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The Hon. Timothy Dugan, currently a judge on the Milwaukee County Circuit Court, has been nominated by President George W. Bush to replace the retiring Judge Rudy Randa on the Eastern District of Wisconsin. A former municipal prosecutor and private practitioner, he is a 1978 graduate of Marquette University Law School.

There is some question whether Judge Dugan will be confirmed before the Senate’s current session ends in January 2009. Senator Russ Feingold seems to think that the mythical “Thurmond Rule” may prevent that from happening. As it is, Cong. Sensenbrenner said that the White House hoped to nominate the Eastern and Western district judges together (J. Shabaz is also retiring), but the Senators were dragging their feet on the matter (though the White House reportedly has an inkling for Judge J Mac Davis). Apparently the WH decided to quit waiting to submit a pair and went ahead with just the ED of WI for the moment.

We’ll see if Judge Dugan gets a hearing from the Senate Judiciary Committee - 21 other judicial nominees are ahead of him in line for the chance to get grilled. Still, there’s reasonable hope because Feingold and Kohl are both on the Senate Judiciary Committee. Ultimately, it will be their call whether to pressure Chairman Leahy to schedule a hearing soon, or if they want to wait for a potential President Obama administration to make a nomination…

Russ Feingold doesn’t think that Wisconsin will see nominees confirmed to either the Eastern or Western district federal bench before President Bush leaves office. I certainly with the White House was moving faster (though Cong. FJS suggests its the Dems fault - reports say the WH has settled on picks and is conducting background checks currently.). But I understand there’s a lot of vacancies to find good nominees for. The President doesn’t leave office til January of 2009, but the Senate Democrats are trying to end his term early.

In a recent interview with Wispolitics, Senator Feingold said,

Time is running out for the Bush administration to make appointments, he said. “Both of these will be caught up in the much larger issue of whether or not judges in general will be going forward after a certain point,” Feingold said. “As I understand, we’re already past what’s called the ‘Thurman rule’ which is the time generally speaking when a presidency is ending [and] there aren’t more judges approved.”

The Thurmond Rule is a historical mistake that Senate Democrats have chosen to claim as their main talking point. The Wall Street Journal editorial page recently explained and debunked the “Rule” -

Under a precedent ostensibly created by Republican Strom Thurmond in 1980, confirmations of new judges cease after July in a presidential election year. But the Thurmond rule is a Democratic urban myth. Mr. Thurmond made the statement in question at a September 1980 hearing when his committee voted out 10 Jimmy Carter nominees a mere six weeks before the election.
That same year, a Senate staffer named Stephen Breyer was nominated and confirmed to the First Circuit after Ronald Reagan was elected, in the very final days of the Carter Administration. Mr. Breyer would become a Supreme Court Justice during the Clinton presidency thanks to that Republican bow to Ted Kennedy, for whom Mr. Breyer worked. In 1984, a GOP Senate confirmed six circuit court nominees in August and another five in October. Ditto 1988, when a Democratic Senate confirmed a pair of Reagan nominees as late as October.

Senator Arlen Specter, ranking member on Senate Judiciary, and Ed Whelan at Bench Memos have also weighed in against the so-called “Thurmond Rule.” Mr. Whelan found a bit of wisdom worth repeating:

We cannot afford to follow the ‘Thurmond Rule’ and stop acting on these nominees now in anticipation of the presidential election in November. We must use all the time until adjournment to remedy the vacancies that have been perpetuated on the courts to the detriment of the American people and the administration of justice. That should be a top priority for the Senate for the rest of this year.

Those are the words of Senator Pat Leahy, now the chairman of the Senate Judiciary Committee, in 2000. Mr. Feingold, who sits on Judiciary, would do well to remember them and should pressure the WH and his leadership to include WI’s nominees in another deal to keep the courts open.

As many readers of this blog know, it is often used as an opportunity for me to juxtapose two different stories or thoughts that I read in two different places. Thus this post on judicial pay raises.

As you may have seen, a trial court judge in New York State has ordered
the state legislature to raise the pay of NY judges. Like the federal judges, the state’s judges’ salaries are linked to the legislators’ salaries. Because legislators don’t like to vote themselves pay raises because it is politically unpopular, judges don’t get raises either. So the judges sued, and another judge, who stands to get such a pay raise, ruled in their favor. Said the failure to raise their pay in line with inflation violated the constitutional principle of an independent judiciary. If the Legislature does as it was ordered, it could cost upwards of $600,000,000. (I note further that the New York Times story on the decision did not include one single critical quote).

Meanwhile, I have just finished reading Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers, by former NY Law School Dean James F. Simon. I enjoyed the 286-page volume, particularly the second half. At one point in the story, Prof. Simon provides an interesting historical tidbit:

“The Chief Justice had both personal and constitutional reasons to object to a second [Secretary of Treasury Salmon] Chase policy, a tax on the salaries of justices of the Supreme Court. Congress had passed legislation that provided for a tax of 3 percent ont he salaries of all officers of the federal government, and Chase had interpreted the measure to include members of the federal judiciary. Taney was certain that Chase’s interpretation was in direct violation of a provision of the Constitution, which guaranteed that the salaries of federal judges would not be reduced during their terms of office. …
“Two weeks later, having received no response from Chase, Taney wrote the Treasury Secretary a long letter challenging his action. The intention of the Constitution was to provide for an independent judiciary, he noted, and that independence was comprised by giving Congress the power to reduce judicial salaries. He felt obligated to make his objections known even thought he issue could not be decided by the Supreme Court, since the justices had an obvious economic interest in the question….
“Chase ignored Taney’s protest, as well as the Chief Justice’s request that his letter be placed in the public record at the Treasury Department. Taney then made his letter a part of the public record at the Supreme Court.” (261-62).

If only the judges of New York State also respected the obvious conflict of interest… I understand that judges want a pay raise - it’s a pretty natural human feeling. But to resort to the judiciary to force such an action, and then further to find refuge in the vague generalities of “judicial independence,” is not the way to go.

In a story decrying the negativity and personal attacks prevalent in state judicial races, the New York Times refers to Justice-elect Michael Gableman as “a small-town trial judge with thin credentials.” This is the culmination of a series of such attacks on Judge Gableman along similar lines, calling him unqualified for the post. So, a brief overview of the Judge’s biography, followed by a comparison to those of his colleagues:

After graduation from law school, he served four years as a clerk for state trial court judges. After a year in private practice, he returned to public service. He was a prosecutor for four years before his appointment as a judge. He was a circuit court judge in Burnett County for six years before his election by the voters of Wisconsin to the Supreme Court.

Now, let’s look at a few current and recently retired members of the Court and their resumes upon election or appointment.

C.J. Abrahamson was a professor at UW Law School. She had never worked on a bench or in a prosecutor’s office before her appointment.
Justice Prosser was also never a judge, though he served on the Wisconsin Tax Appeals Commission for a time. Like Js. Prosser and Wilcox, Justice Bablitch spent most of his career before the Court in the Legislature. J. Bablitch was never a judge before his election to the Supreme Court (in this regard he is similar to the ordained liberal candidate in 2007, Linda Clifford).
Chief Justice Day was also never a judge. After a brief stint as a prosecutor and as counsel to Senator Proxmire in DC, he was an active civil litigator in Madison before his appointment to the Court. (His predecessor at CJ, the late CJ Heffernan, was also never a judge before joining the Court).
Justice Sykes served as a trial court judge for about six years before her appointment to the Supreme Court - about the same amount of time that Judge Gableman was a circuit court judge.

So, of the 17 living serving and retired Supreme Court justices, Judge Gableman has more time as a judge when he joins the Court than did Justices Prosser and Bablitch and Chief Justices Abrahamson and Day. His four years as a front-line prosecutor is more than Justices Abrahamson, Bradley, and Butler have combined.

He’s from a small town - so was J. Wilcox: born in Berlin, Wisconsin, raised in Wild Rose, Wisconsin, and a judge on the Waushara County bench - small towns all.

Judge Gableman has degrees from Ripon College and Hamline University School of Law. J. Wilcox also graduated from Ripon, while J. Crooks went to St. Norbert College and J. Butler went to Lawrence. J. Bradley went to Webster College in Missouri, J. Prosser went to DePauw in Indiana, while J. Roggensack went to Drake in Iowa. Yes, Gableman may not have a degree from UW Law, but with five UW Law grads on the Court already, I think we’re covered in that department. J. Sykes, Geske, Coffey, Ceci, and Ziegler all have degrees from Marquette Law School, which was ranked in the third tier not too long ago.

In sum, Justice-elect Gableman may be from a small town - but so are at least 1/7th of Wisconsinites. He may not have graduated from Harvard Law - no justice has since Myron L. Gordon. His six years of service as a trial court judge is more than several of his colleagues, and so too with his time as a prosecutor. Say what you will of his judicial philosophy, or even his judgment in running that ad, but there’s no need to insult the man by writing in a major story of the Sunday edition of the nation’s premier newspaper that he is “a small-town judge with thin credentials.” The East Coast elitism is just rancid in such a phrase.

Yesterday I became an official member of the State Bar of Wisconsin (if I wanted to be a lawyer in Wisconsin, I had no choice in the matter). There was a very nice ceremony at the Wisconsin Supreme Court, with Justices Crooks, Prosser, Roggensack, and Ziegler on the bench. All of the justices were very kind to the admittees, and Justice Crooks, as senior and presiding justice, was quite friendly throughout the ceremony, while still observing the appropriate traditions.

Thomas J. Basting, Sr., the president of the state bar, offered some remarks welcoming us to that august organization. He recounted a recent trip to D.C., where he lobbied on behalf of the Bar for increased funding for the Legal Services Corp. from Congress. Of course, this means that mandatory bar dues went to pay for his lobbying for mandatory tax dollars to aid left-wing legal causes (mixed in, obviously, with good and worthy civil legal services for people who simply can’t afford a lawyer otherwise).

After the swearing in at the Capitol, the Bar hosted a reception for us at Monona Terrace, where we signed “the book” of attorneys. They also gave us information about the Bar, including a flyer for the Young Lawyers Division. It said, If you’re under age 36, you are automatically enrolled in the Young Lawyers Division. Here’s what we do for you.

That was it - No choice, no application, no initiative, not even a box to check - just meet this age bracket, and you’re automatically in.

Ah, gotta love it when a monopoly revels in its power. I recall a banner that once hung in the AMU that Brian constantly railed against: “US Bank: The Only Bank on Campus.”

The good people at Wispolitics.com are providing excellent coverage of the Republican State Convention on their Convention Blog. And I think the readers of this blog would be very interested in their post on the Eastern and Western district judicial vacancies.

The president wants to nominate candidates to fill two openings on the federal bench in Wisconsin at the same time, but U.S. Sens. Herb Kohl and Russ Feingold have yet to recommend names for the Western District spot, causing a delay, U.S. Rep. Jim Sensenbrenner said Friday.

Sensenbrenner said he feared it could mean the Western District opening would not be filled until at least 2010 because time was running out for this president to nominate someone, and then next one may need until late 2009 to forward a candidate.

As the senior elected congressional Republican, Sensenbrenner nominates members of the Nominating Commission that interviews candidates and fowards names to the 2 US Senators and senior Republican, who in turn forward those names on to the White House.

Kohl and Feingold have already forwarded on four names to the White House for the Eastern District vacancy created by Judge Randa’s retirement, but the White House has not yet selected one of the four as the President’s nominee. For the Western District, Judge Shabaz’s seat, the Senators have not forwarded on names culled from the Commission’s list of five.

Kohl and Feingold both sit on the Judiciary Committee, so if they wanted these seats filled, they could get quick action once the White House makes a nomination. The President needs to act quickly on the Eastern District, because the window for Senate action on any judicial nominations is closing fast. As we saw during the showdown on judges a few weeks ago, this is a tense area on the legislative calendar. In the interview, Rep. Sensenbrenner indicated that the WH wanted to submit the two nominations together, which is why they are waiting.

Kohl and Feingold’s continued delay in submitting a list for the Western District vacancy has effectively ended the possibility that the seat will be filled by President Bush. Their delay in submitting names to the White House, and their decision to cut two qualified candidates, may have prevented the Eastern District seat from being filled promptly as well.

Of course, perhaps that is the plan - they’re playing the wait and see game in the hopes that President Clinton or President Obama gets to fill the seat with a nominee from the liberal side of the bench.

In her discussion with retired Justice Sandra Day O’Connor, Wisconsin Supreme Court Chief Justice Shirley Abrahamson said she still believes elections are the best system for choosing judges, but there are “defects” that need fixing. AP report:

“I favor elections in Wisconsin. I think we should work to repair the defects that have appeared,” she said. “We have had the elective system since 1848. It’s up to all of us to make sure the elective system works.”

Her solution, of course, is public financing of elections. In a recent Q&A with the Madison Capital Times, she said:

Q. Do the larger donations coming to Supreme Court campaigns from certain groups raise a concern?

A. Polls seem to show that the public believes that judges are influenced by contributions. Whether that perception is accurate or not really sometimes is beside the point because the perception can become the reality. That’s why the seven judges on this court all signed a letter supporting public campaign financing for justices of this court so that much of the money is removed from the race so no one will have a perception that justice can be bought in this state.

The obvious thoughts are these:

1. most of the money spent in the election was by outside interests, 527s and 501(c)(4)s, not campaigns. Thus, public financing will not remove most of the money from the system.

2. During the Q&A, she mentioned recusal. Judges very rarely recuse themselves because they received a donation from a lawyer or party before them. Some have suggested that judges should do so more often, or even automatically. If that is the case, WMC should donate $10000 to Abrahamson, Bradley, and Crooks so they are never on another case where WMC has an amicus brief!

Here’s another thought that I’ve been processing but haven’t seen mentioned elsewhere:

Everyone agrees that the most, I’ll say aggressive, ad of the campaign cycle was the Gableman “Reuben Lee Mitchell” spot. If we had taxpayer financing of elections, this spot would still have been run!

You think the ad was offensive? How do you like the idea of your hard-earned tax dollars paying to put it on the air?

Tax-funded financing of elections for judges is not the answer (if there is a problem).

As you may know, retired Supreme Court justice Sandra Day O’Connor is coming to Milwaukee on Wednesday for the 150th Anniversary luncheon of the Milwaukee Bar Association.

After giving the keynote address at the MBA Luncheon, held at the Midwest Airlines Center, she will come to Marquette’s campus for a “Conversation on Judicial Independence” with Mike Gousha.

Anyone interested in her remarks on Wednesday should start by checking out her remarks yesterday at the University of Minnesota. In her remarks, she urged Minnesota legislators to change to a merit system with retention elections, something that her home state of Arizona recently adopted. She also railed on the recent Butler-Gableman race as being nasty and flooded with special interest money. See also here and here. I expect she’ll pick up similar themes during her remarks on Wednesday. Stay tuned…

In a recent op-ed in the Milwaukee Journal Sentinel, Richard S. Brown, chief judge of the Wisconsin Court of Appeals District 2, calls for a system of merit selection for Wisconsin judges. He proposes a commission be empaneled, representing various interest groups. The commission would interview candidates and, theoretically, forward to the governor the names of the three most meritorious applicants:

Certainly, the Republican Party wants a say. Fine. It gets one seat. Same for the Democrats. Wisconsin Manufacturers & Commerce wants a say? It gets a seat. MoveOn.org wants a say, too? OK, it gets a seat. Add a professor chosen by the Marquette law faculty and one chosen by the University of Wisconsin law faculty and the president and president-elect of the State Bar, and you have your judicial commission. The actual composition of the commission and the exact number of seats would be up to the Legislature after input from citizens.

Now, here’s the trick. A candidate’s name could not be forwarded to the governor unless that candidate received a super-majority of the votes - 75% or 80% of the votes of the commission. What does this do? Simply, the only way the candidate makes it out of the commission is if he or she passes muster with conservatives and liberals, Republicans and Democrats, business interests and activists, law school faculty and the bar.

In other words, he or she would be the consensus candidate that everyone, or just about everyone, agrees would be a stellar judge or justice - the “slam dunk.”

Of course, here’s the problem with that: The liberals get 75% of the seats, which means that only liberal candidates will get a super-majority. The Dems and MoveOn, to use his examples, are 2 of 8. Then the president and president-elect of the State Bar, which tends to be dominated by the trial lawyers, so we’re at 4 of 8. And the UW and Marquette Law School faculties will clearly put us at 6 of 8 for the liberals. And there’s your super-majority.

And that’s how merit selection leads to the Missouri Problem, namely, the people elect a Republican governor, and the judicial selection commission only submits lists of liberal judicial activists for him to choose from.

The president of the Wisconsin Association for Justice, i.e. the trial lawyers bar, Christine Bremer Muggli, has a brief letter to the editor in the Wall Street Journal responding to a John Fund column last week on the Wisconsin Supreme Court election:

John Fund’s column (”Wisconsin’s Judicial Revolution,” April 5) is so off base it’s hard to decide where to start. About the only thing Mr. Fund got right is that Judge Michael Gableman won last week’s election for the Wisconsin Supreme Court over incumbent Justice Louis Butler.

Mr. Fund downplays the viciousness of the ads attacking incumbent Justice Butler, most of which were paid for by the state’s largest business group, Wisconsin Manufacturers & Commerce (WMC). WMC’s ads successfully blurred the lines between Justice Butler’s previous role as a public defender and his current role on the supreme court, confusing voters and playing a determining factor in the race.

Having just criticized Mr. Fund for a column allegedly replete with errors, Ms. Muggli proceeds to start her argument with an error of her own. WMC never bought ads blurring the lines between Butler’s role as a public defender and his current role on the Court.

WMC’s first TV ad was in praise of Judge Gableman’s tough on crime stance, and the second two attacked decision like Jensen that Butler issued on the Court. WMC’s two post-card mailers were both simply pro-Gableman. The two radio ads followed these lines also.

It seems to be simply the popular thing for liberals to do this week to bash WMC. If you’re going to do so, at least get your facts right, please.