With Koschnick on the Bench, Leggies Would Rule

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The last debate is over, and you have to say one thing for Randy Koschnick: He’s consistent.

There’s another thing you can say, too. With him on the Supreme Court, you can forget about those pesky checks and balances. What the legislature wants, the legislature gets.

His message in the final debate had a familiar ring:

Koschnick said he would be a judicial conservative who would tend to uphold laws passed by the Legislature as opposed to what he called a judicial activist like Abrahamson who often strikes them down.

He’s fond of accusing Shirley Abrahamson of “legislating from the bench.”

He’s especially fond of accusing her of flouting the will of the legislature in the case of medical malpractice award limits.

Same with spending public money on religious schools. “The legislature passed it, so what’s her problem?” is his basic question.

The medical malpractice issue is a centerpiece of his campaign, and of conservative complaints about the Abrahamson court before the right wing bought two seats and took the majority.

Here’s the issue, as explained by Dick Mial of the LaCrosse Tribune, who may be seen as slightly more unbiased than I am:

Abrahamson, 75, joined a majority of justices in ruling that a state law capping non-economic damages in a malpractice case at $350,000 is unconstitutional.

After the court struck down the caps in a case involving a child with a paralyzed arm and hand, the Legislature responded by setting a $750,000 cap, which Abrahamson said was the right thing for the Legislature to do.

Koschnick said the court exceeded its authority by striking down a state law when the Constitution did not directly address medical malpractice. In the absence of specific constitutional language, he said, the courts should uphold laws.

“That second-guessing should not be done by the Supreme Court,” he said.

“It’s not called second-guessing; it’s called judicial review of constitutionality,” Abrahamson shot back.

Koschnick’s interesting take is that the constitution doesn’t specifically mention any awards for medical malpractice, so the legislature should be able to do whatever it wants.

Presumably, if the legislature wanted to say that a patient who is brain damaged or incapacitated for life because of medical malpractice by an incompetent surgeon — or one who’d been sampling the Vicodin — could not collect more than $100 for pain and suffering, that would be fine with him.

Or maybe it could say there should be no such awards at all. Unfortunately, no one asked Koschnick that question and it seems increasingly unlikely he will ever be in a position where we will get to find out.

This position on what’s in and out of the Constitution has all sorts of interesting wrinkles. Take evolution, for example. This from a strangely pro-Koschnick piece by Bill Lueders in Isthmus:

Koschnick admits to personal views that could cause a commotion in Clarence Darrow’s grave. “I believe that God created people as people,” he says, affirming his belief in creationism over evolution.

But while Koschnick thinks it’s good “to give students as much information as possible,” he vows to weigh a constitutional challenge involving the teaching of evolution with an open mind. “I’m not going to let my personal religious views decide.”

So how would he come down in a dispute between widely accepted science and a religious belief most scientists agree has no basis in fact? Koschnick suggests such deliberations are beyond his purview as a judge.

“I won’t look at scientific studies and decide what should be taught,” he assures. “That’s the role of the Legislature. I’ll look at the Constitution.” He adds, “I don’t read the Constitution to say that schools must teach or must not teach creationism.”

There’ll be no science in his courtroom, by gum. We’ll just have to see what the legislature wants to do, and go right along.

This is the guy people are touting as the best of the conservative candidates in recent years? Good grief.

Fortunately, he’ll be back at work in Jefferson County Circuit Court soon, where the worst he can do is screw up a divorce case or throw the wrong evidence out in a murder trial. And we can all breathe easier — unless, of course, we live in Jefferson County.

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