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.