Perhaps it was a Tea Party dissent?

Mr. Gillette forcefully takes me to task for suggesting that Justices Scalia, Kennedy, Thomas, and Alito are true conservatives while Judge Posner is not.

Was it "truly a conservative" dissent?

Mr. Torvik asked me the other day if I had a "better theory to explain Judge Posner's contrarian musings" about the dissent in the Obamacare decision.  This is Mr. Torvik's theory: 

The Saggy Pants Judge claims he let the guy off easy.

In a comment to this post about a man being jailed for three days for wearing saggy pants to court, Mr. Torvik wrote "that perhaps Mr. Ramsey got off easy" because he was jailed for three days but not fined.  Mr. Torvik pointed out that some towns including Albany, Georgia, are fining people who wear pants that sag more than three inches below the top of the hip.  The link in Mr. Torvik's post didn't work for me but I did find this article from the Albany Herald.

It is political.

Mr. Torvik asks what I think of the efforts by Jane Fonda, Robin Morgan, and Gloria Steinem to have the FCC pull licenses of broadcast radio stations that air Rush Limbaugh’s radio show. My first thought was “who is Robin Morgan?".  According to Wikipedia, Robin Morgan is “a former child actor turned American radical feminist activist, writer, poet, and editor of Sisterhood is Powerful and Ms. Magazine.” It is nice to learn something I new first thing in the morning.

Nice try, Mr. Gillette

Nice analysis, Mr. Gillette.

You're right that an ethics violation is no slam dunk here. But I've got some bones to pick:

1) You consider the possibility that Judge Flannigan's activity was participating in partisan politics against a particular candidate, but argue that "the rule does not prohibit such activities." I think the rule does prohibit such activities. For example, it would be absurd to think that Judge Flannigan (or any judge) could now actively campaign <em>against</em> the retention of Scott Walker without running afoul of this rule. Maybe there are purely textualist arguments against that conclusion, but they're debatable; whether such activity would violate the spirt of the rule, however, is not debatable. It would. Think of it this way: would it have been ethical for David Prosser to campaign against the recall campaign? The answer is pretty obvious, I think.

2) I don't buy your argument from ejusdem generis. I don't think "affairs ... platforms ... or activities" of a political party are all kinds of public activities. Indeed, "activities" seems to be about the broadest word you could come up with. My interpretation is that the list of activities is a poor attempt to specify the entire universe of partisan political activities except for voting. In defense of the drafters, recall elections used to be a rare thing, so they're excused for not thinking of it.

3) To me the question comes down to whether signing this petition is more like voting or more like campaigning. Perhaps reasonable minds can differ. But as you point out, SCR 60.05(a) breaks the tie. The whole point of the prohibition on partisan political activities is to reduce the appearance of bias and impropriety. But signing the recall petition, Judge Flannigan surely engaged in conduct that casts "reasonable doubt on [his] capacity to act impartially as a judge." I'm not arguing that Judge Flannigan necessarily should have recused in the voter ID case; only that his partisan political activity in signing the recall petition in and of itself was improper.

Perhaps I'm too persnickety. I was a federal judicial law clerk, and thus was prevented by the Hatch Act from doing anything remotely resembling a political activity. Voting was it. I got used to it. I kind of enjoyed it, actually, because it gave me an excuse for turning away solicitors. (Now I just say, "no thanks," no matter what the question or entreaty is.) But because of this experience I expect at least judicial officers to act in the same way that I was able to act for those two years. It wasn't so hard.

Mr. Torvik is in for a surprise.

In his post discussing the controversy surrounding Wisconsin circuit judge David Flanagan, Mr. Torvik states that he "be very surprised if Judge Flanagan's action of signing the recall petition did not violate" Wisconsin's code of judicial conduct, Specifically, Mr. Torvik thinks that Judge Flanagan violated SCR 60.06(b)(2) which prohibits a judge from participating in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office." Judge Flanagan did not violate the provision in question by signing the recall petition.

One might say that the recall is the activity of a political party and thus, the judge can't participate. However, such a reading is inconsistent with the principal of ejusdem generis. "affairs, caucuses, promotions, platforms, endorsements, conventions, or activites of a political party" are properly understood to mean public meetings in which members of the public associate themselves with a political party.  The recall petition is not a political party's meeting.  In fact, the recall petition does not identify the people who sign it as being members of a political party. Indeed, the recall petition does not advocate for a particular candidate. Instead, the recall simply says that there ought to be a vote on whether Scott Walker remains governor of Wisconsin. While that might be construed as participating against a particular candidate, the rule does not prohibit such activities. So, if Mr. Torvik is waiting for Judge Flanagan to be disciplined for violating 60.06(b)(2), he will be in for a long wait.

That said, I think that Judge Flanagan may have violated a different provision of Wisconsin's judicial code of conduct. Judge Flanagan signed the recall petition before he was assigned a case challenging one of the centerpieces of Governor Walker's administration, the Voter ID bill. As former Wisconsin Supreme Court justice Janine Geske told the Fond Du Lac Reporter, Judge Flanagan should have revealed to both parties that he had signed the recall petition.  This is because SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" in such a way that the activities do not "cast reasonable doubt on the judge's capacity to act impartially as a judge." I imagine if Governor Walker had known that the judge had signed the recall petition, he might have reasonably doubted that Judge Flanagan was impartial.

As the Reporter article notes, Judge Flanagan's wife was one of the people collecting signatures for Governor Walker's recall. Every married person can think of an occasion when they signed something or attended something just because it was important to their spouse. Maybe that's what happened here and Judge Flanagan just signed the petition to keep peace in the house. If so, it appears that his plan backfired in spectacular fashion.

Finally, the last reason that it seems unlikely that Judge Flanagan will be disciplined for violating 60.06(b)(2), is that the ethics complaint filed by the Wisconsin GOP against Judge Flanagan does not claim that Judge Flanagan violated the provision.  You can read the complaint here.

If Kenneth Kratz is the prize, I don't want to play.

The problem with our "sparks fly" theme is that your post on Calumet County district attorney Kenneth Kratz obliges me, in theory, to defend him.