I am sure - or at least I suppose - the Chris Liebenthal is a decent enough guy in real life. Loves his family. Is kind to his friends. Doesn't kick puppies.
What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.
And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.
But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.
I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.
"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...
... it's boring.
*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.
Tuesday, November 10, 2009
Monday, November 09, 2009
Public Financing of Supreme Court Races: The Legislature Whacks A Mole
In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.
The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.
I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.
This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.
But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.
But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.
The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)
Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.
So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.
Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.
But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.
But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.
So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.
Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.
The moles win again.
Cross posted at Marquette University Law School Faculty Blog.
Sunday, November 08, 2009
Green Bay Agonistes
You can occasionally see the precise moments when Packer coaches lose their jobs. For Bart Starr, it was when he stood with folded arms and sat on his timeouts while the Bears ran down the clock and kicked a short field goal to knock the team out of the '83 playoffs. Ray Rhodes did the same thing against the Panthers.
Yesterday, Ted Thompson lost his job (there really is no need to wait until the end of the season)and Mike McCarthy will need a miracle to keep his. While I believe that Aaron Rodgers is a star in the making, I continue to believe that Thompson threw Favre under the bus a year too early. But that's not the problem.
He knew he had major problems on the offensive line and did nothing. He knew that he did not have the players (in particular, people that can pressure the quarterback from the linebacker position) to play the 3-4 and he did not do enough. (He did draft Clay Matthews.) While he has done a nice job of drafting in the lower rounds, he can't hit on the first pick to save his life. (Matthews, being a possible exception, although he was the second pick in the first round.)This has resulted in a lack of impact players. He has allowed unspent cap dollars to collect interest.
McCarthy is not in much better shape. You should have seen some improvement in the offensive line play by now. Rodgers should be making quicker decisions by now. The special teams shouldn't still suck.
It's not so much that they lost to Tampa Bay. Any team in the NFL can beat you. It's that the same things keep happening again and again. These guys will be lucky to make .500.
Yesterday, Ted Thompson lost his job (there really is no need to wait until the end of the season)and Mike McCarthy will need a miracle to keep his. While I believe that Aaron Rodgers is a star in the making, I continue to believe that Thompson threw Favre under the bus a year too early. But that's not the problem.
He knew he had major problems on the offensive line and did nothing. He knew that he did not have the players (in particular, people that can pressure the quarterback from the linebacker position) to play the 3-4 and he did not do enough. (He did draft Clay Matthews.) While he has done a nice job of drafting in the lower rounds, he can't hit on the first pick to save his life. (Matthews, being a possible exception, although he was the second pick in the first round.)This has resulted in a lack of impact players. He has allowed unspent cap dollars to collect interest.
McCarthy is not in much better shape. You should have seen some improvement in the offensive line play by now. Rodgers should be making quicker decisions by now. The special teams shouldn't still suck.
It's not so much that they lost to Tampa Bay. Any team in the NFL can beat you. It's that the same things keep happening again and again. These guys will be lucky to make .500.
Shame on President Obama
There are some criticisms of Barack Obama that go too far. For example, I did not share the outrage about his belated reference to the Fort Hood shootings. Yes, it was tone deaf, but that's about it. But his decision not to travel to Berlin for the twentieth anniversay of the fall of the Berlin Wall is more than tone deaf. This was one of the most significant and improbable events of the past fifty years; brought about, in large part, by constancy in American policy. To stay away is to send a message and it is the wrong message. Whether he seeks to placate the Russians, repudiate American exceptionalism or refuse to acknowledge a Republican accomplishment, rejecting what brought about one of the most remarkable and peaceful victories over tyranny is shameful. For the winner of a faux peace prize to ignore one of history's singular triumphs for peace is an embarassment.
Wednesday, November 04, 2009
Myron Gordon, R.I.P.
I only really knew Myron Gordon as a judge on senior status and tried only one case before him. It was a challenge by the NAACP to the method of electing judges in Milwaukee County. The plaintiffs alleged that county wide elections of judges denied black voters the opportunity to elect candidates of their own choice and sought election of judges on the basis of sub-county districts. We represented the Wisconsin Judges Association who had intervened as defendants. They did not want to be elected from smaller districts in which voters might not appreciate the array of considerations facing a judge. I remember, in particular, the testimony of one of our client's members who said that he did not wish to depend only on his neighbors in a North Shore suburb for reelection. He felt that it would make it very difficult for him to give a defendant from the inner city the benefit of the doubt.
At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I'd like to think that events - subsequent successes by black candidates on a county wide basis - have validated his judgment, but I may not be the best one to make that judgment.
Judge Gordon wasn't - on the bench - a warm person. He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.
Yet he wasn't unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.
I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.
R.I.P.
Cross posted at the Marquette University Law School Faculty Blog.
At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I'd like to think that events - subsequent successes by black candidates on a county wide basis - have validated his judgment, but I may not be the best one to make that judgment.
Judge Gordon wasn't - on the bench - a warm person. He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.
Yet he wasn't unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.
I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.
R.I.P.
Cross posted at the Marquette University Law School Faculty Blog.
For Tom Barrett, the Challenge of Staying Put
George Lightbourn had a great column in yesterday's Milwaukee Journal Sentinel. His point is that Tom Barrett must choose between running for Governor and a mayoral takeover of the Milwaukee Public Schools. The point is that a mayoral takeover, if it is to accomplish anything, must shake up the status quo and afflict the organized interests that have dominated the making of policy in MPS.
Mayoral control won't do that in and of itelf. The idea is that school board elections attract low interest and turn out. In those circumstances, special interests (defined as organized interests with an intense interest in school policy) will dominate. Because more people care about election of the mayor, transferring control to his or her office will make school policy more responsive to the public at large.
Doing that well will almost certainly require upsetting some interests that are rather powerful in Democratic politics, including the teachers' union. If the Mayor must pull his punches in pursuit of an office he does not yet hold, the takeover will not work as intended.
Although Tom Barrett as Mayor would certainly be subject to political pressures, an entrenched incumbent may be better able to deflect them than an aspiring gubernatorial candidate.
I have no idea whether Barrett will run and, of course, most Republicans would prefer that he not if only because there does not seem to be another credible Democratic candidate around. But it remains the case that Barrett, if he stays at City Hall, may have a chance to do something of far greater significance than anything he could hope to accomplish as Governor.
Mayoral control won't do that in and of itelf. The idea is that school board elections attract low interest and turn out. In those circumstances, special interests (defined as organized interests with an intense interest in school policy) will dominate. Because more people care about election of the mayor, transferring control to his or her office will make school policy more responsive to the public at large.
Doing that well will almost certainly require upsetting some interests that are rather powerful in Democratic politics, including the teachers' union. If the Mayor must pull his punches in pursuit of an office he does not yet hold, the takeover will not work as intended.
Although Tom Barrett as Mayor would certainly be subject to political pressures, an entrenched incumbent may be better able to deflect them than an aspiring gubernatorial candidate.
I have no idea whether Barrett will run and, of course, most Republicans would prefer that he not if only because there does not seem to be another credible Democratic candidate around. But it remains the case that Barrett, if he stays at City Hall, may have a chance to do something of far greater significance than anything he could hope to accomplish as Governor.
Monday, November 02, 2009
Not our fairy tale
I knew it was a high risk proposition but we decided to go to yesterday's Packer-Vikings game. It was one of those things that could have gone better.
Brett Favre has certainly got his validation in that he is still an outstanding quarterback. But Aaron Rodgers showed that - today - he is just as good, if not a little better. Favre is making better decisions than he ever did as a Packer but there were very few years (if any) in which he had the supporting cast that he has now. Rodgers could, I suppose, make some decisions more quickly but he matched Favre blow for below without the advantage of a hall of fame running back and a competent offensive line.
But that brings us to Ted Thompson's real sins. It was criminal to go into this season with that offensive line. They played better in the second half (and Rodges may have been making better reads) but they cannot run block and are porous against the pass rush. You cannot build a team today while almost completely abjuring free agency. Give Rodgers time to throw and there are few teams he couldn't pick apart.
But there is more than personnel at work here. Much of offensive line play is coaching. Avoiding penalties is coaching. I think it remains an open question whether moving to the 3-4 was wise with the players this team has.
Whatever the truth of the latter point, I would love to see stats on how long Favre had to throw as compared to Rodgers. I am not sure that Favre was hit until the fourth quarter. He had forever to throw and boulevards for passing lanes. Rodgers was sacked six times and avoided at least that many with his mobility.
The difference in this came was not Brett Favre. It was the offensive lines and Percy Harvin. But Favre is playing at a Pro Bowl level.
Brett Favre has certainly got his validation in that he is still an outstanding quarterback. But Aaron Rodgers showed that - today - he is just as good, if not a little better. Favre is making better decisions than he ever did as a Packer but there were very few years (if any) in which he had the supporting cast that he has now. Rodgers could, I suppose, make some decisions more quickly but he matched Favre blow for below without the advantage of a hall of fame running back and a competent offensive line.
But that brings us to Ted Thompson's real sins. It was criminal to go into this season with that offensive line. They played better in the second half (and Rodges may have been making better reads) but they cannot run block and are porous against the pass rush. You cannot build a team today while almost completely abjuring free agency. Give Rodgers time to throw and there are few teams he couldn't pick apart.
But there is more than personnel at work here. Much of offensive line play is coaching. Avoiding penalties is coaching. I think it remains an open question whether moving to the 3-4 was wise with the players this team has.
Whatever the truth of the latter point, I would love to see stats on how long Favre had to throw as compared to Rodgers. I am not sure that Favre was hit until the fourth quarter. He had forever to throw and boulevards for passing lanes. Rodgers was sacked six times and avoided at least that many with his mobility.
The difference in this came was not Brett Favre. It was the offensive lines and Percy Harvin. But Favre is playing at a Pro Bowl level.
Saturday, October 31, 2009
More on the recusal rules
I didn't have a lot of time to explain why I think the state supreme court seems to have gotten it right in rejecting a proposed rule changes advanced by the League of Women Voters and retired Justice William Bablitch and in adopting changes advanced by WMC and the Wisconsin Realtors Association.
The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a "mass communication" on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.
A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.
I think this still goes too far - particularly in large counties and definitely for state wide races. Because it applies to "in kind" expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.
This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might - particularly in a circuit court race. But I don't think it is fair to say that such a contribution would always create a potential for bias such that recusal should be warranted notwithstanding a judge's subjective determination that she can decide the matter impartially.
But the largest problem, I think, is the suggestion that an "indirect interest" might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that - without further definition - it may be read to imply a broad duty to recuse based upon supporter's ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.
Justice Bablitch himself conceded that the term "indirect support" was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court "thumbing its nose" at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.
Rather, they make clear that recusal cannot be required "solely" due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.
I don't think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.
Having said that, it's not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.
Cross posted at Marquette University Law School Faculty Blog
The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a "mass communication" on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.
A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.
I think this still goes too far - particularly in large counties and definitely for state wide races. Because it applies to "in kind" expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.
This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might - particularly in a circuit court race. But I don't think it is fair to say that such a contribution would always create a potential for bias such that recusal should be warranted notwithstanding a judge's subjective determination that she can decide the matter impartially.
But the largest problem, I think, is the suggestion that an "indirect interest" might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that - without further definition - it may be read to imply a broad duty to recuse based upon supporter's ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.
Justice Bablitch himself conceded that the term "indirect support" was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court "thumbing its nose" at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.
Rather, they make clear that recusal cannot be required "solely" due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.
I don't think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.
Having said that, it's not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.
Cross posted at Marquette University Law School Faculty Blog
Conference on the Wisconsin Supreme Court: Review and Preview
At the beginning of this semester, I proposed that the law school host a conference on the Wisconsin Supreme Court. Dean Kearney lent his support and we were fortunate enough to obtain the co-sponsorship of the Appellate Practice section of the State Bar of Wisconsin.
So yesterday we hosted a sold out gathering of over 100 lawyers for "Conference on the Wisconsin Supreme Court: Review and Preview." Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L'84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.
This discussion was followed with breakout panels discussing business and criminal law cases, respectively. The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O'Hear and featured DOJ lawyer Greg Weber (L'87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.
The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court's recent history. This panel was moderated by Michael Brennan and consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like "activism" and "restraint" and considered their use in relation to judicial campaigns.
Break our sessions followed lunch. A great discussion of the court's cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker. At the same time, a panel on the court's liability cases was chaired by our own Jack Kircher (L'63) and featured two adjunct professors, Habush partner Tim Trecek (L'93) and Ralph Weber of Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.
The group came together one last time to preview cases on the Court's docket for the '09-'10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court's work.
In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.
To all who participated or attended, we'll see you next year in Eckstein Hall!
Cross posted at the Marquette University Law School Faculty Blog.
So yesterday we hosted a sold out gathering of over 100 lawyers for "Conference on the Wisconsin Supreme Court: Review and Preview." Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L'84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.
This discussion was followed with breakout panels discussing business and criminal law cases, respectively. The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O'Hear and featured DOJ lawyer Greg Weber (L'87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.
The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court's recent history. This panel was moderated by Michael Brennan and consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like "activism" and "restraint" and considered their use in relation to judicial campaigns.
Break our sessions followed lunch. A great discussion of the court's cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker. At the same time, a panel on the court's liability cases was chaired by our own Jack Kircher (L'63) and featured two adjunct professors, Habush partner Tim Trecek (L'93) and Ralph Weber of Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.
The group came together one last time to preview cases on the Court's docket for the '09-'10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court's work.
In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.
To all who participated or attended, we'll see you next year in Eckstein Hall!
Cross posted at the Marquette University Law School Faculty Blog.
Thursday, October 29, 2009
SCOWIS Conference Sold Out
If you snoozed, you lost. Tomorrow's conference on the Wisconsin Supreme Court at Marquette University Law School is sold out. Unfortunately, it cannot be podcast due to some technical problems. But you can read the highlights here.
The Supreme Court Gets It Right
It won't surprise anyone that I think the state Supreme Court did the right thing yesterday in rejecting the recusal standard proposed by the League of Women Voters and clarification of what, in and of itself, should not require recusal. The latter was, I think, required by what I think has been wildly irresponsible - and ideologically imbalanced - allegations and hints of bias from groups like the Wisconsin Democracy Campaign and One Wisconsin Now.
So I am also sympathetic to Justice David Prosser's impatience with Michael McCabe. The problem is not simply Justice Prosser's understandable irritation at the partisan way in which WDC pushes its "reform" agenda, but the way in which WDC itself undercuts public confidence in the court by its cynical promotion of extremely naive notions about the way in which the process works.
There may be judges who would sell themselves for the price of a lawful campaign contribution or endorsement but I have yet to meet one. It is certainly the case that elected judges worry about reelection. One judge has famously referred to the subject as a crocodile who sits in the bathtub while you're shaving. You try to ignore him, but you can't.
But nothing proposed by LWV would change that. If it worked the way folks like McCabe want it to, it would hand judicial elections to incumbents and insiders. What it would really do is complete the process of handing them to independent groups.
So I am also sympathetic to Justice David Prosser's impatience with Michael McCabe. The problem is not simply Justice Prosser's understandable irritation at the partisan way in which WDC pushes its "reform" agenda, but the way in which WDC itself undercuts public confidence in the court by its cynical promotion of extremely naive notions about the way in which the process works.
There may be judges who would sell themselves for the price of a lawful campaign contribution or endorsement but I have yet to meet one. It is certainly the case that elected judges worry about reelection. One judge has famously referred to the subject as a crocodile who sits in the bathtub while you're shaving. You try to ignore him, but you can't.
But nothing proposed by LWV would change that. If it worked the way folks like McCabe want it to, it would hand judicial elections to incumbents and insiders. What it would really do is complete the process of handing them to independent groups.
Subscribe to:
Posts (Atom)
