Wednesday, November 26, 2014

Lack of leadership on Ferguson

Rudy Giuliani had it right. The reason that we have heavier police presence in some (not all) areas with high concentrations of African Americans is some (not all) of these areas have a lot of crime. The purpose is not to protect white people from black people (most, but not all, violent crime is intraracial, although the matter may not be that simple) but to protect the African American residents of these communities.

That's not only a good thing; it is essential to the development of these communities. If you do not have public safety, you will have nothing else. No amount of social spending can make up for its absence. Complain, if you wish, about overpolicing but without a greater level of police protection in communities that need such protection, life would indeed be nasty, brutish and short.

But the need for heightened police protection is not without its costs. It means that there will be more contact between police and, in particular, young African American men. Sometimes these contacts will result in the use of force and sometimes  things will go wrong, whether by innocent mistake, negligence or even malevolence. Cops are human beings and, therefore, as flawed as the rest of us.

It is not clear to me that use of force is disproportionately directed toward black persons who come in contact with the police. What evidence I have seen suggests that it is not. It is clear to me that there is nothing resembling "open season" on African American males.

But that doesn't mean that each such incident need not be taken seriously. Just as the improvement of underdeveloped communities require safety, it also requires public confidence in the rule of law. I also appreciate that these incidents are going to be viewed through the lens of our racial history. We live in a country that, while it has made great racial progress, still struggles with racial mistrust.

But mistrust - and misunderstanding - run in both directions. It is simply not the case that any of us have special knowledge of racial truth. None of us have special knowledge of what happened in Ferguson because, in the insidious phrase,  we "look like" Michael Brown or Darren Wilson.

But even if that's so - or even if the opposite (police disproportionately target black men) is true, the frequency of police misconduct in all cases does not tell me what happened in any particular case. Even if was "open season" on young black males, knowing that would not help me decide what happened between Michael Brown and Darren Wilson.

The only way I can understand what happened is to carefully assess the testimony of witnesses and the physical evidence.

But that isn't what happens in our public discourse about the case. When, for example, someone writes an article and says only that Michael Brown was shot multiple times and was unarmed, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Being "unarmed" will keep you safe only if you do not attack someone who is. Last night, I actually heard Lawrence O'Donnell argue on MSNBC that, even if Brown charged Wilson, the latter could have "sidestepped" him. That's not a serious argument. It's the kind of thing that you say when you have nothing better.

When someone writes an article and says only that Brown had just robbed a convenience store, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Lots of people rob stores and don't attack the officers who arrest them.

It does no good to say that prosecutors have "disparaged" Brown by suggesting that the evidence does not establish that Wilson acted improperly. It is not "out of the norm," as Al Sharpton says, for a prosecutor to explain that the physical evidence does not support an indictment. It is, in fact, a prosecutor's job.

Based on what I have seen, however, it is not surprising that the grand jury could not return a true bill. The initial narrative about this case fell apart in the face of the physical evidence. There will always be questions and conflicts about what happened but I have yet to see anyone make a persuasive argument - based on the facts that exist rather than the ones they presume - that there is much chance to prove a crime beyond a reasonable doubt.

That's where leadership comes in. It is simply not responsible to say, in response to rioting, only that one "understands" the anger but believes that violence is nevertheless unwarranted. It is unwarranted but more is required. True leadership would point out that this was not an inexplicable outcome. It is also "understandable. "That's why most observers expected it.

Here in Milwaukee, we await a decision on the Dontre Hamilton case. I do not know what should be done. I haven't reviewed the evidence. It does appear that the District Attorney's office does not believe charges are warranted, but is reluctant to say so. The normal crowd of racialists that pass for "leaders" in Milwaukee won't lead. They'll follow the crowd.

Cross posted at Purple Wisconsin.




Saturday, November 22, 2014

Washington harasses school choice

In his latest column, George Will* describes the United States Justice Department's wrong-headed "investigation" of Wisconsin's school choice program for "discriminating" against students with disabilities. As we at the Wisconsin Institute for Law & Liberty have explained at length, the DOJ is proceeding on a contrived and erroneous legal theory that blurs the distinction between public and private. Will writes:


DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.
Let me extend Mr. Will's remarks. Choice schools cannot discriminate against children with disabilities. Period. Full stop. Common claims to the contrary; suggestions that these schools "won't take" kids with special needs are just false. State law requires that  choice schools must take all comers. If the number of applicants exceeds the spaces available, students must be selected by lottery (with a small exception for sibling preference).

Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.

It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.


* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?

Wednesday, November 12, 2014

Why public collective bargaining privileges unions

Before the election, I had a column in the Journal Sentinel's Crossroads section reflecting on Scott Walker's historical significance. A reader - someone from Shorewood named James Anello - wrote a letter to the editor completely mischaracterizing my position and that of my "ilk." (If you find yourself said to be part of an 'ilk," it's never a compliment.)

Mr. Anello thinks that I was arguing that negotiating in good faith is bad. Not at all. What I was saying is that to impose a legally enforceable obligation on government to bargain with unions gives them an advantage over everyone else. No one else has a legally enforceable right to make the government bargain in good faith over whatever it is that they want the government to do. Here's is what I wrote, with the part quoted by Mr. Anello in italics:


While it is not often acknowledged, collective bargaining privileges organized public workers over the rest of us. Because it imposes a mandatory obligation to negotiate in good faith, public-sector collective bargaining requires the government to listen to unions. If this bargaining reaches an impasse — if the government says "no" — then disappointed unions often will have recourse to arbitration. 
You and I don't have these rights. If the local school board ignores my request that it adopt merit pay for teachers or devote more money to science and math education, I am out of luck. I can try to elect new school board members, but I can't force the existing board to listen to me. Prior to Act 10, however, if the teachers union wanted tenure or some particular package of benefits, the school board had to listen and respond.

I take the trouble to highlight this here because Mr. Anello's error is a common one. The mistake is to fail to see a collective bargaining as a petition to the government asking it to adopt a certain set of policies. You can argue that government unions should have this advantage, but you can't pretend that is doesn't exist or pretend that government has a legally enforceable obligation to negotiate with everyone who asks it to do something.

Nor, it seems to me, that you can argue that government should have a legally enforceable obligation to negotiate in good faith with everyone. Such a rule would tie up every government action in court with judges expected to apply a pretty amorphous standard - good faith - to uphold or strike down whatever the government has done.

Cross posted at Purple Wisconsin

Tuesday, November 11, 2014

Nine random thoughts about the election

Because it seems to be a popular number.

1.  After every election defeat, the losing side forms a circular firing squad. No matter which party has lost, the crossfire tends to come from three directions. One, we were cheated. Two, if we had only communicated who we really are, we would have won. Three, whoever was in charge of strategy and tactics screwed up and must be fired. It would be a mistake for the Democrats to believe any of them.

2.  The Democrats weren't cheated.  They didn't lose because of "dark money," "dirty tricks" or "voter suppression." All indications are that they spent as much as - if not more than - the GOP. There were no dirty tricks. Turnout was at record levels for a November gubernatorial election.

3,  The problem wasn't that the voters didn't understand who the Democrats were. While their candidate didn't come across as a true believer (see below), the Democrats conveyed their message. You would have had to be unable to speak or understand English (or Spanish, for that matter) not to understand that the Democrats wanted to spend more money on public schools (but not vouchers) and raise the minimum wage. It was quite clear that the Democrats thought the Republicans were "against" women and minorities and liked "rich" people. The first two were not winning issues while the latter three were simply unbelievable - they have, if you'll permit me, jumped the shark for most voters.

4.  Other than these insipid and hateful themes of the "war on women" and "dog whistle" politics (which I think the Democratic base wanted to see), the Democrats ran a pretty good race in Wisconsin. I would not have expected them to be able to match the recall turnout. Yet they did. But the GOP ran  a good ground game as well. While I think the ads ran by Democrats and their allies often conveyed messages that were toxic and false, they were well executed. The problem may have been the message and not the way it was rolled out.

5.  Mary Burke wasn't a good candidate but she wasn't an awful one. If the Democrats think that someone like Kathleen Vinehout would have done better, they are smoking the stuff that Ray Burke wants to make legal. Walker would have topped 55% against a candidate like that. It is true that another candidate - maybe the reluctant Ron Kind (best they stop waiting for him) or Russ Feingold - may have done better. But those guys weren't on offer.

6.  The Republicans did not win because of gerrymandering. It has nothing to do with the state wide races. While the GOP's share of the legislature will exceed its share of the statewide top of the ticket vote, this will almost always be the case because Democratic voters tend to live in clusters. Take away Dane and Milwaukee Counties (really just the north half of Milwaukee) and Wisconsin is deep red.

7.  While it partially contradicts my absolution of the Democrats' strategic and tactical approach, Last week's results hurt the idea of the stealth candidate.  Part of the attraction of Mary Burke was that she could pretend to be anything because she had been, when it comes to politics, nothing. No record. No body of political expression. There is often a fascination with running candidates who claim to be "non-ideological" or say they are for "whatever works." Think of John Anderson, Ross Perot and, more recently, Jon Huntsman. The problem is that you can't know what "works" until you decide what you want to do. You can't even make judgments about what will work in particular without some set of beliefs about how the world works in general. Those general beliefs are a big part of our ideological differences. (Nevertheless, I do think that the Democrats' ideological preferences were expressed.)

8.  I'm glad Brad Schimel won, but Attorney General should be an appointed office.

9.  To my fellow conservatives, it was a great week to be us. But there are no permanent victories in politics and winning is only worthwhile if we make something of it. Expanded school and parental choice. Regulatory reform. An end to crony capitalism. A fresh approach to strengthening our urban areas. More economic freedom. Reform of the campaign finance laws. An end to John Doe gag orders.

Cross posted at Purple Wisconsin.

Friday, October 31, 2014

Why the Journal Sentinel editorial board is wrong about Burke firing story

How are we to assess claims that Mary Burke was forced out of her own family's business in 1993?

The Journal Sentinel editorial board dismisses it all by telling us to "consider the source." I have applauded the editorial board for seeking to promote a diversity of opinion on their page. Here is, as they say, another view.

First, the board trashes the Wisconsin Reporter, a nonprofit news organization, because it has a conservative bent and is funded by the Bradley Foundation. (Yes, yes, so is the nonprofit I run. So are half the charities in Milwaukee.)

The attack on the Wisconsin Reporter is completely unfair.  First, I have not noticed the editorial board dismissing the work of other nonprofits - say the Brennan Center, the Center for Media & Democracy, the League of Women Voters  - simply because these groups have an ideological bent. It shouldn't. The fact that these groups have a perspective may effect the issues they emphasize and what they have to say about them. It doesn't mean that they make things up.

I know Matt Kittle, who runs the Wisconsin Reporter and have spent countless hours discussing a variety of stories with him. Matt does not run things that he has not confirmed in accordance with standard journalistic practice. He is as much a professional as the reporters at the Milwaukee Journal Sentinel.

The fact that the Wisconsin Reporter is a conservative outlet is relevant in assessing its work, but it is hardly a basis for dismissing what it has to say. It's report stands on its own merits.

In assessing the report, the editorial board attacks people rather than evaluating facts.

I would have been skeptical of the report about Burke if the only source was Gary Ellerman, a human relations person who was himself discharged from Trek and who now chairs the Jefferson County Republican Party. In addition, there have been allegations that he is no more measured and careful in his political expression than some of the people that have been added as bloggers at Purple Wisconsin in the past year.

This is not to say that Ellerman should be dismissed out of hand. Nothing about his background brands him as a liar. But if he was the only source, I would have conceded that the question is so unsettled as to be a minor story. I don't deny having a dog in the fight but I try very hard not to jump on allegations from my side that are undersupported.

But Ellerman wasn't the only source. Others confirmed what he said and the report became more plausible when it was corroborated by the company's former COO. Even allowing for the fact that Tom Albers gave the princely sum of $ 50 to Scott Walker, his confirmation of Ellerman's story makes it much more credible. The editorial board's ad hominem dismissal of Trek's former COO  - "consider the source" - reads more like campaign literature than fair analysis.

But, for the editorial board, Albers is, as David Haynes tweeted, "discredited" because he is "vested" in the race. By that he means no more than Albers - who gave Walker's campaign the price of dinner for two and a couple of margaritas at La Perla - presumably wants Walker to win. But, by that standard,  everyone who has had anything - good or bad - to say about Burke's tenure at Trek is "vested" in the race. No one can be believed. Yet the editorial board accepts Burke's claims of success in business - even though they are unsubstantiated by anyone who is not "vested in the race."

There is no end to this "consider the source" calumny. Burke's family stands by her - although they provide no detail of what actually did happen and won't provide documentation of her claims regarding her successes at Trek. Shouldn't we "consider the source?" Are they any less "vested in the race" than Ellerman or Albers? Members of the Burke family understandably don't want to hurt a relative and, to be honest, stand to gain quite a bit by having one elected Governor. There is, to be frank, less reason to believe them than there is to disbelieve Albers. As far as we know, he has no family or financial interest in the matter.

Having said all that, I might be less inclined to credit the story if Burke's own version of the events didn't tend to confirm it. Here's where we get into facts rather than people.

Burke now says that her position was "eliminated" because of "downsizing."  You don't "eliminate" the job of someone who has, as Burke claims, been a phenomenal success, particularly if she's a member of the family that owns the company.  You promote her. But that didn't happen. Of course, it's possible that she walked away from a company that still wanted her - even as it eliminated her job - but that is hard to believe.

Finally, the editorial board stoops to sexual politics to dismiss, rather than engage, Burke's critics. Certain sources from within Trek say that she acted like "a pit bull on crack."  The editorial board plays the gender card to rule this criticism out of bounds. To them, it sounds "strikingly similar to the way other strong women have been portrayed once they reach positions of authority."

But it is not just women who are criticized for being overly authoritarian and demanding. In our fallen world, the sad fact is that there are bad managers and one of ways in which people manage poorly is to exalt themselves and be dismissive of their subordinates. One of the ways in which people manage poorly is to demand that their subordinates do what cannot be done, relieving the manager of the obligation to figure out how an organization's objectives can actually be achieved. There is no reason to think that women are incapable of making these mistakes. (Indeed, wouldn't it be sexist to believe they are not?) In dismissing this criticism, the editorial board is just as guilty of stereotyping as the "sexists" who they purport to oppose.

I don't know if this criticism of Mary Burke is accurate. I am sure that a dime store sexual politics won't help us answer the question.

Normally, I'd prefer a campaign limited to issues. But the Democrats have chosen to run someone for Governor whose resume, regardless of whether she was forced out in 1993, is astonishingly thin. To bolster the absence of a record , she has made claims about her long ago tenure at Trek that cannot be verified. Under those circumstances, this story matters and it can't be dismissed by attacking those who tell it.

So what's the truth? My own sense - trying to reconcile what Albers says with what Burke and her camp does and does not say - is that no one said "you're fired," but it was "agreed" that she should go and do something else.

But, as I'll explain in my next post, even the most favorable reading of her version of events undermines the case for Burke as Governor.



Cross posted at Purple Wisconsin.




Tuesday, October 28, 2014

Obfuscation on the minimum wage

Here's a bit of free advice. When economists - or any social scientist - tells you that "studies" show something, remain skeptical. As a general rule, there are almost always contradictory studies and those that purport to "show" some real world cause and effect usually do not.

This op-ed by Mike Rosen, an MATC instructor with decidedly heterodox views of economics, The sayt that, the science is "in," minimum wages do no harm.

But that's just wrong. Some studies show no loss of employment. Others do. Indeed, a recent study by the John K. MacIver Institute for Public Policy shows that an increase in the minimum wage to $15/hr would cost 90,000 jobs.

This shouldn't surprise us. Basic theory tells us that the impact of a minimum wage increase will be complicated. In almost all places and at all times, some workers will make more money, some will lose their jobs, some will keep their jobs and work fewer hours, others will be made to work harder and some will never be hired. The return on labor saving technology will increase. There will be winners and losers and there is no guarantee that the poorest of low wage workers (not all low-wage workers are poor) will be ones who are helped.

Because things other than the minimum wage will be affecting unemployment and low-wage job growth, it is difficult to figure out - even after the fact - what has happened. To simply say, well, we raised the minimum wage and employment didn't decline may or may not mean that there are no fewer workers today than there would have been had the minimum wage not increased.

The idea that politicians - or even economists - can find the "sweet spot" where benefits exceed costs seems implausible. Indeed, where this inscrutable "sweet spot" might be will differ from place to place, time to time and industry to industry. Even if "we" decide that we know what the benefits and costs are and the benefits of any particular minimum wage increase exceeds the cost, "we" are not the ones that have to pay those costs. "We" are not the sixteen year old who doesn't get her first job at McDonald's or the grandmother who loses her job - or has her hours cut - at WalMart.

This is why increasing the minimum wage is an inefficient and counterproductive way to help low income workers. If we want to help the working poor, things like the earned income credit or food stamps seem less likely to have harmful effects.

Rosen says that minimum wage employers are big companies who are somehow immune from concerns about the marginal cost of labor exceeding its productivity. This, not to put too fine a point at it, is preposterous. fact, Rosen can't actually believe it. Even he would concede that there is an increase - say to $15 or $20 or $30/hr - at which the "productivity of labor" would be lead to declining - even catastrophically declining - rates of employment.

What he really means is that some more modest increase will not have a negative impact that he is not willing to accept. He seems to base this on an assumption that national chains, unike "Mom and Pop" stores, are either high margin businesses who can afford to lower their margins or have market power that would permit them to pass increases on to customers.

I doubt that. Wal-Mart, to take an example, is successful because it is a low margin business. It works because it has figured out how to provide acceptable (if lower quality) goods at astonishingly low prices. If you raise its costs, it will figure out other ways to lower them. This is because it has little margin to erode (as rich as they are, the Waltons are not going to keep open stores that lose money) and little room to raise prices - if Wal Mart charged Target prices, no one would go to Wal Mart. The latter's customer loyalty is rooted in little but price.

The idea that you can increase the cost of hiring low skilled workers without increasing the demand for them is like saying that you can raise the price of a good - even a popular one like an iPhone 6 - without dissuading some people from buying it. There are, I suppose, cases where this could be true - where, as economists say, demand is price inelastic - but it almost never is. I doubt that the demand for counter workers at Burger King or greeters at WalMart are among those cases.

For example, let's say that the minimum wage were increased to $ 10.10/hr. The cost of employing those who actually earn the current minimum - a relatively small number - would increase by almost 40%. Does anyone really believe that this would not decrease the demand for such workers? Is it even remotely likely that such an increase would not create powerful incentives for employers to find ways to employ fewer of them. It is those who actually earn minimum wage who are most likely to be hurt.


So why do our friends on the left work so hard to avoid the obvious. First, increasing the minimum wage is politically popular. People support it because it does not seem to cost them anything (unlike welfare benefits) and they imagine that the pinch will be felt by rich people who "can afford it." Second, those who lose when minimum wages arise are invisible. They tend to be people who did not get something - a job or increased hours - that they otherwise would have. No one knows who they are. Finally, for these reasons, its free "generosity." It is a chance to put on the cloth of righteous and appear magnanimous without having to pay for the privilege.

Don't believe me? Here's one more thing to ponder. Democrats applaud Mary Burke for announcing that she knows, as a business woman (someone who worked in the family business before apparently dropping out of the work force in 2007) that minimum wage hikes will not hurt business. Yet her family business - the same one from which she derived millions to spend on her campaign - shipped jobs to China - where it does not pay US minimum wages -  to lower labor costs.

I am not about to criticize Trek for that. But it lies ill in the mouth of Mary Burke to advocate for imposing costs on others that she and her family would not accept for themselves.

Burke and attack ads

Over at Right Wisconsin, I wrote about some of the legal issues presented by what appears to be an intentionally false ad ran by the Mary Burke campaign. Since I wrote, Politifact (certainly not in response) rated the ad as "false." As a First Amendment absolutist, I am not about to call for anyone to be prosecuted. While I think it's too simple to say that there is a constitutional right to lie, I think that the circumstances under which the state can punish or restrict political speech because it is false should be essentially nonexistent.

But the voters can take notice and what bothered me about the Burke ad is that it attacked Walker's character. It's one thing to lie or mislead about the budget, jobs, abortion and equal pay - Burke and her allies have done all of that - it's another to lie about your opponent as a person. It strikes me as a more serious form of sin.

The other thing that is noteworthy is the frequency with which one is able to point out that Walker attack ads are simply not true. No, Walker didn't abolish "equal pay" laws. We don't have a budget deficit. Job creation is not "worse" during the Walker administration (just the opposite if fact). Walker and the legislature have not mandated transvaginal ultrasounds.

What type of Governor would Mary Burke be if she thinks this type of thing is OK?

Some of this is undoubtedly the residue of Saul Alinsky's odious philosophy for the political left. If one is head over heels self righteous about using the coercive authority of the state to promote equality or some notion of fairness, hum drum concerns about things like honesty and intellectual integrity seem like fiddling while Rome burns - roadblocks to the revolution.

But I think that some of it is Mary Burke. I doubt that she is a bad person and I understand that politics ain't bean bag. But the larger problem is not what she does but that she is simply not there. She seems not only like an empty vessel, but  a spectator of, rather than participant in, her own campaign. There is no there there and some pretty bad things have filled the vacuum.

Of course, what kind of governor Mary Burke will be doesn't matter. As recent polls have shown, no one is voting for her. They are voting for or against Scott Walker. But here's the thing.

If Walker loses, we get Burke. How can anyone be comfortable with that? The best thing that could happen for the Democrats in this state is for her to lose. She will be a disaster that will lead to a Governor Vos, Fitzgerald Duffy or Vukmir in 2018. (I chose those names randomly so no offense intended for anyone else.) That GOP victory won't be permanent, but it may last for quite some time.

Cross posted at Purple Wisconsin

Monday, October 27, 2014

Bias and judging

Fellow Purple Wisconsin blogger Jay Miller raises the "appearance of partiality" in our judiciary, noting the way in which judges disagree on controversial issues such as voter ID. I sympathize with the reaction. It brings to mind an exchange I had with a student a few years ago.

I was teaching Civil Procedure.  We were discussing divisions in the Supreme Court on a somewhat arcane point about pleading when a student lost her religion. "These are some of the smartest lawyers in America," she said, "why can't they agree?"

"Welcome," I said, " to the legal profession."

Mr. Miller is a lawyer - so I do not attribute these attitudes to him - but he begins his post with what my favorite professor from the first year of law school, leftie Duncan Kennedy, called "lay naïveté." "The law is the law," they say.

And mostly it is. But sometimes it's not. There are cases in which the law is what legal academics call "underdetermined" (they say this because it sounds more sophisticated, and it sort of is, than saying "uncertain"). The idea is that established principles do not yield a clear answer. In such cases, judges have discretion and the way in which they exercise that discretion will reflect their pre-existing beliefs about the way in which the world works and how our Constitution, common law and rules of statutory interpretation should approach it.

Once you realize this, it's not hard to see how, say, Judges Rudy Randa and Lynn Adelman, would come to different conclusions. One judge is suspicious of progressive designs that seek to perfect the world. The other is drawn to them. Both will understand when they have no room to maneuver, but, when they think that they do, each will reach different results.

But that recognition can lead us to a different problem - what Professor Kennedy called "lay cynicism" - and to which Mr. Miller's post also alludes. Seeing that judges sometimes decide cases based on their political preferences, the public concludes that they always do. This is not true. The public thinks it to be so because it's attention is normally directed to cases in which these philosophical differences are more or less free to express themselves. This is a small fraction of all cases.

Mr. Miller says that he'd like to read a story about cases in which judges decide cases in a way that is contrary to their political preferences. One commenter to his post thought that Judge Richard Posner's vote against voter ID was an example because Posner is "famously conservative."

Actually, he's not. He may have been once, but Posner is now "famously liberal." I could say more about that. Posner has been, more than anything else, a pragmatist and relativist - someone who doesn't believe in overarching principles. There is value in such approach, but the danger is that it becomes a crass utilitarianism in which there is little difference between one's political predilections and the law. I would suggest that Judge Posner is an example of the way in which the line between law and politics blurs, rather than an exception.

But I would have no problem finding many examples of what Mr. Miller is looking for. In the recent Act 10 cases, Justice Patrick Crooks used his concurrence to express his support for unions. The opinion had little to do with the law and everything to do with Justice Crooks' politics. One might criticize him for using a judicial opinion to express those views, but he did vote to uphold Act 10. He did it because there really was no serious argument for Act 10's unconstitutionality.

I could go on. Wisconsin's liberal justices voted to reject a procedural challenge to the constitutional amendment banning same sex marriage. Its conservative justices voted to reject a challenge to the state's domestic partnership bill. Despite what you may hear, conservative justices vote to uphold the claims of criminal defendants and liberal justices vote to reject them.

On the United States Supreme Court, the Obama administration has lost an extraordinary number of unanimous decisions. The liberals - and, make no mistake about it, Justices Ginsburg, Breyer, Sotomajor and Kagan are well to the left of the legal center - have voted against it. Conservatives voted to dismiss review of the Ninth Circuit's decision striking down California's constitutional amendment limiting marriage to one man and one woman because they thought the petitioners lacked standing.

One commenter to Mr. Miller's post cites Judge Richard Posner, who he describes as "famously conservative" but who voted to overturn voter ID, etc. Judge Posner is not "famously conservative." He may have been once, but he has moved sharply to the left. Judge Posner was always a tentative - an somewhat unusual - "conservative." His judicial philosophy is largely a sort of utilitarianism that is highly susceptible to his individual assessment of the merits of the question before him. Thus when his political views change, the outcomes change.

In this, his underlying approach is quite compatible with Professor Kennedy, one of the giants of Critical Legal Studies and my left-wing (and quite good) torts teacher.

Cross posted at Purple Wisconsin