"Among jurists I have encountered in the United States and abroad, Shirley Abrahamson is the very best."

"As lawyer, law teacher and judge, she has inspired legions to follow in her way, to strive constantly to make the legal system genuinely equal and accessible to all who dwell in our fair land."

Said Ruth Bader Ginsburg, quoted in "Shirley Abrahamson, longest-serving member of Wisconsin Supreme Court, dies at 87" (Milwaukee Journal Sentinel). 

Goodbye to Shirley Abrahamson.

"The April 2 election is for the seat held for 43 years by Justice Shirley Abrahamson, one of the [Wisconsin Supreme C]ourt’s three liberals."

"If Neubauer wins, that could set the stage for liberals to gain control of the court next year, when conservative Justice Dan Kelly, like [her opponent Brian] Hagedorn an appointee of Walker, is set to face voters. But all of this depends on whether Neubauer is in fact a liberal. And that is something she absolutely refuses to admit. In fact, Neubauer, who has personal and family ties to Democrats (her husband, Jeff, is the former state party chair; her daughter, Greta, is a Democratic lawmaker), has run one of the most opaque campaigns for state Supreme Court in recent years. At the candidates’ March 15 debate before the State Bar of Wisconsin, she ducked questions, endlessly repeated her campaign talking points — that she is 'fair, impartial and independent' and backed by 345 past and present Wisconsin judges, way more than Hagedorn — and falsely claimed that the Code of Judicial Conduct prohibited her from commenting on any issue that may come before the court. (Other candidates have gone much further in answering questions about where they stand, without any knocks on the door by the Judicial Police.)"

Wrote Bill Lueders in Isthmus. Was he concerned that the "liberal" branding was needed to get out the Madison vote for Neubauer? It's completely typical for Supreme Court candidates to portray themselves as utterly neutral and devoted to the law, because that is their apt understanding of how most voters think about the role of the judge. Hagedorn also takes this neutral approach, and Lueders doesn't like that either:

Hagedorn, 41, claims that what he thinks about anything is irrelevant to his role as a judge, and that anyone who brings it up is attacking his religion. It’s a remarkably dishonest contention, especially given that he has in the past personally urged people to back the election of a conservative justice to preserve Walker’s attack on public employee unions and other explicitly political reasons.

"To preserve Walker’s attack on public employee unions" = to refrain from overturning the work of the democratically elected branches of government.

Basically, the irritating problem is that the popular conception of the role of judges — as neutral and not activist — overlaps much more comfortably with what conservative judges do, and that makes it harder to run as the liberal candidate, especially when things depend on getting out the vote and it's a low-profile election, like today's.

Federal judge dismisses Wisconsin Supreme Court Justice Shirley Abrahamson's effort to win back her position of chief justice.

"Abrahamson filed suit April 8, a day after voters had approved a constitutional amendment to change how the chief justice was elected to a majority vote among the justices every two years."

“The court concludes that Wisconsin’s new method of selecting its chief justice was effective on April 29, 2015, when the referendum was certified, and that the Wisconsin Supreme Court was authorized to implement that method and to elect a new chief justice on that day,” wrote Judge James Peterson in Friday’s decision....

“The court has some misgivings about whether [the Justices' vote to elect Patience Roggensack as their new chief] actually reflects a judicial interpretation of the amendment, because the issue was not presented to the court in the usual manner with advocates presenting the competing positions,” Peterson wrote. “Nor was it resolved in the usual manner, which typically involves at least some measure of deliberation in which all the justices participate. But the down-and-dirty interpretation (which defendants dignify with the term 'de facto') will do for the purposes of this case.”...

“This federal court does not have to guess what that interpretation would be, because on April 29, 2015, the day that the referendum was certified, four justices voted to elect Justice Roggensack as the new chief,” he wrote.

That is, the federal judge wouldn't say what the meaning of the Wisconsin constitutional amendment is, because the state supreme court has authority over the meaning of state law, and by taking the vote for a new chief, the court revealed its interpretation of the amendment. That eliminated the argument that the Wisconsin constitutional amendment should be understood to leave Abrahamson in her old position until her present term ends. Beyond that, there was an argument that it violated due process, under the U.S. Constitution, for the people of Wisconsin to change the method of determining who would be chief justice. The judge rejected that argument.

"The Wisconsin Supreme Court is expected on Thursday to make public a decision on whether a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign may continue." UPDATE: Court ends the investgation.

The NYT reports.

The investigation, which has been stalled by court decisions for more than a year, began in 2012 after Mr. Walker survived a recall election brought by voters who opposed limits he made to collective bargaining rights and union power when he became governor in 2011. At its root, the investigation looked at whether Mr. Walker’s advisers directed interactions with at least a dozen outside conservative groups, including the Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and Citizens for a Strong America, and whether that violated disclosure rules and donation limits....

The State Supreme Court had been asked to look at three legal suits tied to the case, including efforts to end the inquiry by those under investigation as well as a push by the special prosecutor to renew it....

ADDED: This paragraph seems miswritten:

The state’s highest court is widely seen as being split between a larger conservative bloc and liberal one as well as having an increasingly polarized, antagonistic climate between the blocs. Shirley S. Abrahamson, the longtime, liberal-leaning chief justice, filed a federal lawsuit this spring after voters approved a Republican-led constitutional amendment changing the way the chief was picked — in essence, assuring that a member of the conservative bloc, Patience Roggensack, would be picked to replace her.

The constitutional amendment didn't assure that Patience Roggensack would be chosen. The NYT doesn't mention what the constitutional change was. We went from designating the most senior justice as chief to choosing the chief by a vote of the justices. That meant the so-called conservatives controlled the outcome if they voted as a bloc, but a majority of justices, making their individual choices, could have decided to vote for Abrahamson, perhaps out of concern for the seeming disrespect of taking her position away in the middle of her term or because she was experienced and doing a fine job. We Wisconsinites who voted to amend the constitution did not feel assured of the outcome, especially that Roggensack, specially, would be chosen.

UPDATE: "Wisconsin Supreme Court ends John Doe probe into Scott Walker's campaign."

The ruling means the likely end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.

It could also prompt the escalation of other litigation over the probe....

Writing for the majority, Justice Michael Gableman found a key section of Wisconsin's campaign finance law is "unconstitutionally overbroad and vague" and that the activities prosecutors had investigated were not illegal.

"To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All unnamed movants are relieved of any duty to cooperate further with the investigation."

AND: Here's the full text of the opinion.

MORE: The court — citing freedom of speech rights in the U.S. and Wisconsin constitutions — rejects the interpretation of the Wisconsin statute that was the basis of the special prosecutor's :

In Two Unnamed Petitioners, we hold that the definition of that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"  State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)).  However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, "political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II).  With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants.  The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of [Ch. 11]."  Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II).  Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

AND: "The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing.  Millions of documents, both in digital and paper copy, were subpoenaed and/or seized.  Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.  The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013).  Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11.  As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos."

MORE: "The special prosecutor alleges that the Unnamed Movants engaged in illegally coordinated issue advocacy.  However, the basis for his theory has evolved over the course of the various legal challenges to his investigation, and he appears unable to decide just how the Unnamed Movants have broken the law."

Today, the special prosecutor alleges two theories of illegal coordination: (1) that the coordination between the Unnamed Movants is so extensive that the supposedly independent groups became subcommittees for the candidate's campaign under Wis. Stat. § 11.10(4); and (2) that the coordinated issue advocacy amounts to an in-kind contribution under Wis. Admin. Code § GAB 1.20.  The special prosecutor's theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues.  See Citizens United, 558 U.S. at 324.  We find no support for the special prosecutor's theories in Wis. Stat. Ch. 11.  Chapter 11's definition of "political purposes," which underlies Wisconsin's campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people "'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'"  Id. (quoting Connally, 269 U.S. at 391)....

The special prosecutor argues that coordinated issue advocacy is prohibited under this provision because the statute itself only requires cooperation between a candidate's committee and another committee and that the statute does not require that such cooperation be limited to express advocacy.

The first flaw in the special prosecutor's theory is that it is left to the whim of each regulatory bureaucrat and/or prosecutor to subjectively determine how much coordination is "too much."  Indeed, the special prosecutor, because he relies on vague and overbroad statutes, will be the only one to know how much coordination is "too much."  This cannot be; such an interpretation of § 11.10(4) is unconstitutionally overbroad and vague under the First Amendment. 

There's a second flaw that the court finds "more obvious":

Wisconsin Stat. § 11.10(4) refers to a "committee" that coordinates with a candidate's committee and in order to be a "committee," an entity must "make[] or accept[] contributions or make[] disbursements."   In order to come within the purview of regulated acts both "contributions" and "disbursements" must be "made for political purposes."  Wis. Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1.  Applying the necessary limiting construction to the phrase "for political purposes," we conclude that in order to meet the statutory definition of "committee," a committee must engage in express advocacy and its functional equivalent.  This conclusion is fatal to the special prosecutor's subcommittee theory because he does not allege that the Unnamed Movants engaged in express advocacy.  Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a "committee" subject to Chapter 11's regulation. 

AND: From the conclusion:

It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a "perfect storm" of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. 

At the Wisconsin Supreme Court today, the new chief justice, Patience Roggensack, had to tell the old chief, Shirley Abrahamson, "You are out of order."

"You are out of order. ... I never did this to you when you operated as chief justice, to keep going back when you tried to move to an item on the agenda. You really need to give me the same courtesy, please."

Abrahamson — who is suing in federal court to get the position of chief justice back — answered: "But I never silenced anyone. I didn't call the question. I let everyone speak, but maybe that was not the right thing to do but that's what I did to everyone and I expect the same courtesy."

And then Roggensack said: "I run the meeting perhaps a little differently than you do."

I think it looked something like this:

At the swearing-in ceremony for Marquette University Law School graduates, only the justices who voted for Patience Roggensack appear.

Wisconsin Supreme Court Justice Patience Roggensack was presiding as chief justice for the first time as the court performed the time-honored ritual for the newest members of the bar. Not present was Shirley Abrahamson, who lost the position of chief when voters amended the state constitution to provide for the justices to elect their own chief. Abrahamson is suing in federal court, claiming that she's still properly the chief, under the old seniority rule, until the end of her term in 2019. Also absent were Justices Ann Walsh Bradley and Patrick Crooks, who, we're told, voted against Roggensack.

Congratulations to the graduates of Marquette University Law School, beneficiaries of Wisconsin's delightful diploma privilege. I'm sorry you didn't get to see a full bench for your special celebration, but you did get to see something special.

Denying Shirley Abrahamson an injunction that would restore her to the position of Chief Justice of the Wisconsin Supreme Court...

... U.S. District Judge James Peterson found no irreparable harm because the new Chief Justice Patience Roggensack is "not consolidating power in any ruthless way."

"Other columnists have argued that the conservatives' quick action to replace Abrahamson is overplaying their hand."

"But it is no such thing; the chief's chair is rightfully Roggensack's, and delaying her ascension to the seat simply would be giving oxygen to Abrahamson's charade."

Writes Christian Scheider in the Milwaukee Journal Sentinel (about the lawsuit Wisconsin Supreme Court Justice Shirley Abrahamson brought to keep her position as chief after Wisconsin voters amended the state constitution to change the selection process from seniority to a vote of the 7 justices).

By the way, I wouldn't have used the word "ascension." When you're elected to a position, do you ascend? Funny that bothered me. It was just yesterday that I finished reading the book "Means of Ascent (The Years of Lyndon Johnson)," by Robert A. Caro. It's the story of how Lyndon Johnson first got his senate seat in 1948. It wasn't by winning an election. It was by stealing an election... most outrageously.

"Wisconsin Supreme Court justices have moved quickly to replace longtime Chief Justice Shirley Abrahamson with Justice Patience Roggensack."

"Abrahamson’s attorney Robert Peck says in a letter filed in a federal court that Abrahamson continues to believe she is still chief justice."

Oh, no! Too many chiefs!

"The swing member of the state Supreme Court lashed out at a lawsuit brought by Chief Justice Shirley Abrahamson over how the court's leader is selected..."

Justice N. Patrick Crooks said: "I think it's not only sad, it's unfortunate. I won't give you my view of the merits of that lawsuit, but I will tell you I think it's something that should not have been done. We've become a little bit of a laughingstock, or at least she has."

In the interview, Crooks said he was considering seeking the position of chief justice himself after some of his colleagues talked to him about it. He declined to name them. The 76-year-old justice also held out the possibility of running for re-election next year, despite suggesting to his colleagues last year that he would not seek another 10-year term.

In case you've forgotten, Abrahamson has been chief justice for a long time under the old seniority rule, a part of the Wisconsin state constitution which the voters amended. Now, the justices are to vote to select the chief, and Crooks seems to be positioning himself for selection — and for reelection if he wants to run again. Calling Abrahamson "a laughingstock" is awfully harsh, even if it's what he genuinely thinks (as opposed to what's politically opportune). If the idea is to restore the dignity of the court, it's a bit strange. But perhaps the unnamed colleagues who've talked to him include Abrahamson:

Crooks distanced himself from Abrahamson, saying he had a "very different" judicial philosophy than her. Regardless, he argued the decision on who should lead the court should be about who is best able to bring members of the court together, not a "philosophical tug of war." He said he felt he could serve that function.

"I view the job of chief justices I think very differently than Justice Abrahamson does," he said. "I think that the chief justice is a first among equals. I think the approach that's appropriate is that you're a team player and you try to get everyone involved in the team."

If I were in Justice Abrahamson's position masterminding the coming election, that's exactly what I would advise him to say. And by the way, call me "a bit of a laughingstock" so it won't look like I'm colluding with you.

Milwaukee Journal Sentinel editors: "Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit."

"However unfair it may seem to Abrahamson and her supporters, she lost this round. She should drop her lawsuit."

Abrahamson's lawsuit will only further divide an already fractious court that is more notable in recent years for its dysfunction more than for its jurisprudence. These justices are as polarized as the state's politicians, which is an embarrassment. Justices are supposed to rise above such pettiness.

We also find it hard to believe there are legitimate federal issues here. The federal court should let the state sort this out.

Intervenors seek to dismiss the lawsuit Wisconsin Chief Justice Shirley Abrahamson filed in federal court...

... to retain her position as chief after the voters of Wisconsin amended the state constitution to make the position depend not on seniority but a vote taken among the 7 justices. I wrote about the lawsuit in a post called "The puzzling argument that Shirley Abrahamson was elected to the position of Chief Justice and has a federal right to keep it."

Here's the PDF of the motion to dismiss. There are numerous arguments for dismissal — well worth reading — but I'll highlight one:

All of plaintiffs’ federal-law arguments turn on the premise that an interpretation of the Amendment that allows the justices to elect their Chief Justice after the April 7 election results are certified is “retroactive.” But that is not what “retroactive” actually means. Plaintiffs’ arguments are premised entirely on prospective conduct: the selection and service of the next Chief Justice after certification of the election. This defect is fatal.

UPDATE: The federal judge has denied the motion to intervene, so that's the end of the motion to dismiss. The arguments in support of the motion to dismiss are as good as they ever were, and the defendants who are already parties in the case will be able to raise them:

... U.S. District Judge James Peterson said in his order Tuesday that the voters' interests will be adequately represented by those already named in the lawsuit.

Was Shirley Abrahamson "reelected as chief justice by popular vote... 2009"?

That's what the complaint in her federal court lawsuit says. Here's how the ballot looked:



Even without seeing that ballot, it's obvious that it could not be an election to the position of chief justice. If Koschnick had won, he would not have been elected chief. We, the people of Wisconsin, voted for a Justice of the Supreme Court. The position of chief was determined by the old seniority rule in the Wisconsin Constitution, which we, the people of Wisconsin, have now amended.

The puzzling argument that Shirley Abrahamson was elected to the position of Chief Justice and has a federal right to keep it.

Wisconsin Chief Justice Shirley Abrahamson has sued in federal court, asserting that her federal constitutional rights have been violated by the new amendment to the Wisconsin Constitution that provides for the Wisconsin Supreme Court Justices to elect their chief. Under the old provision, article VII, section 4(2) of the Wisconsin Constitution, "The justice having been longest a continuous member of said court.... shall be the chief justice," and Abrahamson has been chief justice since 1996.  She had been elected (to a 10 year term) in 1979 and 1989, so she became chief justice in the middle of her second term. The people did not elect her chief justice. We only elected her justice. Someone becomes chief justice by the operation of section 4(2), but the people elected that individual under section 4(1), which says:

The supreme court shall have 7 members who shall be known as justices of the supreme court. Justices shall be elected for 10-year terms of office commencing with the August 1 next succeeding the election....

I don't see how, under the old provision, there was any election to the position of chief. And, as noted above, Abrahamson originally took on the position in 1996, midway through her second 10-year term. Now, I want to focus on paragraphs 41, 42, and 44 in the complaint in Abrahamson's federal court case:

41.  Plaintiff Abrahamson was subsequently reelected as chief justice by popular vote in 1999 and 2009, earning ten-year terms of office in each of those elections. She campaigned extensively and expended substantial resources for reelection on the theme of the administrative work she had done as chief justice and continuity in the chief justice position.

The expression "reelected as chief justice" isn't quite right. In the election previous to her 1999 election, in 1989, Abrahamson could not possibly be said to have been elected to the position as chief since she didn't become chief until 1996. But more important, in all of these elections, she was running under section 4(1), which says only that "Justices shall be elected for 10-year terms of office." I'm not seeing any reference to "as chief justice." The chief justice role falls upon the justice who has the greatest seniority, by virtue of section 4(2), which is separate from the section about elections, 4(1).

Paragraph 41 also says that Abrahamson chose to stress her accomplishments and leadership as chief justice, when she campaigned for reelection in 1999 and 2009, but I don't see how her chosen campaign theme could transform the election into an election to the chief justice position, rather than simply an election as a justice, where there was an assumption that the method of selecting the chief would remain the same. Paragraph 42 continues with this notion that the campaign's theme determines the scope of the power of the office people are voting to fill:

42.  In the most recent election, which took place April 7, 2009, her campaign committee was called the “Chief Justice Shirley Abrahamson Reelection Committee,” and her campaign advertising ended with the tagline, “Wisconsin’s Chief,” attached as Exhibit C, making it clear to voters that a vote for her was a vote to continue her in the office of chief justice.  She campaigned extensively and expended substantial resources for reelection on that theme of continuity in the chief justice position and would not have sought reelection if there was a question about whether her reelection would retain her in the office of chief justice. She also cast her vote in that election to support her continuation as chief justice. Plaintiff Abrahamson won that election on April 7, 2009 with more than 59 percent of the vote.

Note that there is also the assertion that she wouldn't have run for office if she had thought it was possible to be deprived of the position of "chief." That's interesting to know, but it's hard to see how that disempowers the people from amending the constitution to change how the position of chief is determined. Abrahamson counted on being chief, and she wouldn't have deigned to run for a fourth 10-year term if it didn't come bundled with leadership of the group of 7 justices. But so what? Why would her hopes and expectations  — or the hopes and expectations of the people who voted for her — limit our power to amend the constitution? Do those who get elected to office somehow lock in the existing scope of their power? That's a strange notion in itself, but it's even stranger to suggest that the answer to that question would depend on whether you touted a particular aspect of your power in your campaign rhetoric!

44.  As a result of the successful campaign conducted under the backdrop of the seniority rule then contained in article VII, section 4(2) of the Wisconsin Constitution, Chief Justice Abrahamson and her political supporters had the settled expectations that she would continue to serve as chief justice until the end of the term to which she had just been elected, which ends on July 31, 2019.

I don't see how "the backdrop of the seniority rule" in section 4(2) changes the nature of the election provided for in section 4(1), which is an election to the position of justice, not chief justice. There was an expectation that the section 4(2) would remain the same, but I don't see how you can pump that expectation up into a federal constitutional right and deprive the people of the power to change section 4(2).

Abrahamson's argument is that the change to section 4(2) should apply only prospectively and that she has a right to continue in the position until the end of her term in 2019. The argument is based on her rights and the rights of those who voted for her (some of whom are also plaintiffs). She's saying it would violate Equal Protection "by diluting and debasing the value and meaning of the votes" that were cast for her in 2009. And she's claiming that it violated her Due Process rights. (With the chief position comes an extra $8,000 added to the regular salary of a justice, which is $147,403.)

A big problem with filing this case in federal court is that there is a state law question as to whether the amendment to section 4(2) applies immediately. She could win on that state law ground and that would avoid the federal constitutional law question. That is, quite obviously, a reason for the federal court to abstain, since it can't give an authoritative interpretation to the state law question. Federal courts engage in this form of abstention — Pullman abstention — out of respect for the authority of state courts, and yet here is a state supreme court justice invoking the federal authority. I find that very strange indeed. And yet, it seems clear that the state's chief justice wouldn't want to submit to the authority of her own state's courts, where she doesn't see herself commanding a majority. If she did, she could simply accept the amendment to section 4(2) and keep the position of chief because her fellow justices would vote to have her as their chief.

And why wouldn't they? What an affront to take the chief position away in the middle of the venerable justice's term!

ADDED: Someone in the comments asked what the ballot looked like in the 2009 election. But think about it: The ballot could not possibly have denoted the election as an election for chief justice because the opponent in that election wouldn't have assumed the position of chief justice. He would have been the furthest from the position of greatest seniority and the last in line to be chief under section 4(2). The vote had to be only for justice. Nothing else makes sense.

After Wisconsinites vote to amend the state constitution to change how the state supreme court's chief justice is selected, Shirley Abrahamson sues in federal court to keep her position under the old provision.

Under the old provision, Abrahamson was entitled to the position because she is the most senior member of the court. Under the amendment we voted for in yesterday's election, the justices elect their own chief. What is the federal question that allows this to be heard in federal court?

To have the selection process change immediately would shorten the term of office to which Abrahamson was elected, she argued, and would therefore violate her constitutional rights to due process and equal protection rights.

She also asks the court to block the other six justices on the court from taking any action to remove her as chief justice. Earlier Wednesday, before Abrahamson filed the lawsuit, Justice Pat Roggensack told The Associated Press that she hoped to meet "quite soon" to discuss how to proceed following the amendment's adoption....

ADDED: On reading this, Meade said: "I think what should be said is that this changed the terms of her office, not the term of her office." (That is, voters elected her to serve as a justice for a 10-year term, and under the old provision, by virtue of her seniority, she would be chief. Under the new provision, the terms of her job have changed, so that seniority does not entail service as chief, but the justices get to vote for a chief. Her term is the same: 10 years.)

AND: As they say in Wisconsin (sometimes!): This is what democracy looks like.

Liberals won and lost in yesterday's Wisconsin Supreme Court election — and this particular win/loss combination is good for conservatives.

Steven Elbow reports in the Cap Times:

Supreme Court Justice Ann Walsh Bradley won a third 10-year term Tuesday, saving the liberal block of the court from near extinction. But the election was double-edged for Bradley and Chief Justice Shirley Abrahamson as voters approved a constitutional amendment to change the way the chief justice is chosen, a measure that will almost certainly oust Abrahamson from the job....

Leading up to Tuesday’s contest, only the union-backed Greater Wisconsin Committee ran TV ads on behalf of a candidate. The group booked $102,000 for an ad attacking [the conservative challenger James] Daley, while Bradley spent about $510,000 on ads. Daley ran no television ads, and no one ran any on his behalf. Instead, WMC gave $600,000 to the group Vote Yes for Democracy to run an ad supporting the measure regarding the chief justice selection. The Greater Wisconsin Committee raised $280,000 to run an ad opposing it.

How could an unknown challenger with no TV ads beat a well-known incumbent with lots of ads? Daley was left to lose, and the serious fight was over depriving Abrahamson of the leadership position on the court:

The measure, which passed two consecutive sessions of the GOP-controlled Legislature and was approved by voters Tuesday, ends the 126-year practice of choosing the justice with the most seniority. The chief justice will now be chosen by the justices themselves. The position has been held since 1996 by Abrahamson, who won her fourth 10-year term to the court in 2009. Critics call the change a blatant attack on the 81-year-old Abrahamson, who also might also have to contend with a GOP proposal to set a retirement age for the court. The constitutional measure, crafted by Republicans and backed by Daley, was likely not seen by voters as ideological, said UW political science professor Barry Burden.

Prof. Burden observed that many voters probably saw the constitutional amendment as politically neutral rather than an important way for the liberal minority to retain some significant power, which at this point in the court's history, it surely is. Insert "Don't call me Shirley" joke.

The conservative block consists of four justices, with a fifth, Patrick Crooks, seen as a swing vote. In recent controversial cases, the partisan divide has been on display. Bradley and Abrahamson voted against Walker’s collective bargaining measure in a 5-2 decision....  At one point an argument concerning when to release the decision escalated to the point that [Justice David] Prosser and Bradley had a physical altercation....

I won't rehash the Prosser-Bradley incident. You can search the word "chokehold" in my archive to sift through that.

The point I want to make here is: Conservatives did not need another conservative justice to control the court.  In fact, a weak conservative justice would hurt the conservative cause, because he would make the conservative side seem more political, rather than as the dedicated followers of law they want us to see them to be. And if Shirley Abrahamson were stranded as the only liberal jurist on the court, she might gain luster as the venerable lone dissenter. With Bradley, there are 2 — a liberal bloc, however small.

That bloc can't win, so conservatives have nothing to lose. In fact, conservatives gain, because 2 justices voting together can more easily be portrayed as ideological and political than Shirley Abrahamson standing heroically alone.

"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 Wisconsin Supreme Court upholds the photo ID law.

Like the Act 10 case (discussed 2 posts down), this was a 5-2 decision with Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissenting.

Writing for the majority, Justice Patience Roggensack said "the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not severe burdens on the right to vote."

The dissenting Chief Justice said:

"Today the court follows not James Madison -- for whom Wisconsin's capital city is named -- but rather Jim Crow -- the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans."

Wisconsin citizens seem to have demonstrated their liking for conservative state supreme court justices.

Does this mean somone can defeat Chief Justice Shirley Abrahamson when she runs for a 4th term next year?

No one has announced plans to run against Abrahamson yet, but the election is a year away. Jim Pugh, a spokesman for Wisconsin Manufacturers and Commerce, said conservative judges — Diane Sykes, Patience Roggensack, Annette Ziegler and now Michael Gableman — have won each of the past four contested elections.

Gableman was elected Tuesday, beating incumbent Justice Louis Butler, the first time a sitting Supreme Court justice has been ousted in 41 years.

But who dares to challenge the monumental Shirley Abrahamson? Now that an incumbent has lost, perhaps someone with far more weight than Gableman will step up. People around Madison are stunned — stunned enough that I can see it from Brooklyn — at Butler's loss to someone who was quite obscure:

... Gableman wasn't well known before he decided to challenge Butler in this year 's race. Hailing from a one-judge county in far northwestern Wisconsin, Gableman announced his candidacy less than six months ago and defeated Butler, of Milwaukee, by 51 percent to 49 percent

So who will take on Shirley Abrahamson? I'm not calling for her defeat, please note. I am only saying that, given the Wisconsin voters' taste for conservative judges, we deserve top-quality conservative candidates.

ADDED: Here's a map showing the voting pattern in the Butler-Gableman election:



I think this says a lot about Wisconsin. My Wisconsin is that dark blue square down at the bottom.

The courtroom and the coffeeshop.

I'm scheduled to judge the 12 o'clock argument, the final round of the Evans Constitutional Law Moot Court Competition, and I arrive at the Capitol two hours early.




No, I didn't find some crazy new way to screw up the jump to Daylight Savings Time, I just wrote 10 a.m. down in my calendar long ago, for some unknown reason. I procure a paper copy of the bench memo and head across the street to Starbucks.

The barista is chatting to someone about Daylight Savings Time and the effect on the clientele: "These are the 8 o'clock people at 9 o'clock. Or maybe it's the pre-church crowd? But what do I know about church? I mean I've heard" -- sweeping gesture -- "of this deity" -- gesture -- but what do I know?"

There's an astrology column taped to that circular section of the counter where they present the coffee drinks. A man waiting for his latte scans the column and expresses pleasure that he's supposed to have a good day. He's a Virgo he tells us. The barista exclaims that, ooh, he's a Virgo, and an older woman, also waiting for a coffee, says that her son is a Virgo. I read the Virgo message and point out the introductory clause: "It says you're going to have a good day assuming you first complete your duties."

Over at the fixings stand, I see this:



"Restore yourself." Not -- as I think it would have read a few years back -- "Indulge yourself." "Restore yourself" is less hedonistic, a bit spiritual. He restoreth my soul. But what would you have to be if what restored you -- what brought you back to yourself -- was a vanilla sunshine cupcake and a macchiato crisscrossed with gooey chocolate? Macchiato means "stained," and this plays havoc with the religious imagery "restore" evokes for me. But then it's restore yourself. No deity -- you may have heard of one -- is going to restore you. It's up to you to restore yourself -- to your truly stained condition -- at Starbucks, where God seems rather alien -- something heard about one time -- but astrology belongs taped to the part of the place that is most like an altar, where the barista bestows the restorative liquid upon us.

The woman whose son is a Virgo comes over to sugar her coffee and asks me if I'm "with that gentleman," meaning the customer who liked his horoscope. She seems to have appreciated my humor, though in expressing her appreciation, she uses the word "assumptuous." I say no I'm not. "I don't know anything about what unperformed duties he might have." I imagine the alternate universe in which I am with that guy and I'm reading the introductory clause of his horoscope to needle him about his duties -- the undone things that stain his soul.

I find a seat. I read the bench memo and do the acrostic.



I scribble some notes on the blog post I plan to write. I make a note to connect the Starbucks material to a conversation I'd just had with a colleague of mine over in the Supreme Courtroom.

"You know there was a big controversy a few years back when Shirley Abrahamson used this room for an aerobics class."

"Oh, yeah, I vaguely remember that. Well, you can't have that. This is a temple of justice. But then, we do worship the body in this culture of ours. So maybe..."

But the noon hour approaches. Time to get back to the Supreme Court.



The problem -- here's the PDF of the record on appeal -- is about a student group, a conservative religious group, that loses its state university funding because it excludes a gay student from membership. The university had conditioned the funding on the group's acceptance of a nondiscrimination policy. We judges try to ask a lot of hard questions to give the students the opportunity to show what they can do. Both teams do a fine job. The two young men who win -- they're from Washburn University School of Law -- can be seen, unblurred, in this picture I took when I first arrived at 10.



Rushing about so much she's a complete blur is Julia Ledbetter, the Moot Court boardmember in charge of the competition. Somewhat less blurred is my aforementioned colleague, the wonderful Stewart Macaulay.