Gut Check? Gut Check?

by folkbum

That's where the truth comes from, ladies and gentlemen—the gut.

Did you know that you have more nerve endings in your stomach than in your head? Look it up. Now, somebody's gonna say “I did look that up and it's wrong.” Well, mister, that's because you looked it up in a book. Next time, try looking it up in your gut. I did. And my gut tells me that's how our nervous system works.

That, of course, is Stephen Colbert defining "truthiness" for you--rather than reliance on, say, facts, you rely on your gut. This is not to say that you should never trust your gut on anything; usually, though, you do a "gut check" on matters that mostly just affect you.

Judge Annette Ziegler, apparently, uses the "gut check" in her courtroom:

In two campaign stops Monday, Supreme Court candidate Annette Ziegler repeatedly defended her choice as a circuit judge to preside over dozens of cases involving a bank with which she had personal and financial ties.

Ziegler said she uses a "gut check" to decide if she has a conflict of interest. Her husband's position on the bank's board of directors didn't affect her judgment in the cases, she said.

"If someone took an objective look at any of those cases, any judge ruling on those would've ruled the exact same way," Ziegler said. "There's no difference who hears those cases. It would've been the exact same outcome."

Trouble is, rules governing judicial conduct don't allow for "gut checks." And I for one am glad that those rules exist: If I am appearing before some judge, I don't want to know that she's done her "gut check" to decide whether she can hear a case fairly. I want to know that there's no chance at all that she might rule unfairly.

There's something particularly galling in these cases where she's got a conflict of interest (and the number of cases keeps growing; if you read to the bottom of the article linked above, you'll find she's got conflicts with United Health Care, in addition to the West Bend Savings Bank cases, first reported by your humble folkbum two weeks before the media got ahold of it). It's not that I question whether, as she stated, "any judge ruling on those would've ruled the exact same way." That may very well be true, and as I'm not privy to everything that went down in all of those cases, I simply cannot judge whether they were decided correctly. Rather, it's that Ziegler didn't bother to make the parties aware of her conflicts at all.

As I said, this violates rules of judicial conduct, period. It bothers Ben Brothers, too, and he points to another disturbing aspect of the article linked above:

The law doesn’t necessarily require recusal, but it does require that a judge with a conflict of interest reveal that conflict to the litigants, and give them the option of waiving the recusal. Needless to say, Ziegler didn’t follow that rule, either. [. . .]

In Dodgeville, the most pointed questioning came from Elsa Greene, of Barneveld, a former deputy of the agency that regulates attorney conduct. She held a copy of the Supreme Court rules.

Said Greene: “Do you consider the rule applicable to you?”

Ziegler responded, “I am a good judge.”

Well, I’m glad we cleared that up. Ziegler, by the way, is the “strict constructionist” in the race. It seems to me that, at the very least, a commitment to strict construction--as opposed to a commitment to movement conservatism--would require one to follow the letter of the law, and not rely instead on a “gut check."

Any judge, no matter what their political perspective or understanding of constitutional theory, has to answer Yes to a question like “Do you consider the rule applicable to you?”

Mobile's Take and Xoff also have problems with this, as does the Milwaukee Journal Sentinel's editorial board. Both Jim Rowen and Dave Diamond caught the Colbertiness of Ziegler's statement, and Dave reminds us that Ziegler's campaign manager is Mark Graul, who seems to be repeating a losing strategy here. Which is fine by me.