WI Supreme Court Rules On DNR Authority, From Hancock To Kewaunee County

I still recall the woman, in the 1990s, holding the jar of cloudy and unappealing looking water taken from her kitchen tap in Kewaunee County prior to driving to the Madison office of her state assemblyman. What she made clear in the office of Representative Lary Swoboda was the harmful impact the water might have on her children. Her desire for an answer to clean water came to mind, again, as the Wisconsin Supreme Court ruled this past week about the power a state agency does have to impact state regulations.

In what can only be called a truly tremendous victory for science, the environment, and the authority of experts in state agencies to craft rules that work for all residents, the Court strongly affirmed the Department of Natural Resources has the authority to place permit restrictions on large livestock farms and high-capacity wells in order to protect the state’s water.

The plight of homeowners in Kewaunee County has long made for state headlines. Over the years county residents banded together and asked the DNR to review its approval of a large farming operation’s permit because it did not require groundwater monitoring or set limits on the number of animals. It was reported that about half the private wells in the town where the farm is located are contaminated.

The Court decision, written by Justice Jill Karofsky, for the majority found the DNR “had the explicit authority” to impose both permit conditions in order to “assure compliance” with limitations on discharged waste and groundwater protection standards.

Such concerns and complaints about groundwater were not new to me when working in Swoboda’s office. I was born in the Central Sands area of the state. The clean water of Waushara County was eyed by bottled water giant Perrier for a high-capacity pumping station on state land surrounding Mecan Springs. I add, to underscore the dread among locals about the proposal, that location was one of Wisconsin’s most renowned trout streams.

A decade ago there was much concern regarding manure runoff from a proposed nearly 5,000 cow farm that would have resided close to Coloma in the western part of the county. In addition to runoff issues, it was the estimate from the corporation that water usage at the facility was estimated to be about 52.5 million gallons per year that brought a united front of opposition.

The desire for stronger state regulations concerning Richfield Dairy brought many locals to meetings and in heated conversations with state lawmakers. It was, then, in that light a broader court contest emerged regarding the DNR’s approval of eight high-capacity well applications made by farmers in the Central Sands region between 2014 and 2015.

This past week Justice Rebecca Dallet wrote in the court’s majority opinion that the state Legislature “has granted the DNR the broad but explicit authority to consider the environmental effects of a proposed high capacity well.”

Pine Lake in Hancock, in Waushara County, 2016. Milwaukee Journal Sentinel files.

I fondly recall biking to this lake as a teenager, and though not knowing how to swim, loving to wade about and cool off. As an adult, it became clear that the groundwater concerns from locals were not just irrational fears, as the picture demonstrates. Over the years I heard first-hand the accounts of new homeowners needing to go deeper when digging a well. My dad’s second well, located near our garden plot, went dry when I was a young adult.

While the past two years have allowed for Hancock lakes to be very full, that does not diminish the data about the groundwater and the impact of high capacity wells in the area. The need to better regulate the permits is a necessity, given that such wells can withdraw more than 100,000 gallons of water a day from the ground.

Dad and Lary have both passed away, but I just know how pleased they would be with the Court’s rulings. Dad served 40 years as a Hancock Town Supervisor, trying to press in his low-key style the need to be mindful of natural resources. Lary, who served for 24 years in the Assembly, had wished for a more forceful ability to constrain farm runoffs into local streams.

The Supreme Court has now made it clear that Wisconsin’s waterways belong to the state’s residents.  

And so it goes.

Abortion In America To Face Supreme Court Test In Midterm Election Year

The high-wire political act being demanded of each political party in the 2022 midterms will be filled with enough bombast without adding more to the red meat container. As if the tribal politics of the country were not already strained comes a very important abortion case before the Supreme Court.

At issue is what is termed viability, whether states can ban abortions before a fetus can survive outside the womb. In shorthand that means a potentially and dramatically altered landscape for abortion, the likes we have not seen for nearly 50 years.

Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy, is not asking the court to overrule the 1973 Roe v. Wade decision confirming a woman’s right to an abortion, or a decision 19 years later that reaffirmed it. But what it is seeking is a stark attack on abortion rights since there is no way the Court can agree to the law from the Deep South and at the same time not severely harm the principal protections of Roe v. Wade.

What is feared, of course, is even with a ruling, narrow as it might be handed down, is anything that creates an opening for more men in legislative bodies around the country to keep adding cumbersome restrictions on the right of women to make their own healthy choices.

While I have a personal disdain for abortion, I find it necessary to advocate for the 1973 law that allows women to make their own choices. As such, I find the idea of viability, a tactic used by conservatives to force an economic decision on women who should not have to abide by the moral test of others to be very unjust. From the data that I have read the vast majority of abortions in our nation occur in the early stages of pregnancy. So to add viability to the equation is nothing more than a slick move by some overly zealous men without enough meaningful ways to use their law degrees.

I fully understand the power and punch of religious conservatives and the use of this block by the Republican Party for their partisan ends. Prohibiting abortion is a topic that has been used from the pulpits of churches, and the fundraising arm of the GOP. In, and of itself, those tactics are certainly to be allowed. What we can not, and must not allow, however, is for a religious test to be applied to each woman in this land who might consider an abortion. Because that is, and make no mistake about it, precisely what is being asked of the justices to allow in this case.

Meanwhile, the nation continues to speak in a centrist fashion about the 1973 law.

The nation has a poll from The Associated Press-NORC Center for Public Affairs Research finds 61% of Americans say abortion should be legal in most or all circumstances in the first trimester of a pregnancy. However, 65% said abortion should usually be illegal in the second trimester, and 80% said that about the third trimester.

Still, the poll finds many Americans believe that the procedure should be allowable under at least some circumstances even during the second or third trimesters. For abortions during the second trimester, 34% say they should usually or always be legal, and another 30% say they should be illegal in most but not all cases. In the third trimester, 19% think most or all abortions should be legal, and another 26% say they should be illegal only in most cases.

The issue is going to create a gigantic rhetorical explosion in the nation as the midterms come closer. I suspect there are many, such as myself, who while having problems with abortion itself, are standing with women as we know it is a health choice. It is a choice not for me to make. As an American, I know that is the way it should be.

And must continue to be.

Obamacare Scores Another Win At Supreme Court

So let us tonight come to some factual foundation about the Affordable Care Act.

While I was a supporter of single-payer in 2009, I was also pragmatic in my ability to score a run when it slides across home base. A win is a win. The health care needs of the nation required much assistance in 2009. Obamacare, simply put, was the fix that could pass Congress.

Obamacare is now very much deeply entrenched in America’s health care system. It covers some 31 million Americans directly, and it gives additional protection to people who get their health insurance outside the Obamacare markets — including from their employers. Republicans worked feverishly to derail the bill in 2009, and dismember it thereafter as they feared it would work, and the public would appreciate the benefits. Another social program!! Oh, no!!

My husband, James, runs his own guardianship business, dealing with clients with dementia or Alzheimer’s, and is on Obamacare. In fact, the office of Secretary of Health and Human Services, Kathleen Sebelius called our home to talk with James about his powerful letter of support for the plan…..and the call came mere minutes after he returned home from foot surgery which was made possible due to ACA.

This program touches on everything from menu calorie labels to the rights of nursing moms to free preventive care to lower drug costs for seniors. It protects people with pre-existing conditions. It helps disabled kids and their families. It has changed payment incentives to try to reward the quality of care, not just the quantity of care.

This program is a win-win no matter where you live, what you like on your pizza, or how you vote. From a policy perspective, the door has been opened and it is time to build on it, and I would suggest there is a clear path to universal coverage. The politics need to get rugged for that to take place, but the end result would be a win for all Americans.

Justice Department Sees The Light Regarding Yale University

The Justice Department is dropping a lawsuit accusing Yale University of discriminating against Asian and white applicants. From a legal/policy perspective, this move today is one we should approve of and applaud. In addition, we must consider how we might move forward on this larger issue.

The trumped-up race issue, when this made headlines under the last administration, struck me as a frivolous side note to a larger way to not only view this matter, but perhaps better deal with what we all desire. That being, greater diversity on campuses nationwide.

It serves our national needs to have more inclusion into higher education from a greater cross-section of the potential students. So if that is the end we desire how about removing “my parents went here” and “my family gave the school lots of money” in the consideration for acceptance. As a consequence, diversity will shoot and up and issues of genuine inequality will be addressed.

The move today by the JOJ is a reversal from the stance the department took under the Trump administration, which repeatedly challenged the issue of race in admissions. The lawsuit filed against Yale in October accused the Ivy League university of favoring certain applicants based on race, rather than using other means to achieve diversity in its student population.

The move by the previous administration was nothing more than an attack on a perceived ‘elite’ institution of higher learning. The Trump White House knew very well that the Supreme Court has repeatedly held that colleges receiving federal assistance may consider applicants’ race in limited circumstances. One of the most notable rulings was their 4-3 decision where the Court upheld the University of Texas’ affirmative action program.

“The race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause,” the court held.

Yale used that formula along with a number of other factors that allowed a student to be accepted at the school. But under the Trump DOJ, while they acknowledged those considerations by a college or university were legal, then tried to claim Yale used those allowances more than in the prescribed ways. It was nothing more than just another effort for conservatives to kick higher education, and what was viewed by the Trump team as an ‘elite’ institution.

There was a zeal in the Trump administration to set a legal precedent that would end the use of race-conscious admissions at Yale, and as a direct result, all such peer institutions.  This was also a president, mind you, who accused schools of teaching students “hateful lies about this country” and said he would be taking steps to “restore patriotic education”. And then for extra measure, he continued his opposition to efforts to raise awareness about racial inequalities.

Trump was so easy to read as to his racial motives.

The slams Trump’s DOJ made against Yale are now part of the overall racial animus he used during the four years in the Oval Office. It will take time to adjust and correct much of what happened in that term, but President Biden is doing just that, as evidenced by the current DOJ decision.

And so it goes.

Merit Selection For Supreme Court Gets Editorial Backing

I was most pleased to see merit selection for the justices on the state supreme court received solid support in an important newspaper in our state. This is a foundation topic at Caffeinated Politics, as it would greatly aid in the strengthening of our democracy.

The Beloit Daily News wrote an editorial regarding Wisconsin Supreme Court Justice Brian Hagedorn who was the sole conservative on the bench to demonstrate fealty to our Constitution and election process following the November balloting. As such he is receiving much news coverage for his strongly held views.

What stands out so wonderfully from the editorial, apart from the accurate summation of how Hagedorn has upheld the law, is the newspaper’s clear writing about the need for merit selection.

We have been among those disillusioned by the outright politicization of the state Supreme Court over the last several election cycles. Despite the theoretical nonpartisan nature of judicial elections, anyone paying attention easily can determine which candidate represents the Democrat side and which the Republican side. Big dollars flow, with the purpose of trying to elect a reliable left- or right-wing court. By all appearances, the strategy has been working.

But when high stakes partisan cases arrive at the court, the split has been evident. Expectations have been evident, too, with harsh reactions from the right when Hagedorn dared to break ranks and follow what he believes the law requires.

Justice Hagedorn deserves praise, not condemnation, for demonstrating that rarest of qualities in this hyper-partisan era—judicial independence. He’s still a conservative jurist, and we’re OK with that. What he’s proving, though, is that he’s not necessarily a partisan jurist, and all of Wisconsin should be pleased with that.

Unfortunately, Justice Hagedorn also is an aberration as a swing vote. He is flanked on the left and right by three reliable partisans when a case involves political matters.

The court is still broken.

In the past, we have advocated for abandoning elections in favor of a merit appointment system to fill vacancies on the Wisconsin Supreme Court. Such a system would not remove governors and legislators from the process. Rather, it would add a layer with the sole intent of finding candidates for appointment who are loyal to the law, not a political movement or party. Nearly half the states use some form of merit commission for nominations, not only for Supreme Court positions but often for appellate and trial courts. Commissions are charged with creating a list of potential nominees, considered solely on their merits and independence, then submitting the list to the governor for nomination, and the legislature for confirmation.

This topic is one of the issues where my thinking has evolved to the largest degree over time. Thirty years ago I was a strong supporter of the election process which allowed state citizens a direct voice in electing judges.  I admit there seems something very ‘American’ about the process.  I know there is still a very strong public desire for such elections, as people think that this balloting allows them to make for a better court system. 

But what is happening to the role of justice in Wisconsin with the blending of very costly campaigns that blur into political races should concern all of us.  The end result is not a better court system, but instead a fractured and deteriorated one. 

As such I sincerely say thanks for the Beloit Daily News editorial about this needed change.

When Safe Harbor Day Becomes Part Of Our Lexicon

It’s safe harbor day.

It is one thing when geeks and nerds, which this blogger for many years has willingly self-identified, know the term and why it exists. It is another thing, entirely, when many average citizens in the nation understand it, too.

The term means Congress can’t successfully challenge results from any state that has certified election results by today, December 8th. For all the nonsense we hear from the far-right wing, this is not some new and nefarious plot from the ‘deep state’. Rather the law was written in the 1880s to give states some time to figure out any disputes they had about who won before Congress takes over their part of the election process.

Now that the day has arrived let me put it plainly so even Donald Trump can understand. There will be a moving truck to haul your gaudy belongings out of the White House come mid-January.

Trump’s efforts to overturn the presidential election are over.

The ridiculous claims, charges, lies, distortions, and utter absurdities by Trump and his quirky legal team have allowed for the need of the nation to understand safe harbor’s meaning. Federal law requires that Congress recognize the slates of electors chosen by states that have resolved legal fights, recounts, and other election disputes by this date. And that has now occurred.

Late this afternoon the Supreme Court refused an outlandish request from Pennsylvania Republicans to overturn the state’s election results. The justices said they would not block a ruling from Pennsylvania’s highest court that had rejected a challenge to the use of mail ballots in the state. What must have been most galling to the Trump White House is that there were no dissenters in the Court’s order that was all of one sentence!

The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.

When Republicans can not even pack a Supreme Court to overthrow an election! When a nation needs to know what safe harbor day means!

The creator of this madness and danger to our democracy is only a little over a month from being removed from the White House. The trouble is the weak-minded among our citizenry have absorbed the illiberal attacks on democracy and seem more than willing to continue damaging our nation. That is a deep concern to this nerdy blogger, who ponders such matters.

Meanwhile, happy safe harbor day!

And so it goes.

Amy Coney Barrett Judicial Version Of A Stepford Wife

There is no way anyone with an understanding regarding the arc of progress this nation has made on a host of issues can honestly support Amy Coney Barrett for a seat on the Supreme Court. Her prudishness oozes when she speaks, and her disdain for the 20th century is most obvious. She is, as the Boston Globe made clear in a column, a cardboard cut-out. She is a factory-made Republican white woman that white Republican men can fawn over. She is their judicial version of a Stepford Wife.

This week the prim-faced nominee made it clear where she stands in regards to social progress in this nation. I was taken aback by her answer to a question from California Senator Dianne Feinstein who inquired if the nominee shared Justice Antonin Scalia’s hostility toward gay rights. The Senator wanted to know it Barrett would “vote to roll back hard-fought freedoms and protections for the LGBT community”?

Barrett responded that she had “no agenda,” which no doubt required her later to confess to a priest as what she said is a blatant lie. Then she uttered this line about gay people.

“I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”

And with that, the 21st century took a blow from one who used a dog-whistle that I had thought we placed on the ash-heap of history. It was clear from her answer she lives with her religion on her arm while her allegiance to conservatives makes her servile to their desires. Her outdated and regressive answer places her among that stale conservative group who think that sexuality is a choice, that gay and bisexual people simply prefer to partner with people of the same sex—a preference that, with enough willpower, can be changed.

This is why the Boston Globe article is so refreshing and accurate. The cheap and awkward theatre the GOP put on this week during the hearings did not produce any insight other than to galvanize the fact conservatives still yearn for the stone age.

Ah, Senate Republicans?

To nick a line from “The Graduate,” I just want to say one word to you.


The Senate Judiciary Committee should take its cue from the National Football League. Unable to put live fans into the stands, some football teams have filled the empty seats with cardboard images of seat-holders.

A cardboard cutout of Supreme Court nominee Amy Coney Barrett would have been a huge time-saving convenience in these hearings — and done equally well, given the real Barrett’s refusal to say anything relevant about her view of seminal Supreme Court precedents or how her legal philosophy would apply to any issue that might conceivably come before the court for consideration in the next half-century.

So constrained was Barret tthat she wouldn’t say whether she thought the case granting married couples the legal right to use birth control had been rightly decided. Or whether voter intimidation was illegal. Or even whether a president should commit to a peaceful transfer of power.

Her cardboard cutout could have simply worn a mask and held in its fixed hands a sign that proclaimed: “I can’t express a view on that — but my husband and I have seven lovely children.”

But let’s not stop there. Given the nugatory contributions of Republican Senators John Kennedy of Louisiana and Marsha Blackburn of Tennessee, precious time would have beensaved, and their states more ably served, by replacing them with cardboard cutouts. Why, to adopt the cornpone patois of Kennedy, it would have been better than finding a snapping turtle perched on a stump in soup season.

And a cardboard cutout would have spared viewers the witless partisanship of Senator Ted Cruz of Texas, whose endless self-delight calls to mind a wag’s remark about William Gladstone: He didn’t object to the prime minister always having an ace up his sleeve but merely to his conviction that the Almighty had put it there. Except with Cruz, there’s never anything there beyond a puff of partisan smoke.

Barrett’s confirmation is about as done as a deal can get. As long as they aren’t called up to attend another of President Trump’s super-spreader events and otherwise remain healthy, Republicans have the votes to ram her nomination through before the November election. That merely requires ignoring the monumental hypocrisy of confirming Barrett within weeks of an election after having refused even to grant President Obama nominee Merrick Garland a hearing, let alone a vote, in 2016. Fortunately, double standards are a defining feature of today’s GOP.

The flesh-and-blood Barrett insisted time and again that she had no agenda and had made no commitments on any matters to Trump or anyone else. Perhaps not. Yet as Democratic Senators Dick Durbin of Illinois and Amy Klobuchar of Minnesota noted, Trump himself has explicitly promised to select Supreme Court justices who would overturn Roe v. Wade and kill the Affordable Care Act. The president obviously selected Barrett because he believes her conservative outlook and originalist mode of constitutional interpretation make her a guided missile for those missions.

Let’s be realistic. Once she’s confirmed, chances are 9 in 10 that Roe v. Wade will go. Barrett, who has made her opposition to abortion clear, did little to disabuse anyone of that.

ACA Faces Conservative’s Wrath On Supreme Court

If the 2020 presidential election is the titanic storm politically, there can be no doubt the upcoming legal fight at the Supreme Court over the Affordable Care Act can be rightful termed the same for the health care needs of the nation. With no health care plan to replace the broad-based ACA, which assists millions with pre-existing conditions, the potential catastrophe caused by conservative’s antipathy towards health care for all is soon coming to a home near you.

The case which the court will hear (Texas v. California, No. 19-1019) comes from the far-right wing of the nation. Republican attorneys general, led by Texas, continue to make their claim that the legislation’s individual mandate provision was made unconstitutional when its penalty was set to $0 under Donald Trump’s 2017 tax overhaul. Their argument stems from the court’s 2012 ruling that upheld the Affordable Care Act, and which found that the law was an appropriate use of Congress’s power to tax.  But it the conservatives can swing their partisan ax from the high bench and have the individual mandate provision declared unconstitutional then the wet-dream of the right-wing is closer at hand. Namely, the entire ACA being flushed by the court.

If the knuckle-draggers on the right have their way every home in the nation will feel the negative impact. The most dire consequence of a court that seeks a partisan ruling would harm nearly 100 million people with pre-existing conditions.

2018 analysis by Avalere, a health care consulting firm, estimated that 102 million Americans have preexisting conditions. A 2019 analysis by the Center for American Progress suggested 135 million people.

But there would be other harmful outcomes if conservatives should prevail. Gone would be subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents’ insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare’s drug benefit, and a series of tax increases to fund these initiatives.

Republicans have long cared more about tax rates for corporations, and some mythical notion of ‘limited government’ than the quality of life for the citizens of the nation. Being anti-egalitarian is their calling and denying accessible health care for all has been one of their fervent undertakings for decades. They are lined up now to have a real chance of succeeding.

Just one more very stark example of what separates the nation, the political parties, and those with a social conscience and those without.

And so it goes.