Alas, this blog is no longer active. Of course, please feel free to browse through the extensive archives.
If you're curious about the identity of Article III Groupie, the foundress of this fine website, please read this New Yorker piece, this New York Times article, or this Wikipedia entry. You're also welcome to visit A3G over at her new home.
Stevens spent a good 20 minutes this morning reading a summary of his scathing dissent in the campaign finance case. And he showed his age.
The language in his written dissent was forceful. But it was striking to see him appear to stumble over words as he read it, to mispronounce words like “corruption” and “allegation,” to seem to lose his place in his summary, to often hit the microphone with his hand or his papers.
Maybe it was just a bad day, and Lord knows we’ve all had those. And certainly it was the longest summary from the bench in some time. But it was so different from the John Paul Stevens we’ve come to know. He’s the maverick justice who asks pointed questions from the bench and cleverly makes his points, sometimes with sly dry humor.
Today, he was different, and almost felt like relief when he finally got through his summary.
Was it, in fact, just a bad day for JPS? Did the thought of unlimited corporate spending on federal and state elections simply leave him feshemmeled? Did the thought of Sheryl Crow performing with Kid Rock on the Hope for Haiti telethon render him verklempt?
Send your news, tips, and miscellaneous thoughts to Clerquette@gmail.com , or find me on Facebook!
For each case the Supreme Court grants cert, predict:
-The Outcome of the Case (Affirm or Reverse the lower Court)
-The Split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented)
- The Justices in the Majority, and the Justices in the Dissent
At the end of the Term, the Associate Justice who predicts the most cases correctly will be confirmed as the Chief Justice of the Fantasy Supreme Court League, and win a to-be-determined prize.
By Article III Groupie
August 17, 2009 at 03:36 PM in Public Figures, Private Lives: Life Beyond the Courthouse | Permalink | Comments (1)
By Article III Groupie
Some sad news, this weekend from the New York Times:
Read about Judge Takasugi's remarkable journey, from an internment camp for Japanese Americans to the federal bench, by clicking on the link below.
R. M. Takasugi, Pioneering Asian Judge, Dies at 78 [New York Times]
By Article III Groupie
It's official. Earlier today, everyone's favorite Wise Latina was sworn in as the nation's 111th Supreme Court justice.
Justice Sotomayor will be the first Hispanic and the third woman to serve on the SCOTUS. Justice Ginsburg once again has company for her trips to the ladies' room at One First Street. Justice Scalia now has competition for being the most aggressive questioner on the high court bench. Does anyone know what Justice Sotomayor has done -- or is planning to do -- on the law clerk front?
If you know, please email A3G (subject line: "Sotomayor clerks"). ¡Gracias!
Sotomayor Sworn In as Supreme Court Justice [New York Times]
By Article III Groupie
What should a female Solicitor General wear to the U.S. Supreme Court? It's a hot-button issue. For some excellent analysis, see Dahlia Lithwick.
The topic of SCOTUS-appropriate attire for a Solicitrix General keeps coming up. It popped up yesterday in Solicitor General Elena Kagan's interview with Chief Judge Alex Kozinski, at the Ninth Circuit Judicial Conference in Monterey. From an attendee:
[T]he solicitor general was just asked what she will wear at the Court, and she declined to say. But Judge Kozinski followed up to ask -- expressly on your behalf -- whether she would be wearing Jimmy Choos. She said "no," because the heels are too high to stand in while she argues.
Thought you'd want to know this breaking fashion news!
Indeed. With respect to SG Kagan's weakness for comfortable footwear, A3G is disappointed but not devastated. Elena Kagan in Jimmy Choo? That would have been faboo. But Ted Olson or Paul Clement in Manolos? Now that would have been a sight to behold. [FN1]
You can read more -- about this specific exchange, as well as the Kozinski-Kagan conversation more generally -- over at dagblog.
[FN1] For those of you who view references to Jimmy Choos or Manolo Blahniks as clichéd, A3G's friends at Fashionista recommend Nicholas Kirkwood. Check out the dizzyingly high heels, plus the distinctive platform jutting out in front. Aren't they to die for?
You can email the above-signed blogress at Clerquette@gmail.com, or find her on Facebook and Twitter!
You can email Clerquette at email@example.com, or find her on Facebook and Twitter!
You can email Clerquette at Clerquette@gmail.com, or find her Facebook or Twitter!
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
Whereupon a brief recess is called.
11:28: Sen. Hatch, who is viewed as a possible Committee vote in SS's favor, begins with a crowd-pleaser: the Second Amendment. Hatch asks SS whether she believes that the right to bear arms is not a fundamental one; SS responds irritably, insisting that it is an open issue upon which it would be inappropriate to opine. She is clearly referring to cases pending before several circuit courts of appeal. "So," Hatch says, "you admit that it's an open issue?" SS looks puzzled, as, Clerquette suspects, do many lawyers within earshot. They banter about incorporation, and whether the Second Amendment applies to the States. Hatch tries to corner SS into agreeing that rational basis is a "permissive standard;" unwilling to commit to Hatch's [somewhat opaque] point, SS appears flustered. Each time Hatch says "permissive standard," SS seems more rattled.
Hatch changes gears. Time for Ricci! Why the per curiam opinion? he asks. Why didn't Judge Cabranes know about the opinion until he read about it in the newspaper? If it was a case of first of impression, what precedent did the panel follow, and why didn't they explain it more thoroughly? Hatch jumps from point to point. SS follows, visibly cranky and slightly confused.
12:00: For reasons that remain unclear, Miguel Estrada, the red herring of yesterday's hearing, has come up again. Sen Feinstein wonders how Miguel Estrada became part of the confirmation pricess.
12:06: Sen. Feinstein asks for a brief tour of judicial precedent. Clerquette feels suddenly nostalgic for law school.
(After a break, we rejoin the hearings already in progress)
3:15: It appears that one can miss several hours of hearing juiciness and be no worse for the wear. We rejoin the hearings in progress, and find John Kyl giving SS the business about the WLW issue. Ah, the more things change ...
Kyl asks whether extrajudicial speeches about women and minorities on the bench reveal SS's belief that women and minorities (i.e., wise Latina women) are better decision-makers. SS sounds as though she is getting tired of talking elliptically about life experiences. She tells Kyl that, in "decision after decision after decision [etc.]" she has made it clear that her decisions are not based on biases. Despite a[nother] long, tactful disquisition about the richness of life experience, Kyl is not completely satisfied. He wants to know whether SS believes that race, gender, and ethnicity make her judicial decisions better than those of an old white dude, and focuses on a speech in which SS said that, if enough women and minorities occupied the bench, the law would begin to change.
Gotcha? Nope: still not. After a painstaking explanation of the differences between men and women, SS falls back on the ol' "I guess my rhetorical flourish failed." Could this incident be know, from this day forward, as RhetoricGate?
Whereupon the hearing is adjourned for a ten minute break.
3:54: Sen. Schumer takes the floor. Questioners have been focused on SS's alleged sympathies and biases, he says, but the Chuckinator wants to talk brass tacks. Specifically, he would like to discuss her long, illustrious record. He intends to prove that she will not "put her experience and empathies" before the rule of law.
As a preliminary matter, Sen. Schumer asks, can SS promise to be fair and balanced? SS says she will. Do you swear, he presses on, not to let your empathies displace the rule of law? She will. He moves on to specific cases. First: In re Air Crash off Long Island. Did SS have sympathy for the plaintiffs in the case, who were the survivors of those killed in the crash? If you cut her, does she not bleed?
SS confirms that, yes: like the world at large, her heartstrings were plucked. Nonetheless, she did not feel that the plaintiffs had a remedy under the law. Ah ... Clerquette sees where this is going, Chuckinator. Schumer is making the case that SS is non-empathetic (even when the parties in question are the survivors of people killed in a plane crash) and, a fortiori, impartial.
Next: Washington v. Rockland County, a case in which the plaintiffs were law enforcement officers. SS, like any good American, loves heroes like law enforcement officers, right? Yet she ruled against the officers. Once again, folks, this shows that SS is no creampuff. She can be a coldhearted WLW if need be.
We move on to Boykin v. KeyCorp, in which an African American woman was denied a home equity loan. Did SS sympathize with the dissed putative homeowner? Well, of course she did, but the woman's claim was untimely. Too bad! Empathy is no match for the formidable enemy known as "the statute of limitations."
Schumer moves on to Pappas v. Giuliani, in which the plaintiff was "repugnant," rather than cute and fuzzy. Pappas was dismissed from the police department for distributing "patently offensive," hateful, and racist, materials at work. Nonetheless, SS was able to put aside her feelings (which were non-empathetic, in this case) and stand up for the nasty little bugger's right to engage in hate speech. So unpalatable ... but so impartial, SS. (That, dear readers, is judicial hotness.)
And how about a group of asylum cases? Schumer asks. Well done, Chuckinator: Asylum cases are a perfect exemplar, a crucible for "greater subjectivity." They feature sympathetic plaintiffs, murky law ... in other words, all of the ingredients for a delightful dish of judicial activism.
But none of these factors chipped away at SS's magic shell of impartiality. No matter what her nougaty, wise, empathetic heart told her to do, she doled out justice with cold, hard efficiency. Schumer asks SS to explain her approach to these cases, blinking to communicate, in code, that this might be the opportune moment to champion Honduran immigrants. Mercifully, SS glides through an explanation of the byzantine immigration/asylum appeals process. At one point, she threatens to stray into substance, but the Chuckinator steps in. In short, he says, do these cases show that, in SS's courtroom, the rule of law is king? Yes, SS says humbly. Sounding nunlike, she mentions her "fidelity" to the law. She won't leave home without it.
Next, Schumer asks about the role of foreign law, the doctrinal borrowing of which is downright un-American. SS answers that she would never rule according to foreign law, which is non-binding. And, Sen. Schumer says, you would never base a decision on an icky non-binding source, would you? (Of course she wouldn't!) To hammer home his point, he mentions that Nino once used no fewer than five dictionaries as sources for different definitions of the word "modify." His point: the dictionary isn't binding, but Nino - the ultimate textual adherent - used it anyway. Like the dictionary, SS explains, foreign laws are just "tools." Tools, that is, for making wholesome, all-American decisions.
4:22: Senator Graham takes the floor. He tells SS that she has come across, in the hearings, sounding awfully like a strict constructionist. But in her extrajudicial speeches, he posits, she sounds tres activist. He wants the real Sonia Sotomayor to stand up. His pronunciation of her name, "Sodomyor" conjures the image of an American tourist in Paris, asking directions to the Loovrah.
Her speeches, Graham says, have been problematic. FYI, he tells her: don't become a speechwriter if "this law thing doesn't work out." FYI, Sen. Graham: don't become a condescending jerk if your candidate doesn't win the election. Whoops! Too late.
Graham wants to talk about legal realism. He asks SS to explain the concept, but then interrupts her to note that it's "kinda touchy-feely." SS tells him that she would not consider herself to be a disciple of legal realism. Well, then, Graham says: are you a strict constructionist? SS does not want to be labeled. Clerquette notes that the first judicial philosophy was too soft; the next was too hard. Will the third one be juuuuust right? Alas, Graham asks next whether SS is "an originalist." Maybe not.
On we go, to whether the Constitution is a living thing. Well, SS says carefully, it is immutable, to the extent that it has lasted for 200 years. It "does not live" she says, other than to be timeless. Clerquette smells a soundbyte! SS concludes that the Constitution has not changed ... but society has.
Graham asks SS what the best way for society to change might be. Clerquette thinks that perhaps the Senator should discuss this broad, sprawling topic later, over a joint illuminated by a lava lamp. Mercifully, he veers quickly into whether the Constitution mentions abortion. SS tries to answer the question, but walks into a trap. Abortion is not mentioned specifically, she says, but the Constitution makes broad provision under the due process ...
"Aha!" Graham says (or maybe not, but he definitely wanted to): that brings us to SS's speeches, which indicate a downright mavericky desire to use these "broad provisions" to make new law, rather than leaving that task to the big boys, or at least the elected ones.
Apropos nothing, Graham announces, "I like you." Then he offers the choice fruits from SS's review in the Almanac of the Federal Judiciary, including the pronouncements that she is "a terror on the bench," that she is "temperamental, excitable, and seems angry," "overly aggressive," "not very judicial," "out of control," "nasty to lawyers," and "can be a bit of a bully" (to name a few). He asks her why she is such a big, mean bully.
Sounding almost girlish, SS says that she asks some "tough questions." The Second Circuit is a "hot bench," she explains, and litigants are only given ten minutes for oral argument. Many attorneys find this "difficult and challenging."
"If I may," Graham responds, "they find you difficult and challenging." Oh, snap! Clerquette waits with bated breath for SS to open up a can of judicial bully on Graham's ass. Instead, she answers irritably, but calmly.
He moves on to the WLW situation, though not before a quick detour through Iraq, Afghanistan, and terrorism. (Relevance: unknown.) If you wanted to change Iraq or Afghanistan, he says, women might be helpful. But here in America, the thought that women and minorities might change the rule of law as we know it is downright disturbing. Again, Graham asserts that, if he tried to inspire someone by claiming that he would make a better Senator because he is a Caucasian male, he would have been in deep doo-doo. Putting aside the fact that, as a white man and a Latina woman, Graham and SS may not be similarly situated (sorry, Senator: analogy fail) Graham actually sounds a little ... jealous.
Moving on to September 11, 2001, Graham asks SS what Islamic fundamentalists think about women. (Nothing good). Are we at war? he asks. (Yes, we are.) Does SS know anything about military law? (Not really.) Are people out there right now, "plotting our destruction"? (Yes, probably.) Where is this going? Well, dear readers: straight to the detention of enemy combatants. Graham takes a rain check on further questioning.
Now, on to the Puerto Rican Legal Defense Fund, and its position on taxpayer funded abortions. SS says that she never read the briefs, in which, according to Graham, the organization argued that the denial of public funding for abortions was akin to slavery. Using the Fund as a proxy, Graham probes SS for her views on abortion (as a public health issue) and the death penalty. They flirt with the issues, and agree (in a manner of speaking) to revisit them at a later date. SS looks unenthused.
4:54: Senator Durbin, the Majority Whip, takes over. SS is visibly relieved, and takes a moment to laugh heartily at a Senate-caliber joke. Durbin cuts to the chase: WLW-Gate. It's not so bad, Durbin says, if you think about all the boneheaded decisions that [ostensibly] wise white men have made. See? Problem solved.
Durbin takes SS for a mild spin through the death penalty. SS restates the law, which she is, of course, committed to following. Durbin asks her to opine on the disproportionate impact of the death penalty on racial minorities. SS discusses a case in which the defendant claimed that the prosecutor's decision to pursue the death penalty was racially motivated, which she explored in a hearing. Of course, she made a narrow determination based on the facts and law before her. Duh.
Durbin moves along to the crack/powder cocaine sentencing disparity. Although he voted for it, he now regrets it. How does SS feel, he asks, about the issues of "race and justice" presented by the Sentencing Guidelines? SS concedes that, though it must be "unsatisfying" when a nominee does not "engage directly" with the issues at hand, Durbin probably can't get no satisfaction. In the case at issue, she followed the law (which did not then contemplate the safety valve exception). What's a girl to do? One can only. Follow. The. Law.
Of course, the Guidelines are no longer mandatory. Clerquette wonders: are we really going to get into this?? A thorough discussion of the Guidelines could take this hearing into extra innings. Fortunately, SS declines to discuss the issue, begging off because it remains in play. Bless your heart, SS. Durbin finishes with a quick foray into immigration, and whether the process needs to be streamlined. Simple answer, dear readers: yes. Can SS go home and put her lame foot up now?
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
Sen. Klobuchar focuses on the accomplishments of women (i.e., Supreme predecessors O'Connor and Ginsburg) and, in this blogress's opinion, strikes the right note -- less "wise Latina woman" and more "I am woman, hear me roar, express my understanding of frontline law enforcement, and opine on the Fourth Amendment, the Confrontation Clause, and Sentencing law and policy. You go, girl!
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
Stay tuned, Groupies! Yours truly will be liveblogging the confirmation hearings for your reading pleasure. In addition to the fabulous coverage of the Supreme Court confirmation hearing provided by our friends over at Above the Law, we will bring you the most delightful live-bloggage we can muster, starting around 10:30.
You can email Clerquette at Clerquette@gmail.com, or find her on Facebook and Twitter!
Judge Williams, 53, "runs circles around your nominated crew!" (Her nominator blames her exclusion on anti-conservative, anti-Fourth Circuit bias.) Judge Williams was described in the New York Times Magazine as "a tall, slender woman with delicate features and a regal carriage" (in this piece, a thinly veiled attack upon the Fourth Circuit). A "lovely Southern belle," Judge Williams is known around Orangeburg, South Carolina, as "Miss Karen" (despite being married; as her nominator explains, "the first thing one must learn about Orangeburg is that every woman is referred to as Miss"). The well-heeled Miss Karen has a private plane, in case she ever needs to get to Richmond in a hurry, and "a personal shopper, to keep her looking elegant." Judge Williams, a 1992 appointee of President George H.W. Bush, is perhaps most well-known as the author of the Fourth Circuit's opinion, later reversed by the Supreme Court in Dickerson v. United States, holding that Miranda v. Arizona had been overruled by statute.
[She] has been diagnosed with early-onset Alzheimer's and while she is presently able to perform her judicial duties, because of the nature of the disease she has elected to retire so any future decisions would not be called into question," said a statement from her Orangeburg office released late this afternoon.
For those of us who often find ourselves, necks craned, straining for a peek underneath the robes of Article III's judicial superstars, the words "financial disclosure" have a special cachet. In the parlance of Chris Matthews, glimpsing the judiciary's financial bloomers has the power to send a thrill up our collective legs.
And, of course, a glimpse into the financial medicine cabinets of First Street's occupants induces a special contact high. While the Supremes' financial details may come as no surprise to some, they are fascinating nonetheless; after all, given that the nine Justices occupy such a hallowed niche in our judiciary (not to mention our starstruck little hearts!), the details of their personal lives are usually even more shadowy than those of the typical, discreet A3 Judge. Hence, there is something deliciously "Us Weekly" about learning that Justices are just like us! They lose money in the down market! They have whopping dental bills! They have scary credit card bills! When the slots call, they answer!
There are six millionaires on the High Court, as was the case in past years. Also unchanged since the last disclosure -- but no less shocking to this blogress -- are the two most loaded members of the Court: Justices Ginsburg and Souter. Who would think that these quiet, unassuming (and in Souter's case), and famously frugal jurists were, in fact, sitting on large bags of money? More to the point, does Souter plan to devote his imminent retirement from the Court to spending some of his estimated $6 - 27.6 million dollar net worth? Does he plan to spend any of it?
Justice-elect Sonia Sotomayor would, if confirmed, be well advised to 'shift the burden' of lavish entertaining; as the Times reported last week, her net worth is a paltry $740,000. But, while she should be saving her money for credit card bills and a mouthful of debt for dental work (no word on what, exactly, SS had renovated), the Times also reports that our newest Supreme may believe in living rich and dying poor. SS is, apparently, "an interior decorating buff who loves to shop," and a "frequent patron of Manhattan restaurants, sometimes picking up the tab for dinner with clerks." Clerquette also delighted in the news that SS is a legendary party-thrower and buyer of Christmas gifts ... which she may subsidize with her gambling winnings. If this Diva's presence in the courtroom is anything like her last trip to a casino, dear readers, we can all look forward to a smokin' hot bench!
Not surprisingly, Justice Thomas is among the "least well off" of his colleagues. Poor Justice Thomas; he can't seem to catch a break! At least the perpetually acerbic Justice has raked in a cool $1.5 million from the sales of his book, "My Grandfather's Son." That should keep the Justice and his wife, avid RV-ers, in petrol and gas-station treats for quite some time. Jerky, anyone?
Hola, Groupies! All work and no Article III gossip makes Clerquette a cranky blogress ... especially when our newest nominette -- New York's own native daughter! -- has been gracing the headlines all week. Sonia visits Harry Reid! Sonia coos over Senator Leahy's presh grandchildren! Sonia ventures into the lion's den a meeting with Senator Sessions! Sonia is labeled a racist!
Yes, dear readers: the foreplay that precedes confirmation hearings may be political, judicial, and dignified by the imprimatur of Article III ... but it is still foreplay. In other words, it can simultaneously be too titillating to turn away from and too cringe-inducing to watch.
Let's direct our attention to SS's meeting with Senator Harry Reid (D-Nev). Reid cheerfully announced to the press that SS had been an "underdog," but was also "the top dog." This blogress can't help but wonder whether the Senator could have come up with a slightly more distinguished way to refer to a Supreme-to-be. Might the Senator be attempting to ensure the support of infuential dogs everywhere?
Similarly cringe-inducing: SS's staged ogle-fest of Senator Patrick Leahy's five granchildren, her designated rabbi on the Judiciary Committee. Cameras captured Sonia remarking on the overhwhelming cuteness of one young Leahy in particular. Hm ... are her remarks evidence of bias against the others? Did SS apply a multi-pronged test when determining the supreme cuteness of the grandchild in question? And, most importantly, is she -- as a wise Latina woman -- better equipped that the old, white Leahy to pick the Next Top Grandchild??
And, of course, there is the questionnaire. With 173 pages (plus new supplements!) to dig through, this blogress has a good idea of what her weekend will involve. Will anything juicer than the news of SS's combined $30k in dental and credit card bills emerge?? Your friend Clerquette recently perused a letter to the editor of the Princetonian, written by an earnest young SS and released along with her judicial questionnaire, that contained the following sentence:
The feelings we are trying to convey was best stated by Frank Reed ’76 when he said: “We only wish the opportunity as a people, to learn and be learned from.” This is our complaint, and what it signifies.
Proofreading fail, Girl Judge! Clerquette can only hope that SS doesn't have too many more grammatical skeletons in her closet. While a team of handlers worries about taxes, off-color remarks, financial shenanigans, and sex scandals, this blogress -- speaking for former and current A3 clerks and groupies -- would like to say, simply: Godspeed to you, SS. May the Elements of Style be with you.
Many in our midst have spent the past few days (if not weeks) digging for SOMETHING on SCOTUS nominee Sonia Sotomayor -- whether dirt, info, gossip, or substantive tidbits -- to fuel the hearty appetites of all who plan to participate in the looming confirmation battle. But, as this blogress observed in the immediate aftermath of SS's official debut, POTUS and his team may have selected a virtually bulletproof candidate ... which would mean some very sore paws for the most avid diggers, but probably no buried bone.
Not to worry, groupies! No smoking gun doesn't have to mean "Caution: months of boredom ahead." An article in yesterday's NYT described the fascinating path traveled by Team POTUS on their search for a golden nominee. If you thought that we were living in an era of transparent virtue and relentless sunshine: think again. Apparently, the nominee selection process required stealth, intrigue, and (gasp!) even minor subterfuge. Hours of POTUS's time were blocked out under the designation "Chief of Staff Strategy" in order to disguise the true nature of the handwringing underway; meetings took place around adviser Cynthia Hogan's kitchen table ("more coffee, POTUS?"), and a crucial moment in the decision-making process appears to be closely linked to POTUS's ingestion of a salad.
And take heart, gossip seekers: there are a few rumblings afoot which promise to add color to the debate ahead. Sure, some are relatively understated, like the news that SS is rockin' diabetes, and failed to vote in two recent New York State elections. But this blogress is most intrigued by reports about SS's famously "sharp tongue."
As we all know, Professor Jeffrey Rosen was lambasted when, pre-nomination, he quoted anonymous sources who called SS a "bully," among other things. Now, in the cold light of day, critics and supporters alike have gone on-record to express their concerns about Sotomayor's "judicial temperament." Specifically, some have wondered whether she has expressed an appropriately Supreme level of "judicial modesty," while others have predicted that the sassy Sotomayor would sizzle too loudly on the bench.
One oft-cited example of SS's feistiness: her rigorous questioning of counsel at oral argument in a case concerning a detainee's allegations of torture against POTUS's predecessors. Indeed, the transcripts show, SS came so close to benchslapping the government attorney that Chief Judge Dennis Jacobs had to delicately rescue said attorney from the heat of her grilling. Others defend Judge Sotomayor, noting that her questioning is a mere outgrowth of her "formidable" intelligence and tendency to uber-prepare. Still others -- such as attorneys Sheema Chaudhry and Gerald Lefcourt -- describe SS as "judgmental" (perhaps an odd word choice, given that we are talking about a judge), "temperamental," and "more strident and vocal" that her colleagues. Others have called SS a "terror on the bench" who "behaves in an out-of-control manner."
Meow! Clerquette is delighted by the questions presented by a bench occupied by both Nino AND a sharp-tongued, no-nonsense girl from the hood. Could we be in for the hottest bench One First Street has seen? Some internecine warfare? A battle for primacy, the likes of which have not been seen since Barbara Walters and Rosie O'Donnell sparred for the soul of The View?
If any of these scenarios -- or another, as yet unimagined -- comes to pass, it will, at the very least, be fodder for Sotomayor: the Movie. Not in your Netflix queue, you say? Well, dear readers, it's still in development. But you can check out these brilliant casting proposals, courtesy of the folks over at the Daily Beast. In the meantime, the DivaWatch continues.
And remember: A3G and I await your questions for SS. Send them, and she will come.
E-mail me at Clerquette@gmail.com ...
Or find me on Facebook or Twitter!
By Article III Groupie
A3G wishes she had thought of this herself. Genius!
Not surprisingly, most of the actors are considerably younger and/or more attractive than the real-life individuals they'd portray. But make-up can work wonders - as your above-signed blogress can attest....
Sotomayor: The Movie [The Daily Beast]
By David Lat, over on Twitter.
While it seems Diane Wood is the current front runner, I would like BHO to consider a dark horse candidate that could bring some much-needed fabulousity to the Supremes - Amazing Race grand prize winner Tammy Jih! Tammy is everything that President Hunky is looking for in a justice: young (she's only 28), female, a minority, and a full time litigatrix (NOT a crusty appellate judge). Think about it: she's young enough to not have left much of a paper trail regarding her judicial philosophy, she has trial experience, and America has gotten to know her diverse skill set after watching her every week on season 14 of the Amazing Race. While she may not have to face a deadly cheese wheel or carry a pig on the bench, surely her problem solving approach and drive would serve her well when matching wits with the likes of Nino and the gang. The challenges she faced on the show will be a breeze compared to the Senate confirmation process. As an added bonus, her sartorial sense would be another force in Mrs. Obama's arsenal against the DC fashion doldrums. VIVA LA TAMMY (you know you love her)!
By Article III Groupie
-- Michigan Governor Jennifer Granholm;
-- Solicitor General Elena Kagan;
-- Justice Carlos Moreno (California Supreme Court);
-- Homeland Security Secretary Janet Napolitano;
-- Judge Sonia Sotomayor (2d Cir.); and
-- Judge Diane Wood (7th Cir.).
Of the six, is Judge Diane Wood of the Seventh Circuit emerging as the frontrunner? One observer seems to think so.
Feel free to share your information and opinions about these candidates with A3G, via email. Thanks!
This afternoon, Ashby Jones of the WSJ Law Blog blogged a Washington Post story about, inter alia, the "gentle" lobbying by Hispanic groups for the appointment of the nation's first Hispanic member of the Supreme Court. (Whew! Pardon the multiple layers of hearsay.) One of Jones's readers wrote in to say, in essence, "been there, done that." According to the reader, the beloved Justice Benjamin Cardozo - father of privity and proximate cause, champion of The Flopper - was of Portuguese descent. Thus, if confirmed, Judge Sonia Sotomayor would be the first female Hispanic justice.
Putting aside the fact that the Portuguese are not necessarily "Hispanic," there is the small issue of whether Cardozo was actually Portuguese. But Clerquette leaves that debate to the experts ... like Professor Andrew Kaufman, who Jones consulted regarding the mystery of Cardozo's heritage. You can read his comprehensive reply here.
This blogress is interested in a much more pressing issue raised by IMO Cardozo: to wit, the Justice's startling resemblance to Late Night host and lovable cut-up Conan O'Brien. Clerquette directs your attention to the photo array below.
Seriously, dear readers: can you deny the likeness? Although Justice Cardozo is believed to have been celibate, homosexual, suffering from an unusually low sex drive, or overly fond of his sister Nellie (or perhaps a combination of those factors), Clerquette can't help but wonder whether he had a dalliance somewhere along the line, thereby ensuring the survival of his gene pool. How the Justice's likeness resurfaced in an Irish comedian from Massachusetts is yet another mystery, which, in this blogress's humble opinion, may turn on a question of causation.
Clerquette's pal Kash, over at ATL, has either been doing some online betting (not that there's anything wrong with that) or watching Fox News. Or both. Either way, she tipped this blogress off to an actual bookmaking site that is busy tabulating the odds on various contenders for the title of "Obama's 1st Nominee for Associate Justice."
Wondering whether to put your money on Judge Sotomayor or Cass Sunstein? General Kagan or Janet Napolitano? Kathleen Sullivan or Dean Koh? Or perhaps you just returned from a trip to the moon on the Russian space shuttle, and haven't had a chance to catch up up on the news, in which case you might be wondering whether you should wager on feeder Judge Merrick Garland ... or Michelle Obama. Well, dear reader, head on over to www.paddypower.com, which provides the odds on the afore-mentioned potential nominees and nominettes, as well as popular (and not so popular) 'candidates' Wardlaw, Sears, Castillo, Patrick, and Hillary Clinton. Inexplicably, Jennifer Granholm does not appear in the virtual starting gate, though paddypower indicates that the odds for other candidates are available "on request."
At the moment, paddypower has Judge Sotomayor in pole position. Interesting. Clerquette loves the presumable mathematical precision behind paddypower's odds, especially since the ability to achieve "mathematical precision" is not within her tastefully decorated wheelhouse, so to speak. Nonetheless, this blogress can't help wondering what goes into these calculations. After all, dear readers, how does one determine a value for "empathy," which is at the top of POTUS's list of "turn ons"? No: really ... how does one quantify the E-factor?
Odds aside, this article by Neil Lewis makes a compelling case for Judge Diane Wood, of the Seventh Circuit. According to the article, Judge Wood was nominated to the bench (by President Clinton, in 1993) due in no small part to the ringing endorsement of Senator Paul Simon, who described her as "a reliable progressive who would be cerebral enough to go up against the court's two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook." In other words, Judge Wood, who is, incidentally, a member of The Elect (OT '76) offers a "counterpoint" to the jurists seated to her ideological right, and (according to former Chicago Dean Geoffrey Stone) "would not be intimidated by any of the Supreme Court's conservative voices," like, oh, for instance, Nino's. Said Stone, "Diane is a serious and accomplished scholar who has demonstrated the ability to go toe to toe with Dick and Frank,” who “can be intimidating figures.” See Diane engage in spirited intellectual debate. See Dick shrink.
So, to summarize: Judge Wood has the ability -- which may elude definition, but is essential nonetheless -- to take on a spitfire like Justice Scalia. As several example in Lewis's article illustrate, she also seems to have the E-factor, and on at least one occasion showed actual sympathy toward a litigant caught in the whirling storm drain of an immigration proceeding. Those are two qualities that, in this blogress's humble opinion, may push Judge Woods closer to the top of the Leaderboard. But the icing on the cake - the hat trick, if Clerquette may mix sports metaphors - may be Judge Wood's parenting. Yes: parenting. Specifically, Judge Wood's daughter is quoted as having said that, "on family road trips, the children did not ask 'What state are we in,'" but rather"Which circuit are we in." Two words, dear readers: family values.
Like any good Groupie, the above-signed blogress has spent the last week or so with her ear to the ground (skip the mental image, please) and her eye on the news (and the SCOTUS Leaderboard, of course!). Needless to say, in the absence of hard information, Souter-replacement coverage has taken the form of gossip, speculation, and overly opinionated editorializing -- present company included.
Clerquette can't help but notice the slightly wistful tone that, in recent days, has crept into the voices of some members of the punditocracy. Everyone wants something different in a nominee, but Clerquette can't help but feel, at times, as though she is reading an ad on Craigslist Match.com for an ideal candidate.
Choosing a Supreme Court nominee is hard! As a preliminary matter, Clerquette thinks we can all agree that the nominee must be a nominette, which narrows the field - though not by much. And she has to look good in black, which shouldn't be hard. But some of the desired qualities of this UberJudge are beginning to emerge, giving shape to the collective vision of the judicial fox who will occupy the Souter seat. As reported by Adam Liptak in this article, there appears to be a collective yearning for a nominette who is "bigger and bolder." According to Professor John McGinnis, she should also be "a very good writer." Editor Fred R. Shapiro agrees, noting that the current court is "eloquence challenged."
Of course, she has to be intelligent. But are garden-variety smarts enough to get our nominette to the A-list? Not even close. Even those with divergent opinions about the mystery candidate's other qualities agree: she must be a worthy adversary playmate for Nino, who reigns as the Simon Cowell of The Supremes.
Should she be gay, or at least "gay friendly"? The jury is out. And while no one has said, directly, that she should be attractive, a number of speculators have implied that the portly need not apply. Finally,the emerging consensus is that our Supreme nominette must posses the ill-defined quality of "empathy." (Empathy, scoff conservative critics doing their advance work, is just another word for being partial. Indeed, they insist, a justice should be a cold, hard machine, with "empathy for no one." Meow!)
So, dear readers: here's your assignment. Clerquette wants to see your best effort at a personal ad, describing the perfect match for Nino, the Judicial Diva of our dreams, the Empathetic (or Ice) Princess, who will lead us from the current, wit-free landscape and into the lush forest of eloquence and spitfire ... you get the picture. Bring it, Groupies!
Just as parents claim not to have a favorite child, the above-signed blogress could not possibly choose a pet from amongst the fruitful branches of the Article III judiciary. Clerquette does, however, have a special place in her heart for members of the District Court, who she considers the unsung heroes of the federal bench. In addition to being a colorful and fascinating crowd, District Court judges are Fixers, capable of handling just about anything that comes their way. Need a TRO? Your local DJ can hear your plea, despite the fact that you waited until 4:22 on Friday afternoon to make it. Wondering if anyone will make it through the endlessly-pronged analysis required to test the mettle of your employment discrimination claim? Your District Judge has a special superpower, to wit: the ability to determine whether the evidence, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact. And assuming, arguendo, that you'd like to see your local Ponzi schemer sentenced to a stint in the pen, who ARE you going to call? That's right, dear readers: you'd turn to someone who has slogged through the Booker-Fanfan Swamp and knows just how to navigate the smooth superway known as 'Route 3553.'
Clerquette could go on and on. You get the idea: DJ's are more than just Superhot faces: they are the craftsmen and women of the bench, the Master Carpenters (and we all know the heights to which a carpenter has been known to rise ...). For the foregoing reasons, Clerquette was delighted to read this article by Senior District Judge Ann Aldrich in today's New York Times. Judge Aldrich posits that, if POTUS wants it done right, the ideal nominee to this bench would be (you guessed it) a judge who has served on a federal trial court. As Aldrich explains, the Supremes (past and present) generally lack "the practical experience that is necessary for providing district courts with clear and workable directives." The result, she writes, are decisions which result in the required application of vague or confusing standards, which the district courts struggle to apply (often with inconsistent results).
The appointment of a DJ would infuse the Court with a "touch of practical knowledge and understanding," says Aldrich (who, incidentally, bears an odd resemblance to Alice, of Brady Bunch fame). Hmm. POTUS is known as a "pragmatist," and has expressed a commitment to nominating a replacement for DHS who will understand "how our laws affect the daily realities of people's lives." Will he look deeper in the applicant pool ... past the Woods, the Wardlaws, the Sunsteins, and of course, the Sotomayors and Kagans? That remains to be seen. Clerquette will be watching.
E-mail me at Clerquette@gmail.com
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The real interesting part was that on my way out about an hour after argument, I passed Justice Souter standing near the security gate at the side door (near the cafeteria). He was just standing there, apparently waiting for someone. I get outside, and there, walking up the ramp towards the door, is Patrick Leahy, sans entourage.
[Ed. note: Readers of UTR are the kind of people who don't need to be reminded of this, but Senator Leahy is chairman of the Senate Judiciary Committee - which plays a central role in handling Supreme Court appointments.]
Happy Cinco de Mayo, dear readers! Clerquette hopes that you all have some festive activities planned for later today (or lunchtime, depending on how slow your practice is at the moment) to celebrate both the cooption of this traditional holiday by the likes of Corona and Tostitos, and your escape from the ravages of swine flu. But first, Clerquette would like to direct your attention to two pressing issues.
First and decidedly foremost is the matter of Justice Souter's replacement. As we all know, the most important quality in any replacement is merit. Clerquette also has a fabulous bridge to sell you (water views; easy access to transportation - any takers?). Of course, there are also secondary, but still important considerations, like diversity -- in all its many, splendored forms. Thus, given that Justice Ginsburg is now the single, lonely woman on what is otherwise a Boy's Bench, Clerquette thinks we can all agree on the rebuttable presumption that POTUS's eventual nominee will be a woman.
The question of course, is which judicial fox will occupy the Souter seat. As you know, our/ATL's leaderboard points to General Kagan and Judge Sotomayor as front-runners. But, while some Court-watchers (and POTUS fans) are unabashedly agog at the possibility of the "diversity double" that would be accomplished by Judge Sotomayor's nomination, a few interesting rumblings to the contrary have emerged. Point I: a number of commenters, including Adam Liptak of the New York Times, have pointed out that the notion of promoting "diversity" amongst the Supremes requires both consideration of personal characteristics and credentials and a good, hard look at the presumptive nominees' path to power. Given the homogeneity of the current bench, which consists entirely of former federal judges (who are, admittedly, irresistible!), might POTUS seize this opportunity to mix it up a little? He has, after all, identified Justice Earl Warren as his personal judicial dreamboat, citing Justice Warren's political background and the pragmatism with which it infused his juristic decision-making.
But wait: there's more! In an article so chock-full of Article III gossip that Clerquette read much of it while breathing into a paper bag (narrowly avoiding a dramatic swoon) esteemed law professor Jeffrey Rosen writes that Judge Sotomayor may not be quite ready for prime time. Although she gets high marks for sass and biographical appeal -- not insignificant qualities -- Rosen reports that some have raised doubts about her strength on the merits. For example, he writes, many of his sources have "expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative." Gasp! Juicier yet, Rosen quotes a former Second Circuit clerk who opined that Sotomayor was "'not that smart and kind of a bully on the bench.'" The clerk also noted that Judge Sotomayor had what sound (to this blogress) like patent indicia of divadom: specifically, said the clerk, "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." Colleagues seem to agree. According to Rosen,
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
Clerquette loves a good diva, and admits that a colorful personality might spice up the otherwise staid Supreme armada. Having said as much, Clerquette thinks that apotheosis to the highest bench in the land should be reserved for the super-hottest judicial minds, and is deeply distressed by the thought of a sub-par intellect making the vertical journey.
Based on the above, could General Kagan have an elegant leg up on Judge Sotomayor? Consider this: as Professor Rosen noted in an interview this morning , Kagan brings "a unique combination of intellectual dazzling firepower and also tremendous personal skills," and "did such a good job, at Harvard Law School, of convincing not only liberals but conservatives to converge around common outcomes." In short, Kagan (a) has a non-judicial background (which might appeal to POTUS's penchant for the pragmatic), (b) is a consensus builder (much like her putative predecessor, Justice William Brennan), and (c) is brilliant. Could she be on the verge of overtaking Sotomayor? Among other things, her ascendance to the High Court would solve many thorny wardrobe issues.
Clerquette realizes that you, dear readers, probably have a few billable matters to attend to, and thanks you for patiently reading her long rumination. But before you go, we must address Point II. Clerquette expects an answer to the following question (and yes: that was the sound of the whip cracking, my darlings):
For scoring purposes, is the Sotomayor v. Kagan faceoff match play, or stroke play?
Email me at Clerquette@gmail.com
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Welcome, dear readers, to the First Monday ... of the Post-Souter World. What's that, you say? Do I hear the Groupie contingent gently reminding Clerquette that Justice Souter is, for the time being, still a member of The Supremes?
Clerquette thanks you for your commitment to accuracy, and assures you: she is well aware that Justice Souter remains ensconced in his dimly lit chambers at One First Street. But (Clerquette noticed over the weekend) in addition to the sudden crop of bettors on the Souter replacement (present company proudly included!), a crowd has gathered to essentially eulogize Justice Souter, and to praise or criticize his contribution to the Court.
Of course, Clerquette was pleased to read the many, thoughtful analyses of Justice Souter's jurisprudential legacy, which was not unlike a short, mental journey back to Con Law class. But Clerquette was downright delighted by some of the more personal tidbits about the Justice -- the Souter trivia, rendered, in some cases, by those who know him best. Clerquette is referring, of course, to the Souter branch of The Elect.
Past clerks are, of course, generally respectful of their Supreme benefactors' privacy (does that sound too "Axis of Evil"? Clerquette means "the Justice for whom they clerked") and not inclined to dish dirt. Propriety does not, however, militate against the disclosure of endearing, quirky details about the Supremes, which are like chicken soup for the Article III groupie's soul.
A particularly fine piece, which included both a summary of Justice Souter's professional accomplishments and a delicious helping of Souter trivia, is Kermit Roosevelt's comparison, in Slate, of Justice Souter to Cinncinatus. And another former clerk, Heather Gerken, offered more general praise for a man she calls a "judge's judge," and a "courtly lawyer" in the NYT. Although many Court-watchers have long been aware of the Justice's aversion to technology (and resultant practice of writing opinions in longhand), we have been treated some other delectable pieces of Souter trivia, old and new. See, e.g.,
- The ever-thrifty Justice Souter was, at times, known to read by natural (though sub-optimal) light, rather than wasting electricity;
- Justice Souter brought his lunch, consisting of a yogurt and apple, every day; and
- was known to reheat yesterday's coffee in the microwave. (Aha! One technological innovation that the Justice did partake of!)
Clerquette loves the personal quirks and delicious details of the Article III personality ... and The Supremes in particular! That is a not-so-subtle hint, dear readers, for a bit more fodder to feed this groupie's soul.
In the meantime, Clerquette's eye remains on the SCOTUS Leaderboard ...
By Blair Lawdorf
Greetings, Judicial Gossipmongers. Exciting times are upon us once again: speculation on a new Supreme! I'm here to help Clerquette and A3G whip you readers into a frenzy faster than you can say "Meemaw Miers."
Like my colleagues, prestigious educational institutions have been blessed with my fabulous presence. But my dreams of a long career in Big Law were brutally dashed when I was laid off in the Great Law Firm Massacre of '09. Sadly, I have been forced to toil away as a do-gooder in a nonprofit while I plot my reinvention. What better way to climb back to the top than through the chambers of a Hottie of the Federal Judiciary? So in the meantime I have traded in my Loubous for some Lanvin flats while I entertain you.
The standard UTR policy applies: send me your juicy tips and I promise I will keep your contributions anonymous (unless of course I have your consent): firstname.lastname@example.org.
If, like Clerquette, you spent the day secretly hoping for a decent -- or, for that matter, ANY -- tidbit of information about who might succeed departing Justice David Souter, you are probably a tad frustrated by now. Although Clerquette is well aware that actual beta regarding potential nominees will not emerge for some time, a girl can dream, right?
As law clerks to the Honorable David Souter are well aware, our quirkiest Justice has been famously adamant about the one thing that would guarantee his retirement from the Court. Is it an ideological matter? An intractable dispute with one of his colleagues? A violation of his zero-tolerance policy for underwear chatter?
No, dear readers. It's something more ... fundamental.
Specifically, the Justice has long insisted that when -- or if -- the supply of plastic cutlery in his Chambers was depleted, he would have to retire from the Court. Legend has it that the Souter clerks, in an effort to stave off this eventuality, have been stockpiling plastic flatware for as long as anyone can recall.
Well, friends and fans: it appears that Justice Souter has run out of sporks and knives. And, clearly, he is a man of his word: reports surfaced late tonight that Justice Souter would be leaving the Court. Facts are still in short supply; it is not known, for example, whether somone snoozed on cutlery duty, or if an act of God is to blame for the "fork-up." But NPR's Nina Totenberg (who, Clerquette is informed, broke the story) reports that Justice Souter has advised the White House that he will retire at the end of this term. Amongst the factors that contributed to his decision, writes Totenberg, were his distaste for Washington, D.C., a persistent longing for the country roads of his native New Hampshire, and the election of Barack Obama, who is likely to nominate a true ideological successor to Souter. (Clerquette is unsure whether, as a technical matter, this would mean nominating a successor who turned out to be entirely different than he or she appeared, or actually replacing Souter with a liberal jurist.)
Despite the predictions by (inter alia) Clerquette's co-blogress, as well and our friends at Above the Law, that Souter's ongoing clerkless-ness was a sign that he was down to his last few forks, Clerquette cannot help feeling somewhat shocked - shocked! A Justice leaving for reasons unrelated to advanced age or illness? And, just think, dear readers, of the potential nominees for us to "vet"! The scandals! The battles in the theater of war known as "The Senate"! The Franken- contingent filibuster-proof majority that will, hopefully, guarantee safe passage through the confirmation process for the next illustrious member of The Supremes!
And who might the candidates be? Well, it is too early to offer anything but pure speculation ... which Clerquette is happy to do, in this instance. Here are a few of the names we've heard bandied about:
- Massachusetts Governor (and Obama buddy) Deval "Just Words" Patrick
-CTA9 Judge Kim Wardlaw and CTA2 Judge Sonia Sotomyer - both doubly delightful Hispanic women
-Elena Kagan (who still has that new-Solicitor General smell, but who would probably welcome the opportunity to wear a judicial robe, rather than the ol' morning coat )
-Former Yale Law School Dean (and lovably controversial nominee) Harold Koh, and
-CTA7 Judge Diane Wood.
In addition, Hillary Clinton and Janet Napolitano have been mentioned as possible nominees, although Clerquette suspects that neither of these superstars is ready to trade in her pantsuit for a neck-doily.
Clerquette bids you adieu, and will be back as soon as we have some more information to share, dear readers. My apologies, but Clerquette needs to save her energy for tomorrow's news cycle, which, hopefully, will be all Souter, all the time.
In the meantime, send me YOUR thoughts -- or dish -- on who should succeed Justice Souter. Clerquette can't wait to dig in.
The above-signed blogress admits to daydreaming about what it would be like if, one day, the anxiety-inducing 'ping' or intrusive new-message rumble of her BlackBerry signaled the receipt of something more glamorous than the Daily Decision Alert or conference call dial-in instructions ... like an e-mail from one of the Supremes! Sadly, Clerquette has yet to experience such e-Nirvana. But our fabulous friend at Above the Law, Kashmir Hill, is living the dream.
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.