More Contention on the Wisconsin Supreme Court

Last Thursday, the Wisconsin Supreme Court finally issued opinions on recusal rules that it adopted earlier in the term and which essentially say that a duty to recuse cannot be be based solely on the receipt of a lawful campaign contribution or a lawful independent expenditure made on a judge’s behalf. The Court also amended a preexisting rule to permit a judicial candidate’s campaign committee from soliciting funds from persons involved in proceedings in which the candidate, if elected or reelected, is likely to participate. 

The majority opinion and dissent continue to reflect the sharp and bitted divisons on the Court. I wish that would get better.

I have an article on judicial recusal coming out in the Wake Forest Law Review, so it’s a subject that I have been thinking about. I have the following quick observations on the Court’s decision. 

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Kagan Hearing Recap

The hearings on the nomination of Elena Kagan to be Associate Justice of the United States Supreme Court ended with a whimper rather than a bang.  In an op ed piece in last weekend’s Milwaukee Journal Sentinel, I reviewed the arguments put forth by her critics and found them wanting.  You can read my piece here.

My colleague Rick Esenberg had a different view of the nomination.  You can read Rick’s piece here.

It seems that the Kagan hearing failed to generate much interest.  Given the scant written record of the nominee, there was simply not much to get excited about.  She has a long and distinguished professional career, but her various positions as law clerk, executive branch policy advisor and Solicitor General all involve the application of her personal talents in the furtherance of someone else’s agenda.  As a law school dean, she conciliated between factions rather than advocating one particular viewpoint.  One looks in vain for written expressions of her personal views on controversial legal issues.

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Judges Take the Stand

Chad Oldfather has a new paper on SSRN reviewing William Domnarski’s book Federal Judges Revealed.  Not exactly the lurid exposé suggested by the title, Domnarski’s book synthesizes the insights he gained from reviewing more than 100 oral histories given by federal judges to different interviewers over a period of many years.  As Chad notes, oral histories have the potential to add much to our understanding of the judiciary, for judges are generally less guarded about their personal views and experiences in these interviews than in their written opinions.  On the other hand, as a drawback to oral history, Chad notes that there is no clearly established, rigorous methodology for taking an oral history.  That may be one reason that Domnarski’s book apparently lacks any really surprising insights into the federal judiciary.

As one of the more interesting aspects of the book, Chad highlights Domnarski’s treatment of the role of judicial clerks: “Federal Judges Revealed provides valuable testimony from judges regarding how they use their clerks, and how much they depend on them.”  For instance, one judge says, “[M]any of [my clerks] have an ability to grasp technical details and relationships that entirely escape me.  Let’s face it; I try to get clerks who are significantly brighter than I am.”  Some may find such statements about the importance of clerks a bit troubling — one might question who is really in charge, the presidentially appointed judge or the fresh-out-of-law-school clerk. 

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