Show A3G Love
Yes, you read that right. If you thought that Justice Alito was just going to be an acolyte of Justice Scalia -- Sancho Panza to Nino's Don Quijote* -- think again. You can read all about their spat here.
* Perhaps that was a less-than-ideal metaphor; Scalia looks more like Sancho Panza than Alito. Indeed, one devotee of Nino has bestowed upon him the nickname of "Sancho Panza from New Jersey."
For some nice stinging bench-slaps, to wake you up this morning and start your day off right, check out:
--Hand v. Dworkin (Judge
LeonardLearned Hand* once said to Ronald Dworkin, whom Judge Hand would later call the finest clerk he ever had, "F*** you!")--Kozinski v. Sanai (Judge Alex Kozinski administers a good bench-slapping to attorney Cyrus Sanai; Judge Kozinski's full article is available at How Appealing Extra)
Yes, this post is somewhat random; but A3G has been, and continues to be, very busy with her day job. She will try to get in a little blogging here and there, but expect brief and desultory posts from her for now.
* Oops, sorry for the typo. Or maybe it wasn't a typo, and A3G was channeling Harriet Miers?
Wonkette has some juicy tidbits about SCOTUS nominee Harriet Miers -- including the rumor that she and the Lone Star Diva once locked horns over the same man!
Yes, you're right; that "rumor" was offered in jest. As noted in this Legal Times article by T.R. Goldman, one of the sources cited by Wonkette, "colorful anecdotes or descriptions about Miers are notoriously difficult to find." As Wonkette puts it, "Not even the president can think of much interesting to say about her... We're not even that excited about the possibility of her being gay."
But if you have any funny stories or good dirt on Harriet Miers, based on first-hand interaction with her, please email A3G!
In Bench-Slapped: Souter v. Rehnquist, Article III Groupie offered her thoughts on possible animosity between Justice David H. Souter and the late Chief Justice William H. Rehnquist. Here's a quick update to that earlier post.
First, please note that A3G and Ann Althouse weren't the only folks who raised their well-plucked eyebrows at Justice Souter's refusal to issue a statement regarding the Chief's passing (as did all the other justices). The brilliant Jeffrey Toobin -- who is a fan of this blog -- also analyzed Souter's dissing of Rehnquist, in a fascinating New Yorker piece about the Rehnquist-to-Roberts transition. Here's an excerpt:
Two Justices were missing [from the Rehnquist memorial service at One First Street]. One of them, Anthony M. Kennedy, had an understandable excuse, for he was at that moment flying back from China. But the question that preoccupied court-watchers involved the other absence: Where was David Souter? And why hadn't he issued a statement about the Chief, like all of his colleagues?
The answers weren't entirely clear. Souter's home in Weare, New Hampshire, doesn't have e-mail, fax, or an answering machine, and he didn't make it back to Washington until the following day. But his absence served as a reminder that Roberts's talents had better include the skillful handling of eccentrics.
Very interesting -- be sure to check out Toobin's full "Talk of the Town" piece here. (And for those of you who live in New York, please note that Mr. Toobin will be sitting down with Mrs. Carmela Soprano herself, the incredibly talented Edie Falco, to interview her as part of the upcoming New Yorker Festival.)
Second, here are a few more views, from UTR readers, on the subject of Souter v. Rehnquist:
1. "Speculation: Perhaps Souter didn't come back on Tuesday because he wasn't crazy about the whole lying in repose thing. (And suspected the Chief didn't either?) No names, no confirmation, pure speculation based on bits and pieces heard around town."
2. "I have heard that Souter was the slowest opinion writer on the Court, and have heard that Rehnquist was not happy when opinions came in late,* and that he was very much concerned with efficiency and punctuality in the operation of the Court. Rehnquist himself dashed off his opinions quickly, and there was even a kind of lazy quality to his opinions in the last ten years or more on the Court. Arguments in opposition to his position (whether made by justices or the parties) were often simply sidestepped and just not addressed. String cites were used to support dubious propositions. And so forth. Very different from Scalia or Souter, and quite different from the early Rehnquist, whose dissents were quite memorable."
"Perhaps Souter felt that Rehnquist was himself sacrificing quality on the altar of efficiency in his own opinion-writing, and resented what he regarded as Rehnquist's insistence that Souter do the same. (Scalia has the ability to be comprehensive in his opinions, to write well, and to get them done quickly, so this issue did not arise with him). Again, pure speculation on my part."
3. "I have no inside information as to Souter's reason for offering no eulogy for Rehnquist, but my off-the-cuff reaction was to assume that Souter resents Rehnquist because the latter recognized Souter's lightweight intellect and writing ability, and thus almost never gave him an important case to write. I mean, how many landmark opinions has Souter written in his fifteen years on the Court? The only one that comes to my mind (although I haven't done any research on this) is the recent Ten Commandments decision in McCreary, but of course Justice Stevens would have assigned that to Souter, not Rehnquist. And one could not fault Rehnquist too much for taking this approach, as Souter has an amazing ability to make the law more and more confusing with each stroke of the pen."
A3G thanks her readers for these interesting and thoughtful responses. She suspects that the truth may lie somewhere in between all of them (combined with her earlier speculation concerning lingering ill will over Bush v. Gore).
If Judge John G. Roberts, Jr., is confirmed to replace the late Chief Justice Rehnquist, will he have a better relationship with Justice Souter? It's quite likely. Expert Court-watcher Tony Mauro certainly thinks so. And perhaps Souter and Roberts can bond over what they might have in common -- such as a possible shared interest in "birds." (Thanks to Law Dork and How Appealing for the links.)
* Chief Justice Rehnquist's concern for punctuality in the circulation of opinions is confirmed in Professor Richard Garnett's great Slate tribute to the Chief:
For me, maybe the best part of the job was the daily 9:30 a.m. meeting. We'd drink our coffee, talk a bit about football, movies, and weather, and check up on pending cases and opinions. Sometimes [Chief Justice Rehnquist would] wonder aloud why one colleague or another still hadn't circulated a draft. (He was always, though, unfailingly fair and genial about and toward his colleagues; he would never have tolerated from any clerk a snide remark about a justice.)
The obervation that the late Chief was "unfailingly fair and genial about and toward his colleagues" suggests that even if Justice Souter hated Chief Justice Rehnquist, the feeling may not have been mutual.
Welcome to the latest installment of Bench-Slapped! Article III Infighting. In this section of her blog, Article III Groupie describes, in loving detail, fights and feuds within the Article III judiciary.
In this recent post, A3G propounded a number of UTR Discovery Requests to her readers. She received helpful and interesting responses to all three of them, which she will be sharing in this post and future posts.
In her first inquiry, A3G noted that Justice David H. Souter did not attend the memorial ceremonies for the late Chief Justice William H. Rehnquist that were held at the Supreme Court last Tuesday. Furthermore, unlike all of the other justices, Justice Souter declined to issue a tribute to the late Chief. As noted here, a Court spokesperson pointedly declared that "[a] statement from Justice David Souter is not expected." And sure enough, the Rehnquist tribute statements from the justices now collected on the Supreme Court's website do not include one from the #4 Male Superhottie of the Federal Judiciary.
This led A3G to wonder: What gives? Was Justice Souter essentially telling his deceased former boss to "suck his gavel"? Was there perhaps some bad blood between Justice Souter and Chief Justice Rehnquist?
Some of you are probably thinking right now, "A3G, you are nothing but a catty s***stirrer. There is no good-faith basis for thinking that Souter and Rehnquist didn't get along. Why must you persist in your effort to transform the dignified halls of One First Street into the bitchslap-happy precincts of Wisteria Lane or Melrose Place?"
Now, A3G may in fact be a catty s***stirrer -- but it's not because of her curiosity about Rehnquist-Souter relations. A3G wasn't the only blogger to wonder about the lack of a tribute to the Chief from Justice Souter. Well before the thought even crossed A3G's mind, the distinguished Professor Ann Althouse wondered the same thing on her blog. And numerous posters over at Free Republic also speculated on the subject. So there!
In response to A3G's request for information, what did her readers have to say? Sure enough, some tried to downplay or dispel any notion of Souter-Rehnquist hostility (boring). One correspondent directed A3G's attention to this article, which notes that Justice Souter did attend the Rehnquist funeral last Wednesday at St. Matthew's Cathedral, and that he was in New Hampshire last Tuesday, when the ceremonies at the Court were held. But answering the question "Why wasn't Souter at the Rehnquist service on Tuesday?" with "Because he was in New Hampshire" makes about as much sense as answering the question "Why didn't A3G go to the gym this morning?" with "Because she was in bed."*
Another UTR correspondent reminded A3G about this NYT piece by Linda Greenhouse (which A3G was already aware of, having linked to it in this earlier post). This correspondent suggested that Souter's discussion of Rehnquist's death with the Femme Fatale of One First Street somehow evinced sadness at the Chief's passing. But closer scrutiny of the article reveals that Souter's interview with Greenhouse actually cuts in the opposite direction: nothing in his remarks to Linda G. reflects any mourning or sense of loss. Consider these excellent observations by Gerry Daly of Daly Thoughts (posting a comment at Althouse):
Given that Souter *did* issue a statement following the passing of Justice White, and given that Souter *did* talk to a reporter about Rehnquist's death without saying a single phrase that could be considered a form of a eulogy or tribute, and given that Souter had been in touch with the Court enough that the spokesman knew enough to say that a statement would not be forthcoming, I am going to assume that there was some animosity, at least in one direction, in their relationship.
An exceedingly insightful point (emphases and links added by A3G).** Furthermore, Justice Souter also issued a statement after the death of Justice Brennan. Justice Souter's statements after the deaths of Justices White and Brennan pretty much torpedo any patently pathetic, laughably lame explanation for Souter's silence along the lines that "Justice David Souter is a deeply private person who believes that grieving is a deeply private matter," etc.
In short, Justice Souter's silence about Chief Justice Rehnquist speaks louder than words. And what is it saying, you ask? Well, what's the sound of one hand bench-slapping?
So clearly there is something going on in terms of Justice Souter's feelings towards the late Chief Justice Rehnquist. As Seinfeld might have quipped, "Souter and Rehnquist -- what's the deal with that?" A3G's own pet theory can be summed up in three words: Bush v. Gore.
As noted in the infamous Vanity Fair article, Justice Souter spent "days in his chambers brooding over the case" and was "depressed" in the wake of the decision. Clearly DHS was emotionally invested in that landmark litigation. Is it so unreasonable to think that Justice Souter, still despondent and angry over the outcome of that case, simply could not bring himself to honor the man who led the Court through what was, in DHS's view, a delegitimizing fiasco? Hmm...
As always, A3G welcomes the thoughts of her readers (either as comments to this post or via email).
* Indeed, even the reader who wrote A3G about this Times article had to concede that "the ride from New Hampshire is a bit closer and a bit more doable on short notice than the trip from China" -- where Justice Kennedy was traveling at the time, which (legitimately) prevented him from attending the Tuesday ceremonies at the Court.
** Additional comments to the same Althouse post include two "Top 10" lists of "Reasons Why Souter Issued No Statement on Rehnquist's Death." These lists are highly entertaining and well worth reading. (A3G's favorite reasons: "(4) Never forgave Chief for not being 'Deep Throat.' (3) No, the other 'Deep Throat.'") But neither list offers any serious explanation for Justice Souter's pointed failure to issue even a generic statement about the Chief's passing (which one of the brilliant Souter clerks could have drafted up in all of five minutes).
"Happy Birthday to You, Happy Birthday to You, Happy Birthday Dear UTR... Happy Birthday to You!"
"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;
(3) a great mention in this article, which originally appeared in the December 2004 issue of the ABA Journal; and
(4) a love letter from Fedster of Crime and Federalism, offering wonderfully extravagant praise of A3G that, even if unmerited, means a great deal to her.
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:
(1) several federal judges, and others close to the courts, have passed away recently;
(2) Chief Justice Rehnquist, who has been away from the Supreme Court for some time due to his thyroid cancer, is not returning to the Court this year;
(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);
(4) the Second Circuit's official blog, previously available here, has suffered an untimely demise (due to unspecified "issues," according to Second Opinions); and
(5) the ABA Journal eReport held this contest, and A3G's entry was not among the winners.
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!"
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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,
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,
With apologies for her extended absence--work flared up like a bad case of hemorrhoids--Article III Groupie welcomes you to "UTR News and Views." This new feature will provide brief squibs about noteworthy news developments, along with commentary from Article III Groupie. Because A3G is so far behind in her news monitoring and reader correspondence, some of the items in this inaugural "News and Views" post may be a little, um, dated. Going forward, however, A3G hopes to bring you the news in more timely fashion, through quasi-regular "News and Views" posts (perhaps on a weekly basis).
And now, here are the desultory news items that A3G has noticed and believes worthy of brief remark, even though they don't merit full-blown posts. She has divided these items into two categories: "Now That's What She Calls News!" and "You Call That News?"
Now That's What She Calls News!
1. Tax court judges can write witty and amusing opinions, overflowing with literary allusions. (If you are at all familiar with tax court opinions, you know that this definitely qualifies as news.)
2. Although state court judges are icky, they do not have a monopoly on misbehavior. Federal judges--the exalted beings that we know and love here at UTR--sometimes behave badly. Consider the following:
(a) As Professor Lubet notes in this piece for the always entertaining Green Bag, federal judges can be abusive towards those who appear before them, engaging in unfair "bullying from the bench." Professor Lubet analyzes certain amusing but perhaps over-the-top comments by Judge Samuel B. Kent of the Southern District of Texas, including the following (taken from this order):
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. . . .Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.
As many UTR readers know all too well, Judge Kent is not the only federal judge who enjoys bench-slapping lawyers silly. Consider the following choice remarks from a recent order issued by Judge Sam Sparks of the Western District of Texas:
When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.
One can't help noticing that Judge Kent and Judge Sparks, as well as #1 Judicial Diva Priscilla Owen, are Texans. What is it about the Lone Star State that causes its judges to lash out at litigants? Why is it impossible to order Texas Justice with the judicial sauce on the side?
Alas, due to life tenure, the difficulty of impeaching federal judges, and the (generally) high respect for judicial independence within the federal system, dealing effectively with difficult federal judges is nearly impossible. As John Dean notes in this interesting article, "Thoughts on the Law Addressing Bad Federal Judges," when a "little robed czar or czarina" behaves badly, he or she often gets away with it. Hopefully reforms are on the way; a committee headed by Justice Breyer has been tasked with "evaluat[ing] how the federal judicial system has implemented the Judicial Conduct and Disability Act of 1980." (Yes, sometimes litigants get lucky and a federal judicial tyrant leaves the bench early. But this doesn't happen very often.)
(b) On rare occasions, federal judges behave very badly. Check out this article about Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana, which a UTR reader submitted along with the following commentary:
It is with a heavy heart that I must inform you of the suspected misdeeds of one of our beloved federal judges. . . . The judge in question is one G. Thomas Porteous, Jr. of the U.S. District Court for the Eastern District of Louisiana. Mr. Porteous, you see, is a man who loves living large. He eats at fine restaurants, leases fancy cars, jets off to exotic locales with his millionaire friends, smokes fine cigars, and lives in a lavish home. However, Mr. Porteous does not come from money, nor did he have a lucrative career [before taking the bench], nor did he amass a great fortune in the stock market...
Unfortunately, Mr. Porteous made the tragic mistake of keeping up with the Rockefellers on a [federal judicial] salary. The result was that, in 2001, Judge Porteous filed for bankruptcy. . . . Shameful as that might have been (how dare Congress pay our judges such a pittance!), Mr. Porteous's filing has gotten him into some hot water with federal investigators. The judge's filing revealed that he had close ties with one Louis Marcotte III, a local bail bond magnate at the center of a corruption probe in which sherriff's deputies and judges were given kickbacks in return for promoting Mr. Marcotte's business. Specifically, it appears that Mr. Marcotte paid for Porteous's car repairs and for a new backyard fence while Porteous was--gasp!--a state judge. With friends like that...
Although it's possible that Mr. Porteous could be innocent of these allegations, it would partly sadden me because the judge looks the part. A portly, balding man with oily skin, a Churcillian face, a slick southern
drawl, and ever-present cigar hanging from the side of his mouth, he is a quintissential good ol' boy.Before I end this missive, I should give you some lighter gossip about the judge. First, the judge openly makes fun of letters and cards he receives from prisoners whom he has sentenced. (Both their lack of grammatical correctness and knowledge of the law are fair game.) Second, although a Clinton appointee, the judge despises Clinton, keeping a cardboard cutout of him in his chambers (presumably to throw darts at). Third, the judge hires interns based more on family connections than academic talent. In talking with all of his interns about how they ended up working for Judge Porteous, their answers usually began with: "Well, you see, my daddy and the judge used to..." (I do not know if this nepotism extends to his clerks, however.)
(c) Finally, sometimes federal judges commit the ultimate sin: they fight with their wives. A UTR reader sent Article III Groupie an interesting piece from the December 26, 2001 issue of the Fairbanks Daily News-Miner (a publication this reader boasts "is read by nearly almost dozens of people"). In "Fight Right for Sake of Marriage and Kids," Judy Kleinfeld-- a professor of psychology at the University of Alaska Fairbanks, and wife of Judge Andrew J. Kleinfeld of the Ninth Circuit--gives readers the inside scoop about her marriage to His Honor:
To the great disapproval of many of my friends, I make it a point to fight with my husband in front of the children. Now I wouldn't fight about just anything in front of the children. But if I am full of righteous rage, and it's time to fight it out and the children happen to be around, I figure: Go for it! Conflict is inevitable in any marriage. Children need to learn how to fight right. Who better to teach them then their own parents, especially if their parents have refined argumentation to a high art? . . . .Fight it out, fiercely if necessary, but end it before bedtime. Come to a settlement, and call it a day. My husband and I have a time-honored formula for finishing a fight: We look each other straight in the eye, and we shake hands.
3. Although their sheer fabulousness can cause us to lose sight of this fact, federal judges are not immortal. Recently, the federal bench lost two of its most distinguished members. Judge Milton Pollack of the Southern District of New York, who presided over several major financial scandal cases, passed away on Friday, August 13. He was 97. Judge Clyde S. Cahill of the Eastern District of Missouri, a leader in the area of civil rights law before taking the bench, passed away on Wednesday, August 18. He was 81.
4. Occasionally Article III Groupie must cast her lot with the liberals, even though she is a self-professed conservative. In the recent case of United States v. Gementera, Ninth Circuit judges Diarmuid O'Scannlain and Michael Daly Hawkins traded bench-slaps concerning the permissibility of so-called "shaming punishments." In this case, the defendant, a convicted mail thief, was ordered by the district court to stand outside a post office wearing a sandwich board reading, "I stole mail. This is my punishment." Judge O'Scannlain, joined by Judge Eugene E. Siler, Jr. of the Sixth Circuit, affirmed and upheld the punishment. Judge Hawkins dissented.
Normally Article III Groupie, if asked to take sides in jurisprudential warfare between a conservative jurist and a liberal one, would side with the conservative. But in this particular case, Judge Hawkins's position has significant appeal. Why? Because of his delectable, federal judicial smack-down of the state courts!
In his majority opinion, Judge O'Scannlain rejected the Eighth Amendment challenge to the punishment in question by noting that "the occasional imposition of [shaming] sanctions is hardly unusual, particularly in our state courts." Slip op. at 10786. Judge Hawkins's response? "There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom." Slip op. at 10790 (emphases added).
Ouch! Methinks the state courts just got bench-slapped! The words "majesty of an Article III courtroom" are music to A3G's ears; she could not have turned a better phrase herself. Indeed, these sound like the words of a UTR reader--could Judge Hawkins be carrying printed out UTR pages underneath his robe? It's not inconceivable--as noted here, rumor has it that UTR has been discussed by Ninth Circuit judges at a recent meeting and over court e-mail.
(By the way, footnote 1 of Judge Hawkins's dissent contains a shout-out to erstwhile Hawkins clerk Dan Markel, who offers his thoughts on the case in this piece for The New Republic. Markel is an associate at the super-elite law firm of Kellogg, Huber, Hansen, Todd & Evans--which, as discussed infra, pays obscene hiring bonuses of $175,000 to the Anointed.)
5. Every once in a while, Supreme Court clerks marry "outside the tribe" of the Elect. Unlike Steven Engel and Susan Engel (née Kearns), two former Kozinski clerks and members of the Elect who married each other (as lamented here), former AK and AMK clerk Chi Tsun Steve Kwok just married 29-year-old engineer Wing-Pin Winnie Kwan. (Click here for their wedding announcement.) Article III Groupie salutes Mr. Kwok for having the courage to marry outside his caste.
Of course, it would have been even more noble for Mr. Kwok to have married a member of the Great Unwashed, i.e., a lawyer, but not a Supreme Court clerk. If one of the Anointed marries a non-lawyer, he can explain the decision away by saying, "Look, I didn't want to marry another attorney. After all, each year I already spend thousands of hours immersed in the law." But Article III Groupie will take what she can get!
6. When Stars Collide: One of Article III Groupie's fantasies become reality earlier this summer when a hip-hop superstar and a federal judicial superstar were seen in the same room, breathing the same air. Outré female rapper Lil' Kim, indicted on federal perjury charges, was bench-slapped back in June by Judge Gerard E. Lynch of the Southern District of New York (click here for the E! Online news story). The brilliant Judge Lynch, a former Columbia Law School professor and a member of the Elect (he clerked for Justice Brennan), denied the diminutive diva's request for permission to leave the country in order to perform at a concert in the Caribbean. Her lawyer argued that she was less of a flight risk due to her status as "a well-known performer," but "Big G." Lynch rejected the argument, putting "Lil' Kim" in her place: "Just because you're a celebrity doesn't mean you don't jump bail and leave the country."
Wow--Article III celebrity sometimes can trump pop culture celebrity. That's definitely newsworthy!
You Call That News?
Having given you "all the news that's fit to print" in "Now That's What She Calls News," A3G now provides you with a few "news" items that aren't exactly news, at least not to A3G.
1. Compensation levels for the Elect have reached ridiculous levels, with hiring bonuses for the Elect going as high as $175,000 at D.C.'s muy prestigioso Kellogg Huber firm. Thus, in her first year after hangin' with Ruth "Bling-bling" Ginsburg, a member of the Anointed can earn over $300,000, as reported here by Tony Mauro, the Liz Smith of One First Street. (Article III Groupie's number two dream job, after "federal judicial diva," is that of "Supreme Court gossip columnist.")
2. Folks emerging from that steaming pile of prestige otherwise known as the Solicitor General's office are capable of getting good jobs.
3. For all of you aspiring law school deans who didn't get the memo, a Supreme Court clerkship is now required in order to be the dean of a top 10 law school. As noted here, 35-year-old David W. Schizer, a former law clerk to Judge Kozinski and Justice Ginsburg, has just been selected as dean of Columbia Law School.
The article notes that three other top law schools recently promoted young scholars to serve as their deans. The article fails to note, however, that all three are among the Anointed:
(a) Elena Kagan, 44, the new dean of Harvard Law School, clerked for Judge Abner Mikva of the scrumptious D.C. Circuit--a court to which Kagan herself was nominated in 1999 by President Clinton (her nomination expired in 2000)--and then Justice Marshall.
(b) Harold Hongju Koh, 48, the new dean of Yale Law School, clerked for Judge Malcolm Richard Wilkey of the dazzling D.C. Circuit, followed by Justice Blackmun.
(c) Richard Revesz, 46, the new dean of New York University Law School, clerked for then-Chief Judge Wilfred Feinberg of the Second Circuit, followed by Justice Marshall (three terms before Dean Kagan).
4. The Fourth Circuit is a pretty conservative court, in large part due to the efforts of Senator Strom Thurmond (R-S.C.), who recently passed away, as noted in this article, "How Two Senators Molded a Court."
Okay, that wasn't exactly "news," was it? (UTR's next breaking news bulletin: "President Reagan--He Dead!") But the article contains some interesting tidbits, including information about the close, almost paternal relationship between the late Senator Thurmond and Fourth Circuit Judge William W. Wilkins, who served as an aide to Thurmond, directed one of his campaigns, and spoke at his funeral. The article also mentions the friendship between Thurmond and South Carolina Democrat Marshall B. Williams, the father-in-law of Fourth Circuit judicial hottie Karen J. Williams. Marshall Williams and Strom Thurmond had double dated when they were younger, and Marshall Williams "always had to drive because Strom needed both hands in the back seat," if you catch our drift.
While we're talking about the libidinous late senator, would anyone be surprised to learn that Stroum Thurmond was once a state court judge, with a little bit too much going on "underneath his robe"? Check out this article, which reports the following:
[Strom Thurmond] was the only circuit court judge in South Carolina history to have had sex with a condemned murderess as she was being transferred from the women's prison to death row. This was Sue Logue, the only woman in the state ever to be sent to the chair, but not before she'd been sent to the back seat of Judge Thurmond's car for a lively final ride.It was a particularly bloody murder case that had begun when Mr Logue's calf had been kicked to death by some other feller's mule. Things had escalated from there. Strom was said to have had a soft spot for Mrs Logue, whom he'd hired as a teacher back when he was school superintendent. She didn't meet the minimum qualifications for the post, but she was said to have had unusual "vaginal muscular dexterity".
5. Not much has changed since the days of Judge Thurmond: state court judges are still ghetto. Consider the sorry tale of Justice Gerald P. Garson, a New York matrimonial judge. Justice Garson--who has been charged with taking bribes from a divorce lawyer, in return for deciding cases in the lawyer's favor and referring clients to him--was captured on surveillance tapes apparently accepting cash and rigging cases, as reported here by the New York Times. In addition, as recorded on the tapes, Justice Garson apparently stated, "I don't give a shit [about my job]."
6. Speaking of less-than-honorable state court judges, Judge Donald Thompson, the Oklahoma jurist infamous for allegedly using a "penis pump" underneath his robe, is resigning effective September 1. In his letter of resignation, Judge Thompson stated that he "greatly enjoyed" his time on the bench. We're sure you did, Judge Thompson...
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Article III Groupie hopes that you found this news update informative. She thanks all of her readers and fellow bloggers who brought the news developments set forth above to her attention, and she asks her readers for their continued assistance in locating items of federal judicial news and gossip. A3G apologizes if this post has been less entertaining than her usual posts, but such is the nature of "news" (which she feels obligated to provide every now and then, given her blog's promise of "news, gossip, and colorful commentary about the federal judiciary").
As you all know, Article III Groupie has several pots on the stove right now. She realizes you are eagerly awaiting her promised follow-up pieces on Kiss Me, Guido and Feed Me, Stephanie Seymour. A3G reminds that you patience is a virtue, good things come to those who wait, and she needs to keep up her billable hours, so she can pay for her next European vacation (plus a few pairs of round-toed shoes with superhigh heels).
WHACK! Consider yourself BENCH-SLAPPED! Welcome to the inaugural post of "Bench-Slapped! Article III Infighting," dedicated to chronicling spats, feuds, and rivalries within the Article III judiciary.
The title "Bench-Slapped!" is derived, of course, is from the term "bitch-slap." Lest you think Article III Groupie profane or uncouth, she would note for the record that this venerable term has been recognized by no less an authority than the Oxford English Dictionary, which defines "bitch-slap" (yes, it's hyphenated) as follows: "to deliver a stinging slap to (a person), esp. in order to humiliate one regarded as inferior." Considering that the Article III bench is occupied by 877 legal egos, many of them enormous, bench-slappery is inevitable--which is fortunate for us, because watching brilliant and distinguished jurists bench-slap each other silly is a deliciously guilty pleasure, Article III's answer to female mud wrestling.
"That is a manifestly untenable theory of ERISA preemption--you stupid skank!" (Photo credit: Tronster.com.)
Let us now consider the different forms bench-slappery may take. Bench-slappery within the district court bench is fairly limited. Because each district court judge is master of his domain, capable of treating his personal courtroom as his own little fiefdom, bench-slappery within federal trial courts is not very widespread. If district judges don't get along, they can simply avoid each other around the courthouse.
Significant bench-slappery takes place between the trial and appellate courts. Bench-slapping is frequently done "to humiliate one regarded as inferior," and what could be more inferior than a (literally) inferior court? Of course, not every negative action that an appellate court takes with respect to a trial court constitutes a bench-slap. A bench-slap must be personal: a district court gets reversed; a district judge gets bench-slapped. Thus, a garden-variety reversal should be viewed as simply an exercise in the correction of legal error. But issuing a writ of mandamus, for example, can be viewed as a stinging bench-slap of the district court judge. E.g., "The district judge presiding over the case went buck-wild--so we had to mandamus his ass!"
The greatest amount of bench-slappery takes place within the circuit courts. The structure of the appellate decision-making process, with cases decided by panels of three (or more) judges, requires circuit judges to interact with each other quite extensively. When this many egos rub against each other, chafing is inevitable. Even though many federal appeals courts are marked by a high degree of collegiality, such as the First Circuit and the Third Circuit, others are regular snake pits, such as the Sixth Circuit and the Ninth Circuit--the source of today's bench-slappery.
Very well, enough of the preliminaries--let's get nasty. It's time to get Bench-Slapped!
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MEOW! With the possible exception of a French manicure, there is nothing Article III Groupie likes better than a good old-fashioned cat-fight. And this, dear reader, is no ordinary cat-fight. It is the latest battle in the long-running jurisprudential warfare between Judge Stephen Reinhardt, the Liberal Lion of the Ninth Circuit, and Judge Diarmuid O'Scannlain, the Conservative Cougar of the same court. (Yes, the notoriously left-wing Ninth Circuit does have a few token conservatives lying around.)
Judge Reinhardt, the Liberal Lion of the Ninth Circuit: He eats conservative judges for breakfast! (Photo credit: GeekPhilosopher.com.)
Both of our combatants are well-known and highly respected jurists with strong, and diametrically opposed, judicial philosophies. Both judges also possess strong feeding patterns. By "feeding patterns," UTR is referring, of course, to how frequently they send their clerks on to clerk at the Supreme Court, i.e., to join the ranks of the Elect. During the past ten terms, from October Term 1994 to October Term 2003, Judge Reinhardt sent six of his clerks to the Court, making him the 15th-ranked feeder judge for this period, and Judge O'Scannlain sent eight of his clerks to the Court, making him the 14th-ranked feeder judge.
For you law school gunner-types out there: If one were to prepare a Billboard Hot 100 chart of Supreme Court feeder judges, Judge O'Scannlain would be a bulleted entry, posssessing upward momentum. Focusing only on the past five terms, Judge O'Scannlain moves up to become the 10th-ranked feeder judge (and he goes as high as #8 if one removes two senior judges, Judge Silberman and Judge Williams of the magically delicious D.C. Circuit, whose feeding has dropped off sharply since they took senior status). Maybe you can't pronounce Diarmuid O'Scannlain's name, but Nino Scalia sure can! (Judge Reinhardt, in contrast, falls to #18 if one considers only the past five terms.)
As for their non-Supreme-Court feeding patterns, Judge O'Scannlain keeps himself quite trim and fit, as you can see here (right column), while Judge Reinhardt is on the heavy side, as shown in this picture--let's hope that beverage is low calorie! Judge Reinhardt hates following Supreme Court precedents authored by Justice Scalia, but perhaps he should consider following Justice Scalia's dietary precedent, by giving the Atkins Diet a try.
Judge Reinhardt loves carbs almost as much as he loves granting asylum petitions and habeas relief. Clerks who sat with Judge Reinhardt at the Ninth Circuit clerks' orientation in San Francisco have reported to UTR concerning his monopolization of the table's communal bread basket. (Photo credit: GeekPhilosopher.com.)
(Sorry, Article III Groupie apologizes for that digression. Such information properly belongs in UTR’s forthcoming report on the care and feeding of Article III judges, tentatively titled “A Hunger for Justice," which is described in the list of UTR's coming attractions near the end of this post. Now, back to the bench-slappery!)
Earlier this month, Judge Reinhardt and Judge O'Scannlain administered some fairly strong bench-slaps to each other, in their dueling opinions in Kennedy v. Lockyer. In this case, a Ninth Circuit panel majority--composed of Judge Reinhardt and Judge Raymond C. Fisher, a high-ranking DOJ official in the Clinton Administration and a member of the Elect--held that habeas relief should have been granted to the defendant in a case under California's "three strikes" law, in which the defendant's third strike was for "selling 0.08 grams of a substance in lieu of a controlled narcotic drug--a substance that looked like an illegal drug but wasn't--to an undercover police officer for $20." (Yes, yes, Article III Groupie realizes this decision is fairly old news; the opinions were filed on June 14, 2004. She apologizes for the delay and once again blames her day job.)
Judge O'Scannlain's fiery dissent begins with the following:
This case represents a triumph of lawyering from the bench. While I share some of the court's evident sympathy for the defendant--whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer--I respectfully dissent from its decision to step into counsel's shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.
Whack! Did somebody just get bench-slapped?
Well, Judge Reinhardt can give as good as he gets. Check out footnote 20 of the majority opinion (some citations omitted):
Our dissenting colleague once again appears to enjoy playing numbers games in a desire to prove that the judicial system is flawed because a single district judge may declare an enactment unconstitutiona, or because less than a unanimous court may decide a case. Remarkably, he devotes a full section of his dissent to complaining about such conduct by the court which is such a source of "embarrassment" to him, and of which he involuntarily remains a member, see Statement of Diarmuid F. O'Scannlain, Hearing Before the Committee on the Judiciary, United States Senate, Improving the Administration of Justice: A Proposal to Split the Ninth Circuit (April 7, 2004). It is partly on this basis that, as he so inelegantly puts it, he "lamentably" dissents.
Whack! Was that the sound of one hand slapping? Catty references to matters unrelated to the case at hand, namely, Judge O'Scannlain's support for splitting the Ninth Circuit? Attacks on the quality of a colleague's prose styling? Article III Groupie hasn't seen this level of slappery since Amanda Woodward and Allison Parker went to town on each other on the dearly departed Melrose Place!
Judge Reinhardt isn't the only one, however, capable of catty citations. Take a look back at the dissent, specifically, footnote 7 and the accompanying text. Here Judge O'Scannlain seizes upon Judge Reinhardt's responses to Howard Bashman's "20 Questions for the Appellate Judge" feature on the appellate blogspot How Appealing, which he uses to criticize Judge Reinhardt's approach to judging as, well, lawless.
My goodness! Is commentary even needed for such flagrant bench-slappery? We all paid good money for our law degrees, so let's say the words together: Res ipsa loquitur.
Okay, fine, Article III Groupie feels a twinge of guilt over not adding more value, so she will endeavor to offer a few brief remarks. In case you have been hiding under a rock for the past decade, Judge Reinhardt and Judge O'Scannlain have been engaged in jurisprudential warfare for years. Because the Supremes have his back, Judge O'Scannlain often has the last word. But Judge Reinhardt views reversal by the Fascist Supreme Court as a badge of honor, and he is thus quite indifferent to bench-slaps administered by the Supremes.
(By the way, for those of you who cook, here's a recipe for you to try at home: (1) take an important and loopy opinion by Judge Reinhardt with wide-ranging implications for future cases; (2) add a dissent from the denial of en banc rehearing by Judge O'Scannlain; and (3) stir well. Presto! You've got yourself a delicious summary reversal. Indeed, to assist sleep-deprived members of the Elect in going through the pool of cert petitions, the Supreme Court Clerk's Office now requires petitioners seeking review of Judge Reinhardt's opinions to print the covers of their petitions not on standard white cardstock, as required by Supreme Court Rule 33, but on photographs of Judge Reinhardt.)
Some judges disagree jurisprudentially but get along quite well personally. According to Article III Groupie's Ninth Circuit correspondents, however, the difficulties between Judge Reinhardt and Judge O'Scannlain are personal as well as political. Judge Reinhardt's chilly relationship with Judge O'Scannlain can be contrasted with his friendship with the Ninth Circuit's most prominent conservative, Judge Alex Kozinski, the fifth-ranked feeder during the OT 1994 to OT 2003 period. (For those of you not in the know, "OT" is Elect-ese for "October Term." Fox is currently developing a show called The OT, in which gorgeous, scantily clad members of the Elect--all of whom hail from the East or West Coast--have their world turned upside-down when Chief Justice Rehnquist hires a hunky juvenile delinquent from Bumblef**k, Kansas, to clerk for him.)
Judge Reinhardt and Judge Kozinski make a big show out of their trans-ideological friendship, in a cute, somewhat self-congratulatory sort of way. Taking their judicial Punch and Judy show on tour, the two judges engage in frequent, spirited, good-natured debates on a wide range of subjects, held at different venues around the country. The subtext of the Kozinski-Reinhardt friendship is: "Yes, we disagree with each other violently. But we're BFFs because we're the coolest kids on the playground--the two smartest judges on the Ninth Circuit!" Because of his high-profile friendship with Judge Kozinski, Judge Reinhardt's frostiness towards Judge O'Scannlain contains within it a dismissiveness of Judge O'Scannlain as a jurist and thinker: "Sure, I can be friends with conservatives--but only conservatives I respect!"
For his part, Judge O'Scannlain does not deny Judge Reinhardt's intelligence. If anything, Judge O'Scannlain views Judge Reinhardt as too intelligent for his own good--and, for that matter, the good of the free world. Judge O'Scannlain believes that Judge Reinhardt, like the Emperor Palpatine of Star Wars, has decided to employ his powers for evil ends. He thinks that Judge Reinhardt is, as the Church Lady might say, "Satan?"
In sum, Judge Reinhardt disrespects and dislikes Judge O'Scannlain, and Judge O'Scannlain similarly dislikes Judge Reinhardt, whom he views as the hub of the axis of evil. (Other points in this alleged axis: Judge Harry Pregerson; Judge Betty B. Fletcher; and Judge Betty's devil spawn, Judge William A. Fletcher, a member of the Elect.) We can surely count on Judge Reinhardt and Judge O'Scannlain for some fantastic bench-slappery in the years ahead.
By the way, in case you're wondering, Judge Reinhardt is the Emperor rather than Darth Vader because Darth Vader's position is already taken: by the brilliant, cold-as-ice Judge Marsha Berzon. A member of the Elect, Judge Berzon uses the light-saber of her chilly intellect to cut down all who stand in her way. President Clinton spent a tremendous amount of political capital pushing Judge Berzon's nomination to the Ninth Circuit through the Senate, despite strong opposition from the Republicans, because he knew that only she was qualified to take up the mantle of Judge Reinhardt. After Judge Reinhardt's inevitable passing, only Judge Berzon can provide comparably courageous and cunning leadership for the left wing of the Ninth Circuit. Article III Groupie is both obsessed with and deathly afraid of Judge Berzon, who will no doubt cast her dark shadow over the pages of UTR in the not-too-distant future. (For those of you Harry Potter fans out there, Judge Berzon will sometimes be referred to in the pages of UTR as "She-Who-Must-Not-Be-Named" or "You-Know-Who.")
Please send tips for "Bench-Slapped!" to me, Article III Groupie, by e-mail. Tips about She-Who-Must-Not-Be-Named are especially welcome--even though Article III Groupie may be too afraid to publish them! (But Article III Groupie does not want to hear that You-Know-Who is actually a sweet, warm-and-fuzzy person who loves small animals. This would just ruin the magnificent fantasy Article III Groupie has built up in her head of an out-of-control, Left-Wing Judicial Diva!)
Bench-slapped and reeling,
P.S. For those of you Ninth Circuit groupies out there, here is one question about She-Who-Must-Not-Be-Named that Article III Groupie would like answered: Is her middle initial "L.", as indicated here, or "S.", as indicated here? Presumably it is "S.", as indicated in her published opinions. But why does a Google search for "Marsha L. Berzon" generate so many results, including references to such official sources such as the Federal Judicial Yellow Book and Senate proceedings concerning her nomination?)
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