September 7, 2011

What can the Wisconsin Supreme Court do to restore the public's confidence that this court is really a court?

Chief Justice Shirley Abrahamson sent out a memo offering some ideas about restoring decorum (and public confidence), including opening judicial conferences to the public:
The presumption should be that all conferences are open.
a. The open conference could be held in the hearing room.

b. The open conference could be held in the closed conference room and streamed to the public.
As I said when we discussed this earlier, I don't see how this could be fair to the parties or how it is consistent with the idea deciding cases according to the legal texts and precedents (rather than policy preferences and political orientation). You'd have judges looking more like legislators, which is exactly what they shouldn't do if they want to look judicial.

The Chief Justice also proposes:
An expert on small group dynamics could be retained at no expense to the taxpayers to work with each Justice for ways in which the Justice can work in a more constructive manner....
Who would choose this expert? Would this be a variation on the demand — made by Justice Bradley after the "chokehold" incident — that Justice Prosser submit to "anger management" therapy? Yes, now all the Justices would submit, but submit to whom? What biases and preferences would this outsider bring to the project? (Sorry, I just can't picture anybody being neutrally professional anymore.)

Another proposal of the Chief's:
An internal operating procedure or rule could be adopted that 4 Justices not be considered a quorum or a binding majority that can direct action by the Chief Justice or Court staff unless all Justices have been advised of the "meeting/conference" and all Justices have had the ability to participate in the "meeting/conference" and in the decision making. 
That would empower the 3-justice minority to control the 4-justice majority.  It's hard to picture this court in this state having that kind of trust. (I'm thinking of how hard it was for the 4 conservative justices to find and interact with the 3 liberal justices on the day of the "chokehold" incident and also the way the Democratic minority thwarted the operation of the state senate last winter by hiding out in Illinois. The "fleebagger" strategy was only feasible because of a supermajority quorum rule.)

The Chief Justice would also like a separate "tribunal (not composed of Justices)" to make the final call on whether a Justice should recuse himself in a case and a process of replacing recused Justices with "a judge be selected at random." Obviously, you can see the potential for wresting the majority out of the hands of the 4 conservatives the people of Wisconsin have elected to the court. Imagine the endless strategic fighting over recusals!

Sorry to be so cynical. I can't help it, and I don't have a better solution to restoring the prestige of the Wisconsin Supreme Court.

IN THE COMMENTS: bagoh20 said:
All they can do to make it better is shut up and get to work, but there is huge toolbox of things they can do to make it worse....
Althouse, isn't your philosophy that just doing nothing is often the best course? I happen to agree, and it's part of my business philosophy too. 
Yes! Nothing! I recommend nothing. Think about "better than nothing" as being, in reality, a high standard.

49 comments:

ndspinelli said...

It's time to thin the herd..metaphorically of course.

Lincolntf said...

Step 1: Remove the lying weasel Bradley.
Step 2: Celebrate the resultant uptick in the collective integrity and I.Q. of the Court.
Step 3: Profit.

AprilApple said...

Liberal judges need baby sitters. Ugh. Want to restore some credibilty? Bradley must go. She's not fit for the high court. She's a liar. This is yet another obvious attempt by the minority to take what does not belong to them.

E.M. Davis said...

How about everyone just get over themselves and do their damned jobs?

bagoh20 said...

All they can do to make it better is shut up and get to work, but there is huge toolbox of things they can do to make it worse. Guess which they will choose.

Althouse, isn't your philosophy that just doing nothing is often the best course? I happen to agree, and it's part of my business philosophy too.

A. Shmendrik said...

I got your decorum, right here!

fleetusa said...

This all seems so wrong. We want justices to work within the laws of the states and country and not to become pawns of papers and public pressures. Hear the cases in public but then decide in private before issuing final opinions. In other words do the job they were chosen to do.

PatHMV said...

Maybe the President could have Justices Prosser and Bradley over to the White House for a beer.

Alternatively, they could all just grow up. Stop whining to outsiders about the other members of the court. Stop calling the police about petty squabbles. Stop leaking internal court information to the media.

The Chief Justice needs to grow a pair, put a touch of her partisanship aside, and tell each of the members of the court to play nice with each other. And if they don't, she should use whatever powers the Chief position carries to put some pressure on them to do so... cut back some clerkships, reduce a non-compliant judge's staffing levels, etc.

The fact that a rule seems needed regarding, for example, what the quorum of 4 can do, is a sign of just how fundamentally the institution is broken at the moment. Is the 4-person majority really holding no-notice meetings to take action by fiat, without giving the other justices a say in the matter? If so, that's a problem, but if a rule is necessary for even the most basic of collegiality like that, maybe it's time for ALL of them to step down.

Bender said...

You don't have a better solution to restoring the prestige of the Wisconsin Supreme Court?

I do -- replace them all. Wipe the slate clean, empty out the bench entirely, and install new people.

Meanwhile, disbar Bradley for dishonest conduct that would have disbarred any other attorney.

If I were so unfortunate to have to practice before this "court," I would have even less than the near-zero confidence I have in the judiciary as a whole.

GulfofMexico said...

Where's Crack? Sounds like New Age gobbledygook.

Fred4Pres said...

Stop acting like young children in the back seat of a car on a long road trip. That would be a good start. I am waiting for one of the justices to complain that one of the other justices is breathing on them.

smithdrive said...

It'll just take time - time for them to get back to the work they were elected to do; time for new justices to filter in and time for new legislatures/governors/issues/cases to cycle through. Time takes time.

(btw, I can't help it...this is such a cop-out)

gregq said...

How about replacing the Chief Justice with someone from the majority, so we don't have the constant spectacle of the Chief Justice fighting to obstruct the majority?

Prosser's biggest shame should be his decision to fight against the last effort to to replace her.

Bob Ellison said...

Closed sessions should be used to protect the innocent from harm or to withhold information that should be kept secret. It should not be used to uphold or create fake authority.

rhhardin said...

Take an all-Justice confidence-building rafting trip.

If they all survive, go on another one.

Mark O said...

From a distance, the Wisconsin Court appears accurately to reflect the great State of Wisconsin in all its disfunction and self-absorption. It is a perfect court for that State. Even the idiocy of its faux self-reflection (which is nothing more than a power grab) makes sense only in the Dairy State.

Even your chief justice has that formidable, but reassuring, bovine stare.

rhhardin said...

Nothing builds teamwork faster than flying high performance jet aircraft.

Instruct each justice in it, and solo them in the traditional 8 hours.

Simon said...
This comment has been removed by the author.
Simon said...

One thing that they could do is to have their notorious political hack of a chief justice resign. I won't hold my breath.

Saint Croix said...

An internal operating procedure or rule could be adopted that 4 Justices not be considered a quorum or a binding majority that can direct action by the Chief Justice or Court staff unless all Justices have been advised of the "meeting/conference" and all Justices have had the ability to participate in the "meeting/conference" and in the decision making.

It would be kind of hilarious if half the Wisconsin Supreme Court drove to another state to avoid deciding a case.

Calypso Facto said...

The dysfunction has seemed like a real failure in leadership from the start, to me. Proposals to add extra layers of PC/BS bureaucracy won't help. I'd suggest that Abrahamson step aside as Chief to allow someone else who might display some, you know, actual leadership to take over...

...until I note that next senior on the court, and thus next in line for Chief Justice, is none other than Bradley, which is probably going from bad to worse. Sigh.

So the only way to restore some credibility is to suck it up, rub some dirt on your sore spots, shut up, knuckle down, and get to work acting like adults and professionals, Supremes!

Peter said...

The proposals seem to amount to establishing some sort of UberSupremeCourt that can overrule the actual Supreme Court.

That would seem to violate the Wisconsin Constitution.

Or does it? If the (state) Supreme Court is the last word in (state) constitutionality, is it possible for it to do anything that is not constitutional?

J said...

Justice Prosser submit to "anger management" therapy?

Muzzle. Hannibal Lector style.

jimspice said...

AA, do you plan at any point to counter Bruce Murphy's assertion that your consideration of Crooks, reiterated here, as a member of the liberal bloc perhaps needs retooling? http://www.insidemilwaukee.com/Article/962011-JusticeCrooksisNotaLiberal

Scott M said...

c) NO POOFTAHS!

edutcher said...

Pistols at dawn?

t-man said...

I think the Court would function better if the Justices could just recognize their common humanity. If they could share a genuine human experience, such as laughter, that would start to tear down the walls.

Put them in a room together, with a video screen, and flash up a picture of Kloppenburg. Looking at that hairdo and vacant expression, the Justices will be laughing together in no time.

Mark said...

Either an extreme example of chutzpah, or the most appalling example of a lack of self-awareness I have ever seen.

It really does boil down to a list of back doors by which Chief Justice Abrahamson can continue to call the shots even if she isn't in the majority.

Kirk Parker said...

Althouse,

"Think about 'better than nothing' as being, in reality, a high standard."

Absolutely; but something else I'm thinking about is how much that sounds like Calvin Coolidge. Are you sure you aren't a conservative? ;-)

Kirk Parker said...

Oh, my: rhhardin @ 10:03am FTW!

William said...

Televised conferences: Ratings gold for C-Span. This could be CSAN's Jersey Shore. I think CSPAN should hook up with E. CSPAN can carry the televised conferences, but E can give us the behind the music stuff. What goes on under Swirly Shirley's black robes if you catch my drift. Maybe as part of his anger management therappy we can see The Pross, stripped barechested, taking box lessons.....Considered not so much as a deliberative body but as a lovable gang of brawling adolescents there is much to recommend The Wisconsin Court for the viewing pubilc.

J said...

What of Justice Crooks' testimony against Prosser then? (noted him raving hysterically on numerous occasions) Well, assuming Crooks is a lib-rall, the tea-chimps don't believe him. Assuming he's not lib-rall, they do?

How Tea-chimps think

kimsch said...

Opening the conferences to the public, or if in a more private place, streamed to the public...

I would consider Supreme Court Judicial Conferences to be analogous to the jury in a regular case.

Can you imagine jury deliberations open to the public or streamed from the jury room?

And this woman is CHIEF Justice???

wv: facra

Rob said...

Professor Althouse:

I think a huge problem in this country is that everyone thinks there must always be action: spending, legislation, etc.... I am not being sarcastic. I agree with you completely, and I think you have stated it wonderfully.

kcom said...

The Chief Justice is obviously too political. What started the whole chokehold incident was her attempt to delay issuing a ruling on the collective bargaining law for a month. It was pure political stalling. The decision already had a majority, it was going to throw out the injunction preventing the law's implementation ab initio, and there was no reason to dilly dally. Every day that passed in which a ruling that never should have happened dragged out a situation that never should have existed was a day that deepened the problems Wisconsin was experiencing.

A few days to get her thoughts together and write a dissent might have been reasonable. But the willful laxity in saying she wanted to wait a month for no particular reason before releasing the ruling was just arbitrarily dragging things out and was only going to compound the problems caused by the ill-advised ruling from Judge Sumi. Prosser called the Chief Justice on it, rightfully so, and that's when Bradley went ballistic.

Joseph said...

Nothing can restore confidence in a court system when the public no longer wants impartial judgments based upon the law.

ConsultantGuy said...

As an actual expert in small group dynamics, I'll be happy to take this project on. I will discount my fee 50% to $25,000. My report is as follows:

The dysfunctional work environment of the court is a function of the personalities and work agendas of particular members of the court (likely not limited to Bradley and Prosser). Period. It has nothing to do with work processes or procedures as the Chief's memo implies.

The memo itself is problematic in that such memos tend to re-open wounds and harden positions. It would have been better for the Chief Justice to do nothing.

One party or the other might opt for a tactical retreat, but the situation will continue to fester so long as the warring personalities remain on the court.

ic said...

I don't have a better solution to restoring the prestige of the Wisconsin Supreme Court.

I do. The Chief Judge must go. She was the cause of all the fracas. Someone was too sensitive, too belligerent and wanted to kiss up to her, some other one was too chummy and not respectful to call her name, her mother-given name. Nobody will ever feel impartial justice when the Court is under the direction of an infantile partisan Chief who couldn't stand up for herself.

Lucien said...

When former Vikings Defensive Tackle Alan Page made it onto the Minnesota bench it seemed like a novelty. Now the Wisconsin Supremes have shown how useful a lineman might be on the Court, not to mention the anger management skills he must have.

WV: imartan -- a Martian trying to go incognito, but not quite getting it.

Triangle Man said...

"The presumption should be that all conferences are open".

"The presumption should be that all conferences are performances".

There, fixed it.

Dust Bunny Queen said...

An expert on small group dynamics could be retained at no expense to the taxpayers to work with each Justice for ways in which the Justice can work in a more constructive manner....

Sounds like they need to hire Super Nanny to wipe their butts, put them into time outs and just behave like adults.

I would totally watch that show!!

gutless said...

Mom! He's touching me. Am not. Are too. You stink! I'm rubber and you're glue.

If I have to stop this car you'll be sorry! Silence.

Question: who's driving this car?

Maguro said...

I think Titus is a Six Sigma consultant. Maybe he can help.

Godot said...

Take the sons-of-bitches out!
_

Mark O said...

Isn't it time for the public to know that judges are corrupt? Why must lawyers be the only ones to know?

Ignorance is Bliss said...

A serious suggestion:

When a justice recuses themselves, they get to pick their replacement ( probably limited to current and former Wisconsin judges ). This would allow them to avoid any personal conflict of interest without changing the ideological balance of the court. As such, the justices would be more likely to recuse themselves when there is the appearance of a conflict, and opponents would be less likely to try to pressure someone to recuse themselves sinse a recusal would never result in a partisan advantage.

Amartel said...

Your CJ is following the "don't let a crisis go to waste" rule of incremental progressive advancement. Except, as many here have pointed out, there's no real crisis, so she's making one up. How much confidence did the public really have in the court before this recent display of stupid?

Amartel said...

Get back to work, Shirley.

kcom said...

Godot: Take the sons-of-bitches out!

I was waiting for you to say that.

It was worth it.