Behavior no court should tolerate
Can I ignore or disobey a court order?
That, I thought, was a rhetorical question. A question for which the answer was self-evident. Perhaps it’s a question for which the right answer is self-evident and the wrong answer will get you in some serious trouble. Like, Honey, don’t you think this dress makes me look fat?
Apparently, after nearly 40 years of practicing law and time as a circuit court judge, I was mistaken. According to the Attorney General’s report on violations of the John Doe secrecy orders, some senior state and county officials, often themselves lawyers, treated the unequivocal State Supreme Court direction and prior circuit court orders to halt investigations, halt use of documents, to collect and file materials and to notify all affected parties as mere “suggestions.” Those individuals, according to the Attorney General’s recent report, not only failed to comply with the Supreme Court’s explicit directive and the prior directives of other courts, they openly defied it.
Perhaps in the hyper-political cloud now enveloping the Capitol the sight-lines from the former GAB to the Wisconsin Supreme Court were obscured. But, such behavior would never, and in mean NEVER, be allowed to go unpunished in any court before which I appeared.
Indeed, my recent comments to even the most liberal Madison lawyer, “Can you imagine what Judge Shabaz would have done to these folks?” resulted in peals of laughter. They would be facing personal fines, potential jail time and more. Respect for a court is not optional.
All this is made even worse by other facts disclosed by the Attorney General’s investigation. According to the report, the parties failed to tell the courts that there were more records, from even more people, related to the investigation than those disclosed to the Wisconsin Supreme Court. State Senator Leah Vukmir’s private communications with her daughter were a highlight, but apparently there were even more (and more likely not disclosed in the report).
So, here’s the problem that non-lawyers may not recognize. When the other side in litigation asks you for documents or asks for an answer to a question in discovery, the attorney often hems and haws, parses words and generally tries to avoid providing what is asked for. It’s semantic gymnastic gamesmanship. Courts admonish the lawyers to cut it out, but a certain amount of pushing and shoving, as on the basketball court, is allowed.
BUT, when the court asks for something or when the court demands something by way of an order, the games END. And here again I mean END! Wow-be to the lawyer who fails to give the court the respect its order demands. If the order is not clear, every lawyer knows to ask the court to clarify. You do not assume the reading most favorable to your client. Or, if you do make that assumption, and you are caught, the consequences for you as a lawyer are that the court will never again trust you. The consequences for your clients (the one then before that court and later clients as well) are, once the court distrusts you, dire.
The Supreme Court of Wisconsin, and other courts as well, have been disrespected on a level never before seen. The Supreme Court, and every other court involved, must now act decisively and unequivocally with all their powers against any and every individual involved. Anything less would be a travesty.
Why do I call this a “travesty?” Is the use of the term hyperbole? No, it is an understatement.
Every day, in every court in this state, judges make orders and demand compliance. From small claims cases to murder trials, and every case in between, those orders must be followed. If, in the John Doe probe, gross failure of compliance by state officials and employees is excused (and failure to punish severely is the same as “excused”) then why should anyone comply with court orders? Do we have two separate systems of justice? If you are powerful enough you are excused? If the publicity is enough, the act is forgiven? If the case has gone on for a long time we just look the other way?
As is often said when things in a courtroom are obvious, “This is not a close case.” This is a case of gross failure to comply with a Supreme Court order and a gross failure to comply with other court orders as well. This is a case of gross failure to disclose essential matters to the court by attorneys and by the parties.
We shall see if the sordid tale of this ‘weaponization’ of government agencies goes unpunished. Many are watching to see if behavior that would not be tolerated by any court before now, is now excused. We shall see.
— Jim Troupis 01-21-18
Dr. King’s legacy transcends race
I guess it is easy for those who have never felt the stinging darts of segregation to say “Wait.” But … when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky … then you will understand why we find it difficult to wait. — Martin Luther King Jr., “Letter from Birmingham Jail (1963)
In the traditional American society of my youth, people listened to each other and changed the way they thought. Facts were something to consider. Reasoned argument based on those facts would become the basis for further discussion. We were not so afraid to switch sides. We were not concerned that the view we had yesterday might be different than the view we would have tomorrow.
The magnificent oratory of Martin Luther King Jr. did, in fact, persuade us to think differently.
I was from a small town and had little or no contact with people of color. Yet, listening to Martin Luther King Jr. changed the way I thought. With the encouragement of Mr. Warren (a high school teacher and debate coach) and Professor George Armstrong (at Bradley University) I even recited Dr. King’s “I Have a Dream,” Washington DC speech in the state speech tournaments my senior year in high school.
Then, like now, the powerful image of a child moves us all.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character … one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today!
At that time of my life, Dr. King made me think of what it was like for the otherwise unknown fellow youngster. In the midst of all the turmoil that came — Vietnam, assassinations and more — followed by the long darkness of a Presidential resignation, inflation and the general malaise of the later Carter years, we were still able to walk together toward common goals. We could be persuaded.
The opportunity of school choice
In the 1990’s, sitting with a true mentor, John MacIver, I asked how he — an ardent Republican and advisor to governors, senators and presidents — could spend such energy and personal capital on school choice. After all, it had nothing to do with the areas where Republicans flourished. It provided no direct benefit to the Republican base.
Looking out his 35th floor window in downtown Milwaukee he simply pointed to the surrounding neighborhoods.
He explained that it would be morally bankrupt not to try something to help change the trajectory of Milwaukee’s minority children. To relegate generation after generation to second-class citizenship by parking those children in crumbling schools, with incompetent teachers, walking through hallways more akin to prisons than places of learning, was a sin of omission. Parents of those children, he would argue, should have the right to choose where their children would attend school and in the process they would be empowered and education could be improved.
In the final tally, MacIver would argue, this must have nothing to do with present day political advantage. Who benefited — black, white, Hispanic —most not be a part of the calculation. Regardless of election outcomes, “Good policy is good politics.” And in those days he was joined by a host of Democrats, independents, community leaders and others in his quest to do something to change the trajectory for the children.
In the last year the protests over Confederate statues again brought me to rethink my views. Symbols of a different era, so potent in invoking images akin to those Dr. King spoke about, are important to consider. Instead of the shouting and viciousness — which drove so many good people away — it was the commonsense argument that would win the day for me. It feels like a rare occurrence these days — people changing their views, without regard to the politics.
There remain many issues on which we as a country ought to find common ground. To do that we must share a common culture and common goals. To do that we must listen and be persuaded by facts and reasoned argument. By exposing the American people to the facts and reminding us all of our mutual beliefs, common heritage and promise of our Founders, Dr. King lead us all to change.
His legacy can teach us much about far more than race.
— Jim Troupis on 01-15-2018
Can America get serious in 2018?
We all know the old saw “Don’t sweat the small stuff.” I wonder as we enter 2018 if we can ever, as a country and as individuals, heed that advice. Consider the lack of seriousness that permeated 2017.
Foreign meddling —There is the obvious — a late 2016 inquiry into foreign meddling in a national election (serious by any standard) morphed into an equally obvious politically inspired witch hunt for anything “Russian.” Seriously? People of every stripe (see, e.g. Mr. Podesta, Hillary’s Campaign Manager) have done business with Russians over the years. It’s an enormous player on the world economic stage, and economic ties have nothing to do with the inquiry. Heck, even I have been to Russia and taught at one of its law schools, and I suspect there are a large number of UW faculty too who have visited, co-authored, taught and otherwise interacted with their Russian counterparts. So, please end this silliness. If it’s about changing vote totals or contributing to groups in support of a candidate, then it ought to be fair game. Otherwise, shut it down!
Sexual abuse —Then there is the very serious issue of sexual abuse, harassment and domestic violence. Of course, Bill Clinton tops the list of sexual abusers, serial rapist and employer/employee misogynist. His behavior, once approved by so many, was an obvious catalyst for identical and worse actions by those in his social and political class. Indeed, our senior senator, Ms. Baldwin, who styles herself a serious advocate for women, failed the one serious test in her political lifetime to be that advocate. She failed to vote for impeachment and failed to speak-out in any meaningful way against his behavior until it became politically expedient. In any event, it’s no great secret that the press and many others have turned a blind eye to the sexual escapades of political leaders here in Wisconsin and in Washington over the years.
If a President and others can do it, and be honored for 15+ subsequent years as a paragon of virtue, what does that say about us? If everyone in Hollywood knew for years about Weinstein et. al., then what a pathetic display of opportunism it was for those same multi-gazillionaire glitterati to parade to the podium in mourning colors as they appeared at the 2018 Golden Globes! Only when the going got easy to criticize, did they care to act.
Abuse of women is so much more serious than the recent display of opportunistic preening. Women each day face horrific abuse. Each year 500+ women are killed in what we euphemistically call “domestic” abuse — as if labelling it “domestic” someone reduces the crime from what it is — assault, attempted murder, battery.
So, when boorish behavior by some politician or celebrity (and of course some of what has happened is far more than boorish behavior, and should be a source of criminal indictment) is decried as “horrible” and akin to rape, the charge minimizes the real crimes and their truly life-threatening consequences. To recognize the importance of domestic abuse and real harassment in the workplace as issues and insist that judges, prosecutors and society treat those acts as crimes and offenses against our most basic values, would provide a much needed seriousness to what is otherwise merely a political football used against others to gain political advantage.
Race relations — and minority achievement in our schools could not be more basic to our country’s inherent values. Relegating generation after generation in our inner cities to lives of poverty, drugs, crime and despair by failing to address education with new, innovative and accountable policies and funding is serious business. Yet, how much of the headlines in this past year were dedicated not to making a difference, but to grandstanding? Refusing to sell old school buildings to private schools on some ruse — when we all know it’s because they do not fit the political mood. Refusing to create a male charter school, or other experimental schools, while those potential children are relegated to second-class treatment.
This is not to say that issues of historical racism, and other issues de jour, are unimportant, but the serious issues are those underlying the failure to bring all people of all races along on the American dream. That dream begins with accountability in education, and perhaps 2018 will bring the seriousness to the issue that it deserves.
So serious dedication to serious issues is my New Year’s Hope. As with Spring Training, when every team has a chance, I believe 2018 can be a great year. Here is hoping those who can make a difference will in 2018.
— Jim Troupis on 01-13-2018
‘The Wall’ is more than bricks & mortar
In ancient Rome statues of the Gracchi were erected as symbols of Roman equality and democracy. In point of fact, however, the Gracchi brothers were both ignobly murdered by the very government that would later erect those statues. They symbolically spoke to the very things the Roman Republic had eschewed.
2017 saw the wholesale removal of symbols associated with the Confederacy of America’s 1860’s civil war. Those statues, erected to commemorate various deeds of Southern soldiers were for many decades symbols of bravery and commitment. But, to African-Americans those statues took on a different symbolic meaning—racial hatred and bigotry.
I was struck by the importance of symbols all this past year. It was lesson for many of us on the meaning of what we have around us. As a practical matter, those meanings are often lost for those of us who were no part of symbol’s creation. We learn as we go.
Curiously, this coming year will witness another fight over symbols of a very different type. That symbol — the “Wall”.
Not just any country
Of course the “Wall” promised by President Trump is sold to many as a method to keep our border safe. It is sold as an effective tool against illegal immigration, human trafficking, drugs and terrorism. And, it is reasonable to expect that it will, in fact, be an effective tool for those purposes. But, in reality, the “Wall” has far deeper meaning.
Erecting a “Wall” carries with it a clear and unequivocal statement about borders. It says that this country is a separate and distinct place, with separate and distinct values. A country does not exist in a vacuum, it exists with its own laws and customs.
It is not coincidental that the call for the “Wall” comes at a time when the distinct value of being an American is under attack from every angle. The internet’s rise has meant the deterioration of a uniform approach to culture. The world ‘out-there’ assaults us and our children daily. No longer is one able to keep the world at bay, even from the youngest toddler grasping at her Ipad. Programs originate from everywhere, with every kind of message imaginable.
The influx of immigrants from throughout the world is astonishing in its magnitude. Even such bastions of ‘progressive’ thought as California, for example, have sought to impose limits. They could not help but notice and react to the enormous number of qualified students from the Far East that have flooded its Stater Universities.
The American way of life, until recently a much sought-after melting pot, has become a very different beverage where separate cultures are expected to flourish, even as we seek some commonality. That assault on a basic set of values seems impossible to prevent.
The economic ascendancy of the world is perceived by many here to be the equivalent of a deterioration of America’s economic prowess.
A symbol of a great nation
So, the “Wall” has come to symbolize the USA’s greatness as a separate and distinct nation. “Make America Great Again” is not merely the slogan of a campaign, it is a cry for a distinction in a world so much less distinct than it once was. The “Wall” has become the symbol against which that distinction may be measured.
It is important to recognize this quest for a “Wall” as one built not merely on policy about immigration, but as an important test about symbols. While the debate will rage on for this month and beyond as if the task at hand is to solve the immigration puzzle — DACA, H1 Visa’s, Green Cards etc. — the real debate is much deeper and the stakes may well be immeasurably higher.
For President Trump, failure to build the “Wall” would be a failure of epic proportions precisely because the “Wall” is about much more than bricks and mortar. It is about the enormous number of people who feel they have lost, or are about to lose, something of irreplaceable value — their vision of America. It is about the people who, in fact, were the deciding votes in his election.
One can certainly argue that the “Wall” will not rebuild American values as they have existed. Such values, one can argue, are already lost. But, for a country so focused on symbols this past year not to recognize the importance of the “Wall” as a symbol is failure to see what seems so very obvious.
Against this backdrop, President Trump must recognize that he can give-away whatever the opposition may want in DACA and the rest of immigration policy, so long as in return the “Wall” is built. And the reverse is also true — any concession, without the “Wall” being built, spells the end of the Trump Presidency. Such is the nature of symbols.
— Jim Troupis on 01-11-2018
The Wisconsin Perspective
And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. — Declaration of Independence, Signed and Sealed this 4th day of July, 1776.
Consider this: Each of the signers of the Declaration of Independence signed, in effect, a death warrant. They would be hunted, they believed (and for some it proved true) by the greatest nation in the world — Great Britain — until they would be hung. Their entire families would be outcasts in the empire, and many of them too would likely be captured, tortured, hung or shot. That was the reality of July 4, 1776. Remarkable courage, by any standard. There are, indeed, things worth dying for.
So, this week, as we celebrate 241 years of freedom, perhaps bringing some Wisconsin Perspective to events is a wise choice.
The July 4, 2017 lead story on Yahoo news was a breathless recounting of a single Bill introduced in Congress by a dozen or so nameless Democrats to create a panel to determine the President’s competency. Seriously?
Has anyone working for this international website (and others who also covered the story) ever actually been to Congress or a State Legislature? Hundreds or thousands of Bills are introduced each year. And those with but a handful of sponsors in the Party out of power are meant simply to satisfy some person generally unknown, energize a base voter of the legislator’s political party or to satisfy a lobbyist charging a fortune to a client (and providing a donation later — “wink, wink, nod, nod — nothing to see here”).
This inane submission in Congress would surely be ignored in any other time. But, lacking even a modicum of perspective, this “news” is reported as if it matters.
It matters not at all what one thinks of a particular office-holder, or what one thinks of a particular issue to recognize that something is awry.
There are real and serious issues that, given any rational perspective, ought be front and center in daily news coverage. Health care, tax policy, environmental issues, energy programs, drug abuse, crime, schools, freedom of speech, freedom of religion — all come to mind. All these have legislative gravitas, and the media chooses to cover bupkis.
In Wisconsin we all seem to appreciate the important things during the Summer a bit more. That’s a Wisconsin Perspective. Summer comes and we head to the lakes. With winter now a distant memory, and not yet a foreboding cloud just over the horizon (except, in Game of Thrones where Winter has finally arrived — next week!), we tend to recognize it’s time for family, for a good meal and for old friends. Time goes quickly; the garden tomatoes will soon be ready; the flowers continue to bloom, and the mosquitos are out in full force.
Some argue that the Upper Midwest religious heritage — Protestant and Catholic— leads to a sort-of doom and gloom, don’t be so full-of-yourself, mentality. I think different. One must be a hardy and optimistic sort to live in Wisconsin, and in Summer we recognize what really counts a bit more than those in the namby-pamby South. (As one of my good friends likes to say, “Thank goodness for the weather, it keeps the riff raff out.”)
So, this week, one ought ruminate on the courage, foresight and sheer brilliance of our founding. Freedom is the legacy. Freedom to succeed, to fail and to be as we choose. Thank goodness our Founders had the perspective to know what counts.
Perhaps all of this is why during the week we celebrate our Freedoms, of all weeks, many of us feel so uneasy with the state of public affairs. It matters not what political party one claims, the obsession with the trivial seems overwhelming. There is no need to list those at fault, or to list the faults themselves. It is enough that we, the people, do genuinely recognize there are more important things in our lives.
“Perspective:”something those who choose public office, and those who choose to report on those in public office, ought to take stock of this holiday and this Summer.
Enjoy the Summer. Ignore the news. Keep that Wisconsin Perspective.
The Supreme Court: the Rule of Law returns
Perhaps it’s “Four Weddings and Funeral meets Three Cases and an Order”
The Supreme Court’s 2017 term was to be a non-event; a veritable calm before the Trump storm and the anti-climax of a 2016 election. The Court’s decisions, it was said, would finally confirm that Chief Justice Roberts had formally joined Justice Ginsburg in a sound rejection of Trumpian rule. It would be final confirmation that the swamp/cocktail circuit had swallowed the dastardly conservative apocalypse and those remaining would feast for four years on the carcass. Ooops, perhaps they spoke too soon.
In three First Amendment matters, the Court resoundingly rejected the Progressive’s hoped-for return to a Constitutional monarchy where Free Speech and Freedom of Religion would be prerogatives granted by the Establishment. Instead, the Court returned with near complete unanimity to the bedrock principles of speech and religion. Then, for punctuation, it summarily rejected campaign slogan constructionism in an order reinstating the Presidential immigration limitations.
Freedom of Speech
In the case that shall forever be known as The Slants, the Court held that the United States Patent Office could not reject a trademark simply because it was offensive or derogatory. (A rock band called itself “the Slants”, a derogatory term if there ever was one. By the way, they were all Asians.)
As a unanimous decision (Matal v. Tam), The Slants will carry particular weight, and the words of even the liberal block could not be clearer in signaling the likely end to the hey-day of college speech codes and the hecklers censorship condoned by Cities, States and Universities. As Justice Kennedy, joined by Justices Ginsburg, Sotomayor and Kagan wrote:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
We shall see if Slants is a marker of better times to come for the First Amendment. But, there is little doubt members of the Court recall their history lessons and today’s hated speech/group may well be yesterday’s African-American protester (circa 1960) or yesterday’s Union organizer (circa 1910).
In yet another unanimous decision, the Court tipped a toe into the data flow of cyberspace. On its face, Packingham v. North Carolina involved one of the most vilified of all criminals: the child sex offender. North Carolina barred convicted sex offenders from accessing any and every social networking Web site where minor children might surf. The Court held the prohibition violates the First Amendment.
Consider the public’s perspective for a moment. Is there anything more universally accepted than the need to protect children from predators? We restrict felons in many different ways, don’t we? Isn’t it reasonable that a convicted sex offender be barred from a grade school playground?
But, consider the Constitutional principle of Free Speech. Could a convicted felon, sex offender or otherwise, be barred from speaking in a public square? And, if a sex offender could be barred, why not a drunk driver or burglar or white collar criminal? It is that dilemma, and a difficult choice, the First Amendment requires Courts to address. The Court resoundingly found that every citizen, even the sex offender, has a right to speak.
Packingham, importantly, will stand for a new and important First Amendment principle. In the Court’s words, (which again included every member, including Ginsburg, Breyer, Sotomayor and Kagan):
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then after reflection, speak and listen once more … A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights …
While in the past there may have been difficulty in identifying the most important places…for the exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the Internet’…and social media in particular.
The Internet, cyberspace, is now the “public square,” and that has enormous implications.
Consider, for example, that there is little doubt the Internet poses a continuing threat to those in power. Witness virtually every dictatorial government’s attempt at control. The First Amendment, thought to be on life support in recent years, has been re-oxygenated by the Court’s insistence that the Internet be treated as a public square — open to all and open to all ideas. Government intrusion, no matter how benign or popular, may run afoul of the First Amendment’s protections.
Freedom of Religion
Of course, the First Amendment is more than speech — it is religion as well. And, to punctuate the term and it’s likely long-term impact, the Court held in Trinity Lutheran Church v. Comer that the Free Exercise Clause has real meaning in an age of ubiquitous federal, state and local grants
The backdrop for Trinity Lutheran is instructive. Missouri wanted to encourage use of recycled materials. So, Missouri decided to provide recycling grants to those building playgrounds with the favored materials. The Court held that if the government is going to subsidize, then the subsidies must be available to religious and non-religious institutions alike. Whatever the criteria may be, one of the criteria cannot be the absence of a religious organization’s involvement. By conditioning a grant on the ‘absence’ of religious affiliation, Missouri had, the Court reasoned, penalized Trinity Lutheran because of its religion. The decision’s sweeping character in the Court’s own words:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion … The consequence is, in all likelihood, a few extra scraped knees. But exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.
The irony here is that Missouri was doing its best to avoid controversy. It was trying to skate as far from the line demarcating public from religious as it could. As with its Freedom of Expression decisions, the Court has clearly laid a marker here. It is time the pendulum against religion swing back. It is time we acknowledge that religious neutrality is not synonymous with religious hostility.
Separation of Powers
And finally, the ORDER. Trump’s Immigration Restriction #1, for all intents and purpose, upheld. Nothing more need be said. The Court recognizes, as it did with Obama and every President before, that their role is not to second guess the electorates decision to place someone in the White House.
A momentous Supreme Court term — unexpected. Prognosticators and fortune-tellers, pundits and law professors, pollsters and the public all predicted poorly. The Rule of Law remains alive and well.
Congressional Democrats: Rope a dope and other legal strategies
Mohammad Ali had some truly epic boxing matches — Thrilla in Manila, The Fight of Century and the Rumble in the Jungle all come to mind. Brutal combat of Ali v. Frazier (three times) and Ali v. Foreman. The one that stuck with me, and the one that is often said to be the greatest match of all time, was the Rumble in the Jungle: Ali v. Foreman in Zaire in 1974. Foreman was the most formidable opponent imaginable. He could, and did, knock-out virtually every opponent.
Ali had little chance against Foreman. So, Ali came up with a wholly unexpected strategy —the “rope-a-dope” stratagem. In boxing parlance, Ali simply backed up against the ropes and let the other guy flail away. The theory requires that the other boxer be lured in and then get worn down. It worked for Ali and now the Democrats appear to have deployed it anew on the unsuspecting Republicans.
In courtroom litigation the rope-a-dope strategy goes by many different names, but the technique is the same. Wear down the opponent. Endless motions, endless discovery, seemingly non-stop demands, aggressive letters and phone calls and generally being obstreperous. Endless “investigation.” Judges tend to step aside during such battles; assuming, as they do, that the lawyers run their own cases and both sides know what they are doing. (Hint: that is often not a correct assumption, but so it goes.)
It seems fairly obvious, doesn’t it, that the Congressional Democrats—many are lawyers, not so many boxers–are undertaking a virtually identical strategy?
Consider the “Russian Probe” — Rosenstein folly, Comey two-step, Mueller madness. No one really cares outside Washington. (Ok, a small rabid group cares, but that’s a nit.) How do we know this? Consider that the one thing all the pundits agree upon: the public was fed-up with Washington games last year and expressed that view by electing Trump. “Drain the Swamp” and all that … Now, Congress and the Washington bureaucrats are off ‘investigating’ the winner and refuse to discuss even the most basic substantive issues.
Here we are, mired in the spectacle of a sitting attorney general defending his manhood to the same people he worked with for 20 years. If this was an ordinary business, can you think of a single person who would put up with this? A single person who would not react by taking steps at this point to get back at those forcing him into such a defense? No man or woman I know with a spine would put up with such point-blank disrespect.
Why does this happen?
Perhaps it’s because the “swamp” is just that. It’s a seething, putrid, rotting pile of decomposing plant life. It knows nothing except to continue to survive in some form. It has no concern about what tomorrow may bring and no idea what that tomorrow will be. It goes on and on and on — rope a dope, litigate for no purpose except to litigate.
Still, that courtroom judge had it right. Each side knows the game. Don’t doubt that. Each understands that the purpose is no longer the Russians, election integrity or anything within haling distance of something admirable. This is pure and simple an attempt to avoid the real fights on policy — healthcare, taxes, immigration and spending.
The fight over policy has not even begun. The Democrats (and perhaps some Republicans) simply do not want to debate policy. One can argue why, but that’s not the point here. There is little doubt that the sole purpose of what is now going on is to make sure there is no such debate. Or, perhaps, that the debate not begin until we are again in a full-fledged election season next year. At that point it really doesn’t matter. It’s Washington gospel, after-all, that nothing passes in an election year.
As we each head-off into the summer vacation, the picnic in the park or the time on the boat, they dither and dance in Washington. They duck and dive. They dance like butterfly, sting like a bee. They talk endlessly. All this is the hallmark of Rope a Dope. It’s all a game. It’s all about power and no substance. It’s an endless series of moves and countermoves, paper on paper, investigation on investigation. It’s just getting old, isn’t it?
Reflections on our fathers and the origins of Memorial Day
The Civil War had ended just 36 months before the first Memorial Day. (“Decoration Day”) The wounds of war ran deep. Indeed, so deep that more than150 years later some still remembered and demanded symbolic recompense in the removal of Confederate statues in New Orleans and Confederate flags in North Carolina. In that light I found myself twice in recent weeks reflecting on what this day ought to mean.
Meeting with a close friend with whom I have fought epoch legal battles, our conversation turned several weeks ago to our fathers. Mine, a Greek immigrant’s son and college student in 1941, volunteered and became a communications specialist in the Pacific. He would rarely reflect on his time in the Pacific, though he left a daily diary of those war years. He watched as ships around him burned and sank. He learned to fight and he felt the heat of battle in a foxhole. He never hesitated in his approval of the horrific, but necessary, end of that war. As he would have been in the first wave to touch ground in Japan, it is probable there would be no ‘today’ for me had the war ended differently.
For my friend, WWII was much different. His father was a minister who volunteered for the Marines. He would never carry a gun, but he knew his place was among those soldiers. As the Japanese dug-in on the seemingly endless Pacific Islands, his father became a true hero. The order had gone-out from Japan that no Japanese soldier was to surrender. Each would fight to death (as they would have in Japan itself but for the emperor’s surrender), and it was in that light that my friend’s father was called. (A “calling” is a true act of faith. A belief that we are called to a moment, to an occupation, to a life.).
Late one night, the minister without a gun (he would never carry one during the war), crossed alone through enemy lines. He heard there was a cave where a group of Koreans enslaved by the Japanese to build the tools of war on that island were being housed. Those Koreans were all destined to die because the Japanese would never surrender. The minister entered the cave expecting a certain death, but as the Koreans spoke to him he spoke back in their language!
They were taken aback as he explained that they would all die in that cave. They asked who he was and he told them his name. Instantly, several of the men asked if he was, in fact related to a person of the same name who had ministered to them back home. “Yes”, he answered, “he’s my father.”
Those who had asked immediately explained to the others that this man must be trusted— his father had been such a good man. Many of those in that cave had actually converted to Christianity as a result of his father’s good works.
After a brief discussion, all of those Korean men followed the minister through the night, through the jungle and miraculously were not discovered. Forty souls saved by a man without a weapon, with only his faith.
These are the stories of real people doing heroic deeds to protect our freedom.
In distant times soldiers too performed great acts of courage but more often than not they were meant to preserve not ‘freedom” but instead, “privilege.” The privilege of a monarch. The privilege of a class. The privilege of a master. So, the fact that Memorial Day was founded not at the beginning of the Republic but only after a great price had been paid for the sin of slavery is instructive. Pre-Civil War, this was a great country, but it was not the country we now have. The Civil War was itself an act of faith in equality. It was an act that transcends time because it was an act to secure freedom for all, for all time. It was not an act taken, or a sacrifice made, for privilege.
Reflecting both on the removal of those Civil War symbols and the work of our fathers is an appropriate thing to do this Memorial Day. True freedom for all is an essential component of this country and it comes in many forms and comes in many different ways.
The stories of our fathers — mine and my friend — are of warriors in very different cloth, but each was a hero. Each represents what we have come to expect and often take for granted. They are stories worth remembering this Memorial Day.
ROADS: The Romans Did Them Far Better
“Gallia est omnis divisa in partes tres.”
So begins Caesar’s great Commentaries on the Gallic War (“All Gaul is divided into three parts….”). To this day, from Provence to Barcelona to Jerusalem and to Rome, one can still see the roads the Romans built. The wars of Rome were made possible by those roads and the Roman empire followed each conquest by building even more roads. It is commerce that even now we can appreciate. So, as the legislative wars of Wisconsin play out this summer over the “roads,” one might appreciate their importance and their triviality.
In our modern times the importance of roads remains, albeit perhaps soon to be less important with those mythical flying cars just over the horizon. (Back to the Future told it all, right?) To hear the cacophony of legislative and executive voices these days in Madison one might surely think the stakes are as high as those of Caesar’s time.
We have the Governor on one side adamant there will be no tax increase. (SPOILER ALERT—The Governor will win.)
On the other side we have the Assembly proposing all manner of new tax ideas. (SPOILER ALERT—They will lose.)
And now, we have a third side — the press says Wisconsin should finally accept the inevitable and begin converting to toll roads. A curious suggestion given that the support for this proposition comes from that bastion of fiscal responsibility to our South — the Land of Lincoln, and the home of bankruptcy.
But the players are not so limited. The Road Builders, authors of the most recent Wisconsin Constitutional amendment (you forgot that, didn’t you?), are mad at everyone. Why, you ask? Well, they are, of course, quite familiar with getting their way, given they are perhaps the largest contributor to Wisconsin political candidates now that WEAC has been dethroned. If it takes more taxes to build more roads, then those who are to be paid to build the roads (i.e. road builders) support the taxes….DAH.
Let’s not forget the people of the State. In an unscientific survey one might conclude that the Road Builders are not the public’s most loved constituency. After-all, when is the last time you saw a road contractor actually displaying the name of the company at their job site? (For the record, Lunda Construction does not count, because they are a “bridge-builder” and everyone in Black River Falls (Lunda Construction’s home) is a really nice person.)
Not to be cynical, but perhaps various road builders have concluded that taking roughly one thousand years to complete the South Beltline/Verona Road project and an even longer time to complete the Milwaukee Zoo Interchange might not endear those contractors to the public they serve.
Being an equal opportunity cynic on road matters, take a drive out Mineral Point Road. As you head West and bounce on the endless concrete patches from West Towne to the Beltline, you might wonder why that road looks so new and yet acts so very old. (Even the Appian Way of ancient Rome is in better shape.) As you then pass through the elaborate intersection past Menards and Target/Junction Road, look to the South. There you will see the most beautiful circular descending bike path in America. The Guggenheim Museum of Frank Lloyd Wright fame will come to mind as you admire the magnificent multi-million dollar circular bike path with its wrought iron rails and sculpted concrete.
There is one thing you will never see on Wright-Guggenheim bike path — a bicycle. It connects to nothing and to nowhere. What’s a few extra million when someone else pays it? Ah, the efficiency of your road dollars at work ….
But let’s not simply deride the kings of fiscal responsibility and common sense who run Madison, as Verona (otherwise known as the City of Epic) is the home of Wisconsin’s first bike “roundabout.” The MacIver Institute for Public Policy spent a day there and the video of how well that project has turned out is downright SNL hilarious.
My best guess is that while legislators will bay at the moon and the Road Builders will claim the world will end, this road funding brouhaha will end soon. It makes for good local theater.
However it ends, I think we can all safely say that unlike Roman accomplishments, in two thousand years the roads built here in our State will be dust. These are not the affairs of Roman legend, and despite what the Democrats may say, Governor Walker is not Caesar’s tyrannical heir.
On the Benefits of Chaos: Trump at 4 Months
I recently returned from a week-long trip to Washington where chaos reigns. Well, that’s no surprise—chaos is a Washington constant—but this was chaos at a new level. Not bad, just a reality.
Of course “chaos” as a mathematical theory simply acknowledges the obvious, yet oft disturbing concept, that a butterfly in South America may cause a tornado in Arkansas—the “butterfly effect”. In established systems (e.g. climate & traffic) where final outcomes are particularly sensitive to slight changes at the outset, chaos theory posits that predicting an outcome in the future from the present state of affairs may simply be impossible.
So, we have in the first four months of the Trump era a previously well-known and predictable system—establishment politics, now beset by a new and unpredictable set of actions. “Chaos” as no longer a scientific principle, but a political fact. Appointments not made, firings on the rise, legislation on every major front (healthcare, taxes, maybe the wall), foreign leaders dining at Mara Lago and regulations revoked. This is the stuff of legend and the stuff of mathematics.
It is more than a bit amusing (one might say “frustrating” or “frightening”) to watch. Those I spoke to in Washington were appalled at the election outcome (professional politicians, pundits, pollsters and hangers-on obliterated at every turn) and now can hardly have a conversation without complaining loudly. And, it matters not at all if one is a Republican or Democrat—the effect of chaos is uniformly unpleasant to those who traverse the halls of the Federal bureaucracy. They really do not have a clue how to deal with this changed reality.
We’ve all heard that disaster looms on the horizon with Trump in the White House. Truth be told, we all do feel that on occasion. Blame it on the media if you like, but the reality of Washington this month is very much gloom and doom with or without the inevitable fertilization provided by the daily media spin. But, we ought to take solice in the reality of mathematics.
Chaos theory does not predict a bad outcome. No, instead it provides a certainty that while we may not know the outcome, the dynamics of the system will ultimately provide an outcome that we can explain. Not predictable in the present, but fully explainable in the future.
That is where we are now. The Trumpian butterfly (“Monarch” to some) batting its wings furiously. It feels like chaos, because it is chaos. It’s not time to judge if this is good or bad. It’s time to watch for the tornado.
Hoosier Dreams: Coach Trump takes charge
By Jim Troupis, retired Dane County circuit judge 02-01-17
“Look, mister, there’s … two kinds of dumb. A … guy that gets naked and runs out in the snow and barks at the moon. And a guy who does the same thing in my living room. First one don’t matter, the second one you’re kinda forced to deal with.” — Hoosiers
Perhaps all great political contests are spelled out in Hoosiers; just as all life lessons may be gleaned from The Godfather.
It took President Trump less than 240 minutes to fire an Obama apologist, a/k/a Acting Attorney General Yates. Not quite sure why it took him so long — probably a delay in the press release. If you do it my living room….
For most, this “You’re Fired” moment was pure Trump. But it was really much more.
To begin, a lawyer’s obligation runs first and foremost to the client. Every Code of Ethics applicable to attorneys requires absolute loyalty to the client. (“… a lawyer shall abide by a client’s decisions concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued.” — Model Rule of Professional Conduct, American Bar Association, Rule 1.2(a).)
That obligation is no different for a public lawyer whose client is, after all, the government itself. Every lawyer joining the U.S. Department of Justice signs a document that explicitly states these obligations. Here is what it says:
As an incoming Department of Justice attorney, it is important for you to remember that you are not only a federal government employee but also an attorney representing a client (in most circumstances, the Executive branch of the United States…) with all the professional responsibilities that entails.
Ms. Yates was required to defend her client, the President, and defend the law.
So, what happens when a lawyer disagrees so vehemently with the client that she can not, in good conscience, express the view the client demands in a Court? Rule 11, for example, of the Federal Rules of Civil Procedure, imposes an obligation on counsel not to make a frivolous argument to a Court, even if the client demands it. When the client tells the lawyer she must make a frivolous argument, the lawyer simply resigns.
Even after she resigns, the lawyer still has an obligation to protect her former client’s interest. No “tell-all” books are allowed. Your obligation includes never telling anyone the reason you resigned. (“A lawyer shall not reveal information relating to the representation of a client….” Rule 1.6). Ask any judge, anywhere, at any level, and they will confirm these rules.
If an attorney violates the rule protecting the attorney/client privileges — revealing confidences—that attorney would face discipline, even to the point of losing her license to practice law. Ms. Yates held a press conference as her “tell-all” book!
But, as with all things Obama, the rules just don’t apply. Instead, this Acting Attorney General is simply fired — no professional consequence. The media, many of whom are themselves attorneys, stand by in one last gasp of the Obama rules.
Not surprisingly, the reasons given by Ms. Yates are as phony as the act itself. The Executive Order, she says, is indefensible because the earlier opinion of her office approving that Order did not take into account the political motives of its author, the President. Seriously? This from a Justice Department that loudly argued for Courts to ignore President Obama’s statements about the intent of Obamacare. Ignore what they said in passing President Obama’s signature law, but, now, she argues, President Trump’s motives control.
The feigned outrage of an unethical lawyer is a sad postscript to an era of Department of Justice lawlessness.
Of course, perhaps soon it will be different. Recall that once the prior coach was fired, the Hoosier team succeeded as never before. So too, we can hope, a Jeff Sessions Department of Justice will return to the rule of law.
The Bully and the Coward
By Jim Troupis, retired Dane County circuit judge
It’s a scene played-out in every culture and among virtually all animals and through all of time. The bully, the preening peacock shouting, huffing, threatening and demanding. Yet, so often, the bully masks an inner cowardice. Unable to win in a fair fight, the bully eventually must flee, as the coward the bully truly is.
These are the images of this past week, and much of the past several years, of liberals, progressives and many Democrats. Consider the lack of debate allowed today on a college campus. Why? Is it because the campus is ruled by bullies? Preening and demanding—always shouting down others—and even passing rules that bar others from appearing.
The college campus examples are legion; climate change, religion, abortion, sexual orientation and speech generally all come to mind. Even a Nobel Laureate, Secretary of State, Member of a Parliament or past President whose views may run counter to the professors or students, is likely to be barred from speaking.
Consider the vicious language and intimidation in Wisconsin’s capitol in 2011. The bully was ever present. Repeated over and over was the image of a protestor in someone’s face, shouting and demanding, and never allowing others even to speak. It seems so obviously an act of a bully. Intimidation is the rule.
Then we have the flip side of a bully—the coward. When challenged, the coward finds a way out. The coward never is willing to come face to face to win the argument. No, it’s either brute force or nothing. So rather than debate the merits of Act 10 in Wisconsin, the bully, now coward, leaves the State, as the Democrat Senators did.
Perhaps it’s the famous image of the playground where the conclusion is “If I can’t win, I’m taking my ball and going home.”
I recalled all of this during the extraordinarily impressive swearing-in of our 45th President. That picture, four former Presidents of the greatest power in the history of the world each having chosen, or now choosing, to pass their power to the next President. The Chief Justice solemnly swearing-in the President on a Bible held by Abraham Lincoln — extraordinary by any standard.
This was not a moment simply special to the participants, it was a moment special to the world.
The picture of this past Friday was something all the world’s people crave. Not that the leaders of those people crave-it—some do, some don’t. Rather, it represents the hope of tomorrow. It is a demonstration of a belief that we can do something great and unexpected. It is a demonstration to the world that, in the process, animates human consciousness. All that was on display and one could not help but be moved by it. Unless, you’re a bully and a coward….
That is what Congressman Pocan represented this past week, along with 70 or so of his colleagues. Bullies, turned cowards. Unable to win an election, they figuratively and literally take their ball and go home.
Perhaps this is our future where an entire political party chooses to reject our very system of rules. Unable to persuade their fellow citizens of their cause, they choose to shout loudly and preen. And, when they are challenged to respect the rules, they turn and flee, like the coward in battle.
The coward/bully Congressmen were not missed. Instead, they missed something special. They are the losers and cowards, and they and the public know it.
Reflections on a quiet day in the woods:
Snowmobiling in Wisconsin and Trumpian times
By Jim Troupis, retired Dane County circuit judge
Winter is a time of hibernation. Adding weight becomes the natural process. (Oprah, you’re wrong. Well not entirely, if there’s money to made there’s an Oprah opportunity).
The birds no longer sing. The mosquitos, flies and sundry creatures seem to have disappeared. (Excepting, of course, the ubiquitous stream of box-elder bugs crawling up our walls.) And, wonder of wonders, the “We need your donation for the XYZ charity, political favor, once in a lifetime vacation,” phone calls of the holiday season seem to have died down. (I still can’t figure out who the “no-call” list really bars. Even my cell phone is infected these days.)
All of this is pure fancy, of course, if, like me, your definition of a quiet day in the Wisconsin wilderness is a snowmobile weekend: hurtling through the woods with 8,000 decibels of quiet, gleefully risking life and limb in a race to the next Pub. As I dodged the oncoming sleds, traveling at roughly 100 mph around the latest blind curve (having recently left the tavern in the woods, not to be confused with the now closed Tavern on the Green — except the noise here is far less annoying than a New Yorker’s accent), it occurred to me that this is all a Trumpian dream.
After-all, loud and brash virtually defines the snowmobile in the wilderness. What better way to define our incoming President. And the wilderness — all quiet and serene — certainly defines the state of affairs before this Friday’s Inauguration. If you doubt me (as my children do with abandon) just ask the ignoble CNN reporter in the front row of the President-elects first press conference. I believe he is still shouting that he is “entitled” to a question. Yeah, right, in your dreams. Apparently CNN did not get the memo summarizing the political dynamic so enshrined by the know-it-all party: “We won. You lost. Elections have consequences.” Barack Obama (2008).
There is, as well, the sort-of drunken abandon of the trail. Where else but on an isolated lake in some distant Wisconsin forest is the listing of a “closing time” non-existent. The party ends whenever…. Isn’t Twitter a bit like that? What college kid has not been told, “Never text after drinking. Never, Never, Never.” And what ‘Ex’ has not regretted picking up the phone at 3 A.M.? Now, of course, it’s the Twitter’er-in-Chief (who for the record does not drink) choosing a target of the day. And there certainly is no closing time on those.
As I sit now safely in my man-cave, sipping a bit of the ‘recipe’, the entire exhilarating and frightening experience (they are a bit the same) of a snowmobile weekend seems as close to a map of the next four years as one can get. It is exhilarating — markets are up, animal spirits are alive, walls of the political castle appear to have been breached. It is frightening — a non-politician is the political leader, the CIA is pissed-off (not the best choice of a day-one enemy) and Democrats are like the proverbial cornered mountain lion (lashing out for no real purpose except survival).
It’s a marvelous time! You gotta love it! This quiet day in the woods promises to be the snowmobile ride of the century.
Fish or cut bait — the new political standard
By Jim Troupis, retired Dane County circuit judge
Every fisherman is familiar with the phrase—“Fish or Cut Bait.” As the New Year begins, it is indeed the year of Fish or Cut Bait.
Right, left or the middle, Europe or America, rural or urban, 2016 brought a realization that results count. Be honest, you didn’t think that would be the case, did you? You had come to believe the spin. And spin it did, like the proverbial whirling dervish.
Recall now the field at the end of 2015. Convinced we were that the Republican bench was deep and that depth was so very evident in the sheer number of candidates. As it turned out, the numbers meant nothing at all. It was as if the Cubs again were touting the number of pitchers coming to Spring training or Michael Kors was touting the sheer volume of potential designs to be offered. Interesting, isn’t it, in 2016 the Cubs no longer believed in the numbers fantasy — a real team would be better. As for Michael Kors, well his stock has never been the same since Heidi K. declared, “You’re out.”
By March the field had narrowed but still, who believed?
Looking back now it’s easy, isn’t it, to realize the Trump phenomenon was demonstrated day in and day out at the size of the rallies. But really? You see the prize was not the nomination — Trump had that by February — the prize was to be decided in November and who, really, thought he had a chance? Certainly not the Press and even more certain, not Hillary.
Perhaps it really was too obvious for us. Having become accustomed to a game of thrones where only members of the political family are elected, the nomination of an imp would be nothing more than an historical anomaly. To the trash heap of history he would go.
So, when the #nevertrump and Hillary camp joined forces to make ad hominem attacks the rule of the day in the Fall, it was assumed what had been planted earlier in the year would wither and die. After all, what modern figure has survived once declared a racist, homophobe, sexist etc. — with audio and video to confirm?
In the end, the issues did actually matter. Now that was something new! It seems the cynicism of the age, where late-night comedy shows had so long been the source of each day’s news, did not yield an outcome. Instead, the public decided unemployment mattered. Wage stagnation mattered. Soaring crime rates mattered. Uncontrolled borders mattered. Schools that indoctrinated but did not teach, mattered. And that is the most ironic outcome of the 2016 cycle.
By the time November 8 arrived, a majority it seems, did know what mattered. And, it wasn’t the sexual innuendo, contrived racism or foolish allegations of homophobia. It was that, in a republic, where the people would make a choice, they chose sanity over unending insanity foisted upon us all by a political class.
Now, as the New Year begins, the issue will no longer be the latest breathless scandal revealed to the minions by the perpetually offended; but rather, it will be substantive policy. How odd is that? A government judged by the substance, not by the soundbite. And that, of course, is the most ironic result of all. That a season (a decade, a modern era) dominated by personal attacks, will be judged by outcomes on substantive issues. That is the lesson we learned. Issues — immigration, health care, unemployment, wages, safety— really matter.
Now, we will see. The people demanded change on substantive matters. So now we will see, won’t we? It is time to fish or cut bait. The winners must now deliver. The fishing season begins, and we shall soon see what the net holds.