SIZZLE! Is that the sound of juicy steaks being grilled at a Labor Day barbeque? Actually, no. It's the sound you're making right now, as you open the red-hot pages of Robing Room Report: Federal Judicial Trendspotting!
As you all know by now, Article III Groupie is one stylish lady. She prides herself on keeping up with the most recent developments in the worlds of fashion, popular culture, and yes, the law. Inspired by Entertainment Weekly's Shaw Report and Vanity Fair's In-and-Out list, which identify the latest trends in their respective spheres, A3G now places her manicured fingernail on the federal judicial pulse. The delicious result is Robing Room Report, UTR's assessment of the Article III zeitgeist. What's in, and what's out? Who's hot, and who's not? Pick up Robing Room Report to get the latest scoop!
Before proceeding to the main event, Article III Groupie must offer a caveat or two. Robing Room Report reflects her own deeply personal take on federal judicial trends. In the event that you take issue with Article III Groupie's identification of something or someone as "in" or "out," A3G apologizes. She's sorry you're not as cool and well-informed as she is!
Sorry, that was rather flip, wasn't it? A slightly more serious tone is warranted as A3G provides this important disclaimer. So try this on for size: Because assessing trends is a highly subjective enterprise, it does not lend itself well to the logical and reasoned debates that are the hallmark of the legal profession. If you disagree with the substance of Robing Room Report, please understand that Article III Groupie isn't purporting to offer an "objective" assessment--to the extent that such is even possible, of course--of what's "too cool for school" within the Article III judiciary. It can be hard to believe sometimes, but UTR is just a blog, and these are merely A3G's humble opinions (which no one is forcing you to read, Ms. Kendall).
Readers, feel free to register your disagreements with Robing Room Report in the "comments" section of this post (or, if you are a fellow blogger, in your own blog). But please refrain from sending Article III Groupie letter briefs outlining your objections to a particular Robing Room Report item, in a campaign to get her to change the offending entry. A3G can tell you right now: "Them's the breaks! UTR is her blog, and she'll cry if she wants to." And so, although Article III Groupie always welcomes factual corrections, expressions of subjective disagreement with her admittedly biased assessment of federal judicial coolness will just waste your time and hers.
As you'll see below, A3G has provided brief commentary for some (but not all) of the items in Robing Room Report. The reason for the brevity or even absence of justifications is that, as noted supra, trends emerge for unfathomable reasons; they do not lend themselves well to reasoned explanation. Like s**t, trends just happen.
So here you go, in no particular order: the latest fads and fashions in the federal judiciary, according to Robing Room Report. Enjoy!
Supreme Court Justice
In: Justice Thomas
Five Minutes Ago: Justice Scalia
Out: Justice Ginsburg
As noted in this article by Jonathan Ringel, people are finally beginning to realize that Justice Thomas, far from being a Scalia clone, has a distinctive and compelling judicial philosophy of his own (which, among other things, places minimal to no weight on stare decisis). Furthermore, as Ringel's piece notes, a new biography of Justice Thomas by investigative reporter Ken Foskett suggests that Justice Thomas's account of his relationship with Anita Hill may be closer to the truth than Hill's. CT's stock is definitely on the rise!
Justice Scalia, UTR's "five minutes ago" justice, was in the public spotlight a lot in 2004. First there were his duck hunting misadventures, then there were his surprising blockbuster opinions in Crawford v. Washington and Blakely v. Washington. But overexposure has led to "Nino"-fatigue, which is why Justice Scalia is "five minutes ago." As for Justice Ginsburg, UTR has to ask: "Ruthie, what have you done for us lately?" (As Tony Mauro notes here, Justice Blackmun wasn't a fan of RBG either, giving her a grade of "C+" for one oral argument she presented to the Court on behalf of the ACLU.)
Feeder Judges
In: Judge Richard Posner (7th Cir.); Judge Alex Kozinski (9th Cir.)
Five Minutes Ago: Judge Laurence H. Silberman (D.C. Cir.); Judge Diarmuid F. O'Scannlain (9th Cir.)
Out: Judge Harry T. Edwards (D.C. Cir.); Judge Guido Calabresi (2d Cir.)
Among feeder judges, Judge Posner is "in" because he was recently blogging over at Lessig Blog--and because he reads UTR, as noted in this piece from the ABA Journal eReport. Judge Kozinski, also a loyal reader of UTR, is "in" because he's the top feeder judge for October Term 2004 (as well as the #1 Male Superhottie of the Federal Judiciary).
Judge Silberman was in the news earlier this year when he was appointed to chair a bipartisan commission to investigate intelligence failures concerning Iraq, and again earlier this summer when a fire in the Prettyman Courthouse destroyed his chambers. But he hasn't been in the public eye since then, which explains his designation as a "five minutes ago" feeder judge. Judge O'Scannlain is "five minutes ago" thanks to a spate of high-profile opinions--see here, here, and here--that are recent, but not that recent. (Thanks to How Appealing for the links.)
Judge Edwards must be "out"--to lunch, that is, since it appears he hasn't issued a published opinion in months. Ah, to be a D.C. Circuit mandarin, sitting around the Prettyman Courthouse and watching my long fingernails grow! As for Guido, 'nuff said... (Elizabeth Kendall of The '04 Wall is already very mad at me.)
Circuit Court
In: Ninth Circuit
Five Minutes Ago: Second Circuit
Out: D.C. Circuit
Yes, it's the perennial butt of summary reversal jokes. But thanks to a number of interesting and important opinions that it has issued recently, the hardworking Ninth Circuit is "in." The Second Circuit is quite prestigious, but it hasn't done anything terribly noteworthy as of late, so it's "five minutes ago." The D.C. Circuit--a court of such elevated stature that merely uttering its name has been known to induce vertigo in the speaker--is "out," on its long summer vacation.
Judicial Diva
In: Judge Kim McLane Wardlaw (9th Cir.)
Five Minutes Ago: Judge Sandra L. Lynch (1st Cir.)
Out: Judge Dolores K. Sloviter (3d Cir.)
For those of you who are new to UTR, a "Judicial Diva" might be described as a high-powered, brilliant, but difficult and demanding female judge. For more detailed discussion of the Judicial Diva, please read this UTR classic, "Fili-BUSTED! Magnificient Judicial Divas have been stopped dead in their tracks. Now UTR asks: Who is the biggest diva?"
A3G has a girl-on-girl crush on Judge Wardlaw, the #2 Female Superhottie of the Federal Judiciary. Keep an eye out for a post from A3G that will vigorously defend this brainy and beautiful jurist against her player-hating detractors. In the meantime, read this post from Greedy Clerks, a nice antidote to some of the venomous messages about Judge Wardlaw previously noted here by UTR.
Non-Article III Judge
In: Tax Court Judge
Five Minutes Ago: Immigration Judge
Out: Bankruptcy Judge
As reported here by UTR, tax court judges can be funny. Who knew?
Judicial Nominee
In: Justice Janice Rogers Brown
Five Minutes Ago: Thomas B. Griffith
Out: Brett M. Kavanaugh
Justice Brown, a worthy competitor in UTR's Judicial Diva Showdown, is nothing short of delectable. Click here for a recent Volokh Conspiracy post by Professor David Bernstein, which concludes as follows: "Justice Brown has once again shown why she deserves to be a D.C. Circuit judge."
Griffith was in the spotlight earlier this summer for a tempest in a teapot relating to his D.C. bar dues, but he has since receded from the public eye. As his dazzling resumé makes clear, Kavanaugh, a member of the Elect--he clerked for Judge Walter K. Stapleton (3d Cir.), Judge Kozinski, and Justice Kennedy--is incredibly smart. (And he's supposed to be cute as well--legendary journalist Bob Woodward describes Kavanaugh as "a dark-haired version of the movie actor William Hurt.") But Kavanaugh has been decried by the Senator From New York Who Isn't Hillary as someone who "would probably win first prize as the hard-Right’s political lawyer," "the Zelig of young Republican lawyers." Thus, despite his breathtaking credentials, Kavanaugh's political baggage--including his Whitewater work for Ken Starr and his service in the White House counsel's office--will make Kavanaugh a tough sell in today's political climate. Even if President Bush wins a second term, bitterness among the Democrats may run high enough to doom Kavanaugh's nomination (already the subject of a filibuster).
Case Type
In: Criminal
Five Minutes Ago: Civil
Out: Administrative
Federal criminal cases are hot thanks to Blakely, which A3G discussed--although not in substantive legal terms--in this post. As you can read about over at Professor Berman's Sentencing Law and Policy Blog or the Blakely Blog, everyone is waiting to see what the Supreme Court will do in the cases of Booker and Fanfan, which present the constitutionality of the federal sentencing guidelines. (Who says folks in the SG's office don't have a sense of humor? Rumor has it that Fanfan was chosen to be the subject of the government's cert petition because they found "Fanfan" such a funfun name to say aloud.)
Will administrative cases ever be "in"? Alas, being a D.C. Circuit judge isn't all fun and games. When you aren't sunning yourself on the Prettyman Courthouse's secret rooftop pool deck (pictured at left)--a location so glamorous and exclusive it makes "The Roof" at New York's Soho House look positively plebeian by comparison--you must decide mind-numbingly boring administrative law cases.
Opinion Type
In: En Banc
Five Minutes Ago: Unpublished
Out: Ghostwritten
For the Third Circuit's condemnation of "ghostwritten" opinions--and the misbehaving district judge who copied nearly verbatim the defendants' proposed opinion, then issued it as the court's opinion dismissing the case--click here. For news coverage of this mini-scandal, click here or here.
In this article, Professor John Burkoff, who teaches legal ethics at the University of Pittsburgh School of Law, observed: "Typically, judges try to deal with each other with kid gloves. In this case, for some reason, the gloves came off." Indeed they did. Let the bench-slappery begin!
Judicial Support Staff Member
In: Secretary
Five Minutes Ago: Courtroom Deputy
Out: Law Clerk
Secretaries are literally "in"; they cover the phones during August and early September, when federal judges make like lazy Europeans and take ridiculously long vacations. Law clerks are literally "out," because this is prime law clerk turnover season. (But law clerks will soon be "in" again, with the start of the official law clerk hiring period this month.)
Judicial Robe Style
In: Medium-length, black
Five Minutes Ago: Daisy Dukes, pastel
Out: Floor-length, white
A medium-length robe in basic black is classic, a staple of the judicial wardrobe that goes well with--or at least covers up--pretty much everything. It's the Article III analog to the "little black dress" that no girl should be without. A pastel micro-mini robe is not seasonally appropriate. Summer is over, honey! (If you insist on wearing an ultra-short robe, please familiarize yourself with this guide to miniskirt protocols from the New York Times.)
As for a floor-length robe in white, it's a bit too Ku Klux Klan-ish for most people's tastes...
Judicial Robe Designer
In: Murphy Robes
Five Minutes Ago: Shenandoah Robes
Out: Bentley & Simon
For Murphy Robes, A3G is partial to the Geneva S-6F. "The ultimate in classic robe styling, the Geneva S-6 sets the standard by which all other judicial robes are compared." To save five dollars--those judicial salaries sure are low!--consider the Arbiter S-11, "an exceptionally comfortable judicial robe designed for judges spending long hours on the bench."
For Shenandoah Robes, stick with the Deluxe Judicial Robe: "This elegant judicial robe is for those who desire the additional tailoring detail of the full-body pleats extending from the hem of the body to the top of the shoulder. The double-bell lined sleeve with finished cuff completes this exquisite model." A3G would not be caught dead in the ValueLine Judicial Robe. "[D]esigned for the budget-minded judge," this design has--the horror! the horror!--velcro closure cuffs.
For Bentley & Simon, only the tropical wool fabric will do. Avoid the polyester crepe at all costs!
Judicial Behavior
In: Taking ridiculously long vacations; blogging
Five Minutes Ago: Nepotism; inbreeding
Out: Doing actual work
Performing real work? Please, don't be ridiculous. Just like judicial robes, the only reason August and September exist is so federal judges can take them off! (Thanks to this post from How Appealing for the nepotism and inbreeding links.)
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Assuming the powers-that-be don't ruin her plans, Article III Groupie will be enjoying the holiday weekend out of town. She will not be checking e-mail or blogging during this time. A3G wishes her readers a relaxing and enjoyable Labor Day!
And on the seventh day she rested,
I don't think that Immigration Judges should count as Judges. While some of them do hard work (even though they are now being routinely bench-slapped), appealing their decisions to an administrative agency, I think, renders them "not a judge."
Posted by: Article4Slut | September 03, 2004 at 03:49 PM