Justice Scalia Would Like a Word

The conservative flip-flop on judicial speech

Janet Protasiewicz, 60, is sworn in for her position as a State Supreme Court Justice at the Wisconsin Capitol rotunda in Madison, Wis. on August 1, 2023. (Photo by Sara Stathas for The Washington Post via Getty Images)

In today’s headlines:

The party of Law & Order: Ron DeSantis Condemns ‘Excessive Sentences’ Against Proud Boys, Floats ‘Pardons and Commutations’ If Elected

Former Arkansas Gov. Mike Huckabee Says if Trump Loses, 2024 Could Be Last Election ‘Decided by Ballots Rather Than Bullets’ - The Messenger

The brutality was the point: Texas must move floating border barriers in Rio Grande, U.S. judge says - The Washington Post

Cue the panic: Biden faces negative job ratings and concerns about his age as he gears up for 2024 — CNN Poll

Two-tiered justice? Justice Dept. Says It Will Indict Hunter Biden on Gun Charge This Month - The New York Times

Happy Thursday.

**

Meanwhile, in Wisconsin…

Apparently undeterred by the blowback, Republicans here seem determined to impeach a liberal state Supreme Court Justice even before she has heard a single case.

On Wednesday, the NYT reported that the GOP is “coalescing around the prospect,” of removing newly-elected Justice Janet Protasiewicz from the bench despite her landslide election victory in April. As The Times reported, her election “swung the court in Democrats’ favor and threatened the G.O.P.’s iron grip on state politics.”

During the campaign Protasiewicz had bluntly called the state’s gerrymandered legislative districts “rigged,” and liberal groups have now filed lawsuits asking the new liberal majority on the court to toss out the old maps. Republicans have demanded that she recuse herself from the case because of her comments, but she has refused.

Thus, the extraordinary threat by the GOP majority to undo the election and remove her from the bench.

Former Gov. Scott Walker, who remains popular among Wisconsin Republicans, said the Assembly was “obligated” to impeach Justice Protasiewicz if she tried to rule on the maps.

“If she does not remove herself from the case, the members of the State Assembly should vote to impeach Justice Protasiewicz,” Mr. Walker said….

So far, Republicans appear remarkably unified around the idea of impeaching Justice Protasiewicz. No G.O.P. member of the Legislature has spoken out against it, despite private concerns among some in the party that seeking to remove a newly elected justice would be politically catastrophic.

Democrats have already gone on the offensive. According to the Times, the state party and its allies “are set to begin what its chairman, Ben Wikler, described as a voter mobilization project on par with its statewide get-out-the-vote operations.” A multi-million-dollar ad campaign is already in the works — and those ads pretty much write themselves.

“The longer they push this forward, the more political price we want to build for Republicans in the Legislature and the whole G.O.P. machinery,” Wikler told The Times. “This could become a fireball that eats all of them up throughout 2024.”

**

Before they pull the trigger, however, Wisconsin’s Republicans might want to brush up on their Scalia. The late conservative judicial icon had some thoughts on the question of whether judicial candidates should be able to talk about political issues.

In the 2002 case, Republican Party of Minnesota v. White, Scalia wrote the majority opinion in which the Supreme Court ruled that the First Amendment does not permit the government to prevent judicial candidates from stating their opinions on disputed political or legal issues.

Scalia was joined by the court’s other conservative members — including Clarence Thomas. Justice Ruth Bader Ginsburg and three other liberal justices dissented.

Here’s the background:

The Minnesota Supreme Court had adopted a canon of judicial conduct that prohibited a "candidate for a judicial office" from "announc[ing] his or her views on disputed legal or political issues." (The Court’s decision did not address the question of recusal.)

Scalia wrote:

The short of the matter is this: In Minnesota, a candidate for judicial office may not say "I think it is constitutional for the legislature to prohibit same-sex marriages." He may say the very same thing, however, up until the very day before he declares himself a candidate and may say it repeatedly (until litigation is pending) after he is elected.

Back in 2002, conservatives on the High Court weren’t having it. In the decision ruling that the Minnesota rule was unconstitutional, Scalia wrote:

[The] notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. "[D]ebate on the qualifications of candidates" is "at the core of our electoral process and of the First Amendment freedoms," not at the edges.

"It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign." Brown, 456 U. S., at 60 (internal quotation marks omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

The justices noted that the American Bar Association and others had long opposed the idea of electing judges. But, wrote Scalia, “the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”

**

My fellow Cheesehead, James Wigderson notes some other flip-flops by the Wisconsin GOP:

Of course, in 2012 Walker had a different opinion on “do over” elections and removal from office. Democrats attempted to recall him over the passage of his Act 10 reforms. Despite Act 10 never becoming popular, Walker won re-election in the recall by a wider margin than his initial election in 2010. Wisconsin voters rejected the idea that someone should be removed from office over policy differences rather than actual corruption. 

Eleven years later, Wisconsin Republicans have an entirely different perspective. All that matters is power.

Back in 2008, Wigderson recalls, the “state GOP’s unofficial consigliere Rick Esenberg” penned an op-ed arguing that attempts to restrict what judicial candidates said on the campaign trail would do more harm than good:

“If appointment turns out to present its own problems, a common fallback position of those disturbed by the tone of judicial elections is to embrace severe restrictions on campaign finance… or a construction of the Judicial Code that severely restricts what candidates for judicial office may say.

“There are constitutional problems with these approaches. The U.S. Supreme Court has held that the First Amendment protects both robust debate in judicial elections and the right of groups concerned about issues to be heard at the time of an election.

“In any event, these approaches amount to a desire that judicial candidates shut up about philosophical differences for fear that they will not discuss them responsibly or that the public will not be able to understand them. The result, as with most campaign finance ‘reform,’ is incumbent protection.”

Notes Wigderson: “Esenberg is now the president of the Wisconsin Institute for Law & Liberty, the leading conservative public interest law firm and public policy organization in Wisconsin.”

Irony is dead. Chapter 986,652,379.

---

Adam Kinzinger: Trump Ignited the Proud Boys

On Wednesday’s podcast, former J6 Committee Member Adam Kinzinger joined me to discuss the sentencing of the leaders of the Proud Boys, and the prospects of a Trump 2.0 pardon.

You can listen to the whole thing here.

---

Our illiberal universities

The folks from the Foundation for Individual Rights and Expression are out with their 2024 College Free Speech Rankings. And they are disturbing.

Some of the key findings:

• More than half of students (56%) expressed worry about damaging their reputation because of someone misunderstanding what they have said or done, and just over a quarter of students (26%) reported that they feel pressure to avoid discussing controversial topics in their classes. Twenty percent reported that they often self-censor.

• When provided with a definition of self-censorship, at least a quarter of students said they self-censor “fairly often” or “very often” during conversations with other students, with professors, and during classroom discussions, respectively (25%, 27%, and 28%, respectively). A quarter of students also said that they are more likely to self-censor on campus now — at the time they were surveyed — than they were when they first started college.

• Almost half of the students surveyed (49%) said that abortion is a difficult topic to have an open and honest conversation about on campus. A notable portion of students also identified gun control, racial inequality, and transgender rights, respectively, as topics difficult to discuss (43%, 42%, and 42%, respectively).

• Student opposition to allowing controversial conservative speakers on campus ranged from 57% to 72%, depending on the speaker. In contrast, student opposition to controversial liberal speakers ranged from 29% to 43%, depending on the speaker.

• More than 2 in 5 students (45%) said that students blocking other students from attending a speech is acceptable to some degree, up from 37% last year. And more than a quarter of students (27%) said that using violence to stop a campus speech is acceptable to some degree, up from 20% last year. 

---

Quick Hits

1. They Did This to Themselves

Christian Vanderbrouk in this morning’s Bulwark: By supporting the Liz Cheney purge and downplaying January 6th, Ron DeSantis and his conservative supporters dug their own hole.

We can stipulate that the team behind Ron DeSantis has done their candidate no favors. But reserve the lion’s share of blame for the conservative movement as a whole, which acceded to the purge of anti-Trump leaders like Liz Cheney and stifled criticism of the January 6th riot.

As a result, Trump is virtually untouchable within the party. His personal corruption, his criminal behavior, and his offenses against the American people and the Constitution are all taboo subjects for his leading primary opponent.

So DeSantis is left to thwack the former president with wet noodles like he might not be able to win or maybe he isn’t MAGA enough—although DeSantis never fully and forcefully articulates even those arguments.

---

2. Joe Biden’s Problem Isn’t His Age, It’s Our Age

Jill Lawrence in the Bulwark: Trump’s cruelty theater is distorting politics and people’s views of the president.

Age is the 2024 issue that won’t go away, and there’s no denying there’s reason for concern. Yet Biden’s real problem is not his age. It’s our age … of performative politics.

As usual, Donald Trump is at the root of the mess. From the minute he entered the 2016 presidential race on a golden escalator in a building blaring his name, U.S. politics has been a twisted reality show that elevates outrage, insults, and cruelty in a spirit of sadistic fun. That’s entertainment, at least for Trump’s many millions of devoted fans.

---

3. It’s Official! The Democrats Have a Nonwhite Voter Problem

Ruy Teixeira in the Liberal Patriot:

The release of a characteristically thorough analysis by Nate Cohn in The New York Times provides abundant and persuasive evidence that this trend is real and shows no signs of going away. As Cohn notes, Biden leads Trump by a mere 53-28 percent margin among these voters in a merge of 2022-23 Times/Siena College polls. This is not only a sharp fall-off from Biden’s support in the 2020 election, but also from Biden’s and previous Democratic candidates’ support in analogous pre-election polls….

None of this means that nonwhite voters are now going to become a Republican constituency, despite these voters’ concerns about the Democrats and cross-pressures on issues. Hardly; Biden will likely carry these voters by a healthy margin in 2024. But it does mean that Democrats’ hold on these voters may well slip further in 2024, cutting Democrats’ margins dangerously among a group that has been the bedrock of Democrats’ electoral strategy.

---

Cheap Shots

Poems.