At the swearing-in ceremony for Marquette University Law School graduates, only the justices who voted for Patience Roggensack appear.

Wisconsin Supreme Court Justice Patience Roggensack was presiding as chief justice for the first time as the court performed the time-honored ritual for the newest members of the bar. Not present was Shirley Abrahamson, who lost the position of chief when voters amended the state constitution to provide for the justices to elect their own chief. Abrahamson is suing in federal court, claiming that she's still properly the chief, under the old seniority rule, until the end of her term in 2019. Also absent were Justices Ann Walsh Bradley and Patrick Crooks, who, we're told, voted against Roggensack.

Congratulations to the graduates of Marquette University Law School, beneficiaries of Wisconsin's delightful diploma privilege. I'm sorry you didn't get to see a full bench for your special celebration, but you did get to see something special.

Denying Shirley Abrahamson an injunction that would restore her to the position of Chief Justice of the Wisconsin Supreme Court...

... U.S. District Judge James Peterson found no irreparable harm because the new Chief Justice Patience Roggensack is "not consolidating power in any ruthless way."

"Other columnists have argued that the conservatives' quick action to replace Abrahamson is overplaying their hand."

"But it is no such thing; the chief's chair is rightfully Roggensack's, and delaying her ascension to the seat simply would be giving oxygen to Abrahamson's charade."

Writes Christian Scheider in the Milwaukee Journal Sentinel (about the lawsuit Wisconsin Supreme Court Justice Shirley Abrahamson brought to keep her position as chief after Wisconsin voters amended the state constitution to change the selection process from seniority to a vote of the 7 justices).

By the way, I wouldn't have used the word "ascension." When you're elected to a position, do you ascend? Funny that bothered me. It was just yesterday that I finished reading the book "Means of Ascent (The Years of Lyndon Johnson)," by Robert A. Caro. It's the story of how Lyndon Johnson first got his senate seat in 1948. It wasn't by winning an election. It was by stealing an election... most outrageously.

"The Destruction of the Wisconsin Supreme Court," by Lincoln Caplan.

In The New Yorker. I thought you should know.

When addressing a case like the John Doe inquiry, with the election of a controversial governor and now an undeclared Presidential candidate at its core, the Wisconsin Supreme Court should be seen as above the fray, beyond price, and wholly independent. Instead, contrary to the ideal that John Roberts described in [Williams-Yulee v. Florida Bar], all of the Wisconsin justices look a lot like politicians, in particular the conservatives, who came to the bench with the support of powerful and aggressive political groups. Those justices� integrity is compromised, as plainly as if they had personally solicited every dollar that helped elect them � and that helped drag the standing of their court so low.

All judges look like politicians, especially the conservatives. And all New Yorker writers who write about judges look like politicians, especially when they write about conservatives.

ADDED: Amusingly, The New Yorker points me to a March 5, 2012 article titled: "The Storm/Did a governor�s anti-union crusade backfire?" The answer, it turned out, was: no.

"Wisconsin Supreme Court justices have moved quickly to replace longtime Chief Justice Shirley Abrahamson with Justice Patience Roggensack."

"Abrahamson�s attorney Robert Peck says in a letter filed in a federal court that Abrahamson continues to believe she is still chief justice."

Oh, no! Too many chiefs!

"The swing member of the state Supreme Court lashed out at a lawsuit brought by Chief Justice Shirley Abrahamson over how the court's leader is selected..."

Justice N. Patrick Crooks said: "I think it's not only sad, it's unfortunate. I won't give you my view of the merits of that lawsuit, but I will tell you I think it's something that should not have been done. We've become a little bit of a laughingstock, or at least she has."

In the interview, Crooks said he was considering seeking the position of chief justice himself after some of his colleagues talked to him about it. He declined to name them. The 76-year-old justice also held out the possibility of running for re-election next year, despite suggesting to his colleagues last year that he would not seek another 10-year term.

In case you've forgotten, Abrahamson has been chief justice for a long time under the old seniority rule, a part of the Wisconsin state constitution which the voters amended. Now, the justices are to vote to select the chief, and Crooks seems to be positioning himself for selection � and for reelection if he wants to run again. Calling Abrahamson "a laughingstock" is awfully harsh, even if it's what he genuinely thinks (as opposed to what's politically opportune). If the idea is to restore the dignity of the court, it's a bit strange. But perhaps the unnamed colleagues who've talked to him include Abrahamson:

Crooks distanced himself from Abrahamson, saying he had a "very different" judicial philosophy than her. Regardless, he argued the decision on who should lead the court should be about who is best able to bring members of the court together, not a "philosophical tug of war." He said he felt he could serve that function.

"I view the job of chief justices I think very differently than Justice Abrahamson does," he said. "I think that the chief justice is a first among equals. I think the approach that's appropriate is that you're a team player and you try to get everyone involved in the team."

If I were in Justice Abrahamson's position masterminding the coming election, that's exactly what I would advise him to say. And by the way, call me "a bit of a laughingstock" so it won't look like I'm colluding with you.

Milwaukee Journal Sentinel editors: "Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit."

"However unfair it may seem to Abrahamson and her supporters, she lost this round. She should drop her lawsuit."

Abrahamson's lawsuit will only further divide an already fractious court that is more notable in recent years for its dysfunction more than for its jurisprudence. These justices are as polarized as the state's politicians, which is an embarrassment. Justices are supposed to rise above such pettiness.

We also find it hard to believe there are legitimate federal issues here. The federal court should let the state sort this out.

Intervenors seek to dismiss the lawsuit Wisconsin Chief Justice Shirley Abrahamson filed in federal court...

... to retain her position as chief after the voters of Wisconsin amended the state constitution to make the position depend not on seniority but a vote taken among the 7 justices. I wrote about the lawsuit in a post called "The puzzling argument that Shirley Abrahamson was elected to the position of Chief Justice and has a federal right to keep it."

Here's the PDF of the motion to dismiss. There are numerous arguments for dismissal � well worth reading � but I'll highlight one:

All of plaintiffs� federal-law arguments turn on the premise that an interpretation of the Amendment that allows the justices to elect their Chief Justice after the April 7 election results are certified is �retroactive.� But that is not what �retroactive� actually means. Plaintiffs� arguments are premised entirely on prospective conduct: the selection and service of the next Chief Justice after certification of the election. This defect is fatal.

UPDATE: The federal judge has denied the motion to intervene, so that's the end of the motion to dismiss. The arguments in support of the motion to dismiss are as good as they ever were, and the defendants who are already parties in the case will be able to raise them:

... U.S. District Judge James Peterson said in his order Tuesday that the voters' interests will be adequately represented by those already named in the lawsuit.

Was Shirley Abrahamson "reelected as chief justice by popular vote... 2009"?

That's what the complaint in her federal court lawsuit says. Here's how the ballot looked:



Even without seeing that ballot, it's obvious that it could not be an election to the position of chief justice. If Koschnick had won, he would not have been elected chief. We, the people of Wisconsin, voted for a Justice of the Supreme Court. The position of chief was determined by the old seniority rule in the Wisconsin Constitution, which we, the people of Wisconsin, have now amended.

The puzzling argument that Shirley Abrahamson was elected to the position of Chief Justice and has a federal right to keep it.

Wisconsin Chief Justice Shirley Abrahamson has sued in federal court, asserting that her federal constitutional rights have been violated by the new amendment to the Wisconsin Constitution that provides for the Wisconsin Supreme Court Justices to elect their chief. Under the old provision, article VII, section 4(2) of the Wisconsin Constitution, "The justice having been longest a continuous member of said court.... shall be the chief justice," and Abrahamson has been chief justice since 1996.  She had been elected (to a 10 year term) in 1979 and 1989, so she became chief justice in the middle of her second term. The people did not elect her chief justice. We only elected her justice. Someone becomes chief justice by the operation of section 4(2), but the people elected that individual under section 4(1), which says:

The supreme court shall have 7 members who shall be known as justices of the supreme court. Justices shall be elected for 10-year terms of office commencing with the August 1 next succeeding the election....

I don't see how, under the old provision, there was any election to the position of chief. And, as noted above, Abrahamson originally took on the position in 1996, midway through her second 10-year term. Now, I want to focus on paragraphs 41, 42, and 44 in the complaint in Abrahamson's federal court case:

41.  Plaintiff Abrahamson was subsequently reelected as chief justice by popular vote in 1999 and 2009, earning ten-year terms of office in each of those elections. She campaigned extensively and expended substantial resources for reelection on the theme of the administrative work she had done as chief justice and continuity in the chief justice position.

The expression "reelected as chief justice" isn't quite right. In the election previous to her 1999 election, in 1989, Abrahamson could not possibly be said to have been elected to the position as chief since she didn't become chief until 1996. But more important, in all of these elections, she was running under section 4(1), which says only that "Justices shall be elected for 10-year terms of office." I'm not seeing any reference to "as chief justice." The chief justice role falls upon the justice who has the greatest seniority, by virtue of section 4(2), which is separate from the section about elections, 4(1).

Paragraph 41 also says that Abrahamson chose to stress her accomplishments and leadership as chief justice, when she campaigned for reelection in 1999 and 2009, but I don't see how her chosen campaign theme could transform the election into an election to the chief justice position, rather than simply an election as a justice, where there was an assumption that the method of selecting the chief would remain the same. Paragraph 42 continues with this notion that the campaign's theme determines the scope of the power of the office people are voting to fill:

42.  In the most recent election, which took place April 7, 2009, her campaign committee was called the �Chief Justice Shirley Abrahamson Reelection Committee,� and her campaign advertising ended with the tagline, �Wisconsin�s Chief,� attached as Exhibit C, making it clear to voters that a vote for her was a vote to continue her in the office of chief justice.  She campaigned extensively and expended substantial resources for reelection on that theme of continuity in the chief justice position and would not have sought reelection if there was a question about whether her reelection would retain her in the office of chief justice. She also cast her vote in that election to support her continuation as chief justice. Plaintiff Abrahamson won that election on April 7, 2009 with more than 59 percent of the vote.

Note that there is also the assertion that she wouldn't have run for office if she had thought it was possible to be deprived of the position of "chief." That's interesting to know, but it's hard to see how that disempowers the people from amending the constitution to change how the position of chief is determined. Abrahamson counted on being chief, and she wouldn't have deigned to run for a fourth 10-year term if it didn't come bundled with leadership of the group of 7 justices. But so what? Why would her hopes and expectations  � or the hopes and expectations of the people who voted for her � limit our power to amend the constitution? Do those who get elected to office somehow lock in the existing scope of their power? That's a strange notion in itself, but it's even stranger to suggest that the answer to that question would depend on whether you touted a particular aspect of your power in your campaign rhetoric!

44.  As a result of the successful campaign conducted under the backdrop of the seniority rule then contained in article VII, section 4(2) of the Wisconsin Constitution, Chief Justice Abrahamson and her political supporters had the settled expectations that she would continue to serve as chief justice until the end of the term to which she had just been elected, which ends on July 31, 2019.

I don't see how "the backdrop of the seniority rule" in section 4(2) changes the nature of the election provided for in section 4(1), which is an election to the position of justice, not chief justice. There was an expectation that the section 4(2) would remain the same, but I don't see how you can pump that expectation up into a federal constitutional right and deprive the people of the power to change section 4(2).

Abrahamson's argument is that the change to section 4(2) should apply only prospectively and that she has a right to continue in the position until the end of her term in 2019. The argument is based on her rights and the rights of those who voted for her (some of whom are also plaintiffs). She's saying it would violate Equal Protection "by diluting and debasing the value and meaning of the votes" that were cast for her in 2009. And she's claiming that it violated her Due Process rights. (With the chief position comes an extra $8,000 added to the regular salary of a justice, which is $147,403.)

A big problem with filing this case in federal court is that there is a state law question as to whether the amendment to section 4(2) applies immediately. She could win on that state law ground and that would avoid the federal constitutional law question. That is, quite obviously, a reason for the federal court to abstain, since it can't give an authoritative interpretation to the state law question. Federal courts engage in this form of abstention � Pullman abstention � out of respect for the authority of state courts, and yet here is a state supreme court justice invoking the federal authority. I find that very strange indeed. And yet, it seems clear that the state's chief justice wouldn't want to submit to the authority of her own state's courts, where she doesn't see herself commanding a majority. If she did, she could simply accept the amendment to section 4(2) and keep the position of chief because her fellow justices would vote to have her as their chief.

And why wouldn't they? What an affront to take the chief position away in the middle of the venerable justice's term!

ADDED: Someone in the comments asked what the ballot looked like in the 2009 election. But think about it: The ballot could not possibly have denoted the election as an election for chief justice because the opponent in that election wouldn't have assumed the position of chief justice. He would have been the furthest from the position of greatest seniority and the last in line to be chief under section 4(2). The vote had to be only for justice. Nothing else makes sense.

After Wisconsinites vote to amend the state constitution to change how the state supreme court's chief justice is selected, Shirley Abrahamson sues in federal court to keep her position under the old provision.

Under the old provision, Abrahamson was entitled to the position because she is the most senior member of the court. Under the amendment we voted for in yesterday's election, the justices elect their own chief. What is the federal question that allows this to be heard in federal court?

To have the selection process change immediately would shorten the term of office to which Abrahamson was elected, she argued, and would therefore violate her constitutional rights to due process and equal protection rights.

She also asks the court to block the other six justices on the court from taking any action to remove her as chief justice. Earlier Wednesday, before Abrahamson filed the lawsuit, Justice Pat Roggensack told The Associated Press that she hoped to meet "quite soon" to discuss how to proceed following the amendment's adoption....

ADDED: On reading this, Meade said: "I think what should be said is that this changed the terms of her office, not the term of her office." (That is, voters elected her to serve as a justice for a 10-year term, and under the old provision, by virtue of her seniority, she would be chief. Under the new provision, the terms of her job have changed, so that seniority does not entail service as chief, but the justices get to vote for a chief. Her term is the same: 10 years.)

AND: As they say in Wisconsin (sometimes!): This is what democracy looks like.

Liberals won and lost in yesterday's Wisconsin Supreme Court election � and this particular win/loss combination is good for conservatives.

Steven Elbow reports in the Cap Times:

Supreme Court Justice Ann Walsh Bradley won a third 10-year term Tuesday, saving the liberal block of the court from near extinction. But the election was double-edged for Bradley and Chief Justice Shirley Abrahamson as voters approved a constitutional amendment to change the way the chief justice is chosen, a measure that will almost certainly oust Abrahamson from the job....

Leading up to Tuesday�s contest, only the union-backed Greater Wisconsin Committee ran TV ads on behalf of a candidate. The group booked $102,000 for an ad attacking [the conservative challenger James] Daley, while Bradley spent about $510,000 on ads. Daley ran no television ads, and no one ran any on his behalf. Instead, WMC gave $600,000 to the group Vote Yes for Democracy to run an ad supporting the measure regarding the chief justice selection. The Greater Wisconsin Committee raised $280,000 to run an ad opposing it.

How could an unknown challenger with no TV ads beat a well-known incumbent with lots of ads? Daley was left to lose, and the serious fight was over depriving Abrahamson of the leadership position on the court:

The measure, which passed two consecutive sessions of the GOP-controlled Legislature and was approved by voters Tuesday, ends the 126-year practice of choosing the justice with the most seniority. The chief justice will now be chosen by the justices themselves. The position has been held since 1996 by Abrahamson, who won her fourth 10-year term to the court in 2009. Critics call the change a blatant attack on the 81-year-old Abrahamson, who also might also have to contend with a GOP proposal to set a retirement age for the court. The constitutional measure, crafted by Republicans and backed by Daley, was likely not seen by voters as ideological, said UW political science professor Barry Burden.

Prof. Burden observed that many voters probably saw the constitutional amendment as politically neutral rather than an important way for the liberal minority to retain some significant power, which at this point in the court's history, it surely is. Insert "Don't call me Shirley" joke.

The conservative block consists of four justices, with a fifth, Patrick Crooks, seen as a swing vote. In recent controversial cases, the partisan divide has been on display. Bradley and Abrahamson voted against Walker�s collective bargaining measure in a 5-2 decision....  At one point an argument concerning when to release the decision escalated to the point that [Justice David] Prosser and Bradley had a physical altercation....

I won't rehash the Prosser-Bradley incident. You can search the word "chokehold" in my archive to sift through that.

The point I want to make here is: Conservatives did not need another conservative justice to control the court.  In fact, a weak conservative justice would hurt the conservative cause, because he would make the conservative side seem more political, rather than as the dedicated followers of law they want us to see them to be. And if Shirley Abrahamson were stranded as the only liberal jurist on the court, she might gain luster as the venerable lone dissenter. With Bradley, there are 2 � a liberal bloc, however small.

That bloc can't win, so conservatives have nothing to lose. In fact, conservatives gain, because 2 justices voting together can more easily be portrayed as ideological and political than Shirley Abrahamson standing heroically alone.

"Voter turnout is expected to be light" today in Wisconsin.

"Only two out of every 10 potential voters are expected to cast ballots."

Statewide, voters will decide whether to re-elect Justice Ann Walsh Bradley to a third 10-year term on the Supreme Court or to elect her challenger, Rock County Circuit Judge James Daley. They will also consider scrapping the 126-year-old practice of having the most senior member of the court serve as chief justice.

And in Madison, Mayor Soglin is up for reelection. His challenger is Scott Resnick, who is 28:

�I�m young, there�s no denying that,� Resnick said during an interview at his modest apartment he shares with his wife, Kelly, on the 14th floor of a student-oriented building with views of the Langdon Street neighborhood and Lake Mendota. �I do have a track record of some large accomplishments all under the age of 30.�...

He cites poverty, homelessness, housing, the achievement gap, employment, transportation and the digital divide � barriers to the Internet and technology for low-income residents and neighborhoods � as top issues.

�I am motivated by doing the big projects,� Resnick said. �I�m trying to help others by dreaming big."

I'm opposed to dreaming big, so I guess I've got to go for Soglin again. As for the judges, as I said yesterday, "I hate voting for judges and the whole charade of these campaigns."

Did anyone watch the Wisconsin Supreme Court candidates' debate?

Noticing that the election is tomorrow, I wondered aloud, "Did the candidates ever debate?" And then, having googled, "Oh! There was a debate!" I kind of think that if I didn't notice and watch it, nobody did. Here's an article about it. I feel that I know what the article will say before reading it: Both candidates asserted that they would decide cases according to the law and that political preferences would have absolutely no effect, and both cited judicial temperament and long experience as their qualification.

"I don't see it as the job of the Supreme Court justice to be for or against any political policy," [Justice Ann Walsh] Bradley said. "Our only agenda is to uphold the Constitution and serve the people of this state."

Rock County Circuit Judge James Daley called Bradley an "activist judge" and himself a "dinosaur," saying that he was for traditional judicial standards. ... "I'm running because I'm not an activist jurist," Daley said....

Daley, a former prosecutor, often went into details of the law, sometimes halting briefly as he cited cases and legal terms. Bradley, a former Marathon County judge, was more fluid and used folksier language and broad examples.

Just as I suspected... although I didn't predict the haltingly legalistic vs. fluidly folksy distinction. Whether that characterization is accurate, I don't know. I haven't watched the debate. But I will. It's streamable here.

"The Left�s Recusal Gambit/A prosecutor and his allies try to rig a judicial appeal in Wisconsin."

That's the title of a Wall Street Journal editorial that follows on a recent NYT editorial titled "Elusive Justice in Wisconsin."

From the WSJ:

If you�re a special prosecutor who keeps losing on the law, try rigging the judges. That�s the gambit in Wisconsin, where special prosecutor Francis Schmitz has filed a motion prodding judges to recuse themselves.

Click for more �