The “Living Constitution:” Trashing the Social Contract

An essay from The New American, a rather questionable source, but the essay itself is spot on:

This brings us to the opposition to President Trump’s Supreme Court pick, Judge Neil Gorsuch, who The New York Times actually calls a “Nominee for a Stolen Seat.” In reality, the Times advocates a perversion of judicial philosophy that long ago had stolen Americans’ birthright.

The paper complains that like Justice Antonin Scalia, Gorsuch “is an originalist, meaning he interprets the Constitution’s language to mean what it was understood to mean when it was written….” Leftists prefer the Constitution be considered a “living document,” interpreted to “suit the times” (and the Times). This just guarantees a dying republic.

Why? Consider: Imagine I violate the language of a contract to which you and I are party. You take me to court, but the judge determines that the contract can be interpreted to suit the times. You may object and say the “times” are being interpreted to suit me, but the judge is in my pocket.

Oh, he justifies this by saying he’s a “pragmatist.” Feel better?

The analogy is apt because, in essence, the Constitution is the contract the American people have with one another. It specifies the rights (of the people) and powers (of the different governmental arenas) of those party to it. It does have one significant flaw, however.

For it to work as intended, people must actually abide by it.

When they don’t, our very rights are in jeopardy.

Another analogy was drawn by Chief Justice John Roberts when, during his confirmation hearings, he said his job was only “to call balls and strikes.” Expanding on this, judges can in fact be likened to baseball umpires, while the players are the people, the game’s ruling body is the legislature and the rule book the Constitution.

Now, if a rule is thought inadequate, it’s the ruling body’s role to change it. Of course, the players, umpires or anyone else may lobby passionately in that regard. What, however, if an umpire considered the rule book living and said, “With the great pitchers in these times, three strikes are insufficient; I’m giving the batter four strikes”?

He’d be fired. And would it help his cause if he added an intellectual veneer to his cheating, saying “You don’t understand! I’m not a radical like those originalists! I’m moderate — a pragmatist”?

No, he’s a bad umpire — and he’d be history.

Likewise, all the terms describing justices — constructionist, originalist, moderate, pragmatic — are part of a pseudo-intellectual rationalization obscuring a simple truth: There are only two kinds of justices, good justices and bad justices. Good justices rule based on the founders’ original intent.

Bad justices don’t.

They put a spin on the Constitution to prove “by words multiplied for the purpose, that white is black, and black is white,” as satirist Jonathan Swift put it, so they can impose their agenda from the bench.

Some will say we mustn’t be hamstrung by a 200-year-old document. This gets at the big lie. There is a lawful way to make the Constitution “live:” the Amendment Process.

Yes, it can be long and difficult. This ensures that before our national contract is altered, the vast majority of those party to it (the people) agree on the change. “Living-document” judges, with an intellectual veneer and a sneer, usurp this power. The people are to decide when and how the Constitution will live — not five unelected lawyers.

Those who trade the rule of law for the rule of lawyers, to facilitate an unconstitutional agenda, tread a dangerous path. Their corruption of the establishment has led to precisely the kind of anti-establishment movement we see today. After all, if a game is judged and won or lost fairly, both sides can accept the outcome. But what happens when the vanquished know the judges fixed the contest for the other side?

That is the stuff revolutions are made of.

The living-document lie can be gussied up as “pragmatism” or something else, but it’s not a legitimate legal philosophy. We can have a living constitution or a living constitutional republic — but we cannot have both.

We don’t think the judges should literally always rule according to “original intent.” Sometimes previous Supreme Courts have made such a mess of the law that doing that would be like trying to unscramble an omelet. But what judges should not ever do is base their decisions on their policy preferences, violating each and every defensible rule of construction. That is indeed what most of the “landmark” decisions of the late 20th century did. We don’t need more of that.  We should, in fact, never vote for a presidential candidate who promises judicial appointees who will do that.

Louis Butler: Flat-Out Lying About His Judicial Philosophy

This, of course is not news.

But it was brought home to us (literally) when we received a mailer from liberal Justice Louis Butler, who is running for election for the Wisconsin Supreme Court.

Here is the flyer.

The most absurd, and most dishonest, passage is this:

His judicial philosophy is simple -- uphold the Constitution and hold wrongdoers accountable. That means not substituting his judgment for the Constitution or state statutes, and not forming an opinion about how he’ll rule until he has heard all of the facts.

In other words, it’s promising to be a judge radically different from the Louis Butler who is now serving on the court.

As Jessica McBride has shown, Butler has been vastly more likely to side with a criminal defendant that the conservative members of the Court. Jessica McBride’s analysis shows this, and while liberals have tried to knock down McBrides numbers -- claiming that Butler sided with the defendant less than the 57% of the time that McBride shows. It’s possible, of course, to debate these numbers endlessly. In fact, you can see them debated endlessly on Rick Esenberg’s blog.

But the bottom line is this: McBride’s numbers are the most plausible around, and any set of numbers you use shows that Butler is firmly among the Court’s liberal majority with its usual sympathy for criminals.

On other issues, see excellent analysis here, and here and here. Butler has not hesitated to substitute his policy preferences for established Constitutional doctrine or for the judgment of the legislature.

It’s terribly revealing that he does this. Americans simply don’t like activist judges, and thus Butler and other supporters of judicial activism have to dissemble.

Justice Louis Butler: Judicial Activist

Via GOP3.COM, and excellent piece of analysis from Daniel Suhr of the “jurisprudence” of Wisconsin Supreme Court Justice Louis Butler, who is running for reelection.

Suhr reviews several controversial cases, and finds Butler acting more like a liberal legislator than a judge.

He sums up the case for Butler’s judicial activism thus, and lists the cases where we see it:

Arrogance Over Deference

Justice Butler often substitutes his own judgment for that of another institution when that institution is entitled by law to deference.

Failure to defer to the trial court – Love, Armstrong, Dubose, Shomberg

Failure to defer to the legislature – Trujillo, Kohn, Diana P., Max G.W., Kolupar

Failure to defer to the U.S. Supreme Court – Knapp, Dubose, McGrew

Failure to defer to a government agency – Johnson, Meyers, Szleszinski

Overturning Precedent

Justice Butler often fails to show appropriate respect for the Court’s decisions in past cases. Trujillo, Knapp, Dairyland, Bartholomew

Acting Like a Legislator

Justice Butler often fails to respect the constitutional and practical limitations of the judicial office.

Extensive citations to non-legal authorities – Dubose, Shomberg, Thomas

Moral outrage substituted for sound legal reasoning – Thomas, Jones

The election is going to be a real donnybrook, which Butler being supported by a range of interests who like his legislation.

Supreme Court Decision Upholds Brown: Media Misrepresents Issue

Yesterday’s Supreme Court decision outlawing race-based school assignment in Louisville and Seattle has set off a huge uproar among the usual racial suspects.

And those suspects include the Mainstream Media.

It has widely been attacked as backing away from Brown v. Board of Education, the landmark case which, in 1954, overturned government imposed segregation.

The liberal mythology about Brown, unfortunately, has come to completely obscure what Brown intended to do.

When Brown was being argued before the Court, NAACP lawyer (and later Supreme Court Justice) Thurgood Marshall was asked by Justice Felix Frankfurter:

You mean, if we reverse, it will not entitle every mother to have her child go to a nonsegregated school?

Frankfurter is asking here whether a black parent will have the right to demand that her child attend a predominately white school if the Court upholds the NAACP position.

Marshall makes it clear this is not what he is arguing for.

The school board, I assume, would find some other method [besides race] of distributing the children, a recognizable method, by drawing district lines.

And later:

The only thing that the Court is dealing with . . . [is] whether or not race can be used . . . . What we want from the Court is the striking down of race. . . . Put the dumb colored children in with the dumb white children, and put the smart colored children with the smart white children -- that is no problem. (Lino Graglia, Disaster By Decree, p. 31)

This was what Brown aimed to achieve back in an era when liberals were against racial discrimination, and most people of good will agreed with them.

By the 60s, the Constitution was being used by liberal activist judges to impose a massive social experiment in forced busing on the nation.

That social experiment is now widely recognized as a failure, so much so that the Milwaukee Public Schools has a “neighborhood schools” initiative.

But during the heyday of busing (and in some places to this day), every black parent, ironically, was deprived of the right to say “I don’t want my child bused.” They were deprived of the right to say “I prefer my neighborhood school, so please keep your hands off my kid.”

The media, which is both biased and ignorant of Constitutional history, is not going to tell people the truth on this. It’s not only that they don’t want to. It’s that they literally don’t know how.

Linda Clifford’s Desperate Phone Calls

The Clifford campaign for Wisconsin Supreme Court must be desperate.

Fred Dooley of Real Debate Wisconsin put the state’s blogosphere onto a questionable Clifford campaign tactic.

The campaign has been making automated phone calls, saying that that she will “support public schools, their students and their employees’ rights.”

Given that there is no disclaimer saying who is paying for them, the calls are illegal. They also came with no caller ID.

The rhetoric about “public schools” looks very much like a coded way of saying that Clifford will oppose school choice, something her earlier statements clearly imply. As part of a liberal majority on the court, she would have the power to kill Wisconsin’s choice program.

Another, apparently different call, went out that gave the impression that the Milwaukee Journal-Sentinel was calling and asking for support for Clifford.

The liberal Journal-Sentinel did endorse Clifford, but didn’t take kindly to the calls, labeling them “misleading” and having their lawyer call the Clifford campaign on Monday afternoon to demand that they be stopped.

Clifford, who has been attacking the judicial ethics of her opponent, Annette Ziegler, has run a stunningly unethical campaign.

Ziegler Lenient on a Sex Offender?

Most of the cases in which the Linda Clifford campaign has accused Annette Ziegler of being soft on sex offenders hardly need any further analysis. But let’s look at one that is featured in a Linda Clifford campaign ad.

From FactCheck.org:

No Prison Time for a Sex Offender?

The Greater Wisconsin Committee, a state-wide political action committee funded by labor, education and healthcare PACs, attacked the tough-on-crime image that’s been a staple of Ziegler’s own ads with a spot claiming that Ziegler gave a convicted sex offender a lighter sentence than even his own defense attorney asked. The ad is true only if the sentence is measured strictly by years in prison. The whole story is more complicated.

In December 1998 a jury found Gary Tate guilty of sexually assaulting his step-daughter repeatedly during a three-year period. Ziegler sentenced Tate to 25 years in prison but stayed the sentence, instead giving him a year in county jail and 20 years’ probation conditioned upon Tate successfully completing a treatment program for sexual offenders. At the time, admission of guilt was a requirement of the treatment program.

According to the Milwaukee Journal-Sentinel, Ziegler made this comment at the sentencing:

MJ-S: “I want very much to punish the defendant for what he did,” Ziegler said. “I want very much to protect the community.” Equally important is providing treatment “so this never happens to anyone else again,” Ziegler said.

Tate filed a motion asking for a new trial, but Ziegler denied it. Tate refused to admit he was guilty, which meant he automatically flunked his sexual-offender treatment. His probation was revoked as a result, and he began serving his 25-year prison sentence.

In November 2002, Tate appealed his probation revocation. The case went to the state Supreme Court. Tate’s lawyers argued that since his sexual-offender treatment required him to incriminate himself and thereby forfeit any possibility of future appeals, the revocation of his parole was unconstitutional. The Supreme Court ruled in Tate’s favor. He was released from prison and is living in Wisconsin, according to the Wisconsin Sex-Offender Registry.

The ad is misleading in implying that Ziegler sentenced Tate to nothing more than a year in county jail. It would have been accurate to say that Tate became a free man just four years after his conviction as a result of Ziegler’s sentence.

So we ask, as we did in a previous post: do liberals see anything ethically wrong with campaign ads that intentionally try to mislead?

Linda Clifford: Sleazy, Misleading Campaign Ads

One of the more bizarre things about the very expensive and rather dirty race for the Wisconsin Supreme Court is the fact that the liberal (Linda Clifford) has been accusing the conservative (Annette Ziegler)of being soft on sex offenders.

This isn’t merely a matter of opinion. It’s simply untrue, and Clifford is being intentionally misleading.

The facts of the case are outlined in this press release from the Ziegler campaign.

West Bend – Linda Clifford’s campaign has been caught lying again. In both a press release and new attack television commercial, the Clifford campaign deliberately attempts to mislead voters.

Clifford’s campaign claims that nearly 60% of the child sex offenders (1st and 2nd Degree Sexual Assault and Repeated Sexual Assault of a Child) sentenced by Judge Ziegler were given a year in jail or less. However, they include the following cases in their calculation:

• 1997CF000270 – The sentence in that case was handed down by Judge Richard Becker, not Judge Ziegler.
• 2001CF000271 – The defendant in this case was sentenced in multiple cases (see 2001CF000359) on March 15, 2002 and was given 25 years in prison by Judge Ziegler for his crimes.
• 2000CF000432 – The defendant in this case was convicted of a misdemeanor and not eligible for prison.

In eight of the nine remaining cases Clifford cites, Judge Ziegler simply was signing off on the district attorney’s joint agreement.

“Linda Clifford should be ashamed of herself for launching these desperate attacks against a judge who is known for her tough sentences of sex predators,” said Sheriff Maury Straub, who is one of the 54 sheriffs endorsing Judge Ziegler. “Linda Clifford has a clear problem with telling the truth and voters are going to reject her dishonest campaign on Tuesday.”

According to the Wisconsin Sentencing Commission, the median prison sentence given for Repeated Sexual Assault of the Same Child (948.025(1)) is 10 years. Judge Ziegler’s median sentence for the same crime is 20 years in prison – twice the statewide number.

Additionally, since 2000, Ziegler has been substituted ten times in child sex offender cases. During that same period of time, the other three judges in Washington County were only substituted for in a cumulative total of four child sex offense cases. That means Judge Ziegler has been substituted on over twice as many times in child sex offender cases as the other three judges combined.

“Judge Ziegler has one of the strongest records in the state when it comes to handing out sentences to child sex offenders,” said District Attorney Todd Martens, who is one of the 43 district attorneys endorsing Judge Ziegler. “Sex offenders actually work hard to get out of her courtroom because they know what her real sentencing record.”

Judge Ziegler is the only judge and only prosecutor running for the Supreme Court. In addition to the bipartisan support of a majority of Wisconsin’s sheriffs and district attorneys, Judge Ziegler has been endorsed by every law enforcement organization that has endorsed in the race.

The Clifford campaign has made a big deal of Ziegler’s failure to recuse herself from several cases that involved West Bend Savings and Loan (where her husband sits on the Board of Directors).

But nobody has even claimed that anybody was treated unfairly in any of these cases, which were mostly so routine that they were handled by a clerk.

But what are we do think about the ethics of a candidate who intentionally tries to convince voters that a judge who is in fact tough on sex offenders is actually lenient?

Is there an ethical problem about that?

Supreme Court Race: Future of School Choice on the Line

George Mitchell is a long-time Wisconsin political activist and policy wonk who has been a strong supporter of school choice. In a circular e-mail, sent Tuesday and reprinted here with permission, he lays out the danger to school choice that the election of Linda Clifford to the state Supreme Court would entail:

Take Note

Unreported in today’s article on the Supreme Court debate is a comment by candidate Linda Clifford, who responded to a question saying that the law regarding “school choice” needs “clarification.”

It does? What does that mean?

The Wisconsin Supreme Court in 1998 upheld the constitutionality of the Milwaukee Parental Choice Program. On a 4-2 vote, with Justice Ann Walsh Bradley recusing, the court rejected each and every point raised by lawyers for teacher unions.

In 2002 the United States Supreme Court upheld the constitutionality of the Cleveland voucher program.

There is no benign way to interpret Clifford’s comment. “Clarifying” the 1998 court decision can only suggest an adverse impact on Milwaukee’s program. This would affect not only Milwaukee but parents and families statewide, as some candidates for public office and some sitting officials favor an expansion beyond Milwaukee. While that likely would not occur while Jim Doyle is governor, he won’t be governor forever. However, Linda Clifford, his candidate for the Supreme Court, easily could serve for decades if elected April 3.

After April 3, three of seven Supreme Court justices on the court in 1998 will remain. They are Chief Justice Abrahamson, Justice Patrick Crooks, and Justice Ann Walsh Bradley.

Justice Abrahamson dissented in the 1998 decision. Justice Crooks voted with the majority. For reasons not publicly explained, Justice Bradley recused herself.

New to the court are Justice Butler, a Doyle appointee; Justice Pat Roggensack; and Justice David Prosser.

As an appellate judge, Justice Roggensack authored a lengthy dissent in support of the Milwaukee program’s constitutionality when the case was heard in 1997. Her dissent became the spine of Justice Steinmetz’s 4-2 majority opinion in 1998. So, she clearly is on record, as is Justice Crooks.

Justice Prosser was a member of the Legislature and strong supporter of school choice in the 1990s. He, too, presumably believes the law is constitutional.

So, that is three apparent votes to sustain the principles established in the 1998 Wisconsin and 2002 U.S. Supreme Court case.

Chief Justice Abrahamson is on record that the program is unconstitutional. When I asked Louis Butler his opinion during his candidacy against Diane Sykes, he pointedly declined to answer.

Justice Bradley’s reasons for recusing in 1998 are not known, as is whether she would recuse herself if another case came before the court. Justice Bradley often agrees with Chief Justice Abrahamson.

So, the math is clear. Three apparent votes to sustain prior rulings on choice. Three potential votes not to sustain.

Linda Clifford is seeking the fill the seat of Justice Wilcox, who voted with the majority in 1998. She could provide a fourth vote to “clarify” the school choice law.

I am unaware of Judge Ziegler’s position, though the presumption must be that she would vote to sustain the precedent set by the 1998 and 2002 decisions.

Linda Clifford’s comment is significant beyond the very ominous implications for school choice. If anything has seemed clear in the school choice debate, it is that the law is settled. Yet Clifford is saying otherwise, notwithstanding two court rulings (that happen to reflect the thinking first set down by Justice Roggensack).

What other established precedents does Linda Clifford think need “clarification”?

Does Clifford’s opinion on choice explain the Greater Wisconsin Committee’s issue ad in her behalf? Did WEAC fund that?

These and many related questions now are at the center of this race.

This is what happens when judges adopt an activist posture. Constitutions cease to matter. Precedents cease to matter. All that comes to matter are the policy preferences of the judges. And Clifford is a liberal, endorsed by all the usual liberal suspects. They must feel -- and they are probably right -- that she will give them the policies they want.