Supreme Court – Is That Legal?: Supreme Court Archives
October 12, 2005
A Neo-Federalist View of Harriet Miers.
If Akhil Amar is not busily writing an op/ed about this clause in the Constitution,
“…all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”
why, I’ll eat my hat.
Posted by Eric at 05:14 PM | Comments (0)
October 11, 2005
Now We’re Getting Somewhere.
Harriet Miers thinks W. is “cool,” and doesn’t like the Klan.
Posted by Eric at 12:09 AM | Comments (1)
October 10, 2005
Young on Bazelon on Meirs
Cathy Young sees elitism in Emily Bazelon‘s assertion that Harriet Miers’ qualifications for the Court are poorer than Sandra Day O’Connor’s and Clarence Thomas because they worked in government while Miers had a corporate practice in the private sector. “Can we really automatically presume that public service requires more intellectual and legal acumen than private legal practice?” Cathy asks.
No, we can’t.
But I think Bazelon’s making a slightly different point, or if she isn’t, I’ll make it myself. The question is not whether private law requires more intellectual and legal acumen than government work (or at least certain sorts of government work). The question is whether a nominee to the Supreme Court justice is less qualified than others because she has spent her professional life pretty much wholly outside the sorts of legal conversations that are common among top government lawyers. I tend to think the answer to that question is “yes.”
Posted by Eric at 10:07 PM | Comments (5)
October 08, 2005
Pop Con Law Quiz! Fill in the blank: “Commerce, undoubtedly, is traffic, but it is something more: ______”
Texas Supreme Court Justice Nathan Hecht says that he and friend Harriet Miers have never stayed up all night “dwelling on the reverse commerce clause.”
My goodness. Is that what the kids’re calling it these days?
(Answer to the quiz, from Gibbons v. Ogden, 22 US 1 (1824), is here, if you read carefully.)
Posted by Eric at 11:56 PM | Comments (4)
October 07, 2005
Recoil in Nausea from the Miers Nomination.
Dr. Richard Land, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, on yesterday’s White-House-sponsored conference call on the Miers nomination:
One of the things that someone as a sixth-generation Texan that I want to add to this call and that is this: The two things that are probably … there are two virtues that are valued as highly as any virtue can be valued in the Texas culture, and those two virtues are courage and loyalty. Courage and loyalty. And this President, he knows that Harriet Miers is also a Texan, and, with a degree of understanding that would never have to be articulated, he and she both understand that if she were to get on the Court and she were to rule in ways that were contrary to the ways that the president would want her to approach her role as a justice it would be a deep personal betrayal and would be perceived as such by both by him and by her.
Just nauseating, and embarrassing.
UPDATE: What Sally Greene says, too.
Posted by Eric at 12:56 PM | Comments (0)
Withdraw the Miers Nomination.
Sarah Taylor, White House Director of Political Affairs, speaking to conservatives about the Miers nomination:
Harriet Miers is “somebody who not only makes decisions based on what’s in the Constitution but makes decisions that … uh … uh, she believes strongly in.”
Oh. So Justice Miers’ own strong beliefs will inform her constitutional interpretation? Really? I thought that was what judges weren’t supposed to do.
This tape should be the end of this nomination. Period.
Posted by Eric at 11:53 AM | Comments (0)
Listen In On The White House’s Pro-Miers Strategy!
Yesterday the White House sponsored a national conference call for conservatives to stir up support for the Miers nomination. It featured an incredible cast: Ken Mehlman, Sarah Taylor (Policy Director at the White House), Jay Sekulow, Richard Land, James Dobson, Chuck Colson, Leonard Leo.
You can listen to the whole thing by clicking on the link at Crooks and Liars here.
Please take the time to listen.
Posted by Eric at 11:49 AM | Comments (1)
I’ve Always Been Partial to Brockholst, Myself
“In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with “Warren” — which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade . Miers said she meant Warren Burger, the sources said.”
Did she also say she’s a big fan of Horace, Willis, and Mahlon?
What an absurd answer. On every level. It is absurd to think that she typically refers to Supreme Court justices by their first names. It is absurd to think that Earl Warren is one of her favorite justices. And it is absurd to think that any astute student of the Court would view the disorganized, vain, petulant, and mediocre Warren Burger as a favorite.
My guess here is that she was not referring to Burger. My guess is that she was referring to Earl Warren, and that the name slipped out because it’s a talking point: Earl Warren is the most famous example of a person who–like Miers–was never a judge before joining the Supreme Court. So this is a name that her handlers have probably been encouraging her to raise in response to questions (especially from Democrats like Leahy) about whether a person who has never been a judge can do the job of a Supreme Court justice.
It was, in other words, a right answer–but to the wrong question.
Posted by Eric at 08:45 AM | Comments (6)
October 06, 2005
“She Won’t Change.”
Outstanding commentary on the Miers nomination from Lyle Denniston.
Posted by Eric at 08:14 AM | Comments (1)
Why Does Harriet Miers’ Name Appear As A Private Lawyer On Motions Decided in 2005?
Noah Hall and Jonathan Weinberg, law professors at Wayne State University, wonder — and I do too — why Harriet Miers’ name appears as counsel on a motion in a private lawsuit in Texas that was briefed and decided in 2005 (.pdf), when she had already been at the White House for 4 years.
VENSON M. SHAW and STEVEN M. SHAW, Plaintiffs, v. BROADCAST.COM, INC., REALNETWORKS, INC., and MICROSOFT CORPORATION, Defendants. 3:98–CV–2017–P UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION 2005 U.S. Dist. LEXIS 18715 August 30, 2005, Decided August 30, 2005, Filed
COUNSEL: [*1] For Jerry R Selinger, Special Master: Pro se, Jenkens & Gilchrist, Dallas, TX.
For Venson M Shaw, Plaintiff: Pro se, Plano, TX; Michael D Pegues, Munsch Hardt Kopf & Harr, Dallas, TX.
For Steven M Shaw, Plaintiff: Pro se, Leonia, NJ; Michael D Pegues, Munsch Hardt Kopf & Harr, Dallas, TX.
For Broadcast.Com Inc., Defendant: Thomas M Melsheimer, Steven H Stodghill, Fish & Richardson —- Dallas, Dallas, TX; Eric N Whitney, Greenberg Traurig —- Dallas, Dallas, TX; Renee Skinner, Crutsinger & Booth, Dallas, TX.
For Microsoft Corporation, Consol Defendant: Harriet Ellan Miers, Thomas George Yoxall, Locke Liddell & Sapp, Dallas, TX; John D Vandenberg, Kristin L Cleveland, Klarquist Sparkman, Portland, OR; T Andrew Culbert, Microsoft Corporation, Redmond, WA.
JUDGES: JORGE A. SOLIS, UNITED STATES DISTRICT JUDGE.
OPINIONBY: JORGE A. SOLIS
A likely explanation is that the case has been pending since before Miers went to the White House, and somebody in the judge’s chambers simply forgot to remove her name from the counsel list. Someone in Texas ought to check the brief that Locke Liddell & Sapp filed in 2005, though, to see whether Miers’ name appears on it.
Posted by Eric at 04:11 AM | Comments (3)
October 04, 2005
Harriet Miers: 3-for-4 in the Texas State Courts
Startled by Peter Goldberger’s report of Harriet Miers’ inexperience in the federal appellate courts, I thought to myself, “well, maybe she has had a mostly state-court practice.”
Wrong.
A Westlaw search for cases in which Harriet Miers was an attorney of record reveals four reported cases (in thirty years) in the Texas state courts:
Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex. App. 1998) (contract law, agency law, personal jurisdiction) (won)
Microsoft Corp. v. Manning, 914 S.W.2d 602 (Ct. App. Tex. 1995) (class-action certification) (lost)
McClure v. Casa Claire Apartments, Ltd., 560 S.W.2d 457 (Tex. Civ. App. 1977) (mortgage law and dispute about jury verdict) (won)
Perkins Const. Co. v. Ten-Fifteen Corp., 545 S.W.2d 494 (Tex. Civ. App. 1976) (state-law conflict about priority of liens) (won)
Posted by Eric at 08:13 AM | Comments (5)
Harriet Miers: 0-for-3 in the Fifth Circuit
Peter Goldberger, an outstanding appellate lawyer (against whom I used to litigate back in NJ) reports the following about Harriet Miers:
A quick WestLaw search suggests that Harriet Miers has never argued before the Supreme Court (nor has her name appeared on brief there), and she has argued three cases before the Fifth Circuit (with her name appearing as additional counsel on a handful of others) over the last 30 years — two of them pro bono or by appointment of the court. Her argued cases are: Thanksgiving Tower Partners v. Arnos Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995) (commerical real estate dispute); Ware v. Schweiker, 651 F2d 408 (5th Cir. 1981) (volunteer pro bono counsel for Social Security disability applicant, through legal aid program); Popeko v US, 513 F.2d 771 (5th Cir. 1975) (sec 2255 appeal for federal prisoner, by appt of court).
She lost all three of the appeals she argued.
Posted by Eric at 08:03 AM | Comments (1)
October 03, 2005
Harriet Miers the Law Student: Budding “Judicial Activist?”
In 1968, a young Harriet Miers published a law review note (.pdf file) in Southern Methodist University’s law review. She either chose or was assigned the Texas Court of Civil Appeals case of Fisher v. Carroussel Motor Hotel, 414 S.W.2d 774 (Tex. Civ. App. 1967). The question was whether a person could recover damages for battery and for the infliction of emotional distress in a situation where the battery did not include a clear physical touching. The Texas appellate court held that he could, and Miers appeared to agree.
The facts of the case were that a black man made lunch reservations by telephone at the hotel’s restaurant. But when he showed up for lunch and picked up a plate in the buffet line, a restaurant employee grabbed the plate out of his hand and told him that the restaurant did not serve blacks. He sued for battery and infliction of emotional distress.
There is just one little gem in Miers’ piece that lurks (as all little gems do) in the footnotes. She is discussing the question of whether the Texas courts had the authority to create a new tort of intentional infliction of emotional address where the legislature had not done so. She appears to come out in favor of such a power (which, to my eye, is an unremarkable feature of our system of common law adjudication), but drops a footnote in which she says this:
“[An earlier Texas court] reasoned that the common law should rule unless changed by the legislature and that the question of the ‘new tort’ was embedded in serious policy considerations which should be determined only by the legislature. However, courts have both changed common law where it became obsolete and have ruled in decisions involving vital policy questions with great success.“
She was right, of course: courts have done these things. Note, though, that it’s a good bit different from the usual “courts-should-follow-the-law-and-not-make-the-law” mantra that gets recited at confirmation hearings.
Posted by Eric at 01:43 PM | Comments (3)
The W. Swagger
Iwas offline all morning, sitting in a dentist’s office while my wife had oral surgery. So I haven’t the faintest idea what the reaction to the nomination of Harriet Miers has been.
Here’s mine, though: With near-record low approval ratings and the FEMA/Katrina disaster just behind him, the President sure picked a strange moment to say to the entire nation, left, right, and center: “Just trust me on this one.”
Posted by Eric at 01:13 PM | Comments (1)
A Couple of Interesting Facts on Harriet Miers
Aquick Westlaw search reveals that Harriet Miers received a civil rights award from the Anti-Defamation League in 1996 and chaired the Dallas Bar’s Committee for the Provision of Civil Legal Services to the Poor.
Posted by Eric at 08:03 AM | Comments (0)
SCOTUS Nominee
Harriet Miers. The President’s personal lawyer. Crony, crony, crony. Did I mention “crony?”
The base, by the way, is not happy. (Scroll down through the comments.)
Posted by Eric at 07:40 AM | Comments (4)
Patience, My Dear. Patience.
It has been amusing over the past few days to read the posts and comments at confirmthem.org, a site where the Far Right goes to bite their fingernails about judicial appointments.
Just recently a woman had the audacity to suggest that it would be nice for the President to appoint a woman to the Court to replace Justice O’Connor. Naturally this extreme suggestion has brought out the best in people. Consider, for example, this reply from Andrew Hyman:
Of course, it’s been a difficult and bumpy ride integrating women into the workforce. But I hope that progress continues to be made in that area, for all of the women that want professional careers. And maybe Judge Willaims will be nominated tomorrow, which could well turn out to be terrific. My only point is that it would be nice if women would FIRST demand the kind of experience that Luttig was able to get, and THEN demand more spots on the Court, rather than the other way around.
Posted by Eric at 07:27 AM | Comments (0)
September 14, 2005
John Roberts, You’re No John Adams.
To listen to John Roberts yesterday, you’d think that law school graduates were randomly assigned career paths–and legal positions to espouse–along with their diplomas.
Consider these excerpts:
ROBERTS: The memo you refer to — I was working in the White House Counsel’s Office then. The White House Counsel’s Office is charged to be vigilant to protect the executive’s authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.* * *
ROBERTS: Senator, you will recall, at the time — this was 23 years ago — I was the staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the attorney general for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change.
I was a lawyer on his staff. According to this memorandum — and again, I don’t remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
* * *BIDEN: What was your position on Reagan’s civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?
ROBERTS: Senator, I was a staff lawyer. I didn’t have a position. The administration had a position, and the administration’s position was the two-fold position that you set forth.
* * *ROBERTS: Well, I think so, Senator. The position that you’re reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.
My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
* * *ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan.
Now hold on a second. I understand perfectly well that no lawyer has absolute control over his or her caseload, and that when young lawyers sign up to work at the local public defender’s office or the county D.A.’s office or the big litigation firm downtown, they don’t have a lot of say over which cases come their way. (This was certainly true for me in private practice at a mid-size NYC litigation firm and in the Appeals Division at the U.S. Attorney’s Office in NJ–though there I did decline to work on a death penalty case that was in the office at the time.)
But we are talking here about a man who left a clerkship with then-Associate Justice William Rehnquist to become a Special Assistant to the Attorney General of the United States under President Reagan, and who left that position to join the White House staff as Associate Counsel to the President.
These are no ordinary “staff attorney” positions. Nobody gets jobs of this sort just by being a talented young lawyer (as they do at the D.A.’s office, the Public Defender’s Office, or the litigation firm downtown). These are, in their nature, ideological positions.
And let us not forget that even the talented young D.A.’s and public defenders and law firm associates sometimes tire of the legal positions their jobs require of them, or the clients their jobs foist on them, and leave for a different line of work. John Roberts has done nothing but be offered, and then accept, internal promotions.
I vividly remember a poster on the walls of Yale Law School announcing some sort of meeting or discussion about career options. “A Lawyer Is Not A Taxi,” it said. The role of the lawyer is not simply to take paying passengers wherever they want to go. This is especially true for those of us fortunate enough to have attended schools like Yale and Harvard (Judge Roberts’ alma mater); most of us graduate with lots of options and the ability to make choices about what we want to do and what and whom we wish to represent.
Judge Roberts compared himself to John Adams yesterday:
ROBERTS: You know, it’s a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it. And that principle, that you don’t identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.
An odd analogy: Ronald Reagan and William French Smith were the Redcoats, I guess, and the young John Roberts was defense lawyer John Adams. John Adams was trying to demonstrate something about the American revolutionaries’ adherence to the rule of law.
What was the principle John Roberts was trying to demonstrate?
Posted by Eric at 08:26 AM | Comments (13)
September 13, 2005
Senator Leahy Bungles the Korematsu Question
A
n exchange between Senator Leahy and Judge Roberts:
LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they’ll speak with a somewhat different voice. He offers a somewhat different voice, of course — the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race. Now, the Korematsu majority’s failure to uphold the Bill of Rights I believe is one of the greatest failures in the court’s history. Now, we can’t — I don’t believe — have a Supreme Court that would continue the failings of Korematsu, especially when we’re engaged on a war on terror that could last throughout our lifetime; probably will.
We’ll always face — we’ll always — this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11. I just want to make sure you’re not going to be a Korematsu justice, so I have a couple of questions. Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group — you would hold that to be unconstitutional?
ROBERTS: The internment of a group solely on the basis of their…
LEAHY: Nationality or ethnic or religious group?
ROBERTS: I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.
Ugh. Ugh. Ugh.
I’m glad we know that Senator Leahy thinks Korematsu was wrongly decided.
It would be nice to know, though, what Judge Roberts thinks. His equivocal “I would be surprised…” response to the lame and abstract question posed by Sen. Leahy gives me very little comfort.
If he were pressed, I’d be shocked if Judge Roberts said Korematsu was a correct ruling. (Every sitting Supreme Court justice has condemned it.)
So that leads the money question: if Korematsu was wrong, then what about Hirabayashi–decided one year before Korematsu–which upheld a race-based curfew on Japanese Americans? Was that one also wrong?
If he declined to answer the Hirabayashi question, then I’d play out a string of Brown v. Board hypotheticals:
“Would you agree, Judge Roberts, that the separate-but-equal theory of Plessy v. Ferguson was wrong as applied to public schools?” (Presumable answer: yes.)
“Well, would you agree, then, that the separate-but-equal theory of Plessy was wrong as applied to public golf courses?” (Presumable answer: yes.)
“Well, would you agree, then, that the separate-but-equal theory of Plessy was wrong as applied to any public facility of any sort? (Presumable answer: yes.)
“And Judge Roberts, you have said that Court incorrectly ruled that the race-based internment of Japanese Americans was constitutional?” (Presumable answer: yes.)
“Well then, Judge Roberts, was the Court also incorrect in holding that a race-based curfew of Japanese Americans was constitutional?”
(Answer: ?????)
UPDATE: In response to a question from Senator Feingold, Judge Roberts just said that he agrees that Korematsu is in a category of wrongly decided cases alongside Dred Scott and Plessy v. Ferguson.
Maybe someone will follow up about Hirabayashi tomorrow.
Posted by Eric at 12:23 PM | Comments (6)
September 12, 2005
Hirabayashi
Here’s the question I’d ask Judge Roberts today: Did the Supreme Court correctly decide Hirabayashi v. United States (1943), where it upheld the constitutionality of a dusk-to-dawn curfew for American citizens of Japanese (but not German or Italian) ancestry?
Posted by Eric at 09:55 AM | Comments (2)
September 03, 2005
CJ Rehnquist Dies.
William H. Rehnquist, 1924-2005.
Posted by Eric at 11:37 PM | Comments (4)
August 16, 2005
What Turns Justice Thomas On.
Orin Kerr rightly takes Dahlia Lithwick to task for asserting that Justice Clarence Thomas is “happiest when he’s provoking outrage.”
Is she just making this up? Orin asks.
Yes, she is, because we know for sure when Justice Thomas is happiest: when he’s vacationing in his RV.
Of course, that might provoke outrage in some circles …
Posted by Eric at 07:40 PM | Comments (0)
August 09, 2005
Blondeness (and Maybe the NYTimes’s Interest) Explained.
Some days ago, in the context of saying that I thought the adopted children of Supreme Court nominee John Roberts ought to be off limitsI mused about what can only be described as the kids’ stunning and utter blondeness. News reports said they’d been adopted “from Latin America,” but they sure didn’t look typically Latin American to me. I speculated, with tongue in cheek, that they were from Bolivia’s well-known community of Norwegian expatriates.
A number of readers pointed out to me that there are lots of Nordic expat communities in Central and South America. And lots of blonde people.
Fair enough.
But it turns out the Roberts kids were born in Ireland.
Why they would both have been adopted in Latin America after being born to two different Irish mothers is unclear in the reporting that’s been done to date. (I say “two different Irish mothers” because the kids are less than 9 months apart.)
Perhaps somebody who, unlike me, actually knows something about international adoption practices can tell us how usual or unusual this scenario is. It could be that this is an entirely ordinary thing. On the other hand, maybe it’s really unusual–and if it is, then that would help explain why the Times (and other media) might have been looking for information about the adoptions.
UPDATE: Welcome, Eschatonians! In the name of clarity, I want to repeat something I already said in this post: All that the facts about the Roberts kids do is help explain why the NY Times might have been interested in knowing more. I was among those who said, at the time, that the Times was nosing around where it shouldn’t be. Now I can see why they might have been interested in investigating.
FURTHER UPDATE: A reader has left a comment, both here and at Atrios, that offers an explanation of why legal adoptions happen in this somewhat convoluted way.
Posted by Eric at 07:58 AM | Comments (40)
August 04, 2005
Leave the cute tow-headed kids out of it!
Unless the NY Times has got credible evidence of some sort of illegality in Supreme Court nominee John Roberts’ adoption of his two young children, then I agree with Stephen Bainbridge that a search for the adoption records is beyond the pale.
Drudge notes, by the way, that the two adorable kids were adopted “from Latin America.”
Judging by the looks of them, it must have been from Bolivia’s expatriate Norwegian community.
Posted by Eric at 09:24 PM | Comments (10)
August 03, 2005
The Religious Faith of Judges, vintage 1943
This post by Stephen Bainbridge about John Roberts and Catholicism reminds me of something I wanted to mention on my blog: A few weeks ago, when I was doing research at the FDR Presidential Library in Hyde Park, NY, I came across something that I think would be a real goldmine for researchers who think and write about the impact of judges’ religious views on their decisions.
It’s a list that somebody in the Solicitor General’s Office prepared, apparently at the direction of the White House, listing the name and religion of every federal judge sitting when FDR was first elected, and of every judge appointed by FDR. It dates from 1943, the year when FDR was preparing to select Wiley Rutledge.
I had no need for it, and so didn’t copy it, but it did strike me as a source of valuable data that might not be available anywhere else.
If you’re interested in knowing where to find it, drop me a line and I’ll send you the citation information that I have.
Posted by Eric at 08:41 PM | Comments (0)
Yes, Those Are My Eyes That Are Rolling.
“Modesty and humility:” these are precisely the human traits that I would imagine leading to the Managing Editorship of the Harvard Law Review, a clerkship with Henry Friendly, a clerkship with William Rehnquist, the positions of Special Assistant to the Attorney General, Associate White House Counsel, and Principal Deputy Solicitor General of the United States, appointment to the U.S. Court of Appeals for the D.C. Circuit, and a nomination to be an Associate Justice of the United States Supreme Court.
“Modesty and humility.” Yup. Sounds right to me. Certainly everybody I’ve ever known with a résumé like that has been modest and humble.
Posted by Eric at 10:44 AM | Comments (7)
August 01, 2005
Are You Now, Or Have You Ever Been …?
Democrats should stop the kvetching about the Federalist Society. Immediately. It is an embarrassing and counterproductive tactic, and it is unfair to those who belong to the organization.
So there’s a conservative legal organization that tries to advance its agenda and offers networking connections to its membership. So what?
Posted by Eric at 08:23 AM | Comments (5)
July 27, 2005
My Question for Judge Roberts.
Here’s the question I’d ask Judge Roberts at his confirmation hearing, if I had the chance:
“When the United States was at war with Japan, Germany, and Italy in 1942, the Army imposed a dusk-to-dawn curfew along the West Coast for U.S. citizens of Japanese ancestry, but no curfew anywhere in the United States for U.S. citizens of German or Italian ancestry. In Hirabayashi v. United States (1943), a unanimous Supreme Court held that the curfew did not violate the due process rights of the affected Americans.
“Was Hirabayashi correctly decided?”
Senators might waste their time on questions about Korematsu v. United States (1944), which, although never overruled, is considered by nearly everyone to be one of the Court’s four or five worst decisions ever. (Korematsu concerned not the curfew, but the wholesale exclusion of Japanese Americans from the West Coast.) A Korematsu question will be easy for Roberts, and his answer won’t tell us much.
Hirabayashi, on the other hand, involved the same discrimination as was at issue in Korematsu, but significantly less burdensome restrictions.
For anyone interested in better understanding the Justice-to-be’s views on executive power, race discrimination, and the balance of liberty and security in wartime, Hirabayashi is the money question.
Posted by Eric at 01:58 PM | Comments (7)
July 11, 2005
What Was This World Coming To?
Ispent the day today at the FDR Presidential Library in Hyde Park, NY, doing some research. I came across a document that made me smile. It’s a diary entry from Attorney General Francis Biddle, dated October 28, 1942.
Here’s the story: in 1942, after just a year’s service, Associate Justice James F. Byrnes left the Supreme Court to become the Director of Economic Stabilization. At the time Attorney General Biddle wrote this diary entry, he was deep in the search for Byrnes’ replacement. Roosevelt did, in fact, end up settling on Wiley Rutledge.
Isn’t it just, I don’t know, quaint to see a President and an Attorney General out looking for a “liberal” for the U.S. Supreme Court?
(And in 1942, no less! Good God! Didn’t they know there was a war on?)
Posted by Eric at 09:10 PM | Comments (4) | >TrackBack
July 08, 2005
Me? I’m a “wartime” law professor. What sort of a “wartime” job do you hold?
Of all of the idiotic things that are being ventured about the upcoming nomination(s) for the U.S. Supreme Court, surely this call for a “wartime Supreme Court justice“ tops the list.
Now you’ll excuse me for a moment … my wartime mailman has just dropped off the mail, and a wartime utility worker is waiting to be let in to look at the gas meter.
Posted by Eric at 12:45 PM | Comments (7) | >TrackBack
July 01, 2005
Right Is Center. Right?
Icannot think of a more visible confirmation of the right’s domination of America’s current legal discourse than the unanimity with which Sandra Day O’Connor is being praised as a “centrist” and a “moderate.”
So says even the Legal Director of the American Civil Liberties Union!
Yes, Justice O’Connor was often at the center of this Court.
But lost in all this situating of Justice O’Connor is any commentary at all about where on the historical continuum this Court is. To be near the center of a Court on the right does not make a judge “moderate.”
Posted by Eric at 11:18 PM | Comments (5) | >TrackBack
“Gets?”
Hmmm…. Was Sandra Day O’Connor actually fired?
Posted by Eric at 11:14 PM | Comments (0) | >TrackBack
June 28, 2005
Just Kidding?
R
andy Barnett now says he was just kidding when he approvingly posted a story about personal retribution against Justice David Souter for his vote in the Kelo eminent domain case, but I’m not buying his defense.
The hat tip was to a blogger who said he “loved” the story about the plan to condemn Justice Souter’s house, and who said he hoped the effort wasn’t just a publicity stunt.
Randy’s post called the idea a “taking for an excellent public purpose” and twice (to my eye, at least) indirectly assured his readers that he wasn’t sure the effort to take Justice Souter’s house was for real. (“An entity I know nothing about” and “possibly tongue-in-cheek”.) If Randy didn’t think there was some sense to the effort to take Justice Souter’s home, then I don’t understand why he needed to tell us that he doesn’t know anything about the group proposing the idea.
I’m very glad to see Randy’s clarification, but I don’t believe that he saw no merit too the idea when he initially posted and linked to it.
These are scary times to be a federal judge.
UPDATE: Another lawprof blogger calls for retaliation against Justice Souter, without any sign at all that he’s jesting.
FURTHER UPDATE: Apparently Dave Hoffman missed the “humor” too. (Unlike Hoffman, though, I definitely don’t see an ethical issue here for the lawprof-bloggers.)
STILL FURTHER UPDATE: Randy Barnett and I have had a private correspondence that leads me to conclude that my original posting should have more greatly emphasized, and praised, his quick repudiation of the idea of condemning Souter’s house. That was a very responsible and welcome repudiation, especially because it identified reasons why the idea is a bad one. I continue to believe that he wasn’t joking at first, but I’m glad he so quickly thought better of it and said so publicly and clearly.
Posted by Eric at 09:08 PM | Comments (22) | >TrackBack
June 27, 2005
Help Not Wanted.
Nothing posted yet here. Looks like Rehnquist is staying.
UPDATE: And it looks like city workers in Cody, Wyoming, should break out the bulldozer.
Posted by Eric at 10:24 AM | Comments (0) | >TrackBack
May 09, 2005
May It Blog The Court…
Orin Kerr is exactly right: the blawgosphere is going to play a major role in the public debate over new Supreme Court justices.
Posted by Eric at 01:29 PM | Comments (5) | >TrackBack
