Judges & Judicial Process – Page 39 – Marquette University Law School Faculty Blog

Special Committee on Judicial Discipline and Recusal

Post author:Richard M. Esenberg
Post published:September 17, 2010
Post category:Judges & Judicial Process Wisconsin Supreme Court

One important, but perhaps underreported, development in our legal world is the work of the Legislature’s Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court – Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say “clean up”) witness.

Yesterday’s hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

More Contention on the Wisconsin Supreme Court

Post author:Richard M. Esenberg
Post published:July 10, 2010
Post category:First Amendment Judges & Judicial Process 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.

Kagan Hearing Recap

Post author:Edward A. Fallone
Post published:July 10, 2010
Post category:Judges & Judicial Process Political Processes & Rhetoric U.S. Supreme Court

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.