Earlier this week, the two candidates for the Wisconsin Supreme Court debated on an online radio show. In a “prebuttal” to the debate, Butler Campaign Manager Sachin Chheda told the Badger Herald, “Justice Butler has sided with criminal defendants who have brought their case to the Supreme Court less than 3 percent of the time.”
During the course of the debate, Justice Butler said: “My record reflects that approximately 98 percent of the time when you look at the cases that have been decided on the Court as well as when you look at the petitions for review that have been filed with the Court, that in approximately 98 percent of the cases, I have ruled in favor of upholding the convictions of the criminal defendants who have had cases filed in our Court.”
These two statements were made in rebuttal to a statement offered by the Gableman campaign earlier this winter: Darrin Schmitz, campaign strategist for the Gableman campaign, said, “Louis Butler and his allies cannot hide the fact that he consistently sides with criminals over law enforcement.”
What gives? The Gableman camp says that Butler sides with criminals over law enforcement, but Butler says he votes for criminal defendants in only 2-3 percent of cases.
This, of course, is spin: selection of particular data. If the Gableman campaign is making a statistical assertion: in the majority of cases, Butler votes for the defendant, then they are only counting cases where the Court issued a decision. They could also be looking at only a subjective set of “major” cases. The Butler campaign is counting opinion cases and votes on petitions for review. We should ask, then, which measure is a fairer representation of the Justice’s impact on the Court?
I would submit that we can start with Justice Butler’s comments in a different part of the debate:
“What we do on the Wisconsin Supreme Court is we only take the most difficult cases, we only take the cases that are line-drawing, we take the cases that do not have easy answers, we take the cases that the Court of Appeals has had difficulty coming to grips with, or the trial court judges, and then we have to come down with an answer…”
The opinion cases are the “difficult cases” where several members of the Court believe it is important to take the case and solve the question. The petition for review cases are cases where the Court’s members looked at the case and did not choose to grant review. These cases come mostly from criminal defendants who are prisoners and have nothing else to do with their day but file appeals.
The question, then, is which statistic is a better judge of Justice Butler’s time on the Court. I believe it is the opinions, not the petitions for review. As Justice Butler said, these are the “line-drawing” cases. Where the line gets drawn can profoundly affect the tools available to law enforcement, as we’ve documented elsewhere. This, then, is where the Justice’s judicial philosophy really matters, and where his judicial philosophy is most fully exposed.
My conclusion: the 2-3% number is spin, drawn up to refute what the Butler campaign knows is an effective punch from the Gableman campaign. Part of the resonance of Schmitz’s statement is that it draws on a statistic that is drawn from a far more telling data set.
Last 5 posts by Daniel- Tom Barrett's Savings Plan - June 8th, 2010
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- Did the USCCB Foresee Dead People? - February 8th, 2010
Daniel, you do understand that Supremem Court judges don’t “vote” for one side or the other, right? They rule based on the Law.
Also your argument is not bolstered by admitting that the Gabelman campaign has to cherry-pick the data to come up with their damning assertions. That would be like saying that Justice Ziegler had no conflicts of interest if you didn’t look at the West Bend Mutual cases.
Speaking of cases up for Review…What is Gableman’s record when his decisions have been appealed? Are the bulk of those cases upheld by higher courts? What’s his percentage?
Daniel,
Though I have no opinion one way or the other, as I have not investigated the facts, nor reviewed any of the data, I will say that this was a most impressive observation you have made, and a compelling critique into judicial politics.
Kudos!
James, Thanks.
Grumps, your argument about voting for one side or the other is why the State Bar’s Integrity Committee condemned Schmitz’s comment – see my post yesterday.
Judges rule based on THEIR INTERPRETATION of the law. My disagreement is with Justice Butler’s methods of interpretation – see my original briefing memo on his judicial activism.
Moreover, the point of this post is to say that BUTLER cherry-picks his statistics, whereas Gableman chose a good statistic (even if it is not one I personally would use on the campaign trail).
Finally, to answer your question: Gableman’s decisions are 12 and 5 before the Wisconsin Court of Appeals, 2000-2007 – http://www.dailyreporter.com/pdf/charts-012108.pdf.
Let me get this right. Gableman’s campaign makes a statement that is demonstrably false, i.e., that Butler “consistently sides with criminals over law enforcement.” Butler then calls him on it and presents the facts that he has voted to affirm convictions in 98% of the cases presented to the Court. And you say that Butler is the one spinning the facts????? Get real!
Daniel, whatever may be the most appropriate basis for comparison, the fact is that Gableman’s campaign is attempting to mislead the public and you are doing your best to help them. In the quotation you provide, Schmitz doesn’t say that Butler voted for reversal in more of the important cases that were actually decided by the Court following full briefing. Rather, he said that Butler “consistently sides with criminals over law enforcement.” That was and is false! Be honest and admit it and move on to real issues rather than “Slime Boat” attacks.
By the way, although I have a real job defending the constitution and people charged with crimes and have read many of the decisions you cite, I did take some time to glance through some of your analyses of Justice Butler’s cases. While I commend you for taking the time to read through all of them, your analyses prove that it is impossible accurately to distill the reasoning of a decision into a few lines. Merely presenting a biased assertion of the Court’s rationale for its decision and then cherry-picking a sound bite from the dissent as somehow “proving” that the majority’s reasoning is bad does justice to neither the majority’s reasoning nor that of the dissent.
Hopefully I will have time to do a more detailed dissection of some of your analyses. Given the “don’t confuse me with the facts; my mind’s made up” response from “Brian” to my comment on your attack on the Judicial Integrity Committee, however, it probably would just be a waste of time.
Daniel, Sorry, but another point comes to mind given Mr. Schmitz’ comment. As we discussed yesterday, the people who are appealing convictions are seeking a new trial on the grounds that the original trial for some reason failed to provide a fair vehicle for deciding that person’s guilt or innocence. While most of these people are in fact guilty, many are not. Over the years, I have represented many people who were convicted of crimes it ultimately turned out they did not commit. Most of those reversals, by the way, were entered by the federal courts stacked with right-wing, GOP-appointed judges after the Wisconsin state courts had upheld the convictions.
My point, though, is that to Schmitz (and thus presumably to Judge Gableman), they are all “criminals.” By making the assertion that the person before the court is a “criminal,” Schmitz (and again, presumably Judge Gableman) are definitely prejudging the case. A true conservative would recognize that to be squarely at odds with both the American justice system and our Constitution. Justice Butler certainly recognizes that it is.
Having decided that I don’t need that much sleep, I decided to take a shot at your analysis of State v. Knapp, 2005 WI 127, one of the cases you previously cited as of special concern to you. In your analysis, you describe the case as follows:
“Setting aside the U.S. Supreme Court’s interpretation of the Fifth Amendment, Justice Butler writes for the majority that Wisconsin’s self-incrimination clause, which is virtually identically worded, provides greater protection to suspected criminals. In a murder case, a bloody sweatshirt is ruled inadmissible as evidence because the suspect told officers of its location before the officers read his Miranda rights to him.”
Amazing how misleading a little passive voice can be. Here, you suggest that Mr. Knapp just happened to disclose the location of the sweatshirt before the police could get around to advising him of his Miranda rights and that Justice Butler and the Court majority used that as an excuse to let an accused murderer go free.
What you leave out with this creative use of the passive voice is the fact that the police INTENTIONALLY VIOLATED THE SUSPECT’S CONSTITUTIONAL RIGHTS specifically to obtain such a statement. This is not a case, as you suggest, of the police inadvertently failing to follow some obscure rule, but an intentional violation of the constitution. In fact, such a violation can be a federal crime. I think it’s 18 U.S.C. s.241 – violation of civil rights under color of state law.
It was the fact that this was an intentional violation of the constitution, the need to deter such violations, the need for judicial integrity, and 150 years of state court precedent that dictated the Court’s result. As the majority concluded:
“In summary, we conclude that physical evidence obtained as a direct result of an intentional violation of Miranda is inadmissible under Article I, Section 8 of the Wisconsin Constitution. We will not allow those we entrust to enforce the law to intentionally subvert a suspect’s constitutional rights. As it is undisputed that the physical evidence here was obtained as a direct result of an intentional violation of Miranda, it is inadmissible.”
Given your concerns and apparent willingness to restrict the constitutional rights that protect all of us, I suggest that you reread “A Man for All Seasons:”
ROPER: So now you’d give the devil the benefit of law?
MORE: Yes. What would you do? Cut a great road through the law to get after the devil?
ROPER: I’d cut down every tree in England to do that.
MORE: Oh, and when the last law was down and the devil turned on you where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down – and you’re just the man to do it – do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law, for my own safety’s sake.
If the Gableman campaign is making a statistical assertion: in the majority of cases, Butler votes for the defendant, then they are only counting cases where the Court issued a decision. They could also be looking at only a subjective set of “major” cases. The Butler campaign is counting opinion cases and votes on petitions for review. We should ask, then, which measure is a fairer representation of the Justice’s impact on the Court?
No. We should ask, then, whether what the “Gableman campaign” actually said, to which Justice Butler actually replied, is actually accurate. That’s how assertions and rebuttals go. You don’t contrast Butler’s devastating reply with the claim you wish had been made; you compare it to the claim that was actually made. What do they teach in this school you attend?
That fundamental point aside, notice that claim you wish had been made would have been a very shoddy one as well; Butler’s actual response would be just as devastating against the claim that he’s ruled for the defendants in “cases where the Court issued a decision”. Statistics for all such purposes are canonically framed in terms of the “intention to treat” group, a term that comes from medical studies but is used universally to mean, basically: no factoring out the biasing effects of the filter applied to get an attenuated sample.
In the medical science case, it means that you can’t just report the effects of an experimental treatment on the people who finished the treatment — because we need to know whether the treatment is effective all things considered. If most people who complete it get better, but most people who start it get sicker and can’t continue with it, then it’s at best a gross error, and more likely a kind of fraud, to report only the recovery rate among the finishers. Bottom line: the data points that get pared away along the way, as the result of some treatment, are crucial to how we characterize the effects and workings of the treatment.
If what you’re analyzing is the “treatment” of Butler’s (co-)rulings, in other words, it would be absolutely standard evidential practice to include his (co-)rulings in deciding what cases get heard. The way his treatment pares away cases by denying hearings is crucial to assessing his judgement. Leaving this data out would be somewhere between a gross error and fraudulent.
So not only is your conjecture about what Schmitz could have said incandescently irrelevant to Butler’s actual response to the false thing Schmitz actually said — it would have been every bit as inept for Schmitz to have said what you wish he had.
Let me add also something that I already posted at Illusory Tenant. The sort of shabby pseudo-analysis-for-hire that you’ve been spinning out re:Butler and Gableman might help land you a sinecure in rightwingland, Daniel. But I urge you to consider the long term effects on your reputation of receiving such a basic education on credibility, honest writing, evidential reasoning, and research practices through trial and error, in public. Everyone of strong opinions learns some harsh lessons in their (relative) youth, about the dangers of letting the mouth run on ahead of the brain, and perhaps ahead of the decency too. But not everyone is encouraged and rewarded to do so in a practically eternal and universally accessible venue.
Exciting to be getting in on being a player, I’m sure. But please do think carefully about the worth the Attaboys you may be getting from people who already have such things as tenure, or fortunes, or who have perhaps already written off the thought of being respected for the cogency rather than for their ideological reliability. [/paternalism]
Daniel, maybe next you can research why Gableman felt it necessary to call Butler a liberal, an activist, and “maybe that means you’re the Democrat” if he’s truly all about following precedent.
Well, I am glad to have elicited so many responses, because I believe this kind of conversation is valuable as we look to the election in April. Let me start at the top and work my way down.
Let start by my again saying that I personally would not have made the comment that Schmitz made. I believe it oversimplifies things drastically. Sometimes defendants deserve to win, some times the law is on their side. Much more appropriate for criticism is Butler’s methods to determine where the law is on a particular question, which is what I endeavored to do in my research briefings.
I continue to believe, contra Mr. Henak, that the 98 percent figure is not a good one. It is correct in a literal sense – that is how he has voted in that sample. But I believe the statistic paints a picture that is not the best reflection of Justice Butler’s decisions. As I quote him in the post, the “most difficult cases” are the ones where the Court grants the petition, and those are the cases that make a better sample. They give a better reflection of his jurisprudence.
As for my briefing, I acknowledge that I summarized and selected. I did my best to try to pull out the key points and give an accurate picture while still making a document that was accessible to non-legal readers and wasn’t 30 pages. I achieved that balance as best I could, and think the paper gives a fair reading of his decisions.
As to your second point, I think it is important to remember that these cases come to Justice Butler on appeal. A jury of 12 has already convicted the accused of a crime or several crimes. What do we call someone convicted of a crime? A criminal. I think it would require a system-wide push to change the legal language to say that a convicted person who is appealing the conviction is still “the accused.” And I am not sure such a change would be a good one.
I am familiar with the quote from “A Man for All Seasons;” it is a classic movie and a classic line from that movie. Here, however, the US Supreme Court has already ruled on the scope of my constitutional rights under the federal constitution. The precedent of the Wisconsin Supreme Court is to interpret Wisconsin’s cognate provision in line with the US Supreme Court’s interpretation of the federal constitution. This they did not do in Knapp. Justice Wilcox’s dissent (paragraphs 95 to 103) in Knapp very clearly lays out how the Butler majority is departing from precedent. My criticism of Butler’s majority in Knapp is his failure to follow the Court’s precedent.
Clutch – your characterization of Butler’s reply as “devastating” is not one I share. I do not think the reply is “devastating” to Schmitz’s charge because I do not think it is based on a good statistic. As noted above, 98% may be a correct statistic, but I do not think the sample it is drawn from is as reflective of J. Butler’s jurisprudence as a different data set. I understand your argument, but I don’t think it fits well. As I said in the original post, the “most difficult cases” are the ones where the Court grants review; these are the cases that best expose Justice Butler’s jurisprudence. His “line-drawing” tells us much about his approach to separation of powers, precedent, and the judicial role.
As to your final comment, Clutch, I appreciate your concern, though I do not appreciate your characterization of my work as “shabby pseudo-analysis-for-hire.” For one thing, it’s not for hire – everything I do here I have done as a volunteer. Second, I would hope that this is actual analysis, not merely “pseudo” analysis. I spend a lot of time paying attention to news and commentary, and I feel my posts on GOP3 are generally very thoughtful and respectful/able. I also don’t think it’s shabby – I spend a lot of time on it, and I think it’s solid stuff. If you don’t think it’s worth reading, then my solution is simple: don’t log on. But a lot of folks do find it worth reading, and I appreciate them for doing so.
The most appropriate response to the Daniel’s of 3:36 is, of course, outright laughter. But, at least one question manages to penetrate the mirth, further to this:
“[T]he US Supreme Court has already ruled on the scope of my constitutional rights under the federal constitution.”
Are you telling us that the U.S. Supreme Court is unfailingly correct when it comes to the scope of your constitutional rights, and, therefore, that no State should ever extend the protections of a cognate provision beyond those to someone’s else‘s constitutional rights?
Whilst considering your answer, please bear in mind the above umpteenth explanation of Knapp to you.
Daniel, I agree with you that Justice Butler’s decisions in cases that are accepted for review and fully briefed are the most relevant. What you keep ignoring, however, is that Schmitz (and by extension, Judge Gableman) didn’t focus on them. Instead, he made a demonstrably false statement about Justice Butler’s record in a transparent attempt to mislead the public.
You claim to seek a justice who will honestly and fairly apply the law. What possibly makes you think that someone who knowingly allows his campaign to rely on false and misleading allegations about his opponent will suddenly turn around and be fair and honest as a justice once he is elected?
You obviously are an intelligent and hard-working person, since you were willing and able to read through all those decisions. It is that fact, however, that bothers me the most when the very first analysis I take the time to fact-check – that on the Knapp case – ignores or distorts the critical facts of the case, i.e., that the police intentionally violated the constitution, as well as the Court’s analysis. Whether or not it was intentional, your distortion of Justice Butler’s analysis and what that case really was about totally destroys your credibility when you try to suggest that he is somehow this radical loose canon.
What this comes down to, Daniel, is that Clutch is right. Unless you want to spend your life as a right wingnut shill, honesty matters. If you want to be a successful attorney, your reputation as a straight-shooter is all you’ve got. Your misrepresentations regarding Justice Butler’s decisions is not a good start.
You might also keep this in mind: whatever one’s politics, character matters. Mr. Schmitz lied about Justice Butler’s record and your supposed analysis of his cases likewise is seriously misleading, at least if your analysis of Knapp is representative. If a candidate or his supporters feel such a need to lie and distort their opponent’s record (rather than to address the issues in a straightforward and honest manner) in order to win, how can that candidate possibly be deemed worthy of one’s vote?
After all of our discussions here, you seem to have accepted now that the Gableman campaign’s attempt to distort Justice Butler’s record by suggesting he favors criminals is false. (By the way, if a judge is unbiased, the proper term for the person charged, even while on appeal from the conviction, is “defendant,” not “criminal”). You also now concede that those charged with crimes are entitled to a fair trial and to an appeal before a fair and unbiased appellate court to protect that right. So, I assume that we now can agree that it is misleading of the Gableman campaign to suggest that Justice Butler is somehow unworthy of re-election because he occasionally believes that the law requires that a conviction be reversed.
What you now suggest is your real opposition to Justice Butler is the fact that he does not kowtow to the right-wing U.S. Supreme Court when construing Wisconsin’s Constitution. Unlike the propaganda you were spewing earlier, that at least is a defensible position, albeit misguided.
If you are suggesting that a state supreme court must always (or even sometimes) abrogate its role as the supreme arbiter of state law, then you are ignoring the requirements of the state constitution. On issues of state law, and that includes rights under the state constitution, the Wisconsin Supreme Court is required to use its own best judgment. It is free to consider the decisions of other courts, such as the U.S. Supreme Court or the Supreme Courts of Minnesota or the Philippines, but it is not required to accept those decisions as binding.
Justice Wilcox’s dissent in Knapp thus wrong for at least two reasons. First, no Wisconsin precedent required the state Supreme Court when construing state law to blindly follow U.S. Supreme Court precedent on a related issue of federal law. Rather, that precedent merely recognized that the Court had followed non-binding U.S. Supreme Court precedent in the past while acknowledging it was not required to do so. And second, the Wisconsin constitution would bar any such requirement. So much for conservative justices following the law rather than making it.
I would also suggest that, as a self-proclaimed “conservative,” you presumably would not feel the same way about blindly following the U.S. Supreme Court when deciding issues of state law if that Court was not the most right-wing it has been in 75 years. I doubt very much that you would be making the same arguments about the need to defer to non-binding U.S. Supreme Court precedent if we had a more reasonable Court on the federal level.
What that means, of course, is that, although you try to disguise it in a supposed critique of his “approach to separation of powers, precedent, and the judicial role,” your real objection is simply disagreement with his conclusions. I certainly understand the urge – Justice Butler and the rest of the Court have ruled in favor of the state and against defendants in many a case that I believed was wrongheaded.
But the fact that you disagree with some of his rulings – which is all you really are complaining about – doesn’t mean that he is biased, or unfair, or a judicial activist, or any of the other terrible things that right wingnuts are throwing up in an attempt to elect someone they think will pursue their political agenda on the Court.
The bottom line is that the Supreme Court is not a place for political agendas. It is a place for honesty, integrity, and a sense of fairplay, everything that Justice Butler brings to the court and something we already have established your preferred candidate appears willing to forgo in favor of a particular political agenda.
Sorry, the word I was looking for was “abdicate,” nor abrogate.
IT, as to New Federalism: Were I a justice of a state supreme court, and were it a question of first impression, I would start with the state constitution’s text. If it were very similar to the U.S. Constitution, I would look on that provision differently than if it the state and federal provisions were not worded the same. For instance, Wisconsin’s provision on freedom of religion and conscience is very differently worded than the First Amendment to the U.S. Constitution, and thus it should be given a different meaning, namely, the meaning of the words used. The provision at issue in Knapp is worded nearly exactly the same as the federal provision.
Here, however, the Court did not take it up as a question of first impression. Justice Wilcox points out the long history of the Court interpreting two two provisions the same. Thus, the divergence from the persuasive precedent of SCOTUS is less troubling than the divergence from the authoritative precedent of the Wisconsin Supreme Court.
If you Shepardize Knapp or Dubose, it is almost amusing to read later cases saying, “While we sometimes interpret provisions differently, Knapp, we will continue to interpret this one the same.”
Mr. Henak: My real objection to Justice Butler, which you can find throughout my original research briefing, is his judicial activism. Judge Brennan listed indicators of judicial activism in his 2005 article, and how a few major cases fit those indicators. My goal with the briefing was to supplement his work by showing how other, lesser-known cases also fit those same indicators of activism.
Daniel,
Then apparently, I was right. Since “judicial activist” is merely code for “I don’t like the outcome,” your only real objection to Justice Butler is that you disagree with some of his decisions. While I know that it has become trendy in right wing circles to use misleading phrases like “judicial activist,” it really doesn’t help the law public to make an informed decision on who to support. Nor does a decidedly misleading document such as your “research briefing” of Justice Butler’s decisions.
There is a legal principle that you may have come across: Falsus en uno. Basically, it means that, if someone is caught intentionally saying something that is untrue (such as the Gableman campaign’s false statements about Justice Butler consistently siding with criminals or your misleading analysis of Knapp), it is reasonable to reject everything they say as incredible.
I have long followed another principle: The first rule for getting out of a hole is to stop digging.
By the way, the Wisconsin Constitution is based on the New York Constitution, not the federal constitution. Accordingly, if anyone’s decisions should be viewed as persuasive, it should be the New York Court of Appeals rather than the U.S. Supreme Court. I also note that such great judicial conservatives and right-wing heroes as Scalia and Thomas apparently do not share your views about the sanctity of precedent, at least when it interferes with what they want to do.
Thanks for completely sidestepping my question, Daniel.
Atty. Henak, Daniel isn’t so much accusing Butler of “activism” as he is of failing the “restraint” test articulated by Rick Esenberg on behalf of the Federalist Society. In other words, if a handful of carefully selected opinions fail the restraint test, then you’re by automatic default an “activist.”
Why is it that it is always liberals who say that “‘judicial activist’ is merely code for ‘I don’t like the outcome’”? I’ve heard that line before – from Chief Justice Abrahamson and Justice Butler.
Perhaps not surprisingly, I disagree. Like Judge Brennan and Prof. Esenberg, I believe that judicial activism is not a totally spent term, but instead has meaning that can be concretely defined. Judge Brennan’s indicators in his MJS article are a good articulation of the criteria by which one can accurately label “judicial activism.”
IT: The “handful of carefully selected opinions” issue is precisely why I wrote the first briefing. Public discussion about the Court’s recent terms focused on seven cases: Thomas, Knapp, Dubose, Jerrell CJ, Ferdon, Dairyland, and Fisher. This is in part simply for the fact that those cases had the greatest policy impact, but also because they were the most clearly activist.
I looked at a broader swatch of opinions from Justice Butler and concluded that the judicial activism present in those big name cases in fact permeates, if to a lesser extent, many of his other opinions.
Daniel, recall that Esenberg does not offer indicia of “activism” in his Fed Soc memo,* he offers those of “restraint.” By failing on the “restraint” account, one becomes an activist through the miraculous transformative power of the (false?) dichotomy.
As for “lesser extent,” per yours of 3:37, “zero extent” is much more apt for a number of your examples.
* The one you describe as “the definitive work” on the court’s recent jurisprudence, so I presume you’ve read it (along with every other work on the court’s recent jurisprudence — how else could you pronounce it “definitive”?
Oh, and Daniel, one other question, if you’d be so kind as to not completely sidestep this one.
Did you forward copies of your “Research Briefings” to the Gableman campaign? Because Gableman’s claim that Justice Butler had “cited The Wizard of Oz” resonated dramatically with your own “analysis” of Dubose.
Daniel,
Perhaps the reason it is always liberals and moderates who point out that “judicial activism” is right-wing code for “I disagree with the outcome but want people to think it is something more diabolical” is because it is usually the right wing who tries to turn honest disagreement over outcomes into some deeper attack on the judge’s integrity.
As for Judge Brennan’s attempt to put lipstick on this pig, let’s look at his “indicators:”
• Flexible adherence to precedent
This appears to be your biggest complaint about Justice Butler. However, like you do here, right-wingers who throw out the “judicial activist” label conveniently ignore at least two points.
First, as in Knapp, there usually is no controlling precedent and the issue is which of two or more lines of precedent should be followed. In Knapp, there was state precedent to the effect that the Court generally will construe the state Constitution consistently with corresponding provisions of the U.S. Supreme Court’s construction of the U.S. Constitution, while there was other precedent requiring that the state supreme court is responsible for construing the state constitution and not abdicating that responsibility to any other court. There also was longstanding state precedent requiring suppression of the fruits of unconstitutional police conduct. There also was, contrary to the assumption of your post, no controlling U.S. Supreme Court precedent on whether suppression was required where, as in Knapp, the police had intentionally violated the constitution in order to obtain evidence.
The question thus was not whether the Court in Knapp should follow or ignore precedent, but what line of non-controlling precedent provided the best basis for decision. Justice Butler and the Supreme Court relied on one line of precedent; you would have preferred another. That is an honest difference of opinion, not evidence of judicial activism or improper judicial legislation.
Second, right-wingers throwing around the “judicial activist” label conveniently ignore that your heroes on the U.S. Supreme Court, Scalia, et al, are far more active in ignoring, limiting, or overruling precedent than anyone on the Wisconsin Supreme Court, including Justice Butler.
• Insufficient deference to political decision-makers
“Insufficient,” of course, is a totally subjective term, rendering this “indicator of judicial activism” equally meaningless.
Right-wingers regularly throw this bromide out when the Court declares a law unconstitutional or limits the scope of a law to avoid having to declare it unconstitutional. What they ignore, however, is that the Court is a co-equal branch of the government, bound by the Constitution as the final arbiter of its meaning. You presumably learned that in your Intro to Constitutional Law course.
Those who rely on this “indicator” also ignore the fact that the Supreme Court, not the Legislature, has supreme authority over the court system. See, for instance, the judicial response to the legislature’s attempts to impose sentencing guidelines in the early 1980′s. Acting to set rules within the Court’s realm, such as by setting standards for the admission of evidence, thus is fully within the Court’s authority.
• Broad holdings and opinions
Once again, when is a holding too “broad?” Only the right-winger doing the labeling knows for sure. I would say that unnecessary statements in state court decisions to the effect that it will generally follow U.S. Supreme Court precedent could fall into that category. Of course, such statements generally were made by more conservative justices, so you probably would disagree.
This supposed “indicator of judicial activism” also ignores the fact that the Supreme Court, like the U.S. Supreme Court, is not merely an error correcting court, but a law developing court. Its job is not merely to decide a specific case but, in the process, to provide guidance to the lower courts regarding how to handle similar cases in the future.
I also note that providing such guidance is not limited to moderates such as Justice Butler. Right-wing members of the Court have long done exactly the same thing, and appropriately so in most cases, although I, like you, may disagree with the outcomes in some of them.
• Broad judicial remedies
This indicator suffers from the same fatal defect; that which is excessively “broad” is in the eyes of the – usually right wing- beholder. After all, there are still right-wingers who believe that the exclusionary rule is too “harsh.” To them, it is fine and dandy to use illegally-seized evidence at trial, even though the Wisconsin Supreme Court held in Hoyer v. State some 85 years ago that suppression is required under the Wisconsin Constitution.
So, once again, no matter how you dress it up, your objection to Justice Butler comes down to nothing more than the fact that you disagree with the outcomes in some of his cases. The “Brennan Indicators” you refer to are entirely subjective and do nothing to change that fact.
Of course, I understand why you and others supporting Justice Butler’s opponent are loath to admit the truth about this. An honest disagreement over results doesn’t have the same propaganda effect as allegations of impropriety. Who cares that the allegations are untrue, as long as you get your guy into office? Who cares about the irony of claiming that you only want someone who will honestly follow the law while you and your candidate’s campaign are playing fast and loose with the facts?
There is still time to come clean and stop digging, Daniel. “Honest conservative” does not have to be an oxymoron, despite the evidence to the contrary in this judicial campaign.
BTW, I apologize for the length of that last comment. No one would hire me to write bumper stickers
IT: As to your question of 3:59, I emailed a copy of the post to a number of people with an interest in the race, including a few Republican campaign consultants. I did not send it directly to Judge Gableman, in part because I do not have his email. I would not be surprised, however, if a copy found its way into his hands. After all, one would expect that a candidate in a race would know what is going on in the race.
Moreover, I think a little perspective is valuable here. This is the relevant line from my memo: “He [Butler] says that the studies prove that it is a ‘legal fiction’ that eyewitness identifications are generally reliable, and ‘we can no longer proceed as though all is good in the Land of Oz’ (49).” Now, I personally would not say Justice Butler “cited” the Wizard of Oz; rather, I would say that Justice Butler drew a clever literary allusion that fit his point. Indeed, many well-known judges are masters of inserting subtle allusions into their opinions, and I enjoy them even if I do not understand them all. I quoted that sentence from the Butler opinion to illustrate that he acknowledge that the decision was a break from the status quo.
As to your comment of 3:46, I have read a very large number of essays on the Court’s last three terms. In preparing the briefing in which I described the Esenberg Paper as definitive, I shepardized and googled quite thoroughly. In fact, as a suggestion to y’all on the Left, the Institute for One Wisconsin or the Institute for Wisconsin’s Future or another WI lefty group should hire someone to write a defense of the Court in response to Esenberg. There are a few Marquette professors I’d suggest for good authors. Part of the reason Esenberg’s work is definitive is that it engages more cases in more detail than any other paper.
“resonated dramatically with your own “analysis” of Dubose”
I love it! More black helicopter nonsense!
Keep up the good work, Daniel, you’ve got the inmates of the asylum going CRAZY.