tag:blogger.com,1999:blog-20692053.post8956478681199426905..comments2023-11-03T06:35:48.003-05:00Comments on Shark and Shepherd: One Wisconsin Now: Sun rises in the east!!!Rick Esenberghttp://www.blogger.com/profile/07280070509167910367noreply@blogger.comBlogger37125tag:blogger.com,1999:blog-20692053.post-71635268163082522392007-03-29T12:36:00.000-05:002007-03-29T12:36:00.000-05:00The reference to the constitution respirating was ...The reference to the constitution respirating was actually to Linda Clifford's recent statements. I am fairly certain, in any event, that should the miscegenation statutes return, both women would find them unconstitutional.<BR/><BR/>While I know you are not referring literally to miscegenation, if your point is that you want judges who will read meanings into the law that the text will not support because contemporary conditions "demand" it, we disagree. If you believe that judges are the people who are annointed to make sure that our laws reflect contemporary conditions, we differ.<BR/><BR/>I don't think that compels me to say that the pre-1954 interpretation of the 14th amendment was correct or should not be overturned.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-33915264934096956532007-03-28T08:19:00.000-05:002007-03-28T08:19:00.000-05:00I used the term "breathe" because I know that gets...I used the term "breathe" because I know that gets you in a bundle. But the point remains that the text never changed, just the interpretation of the text. And if you think societal changes had little to nothing to do with it, you're kidding yourself. Whether you want to stick to the "100 years of court interpretation by numerous courts was wrong," or the more likely "the court was affected by the experience of the country over 100 years of gradual understanding," the fact is that there was change and growth that none of us (hopefully) would roll back. And that includes politicvians.The court did its job in waitng, waiting, waiting for the legislature to recognize the need to change the law. When the chicken-livered politicians did not, the court finally had to act.<BR/><BR/>So back to the point, do you think Ziegler (assuming she does not get suspended) does not overturn the miscegenation laws and Clifford does? If so, who should one vote for? I say the one courageous enough to be honest about how law actually develops. And no, I have zippo connection to CLifford.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-44825418769265760692007-03-27T19:19:00.000-05:002007-03-27T19:19:00.000-05:00I do wonder, as did Justice Harlan in Plessy, how ...I do wonder, as did Justice Harlan in Plessy, how a constitutional command of racial equality was so long avoided. My best guess is, not that society changed so that the segregation that was consistent with the amendment in 1891 was now inconsistent with it in 1954, but that the court had sufficiently discarded its racial blinders to see what the textual principle required.<BR/><BR/>You can, I suppose, say that this means that they let the constitution breathe, but I find that type of anthropomorphizing of the constitution to be, at best, meaningless and, at worst, dangerous. If the text has no determinate meaning and we may read it into it whatever we think "social, political and cultural changes" require, then we are no longer interpreting the law. Instead, we are enshrining our own personal preferences or, and it generally amounts to the same thing, whatever happens to be the legal elite's flavor of the day.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-56455453791914769892007-03-27T17:05:00.000-05:002007-03-27T17:05:00.000-05:00So the court was getting the 14th Amendment wrong ...So the court was getting the 14th Amendment wrong for 100 years? Do you suppose there were "textualists" who wrongly interpreted it during that time or do you suppose it is more likely that over time American culture changed to recognize that disparate treatment of races was unconstitutional? The evidence, of course, is that the court ultimately had to intervene where a co-equal branch of state government refused to acknowledge each person's inherent equality in light of the massive civil rights changes that took place between the passing of the amendment and the state of VA's criminal prosecution for miscegenation. <BR/><BR/>In other words, a law that was repeatedly interpreted as constitutional (as people in VA were criminally convicted of marrying others from anothe rrace or leaving the state to get married to someone of another race) even after the 14th Amendment was passed, gradually was considered unconstittuional. You can't tell me (at least not with a straight face) that this was not an example of "divine textualism" under which suddenly the court comprehended the true text of th eamendmnet. It is a case in which over time, when the amendment was allowed to "breathe" in light of new social, political, and cultural developments, that the court decided nthe law violated the constitution.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-55934527732795224202007-03-27T14:21:00.000-05:002007-03-27T14:21:00.000-05:00It was out there for 100 years and as illustrated ...It was out there for 100 years and as illustrated by Justice Harlan's dissent in Plessy, the court was getting it wrong. I am not saying that there is no such thing as precedent that is wrong nor do I believe that there are not new circumstances to which textual principles need to be applied. My argument is that the supreme court needs to base its decisions on the constitutional text and that text has a particular meaning. Just how that meaning is to be applied in any given case may not be self-evident but answering that question - and not "giving society what it needs" - is what the court should be about.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-49065660947747798382007-03-27T13:23:00.000-05:002007-03-27T13:23:00.000-05:00Meant to say "your legal arguments aren't cutting ...Meant to say "your legal arguments aren't cutting it."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-44248662223394388962007-03-27T12:24:00.000-05:002007-03-27T12:24:00.000-05:00Re: Loving v. VA:But Rick, You are making the exac...Re: Loving v. VA:<BR/><BR/>But Rick, <BR/>You are making the exact point that CLifford makes, aren't you? The 14th Amendment is out there 100 years before Loving. For 100 years no one was willing to say enough is enough, we no longer treat Black people like inferior citizens or God forbid, a white woman wants to marry a Black man. So a court, 100 years after passing the 14th amendment, had the guts to interpret the constitution.<BR/><BR/>So yes, Loving v. VA is an excellent example of what I expect from a supreme court,and I believe is what anyone HONEST about the role of a supreme court would admit to.<BR/><BR/>Are you ever gpoing to admit that your support is purely political, because your legal arguments are cutting it?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-75459889038215583942007-03-27T10:46:00.000-05:002007-03-27T10:46:00.000-05:00Way to go, Rick. How unfortunate that we had US Su...<I>Way to go, Rick. How unfortunate that we had US Supreme Court Justices in the 1960's who struck down the law which prevented interracial marriage. If it were not for that decision, we could have protected the "purity" of the white race for another generation longer!</I><BR/><BR/>Not a particularly good point. The case refer to, Loving v. Virginia, was rooted in a specific constitutional text (the 14th Amendment) passed in the aftermath of the civil war and the abolition of slavery. One needn't animate the constitution to get that result, one need only read it.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-20674899913105612592007-03-27T09:37:00.000-05:002007-03-27T09:37:00.000-05:00There's also an element of irony in decrying Ms. C...There's also an element of irony in decrying Ms. Clifford's allegedly freewheeling approach to constitutional construction whilst defending Judge Ziegler's application of the "gut check" doctrine when faced with the plain text of an ethical guideline. <BR/><BR/>Ziegler is no strict constructionist when it comes to potential conflicts of interest, evidently.illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-17564329057196921542007-03-27T05:47:00.000-05:002007-03-27T05:47:00.000-05:00"I have to weigh her error against someone whose c..."I have to weigh her error against someone whose conception of what a judge ought to do (allow the constitution to "breathe" to give society what she thinks it needs) is fundamentally at odds with our constitution's separation of powers. A person with that view of things can be - and I am sure that Linda Clifford is - intelligent and honest and well intentioned - yet make a complete and utter mess of the law. You can try to reduce that to politics and ideology, but it's not."<BR/><BR/>Way to go, Rick. How unfortunate that we had US Supreme Court Justices in the 1960's who struck down the law which prevented interracial marriage. If it were not for that decision, we could have protected the "purity" of the white race for another generation longer!<BR/><BR/>(This is tongue in cheek, for the terminally obtuse.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-3639606699638827282007-03-26T17:03:00.000-05:002007-03-26T17:03:00.000-05:00Anon-3 (or maybe 4)Rick,Every justice has to inter...Anon-3 (or maybe 4)<BR/><BR/>Rick,<BR/>Every justice has to interpret the constitution. That is their job. They are an equal branch of the government, and are supposed to act as a check on legislators who may on occasion fall prey to the whims of a small but vociferous group (e.g., Dad29). To act as though the interpretation of the constitution is never remotely impacted by the era in which it is interpreted is foolish and dishonest. Clearly supreme courts of the state and country have on very rare occasions intervened when legislation violates consitutional principles (such as due process and equal rights) that evolve as the culture and country evolve. Such interference should be rare indeed, but is not only permitted, but required.<BR/><BR/>That is all Clifford has said about this, but from that you have apparently decided she is going to be "activist" to mimic the talking points of the righties. <BR/><BR/>The issue here is that we have a candidate for the highest court in the state who admits using a "gut-check" to many elemental decisions that any judge should know were wrong. To what else is she going to apply the "gut-check?" <BR/><BR/>I agree that you have said 67 or more times that she was wrong to do this. I just think it is such a basic, elemental issue that its violation-dozens and dozens of times, followed by denial and then finally distraction (but never admission) surely disqualifies her to sit on the supreme court. I can't believe that you continue to support someone who is so clearly incompetent versus someone for whom you have leapt to rather dramatic conclusions with little basis other than right wing hysterics planted by those with an agenda. If you can't vote for Clifford, then why not just not vote?<BR/><BR/>Honestly, I am an attorney, and I think to vote for Ziegler as an attorney is a sad commentary on what we accept in the name of cutlure wars. And make no mistake, Rick, that is what you are doing.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-8699194565675760302007-03-26T15:47:00.000-05:002007-03-26T15:47:00.000-05:00BOTTOM LINE: Judge running for Supreme Court viola...BOTTOM LINE: Judge running for Supreme Court violated the State judicial Commission's code of ethics at least 40 times. How can this be excused. If you are making a point about social science methodology fine, OneWisconsin does nto pass a legal journal's peer review. But the only point that can be made about this judge from the record before us is that she does not take the law seriously, at least not when it imposes duties on herself. Anyone who cares about legal ethics must say she is unfit to serve on the Supreme Court AT LEAST UNTIL SHE ADMITS SHE ACTED IMPROPERLY. She can't even bring herself to do that! She's like a little kid who cannot say sorry to her mother when she's been caught with her hand in the cookie jar.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-12093744344465422962007-03-26T13:11:00.000-05:002007-03-26T13:11:00.000-05:00Rick - with the revelation of even more Ziegler co...Rick - with the revelation of even more Ziegler conflicts by One Wisconsin Now, it's time for you to do the right thing. <BR/><BR/>There must be something inside of you that wants to say it but you're afraid. C'mon, tell the world that Ziegler should have withdrawn.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-58641393560621778932007-03-26T09:05:00.000-05:002007-03-26T09:05:00.000-05:00JimI always try to follow your advice. You are, af...Jim<BR/><BR/>I always try to follow your advice. You are, after all, my elder. In this case, I don't really follow it.<BR/><BR/>Jay<BR/><BR/>For the 96th time, I agree that the rule is clear. I am suggesting, however, that the hypothesis that she was out to feather her nest doesn't track and, if it becomes a question of competence, I have to weigh her error against someone whose conception of what a judge ought to do (allow the constitution to "breathe" to give society what she thinks it needs) is fundamentally at odds with our constitution's separation of powers. A person with that view of things can be - and I am sure that Linda Clifford is - intelligent and honest and well intentioned - yet make a complete and utter mess of the law. You can try to reduce that to politics and ideology, but it's notRick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-30807511601160937922007-03-25T23:00:00.000-05:002007-03-25T23:00:00.000-05:00Illusory, if you read all the 'ethics' rules ...An...<I>Illusory, if you read all the 'ethics' rules ...</I><BR/><BR/>And Dad29, if you read my post, I was commenting on the suggestion that Judge Ziegler "did not understand the rule," not that she "failed to follow the letter of the Code."<BR/><BR/>Those are entirely separate concerns.<BR/><BR/>You know what appellate judges do, right? They understand (hopefully) and apply rules, rules often far more complex and subtle than a simple conflict of interest admonition.<BR/><BR/>But hey, if she's a conservative Republican, I guess that's good enough for y'all, "Nietzschean aberrances" notwithstanding.illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-34739135481190821782007-03-25T22:58:00.000-05:002007-03-25T22:58:00.000-05:00This comment has been removed by the author.illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-15423096337969744382007-03-25T21:45:00.000-05:002007-03-25T21:45:00.000-05:00Rick: I am suggesting that she did not understand ...<B>Rick:</B> <I>I am suggesting that she did not understand the rule.</I><BR/><BR/>Perhaps, but the language is remarkably hard to misunderstand, even for decidedly non-legal people like me:<BR/><I>[A] judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish [that . . . t]he judge or the judge's spouse, or a person within the third degree of kinship to either of them, or the spouse of such a person [. . ] is a party to the proceeding or an officer, director or trustee of a party.</I><BR/><BR/>You'd have to try to deliberately misunderstand that. And the year 2000 advisory opinion defining <I>de minimis</I> as holding less $20,000 in stocks is also clear, if non-binding. And she ruled, without conflict notices to the parties, in at least 22 cases where she held greater than $50,000 in stocks. We're not talking sloppy like the papers on my desk; we're talking sloppy like the world's biggest Slip-n-Slide slathered in tapioca pudding.<BR/><BR/><B>Dad29:</B> <I>By the way, for a $280MM (assets) bank, $40K is very much de minimis.</I><BR/><BR/>You do realize that <I>de minimis</I> refers to the <I>judge's</I> stakes in a case, not a particular party's, right? And if we use your logic, Annette Ziegler recused herself from he Wal*Mart case on something much more <I>minimis</I> than the WBSB cases--so why Wal*Mart and not them?Jay Bullockhttps://www.blogger.com/profile/18303687624670151530noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-60450971583119714592007-03-25T20:19:00.000-05:002007-03-25T20:19:00.000-05:00Anony, there actually ARE ways to condense things....Anony, there actually ARE ways to condense things. Those are not within your repertoire, but keep working on it. Someday you'll get there.<BR/><BR/>By the way, for a $280MM (assets) bank, $40K is very much <I>de minimis.</I> You perhaps understand that LESS that $40K is even smaller than <I>de minimis?</I><BR/><BR/>Considering the structure of the Bank (not the traditional share-held, but a mutual), Ziegler's husband's interest is microscopic.<BR/><BR/>Finally, Clifford's remarks (quoted by Rick E.)on what she thinks are the duties of the Supremes speak for themselves. My conclusion that she would 'transvalue' the proper relationship between legislative and judicial branches is not a leap of imagination.<BR/><BR/>But skip the Nietzsche. Just think Adam and Eve. Shorter, but the same lesson.Dad29https://www.blogger.com/profile/08554276286736923821noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-32279773051589036422007-03-25T15:13:00.000-05:002007-03-25T15:13:00.000-05:00Oh, Rick, Rick, Rick;We're all prisoners of our ow...Oh, Rick, Rick, Rick;<BR/>We're all prisoners of our own ideologies from time to time;<BR/>Some friendly, Backstory-pal advice: start with your lawyerly advice, but from the right, and then lead us to your political position.<BR/>Just a thought: it's yer blog.James Rowenhttps://www.blogger.com/profile/10203270946492159686noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-90944175658640232562007-03-25T15:10:00.000-05:002007-03-25T15:10:00.000-05:00This comment has been removed by the author.James Rowenhttps://www.blogger.com/profile/10203270946492159686noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-70616991745443782622007-03-25T14:23:00.000-05:002007-03-25T14:23:00.000-05:00I am not sure how I've backpedaled. I have been sa...I am not sure how I've backpedaled. I have been saying that Ziegler was wrong on the West Bend cases as soon as it was established that she did not disclose her husband's status on non-defaulted cases and I admit that this does not reflect well on her.<BR/><BR/>I have said that is one issue to be balanced when choosing between her and, say, a candidate who wants to let the constitution "breathe" to "give society what it needs." Concern over the latter is not about politics and ideology. It's about the character of our government.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-87888072590267526022007-03-25T10:52:00.000-05:002007-03-25T10:52:00.000-05:00Dad, you provide an example of your lack of intell...Dad, you provide an example of your lack of intellectual integrity. Ziegler's conflicts went way beyond what the judicial commission has long defined as de minimus, something that been reported, say, a dozen times.<BR/><BR/>You will simply say anything to avoid recognizing that your candidate did something wrong (a long list of things, actually).<BR/><BR/>Your ability to sum up one of most complex, difficult philisopher of the last 500 years in a sentence is ridiculous. Did you ever see "A Fish Called Wanda," with Kevin Klein?<BR/><BR/>Anway, you do the same thing with libs as you do with Clifford - you ignore their self-definition, you define them in the most outrageous way and reinvent them to be awful - then you point out that they're awful. Real interesting.<BR/><BR/>You folks attribute some deep and seriously held judicial philosophy to Ziegler because . . . that's what her campaign consultants/WMC are telling you; and the reverse is true of Clifford. <BR/><BR/>You write: "Clifford's judicial philosophy is based on re-writing (or creating) legislation." You or someone like you simply made this nonsense up out of thin air - because the pollsters and the constultants decided it would sell.<BR/><BR/>Dad, despite your fancy, often made-up words you still basically string a couple worn out right-wing slogans together and call is commentary.<BR/><BR/>Don't worry, this kind of empty chatter is not limited to self-proclaimed conservatives.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-72288915402722573642007-03-25T09:56:00.000-05:002007-03-25T09:56:00.000-05:00Illusory, if you read all the 'ethics' rules which...Illusory, if you read all the 'ethics' rules which apply, you'll find the term "de minimis" (or its equivalent) floating around.<BR/><BR/>Z's failure to follow the letter of the Code is a fault, yes. Was it "corrupt"? Not likely. "De Minimis" is written all OVER those decisions.<BR/><BR/>As to Nietzsche: his philosophy began with 'the transvaluations of all values' and migrated through 'the will to power.'<BR/><BR/>I note that Clifford's judicial philosophy is based on re-writing (or creating) legislation--effectively transvaluating values. And to do that requires the power granted the Supremes.<BR/><BR/>Not too hard to follow is it?Dad29https://www.blogger.com/profile/08554276286736923821noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-23570823389632113602007-03-25T07:25:00.000-05:002007-03-25T07:25:00.000-05:00I think it's fascinating how Rick the Right Winger...I think it's fascinating how Rick the Right Winger has been backed into the corner on this and how, to his credit, he has backpeddled a bit. He concedes that Judge Annette broke the rules. For this he deserves credit.<BR/><BR/>This puts him a cut above Chicken Hawk Charlie Sykes, who is congenitally incapable of viewing anyone on the right has having even a minor blemish or anyone on the left of having any remotely redeeming value.<BR/><BR/>But ponder this: If the shoe was on the other foot and it was the "liberal Madison lawyer" in Judge Annette's shoes, this would be a disqualifying offense worthy of time in Taycheedah!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-39978301780291780952007-03-24T22:03:00.000-05:002007-03-24T22:03:00.000-05:00I am suggesting that she did not understand the ru...<I>I am suggesting that she did not understand the rule.</I><BR/><BR/>That's an intriguing defense of Judge Ziegler's failures to disclose, and something of a disturbing proclivity for an aspirant to the Supreme Court, don't you think?illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.com