"Underneath Their Robes" celebrates its six-month blogiversary this week. In honor of the occasion, Article III Groupie offers you this anniversary edition of "UTR News and Views."
Yes, it has been over a month since the last installment of UTR News and Views. So, for the information of readers who are new to this blawg, UTR News is a collection of pretty random news items that A3G discusses in cursory fashion. Exciting, huh? It's sort of like UTR's answer to Wonkette's Remainders. You could also think of it as "A3G's dumping ground for news items that you've already seen on How Appealing or that a bored, web-surfing co-worker e-mailed to you a long time ago."
Looking back over the past six months of blogging, A3G realizes that she has been one lucky girl, with much good fortune to celebrate concerning UTR. And recent weeks have been marked by some very positive developments:
(1) increasing readership for UTR, which has received almost 300,000 hits since its inception (roughly 1,600 hits per day);
(2) a delightful shout-out in In Camera, the official newsletter of the Federal Judges Association (FJA), in an article entitled "Surf's Up: WebSurfing for Judges," authored by Chief Judge Mark W. Bennett (N.D. Iowa) -- and A3G is glad she's on the good side of this judicial hottie, because he sure knows how to bench-slap;
Alas, despite all the good blog-related news, A3G has been in a bit of a funk lately. She has been getting killed at work lately, with multiple filings due in the next two weeks; she has made no progress in her shopping for presents; and she has so much to do before making herself scarce for the holidays.
In addition, a number of depressing news items have been bringing her down. In no particular order -- and with thanks to Howard Bashman's How Appealing, the "one-stop shopping" site for all legal news, and the many UTR readers who e-mailed her with blogworthy tidbits -- consider these sad developments:
(3) speaking of the Chief, 59 percent of people surveyed in a recent AP poll didn't know what position he holds (granted, the "law geek" readership of UTR may tend dangerously towards the other extreme);
In case you're wondering, the contest requested answers to this question: "Say you woke up one day and found out you could take the bench. What would you do?" This was A3G's answer:
I would hire the hunkiest male law clerks (not unlike the shirtless studs who swarm over Celine Dion during her show at Caesars Palace). When court would convene, my gorgeous, well-muscled law clerks would carry me into the courtroom in a crimson and gold sedan chair. Anything less would be unfit for federal judicial royalty!
And that's not all -- there's even more bad news. Especially distressing are news items that call into question fundamental UTR articles of faith:
Article of Faith #1: "Unlike icky state court judges, federal judges are superhuman and fabulous."
A3G has a guessing game she likes to play. Every time she sees a headline about a judge doing something stupid or wrong (or both), she asks herself, before reading the body of the article: "State court judge, or federal judge?" She always guesses "state judge" -- and she's almost always right.
But recently she was wrong. She saw the headline for this New York Times article, "Judge's Decisions Are Conspicuously Late," and guessed, "state judge." As it turns out, however, the judge in question -- with almost 300 motions on his six-month list, and with litigants dying on him before he gives them decision -- is federal judge George B. Daniels (S.D.N.Y.). And Judge Daniels, a Clinton appointee, isn't a member of just any old Article III court. He sits on the fabled federal trial bench of the Southern District of New York, which oozes prestige from every orifice. (In hindsight, A3G should have known better: Would the New York Times run a story about a state court judge's decisions being "conspicuously late"?)
(By the way, when nominated to the court, Judge Daniels was given the ABA's highest rating (see here) -- yet another piece of evidence casting doubt upon the value of the ideologically biased ratings, which rated Judge Daniels more highly than the California Dreamin' Diva, a former Kennedy clerk, Deputy Solicitor General, and Munger Tolles partner. The ABA ratings -- hrmph! The alumni award Judge Daniels got from his high school means more than his "well qualified" rating from the ABA.)
Right now Judge Daniels is probably hovering over his sleep-deprived law clerks, watching them work around the clock, and banging their skulls with his gavel when they start to doze off. On repeat play in the chambers stereo, to provide Judge Daniels with some measure of reassurance: "the Federal Judge Song," a.k.a. "Appointed Forever" (sound file; set to the tune of "Happy Together" by The Turtles).
And this isn't the only news shaking A3G's faith in the federal courts. According to the this article from the Times, "the Supreme Court's decision to hear [Miller-El v. Dretke, a death penalty case from the Fifth Circuit] yet again is a sign of its growing impatience with two of the courts that handle death penalty cases from Texas: its highest criminal court, the Court of Criminal Appeals, and the U.S. Court of Appeals for the Fifth Circuit, in New Orleans."
Now, A3G is no death penalty abolitionist. But even she must concede that it seems a little cheeky of the Fifth Circuit, upon getting the case on remand after an 8-1 decision from the Court, in essence to adopt the position of the lone dissenter, Justice Thomas.
Based on the Times article, it now appears that the Fifth Circuit is trying to give the Court of Criminal Appeals a run for its money in the category of "Most Badly Bench-Slapped by the Supreme Court." Hence the question posed by the Grits for Breakfast blog: "Which court is worse?"
Article of Faith #2: "The Elect can do no wrong."
Supreme Court clerks are the very best minds the legal profession has to offer. They literally walk on water, using the fountain in the courtyard of One First Street to practice their skills. They don't make mistakes -- or do they?
In City of San Diego v. Roe, the Supreme Court, in a per curiam opinion, unanimously reversed a nutty decision (pdf) from the Ninth Circuit. The Ninth Circuit had held that a police officer who was fired for making and selling a porn video in which he stripped off his police uniform and masturbated could advance a claim that the termination violated his First Amendment rights. A3G can think of several things that might have been violated -- but the First Amendment isn't among them!
The Ninth Circuit opinion that was reversed so peremptorily was written by Judge Raymond C. Fisher -- a member of the Elect, having clerked for Brennan -- and joined by female feeder Judge Dorothy W. Nelson. The absolutely fabulous Judge Kim McLane Wardlaw, the federal judiciary's #2 Superhottie and #1 Gay Icon, sensibly dissented. (A3G has heard that, in the past few years, Judge Wardlaw has been the Ninth Circuit judge most frequently vindicated in the Supreme Court. Can anyone confirm this?)
Right now the more conservative among you are probably thinking: "Who says Judge Fisher made a 'mistake' in his legal analysis? By that reasoning, the Emperor Palpatine -- whose brilliance lies beyond dispute -- sure does make a lot of 'mistakes.' Maybe Judge Fisher was just being results-oriented and lawless -- which wouldn't be a first for the Ninth Circuit!" A3G concedes this is a possibility; she does not know enough about Judge Fisher to hazard a guess as to which theory is correct.
Our next news item, however, involves what appears to be clear analytical error on the part of one of the Anointed. Judge Gerard E. Lynch (S.D.N.Y.) -- another alum of Justice Brennan's chambers, and a professor for many years at Columbia Law School -- is widely regarded as a legal genius. But it sounds like "Big G." Lynch may have missed the boat in this case, in which it took the Second Circuit to discover the analytical escape hatch that Judge Lynch was presumably looking for. The moral of the story: As Uncle Nino always emphasizes, "READ THE STATUTE!"
My goodness! This is all terribly disillusioning. Federal judges dragging their gavels? Supreme Court clerks making analytical errors? It's more than one should have to bear! Article III Groupie is frantically scrambling to pick up and glue back together the broken shards of her shattered idols...
Are there still things that make A3G happy? Of course there are. A3G's Christmas stocking contains such delights as cute pictures (pdf) of the adorably elven Judge James Browning (9th Cir.), fawning celebrity puff pieces about members of the Elect, paeans to Posner, gambling odds on future nominations to the Court, Democratic Senators recognizing Justice Scalia's brilliance (although trashing of Justice Thomas is baseless and deplorable), and people saying nice things about UTR at judicial gatherings.
On the whole, however, A3G is stressed and depressed. Work has been brutal, she's behind in her blogging, she hasn't even started her gift shopping, and she doesn't know when she'll find the time to do her holiday cards. And she was particularly upset when she had to turn down an invitation to the Supreme Court Christmas Party from a loyal UTR reader, in order to preserve her anonymity -- even though doing so caused her near-physical pain!
Suffering from the holiday blues,