March 16, 2015

"The Left’s Recusal Gambit/A prosecutor and his allies try to rig a judicial appeal in Wisconsin."

That's the title of a Wall Street Journal editorial that follows on a recent NYT editorial titled "Elusive Justice in Wisconsin."

From the WSJ:
If you’re a special prosecutor who keeps losing on the law, try rigging the judges. That’s the gambit in Wisconsin, where special prosecutor Francis Schmitz has filed a motion prodding judges to recuse themselves.
The case is Mr. Schmitz’s appeal of his failing secret investigation of conservative groups under Wisconsin’s John Doe law. In January 2014 Judge Gregory Peterson quashed subpoenas to groups like the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce because they “do not show probable cause” of “any violations of the campaign finance laws.”

The state Supreme Court is hearing the appeal of that decision and two related cases brought by targets of the investigations, and Mr. Schmitz wants at least one and as many as four state Supreme Court justices to bow out. The reason? Their campaigns benefitted from independent expenditures by some of the groups Mr. Schmitz is harassing.
From the NYT:
This should not be a hard call, but under a pitifully weak rule in Wisconsin’s code of judicial conduct, judges do not have to recuse themselves over independent spending related to their campaigns.

Thankfully, the United States Supreme Court has taken a stronger stand. In 2007, a justice on the West Virginia Supreme Court provided the tiebreaking vote to overturn a $50 million jury verdict against a coal company whose chief executive had recently spent $3 million supporting the justice’s election. (Another justice recused himself after the public saw photos of him vacationing with the same executive in the French Riviera.)

That was certainly the right result. The Supreme Court’s 2010 Citizens United ruling made the problem of money in judicial races and other elections substantially worse....
The WSJ talks about that Supreme Court case, Caperton v. Massey Coal and finds 3 obviously important distinctions:
In Caperton, Justice Anthony Kennedy’s opinion for a 5-4 majority judged recusal to be necessary because the expenditures were made when the case involving Massey Coal was already pending and were thought to have been made to insure the justice would sit on the case. The expenditures in Wisconsin were made long before the John Doe-related challenges were filed. Until late 2013 none of the conservative groups knew they were targets of the secret probe.

Caperton was also based on the notion that the $3 million expenditure created a risk of bias that violated a citizen’s Fifth Amendment’s right of due process. That doesn’t apply in Wisconsin because the supposedly injured party would be government prosecutors acting in their official capacity.

There’s also a double standard at work here. Liberals didn’t ask Wisconsin Justice Shirley Abrahamson to recuse herself from hearing legal challenges to Governor Scott Walker’s union reforms, despite her union backing. In her 2009 re-election, Ms. Abrahamson received direct contributions from unions including AFSCME Wisconsin Special Account, Wisconsin State AFL-CIO, State Employee PAC, and dozens more. Ms. Abrahamson voted to overturn Mr. Walker’s reforms in two cases.
The NYT had nothing to say about any of those 3 distinctions. It just lobbed the argument that goes like this: Citizens United!!!! And if that's the sort of argument that convinces you, I'll bet you can't explain the free speech doctrine that determined the outcome in the case. And, you know... if you can't, I demand that you abstain from voting in the next election.

23 comments:

PB said...

Likewise, shouldn't people who align politically on the other side from these groups recuse themselves as well because they would be just as biased?

tim in vermont said...

Citizens United made the problem of non union money in judicial races and other elections substantially worse

After all, whose idiot idea was it to give the taxpayers a say?

tim in vermont said...

There’s also a double standard at work here. Liberals didn’t ask Wisconsin Justice Shirley Abrahamson to recuse herself from hearing legal challenges to Governor Scott Walker’s union reforms, despite her union backing. In her 2009 re-election, Ms. Abrahamson received direct contributions from unions including AFSCME Wisconsin Special Account, Wisconsin State AFL-CIO, State Employee PAC, and dozens more. Ms. Abrahamson voted to overturn Mr. Walker’s reforms in two cases. The WSJ does point this out, although I am just guessing based on past performance, the NYT does not.

tim in vermont said...

I was involved in a lengthy lawsuit that never got resolved until the other side was ordered by the judge to hand over their email server to forensics. After that happened, it was resolved within days, oddly enough. But this guy's lawyer was constantly demanding the recusal of judges every time a ruling went against him. It's generally a scumbag tactic by scumbag lawyers, IMHO.

Kind of like when the prosecutors did official business on secret GMail accounts to keep the Republicans on the board in the dark while all the while using those same Republicans as a beard for the witch hunt.

I guess the legal point pursued is that Republicans may not raise money, nor may they talk to each other.

james conrad said...

The real problem with all this is using the court system as a political weapon. If the court becomes corrupted, the only recourse for justice becomes armed men in the street, bad situation all round.

The Drill SGT said...

So by this logic, no progressive Judge would ever sit on a case with a Union involved, because at some point, the judge had taken union funds?

Tank said...

AA:

The NYT had nothing to say about any of those 3 distinctions. It just lobbed the argument that goes like this: Citizens United!!!! And if that's the sort of argument that convinces you, I'll bet you can't explain the free speech doctrine that determined the outcome in the case. And, you know... if you can't, I demand that you abstain from voting in the next election.

LOL. That's a HIGH bar. Tank would be happy to just test people on whether they can name their present two senators and their congressman and the VP. That would clear out about two-thirds of all voters. Althouse's test would clear out 99% !!!!

Mark said...

Doesn't Smalz have something better to do with his time and the taxpayers' money?

Headless Blogger said...

Other than bleeding the plaintiffs and taxpayers with legal fees, what does Schmitz get if WI SC rules in his favor? That ruling will be overturned in federal court immediately (Judge Randa has already written his order) so Schmitz's investigation will not be restarted.

James Pawlak said...

Yes< the final decision on this subject was made by the People who cast their ballots for the "conservative" majority of our Supreme Court.


Curious George said...

But...but...he's a Republican! He's never run as a GOP, he's never donated money to a GOP candidate. But he's convinced garage so he must be.

Gusty Winds said...

I don't understand why at any level we continue to pretend that the judiciary is somehow unbiased and independent.

I don't care if they are appointed and confirmed, or elected. They are agenda driven like everyone. So was Solomon.

Like we didn't know which way Prosser and Kloppenburg would vote regarding Act 10.

Knowing this, the next big move for Wisconsin is to get out and vote on April 7th, and get Ann Walsh Bradley off the Wisconsin Supreme Court.

Especially knowing Chisholm is one of her supporters and fundraisers.

Big Mike said...

And, you know... if you can't, I demand that you abstain from voting in the next election.

They can't but they will anyway.

Gusty Winds said...

More concerning is when prosecutors like Chisholm and Schmitz deny their partisan driven agenda against fellow citizens.

There is no reason for recusals in John Doe. If the prosecutors won't admit their bias, why should the judges have to play that game?

The people of Wisconsin have elected a certain majority on the Supreme Court and we are all well aware how they will rule.

Answer not a fool according to his folly, lest you be like him yourself.
Answer a fool according to his folly, lest he be wise in his own eyes
Proverbs 26

cubanbob said...

The correct course of action would be for the judges to refer the prosecutors to the State Bar Association for disbarment.

Peter said...

This is just what happens when you start by declaring the outcome you want, and then work back toward figuring out how to obtain it.

It's jurt not about logic, or legal interpretation. It's about power: who has it, how it's used, how to use it to obtain what you want.

The NYT's PoV here is all about results, not so much about process. The means used to obtain the desired result are just not relevant; the outcome is apparently all that matters.




lgv said...

The bottom line is the judges are all bought, just like politicians. We think they follow some higher reasoning on cases because they are dealing with laws, but it turns out it is all about the money.

They just seem more honest because of the robes.

Gusty Winds said...

I can't figure out what makes any particular judge any more qualified, impartial, or of greater intelligence than Judge Judy.

The whole charade with US Supreme Court is a joke. Like we all don't know how Elena Kagan and Sotomayor are going to vote. Scalia too.

Same with the 3-4 split here is Wisconsin. I know how Bradley's challenger James Daley will vote, and he will strengthen the Conservative majority if he wins. That is why I'm going to vote for him.

Bradley says she wants the partisan politics removed from the race.

She couldn't have said anything more disingenuous. She's a partisan. Who doesn't know that? So is James Daley.

I've come to realize the reason Lady Justice wears a blindfold is because she can't stand watching the bullshit. Soon they'll add a clothespin to her nose.

deepelemblues said...

The NYT has weighed the balance and found it's better for democracy if witch-hunt John Doe prosecutors can de-pack the court to get a ruling they prefer and so continue on their jackbooted little witch-hunt suppressing free speech and association. The Constitution doesn't apply to conservatives; they're evil. And meanies.

Sam L. said...

A Dem prosecutor, I presume, as the NYT did not identify him. The WSJ excerpt that came up tends to confirm my deduction.

damikesc said...

The whole charade with US Supreme Court is a joke. Like we all don't know how Elena Kagan and Sotomayor are going to vote. Scalia too.

Disagree. The conservative jurists are often not that easy to read how they'll rule on an issue.

The liberal ones are so lockstep that nobody ever asks "How will Kagan rule?"

Gusty Winds said...

Sam L. said...
A Dem prosecutor, I presume, as the NYT did not identify him. The WSJ excerpt that came up tends to confirm my deduction.


Not only are they partisan Democrat prosecutors, they have no problem being politically active in the Supreme Court Election process. The irony and hypocrisy that they used prosecution and courts to stifle political speech of their opponents is not lost on them; they just don't give a shit.

Democrat D.A. John Chisholm was the special guest on 3/11/15 at a fundraiser held for Liberal Justice Bradley.

Talk about collusion.

Bricap said...

I think the issue of decisions being influenced by campaign contributions speaks to the real question of whether judges should be appointed or elected.