I was, briefly, yesterday, confused with someone who thought there could be details that exonerated a man for choking a woman, and that distresses me, but not as much as I am upset about the fact that conservatives (of which I used to be one, and still sometimes think I would be again) have abandoned any pretext of having principles.
The confusion occurred amidst other confusion over what occurred in the office of Wisconsin Supreme Court Justice Ann Walsh Bradley, and a review of how this story was reported, and then mis-defended by local law professor and conservative gadfly Ann Althouse, is an instructive look into conservative "thought" these days.
I learned about this allegation early in the morning, when a lawyer I follow (@illusory_tenant) posted something about it, and I went to read
the article by the Wisconsin Center For Investigative Journalism.
That article cited three unnamed sources, all of whom told the same story: Newly-elected Supreme Court Justice David Prosser, they said, had choked Bradley during an altercation in Bradley's chambers on June 13.
Prosser, remember, has a history of losing his temper during high-profile cases;
he previously called Chief Justice Shirley Abrahamson a "bitch" and threatened to "destroy" her at a time when the Court was divided over ethics allegations against Prosser's fellow conservative, Michael Gableman.
Prosser acknowledged that report - -but said it was being released at the time to hurt his chances at re-election. He also downplayed his intemperate outburst: "I
probably overreacted", he said, emphasis in that sentence mine but words his. In case there was any doubt that Prosser was not actually sorry for what he'd done, he added "
It was entirely warranted."
Justice Bradley, at the time, described
that situation in an email to Prosser:
"In a fit of temper, you were screaming at the chief; calling her a 'bitch,' threatening her with '...I will destroy you'; and describing the means of destruction as a war against her 'and it won't be a ground war."
That problem took nearly a month to surface, and I don't recall hearing a reason for the delay in reporting it. I also don't recall any conservative asking that Justice Prosser retract his comments, or apologize, or at least admit that the threat was uncalled for. Prosser was re-elected by conservatives who were untroubled by that outburst and Prosser's defense of it as being
warranted. Those voters decided that given Prosser's likely alliance with their goals, his outburst and apparent temper did not matter.
The June 13 incident-- there can't really be any doubt there was an incident-- took place while the Supreme Court of Wisconsin was considering the collective bargaining bill, and the nearly unprecedented injunction prohibiting its publication.
On that day, a day when Prosser was in chambers to do what many voters hoped he would do -- cast the deciding fourth vote to let the collective bargaining bill go forward (in fairness, he'd have been there
anyway, even if his opponent had won), there is
the incident, and the fact that it is the second intemperate incident in a few months, and the fact that it took place during another high-stakes moment for Justice Prosser and the Court, made it seem similar to the first only more so -- as all good sequels are.Here is what initially was reported:
The sources who spoke to the Center and WPR said an argument about that ruling culminated in a physical altercation in the presence of other justices. They say Bradley purportedly asked Prosser to leave her office, whereupon Prosser grabbed Bradley by the neck with both hands.
No justice spoke on the record as of Saturday afternoon, particularly not the justice who had the most to gain by a flat denial:
Prosser, contacted Friday afternoon by the Center, declined comment: “I have nothing to say about it.” He repeated this statement after the particulars of the story — including the allegation that there was physical contact between him and Bradley — were described. He did not confirm or deny any part of the reconstructed account.
(Those quotes are from
the Bill Lueders story; I trust Bill Lueders to report the truth without a bias.)
That prompted quite a bit of back and forth, as conservative darling Ann Althouse, a professor at UW took to the blogosphere to attack those who attacked a justice who (maybe) attacked another justice; when not resorting to the overuse of the word
fascism on unrelated posts,
Althouse had this to say about what she twice called an "odd story":...No one was arrested, and the story only got into the press via "at least three knowledgeable sources" that cannot be named because "professional relationships" need to be "preserv[ed]."
Althouse took the tactic, right up front, of insinuating that a delay in either investigating or charging was tantamount to a lack of proof, an odd stance for a law professor (let alone a conservative, as those are usually
law-and-order types of the sort who supported Justice Gableman's law-and-order based attack on Former Justice Butler)
Perhaps realizing that was a weak argument, Althouse quickly shifted tactics to an attack on those who thought Prosser should step down if he is guilty of what the 3 (admittedly anonymous) sources said he was guilty of. Attacking another writer who referred to Prosser as an "accused criminal[]," she goes on:
It's very poor writing to say "accused criminals" when you mean "persons accused of a crime" and you're trying to stress the presumption of innocence. But no one was arrested, there's no pending prosecution, so why is he even saying that Prosser is accused of a crime? We don't even have a whole report of what supposedly happened.
Reading Althouse's defense is what prompted me back onto Twitter, in a series of exchanges where I pointed out that accusing Prosser of battery was to accuse him of a crime, and also to point out that a person can be accused of a crime -- by the press, by Twitter, by anyone -- even before an arrest or pending prosecution.
At the time, I didn't ponder much what it said about conservatives that they would say that someone was not
accused of a crime until the police had formally
accused him of a crime.Althouse -- a law professor charged with teaching future attorneys how to think -- also speculated that there were lots of details we don't have, which is possibly true, but then moved on into Althouseland and suggested that those details would be the kind of details that would clear Prosser of any wrongdoing:
If there were a prosecution here, the whole story would come out — all sorts of details about the justices, and not just the snapshot of one hard-to-comprehend instant within the longer event. Who would end up looking the worst here? A decision was made, privately, to suppress the incident, and then 3 individuals — who? — decided to leak it out in a way that is, presumably, affected by subjectivity and political interest.
Consider first: A law professor and conservative herald is speculating that it's politics,
pure politics, that is driving the decision to leak this story.
What politics? The collective bargaining decision came and went -- it was released the day after the Bradley's Chambers incident -- and the budget has passed and the recalls are a month and a half away.
Whose "subjectivity and political interest" is benefitted by releasing this story,
Professor Althouse?
Then leave aside that speculation --
Professor Althouse is a conservative who won't admit it, having her own subjectivity and political interests to forward. Consider instead the speculation -- wild, at that -- and consider second Althouse's claim that there were
all sorts of details about the justices, and not just the snapshot of one hard-to-comprehend instant within the longer event
That is either pure speculation (with a political motive), or Althouse had an insider who was telling her
something else,
something more, about this story, but who she would not name or quote.
If there
was something more, something that would clear Prosser,
where was it? Prosser, as many public figures do, said
nothing at the outset, an unsatisfying response. There is politics, and there is law, and in (some arenas of) law one need not defend oneself because the burden is on the accuser. But in politics and in civil courts, judgments aren't bound by the Fifth Amendment and can form in a vacuum, and careful people like me could still note this idea:
When someone accused publicly of wrongdoing says no comment, we are free to assume that there is no side of the story that backs that person.Careful people, like me, will still leave open the possibility that the accused wrongdoer
does have facts on his side that may clear him; we will simply note that many people, in the shoes of a person known to have a temper and now accused of choking a woman, would
at the least deny it, and quickly, because in the law, a failure to deny something is an admission that the thing is true, and in politics it
de facto works that same way.
Uncareful people, like Ann Althouse, will simply say that an alleged but simple-sounding incident is
complicated, and that there are facts that can't be known now, so we should not pay it any attention. They will then realize how indefensible their position is, and begin arguing that the end justifies their means, while also shifting the argument to one that nobody is making:
But sure. If Justice Prosser committed a criminal attack on another Justice, he shouldn't be on the court, even if he only lashed out after weeks or years of merciless bullying. And let's have the whole story. Maybe there are some other Justices who don't belong on the court. Clear out everyone who doesn't belong on the court. How will they be replaced? By appointment of the Governor — the formidable Scott Walker.
Is that what you want, Think Progress?
That.
Is.
Astounding.
No wonder I have to work so hard to teach the law students who come work for me.
Let's have the whole story. That's the line that (briefly) got a follower mad at me, as I posted on Twitter how amazing it was that Althouse thought there were facts that could justify choking a coworker, and a follower thought
I was saying that, rather than quoting Althouse. (I wasn't, and things got cleared up. For the record, I think there is no set of facts that would
ever justify choking a coworker.)
But it was not long
let's have the whole story for Althouse, who immediately said just the opposite, arguing
let's not have the whole story at all; Althouse's blog post quickly moves on from
let's have the whole story to "let's just impugn the credibility of all the other justices and insinuate that they, too, have called people
bitches and threatened to destroy them, that they, too, are accused of
battery."
Maybe there was a melee there, in the Court! Maybe it was like that
Street Fighter game only with judicial robes and old people! That's what Althouse is
insinuating, for
political reasons.
And maybe we should focus on that-- on Althouse's view of the Court as a PlayStation 3 game -- rather than on the more depressing part of Althouse's argument, the part where conservatives display what is considered "conservative" thinking today, the part where they emphasize the end over the means, the part that got them into this mess in the first place.
How will they be replaced? By appointment of the Governor — the formidable Scott Walker.
Is that what you want, Think Progress?
That is outcome-based thinking: Deciding what the outcome of an action is before deciding whether you want to take the action. Outcome-based thinking can be okay sometimes, like if you're
voting: The likely outcome of my voting for someone is that the person will get another vote and be 1/1,600,000 more likely to win.
But outcome-based thinking -- the
end justifying the means -- is wrong in (at least) two instances.
It's wrong when the
end is to justify a small wrong in favor of a greater good, and it's wrong when the
means used are wrong, regardless of whether the end is good or not.
Put more simply: Outcome-based thinking is wrong if you're going to cheat to get a desired outcome, no matter what that outcome is; and outcome-based thinking is wrong if it requires you to set aside
this good principle for
that more desired prinicple.It's wrong ignore a battery, if one occurred, because you want a conservative justice on the Court; and it's wrong to ignore a battery, if one occurred, because you fear a more conservative justice on the Court.
And it's wrong for a law professor and "conservative" thinker to advocate for either and use outcome-based thinking as a basis for her justification for both. And more wrong to say this:
But what is the point of all this? If Prosser goes, Walker appoints someone younger, more vigorously conservative, and without the baggage of old intra-court grudges.
In other words,
ignore an attack, if one occurred, because philosophically, you may disagree with the next guy worse. Is "better the devil you know" now the Racist Tea Party rallying cry?
Althouse then says, with Winston-esque verve:
I think the point is to discredit Prosser and the conservative majority on the court, to undermine the public's faith in the work of the court.
(That's being done quite nicely by the conservative majority on the Court and the Waukesha County Clerk's office, Ann, but you're doing your share, too.)
If you're following Althouse, so far, that quote shows what she thinks is the grand plan that the liberals have: They are going to fabricate a story about David Prosser, in order to discredit him and the conservative majority, in order to take away the public's faith in a Wisconsin Supreme Court that, faith or not, will still be able to do its job, and will still continue to do that job largely outside of the limelight, and has already done some of the things they feared it would do.
The fact that the plan makes
no sense has no bearing on the fact that Althousian Conservatives will forward the plan; any set of thinkers who can argue that people who quote them are lying can surely stomach an argument that makes no sense.
But there's more: according to Althouse, here is the plan that conservatives have to fight back: They are not going to deny that story at all, and instead are going to point out that
if you think the Court is bad now, wait until we get to put someone on it without all the trouble of 'holding an election'. And, along the way, undermine faith in the court by insinuating without proof (or even anonymous sources) that other justices have done other things wrong, too. So they'll let the liberals destroy the Court, in hopes that they can
make it worse.
That, too, makes no sense: you would let a Justice's reputation suffer through silence, in hopes that the Court will be ... what? Crippled by his presence? Weakened by his absence but with a newer conservative justice appointed undemocratically? At the same time as you argue, with no proof whatsoever, that
other justices have done some bad stuff, too?Althouse doesn't need proof, though, or even anonymous sources, because she has
facts on her side. Facts of a sort:
if it's true Prosser reached a breaking point and started strangling Bradley, he should go. I doubt that's true, however, because there was no arrest. That's why we're getting the story in this unsourced, piecemeal form.
"
Unsourced, piecemeal form" is better than "
I made up some allegations about the other justices just to balance the plate." But Althouse doesn't comment on her own creation of an alternate universe -- an Alt-Court -- wherein other justices behave badly, a creation that is revealed in whole cloth as opposed to piecemeal revelations. She does not have to comment because she has that
fact, the only
fact in her post: there had been no arrest, which Althouse uses to doubt the truth of
the entire story, taking what might be law enforcement restraint, or a lack of desire to press charges, or simply a conflict in stories that requires sorting out, to be instead
proof that nothing happened.Ann Althouse, Law Professor, formulates her doctrine as follows:
A lack of an arrest is proof that nothing happened.
How do you feel about that, parents of Brittany Zimmerman?
That alone was bad enough: Conservatives, worried that their newest-elected guy was in more trouble, trouble that just seems to follow him around, were willing to throw out a whole bunch of principles just to keep things from getting too bad, but if they got
too bad, conservatives were willing to say
things could get worse, you know: we could appoint someone that'll make you long for Prosser.Kind of how liberals now think Tommy Thompson was sort of okay, you know?
By late Saturday, there were "two very different" stories circulating, and the Milwaukee Journal Sentinel dutifully took up the claims-- claims that Althouse found "more nuanced," despite the fact that the new claims, which backed Prosser, were
likewise from unnamed sources:
UPDATE: A more nuanced report from the Journal Sentinel has (unnamed) sources disagreeing about what happened. Someone is saying Bradley charged at Prosser with fist raised, and she ran into his defensively raised hands, then cried choked.
I'll leave aside how often, as a criminal defense lawyer, I heard a similar story, as all cases are different even when they're exactly the same. Instead, look at
the story that Althouse finds more nuanced.
It begins with the first (official) word from Team Prosser:
Before Bradley spoke to the Journal Sentinel, Prosser issued a statement that said: "Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment."
Then it goes on to cite people whose anonymity conservatives find easier to bear because anonymity in the service of
your cause is okay, it's
other people's anonymity that is reprehensible:
A source who spoke to several justices present during the incident told the Journal Sentinel that the confrontation occurred after 5:30 p.m. June 13....
Six of the court's seven justices - Justice N. Patrick Crooks was not present - had gathered in Bradley's chambers. ...
The conversation grew heated, and Bradley asked Prosser to leave. Bradley was bothered by disparaging remarks Prosser had made about Chief Justice Shirley Abrahamson, a source said.
Before leaving, Prosser "put his hands around her neck in what (Bradley) described as a chokehold," the source said. "He did not exert any pressure, but his hands were around her neck," the source said. The source said the act "was in no way playful."
Ooops! Sorry: those anonymous sources are the ones Althouse And The Conservatives hate! Here's a more credible (to conservatives) person who didn't want to be named:
But another source told the Journal Sentinel that Bradley attacked Prosser. "She charged him with fists raised," the source said. Prosser "put his hands in a defensive posture," the source said. "He blocked her." In doing so, the source said, he made contact with Bradley's neck.
What, pray tell, made Justice Bradley take on the older, smaller Prosser, according to a different unnamed but somehow still more credible source?
Another source said the justices were arguing over the timing of the release of the opinion....
Abrahamson said she didn't know whether the decision would come out this month, the source said.
At that point, Prosser said he'd lost all confidence in her leadership. Bradley then came across the room "with fists up," the source said. Prosser put up his hands to push her back. Bradley then said she had been choked, according to the source.
Another justice - the source wouldn't say who - responded, "You were not choked."
So an unnamed source quotes an unnamed justice defending the conservatives' guy, and Althouse finds that
more nuanced, without further explanation. Apparently, an alternative definition of
nuanced is "
to my liking."
There was a
named source, though, and one who not only spoke on the record but also spoke directly to interviewers, rather than issuing a press denial: Justice Bradley. She spoke to the
MJS:In an interview, Bradley said: "You can try to spin those facts and try to make it sound like I ran up to him and threw my neck into his hands, but that's only spin. "Matters of abusive behavior in the workplace aren't resolved by competing press releases. I'm confident the appropriate authorities will conduct a thorough investigation of this incident involving abusive behavior in the workplace."
Althouse, and other conversatives, did not comment on whether or not Bradley's statement,
on the record, was "nuanced" in any way.
That's where it stands now; by the time you read this, it may be over or may be worse. Who knows?
What's distressing about this -- beyond the fact that a sitting justice may have attacked another sitting justice physically, which seems incontrovertible no matter which version you believe, the version that was released spontaneously or the version that came out hours later after time to think about what to say has passed -- what's distressing is what the Althouse piece, and other conservative defenses of Prosser, and attacks on liberals, reveal about what passes for conservative thought these days.
Conservatives appear more and more to be flailing away in their efforts to achieve their goals, with less attention being paid to the
way they do it, and less attention being paid to the
why they do it.
Hypocrite Paul Ryan is selling a plan to voucherize Medicare -- while Republicans destroy any person who dares call it a voucher plan. They're going to save Medicare by destroying it, but they won't
say that; instead, they simply insist, over and over, that they're not imposing vouchers. And the
truth becomes an inconvenient principle that the Republicans are willing to ignore to get their way.
Challenges to election results that seem odd are dismissed as
expensive and
not likely to succeed, and candidates are told to concede because of the expense of guaranteeing that an election was run the way the rules say it should be, and the idea that every vote should count is a principle that gets run away by the idea that we can't really afford to count
every vote so you should just trust us.
Conservatives abruptly reverse their stance on the
"individual mandate" and now claim that what they thought all along was a good idea is in fact an unconstitutional idea, and they claim that programs they championed weren't good programs at all, and in the end, won't even repeat a word they were proud to have coined just 24 hours before, all because
sticking with what you once believed proves to be political suicide and/or a gain for the opposition.
Conservatives are supposed to be the law-and-order party; conservatives are the ones who are supposed to champion
values, if you believe the Althousian rhetoric. But those values increasingly get in the way of the only true organizing principle of the new right, which is to secure their own financial futures by shaping their jobs and public offices and states and governments to one that will benefit the people who will one day employ them. They are conservatives who dream of being lobbyists and Fox News Commentators, and who are setting things up to make it so that they can move into those jobs and enjoy the fruits of their labors.
Which is to say that they are not
conservatives at all; they are what they imagine are their enemies: They are people who are using government to achieve personal ends on behalf of a select few, hoping that the few selected will include themselves at the end.
Ann Althouse once professed to be uncomfortable, or at least to not care much about, her conservative following, to say it was something she did not seek out or desire. In her latest series of posts, she reveals that she is no more or less than any other base conservative nowadays: She is willing to throw principle out the window in favor of the red meat she throws to her readers.
Ignore the details, she tells them,
because there are other details we can speculate exist that might make this okay-er than it seems. Then:
Also, remember, we can threaten the left to make things even worse! Outcome-based thinking that demonstrates that it is the
goal-- here, the goal of having a conservative Wisconsin Court to evaluate the conservative Wisconsin legislative and executive moves now being taken -- that is the driving force, and that the goal must be achieved even if that means giving up on
little things like
the truth, or little things like
not having someone accused of a crime sit on the court.What can be said about a law professor, or a political movement, that finds one anonymous source more credible than another anonymous source based
solely on what each says, without attribution or backup? And what else can be said about someone, including a law professor, who would then believe
the anonymous source that agrees with them, over the
actual (alleged) victim and another (anonymous) source?The only thing that
can be said is that people like that are more concerned with goals than principals, with
ends than
means. These are the folk who find it inconsequential that an open meetings law was violated in passing the collective bargaining agreement, because the
end justifies legislators ignoring the law. These are the people who can defend a man punching a protestor while arguing that silent zombies are horrendous --- because physical violence is acceptable if it is in the pursuit of an
end you approve of.
These are the folk who will argue that people who find themselves distressed by Prosser's apparent politics and alleged abusive streak should just
shut up and take it, because it
could always be worse, and they don't mind arguing that the next justice would be nakedly political and
worse, the way some abusers don't mind pointing out that if you go to the cops, the next one'll be worse, too.
There are book deals to generate, television appearances to make, lobbying jobs to secure, and
conservative blog ads to sell, and official Althouse merchandise to peddle, and if getting all
that done means coming up with hacky stories to cover up possible physical assaults, if getting your name on a t-shirt and selling that shirt means discrediting, in a single day, most of the Wisconsin Supreme Court, law enforcement investigation, victims of domestic abuse, the political process, and one's former standing as a person who just happened to be beloved by conservatives, then that's just the way things have to be. The
ends -- whether they be keeping a conservative court, shutting up liberals, getting Medicare voucherized, or simply selling an Althouse Coffee Mug -- have come to determine the means, and the new conservative guiding principle is this:
Anything you can do to get your way is okay by them, and it doesn't matter how many
principles they have to sacrifice to get there.
