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.


Anonymous said...


Why do you have to point out that Justice Butler is an Afro-American? Why should that even matter?

Mike Plaisted said...

Why does that worry you, John? Are you worried that you might be perceived as trying to take down a historic, accomplished jurist in Wisconsin? I can see why that might be a concern for you. Not my problem.

Anonymous said...


It does not worry me in the least. I just do not think it matters that Justice Butler is black. I will not vote for him because he is a liberal, white or black.

I seem to recall that he was crushed when he tried to get elected in 2000. He is only on the court because Doyle appointed him.

If the majority of the people in this State agree with his judicial philosophy, then so be it. I just hope his race does not enter into it.

Anonymous said...

Any chances of Wisconsin media reporting on this hit squad? It looks like an organized smear job, above and beyond the typical partisan campaigning.

Anonymous said...

Yeh, being appointed to the state's highest court is a real career ender, John P.

Tell it to the judge appointed to it 30 years ago -- the top judge, the chief justice of our state's highest court.

Rick Esenberg said...


Here's my problem. You could have argued that SCOWIS should have interpreted the Wisconsin Constitution to require more than the US Constitution.

But you didn't do that. You chose to suggest that one of our students doesn't know how to read a case. In doing so, you characterized the case in a way that is just flat out wrong and the very guy that you are defending, Justice Butler, says so. He wrote in Knapp, that DuBose "departed from current federal law."

His words. Not mine.

And he's right.

You certainly know that the Biggers-Braithwaite approach required courts to look at the reliability of the identification before excluding the evidence something that the court in DuBose said Stovall did not require. Even if Stovall wasn't explicitly overruled, subsequent cases that read it to require that analysis are authoritative.

Justice Crooks, who wrote the decision you are defending, recognized that when he wrote that after Biggers and Braithwaite, the test for showups "evolved" into "an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable."

He then said that Biggers and Braithwaite (the most current and controlling SCOTUS precedents)were inadequate and SCOWIS would not follow it in interpreting substantially identical language in the state constitution, saying that they would "return" to Stovall and use an approach that he conceded is no longer the current federal practice.

Again: The very guy that you are defending, Justice Butler, recognized this when he said, in Knapp, that DuBose "departed from current federal law."

I am sorry to go all "legal on your ass" but when you suggest that one of our students is incompetent and you're wrong, I am going to call you on it.

Anonymous said...

When did "New Federalism" become the boogyman in the closet? Aren't Conservatives supposed to be all about state rights? Or is that just when state rights is code for pro-segregation policy; when state rights start working for minorities, the poor and the accused, those rights are transformed into "New Federalism" and subsequently vilified. For the whole of our nation's history, SCOTUS has set the floor on Constitutional rights, but the states have been allowed to go above that floor. It's only a boogyman when the state actually decides to do things movement conservative's judicial arm doesn't like.