Tuesday, February 05, 2008

Ignoring Butler's Real Record

I get to do what I want on this blog, but I see it with more of a political/sociological/media-criticism/music/movie/TV focus than legal. However, essential to the slowly-building WMC campaign against Justice Louis Butler is an attempt to twist sound legal reasoning for the strictly political purpose of getting rid of his historic, talented and independent voice on the Supreme Court in favor of the WMC recruit that is running against him. As such, evaluating the surrogate campaign of legal "scholarship" emanating from the growing right-wing of the Marquette Law School involves some legal analysis. This can put several of my seven regular readers to sleep. To them I say: be patient. I mean, it is Super Tuesday, after all, and after that, there will be precious little time left to kick Mitt Romney around the block. I’ll be there for you.

As I discussed previously, WMC is using surrogates to set the stage for their attack on Butler. WMC's official campaign won’t make its full-fledged public debut until a barrage of advertising and mainstream radio wing-nut squawking starts two weeks before the election on April 1st. They have already prepared an inadvertently-comical video featuring freshly-minted Marquette law professor and long-time right-wing blogger Rick Esenberg to show to groups of business people at lunches throughout the state. Dan Suhr, a research assistant of that same first-year law prof (just a coincidence, they say) has been producing a series of hit-pieces that purport to involve legal scholarship, waxing hysterical about how Butler’s work on the court contributes to "the further detriment of the safety, prosperity, and health of the citizens of many states, especially Wisconsin." All of this is used by the WMC network of radio and blog water-carriers for legal-sky-is-falling caterwauling, laying the base for the multi-million dollar ad campaign to come.

Mysteriously anonymous lawyer-blogger Illusory Tenant has gone after Suhr for his various leaps of logic and fact, and has engaged Esenberg in a series of highly-entertaining smack-downs over the substance of Suhr's leaflets. Although Esenberg claims his law student is a big boy who can speak for himself, he has recently spent a large amount of time and untold acres of his server’s hard-drive defending Suhr from IT’s solid assaults (without, so far, calling him vitriolic). I don’t know why Esenberg is so defensive about Suhr’s work, since, they say, the professionally-designed "research briefings" have emerged spontaneously, like the Immaculate Conception, without direction from Esenberg or money from the WMC. Maybe he thought this kind of pseudo-studious clap-trap could be distributed with impunity. Welcome to the era of the internets, Rick.

I’m not going to get in the way of IT’s delicious slicing-and-dicing of Suhr’s "work", but the young man made a comment on his right-wing blog recently that calls for some "strict scrutiny". During a joint appearance on an internet call-in show recently, Justice Butler responded to Judge Gableman’s fairly aggressive attack on him for his record in criminal cases by saying that he only ruled for the criminal defendant in 3% of the cases before the court, if you included the rejection of petitions for review. Suhr declared this "spin", because it included the petitions for review. Well, does "no" mean "no", or not? You’d expect that kind of distinction from a partisan hack, but then Suhr writes the following: "If the Gableman campaign is making a statistical assertion: in the majority of cases, Butler votes for the defendant, then they are only counting cases where the Court issued a decision." If ?!? Well, is Gableman claiming Butler finds for the defense "in the majority of cases", or not (I don't think he is)? And, if he is (he's not), is that contention anywhere close to true?

Suhr knows – or should know – the answer to that. At one point, Suhr claimed to have read "40 or so" opinions written by Justice Butler and you would assume, while searching the Supreme Court records for Butler "gotchas", he noticed how many times the justice joined majorities or dissents in criminal cases. He knows Butler hasn’t ruled for the defendant in the majority of cases, but he floats the idea out there in the middle of his post, muddles the Gableman position with an "if" and pretends like it might be true. He knows it isn’t. He wouldn’t spend his time parsing the words and exaggerating the impact a few select cases if Butler found for the defendant in a majority of cases; it would be up in the lead of his press releases, er, research papers.

In my spare moments between Super Bowl commercials, I reviewed all the criminal cases decided by the Supreme Court in the past two years, back to January 2006. My very informal review showed Justice Butler joining opinions or dissenting for the defense in 13 cases; while voting to uphold convictions in 18 cases -- not nearly a "majority" for the defense. Some of the cases finding for the defense were unanimous. In one interesting case, for those like Suhr who claim that Butler is anti-law enforcement, Butler joined Justices Crooks and Prosser in dissent when the majority of the court allowed the state to use an incriminating statement made by the defendant police officer during an internal affairs investigation, even though the officers had to talk to internal affairs or be fired. In his dissent in that case, State v. Brockdorf, Justice Butler wrote: "Every investigation must be done in a thorough and thoughtful manner. And when problems occur with individual officers in the performance of their duties, law enforcement must be able to police itself in a constitutionally permissible fashion." Law enforcement policing themselves...doesn’t sound very "anti-law enforcement" to me.

But, like all good propagandists, Suhr and his benefactors aren’t concerned with even the arguable truth as much as with the impression that his words leave. Suhr’s glossy publications (my favorite: A Bibliography of Everyone Who Said Anything Bad About Butler) are like the sloppy posts on the Drudge Report, to be used as fodder for willing mainstream radio and blog wing-nuts to cite to as authoritative legal analysis. We’ll see more of this, as well as the campaign to fight judicially-appropriate campaign tactics as WMC and its surrogates try to wrest the seat from one of the most talented jurists in Wisconsin history.

Back to you, IT.


Rick Esenberg said...

Well, doesn't that show that everyone is wrong? I am a bit surprised that it is that high. If you really wanted to do a public service, you could compare it to the percentages of other justices ands see how it changes as a justice approaches relection. (One of our former profs at MULS showed that justices vote less frequently with defendants just prior to having to stand for reelection.)

As for Daniel Suhr, I wrote what I did because I thought it illuminated certain issues in the race and because I think that some commentators have unfairly maligned one of my students.

You can imply that I am lying when I tell you that I did not know Daniel was doing this work and that I didn't see it until he posted it, but you have absolutely no basis to do so. I don't impugn your honesty and you might consider whether common courtesy demands the same of you.

John Foust said...

I think we can all take you at your word about knowing what Suhr was doing. On the other hand, can we ask if Suhr knew what you were doing and saying at Federalist meetings, or in commercials for WMC? Is it outlandish to suggest that he wanted to suck up to the boss, so to speak, especially if your politics already align?

Mike Plaisted said...


Here's the kind of games we play when an argument is proven wrong -- now you are saying, with no evidence (check with Suhr -- I'm sure he knows) that Butler must have gotten more pro-state in the past couple of years than he was in the past. How about the possibility that the WMC's campaign talking point that Butler is soft on criminals is a load of crap? That's more likely.

I think Suhr wants to play with the big boys and you should let him get out from behind your skirts and defend himself, if he can. I don't care if he's a law student, a first-year law prof or a 22-year practitioner -- his hatchet jobs on Butler's record should stand or fall on their own.

I could imagine what would happen if a lefty law professor had a student twisting the record of an incumbant that you supported -- you could hear the screeching of outrage all the way to Madison (or even further on clear-channel right-wing TMJ. I don't know why Suhr should get a special pass.

I must say I was skeptical that Suhr just happens to spring forth with this glossy, WMC-helpful product on his own. You aren't saying that you are not working with him on his future products, are you? I'll give you a pass on that bibliography -- I mean, that was just embarrassing. Fine, you say you had nothing to do with it, I'll take you word for it.

I'll also take your word for the fact that your video with WMC was unpaid, but I don't know why that would be. They are throwing millions of dollars around on this race -- I'd charge them the premium rate in the future if I were you. They certainly are not a damn charity.

Daniel Suhr said...

You will simply have to take my word that I would have done my blogging on this race whether or not I had Prof. Esenberg as a professor. This was so last year during the Ziegler race - I was blogging about Linda Clifford's suggestion of hiking taxes for public schools long before I was working as Esenberg's RA.
While I appreciate the idea that my memos were "glossy," the reality is that Microsoft Word allows you to save documents as a PDF, and that's more reader friendly for a long document than pasting it all into Wordpress.
And I happen to like my bibliography. For starters, it is helpful to show that I am not the only one concerned about new federalism and the activist direction of the Court. Second, I think it is valuable to recall during the election season some of the public discourse that happened several years prior to this election but very relevant to it.

Mike Plaisted said...


Thanks for checking in. So...you found the Federalist Society cabal of Esenberg, Sykes and Brennan to say bad things about the "Butler Era" (a laughable exageration, but I digress); you found various self-appointed business people to make their usual complaints about the Wisconsin business climate; various medical industry hacks to complain about the successful equal protection challenge to the caps on medical awards (if you are ever a victim of such malpractice, let us all know what you think of that one, please); and a lieutenant (wow!) of the Madison police department (Madison!) to complain about some decisions on criminal cases. What, David Clarke was out of town?

Sounds like a good hour or so of work for that piece. What did you do the rest of the day?

I notice you are ignoring the more important points in my post, about your snarky implication that Butler finds for the criminal defendant in the majority of such cases. You knew that wasn't true when you wrote it.

Hey, but the truth is for suckers, right Dan?

Anonymous said...

My very informal review showed Justice Butler joining opinions or dissenting for the defense in 13 cases; while voting to uphold convictions in 18 cases -- not nearly a "majority" for the defense.

Good point, not least because it highlights the absence of any meaningful data (that I'm aware of anyway). Something like the work done by Scotusblog, though it wouldn't have to be as comprehensive. I suspect that it'd verify Michael's "informal review."

That said, I'd nonetheless be concerned that any such systematic effort would leave justices voting with one eye on the court record, the other on the emerging statpack. Or maybe they already do have an internal counter; no need for a SCOW Statpack. Rick Esenberg's fascinating advisal that "(o)ne of our former profs at MULS showed that justices vote less frequently with defendants just prior to having to stand for reelection" bolsters the point. Not much of a shock, I have to say.

In the end, I suppose it comes down to which side's polemics holds sway. If the electorate is fixated on conviction-reversal rates then that concern will surely be reflected in the justice's voting patterns (for some, apparently, more so as the election draws nigh). But if fixation is on upholding individual rights and liberties, then that's something else. Will larger concerns about waterboarding and warrantless wiretapping leach down to the level of a state election? Could be. Louis could do worse than tap into that sentiment.

Bill Tyroler

Anonymous said...

You make it sound like Luigi Butler has squatter's rights to his supreme court seat.

He was not the best candidate for Dimwit Doyle to nominate. If you recall, Diane Sykes soundly beat Luigi for the supr crt. This election will resolve that matter.

By the way, if there was an opening on the supreme court, Doyle would probably nominate Linda Clifford!


Rick Esenberg said...

Here's the kind of games we play when an argument is proven wrong -- now you are saying, with no evidence (check with Suhr -- I'm sure he knows) that Butler must have gotten more pro-state in the past couple of years than he was in the past.

I didn't say that. I cited some work that suggests that there is evidence that some justices (not Butler because he wasn't on the court when it was done) change up when elction is nigh. I think it's an interesting question and could use more work. Everything that I say does not have an ulterior political motive.

As for the growing right wing at Marquette Law, I guess you have me there. The number of conservative full time faculty members did double - from about 2 to 4. But you can rest assured that Obama or Clinton will quite handily carry the faculty here.