Mark Graber writes at Balkinization,
When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.
I’ve been telling students something like this for 15 years. My version is a little different, as it makes a little more space for a libertarian/conservative split when it comes to some issues touching on the Bill of Rights, with the libertarians sometimes sounding quite “liberal” at times. But quibbles aside, it never ceases to amaze me that the fundamental idea that our courts are most frequently, generally, perhaps even naturally, conservative-bordering-on-reactionary is even controversial, much less that it is far from the dominant consensus. (That said, I do accept there is a case to be made that the current court is more conservative than the post-Korean-War norm, but that’s just a question of how far back you sample.)
I understand that law school faculties underwent a great expansion which resulted in their being stuffed with and dominated by a generation that saw the Warren court as the ur-Court. But even if that is your ideal, and it wasn’t perfect, why does this belief so often carry with it the myopic view that the Warren court was not a relatively rare historical aberration? Even most of the seemingly progressive moves of the Marshall Court were actually centralizing (Federalist), then seen as generally supporting the interests of the propertied and creditor class. And in between…
Such at least is my positive claim. The normative implications are less clear, for there are reasons why it may not be all bad to have a conservative bias in the courts, at least if one has a small-d democratic bias in the legislature. (I’d say we don’t have that now, by the way, due to various sorts of gerrymandering of congressional districts and the small-d democratic imbalances in the Senate.)
But one positive implication is clear: progressives put their reliance on courts at their peril. Social change happens most commonly in civil society (not least in churches) and at the ballot box. The courts are most commonly followers, not leaders. Mr. Dooley was a genius.
At PrawfBlawg (like the blog, hate the name), Steve Vladeck has a very insightful post on two cases pending before the Supreme Court: Did Omar and Munaf Just Become the Same Case?
Steve being a friend, I know he’ll forgive me for my quoting it in full:
Over at Opinio Juris, Kevin Heller has news of an immensely important development — the Iraqi Court of Cassation’s reversal of Mohammed Munaf’s conviction by the Central Criminal Court of Iraq (the “CCC-I”). Munaf’s habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts’ jurisdiction).Significantly, the distinction between Munaf and the other detainee — Omar — relied upon by the D.C. Circuit was Munaf’s conviction by the CCC-I… the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn’t (Munaf).
If Munaf’s conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to “pure” executive detention, without the wrinkle added by Munaf’s conviction (subsequent to the filing of his habeas petition). Indeed, Munaf’s almost becomes the stronger case, since his, unlike Omar’s, is not in the posture of a grant of a preliminary injunction…
How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?
One thing is for sure: If this all pans out, the reversal of Munaf’s conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was—and continues to be—so critical in his case.
In the warm-up to an excellent essay about styles of Supreme Court jurisprudence, U.Chicago Prof. Geoffrey R. Stone recites some basic truths that seem utterly lost on most of the US press. And I have to wonder how many law students today understand that the Supreme Court today is a reactionary court.
The University of Chicago Law School Faculty Blog: Constitutional Vision The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court - more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.
- Seven of the current nine Justices were appointed by Republican presidents.
- Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
- Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
- The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O’Connor to Kennedy.
- As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
- If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.
My own views are probably somewhere between Justice Stevens’s and Justice Brennan’s, but whatever your views, this must surely be recognized as a factually accurate description of the current Supreme Court.
By the way, I do recommend the entire essay — that was just the warm-up.
Pat Gudridge:
From the front page of the New York Times: “Investors’ Suits Face Higher Bar, Supreme Court Rules.”
Issued yesterday, the Court’s majority opinion in the Tellabs case starts from the proposition that plaintiffs bringing securities fraud suits must allege (in their initial complaints — in advance of discovery) facts in sufficient detail to show statements attributable to defendants to be false either because of affirmative misrepresentations or because of notable omissions — and also facts suggesting defendants knew the statements were false (the so-called scienter requirement). There’s nothing new in this. But the majority also held (this was new) that, to be well-pled, facts regarding scienter, more or less like facts regarding falsity, must appear from the allegations to suggest that inferences of scienter are not just plausible or reasonable — but rather cogent, at least as compelling as any opposing suggestion, given the alleged facts, that there was no knowledge of falsity on the part of defendants.
Too complicated, too boring: who cares?
Securities fraud suits are important — the possibility that false statements influence stock prices, it has seemed at least since 1929, provokes corrosive suspicion of securities markets, increased economic anxiety, and a generalized wish to punish wrong-doers. But securities fraud suits may not always be a good thing — just opportunities for lawyers to practice discovery abuse and force settlements and attorney fees even in cases where nothing much wrong happened. Some economists argue that markets themselves drive out false information, or at least provide good ways for investors to protect themselves (diversified portfolios, etc.) Trying to strike a balance, Congress passed a statute in 1995 requiring pleadings alleging facts sufficient to give rise “a strong inference that the defendant acted with the required state of mind.” The Tellabs case raised the question of what “strong inference” means (Congress chose not to define the term).
Justice Ginsburg wrote the majority opinion. Her definition of “strong inference” was more rigorous than the one deployed by the court below — a requirement only that plaintiffs allege facts supporting a reasonable inference of knowledge of falsity. But other courts had opted for even more demanding rules than Ginsburg’s — for example, that the inference of knowledge of falsity be the “most plausible” suggested by the facts alleged. Whether Ginsburg set a “higher bar” depends, therefore, on which of the conflicting lower court decisions you treat as the point of departure. Notably, Justice Scalia would have opted for a “more plausible” test, and Justice Alito agreed with Scalia, thinking that “more plausible” fits better with tests that would be applied later in the course of a lawsuit (if plaintiffs passed the pleading test). Justice Stevens, to be sure, dissented, and proposed borrowing the “probable cause” test from criminal law, thus excluding any consideration of competing inferences.
Maybe Stevens proposed a test more pro-plaintiff than Ginsburg’s. (Do we really know what probable cause means? Isn’t criminal procedure too different in its underlying preoccupations to provide a useful model?) It is clear that Ginsburg meant to reject Scalia’s formula (cheerfully needling him in the course of her opinion) and that she thought that Alito had no comprehension of how civil procedure works (a point made rather sternly).
But that’s not what’s most important here. How are plaintiffs or their lawyers supposed to find out facts they can plead in advance of discovery? This is a standard problem in corporate law generally — so-called derivative suits require shareholders to plead with particularity too. And the Delaware courts — the most important corporate law courts — treat no access to discovery as no problem: “use the tools at hand,” they say. Shareholders, it turns out, have state law rights (often) to obtain information about corporate decisonmaking independently of litigation. There are complications, of course: but why can’t these state law rights be used to get information for purposes of federal suits? Even if that won’t work, if plainitffs have facts available to them showing that representations were false, and if the facts can be shown to have been available before matters came to a head, doesn’t that suggest, maybe, that defendants may have (or might cogently be supposed to have) known of those facts too? Justice Ginsburge says that what’s “cogent” isn’t a matter of any particular smoking gun document, or even whether or not defendant had an obvious financial reason to withhold the truth. The inquiry, she insists, is “holistic.” Plainly, she leaves lots of room within which smart lawyers might work (that was Justice Alito’s main worry, it appears).
You don’t have to be interested in corporate law to think that this is important. In constitutional law, in equal protection cases, plainttifs must allege and prove discriminatory purpose. When the Supreme Court discovered this requirement in the 1970s, the initial reaction of many was that the Court had just killed off equal protection litigation. Not so: such suits are harder, but there’s plently of leeway for circumstantial inference, precisely after the fashion of the securities litigaiton Justice Ginsburg is discussing (interestingly, the scienter requirement was discovered by the Supreme Court at just about the same time).
Consider this possibility: Next week the Supreme Court decides the Seattle and Louisville school desegration cases against plaintiffs. School systems can no longer include race as an explicit factor in pupil assignment formulas. But school systems suspect, and likely will know for sure within a year, that using parental choice formulas without including a racial preference leads to racially segregated schools as a matter of fact. Would this be purposeful discrimination? How plain is this likelihood? What other reasons would school systems have to opt for parental choice unmodified? What if there ways to assign students that reduced segregation in fact — say redrawn districts or efforts to achieve economic diversity within schools — that were also practical? What would we make of parental choice then? Notice that these questions are just versions of the questions that Justice Ginsberg thinks are pertinent to the holisitic inquiry show wants to see in cases like Tellabs. Notice, therefore, that within the terms of her approach, the Seattle and Louisville decisions — if they come out the way Supreme Court sportswriters are predicting — may just open the way for new lawsuits in which plaintiffs may in fact be better positioned (if we know anything, we know that defending affirmative action in courts these days is not easy).
Who knows, though, what the Court will do next week. Stay tuned.
Paul Horwitz at Prawfsblawg points to an amazing live recording of the sometimes odious and usually brilliant Justice Oliver Wendell Holmes, Jr. made at the conclusion of a symposium in honor of his 90th birthday.
Truly a dead voice from the past.
And as Faulkner said, “The past is never dead. It’s not even past.”
[I’m in Italy until late Wednesday, so I queued up a few posts to cover while I’m away. This is one of them.]
I was a student of Harold Koh’s about 20 years ago. We have not kept in close touch since, although I do see him at the occasional conference or alumni event.
The Harold Koh I knew was a pretty cautious and conservative guy. He generally took the conservative view in his national security law class, and tended to praise the people who expressed right-wing views (e.g. on judicial inability to interfere with the executive), much more than the left. If he harbored many views even a hair to the left of center, he kept them well hidden while tearing into the paper of mine he supervised. I admired him as a serious, disciplined scholar, and have tried to model one or two of my habits on what I saw of his.
Watching him from a distance, it has seemed that he has gradually become a bit more liberal politically as the country has been in the grip of a kleptocratic gang masquerading as conservatives, and has been particularly forceful on traditional issues such as being against torture and for decency. Really radical stuff. And he’s certainly been a tremendous Dean for Yale Law School.
Thus it’s shocking to learn about The Scary Prospect of Harold Koh as Potential SCOTUS Nominee from none less than ProfessorBainbridge.com®.
“There can be no doubt,” writes ProfessorBainbridge.com®, “but that Koh would be a liberal activist of a stripe we haven’t seen since Brennan and Marshall. The personal policy preferences of elite left-liberal salons would rule, rather than the rule of law.”
Now, I’m as unwilling as the next guy to have the country run by any salon, even SALON®. But really, Harold Koh as a wild liberal activist? I don’t think so. Much as I like him.
When I saw this headline at CNN, I thought it was some sort of early April Fools joke, but it's real: Scalia addresses wild-turkey hunters
Scalia addresses wild-turkey hunters.
Scalia addresses wild-turkey hunters.
Yes, it's real.
(Actually, there's nothing necesarily wrong with a Justice addressing "the nonprofit turkey federation" which "is dedicated to conserving wild turkeys and preserving hunting traditions." But it's still a funy headline.)
Peter Jung tipped me off to ABC News: EXCLUSIVE: Supreme Ethics Problem?:
At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society....
"I was out of town with a commitment that I could not break, and that's what the public information office told you," he said.
It "doesn't matter what it was. It was a commitment that I couldn't break," Scalia continued when questioned further.
According to the event's invitation, obtained by ABC News, the Federalist Society promised members who attended the seminar an exclusive and "rare opportunity to spend time, both socially and intellectually" with Scalia.
Update: Then again, maybe it's not a duck?
Geoffrey Stone, The University of Chicago Law School Faculty Blog: Why the Senate Should Not Confirm Samuel Alito:
Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts....
Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate - Republicans and Democrats alike - to deny his confirmation to the Supreme Court of the United States.
Tell me again that this is a done deal?
No, not Sam Alito. Edward Lazarus, author of the clerks' tale telling book "Closed Chambers," who appeared recently on the Daily Show.
And Jon Stuart asked him about Weiner v. US (!) I actually teach that case....
I mentioned before that the anti-Alito case would have three legs: Roe/women's issues, "he'll say anything to get a job," and life-long spear-carrier for the imperial presidency.
Now Senator Kennedy sets out the case on the second issue: Alito's Credibility Problem. And of course links it cleverly to the other two issues as well.
William Saletan's Right to Wife - Why does Judge Alito treat women like girls? sets out one of what I think will be the three big narratives opponents try to hang on Judge Alito. The other two, of course, will be "he'll say anything to get a job", and "lifelong apologist for the Imperial Presidency". Whether even all three together can get sufficient traction to derail the nomination is not clear to me; it seems unlikely that any can do it alone, but if all three get some traction, it may be an interesting fight.
Lynn Nofsziger: "Conservatives are pleased with the president's selectiion of Samuel Alito for the Supreme Court. For them Alito bit goes a long way."
Marble chunk falls from Supreme Court facade: WASHINGTON (AP) -- A basketball-sized piece of marble molding fell from the facade over the entrance to the Supreme Court Monday, landing on the steps near visitors waiting to enter the building. ...The marble was part of the dentil molding that serves as a frame for sculptural figures. The piece that fell was over the figures, near the peak of the building, and to the right of the figure of Liberty, who has the scales of justice on her lap.
This isn't such great symbolism either:
The fallen marble lay directly in the center of the path up to the court entrance.The 70-year-old Supreme Court building is undergoing a $122 million, five-year renovation project, although it is unclear whether the accident was related to that work. The project includes an underground two-story police station.
The man nominated to replace the first female Justice in US history isn't just not a woman -- he's a man who was a proud member of "Concerned Alumni of Princeton", a group formed to oppose the admission of women to that male bastion. ("Q: How many Concerned Alumni of Princeton does it take to change a light bulb? A: Six - One to change it, and five to sit around and talk about how good the old one was.")
Now, this was back in 1972, a rather long time ago, and at a rather young age. So one might be tempted to draw a veil over the episode. But not Samuel Alito. It seems that then-Mr. Alito was still bragging about his anti-woman-at-Princeton membership in 1985, when applying for legal work in Meese's Justice Department. (And it probably was a shrewd move, too. In any case, he got the job.)
In that same 1985 application, Alito made a point of stating that "I personally believe very strongly" that the Constitution doesn't guarantee a right to abortion. Again, not alone likely to be a disqualification; many people believed that then, many do today, including some who would follow Casey's re-affirmation of Roe despite their personal beliefs.
What's most troubling here is Alito's explaining this 'deep personal belief' away when visiting when Senator Specter. He doesn't say he's changed in the intervening 20 years. He doesn't say, personal beliefs don't necessarily decide cases, personal beliefs then may not control legal decisions now -- which would have left the issue open. (And he certainly doesn't say he's changed or grown in 20 years -- that might startle the base.) Rather, today Judge Alito says that what he said 20 years ago should be ignored: "I personally believe very strongly" was just language used by “an advocate seeking a job." What does that mean? He was lying? Puffing? Being parsimonious with the truth? But we should believe him now because he's a judge seeking a much better job?
Until now, the largest eyebrow-raiser on the record was Alito's (inadvertent? careless? forgot his $390,000 in Vanguard funds? forgot his pledge to recuse to the Senate?) failure to recuse himself in a case (more than one case?) where you might have expected him to -- and especially what has been suggested was Alito's unjudicial peevishness at being called on it.
On its own, the keeping-your-pledge didn't look like nearly enough to torpedo the Alito nomination; but combined with the veracity issue...it starts to look like a counter-narrative....
[On the other hand, I think there's a danger of making too much out of an opinion Judge Alito signed but didn't write -- United States v. Jasin, 280 F.3d 355 (3d Cir. 2002). Frank Menetrez's account of the case makes the decision look terrible, and on my somewhat hasty reading the opinion is at best infelicitous and skates lightly of the facts, and the third judge certainly wasn't buying it. But, the basic legal principle enunciated, that the post-conviction exculpatory testimony of alleged co-conspirators may not qualify as "newly discovered evidence" for the prudential reasons mentioned in that opinion is one that I think a reasonable person could hold, even if it was applied with excessive gusto and insufficient attention to the actual facts in that case. Note that even the concurrence agreed with the result, just for a different reason. To me, this opinion alone is not a smoking gun -- it's at most a note or two in a somewhat harsh symphony.]
Although I rather doubt that the law professors' letter had much to do with it, I'm pleased to learn that the Supreme Court has granted cert. in the Hamdan appeal.
Did Chief Justice Roberts accidentally create grounds for reopening (and even rearguing) Banner v. United States?
Here’s the argument:
This case is an appeal decided today [Hat Tip to How Appealing for the link] by a panel consisting of Chief Justice Roberts, sitting as a Circuit Justice, and D.C. Circuit Judges Edwards and Rogers. Chief Justice Roberts is the judge formerly known as "Circuit Judge Roberts," who was originally assigned to hear the appeal in that capacity, along with Edwards and Rogers.
On September 29, 2005, Circuit Judge Roberts took the oath of office as Chief Justice of the United States. And we can only presume that at that point, if not before, he effectively resigned his commission as U.S. Circuit Judge for the District of Columbia Circuit. Indeed, the Federal Judicial Center website states, in its entry for "Circuit Judge Roberts," that Roberts’s "[s]ervice terminated on September 29, 2005, due to appointment to another judicial position."
On October 11, 2005, the Supreme Court issued an order assigning Chief Justice Roberts to be Circuit Justice for the D.C. Circuit. Under 28 U.S.C. § 43(b), "Each Court of Appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court." So, in plain English, Chief Justice Roberts was a member of the circuit at the time of the opinion—i.e., today.
The problem, however, is that Roberts does not appear to have been a member of the circuit, either as a circuit judge or as a circuit Justice, between the date he left the court (September 29) and the date of the circuit Justice assignment order (October 11). What’s more, it’s not clear how, when he "rejoined" the court, he also rejoined the panel. After all, the normal procedure on most circuits (and, we presume, the D.C. Circuit) when a vacancy arises is either to leave the third seat vacant since the two remaining judges constitute a quorum, or to randomly assign a third judge.
This may seem like pedantry, but it was this very kind of punctilio that forced the Supreme Court to vacate a whole slew of criminal convictions affirmed by an "improperly constituted" Ninth Circuit panel in Nguyen v. United States in 2003. In Nguyen, the Court held that the presence of a judge who was not a duly constituted member of the court was grounds to invalidate any decision in which he participated, even when the remaining two judges would have constituted a quorum and would have chosen the same outcome.
It is certainly possible that the proper order reassigning Circuit Justice Roberts to the original panel does exist, and was filed by the Clerk of the D.C. Circuit. We have been able to find no such order, however, on the D.C. Circuit’s website, and a cursory search of the PACER docket summary for Banner reveals none. If there was indeed no such order, it certainly appears as if the losing party has a good claim that the panel decision is voidable under Nguyen.
In a subsequent post (which we hope never to write), we’ll explain whether Chief Justice Roberts would have to recuse from the cert. petition from the reargument, since he would no longer be a member of the panel below.
[Co-authored by Michael Froomkin and Steve Vladeck for cross-posting on PrawfsBlawg and Discourse.net, as an unfortunate result of our offices being close together.]
People for the American Way, a group that stands for traditional American values including civil liberties and equality has issued a 'fact sheet' on Judge Alito (or, read the summary fact sheet). The tenor of the report is summed up in the (somewhat shrill?) headline "Samuel Alito: Leading the Attack on Fundamental Legal Rights and Protections for All Americans".
Angry Bear takes a look at an Alito decision on the Family and Medical Leave Act (FMLA), and reports that "All in all, my first foray into learning about Samuel Alito was not an encouraging one."
Kash reports that Alito's way-out-of-the-mainstream opinion was rejected by the Supreme Court, 6-3, in an opinion by Chief Justice Rehnquist. (I must confess, though, that I don't recall that decision; I will (re)read it, and if I find anything that contradicts Kash's analysis, I'll update here.)
Update: The Alito opinion in question is rather conclusory on the key points, which may make it more or less awful depending on whether you are a glass half full or empty type person. And the Supreme Court opinion is not a direct review, but rather a review of later decision by the 9th Circuit. Thus Chief Justice Rehnquist's opinion doesn't directly engage Judge Alito's, but does indeed reject the views he adopted.
Three posts of interest by Eric Muller, who used to work (briefly) for Sam Alito: Sam Alito, As I Knew Him, It’s Alito, and The Alito Nomination and Gender Equality.
As predicted here more than a week ago, the White House withdrew the Miers nomination. So now we can speculate as to who's next, and whether it will be such an awful nomination that it will be filibustered. The first question is whether, having named a woman the first time, the White House can get away with replacing her with a man -- suggesting that in its eyes no women are up to the job. As far as I know, however, all of the leading women candidates are rather extreme, and thus filibuster bait.
Perhaps it depends on the number and nature of whatever indictments we get tomorrow, and what it does to the White House's political power?
Brad DeLong has decided he is For Harriet Miers on the devil-you-know theory. Too late, though, she's not just sinking, sinking, it's gotten to the point that Miers is toast.
Then again, if we get enough endorsements, maybe we don't have to forgo the hearings? I look forward to the meticulous replies.
Which is not to say that the devil-you-know theory is a bad one: If the Nixon pattern holds, we'll get someone much worse next time, just to punish us.
In and of itself it's more a technical error than a smoking gun, but in context this seems part of a pattern of carelessness:
Page A-26: Can you believe it? ... unidentified low-level sources have revealed to Page A-26 that Harriet Miers did not provide a complete work history in her Senate Judiciary Committee questionnaire.Sources indicate that Ms. Miers failed to mention her tenure as a member of the Martindale-Hubbell/Lexis-Nexis Legal Advisory Board.
I understand how a busy person might honestly forget even something fairly substantial such as a Board membership. I remember how much trouble I had documenting my life when I had to apply for a security clearance, and I was only 28 at the time. But that is why any well-organized person keeps their c.v. up to date -- it's a way to make sure you have a record of everything you've done should you ever need one. I try to update mine at least once a year. (Hmm... looks like it's time to update it again....)
Given that one of the major talking points for Miers has been how 'meticulous' she is, the drip drip drip of sloppy mistakes that might well be ignored for a different nominee will in this case continue to erode her rapidly shrinking prospects.
Not only did Miers get suspended from practicing law not once, but twice -- twice! (surely well aheard of the previous record for any nominee to the Supreme Court?) -- but it seems, via Yahoo! News, that she is not so meticulous about filling out other forms either: Miers omitted prior business interest on Senate questionnaire (alt link direct to Chicago Tribune).
It is amazing when I am in substantial agreement with a Robert Novak column on anything, but there it is.
"The tipping point in Washington is when you go from being a subject of caricature to the subject of laughter. She's in danger of becoming the subject of laughter." --Bruce Fein, quoted in Newsweek.
How long before the nominator too becomes subject to the ridicule he deserves? Maybe not until he leaves, or is hounded from, office: the problem that the damage being done to this country just isn't funny.
Think Progress » BREAKING: Miers Also Suspended from Texas Bar
I'm a little sorry to see the Harriet Miers nomination sink so fast. I would have preferred it sink slowly. Very slowly. And indeed, I might have preferred it not sink at all: if we're going to have a nominee from the GW Bush stable, better to have a sixty-year-old lightweight with some vaguely moderate items in her history than some forty-five-year-old firebrand with heavy-duty intellectual firepower. Or even a sixty-year-old firebrand.
Getting suspended from one bar, briefly, for non-payment of dues was sloppy but a little easier to excuse than the multi-year, and seemingly knowing, defaults of DC Circuit nominee and now Judge Thomas B. Griffith. Doing it twice, well, it's not very meticulous, is it?
I know the poll numbers so far haven't supported the neo-con pileon, but give Letterman and Leno a week or two, and I'm afraid Miers is probably toast.
The predictable news story has hit the cycle: TalkLeft: Bush Didn't Ask Miers About Abortion Views. I could swear I read the same article about Roberts just a few weeks ago.
And just like last time, my first reaction is that the press is being snookered: ordinarily asking questions like that is Cheney's job. And much as I looked, I never saw any news reports -- or Senatorial questioning -- about what Cheney asked Roberts in their long meetings.
I suppose in this case, though, it's possible that, knowing Miers so well, they didn't even have to ask. And in fairness, it's possible that had someone asked Miers wouldn't have answered, as Eric Alterman Jeralyn Merritt subbing at Altercation quotes her as saying such questions are improper. Then again, that also means she won't be saying much to the Senate, doesn't it.
MAXSPEAK ENDORSES HARRIET MIERS FOR SCOTUS.
I think he's serious.
Eric Muller engages in a little forensic scholarship, and digs up Harriet Miers's law review note from 1968.
There just might be a little quote in there to give conservatives heartburn. (Understood in context I think it's a quite reasonable position consistent with traditional federalism, but it certainly isn't a quote that screams judicial restraint.)
Justice Roberts Takes Supreme Court Bench:
Roberts wore a plain black robe, without the gold arm stripes that had been used by his predecessor, William H. Rehnquist.
A good start.
I don't know much about Harriet Miers, but on paper she does not appear to be the most qualified nominee available. I like the idea of someone with political experience, and don't see the absence of judicial experience as any sort of disqualification. The problem is that the overall c.v. is rather thin compared to, say, a Roberts, a Scalia, a Souter, a Warren, or even a Stewart.
At first sight, her overwhelming qualification appears to be loyalty to Bush, and that, in these times, is no great selling point.
Oddly, the initial conservative reaction is not favorable. [UPDATE: The article at that location has been neutered. ]
The obvious initial issues, post New Orleans, are cronyism and competence, and I expect that these issues will dominate the moderate and liberal reactions in the next few days; the issue may get a lot of additional oxygen if the ABA rating is anything less than its highest endorsement -- and it could be.
If the conservatives end up splitting on this nomination, or even just lukewarm, it's possible that this nomination might fail on a straight vote, without even a filibuster.
Which raises this Machiavellian question: WHAT ARE THEY THINKING?
Basically, there are three completely different possibilities that jump out at me:
The first one is that they are losing their grip over there in the White House, and this is just dumb. Plausible, but even post-Brownie, one must be wary of misunderestimating this crowd's political sense.
The second one is that they are not losing their grip in the White House, that Ms. Miers has depths which are not immediately obvious, and that they will become manifest in due course. I'll bet this is the least likely scenario, but it pays to keep an open mind at this early stage.
And the third scenario...well, it looks like this: The White House has hedged its bets. Either it gets its loyalist onto the Supreme Court, which will be handy for all sorts of reasons ranging from Guantanamo onwards. Or it doesn't. And that's fine too. The battle over Miers will take months, meaning that the battle over the next really red-meat nominee will take place much closer to the next election. Which is just the time you want to re-ignite the culture wars for maximum electoral effect. Plus the Senate, having rejected one nominee, may have less stomach for a second fight. (Not that this worked for Nixon, of course.)
The other day Eugene Volokh posted a short note referencing a reminiscence about then-Associate Justice Rehnquist:
An Arizona Lawyer's Reminiscence About Chief Justice Rehnquist: I left the justice at the hotel about 8 that night and picked him up the next morning. He told me how much he enjoyed his walk and that he had three or four beers at one of the "joints." He said he sat at the bar, talked and told jokes late into the night with a number of the bar's regulars. Just before he left to return to the hotel, he asked one of his bar mates, Pete, what he did for a living.Pete told him that he drove a big-rig truck for Pacific International Express. In turn, Pete asked his new buddy "Bill" what he did for a living. Bill said to Pete and his bar gang, "Well, I work in Washington, D.C. I am a member of the U.S. Supreme Court."
Pete and the gang laughed heartily at Bill's joke or apparent fantasy, slapped him on the back and offered to buy him one more beer "for the road back to Washington and the Supreme Court."
There is something cute about this annecdote (and in fact the entire article from which it is from paints an attractive portrait of an unpretentious Associate Justice, one well at odds with the image of the Chief who put those golden Gilbert and Sullivan stripes on his robe).
But there's also something sad about that story. To me it shows how stratified the US has become or, if you prefer, remains: regular folks just 'know' that elites will never mix with them, so they don't believe it when it happens. And the fact that it happens is so worthy of commentary that it is mentioned in the elite's obituaries.
There's more than one bubble in Washington.
The first thing I’ve learned about proto-Justice Roberts that I think hurts his candidacy — and makes me think he really is outside the mainstream: back when he was a young hot-shot GOP politically appointed government lawyer, Roberts wrote against anti-discrimination law aimed at curbing sex discrimination. But he didn’t just oppose these laws on libertarian grounds (which I would consider wrong, but principled) but also asked whether “encouraging homemakers to become lawyers contributes to the common good.” Which is casual sexist pig talk.
Had Roberts written this in the 50s, we could dismiss it as the times. But Roberts wrote this yesterday, in the Reagan administration.
And this is the guy who is slated to replace the first female Justice?
No way this is fatal on its own, more a big scratch than a deep wound (and Sen. Santorum agrees, anyway), but it’s the first thing to draw blood.
Source: Guardian via TalkLeft: Roberts to Women: Stay in the Kitchen.
It turns out that John Roberts, Jr. will not be another middle-aged white guy on the Supreme Court. Yeah, Roberts is a middle-aged white guy; but, in fact, the Court doesn’t have any others. Roberts will be joining a Court with one (middle-aged) black guy, a white woman (in her 70s), and six more white guys each of ‘em old enough to collect full benefits from Social Security. So you can see this nomination as real progress in the direction of diversity on the Supreme Court.
What more to say? He’s apparently a very good lawyer. He’s a pillar of the Federalist Society and the Washington conservative establishment, described by a friend as “as conservative as you can get.” But he’s spent the key years of his professional career either in the (Reagan) Solicitor General’s office, where the positions in the briefs he submitted didn’t necessarily reflect his personal opinions, or as a litigator at Hogan and Hartson, where the positions in the briefs he submitted … didn’t necessarily reflect his personal opinions. So he’s got no paper trail.
He’ll be confirmed, but there’ll be fireworks first. How Appealing reminds us that during Roberts’s last Senate Judiciary hearing, Orrin Hatch took the position that fellow Judiciary Committee member Charles Schumer was asking Roberts “dumbass questions” (and Roberts, for what it’s worth, didn’t answer them). Expect more of the same.
CORRECTION: I made an error, above, in describing Roberts’s bio. While he spent four years in the White House Counsel’s Office under Reagan, his stint as Principal Deputy Solicitor General was under Bush I.
I wrote here that I thought it would be in the Democrats’ interest for President Bush to name a new Chief Justice this summer. But for all that, I was tremendously pleased to read Rehnquist’s statement that he wishes to “put to rest the speculation and unfounded rumors” of his imminent retirement, and that he will perform his duties on the Court “as long as [his] health permits.”
Cool. Why? Mostly because I’ve a lot of experience (rather too much) with my loved ones struggling with cancer, and one thing I know is that you have to fight. On a personal level, I’m rooting for him, and I’m buoyed up by his choice that he’s not going to give in easily. You need to struggle and be stubborn and ornery and strong and brave, and that’s what he’s been doing — with matter-of-factness and good humor, no less — and good for him.
A story I like to tell: My dad, Norman Weinberg, served with Rehnquist in 1943 in an Army Air Force Technical Training Detachment at Denison University in Ohio. (That, and subsequent postings, kept the two privates safely out of combat.) I’ve got a class book from that year, which describes “Hubbs Rehnquist, that great liberal and crusader for the Wisconsin dairy farmer,” as “[l]azily stretched out on his bed with his patented eye-ear-nose sleeping bag over his head.” (I have no idea whether the first part of this description was ironic or straightforward.)
More than forty years after all that, I met then-Justice Rehnquist for the first time. I introduced myself as Jon Weinberg, and mentioned to him that he had served with my father at Denison. His reaction: “Not Norman Weinberg?”
I’ve had a fondness for him ever since.
We’re in Day Five of the Rehnquist resignation watch, ever since rumors of a Rehnquist resignation started to swirl Friday, while Chief Justice Rehnquist kept on refusing to validate them by actually resigning. As Josh Marshall has suggested, it’s in the Democrats’ interest for Rehnquist to resign now. If Bush gets one nomination now, he’ll likely pick a hard-liner (because that’s who he’ll want). The Democrats will filibuster, the Republicans will invoke the nuclear option, and Bush will get his appointment. If Bush gets one nomination now and one a year from now, same story (twice). If Bush has to fill two seats now, it’s less clear that he’ll be able to get away with appointing two hard-liners — he’ll face some peel-away in his own party.
Indeed, Jack Balkin makes the good point that the Republican Party shouldn’t want too many Justices who’ll vote to overturn Roe v. Wade. For Justice Mike McConnell, say, to be sitting in O’Connor’s seat, next to Justice Emelio Garza in Rehnquist’s and Justice Janice Rogers Brown in that of a suddenly incapacitated John Paul Stevens, would be a Really Bad Thing for the G.O.P. It would mean, among other things, a ruling next Term that Roe had been wrongly decided, likely followed by swift passage through the House of Representatives of the Abortion Ban Act of 2006 — barring the performance of abortions, nationwide, by any medical practitioner wearing an article of clothing that had moved in interstate commerce, or breathing molecules of air that had at some point moved across state lines. It’s hard to think of anything better calculated to convince your typical independent voter that the Republican Party aren’t her kind of people after all. Much better, from the party’s standpoint, to appoint somebody who will pay lip service to Roe, while letting it die the death of a thousand cuts.
Stay tuned …