Debate Me, You Cowards

The other day, the Wisconsin Supreme Court (two weeks away from Janet Protasiewicz taking her seat on the bench and flipping the court's 4-3 majority) denied a request by the Wisconsin Bar to create a CLE category for DEIA (diversity, equity, inclusion, and access) credit. "DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias."

The court's denial, joined by the conservative faction, was a short per curiam opinion. The liberal coalition's dissent was likewise short, focusing on the Court declining to give the matter even a hearing which, under the Court's standard rules, should have been offered assuming the petition had "arguable merit". Since many states have DEI CLE credit akin to what the Bar was proposing in Wisconsin, the petition clearly had at least "arguable merit" and should have gotten a hearing.

(Underneath all of this is the imminent change in the Court's partisan composition. Scheduling a hearing would have pushed the decision back past the point where Judge Protasiewicz will join the court; a factor which no doubt encouraged the majority to try and slam through this lame-duck decision without giving it normal consideration. It also seems highly likely that the new majority will revisit the question in the near future).

However, aside from the short per curiam, and the short dissent, there was a very not-short concurrence from Justice Rebecca Grassl Bradley* (last seen engaging in election-denierism while comparing the use of ballot drop boxes to North Korean autocracy). The concurrence is little more than a Townhall-style rant against the dangers of diversity initiatives. It is replete with bitter buzzwords more commonly found in the recesses of social media: claiming that the "very point of mandating DEIA CLE would be to create a 'goose-stepping brigade[]' of attorneys," accusing the Bar of trying to "virtue signal, and railing against "the predictable and petty slanders of the cancel culture crowd." She even contorts the unanimous support of the Wisconsin Bar for this initiative as illustrative of a "grave illness in our society" that can only be explained by the way DEI supporters "demoniz[e] dissenters."

There's more in that vein, all bolstered by a bevy of citations to a range of right-wing shock jocks. But I don't want to parse Justice Bradley's concurrence. Rather, I want to flag how the dissent addresses it -- or rather, quite consciously declined to address it -- in its concluding footnote:

I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.

Perfectly appropriate under the circumstances. Not only was Justice Bradley's concurrence not worth the dissent's time, it's not germane to the dissent's point; namely, that if these debates are to be had, they should occur through the normal process of granting a hearing and engaging earnestly with the various perspectives on the issue.

And that mature response by the dissent caused an already rage-filled Justice Bradley to truly go ballistic:

Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.

The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. See, e.g., Jane Doe 4 v. Madison Metro. Sch. Dist., Nos. 2022AP2042, 2023AP305 & 2023AP306, unpublished order, at 3 n.1 (Wis. May 19 2023, amended June 14, 2023) (Hagedorn, J., concurring) ("I also do not respond to this supplemental writing because of its abandonment of basic judicial decorum."). When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.

If ever there was a time for applying "I'm not mad" to a legal opinion, this is it. Note, incidentally, the final shot at Justice Hagedorn, who is actually a member of the Court's conservative faction but has generally refrained from joining the more fever-like portions of the Court's analysis (he didn't join Bradley's concurrence, for instance, though he joined the majority here). As is so often the case, the most immediate targets of conservative legal grievance posturing in defense of "ideological diversity" are other conservatives who don't want to engage in conservative legal grievance posturing.

In any event, it's tough to imagine a better example of conservative legal grievance culture than writing a 30-page 4chan post accusing the other side of being dishonest, virtue-signaling goose-steppers and then stomping your feet with "debate me, cowards!" (and accusing them of "demonization") when your colleagues don't deign to jump in the mud pit with you.

As I've written before, the Wisconsin Supreme Court has been a national embarrassment for years, and Justice Bradley certainly has played a large role in that. One can only hope that the new majority will restore some desperately-needed sanity and decorum to the circus-show.

* There are actually two Justice Bradley's on the Court -- Rebecca Grassl Bradley, who is among the conservatives, and Ann Walsh Bradley, who is one of the liberals. The latter Justice Bradley joined, but did not write, the liberal dissent, so throughout this post all references to "Justice Bradley" refer to Rebecca Grassl Bradley.

Wisconsin is a Failed State

Folks are cackling at a line-item veto Gov. Tony Evers (D-WI) made which took a one-year increase to the school budget and, though some clever deletions, turned it into a four-hundred year increase. The veto goes "for the 2023-24 school year and the 2024-25 school year, add $325." The new version reads: "for 2023-2425, add $325."

Obviously, this is hilarious and, as trolling goes, it's trolling for good. And there's nothing new about this in Wisconsin either -- when I teach about the line-item veto, I show an example from former Wisconsin Gov. Tommy Thompson, who similarly vetoed individual bits and bobs from an enacted law to create a brand new spending program where none previously existed.

But still, it's fair to say that this is not how a functioning government should proceed.

Meanwhile, Wisconsin Republicans have blocked a proposal to require schoolchildren be vaccinated against meningitis. It's become increasingly clear that the anti-vaxx takeover of the GOP no longer has anything to do with COVID, and has become a general opposition to public health initiatives of all stripes. While this isn't Wisconsin specific, it is another instance of the state's ludicrously-gerrymandered legislature drinking fully and deeply of the waters of the death cult.

Finally, I'd be remiss if I didn't talk about the chaos that has afflicted the Wisconsin Supreme Court in recent years. Of course, we all remember when one justice on that august court tried to choke out his esteemed colleague. More recently, members of that Court have repeatedly flirted with 2020 election denialism. One former member compared affirmative action to slavery. And while it may be the single funniest thing I've ever witnessed, having the Court's liberal faction celebrate the victory of a progressive challenger by marching into a watch party room to "it's bad bitch o'clock" also probably isn't exactly the sign of a perfectly healthy judicial body.

So yeah, Wisconsin isn't in great shape. Maybe folks should try Minnesota instead?

Wisconsin Man's Upward Fall Arrested

Democracy may finally be coming to Wisconsin, as Janet Protasiewicz defeated arch-conservative Daniel Kelly to flip a key seat on the state supreme court.

The Wisconsin Supreme Court has been a national embarrassment for years. This was the court where a justice tried to choke out one of his colleagues, after all. More recently, it was by far the court that came closest to endorsing Donald Trump's authoritarian campaign to overturn the 2020 election. Members of the conservative faction have since openly questioned the validity of President Biden's victory, putting them far outside even the conservative judicial mainstream and marking them as little more than partisan thugs.

Can you imagine the sort of totalitarian hellscape where the votes of the majority play essentially no role in determining who wins elections? pic.twitter.com/VScxrZV5CR

— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) July 8, 2022

And yet, even among this sorry bunch, Daniel Kelly would have stood out.

I first wrote about Daniel Kelly when he was initially appointed to the Wisconsin Supreme Court by then-Governor Scott Walker. He had made an argument comparing affirmative action to slavery, something that -- even restricted to the "civil rights programs are the new slavery!" field -- was jaw-dropping in its stupidity (and "civil rights programs are the new slavery!" is already a field saturated with stupidity).

Over the course of his career, and over the course of this campaign, Kelly has proven himself to be the definition of a mediocrity who's managed to fall upward via the beneficent hand of the right-wing gravy train. His academic pedigree is undistinguished. He had no judicial experience when he was appointed to the court by Walker in the first place, and after his (first) defeat he stayed plugged into Wisconsin GOP politics by providing legal advice to the effort to steal the state for Trump after Joe Biden's 2020 victory. And of course, all have now witnessed his petulant response to being defeated by Protasiewicz:

"I wish that in a circumstance like this, I would be able to concede to a worthy opponent," he said at an event held at the Heidel House Hotel in Green Lake. "But I do not have a worthy opponent to which I can concede."

Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable and despicable." "My opponent is a serial liar. She's disregarded judicial ethics; she's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin."

Adding: "I wish Wisconsin the best of luck, because I think it’s going to need it."

[...]

"The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," he said. "I respect the decision that the people of Wisconsin have made, but I think it does not end well."

If ever there was a definition of "lacking in judicial temperament," he personifies it.

Yet beyond that, Kelly is a familiar, if not archetypical figure. He is suffused with entitlement for that which he has not earned, and consumed by rage when he doesn't get it. There are thousands -- millions -- of men (almost always men) just like him. Most don't go on to become state supreme court judges, though many do bully themselves into positions far beyond their talents or capacities by a mixture of being useful to the right people and being an impossible menace when they don't get what they want. When they do, finally, see their upward fall arrested, they are incredulous and infuriated at the injustice of it all. Hell hath no fury like a mediocre White man scorned.

Indeed, perhaps Kelly's only mistake was being appointed to the Wisconsin Supreme Court instead of the Seventh Circuit Court of Appeals -- a position from which he could never be dislodged no matter how apparent it became that he was ill-suited for the position. On the federal bench, with life tenure, he could have prowled and fulminated and lashed out with impunity, forever; secure in the knowledge that it would be constitutionally impossible to ever hold him accountable. One can only imagine the law school classes he would have baited and berated.

But alas, Daniel Kelly is a creature of the state bench, and in Wisconsin, supreme court justices must meet the approval of the voters. Twice now, the voters have resoundingly rejected Daniel Kelly as unsuited for the role of state supreme court justice. Kudos to them. And while Democrats are celebrating Protasiewicz's win, the bigger winner is the small-d democracy that has been under siege in Wisconsin for far too long.

The (Non-)Prevalence Problem of CRT

Years ago, I remember reading a famous paradox concerning how Americans viewed the subject of foreign aid. If you asked them "should the US spend more or less on foreign aid," most Americans would answer "less" -- they thought we spent way too much money on the issue. But when you asked them to estimate how much the United States spent on foreign aid each year, they gave an answer that was an order of magnitude higher than what we actually spent. And worst of all, if you asked them how much they thought we should spend on foreign aid, their answer was still far higher than what we actually did spend -- and remember, this is from people who thought their position was that we needed to cut foreign aid!

At one level, this confluence mostly just shows that most people are innumerate. But taking it somewhat at face value, there is a nettlesome political puzzle here. What does one do if people say they want to adopt position X, but actually advocate for moving away from X, because they are under the misapprehension that the status quo is on the far side of X and thus believe that moving away from X actually means moving towards it?

This is a problem with some folks who've joined up on the "anti-Critical Race Theory" crusade. Of course, there are plenty of people who make no bones about their position -- they think CRT is a Globalist Marxist Socialist Communist Soros Triple Parenthesis plot, and they want to destroy it. But others at least purport to believe that Critical Race Theory should be taught, it just shouldn't be the only thing that is taught. For instance, David Bernstein of the "Jewish Institute for Liberal Values", a prominent anti-CRT voice in the Jewish community, took the position that any school which teaches a "traditional" narrative about civil rights should also teach a CRT perspective.

I absolutely believe any school that teaches a traditional narrative should teach a CRT based approach as well. I don’t know if there are more schools in the traditional category.

— David Bernstein (@DavidLBernstein) January 30, 2022

Now here's the thing. If your opinion is that every school should teach both a "traditional" and "CRT" style approach to civil rights, you are advocating for a position that is way to the left of the status quo. The vast majority of primary and secondary schools in the United States do not teach "CRT" at all. In some small number, you might get a CRT-influenced approach in conjunction with more traditional accounts. The number of students who are only being exposed to CRT, and no other perspective, is absolutely negligible. Objectively speaking, if your view is "students should hear both traditional and CRT views", you should be pushing for far more inclusion of CRT into public school curricula than is present in the status quo.

In other words, the entirety of the barrier to getting to the world Bernstein claims he wants to see comes from folks like the Speaker of the Wisconsin Assembly, who's trying to get the University of Wisconsin to rescind its hiring of respected scholar Jennifer Mnookin as Dean because Mnookin (this is a direct quote) "supports critical race theory being taught on campus". It's Texas passing laws limiting what can be taught in the classroom with the express goal of seeking to "abolish" CRT. It's Florida with a veritable cavalcade of legislation seeking to target and suppress "woke" ideologies.

Yet Bernstein, like the ill-informed respondent on foreign aid, has adopted a politics that sprints off in the exact opposite direction from where he claims he wants to go, because he has a wildly off-base assessment of how common Critical Race Theory is. He thinks CRT is everywhere, so getting to a position of even-handedness means pushing back against CRT's hegemony, even if it means making common cause with some unsavory actors. The reality is that CRT is still relatively obscure for most Americans, and so getting to evenhandedness would mean a more aggressive deployment of CRT into the American educational curriculum than would be dreamed by even the philosophy's most fervent supporters. 

Is he actually that ignorant about the true (non-)prevalence of CRT in the American educational system? I think he probably isn't; but there is something to be said for a certain type of elite who forgets the world exists more than 10 miles beyond Brooklyn and so confuses what is commonplace in a Williamsburg coffeeshop with the national status quo. A little of column B, a little (a lot) of column B, I'd wager. 

When "All" Isn't Enough

The purpose behind "All Lives Matter" was not to include "Black Lives Matter", but in more universalistic fashion. To the contrary, if "All Lives Matter" ever was understood as including Black lives, it would be a failure as a slogan. "All Lives Matter" exists entirely as a reflection of conservative rage at the idea that Black people and other minorities might feel included and valued; if a motto of that form ever actually did start to carry the public meaning of including non-White Americans, the polemicists who had been pushing it yesterday would tomorrow rebel against it just as hard.

Case in point: Marathon County, Wisconsin, which just rejected a resolution which would have declared it "a community for all" (H/T):

“When we choose to isolate and elevate one group of people over another, that’s discrimination,” said Supervisor Craig McEwen, a retired police officer who is white [and voted against the resolution].

[...] 

The “community for all” story began last summer when a small group of county officials began drafting a resolution they hoped would acknowledge disparities faced by local people of color. The original title, No Place for Hate, was deemed too inflammatory, so it was renamed A Community for All. 

[...]

“They’re creating strife between people labeling us as racist and privileged because we’re white,” Supervisor Arnold Schlei, a 73-year-old retired veal farmer who has been on the county board for 11 years, said in an interview. “You can’t come around and tell people that work their tails off from daylight to dark and tell them that they got white privilege and they’re racist and they’ve got to treat the Hmongs and the coloreds and the gays better because they’re racist. People are sick of it.”

He and others opposing the resolution argued that to acknowledge disparities faced by people of color would tilt social advantages to their benefit. The word “equity,” which was included in the resolution, served as a trigger for many, who made the false claim that memorializing it as a goal would lead to the county’s taking things from white people to give them to people of color.

Those opposed to the resolution made far-reaching claims about its potential impact. The local Republican Party chairman, Jack Hoogendyk, said the resolution would lead to “the end of private property” and “race-based redistribution of wealth.” Others have argued that there is, in fact, no racism in Marathon County, and even if there was, it’s not the county board’s business to do anything about it.

"A community for all" is semantically virtually identical to "all lives matter". The only difference is not in the words, but in the publicly understood meaning -- the former understood as a measure signaling the inclusion of non-White members, the latter understood as a slogan reacting against the inclusion of Black people. And that difference made all the difference: even though its rhetoric was explicitly a compromise for those for whom "No Place for Hate" was a bridge too far, "A community for all" was opposed with the same fury and fervency as Black Lives Matter was.

And then they have temerity to say racism doesn't exist.

The Wisconsin Supreme Court Upset

Liberal challenger Jill Karofsky ousted conservative incumbent Justice Daniel Kelly, slicing the right-wing majority on the court to a 4-3 margin. The race was heated because state Republicans insisted that it must go on as scheduled in spite of the coronavirus epidemic making voting positively dangerous, then fought tooth-and-nail to make sure as many absentee ballots went uncounted as possible (they got an assist from the U.S. Supreme Court on that one). All this notwithstanding, Karofsky ending up winning by 10 points -- a frankly crushing margin given the history of Wisconsin statewide races and the fact that she was a narrow underdog. Some of the county data coming from this race -- Karofsky winning Kenosha County, for instance -- will undoubtedly make state Republicans very nervous about November (and it should).

For his part, Justice Kelly is best known around these parts for authoring perhaps the worst argument I've ever seen against affirmative action. It managed to standout for incompetence even in the hyper-competitive "comparing racial justice measures to slavery" arena, which truly is something.

Of course, the person Kelly replaced literally tried to choke out one of his colleagues, so he still might have been a step up given who came before. Fascinating place, the Wisconsin Supreme Court is. Anyway, I fully expect Judge Karofsky to continue that positive momentum and be a force for good and the rule-of-law in her tenure on the Court.

What Last Night's Election Results Tell Us About 2020

There is a real chance Donald Trump will be re-elected.

I think a lot of Democrats haven't really processed this, in the same way we didn't process the possibility that he could be elected in 2016.

Between viewing the initial election as a fluke, and being buoyed by 2018's "blue wave", it's easy to think that Trump is destined to be a single-term president.

But I'm not sure. And I think some of last night's election results -- specifically, the Wisconsin Supreme Court race (in recount territory, but with the Republican candidate up by about 6,000 votes) and a Pittsburgh-area Pennsylvania state senate special election (a Democratic red-to-blue flip) -- can give us some hints about the 2020 electoral landscape.

Let's start with the basics: it is very likely that Democrats will do worse in 2020 than they did in 2018. Midterm elections often represent high water marks for the opposition party, and a monster performance in 2018 doesn't make 2020 a gimme for Democrats anymore than huge GOP victories in 2010 signaled a defeat for Obama in 2012. One could argue that Democratic constituencies tend to drop off in the midterms, but I think that effect is more than canceled out by the advantages midterms give to the opposition party.

And while Trump remains relatively unpopular, there hasn't been the widespread, broad-based repudiation of him that one might have hoped for were we an actually functioning liberal state -- indeed, his net approval rating has been remarkably stable for the past year at roughly -10 (currently it's 42/53). That's obviously pretty bad, but it's not disastrously so -- it hasn't reached that tipping point where "unpopular" turns into a rout.

So my baseline assumption is that Republicans are likely to overperform compared to 2018, and the question is how much Democrats can arrest that trend.

Begin by looking at Wisconsin. If 2018 gave us a narrow Democratic victory in the marquee statewide match up (the Governor's race), that doesn't give us a lot of breathing room in 2020. And lo and behold, the statewide race in 2019 -- a pivotal one, since it effectively determines the partisan composition of the court ahead of 2020 redistricting -- ends up yielding what looks like a squeaker GOP victory. And this was an election where the Democratic nominee had a lot of institutional support (including a massive spending edge), whilst the Republican had been hammered for anti-LGBT views.

This, to me, bodes poorly for 2020. In my "trendlines" post assessing the political movement of each (well, most) states, I put a big ol' question mark next to Wisconsin, and this is part of the reason why. Yes, beating Scott Walker felt great. But barely doing it in a year like 2018 actually wasn't that great a sign. Given Minnesota's increasingly-reddish tilt (albeit from a bluer base), it was hard to imagine that its more conservative neighbor would be more favorable, on net, to the Democratic Party in the immediate future.

A similar problem afflicts Florida. It was perhaps the only "swing" state where Republicans didn't see any drop off in support from 2016 to 2018. So it's hard to imagine that it will be friendlier turf for Democrats in 2020, where they're almost certainly going to have less momentum than they did in the midterms.

That's the bad news. Onto the better news: the Pennsylvania result. This was the first red-to-blue special election flip in 2019, and it was a good one to get -- and not just because it puts the Pennsylvania State Senate in play in 2020.  Of all the "blue wall" states that weren't in 2016, Pennsylvania to me seems the most likely to return to the Democratic column in 2020 -- and obviously that's a must-win state for the Democratic Party. And results like this show that Democrats are solidifying their appeal in districts like this one (suburban, recently light-red, well-educated, etc.). That bodes well for Democratic performance even outside of Pennsylvania where there is a considerable cache of voters in districts that share this profile.

So that's the good news. But where does that leave us? Suppose Wisconsin and Florida go red, and Pennsylvania and (we'll say) Michigan return to team blue. If everything else holds (including Trump sniping an electoral vote off Maine), that's still a 270-268 GOP victory. If Maine goes blue down the line, then it's a tie.

Where could Democrats pick up another state? The place where they've seen the best recent trendline is Arizona, followed by maybe North Carolina. But as heartening as Arizona's recent blue-ish shift has been, do you really want to hinge our presidential prospects on a Democratic winning Arizona for just the second time since 1952?

I actually think the popular vote -- for what that's worth, which is basically nothing -- is in good shape for Democrats, if only because of the huge Democratic margins we're likely to see in California. But the electoral college is a different story. The fact is, the tea leaves aren't looking good for Democrats winning either Florida or Wisconsin in 2020, and without those two states the map suddenly looks really, really difficult.

Nazi Saluting Students Won't Get Punished

The Baraboo (Wisconsin) School District has so decided, contending that it "cannot know the intentions in the hearts of those who were involved" and that any proposed discipline would violate the First Amendment.

I don't want to get into the merits of either these justifications. Hearts are notoriously hard to read (itself a good reason not to hinge our approach to discrimination on the fickle organ), and I'd have to do more research to feel confident appraising the merits of the First Amendment question (on the one hand, presumably the school's power is limited in cases of off-campus speech like this, on the other hand, remember "Bong Hits for Jesus"?).

All I want to say now is something I've said before: They would say it about Jews; they'd say it about others too. Sometimes one hears claims to the effect that "nobody would ever tolerate such-and-such behavior if it was targeting Jews", as a claimed contrast to cases where social actors are tolerating some form of bigoted behavior which targets another group. It's an ugly bit of victim-competition which attempts to cast Jews as having yet more unearned privileges and advantages that set them apart from the truly marginalized.

But, as we see here, people do target Jews with hateful acts, and other people do let them get away with it. The myth that -- alone amongst the oppressions -- any hostile act towards Jews (and -- the implication often goes -- many acts that aren't really hostile at all) is met with immediate and overwhelming punitive firepower is just that: a myth. It isn't reflected in reality, and it shouldn't be relied upon.

Yet More College Student Entitlement

A student at the University of Wisconsin-Stevens Point is suing her poetry professor and demanding that a court award her an "A" in the class (as well as suspend or fire the teacher).

Man, I am so sick of entitled millennial brats demanding special-snowfl -- what's that?

The student is 59 years old? And her complaint centers around the class being too focused on LGBT poetry?

Ahem. As I was saying: it's about time that someone stood up to PC-culture run amok at our public universities, which are after all funded by taxpayer dollars. Maybe if universities started to treat their students more like customers, we'd see less of these outrageously offensive and triggering classes, and more attention to "improv[ing] a student's welfare".

.... Can You Imagine a Class Just for MEN?

The University of Wisconsin-Madison is offering a workshop for male students to discuss issues of masculinity in American culture and their own lives. Wisconsin Republicans are unhappy about it. This comes on the heels of Wisconsin Republicans also being unhappy about a UW class on Whiteness. Clearly, we're moving out of the "college is about challenging young minds with uncomfortable ideas, not coddling them with safe spaces" phase of the GOP/academia cycle, and into the "it's outrageous for colleges to offer these ideas that I find outrageous" portion.

But I'm actually even more perplexed that this class is triggering the reaction. After all, isn't the ur-conservative retort to all these ethnic studies classes and "safe spaces" something like "can you imagine if someone proposed something like this for men/heterosexuals/whites"? And then Wisconsin goes and does exactly that, and the right still goes through the roof!

"Perplexed" is obviously the wrong word here, since that implies I thought there was any coherent ideology undergirding GOP objections, but it's still worth noting.

At Least Get Your Stupid Slavery Analogies Right

Scott Walker's newest appointee to the Wisconsin Supreme Court, Daniel Kelly, had the following to say about affirmative action:

"Affirmative action and slavery differ, obviously, in significant ways," Kelly wrote. "But it's more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same."

First, let's clarify that this passage wasn't something Kelly wrote as a drunk sophomore in his university's "alternative" political magazine. He wrote it in 2014, and he included it in his Supreme Court application packet. This is an argument he is proud of.

And that aggravates me. For the obvious reasons, sure, but more because this isn't even the right way of making an idiotic analogy between affirmative action and slavery. The right way of doing that is something to the effect of "both involve the distribution of social benefits and burdens on the basis of skin color." That wouldn't make the conclusion that "Morally, and as a matter of law, they are the same" any less appalling, but at least it would have an internal consistency to it.

But Kelly can't even get that right. Affirmative action very rarely "force[s] someone into an unwanted economic relationship." Much the opposite -- typically affirmative action programs are voluntarily adopted by given institutions (e.g., the University of Wisconsin), and then challenged by external actors who want them instead to use a colorblind admissions/hiring process -- or, to put it another way, want the judiciary to force them into an economic transaction that differs from the one that the university or business would want to enter into if left to its own devices.

This is why I find it so baffling when libertarians say they oppose affirmative action. It takes either a private or quasi-private (where a governmental actor is behaving as a "market-participant") decision, and strips it from the normal decisionmaker in favor of a blanket command-and-control rule imposed by governmental fiat. Libertarians should hate that!

Actually, it seems evident that Kelly simply got his issues confused. The argument he's making has been applied to cherished elements of the civil rights project before -- but it's the Civil Rights Act of 1964 that's been the target (Rand Paul made precisely the argument that this law, by prohibiting racial discrimination in various economic transactions, "force[s] someone into an unwanted economic relationship."). So really Kelly should be arguing that its the Civil Rights Act that is "[m]orally, and as a matter of law" the same as slavery.

In conclusion, Kelly probably won't choke anybody, so he'll still likely be a net boon on the Wisconsin Supreme Court compared to the guy he's replacing.

Wisconsin State Senate Evens Up

In a stunning announcement, Republican State Sen. Pam Galloway -- targeted in the latest round of Democratic recall efforts -- is resigning her seat (due to familial health concerns). This causes the State Senate to even up at 16 members apiece, depriving Republicans of their majority.

Not only does this temporarily stop the Scott Walker/Fitzgerald Bros. steamroller that's been ramming through right-wing legislation (until the next round of elections, which will more permanently settle who is in charge of the chamber), but it could have a huge effect on redistricting. A Republican gerrymander is currently in front of the courts. If the Court rules the maps unlawful, they get kicked back to the legislature -- which, no longer unified under GOP control, won't be able to pass a map anywhere near as GOP-friendly as the one currently being pushed. That means either there will need to be a compromise map, or the courts will draw one -- either way, gerrymander (likely) averted.

Influential Roundup

I had class today, and one of my students remarked that the Derrick Bell piece I assigned (Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976)) was one of his favorites of the year. Of course it was -- Bell was a brilliant thinker who will be missed.

* * *

Rush Limbaugh won't apologize to LRA victims after defending the terrorist cult group as simply a group of Christians that Obama wanted to oppress.

Tom Friedman assesses Barack Obama's foreign policy successes and failures.

The momentum to recall Scott Walker may have stalled, but it is still looking like a razor-tight race.

Some people have promoted this attack on nation-states as "the idea that will not die", but I'm supremely unconvinced. It is hardly the case that multi-ethnic states -- even those without weak governmental structures -- have been paragons of stability and harmony. And there are plenty of post-national movements that still have quite their share of blood on their hands.

San Francisco is a very, very strange place.

85-year old state senator releases a Rocky ad. Oh for cute.

Re: Occupy DC: "When the Jews show up, you know it's serious."

The mystery of why Rep. Paul Ryan (R-WI) is seen as some sort of wonk, rather than a nutjob hack, endures.

Take Two

Some might have forgotten that there were two recall elections in Wisconsin today as well, both targeting Democrats. The AP has called both races for the incumbents (one won by a 58/42 margin with all precincts reporting, another is up 54/46 with 79% in). The net result is that Democrats gained a total of two seats in the state Senate, winning 2/6 of their recall attempts while Republicans went 0/3 (there was another failed recall attempt against a Democrat earlier in the cycle).

Republicans still maintain a one seat edge in the state senate. All eyes are currently on Sen. Dale Schultz (R), easily the most moderate member of the GOP caucus (and a "nay" vote on Governor Walker's union busting plan). Schultz has already declared he won't switch parties, but the possibility he might defect on individual votes may be enough to stem some of the worse abuses of the Wisconsin Republican leadership.

Who's Afraid of the Big Bad Recall?

Today's recall elections in Wisconsin are starting to wrap up. As of now, three Republicans (Sheila Harsdorf, Rob Cowles, and Luther Olsen) have held onto their seats, while two (Dan Kapanke and Randy Hopper) are out. One more seat (Alberta Darling's) is still up in the air, but it looks like once again Waukesha County will be the death of us.

So, we won two out of six, three if we're lucky. Obviously, this affects the narrative considerably, because three is the magic number needed to take back the State Senate.

But regardless, I think the recalls might have achieved one thing -- spooking some GOP caucus members. After all, there are quite a few state senators who were not subject to recall this time around (there is a minimum amount of time they must serve after their election before they can be recalled). And many of them are reasonably vulnerable -- at least six are in seats more liberal than all those challenged today, save Dan Kapanke's. They have to know that they're next in line.

Will it cause them to moderate a bit? I don't know. Republicans tend to be better at whipping their wobblies into line. But it can't hurt. And even if we don't take back the chamber, it definitely gives Democrats far more leverage.

Recall Madness

Is there any chance that the Wisconsin electoral system won't be permanently rejiggered so that recall elections are always happening one year after someone is elected? I'm not saying the challengers will always win, but it's just not that hard to muster the signatures to get a recall race on the ballot.

Anyway, we're reaching the home stretch of the Wisconsin State Senate recall elections. Democrats need to win a net three seats to take back the chamber; my original prediction was that they'd get two. Dan Kapanke has been a dead man walking since the race started, and Randy Hopper is scandal-plagued and thus unusually vulnerable. The question is who would get them over the hump.

If internal polls are to be believed, the answer is Luther Olsen. Along with Kapanke and Hopper, reports are the Democrats polls have the good guys ahead against him as well. The same story also indicates that things are razor-thin against Robert Cowles, Sheila Harsdorf, and Alberta Darling. I don't have the specific numbers in front me, so I don't know how close is close, but unlike many of her peers Darling started off the recall campaign with her head above water, topping her hypothetical challenger 52/44. But she's been shooting herself in the foot with statements like claiming that people making over $250,000 "aren't wealthy people".

It's definitely the case that Republicans are nervous, as they've been hard at work trying to suppress the vote by sending out false information to Democratic voters about voting absentee while posing as a government agency. Sounds like a decent place for the DOJ to throw an elbow to me.

Making it Worse on Yourself

Wisconsin Scott Walker (R), showing that his astounding lack of empathy does not extend only to the working class, is attempting to withdraw his defense of a state law permitting same-sex couples hospital visitation rights, on the grounds that it contravenes a state constitutional ordinance barring same-sex marriage, as well as "legal status[es] identical or substantially similar to that of marriage for unmarried individuals."

Obviously, there is a parallel to the federal Department of Justice declining to defend the Defense of Marriage Act on their belief that it violates the federal constitution. Procedurally speaking, I don't have strong thoughts on when, if ever, it is appropriate for the executive to not defend a duly-enacted law. But that debate does not obviate the substantive difference between seeking to affirm the equal human rights of all Americans, and trying to denigrate and destroy those families Scott Walker thinks are comprised of second-class citizens. I also find it notable the way conservatives seamlessly pivot between noting that marriage isn't a prerequisite for such things as hospital visitation rights (to demonstrate that there is no rights-violation from the marriage proscription), while simultaneously fighting tooth-and-nail to prevent gay couples from enjoying those privileges. It's rather dizzying.

In any event, if I were a judge hearing this argument, I'd be sorely tempted to invoke the doctrine of constitutional avoidance to reject Governor Walker's position. The doctrine of constitutional avoidance basically counsels courts to interpret ambiguous statutory (or here, state constitutional) provisions in ways that "avoid" causing constitutional problems (notably, this doctrine does not require that the Court affirmatively state that the "problematic" interpretation necessarily would be unconstitutional, only that it raises a significant specter of constitutional controversy). The more bans on gay marriage impinge on specified, concrete rights and privileges of gay couples, the harder it is to maintain that they don't constitute a prima facia equal protection violation. I think that the text of the Wisconsin amendment is, at best, ambiguous as applied to hospital visitation privileges, so it seems like a prime candidate for avoidance. And, of course, phrasing the ruling as an exercise in avoidance helps build precedent for what should be clear -- the linkage between bans on gay marriage, and restrictions of the rights of homosexual couples, raises real equal protection concerns.

Moot Court Finals Roundup

Good luck to my friends participating in the final round of the University of Chicago's moot court competition. The three judge panel is comprised of Judges William Fletcher (9th Circuit), Diane Sykes (7th Circuit), and Jeffrey Sutton (6th Circuit). At a lunch talk featuring the three, the host started by introducing the panelists: "To my far right -- physically at least -- Judge William Fletcher."

* * *

Group pushing a resolution honoring the King James Bible also thinks Obama may be the anti-Christ. As The Agitator puts it: "This one may be more difficult to disprove."

Releasing the birth certificate doesn't satisfy the "where's the birth certificate?" crowd. Huge surprise.

Jonathan Freeman remarks on his experience "role-playing" as a Palestinian negotiator (the Israelis were represented by persons affiliated with pro-Palestinian perspectives).

Wisconsin Republicans may finally just repass the anti-union bill, which is tied up in court challenges due to them missing some procedural hurdles as they tried to ram in through minus Democratic presence. This would end the legal problems, but it would return the bill to the news -- hardly what the six Republicans facing recall want at the moment, I imagine.

TNC -- who doesn't make the charge lightly -- declares the wild anti-Obama conspiracy theories, from birtherism to ridiculous aspersions on his academic record, as racism of the bone. Incidentally, I think it was Matt Yglesias on Twitter who observed that, if Obama was an "affirmative action" admittee to Harvard Law, that's arguably the single best case study for the validity of the program, seeing as he graduated magna cum laude, was President of the Law Review, and, oh yeah, became President.

Right-wing Israeli organization honors a Rabbi who urged Jews not to rent apartments to Arabs (the award was presented by Daniel Hershkowitz, a minister in the current Israeli government representing one of Bibi's furthest-right coalition partners).

I'm pretty sure Rick Santorum's accusation that Planned Parenthood practices eugenics is going to be revealed as one of those "not intended to be factual statements" (where, as in Kyl's similar gaffe, "not intended" means "absolutely intended").

Is there anything distinguishing this bill from that overturned in Romer v. Evans?

The Wisconsin Eight-Ball

As the Wisconsin recall filing deadline approaches, it looks as if the final score will be five Republican and three Democratic state senators being placed back on the ballot.

Some of these candidates are more vulnerable than others, and my early call is that Dems score a net pickup of two seats (putting them one short of a majority). I think all the Dems will hold on to their seats, and Democrats will pick up Kapanke's seat and then one more amongst the pack. But obviously, I hope I'm wrong and they're able to get over the hump.

Apple of My Eye Roundup

In NYC for my cousin's wedding. Big weekend for her, and decently large one for me -- this is Jill's roll out to my dad's side of the family. Wish us luck!

* * *

I don't care whether they're actually happy or not, if I were the Tea Party, I would have declared victory on the budget battle.

Former top NOMer comes out in favor of full marriage equality.

The first Democrat officially jumps into the recall race, taking on highly endangered state Sen. Dan Kapanke (R-La Crosse).

I don't know whether anyone was thinking of reading Schools for Misrule based on David Bernstein's recommendation, but allow me to say: don't. It joins a Michael Moore volume as tied for the worst (and most nakedly hackish) non-fiction book I've ever read. And I'm someone who supports increased conservative representation in legal academia.

Can someone tell me what race-selective abortion even is? "Evidence shows that minorities are targeted for abortion" -- what, do they think African-American couples are getting pregnant, find out their baby will be Black, and are hoping for better luck next time? I find this utterly baffling.

Black student group condemns Israel-as-apartheid analogies. It's a group I haven't heard of -- it appears to be a grassroots organization centered on HBCUs, and has been strongly supported by AIPAC.