Since the US Supreme Court afforded states the right to forgo Medicaid expansion under the Affordable Care Act, without losing all of its federal funding, many Republican governors have exercised their right—at least rhetorically—to opt out of such expansion. While the Supreme Court’s decision on the Affordable Care Act (hereinafter the ACA) allowed the federal government to place strings on money it gives to states as part of Congress’ spending power, affirming precedent from South Dakota v. Dole, inter alia, the Court ruled that the federal government cannot tie existing funds to Medicaid expansion. Only additional Medicaid fundingincurred by expansion under the ACA can be subject to revocation, since past attachments were “relatively mild encouragements” consonant with the judicial test of coercion. In other words, the Federal government maintained its carrot to coerce, but lost its stick. “So although the Obama Administration lost on this issue, it’s probably a loss that it is willing to live with for now, as few states (if any) are ultimately expected to turn down the new Medicaid money, even with the strings,” writes Amy Howe of SCOTUSblog.com. The prevailing thought was that only insensate ideological zeal would move a governor to turn down such an offer. However, as we move past the Court’s decision and thus gain critical distance from it, is this really the case?
Providing Medicaid coverage for virtually all poor and middle-income Americans—up to 133% of the federal poverty line—under the age of sixty-five is a significant expansion from what the federal government requires currently. Under Medicaid, states design their own programs within bounds established by federal regulations, with the federal government paying for a large share of the expenses. Although the formula is complicated, the more a state spends, generally, the more the federal government contributes—with diminishing returns to prevent abuse. Thus, with the goal of providing near-universal healthcare coverage under the Medicaid formula utilized currently, politically conservative states stand squarely in the center of Congress’ approach, since they can expand for cheaper at the margins than a generous, liberal state (which covers more of its citizens). Congress’ approach “was essentially to make Red America an offer it couldn’t refuse.” That offer was an agreement by the federal government to front 90% of the expenses under the new scheme.
But in recent days, Democratic governors have joined the Republican chorus by expressing misgivings about Medicaid expansion vis-à-vis their state budget projections (though of course the former have done so less vociferously). Governor Dave Heineman of Nebraska said pointedly that his cash-strapped state had no room for such expansion—it was a stark choice between funding the state’s flagship higher education institution, the University of Nebraska, or Medicaid expansion, and he preferred unequivocally the former. Many governors think it prudent to wait until after the election in November 2012 to render a decision on Medicaid expansion, given Mitt Romney’s commitment to repealing and replacing the ACA. Yet, how do we explain the concurrence of recent Democratic suspicion regarding Medicaid expansion? It is difficult to tell whether this is simply another consequence of election year politics and the unwillingness to be linked with an unpopular sitting President. The fact that Democratic governors have bemoaned Medicaid expansion quietly, however, appears to indicate something else is at work.
The answer, I believe, is no secret: governors understand the unknowable factor in this situation is the rising rate in healthcare costs, expected to continue to rise through the decade (with the ACA doing little to curb cost and possibly contributing to rising costs). Thus, the federal government’s promise to pay 90% of the bill may seem tepid and unpersuasive in the face of rising costs. What is more, it may seem ineffectual to use Medicaid as a means of achieving universal coverage, given its reputation for stingy reimbursements to providers may result in a lack of coverage or poor coverage for those utilizing it. There are also further logistical questions impeding a governor’s decision on Medicaid expansion: does a state that opts in have the option to opt out later, should its budget swell? Do states that chose to opt-in late still receive the 90% guarantee from the federal government? May a state chose to participate partially, for instance, by cutting the qualifications for subsidization somewhere lower than 133% of the federal poverty line? These questions will dominate the meeting of the National Governors Association, commencing this weekend in Williamsburg, VA. For now, the great irony is that the reason Democrats in the House and Senate chose Medicaid as the vehicle of healthcare expansion—the issue of cost, specifically, to earn a lower cost analysis for the ACA from the Congressional Budget Office—may drive governors of both political parties to forgo Medicaid expansion and instead invent new ways of expanding coverage through existing state programs.
Filed under: Courts — Christian Schneider @ 11:10 am
For years, so-called “good government” groups had been fighting to “level” the playing field in judicial elections. They always believed that public financing of elections virtually eliminated advantages for certain candidates. Last session, such a framework was passed into law. (Perhaps not-so-ironically, this occurred when conservatives were elected to a majority on the Wisconsin Supreme Court and Democrats controlled the Legislature and Governorship.)
Liberals celebrated the new “fairness” in Court elections. In last week’s Isthmus newspaper (to which I contribute a column), editor Bill Lueders asked aloud whether this month’s Supreme Court primary was the “fairest election ever.”
That means the Feb. 15 primary will occur on a relatively level playing field, with each contender having roughly equal resources. (Whether this will hold true for the general election is unclear, as court challenges or the GOP Legislature could yet kill public financing.)
On Tuesday night, we saw the results of the “fairest election ever.” Incumbent Justice David Prosser dominated his opponents, receiving 55% of the vote in a four-way primary. Prosser will now face his closest challenger, JoAnne Kloppenburg, who received 25% of the vote, in the spring general election.
So why did Prosser win by such a large margin in a primary election in which spending was equal? Perhaps it was due to Wisconsin residents’ preference for conservatives on the Supreme Court. But it likely had a lot to do with Prosser’s status as an incumbent.
And this is how, as argued on this blog previously, public financing harms challengers. If spending is level, races will almost always favor the incumbent, as being in office had enormous advantages. Incumbents have name recognition, voter contacts, and a record on which to run.
In order to overcome that advantage, challengers often need to spend more money to get their message out. But when each candidate has only a $100,000 grant to spend, it is much more difficult to overcome the natural advantages of incumbency.
So while liberals may have thought the Supreme Court election was “fair,” it was anything but. The most equitable way to conduct elections is to allow fundraising that translates into increased political speech. Otherwise, voters will be inclined to support the guy they know.
By now, you know that the Wisconsin Supreme Court has struck down Governor Jim Doyle’s attempt to pilfer $200 million from the state’s doctors in order to balance the state budget. In the 2007 budget, Doyle took $200 million out of a fund paid in to by doctors in order to partially plug a budget hole. The fund was meant to offset the cost of malpractice claims, and held costs for doctors down – which helped keep health care costs down for patients.
The Court considered this a taking from the doctors, and did so with a 5-2 majority. (Which, on this Court, is as much of a blowout as a 5-2 score would be in the World Cup.)
Perhaps the most interesting aspect of this whole debacle is the Doyle Administration’s reaction to it. The press release Doyle issued today is compelling, as it is a perfect representation of eight years of his reign. In one page, the Governor was able to provide a perfect epitaph to his reign. Consider it a Doyle chrestomathy.
Some choice passages from “The Jim Doyle Reader:”
The state Supreme Court has determined that the legislature was prohibited from using funds from the Injured Patients and Families Compensation Fund to support health care.
One sentence in, and we already have ourselves a howler. “The legislature” was prohibited? Keep in mind – Doyle was only able to successfully raid the Patient’s Compensation Fund (known by a different name now) after the legislature prevented him from doing so in 2003 and 2005. Finally, in the 2007 budget, with Democrats controlling the State Senate and within a sliver of controlling the State Assembly, Doyle got his way.
Jim Doyle was the sole driving force behind taking these funds. To suggest otherwise is preposterous. But it gloriously demonstrates Doyle’s willingness to blame others and not take a shred of blame for his failures.
The $200 million transfer allowed the state to leverage an additional $300 million in federal funding.
And, as we all know, the end (more federal funding), justifies any means we use to get it. I’m sure if Doyle stole money from all kinds of people it would be worth all the money the feds (in this case, the Bush Administration) rained upon us. Just think how much federal money Wisconsin could have “leveraged” if we started kicking over old ladies and snatching their purses. (Although if we stole my grandmother’s purse, the feds would have to match the state with 30 million cans of Aqua Net hairspray.)
Today’s decision will not benefit any injured patients, it will not benefit anyone’s health – it will only benefit the peace of mind of a few members of the State Medical Society.
(Actually, it’s the Wisconsin Medical Society, but who really fact checks anymore?) Or, perhaps it will benefit the peace of mind of the 13,431 doctors and other health care providers who paid in to the fund in 2009, and whose money was stolen from them to spackle over the fiscal mismanagement of this governor.
“An additional $200 million in cuts authorized in the budget, which we hoped to at least partially avoid, and other savings measures will now need to be implemented.”
“Other savings measures?” Wasn’t “stealing money from doctors” booked as a “savings measure?” Do we have any faith that anything they propose is going to actually save money? Keep in mind that when this administration says they’re “cutting,” it’s rarely a cut at all. In fact, it’s often a one-time fund swap that exacerbates the problem.
Perhaps the Supreme Court should already schedule a day three years from now when it can undo whatever Governor Doyle’s “savings measures” are today.
More final paragraph:
“We will also need to make additional cuts to the Medicaid and BadgerCare Plus programs through across-the board reductions in provider rates. These programs provide health care to 1.1 million Wisconsin citizens.”
This is the denouement. There’s so much in these two sentences.
First of all, those programs provide health care to 1.1 million Wisconsin citizens because they were created without any way to pay for them. Doyle overextended government by paying for a program with stolen funds, now he complains that there are a whole lot of people on the programs? Whose fault is that?
Secondly, here you see the side of Jim Doyle capitol observers have gotten to know so well. He promises to cut funding to the same doctors who had the temerity to challenge his theft. It’s a vindictive threat – and perfectly caps off the Jim Doyle Story as will be told by the history books. He just can’t help but threaten payback to his opponents. What a sad man.
Of course, if he were to cut funds to providers, it would have the effect not of punishing doctors necessarily, but raising rates on patients with private insurance. Doctors will need to make that cut up by raising rates on the insured. So congratulations, Governor Doyle – your vindictive cut will have the effect of increasing the cost of health insurance. You really showed ‘em.
(Incidentally, it’s telling that Doyle sends his Secretary of Administration, the well-liked Dan Schooff, out to deliver his threats. What a coward.)
As a postscript to all this, there’s a hidden portion of the Justice Prosser’s majority decision in the case overturning Doyle’s raid that deserves notice. In paragraph 58 of the opinion, Prosser cites a 1995 Attorney General’s opinion that points out the “longstanding view in Wisconsin law that trust funds are to be treated differently than general revenue, and that the state has less power to regulate the use of trust funds.”
I do not remember how I myself learned the art of sarcasm, but I can guess how it happened from my memory of my younger sister’s first encounters with it. In fact, I remember the exact day that she learned this linguistic oddity. After being told for the umpteenth time to clean our room, our mother walked in to find a room whose carpet could just barely be seen in patches here and there. “Well, you certainly did a good job, this is just spotless,” she ranted.
I could see the wheels in my sister’s head beginning to turn. Our room was not clean, and she knew full well that we had done nothing at all to achieve this end. In fact, the sheer number of Barbie accessories alone would have been enough to make that obvious. Yet, here was our mom, proclaiming our good work and clean floor. Either something was not right, or our mom had begun to lower her standards to our level. Excited that maybe the latter was the case, but nonetheless confused, she replied, “It is?”
“NO!” our mother shouted, proving in fact that something was up. Though our mother was much too angry to explain the finer points of sarcasm at the moment, my sister nonetheless began to learn this counterintuitive trick. After many failed attempts at it – no, sarcasm is not the same is lying, but it does have a point, so just saying that the tree is pink doesn’t really work – she has since mastered its use. Now, she understands that the words that people use do not always coincide with their intent, and regards looking to the intent of what a person says as plain common sense.
In the original trial, then-Judge Joe Wall sentenced cocaine dealer Landray Harris to two years in prison with three years of observation. However, after using the phrase “baby mama” to refer to Harris’ girlfriend and mother of his child (the best two things the unemployed dealer has going on for him as the woman both works and attends college), Harris and his attorney requested that the Court of Appeals grant him a new trial due to the racism and bias of Judge Wall. This they granted, saying that if a rational observer could interpret racism and bias from the judge, Harris deserved a new trial. That is, until the State Supreme Court stepped in with a new ruling on Wednesday.
The decision was unanimous, and in his opinion Justice Michael Gableman wrote:
“Must a sentence be thrown out if even one intelligent person listening to the sentencing hearing might think a judge relied on race? In short, this test lacks the clarity and workability necessary to be a sound rule of law,”
The State Supreme Court relied instead on whether race had been a factor in determining the sentencing. After looking at the entirety of the trial, they found no evidence that racism was present in the decision. One might think that this approach would be the only way to look at the decision, but clearly the Court of Appeals proves otherwise. Indeed, even our Supreme Court nominees know that common sense is not just a luxury, but a privilege in the confirmation process, and can only wish that Senators would look to their intent, not their language. (Though in all fairness, the decisions that can be made using pure common sense should in theory never reach the Supreme Court, so it is plausible that they need to be prepared for tougher logic. Like circular logic.)
In the lower court systems we should not be so quick to abandon common sense. Abuses can be hidden in politically correct language. For example, Harris and his attorney had other motivations to seek a new sentencing besides the use of the phrase “baby mama”- I’m thinking that the jail time might have had something to do with it. When examining the intentions behind appealing a case and using the vernacular, the validity of each action should become clear. Indeed even the great orator and author of Common Sense, Thomas Paine, used the vernacular to communicate his both simple and powerful message.
So although it can be hard to convey connotation through written word, please note that I mean no sarcasm whatsoever when I say I holler, Judge Wall.
Filed under: Courts — Christian Schneider @ 10:37 am
The Wisconsin Supreme Court is disgusted with how political the institution has become. In fact, they are so repulsed by the political tone the Court has taken, they are trying to fix it by using the most powerful tool they have:
Generally, we think of “politics” as the act of trying to get someone elected. But three liberals on the Wisconsin Supreme Court are doing the opposite – essentially trying to get one of their colleagues un-elected. Their shady effort to force Justice Mike Gableman to recuse himself from criminal cases is merely a veiled attempt by his ideological opponents on the Court to nullify the election in which the conservative Gableman beat liberal Justice Louis Butler in 2008.
It’s not as if liberals exactly take any hints from the voters, anyway. In 2000, Butler lost to conservative Diane Sykes in a race for the Supreme Court. Shortly thereafter, when a seat opened up, Democratic Governor Jim Doyle appointed Butler to the Court, ignoring the previous popular vote. When the voters threw Butler off the Court in 2008 in favor of Gableman, the Obama administration appointed Butler to a federal judgeship. (Maybe if Butler loses one more time, he’ll be ready for a U.S. Supreme Court nomination.)
Clearly, elections are of minimal importance to liberal jurists. And we’re seeing that phenomenon in action with the Court’s actions to essentially overturn Gableman’s victory over Butler.
During the Butler/Gableman campaign, Gableman ran an ill-advised ad that accused Butler of being soft on crime. The ad dealt with Butler’s time as child molester Reuben Lee Mitchell’s defense attorney, accusing Butler of freeing his client so he could then go on to molest another child. In fact, Mitchell served out his entire term and only molested another child after his initial term was over.
The discretion in airing the ad was questionable – especially since the candidate himself ran it. (We normally associate those types of ads with third parties, which will be discussed shortly.) But Gableman didn’t show any bias against criminal defendants, and he didn’t break the cardinal rule of judicial elections by commenting on any future issues that may come before the Court. He was merely doing what Supreme Court candidates do these days, by painting himself as a jurist who upholds the criminal laws as written. (It should also be noted that Butler himself ran ads bragging that he’s “protected the public from criminals” and saying “if you rob someone, you should be punished.”* Chances of recusal motions being filed from criminal defendants if Butler had won: zero point zero.)
In fact, just a year later, Chief Justice Shirley Abrahamson ran her own campaign, having clearly learned the lessons of modern judicial campaigns. Abrahamson’s television ads featured Dane County Sheriff Dave Mahoney driving around in his squad car, informing the viewer of Abrahamson’s work “protecting Wisconsin families.” While much more vague than Gableman’s appeal, it was clearly meant to send a similar message: Shirley’s on the side of law enforcement. (See the ad here.)
However, nobody seems to care what legally intemperate statements Abrahamson made during her campaign – including her claim that she’s “helping homeowners work out solutions to home foreclosure” and “protecting consumers from abuse.” One would imagine any bank or business interest appearing before the Court might object to Abrahamson’s depiction of their industry as predatory. (Furthermore, even ex-gubernatorial candidate Barb Lawton – BARB LAWTON! – has pointed out that a quarter of Abrahamson’s donors will come before the court in some fashion. If you’re a lefty and Barb Lawton calls you out, you have done something historically objectionable.**)
Yet it’s the Gableman campaign’s TV ads that are now keeping defense attorneys up late at night, filing motions for him to recuse himself in criminal cases. Such was the case last week when Assistant State Public Defender Ellen Henak filed a motion attempting to force Gableman from participating in a case dealing with how sentencing credits are counted in Wisconsin versus other states. While standing in front of the Court, Henak nailed herself to a cross of fabrication, arguing that the Court was “forcing” her to move ahead with oral arguments against her will.
While the substance of the case is fairly run-of-the-mill procedural stuff, the Court’s public reaction to it has been unprecedented. The tumult began the week prior to oral arguments, when three of the Court’s liberal justices issued a public statement urging postponement of the case until Gableman’s situation was rectified. This is the first time many long-time Court observers can remember justices serving as their own press secretaries and discussing a case openly before it even hits their chamber. Three conservative justices then responded via the media themselves, saying Gableman’s case before a three-member panel has been taking too long.
Of course, Gableman took part in the oral arguments for the case last week. He simply has no choice – if he recuses himself from a criminal case just once, then defense attorneys across the state will smell blood in the water and grab hold of that loophole as long as he’s on the court. The legal toothpaste will then be out of the tube. In fact, it is rumored that some notable defense attorneys are already urging criminals to automatically file recusal requests as soon as their case gets to the Supreme Court, simply to tighten Gableman’s briefs (so to speak).
In the mean time, all the usual suspects arguing for public funding of Court elections have been coming out of the woodwork, saying that all this unrest is somehow the result of too much money in Supreme Court elections. In fact, this argument has exactly nothing to do with the Court’s current conundrum. Gableman’s ad was run by the candidate himself, not the “shady” third parties that taxpayer financed elections are supposed to thwart. If Gableman had been handed a $200,000 check by the taxpayers of Wisconsin, he likely would have run the same ad. Abrahamson would probably have used the money to continue to paint herself as tough on crime. Using the Gableman brouhaha to argue for public financing is like a doctor removing your pancreas if you’re complaining of an ear ache.
So it is clear that politics has taken hold of the Wisconsin Supreme Court. But it has nothing to do with elections. Instead, it has to do with the desire of three of the Court’s justices to nullify the results of a popular election when it comes to criminal matters before the court. And there’s no amount of campaign finance reform that can undo the desire of individual justices to politicize the institution by trumping up phony ethics charges.
*-Butler’s harsh “anti-robbing people” stance clearly lost him the much-sought-after “Flamboyant French Safe Cracker” demographic.
**-Lawton also claims that special interests spent less on the Abrahamson/Koschnick race than the Butler/Gableman race because of the “diminishing of the stature of the court.” This is Olympic-level goofballery. Special interests spent less because Abrahamson has been on the Court for 30 years, and her race with Koschnick was never close.
In other news, WPRI has obtained a behind-the-scenes video of the justices settling their battle behind closed doors:
On Monday, WPRI released a report on ways Wisconsin can alter its probation and parole system to reduced recidivism. Last night, Channel 26 aired this report based on the study, authored by Kate Mize, J.D.
Granted, the report appears to miss the whole point of the study, and some of the facts are pretty loose, but it’s better to be on TV than not, I guess.
I really, sincerely, hadn’t planned on writing a lot about the current Supreme Court race in Wisconsin. But the stench has just gotten too thick – I can’t help but comment. I’m like one of those idiot criminals who shows up at the police station because they offer a free honey ham, then gets arrested. I just can’t help but get suckered in.
The other day, I wrote that because liberal Chief Justice Shirley Abrahamson was in the lead, you weren’t hearing all the calls for campaign finance reform that you normally would if a conservative were running strong. It appears I may have spoken a bit too soon, as I underestimated the ability of the Eau Claire Leader-Telegram to twist the story to their liking. This appeared on the same day as my post:
At a forum addressing judicial campaign financing in Eau Claire last week, Wisconsin Democracy Campaign Director Mike McCabe pointed out the similarities in education (the same law school), professional experience (circuit court judges) and legal temperament (self-described “judicial conservatives”) between Koschnick and Gableman. Yet Gableman was able to defeat an incumbent Supreme Court justice last year while Koschnick is considered a long shot this year.
McCabe says the likely difference in electoral outcome has to do with dollar signs, and it’s hard to disagree with him.
Yes – who could disagree with such air-tight logic?
Or, it could be the fact that Shirley Abrahamson has spent 30 years on the court, as opposed to Louis Butler’s 10 minutes. Perhaps they forgot that Butler had lost an election (to Diane Sykes), but was then installed on the court by Governor Doyle when a vacancy opened up – essentially overturning the results of the election. Sometimes voters bristle at being told they’re not smart enough to pick their judges. Regardless, I think the fact that Shirley Abrahamson has become an institution in Wisconsin government might have just a little to do with her electoral strength.
Furthermore, it was because of the Butler/Gableman race that Abrahamson switched tactics, portraying herself as “tough on crime,” and “protecting our families.” This was a lesson Butler was slow to learn – and it may have cost him his seat. Abrahamson immediately recognized that her left flank was exposed on the crime issue, and tried to fortify it up front. (A year ago, I suggested she release a video of her chasing down and clubbing a burglar in her campaign commercials – oddly, my advice went unheeded.)
In fact, the goo-goos have it exactly backward. They believe Koschnick is a longshot because he had trouble raising money. In reality, it’s the other way around – Koschnick had trouble raising money because he’s perceived by conservatives as a longshot. And this isn’t because he’s a bad guy or a terrible judge – the groups that normally help conservative judges didn’t think he had a legitimate shot at beating a Supreme Court justice that joined the bench before man had invented utensils.
But this displays the desperation of the campaign finance reform crowd – when there’s a race where the candidates spend too much, money is the problem. When there’s a campaign where candidates spend too little, money is the problem. They seem to think they’ve got it surrounded – when in fact, there are a hundred things that explain what’s happening more clearly than merely campaign finance.
Last Friday night, the NCAA Sweet 16 was in full swing. Those sitting at home were treated to a thrilling game, as Michigan State was able to beat Kansas, on their way eventually to the Final Four. If you were one of the three people watching the “We the People” Supreme Court candidates debate that night, my apologies. Not because you missed the game, but because you were probably chained up in someone’s basement and being forced to watch in order to extract information from you. If you called for “more waterboarding” in exchange for not having to watch Shirley Abrahamson debate Randy Koschnick, it would be entirely understood.
However, the debate did contain one interesting exchange. At one point, Koschnick called on Abrahamson to condemn the ads being run against him by the Greater Wisconsin Committee, a third-party entity that supports the Chief Justice. Koschnick urged the ads to be removed from the air, as they contained “false” and “inflammatory” information. (Ed. note – there is nothing in the ad that even approaches a reason for it to be taken down.)
Abrahamson bristled at the suggestion, citing Koschnick’s own words, when he said
“I think the answer to the problem of offensive or troublesome speech is more speech. If somebody has said something that is not true or inaccurate, the answer, rather than trying to suppress that speech, is to allow candidates and others to come out with a response and put the truth out there and let the public decide.”
Then, on her own, Abrahamson punctuated the quote with her own “more speech.” In her answer in response to the next question, the Chief Justice again hectored Koschnick for wanting to “stop speech.”
Of course, Abrahamson has long been a supporter of public financing of judicial elections – which, of course, is an attempt to “stop speech” by limiting the amount of money spent on campaigns for the Supreme Court. Naturally, Abrahamson didn’t feel strongly enough about the corrupting force of campaign contributions to limit them in her own campaign, as a Wispolitics.com report out yesterday showed she has outspent Koschnick at a 19-to-1 rate. In the most recent fundraising period, Abrahamson raised $290,000, in contrast with Koschnick’s $70,000. Suddenly, a Chief Justice who has been hostile to the corrupting force of money (and the speech that comes with it) has turned into Antonin Scalia when her own campaign needs the boost.
In the likely event she wins, this newly discovered defender of free speech rights might want to pick up a newspaper to observe the First Amendment vandalism being perpetrated by the Wisconsin Government Accountability Board, who has introduced a rule granting themselves the sole authority to regulate political speech during elections. As such, it will be an unelected board of bureaucrats – not even elected officials – who will be the “speech police” come campaign time, determing what can and can’t be said during the course of elections.
When I was a kid, one of the most popular t-shirts around declared the wearer of the shirt to be “FBI” – “Female Body Inspector.” The power the GAB has granted itself is akin to declaring yourself the state’s authority on the female form – and should be about as legally as binding. In fact, the GAB has inspired me, and today I declare myself the state’s sole arbiter of who can wear spandex in public. I’ll send my phony rule over to the the Legislature pronto.
It is almost certain that the GAB’s not-constitutional-by-a-longshot-free-speech-suppression-rule is going to end up in front of Abrahamson’s Court in the near future. Let’s just hope she’s “Campaign Shirley, Defender of Vigorous Public Debate,” and not “Too Many Conservatives Are Getting Elected, So We Need to Fund Campaigns With Taxpayer Dollars” Shirley.
Side note: During the Gableman-Ziegler races, you couldn’t open a state newspaper editorial page without reading about the need for reforming judicial campaign financing – now, with Abrahamson comfortably in the lead, you hear… nothing. Crickets.
MADISON, Wis. – Chief Justice Shirley Abrahamson is trying to turn back a challenge from a self-described conservative to win a fourth 10-year term on the Wisconsin Supreme Court.
A victory would put Abrahamson — appointed to the court in 1976 — on the way to becoming the longest serving justice in state history. A loss to Jefferson County Circuit Court Judge Randy Koschnick would tip the seven-member court further to the right and mark the third straight triumph of a judge running as a conservative.
The two are competing for a 10-year term in the April 7 election. With a well-known name, more experience and a huge financial advantage, Abrahamson is heavily favored. She also has history on her side: Only two incumbent justices have been defeated in the last 42 years.
From this article, we learn two important things:
1. Randy Koschnick describes himself as a conservative.
2. Shirley Abrahamson describes herself as the Chief Justice of the Wisconsin Supreme Court.
The article does point out that Abrahamson is “considered” to be one of the “more liberal” members of the Supreme Court, but also says she rejects that label. As we have come to find out in the past three judicial elections, the public tends to favor conservatives for the Supreme Court, even in years when Republicans have been losing races by the boatloads.
So it appears the headline writer did Abrahamson a big favor by concealing her judicial philosophy. But it’s nice that you can now be solely identified by whatever trait you think is most flattering. If I ran against Russ Feingold, for instance, I’m sure the headline would read:
“Long Time U.S. Senator Faces Man Who Can Do 25 Push-ups With Only One Break Inbetween.”
These days, it’s hard to get the Wisconsin Supreme Court to agree on anything. But back in December of 2007, the Court stood united in its push for public financing of Supreme Court elections. Earlier in the year, conservative Annette Ziegler had run a successful race against liberal attorney Linda Clifford that featured substantial advertising from interested third party groups. In their zeal to restrict these types of ads, the Court issued a letter calling for full public financing of court races, saying “Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public.”
The Ziegler race was followed up in 2008 by Mike Gableman’s race against incumbent Justice Louis Butler – a race which featured ads that clearly obfuscated the role of a Supreme Court justice. The ads – run primarily by the candidates themselves – portrayed the Supreme Court as some kind of law enforcement board, intent on keeping criminals in prison. (We denounced this tactic at the time.)
Following Gableman’s victory, ideas started to flow on how to get court elections back to focusing on what the court actually does. The Wisconsin State Journal has been on a Don-Quixote like quest to eliminate judicial elections altogether, believing voters aren’t capable of picking their own justices.
But the issue of public financing of Court elections still lingers. Public financing supporters believe that shutting down independent ads and leaving the electioneering up to the candidates themselves will leave voters with a much clearer understanding of the role of the Supreme Court.
To those people, I offer this television ad from Chief Justice and current candidate Shirley Abrahamson:
As you can see, Chief Justice Abrahamson is going to help you wiggle out of your bad mortgage – regardless of any kind of contract you signed, or regardless of whether any case dealing with your mortgage is actually before the Court. Also, Abrahamson is “protecting consumers from abuse,” whatever that means. She “stands up for all of us.” Then, the denouement, from Abrahamson’s own mouth:
“The best thing a judge can do is to help people. That’s what I do.”
Is she serious? The best thing a judge can do is to apply the law as written to certain facts of a case. The judge’s role isn’t to “stand up” for anyone. “Standing up” for people means writing your own new laws to generate a favorable outcome – whether or not it actually ends up hurting people in the long run. (Incidentally, where are these cases that “help people?” Doesn’t being a judge necessarily mean resolving disputes in which some party eventually ends up not being “helped?”)
So I dare anyone to look at that ad and tell me with a straight face that leaving campaigning up to the candidates themselves is going to give anyone a clearer idea of what the Court does. If anything, Abrahamson’s own ad leaves voters with a cloudier understanding of her role as a judge – this is an ad that could easily be run by a candidate for legislative office. That ad does more to undermine Abrahamson’s own “impartiality” than any ad by a third party could.
All public financing will do will be to shut out advertising that might actually set the record straight on Abrahamson’s record. So it’s no wonder Abrahamson favors public financing in Supreme Court races -with it in place, she could continue to exploit people with bad mortgages with impunity.