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| In local media she's defying the voters. In national media Shirley Abrahamson is defending US Constitution. |
Those who know Scott Walker up close and personal will find the oddest discrepancies. His image and methods have worn down state citizens while the fever of presidential politics allows those far away -- and even media chains in the state trying to attract national readership -- to let him elevate himself as a typical Midwestern evangelical Eagle Scout. Just don’t ask state residents how most Midwesterners, Eagle Scouts and evangelical churchgoers react to that self-promotion. Their language will blister your ears.
However he paints himself around the nation, even Republican officials in the state are now in open rebellion against Walker, a circumstance largely unreported in national media as is his drop in popularity polls.
It’s revolt over his two-year state budget. Almost half the GOP legislature is now complaining about his excess leanings toward the nation’s Tea Party primaries, behavior that is crushing their own re-electability. It’s not part of presidential politics so it isn’t much noticed.
It works the other way, noticing things that local media is blinded to. I didn’t expect much reaction outside Wisconsin -- or outside the Internet blogosphere, in fact -- to my story about Supreme Court Justice Shirley Abrahamson’s federal lawsuit to retain her role as state chief justice until her term ends in 2019.
But my story has attracted thousands of readers at my own blog and broad national attention and even reprints.
Except for those publications whose FAX machines are tied to the right-wing’s extension cord such as the Wall Street Journal, the national viewpoints are more balanced about her case.
With only a few exceptions, the Wisconsin media has treated her lawsuit as the sour grapes of old age trying to thwart the will of the electorate.
On April 16 another notable independent exception to the state media hatred chimed in. Respected journalist Bruce Murphy wondered aloud as I do why this one feisty woman whose stubborn legal opinions have carried such weight for decades is suddenly the target of the biggest names and money in the right-wing to demean her while removing her.
Her enemies keep saying it is the will of the people that she be gone. That sounds so honorable – until you recall how often these voters have been duped, issue-stampeded into opinions that were later overturned as unconstitutional. (And there are several more likely overturns waiting in the wings.)
It may not matter to the angry state GOP, but I question whether that electorate on April 7 reflected the intelligent judgment of the state, especially when you consider a “no” vote wasn’t spelled out as a defense of her authority (no is always a hard choice on this sort of ballot question that sounds like housekeeping) and that the “yes” vote only won by under 50,000 votes.
Do the real numbers not the percentages. Only some 800,000 people voted on both sides out of a potential pool of 4.4 million! The winning side needed that $600,000 ad buy by the Wisconsin Manufacturers and Commerce (WMC) to survive. I also sadly admit the disinterest of the broader public allows this sort of nonsense to occur regularly, but I won’t concede that the way American democracy now operates is the way it should operate.
WMC is a trade group small in actual numbers but financially powerful and influential on the right and in advertising money to support the media. It had to pay several dollars for each winning vote. WMC has long pretended to speak for the people but keeps getting dragged into court because of its profit interests. Its sophisticated legal teams long to tip the makeup of the courts. Think about it. If they had a chief justice willing to bend the entire appointment and education process in their favor – well, the media may call it the will of the people. I call it something much nastier.
No legal mind in any camp would dare predict how it will all turn out in Western Wisconsin federal district court, where the lawsuit starts. As it is, many progressives complain to me that the US court system has already been soured to the right out of the Democrats’ eagerness to compromise. But there is at least a profound difference in evaluation as most state pundits sound off against her while the national press concedes that only in federal court can she gain remedy.
I was frankly shocked doing my interviews how much respect in all legal camps there was for the astuteness of her case. I expected that from progressives but not from conservatives who don’t always agree with her. But they seem to value the quality of her legal thinking. They even seem to think democracy works best when all sides of an argument are presented. And they are frankly amused at how Abrahamson’s easily anticipated lawsuit seems to have left her opponents flatfooted and outwitted in the early stages.
Just look at how strident their arguments have become and just look at the well-known chatter monkeys they brought in to pelt her with nuts.
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| The silliest of the right-wing such as Orville Seymer try to step into the Abrahamson case. |
Their attempt to intrude on the Abrahamson case was funded by one of the nation’s most self-inflated mendacious national groups, Citizens for Self-Governance. Dig around a bit and you discover a big John Doe target attached to this attempt to invade the Abrahamson case -- Eric O’Keefe, who worked simultaneously for Walker and the Wisconsin Club for Growth and is irate that he is even being investigated for illegal coordination.
He is the subject of impending high court action on the John Doe probe. So while presenting themselves as ordinary “citizens against Shirley” these people and their funding machinery are hardly a disinterested party.
In the John Doe cases, the majority of justices have already ruled that there will be no oral arguments either private or public, despite press objections that the public deserves to know the issues. Abrahamson called such refusal of oral hearings virtually unprecedented and “alarming.”
“If federal courts can manage to maintain public oral argument and access to briefs in cases implicating national security concerns, then surely this court can manage oral argument in the three John Doe cases before us,” she wrote in dissent, another example of the sort of analysis and reasoning the conservative justices don’t want to be bothered with. The goal of all this anger against her is clear. It has nothing to do with blocking the will of the people but with impeding the WMC. If they can’t shut Abrahamson up they seem determined to muffle her reach by removing her as chief justice.
Still, the humorist in me wishes Federal Judge James D. Peterson had not so quickly and dismissively rejected this CRG effort to intrude. He was legally right. But the conflict of interest the CRG (Crazy Rightwing Goofs in my shorthand) brought to the case was juicy for a journalist. The mere presence of the monkeys would have revealed the hidden purpose. When their lawyer said Abrahamson was trying to protect “an entrenched political class” I thought at first that must be the WMC, it’s the only entrenched political class in the real world. Then it was clear that in their world this was the motive for what even conservatives describe as the Get Shirley amendment – She’s a liberal. Crush them all. Welcome to the new American democracy.
This will be a long legal chess game and arguments on paper don’t always reflect the actual goals. It was no surprise to the Abrahamson camp when Peterson almost immediately turned down her request for a temporary injunction, because she included that request to speed a discussion and has. The law won’t even be initiated until April 29 and the court wants to give both sides a full hearing April 21. But Peterson inserted a warning. He would hold off “absent some showing that defendants are moving to implement the amendment immediately” – such as trying to elect another chief justice. “I have made no determination of the merits of plaintiffs’ case,” his writ emphasized.
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| Judge James Peterson |
If irate GOP and media editorials didn’t understand the case, he sure clarified it for them. She is not attacking the voters but defending her rights under the US Constitution. That’s why “the editorial‘s legal argument would be thrown out in any court in the land,” said a Minnesota judge when I shared the JS editorial that praised her in one breath and then told her to give up. “How can they concede that Abrahamson is a brilliant jurist and then say they doubted she had legitimate federal issues? Whatever the ruling it is a federal case.”
“This reflects the political nature of our society,” one law professor told me. “We keep expecting the courts to rise above politics but the pundits keep invading these constitutional cases with political attitudes. Do we want the judges to rise above the politics or succumb to the pressure?”
Because of her lawsuit, her opponents have been forced to shift the ground of their attack. At first a key argument was that voters in 2009 didn’t even know she was chief justice. Now that the lawsuit has provided proof that she was “Wisconsin’s chief” in virtually every ad and story at the time, they say those voters did know but had no right to their expectations. Yet they can’t find a single voter from six years ago who even contemplated this change.
The opponents now argue there was no consideration of a delayed time frame of when the change would start though it’s common legal courtesy to grandfather in an incumbent. But in truth they did worry about it. Several GOP legislators recall there was fear that changing the rules in mid-term raised a constitutional dilemma. (Even Walker seemed to realize a problem because an amendment can’t change salaries and the chief justice earns $9,000 a year more than her peers.)
“It was clearly vindictive against Abrahamson,” several observers told me, including some Republicans whose glee has evaporated as the reality of her defense sinks in.
The shaky quality of the opposition is actually exposing the real purpose, but few in or out of the state have picked up on an amusing sidelight. Peterson got the case because in 2014 the US Congress wanted to rise above the appearance of pettiness in judicial politics, a concern that seems to be evaporating in both D.C. and Madison.
But in 2014, Peterson was Wisconsin’s first beneficiary from a new congeniality to break the slow pace of filling court vacancies. In this state there was a frustrated nominating committee process where lawyers from the left and right agreed on candidates for a vacancy. Their candidates are forwarded to the state’s two senators, Republican Ron Johnson and Democrat Tammy Baldwin, who pick one and forward that name to the White House.
The process was smooth sailing when the two senators were Herb Kohl and Russ Feingold. It’s still smooth in other states even where the senators are of opposite parties. But it has been a sore spot rubbing Johnson. Anything approved by him for President Obama makes his supporters break out in a rash.
Choosing Peterson broke the logjam and both senators took to the Senate floor to praise him as a respected expert on intellectual property rights and a shareholder in Madison’s Godfrey & Kahn. The new relaxed cloture rules in the Senate also helped to speed him to fill a long vacancy on the western Wisconsin bench.
On reputation, politics will play no part in his decisions. But I suspect he must find this situation amusing. His first big case involves the state supreme court and was brought by Wisconsin’s most famous jurist whose legal writings are regularly used as teaching tools at the University of Wisconsin. It’s there he earned three law degrees culminating in a Ph D. in 1986.
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