July 12, 2011

Should the principle that "no man is allowed to be a judge of his own cause" mean that a judge should not be the one to decide whether he or she will be recused?

The Wisconsin Supreme Court said no, but it was a 4-3 decision, along all-too-familiar partisan lines, with a vigorous dissent.
The majority [said that] its approach mirrored practices followed by the U.S. Supreme Court. The majority also contended the opposite decision would lessen the public's view of the court.

"Four justices forcing a fellow justice off a pending case will not increase the public's perception that the court is an impartial decision maker," they wrote. "Rather, the specter of four justices preventing another justice from participating will just as likely be seen by the public as a biased act of four justices who view a pending issue differently from the justice whom they disqualified."
The dissenters focused on the particular recusal they thought should have occurred in this case (a case in which 2 trial court defendants appealed separately, and a judge who is now on the Supreme Court had sat on the appeal of the co-defendant). I can't imagine the strife and wrangling that would take place if the judges could change the outcomes in cases by ousting one of their peers. The court already looks way too political. Who thinks they wouldn't use this power in a willfully outcome-oriented way?


Freeman Hunt said...

Wisconsin needs a statewide Valium.

Calm down, Wisconsin, calm down.

Browndog said...

It goes way beyond Wisconsin (if that is your real name)...

The Judiciary is all that stands between civilized society and anarchy.

I don't feel enough people really understand that basic truth-

Too many people discovered that basic truth the hard way....

Meade said...

Before you recuse me, take a look at yourself.

RichardS said...

Are out standards too high for recusal? Under current standards, Justice Marshall would have to recuse himself in Marburry, since was the Secreatry of State who failed to deliver the commission before Madision took the job.

Chef Mojo said...

Man, as far as Wisconsin is concerned? Well, as we say down South, "Fuck all y'all. Y'all are dumber than a bag of hammers."

Paddy O said...

Does the public perceive the court is an impartial decision maker?

I don't know anyone who sincerely holds this position.

The Supreme Court of the US or of any state is really just a super-legislature. Anointed citizens whose personal opinions are the final word, with all the legal stuff serving as justifying window dressing.

Crunchy Frog said...

If there are four votes for recusal, then presumably there is already a four vote majority for the resulting opinion. A forced recusal would have no effect.

wv: trasted

Recuse me, before I kiss this guy...

lewsar said...

Before you recuse me, take a look at yourself.

well played, sir.

ricpic said...

It's so obvious that the recusal of a judge should be his own decision to make and not be decided by other judges that one can only conclude their power-madness overrides the requirement that a court be disinterested above all.

Curious George said...

"The court has been fractured on personal and ideological lines since 2008"

That' all you need to know about the cause of the problems of the WSC.

Curious George said...

Ok, you also need to know what happened on August 1, 2008.

Fred4Pres said...

Wisconsin needs a retreat where all the Justices and politicians can sing Kumbaya and bond. And lots of therapy.

Fred4Pres said...

Wisconsin needs a statewide time out. Calm down, Wisconsin, calm down.

The Drill SGT said...


The article doesn't say, but I assume that, the Defendant lost his criminal trial and asked for a new trial either at the Appeals Court level or the Trial Court, anf lodt there, so he would be appealing in the first case.

So in 3-3 split keeps the lower court ruling in place anyway right?

Regardless, 4-3 or 3-3, he effectively loses the appeal.


Browndog said...

On my mind is the Kenneth Gladney trial-

Ideological justice;anarchy.

I'll leave it to Althouse to post it or link it-

Lem said...

Wisconsin Supreme Court Slap US Supreme Court in Dissent.

rcocean said...

The Dissent isn't well-written or well-reasoned. Comes off as a political statement.

As for "Wisconsin" Bickering or "needing a timeout". Sorry, I don't buy the "plague on both your houses".

The turmoil is a liberal temper tantrum.

Shanna said...

Wisconsin needs a statewide Valium.

Seriously. Maybe if it were 102 like it is here they wouldn't be up for this nonsense.

The only way they could do a vote off recusal would be if the vote had to be unanimous. I think it's much better as a voluntary act.

Freeman Hunt said...

Maybe if it were 102 like it is here they wouldn't be up for this nonsense.


Smilin' Jack said...

Who thinks they wouldn't use this power in a willfully outcome-oriented way?

The same suckers who think they don't use the power they already have in a willfully outcome-oriented way.

KenK said...

In 2008 the Michigan trial lawyers hired an actor to portray then-MSC Chief Justice Clifford Taylor as a doddering old goof who kept nodding off at the bench. The msg was grainy B&W, and slightly out-of-focus so you couldn't tell it wasn't actual court proceeding footage. And it only got worse from there. Taylor lost re-election. I can only imagine what it's gonna be like next year.

I'm thinking we just ought to elect these guys on a partisan basis since that's how they act once on bench anyhow.

Freeman Hunt said...

As long as things are going to be so unserious and polarized, they could at least make it exciting.

The judge the others want recused picks a gladiator. Then the other judges who want him recused pick a gladiator. The two gladiators fight to the death to determine who wins. Television!

Better yet, they each get to pick a sumo wrestler from their respective pools of protesting supporters. The sumo wrestlers, however, would not fight to the death, just to the end of their sumo match. Humane.

Francisco D said...


Nice Eric Clapton reference.

David said...

This should not be a close vote. And Althouse is generous in calling the dissent "vigorous." It is strident.

The minority judges really think that they should have a say in everything. They don't. Recusal is the judge's decision, based on their own assessment of whether they can render an independent judgment.

Methinks the minority judges are projecting. And electioneering.

Freeman Hunt said...

All the justices play King of the Mountain, and whichever justice is the King at the end of the time limit gets to decide.

mariner said...

(Excuse me while I climb up on my High Vantage Point.)


I pronounce myself sober and rational, and I assure you that Wisconsin Supreme Court Justices have steely nerve and are intelligent and grounded.

They would never stoop to deciding cases on their personal political preferences.

The Crack Emcee said...

Like almost everyone else, I think the Wisconsin courts are too confused to make a clear-headed decision about anything.

You should get down on your knees and thank your lucky stars for Scott Walker.

You have, at least, one real man in that state after all.

David said...

It does not necessarily follow that the judges who voted against imposing recusal will also vote to affirm the trial and appellate courts. Totally separate issues.

traditionalguy said...

Alinsky never told us disciples that anyone would have the balls to fight back.

Now what, Saul?

Do we chant SHAME, SHAME over loudspeakers flown in helicopters like the Apocalypse Now Airmobile attacks?

Carol_Herman said...

Reaching for straws.

Lucky for Wisconsinites that they got such a view of surely, electing Shirley must have been a cosmic joke. That Good old Shirley burned the bridges on that avenue to justice!

It seemed to work perfectly. Be someone you're not. But let it be a persona people buy.

Then make sure there's no place you won's top to introduce yourself. And, shake hands.

Might as well say your name is Nixon. And, you're selling used cars.

Fred4Pres said...

Scott Walker is a mench. I wondered if he would cave and he did not do so. I like him very much.

Carol_Herman said...

HA! All of shirley's macinations ... and she didn't move the needle on the machine!

She's no witch. Her incantations have only led her to be exposed.

4 to 3.

She's in the minority.

And, we still haven't heard from the Judiciary Committee.

She still can't give Justice Prosser the tax cases! She's like Rehnquist. More to be pitied than envied. Let alone that she has to share her cookies with Bradley.

If she were queen, instead of chief justice, she'd be perennially sad that people don't genuflect in her direction.

To the amusement of the press, they should be grateful they have such a bobble-head sticking around. Easy to jab at.

And, nice to know that so many former fans think her performances stink. The reviews forthcoming practically write themselves.

vnjagvet said...

By the dissent's reasoning no judge who participates in a panel decision of a US Circuit Court of Appeals could participate in an en banc decision on the same case. Of course, that is not the rule and to my knowledge has never been. If it isn't the rule in the US Courts of Appeals, it seems like the dissent's due process argument is bogus.

traditionalguy said...

Can Prosser be hired out to choke other Dem politicians?

The Dem Energy Secretary and the GOP House have voted together to outlaw the light bulb choice.

Gaia needed a sacrifice.

rhhardin said...


timmaguire42 said...

Crunchy Frog makes a lot of sense--assuming four votes makes a majority, then it makes no sense to worry that a judge would be ousted as an attempt to change an outcome.

If you have the votes necessary to remove the inconvenient judge, then you don't need to remove him at all.

The Crack Emcee said...


Scott Walker is a mench.

I get that impression, too. It's nice to see. Too bad it's not more appreciated. I mean, these people are plotting to HURT HIM. It's simply incredible.

"No good deed,..."

Carol_Herman said...

If it wasn't for Justice Prosser, the entire Wisconsin Supreme Court would collapse in disharmony.

And, ya know what? I think at the end of the day it's gonna affect women who run for office ... because they'll be like Bella Abzug. Strong on hats. And, tossed by voters just the same.

Especially when it comes to judges. Most of the time you don't even know anything more than their names. (How many people end up blindly picking?)

If women once gained an advantage ... in the future ... they'll hope their parents named them HARPER.

Carol_Herman said...

I think Justice Prosser is a mench.

I think BEFORE the election, few people paid much attention. But AFTER the Kloppenhoppen trotten affair. People saw him as a true winnah!

There's also the realization ... that over the time he's been on the court ... which I think adds up to more than 12 years ... he hasn't written any opinion that's embarrassingly stupid.

Nothing containing "forks" ... or plastic raindeer. Or landing out there like Kelo.

lscalf87 said...

And I thought that Texas politics was wild and crazy. We haven't had judges dukeing it out with each other for a hundred years or more! Of course, Wisconsin Democrats did borrow a page from our Democrats down here when they unceremoniously fled the state during the budget repair bill debate. That's not an Texas thing to either admire or emulate.

lscalf87 said...

Freeman Hunt -

I like the gladiator idea better! They can do it at Camp Randall, sell 96,000 tickets, have the Badger band march pre-match. It would be a hoot!