Eminent Domain

In a comment in this post, Nick asked me the following questions...

Unrelated question that I want you to answer: why is Wisconsin supreme court popularly elected? Would it be advantageous to give them long terms and maybe make their appointments similar to the way in which the US justices are appointed?

What are their term lengths, anyways?

Explain.

I spend the bulk of my time on my often-neglected blog (I apologize, but I've been busy with school, FedSoc, and finding a friggin' job) talking about federal judges. As you civics fans may know, federal judges that sit on District Courts, Courts of Appeal, or the Supreme Court are appointed by the president, confirmed by the Senate, and sit for life terms during good behavior. This only applies to these judges, known as Article III judges. It does not apply to Tax Court judges (they have 15 year terms) or administrative law judges or other federal judge-ish positions. One may ask why we elect judges in this state instead of following suit with the feds. There are historical and policy reasons why Wisconsin chose to handle the judiciary this way.

I'm going to quote heavily from this paper, A Call for Change: Improving Judicial Selection Methods, by MULS Professor Jason Czarnezki. Here is some of the background on judges in this state...

An elected judiciary is certainly consistent with Wisconsin's Jacksonian tradition of promoting public participation in government. Wisconsin Supreme Court Justices are elected to ten-year terms in statewide, non-partisan, April elections, and vacancies are filled by gubernatorial appointment with the appointee expected to stand for election to a full ten-year term the following spring (unless another supreme court seat will be contested). Judges on the courts of appeals and the circuit courts are also elected to shorter six-year terms of service.

Prof. Czarnezki elaborates on the Jacksonian influence on the election policy...

The constitutional drafters of Wisconsin felt such elections would not hamper judicial independence because judges would be elected by diverse citizens from large geographic areas with little political stake in the results. This is a key point. These drafters did not want an appointment system because they worried that, unlike citizens (who presumably would pick the most qualified jurists), the governor or
legislature would be biased in making appointments leading to a judiciary with a lack of independence. In addition, gubernatorial or legislative appointment was inconsistent with the Jacksonian ideal of popular sovereignty, and, thus, Wisconsin became the second state to require that all judges be elected by the people.

The federal system is often criticized as having an element of cronyism to it. Senators usually have a lot of say in who is nominated to the District Court in their state. Presidents have been criticized for appointing "their people" to the appeals court bench and beyond (cough cough Justice Fortas cough). The Jacksonian response is to put the judiciary in the hands of the people.

Prof. Czarnezki is not sold on the benefits of the election process. He has concerns about the consistency of decisions by elected judges. Also, judges in this state get re-elected so easily that any benefits of the election are minimal. Really, how many people get fired up over a circuit court race? Hell, how many people are fired up about the Supreme Court race? I don't think that many people could name a single Justice on the Wisconsin Supreme Court.

I think that the federal system and our state system have positive and negative aspects. The state system does suffer when the public isn't engaged in the electoral process. However, the election gives people a chance to draw fine lines within the government on policy issues. What do I mean by this horribly worded phrase that I can't seem to articulate in an understandable way no matter how many times I try to rewrite it? Here's the example that jumped out at me as I was thinking about this...

Let's say that you are one of the people who voted for Jim Doyle in the last election and voted for the Marriage Amendment. To me, that says "I like Doyle as governor generally but I disagree with his position on the Marriage Amendment." Fair assessment? Under our current system, if that voter wants, he/she can choose to vote against Linda Clifford in the Supreme Court election. She has been fairly clear about her views on gay marriage and the Equal Protection Clause, so someone who supported the Marriage Amendment might be uncomfortable with her on the court. If we followed the federal system, Doyle would be able to just appoint Clifford and bypass "the will of the people" on that one. Maybe you think that's a good thing, maybe you think that's a bad thing. It certainly is a possibility though.

Basically, the federal system is all or nothing. You are electing the chief executive and he/she will make the call on these issues. That can be troubling to some people who may agree with the policy positions of the executive but not the judicial philosophy of the executive, or vice versa. The state system gives voters the chance to make distinctions. Maybe the voters don't take advantage of that opportunity as much as they should. Does that mean we should scrap the system? I don't know. You, the voter, can do us all a favor and just get a little knowledgeable about who your state judges are. There are never that many of them up for election at one time. Learn a little about them and (if they aren't running unopposed, though they often are) vote for the best candidate. It's your right.

The DC Circuit Court of Appeals struck down the Washington, DC handgun ban today. I'm currently hacking my way through the 70-some pages of opinion. The important part is that the DC Circuit, in a 2-1 ruling, said that the Second Amendment contains an individual right to bear arms (as opposed to a collective right, AKA the National Guard right). I'll have more on this later, but right now, I'm going to see 300. I have my priorities.

Justice Stephen Breyer will be appearing (well, not really... it's radio) on the episode of NPR's "Wait Wait... Don't Tell Me" that airs on March 17th...

He will, unsurprisingly, be the first justice to appear on the program, host Peter Sagal said. "We're immediately starting at the very top. Well, pretty close," Sagal said in a telephone interview.

Breyer will participate via telephone on March 15 in the program's "Not My Job" segment in which celebrities attempt to answer three extremely obscure questions.

Sagal seems pretty interested in internal Court dynamics, especially the important issue of food choices...

Sagal, who was prepping for an appearance by White House spokesman Tony Snow, said he has not settled on Breyer's three questions. But the host said he is curious about how the justices get along, among other things.

"How do you decide what to order for lunch when having a working lunch at the Supreme Court? Does the chief justice say, 'Let's see, there are four votes for Chinese food?" Sagal said.

How many votes are needed to grant cert to sweet and sour chicken?

I previously linked to a post by Jan Crawford Greenburg about Justice Ginsburg's sluggish exit from the Court post-oral arguments. It looks like Ginsubrg's delay was caused by a missing shoe that she kicked off during oral arguments. Aside from shedding some light on a heavily discussed event, I think this story is one of those great "humanizing" moments. Supreme Court Justices have this air of grandeur (at least in my eyes). It's nice to know that at least one of them wants maximum comfort during argument sessions. Take a load off, Ruth. Those dogs are barking.

David Lat at Above the Law is also looking at the drama behind the story. He thinks that Linda Greenhouse, veteran Court reporter for the NYT, broke Shoe-gate in order to one-up Greenburg. Here's House...

Jan Crawford Greenburg, an ABC News correspondent who covers the court, posted a startling item last week on her blog, Legalities. Under the heading "Faith and Frailty," she wrote that the "real drama" of an argument concerning the Bush administration's religion-based initiative came when the argument ended.

Justice Ruth Bader Ginsburg's delay in getting to her feet and leaving the bench, Ms. Greenburg wrote, seemed a sign of possible ill health and "made me think I'd better start pulling those possible retirement files together."

The alarming item quickly made its way around the blogosphere, puzzling court insiders who know that Justice Ginsburg, 73, is in fine health and keeps to a schedule that would exhaust most people who are decades younger....

The explanation is, quite literally, pedestrian. According to her chambers, Justice Ginsburg had kicked off her shoes during the argument and could not find one of them.

Here's Lat's commentary, in traditional Lat-fashion...

OUCH. Jan Crawford Greenburg did some phenomenal reporting work for her fantastic new book on the Court, Supreme Conflict. But in a single breezy, casually tossed-off "Reporter's Notebook" item, Greenhouse makes Greenburg look like a rank amateur.

We conduct a close reading of Greenhouse's column, after the jump.

Okay. Let's parse the specific language used by Greenhouse in her write-up:

"a startling item" = "sensationalized and tawdry"

"[t]he alarming item" = "JCG is the National Enquirer of One First Street"

"quickly made its way around the blogosphere" = "I can't believe she got link love from Drudge for this crap. Actually, maybe I can."

"puzzling court insiders" = "Just 'cause JCG scored a few good interviews for that book of hers doesn't make her a TRUE 'court insider' -- like MOI."

"According to her chambers, Justice Ginsburg..." = "I still have the best access to the justices, especially those on the liberal wing of the Court. And I'm not ceding my turf to same Jan-ny Come Lately!"

Linda's implicit message to Jan can be summed up as follows: "You can speculate all you want in that pretty little head of yours. But THIS is what we call reporting, dearie. Try it sometime -- you might like it."

I guess this can be viewed as Greenhouse trying to defend her throne from the up and coming Greenburg. This really won't change my Court-related reading habits though. I avoid Greenhouse like the plague. Her bias and cheerleading is just too much for me. Greenburg is much more readable, in my opinion.

After reading this editorial in the Milwaukee Journal-Sentinel this morning, I felt a need to comment on the Judge Ziegler recusual situation. I previously said that I wasn't going to comment much on the Wisconsin Supreme Court race, but I've decided to change my mind (as you can tell from my recent posts). I reserve the right to change my mind.

For those of you not up to speed, here's the pithy version of the situation...

State Supreme Court candidate Annette Ziegler has ruled in at least two dozen cases involving a West Bend bank of which her husband, J.J. Ziegler, is a director. And there are no indications that she offered to withdraw from those cases or notified the parties of her conflict.

As a Ziegler supporter, I'm not happy about this. I'm not a judicial ethics expert, but my time interning with a judge has given me a little insight into recusal issues. I'm a big believer in erring on the side of safety. If the complete facts about the situation have been disclosed, I am troubled by Judge Ziegler's decisions in these cases. I'd like to have a more detailed account of the cases involved before passing any judgment though. Ethical issues can be very tricky (anyone who has taken Ethics in law school will attest to that) and very fact specific. Hopefully, more information will become available.

My go-to guy on this race has been Rick Esenberg. He comes through again with this great post tackling this issue. Rick, once again, offers much more insightful commentary than I can muster. Cut me some slack. He's been in practice for a while. Here's Rick...

I have commented on allegations that Ziegler acted on cases when she had a conflict of interest. More facts have come out and, although the reportage has not been awful, there is a "he said, she said" quality about it that obscures key points - some in a way that is favorable to Judge Ziegler and other in a way that is not.

Agreed. The articles haven't been bad, just not as meaty as one would like. Based on the the facts as reported, Rick seems troubled too...

First thing, if the facts are as reported then Judge Ziegler was wrong in not recusing herself or obtaining waiver in cases involving West Bend Savings & Loan. SCR 60.04(e)(4)(1) makes recusal or waiver mandatory when, among other things, a judge's spouse is a director of a party. No judgment call to make.

Rick also mentions that things might be different in default judgments. I think that there is definitely an argument there, but I would have to look deeper into Wisconsin ethics decisions to make a judgment on that.

Rick also highlights the difference in the ethics rules when the judge owns stock in a party...

But there is a slightly different test when the question is whether you should recuse yourself because you own stock in a party. That is not automatic. In that case, recusal or waiver is required when a judge "has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. "

This does bring us back into the realm of the gut check so statements that recusal is "mandatory" whenever there is a "conflict" may serve for the West Bend Savings matters but not for other matters under examination. For example, in cases involving United Health Care (in which the Zieglers apparently own stock), she may well have decided that her interest could not be substantially affected by the matter. In some cases, the idea that the judge must make a judgment call is not "truthy." It is the truth.

There are instances where the judge must make a judgment call, or "gut check," about the situation.

As I have said, I'm troubled by the situation. I would like to know more about these cases. And before anyone asks, no, I'm not voting for Linda Clifford now.

While strolling through the ample law section of Raynor Library (the non-law library at Marquette), I spotted a new book on the shelf. I'm that big of a nerd that I would notice a new item in a section. I've walked through it often. The book is called The Political Thought of Justice Antonin Scalia. The subtitle is "A Hamiltonian on the Supreme Court. " Author James Staab thinks that Justice Scalia has an intellectual ally in Founding Father and Aaron Burr bullet depository Alexander Hamilton.

I haven't gotten far enough into the meat of the book to make any substantive comments or criticisms of it, but the introduction quotes a fairly famous Scalia quote to back up the point...

Scalia urged the members of the audience - "as Hamilton would have urged you - to keep in mind that the federal government is not bad but good. The trick is to use it wisely."

That was from a speech in 1982 at a conference on federalism. I'm looking forward to getting deeper into this book in the coming weeks.

The introduction also contained an explanations of six of the major schools of legal conservatism. If you are one of those people who lumps everyone that's to the Right of Justice O'Connor into one big pile, then you need to read this section. I'm not a big legal theory guru, but I think that people should understand the differences between the philosophies of Judge Richard Posner, Professor Randy Barnett, and Justice Clarence Thomas. In case you want to look them up on your own, the six schools that Staab discusses are Burkean traditionalism, conservative pragmatism, Legal Process, libertarianism, natural law, and originalism. Google at your leisure.

Expect a book report in the future. Maybe I'll even get a pizza for it.

Rick Esenberg recently linked to the same article that I discussed in this post. He also has problems with Wisconsin Supreme Court candidate Linda Clifford's judicial philosophy. Here's Rick being much more eloquent than I was...

The problem, of course, is that we generally expect judges to apply the law and the legislature to make it. Although the constitution can trump legislation, we accept that because, at some point, the constitution was consented to by the people. The people decided to place certain limitations upon their elected representatives.

If you allow the constitution to "breathe" (i.e., "change") to reflect what you think society needs, you have lost the legitimacy that the consent of the people confers. They never agreed to whatever it is you think the constitutional document is exhaling today. You have substituted your judgment for theirs.

We could have chosen to be governed this way. We could have said that we'll just elect seven wise people to do whatever they think is right. But we didn't. We chose democracy and a judiciary that applies the rules (statutes and constitution) that the people make.

He closes by giving the voters a choice...

Of course, there are nuances, subtleties and matters of degree involved here. We can make it as complicated as it needs to be, but, at the end of the day, this isn't lawerly inside baseball. It goes directly to who gets to make the decisions that govern our common life. If you want to be ruled by judges, then a living, breathing and mutating constitution is a good thing. If you don't, it's not.

You decide.

Well said.

Owen at Boots & Sabers links to this Sheboygan Press article about the two Wisconsin Supreme Court candidates. The paper interviewed the candidates separately about the race. The most enlightening part of the article discussed judicial philosophy...

The two candidates have differing opinions on how they'll serve on the bench.

Ziegler calls her role as a judge "traditional," saying there are three branches of government for a reason.

"I think the judiciary's job is to apply the letter of the law, legal precedent, sound conclusions based upon the facts of each individual case based on those things," Ziegler said. "Not the whim of the day or not my political or ideological preference. That gets checked at the door."

Clifford said she would not be a "strict constructionist" when it comes to applying the law.

"I am willing to let the (state) constitution breathe and reflect what society needs in any given context," she said.

Personally, I don't want Linda Clifford making the call on "what society needs." If she's into that kind of policy making, she should run for the legislature. I would rather have judges follow the philosophy that Judge Ziegler endorses. That philosophy recognizes the proper role of the judiciary and respects the concept of separation of powers.

Thinking about this election and our state's highest court reminds me of Judge Sykes' Hallows Lecture about WISC's 2004-2005 term. This was the term when the court did the following (to quote Judge Sykes)...

- rewrote the rational basis test for evaluating challenges to state
statutes under the Wisconsin Constitution, striking down the statutory
limit on noneconomic damages in medical malpractice cases;

- eliminated the individual causation requirement for tort liability in
lawsuits against manufacturers of lead-paint pigment, expanding "risk
contribution" theory, a form of collective industry liability;

- expanded the scope of the exclusionary rule under the state
constitution to require suppression of physical evidence obtained as a
result of law enforcement's failure to administer Miranda warnings;

- declared a common police identification procedure inherently
suggestive and the resulting identification evidence generally
inadmissible in criminal prosecutions under the state constitution’s
due process clause; and

- invoked the court's supervisory authority over the state court system
to impose a new rule on law enforcement that all juvenile custodial
interrogations be electronically recorded.

Judge Sykes continues...

Together, these five cases mark a dramatic shift in the court's jurisprudence,
departing from some familiar and long-accepted principles that normally
operate as constraints on the court's use of its power: the presumption that
statutes are constitutional, judicial deference to legislative policy choices,
respect for precedent and authoritative sources of legal interpretation, and
the prudential institutional caution that counsels against imposing broadbrush
judicial solutions to difficult social problems.

When voting in this race, ask yourself: do I want this kind of judging to continue? Do you want the courts making important policy decisions that should be left to the legislature? I don't. I'm voting for Judge Ziegler.

I was doing some reading for my Media Law class this morning and came across Haynes v Alfred A. Knopf, Inc., 8 F.3d 1222. This is a Seventh Circuit case from 1993. Nicholas Lemann wrote a book about sharecropper migrations from the 40's to the 70's. He discussed the socioeconomic troubles they faced generally, but he also specifically told the story of one woman's hardships. In the course of telling the story, some shaddy details about the woman's ex-husband came to light (drinking, adultery, unstable employment, etc). He sued for libel and invasion or privacy. He lost.

The best part about the case is that Judge Richard Posner was at the pen. Two lines in particular jumped out at me...

"Although it is well known that every human being defecates, no adult human being in our society wants a newspaper to show a picture of him defecating."

And...

"Entering one's bedroom with a bottle in one hand and a cigarette in the other is not foreplay."

You may need a little more factual background to get the context of the second one. It's pretty funny on its own though. Posner should write every case for every court in the country. It would make my reading for class much more enjoyable.

In her post about the Hein oral argument, Jan Crawford Greenburg included an interesting observation. Here is what happened after the arguments ended...

As intense as the arguments were—and as fun as it was seeing Roberts in action—the real drama of the day occurred at the end of the argument. Typically, the justices rise from the bench, turn around and leave the courtroom for their chambers in very short order. Usually, spectators wait no more than a few seconds before the last justice disappears behind the red curtains. Then the court officers allow us all to file out of other exits at the front and sides of the courtroom. But today, we all were held in place for nearly a half a minute more –an eternity to a TV reporter--as Justice Ginsburg slowly collected her things and carefully left the courtroom. Justice Souter lingered behind at his chair, waiting to walk alongside her—almost as if he wanted to see if she needed assistance.

I've never had the pleasure of seeing an oral argument live, but I've heard the entrance/exit procedures described numerous times. Jan continues...

It was strikingly odd. I was standing next to Jim Vincini of Reuters, and we looked at each other with some alarm. No one could recall seeing Ginsburg in such slow motion, and it immediately begged the question of her health—which of course begs the question of whether any of the justices are going to be leaving the court anytime soon and give George W. Bush his third nomination. I have predicted with confidence that no one else will leave by design, and I've flatly rejected any suggestions that Justice Ginsburg was not at the top of her game physically. She'll be 74 next month, and she's active and social—and said to be recovered from her bout with cancer. People who don't know Justice Ginsburg always say she looks so slight, so frail. But that's Justice Ginsburg. She is slight. Even when she fell asleep during oral argument awhile back, I didn't read anything into it since she'd just returned from out of the country and could easily have been suffering from jet lag.

It's hard to read a lot into this simply because Justice Ginsburg was never exactly Heather Mitts. She's a small, thin, elderly woman. It's not outside the realm of belief that she'd have a hard time getting around sometimes. But this behavior was out of the norm enough to get the attention of two veteran Court reporters. Maybe we can read something into this.

I stand by my belief that no more Justices will choose to retire before the end of the Bush presidency. That leaves the door open for a Justice being forced to retire though. At some point, health and age problems can become too much that a Justice just has to step down. It can happen at an inopportune time, politically speaking. Douglas stepped down under Ford. Brennan and Marhsall stepped down under Bush 41. It has happened before, it can happen again.