I held my breath as I watched Barack Obama eat a waffle on TV last week. It was from one of Jeannie Most’s always amusing video essays on CNN, this one about the left-over waffle and sausage from Obama’s breakfast in a Pennsylvania coffee-shop photo-op being offered on eBay (final bid: $10,000 before the diner’s owner put a stop to it).
Obama was sitting there peacefully, with an entire bank of reporters and cameras trained on his every move. He cut the waffle and turned his fork upside-down to pick it up. No, I thought. Don’t do it, man! Thankfully, he turned the fork around and took the food in his mouth like an American man, with the prongs pointing up; not down like some effete European wannabe. Thus did we escape a week of discussion on issue-starved cable TV about how Obama hangs around with elitists, talks like an elitist, eats like an elitist...
The Obama Destruction project being conducted by the right-wingers continues, with the full cooperation of the easily-manipulated nervous-nellies of the mainstream media, who think they have to take this nonsense seriously or they’ll be called "liberal". The result is that even faithful Obama-inclined Democrats are wondering whether Hillary Clinton has a point about his electability in light of the right-wing’s all-too-successful attempts to define him in a negative light before he gets a chance to define himself. We may end up thanking the wing-nuts for letting their various cats out of their bag before Obama had the nomination completely in his, but they just couldn’t help their hot-headed selves. They used to be so much better disciplined.
If Obama’s innocent friendship with former, unrepentant ‘60s radicals who happen to live in his neighborhood is not enough for you, there is still plenty of Jeremiah Wright to go around. Those keeping the video and audio of Rev. Wright shouting "god damn America" from his former pulpit running on a permanent loop now have lots more grist for the mill. The reverend spent most of the past several days providing fresh quotes and antics for those who like to feign outrage about such things, especially when they are trying to generate irrelevant distractions to destroy a candidate who would otherwise clean their candidate’s proverbial clock (and still might).
It wouldn’t take more than an hour of internet research to find all kinds of offensive, reactionary right-wing preachers supporting McCain specifically or Republicans generally spouting offensive nonsense. What’s the difference between the pathetic Falwell and Robertson blaming 9/11 on feminists and gays and Wright saying "the chickens were coming home to roost"? But the Gotcha Preacher game doesn’t work both ways – since Bakker and Swagert, etc., we expect right-wing preachers to say idiotic things while they root around in their parishioners’ pockets. As always, left-leaning churches are held to a higher standard, if only because they are rightly taken more seriously.
"For we have a choice in this country," said Barack Obama’s towards the end his terrific speech on the issue of race back on March 18th. "We can accept a politics that breeds division, and conflict, and cynicism...We can play Reverend Wright's sermons on every channel, every day and talk about them from now until the election, and make the only question in this campaign whether or not the American people think that I somehow believe or sympathize with his most offensive words. We can do that. But if we do, I can tell you that in the next election, we'll be talking about some other distraction. And then another one. And then another one. And nothing will change. That is one option...Or, at this moment, in this election, we can come together and say, ‘Not this time.’"
Yeah, right. Obama is more hopeful than naive; hoping rather than expecting things to change. With Rev. Wright being very much his unapologetic self on his own personal campaign trail, Obama is stuck with the media narrative that could lead to Wright being perceived as his personal doppelganger. Since mainstream radio and Fox "News" will continue to whore for the GOP, granting unearned legitimacy to all sorts of ridiculous notions, Obama needs to find a solution, and fast.
And then, he needs to get ready for the next personal attack, because these people just don’t quit.
Monday, April 28, 2008
Saturday, April 19, 2008
The Audacity of Pope
You can be the president
I’d rather be the pope.
– Prince, "Pope"
The networks and cable news channels were out flexing their pomp muscles this week. It’s important for them to do this once in a while, especially for something planned in advance. You never know when an ex-president is going to die again and you want to be sure they have their deferential live-event chops in order.
Joseph Ratzinger made his first visit to the U.S. in his new name, costume and popemobile and the supplicant media beat a path to his door. Rather than spend their time on vastly more important but un-sexy matters like a disastrous Stupid War and a tanking economy, the nation’s news organizations spent most of this week sucking up to America’s 71 million Roman Catholics by uncritically celebrating the pageant of parades and Masses in Washington and New York.
The church took a giant step backward when it elevated the staunch conservative Ratzinger to pope status in 2005, a step the bishops apparently thought they could afford, since they were already a hundred or so steps behind the modern world. Accepting the earth revolves around the sun is one thing but – condoms? Tut, tut – we’ll have none of that. Maybe someday the church can make up a couple of those steps by recognizing the equality of women, but, let’s not go crazy out here.
In his prior position, Ratzinger cracked the whip for the church hierarchy as head of the office that, believe it or not, used to be called the Inquisition. Talk about your rich church history. As the Defender of All That is Wrong – I’m sorry, head of the Congregation for the Doctrine of the Faith (same difference) – Ratzinger put the hammer down on those who would try to bring the church into (at least) the 19th century on issues such as birth control and homosexuality, the result of the insane position on the use of condoms having caused untold death and disease in the third-world countries. He presided over various purges of those who would entertain notions of "liberation theology" (Jeremiah Wright, the cardinal will see you now) and helped, however temporarily, to keep the church’s sexual abuse under wraps.
The week-long media love-fest with the pope – on behalf and because of their Catholic viewer demographic – has done wonders for Ratzinger’s image. He has discussed the sex-abuse scandal early and often, even meeting with several victims in an unannounced location. Brilliant damage control strategy – who’s he got working that, Karl Rove? No word on whether he brought the church’s bulging checkbook with him – now that would be making amends. The awed anchors have found him nicer than they expected – what did they expect, that he’d swing his staff around like the explosion-loving Tim the Enchanter in Monty Python and the Holy Grail, smiting cardinal sinners left and right? Ratzinger has obviously benefitted from low expectations and the intense security detail that preserves his beatific countenance from unworthy disruption.
This is all just casual amusement for the majority of American Catholics, an increasingly shrinking and aging group (other than the booming, younger Latino sector), who attend every other Sunday or so and otherwise ignore most of the church’s ridiculous teachings. The more doctrinaire, almost evangelical Catholics – which seems to include a remarkable proportion of local right-wing bloggers and national columnists like the putrid Bob Novak [ed. -- OK, Bill Kristol is not Catholic, but still putrid]– also pick and choose from the church’s teachings, beating people over the head with the church's anti-choice position (it has been said that if men got pregnant, abortion would be a sacrament) and conveniently ignoring the church’s strong statements against the death penalty and the Stupid War and U.S. occupation of Iraq and in favor of economic justice for the world’s poor. Same as it ever was for those of faith, who believe what they want to believe and leave the rest.
But, for now, the right-wing commentators are treating the pope’s tour like some kind of national cathartic event, claiming the smiles of the faithful crowds and pretty pictures as some sort of rejection of satanic secularism. It’s hardly that. The pope comes and the pope goes, but $4 a gallon gas and the rest of the disastrous legacy of Junior Bush will continue. It'll take more than medival scanctimony and Latin prayers to get us out of this mess.
I’d rather be the pope.
– Prince, "Pope"
The networks and cable news channels were out flexing their pomp muscles this week. It’s important for them to do this once in a while, especially for something planned in advance. You never know when an ex-president is going to die again and you want to be sure they have their deferential live-event chops in order.
Joseph Ratzinger made his first visit to the U.S. in his new name, costume and popemobile and the supplicant media beat a path to his door. Rather than spend their time on vastly more important but un-sexy matters like a disastrous Stupid War and a tanking economy, the nation’s news organizations spent most of this week sucking up to America’s 71 million Roman Catholics by uncritically celebrating the pageant of parades and Masses in Washington and New York.
The church took a giant step backward when it elevated the staunch conservative Ratzinger to pope status in 2005, a step the bishops apparently thought they could afford, since they were already a hundred or so steps behind the modern world. Accepting the earth revolves around the sun is one thing but – condoms? Tut, tut – we’ll have none of that. Maybe someday the church can make up a couple of those steps by recognizing the equality of women, but, let’s not go crazy out here.
In his prior position, Ratzinger cracked the whip for the church hierarchy as head of the office that, believe it or not, used to be called the Inquisition. Talk about your rich church history. As the Defender of All That is Wrong – I’m sorry, head of the Congregation for the Doctrine of the Faith (same difference) – Ratzinger put the hammer down on those who would try to bring the church into (at least) the 19th century on issues such as birth control and homosexuality, the result of the insane position on the use of condoms having caused untold death and disease in the third-world countries. He presided over various purges of those who would entertain notions of "liberation theology" (Jeremiah Wright, the cardinal will see you now) and helped, however temporarily, to keep the church’s sexual abuse under wraps.
The week-long media love-fest with the pope – on behalf and because of their Catholic viewer demographic – has done wonders for Ratzinger’s image. He has discussed the sex-abuse scandal early and often, even meeting with several victims in an unannounced location. Brilliant damage control strategy – who’s he got working that, Karl Rove? No word on whether he brought the church’s bulging checkbook with him – now that would be making amends. The awed anchors have found him nicer than they expected – what did they expect, that he’d swing his staff around like the explosion-loving Tim the Enchanter in Monty Python and the Holy Grail, smiting cardinal sinners left and right? Ratzinger has obviously benefitted from low expectations and the intense security detail that preserves his beatific countenance from unworthy disruption.
This is all just casual amusement for the majority of American Catholics, an increasingly shrinking and aging group (other than the booming, younger Latino sector), who attend every other Sunday or so and otherwise ignore most of the church’s ridiculous teachings. The more doctrinaire, almost evangelical Catholics – which seems to include a remarkable proportion of local right-wing bloggers and national columnists like the putrid Bob Novak [ed. -- OK, Bill Kristol is not Catholic, but still putrid]– also pick and choose from the church’s teachings, beating people over the head with the church's anti-choice position (it has been said that if men got pregnant, abortion would be a sacrament) and conveniently ignoring the church’s strong statements against the death penalty and the Stupid War and U.S. occupation of Iraq and in favor of economic justice for the world’s poor. Same as it ever was for those of faith, who believe what they want to believe and leave the rest.
But, for now, the right-wing commentators are treating the pope’s tour like some kind of national cathartic event, claiming the smiles of the faithful crowds and pretty pictures as some sort of rejection of satanic secularism. It’s hardly that. The pope comes and the pope goes, but $4 a gallon gas and the rest of the disastrous legacy of Junior Bush will continue. It'll take more than medival scanctimony and Latin prayers to get us out of this mess.
Tuesday, April 15, 2008
Handling the Truth
This primary season has dragged on for so long, the 24-hour news-cycle purveyors are starting to get dizzy. On cable news and political web pages, they stumble from non-issue to non-issue, trying to stay interested in a race on the Democratic side that was been frozen for two months in an apparently insurmountable 150-delegate margin for Barack Obama. When they are not spending hours waxing quizzical about what Hillary Clinton could possibly be thinking of by staying in the race, they are scrutinizing the brow-furrows of her husband for signs of weakness or, at least, the Last Mistake.
Now, this week, everyone has something to say – repeatedly – about Obama’s "gaffe" when he discussed "bitter" working-class people finding cold comfort in guns, religion and anti-immigrant xenophobia. You could hear Democratic consultants tearing their collective hair out from San Francisco to Washington as they braced for the inevitable onslaught from the right-wing echo chamber, who, after having great success parsing 30 seconds from various Jeremiah Wright sermons now have 30 more seconds – this time from the candidate himself – to amuse themselves with. "Elitist!" scream the elitist wing-nuts from their government-licensed radio studios and Scaife-and-Bradley-funded "think tanks".
Unlike the hysterical Wright red herring, however, this one has even Obama sympathizers running for their pacifiers. Even the usually reliable Eugene Kane checks in this morning, lamenting that Obama was "talking down" to small-town voters. On Slate, Melinda Heneberger deconstructs the statement phrase-by-phrase, concluding that "connecting the two [guns ‘n god]" is "belittling in the extreme to the ‘average white person’". In the MSM and cable commentariat, the question isn’t whether the comment will prove damaging, but rather how much damage will be done by those who exacerbate the damage in direct relation to how long they talk about how much damage will be done.
The comment has been compared to images of John Kerry windsurfing, which was used by the Rove message machine to highlight the supposed "elitism" of the candidate in 2004. That the use of that image for that purpose was as ridiculous now as it was then is irrelevant because, it is now claimed, it worked. And who did it work with? Why, those bitter, frustrated, anti-immigrant and trade guns-‘n-god clingers, of course. And why are right-wingers spending all of their free radio time this week squawking about the exposure of Obama's supposed elitism? They know how well it plays with those bitter, frustrated...etc.
Obama’s astute assessment of the angry-white-male electorate actually comes fairly late in the day for the Democrats. Republican’s identified this group over 30 years ago, when manipulative paradigm-shifter Lee Atwater designed the win-at-all-costs scorched-earth campaign on behalf of Bush Senior against the supposedly "elitist" looks-funny-in-a-tank, Willie-Horton-loving Mike Dukakis. Karl Rove did nothing but exploit the bitter fear of these voters to put the incompetent Junior in the White House for eight years, with the willing help of the mainstream radio echo-chamber.
Those entities did nothing but encourage the base resentment of the working class backbone of the country, who saw their economic security pulled out from under them by the same elitist Republicans who now pretend to be their protector from "Democrat" designs on their guns, religion and racial purity. This was the message of Thomas Frank's seminal, now-historic What's the Matter with Kansas. The result of the relentless GOP campaign to disguise their economic thievery with irrelevant emotional "issues" like gay marriage, abortion and undocumented immigrants ("illegal aliens" to you, pal) has been more bitterness and more clinging to things that are not threatened by anybody.
Again, it was a little late, but Democratic consultants have been aware and strategized around the angry-white-male phenomenon for years. They just don’t want their clients out there blabbing about this kind of important but inside-baseball in public, where it can be mangled and manipulated for political advantage. If John McCain had praised the retreat of the disenfranchised working class to the phony safe harbor of, say, religion, he would be exalted by the MSM as keenly insightful. But Democrats are not allowed to celebrate the reciting of truth in this area. They still get defensive about just accurately discussing the lay of the land.
What Obama said just shows how smart he is about the political dynamics of America in a post-Rove world and the challenges that he would face in the general election and as president. He did not speak in disdain but, rather, in understanding. Republicans are shocked - shocked! - that anyone would think, much less say such a thing. But they have done nothing but exploit the angry-white-male reality for decades. And they are doing so with a vengance this week - unfortunately, with the help of too many Democrats, and that includes Hillary Clinton.
Now, this week, everyone has something to say – repeatedly – about Obama’s "gaffe" when he discussed "bitter" working-class people finding cold comfort in guns, religion and anti-immigrant xenophobia. You could hear Democratic consultants tearing their collective hair out from San Francisco to Washington as they braced for the inevitable onslaught from the right-wing echo chamber, who, after having great success parsing 30 seconds from various Jeremiah Wright sermons now have 30 more seconds – this time from the candidate himself – to amuse themselves with. "Elitist!" scream the elitist wing-nuts from their government-licensed radio studios and Scaife-and-Bradley-funded "think tanks".
Unlike the hysterical Wright red herring, however, this one has even Obama sympathizers running for their pacifiers. Even the usually reliable Eugene Kane checks in this morning, lamenting that Obama was "talking down" to small-town voters. On Slate, Melinda Heneberger deconstructs the statement phrase-by-phrase, concluding that "connecting the two [guns ‘n god]" is "belittling in the extreme to the ‘average white person’". In the MSM and cable commentariat, the question isn’t whether the comment will prove damaging, but rather how much damage will be done by those who exacerbate the damage in direct relation to how long they talk about how much damage will be done.
The comment has been compared to images of John Kerry windsurfing, which was used by the Rove message machine to highlight the supposed "elitism" of the candidate in 2004. That the use of that image for that purpose was as ridiculous now as it was then is irrelevant because, it is now claimed, it worked. And who did it work with? Why, those bitter, frustrated, anti-immigrant and trade guns-‘n-god clingers, of course. And why are right-wingers spending all of their free radio time this week squawking about the exposure of Obama's supposed elitism? They know how well it plays with those bitter, frustrated...etc.
Obama’s astute assessment of the angry-white-male electorate actually comes fairly late in the day for the Democrats. Republican’s identified this group over 30 years ago, when manipulative paradigm-shifter Lee Atwater designed the win-at-all-costs scorched-earth campaign on behalf of Bush Senior against the supposedly "elitist" looks-funny-in-a-tank, Willie-Horton-loving Mike Dukakis. Karl Rove did nothing but exploit the bitter fear of these voters to put the incompetent Junior in the White House for eight years, with the willing help of the mainstream radio echo-chamber.
Those entities did nothing but encourage the base resentment of the working class backbone of the country, who saw their economic security pulled out from under them by the same elitist Republicans who now pretend to be their protector from "Democrat" designs on their guns, religion and racial purity. This was the message of Thomas Frank's seminal, now-historic What's the Matter with Kansas. The result of the relentless GOP campaign to disguise their economic thievery with irrelevant emotional "issues" like gay marriage, abortion and undocumented immigrants ("illegal aliens" to you, pal) has been more bitterness and more clinging to things that are not threatened by anybody.
Again, it was a little late, but Democratic consultants have been aware and strategized around the angry-white-male phenomenon for years. They just don’t want their clients out there blabbing about this kind of important but inside-baseball in public, where it can be mangled and manipulated for political advantage. If John McCain had praised the retreat of the disenfranchised working class to the phony safe harbor of, say, religion, he would be exalted by the MSM as keenly insightful. But Democrats are not allowed to celebrate the reciting of truth in this area. They still get defensive about just accurately discussing the lay of the land.
What Obama said just shows how smart he is about the political dynamics of America in a post-Rove world and the challenges that he would face in the general election and as president. He did not speak in disdain but, rather, in understanding. Republicans are shocked - shocked! - that anyone would think, much less say such a thing. But they have done nothing but exploit the angry-white-male reality for decades. And they are doing so with a vengance this week - unfortunately, with the help of too many Democrats, and that includes Hillary Clinton.
Wednesday, April 09, 2008
Classless with a "C"
The Mighty Mudhens are preparing for their second season in the Milwaukee Men’s Senior Baseball League, 48+ Division. Our first season was a gas, most of us – including me – playing real hardball for the first time since high school. I surprised myself by hitting pretty good, which I attributed to my five years of coaching Little League – I just did what I always told the kids to do and, son-of-a-gun, it worked. We were an expansion team in a six-team division and didn’t win one damn game, but a great time was had by all.
I was thinking of sharing some of the Mudhen experience with my readers this summer – you know, take a little of the edge off the political stuff that is bound to have us all tied up in knots until November with happy stories of older guys trying to play baseball. But then Jessica McBride pulled her little stunt yesterday and, well, I guess it’s best I not put too much personal stuff out there.
After giving all of us a break for the most part in the early part of the year from her ponderous and unintentionally hilarious postings, McBride the blogger lurched clumsily into the issues surrounding the Supreme Court race three weeks before the election by creating a second page called Election Watch Wisconsin. The page appeared to have two primary purposes: first, to conduct some extremely amateur and out-right wrong legal case analysis to try to prove that the Butler campaign was puffing up its estimate of how often the justice voted to uphold criminal convictions and; second, to promote her and her husband’s chosen candidate for the Second District Court of Appeals, who got thumped by incumbent Doyle-appointee Lisa Neubauer. It was an embarrassing, sloppy effort in all respects and a delight for those of us who like to watch arrogant no-talents get into slow-motion train wrecks.
The Second District electorate and anyone with any sense were rightly unimpressed with her hackneyed, embarrassing promotion of losing candidate Bill Gleisner. The series of comedic posts reached classic Soup-Nazi-like status when she offered a letter from Gleisner’s pastor to "prove" his anti-choice credentials, an event even more pathetic because Gleisner gave it to her.
But it was left to others to dig deep to expose McBride’s ham-fisted distortion of Justice Butler’s record on the Supreme Court. Although I read all the cases she initially cited and made an early effort to expose her deliberate cluelessness, learned counsel Illusory Tenant burned millions of pixels on his site during the last weeks of the campaign in an 11 (and counting) part series, coldly eviscerating, case-by-case, the lies of McBride and her fellow travelers in the "Coalition for Wisconsin Families", a nationally-funded advertising campaign disguised as an interest group. I personally wouldn’t spend that much time (even if I had it) dignifying McBride’s hack job with such an elaborate response, but, for anyone wondering if maybe she had stumbled onto some truth by accident, IT’s yeoman service exposed – alas, too late and too quietly – the lies for what they were.
Now, most nut-right operatives who had just gotten away with playing a part in a campaign of distortions that contributed, however minutely, to the defeat of the distinguished first African-American on the Supreme Court, would simply chalk up another one for their side and wait for their invitation to the WMC celebration, coming soon to an undisclosed country club near you. But not our Jess. Still stung by IT’s stellar posts during the campaign and the resultant mild celebrity that resulted in him being invited to chat for ten minutes on public radio, McBride decided to breach the unwritten and who-but-her-doesn’t-know-it rule that you don’t go around getting into personal lives of your opponents in the war of ideas. See, because of his radio appearance, McBride found out the formerly-anonymous IT’s name. The intrepid reporter googled and CCAPed him. She found out some stuff. Then she posted the results, employing the well-worn right-wing tactic of the politics of personal destruction in the hopes that people might forget or ignore how right he is and how wrong she is.
Now, if I were IT, I would be honored by a cheap hack like Jessica McBride flailing around and embarrassing herself in public just because she couldn’t take the heat. It’s like being on Nixon’s enemies list. But, really, none of us on either left or right out here should have to be looking over our shoulders to see who might be ready to expose our public-record weaknesses, much less our private ones.
McBride’s timing in her unwarranted personal attack is interesting, since it comes just after Owen Robinson bemoaned what he called "the decline of the Wisconsin blogosphere" into "insults and filth". I don’t agree with him necessarily. I think sharp language that keeps the focus on what people say and what they do to advance their own political agendas and those of others is fair comment. I say this knowing that I have been attacked for my own comments and characterizations. I try to challenge and engage people on the other side on their terms about what they are saying and doing on subjects they have chosen to engage in. For instance, when I call McBride a "cheap hack", that is judging her public persona, not her private one, about which I couldn’t care less.
Which brings us back to the Mudhens. The MSBL has a website, you see, and all my stats will be up there (not to mention my picture with the 38+/48+ All-Star team [scroll down on the main page], but I digress...). Although I batted a respectable .385 last year, what will happen if it goes south this year? If I go 0-for-4 early in the season, will McBride point to my inept hitting as analogous to my political swings-and-misses? If I go 0-for-May, will I be declared incapable of coherent political thought? I can’t risk losing my confidence at the plate, my spot in the batting order and my small niche in the blogosphere in this important season for the Mudhens and this important election in the fall. McBride, please stay away from the 'Hens. I can't take the pressure.
In the Information Age, we are all so vulnerable in so many ways. But none are so weak as those who exploit that information to prop themselves up.
I was thinking of sharing some of the Mudhen experience with my readers this summer – you know, take a little of the edge off the political stuff that is bound to have us all tied up in knots until November with happy stories of older guys trying to play baseball. But then Jessica McBride pulled her little stunt yesterday and, well, I guess it’s best I not put too much personal stuff out there.
After giving all of us a break for the most part in the early part of the year from her ponderous and unintentionally hilarious postings, McBride the blogger lurched clumsily into the issues surrounding the Supreme Court race three weeks before the election by creating a second page called Election Watch Wisconsin. The page appeared to have two primary purposes: first, to conduct some extremely amateur and out-right wrong legal case analysis to try to prove that the Butler campaign was puffing up its estimate of how often the justice voted to uphold criminal convictions and; second, to promote her and her husband’s chosen candidate for the Second District Court of Appeals, who got thumped by incumbent Doyle-appointee Lisa Neubauer. It was an embarrassing, sloppy effort in all respects and a delight for those of us who like to watch arrogant no-talents get into slow-motion train wrecks.
The Second District electorate and anyone with any sense were rightly unimpressed with her hackneyed, embarrassing promotion of losing candidate Bill Gleisner. The series of comedic posts reached classic Soup-Nazi-like status when she offered a letter from Gleisner’s pastor to "prove" his anti-choice credentials, an event even more pathetic because Gleisner gave it to her.
But it was left to others to dig deep to expose McBride’s ham-fisted distortion of Justice Butler’s record on the Supreme Court. Although I read all the cases she initially cited and made an early effort to expose her deliberate cluelessness, learned counsel Illusory Tenant burned millions of pixels on his site during the last weeks of the campaign in an 11 (and counting) part series, coldly eviscerating, case-by-case, the lies of McBride and her fellow travelers in the "Coalition for Wisconsin Families", a nationally-funded advertising campaign disguised as an interest group. I personally wouldn’t spend that much time (even if I had it) dignifying McBride’s hack job with such an elaborate response, but, for anyone wondering if maybe she had stumbled onto some truth by accident, IT’s yeoman service exposed – alas, too late and too quietly – the lies for what they were.
Now, most nut-right operatives who had just gotten away with playing a part in a campaign of distortions that contributed, however minutely, to the defeat of the distinguished first African-American on the Supreme Court, would simply chalk up another one for their side and wait for their invitation to the WMC celebration, coming soon to an undisclosed country club near you. But not our Jess. Still stung by IT’s stellar posts during the campaign and the resultant mild celebrity that resulted in him being invited to chat for ten minutes on public radio, McBride decided to breach the unwritten and who-but-her-doesn’t-know-it rule that you don’t go around getting into personal lives of your opponents in the war of ideas. See, because of his radio appearance, McBride found out the formerly-anonymous IT’s name. The intrepid reporter googled and CCAPed him. She found out some stuff. Then she posted the results, employing the well-worn right-wing tactic of the politics of personal destruction in the hopes that people might forget or ignore how right he is and how wrong she is.
Now, if I were IT, I would be honored by a cheap hack like Jessica McBride flailing around and embarrassing herself in public just because she couldn’t take the heat. It’s like being on Nixon’s enemies list. But, really, none of us on either left or right out here should have to be looking over our shoulders to see who might be ready to expose our public-record weaknesses, much less our private ones.
McBride’s timing in her unwarranted personal attack is interesting, since it comes just after Owen Robinson bemoaned what he called "the decline of the Wisconsin blogosphere" into "insults and filth". I don’t agree with him necessarily. I think sharp language that keeps the focus on what people say and what they do to advance their own political agendas and those of others is fair comment. I say this knowing that I have been attacked for my own comments and characterizations. I try to challenge and engage people on the other side on their terms about what they are saying and doing on subjects they have chosen to engage in. For instance, when I call McBride a "cheap hack", that is judging her public persona, not her private one, about which I couldn’t care less.
Which brings us back to the Mudhens. The MSBL has a website, you see, and all my stats will be up there (not to mention my picture with the 38+/48+ All-Star team [scroll down on the main page], but I digress...). Although I batted a respectable .385 last year, what will happen if it goes south this year? If I go 0-for-4 early in the season, will McBride point to my inept hitting as analogous to my political swings-and-misses? If I go 0-for-May, will I be declared incapable of coherent political thought? I can’t risk losing my confidence at the plate, my spot in the batting order and my small niche in the blogosphere in this important season for the Mudhens and this important election in the fall. McBride, please stay away from the 'Hens. I can't take the pressure.
In the Information Age, we are all so vulnerable in so many ways. But none are so weak as those who exploit that information to prop themselves up.
Thursday, April 03, 2008
The WMC Unbound
The classless, gloating radio and blog wing-nuts are having great fun this week grinding the salt of Louis Butler’s defeat into the open wounds of Wisconsin’s lost independent judiciary. When they aren’t childishly calling us whining losers, they are feigning outrage that anyone who tried to protect the state from WMC’s stack-the-court campaign would imply that the result of the Supreme Court election was anything but a reasoned choice of one "judicial philosophy" over another.
But they know what they did and what they do. The popping of champagne corks in country clubs, gated-community mansions and right-wing radio studios could be heard throughout the state – or at least in the North Shore and western suburbs – and throughout the nation, where the attack on the independent judiciary is driven (and funded) by the same devious greed-heads who brought you Junior Bush and the war in Iraq.
Governor Doyle and Justice Butler himself have talked in recent days about the "tragedy" of the election results, and, indeed, it is. I think it’s the worst thing to happen in electoral politics since the ultimate "activist" 5-4 U.S. Supreme Court ruling in Bush v. Gore stopped the recount ordered by the Florida courts, thereby appointing Bush as president by judicial fiat (to everyone’s eternal loss). Tuesday’s results here were tragic for different reasons – the election was not "stolen" in any way that I’m aware of. Wisconsin’s electoral tragedy lies in the result – another success in the continuing court-stacking campaign by WMC and national right-wing business interests. This was a power-grab accomplished not with a sudden dramatic event, but in slow-motion, through the course of a long, deceitful, racist campaign conducted with the sole purpose of installing another willing supplicant on the Court in the place of a talented, independent voice.
Let’s start at the beginning. If job-hopping McCallum fund-raiser Michael Gableman had decided on his own to run for the Supreme Court on his decidedly unaccomplished record in far-flung Burnett County and was left to his own meager devices, he would have had the same success as the-guy-that-ran against Milwaukee mayor Tom Barrett did on Tuesday. But, of course, that’s not how Gableman got involved. It has never been denied that Gableman was recruited by the WMC – supposedly their seventh or eighth option, if he was on the original list at all.
Any "conservative" with any accomplishment or dignity apparently passed on the WMC invitation this year, probably in deference to Justice Butler (who is universally well-liked and respected in the legal community), his fine reputation as one of the most talented jurists ever to sit on the Wisconsin Supreme Court and his not unimportant historical status as the Court's first African-American. But the WMC, still feeling their oats after their successful installation of the ethically-challenged Annette Zeigler the year before, were not to be deterred just because Butler was a respected person of substance and stature or because they couldn’t find anyone who was qualified. They dragged Gableman out of his deserved obscurity, dressed him up and sent him out with a limited set of talking points. Gableman was all too willing to play along.
In the meantime, WMC surrogates went forth to poison the well of what passed for intellectual debate about the recent work of the Supreme Court generally and Justice Butler in particular. The Court was frighteningly "unbound", claimed a first-year Marquette law professor in a national Federalist Society-funded "white paper" that circulated predictably through the right-wing echo chamber. That professor spouted the same phony dire message in a video that was circulated throughout the nut-right bloggosphere and that was played at various WMC meetings with business people throughout the state.
While all this is going on, that same professor took an active part in the WMC’s campaign to make a pre-emptive strike against a State Bar committee that was created to try to keep the judicial campaign on a properly judicial keel. Knowing the virulent ads that were planned, a fair, judicial tone was the last thing the WMC wanted. By the time the shit really started to fly, the independent WJCIC was perceived and treated like Butler partisans by, at least, the Journal Sentinel, which only cited the committee if they were criticizing advertising by third-party groups friendly to Butler.
Finally, in a stroke of sheer genius, the most repulsive ad of this or any other campaign in Wisconsin – the racist Willie-Horton knock-off – was issued under the name of the Gableman campaign itself, thus limiting the focus on WMC’s primary role, which surely would have been more of an issue if the racist ad came from them. Gableman, having no shame or sense of judicial decorum, was all too happy to claim it as his own.
Given the fact that WMC and its nationally-funded surrogates probably outspent Butler-supporting third-parties by at least 3-to-1 and the hours and days of free advertising against Butler on mainstream radio for the entire campaign (Charlie Sykes even brags about how he uses his publicly-licensed soapbox to facilitate his undue influence on elections), it’s a wonder how the race got so close.
WMC, in the end, got what it paid for. When public-interest litigants come into the Supreme Court chambers in the fall to argue in a case involving a business, they will find at least two justices on either sides of the bench – Zeigler and Gableman – who might as well have a big yellow sticky-pad on their forehead that simply says "NO". And, no doubt, we’ll be right back here this time next year, after they have a crack at putting some lackey in the place of distinguished Chief Justice Shirley Abrahamson. It’s all too easy for them. Why stop now?
In the end, people get the government and – in this case – the justice they deserve. Some of the same people who believed the lies of the WMC and its surrogates may find themselves injured by the deliberate or negligent acts of a corporation; or damaged by a malpracticing doctor; or wrongly accused and convicted of a crime. They might find themselves before the Supreme Court, trying to right a wrong or correct an injustice. With Justice Butler there, they would have found someone who they could not predict, but at least someone who would give them an independent review of the facts and the law and a fair shake. Now, with Zeigler and Gableman, they have a known quantity – they’ll know what to expect. They should expect and they will get exactly nothing.
When that happens, I’m tempted to say "don’t come crying to me". But, it’s my job and my passion to help those who come crying to me. When it comes time for that crucial case analysis – what are your chances? – it might not be pretty. But, as bad as it may be with a WMC court stacked against you, I won’t make it worse. I promise not to ask how you voted this week, in the sad turning-point election in the once-proud history of the Wisconsin Supreme Court.
But they know what they did and what they do. The popping of champagne corks in country clubs, gated-community mansions and right-wing radio studios could be heard throughout the state – or at least in the North Shore and western suburbs – and throughout the nation, where the attack on the independent judiciary is driven (and funded) by the same devious greed-heads who brought you Junior Bush and the war in Iraq.
Governor Doyle and Justice Butler himself have talked in recent days about the "tragedy" of the election results, and, indeed, it is. I think it’s the worst thing to happen in electoral politics since the ultimate "activist" 5-4 U.S. Supreme Court ruling in Bush v. Gore stopped the recount ordered by the Florida courts, thereby appointing Bush as president by judicial fiat (to everyone’s eternal loss). Tuesday’s results here were tragic for different reasons – the election was not "stolen" in any way that I’m aware of. Wisconsin’s electoral tragedy lies in the result – another success in the continuing court-stacking campaign by WMC and national right-wing business interests. This was a power-grab accomplished not with a sudden dramatic event, but in slow-motion, through the course of a long, deceitful, racist campaign conducted with the sole purpose of installing another willing supplicant on the Court in the place of a talented, independent voice.
Let’s start at the beginning. If job-hopping McCallum fund-raiser Michael Gableman had decided on his own to run for the Supreme Court on his decidedly unaccomplished record in far-flung Burnett County and was left to his own meager devices, he would have had the same success as the-guy-that-ran against Milwaukee mayor Tom Barrett did on Tuesday. But, of course, that’s not how Gableman got involved. It has never been denied that Gableman was recruited by the WMC – supposedly their seventh or eighth option, if he was on the original list at all.
Any "conservative" with any accomplishment or dignity apparently passed on the WMC invitation this year, probably in deference to Justice Butler (who is universally well-liked and respected in the legal community), his fine reputation as one of the most talented jurists ever to sit on the Wisconsin Supreme Court and his not unimportant historical status as the Court's first African-American. But the WMC, still feeling their oats after their successful installation of the ethically-challenged Annette Zeigler the year before, were not to be deterred just because Butler was a respected person of substance and stature or because they couldn’t find anyone who was qualified. They dragged Gableman out of his deserved obscurity, dressed him up and sent him out with a limited set of talking points. Gableman was all too willing to play along.
In the meantime, WMC surrogates went forth to poison the well of what passed for intellectual debate about the recent work of the Supreme Court generally and Justice Butler in particular. The Court was frighteningly "unbound", claimed a first-year Marquette law professor in a national Federalist Society-funded "white paper" that circulated predictably through the right-wing echo chamber. That professor spouted the same phony dire message in a video that was circulated throughout the nut-right bloggosphere and that was played at various WMC meetings with business people throughout the state.
While all this is going on, that same professor took an active part in the WMC’s campaign to make a pre-emptive strike against a State Bar committee that was created to try to keep the judicial campaign on a properly judicial keel. Knowing the virulent ads that were planned, a fair, judicial tone was the last thing the WMC wanted. By the time the shit really started to fly, the independent WJCIC was perceived and treated like Butler partisans by, at least, the Journal Sentinel, which only cited the committee if they were criticizing advertising by third-party groups friendly to Butler.
Finally, in a stroke of sheer genius, the most repulsive ad of this or any other campaign in Wisconsin – the racist Willie-Horton knock-off – was issued under the name of the Gableman campaign itself, thus limiting the focus on WMC’s primary role, which surely would have been more of an issue if the racist ad came from them. Gableman, having no shame or sense of judicial decorum, was all too happy to claim it as his own.
Given the fact that WMC and its nationally-funded surrogates probably outspent Butler-supporting third-parties by at least 3-to-1 and the hours and days of free advertising against Butler on mainstream radio for the entire campaign (Charlie Sykes even brags about how he uses his publicly-licensed soapbox to facilitate his undue influence on elections), it’s a wonder how the race got so close.
WMC, in the end, got what it paid for. When public-interest litigants come into the Supreme Court chambers in the fall to argue in a case involving a business, they will find at least two justices on either sides of the bench – Zeigler and Gableman – who might as well have a big yellow sticky-pad on their forehead that simply says "NO". And, no doubt, we’ll be right back here this time next year, after they have a crack at putting some lackey in the place of distinguished Chief Justice Shirley Abrahamson. It’s all too easy for them. Why stop now?
In the end, people get the government and – in this case – the justice they deserve. Some of the same people who believed the lies of the WMC and its surrogates may find themselves injured by the deliberate or negligent acts of a corporation; or damaged by a malpracticing doctor; or wrongly accused and convicted of a crime. They might find themselves before the Supreme Court, trying to right a wrong or correct an injustice. With Justice Butler there, they would have found someone who they could not predict, but at least someone who would give them an independent review of the facts and the law and a fair shake. Now, with Zeigler and Gableman, they have a known quantity – they’ll know what to expect. They should expect and they will get exactly nothing.
When that happens, I’m tempted to say "don’t come crying to me". But, it’s my job and my passion to help those who come crying to me. When it comes time for that crucial case analysis – what are your chances? – it might not be pretty. But, as bad as it may be with a WMC court stacked against you, I won’t make it worse. I promise not to ask how you voted this week, in the sad turning-point election in the once-proud history of the Wisconsin Supreme Court.
Wednesday, April 02, 2008
The Lost World
There was this guy I knew when I was a kid.
Pillar of the community – the only lawyer in town, actually. Always in a suit, even hanging around in his own house. Real straight up guy – MC’d everything from the Holy Rosary athletic banquet to the Kiwanis Club Christmas night. Nixon Republican, Vietnam War supporter, fiscal conservative. He was pretty cool, though. Coolest guy I ever knew.
When I stride into the courthouse every morning, I think about him. He was gracious to everyone, friend and foe. He stood tall in that conservative suit. I can’t say I ever saw him actually practicing law, although I knew that’s what he did. But he brought his kind bearing with him everywhere he went. People may have disagreed with him, but nobody didn’t like him.
The Vietnam era was ugly and, with me as a teenaged know-it-all, we had some very intense conversations about the war and all of the other extraordinary issues of the day. He was a WWII veteran, serving in a boat on the Pacific for some very long years. He respected authority and often seemed bewildered by the freedom my generation felt and exercised. We talked and yelled and vented – understanding each other more than we could admit at the time.
I learned from him the bearing of a true professional man, the respect for opposing views, the value of informed argument and fair play. It was he who first got me interested in the law and the interplay of facts and precedent, even though we didn’t talk much about the details of his work and I never saw him appear in court.
The only case we ever discussed was a client of his who was charged with littering, raising the following issue: if you pick up a can on the side of the road and throw it into a nearby river, can you yourself be charged with littering for simply moving something that had already been littered? 40 years later – 22 as a lawyer – and I still don’t know the answer to that one.
He died in 1971, when I was 16.
I think he would have been surprised and saddened by the nasty partisan tone that politics and, now, the law has taken. He certainly did the best for his clients and his friends, but he was not a win-at-all-costs kind of guy. He would have expected better than Republicans and self-appointed conservatives have behaved in recent years. If Nixon’s crimes didn’t do it, the machinations of Lee Atwater and Karl Rove may have well turned him into a Democrat.
But, I like to think that he would be saddest about the state of the legal profession – the crumbling of impartiality, the selling of the state Supreme Court to monied interests. He would want to have his arguments rise and fall on their own merits, not because any court had been stacked for or against him. He would have been outraged by the racism used against the first African-American on the Supreme Court. He would have been sickened by an electorate that bought the lies of an out-of-state band of profiteers who propped up a disgraceful empty suit to carry their water.
I would have liked to have introduced him to my friend, Louis Butler. I know they both would have enjoyed each other’s company; the banter of engaged, open minds; the laughter of recognition of experiences somehow shared in dramatically different lives. Both would have met gladly on the field of intellectual debate. Louis probably would have "won" on points, but both would have reveled in the lost art of respectful disagreement and the meeting of the minds.
That guy was my dad. His memory is just one of the thousands of reasons that I'm sorry Louis Butler lost tonight.
Pillar of the community – the only lawyer in town, actually. Always in a suit, even hanging around in his own house. Real straight up guy – MC’d everything from the Holy Rosary athletic banquet to the Kiwanis Club Christmas night. Nixon Republican, Vietnam War supporter, fiscal conservative. He was pretty cool, though. Coolest guy I ever knew.
When I stride into the courthouse every morning, I think about him. He was gracious to everyone, friend and foe. He stood tall in that conservative suit. I can’t say I ever saw him actually practicing law, although I knew that’s what he did. But he brought his kind bearing with him everywhere he went. People may have disagreed with him, but nobody didn’t like him.
The Vietnam era was ugly and, with me as a teenaged know-it-all, we had some very intense conversations about the war and all of the other extraordinary issues of the day. He was a WWII veteran, serving in a boat on the Pacific for some very long years. He respected authority and often seemed bewildered by the freedom my generation felt and exercised. We talked and yelled and vented – understanding each other more than we could admit at the time.
I learned from him the bearing of a true professional man, the respect for opposing views, the value of informed argument and fair play. It was he who first got me interested in the law and the interplay of facts and precedent, even though we didn’t talk much about the details of his work and I never saw him appear in court.
The only case we ever discussed was a client of his who was charged with littering, raising the following issue: if you pick up a can on the side of the road and throw it into a nearby river, can you yourself be charged with littering for simply moving something that had already been littered? 40 years later – 22 as a lawyer – and I still don’t know the answer to that one.
He died in 1971, when I was 16.
I think he would have been surprised and saddened by the nasty partisan tone that politics and, now, the law has taken. He certainly did the best for his clients and his friends, but he was not a win-at-all-costs kind of guy. He would have expected better than Republicans and self-appointed conservatives have behaved in recent years. If Nixon’s crimes didn’t do it, the machinations of Lee Atwater and Karl Rove may have well turned him into a Democrat.
But, I like to think that he would be saddest about the state of the legal profession – the crumbling of impartiality, the selling of the state Supreme Court to monied interests. He would want to have his arguments rise and fall on their own merits, not because any court had been stacked for or against him. He would have been outraged by the racism used against the first African-American on the Supreme Court. He would have been sickened by an electorate that bought the lies of an out-of-state band of profiteers who propped up a disgraceful empty suit to carry their water.
I would have liked to have introduced him to my friend, Louis Butler. I know they both would have enjoyed each other’s company; the banter of engaged, open minds; the laughter of recognition of experiences somehow shared in dramatically different lives. Both would have met gladly on the field of intellectual debate. Louis probably would have "won" on points, but both would have reveled in the lost art of respectful disagreement and the meeting of the minds.
That guy was my dad. His memory is just one of the thousands of reasons that I'm sorry Louis Butler lost tonight.
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.
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.
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.
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, though...it 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
http://plaistedwrites.blogspot.com
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!
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
http://plaistedwrites.blogspot.com
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).
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:
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
UPDATES WHERE NECESSARY
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.
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:
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
UPDATED BELOW
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:
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.
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