Paul Soglin: Waxing America

U.S. Supreme Court Engages in Activism: Ask Scalia

One of the phoniest, opportunistic ploys in recent years is the conservative assault on an independent judiciary calling for "judicial restraint" and attacking liberal or progressive justices as "judicial activists."

Rick Esenberg of the Federalist Society, takes this up in a paper used by Wisconsin Manufacturers and Commerce in the last judicial race, A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court:

Judges who seek to exercise restraint will tend to adopt techniques of construction that confine, rather than expand, their discretion...Judges practicing restraint will exhibit a sensitivity for the role of other branches of government....

Someone better get Esenberg's paper into the hands of the justices serving on the United States Supreme Court, starting with Anthony Scalia who Esenberg fondly quotes: "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Scalia, Justice Anthony Kennedy, and Chief Justice John G. Roberts Jr. are having a difficult time following their own admonitions when it comes time to the "Millionaire's Amendment" to the McCain-Feingold campaign finance act.

The issue is simple enough. Under the law individuals can contribute a maximum of $2,300 to a campaign. The candidate can spend as much as they like. If a wealthy candidate contributes over $350,000 of her own money, then the individual contributors of the opponent can go as high as $6,900.

Simple enough.

Now enter the reactionary justices on the Supreme Court. Hearing a case challenging the act, these conservative justices are wallowing in judicial activism.

Justices Assail 'Millionaires' Amendment'

"The campaign finance regimes we've approved up to now, the significant limitations, have had an anti-corruption rationale," Scalia said. "The only purpose of this is to level the playing field. And I am deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field. That seems to be very dangerous."

and

Justice Anthony M. Kennedy said he found it "a particular vice" of the amendment that it allows the opponent of a self-financing candidate to have greater ties and to receive more money from his political party. "It puts this statute in the position of preferring one kind of speech over another. And we simply do not do that," Kennedy said.

Obviously these justices are substituting their own judgment for that of the legislative body, the United States Congress.

I am waiting for the critics of Louis Butler and Shirley Abrahamson to assail Scalia and Roberts for this exercise in judicial activism.

You can hear the crickets chirping.

The Real Reasons to Buy A Supreme Court

When Wisconsin Manufacturers & Commerce (WMC) and its cohorts, the Club for Growth Wisconsin and the Coalition for America's Families, spent an estimated $3-4 million to buy their second seat on the Wisconsin Supreme Court, the message was crime.

The advertisements focused on distortions and falsehoods about the record of Justice Louis Butler in an effort to entice voters to select a new justice, Michael Gableman, who would follow their right-wing agenda.

The conventional wisdom was that the real issue was so-called tort reform.

Wrong.

While there are a small minority of WMC members, concerned about their liability in tort cases, that issue was of minimum concern to the coalition established to control the Supreme Court.

One need go no further than WMC's own surveys of its members to see the irrelevance of tort reform. In its 2006 survey of its members, when asked, "What is the top business concern facing your company?" the  lowest response polled was lawsuit abuse with a measly response of 1.23%.

One look no further than the legislative agenda of these three organization (WMC, WCFG, CAF ) to get a real understanding of why they want to own a Supreme Court:

• Health Insurance. Health care is the single, most significant cost facing employers, if it is part of benefit packages. The standard for coverage is set by labor unions, particularly public employee and teachers unions. When buying a court, WMC and its friends are trying to gain favorable rulings against labor agreements in general, and and legislation in specific, that might require them to pay a fair share of the cost of health care.
• Unions. Because of their bargaining power in the marketplace, WMC needs a court that will weaken the power of unions. Unions are an impediment to exporting jobs overseas, hiring immigrant workers with H-1-B visas, outsourcing, and lowering safety standards.
• The Environment. As the public becomes more conscious of global warming, the significant monetary value of fresh water, calls for clean air and water, increase. This results in more regulations, particularly on manufacturers, who subsequently need a Supreme Court that will take an activist position and overturn progressive legislation designed to ensure the publics health and safety.
• Education. Long ago, convinced that public schools produce a liberal and progressive citizenry, these reactionary organizations want to get more and more children into private and religious schools where they can be indoctrinated into conservative values. To do this, public monies are needed. The problem is that there are serious constitutional problems in funneling money into private schools, particularly if they teach religion. These right wing extremists need a Supreme Court that will open the door for public money to be used for private education.
• Privatizing government. These right wing organizations do not want to stop public services, they just want to be able to make a profit offering them. Whether it is outsourcing wars to Blackwater and Halliburton or having private companies provide fire departments and water, the idea is to crush the local governments and their public employees as a first step towards a feudal system of governance. Note that when no-bid contracts, landed with fraud and mismanagement, are offered to the private sector, these organizations never protest or complain.

Over the past year, I have met with dozens of business leaders who I would describe as moderate and thoughtful in their approach to government and public policy. When asked what are the most important issues facing their companies and the state, they respond, "A trained and educated workforce, as well as a satisfactory resolution to the health care problem."

As you might expect, these business leaders are not comfortable with many left leaning Democrats.  But they are just as uncomfortable with the kind of Republicans that presently control the Wisconsin Assembly. These business leaders are going to play a critical role in solving Wisconsin's problems if they can wrest control of the public policy discussion from WMC and its collaborators, and then fashion solutions with organized labor.

Ready To Drop the Supreme Court Race. Not

I was looking for a new topic, something fresh, to start the first full week of April figuring we had enough of the Gableman train wreck when I came across the Wall Street opinion pieces by John Fund, Wisconsin's Judicial Revolution:

On Tuesday, for the first time in over four decades, Wisconsin voters turned out an incumbent justice of their state supreme court. The election showed that, given a clear choice, voters usually prefer a judicial conservative to one with an activist bent...

...Wisconsin is in many ways a liberal state – it hasn't voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism...

Gableman got more votes than Louis Butler, but the shallow nature of this analysis in no way reflects the dynamic.  Candidates lose and win elections for a variety of reasons, some much more important than others.

There are a block of voters, perhaps 25-30% who will tell you they voted for Gableman because he was not a judicial activist. There are probably a similar number of voters who voted for Butler because he was perceived as a fair and judicious Justice.

The battle ground was for the center and they voted in slightly larger numbers for Gableman than Butler for many small reasons and a couple of significant reasons.  Those significant reasons are the heinous Wisconsin Manufacturing & Commerce's negative ads that lead many voters to believe than Butler worked to free a rapist in his capacity as a judge, not as a public defender, and similar ads that even Michael Gableman refused to embrace or condone.

As for the the lead about Butler being the first incumbent in over forty years to fail in a reelection bid, the nature of the WMC-inspired character assassination against Justice Butler was a flood of such giant proportions that no incumbent could have survived such a shellacking.

There is an obvious motive for John Fund, the United States Chamber of Commerce, The Institute for Legal Reform (the front group that raises the money from Wal-Mart, Nestle, Home Depot, etc) to continue to put out the disinformation about the election dynamics. As fund notes, there will be similar races in the coming years from Michigan to the deep South. This internationally linked cabal has a winning formula for success and they do not want it disrupted.

They have no interest in our figuring out how to beat the 'Wizards' behind the curtain buying these Supreme Court seats.

Which brings up some interesting questions:

• Did John Fund, a member of the editorial board of the Wall Street Journal contribute to any of the Wisconsin front organizations?
• Did the Wall Street Journal make such contributions through any of the front organizations in Wisconsin,. New York,  Washington D.C., etc?
• Did Fund assist in raising any money to influence the Wisconsin Gableman campaign?

Waxing America's Wisconsin Readership Losing It

Readers of Waxing America, at least a certain element, are starting to lose it. Comments about the Supreme Court race, which are opened and uncensored, except for personal attacks and slime, reveal that we have attracted some right-wingers who are prone to weak thinking.

It started the day after the election.  My analysis of the election and the effort to learn from it brought this response:

• Losers make excuses. Winners get the job done.

Obviously the Right does not like it when the Left learns from its defeats and tries to improve in anticipation of the next election.

The suggestion that Butler could win under the right circumstances (and we do have two Democratic Senators and a Democratic Governor) elicited this rebuttal:

• ...vast bulk of Wisconsin is a conservative state. To see a conservative elected shouldn't surprise anyone who looks at the big picture. ..and
• ...What this should be conveying to you Paul, is that the state is slowly tipping more right than left.

Many, including the conservative Wisconsin State Journal, not just those on the left, are considering appointed judges as a better route to a qualified judiciary. I observed that if Butler got steamrolled that was an option, but I was withholding judgment. My own preference is simple disclosure as to where the issue committees get their money:

• Have you noticed...when a democrat loses an election...the process was corrupt, the campaign was nasty, and feelings were hurt!!!!!
  When a democrat wins, then the process doesn't need to be "fixed"????

• Of course Pauly,* you and your ilk (lefty stooges) will want to take the vote away from Wisconsin citizens. This is where We The People are allowed to judge the judges.

Some of the harshest judgments were attributions to things never said:

• You liberals just can not accept defeat, can you? If liberals win, all we hear about is "a new day" and "the voters have spoken" and that it's "time to move on". But if conservatives wins, it's evil, nasty, racist, sexist, white men cracking their whips again and more government reform is needed to clean up the evil, nasty, racist, sexist system...

But my favorite was this bon mot from someone claiming to be Fraley:

You don't like the outcome of a contest and want to avoid losing again...change the rules! Nice motto. So which is it, Paul?  Wisconsin voters are: 1) Racist 2) Stupid 3) Not worthy of the honor of selecting judges

Those are the only three options the whine brigade has before them. Until you settle on one option, I guess we can just assume you think it's all three?

This Fraley, borrowing from the worst of the Communists, under the guise of freedom, allows the accused of making choices, choices from his limited world view.

• Wisconsin voters are not racist, but the advertisements taken out by the Gableman fellow travelers were.
• Wisconsin voters are not stupid, just witness the election of our United States Senators and Governor, and the fact that next fall, both houses of the State Legislature will be Democratic.
• And certainly Fraley is not accusing the Wisconsin State Journal, most of the other dailies in the State and many prominent Republicans of not trusting the voters, when they called for the appointment of judges long before the outcome of Tuesday's election was known. Or is he?

Update Sunday, April 6, 2008.  Not knowing when to quit, Jim Widgerson jumper into the fray, Paul Soglin embracing another Wisconsin tradition McCarthyism.

Wrong.  Fellows, McCarthyism is accusing someone of being a Communist without any evidence and not allowing the accused to confront the accuser.

a mid-20th century political attitude characterized chiefly by opposition to elements held to be subversive and by the use of tactics involving personal attacks on individuals by means of widely publicized indiscriminate allegations especially on the basis of unsubstantiated charges;

What you guys are searching for is 'red-baiting.'  That is where you focus on guilt by association.  For example, if Barack Obama attends a specific church, you suggest that he supports all of the positions held by the leader of the church.

Or, for example, if extreme terrorists elements want the US out of Iraq, then any American who wants the United States out of Iraq has to be at best a terrorist sympathizer and at worst, a terrorist.

Now where have we heard that?

*I believe the correct spelling is P-a-u-l-i-e

Mr. Gableman: It Is Not Over Until We Say It Is Over

During the campaign against Louis Butler, Michael Gableman cavalierly handled the question of his cronies running deceptive, misleading and lying campaign advertisements. He continued to display nothing but contempt for the democratic process during Wednesday's post mortems.

Answering questions from the AP, as reported in the Wisconsin Law Journal, Butler Defeated in Election, Gableman said, "The fact is the ad is behind us."

As an attorney, Mr. Gableman knows that is not a fact.

• Every party who argues a case before Mr. Gableman has to worry about the size of the donation the adverse party made to the one of the shadowy groups that ran the TV ads.
• Mr. Gableman has to wonder in all such cases if he should disclose the nature of the support or the names of the donors.
• For years Wisconsin will focus on these ads as they gave momentum to the efforts to:
  • end the election of Supreme Court justices
  • or change the financing of such elections by requiring disclosure form the issue ad committees (my choice)
  • or changing the election of justices so that the only money that can enter a race is regulated public money.

The fact that this campaign received far more attention than last years Ziegler-Clifford campaign but resulted in a lower voter turn out demonstrates the power of negative smear ads in suppressing the vote.

As Edward B. Foley, Director of Election Law, Moritz College of Law noted:

Voters can be prevented from potentially voting for the other candidate (1) by direct threats of intimidation, (2) by suppressing turnout through disinformation and scare tactics, and finally, (3) by efforts to keep the other candidate's message from being communicated. (emphasis added)...

While voter suppression in its most drastic form involves physical threat and intimidation, it can be more subtle as were the messages laced through the WMC and other issue ads which was design to portray Justice Louis Butler as less than the honorable person that he is.

Why We Won - The Meaning of the Supreme Court Race

While Michael Gableman was elected to the Supreme Court, the long term implications of the race make it clear that the dynamic of Wisconsin politics is changing for the better.

The close outcome, with a suppressed vote, demonstrated that the influence of Wisconsin Manufacturers and Commerce (WMC) and their right wing companions, the Club for Growth Wisconsin and the Coalition for America's Families no longer have a magic bullet that guarantees they can win elections.

In addition to a number of legislative seats they own, this is the third statewide office purchased by these groups in the last two years. But the trend is moving against them.  When they defeated Kathleen Falk in the November, 2006 Attorney General race, progressive forces in this state did not have a plan to deal with the influence of the right wing issues committees. 

While Falk had name recognition, which the defeated Supreme Court candidates Linda Clifford and Justice Louis Butler lacked, her election campaign was left to fend for itself against the massive amounts of cash spent by the WMC Issues Committee.

In April of 2007, Linda Clifford, who was defamed and defeated by now tainted Justice Annette Ziegler, not only lacked Falk's name recognition but also suffered from the lack of a strategy to fend off WMC and its partners.

Louis Butler, sitting on the Supreme Court, was not in a much more advantageous position than Clifford.  Early polling indicated that his name recognition was no better than Gableman's so that he had none of the advantages associated with incumbency.

But the Butler campaign, despite lacking the name recognition of Falk, did have an advantage over the the Falk and Clifford campaigns in that a statewide wide group of bloggers, political activists, and progressive leaders were beginning to peel back the onion that is WMC.

Justice Butler, an honorable and decent man, was not re-elected, but the closeness of his race demonstrates things are changing for the better.

As Wisconsin heads into the fall elections, there are important trends and factors to consider:

• WMC, despite the three victories, has paid a price for its swagger. The internal problems involving disgruntled members is growing and worsening by the day. The Gableman victory will please the smug Right but it only creates more problems for the moderate Republicans and Democrats within the organization.
• While WMC's Jimmy Buchen spins things by pointing out that his organization was outspent by the Greater Wisconsin Committee, he knows full well that the collective spending of his organization as part of the right wing cabal crushed the pro-Butler forces. This is important to recognize for two reasons:
  • First, it means that if the overall financial playing field is leveled, progressives will be elected.
  • Secondly, it is a reminder that while we can stop some of the Wisconsin corporate money going into the WMC Issues Committee, the cabal will turn to other right wing groups who will raise the money outside of Wisconsin.
• Moderate Republicans are estranged from WMC and the leadership of the Republicans in the Wisconsin Assembly. An examination of public supporters of Butler and Gableman indicates that while the incumbent received individual endorsements from the 'usual suspects,' Gableman received few personal endorsements from moderate Republican leaders thats used to line up behind Governor Tommy Thompson.
• The newspapers of this Wisconsin have had enough. An examination of the fifteen largest dailies in this state demonstrates that only one, the Beloit Daily News, endorsed Gableman. More importantly, virtually every newspaper in the state condemned WMC for its and Gableman's advertisements. (The Janesville Press Gazette, owned by a WMC board member, endorsed Justice Butler.)

As we enter the fall elections, hopefully every legislative candidate will be asked their position on legislation to expose the source of the money used to fund "issue" advertisements. Legislation is needed that will require:

• the identity of every individual donor with a business or personal address outside of Wisconsin.
• prohibit the bundling of money by out-of-state organizations. This means that money from a shadow front like the Institute for Legal Reform could not accept hundred of thousand of dollars from individual and corporations, bundle the money and report it as their own.

The wonderful thing about this country is the right of Americans to speak their minds freely. That right does not come with a promise that when using other people's money, it can be done anonymously. WMC has its right to free speech. The public has the right  to know who is speaking.

Come gather round people wherever you roam
And admit that the waters around you have grown
And accept it that soon you'll be drenched to the bone
If your time to you is worth saving
Then you'd better start swimming or you'll sink like a stone
For the times, they are a changing

-Bob Dylan

Update:  I want to thank a staff member of the Janesville Gazette for noting that I got the name of the newspspaer wrong. Thank you.

Why I Am Voting Today for Michael Gableman

Reasons to vote for Michael Gableman for Supreme Court Justice:

• It will discourage young attorneys from taking up a career representing criminal defendants, especially the indigent.
• Even if young attorneys do practice criminal defense, it will discourage them from representing black defendants.
• If the young attorneys still insist upon being criminal attorneys, it will discourage the attorneys from being black.
• It would be nice to have a little humor on the bench as Gableman says  with a straight face, "I am neither a partisan ideologue nor politician."
• Move over Johnny Depp. It will stimulate the Wisconsin economy as millions of new dollars are poured into future campaigns by Wal-Mart, pharmaceutical companies, and rabid right-wingers.
• There will be no troublesome hearings with DNA evidence that embarrasses prosecutors when it is demonstrated that the crime was committed by someone other that the defendant who was imprisoned twenty years ago.
• Unlike mere mortals, Gableman knows there is no need for a trial. After all, if the defendant was innocent, he never would have been charged.

Reflections Before the Election

Before I enrolled as an undergraduate at the University of Wisconsin in 1962 I knew something of the state's political lore. My parents subscribed to The Progressive magazine. I knew of McCarthyism, I knew that Governor Nelson now served in the United State Senate along with a maverick William Proxmire.

This state underwent many transformations. The most significant and long lasting began early in the twentieth century by Robert La Follette.  Fighting Bob's domination of state politics  was so strong that even the FDR elections in the 1930's left the Democrats without any influence until after World War II.

Finally, the efforts to revitalize the Democratic Party  lead to the elections of Nelson, Proxmire, Governor Lucey, and thousands of others from the city halls to the state legislature.  In the meantime, the Republican Party produced elected officials as varied as Warren Knowles and Tommy Thompson, and Ody Fish and John Walter Chilsen.

Wisconsin politics charged in the 1990's. The undercurrent was previously there, but the nasty forces that worked into organizations like Wisconsin Manufacturers and Commerce  (WMC) were unleashed in the new century when Governor Thompson went to Washington and the extreme right-wing took over the Republican Party and its front organizations. And where there were no clandestine operations, they created new ones.

We know the outcome. The readers of Waxing America need only go through previous posts to see the documentation of sinister groups that lie and ruin the reputations of people and institutions in their effort to destroy government and create a corporate socialism that sucks the life out of public education, city hall, and the courthouse.

I do not know what will happen in Tuesday's election but I am sure of this: Wisconsin knows WMC.

WMC Must Take Responsibility for Their Paid Advertisements

An open letter to the attorneys on the Board of Directors and the staff of the Wisconsin Manufacturers & Commerce:

Many of us are deeply troubled by the advertisement paid for by your organization mischaracterizing the legal career of Justice Louis Butler. As you know, the Original WMC Watch program focused on the your board and staff taking responsibility for the placement and the content of these television and radio advertisements.

Now the Judicial Watch Campaign (JWC) comes to several conclusion about your ad entitled "Loophole Louie" including the following:

• WMC "falsely characterizes the court's (Wisconsin Supreme Court) ruling in this case, labeling as a "loophole" a lengthy decision based on the fact that the police in this case intentionally violated a fundamental Constitutional right guaranteed to all citizens..."
• WMC's use of the epithet "Loophole Louie..." is demeaning to the entire Wisconsin Supreme Court and our judicial system.

JWC concludes by citing Supreme Court Rule 20.8.4. This rule for attorneys, among other things, notes that:

It is professional misconduct for a lawyer to...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...

(g) violate the attorney's oath...

The attorney's oath states:

...I will maintain the respect due to courts of justice and judicial officers...

My personal opinion is that the conduct of the Gableman campaign, aided and abetted by WMC and other issue committees, has done more to diminish the stature of the Wisconsin judiciary and the Wisconsin Bar than any collection of offenses committed by attorneys or judges in the past fifty years.

Michael Gablelman: The People Have A Question For You

Madison, Wisconsin, March 25, 2008 Michael Gableman at 57:36 Supreme Court Debate-Butler/Gableman:

....The voters of this state would simply be far better off if all of the third party interest groups took their interests elsewhere and stopped running these ads.

That is what Michael Gableman told a state wide audience Tuesday night in a debate with Supreme Court Justice Louis Butler.

This is the same Michael Gableman who later in the debate was to call Justice Butler "disingenuous." Repeatedly.

The question for Michael Gableman is this, and keep in mind when previously asked if he had meetings with Wisconsin Manufactures & Commerce, prior to his announced candidacy, he refused to answer:

Mr Gableman, did you or anyone representing you, either directly or indirectly through intermediaries, have discussions with Wisconsin Manufacturers and Commerce, The Club for Growth, and/or the Coalition For America's Families, or their representatives, in which you or your representatives of intermediaries were assured that in excess  of $2 million would be raised and committed to their running advertisements designed to assist in your election?

In other words, can you look at the people of Wisconsin and tell them that before you decided to run for Supreme Court Justice, you had no knowledge of a commitment by what you refer to as "third party interest groups" were going to raise this money to assist your campaign effort?

Is there a reporter in this state who can get that question before Gableman?

disingenuous: lacking in candor; also : giving a false appearance of simple frankness

liar: a person who tells lies

lie: a: an assertion of something known or believed by the speaker to be untrue with intent to deceive b: an untrue or inaccurate statement that may or may not be believed true by the speaker

candor: unreserved, honest, or sincere expression

Is it a lie or just disengenuous to ask for the money, get the commitment from the special interests and then when they run the TV ads, Gableman claims he wanta them to stop?