Results matching “louis butler”

At Forbes.com, I expand on my earlier post on Sears v. Butler:

Front-loading machines use less water and energy than traditional top-loaders. But because the rubber door gasket is on the side of the machine instead of the top, water can collect around it; if a user does not wipe the door clean between uses, or does not use bleach in his most recent washes, mold can develop and give off what Consumer Reports has called a "musty" smell. The problem affects less than three percent of washers. Even with this possible side effect, Consumer Reports has rated this class of machines "best all around," and notes that users can prevent any mold problems with simple precautionary cleaning.

Nevertheless, Whirlpool has been targeted in an unfairly expansive group of class action lawsuits. The plaintiffs allege that the very fact that any mold reveals itself at all demonstrates the product is defective and that every washing-machine owner is entitled to damages, whether or not they've encountered mold. The claim that Whirlpool has done something wrong becomes substantially less sympathetic when one realizes that every major washing-machine manufacturer is facing a similar class action. Trial lawyers are seeking to profit off of manufacturers' efforts to produce environmentally-friendly machines.

Read the whole thing.. Compare and contrast Andrew Trask's discussion of a Louisiana federal court's rejection of a similar lawsuit, Duvio v. Viking Range Corp., where plaintiffs made a vague kitchen-sink (ahem) set of product-defect allegations against the entire product line produced by Viking Range.

Stephen Moore at The Wall Street Journal reports on the April 5th election for Wisconsin Supreme Court, which organized labor and the political left are trying to turn into a referendum on Gov. Scott Walker's budget and collective bargaining reforms. From Political Diary, "Wisconsin's Battle Supreme":

State supreme court justice elections are typically slam dunks for the incumbent unless there is a scandal or a high-profile court decision that galvanizes opposition. In this case, incumbent David Prosser is caught in the crossfire over collective bargaining issues. Conservatives currently hold a 4-3 majority on the Wisconsin court, but an upset would give liberals the balance of power. Mr. Prosser's opponent, JoAnne Kloppenburg, was a relative unknown and a decided underdog until the protests ignited in Madison. She is now running around that state arguing that Mr. Prosser is a rubber stamp for Governor Walker and his agenda. The liberal groups are up with ads called "Prosser Is Walker."

Union activists and their allies explicitly link Kloppenburg's candidacy to reversing the new collective bargaining law in the Supreme Court. As The Superior Telegram reported, "PeopleFirst rallies behind Kloppenburg," quoting an organizer for the group, Mike Raunio:

Raunio says Kloppenburg could be a vital asset to repealing Scott Walker’s cut to collective bargaining rights.

“She is an ally to the people of Wisconsin. If we help her to get into to position then she will defiantly be an advocate to the rights of workers and everyday citizens.”

Both candidates have accepted public financing limiting their expenditures to $300,000, so outside groups are doing the advertising. Wisconsin Manufacturers and Commerce recently went on the air with a restrained pro-Prosser ad. In a fund-raising appeal to its members, WMC President James Haney wrote, "One union even told its members they want to defeat a Supreme Court justice to 'get even.' It’s shocking and they are putting big money behind their efforts, including boycotts of home-grown Wisconsin employers."

On April 5, Wisconsin voters will elect a justice to the Wisconsin Supreme Court, choosing between 12-year incumbent David Prosser (campaign website) and Joanne F. Kloppenburg, an assistant attorney general (website). Left-wing activists are supporting Kloppenburg's candidacy as the next stage in the fight over collective bargaining for public employees. Talk about politicizing the judicial elections.

Mickey Kaus, now at The Daily Caller, reports:

Second-Half Game Plan: Firedoglake’s David Dayen on the labor-Dem plans to fight back in Wisconsin after losing their battle with Gov Walker. The most intriguing wrinkle is the scheduled state Supreme Court election:

The matchup between David Prosser (R) and JoAnn Kloppenberg (D) for the state Supreme Court on April 5 just got very interesting. It’s a statewide vote, and the balance of power on the state Supreme Court is at stake.  …. If Democrats win, the legality of what took place tonight [i.e. passing Walker's plan-ed.] may be put in greater question.

Will Wisconsin voters feel comfortable turning a judicial election into, in effect, a referendum on a law Democrats don’t like? Will the other 3 Democratic-appointed Supreme Court judges play along with this slightly banana-republicy game? True, conservatives have often campaigned against liberal judges after unpopular rulings (e.g., Rose Bird in California). But it seems even worse, in terms of legal etiquette, to elect a judge in order to make a particular ruling, about a particular law, in a particular upcoming case. …

Ann Althouse, a University of Wisconsin law professor and top-notch blogger, also reports, "Politicizing the Wisconsin Supreme Court election":

There's an election coming up, and JoAnne Kloppenburg is the challenger to the incumbent David Prosser. There are many Kloppenburg signs at the march and, as I've noted before, although it's supposed to be a nonpartisan election, some people try to make it very political. I've seen many people out at the protests stressing the need to make Kloppenburg a Supreme Court Justice so that she can vote against the GOP budget repair bill and do other things that will help the party that lost the elections last fall get something back in the judicial process.

President Obama has renominated 42 judicial candidates returned to the White House after the Senate adjourned on Dec. 22. His list contains the four controversial nominees we've been tracking: Edward Chen, Goodwin Liu, Louis Butler, Jr., and John "Jack" McConnell.

Missing from the list, however, is Robert Chatigny, previously nominated to the Second Circuit.

The list of the nominations starts on Page 3 of The Congressional Record's Daily Digest.

Time for new generation of "Schoolhouse Rocks" videos, this one on how a federal judicial wins confirmation ... or doesn't. You could illustrate it with a symbolic black-robed figure walking up and down Pennsylvania Avenue, back and forth between the White House and the Senate. Or perhaps something more modern: The candidate could use the Pennsylvania Avenue bike lane to cycle between the two locations, with Chatigny sidelined with a flat.

• Wall Street Journal Blog, "Why Wasn't Robert Chatigny Re-Nominated?"
• ABA Journal, "Obama Renominates 42 Judicial Picks, But Not Judge Hit for Death Penalty Delay "
• AP, "Conn. judge dropped from Obama's list of nominees"
• Blog of the Legal Times, "Obama Suffers First Defeat on Judge Picks"
• Milwaukee Journal-Sentinel, "Obama again nominates Butler to federal bench

Earlier posts.

At the end of the day, Obama did pretty well for himself with judicial confirmations compared to other presidents, and to the extent he didn't, it's because he made only 41 nominations for 92 pending vacancies. Goodwin Liu, Louis Butler, and John McConnell were not among the confirmed. [Whelan; Kerr @ Volokh]

AP reports: "WASHINGTON -- After a monthslong blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama's non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal."

The AP only cites Goodwin Liu, nominated to the Ninth Circuit Court of Appeals. Sen. Sheldon Whitehouse (D-RI) last week identified the other three to The National Law Journal: Edward Chen, nominated to the U.S. District Court, Northern District of California; Louis Butler Jr., nominated to District Court for Wisconsin; and John "Jack" McConnell, the Motley Rice partner and Democratic contributor nominated to the District Court for Rhode Island.

Robert Chatigny, nominated to the Second Circuit, has not been reported out of the Senate Judiciary Committee.

UPDATE (Tuesday, 10 a.m.): News coverage:  

• WTAQ, "Ex-State Supreme Court Justice Butler Won't Get Fed Judgeship"
• LifeNews.com, Democrats Give Up on Votes for Obama's Pro-Abortion Judges"
• Milwaukee Journal Sentinel, "Senate deal cuts Butler from federal judgeship vote"
• Los Angeles Times, "Senate judicial confirmations skip 2 California nominees"
• Providence Journal, "Time running out on judicial nominee"

Senate Majority Leader Harry Reid (D-NV) has pulled the $1.1 trillion, 1,924-page omnibus spending bill after Republicans withdrew their support because of the now politically noxious earmarks. But we think it was Hans von Spakovsky's report that sealed the legislation's fate. Thursday afternoon, the Heritage Foundation's legal maven posted this at National Review Online, "In the Omnibus Bill, a Treat for the Litigation Industry":

Only God and Harry Reid know all of the goodies and unpleasant surprises tucked into the 2,000-page omnibus spending bill being crammed through Congress, but there's at least one gift for community organizers and ambulance-chasing tort lawyers: pages 199-200 of the bill, which contain funding for the Legal Services Corporation.

For years, liberals used the semi-government corporation to pursue lawsuits advancing their political and social causes, until a 1996 reform put a stop to most of the abuses. Lawyers funded by the LSC were prohibited from pursuing class-action lawsuits; engaging in political activities; challenging welfare reform and abortion restrictions; or representing illegal aliens.

However, as the "Explanation" accompanying the spending bill explains at page S9399 of the Congressional Record, Title V of the omnibus lifts the ban on class-action lawsuits and will "permit the use of funds" to file such actions.

It was the final straw!

Even without the omnibus, there's plenty of opportunity for legislative mischief as Congress winds up within the next week. There's a continuing resolution to fund the government, which one assumes will be clean, but maybe not. Sen. Reid this morning stressed his desire to move on nominations, again citing Deputy Attorney General nominee James Cole as a priority. Many judicial nominations have also been approved by the Senate Judiciary Committee and could receive floor action, including controversial candidates like Goodwin Liu, Edward Chen, Jack McConnell and Louis Butler Jr. (Robert Chatigny, nominated to the Second Circuit, never did get a committee vote.) The closing hours of a session often see the approval of a long slate of nominees.

Congress' departure is no guarantee of calm on the civil justice front, either. With Republicans in control of the House, the plaintiffs' bar is expected to turn to the Executive Branch to achieve its goals. Tax breaks for trial lawyers? As The Washington Times reported this week in a Page One story, "Changes on Hill bode ill for trial lawyers":

Tiger Joyce, president of the Washington-based American Tort Reform Association, said the trial lawyers group still has support from congressional Democrats who survived the midterm elections, but he thinks industry lobbyists will shift their "liability expansion" efforts toward "friends throughout the executive branch."

Mr. Joyce noted that the group has started a campaign through the Treasury Department to get a tax break that will allow trial lawyers to deduct costs advanced to clients immediately. Repeated attempts to persuade Congress to enact the tax break, valued at an estimated $1.6 billion over 10 years, have failed.

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, gave a Senate floor speech Wednesday protesting the slow pace of judicial confirmations. Leahy inserted into The Congressional Record a Slate article on the issue by Dahlia Lithwick and Carl Tobias.

Leahy's remarks could be seen as laying the groundwork for a move by the majority Democrats to force a vote on pending judicial confirmations. Sen. Sheldon Whitehouse (D-RI) bruited such a move to the Blog of the Legal Times for the most controversial nominees, Rhode Island trial lawyer John "Jack" McConnell, Louis Butler of Wisconsin, Goodwin Liu of California for the 9th Circuit, and Edward Chen for the Northern District of California. The WSJ's Law Blog also reports, "Lame Duck Senate Looking to Act on Controversial Judges."

The Senate Judiciary Committee is scheduled to vote on the nomination of 12 federal judges this morning, including the controversially beleaguered and embattled Robert Chatigny to the Second Circuit.

Conservatives groups sent a letter to Senate Majority Leader Reid on Monday urging him not to push any executive branch nominations during the lame-duck session, citing the mentioned judicial candidates as among "the most egregious."

So Sen. Leahy's remarks Wednesday could be rallying the troops for the fight. Oh, they could have been just be another floor speech. Before he spoke, Sen. Christopher Bond (R-MO) made a brief speech about S. 3538, the National Cyber Infrastructure Protection Act. After Sen. Leahy, Sen. Ron Wyden commemorated National Home Care and Hospice Month.

UPDATE (12:35 p.m.): The Judiciary Committee postponed action on all the judicial nominees.

Senate Majority Leader Reid and Minority Leader McConnell that worked out an arrangement that will prevent President Obama from making recess appointments before the Senate returns to session after the November elections.

As in 2008 when Sen. Reid blocked recess appointments by President Bush, the Senate will hold brief pro forma sessions twice a week. By these regular meetings, the Senate avoids being recessed for a long enough period that the President's appointment authority would go into effect. Such is the claim, at any rate. You would think a leader of the Executive Branch would challenge the limits on its authority.

With the agreement, Senate Republicans also allowed the five controversial judicial nominees that were sent back President in August to remain under Senate consideration. Thus, President Obama will not have to renominate his controversial judges: Edward M. Chen, District Judge for the Northern District of California; Louis B. Butler, Jr., Western District of Wisconsin; John J. "Jack" McConnell, Jr., to District of Rhode Island; Goodwin Liu, to be U.S. Circuit Judge for the Ninth Circuit; and Robert N. Chatigny, to be United States Circuit Judge for the Second Circuit.

• Politico, "Senate won't allow Obama recess appointments"
• The Hill, "Senate blocks recess appointments with deal between Dems, GOP"

From today's business meeting of the Senate Judiciary Committee:

• Kathleen M. O'Malley, to be United States Circuit Judge for the Federal Circuit, Ordered Reported By Voice Vote
• Beryl A. Howell, to be United States District Judge for the District of Columbia, Ordered Reported By Voice Vote
• Robert L. Wilkins, to be United States District Judge for the District of Columbia, Ordered Reported By Voice Vote
• Edward M. Chen, to be United States District Judge for the Northern District of California, Ordered Reported By Roll Call Vote, 12-7
• Louis B. Butler, Jr., to be United States District Judge for the Western District of Wisconsin, Ordered Reported By Roll Call Vote, 12-7
• John J. McConnell, Jr., to be United States District Judge for the District of Rhode Island, Ordered Reported By Roll Call Vote, 13-6
• Goodwin Liu, to be United States Circuit Judge for the Ninth Circuit, Ordered Reported By Roll Call Vote, 12-7
• Robert N. Chatigny, to be United States Circuit Judge for the Second Circuit, Held Over

UPDATE (4:45 p.m.): It's the bottom five on that list, the "fringe five," who are the disputed candidates. News coverage, commentary ...

• Blog of the Legal Times, "Democrats Push Forward on Goodwin Liu, Other Judge Nominees"
• NPR, "No Clear Path Yet For Many Obama Judicial Nominees"
• Wall Street Journal Law Blog, "Who's Back? Liu's Back!"
• Connie Hair, Human Events, "Senate Judiciary Vote Thursday for Five Fringe Obama Judges"

The five controversial federal judicial candidates President Obama re-nominated on Tuesday were moved without any new hearings -- which would be superfluous, to be sure -- to the Senate Judiciary Committee's schedule for a vote at today's business meeting, but then action was held over until next week. The five are: Edward M. Chen, District Judge for the Northern District of California; Louis B. Butler, Jr., Western District of Wisconsin; John J. "Jack" McConnell, Jr., to District of Rhode Island; Goodwin Liu, to be U.S. Circuit Judge for the Ninth Circuit; and Robert N. Chatigny, to be United States Circuit Judge for the Second Circuit.

The Washington Times weighed in on the judges in an editorial, "GOP Senate needed to block bad judges," objecting most vigorously to Chatigny and Chen. The Providence Journal covers the local story, "McConnell renominated to federal judgeship."

From the White House, Sept. 13, "Presidential Nominations Sent to the Senate":

Louis B. Butler, Jr., of Wisconsin, to be United Stated District Judge for the Western District of Wisconsin, vice John C. Shabaz, retired.

Robert Neil Chatigny, of Connecticut, to be United States Circuit Judge for the Second Circuit, vice Guido Calabresi, retired.

Edward Milton Chen, of California, to be United States District Judge for the Northern District of California, vice Martin J. Jenkins, resigned.

Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit, vice a new position created by Public Law 110-177, approved January 7, 2008.

John J. McConnell, Jr., of Rhode Island, to be United States District Judge for the District of Rhode Island, vice Ernest C. Torres, retired.

In accordance with Senate rules, the Senate returned the nominations to the President in August when it recessed. Republicans refused to suspend the rules to allow these specific nominations to be carried over.

Earlier posts here.

With the Senate heading into a month-long recess when it adjourned last Thursday, Senate rules required either a unanimous consent to hold over nominees or the nominations had to be returned to the White House. The judicial nominees who were sent back were the most politically controversial ones, objected to by Senate Republicans (as well as business groups and critics of judicial activism).

• John J. McConnell, Jr., of Rhode Island, to be United States District Judge for the District of Rhode Island.


• Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit.


• Robert Neil Chatigny, of Connecticut, to be United States Circuit Judge for the Second Circuit.


• Edward Milton Chen, of California, to be United States District Judge for the Northern District of California.


• Louis B. Butler, Jr., of Wisconsin, to be United States District Judge for the
  Western District of Wisconsin.

Also returned to the President was Mary L. Smith, of Illinois, to be an Assistant Attorney General, nominated to head the tax division at Justice.

Butler, Chen (and Smith) went through the same process at the end of 2009, and President Obama renominated them all. Renomination remains the most likely course of action this time, as well, but the President could also make recess appointments -- good through the end of 2011 -- or withdraw the nominations. Recess appointments are rarely used for judicial nominees, though.

Democratic Senators defended all these judicial nominations in a series of floor speeches on July 29. (See POL, "Senate moves slowly ...") Jim Copland wrote about the Liu, Butler and McConnell nominations last May in this POL post.

The Washington Post today revisits a perennial story, that of the speed with which the Senate is confirming judicial nominations, "Senate moves slowly in confirming Obama's lower-court judicial nominees."

The story comes in the wake of Democrats taking to the Senate floor last Thursday, July 29, to demand confirmation votes on President Obama's federal judicial nominees. Sen. Mark Udall (D-CO) led the colloquy, starting on page S6476 of The Congressional Record.

Sen. Russell Feingold of Wisconsin praised Louis Butler Jr., the former Wisconsin Supreme Court Justice nominated for the U.S. District Court, Western District of Wisconsin. As this Wall Street Journal editorial recalls, voters in 2008 kicked Butler off the state Supreme Court, in part because of his liberal rulings against medical liability reform and his invention of "collective liability" for paint manfacturers. President Obama nominated him to the federal court in Oct. 2009 and renominated him last January.

Sens. Sheldon Whitehouse and Jack Reed of Rhode Island were also exercised about Republicans preventing a vote on John "Jack" McConnell, the Motley Rice attorney and Democratic contributor nominated to the U.S. District Court. Whitehouse attacked the U.S. Chamber of Commerce by name, posing the rhetorical question, "Do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees? That is not the tradition of this body. I again ask my colleagues: Is this the tradition they want to set? If they open the door to out-of-State special interests trumping the considered judgment of home State Senators on district court nominees, will they ever get that door closed again? I submit it is a mistake for this body to go that road."

Alternatively, do we want Senators' parochial and political interests to always trump the public's objections to judicial nominees whose qualifications are solely political? Is that the road we want to go down?

Sen. Udall asked for unanimous consent several times to move the pending judicial candidates, with Sen. Jeff Sessions (R-AL) objecting. Two other controversial nominees who were stopped were Goodwin Liu to be a Ninth Circuit judge and Robert Chatigny to be on the Second Circuit. (Page S6486.)

Addendum: Originally appointed by Gov. Mike Doyle to the state Supreme Court to fill a vacancy, Justice Louis Butler was defeated in April 2008 for a full term by Burnett County Circuit Judge Michael Gableman. The expensive, rough-and-tumble campaign offended "good government" types, and Gableman became the target of a complaint based on one truthful TV ad. Last month the Wisconsin Judicial Commission decided not to take any action.

• Wisconsin Judicial Commission's release and statement of discontinuance.
• State Bar Association, "Judicial commission ends case against Justice Gableman"
• Milwaukee Journal-Sentinel, "With Supreme Court deadlocked, commission drops Gableman ethics ..."

At NRO this morning, I argued that it was important to keep an eye on judicial nominations other than Elena Kagan's to the Supreme Court:

[I]n 1986, the Democrats in the Senate were so focused on attacking William Rehnquist -- whom Ronald Reagan had chosen to elevate to chief justice of the Supreme Court -- that they made nary a noise about Reagan's pick to succeed Rehnquist as an associate justice. Thus it was that Antonin Scalia was confirmed to sit for life on the highest court in the land with 98 senators in favor, and none against.

It's incumbent on those of us who care about the judiciary to keep this in mind as the nation's attention focuses on Elena Kagan. Only a tiny fraction of cases decided by the appellate courts are granted review by the Supreme Court, which means that those lower appellate benches are usually the courts of last resort in the federal system. And because so many cases never make it even that far, federal trial courts wield enormous power, too.

I focused on three nominees of concern:

• Goodwin Liu, my law school classmate (see previous posts on this site);


• Louis Butler, of Wisconsin Supreme Court lead paint and med-mal fame (see ealier posts here); and


• Jack McConnell, the plaintiffs' lawyer who was Senator Sheldon Whitehouse's symbiotic partner in Rhode Island's $3 billion-lead-paint-verdict fiasco (see posts here, and earlier writings here and here).

Liu's nomination was voted out of the Judiciary Committee today on a straight (12-7) party-line vote.

Our readers may recall that Butler's nomination also passed out of Judiciary last year on a 12-7 party-line vote but wasn't acted upon by the full body; and that the president resubmitted his nomination this January.

McConnell's hearings before Judiciary were scheduled for this afternoon. As Carter reported, the U.S. Chamber of Commerce came out strongly against this nomination on Tuesday, and my piece today in NRO was joined by critical editorials in the Washington Times and American Spectator.

Criticism continued to pour out today in response to President Obama's recess appointments to the National Labor Relations Board, and the National Right to Work Legal Foundation announced it was filing motions demanding that former SEIU and AFL-CIO counsel Craig Becker recuse himself from 12 cases involving the foundation.

But other than Becker, and to a lesser extent the appointment of Buffalo labor lawyer Mark Pearce to the NLRB, the recess appointments provoked relatively little protest. Appointing a USTR negotiator in Geneva who had been blocked by Sen. Jim Bunning (R-KY) over Canadian tobacco policies would not be expected to cause a political firestorm.

President Obama also declined to make recess appointments of a few real hot-button nominees, the hottest of which is probably Dawn Johnsen to head the Office of Legal Counsel at the Department of Justice. There are also several prominent, much-opposed judicial nominees -- Louis Butler of Wisconsin, Edward Chen of California -- who were voted out of the Senate Judiciary Committee but whose nominations have not come to the floor. Recess appointments of judicial nominees are relatively infrequent because, unlike a lifetime appointment if confirmed, they can only serve until the end of the next session of Congress, which in this case would be the end of 2011.

The Congressional Research Service issued a report on recess appointments to the federal judiciary in September 2001 after President Clinton used his appointment power to place Roger L. Gregory on the Fourth Circuit. CRS concluded

Thanks to Walter and the good folks at the Manhattan Institute for the opportunity to blog here. I am a former litigation partner at Foley & Lardner and currently on the faculty at Marquette University Law School. As readers of Point of Law are aware, in last term's Caperton decision, the United States Supreme Court identified a somewhat ill defined duty for a judge to recuse herself whenever "the average judge in [the same] position is "unlikely" to be neutral, or whether there is an unconstitutional "potential for bias." Justice Kennedy, writing for a slim five justice majority, rejected the dissent's suggestion that the newly formulated rule would lead to a blizzard of recusal motions, repeatedly emphasizing that such circumstances would be rare.

Here in Wisconsin, the snow flies. Two years ago, Michael Gableman defeated the incumbent Louis Butler. During the course of the election, Gableman and the independent groups supporting him made much of the fact that Justice Butler had been a public defender widely referred to as "Loophole Louie." One of the ads produced by the Gableman ad was extremely misleading, claiming that Butler had "found" a loophole for a child rapist who had gone on to rape again.

In fact, Butler was the man's lawyer and, although he "found a loophole, the court concluded it was harmless error. Butler's client did go on to offend again but only after serving his sentence for the first offense. The ad was universally condemned - including by Justice Gableman's conservative supporters. It represented extremely poor judgment although it is not, in my view, the measure of the man.

Criminal defense lawyers have now filed motions seeking to recuse Justice Gableman in criminal cases because he is claimed to have demonstrated "bias" against criminal defendants and their lawyers. But the calls for recusal are not limited to criminal cases.

In both the Gableman-Butler race and a race one year earlier in which Justice Annette Ziegler was elected to the Court, independent groups spent heavily - far more than the candidates themselves. One was a business advocacy group known as Wisconsin Manufacturers Commerce. It spent somewhere around two million dollars on the race. There were public calls for Justice Ziegler to recuse herself in a pre-Caperton case in which WMC was not a party, but had a filed an amicus brief.

I am something of an agnostic on judicial elections, but, if we are to have them and they are going to be something other than a clash of meaningless platitudes and endorsements (often fueled by subterranean politics), judicial candidates are going to need room to discuss issues in the (often too simple) way that the public can understand or will attend to. A broad reading of Caperton is in tension with that need and with the Court's recent endorsement of robust free speech rights for judicial candidates in Republican Party v. White.

And there is a back story to this. Aggressive recusal standards are often promoted by individuals and organizations who oppose judicial elections, preferring some type of merit selection system. There is an ideological cast to this because merit selection tends to be dominated by bar associations which themselves tend to be dominated by political liberals.

More to come.

From a White House news release dated Jan. 20 announcing presidential nominations:

• Louis B. Butler, Jr., of Wisconsin, to be United Stated District Judge for the Western District of Wisconsin, vice John C. Shabaz, retired.
• Edward Milton Chen, of California, to be United States District Judge for the Northern District of California, vice Martin J. Jenkins, resigned.

These two controversial judicial nominees were voted out by the Senate Judiciary Committee, but Republicans prevented their nominations from being held over after the first session of Congress adjourned on Dec. 24.

Both must go through the committee process again, but new confirmation hearings are unlikely.

We've followed Butler because of his history as a Wisconsin Supreme Court Justice ruling against medical liability caps and his defense of "collective liability" for manufacturers of lead paint. (Previous post.) Wisconsin Senators Herb Kohl and Russ Feingold vigorously back his nomination; both serve on Judiciary. (See Nov. 4 hearing.)

UPDATE (12:58 p.m.): Butler was appointed to the Wisconsin Supreme Court by Gov. Jim Doyle, a Democrat. In 2008, he was defeated for election to a full, 10-year term by Michael Gableman, a Burnett County Circuit Court judge and former prosecutor. Gableman's victory, aided by business support, has made him a bete noire to the state's activist left. The latest development is lawyers seeking to force Gableman to recuse himself from criminal appeals. See Milwaukee Journal-Sentinel, "Gableman isn't biased against criminal defendants, he says."

The media report on the Senate sending back nominations to the White House on Christmas Eve, including two controversial nominees to the U.S. District Court bench, Louis Butler of Wisconsin and Edward Chen of California. (Highlighted first, blogwise, at Point of Law here.)

• Milwaukee Journal-Sentinel, "Butler's judicial nomination sent back to Obama"
• Wisconsin State Journal, "Kohl to keep pushing Butler as U.S. judge after nomination turned back"
• San Francisco Chronicle, "Senate GOP opposes S.F. judicial nominee"

The absence of a White House defense of the nominees in these stories is interesting. One would have expected at least a perfunctory restatement of their candidates' qualifications, but either inexperience or holiday vacation meant no one was available to say, "These are great nominees and the Senate should confirm them." The silence invited such posts as from lefty blogs like FireDogLake, "Will Obama Fold (yet again) on Judicial Appointments due to GOP Opposition?"

UPDATE: And The Indianpolis Star on the returned nomination of Dawn Johnsen to head Justice's Department of Legal Counsel, "IU law professor's federal nomination is on hold."

In a flurry of mostly overlooked action, the Senate on December 24 confirmed a slew of President Obama's nominees on a single "en bloc" vote. Included in the list (starting here in The Congressional Record's Daily Digest) was David Strickland, the former trial lawyer lobbyist named administrator of the National Highway Traffic Safety Administration. (See this Dec. 9 post on the nomination of Strickland, who has a Senate Commerce staffer bears great responsibility for the excesses of the Consumer Product Safety Improvement Act.)

Notable was the Senate's decision to return six nominees to the White House, a sign of major political opposition to their confirmation. The Washington Post's Federal Eye blog reported the high-profile nominees to the Justice Department the Senate decided against approving: "Dawn E. Johnsen, nominated to oversee the Office of Legal Counsel; Mary L. Smith, tapped to head the Tax Division; and Christopher H. Schroeder, nominated as assistant attorney general for legal policy."

The most controversial rejected nominee -- at least in civil justice reform circles -- was Louis Butler, put forward by President Obama to be U.S. District Court Judge for the Western District of Wisconsin. As a justice on the Supreme Court of Wisconsin, Butler offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and "collective liability" for lead paint manufacturers. Appointed by Democratic Gov. Jim Doyle to the court, Butler lost a 2008 election seeking to win a full term on the court. Conservative activist groups organized against his confirmation, and The Wall Street Journal prominently editorialized against him.

The Senate Judiciary Committee voted 12-7 to confirm Butler in early December over strenous objection by Republican committee members, Sen. Jeff Sessions of Alabama and John Cornyn of Texas. (See Point of Law post.)

Also returned to the White House was the nomination of Edward Chen, a federal magistrate in San Francisco, to serve as U.S. District Court Judge for the Northern District of California. A formal opposition did not get organized, but some conservatives have criticized him for reactive hostility to U.S. society. (See Washington Times, "Another judicial radical; Sean Hannity, "Another Radical Surfaces in White House.") The Senate Judiciary Committee reported out his nomination 12-7 in October.

President Obama could withdraw the nominations or return them to the Senate. Butler was certainly vigorously supported by his two home-state Senators who serve on the Judiciary Committee, Sens. Feingold and Kohl. The President could also make recess appointments, but that rarely makes sense for judicial nominees with otherwise lifetime appointments; they could only serve until the end of the current Congress. (See CRS report, "Recess Appointments: Frequently Asked Questions.")

UPDATE The Senate action occurred under Rule XXXI, paragraph 6, of the Standing Rules of the Senate. We've put the language in the extended entry: