawyer can make a lot more in private practice than in government service - although not all - perhaps not even most - do. An alternative explanation is that the role of public employee unions in electing the officials across the table compromises the bargaining process and providing outsized benefits - which are less visible to the public - is the result.
However you see this, what is becoming increasing clear is that government entities can no longer afford to pay these generous benefits. As Bruce Thompson pointed out in Sunday's Milwaukee Journal Sentinel, the Milwaukee Public Schools are awash in unfunded liabilities to future retirees. Its burden rate is, depending on how you calculate it, three to four time what it is in the private sector. This has - and will continue to - hollow out what can be spent on education.
This is a problem that the city cannot tax its way out of and the state is unlikely to come to the rescue. It's got problems of its own and an often unexamined dynamic of Wisconsin politics is that outstate voters are, at best, indifferent and, at worst, hostile to the City of Milwaukee.
The problem is hardly limited to Milwaukee and Wisconsin. If you want to be depressed, spend some time here.
The problem won't go away by dismissing people like Bruce Thompson as "anti-public education" or Scott Walker as "anti-Milwaukee County" (as if the county was synonymous with its government). Unfunded pension and health care liabilities are a huge threat to effective public education or county government. Ignoring the problem does not solve it.
Monday, February 22, 2010
Shark at Point of Law
Thanks to Walter Olson and the nice people at the Manhattan Institure, I have been asked to blog at Point of Law. My inaugural post, reciting issues familar to readers of Shark and Shepherd and followers of the Wisconsin scene, can be found here.
Thursday, February 18, 2010
Two Cheers For the Electoral College
George Soros is funding an effort to undermine the Electoral College. The idea is to enter into a compact with other states in which each state agrees to require their electors to vote for the candidate who has won the national popular vote. The compact would not become effective until states comprising a majority of electoral votes have agreed.
The effort has resulted in the introduction of AB 751 in the Wisconsin legislature.
The proposal may well be unconstitutional under the Compact Clause. It is almost certainly motivated by partisan concerns. It isn't simply that Democrats tend to be more geographically concentrated. That can actually help if Democratic voters are packed in the right states. Thus, while Bush lost the popular election and won the electoral vote in '00, Kerry almost did the same thing in '04.
Rather, the back story is population trends that will move electoral votes to Republican states. For the first time in who can remember, California will not pick up a seat and the Midwest and Northeast continue to lose population to the south and southwest.
Republicans should not be too sanguine. Large influxes of people into a state can change its political composition. When I was a kid, California was a fairly Republican state. But there is, nevertheless, reason to suspect that the Electoral map is going to get tougher for Democrats.
On the merits, the preferability of a national popular vote is not obvious. In yesterday's Milwaukee Journal Sentinel, Rep. Kelda Helen Roys makes an argument that seems wrong.
It's not obvious to me that the fact that one state is close and another is not alters the "value" of a vote. The Electoral College does result in some disproportion in the weighting of a vote but it's not because some states are competitive and others are not. It's because each state gets two Senators regardless of population (and to, a lesser extent, the fact that some very small population states get one representative.)
But the fact that one vote has a "better" (albeit still infinitesimal) chance of deciding an election does not mean that it "counts more." Thus, in the example she cites, a vote in Utah had precisely the same Electoral weight as one in New Mexico.
A better complaint (and one that Rep. Roys also makes)is that the Electoral College forces candidates to give disproportionate attention to competitive states. To the extent that the policy preferences of these competitive states don't match the aggregate policy preferences of the nation, one can argue that this effect constitutes a "distortion" of the campaign.
That is a weakness of the Electoral College. But it is also its strength.
The Electoral College forces candidates to pay attention to states that they otherwise might not. But there may be a certain genius to that. Forcing candidates into battleground states requires the candidates to engage each other before an electorate that is truly up for grabs and to do so by engaging - at least to some degree - in retail politics - much as the Iowa caucuses and New Hampshire primary do in the nomination process.
If you see a campaign as a dialogue in which candidates must engage the voters as opposed to a ratification of preexisting interests, there may be some value in this. A campaign resulting in a national popular vote would look very different than our current campaigns. It would be even more media intensive and, I suspect, more ideologically polarized.
Part of your attitude toward the electoral college will depend on how important you think state and geographic interests are. At the time of the founding, it mattered a great deal. While the electoral college does not guarantee broad geographical support, it tends to force candidates to take into account the interests and preferences of parts of the country that it might otherwise be rational to ignore. It can enhance the influence of minorities who, while they may be insignificant nationally, are important in a critical state.
If you don't buy that, then there are other "reforms" that might interest you such as allocation of Senate seats by population. Perhaps you may even want to consider abandon of single member districts elected by the Westminster method of "first past the post" in favor of multi-member districts with proportional representations. To extend Rep. Roys' reasoning, her district is heavily Democratic and not competitive. In fact, it was probably intentionally drawn to be that way.
Borrowing from her concept of the "value" of a vote, there is a sense in that her constituents have less impact on the composition of the assembly - and, therefore, which laws get passed and which do not - than a voter in a competitive district. If the national - or statewide - policy and will is what matters, then I ought to be far more interested in whether the Republicans or Democrats hold Congress or the State legislature than I am in the identity of "my" legislator.
To be sure there are differences between an election for President and one for a legislator who, by certain theories of representation, is supposed to represent the geographic interests of her constituents. My only point is that the matter is far more complicated than reification of the national popular vote and that we ought to be reluctant to take a position on whose ox we think will be gored.
Cross posted at Marquette University Law School Faculty Blog
The effort has resulted in the introduction of AB 751 in the Wisconsin legislature.
The proposal may well be unconstitutional under the Compact Clause. It is almost certainly motivated by partisan concerns. It isn't simply that Democrats tend to be more geographically concentrated. That can actually help if Democratic voters are packed in the right states. Thus, while Bush lost the popular election and won the electoral vote in '00, Kerry almost did the same thing in '04.
Rather, the back story is population trends that will move electoral votes to Republican states. For the first time in who can remember, California will not pick up a seat and the Midwest and Northeast continue to lose population to the south and southwest.
Republicans should not be too sanguine. Large influxes of people into a state can change its political composition. When I was a kid, California was a fairly Republican state. But there is, nevertheless, reason to suspect that the Electoral map is going to get tougher for Democrats.
On the merits, the preferability of a national popular vote is not obvious. In yesterday's Milwaukee Journal Sentinel, Rep. Kelda Helen Roys makes an argument that seems wrong.
Furthermore, every vote is not equal in presidential elections. Al Gore won five electoral votes by carrying New Mexico by 365 popular votes in 2000, whereas George W. Bush won five electoral votes by carrying Utah by 312,043 popular votes - an 855-to-1 disparity in the value of a vote between two similarly populated states.
It's not obvious to me that the fact that one state is close and another is not alters the "value" of a vote. The Electoral College does result in some disproportion in the weighting of a vote but it's not because some states are competitive and others are not. It's because each state gets two Senators regardless of population (and to, a lesser extent, the fact that some very small population states get one representative.)
But the fact that one vote has a "better" (albeit still infinitesimal) chance of deciding an election does not mean that it "counts more." Thus, in the example she cites, a vote in Utah had precisely the same Electoral weight as one in New Mexico.
A better complaint (and one that Rep. Roys also makes)is that the Electoral College forces candidates to give disproportionate attention to competitive states. To the extent that the policy preferences of these competitive states don't match the aggregate policy preferences of the nation, one can argue that this effect constitutes a "distortion" of the campaign.
That is a weakness of the Electoral College. But it is also its strength.
The Electoral College forces candidates to pay attention to states that they otherwise might not. But there may be a certain genius to that. Forcing candidates into battleground states requires the candidates to engage each other before an electorate that is truly up for grabs and to do so by engaging - at least to some degree - in retail politics - much as the Iowa caucuses and New Hampshire primary do in the nomination process.
If you see a campaign as a dialogue in which candidates must engage the voters as opposed to a ratification of preexisting interests, there may be some value in this. A campaign resulting in a national popular vote would look very different than our current campaigns. It would be even more media intensive and, I suspect, more ideologically polarized.
Part of your attitude toward the electoral college will depend on how important you think state and geographic interests are. At the time of the founding, it mattered a great deal. While the electoral college does not guarantee broad geographical support, it tends to force candidates to take into account the interests and preferences of parts of the country that it might otherwise be rational to ignore. It can enhance the influence of minorities who, while they may be insignificant nationally, are important in a critical state.
If you don't buy that, then there are other "reforms" that might interest you such as allocation of Senate seats by population. Perhaps you may even want to consider abandon of single member districts elected by the Westminster method of "first past the post" in favor of multi-member districts with proportional representations. To extend Rep. Roys' reasoning, her district is heavily Democratic and not competitive. In fact, it was probably intentionally drawn to be that way.
Borrowing from her concept of the "value" of a vote, there is a sense in that her constituents have less impact on the composition of the assembly - and, therefore, which laws get passed and which do not - than a voter in a competitive district. If the national - or statewide - policy and will is what matters, then I ought to be far more interested in whether the Republicans or Democrats hold Congress or the State legislature than I am in the identity of "my" legislator.
To be sure there are differences between an election for President and one for a legislator who, by certain theories of representation, is supposed to represent the geographic interests of her constituents. My only point is that the matter is far more complicated than reification of the national popular vote and that we ought to be reluctant to take a position on whose ox we think will be gored.
Cross posted at Marquette University Law School Faculty Blog
Tuesday, February 16, 2010
Shark on Citizens United
Thanks to Walter Olson at Point of Law for posting my Milwaukee Journal Sentinel column on Citizens United.
Monday, February 15, 2010
The Neverending Supreme Court Election
I had a couple of writing deadlines so I'm a bit late to the game on the Wisconsin Supreme Court's extraordinary decision (or, more accurately, nondecision) in Allen v. State. The Court was not split on whether Justice Gableman should recuse himself in all criminal cases. No Justice held that he should. Three did not reach the issue and three, essentially, expressed the view that he is not required to do so.
Rather, the principal division was over whether the question of an individual's Justice recusal could be submitted to the Court as a whole. Chief Justice Abrahamson and Justices Bradley and Crooks wanted more briefing on the issue but it seems fairly evident that they believe that a majority of the justices considering the issue can force a fellow Justice off a case if they believe (or are willing to say) that there is either a statutory or constitutional requirement for that Justice to recuse herself.
Justices Prosser, Roggensack and Ziegler disagreed. They believe that the only issue before the Court is whether the justice at who a recusal motion is directed has given it the proper considertation. They went on to conclude that Justice Gableman had done so and made it clear that they thought Allen's motion was pretty weak tea.
These latter group of Justices are pretty clearly concerned about judge shopping and frustration of the will of the voters. Recusal based on generalized allegations of bias against a broad class of litigants defined in a way that is not inextricable from judicial and legal philosophy would open a Pandora's Box filled with opportunities for lawyers to sprawl litigation in an attempt to manipulate the system.
This is the reason that Justices Prosser, Roggensack and Ziegler wanted the Court to act more quickly than it did. They believed that the repeated recusal motions and cheerleading for them in the Public Defender's office, on the blogs and in the press was undermining public confidence in the Court and putting undue political pressure on some Justices.
As I have blogged before, I believe that the Gableman ad on Rueben Mitchell was a bad thing. I said it before the election and, in fact, my criticism was cited in at least one of the briefs filed by Rob Henak in support of recusal. But I don't think that Justice Gableman is required to recuse himself because of those and other ads or the comments made by lawyer offering his interpretation of the ad. As I have said, "tough on crime" campaigning is quite common in judicial campaigns. Almost all political advertising is oversimplified and much of it is unfair and misleading. Beyond that, the problem with the ad is not that it demonstrates Justice Gableman's "bias" against criminal defendants.
But, to the question at hand, I am skeptical that there is any judicially manageable standard for policing campaign speech through mandated recusal. This is particularly so when the allegation of bias is not on some basis (e.g, race) wholly unrelated to judicial and legal philosophy. Some judges have less expansive views of the rights of criminal defendants than others. That was the case in the race between Justices Gableman and Butler. It seems to me that, if we are going to elect judges, then candidates are entitled to address those differences. While I don't believe that the Mitchell ad was an appropriate way to do that, I don't think the remedy is that Justice Gableman should never sit on criminal cases.
The fact of the matter is that Justice Gableman does not have a record of "never" ruling in favor of criminal defendants - even those accused of heinous crimes. (Indeed, the Greater Wisconsin Committee ran ads accusing him of being soft on sex offenders.)But he is almost certainly a tougher justice for defendants than some other members of the Court and that should help us see the problem.
An aggressive regime of mandatory recusal is going to be seen as - in fact is likely to be - an effort to judge shop. In the context of an elected Supreme Court in which certain indivuals are selected by the voters to be the final judicial arbiters of Wisconsin law, that is extremely problematic.
I suspect that I'll get commenters again emphasizing what was wrong with the Gableman ad. They are essentially arguing for an approach somewhat akin to Justice Potter Stewart's standard for identifying obscenity. They know it when they see it and they are sure they have seen it. I am not completely dismissive of that. But when the question is as politically charged as it is here, such a rule will to often come down - or appear to come down - to who has the votes to "see" an ad in a way that will change the composition of the Court and, perhaps, the outcome of a case.
None of this is intended to endorse or excuse misleading or inaccurate campaign ads. But, as a general matter, the remedy for bad speech is good speech and the ultimate arbiter of the matter is the voters.
Rather, the principal division was over whether the question of an individual's Justice recusal could be submitted to the Court as a whole. Chief Justice Abrahamson and Justices Bradley and Crooks wanted more briefing on the issue but it seems fairly evident that they believe that a majority of the justices considering the issue can force a fellow Justice off a case if they believe (or are willing to say) that there is either a statutory or constitutional requirement for that Justice to recuse herself.
Justices Prosser, Roggensack and Ziegler disagreed. They believe that the only issue before the Court is whether the justice at who a recusal motion is directed has given it the proper considertation. They went on to conclude that Justice Gableman had done so and made it clear that they thought Allen's motion was pretty weak tea.
These latter group of Justices are pretty clearly concerned about judge shopping and frustration of the will of the voters. Recusal based on generalized allegations of bias against a broad class of litigants defined in a way that is not inextricable from judicial and legal philosophy would open a Pandora's Box filled with opportunities for lawyers to sprawl litigation in an attempt to manipulate the system.
This is the reason that Justices Prosser, Roggensack and Ziegler wanted the Court to act more quickly than it did. They believed that the repeated recusal motions and cheerleading for them in the Public Defender's office, on the blogs and in the press was undermining public confidence in the Court and putting undue political pressure on some Justices.
As I have blogged before, I believe that the Gableman ad on Rueben Mitchell was a bad thing. I said it before the election and, in fact, my criticism was cited in at least one of the briefs filed by Rob Henak in support of recusal. But I don't think that Justice Gableman is required to recuse himself because of those and other ads or the comments made by lawyer offering his interpretation of the ad. As I have said, "tough on crime" campaigning is quite common in judicial campaigns. Almost all political advertising is oversimplified and much of it is unfair and misleading. Beyond that, the problem with the ad is not that it demonstrates Justice Gableman's "bias" against criminal defendants.
But, to the question at hand, I am skeptical that there is any judicially manageable standard for policing campaign speech through mandated recusal. This is particularly so when the allegation of bias is not on some basis (e.g, race) wholly unrelated to judicial and legal philosophy. Some judges have less expansive views of the rights of criminal defendants than others. That was the case in the race between Justices Gableman and Butler. It seems to me that, if we are going to elect judges, then candidates are entitled to address those differences. While I don't believe that the Mitchell ad was an appropriate way to do that, I don't think the remedy is that Justice Gableman should never sit on criminal cases.
The fact of the matter is that Justice Gableman does not have a record of "never" ruling in favor of criminal defendants - even those accused of heinous crimes. (Indeed, the Greater Wisconsin Committee ran ads accusing him of being soft on sex offenders.)But he is almost certainly a tougher justice for defendants than some other members of the Court and that should help us see the problem.
An aggressive regime of mandatory recusal is going to be seen as - in fact is likely to be - an effort to judge shop. In the context of an elected Supreme Court in which certain indivuals are selected by the voters to be the final judicial arbiters of Wisconsin law, that is extremely problematic.
I suspect that I'll get commenters again emphasizing what was wrong with the Gableman ad. They are essentially arguing for an approach somewhat akin to Justice Potter Stewart's standard for identifying obscenity. They know it when they see it and they are sure they have seen it. I am not completely dismissive of that. But when the question is as politically charged as it is here, such a rule will to often come down - or appear to come down - to who has the votes to "see" an ad in a way that will change the composition of the Court and, perhaps, the outcome of a case.
None of this is intended to endorse or excuse misleading or inaccurate campaign ads. But, as a general matter, the remedy for bad speech is good speech and the ultimate arbiter of the matter is the voters.
Sunday, February 14, 2010
Songs for Valentine's Day
From Randy Newman's work of genius Rednecks (1974)
I'm drunk right now baby/but I've got to be/I never could tell you what you mean to me.
From one of Springsteen's many works of genius, in this case, Born To Run (1975)
Waste your summer/praying in vain/for a savior to rise from this streets
U2's "One" and then pace The Righteous Brothers pace Todd Duncan (for the 1955 film Unchained)
we get to carry each other
lonely rivers sigh 'wait for me, wait for me
The incomparable Beth Hart wants to know if she is the one. (The video may not be safe for everyone's work.)
just tell me you love me baby/even if its a lie
Chrissie Hynde wonders what's wrong.
Shut the light/go away/full of grace/you cover your face
I'm drunk right now baby/but I've got to be/I never could tell you what you mean to me.
From one of Springsteen's many works of genius, in this case, Born To Run (1975)
Waste your summer/praying in vain/for a savior to rise from this streets
U2's "One" and then pace The Righteous Brothers pace Todd Duncan (for the 1955 film Unchained)
we get to carry each other
lonely rivers sigh 'wait for me, wait for me
The incomparable Beth Hart wants to know if she is the one. (The video may not be safe for everyone's work.)
just tell me you love me baby/even if its a lie
Chrissie Hynde wonders what's wrong.
Shut the light/go away/full of grace/you cover your face
Tuesday, February 09, 2010
She wrote on her hand.
My son used to do this and it bothered me. Maybe he still does but, as an adult, he just makes sure I don't know. There is something about it that strikes me as too casual. Perhaps I'm just a bit of a dualist and this integrates mind and body too much. I'd be willing to say it's because I am older but my wife says she used to do it when she was young. At the time, she was way cooler than me so I have nothing to say.
But please. It may well be that Sarah Palin is not ready to run for President, but the fact that she wanted to list a few talking points is not one of them. Sometimes, in preparing for class, I'll write down four topics. It's not because I can't remember them or don't understand them. It's a way to remind myself that this is what I want to emphasize and to avoid getting carried off message. Maybe I'll look at them in the course of a class. Most often, I won't. But writing them down somehow - or at least I believe - makes it less likely that I'll forget something.
These four points - believe me - are not going to be profound. They'll be pretty general. They are really cues for whatever spiel I have that lies behind them.
So, really, the point is not what was on her palm, but what she had to say.
But please. It may well be that Sarah Palin is not ready to run for President, but the fact that she wanted to list a few talking points is not one of them. Sometimes, in preparing for class, I'll write down four topics. It's not because I can't remember them or don't understand them. It's a way to remind myself that this is what I want to emphasize and to avoid getting carried off message. Maybe I'll look at them in the course of a class. Most often, I won't. But writing them down somehow - or at least I believe - makes it less likely that I'll forget something.
These four points - believe me - are not going to be profound. They'll be pretty general. They are really cues for whatever spiel I have that lies behind them.
So, really, the point is not what was on her palm, but what she had to say.
Sunday, February 07, 2010
Songs for Super Bowl Sunday
So we start with a New Orleans song. There are many. I rule out anything related to Katrina. Too easy. One the best New Orleans songs is "House of the Rising Son." I've done some versions of that before, but not this tripped out version by Detroit's one-hit wonders Frigid Pink.
But we can't forget Katrina and we should acknowledge the Queen of Gulf Coast Blues, here singing Randy Newman's great "Louisiana 1927" at a Katrina benefit.
Indiana songs are harder to come by. I could do "The Banks of the Wabash" or "Down Home Again in Indiana. Or - for those of you of a certain age - I can do this.
But I should also pick a good song.
For the Saints.
For the Colts
And even for the old Colts
But we can't forget Katrina and we should acknowledge the Queen of Gulf Coast Blues, here singing Randy Newman's great "Louisiana 1927" at a Katrina benefit.
Indiana songs are harder to come by. I could do "The Banks of the Wabash" or "Down Home Again in Indiana. Or - for those of you of a certain age - I can do this.
But I should also pick a good song.
For the Saints.
For the Colts
And even for the old Colts
Law Lords to JFS: You're Not So Free
There has been a fair amount of commentary regarding a decision of the Supreme Court of the United Kingdom (formerly the Lords of Appeal in Ordinary and part of the House of Lords) in a matter called R (on application of E) v. Governing Board of JFS.
The case involved the desire of a man referred to only as E to have his son, M, admitted to London's prestigious Jewish Free School. There are many more applicants than spaces in the school and it gives preference to children who are recognized as Jewish either by the rule of matrilineal descent derived from Deuteronmomy 7:3-4 ("... neither shall his daughter take on to thy son/For they shall turn thy son away from following me") or by an Orthodox conversion (i.e., one recognized by the Office of Chief Rabbi of the United Hebrew Congregation of the Commonwealth).
E is Jewish but M's mother is a former Roman Catholic whose conversion was supervised by a Reform rabbi, so was not recognized by the OCR.
M was denied admission and E sued, arguing that the preference violated the Racial Relations Act of 1976 which forbids discrimination on the basis of ethnicity. Is that what happened?
A 5-4 majority of the Justices (formerly the Law Lords) said that it was. The matrilineal test is, the majority said, a test based on ethnicity and, therefore, unlawful.
The opinion has drawn a great deal of criticism. Some of it is related to the sensitivity of a court decision that would provide fodder for the old canard that "Zionism is racism" although the Court - particularly in a concurrence by Lady Hale - went to some length to say that they were not accusing JFS of racism. This aspect was emphasized by those who see an increase in anti-semitism in the UK and its foreign policy drifting away from support of Israel. While perhaps (unintentionally) demonstrating Godwin's Law, the Telegraph chillingly paraphrased (maybe)Hermann Göring in observing that a modern liberal democracy has now announced "We decide who is a Jew."
But most of the criticism focuses on whether the Court had improperly taken upon itself to resolve a religious question. There are parallels with American constitutional practice. Putting aside statutory exemptions, our basic free exercise doctrine upholds neutral laws of general applicability even if they burden religious practice. (I should note that not all state constitutional doctrine is this forgiving and there have been both federal and state statutory protection of free exercise that call for more exacting scrutiny.)
Part of the rationale for such a rule is that it avoids the need for judicial scrutiny of every state law claimed to burden some claimed religious practice or obligation - claims that, depending on your point of view, are limited only (or either) by the human imagination or the inscrutability of God. In other words, not limited at all.
Courts generally seek to avoid examining the authenticity and legitimacy of a claimed religious practice. Although it is not the categorical prohibition that is sometimes claimed to be, the notion is that courts ought not to settle religious controversies and ought not to to be in the business of evaluating religious doctrine.
The JFS decision could be seen as consistent with that regime. The Court did not resolve controversies within Judaism about Jewish identity. It simply said that whatever test is chosen cannot be an ethnic or racial test. This undoubtedly burdens religious practice but maybe that is the price we have to pay for keeping the free exercise clause from turning into a license for unbounded claims of constitutional liberty.
That view has plenty of critics (I'm one of them) but here its application is not so easy. Was this an ethnic test? To say it is arguably ignores not only its religious provenance but it religious, rather than racial, rationale. If the rule of matrilineal descent is truly drawn from Deuteronomy, the idea seems to be a religiously based counsel against marrying outside of the faith not because of concerns for racial purity or ethnic identity, but for religious reasons - "they shall turn thy son away from following me."
That this is a religious concern is demonstrated by the fact that is has a religious exception. Thy son can take on to his daughter if his daughter undergoes a proper conversion. What constitutes a proper conversion seems to be a matter of religious controversy and doctrine. It suffices to say, that in the eyes of the JFS, the former Mrs. E did not have one. Given the notion - traditionally accepted by Christians as well as Jews - that God's covenant with the Jews was with the Jewish nation rather than individuals who may or may not choose to accept it, the need for some definition of identity seems obvious.
I understand that someone may spin a hypothetical regarding some Aryan religion used to exclude nonwhites from a school. That's what makes this a hard case. It's what may illustrate the way in which the idea that religious controversies and precepts ought to be entirely free from judicial scrutiny is limited.
But was this a hard case that made bad law? Or was bad law avoided with an unsavory result?
Cross posted at Marquette University Law School Faculty Blog. (You can find a link to the decision there.)
The case involved the desire of a man referred to only as E to have his son, M, admitted to London's prestigious Jewish Free School. There are many more applicants than spaces in the school and it gives preference to children who are recognized as Jewish either by the rule of matrilineal descent derived from Deuteronmomy 7:3-4 ("... neither shall his daughter take on to thy son/For they shall turn thy son away from following me") or by an Orthodox conversion (i.e., one recognized by the Office of Chief Rabbi of the United Hebrew Congregation of the Commonwealth).
E is Jewish but M's mother is a former Roman Catholic whose conversion was supervised by a Reform rabbi, so was not recognized by the OCR.
M was denied admission and E sued, arguing that the preference violated the Racial Relations Act of 1976 which forbids discrimination on the basis of ethnicity. Is that what happened?
A 5-4 majority of the Justices (formerly the Law Lords) said that it was. The matrilineal test is, the majority said, a test based on ethnicity and, therefore, unlawful.
The opinion has drawn a great deal of criticism. Some of it is related to the sensitivity of a court decision that would provide fodder for the old canard that "Zionism is racism" although the Court - particularly in a concurrence by Lady Hale - went to some length to say that they were not accusing JFS of racism. This aspect was emphasized by those who see an increase in anti-semitism in the UK and its foreign policy drifting away from support of Israel. While perhaps (unintentionally) demonstrating Godwin's Law, the Telegraph chillingly paraphrased (maybe)Hermann Göring in observing that a modern liberal democracy has now announced "We decide who is a Jew."
But most of the criticism focuses on whether the Court had improperly taken upon itself to resolve a religious question. There are parallels with American constitutional practice. Putting aside statutory exemptions, our basic free exercise doctrine upholds neutral laws of general applicability even if they burden religious practice. (I should note that not all state constitutional doctrine is this forgiving and there have been both federal and state statutory protection of free exercise that call for more exacting scrutiny.)
Part of the rationale for such a rule is that it avoids the need for judicial scrutiny of every state law claimed to burden some claimed religious practice or obligation - claims that, depending on your point of view, are limited only (or either) by the human imagination or the inscrutability of God. In other words, not limited at all.
Courts generally seek to avoid examining the authenticity and legitimacy of a claimed religious practice. Although it is not the categorical prohibition that is sometimes claimed to be, the notion is that courts ought not to settle religious controversies and ought not to to be in the business of evaluating religious doctrine.
The JFS decision could be seen as consistent with that regime. The Court did not resolve controversies within Judaism about Jewish identity. It simply said that whatever test is chosen cannot be an ethnic or racial test. This undoubtedly burdens religious practice but maybe that is the price we have to pay for keeping the free exercise clause from turning into a license for unbounded claims of constitutional liberty.
That view has plenty of critics (I'm one of them) but here its application is not so easy. Was this an ethnic test? To say it is arguably ignores not only its religious provenance but it religious, rather than racial, rationale. If the rule of matrilineal descent is truly drawn from Deuteronomy, the idea seems to be a religiously based counsel against marrying outside of the faith not because of concerns for racial purity or ethnic identity, but for religious reasons - "they shall turn thy son away from following me."
That this is a religious concern is demonstrated by the fact that is has a religious exception. Thy son can take on to his daughter if his daughter undergoes a proper conversion. What constitutes a proper conversion seems to be a matter of religious controversy and doctrine. It suffices to say, that in the eyes of the JFS, the former Mrs. E did not have one. Given the notion - traditionally accepted by Christians as well as Jews - that God's covenant with the Jews was with the Jewish nation rather than individuals who may or may not choose to accept it, the need for some definition of identity seems obvious.
I understand that someone may spin a hypothetical regarding some Aryan religion used to exclude nonwhites from a school. That's what makes this a hard case. It's what may illustrate the way in which the idea that religious controversies and precepts ought to be entirely free from judicial scrutiny is limited.
But was this a hard case that made bad law? Or was bad law avoided with an unsavory result?
Cross posted at Marquette University Law School Faculty Blog. (You can find a link to the decision there.)
Wednesday, February 03, 2010
The Internet Is Forever Even If Some Folks Are Slow On The Uptake
I was somewhat taken aback by a column posted by Milwaukee Magazine's Bruce Murphy claiming that I had a "ho hum" attitude toward the cost of higher education and levels of student debt while "making my living" off of students "sinking into ever increasing pits of debt." He offered me as an example of "apathy about this issue among older folks who no longer face the problem." He seemed upset that I chided him for reporting on the subject two years ago, saying that it must have been a slow news day.
I, quite frankly, couldn't recall writing anything that could have been interpreted in that way and the link that Murphy provided to his readers was to a post on this blog referencing a column that I wrote in Sunday's Milwaukee Journal Sentinel on the Supreme Court's Citizens United decision - fairly far removed from the cost of higher education and student debt levels. In fact, the only thing I recall ever writing about student debt levels was an acknowledgment of Joseph Zilber's wonderful $ 30 million dollar gift to Marquette University Law School, $ 25 million of which was to go to student scholarships. I wrote that student indebtedness threatens to distort student's career choices in ways that may not be conducive to their long term happiness. Mr. Zilber's gift, which is very material with respect to a student body of our size, is one of the more significant things ever to grace the Milwaukee legal community.
But after searching my blog, I found the distant insult that apparently has apparently been festering for all this time. I'll link to it because Bruce, apparently couldn't be bothered, preferring that his readers restrict themselves to his interpretation of what I said.
In October of 2007, Mr. Murphy wrote a column declaring college tuition in our state a "scandal" because tuition at Wisconsin's public universities had risen to 4% - or $ 228 - above the national average. He blamed the scandal on declining state support.
I suggested - way back then - that this could hardly be considered a "scandal" and that one might just as well argue that, in a state imposing above average taxes on below average incomes, the real problem was, not the posited weakness of state support, but the level of tuition in light of the tax burden imposed on Wisconsin residents. In other words, a state that imposes above average taxes ought not be offering (slightly) below average support for higher education.
In Murphy's World, this failure to recognize "4 %" as scandal apparently constitutes indifference to the plight of students. It's taking a "ho-hum" attitude toward people with whom I, and not he, interact daily and, for whom, I can't help but to care greatly. I'll admit that this annoys me. They are wonderful young (and, occasionally, not so young) people who tend to make me feel very optimistic about who will be in charge when I am in my dotage.
Even more bizarrely, it's something that must have bothered him so much that he remembers it twenty seven months later - long after I had forgotten the matter.
Mr. Murphy goes on to talk about the debt levels of undergraduates at Marquette and speculates that law school graduates must have even more. On that last point, he is correct. Our tuition is lower - by a lot more than 4% - than the average for private law schools. It is less - by a lot more than 4% - than out of state tuition at the University of Wisconsin Law School. But its still a lot of money. Legal education is expensive. It can be a financially sound investment. In fact, for students that land jobs at large law firms and earn more - a lot more - in their first year than my law school salary, it's a spectacularly good investment. I worked for a firm like that for quite some time and was paid quite well.
But student debt is an issue that requires attention. It's not clear, however, that additional subsidies to higher education help much. Often, it seems that they simply push the demand curve up and mostly increase university revenue. Nor is it clear that the problem with higher education costs is in-state tuition at public universities. At the time - those many months ago when I wrote the offending two sentence that bother Mr. Murphy so much today, I had just finished paying tuition at UWM for my son who had graduated in June 2007. The University of Wisconsin system is still, for the most part, a pretty good bargain.
I, quite frankly, couldn't recall writing anything that could have been interpreted in that way and the link that Murphy provided to his readers was to a post on this blog referencing a column that I wrote in Sunday's Milwaukee Journal Sentinel on the Supreme Court's Citizens United decision - fairly far removed from the cost of higher education and student debt levels. In fact, the only thing I recall ever writing about student debt levels was an acknowledgment of Joseph Zilber's wonderful $ 30 million dollar gift to Marquette University Law School, $ 25 million of which was to go to student scholarships. I wrote that student indebtedness threatens to distort student's career choices in ways that may not be conducive to their long term happiness. Mr. Zilber's gift, which is very material with respect to a student body of our size, is one of the more significant things ever to grace the Milwaukee legal community.
But after searching my blog, I found the distant insult that apparently has apparently been festering for all this time. I'll link to it because Bruce, apparently couldn't be bothered, preferring that his readers restrict themselves to his interpretation of what I said.
In October of 2007, Mr. Murphy wrote a column declaring college tuition in our state a "scandal" because tuition at Wisconsin's public universities had risen to 4% - or $ 228 - above the national average. He blamed the scandal on declining state support.
I suggested - way back then - that this could hardly be considered a "scandal" and that one might just as well argue that, in a state imposing above average taxes on below average incomes, the real problem was, not the posited weakness of state support, but the level of tuition in light of the tax burden imposed on Wisconsin residents. In other words, a state that imposes above average taxes ought not be offering (slightly) below average support for higher education.
In Murphy's World, this failure to recognize "4 %" as scandal apparently constitutes indifference to the plight of students. It's taking a "ho-hum" attitude toward people with whom I, and not he, interact daily and, for whom, I can't help but to care greatly. I'll admit that this annoys me. They are wonderful young (and, occasionally, not so young) people who tend to make me feel very optimistic about who will be in charge when I am in my dotage.
Even more bizarrely, it's something that must have bothered him so much that he remembers it twenty seven months later - long after I had forgotten the matter.
Mr. Murphy goes on to talk about the debt levels of undergraduates at Marquette and speculates that law school graduates must have even more. On that last point, he is correct. Our tuition is lower - by a lot more than 4% - than the average for private law schools. It is less - by a lot more than 4% - than out of state tuition at the University of Wisconsin Law School. But its still a lot of money. Legal education is expensive. It can be a financially sound investment. In fact, for students that land jobs at large law firms and earn more - a lot more - in their first year than my law school salary, it's a spectacularly good investment. I worked for a firm like that for quite some time and was paid quite well.
But student debt is an issue that requires attention. It's not clear, however, that additional subsidies to higher education help much. Often, it seems that they simply push the demand curve up and mostly increase university revenue. Nor is it clear that the problem with higher education costs is in-state tuition at public universities. At the time - those many months ago when I wrote the offending two sentence that bother Mr. Murphy so much today, I had just finished paying tuition at UWM for my son who had graduated in June 2007. The University of Wisconsin system is still, for the most part, a pretty good bargain.
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