Alan J. Borsuk – Marquette University Law School Faculty Blog

New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More

By: Alan J. BorsukOctober 29, 2018Legal Scholarship, Marquette Law School, President & Executive Branch, Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment»

The bald eagle symbolizes the strength of the United States, not least when the country uses its military power. The eagle on the cover of the Marquette Lawyer magazine, Fall 2018 issue, shows the determination, even the fierceness, of the eagle during times of war.

But the process involved in deciding where and how that eagle flies is more complex than many people may realize. In the cover story in the new Marquette Law School magazine, David J. Barron, judge of the U.S. Court of Appeals for the First Circuit and formerly a Harvard Law School professor, insightfully examines three chapters in American history when a president and leaders of Congress had differing positions on use of power. Barron focuses on three of the nation’s most revered presidents: George Washington, Abraham Lincoln, and Franklin D. Roosevelt. The article is an edited and expanded version of the E. Harold Hallows Lecture that Barron delivered at the Law School in April 2018. To read the article, click here.

Interspersed throughout the article are reactions by three individuals with different perspectives on the relationship between Congress and the commander-in-chief: Russ Feingold, former three-term U.S. senator from Wisconsin and currently distinguished visiting lecturer in international studies at the University of Wisconsin–Madison; Julia R. Azari, associate professor of political science at Marquette University and a scholar of the American presidency; and Benjamin Wittes, editor in chief of Lawfare and senior fellow in governance studies at the Brookings Institution.

Barron’s article, together with the reactions, is only one of the thoughtful and thought-provoking pieces in the new Marquette Lawyer. Elsewhere in the magazine: Continue reading “New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More”

How the Basic Journalism of PolitiFact Has Changed the Political Landscape

By: Alan J. BorsukOctober 23, 2018Media & Journalism, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment»

In 2007, with President George W. Bush’s second term as president coming to an end and Vice President Richard Cheney not aiming to succeed him, open races for both Democratic and Republican nominations for president were developing. Bill Adair thought it was time to bring more fact-checking into American political journalism. Adair, then a Washington-based journalist with the St. Petersburg Times (now the Tampa Bay Times) began a project that the newspaper called Politifact.

The idea took off and, more than a decade later, PolitiFact and other political fact-checking efforts have become an important part of the national journalism landscape. PolitiFact is now an independent non-profit organization. The Milwaukee Journal Sentinel became a partner with PolitiFact in 2010, ahead of the election that year in which Republican Scott Walker defeated Democrat Tom Barrett for governor, and continues to run PolitiFact pieces, with either national or local focuses, almost every day.

In an “On the Issues with Mike Gousha” program Tuesday at Marquette Law School, Angie Drobnic Holan, now the editor of PolitiFact and a part of its team since the start, and Tom Kertscher, who has worked on the Journal Sentinel’s PolitiFact team since its start, described the goals of what they do in terms core journalistic values. Continue reading “How the Basic Journalism of PolitiFact Has Changed the Political Landscape”

More Help Urged for Those Making “Re-entry” from Incarceration

By: Alan J. BorsukOctober 5, 2018Criminal Law & Process, Marquette Law School Poll, Public, Speakers at Marquette, Wisconsin Criminal Law & Process2 Comments

“When does the sentence end?“ Albert Holmes says he often faces that question as he works to help people who have been released from incarceration and who are re-entering the general community.

Holmes, president and CEO of My Father’s House, was one of the speakers Thursday, Oct. 4, at a conference at Marquette Law School that focused on what can be done to provide paths for more people in those situations to establish stable lives.

The conference, “Racial Inequality, Poverty, and Criminal Justice,” drew an audience that included two Wisconsin Supreme Court justices, several circuit judges, prosecutors (including Milwaukee County District Attorney John Chisholm), defense attorneys, and many who work in agencies that try to help those getting out of prison or jail or who are advocates on issues involved with the subject. Continue reading “More Help Urged for Those Making “Re-entry” from Incarceration”

Posley Offers Optimism on MPS’ Future, Driven by Emphasizing Basics

By: Alan J. BorsukSeptember 26, 2018Milwaukee Public Schools, Public, Speakers at Marquette1 Comment

You can’t build a home from the roof down. You have to start with the foundation and build upward. And that’s what Keith Posley, interim superintendent of Milwaukee Public Schools, is stressing in the early months of leading Wisconsin’s largest and most challenging school district.

Educators often get caught up in new programs and ideas for education that sound appealing, Posley said during an “On the Issues with Mike Gousha” program Wednesday at Marquette Law School. But education – and building greater success for MPS – needs to be start with teaching the basics so that all students learn to read, write and do math early in their school years. Add to that building good school attendance and the ability to work well with others and you have grounds for a bright future for kids and for MPS, Posley said.

Posley offered Gousha, the Law School’s distinguished fellow in law and public policy, and an audience of about 200, including many key figures in education in Milwaukee, an optimistic vision of what lies ahead for MPS.

“Milwaukee Public Schools is alive and well and we’re going to do great things,” Posley said. “Give me five years,” Posley said, and MPS tests scores in reading and math will be above the state average. Maybe it can be done in three, he added. Overall, MPS scores as of last year were far below state averages.

Gousha asked how patient people should be with seeing improvement in the overall success of MPS students. It will take some time to see results, Posley said, but people should see right away how energized Posley and MPS as a whole are in improving. “We have to move at a fast pace and I am moving at a fast pace, my team is moving at a fast pace.” Posley said. “I know exactly what needs to happen.”

He said, “Everyone knows if we have a strong Milwaukee Public Schools, we’re going to have a strong Milwaukee and a strong Wisconsin. . . . We’ve got to continue to work – to work until we can get to where we need to be.”

Posley proposed to the School Board during its budget work in the spring that large cuts be made in the central administration of MPS rather than cutting budgets in schools. Posley said he did that because “if we’re going to make a change, it’s going to happen in the classroom.” He said, “I have to put every ounce of money we have – I put 89 cents of every dollar we have — in the classroom.” His goal for next year is to raise that to 90 cents, he said.

Concerns were raised in a recent report from the Wisconsin Policy Forum about the long-term financial picture for MPS. Asked about that, Posley said MPS could use more money, but he would not be deterred by finances. “I’m going to make it happen with whatever I have,” he said. What will he do if MPS gets fresh revenue in upcoming state budgets? “I’ve created a wish list already,” he said. The list, he said, includes reviving an effort of about a decade ago called the Milwaukee Math Partnership and doing more to strengthen offerings for children from birth to five.

Posley grew up in a small town in Mississippi and was recruited for a teaching job in Milwaukee almost three decades ago. He said he expected to stay in Milwaukee for one year. But he loved working in schools and advanced from being a teacher to an assistant principal to a principal to a series of administrative positions before being named to head the system.

His willing to make a long-term commitment to this job? “Mike, this is home,” he said. “Mississippi is in the rear-view mirror.” Posley wants to drop the word “interim” from his title, a step the Milwaukee School Board is likely to take soon. He certainly is not acting like someone who intends to fill the job for a short time. “I have the steering wheel now, and I’m driving,” Posley said.

To view the one-hour video of the program, click here.

Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

By: Alan J. BorsukSeptember 20, 2018Political Processes & Rhetoric, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment»

Two experts on the United States Supreme Court expressed concerns Thursday during an “On the Issues with Mike Gousha” program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.

David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, “Things have become a lot more partisan in a way that I think is really damaging for the court as an institution.”

Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, “there was a consensus that we really have to kind of make sure that we take care of the court.” That meant approving well-qualified candidates who would be respected and do their jobs well, with less attention paid to their partisanship. That has eroded, he said.

“I think it has taken a turn for the much more partisan,” Strauss said. ”What’s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.” Continue reading “Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights”

A Milwaukee Native Describes His Work as the City’s Police Chief

By: Alan J. BorsukSeptember 13, 2018Milwaukee, Public, Speakers at MarquetteLeave a comment»

Ed Flynn was a complete outsider to Milwaukee. The city’s police chief from 2008 to 2018, he never lived in Milwaukee before he became chief, he left Milwaukee as soon as he was done, and some people questioned how much he was connected to the life of the city as a whole while he was serving as chief.

Alfonso Morales, Flynn’s successor, is a complete insider to Milwaukee. Born in the city, grew up on N. 33rd St., graduated from Milwaukee Tech High School, as it was then called (it’s now Bradley Tech). After graduating from Carroll College, he became a Milwaukee police officer and rose through the ranks until he was named chief in February 2018.

Flynn appeared several times at “On the Issues with Mike Gousha” programs at Marquette Law School. Morales was an “On the Issues” guest for the first time on Thursday (Sept. 13, 2018). The differences between them in personal styles, in priorities, and in connecting with the community were clear. Continue reading “A Milwaukee Native Describes His Work as the City’s Police Chief”

Tommy Thompson Describes Lessons from His “Journey of a Lifetime”

By: Alan J. BorsukSeptember 5, 2018September 5, 2018Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment»

There are few people in recent Wisconsin history – maybe all Wisconsin history – who could work a crowd better than Tommy Thompson, and he showed he still has that ability in an “On the Issues with Mike Gousha” program at Eckstein Hall on Wednesday that was interesting, insightful, provocative and entertaining.

Elected four times, he was governor of Wisconsin from 1987 to 2001, followed by four years as health and human services secretary in the administration of President George W Bush, Thompson, now 76, spoke on the day after his autobiography, Tommy: My Journey of a Lifetime, written along with journalist Doug Moe, was released officially. Continue reading “Tommy Thompson Describes Lessons from His “Journey of a Lifetime””

Partisan Divides Are Vivid in New Law School Poll Results

By: Alan J. BorsukJuly 18, 2018Marquette Law School Poll, Political Processes & Rhetoric, PublicLeave a comment»

“If there’s a subtitle to today’s presentation, it is partisan differences.”

That comment from Professor Charles Franklin, director of the Marquette Law School Poll, as a new round of poll results was released Wednesday at Eckstein Hall, spotlighted a striking and important aspect to public opinion in Wisconsin (and probably across the United States). In short, there are two different worlds of perception on what is going on when it comes to politics and policy.

Start with the most obvious example, opinions of President Donald Trump. Overall, 42 percent of registered voters polled in Wisconsin approved of Trump’s job performance and 50 percent disapproved. In polling a month ago, it was 44 percent and 50 percent. Since Trump took office, those numbers have not varied much.

But break it down by partisanship and there’s a canyon of difference. Among Republicans, 86 percent approve of how Trump is doing as president and 8 percent disapprove. Among Democrats, 3 percent approve and 93 percent disapprove. Continue reading “Partisan Divides Are Vivid in New Law School Poll Results”

The Developing Shape of August Primaries Comes into View in New Poll Results

By: Alan J. BorsukJune 21, 2018Marquette Law School Poll, PublicLeave a comment»

The results of the Marquette Law School Poll, released on Wednesday, June 20, showed both how long a time and how short a time two months is as an election approaches.

The primary on Aug. 14 will decide which of a large field of Democrats will race incumbent Republican Scott Walker in the November election for governor and which of two Republican candidates will face incumbent Democrat Tammy Baldwin in the election for a US Senate seat.

How long is it until Aug. 14? The poll, conducted through telephone interviews with 800 registered voters statewide from June 13 to 17, found that large majorities said they did not know enough about or did not yet have a favorable or unfavorable opinion of every one of the candidates in the top spotlighted contests. The figures ranged from 61 percent to 94 percent. Large portions of the public haven’t yet felt the election is close enough to require a lot of attention.

On the other hand, now that the clock is under two months, interest in the poll results, including news coverage of the findings, is increasing. While the general public may not have tuned in strongly yet to the campaigns, those who are involved know time is running short. Increasingly active campaigning and advertising almost surely will lead to more voters knowing the people running for office by the time Aug. 14 arrives. Continue reading “The Developing Shape of August Primaries Comes into View in New Poll Results”

Facts and History — But No Predictions — as Program Sets the Political Scene

By: Alan J. BorsukJune 17, 2018Lubar Center, Marquette Law School Poll, Political Processes & Rhetoric, PublicLeave a comment»

Set aside (for the moment) the poll numbers, the partisanship, and the passion and analyze the facts and data.

That was the goal of an “On the Issues with Mike Gousha” program on Thursday, June 14, at Marquette Law School that was a bit unusual. How so? The guests were Charles Franklin, director of the Marquette Law School Poll, and John Johnson, research fellow for the Law Schools Lubar Center for Public Policy Research and Civic Education, but, unlike the large majority of such sessions, particularly involving Franklin, they didn’t have any fresh poll results.

Instead, the goal, as Franklin put it, was to look at the lay of the political landscape, both in Wisconsin and beyond. Results from four special elections so far in 2018 for legislative seats in Wisconsin and from the statewide election of a Supreme Court justice offered the opening insights on current Wisconsin voting patterns. But the discussion expanded to encompass results from more than 300 elections nationwide since the 2016 presidential election and to look at history going back as far as the 1860s.

Franklin and Johnson showed the degree to which Democrats generally had gained ground since 2016 in election results in Wisconsin and nationwide. But Franklin looked at historical trends that show how the party of a sitting president usually loses ground in mid-term elections. What is shaping up for this fall’s elections may (or may not) be more in line with historical patterns than many people think.

One interesting insight: On average, Franklin said, the opposition party has gained 24 seats in the US House of Representatives in mid-term elections. And for the Democrats to gain control of the House this year, they need to gain 24 seats. That means it’s anyone’s guess which party will have the majority in the House after November. Or, as Franklin put it, “uncertainty is the order of the day.”

Franklin looked at the history of the impact on mid-term election of factors such as a president’s popularity, change in the national gross domestic product, unemployment rates, and the results of polling that asks people a generic question (with no candidate specified) about which party they hope will win the upcoming election. Based on history, some of those indicators suggest good prospects for Democrats – and some don’t.

The four special legislative elections in Wisconsin this year, as well as the Supreme Court election (assuming you assign partisan interpretation to it), each showed Republicans doing worse and Democrats doing better than they did in recent elections, Franklin and Johnson showed.

Some suggest that the low turnout in those races reduces the weight that should be put on such trends. Johnson analyzed results of special elections compared to general elections broadly and found that the differences in outcomes between the low turnout and high turnout elections were not as great as many people assumed.

But Franklin said a shift toward Democrats in the legislative elections in Wisconsin this fall wouldn’t necessarily mean changes in which party controls each legislative house in Madison. For example, few legislative elections in recent years have been settled by five percentage points or less, he said, so a five point shift toward Democrats might not change the winning party in many cases.

The first round of results for the Marquette Law School Poll since March is set to be released on Wednesday (June 20). It will include results for the Democratic primary for governor and the Republican primary for a US Senate seat. The pace of campaigning (and polling) will accelerate through the coming months.

But at this point, Franklin said, it was good to pause and look at the bigger and historical perspective.

“The main thing I want to leave you with is uncertainty (about what lies ahead), but I want you to appreciate why we are uncertain and how these different indicators are pushing in different directions,” Franklin said.

To view video of the one-hour conversation, click here. To get information on the poll release program at Eckstein Hall on June 20, click here.

Reporter Describes Reporting Behind Story That Sparked the #metoo Movement

By: Alan J. BorsukMay 14, 2018Public, Speakers at MarquetteLeave a comment»

Do you think anybody’s going to care?

New York Times reporter Megan Twohey recalled asking that question during a cab ride with her reporting partner, Jodi Kantor, just before a demanding investigative story they had been working on was to appear in print. The two had been told they would never get the story in the paper. The two had been told few would care if it did appear.

During an “On the Issues with Mike Gousha” program at Eckstein Hall on Friday (May 11), Twohey described what led up to printing their story on Hollywood mogul Harvey Weinstein’s record of sexually abusive misconduct. Their first story ran at the top of the Times’ front page in October, 2017.

Other journalists had set out to do publish stories on Weinstein’s long-rumored treatment of women. None had succeeded in getting something published. Women who are victims of such treatment are often reluctant to talk publicly, and that was especially true with Weinstein, who had great power and influence in the entertainment industry. Furthermore, Weinstein had fought strongly against such stories being published. Kantor and Twohey were told he would intimidate the Times into withholding publication.

Twohey said the two realized they had to build a case based on evidence that went beyond he said-she said versions of what happened in specific incidents. They were able to do that using materials such as corporate documents and records of out-of-court settlements. She said the Times set rigorous standards for what could be put in print.

Twohey said that once the story appeared, she and Kantor were so involved in follow-up work, they didn’t pay much attention to the impact in the first few days. But the impact was huge – their work played an important part in sparking the #metoo movement that has made harassment and abuse of women in the work place a national issue. Twohey called it a time of reckoning for those who have been involved in harassing women.

Among other recognitions, Twohey and Kantor have won a Pulitzer Prize and been named to Time magazine’s list of the 100 most influential people in America. They have signed a contract to write a book and an option on movie rights to their story. Twohey was in Milwaukee to be honored by the Milwaukee Press Club at a banquet.

Gousha asked Twohey what it was about the Weinstein story that triggered such strong reactions. Other prominent figures, such as television commentator Bill O’Reilly, already had lost their jobs over similar allegations.

Twohey said a big factor seemed to be that in this case, the perpetrator, as powerful as he was, was not as famous as some of the victims who agreed to speak on the record. Twohey said the fact that such well-known movie figures were willing to say they had been victimized and wanted justice motivated women across the country to speak up about their own experiences.

“The real moral horror (about the Weinstein situation) . . . was that he was able away with this for 40 years,” Twohey said. What she called “the complicity machine” in which Weinstein’s aides, associates, and friends protected him was just as important, she said. She and Kantor did a follow-up story on the systemic failures and assistance that allowed Weinstein to intimidate people into staying silent.

“It was remarkable at every turn what we uncovered,” she said, when it came to the extent of sexual harassment problems in many different settings. Twohey, who has a 14-month-old daughter, said she hopes the revelations reported by the Times and other news organizations will mean her daughter will not find herself years from now in workplaces where there are such problems.

“I think this has been a big teaching moment for families,” Twohey said.

To watch the hour-long conversation, click here.

To watch Gousha’s interview with Twohey on the “Upfront with Mike Gousha” television program, click here.

New Marquette Lawyer Celebrates Eckstein Hall and the Man Who Designed It

By: Alan J. BorsukMay 7, 2018May 7, 2018International Law & Diplomacy, Marquette Law School, Milwaukee Area Project, PublicLeave a comment»

Image of Ralph Jackson on the Marquette Lawyer Cover Has it been 10 years already? Yes, the tenth anniversary is at hand for the groundbreaking for Eckstein Hall on May 22, 2008.

How have things worked out? Anyone who spends time—and especially anyone who spends a lot of time—in the home of Marquette Law School knows the answer: Very well.

The new issue of Marquette Lawyer magazine marks the anniversary of the start of building Eckstein Hall and celebrates the building’s success with two featured pieces, following an introduction by the dean including the famous photo of Tory Hill from the day of the groundbreaking.

One entry is a profile of Ralph Jackson, the Boston architect who was the lead figure in designing the building. Jackson, now retired, has a powerful personal story, rising from modest roots to national prominence as an architect. The story, “How Ralph Jackson Found His Voice,” may be read by clicking here.

The second feature is a photo essay on a day in the life of Eckstein Hall. The 22 pages of beautiful photos illustrate many of the facets of the identity of Marquette Law School as seen on one day, Nov. 14, 2017. The photo essay may be viewed by clicking here.

The new magazine includes other valuable reading, including:

“International Human Rights Law: An Unexpected Threat to Peace,” an edited text of the Boden Lecture delivered by Ingrid Wuerth, who holds the Helen Strong Curry Chair in International Law at Vanderbilt University. Read it by clicking here.

“Migration Challenges: Trends in People’s Movement to and from the Milwaukee Area and Wisconsin Illuminate Important Issues,” a piece in which John D. Johnson, research fellow with the Law School’s Lubar Center for Public Policy Research and Civic Education, and Charles Franklin, the Law School’s professor of law and public policy, analyze population trends. It may be read by clicking here.

“An Unveiling and a Blessing.” A portrait of St. Edmund Campion was unveiled at a ceremony on October 25, 2017, and now hangs in the Chapel of St. Edmund Campion in Eckstein Hall. An image of the portrait and the text of remarks at the ceremony—variously by the Hon. Paul D. Clement, Dean Joseph D. Kearney, Rev. Thomas S. Anderson, S.J., and the portrait’s artist, Henry Wingate—can be found by clicking here.

The “From the Podium” section includes texts of speeches at the Columbus Day Banquet of the Wisconsin Chapter of the Justinian Society of Lawyers on October 13, 2017, by the three honorees: State Public Defender Kelli S. Thompson, Dean Kearney, and Judge William Brash III. The section also includes “The Person on the Other Side of the Table,” the text of remarks from Michael J. Gonring, executive director of the Legal Aid Society of Milwaukee, upon receiving the Faithful Servant Award of the St. Thomas More Lawyers Society. Read the section by clicking here.

The Class Notes section, which may be read by clicking here, includes entries about Jessica Poliner, L’06, who coauthored a book with advice for improving gender equity in the workplace, and about Rachel Lindsay, L’11, who gained fame by appearing on the television programs The Bachelor and The Bachlorette, but who continues her work as a lawyer in Dallas.

To view the entire magazine, click here.