Monday, March 31, 2008

Closing Arguments

Even though the nationally-funded would-be manipulators of our state’s justice system will continue the desperate, dirty tactics in the most disgusting campaign in Wisconsin history until the last minute, some of the right-wing bloggers and mainstream radio talkers who tried their best (worst) to destroy the first African-American on the state’s Supreme Court are already predicting their own failure. Blame is being placed at the flat feet of pathetic WMC puppet Gableman, who is now found lacking by the same people who were singing his praises just last week. If only the anti-Butler forces didn’t have to go with their seventh or eighth option, ending up with the opportunistic dregs of the northwestern Wisconsin judiciary....well, sweet Republican dreams are made of these.

Those four or five people who hang on my every blog may wonder where I have been this past week, while other bloggers on one side or the wrong one develop dueling seven-part legal treatises on the intricate niceties about, for example, whether providing a copy of a prisoner’s pre-sentence investigation to review is an "activist", loophole-ridden, pro-criminal, keys-to-the-jail-cell surrender to the forces of the underworld...or not. Well, as much fun as that must have been (I dipped my toe in earlier), there was this small matter of a spring-break jaunt to New Orleans for a history lesson and there was this infernal law practice that intruded on my free time as I played catch-up this weekend. But thanks for asking, not that anybody did.

In any event, I was planning to sum up this gruesome attempt at a power-grab by the right before tomorrow’s election. You know, plagiarizing myself by repeating, er, emphasizing some of the points I’ve made over the last couple of months and maybe expanding on a few others. But then, on Sunday morning, a moment of great clarity intruded to make all that unnecessary. I watched the We the People debate on public television between my friend Louis Butler and Michael Gableman.

Although I sensed some of this when I saw them both in person at the MBA three weeks ago, there was something about the glare of television lights off of Gableman’s shiny head that brought a new focus on exactly what these people were trying to pull. In the course of an hour before about a hundred good-and-true Wisconsin citizens, Michael Gableman was the robo-candidate, insulting their (and our) intelligence by refusing to answer any questions and repeating the talking-point babble fed to him by the WMC handlers. It was beyond pathetic. And so is he.

You had to see it to believe it (so here it is). While Butler was his usual engaged, intelligent, charming self, Gableman sat stiffly and just waited for his next opportunity to repeat his exaggerated law enforcement support and to say the words "activist" and "conservative", as if they had any real legal meaning (they don’t). He refused to discuss – as he has the whole campaign – exactly what is wrong with any of the Supreme Court decisions he and his surrogates (wait, he's the surrogate...) have criticized. When invited to ask Butler a question, he actually asked him why he, Gableman, had such great support from law enforcement. Justice Butler, who was stifling chuckles for much of the hour as Gableman’s tightly-scripted performance reached new heights of absurdity, even came up with a decent answer – he attributed some of it to sour grapes by sheriffs for a decision requiring them to follow collective bargaining agreements and to the DAs being lied to in an early Gableman mailing.

But, watching the travesty that is Gableman in all his glory, all you could do is hope that the people behind his dangerous campaign don’t get away with it. If the WMC and their national-agenda overlords are able to pull this off – if they are really able to install a backwater cipher like Gableman to rubber-stamp their agenda on the Supreme Court - then there really is no hope for justice in Wisconsin or anywhere else.

It’s one thing for the general populace to watch this spectacle; it is quite another for lawyers, who, believe it or not, I always hope will have some sense of decency and ethics. But these radical paradigm-shifters are a different breed. I think back to my visit to the Federalist Society lunch. These were win-at-all-costs people – people who are not satisfied having all the resources in the world to beat up on any plaintiff who would have the temerity to sue one of their clients’ companies. No, they want the rules changed to make it even easier - no, guaranteed! - for them to win. They want to stack the court. They don’t want fairness or justice. They want predictable and constant victory.

One of the most revealing questions in the We the People debate was about the propriety of judicial elections. Gableman was all for them. No wonder. There is no way that any too-willing puppet like him would ever get anywhere in an appointed judiciary – his application would be immediately circular-filed, or maybe put up on the dartboard for the committee’s amusement. In the end, the success of the judicial election process is threatened by the willingness of the monied right-wing to play on the emotional and, yes, racial attitudes of the electorate to get the skewed court that they desire. And by the willingness of empty suits like Gableman to play a front for the outside interests.

Through the WMC/Gableman campaign, we have now seen the outer edges of how far they will go. Or, at least, we hope so. That they must fail is obvious. Whether they will or not won’t be known until tomorrow night.

Wednesday, March 26, 2008

Garbage Time

It’s garbage time in the Supreme Court race, where those who would try to smear eminently qualified Justice Louis Butler enough to convince gullible voters to replace him with the extremely unqualified Michael Gableman are throwing up prayers in an effort to wrest the seat from the independent Butler in favor of the pathetically dependent Gableman. Oppo-researchers from the WMC/Gableman campaign have spent the last year or so plowing through Butler’s record as a justice, judge and – more hilariously – a defense attorney. What they have come up with is remarkably thin and unconvincing. And now, in apparent desperation, his ever-hopeful surrogates have released the limp hounds of WMC’s war – the drips and dregs of feverish research which has produced nothing of substance but enough to be twisted by pathetic supplicants with blogs and radio shows.

Garbage time started on Monday, when everyone’s favorite right-wing pretend-blogger (i.e.: all he does is link to other people’s writing), Owen Robinson, was fed some nonsense by the WMC/Gableman oppo-researchers about a case Louis Butler took up to the U.S. Supreme Court that involved what an appointed appellate attorney had to do if he or she found that a client’s appeal would be frivolous. Robinson got it demonstrably wrong, but didn’t care because, if you believed his ludicrous take on the case, it made Butler look bad.

Then, the same oppo-researchers fed Charlie Sykes a story about Butler getting emotional during the sentencing of young client who was convicted of second-degree homocide, the 1990 Milwaukee Journal (or Sentinel) story of which he linked to on his vanity blog. Although Sykes was busy using his mainstream, government-licensed radio megaphone to campaign against Butler and for WMC/Gableman all this week (talk about your in-kind contributions from corporations), he still found time to help the oppo-researchers feel like their years of fruitless Butler-trolling were worthwhile.

One of many last shoes in the campaign’s shotgun strategy dropped Tuesday, when WMC/Gableman apologist Rick Esenberg issued his latest Federalist Society-funded, strategically-timed "white-paper", which is a fancy name for "more reasons you should fear Louis Butler". This one is a hilarious look into the future, where the first-year visiting professor vividly imagines issues such as gay marriage bubbling up to the dangerously-comprised Wisconsin Supreme Court. "The Wisconsin Supreme Court remains sharply divided on a variety of significant issues, and these issues will have a profound impact on the state," concludes the stately tome. "This state of affairs points to the need for vigorous and open debate, not only on the qualifications, but over the proper role of the judiciary in this state." This state of affairs! Harumph! Qualifications? Aw, qualifications are for suckers...

In his post distributing the Federalist Society product, Esenberg again tries to explain how much he is not an integral part of the WMC/Gableman campaign. Just try to read this without laughing: "The Society takes no position on the races [hah! good one!] and that is why I decided not to endorse or be involved [hee hee!] in any campaign." Let’s list again how important Esenberg’s many efforts have been to the WMC/Gableman campaign.
  • Starred in WMC video, setting up the WMC "argument" for change by feigning outrage about exaggerated trends on the Supreme Court since Butler was appointed. Participated in WMC's state tour driving the same talking-points.
  • Took an active part in the unfortunately successful WMC/Gableman effort to preemptively attack the WJCIC so that the effect of their good work would be minimized when the inevitable shit hit the fan last week, with the racist Willie Horton ad and the WMC’s deceptive Jensen ad this week (both ripped by the committee; both rips ignored by the Journal Sentinel, and others).
  • Repeated the WMC/Gableman talking-point that the first Gableman ad was not racist, when everyone except the Gableman apologists saw that it was.
  • Continues to defend Scoop McBride’s amateurish hack-job on Butler’s record.
  • Sat on a TV panel with Charlie Sykes last week, while Sykes repeated his "Loophole Louie" denigration of the historic African-American justice, smiled and said nothing about Sykes’ outrageously boorish behavior.
  • Put out this latest Federalist Society white paper to provide more fodder for the WMC/Gableman campaign one week before the election. If he had put it out after next Tuesday, they probably wouldn’t have paid him.
  • Etc.

Well, Esenberg has his own reasons (having to do with the Federalists' 501(c) tax-exemption, I’m sure) for denying what he has been doing in broad daylight for months. The real comeuppance for him and the other right-wing propagators of the Gableman fraud is that they will have to live with themselves and their diminished reputations after next week. If their boy loses next week, they will have to explain why they supported an unqualified hack whose WMC handlers ran the most repulsive campaign in Wisconsin history. It’ll be even worse if he wins.

Monday, March 24, 2008

Boots Not Made For Walking

If Jessica McBride trying to get her sloppy journalistic mind around the intricacies of court decisions isn’t enough for you, wait until you get a load of right-wing media darling "blogger" Owen Robinson try on some look-what-Butler did finger-pointing in a ridiculous post today. One of the oppo-researchers working for WMC/Gableman threw him a bone, pulling out some details from an argument Louis Butler made to the U.S. Supreme Court twenty years ago. The results are not pretty, proving the adage that if you see something dangerous on TV – or, in this case, on McBride’s blog – don’t try this at home.

The case involved Butler’s appeal of his refusal to submit a complete "no merit" report against one of his appellate clients when he was in the Public Defenders office. It was a challenge to the requirement in Wisconsin law that an appellate lawyer appointed by the state to review a defendant’s case for possible appeal who finds that any appeal would be frivolous has to – if the client requests it – file a "no merit" report with the Court of Appeals, stating not only what possible appellate issues were reviewed, but also arguing, in effect, against his client by telling the court why an appeal on those very issues would be frivolous. The Court – with Justices Brennan, Marshall and Blackmun dissenting – decided that Wisconsin could indeed require appointed counsel to make such arguments against their clients.

Well, the whole notion of Louis Butler standing before the Supreme Court on a case in which he has already agreed would be frivolous on its merits was too much for Robinson to pass up one week before the election. You can almost hear the gears grinding in the untrained head: frivolous...Butler....frivolous...Butler. Hey, Butler took a frivolous case to the Supreme Court! This kind of ignorance can be a dangerous thing, not that Robinson minds as long as it serves the WMC/Gableman cause. No doubt this will provide fodder for similarly insipid wing-nuts on mainstream radio to squawk about this the rest of the week.

Butler’s position in the case before the Supreme Court was not that he should proceed to file appeals in cases that were frivolous. His position was that, if an appellate lawyer reached that conclusion, he or she should not be required to produce a document that argues against the case the client thinks he still has. He also made the point that a private lawyer retained by the defendant has no such obligation – he or she can just let the case drop. It was an important argument about the role of a defense attorney and trying to prevent the situation where the attorney, basically, has to flip and argue against his client’s interests.

Of course, it goes without saying (so I’ll say it anyway) that Butler was actually capable of arguing before the U.S. Supremes – which did several times – while Gableman, were he to show up on any given day, would barely be qualified to sit in the gallery.

The oppo-researchers feeding the gullible Robinson – my, they were thorough, weren’t they? – also gave him a pull quote, where Justice Scalia asks a question that really misrepresents the Wisconsin law, implying that where a private lawyer would advise against "throwing you money away" on an appeal, the appointed lawyer would "have the state waste the same amount on money". Butler says "That’s correct." Whatever the context is of this quote (it’s get-away day here and I’ll try to listen to the recording later), the state requires the appointed attorney to "waste money" by filing a "no merit" report and coming up with all the reasons his or her client should lose. Robinson tries to make this a Butler-wasting-our-money issue. "Unfortunately it was the Wisconsin taxpayers who had to pick up the tab," he snarks. As the taxpayer does for all indigent clients, in trial court and on appeal. I suppose, Gideon notwithstanding, Robinson would have nothing of court-appointed attorneys in the first place. That’s only one of the many problems he has dealing with the real world.

Sunday, March 23, 2008

Best of the Blogs: News You Can Use

The Journal Sentinel went several days without saying anything in its print edition about the Dodge County District Attorney who was so disgusted by the racist Gableman campaign ad (I call it racist; he didn’t) that he pulled his previous endorsement for Gableman in a letter to various newspapers in the state. It was good to see it finally got some play in the Milwaukee newspaper Sunday. Funny thing, got there by them quoting, er, me.

I think I’ve had a pretty good couple of weeks here at Plaisted Writes. Last Saturday, I was one of the first to call out Gableman for the outrageous ad, which has since been universally condemned by mainstream voices, including the J-S in an editorial on Thursday. Early last week, I managed to smoke out some of the right-wing voices who were trying to avoid taking a position on the ad, so now we know where some of them stand. Then, on Tuesday, when Jessica McBride put out a sloppy hatchet job about Louis Butler’s record in criminal cases while on the Supreme Court, I spent hours pouring over every one of the decisions cited by the campaign and her in an effort to determine exactly what that record is (conclusion: Butler plays criminal cases right down the middle).

Although the conversation shifted mid-week to the McBride "analysis" (I think one of the reasons the thing was such a mess is because it was a work-in-progress, rushed out before it was ready to try to change the subject from the racist ad), the reaction to the ad itself continued to percolate through the MSM and the bloggosphere. While poking around the blogs on Thursday night, I noticed that Brother Illusory Tenant (whose post, by the way, pointed me to the Gableman ad in the first place) had found a letter written by Steven G. Bauer, the Dodge County District Attorney to the Watertown Daily Times, rescinding his endorsement of Gableman. I thought that was pretty interesting news, so I did an uncharacteristically-brief post with a straight headline so people would notice it on their updates.

Then I waited for the Journal Sentinel to get on it – I mean, it is news, after all. And waited. However, like the lambasting of the ad by the State Bar’s Wisconsin Judicial Campaign Integrity Committee, the J-S ignored the DA’s action. A J-S reporter did get reaction from both campaigns and wrote something, but it never got further than a short write-up on their All-Politics blog (with a headline saying that the DA only "objects" to the ad, not that he recinded his endorsement) – which is at least more notice than the WJCIC slam got, but still pretty weak compared with getting it in the actual paper as a news item.

I searched the news pages in vain again this morning and, although today was the day for the major straight summary of the judicial race (the one about Butler was actually insightful; the one on Gableman read like a press release), still nothing about the Dodge County DA. Then, after combing through sports and the comics (what, still no Mallard Fillmore on Sunday?), I got to the Crossroads opinion page. And there I was in Best of the Wisconsin Blogs. Cool, especially since I don’t send them my stuff – they notice it on their own. Always a treat and, like I said, I thought I have been on a run here. I was wondering if they were going to notice my clever call-out of the right-wing-in-hiding on the Gableman ad. Maybe they would recognize my astute analysis of 70 criminal cases.

Here’s what I found:

Taking a stand

Steven G. Bauer, the Dodge County district attorney, has rescinded his endorsement of Michael Gableman, saying that "a recent television ad released by him makes me believe that Michael Gableman is unfit for the Supreme Court."

"I am troubled that a candidate for our highest court would belittle our constitutional right to counsel which enhances the accuracy of the criminal justice system. I am equally troubled by Gableman's cavalier disregard for accuracy in his representations to the public through this ad. The integrity of the criminal justice system should not be allowed to be tarnished by one man's ambitious desire for higher office. Judge Gableman will not be receiving my vote for Supreme Court justice in April."

This is the way it is supposed to work.

Mike Plaisted
Plaisted Writes

Well, alright. Pretty straight news, with very little of the opinions I’ve been spewing all week long. It leaves out the two most interesting parts for me – the shout-out to IT in the beginning and my punchline – the point of the whole post, really – "Are there other grown-ups out there willing to take a stand?"

I’m not complaining - much. If they want to run important news through my voice, that’s great. But I think the news about the endorsement-recision works better as a news story through one of their reporters than through some blogger, even if it’s me. Some bloggers, you see, can be marginalized as crackpots – not that that would ever happen to me.

Anyway, the important point remains that I was noticed this week in the Best of the Wisconsin Blogs in the Journal-Sentinel. To paraphrase James Wigderson -- na na na boo boo!

Thursday, March 20, 2008

Dodge County DA Dumps Gableman

Wow. Where does IT find this stuff? Steven G. Bauer, the Dodge County District Attorney has recinded his endorsement of Gableman, saying that "a recent television ad released by him makes me believe that Michael Gableman is unfit for the Supreme Court."

  • I am troubled that a candidate for our highest court would belittle our constitutional right to counsel which enhances the accuracy of the criminal justice system. I am equally troubled by Gableman's cavalier disregard for accuracy in his representations to the public through this ad. The integrity of the criminal justice system should not be allowed to be tarnished by one man's ambitious desire for higher office. Judge Gableman will not be receiving my vote for Supreme Court justice in April.

This is the way it is supposed to work. Are there other grown-ups out there willing to take a stand?

Butler's Record Shows No Favor for Criminal Defendants

All the bloggers on the right-wing that sat on their hands for three or four days until I smoked them out about the racist Gableman ad were happy to jump on Jessica McBride’s disjointed, sloppy and ultimately wrong post regarding Justice Louis Butler’s record on criminal cases almost from the moment it was posted on Wednesday. I don’t know if they looked at it before they breathlessly started pointing to it, hoping to twist attention away from the embarrassing and almost-universally condemned Gableman ad. But, upon further and lengthy review, McBride’s effort to throw stuff against the wall and cast undue aspersions on the Butler campaign’s contentions fails miserably.

In creating her new page, titled "Election Watch", McBride emerges from a long period of relative inactivity on her regular blog. We thus have been denied the reliable comic relief of reading her "insights" on matters big and small. One recent post combined the economy and zen of a single sentence with the insight and petulance of an enraged fifth-grader: "Just change your name to Milwaukee Obama Sentinel and be done with it." Wow. To paraphrase Springsteen, sometimes you just need to stand back and let it all be.

But this week, McBride puts on her amateur lawyer hat and delves into the world of legal opinion and reasoning. This proves to be a fairly deep pool for the non-swimmer. She ends up doing a hit-and-run – assuming the worst about minor errors in the information provided on specific cases by the Butler campaign (esteemed counsel IT says she was working off a draft) accusing the campaign of "ginning up phony stats on crime", misreading and exaggerating the results in some cases, and pretending to win her game of legal gotcha when she has accomplished nothing of the sort.

In the end, she has no answer to the campaign’s rough estimate that Justice Butler had "upheld criminal convictions 75 percent of the time" (not that "he voted to deny appeals," as she falsely quotes an AP story). All she does is criticize a few of the decisions that have been grist for the wing-nut mill throughout the campaign and imply that the campaign’s numbers are way off somehow. But she never comes up with her own numbers. She skims the surface and implies that the campaign is somehow hiding in the broad daylight of the public record. The reason she doesn’t write any conclusions is because she doesn’t have any – none that would support her Butler-is-wrong premise, anyway.

A couple of months ago, I looked at the past several years of Supreme Court decisions and discovered that Justice Butler did find for the state in criminal appeals a majority of the time. Now, after having reviewed all the cases listed by McBride over the totality of his time in the bench, it seems the campaign’s estimate is fairly accurate.

The list of cases in McBride’s post involve a variety of issues, not all of which have to do with criminal convictions themselves. For instance, 12 of the cases have to do with sentencing-only issues. Butler held for the defendant in 5 of these cases, such as when the Court ruled 6-1 that false information relied on by the judge is grounds for a new sentencing hearing (I’d like to hear the argument against that one).

I count about 45 cases that strictly have to do with the validity of the conviction itself.

  • 5 cases involve guilty pleas – Butler and a majority ruled in 3 of the cases that the trial judge screwed up by not making sure the defendant knew what he or she was doing when pleading guilty. None of these sorts of decisions result in the defendant’s release – they just end up right back in the trial court where they started.
  • At least 4 of the reversed convictions are unanimous, including 3 of the cases McBride complains about – Long, where even the state had to admit that the search was illegal; (James E) Brown, where the entire Court agreed that the trial court erred by denying an evidentiary hearing after really messing up the plea hearing; and Raye, where a juror said he did not agree with the guilty verdict at the time the jury presented it to the judge, thus violating the defendant’s sancrosanct right to a unanimous verdict.
  • 2 of the overturned convictions with Butler in the majority were on 5-2 votes, meaning the same result would have been reached with or without Butler.
  • Only 4 of the cases overturning convictions had Butler in a 4-3 majority: the much-discussed Knapp and Dubose; the somewhat-discussed Armstrong (featuring new DNA evidence) and Stuart, where the defendant’s brother was not produced to testify his trial and his testimony from the preliminary hearing was allowed to be read to the jury.
  • 14 of the upheld convictions were unanimous.
  • Butler was in two 6-1 majorities that upheld convictions.
  • He was in four 5-2 majorities for conviction.
  • Butler dissented in only 5 cases in which the state prevailed.

What is clear from this review is that Justice Butler is right in the mainstream of the court in criminal cases. Although he may have a difference of opinion with some members of the court -- particularly regarding the suggestiveness of eyewitness identification -- his opinions are well-grounded legally and, of course, expertly written. A fair review of all these cases cannot possibly lead to a determination that he is bending over backwards to find for the defendant -- far from it. Even where he found constitutional violations, he often let the conviction stand because the error was harmless (Hale, Harris, etc.).

In defending his campaign's racist ad this week, Gableman flack Darrin Schmitz talked about "Louis Butler's record of tying the hands of law enforcement and siding with criminals". None of this is evident from a fair reading of the cases reviewed. His political opponents can and will squawk all they want about the four 4-3 decisions (and it would be nice if Gableman would explain how he would have ruled differently). But it is obvious he had many other opportunites to "side with criminals" and he didn't. Justice Louis Butler plays it right down the middle.

Tuesday, March 18, 2008

Right-Wing Tiptoes Around Racist Ad

I wound up in Update Hell last night and this morning, as the right-wing bloggers rushed to respond to my observation that, until I smoked them out early Monday, they were universally and strategically silent on the racist Gableman ad. While standing in the Springsteen GA line (20 numbers from the Pit! Arrgh!), I started noticing comments popping up by several of them making various lame excuses. By the morning, there were six of them who posted something or other on their blogs. I did an update here and an update there and the results were not pretty, to say the least. My original post now lies somewhere in pixilated purgatory, my carefully-crafted prose hacked and shredded within an inch of its life.

Anyway, the results are in, with few surprises and the usual numbing sameness. Your players are Rick Esenberg, Owen Robinson, James Wigderson (please check spelling), Charlie Sykes, Brian Fraley and Jo Egelhoff. Here’s the final tally for those scoring at home:
  • The ad was "misleading": 3.5 (Robinson gets half-a-point for not admitting even to "misleading" until Comment 17)
  • Beating up on Butler just because he was a defense attorney is a bad thing: 2 (Sykes, Esenberg)
  • Beating up on Butler just because he was a defense attorney is a good thing: 3 (Egelhoff, Fraley, Wiggy).
  • The ad was racist: 0
  • Strongest (though still mild) rebuke of the ad: Surprise – it’s Charlie Sykes.
  • Boldest who-cares-what-you-think-as-long-as-it-works attitude: Egelhoff
  • ...until, that is...Mark Belling this afternoon.

I can’t remember the last time I dug into Belling. I think he has been the most affected by recent trends towards common sense and throw-the-Republicans-out sentiment. Belling now spends a lot of time trying to show he’s a sports expert or promoting one of his feels-like-monthly cruises. Maybe he’s planning his next career move (next on WISN, Your Money with Mark Belling) He also does not have as much to dig your teeth into, lacking a vanity blog like Sykes, where you can at least have something you can pull apart. But, when he does get off on a rant, you can sometimes count on something with that special blend of sanctimony and offensiveness that makes him the most embarrassing person on Milwaukee mainstream radio.

Belling gave himself about five minutes on Tuesday to talk about the racist Gableman ad. [Here it is, but he talks about another one of his cruises until 6:07.] It’s a carefully designed performance, with no phone callers – not even the phony ones. Those of us outraged by the ad, said Belling, are not concerned about anything legitimate; we are "furious about it because it exposes where Louie Butler really comes from" Well, actually, I am a little concerned about – "The ad exposes a criminal that Butler got off and he went on to commit other crimes." Well, no, he didn’t get him off – "But the ad it true!" Well, not really – "Butler did it!" Well, no...

Belling never lets the facts get in the way when he imagines himself on a roll. He never discussed any of the details of the ad – not the facts of the Mitchell case or the Willie Horton-style presentation of the scary-black-man mug shot next to the African-American justice. Before you knew what he was talking about, he summed up and bolted for the commercial break: "The attacks that Gableman is running on Butler’s liberal record are absolutely on point and they are accurate." He’s obviously reading a script here. "There’s nothing misleading about them and, if there were, Butler’s people would be able to point out where the inaccuracies are and, of course they can’t do that." Butler’s "people" and many others have done just that, but...never mind. He’s already in commercial and never returned to the topic.

"Accurate...nothing misleading". Well, OK. Chalk up another big YES for the racist Gableman ad by one of Milwaukee’s biggest radio personalities.

Despite all this, Rick Esenberg is going to get injured from patting himself on the back for the right-wing’s fine (although belated) performance on the issue of the Gableman ad. "So far, its the ‘right wing noise machine’ that has looked critically at both sides," he brags as he points to comments by Sykes and himself and, er, Sykes and himself. Nothing about the 100% support for the ads from Egelhoff and Fraley , much less Belling (alright, so Belling was on the air after he posted). And, I don’t think any of them should be posing for holy pictures when they remain supposedly blind to the obvious racism in the ad, which has been rightly noted by the NAACP, the WJCIC, Bruce Murphy and many others. Those who were responsible for the Willie Horton ad against Dukakis in ‘88 also denied that it was racially motivated, and who believes that now? Ooops, wait, I bet they’ll say they do.

Besides calling me names I have to look up (I am not irritable, dammit!) and denying that he, the WMC talking-head and white-paper-writer on all things anti-Butler, has anything to do with the Gableman "campaign" (I guess it depends on what the word "campaign" means – if he means the small organization that they had to set up separate from Gableman’s WMC recruiters and handlers to make it look like a real campaign, maybe he’s right), Esenberg calls on the left to call out the GWC ads critical of Gableman. Well, here you go: I think the facts raised in the ads are important – the way Gableman got his judge appointment may be legal, but it sure stinks – and I am unaware of any inaccuracies in the ads themselves. In fact, Gableman couldn’t come up with any when specifically asked about it at last week’s MBA forum. But I do think it is unfortunate that the issues were first noticed (OWN’s fine research notwithstanding) by such ads. I think it tends to trivialize the issues – it’s hard to take them seriously when they are thrown out in ads featuring bobble-heads. I think the tone of the ad is unduly frivilous - even for a third-party - in a judicial race. There. Is that "critical" enough for you, Rick?

But trying to pretend "both sides are doing it" does not do justice to the racist and deliberately misleading Gableman ad. While the some of the right-wingers are now saying something, they are all still avoiding the issues of what the ad tries to do. They continue on their determined mission, trying to destroy the extraordinarily-talented first African-American on the Supreme Court by any means necessary.

UPDATE: The Journal-Sentinel continues its head-in-the-sand reporting on the racist ad this morning. The paper reports about a new Butler ad ("Shame") that reviews news commentary that accuses the Gableman campaign of "making despicable attacks" without saying anything about the racist intent and imagery. The report is also the second since the weekend that fails to mention the WJCIC smack-down - score another unfortunate success for the pre-emptive stike on the State Bar committee by WMC/Esenberg. Gableman thug Darrin Schmitz is quoted again, accusing Justice Butler of "tying the hands of law enforcement and siding with criminals," the same sort of flaming rhetoric on which the WJCIC first engaged the offical Gableman "campaign" months ago.

There was some other news in the article. Good news: The Gableman campaign has been referred in a complaint to the Judicial Commission by Citizen Action Wisconsin for its racist, lying ad. The bad news: The Judicial Commission is not scheduled to meet again until three weeks after the election.

Monday, March 17, 2008

Gableman’s Racist Ad: Right-Wing Silence


I have written often about how mainstream radio wing-nuts and their fellow-traveling bloggers are the most unoriginal people in the world. They get their talking points from the GOP or other senior message-directors and dutifully follow their directions. Just listen to them this week as they all play the same audio clips and say exactly the same things about Barack Obama’s former minister and how Obama can’t possibly separate himself from him, no matter what he says.

Don’t these supposed "entertainers" get sick of saying the same thing that some other knob is saying just up the dial? No – they have a job to do on behalf of the GOP and the right-wing.

Sometimes, the word from above is not to say anything. Locally, this phenomenon occurred recently when OWN and GWC came up with information about how Judge Michael Gableman got his job – basically, jumping other more-qualified candidates who actually lived in or near Burnett County by throwing in-the-bag Gov. Scott McCallum a couple of hefty fundraisers. Not a peep from the usual suspects. Thus do the supposedly-interesting and "spontaneous" right-wing bloggers and squawkers walk the party line.

And now this. When Scott Walker or some other right-wing darling puts out a campaign ad, it is posted on various predictable sites, with comments about how wonderful it all is and how lame the opponent is. But when Michael Gableman put out the most offensive, racist campaign ad in Wisconsin history on Friday, all but one of Wisconsin’s self-appointed right-wing intelligentsia said or wrote nothing. As far as I can tell, the imposition of the Cone of Silence continues as I write Monday at mid-day.

But the usual Gableman apologists should not be allowed to hide behind their the locked doors of their soundproof studios, corporate boardrooms and Marquette ivory towers. This is Gut-Check Time for the right-wing commentators. They can’t say they didn’t see it or didn’t have any thoughts about it. Hell, some of them were probably in on the strategy and timing of the damn thing, or at least they knew it was coming. They need to crawl out from under their rocks and defend it, if they can, or disavow it.

Roll Call:

  • Rick Esenberg: The WMC-video star, Federalist Society member and first-year law professor is intimately involved with the WMC-driven Gableman campaign and is the most likely to have an opinion on this. Just last Saturday, he ran two long posts trying to defend Gableman ads run by one of the surrogate front groups. UPDATE: Esenberg left a comment here and put up a new post since my original posting. First, he denies being part of the Gableman campaign: "I have exactly nothing to do with it," he says in the comment here. What a joke. Esenberg has been using his freshly-minted acedemic status to undermine Justice Butler on behalf of Gableman's recruiters at WMC for over a year now -- first with a hysterical "white paper" A Court Unbound; starring in a hilarious video for WMC about how horrible the "Butler" court is; and then taking part in WMC's dog-and-pony shows throughout the state to enrage the bantams about the danger of Butler. He also took an active part in trying to undermine the work of the WJCIC, the State Bar committee that predictably and rightly slapped the Gableman campaign upside the head after the racist ad ran, including appearing at a Federalist Society panel designed to undermine the committee mere days before the racist G-Bomb dropped. Esenberg pretending he has nothing to do with the Gableman campaign is like Karl Rove pretending he had nothing to do with the Swiftboat lies against John Kerry. Then, after going through his usual gosh-I-wish-they-hadn't-done-that sanctimony about the ad itself, he denies seeing any racism in the ugly racist ad. "I am not prepared to pronounce, without more, on the state of someone else's soul," he writes, pretending not to see the obvious on the face of the ad itself. So, as we shall see further down, that is the ultimate defense of those backing the racist Gableman -- they just don't see it. What are you going to believe -- me, or Esenberg's lying eyes? Since he says he can't see the racism inherent in the ad and finds what he does see a mere "disappointment" (like he expected better from Gableman?), count Esenberg as a qualified YES for the racist Gableman ad.
  • Charlie Sykes: A comment on Fraley’s post says Sykes called the ad "despicable" somewhere, but I can’t find it and neither can IT. UPDATE: The commenter, John, says it was on his TV show. UPDATE 2: Sykes weighs in today (3/18), saying he was "throwing a flag on our own team" because the ad is "misleading" and, of course, denying its racist intent and impact. Sykes actually predicts it might "backfire" on Gableman, but not if he can help it, I'm sure.
  • Brian Fraley: The Republican consultant was the only one who actually posted anything over the weekend on the controversy over the ad. His proud support of the racist ad includes the full text of a Gableman press release and a talking-point claim that the ad simply holds Butler to his comments in 2000 that someone’s record was "fair game". From the comment section, it appears Fraley thinks that criminal defense attorneys should be excluded from the court. So, count Fraley as a big YES for racist campaign tactics.
  • Owen Robinson: UPDATE: After being smoked out by my original post, the darling of the wing-nut bloggosphere actually posts the video itself and yet denies seeing anything racist in the ad (sound familiar?). He then takes it a step further by accusing "a bunch of lefties" (i.e.: me) "screaming racism where none exists". This is an interesting game of denying the obvious. Although admitting that the legal points in the ad were "marinated in political spin" (i.e.: lies), the MSM's favorite right-wing blogger doesn't seem to mind the ad all that much. Count him as one more big YES for Gableman's racist ad.
  • Wigderson: UPDATE #2: After denying he saw the ad at all (something about Holy Week...what, was he at vespers?), Wiggy finally gets his two cents in this morning, walking the party line by denying the racist nature of the ad, but finding it "deliberately misleading" on the facts. He thinks it's just fine that campaigns try to smear defense attorneys with their worst clients (it is the nature of criminal defense work that, the more experience you get, the more difficult the clients and the case) and, like Fraley, would prefer defense attorneys not be on the bench. He also wants to promote Esenberg to a seat on the Court. Now that's a race I'd like to see. In a separate shorter post, he accuses the WJCIC of being as biased as the WMC. This is just the kind of nonsense that was set up by the pre-emptive anti-WJCIC strike -- to tarnish the messenger who would complain about the damage when the inevitable bomb was dropped. Maybe next they can go after Janine Geske next or, eventually, the Judicial Commission.
  • UPDATE - Jo Egelhoff: Egelhoff finds the ad not racist (that's 4-for-4 in the denial talking-point). Like Rumsfeld at a press conference, she asks and answers her own questions, saying that the ad "stretches the truth", but that's just peachy with her. "Would we the voters pay attention if it weren’t dramatic and hard-hitting? No. Would we always get it without these tough ads, that there’s a difference between these two candidates and how they will rule on future cases? No." So, count the strongest YES vote yet for the racist ad -- wrong, but it works! You gotta love those Republicans.
  • GOP3: Nothing from Esenberg, Jr.
  • Jessica McBride: Nothing, but she hasn’t posted much lately. No doubt busy running her poor journalism students around to prove her political points.
  • Weber, McKenna, Wagner, Harris: Nothing from the third-tier of wing-nut radio. Too busy making identical points about Jeremiah Wright.
  • Badger Blogger, Texas Hold ‘Em, Dad29, etc.: Nothing, even from the nut-right fringe.

And so on...UPDATE: As more wing-nuts step forward, it is clear they have finally settled on a rationalization to continue siding with the racist Gableman. Those who want to maintain a shred of their dignity in case they might need it someday admit that the ad is "misleading" and they might even feign regret over the whole sorry episode. All of them then put that shred of dignity at risk again, by denying the racist nature and intent of the ad. I'll bet they did the same thing with the Willie Horton ad. But they are all in the same boat now -- still attached to a racist candidate who is trying to defeat the first African-American on the Supreme Court with racist imagery and fear-mongering. That's their problem and our burden.

Oh, and then there is the WMC, which recruited the unqualified Gableman in the first place. OWN has put up the WMC Watch today, just in time. Check the list of WMC Board members, and do your shopping accordingly (just say no to Johnsonville brats, etc.).

Are You Loose???

Forget all this St. Patrick's Day stuff. From Oct 2, 1975 to tonight at the Bradley Center. Get it while you can. See you on the floor!

Saturday, March 15, 2008

Gableman Plays the Race Card

Now it all makes sense...The WMC/Gableman effort to conduct a pre-emptive strike against the independent WJCIC...Judge Gableman’s hyper-active mannerisms, red face and nervous smile at the MBA forum on Wednesday, when he knew what was coming later in the week...the relative silence recently of the wing-nut bloggers who knew the other shoe was about to drop...

It was all a precursor to this – the most racist, unfair ad in the history of Wisconsin politics that started running on Friday. To his slight credit, it comes from the Gableman campaign itself, which chose not to hide behind the WMC or other surrogates and sponsors. To his never-ending shame (if he had any sense of it), the ad shows Michael Gableman to be a racist pig who will do anything to get himself elected on behalf of his wealthy patrons.

You thought Willie Horton was the scariest, ugliest black man used in a political campaign to scare the bejesus out of a mostly-white electorate? Meet the new "winner", Rubin Lee Mitchell, a former client of Justice Butler’s back when he was doing his usual exemplary legal work as an appellate lawyer at the State Public Defenders office over 20 years ago. Mitchell’s menacing mug shot is shown right next to that of the first African-American to serve on the Wisconsin Supreme Court. Black guy gets black guy off..."Can Wisconsin families feel safe with Louis Bulter on the Supreme Court?"

Except that Butler did not get Mitchell off. Butler’s effort to get Mitchell a new trial on his sexual assault case (because of testimony that the victim was a virgin) was successful at the Court of Appeals. The very same Louis Butler then lost the argument in the Supreme Court, which reversed the Court of Appeals decision. State v. Mitchell, 424 N.W.2d 698, 144 Wis. 2d 596 (1988). The Supremes (in a decision by now-Chief Justice Abrahamson) agreed with Butler that the "virgin" testimony was inadmissible, but found the error to be harmless, meaning he would have been convicted anyway.

Although you wouldn’t know it from Gableman’s manipulative, disgusting ad, Mitchell's conviction was not reversed and he served his entire sentence. Eleven years after the case in which Butler represented him, Mitchell committed a new offense. "Butler found a loophole," says Gableman’s female, near-tears narrator. "Mitchell went on to molest another child." The listener is led to believe that the "loophole" (more about that language later) was successful, got Mitchell out and was able to reoffend because of Butler’s efforts. The implication is a deliberate lie, and Gableman knows it.

And here is where we get to the racist part. Louis Butler was doing appellate work for at least 10 years at the SPD and, given the heavy caseload carried by SPD attorneys and his legal talent, I’m guessing there are at least five or six people Butler actually did succeed in getting released who then reoffended in one way or another – and that’s a conservative estimate. So why do you think the WMC/Gableman oppo-researchers chose to highlight Mitchell – someone who Butler did not get released in the first place? It was because there was no one of Butler’s past clients who was blacker and scarier, whose image would look "better" next to that of Wisconsin’s historic first black justice. The Gableman backers had this ad designed years ago – all they needed to do was plug in the mugshot of the scariest-looking black guy they could find on Butler’s client roles.

The ad serves other purposes for the Gableman campaign, such as the second use of the word "loophole" in a Gableman ad. The campaign usually saves the "Loophole Louie" epithet for their mainstream radio surrogates like Charlie Sykes. Given their "anything goes" disposition, I give it a week before the campaign itself starts using it. And, by the way, when is a legal argument a "loophole"? Butler’s argument was that the "virgin" testimony was not allowed by the Rape Shield Law, which it clearly wasn’t. How is it a "loophole" to argue that the state overreached when it offered the testimony? Is every legal argument offered by a criminal defendant a "loophole"? I think "loophole" is kind of a phony concept anyway, but if there is one, it would be something like pointing out that the police made some technical mistake in a search warrant application or something like that. Arguing simple fairness against a prejudicial statement in a rape trial is not seeking a "loophole" – it is seeking a fair trial. Is a "fair trial" itself a "loophole"?

But I digress. It was interesting to see how the Journal Sentinel editors wimped out on the Gableman outrage this morning. The short story in the second section practically commends Gableman for "coming out swinging" in the headline. The story quotes both campaigns, with too much sympathy given to the Gableman flack (veteran Republican shill Mark Graul claimed "the ad highlighted Mitchell's case because of his sex offenses, not because he is black", apparently with a straight face). The AP had a much more emphatic headline ("Records show new ad misleads about Butler's role in case") and much beefier substance. The AP got an essential quote from the universally-respected Janine Geske: "‘The ad seems to say he got him off. For God sakes, that's terrible,’ said Geske, who was a justice in the 1990s and is neutral in the race. ‘This ad is awful on so many levels, from misportraying the role of the Supreme Court, misportraying the role of the public defender, appealing to the fear of citizens. We're sinking to new lows.’"

All true, except for the "we" part. "We" are not sinking to new lows – the WMC/Gableman campaign is. In an excellent post, Michael Mathias wonders out loud this morning what Federalist Society member, WMC-video star and first-year law professor Rick Esenberg and other Gableman apologists will have to say about all this. I know exactly what Esenberg will say, if he says anything at all. [An update on right-wing silence here.]Last week, when the WMC front-group, the phony Coalition for America’s Families (the surrogate of the surrogate) put out a couple of ads, one of which featured a laughing Justice Butler practically superimposed over the bodies of murder victims, Esenberg feigned regret and then made the usual excuses. He blamed all the ugliness on the fact of judicial elections themselves. "So I think that the best course is to let those who are interested speak." He will also pooh-pooh the obvious racist design of the ad, and call people complaining about it unduly hysterical.

A couple of other entities are going to have their say on this as well. The WJCIC should comdemn the racist Gableman ad in no uncertain terms. [UPDATE: And so they did.] And I think, given the clearly misleading and inflammatory nature of the ad, I think it’s time for a referral to the Judical Commission. From SCR 60.06:
  • 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 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.

WMC/Gableman have danced around the fine line in judicial campaigns, and now they have stepped over it. Expressions of outrage and concern are not enough. WMC/Gableman has just made a deliberately racist attack against Wisconsin's first African-American justice of the Supreme Court. If the Supreme Court rules regarding the conduct of judicial campaigns in Wisconsin mean anything, the time for swift enforcement is now.

Thursday, March 13, 2008

In the Belly of the Beasts


After blowing $22.50 I’ll never see again so I could review Charlie Sykes’ incredibly inconsequential (and now, I'm sure, remaindered) 50 Rules pamphlet last year, I hesitated before throwing more good money after bad to attend a Federalist Society panel over a lunch hour earlier this week. As it was, the $10 I tossed in the right-wing collection plate probably didn’t even cover the wedding-reception style lunch provided at the posh Milwaukee Athletic Club. So, I figure I’m at least $2.50 ahead – and that’s not even counting the five extra brownies I stuffed in the pockets of my blazer (Steal This Dessert!).

But, still...Lunch on the Right Wing...I have to say it was a bit chilly in the room, and I don’t mean temperature. A small and quiet group of about 40 or so well-heeled business lawyers gathered quietly around the banquet tables. Like a bad wedding reception, I looked for the table-of-least-resistance and found it several paces away from the power-suits. I tried to strike up a conversation with a couple of young lawyers from a business firm...never got much beyond whether the salad dressing was ranch or bleu cheese (it was ranch). I almost slipped and asked if they were friends of the bride or the groom, but I caught myself.

The subject was "Judicial Elections and Free Speech", focusing on the work of the State Bar’s Wisconsin Judicial Campaign Integrity Committee, which is either the bane of the Federalist Society/WMC/Gableman existence or simply a convenient straw-man. On the panel were a couple of out-of-state speakers and the local right-wing’s favorite first-year law professor, Rick Esenberg (who I walked over to say hi to – did I mention it was a little chilly in the room?)

First to speak was James Bopp, a right-wing lawyer from Indiana – sort of a poor-man’s Ted Olson. Bopp is the kind of overheated zealot who calls the opposition "the Democrat party". He has run some right-wing impact litigation that has had the effect of making it easier for the monied interests to dominate elections, such as the recent case that knocked out some of the McCain-Feingold reforms in favor of Wisconsin’s Right to Life's "right" to poison the political atmosphere to their dark heart's content. Bopp’s dour, angry, we-are-victims delivery was a big hit with those in the room drinking the kool-aid disguised as iced tea (I stuck to the water, just in case).

Bopp’s subject was, of course, the dastardly work of the WJCIC. Starting with a defense of an elected judiciary (because people are not interested in "liberal judicial activists") and a review of last year’s WMC triumphant installation of the ethicly-challenged Annette Zeigler (one key to the result: "sufficient funds to get message out". Ah, those sufficient funds...), Bopp announced that he had divined the true reason for the creation of the WJCIC. The "supporters of judicial activism" created the committee to "change the debate," he claimed. The members of the committee "condemn not the judges who decide cases in a predetermined manner, but those who say the judges decide cases in a predetermined manner."

Well, that’s not what they did or do, but so what if they did? It’s just a damn ad-hoc committee of the State Bar, fer cryin’ out loud. But the brilliant legal mind of James Bopp, Jr. has also figured something else out I bet you didn’t know – the work of the committee is being done "by the government!" The State Bar is a "quasi-public agency" declared Bopp, which I’m sure comes as a surprise to everyone in the state of Wisconsin. You’d expect this kind of amateur mistake to be made by a too-willing-to-please law student, but not by a grown-up like Bopp – not to mention Esenberg, who at least is from here and repeated the baseless claim. You would also expect that, if you really think a "state agency" was trying to illegally restrict free speech and you are a hot-headed professional trouble-maker, the remedy is easy – you sue ‘em.

But Bopp knows the State Bar is not a public agency, quasi or otherwise. Maybe he even tried to draft the complaint and fell down laughing when he tried to define the defendant as a state agency. That certainly would have been the reaction of any judge who saw such nonsense in print. In my only contribution to the program, I laughed out loud when he said it the second time. Did I mention it was chilly in the room? Did I mention these right-wing suits showed no signs of having a sense of humor?

After blathering on for another five minutes about how State Bar President Tom Basting said something to the Wisconsin Law Journal one day, when an e-mail "written at his direction" may or may not have indicated something else six days before ("Six days before!" exclaimed Bopp), he was finally done.

The next speaker, James Sample of the Brennan Center at NYU Law School, came out swinging and absolutely devastated the phony arguments and premises of the anti-WJCIC campaign. Since there was no one on the panel officially designated as defending the WJCIC, I figured maybe the other national speaker would just be another Federalist Society stooge, but I was pleasantly surprised when Sample accused the group of trying to swift-boat the State Bar committee in his first sentence. "Those attempting to swiftboat the WJCIC are the outsiders," he said to stunned silence. He rightfully claimed that the committee serves an honorable end, as such committees do throughout the country.

Sample had a remarkable set of facts to back up his argument. For instance, in a survey of 2,300 judges nationwide, 77% approved of independent committees to monitor judicial campaigns. The same committees were favored by 87% of the general public. He highlighted nightmare stories in four states – including, of course, Justice Zeilger’s refusal to recuse herself in a case involving her WMC benefactors; said that business groups make up 90% of independent spending in judicial races across the country. He cited statistics that showed judges finding for plaintiffs and defendants in direct confluence with their most recent contributions. "The donation, not policy, controls," he said.

Sample hit the nail on the head of the motivation of those in the room and the methods they use to try to get unfair advantage in judicial races. First, they seek to make judicial races like legislative and executive races – in other words, anything goes. They also have "deep-pocketed help" (no kidding) and represent "narrow interests". Finally, they seek to reduce complex questions to simple (and false) agree/disagree dynamics (like "judicial activist" v. "traditionalist").

Finally, he said that John Grisham got the system exactly right in his latest book The Appeal. I haven’t read it, but apparently in the fictional novel, the CEO of a company buys a judicial race for half the price of an expensive trinket for his wife. Money well spent for him, trouble for the rest of us. Those people like the WMC get an "individualized return on their investment." It is a sad state of affairs, being played out in the Butler/Gableman race in broad daylight. The answer, Sample suggested, is public financing of judicial elections.

By the time Esenberg got up, it was already 1:30 and I was late for court (don’t these business lawyers have anything better to do in the afternoon? What, is there still snow on the golf courses?). I stuck around long enough to figure that he wasn’t going to say anything he hasn’t said on his blog – a kinder, gentler version of the Bopp/WMC message. "There is something special about judicial elections..." Gee, ya think, Rick? "We should not drive substance out of judicial campaigns...there is a right and a wrong way to do it." Well, do tell, professor.

Maybe he got to what the wrong way is (I would hope by just playing his WMC video), but I had to go. The panel members were going to question each other and allow questions from the tables, and I would have loved to see Sample mix it up with Bopp. All I know is: the WJCIC escaped the day unscathed, the anti-Butler forces are starting to seem a little desperate, and those Federalist Society brownies are dee-licious.

UPDATE: Daniel Suhr, Rick Esenberg's research assistant who has been spending much of his time researching legal issues that just happen to be favorable to the Federalist Society/WMC/Gableman forces, was good enough to post a comment below with a link to his latest post, claiming to establish through legal research that the State Bar is a "state agency". Although I wasn't planning on doing any heavy legal research this afternoon, I guess I asked for it.

I have looked the cases he cites. There are two kinds of cases -- those having to do with mandatory bar dues and those having to do with sovereign immunity (having to do with whether the State Bar can be sued in federal court when doing things they are required to do by the State Supreme Court -- if the Bar is acting as an arm of the Court, it can't be). I want to be careful and accurate in addressing Suhr's analysis and reserve the right to expand on this later, but it seems to me that both instances are fairly limited to their facts and that the courts (the language of the 48-year-old Lathrop case notwithstanding) reached their conclusions based on the fact that the State Bar was an "'arm' or 'alter ego' of the state", as opposed to an actual state agency, a phrase not used that I can see in Theil (and not necessary for a finding of immunity). From Theil:
  • "Given these considerations, we held in Crosetto that the effect on the state treasury was the least important of the three factors, and would be irrelevant if the first two weigh in favor of Eleventh Amendment immunity. 12 F.3d at 1402. The other two factors are: (1) The extent of control the Wisconsin Supreme Court exercised over the Bar; and (2) whether the Bar acted as the agent of the Wisconsin Supreme Court when it promulgated the rule in question." [Emphasis added]

Bottom line: Good work by Suhr in pointing out that the courts have recognized that the Bar acts on behalf of the state when the Supreme Court requires it (such as enforcing mandatory dues, which is a Supreme Court rule, not a State Bar rule). But the courts in all these cases also recognize the State Bar's completely independent funding and the other duties -- such as education of the public and lobbying -- that the Bar takes on its own. An "arm" of the State in some functions required by the Supreme Court? Yes. A state agency, quasi or otherwise? Not nearly. Since the ad-hoc WJCIC is not related to any direction by the Supreme Court, the Bar does not act as an arm of the state in any way when it advocates for a clean judicial election. My chuckle at Bopp's heated rhetoric stands.

Reserving the right to revise and extend my remarks...have a nice weekend.

Wednesday, March 12, 2008

Butler Spanks Gableman at MBA Forum

I have spent two lunch hours this week swimming in the flotsam and jetsam of the Supreme Court contest between Justice Louis Butler and Judge Mike Gableman. I saw both of the candidates this afternoon in an appropriately-edgy forum at the Milwaukee Bar Association. The day before, I entered the dark world of the Federalist Society to see part of the right-wing Gableman brain trust scheme over how to further politicize the bench. At the FS lunch on Tuesday (about which more in a post tomorrow), one of the stars of right-wing impact litigation got soundly thumped by a humble lawyer from the Brennan Center. And, at the MBA today, Justice Butler took the hapless judge from far-flung Barnett County to the woodshed where he was paddled like a bad school-child in an 18th-century novel.

Louis Butler is a friend of mine and Gableman is the kind of in-the-bag cipher I would fight against in any event, so I am hardly objective. But, in front of a dozen or so county judges and other Milwaukee legal stalwarts, Butler wound up and let Gableman have it. The WMC-recruited candidate (he all but admitted it) stuck to his script and refused to answer the questions that any candidate with judicial self-respect would. Never before has a Supreme Court race in Wisconsin been sullied with such an obvious partisan who was willing to do and say anything to get elected for the benefit of his wealthy patrons.

Gableman is a different sort than last year’s WMC candidate, Annette Zeigler. Zeigler just laid low and didn’t really get personally involved in her own campaign, lest her ethical violations ruling in favor of her husband’s bank in numerous cases get into too high contrast. She sat silently by while the WMC ran roughshod over her competition. Gableman, though, seems to revel in getting in the fray – to an extent. Whether it’s hanging out with nut-right bloggers at a Christmas party or visiting friendly wing-nuts on mainstream radio, he seems to enjoy the company of his ilk and his benefactors.

But, drag him out of the FS/WMC/right-wing cocoon and bring him out in the cold light of the real legal world, and Gableman looks like a red-faced fish out of water. When he was challenged by Butler during the forum, he would get red in the face, wear a strange, unnatural smile and chuckle to himself. It was a weird performance and you had to remind yourself that this is a guy who is pretending to be qualified for the one of the most prestigious state courts in the country. He was an embarrassment – not that he cared.

During the whole forum, Justice Butler tried to try to draw Gableman out on what exactly is wrong with the decisions of the Court that have provided false fodder for Gableman and his third-party handlers. For instance, in the Brown case (the sexual predator that didn’t get released, although the Farrow/Gableman fundraising letter said he did), how would Gableman have ruled differently and how would he have ignored state statutes to get there? In the Jensen case, would Gableman have joined the majority in making up new law out of whole cloth to get to the desired result? How and by what analysis, Butler wanted to know, would Gableman "legislate from the bench" to reach his desired result?

Gableman ignored all this, of course – the law and legal reasoning being, apparently, for suckers. He stuck to his ridiculously broad generalizations of himself ("judicial conservative", "apply the law, not make it", "honor rights of victims"; blah de blah blah) and Butler ("judicial activist", "defense attorney"). Not for him the flighty legal nuances that might lead to unpleasant results or make his brain hurt. Gableman seemed to come with the same tired script he saves for any Rotary club that would have him. Butler tried to pry something substantive from him, but it was like trying to get Charlie Sykes to say something that wasn’t written for him by the GOP. After an hour of banging his head against this wall, Butler said that either Gableman hasn’t done the analysis or he is deliberately misrepresenting the results. Here’s one vote for him never bothering with doing the analysis. Mike Gableman is not someone to let himself get confused by the facts. Or the law, for that matter.

The distinguished gathering of Milwaukee lawyers and judges in the room suffered the fool politely, but not necessarily gladly. Except for a couple of my prosecutor friends who do not necessarily appreciate Butler’s strong defense of the state and federal constitution against law enforcement overreach, this was a friendly room for him. Gableman’s rigid devotion to his vague talking-points stood in stark contrast to Butler’s easy humor and obvious intelligence.

Interestingly, the first question for Gableman was whether he talked to and was recruited by WMC before getting into the race. After dancing around for the allotted two minutes – you see, he has talked to many people across the state, etc. – he eventually admitted to discussions with WMC members "who have the same concerns as most people around the state". Well, no. He also pretty much confirmed the substance of One Wisconsin Now’s report on how he got appointed by McCallum from over 200 miles away after making a series of maximum contributions to his campaign. He certainly didn’t deny any of it.

In his closing, Justice Butler put it all out there. "There is only one candidate in this race that is not beholden to special interests," he said. "And that’s me." All Gableman could do after that is complain that Butler was "casting negative aspersions". One thing noticeably missing from Gableman’s response was a denial.

Tuesday, March 11, 2008

Voucher Money: Come and Get It

The Journal Sentinel continues its pro-voucher campaign this morning, informing us that "interest remains significant". How do they know? Because more voucher vultures are lining up to feed at the trough.

The story by pro-voucher beat reporter Alan Borsuk on the front page of the Metro section celebrates the fact that 34 individuals or groups (including some who, remarkably, have been kicked out of the program before) have applied to create "schools" that would receive voucher money, therefore adding to the burden of city of Milwaukee taxpayers. "But the 34 new applicants, combined with the 120 schools applying to continue in the largest voucher program in the United States, indicate that interest in opening - and, most likely, enrolling in - the private schools remains significant," writes Borsuk. Well, what's the news here? The state is handing out checks with low application standards and little oversight to anyone willing to claim to be educating kids in vacant warehouses. Since when doesn't that draw interest by those trying to make an easy buck?

When the right-wing agenda's pet project voucher scheme was enacted by always-helpful Gov. Tommy Thompson in 1990, the discussion was primarily focused on the public money that would go to religious schools. It was a surprise, then, to find that the program also enabled "schools" that never existed to spring up just for the purpose of taking voucher money. This led to several public embarassments - such as that surrounding Alex's Academics of Excellence, a joke of a pretend-school, and the Mandela School, which besmerched the memory of the great South African leader by leasing a Mercedes for its CEO - and, I'm sure, many private nightmares that never made it to the public eye. It's not like the J-S is going to help expose the travesties of its pet program. They've been making excuses and looking the other way from problems in the program for so long, they have a permanent case of whiplash.

None of the 34 new "schools" applying to get in on the voucher money scam exist now and none that are not approved will exist next year. This is not the "free education market" voucher proponents brag about - it's publicly-funded corporate socialism, like the defense industry. There is little difference between the legendary $6,000 toilets of the defense industry and the $6,000-per-child being thrown at the voucher "schools". Most of that good public money is still going right down the same drain.

Sunday, March 09, 2008

Voucher Shills Scramble for Answers

It took a couple of weeks, but the advocates of the state mandate that requires Milwaukee’s property taxpayers to throw money at religious and opportunistically-created for-profit private “schools” finally came out of their shells to defend their increasingly-indefensible program. A typically-shadowy “group” took to the airwaves this past weekend with some slick new ads. The all-too-willing Journal Sentinel also got in the game to try to stem the damage from the report that showed the voucher program accomplishes exactly nothing special in terms of educating children. Better late than never for the determined voucher vultures, who continue make unsupported claims to support the tax-draining scheme and, even, expand it.

The centerpiece of the Journal Sentinel’s rehabilitative effort was Sunday’s puff-piece about St. Anthony’s, a Catholic school on the south side that was dying in the real education marketplace and is now making an artificial “comeback” on the backs of city taxpayers by greedily taking voucher money – $6.2 million this year alone. That kind of public money can buy a lot of scapulars, rosaries and crucifixes for the religious indoctrination at the heart of the school’s mission. Once hosting only 350 students at its low point, St. Anthony’s is now busting at the seams, with an enrollment of 1,100 in two buildings. While a few other Catholic schools in the city refuse to sully themselves with public voucher money, St. Anthony's is swimming in it and is apparently praying all the way to the bank.

The piece – by the J-S’s regular pro-voucher reporter Alan J. Borsuk – has all the hallmarks of the typical aren’t-voucher-schools-wonderful story-line that the paper has prided itself on since deciding to buy into the scam 18 long years ago. There are softly-lit photos of studious young souls, thirsting for the knowledge that is obviously being kept from them by those dastardly public schools. There is the sympathetic description of the school’s radical right-wing phonics-and-rote-math programming: “The general difference, in education terms, is between 'constructivist' teaching, in which the teacher aims to lead children to develop their abilities, do their own learning and reach their own conclusions, and 'instructivist' teaching, which is firmly led by teachers and focuses on specific skills and knowledge that teachers impart to students, often by using drills and exercises.” This is the sort of manipulative comparison invented by right-wing “educators”, whose passive-learner “instructivist” construct is to education what creationism is to science.

You have to go all the way to the ninth paragraph of the article to find that – ooops – St. Anthony students fare no better than MPS students in standardized tests. “The school has a long way to go,” puffs Borsuk. No, the school is right where it is and has been for several years. If this return to an imaginary view of the 1950's is so great, what’s the problem? Never mind, writes Borsuk, “the track it is building is eye-catching.” So there, MPS – you don’t have enough eye-catching “tracks”; not enough gimmicks being driven by for-profit education hacks with effective PR. Not that Borsuk or the Journal Sentinel would notice if they did.

Speaking of for-profit education, wait, you can only say nice things about Howard Fuller, right? A formerly credible civil rights activist, Fuller has held court as the sainted Voice of the voucher profiteers for decades and now presides as a director of the Bradley Foundation-funded and hilariously-named Institute for the Transformation of Learning program at right-wing Marquette University. You know the J-S is serious about rehabilitating the voucher program’s reputation when they call in Fuller to try to do it for them. The highly-motivated and conflict-ridden Fuller – not only is he beholden to right-wing agenda money, his wife Deborah McGriff (like him, a failed superintendent of MPS) is an executive vice-president of the pioneering for-profit-and-get-taxpayers-to-pay-for-it Edison Schools company – makes more of the usual excuses we have heard since the report came out: It’s only one report in a series (Fuller and others have led the effort to prevent earlier accountability studies); the taxpayers of Milwaukee getting stuck and the rest of the state getting a break is, I guess, too damn bad; and the voucher parents are satisfied (but, strangely, no more so than MPS parents, despite the fact that most of them are getting their kids’ religiously trained for free). “If we are smart,” Fuller says smugly, “we will end the battle over the MPCP and work together to take advantage of the best practices that exist in our various systems of learning in this community.” Oh, that’s it – we are just too damn dumb to see how throwing money at places like Alex’s Academy of Excellence and the Mandela School and getting the same result as MPS is a good idea. My bad.

Fuller’s is one of four columns in this Sunday’s opinion section. “There was a time when school choice was touted as a panacea, as the competitive leverage the public schools needed to improve, as a means to empower parents and save low-income students from bad schools,” writes Anneliese Dickman of the centrist Public Policy Forum. “With the latest data, however, the Milwaukee voucher program is now simply portrayed as a popular program that pleases parents and performs at least as well as MPS.” “A popular program that pleases parents”? Shouldn’t that be the public schools?

But, for comic relief, you can’t beat the Journal Sentinel’s resident wing-nut comedian, Patrick McIlheran. Paddy Mac, you see, drives his kids to a Catholic school in Wauwatosa everyday, where they get candy and games on All Saints Day, and he can’t see why Milwaukee taxpayers shouldn’t be soaked for the same religious nonsense for poor children. While citing studies that don’t exist (“There's already good research suggesting that choice schools outperform public schools,” he claims. Well, no...if there was, Fuller would be hitting us over the head with it.), he really doesn't care if the voucher scam fails to deliver on any of its many promises. Sure, what’s a half-a-billion down the drain between friends.

As always, Paddy Mac saves the best punch-line for the end. “Some 80% of Milwaukee's choice schools have a religious basis, just as my children's school outside the program does. Among public schools, there are those dedicated to beliefs such as environmentalism.” Get it? The public schools teaching simple science and promoting environmental awareness (what are they supposed to do when the field trip finds a three-eyed frog in the river – applaud?) is the same as pushing often-medieval religious practices and beliefs on impressionable school children. It’s what the parents want, you see (or, in the case of head-in-the-sand anti-science types like McIlheran, don’t want). “Some [parents] certifiably are [fools], just as some people make poor choices that leave them unhealthy, poor or miserable,” says McIlheran. Oh, don’t forget leaving them stupid. Heavy on the stupid, Patrick.

So, Paddy Mac is all in favor of funding bad choices and foolishness. I guess I know what he means. After all, I am a subscriber to the Journal Sentinel.

Wednesday, March 05, 2008

Land of Hope and Dreams

At an excellent family-and-friends gathering this past weekend, several people were aghast at my continued Obama skepticism. A Republican school board member from the Fox Valley told me he was voting for Obama over McCain, and for all the right "need for change" reasons. A friend I hadn’t seen for ages who was on her way to volunteer for Women for Obama in Ohio after the party stared at her iPhone in disbelief after she called up one of my blog posts. Don’t worry, I assured them and others. I’ll be with you in three days – after Hillary loses in Texas and the party browbeats her into conceding.

This was not to be. If the Obama bubble didn’t burst Tuesday night, it is at least straining against its skin; the pressure of the air inside trying to force itself out into the open air. This has much more to do with Obama being subject to the all too familiar Treatment by the usual nut-right cabal than anything Hillary Clinton did. What Hillary couldn’t (and wouldn’t) do to take the gloss off of the Obama movement in months of campaigning was accomplished in just a couple of weeks of wing-nuttery from the usual suspects in the right-wing media machine.

Since the GOP became convinced of his inevitability after the Wisconsin primary two weeks ago, its surrogates on mainstream radio and elsewhere have employed entirely predictable smear and scare tactics to try to take him down to their low, slug-like level. People with their head in the clouds, thinking that Obama was going to be able to conduct a campaign above the fray like some kind of electronic tea party, were suddenly faced with the vicious innuendo and overblown claims of personal deficiencies that have been standard with the wing-nuts since their success in getting Junior Bush installed by the Supreme Court in 2000. They suddenly became aware that Obama could not unilaterally stop politics-as-usual. As long as right-wingers with no souls were willing to sling mud from the caves of their own personal and political hell, he would be a walking target for those peddling the smut of the politics of personal destruction.

The hope that Obama could change the tone of political discourse through sheer force of will is a large part of his appeal. But his impressive ascendancy to historic electoral heights was bound to bring the arrows of the increasingly-desperate right-wing. These are the same people who want you to believe that the "Clinton machine" would do anything to win. But it is they who will do and say anything – and say it, and say it again and again – to put enough doubt and fear about the Obama unknown so that you scurry for the McCain known. They did it with John Kerry in 2004. And they have already done enormous damage to Obama’s veneer of invincibility. The most important number to watch is Obama’s negatives. The last NYT/CBS poll had his negative number at 23%. Watch that number creep up as the GOP onslaught continues.

Paul Krugman continues to be the only member of the MSM commentariat with a healthy dose of Obama skepticism. In his column on Monday, he questions Obama’s they-all-do-it-in-Washington assumptions. "But Mr. Obama, instead of emphasizing the harm done by the other party’s rule, likes to blame both sides for our sorry political state. And in his speeches he promises not a rejection of Republicanism but an era of postpartisan unity." Blaming both sides does not give nearly enough credit to Karl Rove’s Republican apparatus for poisoning the political atmosphere.

While McCain is promising a "respectful" campaign in the fall, the GOP smear machine has always kept their candidates in plausible personal deniability – that’s why they hand their most ridiculous poison talking-points to lower-rung sycophants for try-outs before walking it up the wing-nut ladder. For instance, local Obamaphobe Rick Esenberg spent too much of his time about a couple of months ago trying to convince his readers that Obama’s attendance at his ethnocentric south side Chicago Christian church was cause for grave concern. That talking-point has now moved up to Fox Noise’s Sean Hannity, who is pounding the red herring into the ground this week. Obama should know and should say that "both sides" are not nearly equally at fault for the sad state of political discourse. Maybe now that he has a big red target on his back that the wing-nuts are hitting repeatedly, he’ll understand that.

Although Hillary’s poll numbers were slipping for two weeks in Ohio and Texas, her remarkable second comeback was solidified after her now-famous red-phone ad that popped up late last week. I am torn between admiring the expert political strategy behind the ad and being repulsed by the emotionally-manipulative plea to the Fear that has worked too well for the Bushies. [It did leave me wondering why she is up at her desk with blazer and glasses on at 3 a.m. I would have had her in her jammies, reaching over Bill to get the phone at that hour, like Tony Soprano.] No, on second thought, I am repulsed. No matter how valid the point – you get the sense, on matters big or small, Hillary really would know what to do intellectually and instinctively and that Obama would need to get input from one or several aides for most things – we don’t need to stoop to the gutter GOP level to make our points. Just because it worked doesn’t make it right.

In any event, all kinds of demographic groups that she lost in Wisconsin – women, Latinos, white men – came back to Hillary in Texas and Ohio. Obama has yet to win in a big, blue state (except his home Illinois). There was a lot of talk on cable last night about the party staging re-do primaries in Florida and Michigan in June, which they really have to do. It may all come to a head then, something that I think would be problematic for Obama, who may end up being a streaky flavor-of-the-month. He tried a few "Yes We Can"s in his speech last night, but I sensed some flatness. Is this what happens when the air goes out of a bubble – not with a pop, but with a distant hissing sound?

For her part, Hillary gave her usual adequate speech last night, even co-opting Obama’s signature chant with a "Yes We Will" chant of her own. At the end, though, something new: Bruce Springsteen’s "Land of Hope and Dreams" blared out of the loudspeakers at the end. Interesting choice. "Meet me in the Land of Hope and Dreams," he sings. There might indeed be more than one way to get there.

Saturday, March 01, 2008

Pretty Lies of the Voucher Vultures

There was a significant study released early this week that showed the city’s vaunted voucher "schools" were accomplishing just as much as (or even less than) garden-variety MPS schools. If you believe them in their usual anti-MPS mode, that means the voucher "schools" are accomplishing next to nothing. Profiteering voucher "school" advocates have fought for years against any testing or other forms of accountability for the child-warehouse program disguised as reform. Now that the comparisons have been made and the voucher program has been exposed as the tax-sucking profit-scam that it is, can we go back to getting those millions back in the public schools where it belongs?

Not so fast, say the voucher zealots. "This is the first chapter of a very long book," says the editorial board of the Journal Sentinel, which has sunk a lot of ink and credibility into the supposedly-wonderful program. Something tells me that, if the report showed even a slight benefit to children in the program, this study would have not been considered preliminary or incomplete – the same people would be jumping up and down about how wonderful and prescient they were/are and demanding an end to the discussion and an expansion of the program. Instead, they are forced to make excuses about over twelve years of lies and promises in pursuance of right-wing pie-in-the-sky.

You’d think, twelve years down the line, we’d be hearing about at least one voucher "school" success story. I would have expected by now we’d have seen Howard Fuller accompanying some 12-year voucher kid to his/her high school graduation, with a puff piece about what college the kid is going to and promises of a glowing future. I don’t think that kid exists.

The fact is that the voucher program has only benefitted three groups:
  • the Catholic and other religious schools that are participating in propping up their dying faith programs;
  • right-wing schemers who couldn’t care less about the education of inner-city children and are using the voucher program as a wedge to destroy public education; and
  • reprehensible scam-artists who establish a temporary warehouse, take the too-easy state money, and run.
The study should be the beginning of the end of this expensive nonsense. Instead, it has been used as an excuse by the usual suspects to recycle their pretty lies.