Tuesday, January 29, 2008

State of the Union 8: A Fantasy

As the presidential limousine pulled up to the South Portico for the ride up Pennsylvania Avenue, George Bush Jr. stood stoically and stiffly, poured into his regular uncomfortable performance suit, his hands and his wife stiffly at his side. Another long ride up the short street, the trappings of power in front and behind him; the flashing lights, the sirens, the motorcycle cops and the dark mysterious Secret Service men enveloping his space, every angle covered to protect him from anyone foolish enough to think they could make a name for themselves by getting to the Worst President Ever.

During the limo ride, he thought about his misbegotten presidency. For seven long years, he had read every script they put in front of him, made every appearance, official and for the party. He sat through endless hours of meetings with other people talking, only to have him give the pre-ordained approval to whatever plan someone else had. He acted engaged (as best he could) if the cameras were on or in front of the selectively selected "real" people. Other than the two hours they gave him everyday to escape to physical workouts in the gym or on his bike and his strategically early bedtime, he’d done every goddamn thing they asked him to do. All in all, it had been just about the same gig he expected when they signed him up to start this charade by running for Texas governor in 1994. It was OK, but it sure hadn’t been any better.

He still had a year before he could go back to the ranch for good and start scheduling the corporate speaking tour that would be the real pay-off for his willingness to go along with this presidential thing. As the Capitol grew in the foreground, he realized that this would probably be his last night on the national stage in prime time. No one will be happier about that than him.

George never cared about politics, or even history. His entire adult life was spent trying to find a niche. He was as miserable as his results in the oil business; happiest snapping towels with the players in the Texas Rangers’ clubhouse. He drifted into his dad’s world as the son of privilege; a corporate board here, a make-work job there. Of the brothers, Jeb was the politician, Neil the jerk-off. When they came to groom him as Reagan’s political heir, it was fine with him. He would hardly get in the way of the handlers as long as they kept up their end of the deal by taking care of him and his family after it was all over. Four years, possibly eight, then he would never have to work again. Sweet.

As his car rolled up to the Capitol, he felt the usual discomfort he always did having to meet these damn people. Most people in the jabbering class thought it was the press that annoyed him the most in Washington, but he could avoid them just by keeping away from their restricted quarters. He always met the media on his terms, be it in cushy interviews with empty network stars or Fox News lackeys or during press conferences, where he abruptly gave minimal answers to a minimal number of questions. Hell, he knew so little about what his own administration was doing, the press was bound to fail getting anything out of him anyway.

But Senators and House members were another thing – he had to deal with them once in a while, in various receptions and at events like this. They all said they cared so much about this or that and tried to get him to move one way or another. Weren’t they paying attention? Didn’t they know they had to talk to Rove or Cheney to get words to come out of his mouth? Did he ever give the impression to anybody that he cared about anything in this stupid town? Why would they think he did?

Running the gauntlet of glad-handers lining the halls of the Capitol that led from the car to the House chamber podium, he felt the mantle of his presidential pose lift for a moment, a crack in his psychic veneer he hadn’t allowed before. For the first time, he flirted with showing them the Real George Bush, the guy named Junior before he was cynically renamed "W" by political handlers. What would happen if they suddenly found the simple failed schmuck standing in front of them, just like he was before being plucked from deserved obscurity and built from the ground up by Karl Rove? As phony as he was, he was probably still the most real person in the room, if he allowed himself to be. These thoughts of fancy vanished as he stepped up to the podium and shook hands with Dick Cheney. Cheney looked concerned, but he always did. The program clicked in and Bush faced the Congress and the Nation.

The script followed not only familiar patterns, but many of the same actual words of SOUs past. The continuity had something to do with the regrettable lack creativity and flexibility of the administration, but also with comfort zone Bush himself had developed with the material. The emotional span of his speaking "style" ranged from amused to stern, and he knew people didn’t take him very seriously anyway, especially at this point. Knowing he had long since faded into the nation’s political past, his handlers had set this one on "coast". Applause lines were predictably interspersed with words that dared the Democratic side not to stand, such as praise for the troops in Iraq, etc. As Bush read from the transparent teleprompter and watched the see-saw of Congressmen and Senators alternately applauding, getting up and sitting down in rhythm to his speech, his mind again wandered to his uncharacteristic urge to mix things up a bit.

"Tonight the armies of compassion continue the march to a new day in the Gulf Coast," he began in his now-annual effort at Katrina/FEMA damage-control. Before reading on, he stopped and took a drink of water, looking out at the anxious faces as he did so. He heard the rustling of papers, the nervous impatience of his listeners in the silent hall, all with something better to do. "America honors the strength and resilience of the people of this region." He paused again, and took a deep breath. Aw, what the hell, he thought. "You know, I used to have a lot of fun down in New Orleans, back in the day. My buds and I used to cruise up and down Bourbon Street...Hell, we’d be drunk by noon."

Instead of recoiling, he heard applause. Half the room stood, this time scattered on both sides of the aisle. What was going on, he thought. Where are the gasps of disbelief, the nervous laughter of the unknown? For crying out loud, he just got seriously and dangerously off-script for the first time in seven years and...nothing. He imagined the network anchors scrambling for their headsets; the political operatives designing instant spin points in the back rooms; Cheney glowering behind him, grasping his chest as the pacemaker tried to get his heart back in sync.

But, no. Then he got it. Everyone in the room was as much on autopilot as he usually was. They were applauding the line about bringing an international conference to New Orleans that was in the script, not what he actually said. There was no reaction to his off-script comments because they didn’t hear it. Well, they heard his voice in the room, but they assumed he said what they were reading in the pamphlet. So they clapped, stood up (or not) and waited for the next subject.

Those bastards, thought Bush. There he was, knocking himself out to be the smooth, predictable hand-puppet all those years, and now it didn’t even matter. They were all as bad as he was – cynical actors on a national stage. They wouldn’t even give him the honor of recognizing when he screwed up. They had already moved on, jockeying on the floor with Clinton and Obama for favors and status, some of them looking to move up to the Cabinet – more influence with a (much) better president. Bush was a mere prop; his speech an excuse to get together and really plan for the nation’s future.

Bush chuckled to himself, took another drink of water and got back on script. He raced through the rest of it, barely pausing to let the applause lines take hold, not even bothering to dwell on the national security pandering that had worked so well for so long. He jumped off the podium and worked his way through the hall and out the door for the last time, never looking back.

They had Laura down at the limo waiting for him when he finally got there. As they got in the car and headed back to the White House, George started chuckling while Laura looked out the window. "Man, that was something else," he said. "Yes, very nice speech, dear," allowed Laura. "No, I mean that part of the speech when I started talking about my days carousing in New Orleans," he said.

Laura looked at him blankly. "You did what, now?"

George Bush Jr. fell back in the seat of the car and took a swig from his bottled water. "Never mind," he said. They were right, he thought. It’s better this way.

Thursday, January 24, 2008

The Attack on Wisconsin's Independent Judiciary

Wisconsin Manufacturers and Commerce (WMC) and its surrogates continue to get their chorus of quacking ducks in a row in preparation for their forthcoming scorched-earth attacks on Supreme Court Justice Louis Butler. The latest part of that coordinated effort comes from a bunch of Milwaukee business lawyers, who wrote an op-ed piece in the Journal Sentinel last week. They stand opposed to the work of the Judicial Campaign Integrity Committee, a usually-uncontroversial State Bar effort that seeks to encourage candidates for the Supreme Court to follow traditional limitations designed to prevent judicial elections from becoming the sort of free-for-all that can happen in other types of politics in legislative and executive races. In doing so, they are attempting to pave WMC’s the road to the gutter.

The JCIC was formed by the State Bar with the charge to try to persuade the candidates to avoid false, unfair or otherwise offensive tactics and statements. Apparently, the four signatories to the op-ed opposing the work of the committee support false, unfair or otherwise offensive propaganda in a judicial race. Their op-ed is a preemptive strike to protect Michael Gabelman’s campaign, WMC and various other fellow-travelers from criticism by a distinguished committee when they go after Justice Butler in ways unheard of in a Wisconsin judicial race, which they clearly plan to do. Apparently, in that campaign, they intend to lie, they want to be unfair and they plan on being offensive. Why else would they oppose the innocuous goals of the committee?

The committee first piped up after it was informed by One Wisconsin that the Gableman campaign sent letters to various sheriffs and district attorneys around the state, criticizing nine close (mostly 4-3) cases decided by the Supremes where Justice Butler was in the majority, and implying that the cases would be decided differently with Gableman on the bench. The JCIC – in the calm, even-handed tone of internal legal-world controversies – mildly reminded candidates, their supporters and voters "that judges are not elected to ‘represent’ the interests of any specific group or political agenda, as is commonly expected of candidates for non-judicial office. Rather, their role is to administer justice in a fair and impartial manner."

This friendly reminder was hardly controversial, but it was too much for Gableman campaign manager and long-time Republican hack Darrin Schmitz, who showed his disdain for the necessary niceties of judicial campaigns by blurting out his ignorant – and false – opinion that Justice Butler "consistently sides with criminals over law enforcement". This led to another expression of dismay from the chair of the JCIC, Thomas Basting, who wrote that Schmitz’ comment was "precisely the kind of campaign rhetoric that I and other members of WJCIC hoped we would not hear or read." Basting asked that Gablemen "repudiate this rhetoric and join us in promoting public confidence in a fair and impartial judiciary."

Rather than repudiate his campaign manager’s stupid comment, Gableman remained silent. Meanwhile, the WMC and its surrogates took to the mainstream radio airwaves, the blogs and the Journal Sentinel not to address the important issues raised by the JCIC, but rather to attack to committee itself. According to the business lawyers’ op-ed, the JCIC has no business trying to turn a judicial race into a namby-pamby contest of such outdated matters such as qualifications and impartiality, or, as WMC video-star Rick Esenberg calls it smarmily, "the mystification of judicial campaigns". Speaking of the pledge that the JCIC asked both campaigns to sign, the op-ed signatories opine that "much of the pledge is devoted to preserving the judiciary's image. However noble this goal, it should not be at the expense of free speech." They would let the hounds of partisan politics howl in judicial races and let the voters sort it out. "False advertisements or ad hominem attacks are never appropriate. But Wisconsin citizens are smart enough to distinguish between fair criticism and scurrilous smears."

Well, let’s have at it, then. There is this little matter, however, of the Supreme Court Rules regarding the behavior of judicial candidates. The WMC surrogates try to minimize the Rules to merely precluding candidates from offering opinions on cases that might come before them in the future. However, the rules require much more. From SCR 60.06:
  • A candidate for judicial office shall not appeal to partisanship and shall avoid partisan activity in the spirit of a nonpartisan judiciary.
  • A judge, candidate for judicial office, or judge-elect should not manifest bias or prejudice inappropriate to the judicial office. Every judge, candidate for judicial office, or judge-elect should always bear in mind the need for scrupulous adherence to the rules of fair play while engaged in a campaign for judicial office.
  • A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
  • A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

I suppose this sort of direction is just quaint piffle to the WMC surrogates, although it is actually in the Rules that govern the judiciary – including the obvious restrictions on "free speech". Has Gableman, in his sheriff/DA letter, "appealed to partisanship"? Did it adhere to the "rules of fair play"? By criticizing Justice Butler and pretty much promising a different result, did he make commitments "that are inconsistent with the impartial performance" of his proposed future duties? Did the comments of his highly-partisan campaign manager "misrepresent the...qualifications, present position, or other fact concerning ...an opponent"? The language of the Rules are, if you want them to be, vague, but the intent is clear. From the preamble to the Rules: Intrinsic to all provisions of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.

The State Bar committee is simply offering its assistance in evaluating campaign behavior in light of the rules – on-the-fly, in real time. Although the op-ed complains that "the Bar should not try to regulate speech", the committee can’t regulate anything – it is only offering its input for public consumption; part of the process of the public being "smart enough" to evaluate the opposing claims of the candidates. I guess the WMC is concerned that input by the JCIC might make those voters too smart. The alternative, I suppose, is filing a complaint with the Judicial Commission if Gableman is clearly on the wrong side of the rules, in which case we could end up with another ethically-challenged justice taking the bench under a cloud -- notably, the least of WMC's concerns.

The problem that the WMC surrogates have with the JCIC, however, has nothing to do with noble concern about the abridgement of "free speech". In preparation for what they know is coming from the WMC and others, they are trying to change the expectations Wisconsinites have always had for clean, respectful judicial elections. They are trying to destroy the image and expectation of an independent judiciary. They are trying to promote Gableman as being on "your" side and paint Butler as being, well, not on your side. If they are successful, we lose a lot more than the dynamic, historic presence of Louis Butler on the Supreme Court. We will lose not only the appearance of an independent judiciary, but the independent judiciary itself.

Friday, January 18, 2008

The Swift-Boating of Obama Begins

I was heartened to see the revival of Mitt Romney in Michigan this week. There is no one still running on the Republican side (Giuliani and Thompson don’t count) who I would rather see get thumped by Clinton or Obama in November. Romney represents all that is wrong with the Republican party and does so in such an unabashed, sleazy way that his defeat would put an end to the "Reagan coalition" of greed-heads, religious nut-bags and dishonest schemers that put Junior Bush in office. A general election loss with John McCain as the nominee would be blamed on the failure of the GOP to stay "true" to its extremist roots and we would have to listen to the usual suspects bray at the moon for another four years. A Romney thumping would drive a stake in their embalmed hearts once and for all.

The only way Republicans can even get close to winning in November is if they are able to destroy our candidate. This is why I worry about Barack Obama as the Democratic nominee.

A trial balloon went up this week from the usual ugly suspects to see how vulnerable Obama is to the type of lies that they created out of whole cloth to turn just enough people against John Kerry to give Junior another predictably disastrous four years. Just as Kerry was unjustly pilloried on one of his strengths – his heroic service in Vietnam – by the GOP-funded Swift Boat front group, Obama is being attacked by wing-nuts national and local (for a laugh, check out the comments section) for his active participation in the Trinity United Church of Christ on Chicago’s south side. The TUCC is portrayed as unclean by the ambitious right because the church and its pastor, Rev. Jeremiah Wright, has honored Nation of Islam leader Louis Farrakhan with (get this) a laudatory magazine article in the TUCC’s house organ – which is edited by Wright’s daughter! Farrakhan, a convenient pariah due to his occasional anti-Semitic rants, is thus linked to Obama through Wright; a little game of Six Degrees of Separation that is being played not because anyone cares particularly about either Farrakhan or Wright, but rather because it serves to smear Obama.

Rev. Wright is indeed a player in Obama’s story arc. Obama has credited Wright with bringing him to the church and to a faith in Jesus Christ in the mid-80s. The title of Obama’s "Audacity of Hope" keynote address in ‘04 and his book is from a Wright sermon. Farrakhan plaudits aside, Wright has been controversial in his own right, embracing the "liberation theology" of New York reverend James Cone, emphasizing Africa’s contribution to Christianity and (gasp!) wearing dashikis. All of this is fodder for Republicans trying to take the sheen off of Obama’s media glow.

Nut-ball evangelical preachers – from Billy and Franklin Graham to whore-monger Ted Haggard – and their relationships to Republicans are somehow uncontroversial. But a black-power advocate and (with Farrakhan and others) Million Man March organizer? If this gets to be an issue – and you know, sensing traction, the talk-radio wing-nuts will make it so – it will be a little harder to build some context where African-American religious leaders like Wright are coming from and why Obama might follow.

I also assume there is more where this came from. As a community organizer in Chicago, I’d be surprised if Obama didn’t do some work with members of the Nation of Islam, if not the Nation itself, which is involved in the community in many positive ways. Right now, there is a little dweeb in the bowels of the RNC reviewing thousands of videos and pictures from the Million Man event, looking to find Obama. The coming Obama = Wright = Farrakhan smear campaign is as wrong and racist as it can be. I expect to see photos of the Black Power protest during the '68 Olympics and to hear the distant beat of African drums during ads by "independent" groups. But it might work with those who are wary of the unknown.

This is especially so because Obama has specifically positioned himself as someone who can bring in independents and some Republicans to provide a more broad-based victory and a badly-needed sense of national unity to face our various challenges. But independents are the primary target of attacks such as that on Obama’s religious congregation and the details of his community organizing. Independents who may be attracted to his message of hope and unity won’t even recognize him by the time the election rolls around.

Don't take my word for what the Republicans are capable of. Allen Raymond is a GOP operative who was hired by the party and convicted of jamming Democratic phones in New Hampshire on Election Day 2002. He has written a book about his dirty jobs and there is an interview with him this week on AlterNet. "These [wedge issues] are issues that incite people to vote on an emotional level. Often times in a survey you look for that wedge issue that gets a positive response, or the response you are looking for, from at least 60 percent of the electorate or those surveyed. And what that means is that's an overwhelming good issue." Let's see...would you be more or less willing to vote for Candidate A if you discovered that he was part of a black-power church whose pastor has heaped praise on Louis Farrakhan? Bingo!

As a former organizer myself, Barack Obama’s community work and conviction is a strong positive for me. I understand the black nationalist movement and the positive aspects of the Nation of Islam about as much as a white guy who grew up in New Holstein, Wisconsin can, but I'm not the target of the smear. If he gets the nomination, I’ve got his back against this kind of unscrupulous attack and all the others that you know are coming by those without souls, who have proved with Kerry, Max Cleland and others that they will do anything to win. But, because he is, for the most part, a blank slate and his life is, quite literally, an open book, an Obama nomination does bring with it a substantial amount of risk. You don’t know what is coming, but you know something is. For all his inspirational hope for a different kind of politics, there is no indication the Forces of Darkness will go along, even with the relatively-ethical McCain as the GOP nominee.

Unfair as it is, this is the best argument for nominating Hillary Clinton. For all of her establishment inclinations and moderate let’s-just-fix-the-damage aspirations, 18 years as a target of the Rove echo-machine have made her pretty much bullet-proof from the same sort of attacks -- as we all know from the TV writers strike, nobody likes reruns. There is Clinton fatigue, to be sure, but there is also fatigue from the shrill, often sexist attacks from the right (not to mention the MSM, but Chris Matthews apologized last night, so I suppose all is forgiven). She has indeed been tested and vetted. In a fair fight, I’d go for Obama – I’d buy the dream and fight to make it work. But a fair fight is not what’s coming. Obama may be able to get through the shit-storm. I know Hillary can and – I’m sorry – winning is more important this year than splitting hairs over who offers more "change" or "hope".

Tuesday, January 15, 2008

WMC Slowly Builds Phony Case Against Butler


Wisconsin Manufacturers and Commerce (WMC) is gradually laying the groundwork for their case against Justice Louis Butler (and, just coincidentally, in favor of their recruited challenger, Michael Gableman) in the April election. They recently came out with a video featuring freshly-minted Marquette law professor and right-wing blogger Rick Esenberg. Now, this week, comes a slickly-produced "white paper" by a Marquette law student (also a right-wing blogger) who just happens to be Esenberg’s research assistant, again picking apart Justice Butler’s jurisprudence and fanning the flames of "concern" by the usual suspects. The WMC logo is on the Esenberg comedy piece; not so the student’s "work", but the dark hand of the WMC stains all.

The Esenberg video is a slick production, with Esenberg seated in front of a wall of law books (natch), pontificating sonorously, politely and (mostly) indirectly on the Horrors of Butler. The video, titled "A Court Unbound" (suggested subtitle: "Attack Dogs Unleashed") appears to be crafted for those with short attention spans, breaking Esenberg’s rhetoric regularly with Power Point screens asking ominous questions. After a deliberately-slanted "discussion" of the decision Butler authored allowing a child injured by lead paint to sue the entire industry that put the poison in the walls, knowing it was poison, the silent screen asks "What does this mean for business?" Well, we’re the WMC, what the hell do you think he’s going to say? Esenberg does not disappoint on this point or any others.

WMC makes three points about Esenberg as an authority on any of this. Right away, he is identified as a law professor, which he has been, albeit a full professor for only the past six months. Charlie Sykes and others now like to use Esenberg as a legal authority since his professorship took hold, giving undue extra weight to the same things he’s always said anyway. WMC also makes sure that you know he was magna cum laude at Harvard Law, and bully for him. Finally, at the end of the show (only 5 minutes long), we are informed that Esenberg was not paid for his appearance in the video, as if he’s were just this average law professor we found in the halls and plopped a camera in front of. He’s hardly that.

The video is quite obviously directed at business owners in Wisconsin, who I assume the WMC are going to collect in various conference rooms around the state to try to get them fired up to work against Justice Butler (they are having a big to-do in Madison on February 28th to get the anti-Butler campaign going in earnest, no doubt). However, the video was helpfully distributed on various right-wing blogs and discussed on talk-radio, another example of the free advertising that Gableman will benefit from throughout the campaign.

Esenberg has referred to his video as "educational", but it is pure propaganda. The only time he really seems to get into it is at the end, where he claims a Supreme Court election is more important than a governor’s race "because, when the Court interprets the constitution to require something, you have to change the constitution." Or, you could just recognize the constitution for what it is and respect the rights it afford our citizens, but I guess that would be too much for Esenberg and the WMC. The video actually begs for a parody – if I could find a quiet shelf of law books (it’s all digital now), I’d do it myself. Slide: "Then what did Big Bad Justice Butler do?" Me-as-Esenberg: "He read the Wisconsin Constitution to give more rights than the U.S. Constitution! Can you believe it? Bwah-ha-ha..."

As for the "work" of his law student, fellow nut-right blogger Daniel Suhr, the anonymous attorney writing as Illusory Tenant beat me to the first call-out of this hit-piece in an excellent post. Although not identified as WMC product, "From the Pen of Justice Butler" (you can almost see Butler, quill in hand, hunched over the desk...) is another piece of the campaign to take down the incumbent with selective passages, false assumptions and helpful snippets from various dissents from Justices who ended up on the other side of the cases.

Illusory Tenant does a great job dissecting one of the cases (State v. Knapp) identified by Suhr as evidence of Butler’s supposed "activism" (i.e.: doing something we don’t want). I don’t have all day sitting around in an alcove provided by Rick Esenberg to pursue the specifics of each of the cases presented in the Suhr screed, but I happen to be very familiar with another one of the cases identified by Suhr as "failing to defer to the U.S. Supreme Court". In fact, the case is exactly the opposite – getting the Wisconsin case law in line with the U.S. Supremes – not the other way around.

The case is State v. Dubose, involving a "show-up" identification procedure, where the police display a suspect, standing alone, to witnesses, instead of using a photo or live "line-up", where several other similar faces or persons are presented to the witness along with the suspect to see if they can pick him or her out of a group. The opinion of the Court (not written by Butler; he concurred) makes it clear that the Wisconsin Supreme Court was changing from its previous standards on show-ups to comport with U.S. Supreme Court cases on the same subject; hardly ignoring or in conflict with federal law. However, not letting the facts get in the way of his political hack-job, Suhr confidently claims "...the Court significantly departed from its own prior precedent and that of the U.S. Supreme Court." Well, no.

Now, law students should not be judged too harshly for trying their hand at legal analysis, especially with a full head of righteous political steam. On the other hand, their amateur work – if that’s what it was – should not be spread around as reliable anti-Butler gospel, either, as it was by Esenberg and various of the other wing-nut blogs.

All of this is just laying the base, anyway, for WMC and their sycophants to try to make the case to throw out the enormously-talented first African-American on the Wisconsin Supreme Court in favor of an unknown judge from far-flung Barnett County. In the coming months, this will get much more ugly than Suhr’s sloppy research or Esenberg’s comical star-turn. The WMC spent over $2 million to get Annette Zeigler on the Supreme Court and they think they can do it again.

Full disclosure: I am a contributor and consider myself a friend of Louis Butler. Neither he or his campaign had anything to do with this post.

UPDATE: Rick Esenberg noticed this post and, besides not getting how unintentionally funny his WMC video is, purports to get all legal on my ass about my comments regarding the lead paint case (Thomas v. Mullet) and the Dubose case.

Esenberg "dares" me to back up my claim that he mischaractorized the lead paint case. Here goes: In the video, Esenberg says "suing an entire industry, although not unheard of, has been very limited to particular circumstances that really were not clearly present in the lead paint situation." There is a reason that he uses weaselly qualifiers in his statement -- "really were not clearly present" -- because he knows that the circumstances really and clearly were present. The Thomas decision was firmly rooted in cases against another industry that was spreading poison anonymously, knowing it to be poison -- that being the drug companies that brought us DES, a cancer-causing drug given during pregnancy, to supposedly prevent miscarriage, an industry, no doubt, Esenberg would also be defending. The only difference the Court in Thomas saw in the two circumstances was that there was someone else to sue -- namely, the poor landlord that used the poison paint.

Certainly, the opinion by Justice Butler had to explain much of the history of the lead paint industry -- this is the sort of necessary extrapolation that Suhr criticizes as "extensive citations to non-legal authorities" and "moral outrage substituted for sound legal reasoning" in Thomas. Justice Butler can't help it if the Court had to take a long time explaining the history and it's reasoning so that even he could get it. It is not surprising that he and Esenberg still pretend not to -- at least for the WMC's purposes.

Now that I have "dared" to take Esenberg up on his challenge, I can't wait to see what the consequences are.

As far as Dubose is concerned, Esenberg compares the Wisconsin Supremes trying to get in line with Stovall the equivalent of "the Wisconsin Supreme Court decided to abandon the rule of Brown v. Board of Education in interpreting the state equal protection clause and return to the 'separate but equal' rule of Plessy v. Ferguson". Well, no, although the radical right-wing of the U.S. Supremes could get there themselves any time now. The few cases that came after Stovall did not in any way overturn or reinterpret the Stovall language -- they were dealing with other suggestive IDs, such as those in a courtroom, etc. The Dubose court recognized as such:
  • "The Court, attempting to follow the 'totality test' developed in Stovall [in Simmons], determined that the in-court identification was not tainted. However, 'the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with the constitutionality of the out-of-court identification procedure. The only question was the impact of the Due Process Clause on an in-court identification that was not itself unnecessarily suggestive.' Brathwaite, 432 U.S. at 121-22 (Marshall, J., dissenting)."

Throughout the Dubose decision, the Court states that they are developing the new rule "with Stovall as our guide." "We adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court's decision in Stovall," the Court said, and so they did. This is hardly a "significant departure from...prior precedent...of the U.S. Supreme Court", as Suhr claimed in his hit-job. It is rather a fairly commendable attempt to follow the precedent of the U.S. Supremes in a way that gives it real meaning. If Esenberg and Suhr don't like the Court doing that -- which is, after all, their job --let them complain about it directly rather than claiming the Wisconsin Court is going off on wild tangents.

Esenberg complains that "these are all legitimate issues and not the result of some WMC/talk radio/Federalist Society disinformation machine." Well, I don't know where I'd get that idea, with the WMC propagating his video, talk radio and blog wing-nuts using the video and Suhr for anti-Butler fodder and the Federalist Society doing god knows what. Esenberg knows that he is helping to lay the groundwork for the scorched-earth WMC campaign to come. The line between his sainted notion of "education" and propaganda is a thin one, and he knows what side he's on.

Friday, January 11, 2008

Here and NOW -- The Death of Milwaukee's Suburban Newspapers

Southeastern Wisconsin was once blessed with a vibrant press that served the local communities that surround Milwaukee. What curious casual historian wouldn’t want to delve into the archives of weekly newspapers with charming, historical names like: Bay Viewer, Cudahy Reminder Enterprise, Franklin Hub, Elm Grove Elm Leaves, Germantown Banner Press, Greendale Village Life, Greenfield Observer, Hales Corners Village Hub, Mequon-Thiensville Courant, Mukwonago Chief New Berlin Citizen Muskego Sun Oak Creek Pictorial St. Francis Reminder-Enteprise, South Milwaukee Voice Graphic, Sussex Sun, Wauwatosa News Times, West Allis Star – not to mention all the various Heralds and Newses. To read the often-colorful prose in small locally-owned newspapers is to read the first draft of history, now the only link to small-town history itself.

The papers listed above were, no doubt, of varying quality and interest. Some may have been mere "shoppers" – quickly-produced free handouts that existed only so local businesses could get some advertising out to the locals. Some were more serious enterprises, with actual reporting and photography staffs. The best of them, I imagine, were published by entrepreneurs with an ax to grind – a local crusader who, rightly or wrongly, would rail against the Forces of Darkness and their damnable zoning decisions and school bond referendums. The small newspapers gave local communities soul and depth, if only to let us know what socialites were out at a holiday function for what charity. They are part of what made the communities surrounding Milwaukee more than just suburbs; more than just places to sleep before driving to the city for work the next day.

All of the newspapers listed above are now dead – or, I should say, are NOW dead. In 1997, Milwaukee’s home-town media behemoth, Journal Communications, purchased the CNI chain that served most of the communities, bought a few more, and proceeded in the intervening years to strangle the small-town press to death in its sleep. The ghosts of the newspapers that were haunt JCI’s NOW franchise, a doomed, desperate experiment in paper/internet cross-pollinization that is dissolving before our very eyes. The thin (28 pages) North Shore version of NOW that arrived with my newspaper this Thursday is now indistinguishable from the Walgreens flyer. All those historic newspapers apparently died for literally nothing.

After the Journal (unfortunately) survived the government’s anti-trust concerns and bought its CNI competitor, the company paid the usual lip service to continued service to the various communities served by the local papers. It wasn’t long before the newspapers were merged regionally – the Heralds of Whitefish Bay, Shorewood, Brown Deer into one; the various papers of St. Francis, Cudahy, South Milwaukee, Bay View into another. As late as 2002, the corporate types were still supporting the independence of the various properties and those working for papers still thought they had some (see this helpful review from a UW-Eau Claire student).

But the heavy hand of Fate came down in January 2006, when the Grand Poo-bahs on State Street announced that they were taking over the management of the CNI papers from the managers in New Berlin. In the two years since then, the separate newspapers were completely destroyed and the resulting NOW product has homogenized and, ultimately, euthanized the small-town press in southeastern Wisconsin. Early last year, the company gave up completely on selling the CNI product in stores and newsstands, instead including it with the Journal Sentinel newspaper on Thursdays.

When I first started getting the Thursday NOWs here in Shorewood, I was amazed by the vapidity of the product. The various communites served by the North Shore edition compete for a very small (and continually shrinking) news hole, on pages crowded by at least 50% ad space. But you never know what community they are reporting on from the headline. "Debt retirement a boon for village," NOW reported this week. Where? What village? That question is not even answered in the body of the story – you have to look all the way down to the bottom of the page to see the story is about Whitefish Bay. I think they do this so that you can still pretend you are reading a local paper – the old Whitefish Bay Herald didn’t have to name what village they were reporting on, unless they were saying bad things about Shorewood.

Most informative in NOW is the map of crime scenes in the area – by which I could keep track of arrests at Bay Shore relative to Mayfair, where the right-wing occasionally declares a crisis (result of analysis: no difference). It is always interesting to know that an iPod was taken from a vehicle a couple of blocks away, but the paper fails to give us details on domestic calls. "Police responded to one domestic incident this week." Who?! Inquiring minds want to know! NOW’s only real fresh coverage is on the sports pages, where you can at least keep track of your kid’s high school exploits on a slightly deeper level than in the J-S itself.

The early versions of NOW last year also had a fairly meaningless opinion page, since the paper has no independent opinion on anything. There, they ran a column from ubiquitous JCI darling Charlie Sykes (can’t get enough), Matt Pommer of the Madison Capitol Times and a couple of letters to the editor. Recently, NOW dropped the pretense of being a real newspaper and dumped the opinion page altogether (sorry, Charlie) in favor of Your Place, one page of writing by bloggers and others, of whom you only have about a 15% chance being from your actual place.

The dead-tree NOW is so entirely decimated, I think the idea is just to get you to the on-line NOW. You’d think that, with theoretically unlimited space, the on-line NOW would include just tons more stuff and really provide the broader community with some information. You’d be wrong. Besides the bloggers, whose various insights into and gripes about village life are taken with a grain of whatever they are salting with, there is no professional content to speak of. NOW is like a car without a driver, careening through the sea of information, swerving to avoid anything controversial or interesting.

Whatever NOW is, it is not in any way a local newspaper serving any of the communities that were once minding their own business with a newspaper of their own. Like too much of modern-day journalism, its content is vague and inoffensive, a thin excuse for the advertising that surrounds it. It is amazing, though, how far and how quickly the Journal Company abandoned the communities that they once pledged to continue serving when it bought CNI.

It is a classic example of the large corporation that eats up the competition and ends up killing its products. Whether Journal Communications intended to do that when they bought CNI 11 years ago is not important. That it happened is undeniable.

And, the sad thing is, that they can’t give it back. All that history, all that infrastructure of writers and editors and printers, all the written heart of the small town has been ripped out and can’t be replaced. If the Journal Company had a soul, they would just give the rights to the small-town papers back to whoever they bought it from, maybe with an apology and seed-money to start back up again. But the offices are closed, the editors moved on, the photogs out in the wilderness looking for birds. And when a future historical society looks for publications that define the communities of the early 21st century, where will they look? Not here. Not, certainly, NOW.

Tuesday, January 08, 2008

Pundits Eat Crow in New Hampshire

The explosion of the establishment commentariat on cable news channels has resulted in a dreary drone of outsider conventional wisdom declarations disguised as sly insider insight. Since the 2008 election season started in (it seems) January 2005, the usual suspects have gathered around the kidney-shaped tables of Matthews, Russert and Blitzer, smirking and winking in their clubby, fraternal way. As a group, they are remarkable not only for their sheer predictability, but also for their message stamina. They can and they have repeated the same trite analysis for weeks, no, months.

After treading water for a year, the pace accelerated dramatically in the past week. The Obama victory in Iowa gave the huge anti-Clinton constituency in the punditry a soapbox to pound on the former first lady in a way that they felt they couldn’t while they politely held their nose during the run-up to the first contest. The most dangerous place to be in the last four days was between a Washington pundit and a camera, where they could spew their words of contempt for all things Clinton – past, present and (not if they can help it) future. The elites on the cable panels took turns dancing and pissing on what they were sure was Hillary’s political grave.

Most of the regulars on these panels are tiresome MSM hacks that skew right and almost never get to the left of Howard Fineman. The right-wing is always represented by various of their heavily-subsidized echo-chamber publications like the Weekly Standard and the National Review – right-wing thugs like Bill Kristol, Pat Buchanan and Bill Bennett are stuck to their studio chairs with crazy-glue, the imprimatur of respectability bestowed upon them by otherwise moderate media corporations. Meanwhile, anyone from the poverty-stricken leftist press, such as it is, couldn’t buy their way into a studio audience, and, even then, would be carefully scrutinized for pink shirts and surly attitudes. It is this kind of twisted and limited-by-design center-right view of the world that brought us the war in Iraq, much less two terms for Junior Bush.

There is one cable channel, though, that is letting some of the unwashed left into the national conversation. MSNBC – the channel that once fired Phil Donahue for being too skeptical of the disastrous Iraq adventure – not only has the fiery and entertaining Keith Olberman with a growing prime-time audience. Chris Matthews on Hardball has let a few progressives poke their nose under the tent. Katrina Vanden Heuvel of the Nation has found an occasional seat in one of the Sacred Chairs, sunnily challenging the preconceptions of the pundit class, to the annoyed chagrin of the regulars.

But MSNBC’s election coverage the night of the Iowa caucus and the New Hampshire primary has introduced a new star in the left hemisphere – Rachel Maddow of Air America. Early in the coverage tonight, Maddow was actually complaining that she found herself in the uncomfortable position of having to defend Hillary Clinton against the incredible anti-Clinton attitudes of the MSM consensus – not the least of which was her host, Chris Matthews. This was uncomfortable for her, because she is probably more inclined, policy-wise, toward Obama or Edwards. But she didn’t back down from the challenge, even pointing out, after the Hillary win was becoming clear, that Clinton may have benefitted from a backlash against the MSM’s anti-Hillary endzone-dancing after Iowa – especially the snide comments of Matthews himself. Matthews did not have a chance to respond, but the point was made.

The pundits on all channels scrambled throughout the night to re-write their script to fit the surprising results. It was clear in the read-between-the-lines comments all day on the news channels that the exit polls were indicating another Obama win. As Hillary took the early lead and held it, you could see them glancing across the studio at each other, looking for a verbal life-raft to hang onto while the ground shifted under their feet. And, as pundits will, the first order of business was trying to explain why they were so wrong. To no one’s surprise, they did not bother to look in the mirror, where they might have found the problem.

Much was made of exit-polling showing that a large percentage of the voters made up their minds in the last three days. This led to speculation about what moved the late-deciders which, of course, led them to contemplate the near-tears episode Clinton had only yesterday when discussing her commitment to public service. I knew when I first heard the clip on the radio that it would lead to an enormous orgy of clucking, not only by the usual wing-nut tools, but also in the MSM.. I accurately predicted the consensus observations – she’s losing it because it’s over, it’s just like Muskie in ‘72, it shows how weak she would be in crisis and (my favorite) the whole thing was staged to get her sympathy of some sort. It was a ridiculous display of know-nothing, self-righteous psycho-babble that carried over to the election coverage, where some of the supposed smart-guys couldn’t think of any other excuse to "blame" Hillary’s victory on.

[However, my favorite Hillary-hate comments of the week came from local blogger James Wigderson and GOP-operative Brian Fraley, who speculated that Clinton hired the guys yelling "Iron Our Shirts" at one of her rallies. At least Fraley admitted that he was wrong (it was a stunt by Boston shock-jocks).]

I'm not sure the near-tears moment changed the dynamic all that much. I think a more defining moment may have been at a Hillary press conference earlier in the week. Chris Matthews used the opportunity as an excuse to ask her to appear on his show. "Yeah, right," she said and then said "I am always amazed by men who are obsessed with me." Matthews was still pleading that he wasn’t obsessed with her when she came up to him and gave him the ultimate Washington-insider hug and pat on the cheek. Matthews hasn’t been the same since – he has toned down his anti-Clinton rhetoric remarkably since that moment, and really had to eat it late tonight, when Clinton won and looked good doing it.

Now that Hillary has wriggled free from the grave the MSM thought they had her in, it will be hard for them to go back to the universally-condescending and dismissive tones they have employed until tonight. They don’t like her or her success any more than they did yesterday, but she now has the veneer, however temporary, of a winner. "Really," asks Mike Mathias in an excellent and timely post Tuesday morning, "what exactly is the problem people have with Hillary Clinton?" Don't hold your breath for the MSM to get all introspective about their atrocious behavior since Iowa. In any event, the coronation of Obama – interestingly and not-so-secretly desired by the Republicans – will have to wait.

Friday, January 04, 2008

Democrats Win In Iowa

What is with Chris Matthews? I’ve just spent most of the night watching the MSNBC coverage of the Iowa caucuses and Matthews would not get off of his anti-Hillary diatribes. He’s been doing it on his show for a long time – spending weeks criticizing her for such things as clapping – clapping! – at her rallies. When it was clear Obama would come out on top tonight, he imagined the Clinton brain trust scheming to make dramatic conversation-changing news in her concession speech (she didn’t). He scoffed at the crowd gathering for her speech in front of the cameras. Why, those people weren’t there a half-hour ago! They are plants of the campaign, not real Iowans! That cynical Clinton stagecraft. Why, no one else does that, right? He made a big deal out of the fact that two-thirds of the caucus attenders rejected her. Well, two-thirds of them also rejected Obama and Edwards (as pointed out by Rachel Maddow of Air America on Matthews’ panel, after I thought of it) – what’s his point? Matthews fevered harangues even unhinged Keith Olberman, who could barely get a tirade in edgewise.

But Matthews’ sour Clinton fixation could not diminish the enormous victory for the top three Democrats and the party itself in Iowa. The Democrats drew more than twice as many to their caucuses as the Republicans did to their straw polls – this in a state that made the mistake of going red for Bush in 2004. While the Democrats reveled in the spirited-but-respectful competition over who would best carry the banner of Change into the general election, the Republican were mired in a bruising mudfight over who could be more regressive, more pro-war, more anti-immigrant, more religious-nutty. The GOP went for an evangelical flash-in-the-pan, Mike Huckabee – a nice enough guy for someone who is so wrong about so much – who was obviously in over his head as he underwhelmed a room full of his supporters (maybe they were blinded by Chuck Norris’ teeth over his shoulder). The GOP had one winner (who has already been rejected by party leaders and lackeys, such as Rush Limbaugh, Mark Belling and Charlie Sykes) and many losers. All three top Democrats were winners, coming out fighting but united behind a common cause.

Barack Obama was, in the immortal word of Shelly Duvall in "Annie Hall", transplendant in victory. My impression of Obama in the various debates had been that he hadn’t yet found his voice – he looked like he was too cautious, almost afraid to say anything, perhaps over-consulted (a common disease). I had heard he found his voice lately on the stump and, indeed, he kicked ass tonight. The speech had everything – the call for change and hope, the historical perspective, call-and-response, perfect pitch and pacing, joy – it was one of the best speeches I’ve watched in some time. If he can carry this momentum for a couple of weeks, he may well be the nominee of the united party.

Clinton was as gracious in defeat as John Edwards was just slightly rude by not congratulating Obama. (But the award for classlessness goes to Mitt Romney, who spoke at the same time Huckabee did, meaning no one would see him on TV as he slunked out of Iowa’s backdoor.) For all the snide comments in the chattering class about Hillary’s mean streak, sense of entitlement, etc., she talked effectively about a Democrat – and not necessarily her – winning in November. For the first time, you could almost see her applauding the torch passing to the next generation. Edwards gave the firebrand speech of the night, giving live examples of the victims of corporate greed, but, alas, Edwards takes little momentum or anything else out of Iowa.

With the field already winnowed by the end of the night (Biden, Dodd out. Richardson?), the debates will gain focus and intensity. I doubt any of the Dems will go negative on each other – all of them seem to have a good sense of the unity necessary for the ultimate prize. The next frantic couple of weeks will be when the messages get massaged and the candidates start aiming for the other side.

I always thought Hillary got too bad of a rap from those who would be for her if she was anyone but Hillary Clinton. The strongest case for her electability is that she really has been beaten and flogged by the full GOP machine for over 15 years. There is nothing new for them to dig up about her – she has been tested and has won most of the battles she has fought. Remember: the only way Bush won in 2004 is by making Kerry look as bad as possible, and they did it by swift-boating him – scandalously attacking the very heroism that was one of his primary strengths.

The same bastards will do the same with Obama, and, having lived a full life, I’m sure there is lots of material to work with. This isn’t a reason not to make this remarkable man the nominee – there is a limit to how much power we should give our opponents to use fear to control our choices. But we should walk into this choice with our eyes wide open. The Obama you see now will look different by November, to the general public, if not to you. You think the right-wing echo-chamber has been hard on Hillary? Watch what they do to try to define Obama now that he has a serious chance, starting on mainstream radio tomorrow.

The exhilaration of all the Democratic campaigns as they celebrated in Iowa was palpable on our TV screen tonight. Whether they finished first, second or third, they know they have gotten a great start in the beginning of the end of Republican rule. In Denver this summer, Obama, Clinton and Edwards will stand on the podium of the convention and raise their joined hands in unity. Then one of them will step up, accept the party’s nomination and go on to thump whatever hapless Republican gets in their way in November. And it all started in Iowa.

Wednesday, January 02, 2008

McIlheran: Fighting the War of The Big Bad Words

It’s been about three years now since the Journal Sentinel elevated copy editor Patrick McIlheran to a newly-created Wing-Nut Columnist chair. Apparently, the powers-that-be at the J-S felt Wisconsin was just not getting enough of the GOP-driven right-wing echo-chamber message through its radio station and decided to give Paddy Mac a show of his own on the op-ed page.

Since then, there being no lefty alternative in the paper, McIlheran has been free and unchallenged to spread the gospel of Rove and consort with the usual suspects to produce the written version of wing-nut radio, waving the J-S imprimatur and circulation numbers (such as they are) like a bludgeon to smite all uppity challengers to right-wing orthodoxy. It gives the right-wing another pillar to bounce off of – Sykes cites to McIlheran, McIlheran to McBride, McBride to McIlheran, etc. – as the nut-right seeks false legitimacy through the sheer repetition of its message in various forums. McIlheran's most recent campaign was fighting for the right of doctors to deny rape victims a reasonable way to avoid the most unwanted of pregnancies. Woman-as-incubator apparently plays well with the base. Brave stuff, this.

As the wilting right increasingly turns its lonely eyes to Paddy Mac for inspiration (and such far-flung publications like the right-wing New York Sun reprints his disjointed prose), Our Local Columnist seems to be feeling his oats. To start the new year – certainly an important one in nut-right Message-Land, what with all these elections and such happening – McIlheran in his latest column has set out to define the terms used by various entities with whom he has issues – which is to say, everyone except for his close cadre of wing-nut talkers and bloggers. Language is power, as McIlheran knows, and if he can reduce the power of descriptive words through nose-in-the-air ridicule, it leaves a void that only he can fill. Or so he thinks.

In the typically disjointed, unreadable column, McIlheran explores the use of innocent words by supposedly guilty people. "International: More sophisticated than you, you hick," he quips, and you can almost see the back-slapping, side-splitting hilarity with which this is greeted at the right-wing blogger holiday parties (including this one, interestingly, featuring Supreme Court candidate Michael Gableman). This marks the first time the word "international" has ever been controversial at all, much less identified as a Trojan horse for nefarious lefty-ism, but, hey, impugning the use of simple English words has to start somewhere. Not for them the intellectual complexity of understanding other countries – after all, they can barely get their brains around what’s happening in this one. He even throws in a "French is liberal" joke – how 2003 is that?

McIlheran also has issues with the idea of "smart" anything. Smart cars, smart growth, smart budgeting – enough! Give him Dumb any day over this thinking so much brain hurt. "Sustainable" is for suckers; "speaking-out" for the pretend-victim. Concepts like "modern" and "progress"? Only for the deluded or the city planner, apparently. Progressives want to "party like it’s 1899," he says, obviously upset with the end of the Spanish-American war.

Throughout, McIlheran flogs the shop-worn canard of lefties and the MSM as brie-and-cheese elitists, talking down to You and I with their Big Fancy Words. I always thought this talking-point was funny coming from the cloistered privileged on the right, many of whom wouldn’t step out of their limousines to touch dirty pavement if their life depended on it. I’m a cheddar-and-Triscuit man myself, but does it really make any difference whether the right hangs in gated communities in Mequon, drinking single-malt scotch and eating steak tartare, and we hang out in union halls drinking beer and eating ham-and-cheese? Well, yeah, but not like they think.

With entries like this from McIlheran, this may prove to be a very long year in the War of Ideas. "I don’t mind a parasite," says Bogart to Peter Lorre in Casablanca. "I object to a cut-rate one." I suppose it’s too much to ask for the Journal Sentinel – which runs the syndicated column by the deplorable Jonah Goldberg – to do any better in the "marketplace of ideas" department. Perhaps it’s time for another shy young man or woman on the copy desk to seek an audience with someone on the upper floors to deliver a nervous leftist perspective so missing in the Only Newspaper in Town. Turn-about is fair play, and, besides, they couldn’t do any worse.