Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

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Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions

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In most states same-sex marriage has become the law of the land by judicial decision. In a smaller number, the institution has been recognized by acts of the state legislature. Although there were numerous public referendums attempting to ban same sex marriage before 2008, in recent years only twice have the voters of a state had the opportunity to vote directly on the recognition of marriages between individuals of the same gender.

Both opportunities came in November 2012, as voters in Maryland and Washington State confirmed their state’s recognition of a new definition of marriage. However, both episodes revealed a sharp divide between the majority views of those who live in major metropolitan areas and those who live in less densely populated areas.

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Paul Ryan Speaks Well of Obama — on One Issue

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Kind words for Democratic President Barack Obama from Rep. Paul Ryan, a leading figure in the Republican Party and chair of the House Ways and Means Committee?

Yes – but on only one subject, the pursuit of trade agreements with countries in Europe and Asia. And a you might include tax reform, where there may be some room for bipartisan cooperation, Ryan said.

In an “On the Issue with Mike Gousha” session at Eckstein Hall on Monday, Ryan discussed a wide range of subjects, from his thoughts on fighting poverty to Obama’s handling of foreign policy (no kind words on that score) to Ryan’s decision not to run for president in 2016. Read more »

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Karl Marx on Religion

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marxReligious people sometimes express disdain for Karl Marx and his philosophies because he supposedly characterized religion as “the opiate of the masses.” It turns out that this isn’t exactly what Marx said. Furthermore, he wasn’t necessarily negative about religion and its role in social life.

Appearing in Marx’s projected but never completed A Contribution to the Critique of Hegel’s Philosophy, Marx’s words on religion are of course in German. Read more »

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Immigration Reform and the Challenge of Democratic Self-Government

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Category: Immigration Law, Political Processes & Rhetoric, Public
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Mortar_of_Assimilation_Citizenship_1889News reports indicate that President Obama will soon announce how he plans to use Executive Orders to implement some aspects of Immigration Reform, due to the failure of Congress to address the subject legislatively.  I recently had the opportunity to participate in a program on Immigration Reform at the Law School on November 5, 2014, along with Stuart Anderson, the Executive Director of the National Foundation for American Policy and an Adjunct Scholar at the Cato Institute.  The event was sponsored by the Law School Chapter of the Federalist Society, the Marquette Immigration Law Association, and the International Law Society.  I want to thank Mr. Anderson for sharing his insights with the law students.  Interested readers can click here to find a recent article by Mr. Anderson.  What follows are my prepared remarks.

I have a daughter who is turning 21 next month.  When a child reaches that age, parents start to ask themselves questions.  Will my daughter bring someone home with her one day, and announce that she is engaged?  How will I react if the person she brings home belongs to a different faith?  How will I react if he is of a different race?  How will I react if “he” is a “she?”

These are questions that tap into deep emotions, even if my rational brain tells me that the answers to these questions don’t matter.  I know that my response to such a situation should be compassionate, and loving, and focus on my daughter’s happiness.  But I also know that I may feel threatened or hurt or disappointed, without consciously wanting to.  Maybe part of the problem is that I can’t control who my daughter brings home.  To a certain extent, who becomes a member of my family is her choice, not mine.

Immigration is about membership in our national family.  It raises the same deep emotions that marriage raises within the family.  And just as we can’t always choose who our children will marry, we also can’t always control who joins our national family.  And Immigration policy needs to be rational, data-driven, and compassionate, and not based on knee jerk emotions.

Simple answers to complex social and economic problems don’t work.  One challenge we face as a nation is that we share a longstanding geographic connection with Mexico.  U.S. employers have turned to Mexican citizens for seasonal labor needs for a very long time.  People have established migration patterns that persist through generations of the same family.  These behaviors won’t change just because we tell people to stop.  We need to address the underlying incentives and motivations for these behaviors. Read more »

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Here’s What We Don’t Know About Election Day

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By now, we’ve seen the ads.  We’ve heard the talking points. We have at least some idea of which policy positions Scott Walker and Mary Burke favor or oppose.  But with only hours remaining before the votes are counted, there is still plenty we don’t know about the 2014 gubernatorial election in Wisconsin.

Some of it has been hashed over pretty thoroughly.  Turnout, for instance.  Simply put, the Burke campaign needs less-likely Democratic voters to go to the polls in numbers that more closely resemble a presidential election, or at the very least, the 2012 recall election for governor.  Three million people in Wisconsin voted in the November 2012 presidential contest.  Two-point-five million voted in the June recall election.  If turnout looks more like the governor’s race of 2010, when 2.1 million people went to the polls, the Burke campaign will face enormous odds, given historically strong turnout by Republican voters in the state.  But turnout is hardly the only “great unknown” Tuesday.  Here are a handful of others to consider.

1) Do Democrats return to the fold?  Exit polling data from the June 2012 recall election suggests a number of Democrats voted for Governor Walker because they didn’t agree with the recall. Even AFL-CIO President Richard Trumka told me recently that some of his members supported Walker in 2012 because of their discomfort with the recall.  And Trumka is hardly a fan of the governor.  Walker acknowledges that those voters exist.  The question is will they stick with him in this election, or return to their Democratic-voting ways.  Read more »

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Independence of Voters Yields Surprises in Law School Poll Results

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It probably shouldn’t be such a surprise that independent votes would show their independence. But the Marquette Law School Poll results released Wednesday in an “On the Issues with Mike Gousha” session at Eckstein Hall clearly caught people in the room, as well as far beyond the room, by surprise. Independent voters were largely the reason why.

Two weeks ago, the poll put Republican Gov. Scott Walker ahead of Democratic challenger Mary Burke by five percentage points among likely voters. This time, the two were in such a dead heat among likely voters that the exact same number of poll respondents picked Walker and Burke (380 each). That made for a 47%-47% tie, with the scattered responses making up the remainder.

What changed? Among voters who labeled themselves independents, Walker led in the prior Marquette Law School Poll, conducted late September, by 53% to 40%. But in the new poll, conducted from Oct. 9 through 12, Burke was favored by 45% of independents and Walker by 44%. Professor Charles Franklin, director of the Marquette Law School Poll, considered that a significant shift and an indication that there were still voters out there who are persuadable by either candidate – potentially enough to decide the election. Read more »

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Attorney General Candidates Raise Profile of Low-Key Race in Eckstein Hall Debate

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Near the end of an hour-long debate Sunday between the two candidates for Wisconsin attorney general, moderator Mike Gousha asked if either wanted to bring up something that hasn’t gotten enough attention during the campaign.

Democrat Susan Happ, the district attorney of Jefferson County, answered first and talked about consumer protection.
Republican Brad Schimel, district attorney of Waukesha County, answered that the entire race hadn’t gotten enough attention. It’s an important race, he said, and there should be more awareness of it.

Indeed, the race has not sparked widespread public attention. A Marquette Law School Poll released on Oct 1 found that about four out of five of those polled did not have an opinion of either Schimel or Happ. Overall, the race was close, according to the poll, but people expressed an opinion on who they would vote for only in response to a question that identified each candidate by party.

With a little over three weeks to go until the Nov. 4 election, the debate Sunday, in the Appellate Courtroom of Eckstein Hall, may have helped give awareness of the race a boost. The debate, co-sponsored by Marquette Law School and WISN-TV, was broadcast live across Wisconsin. The candidates are scheduled to take part in two more debates. Read more »

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The Marquette Law School Poll’s Version of the Sounds of Silence

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The big story coming out of the release Wednesday of a new round of results from the Marquette Law School Poll was that Republican Gov. Scott Walker had opened up a bit more distance over Democratic challenger Mary Burke that was seen in recent rounds of polling. Among likely voters, Walker was supported by 50% and Burke by 45%. As Professor Charles Franklin, director of the poll said, this is still a close race. But there were indicators of some trends in Walker’s direction.

Both in the news media (for sure in Wisconsin and, in some cases, nationally) and within the world of political activists, the poll results will be analyzed carefully to see what people are saying. The Marquette Law School Poll has become the principle source of information on Wisconsin public opinion on major issues, especially political races.

But instead of focusing on what people are saying, permit me here to focus on what people are not saying. Politics, even in the midst of a heated election season, is not of interest to everyone. So here are a few examples of non-involvement: Read more »

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New Marquette Law School Poll Puts Enthusiasm of Voters in Spotlight

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How important is enthusiasm among voters in determining the outcome of an election? Very, and the closer the election, the more important enthusiasm usually is because it indicates who will actually turn out to vote.

So how important are the “enthusiasm” results in the Marquette Law School Poll released Wednesday? That remains to be seen, starting with keeping an eye on the remaining rounds of polls that will be released before the Nov. 4 election.

But it is a sure bet that people working in the campaigns of Republican Gov. Scott Walker and his Democratic challenger, Mary Burke, are paying close attention to the new results. While the poll showed that the race for governor remains essentially tied, there was an uptick in how enthusiastic Walker supporters are and in the percentage of people who identified themselves as Republicans.

Overall, the poll found that Walker and Burke are tied at 46% each among registered voters. Among those considered likely voters (people who said they are registered and are certain to vote), Walker was supported by 49% and Burke 46%. In both cases, the outcomes were within the poll’s margins of error.

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The Likely and the Less Likely — Insights from the New Law School Poll

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The Registered and the Likely – maybe that could be the name of a political soap opera, although I doubt it would attract high ratings in the general public. But it would attract high ratings among those involved in election campaigns and those eager to understand those campaigns and politics overall.

New results from the Marquette Law School Poll, released Wednesday, put the Registered and the Likely in the spotlight. Among 815 registered voters across the state, Republican Gov. Scott Walker led Democratic challenger Mary Burke 47.5 percent to 44.1 percent in the race for governor. But among 609 participants in the poll who were labeled likely to vote in November, Burke led Walker, 48.6 percent to 46.5 percent.

So who’s ahead, Walker or Burke? The best answer is that it’s too close to say – by both measures, the race is within the margin of error of the poll. Read more »

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Prox and the Poll

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Senator ProxmireHe died more than nine years ago, but the spirit of the late U.S. Senator William Proxmire lives on in Wisconsin. The proof can be found in the latest Marquette Law School Poll, which suggests that someone like Proxmire, a political maverick if there ever was one, might play well in Wisconsin today. More on that in a moment, but first a couple of thoughts on what this latest survey tells us.

Today’s Marquette Law School Poll tends to complicate the national narrative about Wisconsin: that we’re a hyper-polarized state with voters split almost equally between Republican red and Democratic blue. While voting patterns certainly seem to support that claim, the poll results point to an electorate with a considerably more nuanced view of the world, replete with mixed messages that are sure to cause a lot of head-scratching among political pundits. Case in point: the poll finds that 54 percent of voters feel the state is moving in the right direction, which for the last three-and-a-half years, has been a distinctly conservative one. But on a number of key issues, Wisconsin voters agree with positions favored by Democrats. They support a hike in the minimum wage and accepting federal dollars to expand Medicaid. They don’t like outsourcing. They think tax cuts favor the wealthy. They want to know more about whose deep pockets are funding political campaigns. Past polls have also shown majority support for repealing the state’s same-sex marriage ban.

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