Recusal and Elections

Over at Right Wisconsin, I have a piece up on the issue of recusal in the state Supreme Court race. Challenger Ed Fallone is trying to make an issue of incumbent Pat Roggensack's support of a rule that a legal campaign contribution or independent expenditure by a party to or attorney in the case does not require recusal.

Of course, an individual judge or justice might decide that, in a particular circumstance, a contribution or expenditure might warrant recusal. The rule that Roggensack supported only makes clear that recusal is not automatically required.

(Roggensack, along with a majority of the court, has also taken the position that the recusal decision is to be left to the individual justice - a practice that is also followed by the United States Supreme Court. But that's a different issue.)

Fallone appears to have said different things about recusal at different times, but has apparently settled on the view that there ought to be some sort of rule requiring automatic recusal - at least for contributions of expenditures over a certain level.

But would he follow that rule himself? He has enjoyed support - in a variety of forms - from persons with an interest in overturning Act 10. Would he recuse himself in a case addressing the constitutionality of that law?

I suspect that answer would be "no." I imagine he would say that, under the circumstances. he believes that he could address the issue fairly and impartially. He would say, that in the context of the case and the circumstances surrounding support of his campaign, he believes that recusal is unwarranted.

In other words, he would avail himself of the discretion that the rule supported by Roggensack affords each justice. If I am wrong, then he should be willing to say so. If he believes that contributions are naturally corrupting or automatically give rise to the appearance of bias, then shouldn't recuse himself whether or not there is a rule requiring it or without regard to what other justices might do?
Of course, he won't and, in a sense,  I don't blame him. An automatic recusal rule would make it impossible for people like Ed Fallone to ever challenge an incumbent judge or for voters to hold elected judges accountable. If campaign contributions would render a judge unable to sit on cases that are important to the contributor, then those contributions would not be forthcoming.

While it is easy to regard this as a good thing in the case of a private party interested in the outcome of a private dispute, that is not the typical circumstance in supreme court elections. Contributions tend to come from groups and organizations interested in electing judges with a particular philosophy. To adopt a rule that would require recusal in any case in which these groups are interested would shut down the process. (A rule that was limited to contributions that come from private parties who are litigants in the case would be largely meaningless. None of our recent recusal controversies involve such a dispute and the amount that a party can contribute will be immaterial in a contested statewide race.)
Some people would count that a good thing - being relatively immune from challenge would certainly foster judicial independence. But, in Wisconsin, where judges have always been elected, we have struck a different balance, trusting in the voters to evaluate judicial candidates and incumbents.If that balance is the correct one, then rules which make elections impossible or futile should be regarded as suspect.

If you are interested in this topic, I wrote about it at length here.

Cross posted at Purple Wisconsin

Snitching and Recusal: A very bad analogy.

My fellow Purple Wisconsin blogger Alex Runner is not, as far as I can tell, a lawyer. He seems like a bright guy and I enjoy his writing. But in his post today about Justice Pat Roggensack and her response to the complaint against Justice David Prosser, his lack of a legal education shows. With all due respect, he completely misunderstands the issues.

Alex compares the recusal of certain Justices to the "no snitching" culture which residents of our central cities struggle against. "They're not snitching," he writes. (Italics in the original.) We will, he laments, never know what really happened.

Wrong. Utterly long.

They all "snitched."

They all made statements to law enforcement officials. If Alex is interested, he can read them on line. Properly stated, Alex' problem is not that they refused to "snitch" but that he apparently doesn't believe - or like - what a majority of them had to say. Based on those statements, law enforcement officials declined to file charges. So "we know," based on that decision, that the responsible law enforcement agencies did not think that was possible to prove that anyone assaulted anyone else.

The Judicial Commission did file a disciplinary complaint with the Court. Because those justices who were witnesses to the event have recused themselves, the Court can't act on that complaint. (The Consitution requires four justices to constitute a quorum.) Alex goes on to say that the Court should have referred the matter to the Court of Appeals which he seems to think could have addressed the issue. He chides the recusing justices for not "allowing an outside, objective body to examine what transpired." To support his position, he cites another non-lawyer, Milwaukee Magazine editor Bruce Murphy.

Here are the main problems with Alex's critique.

First, if a majority of the Court recuses itself, then it cannot act to refer the matter to the Court of Appeals - whether one regards such a referral as pro forma or not. While some argue that a referring order is not necessary, the presiding judge of the Court of Appeals does not think so and it is he who has refused to appoint a panel to hear the case.

Second, even if a panel - Alex's "outside, objective body" - was formed, it could not decide the case. Under current law, only the Supreme Court itself can impose judicial discipline. If a quorum cannot sit on the case, then it can't be decided. One can argue that the law should be otherwise, but it's not. I'm sure that Alex, who so admirably promotes lawful behavior in his neighborhood, would agree that we cannot ignore the law now because it has become inconvenient.

Third, comparing the decision to recuse to a refusal to "snitch" trivializes the important - and difficult - ethical issues which each justice had to evaluate in deciding whether or not to recuse. The general rule is that a judge cannot sit on a case in which he or she is a witness. That prohibition is expressed both in statute and in the Code of Judicial Conduct.

One does not have to be a lawyer to understand why this is so. It is impossible to impartially evaluate your own testimony. The witness statements given by the Justices (i.e., what they said when they "snitched" to local law enforcement) reflect differing perceptions of the events. Deciding the case will require determining which of these differing perceptions most accurately captures what happened. It is humanly impossible to put aside what you believe that you saw and impartially evaluate your own version of events against the statements of others.

Nevertheless, some argue that the normal rule requiring recusal should be put aside pursuant to something called the "Doctrine of Necessity." This is the concept - rarely employed - that normal recusal rules can be disregarded if it is "necessary" to do so and there are sufficient assurances that normal precepts of due process and impartiality can be preserved. (My own analysis of the matter can be found here, here and here, including my suggestion as to how the Judicial Commission could more fruitfully address the matter.)

In a written opinion, Justice Roggensack considered the Doctrine of Necessity and explained why she believed that it could not be applied in this case. Perhaps Alex has carefully reviewed her opinion, read the cases that she cites and come to the conclusion that he disagrees with her legal analysis.

Perhaps he has, but a trite and facile comparison of her careful and thorough legal reasoning to "no snitchin'" does not suggest so.

I suppose one can argue that Justice Roggensack and her colleagues should have found a way around the normal rule of recusal and heard the case. Had they done so - given the content of the statements each of them gave to the police - it is almost certain that Justice Prosser would have been exonerated. What they say they saw simply does not warrant discipline.

But it would be hard to make an argument that the way in which they have addressed a difficult and unusual legal problem is much of a reason to unseat an incumbent Justice. "Yes to the Doctrine of Necessity" would not be much of a campaign slogan.

Alex concludes by saying that those who value "value ethics, transparency, rule of law, justice" ought to vote for Ed Fallone implying that Justice Roggensack does not believe in these things.

I read Wisconsin supreme court decisions for a living. I can assure Alex Runner that Pat Roggensack is not the monster he seems to think she is. She is a smart and conscientious jurist - as are her colleagues. We can disagree about the law without attacking the good faith of those we disagree with.

It could be that there are people who believe that there are "process" reasons to unseat Justice Roggensack. My own sense is that it takes an almost wilful misunderstanding of the issues to do so. I think that most folks who are voting for Ed Fallone are doing so because they want to move the Court to the left.

That is certainly their right, but a little candor about it - and a bit less character assassination - would be refreshing.

Cross posted at Purple Wisconsin.

Not so fast on new contracts

The MPS teachers' union wants to negotiate a new contract. They think that contract need not be compliant with Act 10 because of a Dane County circuit court decision holding that the law is unconstitutional. As I have written before, that decision does not create a window of opportunity to violate Act 10. Whether or not the union will ultimately be able to avoid Act 10 will depend on the decision of a higher court - almost certainly the Wisconsin Supreme Court.

If that court concludes that the Dane County circuit court was wrong - a conclusion that is highly likely - then any new contract that violates Act 10 will be unlawful and presumably void.

Moreover, the fact that a single circuit court judge in Madison thinks the Act is unconstitutional will have exactly no impact on the deliberation of higher courts. Lower court decisions are entitled to deference when they involve factual findings or the exercise of discretion. The decision holding Act 10 to be unconstitutional involved neither and is subjected, as lawyers like to say, to de novo

Negotiating a new contract would be even more problematic than that. The attorney for the plaintiffs in the Dane County case seems to think that a municipality that does not agree to negotiate terms that are forbidden by Act 10 would be engaged in an unfair labor practice. In his view, the Wisconsin Employment Relations Commission - to whom such charges are initially directed - would be bound by the circuit court decision because its members were defendants in the case.

But there are at least two problems with his argument. First, it us unclear that WERC, in its capacity as a tribunal, can be bound by a declaratory judgment in adjudicating the rights of a party who is not itself bound by that judgment.  For example, if the Mequon-Thiensville School District is charged with an unfair labor practice for complying with Act 10, it was not a party to the case finding it to be unconstitutional. The question is one that only a civil procedure professor (and I've been one of those) could love.

But there is a more fundamental problem. WERC's decisions are not final. They may be reviewed by a circuit court. That court will not be bound by the Dane County decision which - and this is black letter law - has no precedential value. A reviewing court need not follow it.

The future of Act 10 will be decided by the Wisconsin Supreme Court. If, as I think is almost certain to happen, the law is upheld then entering into agreements that are not permitted by it will create one hot mess. It will invite s a lawsuit in the short run and, in all likelihood, a tangled set of illegal obligations and payments to undo in the longer run.

 

Cross posted at Purple Wisconsin.

A question about voter identification

In light of yesterday's filing of voting fraud charges, I have the following question for opponents of voter ID.
Assume that the current law was amended to provide free copies of birth certificates. Assume that it also authorized a series of "registration weekends" in which DMV offices would be open for those who cannot make it during normal hours. Perhaps we could even set up a couple extra "outreach" stations during these weekends at which a DMV employee would be availbale to issue IDs. Finally, if someone was still unable to get an id card, they could still vote if they signed an affidavit - under penalty of perjury - explaining their inability to vote. Their photo would be taken at the time they signed the affidavit and filing a false affidavit would be a felony.
Would you still oppose voter identification laws?

Cross posted at Purple Wisconsin.

A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.

John Doe RIP

My initial reaction to the termination of the Joe Doe investigation can be found over at Right Wisconsin. (Sorry, it's behind a pay wall.) I am not one of those conservatives who claim that the investigation was a witch hunt (I don't pretend to know) but it was troubling both in its conception and execution. It has been my view that we are not served by vaguely worded statutes defining political crimes that can be interpreted to apply to both true abuses of power and garden variety politicking. Expecting those crimes to be enforced by partisan elected officials - even those with the best of intentions - further aggravates the matter. Ordinary politics ought not to be criminalized.

Nor are we served by the kind of partisan irresponsibility that marked much of the public discussion of the Doe. I found it shocking that a member of the bar running for Governor allowed rampant speculation about a legal proceeding to be advanced in his name. I understand that politics ain't bean bag and a political campaign can be a bit like a fist fight. You could hit in the face and you lash back. But all the sepia toned ads about Scott Walker and Dragnet-style Democratic party websites would look silly today if they had not been so irresponsible then.


Cross posted at Purple Wisconsin.

Mad dogs and communications directors

There is no real point in getting upset over Democratic Party official Graeme Zielinski's comparison of Scott Walker to Jeffrey Dahmer. Zielinski steadfastly refuses to behave like someone who ought to be taken seriously and so I don't. (In fairness to him, he did apologize which is, I suppose, a baby step toward reform.)

What I find intriguing is why the Democratic Party continues to put this guy front and center. His latest bout of political Tourette's was hardly the first and may not even have been the worst.

I  would find it easier to believe that Zielinski is a creation of the Koch Brothers - put forward to make the Democrats look bad - than to think that this is the guy who rational people (and, no, I don't think that rationality is limited to one side of the aisle) would want as a spokesperson. If he didn't exist, I would think that the Republicans would have to invent him.

But I may be wrong. While he may have gone too far this time, he has remained a spokesperson after saying some pretty outrageous things. I have to assume that this is at least a calculated - if not necessarily smart - decision.
That may say something about the state of our politics. It may be that hate arouses the base and that someone willing to spew it serves a purpose. My side has some flamers as well although I can't think of one who has remained in an official capacity after repeated bouts of public rabies.
Pity that.

Cross posted at Purple Wisconsin.

Not all cuts are created equal

Apparently a average tax cut for Wisconsin taxpayers of 2% is too small to care about.

But an even smaller reduction in federal spending - or at least its rate of growth - due to sequestration is a disaster.

Who would have known?


Cross posted at Purple Wisconsin

Spinning on tax cuts

The headline in the paper read "Much of Walker’s proposal would go to top 20%, study says."

This, the ensuing article tells us, "complicates" the notion that Walker has proposed a middle class tax cut.

Not really. The same article points out that 80% of the proposed cuts go to persons making $ 162,000 or less.

Sounds like a middle class tax cut to me.

We saw the same claims made with respect to cuts in the federal income tax shepherded through Congress by President Bush in 2003. For years, we were told that the former President had "cut taxes for the rich" when, in fact, he had cut taxes for everyone. (In fact, the Bush tax cuts were weighted slightly toward lower income taxpayers.)

That this story was, at best, incomplete and, at worst, misleading was ignored until those tax cuts were about to expire at the end of last year. It turned out that getting rid of the tax cuts "for the rich" was going to raise the bejesus out of taxes on the middle class.

Although Walker's political opponents will claim that his proposed cuts are slanted toward upper income taxpayers, the opposite is true. The lower your income, the larger your the of your taxes that the proposal will cut.
Of course, in a world where upper income taxpayers pay the most tax, a reduction in tax rates are going to benefit those taxpayers. As Willie Sutton put it, that's where the money is.
Of course, one can always argue that whatever share that they do pay ought to be higher. In theory, the answer to "how much do you need" can be "how much do you have."
But one may argue, instead, that rate reductions are most likely to lead to increased economic activity because they increase the marginal return on working and investing.

In any event, the Governor has proposed a middle class tax cut.

Cross posted at Purple Wisconsin.

Let my people go

When I was a kid, I heard a lot about the grave and intrinsic evil of residency requirements for municipal employees. Dad was a firefighter for the City of Greenfield which at the time (but no longer) required its fire and police employees to live in the city. He's basking in the Florida sunshine these days, but must be pleased (I haven't had a chance to ask) with Governor Walker's proposal to slay his old enemy for all times and all places.
Ironically, my parents wanted to move a few blocks from our house on Forest Home Avenue to Milwaukee. Today, residency requirements are largely, if not exclusively, about the desire of the City of Milwaukee to keep municipal employees on its tax rolls. There seem to be two arguments for residency. The first is that those who "benefit" from working for the city to pay city taxes. The second - and, I think, the real - reason for dictating where municipal employees can make their homes is that, if Milwaukee did not create a captive middle class, it would have no middle class at all.
We can argue about whether and why that's true. But I'd argue that residency requirements actually help to destroy the middle class in a city like Milwaukee.
The problem is that it hastens a city toward reaching a tipping point in which an effective political majority takes more from the government than it contributes toward it. This leads to high taxes and a collective unwillingness to challenge entrenched constituencies that benefit from the status quo. Failing institutions - think MPS - become very difficult to reform and middle class families who don't work for the city throw in the towel and head for the suburbs. This cycle, at its extreme, brings you Detroit.
With the exception of a place like Madison or Washington which thrive on tax dollars earned elsewhere, you can't build a thriving city on government. However large you want government to be, there must be a private economy and middle class community to support it.
To be sure, these aren't the only reasons for suburbanization and it is not to say that there aren't a lot of people in Milwaukee with a different vision for the city. Milwaukee, thank God, is not Detroit or even close to it.
But eliminating residency is, I think, more likely to be part of the solution than part of the problem. A city that cannot hold its middle class captive must make it want to stay. That city will be a much stronger place.

Cross posted at Purple Wisconsin.

An interesting filing in the state Supreme Court

Last week's filing by Justice Bradley was ostensibly an order recusing herself on a disciplinary case involving Justice David Prosser. That she would step aside is extraordinary only in the fact that it took her ten months to get around to it. It was clear from the get go that she should not sit on a matter in which she is the complainant.  

But the nature of filing - what Justice Bradley sought to say - was extraordinary and revealing.  

What she wrote was extraordinary because it had little or nothing to do with whether she ought to recuse herself. It largely consists of a reiteration of her allegations with Justice Prosser joined to an expression of displeasure with the law governing the discipline of Supreme Court justices and annoyance that the statement of a number of her colleagues who witnessed the incident with Justice Prosser don't completely corroborate her own. 

As I have written before, there is no support in the witness statements of any of the other justices - including the Chief Justice - that Justice Prosser "choked" Justice Bradley. Indeed, one can read Justice Bradley's own statement as suggesting that this did not occur. All seem to agree that Justice Bradley charged or rapidly approached Justice Prosser – perhaps with her fist or finger raised. 

Beyond that, the statements tend to depart on very subjective points in which the witness characterizes the volume of some one's voice or the rapidity with which an action was taken. Depending on which version one credits, the incident reflects poorly on Justice Bradley or both justices. If you are inclined to the latter view, it is possible to conclude that Justice Prosser was more at fault than Justice Bradley, but that is far from clear. One might well reach the opposite conclusion. It is possible that one might conclude that Prosser (or Bradley) ought to be disciplined, but that result is not foreordained. 

It is understandable that Justice Bradley is committed to her version of events and upset that others don't see things the same way. What is important for purposes of recusal is the resolving the conflicts will reflect on her testimony (which is not undisputed) and even on whether she ought to be subject to discipline. Perhaps all of those questions should be resolved in her favor. But she can't be the one to decide that.  

Normally, a judge in her position would simply step aside without comment on the merits. He or she would not use a recusal order as an occasion to editorialize. Justice Bradley is quoted as saying that her filing is a response to Justice Roggensack’s statement that the court is “doing fine.” But judges normally don’t use court filings to weigh in on their colleague’s campaigns. 

The filing is, nevertheless, revealing. The filing demonstrates the wisdom of the general rule that someone ought not to be a judge in his or her own case. 

Here's an example. Justice Bradley is upset that her colleagues' witness statements will not concede what Justice Prosser has admitted. "They deny," she writes, "what has already been admitted." But a careful - no, even a cursory - reading of the witness statements of Justices Roggensack, Ziegler, and Gableman all reveal consistency with Prosser's statement. Each of them says that Justice Bradley charged Justice Prosser with her fist or finger raised. He put up his hands in response and his hands came into contact with her neck but did not close, i.e., he did not choke her. (In any event, it was not for these witnesses to base their own version of events upon the statement of either of the participants. They were asked to relate what they saw.)

Depending on the details, one might take these statements to warrant no discipline, discipline against either Justice Prosser or Bradley alone, or discipline against both Justices. But they are not inconsistent with Justice Prosser's statement - at least not one the critical point identified by Justice Bradley. 

That she is unhappy with them is all too human. Again, she may be right and they may be wrong. But the filing also demonstrates why she was correct to recuse herself.

 

Cross posted at Purple Wisconsin.

Imagine no religion?

Every once in awhile, you come across someone who has summarized a point exceedingly well. I had that experience recently in reading an interview of George Weigel by Kathryn Jean Lopez regarding Weigel’s forthcoming collection of essays, Practicing Catholic.

While conservatives are often said to be “against” the environment, this has often struck me as claim that is bizarre on its face. No one chooses to poison his own living space. To the contrary, our environmental disputes tend to be about the trade-offs between our desire to use the environment to further human flourishing and the need to protect it from unwise uses. To be sure, one can be wrong about the harm that some course of conduct will cause and human beings will always be tempted to cut corners in a way that they should not, but environmental issues have always struck me as pragmatic and practical questions that are ill served by moral posturing and claims to be “for” or “against” the “environment” or some anthropomorphized geographical feature. It is a question that ought to acknowledge that advanced industrial societies – those who can develop and implement environmental protections – tend to be the cleanest.

This is not an area that is served by a desire to go back to the good old – and allegedly – pristine days. It is not clear to me that the cause of environmental integrity will ever be served by an extreme version of the Precautionary Principle which exaggerates risks and minimizes benefit. Don’t believe me? Think about nuclear power, fossil fuels and the risk of climate change.

Here’s Weigel:

LOPEZ: What do you have against Earth Day?

WEIGEL: I’m generally against pantheism, and what the first “Earth Day” set in motion was the transformation of the environmental movement from a conservation movement (which any reasonable person could and should support) to what is now an increasingly irrational cult, impervious to either the reality of trade-offs in public policy or (if I may quote President Obama and Al Gore) “the science.”

Outstanding.

The President on Guns: Ready, shoot, aim.

One of the dispiriting things about the "conversation" that we are supposed to be having about guns in the wake of the Newtown shooting is how much of it posturing as opposed to dialogue.

The President's posturing at yesterday's news conference is no exception. If the past month is any indication, we are about to see a newer and nastier Barack Obama. Notwithstanding his intelligence, he has always been willing to play the demagogue - given to the non sequitur, the ipse dixit and the ad hominem. All signs are that he is doubling down.

For example, the President believes that it is somehow critical that we ban "assault weapons" as if this term had a fixed meaning. He suggests that the only reason that anyone might oppose or question the ban is, quite frankly, a monster who would sell the safety of children for cash from the NRA. (“Ask them what’s more important — doing whatever it takes to get a A grade from the gun lobby that funds their campaigns, or giving parents some peace of mind when they drop their child off for first grade.”) Surrounding himself with children pressed into duty as props, he says that “if we can only save one life” through some proposed action, then it ought to be done. No one really believes this. No one should.

 

 He spends almost no time explaining what he means by an "assault weapons." He seems relatively uninterested in whether a ban on such weapons will make a difference. Hitting the target seems less important than taking a shot. Doing something trumps doing something that matters.

We had a national ban on statutorily defined "assault weapons" from 1994 to 2004. It seems to have had no discernible income on gun crime. The authors of a University of Pennsylvania study commissioned by the Department of Justice concluded that "we cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

To be sure, there is always room for argument. Mass shootings were somewhat lower during most years of ban's duration. But mass shootings are such a rare event that it is not possible to attribute this to the ban as opposed to random fluctuation . Some, including authors of the Penn study, argue that the ban had too many loopholes and might have had more of an impact over time.

Perhaps. It is a standard refrain on the left that whatever orthodox nostrum that has failed was a "good idea" that did not go "far enough."

But, then again, it shouldn't surprise us that a ban on "assault weapons" may not have much of an impact. Automatic weapons are already illegal in this country. What we now call "assault weapons" amount to semi-automatic weapons with some feature that is said to be "unnecessary" for legitimate use of the weapon.

Only some of these features are relevant to controlling the incidence or severity of an incidence like Newtown. It is said, for example, that a pistol grip allows a shooter to stay focused on his targets or that an extended clip (generally defined as one containing more than ten rounds) allows more shots to be fired in the same period of time. Perhaps true, but helpful- at best - only at the margin.

But why not do something at the margin? Wouldn't a law be justified if it only saved one life?

It might, but in determining whether reform will actually save one life, we have to consider whether any particular restriction will at the same time cost lives. The things that make these weapons less effective in committing crimes also make them less effective in self defense. It does no good to say that these weapons will not frequently be used in self defense. They won't frequently be used to commit crimes either and, when they are, banning a pistol grip or an extended clip won't make them much less deadly. We know that because of our experience with the prior ban on assault weapons.

So, in weighing the benefit of an assault weapon against its costs, we may be comparing very small numbers.

Supporters of a more comprehensive ban point to the experience in Australia where a ban on most semi-automatic weapons, adopted after a mass shooting there and combined with a massive gun buyback seems to have some impact in reducing gun violence, although the extent of that reduction is a matter of debate.

But Australia is not the U.S. There are approximately one hundred times as many guns in circulation here than there were there prior to the ban. Beyond that, the Australian reform – a ban on all semi-automatic weapons and prohibition of purchasing guns solely for personal protection – are political and constitutional nonstarters in the United States.

This is not to say that some further restrictions on guns that might be characterized as "assault weapons" aren't worth considering. It may, for example, be worth placing some limit on the number of rounds in a clip although my guess is that the value, if any, will be more in confrontations between police and criminals than in mass shootings. Nevertheless, there is presumably a limit on the size of a clip – although I’m not prepared to say that it is ten rounds – that won’t make a weapon much less effective in self defense.

Last month, a trio of Assembly Democrats called for a ban on hollow point bullets. That has nothing to do with Newtown, but it might make some sense. On the other hand, I understand that this type of ammunition is considered by some to be more humane and effective in use for hunting. Perhaps a blanket prohibition would not be in order.

The same groups called for psychological screening for those who sign up for concealed carry permits. This too has nothing to do with mass shootings and, in fact, seems more like a thinly concealed attack on the concealed carry law. It is an attempt to make getting a permit more expensive. The idea that we could effectively eliminate problem permit holders by the type of quick and dirty evaluation that would be done in the course of a training class seems improbable.

I am of the view that more training - including hands on instruction with the applicants' weapon - should be required for concealed carry permits. The value, of course, would not be in reducing crime but in preventing accidental shootings. But fruitless psychological evaluations are just an attempt to undermine a law that these legislators don't like.

There are other things that might make sense. I don't see why background checks aren't required at gun shows or for private sales. I understand that criminals will easily evade such a requirement but there seems to be little reason for the law to facilitate sales of firearms to those that would otherwise be unable to purchase them.

But even here, we ought to be realistic about what can and cannot be accomplished. We can't review the medical history of everyone who wants to buy a gun and, even if we could, the likelihood that we could identify the one in a million who might commit an unspeakable act like the one at Newtown seems fantastical.

In response to a post a few weeks back suggesting that "bans" and "restrictions" may not accomplish much, one commenter posted a remark to the effect of "twenty kids dead - watcha gonna do."

 

I'm sure that he thought this was very clever.

But wishing or wanting something to be true does not make it so. I suspect that there are a few things that can be done regarding the manufacture and sale of guns. But to pretend that this would solve - or even make much headway - is to adopt a false sense of security. We have had guns in America for most of our history. We have had semi-automatic weapons for decades.

We have tightened - not loosened - the regulation of guns over the past 50 years. Lee Harvey Oswald bought the rifle that he used to kill the President of the United States by mail using a false name without a background check.

I agree that it is too facile to say that "guns don't kill people, people kill people." But when it comes to mass shootings, it seems that we have changed more than the hardware has.

The complexity of this issue suggests that we have a meaningful discussion of these issues that does not presume bad faith on the part of those with whom we disagree. Pity that the President of the United States does not seem to want an adult conversation.

 

Cross posted at Purple Wisconsin.

Who cares about County Board salaries?

While I run a business that I intentionally decided to locate in the City of Milwaukee, I am not a resident of Milwaukee County. So  whether or not Milwaukee County Board Supervisors are paid a full time salary for a part time job has no direct impact on me. What interests me is the way in which the  controversy has become a liberal/conservative issue. For the most part, it is folks on the left who want Board members to be paid a fairly decent salary for make work.
Let's stop for a moment. I will not take seriously anyone who tries to tell me that the job of a County Board Supervisor is full time. Too many people - of all political persuasions - have done an apparently adequate job of serving on the board while remaining gainfully employed in some other way. One can certainly use a position on the board to enable one to engage in free floating political activism claimed to be for the "benefit" of county residents. But that doesn't mean that it requires forty hours each week to do those things that the County Board must do.
Of course, some people may believe that "activist" supervisors are a good thing. There lies your conservative/liberal breakdown. If you believe that the county government should do more and that people in Milwaukee County need more of what politics can bring, then creating more politicians - people who do politics for a living - might be a good thing. A part-time board may be more likely to stick to knitting and work for a County government that does less. The kind of board members that a part-time salary attracts - because they must earn a living doing something else - may be less likely to see the world as something to be ordered by politics.

Cross posted at Purple Wisconsin.

Milwaukee's children deserve to learn to read.

I was interested in the post by my fellow Purple Wisconsin blogger Barbara Miner regarding a PBS segment on Rocketship schools. I agree with Barbara that you ought to watch the segment. (This link may work.)

But there are a few things about the story on Rocketship that I might add.

I might point out, for example, that, notwithstanding the concerns expressed by Rocketship itself as to whether its learning labs are as effective as they ought to be, these schools have a fairly impressive record of improving achievement among low income students - as the PBS segment itself reports. By at least some measures, they are the leading schools for low income kids in California. Here's one description:

Rocketship Elementary charter school students devote 100 minutes per day to the Learning Lab. This period combines computer-based, individualized lessons on basic math and literacy skills, independent reading and enrichment programs to focus on areas where students struggle the most. Students are assessed every two months to update their individual learning plan. The results are shocking, given the population they serve. Rocketship Mateo Sheedy serves low-income students in San Jose, nearly 73 percent of who are English Language Learners and 78 percent of who qualify for the Free and Reduced Lunch program. Their 2009 API was 926 out of 1,000, making Rocketship the highest performing low-income elementary school in San Jose and Santa Clara county, and third in California. Rocketship’s operating costs are met entirely by traditional government funding yet the hybrid charter school manages to pay its teachers 20% more than teachers in surrounding districts. Thanks to the daily Learning Lab period, Rocketship saves one teacher and one classroom per grade level, amounting to savings of around $500,000 per school per year. They currently have three schools in San Jose, with plans to grow to 30 schools over the next five years.

As is always the case in the Tower of Babel that house the social sciences, I imagine that people will debate these numbers or try to explain them away.  I don't know that the Rocketship model is a silver bullet. Maybe it's not as strong as it seems to be. But I can understand why it is attracting support.

I appreciate that the standard line in the education establishment is that there are no fundamental problems that money won't cure. This strikes me as highly implausible. We have not starved our elementary and secondary schools. We spend more on them than any other developed nation. We have dramatically increased that spending over the past 40-50 years.

We have not enjoyed improved performance. This suggests that a new approach is required. It tells me that "diverting" resources from traditional public schools to new ideas may not be such a bad idea.

The Rocketship model suggests why. One of the things is does is emphasize teacher quality by treating teachers like professionals. Teachers are paid more and, because they are non-unionized, subject to the demands to which other professionals are subject. This is in sharp distinction to the traditional unionized school which, in adopting an industrial union model developed for assembly line workers in the early to mid twentieth century, emphasizes labor relations characterized by uniformity, standardization and job protection.

I might also add that the individual and self directed instruction that takes place in the learning labs (which, incidentally are not "Dilbert-like" cubicles; they look like stations in a college language lab) did not strike me as all that new. It reminded me of the individualized reading program called SRA  that I followed at St. Sebastian School in the '60s.

Finally, the criticism that Rocketship charter schools lack art and music instruction strikes me as awfully precious. The public education establishment, as a general matter, has fought to ensure that choice and charter schools receive less funding than traditional public schools. Attacking them for what they may be unable to offer seems bad form.

Beyond that, while I agree that Milwaukee's children deserve an opportunity (whether in school or not) for art and music, I think that they have a stronger claim to be taught how to read.

Maybe we should start with that.

Cross posted at Purple Wisconsin.

Return of the Ghost?

It's not the type of book that I normally would read, but I spent a few hours (that's all it takes) over the long Holiday weekend reading Eben Alexander's Proof of Heaven. I was struck by the premise - a neurosurgeon with a materialistic view of consciousness and human existence, has a near death experience.

What does he think now?

The story is more striking because Dr. Alexander contracted a relatively rare form of a bacterial meningitis. His prognosis was poor from the onset and became virtually hopeless as he went into a coma and failed to respond to treatment. His subsequent recovery was extraordinary - apparently close to miraculous.

During his coma, he had a vivid NDE that both resembles and departs from what is typical for such events. Alexander, who had always dismissed NDEs as dreams or hallucinations, says the can't do it in his own case because he had lost higher brain functioning while comatose. In other words, his brain could not have produced his experience because it wasn't working.

I can' t really evaluate the scientific arguments. Alexander includes an appendix in which he explains, in quite summary form, why he rejected nine different hypotheses of a material cause for his experience. From what I have read - from Alexander and his critics - explaining what happened is somewhat problematic and turns on whether it is possible to know (based on the tests that we have) that his brain was really "off -line" and whether he might have experienced his NDE after he regained higher brain function.

Alexander's story does not mesh with any particular theological view. (There is apparently a Christian "rebuttal" of his story.) It is, in many respects, a bit hokey and does not quite amount to "proof of heaven." (Alexander did not want to call the book that, preferring the title "An N of 1," referring to the unique nature of his case.)

But it does tee up what brain scientists call the "hard question" - what produces consciousness. While we have managed to correlate brain activity with conscious experience, we haven't established what causes that correlation. Is the brain a source or a filter?

One of the things that I found intriguing - although I know precious little about it - is the implications of a quantum view of reality to consciousness. The standard view of consciousness as mechanistic seems a tad Newtonian to me. Alexander doesn't do more than wave at that, but he does suggest that consciousness is stranger and less linear and contained than we might suppose.

One of the fascinating things about Alexander's NDE is that, unlike most of these experiences, he did not know who he was while he was "up there" (he uses that phrase metaphorically). He did not remember his life. It would be a very different kind of "heaven" if those who inhabit it are dissassociated from who they were in life.

Cross posted at Purple Wisconsin

Peace on blogs

World War I (1914-1918) was unspeakably savage. Worse, even, than the Battle of Wisconsin (2011-2012). Much of the war consisted of opposing lines of entrenched soldiers who inflicted massive casualties on each other yet gained no advantage.

Yet, on Christmas in 1914, some of these opposing lines made their own truce. The Germans decorated their trenches and sang carols. The opposing British and French lines did the same, eventually wandering across no-man's land to exchange gifts. A game of soccer was organized. In some places, the "truce" extended through New Year's Day.

The truce was not universal and not without risk. Some of the men who left their trenches were shot. In all instances, the military commands sternly warned their troops that this must never happen again. Adolf Hitler, then a corporal in the Sixteenth Bavarian Reserve Infantry, is reported to have been adamantly opposed.

So I'm imposing my own Christmas truce in our political wars for a few days. It won't last long. There are important issues on which many of us disagree. I would hope that we can express those disagreements in a way that doesn't presume that the other side is stupid, crazy or venal. Whatever response that you make to a point with which you disagree is not made stronger by stringing together adjectives or personal invective.

I know that's not easy. I have trouble with it myself. So I suspect that we'll continue to have our political battles of Yrpes and Verdun.

But, at least for the next few days, good will abounds here at Shark and Shepherd.

So Happy Hanukkah (although its been over for a while), Stupendous Solstice, Joyous Kwanzaa and Happy Festivus (for the rest of us.)

And Merry Christmas.

Cross posted at Purple Wisconsin

Guns and the limits of law

We really haven't have a mass shooting like the one in Newton. The thought of someone opening fire at small children is beyond horrifying. We don't have a word for it. Having said that, mass shootings have become a depressingly frequent topic

Now that a few days has passed, what does this incident - and other episodes of random gun violence - tell us about the need for stricter gun laws?

There are a few guiding principles for such a conversation. The first is that, however awful, mass shootings probably have little to tell us about what our gun policy should be. They get a great deal of attention but are a small fraction of gun homicides. Placing too much attention on them is likely to create misguided policy.

Second, such a conversation should be tempered by constitutional, political and practical realities. We are not about to ban the private ownership of guns in the United States. It would be unconstitutional and politically impossible. More fundamentally, it would be close to physically impossible. There are, by most accounts, well over 200 million guns in private hands in the United States. Even if we prevented another one from being made or sold, they'd be around for a very long time.

We might prevent sane, law abiding citizens from owning them but they are not the ones that we are worried about. Anyone who would shoot up a school or a shopping center is unlikely to be deterred because it is illegal to oen the gun with which he does it.

Third, the irony seems to be that gun controls laws offer relatively little prevention with respect to situations like this. In most cases, no set of reasonable regulations would have prevented the shooter from purchasing a firearm. The profile for a mass shooter has become almost a cliche. In most cases, he will turn out to be a "quiet guy" who was "strange" but who "no one would have expected" to do what he did. Perhaps people who were close to him knew that something was seriously awry but it's hard to imagine a legal screen that would take into account such amorphous "danger signs." Calls to stop selling guns to people with "mental illness," gloss over the difficulty in determining who those people are.

Fourth, we talk about regulation on the type of weapons that can be sold and the process by which they are purchased.  While it is true that "guns don't kill people,people kill people," it is certainly easier to kill a lot of people with a rifle than a baseball bat. But the list of restrictions that might make a material difference in the mass shooting context is short.

It might be reasonable to limit magazine size, but people who know guns better than I do say that this is not likely to make much difference. One could, I suppose, ban semi-automatic weapons - often misleadingly called "assault" weapons. That might slow a shooter down but how much difference it would make is unclear. Whatever "benefit" there is in such a restriction must be balanced against the cost in reducing the effectiveness of weapons for personal defense. There probably ought to be background checks for private gun sales, but we shouldn't fool ourselves into thinking that would be a momentous reform.

In the end, the desire to make this go away by passing a law is understandable, but misplaced. This type of tragedy cannot be prevented by fiat. It is, in fact, unclear that it can even be made less likely. The problem is not in our laws, but in ourselves.

Cross posted at Purple Wisconsin.

Goo goos and their limits

I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.

The reason is simple. When a decision has political implications, politics, like water, finds its own level. While the selection of lower court judges is not politically salient, the selection of justices for a state supreme court usually is. These courts are law developing tribunals of last resort. They decide issues that are unsettled.

Many of these issues do not have ideological or political implications, but some - very important - cases do. While it is wrong to think that the justices who decide these politically charged cases simply do whatever they want or vote as partisans, their world view will affect how they approach questions to which the legal answer is unclear. It is natural for liberals and conservatives to seek like-minded justices.

This turns merit selection into a political process. If you don't believe me, consider the case of North Carolina. Out going Democratic Governor Beverly Perdue -she who spoke of suspending elections so that things could get done - posed for holy pictures a while back when she signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
Are the politics back in judicial selection of North Carolina? They never left. It's fine to have a panel of lawyers make recommendations to the Governor. We do that here. But that doesn't make the process of selecting judges - particularly for a state Supreme Court - nonpolitical.
Governor Perdue has just demonstrated the obvious.
At a certain level, I don't blame her. She wants to use what remaining power she has to appoint a justice whose judicial philosophy she supports. So would I. But I would prefer that she not pretend otherwise


Cross posted at Purple Wisconsin

Judicial elections and promises

Did Supreme Court candidate Vince Megna violate the Judicial Code of Ethics in saying that he is a Democrat, opposes voter ID and would, if elected to the Court, vote against vote suppression?

There are two issues.

The first is easy. The Code (to which all candidates for judicial office are subject) says that a judge may not be a member of a political party. But this prohibition was declared unconstitutional in a case called Siefert v. Alexander. Megna can say he is a Democrat. Whether he should call attention to his partisan affiliation is another question. Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office.

The second issue is whether Megna's comments on voter ID were improper.The United States Supreme Court has made clear that a candidate for judicial office may express his or her opinion on disputed legal or political issues. But it has left open the possibility that a state may restrict a judicial candidate or judge from promising to rule in a particular way. Wisconsin does prohibit a candidate from making "pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office."

So, while it may be acceptable for a candidate to express a view on, say, the existence or nonexistence of a constitutional right to bargain collectively, it is not acceptable for a candidate to commit to overrule - or uphold - Act 10.

The distinction may seem to be overly fine but it is rooted in reality. It is disingenuous for candidates to pretend they have no opinion about critical questions. If. for example,  I really have no  view on the great legal issues of the day, then I am probably unqualified to be a candidate for the state supreme court.

On the other hand, I ought to be willing to be consider arguments from the other side. I should be open to persuasion.

Megna stretched that distinction. Having all but called voter ID requirements a form of "voter suppression," he then promises to vote to overturn "voter suppression" laws. He may not have crossed the line but he came very close. However, he then backed away noting that "every case comes down to the facts of the case and the arguments and the law."

So, taking his comments in context, I would argue that the rules were not broken. On the other hand, most candidates would not comment so directly on an issue that is almost certain to come before the court in the near future.

 A related - but distinct - question is whether his comments would lead to an obligation to recuse himself in a voter ID case.

Cross posted at Purple Wisconsin.