Underneath Their Robes

This Site Is No Longer Active

The archives of Underneath Their Robes will remain online. Some things have aged better than others, but Article III Groupie believes in transparency. She's not inclined to delete certain stories to make herself look better; it's all still here, for better or worse.

If you would like to see what A3G is up to these days, you can read her latest writing here, follow her on Twitter, or check out her personal website. Thanks for your interest.

Building Buzz for Supreme Ambitions

Never in her wildest dreams did Article III Groupie imagine that she'd be the author of a well-reviewed novel boasting blurbs from the likes of Chief Judge Alex Kozinski and Judge Richard A. Posner. What more could a girl ask for?

(Except for you to pre-order her book, dear reader -- which you can do via the links below, if so inclined. Thank you for your consideration!)

Early Reviews for Supreme Ambitions [Supreme Ambitions]
Supreme Ambitions: A Novel [Amazon (affiliate link)]
Supreme Ambitions: A Novel [Barnes & Noble]

A New Site for Fans of Underneath Their Robes

Article III Groupie has a new project. If you would be interested in reading about a young lawyer's quest to join the ranks of the Elect, i.e., to secure a Supreme Court clerkship, check out the link below.

Preface [Supreme Ambitions]

In re Underneath Their Robes

Alas, this blog is no longer active. Of course, please feel free to browse through the extensive archives.

If you're curious about the identity of Article III Groupie, the foundress of this fine website, please read this New Yorker piece, this New York Times article, or this Wikipedia entry. You're also welcome to visit A3G over at her new home.

Toodles!

The Bench: SCOTUS Watch [New Yorker]
He Fought the Law. They Both Won. [New York Times]
David Lat [Wikipedia]
David Lat [Above the Law]

Is There Something You'd Like to Tell Us, Justice Stevens?

by Clerquette

There has been some speculation, in the last few months, that Justice John Paul Stevens may be ready to trade in his formal leather throne on the Highest Bench in the Land for something a tad more ... BarcaLounge-y. Or Adirondack Chair-ish. Or pool float-ey. 

What's been fueling the rumors of JPS's yearning for a different seating arrangement? Well, as our colleagues at Above the Law reported back in September, Justice Stevens's hiring for OT 2010 has proceeded at a somewhat, er, leisurely pace: at last count, the Justice had exactly one law clerk in place for the '10 term. Of course, like our fabulous co-blogress, Article III Groupie -- who, in April of 2009 correctly predicted Justice Souter's retirement -- the superstars at ATL are rarely wrong, and are thus entitled to substantial deference.

Then, just yesterday, another esteemed Courtwatcher raised the issue of JPS's potential retirement -- based on her observation of His Honor's uncharacteristically tentative performance at Thursday's session (during which the landmark decision in Citizens United v. Federal Election Comm'n was announced, in case you happen to have spent the last two days in a dark, Interweb-less hole). According to Jan Crawford, 

Stevens spent a good 20 minutes this morning reading a summary of his scathing dissent in the campaign finance case. And he showed his age. 

The language in his written dissent was forceful. But it was striking to see him appear to stumble over words as he read it, to mispronounce words like “corruption” and “allegation,” to seem to lose his place in his summary, to often hit the microphone with his hand or his papers. 

Maybe it was just a bad day, and Lord knows we’ve all had those. And certainly it was the longest summary from the bench in some time. But it was so different from the John Paul Stevens we’ve come to know. He’s the maverick justice who asks pointed questions from the bench and cleverly makes his points, sometimes with sly dry humor. 

Today, he was different, and almost felt like relief when he finally got through his summary. 

Was it, in fact, just a bad day for JPS? Did the thought of unlimited corporate spending on federal and state elections simply leave him feshemmeled? Did the thought of Sheryl Crow performing with Kid Rock on the Hope for Haiti telethon render him verklempt? 

Clerquette is looking for some cold, hard facts ... or some reasonably good gossip. If you've heard anything about the JPS situation, please email her (or find her on Facebook)!

A Gay Old Time

by Clerquette 

A few stories dominated the news last week: the devastating earthquake in Haiti (have you donated to the relief effort yet, Groupies? If not, here's an option that offers something for everyone!); the star-studded earthquake over at NBC; the linguistic earthquake over Harry Reid's inartful use of the "N" word; and the cyber-quake that will rattle China if Google nobly extricates itself from the hammy fist of government censors. And, of course, from the distant shores of California (and the less distant shore of the Potomac), came news of Perry v. Schwarzenegger, the federal case challenging the constitutionality of Proposition 8 --which dashed the marriage plans of brides, brides, grooms, and grooms in California.

In case you were consumed with one of the other big stories last week, or spent your normally studious weekend wondering whether James Cameron would again declare his absolute sovereignty over, well, the world, Clerquette offers you this brief roundup of news from the Perry v. Schwarzenegger front.

• Everything you wanted to know about the genesis of Perry v. Schwarzenegger (but were afraid to ask) is in this delightfully thorough California Lawyer piece, which provides a juicy glimpse of the cloak-and-dagger secrecy that surrounded the filing of the case.  Is there a certain irony in a trial strategery predicated upon being somewhat closeted? Clerquette leaves this determination in your wise discretion.   
• Air travel in your future? Margaret Talbot's comprehensive piece in the New Yorker will (in typical New Yorker fashion) keep you occupied for as long as it takes for airline security to determine, with respect to each one of your fellow passengers, the answer to the persistent question, "What's in your underpants?" 
• Looking for the answer to another persistent question, to wit: is Ted Olson a lesbian? Short answer: yes.   
• Looking for liveblog coverage of the trial? Try the NYT's Bay Area Blog; see also firedoglake.com (admittedly selected by this blogress because the name "Firedoglake" manages to be both charmingly whimsical and just a little bit badass) and Dan Levine's avatar, "fedcourtjunkie's" real-time tweets. 
• Want your explanation of the Supreme Court's decision to prevent the broadcasting of the Prop 8 trial with a healthy dose of outrage? Check out the brilliant Dahlia Lithwick's take on the matter here. 
• Read SCOTUSblog's analysis -- and Judicial Superhottie Alex Kozinski's letter concerning television coverage of the trial! -- here.
• Tired of all the "strange bedfellows" commentary about Olson and Boies? Feel free to inform your friends and colleagues, in your most officious tone, that the Dynamic Duo are, in fact, long-time friends; indeed, Boies was among the Illawminati at Olson's 2006 wedding to tax lawyeress Lady Booth.
• Finally, for a bit of pure, archival joy, relive ATL's fabulous coverage of the Olson-Booth nuptials here. Some wedding photos are worth seeing again (and again, and again).

And, of course, feel free to email Clerquette with news, gossip, and your very own colorful commentary on this --or any other matter of Article III interest -- at [email protected]!

Note to readers: though we welcome your feedback and seek (even beg for, though in the most distinguished sense of the word) your tips and insights, a clarification is in order. Alas; Clerquette is in no position to offer you assistance with your wrongful conviction, your miscarriage of justice, or your claims of corruption in the ranks of the federal judiciary. Although she shares your desire to attract the attention of an Article III judge, Clerquette suggests that your mail concerning any of the above topics be directed to your local Pro Se law clerk!

Happy New Year, Groupies!

by Clerquette

Send your news, tips, and miscellaneous thoughts to [email protected] , or find me on Facebook!

Twelve days into the new year, Clerquette is finally getting around to one of her New
 Year's resolutions: more regular posts here at UTR. 

As an initial matter, a few words about housekeeping, dear Groupies. Yes, dear Groupies: the annual bout of New Year's-induced ruminating brought this blogress to the unavoidable conclusion that an A3-shaped void had appeared in her daily life. And, yes: as we all know, 2009 was a very hard year for the legal profession. Thus, while we cannot promise you a break from unrelenting bad news about the economy, the threat of terrorism, or the inexplicable longevity of Jay Leno, we have decided to ring in 2010 with more news and gossip about the superstars of the federal judiciary (or "supastars," if you're not afraid of potentially stigmatizing 'dialect'). After all: receiving a giant bonus for standing by while your bank teeters on the verge of implosion may make some people feel better, but getting to know what's underneath the robe of your favorite Article III judge brightens everyone's day. 

So, Groupies: what's new in the new year? Clerquette eagerly awaits your thoughts and insider gossip on law clerks, judges, and other luminaries of the federal bar. In the meantime, take a moment to welcome the New Year with Lauren Collins' profile of Justice Sonia Sotomayor, in the January 11 issue of the New Yorker. (We know, we know: the magazine came out last week, and the diligent groupies among us have already read, annotated, and committed to memory the significant portions of the article. But this is New York, folks, where Clerquette has observed fellow subway-riders nosing through the annual Eustace Tilley issue -- a February tradition -- as they fan themselves in the August heat.)

But why wait? As you huddle against the cold, Collins' piece will provide you with a hearty portion of Wise Latina for the soul. In addition the pure joy of consuming S.Ct intel, the article reminds us of why Sonia from the Block is likely to remain in the headlines (despite recent lamentations about her erstwhile privacy). She is a study in contrasts; a Justice for the era of celebrity; the judicial equivalent of a mullet, to wit: business in the front, but with tasteful dose of "party" in the ol' appendix. 

On the business front, colleagues and former clerks emphasize Sotomayor's workman-like approach: she reveres preparation, "believes in the perfectibility of systems," and views legal opinions "like instruction manuals  -- everyone should be able to follow them." (Sorry, future clerks: leave your thesaurus at home, and save your SAT words, like "pellucid," for your emo blog!) According to Collins, her "mode of expression can be inelegant," and "[c]larity, not refinement, is her aim." But is her presence on the bench that has allowed us a glimpse of the multiple faces of Sonia -- at least some of which refuse to be hidden beneath the veil of stodgy precedent.  

Sotomayor has established herself as an active -- and aggressive -- questioner. Collins, for example, describes one of her first oral arguments, in United States v. Stevens, as follows: "A blunt, glottal voice cut in," she writes. "By the end of the hour allotted to the case, Justice Sotomayor - wearing a snaky silver cuff bracelet with her fingernails painted sports-car red - had spoken five times."  And, last month, Sotomayor received a minor bench-slapping, after peppering an attorney with questions before he could answer one already posed by Justice Ginsburg. (Ginsburg responded to Sotomayor's indecorous interruption with a demure, "I'd like him to answer the question that I asked him first." Sotomayor, it was reported, "looked chagrined.")

Of course, there may be some lingering resentment about Sotomayor's decision to ditch the "frilly jabot" that Ginsburg presented to her new g-friend to wear in her official portrait. In any event, the fact remains: in addition to being wise, J-So is just a little more caliente under her non-frilly collar than her distinguished -- if painfully staid -- colleagues. The record reflects, inter alia, that Sotomayor has been known to reward her hard-working clerks with cocktails and late-night Texas Hold 'em; that she "hooks up a mean churrasco with a tangy lemon marinade;" and, juiciest of all, that she has had the honor of being J-Lo's dinner guest.  

So, while J-So insists that she is not out looking for love, and that she misses the anonymity of life on the [still sexy] Second Circuit, we are reasonably certain that the newest Justice will continue to generate buzz.  

And let's not forget about the rest of the fabulous Article III body of luminaries! Stay tuned, Groupies, and send me your thoughts, tips, and gossip about the stars in the A3 galaxy. 

You can email Clerquette at [email protected], or find her on Facebook. 

A Holiday Wish List for Groupies

by Clerquette

Yes, Groupies: Clerquette realizes that it is merely November, and that drugstores everywhere are still stocked with Halloween candy (at fire sale prices, Clerquette hastens to add, for those of you who didn't get your fill of Sweet-Tarts and Hershey's Miniatures!). And, yes, Clerquette is aware that there are a sprawling 41 shopping days left before Christmas. But, after hearing sad news of the death of Justice Sandra Day O'Connor's husband, John, Clerquette thought that a little holiday cheer might be in order. To wit, we have started compiling a non-denominational Holiday Wish List for Groupies.  After all, it's never too early to start passing around a list of items you might want to find under your tree/menorah/other non-exclusionary shrine to holidays which happen to fall in December. One caveat: if you, dear Groupies, count yourselves among the devotees of Santa Claus, you will need to establish, with a reasonable degree of certainty, that you have been "nice," and need not be relegated to the list of naughty coal-receivers.  I leave this task in your wise discretion.  

With that, Clerquette suggests the following treats:

1)At the intersection of sabermetrics and High Court Geek Love lies ... "Supreme Court Sluggers" collectible baseball cards! The first in a promised series of trading cards features Chief Justice John G. Roberts, Jr., who stares, glassy-eyed, from the front of the card, clad in a judicial robe and pitchers' mitt.  The cards are the creation of the folks at The Green Bag -- whom, incidentally, Groupies can thank for the brilliant desk-bling we think of as the "Highest Bobbleheads in the Land". According to TGB, "the portrait of Chief Justice Roberts was inspired by the classic Mordecai 'Three Finger' Brown trading card;" Brown, was a "Natural" choice for a Roberts doppelganger because (says TGB) he "was a pitcher, the #1 position on a baseball team, just as Roberts, as Chief Justice, is effectively #1 in seniority on the Supreme Court." The Roberts card is a charming, spoke-ready morsel of inside baseball: for example, baseball nostalgists will be delighted by its portrait-within-a-portrait of Bill Klem, the "John Marshall of umpires, while the compilation, on the back of the card, of Roberts stats and quotes will make the Supreme Court fan on your gift list brandish his/her foam finger in unmitigated joy. Give us an "O"! Give us a "Y"! Give us an "E" ...   

2) Joan Biskupic, American Original (2009). Just in time for Christmas comes this new biography of Justice Antonin "Nino" Scalia -- a.k.a. the Simon Cowell of the High Court. Biskupic, who has covered the Court since 1989, theorizes that Nino's flair for, well, flair, may have "roots in his childhood in Trenton and Queens."  No: Biskupic is not suggesting that Nino was traumatized by the experience of Growing Up B&T; rather -- as she explained to SCOTUSblog's Tom Goldstein -- as the only child in his nuclear and extended families, Nino "had the spotlight on him the entire time."  This blogress, for one, was tres tickled by the thought of Nino honing his razor-sharp wit, gift for showmanship, and operatic panache in front of a couchful of expectant relatives who, while waiting to be served an Italian feast, expect to be entertained, darn it. (We further deduce that the Clan Scalia probably never had a kids' table. No hiding behind baby talk for young Nino!)  Clerquette was also fascinated by Biskupic's revelation that, despite his initial resistance, Nino eventually agreed to sit for extensive interviews. What won him over? Biskupic's research on a topic of great interest to Justice Scalia -- to wit: Justice Scalia. While you're waiting for your copy of American Original, check out the podcast of Biskupic's interview with Goldstein (see link above, or find it at the iTunes Store), or this interview with NPR diva Nina Totenberg, the link to which includes an excerpt from the book. 

3) Given today's economy and the current reluctance of many to spend their hard-earned/non-existent bonuses on luxury goods, Clerquette suggests this stocking-stuffer for the sports fan-Groupie on your list: a membership in FantasySCOTUS.net, the newly minted Supreme Court Fantasy League. Recent law-school grad and self-described "big Supreme Court nerd" Josh Blackman created the site so that Groupies like you -- like us, dear readers -- can "play like the Tenth Justice."  The Rules, Blackman explains, are "simple": 

 For each case the Supreme Court grants cert, predict:

-The Outcome of the Case (Affirm or Reverse the lower Court)
-The Split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented)
- The Justices in the Majority, and the Justices in the Dissent

At the end of the Term, the Associate Justice who predicts the most cases correctly will be confirmed as the Chief Justice of the Fantasy Supreme Court League, and win a to-be-determined prize.

In true appellate fashion, memberships fees are three-tiered; they range from free (for students and the unemployed) to $10. If you're a betting man, woman, or Groupie, Clerquette says: Christmas has come early this year! Indulge! If you're searching for a gift that will keep on giving -- at least from October to late June/early July -- look no further! FantasySCOTUS.net will keep your favorite groupie busy, away from productive activity, and unable to engage in telephone conversations while formulating bets for months to come. Hey: at least there's no draft.  

Drop Clerquette a line with YOUR gift suggestions!  You can email me at [email protected], or find me on Facebook!

Court is in Session!

by Clerquette

Welcome back, Groupies!  How I have missed your virtual company, and how fervently I hope that you enjoyed a summer of lazy Sundays, cocktails at sundown, and the operatic spectacle of  Senate confirmation hearings for a brandy-new Justice. Clerquette also hopes that your collective appetites are whetted for what promises to be an illustrious first term for our newest Associate Diva Justice,  Sonia "From the Block" Sotomayor.

Not surprisingly, all eyes are on Justice Sonia, whose rollicking debut back in September may have raised the bar for court-watchers. At  her investiture, the Justista rubbed shoulders with the President, her new colleagues, and Ricky Martin, then celebrated by cutting the rug at the arguably non-spangly "Irish Channel" pub. The next day, the Justista appeared for the first time in her official capacity (along with some of the brightest superstars in the Highcourtosphere) to hear a pre-season argument in Citizens United v. FEC. Though the outcome of Citizens United could have widepsread ramifications in the overlapping worlds of politics, fundraising, and bad cable movies, how Justice Sonia will handle the attempted skewering of a fellow diva is, this blogress suspects, of not-inconsiderable interest to the court-watching public.

But ... more on all that later!  For now, dear Groupies, it's time to ring in the First Monday with a collective sigh of relief. The drought is over! Court is in Session! Check back throughout the day (and week) for updates on the Supremes (and other luminaries in the Article III constellation).  For now, we leave you with the new Official Supreme Court Portrait.  In Clerquette's humble opinion, someone neglected to tell the Justices to face forward and say "Marbury!" before snapping the shot.  

Thoughts?  Drop Clerquette a line at [email protected], or find her on Facebook or Twitter! 

 

Good thing the Supreme Court has its own gym!

By Article III Groupie

When Justice Sonia Sotomayor needs to work off all the rice, beans and pork she's consumed, she hits the gym. Alas, it appears that Her Honor's Equinox gym membership was canceled, after she apparently refused to show identification when trying to enter the premises.

A3G is with Justice Sotomayor: she's a frickin' federal judge, the closest thing this nation has to an aristocracy. Showing ID is for little people! 

Sure, Barack Obama showed his birth certificate identification when he visited Equinox health clubs during the campaign. But he's Article II -- ick, having to run for election, how déclassé -- and Justice Sotomayor is Article III, fabulous and life-tenured. 

Luckily, the SCOTUS has its own gym -- replete with a basketball court, aka "the highest court in the land." And Justice Sotomayor won't have to worry about being recognized at One First Street (where even the law clerks are recognized on sight by the Supreme Court police). 

  

Sotomayor v. Equinox Fitness: The Case of the Canceled Membership [New York magazine] (Gavel bang: Above the Law commenter.)

Judge Robert Takasugi, RIP

By Article III Groupie

Some sad news, this weekend from the New York Times:

Robert M. Takasugi, who as a boy spent most of World War II with his family in a California internment camp and grew up to become the one of the first Japanese-Americans to serve as a federal judge, died Tuesday in Los Angeles. He was 78 and lived in Montebello, Calif.

Read about Judge Takasugi's remarkable journey, from an internment camp for Japanese Americans to the federal bench, by clicking on the link below.

R. M. Takasugi, Pioneering Asian Judge, Dies at 78 [New York Times]

¡Hola, Jueza Sotomayor!

By Article III Groupie

It's official. Earlier today, everyone's favorite Wise Latina was sworn in as the nation's 111th Supreme Court justice.

Justice Sotomayor will be the first Hispanic and the third woman to serve on the SCOTUS. Justice Ginsburg once again has company for her trips to the ladies' room at One First Street. Justice Scalia now has competition for being the most aggressive questioner on the high court bench. Does anyone know what Justice Sotomayor has done -- or is planning to do -- on the law clerk front?

If you know, please email A3G (subject line: "Sotomayor clerks"). ¡Gracias!

Sotomayor Sworn In as Supreme Court Justice [New York Times]

Smells Like New Justice: Wise Latina Woman Confirmed, 68-31

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Welcome to a more empathetic world, dear readers!

If you thought that Senatorial discourse peppered with self-consciously rolled 'rrrs,' discussion of the apocryphal "Empathy Standard," and affected heartbreak over the plight of certain New Haven firefighters was a thing of the past, today's debate preceding the vote to confirm Sonia Sotomayor probably filled your heart with gladness. In their brief comments on the Senate floor, luminaries from both sides of the aisle lauded/lamented the apotheosis/ignominy of l'affaire Sotomayor. As might be expected, Democrats revisited her humble beginnings in a Bronx 'housing project,' her 24-mile-roundtrip walk to school in the snow with no shoes, and her long and extraordinary history of applying law to facts. Republicans bemoaned SS's fear and loathing of impartial decision-making, the imminent disappearance of our Second Amendment rights, and the dawn of a new era of judicial activism. 

Democrats responded with talk of the "long, grueling confirmation process" [um, 10 weeks?] and SS's beatific equanimity during the Judiciary Committee hearings, which occurred after she had "just broken her leg."  Republicans expressed disappointment in POTUS's decision to nominate an emotional decision-maker, a willy-nilly empathizer, a woman with a "fully-formed" judicial philosophy that practically LOLs at "blindfolded justice."  And, somewhat nihil ad rem, Senator Leahy seized the opportunity to express dismay at certain of the 8 male SCOTUS justices who laughed, during the recent argument in Redding v. Safford Unified School District, at the notion of a young, female student being strip searched. Dirty justices! This blogress wonders: did Sen. Leahy think of having audio transcripts scrutinized in order to determine whether it was conservative laughter? Perhaps the best part of the show, however, was Senator Al Franken's seat at the helm, as the Presiding Officer, during much of the floor debate.  If one were to listen without visuals, one could be carried along by the belief that something funny was about to happen, or that someone would suddenly shout "Live from New York, it's Saturday Night!"

In the end, the Democrats' smirky pride in their nominee, and her forthcoming confirmation, could not be subdued. "You asked for fair and balanced," they seemed to say to their colleagues, "and we gave you a fair, balanced member of a key demographic, whose members you now have an opportunity to curry favor with before the next election!"   After all had spoken, the Senators returned to their teeny antique desks to sit quietly and voice their votes.  Although Clerquette could not be entirely certain, she believes that there may have been attempts to pull and/or dip in inkwells any available long hair, and note-passing between Senatrixes Boxer, Feinstein, and Cantwell.   

This chart, courtesy C-Span, shows a breakdown of the vote. But, for a delightfully spangly graphic, showing notable quotes from defiant Republicans, their margin of victory in the last election, whom their constituents voted for in the Presidential race, and whether they prefer smooth or chunky peanut butter, check out this chart in the New York Times. 

Solicitrix General Elena Kagan: What Shoes Will She Wear to Court?

By Article III Groupie

What should a female Solicitor General wear to the U.S. Supreme Court? It's a hot-button issue. For some excellent analysis, see Dahlia Lithwick.

The topic of SCOTUS-appropriate attire for a Solicitrix General keeps coming up. It popped up yesterday in Solicitor General Elena Kagan's interview with Chief Judge Alex Kozinski, at the Ninth Circuit Judicial Conference in Monterey. From an attendee:

[T]he solicitor general was just asked what she will wear at the Court, and she declined to say. But Judge Kozinski followed up to ask -- expressly on your behalf -- whether she would be wearing Jimmy Choos. She said "no," because the heels are too high to stand in while she argues.

Thought you'd want to know this breaking fashion news!

Indeed. With respect to SG Kagan's weakness for comfortable footwear, A3G is disappointed but not devastated. Elena Kagan in Jimmy Choo? That would have been faboo. But Ted Olson or Paul Clement in Manolos? Now that would have been a sight to behold. [FN1]

You can read more -- about this specific exchange, as well as the Kozinski-Kagan conversation more generally -- over at dagblog.

[FN1] For those of you who view references to Jimmy Choos or Manolo Blahniks as clichéd, A3G's friends at Fashionista recommend Nicholas Kirkwood. Check out the dizzyingly high heels, plus the distinctive platform jutting out in front. Aren't they to die for?

The 9th Circuit Judicial Conference: Chief Judge Kozinski Chats With Solicitor General Elena Kagan [dagblog]
Time to do away with morning wedding attire at the high court. [Slate]

The Sotomayor Confirmation Hearings: Free at Last

by Clerquette

You can email the above-signed blogress at [email protected], or find her on Facebook and Twitter!

Like much of the blogosphere, Clerquette found herself suffering from hearing fatigue by Day Four of the Judiciary Committee's waltz through SS's life, times, and respect for stare decisis.  Alas, dear readers: the grotesque kabuki that defines such hearings is too much for even the most devoted Article III groupie. 

Clerquette also hastens to add that, for better or worse, Judge Sotomayor gave her detractors very little to work with. The WLW issue was, in fact, thin gruel, and (in this blogress's humble opinion) left most of us wishing for a rhetorical sundae topped with something rhetorically hot and gooey to fill the hours of questioning. When, in response to Lyndsay Graham's questioning, SS finally declared that she "regretted" making the WLW comment, Clerquette prayed that wondered whether this confession would bring full absolution and permission to move on -- for all the rest of us, at the very least.

  

Between WLW-Gate and the fact of SS's humble upbringing in a Bronx apartment complex, 

descriptions of which  grew increasingly Dickensian as the hearings progressed, the questioning took on a distinctly Rain-Mannish quality as the days wore on.  ("Wise Latina Woman. Bronx Housing Project. Wise Latina Woman. We're counting cards. Counting cards. Gotta watch Jeopardy at five!") Accordingly, Clerquette was surprised to find an article, in the ABA Journal, entitled "Top 10 Quotes From the Sotomayor Hearings." Were there ten quotes that were solid gold, the stuff of a "top ten list"? The folks at the ABA are professionals, and if they say so, it must be true.

Check back later today or tomorrow for a quick spin through Day Four, a wrap-up of the week in hearings, and any other judicial gossip this blogress can muster. Feel free to drop me a line, Groupies -- especially if you have any insight re: Sotomayor's prospective replacement on the Second Circuit. SS will be voted out of Committee on Tuesday, and the full Senate will weigh in shortly thereafter.  That means some vacant real estate at Pearl Street ... who will occupy the diva's former digs?

The Sotomayor Confirmation Hearings: Bottom of the Third

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

2:29: Clerquette joins the post-lunch session in progress. Sen. Specter has been having his way with SS for a while ... but who are we kidding? The afternoon session is about Al Franken, and whether he will throw the bored spectators a comedic bone.

In the meantime, Specter explains why cameras in the courtroom are a must. As we know, Justice Souter (and his hypothetical dead body) were vociferously anti-camera; but with him out of the way, what, if anything, should stand in the way of the what would basically be the BEST reality show EVER? 

2:36: Senator Franken takes the floor. He was delighted to hear that SS loved Perry Mason because -- guess what? -- HE loved Perry Mason, too. OMG. But, says Franken, he was surprised that the show inspired SS's decision to become a prosecutor, since the prosecutor, Berger, always lost. Her identification with him (he posits) shows her gritty determination. Clerquette hastens to add that SS may have believed, based on Berger's performance, that prosecutors have truly awesome job security.

Franken wants to talk about internet regulation, and the importance of access to the internet. Clerquette sincerely hopes that Franken will not refer to internet access as a right, or worse, "a fundamental right." Mercifully, he sticks to net neutrality. 

Now: on to judicial activism, which Sen. Franken asks SS to define. SS responds by expressing her disdain for the term. They take a spin through the voting rights act, and SS declines to express her view. Franken seems testy.  He wants answers, dammit!  He waited six months to join the Senate, during which he worked up an unquenchable thirst for definitive responses!  Don't mess with him now! 

After a brief foray into abortion rights (to which he receives the standard answer), Franken asks the all-important question: what was the one case that prosecutor Berger won? SS says she can't remember, to which Sen. Franken responds,  "didn't the White House prepare you?" Finally! His first Senatorial joke. Sen. Leahy adds that the Committee will not hold her inability to answer the question against her. Aw, Senator Leahy; you're funny, too.

Whereupon the Committee proceeds to a closed session. 

The Sotomayor Confirmation Hearings: Top of the Third

by Clerquette

You can email Clerquette at [email protected], or find her Facebook or Twitter!

9:30: Sen. Leahy opens today's session, sounding slightly less burbly. Judge Sotomayor is finally dressed like a New Yorker, in a black suit. 

9:34: Sen. Cornyn opens by reminding SS of that time, at band camp, when he told her that, by God, she would get an up or down vote if he had anything to say about it. Clerquette thinks that someone (ahem) wants to be rewarded with a thank-you and a Fudgie the Whale cake. Determined to leave no stone unturned, he turns to SS's WLW-ism. Did she really think that she could make a better decision than an old white dude? Did she really think that her rhetorical flourish had fallen flat? 

Although SS probably wishes she could answer with a simple "See id.," she handles the question deftly. SS seems particularly sassy today; Clerquette thinks she has her "bench vibe" on. 

Sen. Cornyn questions SS about a comment that the law is, at times, "in flux."  Does this mean that judges must step in and make something less ... fluxy? SS responds by reassuring him that judges do not, of course, make law [except -- as one of Clerquette's law school professors would say -- when they do]. After she answers (in a manner too substantive and meaty to be truly satisfying), the Senator grills her about her statement that "physiological differences" might affect the way judges approach their task. Might she have been referring to ... being a woman? A wise, Latina, woman? SS's answer is too abstract for Cornyn's tastes, and he tells her that he can not reconcile her "physiological difference" theory with her "fidelity to the law." He appears to think, but does not say, "but whatever."

Next, Cornyn turns to an old favorite: abortion. He wants to know whether SS was asked, by the White House vetting team, about her views on abortion. Nope, she says; she wasn't. He asks her about [former partner] George Pavia's comments about her view on abortion. SS seems annoyed; she doesn't recall having discussed her views on abortion (or other issues) with Pavia, and assures the Committee that he has not read her jurisprudence. Why? Because he's a corporate lawyer, and corporate lawyers tend to have a rather, um, selective interest in actual law. Have we witnessed an early benchslap? You go, girl! 

He finishes with a waltz through Ricci, taking SS to task (again) for the panel's per curiam ruling. Sloppy, sloppy, he seems to say. Hey, SS responds: Per curiam happens.

10:00: Sen. Cardin takes over, tossing SS a few softballs. He gives her the opportunity to explain that she is not a big, mean, bully ... just one, little ol' member of a hot bench. (With a ten minute limit on oral arguments, which makes lawyers MAD!) Then: on to civil rights, and SS's interest in "giving deference to Congress," especially where civil rights are concerned. (Clerquette thinks the Senator may have stumbled on a point perfect for inclusion in SS's Match.com profile: "I enjoy white Saabs, baseball, and deferring to Congress, especially where civil rights are involved. Also, fine wine and Fellini films.") 

After a foray into Deference 101, Cardin turns to diversity. Might we finally tackle the paradox of composing a diverse Supreme Court, but then taking a nominee to task for identifying her own diverse qualities? Nah. But we will talk about the "role of diversity in society." Huh? Maybe Cardin considered narrowing it down a bit, but he clearly decided not to. SS uses the word "harkens," and then apologizes for her recent overuse of the word "harkens." Clerquette is utterly charmed by her awareness of the need to avoid word repetition. They cover other hot topics, including the importance of pro bono work. 

10:37: Sen. Coburn begins by apologizing for outbursts, in the chamber, by vocal pro-lifers. Sure - they can get a little overexcited, but one shouldn't judge all pro-lifers by such a wacky bunch.

Coburn decides to move away from the limp, dead horse of SS's extrajudicial speeches, and on to abortion. Let's talk, he says, about what you would do if I were 38 weeks pregnant and found out that my baby had spina bifida. Ignoring the horrific image of Sen. Coburn's pregnancy, SS asserts that she cannot answer in the abstract. He throws her another hypo designed to elicit her opinion re: viability. If we have viability at 21 weeks, he says, shouldn't that help further erode the framework of Roe v. Wade judges consider the ramifications of advancing technology? SS says that she cannot talk about what "should" be done; only what the courts have done, which is precedent. Which, unlike one's empathetic, womanly urges, must always be followed.

Next: The Second Amendment, and whether SS believes that the right to bear arms is a "fundamental" one. SS notes that, under [the Supreme Court's decision in] Heller, the right is not "fundamental," and under [the Second Circuit's opinion in] Maloney, it is not incorporated. As she did yesterday, SS offers the (somewhat motherly) qualification that, just because the right to bear arms is not "fundamental" in the technical sense, that does not mean that it is not very, very important and special in its own way. You get a gold star, Second Amendment! Yay! Alas, SS notes, she is helpless before the all-consuming power of precedent, and can offer no opinion as to whether gun rights should get a little more Constitutional love. 

Coburn makes several attempts to elicit SS's own belief about whether there is a personal right to bear arms. She dodges. But, in the course of explaining state laws concerning self defense, she constructs a hypo in which she is physically threatened, but instead of reacting immediately goes home to fetch her firearm. She quickly adds that she is speaking hypothetically, and would never actually go home and get a firearm, which she does not have anyway. As she is explaining that she wants to avoid any misunderstanding (a la WLW?), Sen. Coburn interrupts to say that, if she did, in fact, run home and get her gun, she "would have some 'splainin to do." Ouch. Clerquette wonders whether Coburn will later regret having responded to the wise Latina woman in the parlance of a slightly ditzy woman's unwise Latino husband. 

They take a quick spin through the topic of Foreign Law: Friend or Foe? SS again swears that, while she might read and consider foreign law (in the same way that one might read The Little Prince, for example, or a translation of Babar) she would never interpret the Constitution based on anything so ... foreign.  He passes the baton to the fabulously named, though slightly lispy, Sen. Whitehouse.

11:09: Sen. Whitehouse tells SS that he recently got "goosebumps" thinking about the wonder of her nomination. Then he says "goosebumps," or its idiomatic equivalent, in Spanish. SS laughs heartily. Senators are funny!

Whitehouse (who must have fantasized about running for President, at some point) takes SS through scintillating topics such as: the jury system, law enforcement, the warrant requirement, and privacy rights.

Whereupon the Committee adjourns for a fifteen minute break. 

11:55: Hearing resumes with some Senatorial levity from Senator Klobuchar, who commends SS on her patience and delights the crowd with a story about having encountered Mama Sotomayor in the bathroom. (Mama, it turns out, had plenty to say.) Klobuchar's own mother has apparently been sending her messages like, "Sen. Feinstein was brilliant. What are YOU going to say?" Clerquette is charmed by this anecdote, which illustrates the universal dissatisfaction of mothers.

Sen. Klobuchar, a former prosecutor herself, wants to chat about SS's experience as a prosecutor. They chat about duty, difficult charging decisions, and Perry Mason. The Senator addresses the concern that SS is will make "emotional" decisions, and, like Schumer, delves into cases intended to demonstrate SS's cold, hard, non-empathetic fidelity to the law. Clerquette wonders if Schumer and Klobuchar were inspired by [former Judge and UTR favorite] Michael Chertoff's suggested question for Sotomayor, in this NYT Op-Ed piece. (FYI, Sec. Chertoff also covered the foreign law issue. Thanks, Sec. Chertoff!) 

12:25: Sen. Kaufman takes the floor. Rather than discussing SS's prosecutorial background, he would like to talk about her career in private practice. Yawn. SS offers several lofty reasons for deciding to go into private practice. She does not mention "the desire to make more than the minimum wage salary earned by public servants." SS tries to make grain trading contracts and dealer relations (albeit Ferrari's) sound exciting.

Sen. Kaufman takes SS through a variety of topics related to commercial practice, peppering his questions with statements like, "I am so glad we're talking about commercial law!" Clerquette wonders how many people have gone to lunch early. When SS veers into Chevron deference, Clerquette wonders how many people have stayed awake. 

Whereupon the Committee breaks for lunch. The hearing will resume at 2. 

Liveblogging the Confirmation Hearings: Second Inning

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

We're back, Groupies! The above-signed blogress will be liveblogging the confirmation hearings again today. Stay tuned, and remember to refresh your browser (and scroll down) for the latest updates.

9:42: Judge Sotomayor has donned a delightfully flattering red suit for her day in the hotseat.  Better yet, in stark contrast to yesterday's wooden demeanor, she appears ready to rock. 

Senator Leahy kicks off the festivities. First, he makes a half-hearted foray into Ricci v. DeStefano Then asks SS whether she would decide the case differently today, to reflect the Supreme Court's recent ruling in the case. Did that just happen? 

9:53: Sen. Leahy raises the WLW issue. Then he throws it in the air like a shuttlecock, and gently tosses it to SS. For the record: SS does not believe that any ethnic group is possessed of superior wisdom and judicial ability. You heard it here first.

9:57: Moving right along, Sen. Leahy turns to the Second Amendment. Specifically, he asks, does SS have an open mind with respect to whether the Second Amendment guarantees a fundamental right, and is applicable to the states? SS explains that gun rights are important, but not technically "fundamental." In the course of answering, she cuts Senator Leahy off. Ah, Nino ... you may have met your match. 

10:04: Next: the Commerce Clause. SS affirms that she is all for it. Senator Leahy thanks her.

10:05: Sen. Sessions takes the reins, and immediately compliments SS for asserting her fidelity to the law. But as Sessions giveth, he taketh away, and he laments that SS's statement is contradicted by 15 years of wise, Latina judicial gunslinging. So, he asks (affecting a "gotcha" tone evocative of law school trial advocacy), what does SS really think?

SS responds snippily, telling Sen. Sessions that her unfortunate comments about judicial policy-making, taken in context, make clear that she does not believe in judicial policy-making. As for whether she is truly impartial, SS insists that she is. Doing so requires a delicate stroll down the fine line between "fidelity to the law," and acknowledging that she is, in fact, a jurist with the perspective of a wise Latina woman. Not that there's anything wrong with that. This blogress wonders how much more strained this debate, about the role of life experience, can get. Can we all agree (for example) that Justice Scalia and Justice Ginsburg probably have different points of view because they're ... different?

10:22: Sen. Sessions turns to Ricci. Oddly, he asks SS if the fact that the firefighters were the victims of discrimination was "one of the facts she chose not to see." Clerquette wonders what answer Sessions hoped for, but is reasonably certain that he will be disappointed. 

Sessions devolves into a confusing, and somewhat bizarre, review of Ricci's procedural history, followed by a slightly more confusing allusion to Adderand. He chides SS for the panel's per curiam opinion in Ricci, and the Court's decision to deny rehearing en banc. Then he asks SS whether the panel was "fair" to Frank Ricci and his fellow firefighters. Tread carefully, SS! No one likes a firefighter hater.

10:38: Sen. Kohl steps to the plate, and opens with a hard-hitting question: Could reasonable minds differ as to the appropriate outcome in Ricci? Well? Could they? What will she say?? Sen. Kohl is relentless; he follows by asking SS whether her low reversal rate proves her commitment to applying the rule of law. Another nailbiter! Next, Kohl urges SS to pick a favorite from amongst the sitting justices. She politely declines, instead choosing Justice Cardozo. (BTW, he was wise and impartial, and some suspect that he was also Hispanic.)

Asked to opine re: Bush v. Gore, SS looks for the silver lining: election reform. (Good punt, SS!) Kohl speeds through Kelo (Takings clause), the general right to privacy, and Roe v. Wade. SS sounds irritated. Perhaps Her Honor is not enjoying the inane, though friendly, questions? 

Whereupon a brief recess is called.

11:28: Sen. Hatch, who is viewed as a possible Committee vote in SS's favor, begins with a crowd-pleaser: the Second Amendment. Hatch asks SS whether she believes that the right to bear arms is not a fundamental one; SS responds irritably, insisting that it is an open issue upon which it would be inappropriate to opine. She is clearly referring to cases pending before several circuit courts of appeal.  "So," Hatch says, "you admit that it's an open issue?" SS looks puzzled, as, Clerquette suspects, do many lawyers within earshot. They banter about incorporation, and whether the Second Amendment applies to the States. Hatch tries to corner SS into agreeing that rational basis is a "permissive standard;" unwilling to commit to Hatch's [somewhat opaque] point, SS appears flustered. Each time Hatch says "permissive standard," SS seems more rattled.

Hatch changes gears. Time for Ricci! Why the per curiam opinion? he asks. Why didn't Judge Cabranes know about the opinion until he read about it in the newspaper? If it was a case of first of impression, what precedent did the panel follow, and why didn't they explain it more thoroughly?  Hatch jumps from point to point. SS follows, visibly cranky and slightly confused.

12:00: For reasons that remain unclear, Miguel Estrada, the red herring of yesterday's hearing, has come up again. Sen Feinstein wonders how Miguel Estrada became  part of the confirmation pricess. 

12:06: Sen. Feinstein asks for a brief tour of judicial precedent. Clerquette feels suddenly nostalgic for law school.

(After a break, we rejoin the hearings already in progress)

3:15: It appears that one can miss several hours of hearing juiciness and be no worse for the wear. We rejoin the hearings in progress, and find John Kyl giving SS the business about the WLW issue.  Ah, the more things change ... 

Kyl asks whether extrajudicial speeches about women and minorities on the bench reveal SS's belief that women and minorities (i.e., wise Latina women) are better decision-makers. SS sounds as though she is getting tired of talking elliptically about life experiences.  She tells Kyl that, in "decision after decision after decision [etc.]" she has made it clear that her decisions are not based on biases. Despite a[nother] long, tactful disquisition about the richness of life experience, Kyl is not completely satisfied. He wants to know whether SS believes that race, gender, and ethnicity make her judicial decisions better than those of an old white dude, and focuses on a speech in which SS said that, if enough women and minorities occupied the bench, the law would begin to change. 

Gotcha? Nope: still not. After a painstaking explanation of the differences between men and women, SS falls back on the ol' "I guess my rhetorical flourish failed." Could this incident be know, from this day forward, as RhetoricGate?

Whereupon the hearing is adjourned for a ten minute break.

3:54: Sen. Schumer takes the floor. Questioners have been focused on SS's alleged sympathies and biases, he says, but the Chuckinator wants to talk brass tacks. Specifically, he would like to discuss her long, illustrious record. He intends to prove that she will not "put her experience and empathies" before the rule of law.

As a preliminary matter, Sen. Schumer asks, can SS promise to be fair and balanced? SS says she will. Do you swear, he presses on, not to let your empathies displace the rule of law? She will. He moves on to specific cases. First: In re Air Crash off Long Island. Did SS have sympathy for the plaintiffs in the case, who were the survivors of those killed in the crash? If you cut her, does she not bleed? 

SS confirms that, yes: like the world at large, her heartstrings were plucked. Nonetheless, she did not feel that the plaintiffs had a remedy under the law. Ah ... Clerquette sees where this is going, Chuckinator. Schumer is making the case that SS is non-empathetic (even when the parties in question are the survivors of people killed in a plane crash) and, a fortiori, impartial.

Next: Washington v. Rockland County, a case in which the plaintiffs were law enforcement officers. SS, like any good American, loves heroes like law enforcement officers, right? Yet she ruled against the officers. Once again, folks, this shows that SS is no creampuff. She can be a coldhearted WLW if need be.

We move on to Boykin v. KeyCorp, in which an African American woman was denied a home equity loan. Did SS sympathize with the dissed putative homeowner? Well, of course she did, but the woman's claim was untimely. Too bad! Empathy is no match for the formidable enemy known as "the statute of limitations."  

Schumer moves on to Pappas v. Giuliani, in which the plaintiff was "repugnant," rather than cute and fuzzy. Pappas was dismissed from the police department for distributing "patently offensive," hateful, and racist, materials at work. Nonetheless, SS was able to put aside her feelings (which were non-empathetic, in this case) and stand up for the nasty little bugger's right to engage in hate speech.  So unpalatable ... but so impartial, SS.  (That, dear readers, is judicial hotness.)

And how about a group of asylum cases? Schumer asks. Well done, Chuckinator: Asylum cases are a perfect exemplar, a crucible for "greater subjectivity." They feature sympathetic plaintiffs, murky law ... in other words, all of the ingredients for a delightful dish of judicial activism.

But none of these factors chipped away at SS's magic shell of impartiality. No matter what her nougaty, wise, empathetic heart told her to do, she doled out justice with cold, hard efficiency. Schumer asks SS to explain her approach to these cases, blinking to communicate, in code, that this might be the opportune moment to champion Honduran immigrants. Mercifully, SS glides through an explanation of the byzantine immigration/asylum appeals process. At one point, she threatens to stray into substance, but the Chuckinator steps in. In short, he says, do these cases show that, in SS's courtroom, the rule of law is king? Yes, SS says humbly. Sounding nunlike, she mentions her "fidelity" to the law. She won't leave home without it.

Next, Schumer asks about the role of foreign law, the doctrinal borrowing of which is downright un-American. SS answers that she would never rule according to foreign law, which is non-binding. And, Sen. Schumer says, you would never base a decision on an icky non-binding source, would you? (Of course she wouldn't!) To hammer home his point, he mentions that Nino once used no fewer than five dictionaries as sources for different definitions of the word "modify." His point: the dictionary isn't binding, but Nino - the ultimate textual adherent - used it anyway. Like the dictionary, SS explains, foreign laws are just "tools." Tools, that is, for making wholesome, all-American decisions.

4:22: Senator Graham takes the floor. He tells SS that she has come across, in the hearings, sounding awfully like a strict constructionist. But in her extrajudicial speeches, he posits, she sounds tres activist. He wants the real Sonia Sotomayor to stand up. His pronunciation of her name, "Sodomyor" conjures the image of an American tourist in Paris, asking directions to the Loovrah.

Her speeches, Graham says, have been problematic. FYI, he tells her: don't become a speechwriter if "this law thing doesn't work out." FYI, Sen. Graham: don't become a condescending jerk if your candidate doesn't win the election. Whoops! Too late.

Graham wants to talk about legal realism. He asks SS to explain the concept, but then interrupts her to note that it's "kinda touchy-feely." SS tells him that she would not consider herself to be a disciple of legal realism. Well, then, Graham says: are you a strict constructionist? SS does not want to be labeled. Clerquette notes that the first judicial philosophy was too soft; the next was too hard. Will the third one be juuuuust right? Alas, Graham asks next whether SS is "an originalist." Maybe not.

On we go, to whether the Constitution is a living thing. Well, SS says carefully, it is immutable, to the extent that it has lasted for 200 years. It "does not live" she says, other than to be timeless. Clerquette smells a soundbyte! SS concludes that the Constitution has not changed ... but society has. 

Graham asks SS what the best way for society to change might be. Clerquette thinks that perhaps the Senator should discuss this broad, sprawling topic later, over a joint illuminated by a lava lamp. Mercifully, he veers quickly into whether the Constitution mentions abortion. SS tries to answer the question, but walks into a trap. Abortion is not mentioned specifically, she says, but the Constitution makes broad provision under the due process ... 

"Aha!" Graham says (or maybe not, but he definitely wanted to): that brings us to SS's speeches, which indicate a downright mavericky desire to use these "broad provisions" to make new law, rather than leaving that task to the big boys, or at least the elected ones. 

 Apropos nothing, Graham announces, "I like you." Then he offers the choice fruits from SS's review in the Almanac of the Federal Judiciary, including the pronouncements that she is "a terror on the bench," that she is "temperamental, excitable, and seems angry," "overly aggressive," "not very judicial," "out of control," "nasty to lawyers," and "can be a bit of a bully" (to name a few). He asks her why she is such a big, mean bully.

Sounding almost girlish, SS says that she asks some "tough questions." The Second Circuit is a "hot bench," she explains, and litigants are only given ten minutes for oral argument. Many attorneys find this "difficult and challenging."

"If I may," Graham responds, "they find you difficult and challenging." Oh, snap! Clerquette waits with bated breath for SS to open up a can of judicial bully on Graham's ass. Instead, she answers irritably, but calmly. 

He moves on to the WLW situation, though not before a quick detour through Iraq, Afghanistan, and terrorism. (Relevance: unknown.) If you wanted to change Iraq or Afghanistan, he says, women might be helpful. But here in America, the thought that women and minorities might change the rule of law as we know it is downright disturbing. Again, Graham asserts that, if he tried to inspire someone by claiming that he would make a better Senator because he is a Caucasian male, he would have been in deep doo-doo. Putting aside the fact that, as a white man and a Latina woman, Graham and SS may not be similarly situated (sorry, Senator: analogy fail) Graham actually sounds a little ... jealous.

Moving on to September 11, 2001, Graham asks SS what Islamic fundamentalists think about women. (Nothing good). Are we at war? he asks. (Yes, we are.) Does SS know anything about military law? (Not really.) Are people out there right now, "plotting our destruction"? (Yes, probably.) Where is this going? Well, dear readers: straight to the detention of enemy combatants. Graham takes a rain check on further questioning.

Now, on to the Puerto Rican Legal Defense Fund, and its position on taxpayer funded abortions. SS says that she never read the briefs, in which, according to Graham, the organization argued that the denial of public funding for abortions was akin to slavery. Using the Fund as a proxy, Graham probes SS for her views on abortion (as a public health issue) and the death penalty. They flirt with the issues, and agree (in a manner of speaking) to revisit them at a later date. SS looks unenthused.

4:54: Senator Durbin, the Majority Whip, takes over. SS is visibly relieved, and takes a moment to laugh heartily at a Senate-caliber joke. Durbin cuts to the chase: WLW-Gate. It's not so bad, Durbin says, if you think about all the boneheaded decisions that [ostensibly] wise white men have made. See? Problem solved.

Durbin takes SS for a mild spin through the death penalty. SS restates the law, which she is, of course, committed to following. Durbin asks her to opine on the disproportionate impact of the death penalty on racial minorities. SS discusses a case in which the defendant claimed that the prosecutor's decision to pursue the death penalty was racially motivated, which she explored in a hearing. Of course, she made a narrow determination based on the facts and law before her. Duh. 

Durbin moves along to the crack/powder cocaine sentencing disparity. Although he voted for it, he now regrets it. How does SS feel, he asks, about the issues of "race and justice" presented by the Sentencing Guidelines? SS concedes that, though it must be "unsatisfying" when a nominee does not "engage directly" with the issues at hand, Durbin probably can't get no satisfaction. In the case at issue, she followed the law (which did not then contemplate the safety valve exception). What's a girl to do? One can only. Follow. The. Law.

Of course, the Guidelines are no longer mandatory. Clerquette wonders: are we really going to get into this?? A thorough discussion of the Guidelines could take this hearing into extra innings. Fortunately, SS declines to discuss the issue, begging off because it remains in play. Bless your heart, SS. Durbin finishes with a quick foray into immigration, and whether the process needs to be streamlined. Simple answer, dear readers: yes.  Can SS go home and put her lame foot up now?

The Sotomayor Confirmation Hearings: Welcome to the Jungle

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

At long last, Groupies - the confirmation hearings have arrived!  The theater, the spectacle, the longwinded speeches, the chance to watch the sausage being made (or at least thinly sliced) ... what's not to delight in? Clerquette hopes you've had some time to tune in, and reminds you that you can live, or relive, the magic with our liveblog coverage of the hearings here and here .

If you happened to miss the hearings, allow Clerquette to summarize them thus, in three short words: Wise Latina Woman. Yes, dear readers: Wise Latina Woman ("WLW") was the phrase of the day, and may join "bailout," "too big to fail," and "Yes we can!" in the lexicon of horrible overuse by day's end.  Having little else in the way of seamy fodder, the minority has chosen to focus on the dangers of judicial wiseLatinawomanism, and all that it implies ... and, as became clear over the course of the hearings, what it implies (quite simply) is judicial activism.  Indeed, WLW-gate appears to have provided the crucible for determining whether Judge Sotomayor is a latent racist, a hater of white men, and a jurist in the thrall of the demon known as "empathy." This is, admittedly, thin gruel -- perhaps too thin to sustain several days of hearings. 

Some Senators (you know who you are, Senator Cornyn) made vague, but still hyperbolic, references to the danger of both judicial activism and the undesirable quality known as "empathy"). Others delighted the dorkiest spectators among us, including Yours Truly, with forays into the substantive. Notably, Sen. Arlen Spector complained about the decline in cert petitions granted, and Sen. Klobuchar expressed her intent to delve into SS's opinions on the Fourth Amendment, the Confrontation Clause, and sentencing law and policy.  (Why the Fourth Amendment? Why the Confrontation Clause? Who knows. Hey: it sounded good.) 

At the break, Sen. Graham's remarks, during which he announced that confirmation was guaranteed as long as SS could avoid a "meltdown," were much discussed. On CNN, an overly-tan Jeffrey Toobin fumbled with a complicated interactive touch-screen graphic, referred to as the "Magic Wall," in an attempt to explain Ricci v. DeStafano.  Using the Magic Wall, Toobin could flip through tabs marked "Topic," "Issue," "Ruling," and "Outcome," but he appeared somewhat intimidated by the apparatus. Indeed, the Magic Wall had the creepy quality of a law school IRAC brief that had grown, Seymour-like, and gotten its own Facebook page. Incidentally, Ricci himself will testify (as a minority witness) this week at the hearings. Why? Because he's a firefighter, and anyone who rules against firefighters is a terrorist ... an empathetic, wise, Latina terrorist.

After the lunch break, things proceeded quickly. (Sen. Leahy indicated that he wanted to end the session early because SS might be in pain due to her casted ankle.  Clerquette suspects that 9, and possibly 18, holes beckoned certain committee members.) The crowd waited breathlessly for Al Franken to speak, and, secondarily, for SS's remarks. When Franken finally took the floor, this blogress heard the collective intake of breath as a chamber full of spectators waited for him to say something funny. "Drop the funny bomb!" they seemed to plead wordlessly. Franken declined, sticking to an uneventful round of shout-outs and a few heartfelt words about how seriously he takes Senatorhood. Unspoken was the sentiment, clear from his body language, that Norm Coleman could suck it. The post-show consensus: Franken was unfunny. From Wolf Blitzer to NPR, Franken was panned for his unfunniness. Poor Franken.

Finally, Sotomayor spoke. She seemed visibly relieved at the chance to tell her own, beautifully inspiring story. In her brief remarks, she pronounced her "fidelity" to the rule of law, her respect for the Constitution, and her commitment to impartiality. Since, however, she did not deny that she was a wise Latina woman (and therefore better able than crusty white men to determine the appropriate outcome in a given case), the inquiry into her pernicious brand of wise, Latina wisdom will resume tomorrow. 

Join us for continued liveblogging at 9:30 tomorrow!

Liveblogging the Confirmation Hearings: Bottom of the First

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Welcome back, Groupies! The above-signed blogress can hardly wait to see what the afternoon holds ... more slavish praise for Judge Sotomayor's humble beginnings? More debate about the merits of empathy? More, and more technical, sports analogies? Al Franken? We hope you'll check in with us throughout the day. Keep refreshing your browser, and scroll down for the latest news. 

2:04: The soldiers have returned from lunch.  Expect intense head-nodding to set in around 3:22. In the meantime, Sen. Amy Klobuchar (D-MN) discusses the modest roots of past Supreme Court Justices, for which this blogress is immensely grateful. (The Nancy Drew story is dangerously close to turning has become unbearably treacly, friends.) Klobuchar makes reference to a few particularly delightful Supreme factoids, such as Justice O'Connor's early life on a ranch (where she rode horses, branded cattle, and presumably weighed in on tough cases, like whether beef was, in fact, what was for dinner, or under what standard pork could be considered "the other" white meat).  Sen. Klobuchar makes some "it takes all kinds" remarks about the richness and diversity of - gasp! - the Senate Judiciary Committee itself. By way of illustration, she mentions that Senator Hatch is a fervent devotee (and writer of) gospel music, while Senator Leahy is an inveterate fan of the Grateful Dead. Is it Clerquette's imagination, or did Amy Klobuchar just juxtapose, with crystal clarity, the hopeless stodginess of the Republican party and the slightly crunchy coolness of the Dems?

Sen. Klobuchar focuses on the accomplishments of women (i.e., Supreme predecessors O'Connor and Ginsburg) and, in this blogress's opinion, strikes the right note -- less "wise Latina woman" and more "I am woman, hear me roar, express my understanding of frontline law enforcement, and opine on the Fourth Amendment, the Confrontation Clause, and Sentencing law and policy. You go, girl!

2:16: Senator Ted Kaufman (D-Delaware) breaks new ground by praising Judge Sotomayor and her splendiferous apotheosis to the status of Nominated One, and dances delicately around the issue of government regulation of big businesses. As the Senator from Delaware, Mr. Kaufman, couldn't you have chosen something a bit less controversial to your constituents, like abortion?

2:19: The famously crotchety Senator Arlen Specter (D[ish]-Pa)takes the floor. He laments the shrinking docket of the High Court, and launches into a deliciously nerdy disquisition on circuit splits and the topic of standing: the silent killer [of cert petitions]. Specifically, Sen. Specter asserts, the court shoulda, coulda heard a recent warrantless wiretapping case. Their failure to do so seems to fill Sen. Specter with genuine disappointment. Clerquette wonders if the Supremes feel like a bunch of meanies. Specter asks whether Justice Sotomayor would allow cameras in the courtoom. 

2:30: Senator-delayed Al Franken, the gentleman from Minnesota, takes the floor. Sen. Franken takes several minutes to greet his new colleagues. Everyone (this blogress included) appears to be waiting with bated breath for him to say something funny. C'mon, Al. Say something funny. Just do. Al? Alas, in the midst of Sen. Franken's maiden voyage into loftyland, there is a kerfuffle somewhere off-camera, in the back of the room.  Sen. Leahy interrupts abruptly and asks the police to remove another heckler. Was there a Stuart Smalley comment?

Sen. Franken is slightly rattled.  He rebounds, however, by pointing out SS's qualifications and her inspirational story. Franken points out that he is the most recently sworn member of the Committee, and (though he doesn't say so explicitly), the best conduit to the common folk, all of whom have a "huge stake" in who sits on the Supreme Court.  Franken also has a great deal of [recent] experience with lawyers, and, honey: he knows lawyers.

In essence, he says, he is not in favor of judicial activism. But he would like to remind us that the Supreme Court is the last resort for [insert characteristics of downtrodden groups here]. Voters, scorned employees, the economically depressed, putative Senators-elect: where would they go, if not to the empathetic justices of the high court? Franken wraps up before the music starts to play, promising to listen raptly as she discusses the appropriate balance between judicial activism and judicial restraint. Nothing funny is said. Crowd seems disappointed. 

2:40: Senator Schumer spends several minutes recpaitulating his previously-expressed sentiments: we the live in the land of the free, this would not have happened anywhere else, something something four-score-and-seven years ago. Clerquette believes that this was a gratuitous expression of Schumer's inner Lincoln fantasy. Schumer engages in high-cringe description of SS's humble beginnings as she sits at his elbow, looking frozen.

2:45: New Senator Kirsten Gillibrand (D-NY) enjoys a moment in the sun. Clerquette wonders if she still has that new-Senator smell. Clerquette also finds her shiny jacquard jacket indicative of a bit too much effort, perhaps? Gillibrand is interrupted in the middle of a overly long speech. Her time has run out, and Sen. Leahy grunts audibly when she asks for permission to finish her thought. 

2:54: Finally, SS is sworn and takes the microphone. Looking infinitely more comfortable -- silence clearly does not suit the Supreme Diva-Elect!-- SS thanks the Senators and her mother.  Camera pans to her mother, who looks as though she has been sent by Central Casting to fill the role of warm, tear-inducing, supportive mom. 

SS quickly revisits her humble upbringing, her career trajectory, and her role in the Major League Baseball strike litigation. Go team! She announces her judicial philosophy: to wit, that the task of a judge is not to make the law, but to apply the law. (Take that, naysayers! Activist, schmacktivist.) SS then maintains that she is dedicated to the most faithful interpretation of, or "fidelity to" the rule of law. Following these bold statements, she concludes her remarks.  Senator Leahy adjourns the hearing until 9:30 tomorrow morning. Judge Sotomayor leaves, looking cheerful. If high fiving occurred, it was not captured on camera. 

Stay tuned, Groupies! We'll have more coverage tonight, and liveblogging resumes tomorrow!

Liveblog Lunch Break: Hearing Resumes at 2

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Whew!  What a morning! Day one of the Sotomayor confirmation hearing opened with the usual pomp and circumstance, some stiff laughter, and a ranting heckler. In the first inning (to borrow from the sports-analogy-laden parlance of the Judiciary Committee), we were treated to the rhetorical flourishes of Committee favorites Sessions, Graham, Schumer, Feingold, Cornyn, Durbin, and the like. Those from the conservative side of the aisle posited that Judge Sotomayor may simply toss aside the Constitution and rely, instead, on Latina wisdom. Sotomayor sympathizers countered with increasingly adulatory pronouncements about the wonder, the glory -- the phenomenon -- that is Sonia Sotomayor (and everything she stands for, including traction with the Latino/Hispanic community in the mid-term elections).  

Stay tuned, dear readers: the Committee is on a lunch break now, but will be back at 2 pm. Clerquette will be liveblogging, and awaiting Al Franken's senatorial debut. 

Liveblogging the Confirmation Hearings, Starting ... Now!

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Are we ready for some live action from the Sotomayor hearings, dear readers?  Though late to the starting line, the above-signed blogress can smell the eloquence lingering in the air ... a remnant, presumably, of the last hour's Senatorial pronouncements.  Keep refreshing your browser (and then scroll down) for updates as they roll in.  

11:13: Sen. Feingold has finished a protracted story using the illustrative device of small-town Wisconsin. Minority Whip Senator Jon Kyl takes the floor. Makes polite case for why Judge Sotomayor is a dangerous breed, and certain to decide cases based on her gut feeling. Sotomayor looks like she might like to benchslap Kyl, but offers uncomfortable smile instead. 

11:19: Senator Chuck Schumer (D-NY) makes no effort to affect authentic, rolling pronunciation of the name "Sotomayor." Schumer makes sideways jab at Justice Alito and his "record number of dissents." Sotomayor blinks furiously without moving her body. Is she communicating an appropriate message to Chuck? Schumer launches into Justice Roberts-inspired baseball analogy. Pronounces Judge Sotomayor "judicially modest." Camera pans to Sotomayor, smiling modestly.

11:21: Senator Leahy sounds like he may have taken a pre-hearing Benadryl. 

11:23: Senator Lindsay Graham (R-SC) assures Judge Sotomayor that she will be confirmed unless she has a total "meltdown."  Expresses confidence that there will be no such "meltdown." Condescension drips visibly from his words. 

Graham insists that, given the opportunity, he would not have chosen Sotomayor.  He would have chosen Miguel Estrada! Ha: take that!  And, he reminds us, though Estrada was a Honduran immigrant, highly qualified, and a Honduran immigrant, the Democrats would not have voted for him. He was also a Honduran immigrant. Sadly, the Democrats did not give Judge Estrada a chance to have his moment in the sun. Thus, Democrats hate Honduran immigrants. 

Sen. Graham insists that, if he made a "wise Latino [sic] comment," his career would be over. (Perhaps because he is not Latino?) He "needs her to understand that," and points out that her "experience do'nt make her better than anyone else."  Camera pans to Judge Sotomayor, tightly suppressing a sneer.  Sen Graham mentions that he worked his butt off for Sen. McCain's election but that "we lost." In other news, the earth continues to turn on its axis. Is Sen. Graham working through some issues?  Make "I" statements, Lindsay, like we discussed in therapy.  Tell us how it makes you feel.  As if on cue, Sen. Graham wonders whether Sotomayor has "earned the right to be here," and says, if "I give you this robe to put on ... " Own it, Lindsay!  Own the confirmation process!

11:34: Sen. Benjamin Cardin (D-Md)'s grandfather came to this country over 100 years ago. He thinks it was somehow related to the First Amendment.  Or something.  In any event, Sen. Cardin is grateful for the benefits, bestowed by the First Amendment, upon him and his Jewish family. Still, he remembers the dark days when Jews were not allowed to swim in the local pool.  And (wait for it) ... segue to Brown v. Board of Ed is complete!  Nice work, Sen. Cardin!

His point, dear readers: the Constitution is a living document.  Republicans, off camera, flinch.  The ideal justice, Sen. Cardin continues, should have a "mainstream" philosophy, an interest in protecting individual and civil rights, and a respect for established law. Also, the ideal justice should be nice to kittens, and not a total asshole. 

Senator Cardin takes a quick spin through Judge Sotomayor's compelling personal tale. Camera pans to her mother, who looks as though she is getting ... sleepy ... eyes getting ... heavy ... Cardin looks forward to hearing about Judge Sotomayor's view on individual rights. 

11:43: Senator Leahy promises that a problematic sign, sitting in front of Judge Sotomayor on the table, will be removed during the upcoming break.  This does not, he assures her, mean that she will not have a place to sit.  Tension causes everyone to laugh heartily. 

Whereupon the hearing is adjourned for a short break.

12:00: Senator John Cornyn (R-TX) extends Sonia and her family a warm welcome. Sounds distinctly airline pilot-ish. Clerquette wonders whether Sen. Cornyn plays airline pilot when he is alone. 

Cornyn provides earnest explanation of strict construction. In Cornyn's opinion, the Court has "micromanaged" the death penalty, regulated sexual relations, and even rewritten the rules of golf. That last one hurts, people.  It really, really hurts.

In addition, Cornyn continues, other rights have been neglected, such the First and Second Amendment rights afforded by the Commerce Clause. (Hmm.)  Please, he asks Sotomayor plaintively: don't invent new rights, and kick old, established rights to the curb. It makes those rights sad. 

Before casting his vote, Cornyn says, he needs to know more about Sotomayor's judicial philosophy. Though she has something of a record, her work as a lower court judge is analogous to the work of a quarterback, who carries out orders.  What will she do if promoted to the coaching staff? He is particularly concerned about her view of the Second Amendment and the Fourteenth Amendment.  He is also concerned about Judge Sotomayor's confessed tendency toward changing the law on a whim (Clerquette paraphrases here) and borrowing from weirdo foreign law.  

12:10: Senator Sheldon Whitehouse (D-RI): Sen. Whitehouse rejects Justice Roberts's "umpire" analogy. Rather, explains Whitehouse, the job of a justice is to define the strike zone.  Clerquette wonders if sports other than baseball and football - the discrete, insular minority comprised of badminton, curling, and that event where you ski between stations and shoot stuff - will be given equal protection.

Sen. Whitehouse posits that Justice Roberts is a shitty umpire because (as reported by Jeffrey Toobin), he generally finds in favor of the government/corporation/jailer and against the little guy, whether the little guy is a prisoner, employee, or endangered bird.  Whitehouse is looking for a justice who can use her broad discretion to call the balls and strikes a bit more equitably.  He, for one, believes that Judge Sotomayor's life experience will inform her judicial perspective. For starters, it will help her to make more empathetic decisions about a number of hypothetical downtrodden people, like the woman who keeps getting an automated system when she calls the bank because her home is in foreclosure, or those who live in neighborhoods where the police only come in raid jackets. It is not clear why these people are plaintiffs.  If getting passed through an endless cycle of automated messages is actionable, please email me at [email protected]. I will need immediate assistance drawing up a complaint. 

12:20: Senator Tom Coburn (R-Ok) tells Judge Sotomayor that he is troubled by her belief that "law is uncertain," that judges make policy, and that "race and ethnicity" make someone "a better judge."  He chides her for rejecting the notion of pure impartiality and neutrality.  The discussion veers dangerously close to metaphysical, better-debated-when-high distinctions. 

Sen. Coburn says that, in his opinion, empathy should not be a component of one's judicial approach.  Empathy, schmempathy! Empathy is nothing more than bias in sheep's clothing! Judging isn't about relating to people: it's about cold, hard laws and their neutral application. Harden up, folks.

12:29: Sen. Dick Durbin (D-Illinois) welcomes Sotomayor warmly. Confirmation hearings, he says, can be painful ... but no more painful than breaking one's ankle or having to meet with 89 senators. She smiles gratefully.

12:32: Off camera, an outburst stirs the crowd. The camera shows the Capitol Police removing a heckler. No shoes are thrown. Heckler's message unclear. 

12:33: Senator Leahy scolds the crowd, bellowing, "You are all guests of the Senate! You will show respect!" Clerquette wonders whether the furniture is covered with plastic. Sen. Leahy would KILL you if he knew you spilled your soda on one of the nice upholstered chairs.  

12:35: Senator Durbin takes Judge Sotomayor on a stroll through her own, illustrious past. Sadly, he appears to have been upstaged by the heckler.  His message: Judge Sotomayor is really, really qualified. 

Whereupon the committee adjourns for lunch.

Liveblogging the Confirmation Hearings

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Stay tuned, Groupies!  Yours truly will be liveblogging the confirmation hearings for your reading pleasure.  In addition to the fabulous coverage of the Supreme Court confirmation hearing provided by our friends over at Above the Law, we will bring you the most delightful live-bloggage we can muster, starting around 10:30.  

We look forward to hearing more about what lurks under Judge Sotomayor's robe, and passing along the details (juicy and otherwise) to you, dear readers. 

Say It Aint So, Miss Karen!

by Clerquette

You can email Clerquette at [email protected], or find her on Facebook and Twitter!

Hello, dear readers.  Clerquette has missed your virtual companionship, and prefaces today's thoughts with a sincere apology for her virtual neglect. Perhaps absence makes the heart grow fonder, and now we can have makeup blog.

Alas, Clerquette returns with a bit of a judicial bummer.  Specifically, we were deeply saddened to learn, earlier today, that Judge Karen Williams will gracefully be hanging up her robes. Judge Williams is, as we know, the fabulous chief jurist for the Court of Appeals for the Fourth Circuit. Appointed to the court in 1992 by the first of several Presidents Bush, Williams was both the first female judge AND the first Chiefette of the famously conservative Fourth Circuit. You go, girl!

But wait: there's more!  In 2004, Judge Williams earned another distinguished honor, which may resonate with special significance to Article III groupies like you, dear readers. What, you ask, could gild the lily of Judge Williams' accomplishments?  Well, if you guessed "Nomination to the auspicious ranks of the Superhotties of the Federal Judiciary," you are correct.

Although Judge Williams was, technically, an untimely nomination, Clerquette's predecessor/co-blogress found her too irresistible to pass up. Clerquette defers to A3G's artful description of Judge Williams' hotness, as follows:

Judge Williams, 53, "runs circles around your nominated crew!" (Her nominator blames her exclusion on anti-conservative, anti-Fourth Circuit bias.) Judge Williams was described in the New York Times Magazine as "a tall, slender woman with delicate features and a regal carriage" (in this piece, a thinly veiled attack upon the Fourth Circuit). A "lovely Southern belle," Judge Williams is known around Orangeburg, South Carolina, as "Miss Karen" (despite being married; as her nominator explains, "the first thing one must learn about Orangeburg is that every woman is referred to as Miss"). The well-heeled Miss Karen has a private plane, in case she ever needs to get to Richmond in a hurry, and "a personal shopper, to keep her looking elegant." Judge Williams, a 1992 appointee of President George H.W. Bush, is perhaps most well-known as the author of the Fourth Circuit's opinion, later reversed by the Supreme Court in Dickerson v. United States, holding that Miranda v. Arizona had been overruled by statute.

Judge Williams, who is foxy at 57, announced her retirement today. Her decision to step down is attributed to her diagnosis of early-onset Alzheimers disease. Although Judge Williams is still livin' large, she explained in a statement that:

[She] has been diagnosed with early-onset Alzheimer's and while she is presently able to perform her judicial duties, because of the nature of the disease she has elected to retire so any future decisions would not be called into question," said a statement from her Orangeburg office released late this afternoon.

 

In this blogress's humble opinion, Judge Williams grace under difficult (and immensely sad) circumstances distinguish her as a woman whose judicial character rivals her superhotness. Godspeed, Miss Karen!

(BTW, Groupies: any thoughts on Judge Williams' possible replacement would be greatly appreciated.)

A Third Circuit Shout-Out to UTR

By Article III Groupie

Underneath Their Robes: coming to a volume of F.3d near you? There's a shout-out to UTR in this opinion, made public today, clearing Chief Judge Alex Kozinski, the #1 Superhottie of the Federal Judiciary, of judicial misconduct charges.

For more discussion, see Above the Law.

Supremes: What's in YOUR Wallet?

by Clerquette

For those of us who often find ourselves, necks craned, straining for a peek underneath the robes of Article III's judicial superstars, the words "financial disclosure" have a special cachet. In the parlance of Chris Matthews, glimpsing the judiciary's financial bloomers has the power to send a thrill up our collective legs. 

And, of course, a glimpse into the financial medicine cabinets of First Street's occupants induces a special contact high. While the Supremes' financial details may come as no surprise to some, they are fascinating nonetheless; after all, given that the nine Justices occupy such a hallowed niche in our judiciary (not to mention our starstruck little hearts!), the details of their personal lives are usually even more shadowy than those of the typical, discreet A3 Judge. Hence, there is something deliciously "Us Weekly" about learning that Justices are just like us! They lose money in the down market! They have whopping dental bills! They have scary credit card bills! When the slots call, they answer!

There are six millionaires on the High Court, as was the case in past years.  Also unchanged since the last disclosure -- but no less shocking to this blogress -- are the two most loaded members of the Court: Justices Ginsburg and Souter.  Who would think that these quiet, unassuming (and in Souter's case), and famously frugal jurists were, in fact, sitting on large bags of money?  More to the point, does Souter plan to devote his imminent retirement from the Court to spending some of his estimated $6 - 27.6 million dollar net worth? Does he plan to spend any of it?

Justice-elect Sonia Sotomayor would, if confirmed, be well advised to 'shift the burden' of lavish entertaining; as the Times reported last week, her net worth is a paltry $740,000. But, while she should be saving her money for credit card bills and a mouthful of debt for dental work (no word on what, exactly, SS had renovated), the Times also reports that our newest Supreme may believe in living rich and dying poor. SS is, apparently, "an interior decorating buff who loves to shop," and a "frequent patron of Manhattan restaurants, sometimes picking up the tab for dinner with clerks." Clerquette also delighted in the news that SS is a legendary party-thrower and buyer of Christmas gifts ... which she may subsidize with her gambling winnings.  If this Diva's presence in the courtroom is anything like her last trip to a casino, dear readers, we can all look forward to a smokin' hot bench!

Not surprisingly, Justice Thomas is among the "least well off" of his colleagues.  Poor Justice Thomas; he can't seem to catch a break!  At least the perpetually acerbic Justice has raked in a cool $1.5 million from the sales of his book, "My Grandfather's Son."  That should keep the Justice and his wife, avid RV-ers, in petrol and gas-station treats  for quite some time. Jerky, anyone?

DivaWatch: Week 1

by Clerquette

Hola, Groupies!  All work and no Article III gossip makes Clerquette a cranky blogress ... especially when our newest nominette -- New York's own native daughter! -- has been gracing the headlines all week. Sonia visits Harry Reid! Sonia coos over Senator Leahy's presh grandchildren! Sonia ventures into the lion's den a meeting with Senator Sessions!  Sonia is labeled a racist!

Yes, dear readers: the foreplay that precedes confirmation hearings may be political, judicial, and dignified by the imprimatur of Article III ... but it is still foreplay.  In other words, it can simultaneously be too titillating to turn away from and too cringe-inducing to watch.

Let's direct our attention to SS's meeting with Senator Harry Reid (D-Nev). Reid cheerfully announced to the press that SS had been an "underdog," but was also "the top dog."  This blogress can't help but wonder whether the Senator could have come up with a slightly more distinguished way to refer to a Supreme-to-be. Might the Senator be attempting to ensure the support of infuential dogs everywhere? 

Similarly cringe-inducing: SS's staged ogle-fest of Senator Patrick Leahy's five granchildren, her designated rabbi on the Judiciary Committee.  Cameras captured Sonia remarking on the overhwhelming cuteness of one young Leahy in particular.  Hm ... are her remarks evidence of bias against the others?  Did SS apply a multi-pronged test when determining the supreme cuteness of the grandchild in question?  And, most importantly, is she -- as a wise Latina woman -- better equipped that the old, white Leahy to pick the Next Top Grandchild??

And, of course, there is the questionnaire. With 173 pages (plus new supplements!) to dig through, this blogress has a good idea of what her weekend will involve. Will anything juicer than the news of SS's combined $30k in dental and credit card bills emerge?? Your friend Clerquette recently perused a letter to the editor of the Princetonian, written by an earnest young SS and released along with her judicial questionnaire, that contained the following sentence:

The feelings we are trying to convey was best stated by Frank Reed ’76 when he said: “We only wish the opportunity as a people, to learn and be learned from.” This is our complaint, and what it signifies.

Proofreading fail, Girl Judge! Clerquette can only hope that SS doesn't have too many more grammatical skeletons in her closet. While a team of handlers worries about taxes, off-color remarks, financial shenanigans, and sex scandals, this blogress -- speaking for former and current A3 clerks and groupies -- would like to say, simply: Godspeed to you, SS. May the Elements of Style be with you.

Codename: Sassy? DivaWatch begins!

by Clerquette

Many in our midst have spent the past few days (if not weeks) digging for SOMETHING on SCOTUS nominee Sonia Sotomayor -- whether dirt, info, gossip, or substantive tidbits -- to fuel the hearty appetites of all who plan to participate in the looming confirmation battle. But, as this blogress observed in the immediate aftermath of SS's official debut, POTUS and his team may have selected a virtually bulletproof candidate ... which would mean some very sore paws for the most avid diggers, but probably no buried bone.

Not to worry, groupies! No smoking gun doesn't have to mean "Caution: months of boredom ahead." An article in yesterday's NYT described the fascinating path traveled by Team POTUS on their search for a golden nominee. If you thought that we were living in an era of transparent virtue and relentless sunshine: think again. Apparently, the nominee selection process required stealth, intrigue, and (gasp!) even minor subterfuge. Hours of POTUS's time were blocked out under the designation "Chief of Staff Strategy" in order to disguise the true nature of the handwringing underway; meetings took place around adviser Cynthia Hogan's kitchen table ("more coffee, POTUS?"), and a crucial moment in the decision-making process appears to be closely linked to POTUS's ingestion of a salad.

And take heart, gossip seekers: there are a few rumblings afoot which promise to add color to the debate ahead. Sure, some are relatively understated, like the news that SS is rockin' diabetes, and failed to vote in two recent New York State elections. But this blogress is most intrigued by reports about SS's famously "sharp tongue." 

As we all know, Professor Jeffrey Rosen was lambasted when, pre-nomination, he quoted anonymous sources who called SS a "bully," among other things. Now, in the cold light of day, critics and supporters alike have gone on-record to express their concerns about Sotomayor's "judicial temperament."  Specifically, some have wondered whether she has expressed an appropriately Supreme level of "judicial modesty," while others have predicted that the sassy Sotomayor would sizzle too loudly on the bench. 

One oft-cited example of SS's feistiness: her rigorous questioning of counsel at oral argument in a case concerning a detainee's allegations of torture against POTUS's predecessors.  Indeed, the transcripts show, SS came so close to benchslapping the government attorney that Chief Judge Dennis Jacobs  had to delicately rescue said attorney from the heat of her grilling. Others defend Judge Sotomayor, noting that her questioning is a mere outgrowth of her "formidable" intelligence and tendency to uber-prepare. Still others -- such as attorneys Sheema Chaudhry and Gerald Lefcourt -- describe SS as "judgmental" (perhaps an odd word choice, given that we are talking about a judge), "temperamental," and "more strident and vocal" that her colleagues. Others have called SS a "terror on the bench" who "behaves in an out-of-control manner." 

Meow! Clerquette is delighted by the questions presented by a bench occupied by both Nino AND a sharp-tongued, no-nonsense girl from the hood.  Could we be in for the hottest bench One First Street has seen? Some internecine warfare? A battle for primacy, the likes of which have not been seen since Barbara Walters and Rosie O'Donnell sparred for the soul of The View?

If any of these scenarios -- or another, as yet unimagined -- comes to pass, it will, at the very least, be fodder for Sotomayor: the Movie. Not in your Netflix queue, you say? Well, dear readers, it's still in development. But you can check out these brilliant casting proposals, courtesy of the folks over at the Daily Beast.  In the meantime, the DivaWatch continues.

And remember: A3G and I await your questions for SS. Send them, and she will come.

E-mail me at [email protected] ...

Or find me on Facebook or Twitter!

Casting Suggestions for Sotomayor: The Movie

By Article III Groupie

A3G wishes she had thought of this herself. Genius!

Not surprisingly, most of the actors are considerably younger and/or more attractive than the real-life individuals they'd portray. But make-up can work wonders - as your above-signed blogress can attest....

Sotomayor: The Movie [The Daily Beast]

UTR's Blogresses Chat with SS!*

by Clerquette

* see discussion re: power of positive thinking, infra

 Most Likely to Indicate that SS Prefers to be the One Asking Questions

As we learned yesterday, we live in a world in which dreams really do come true. Did young Sonia Sotomayor ever dream that she would ascend to the federal judiciary? Swing by POTUS's place on a random Thursday for [what was undoubtedly] and empathy-filled chat? Command a morning presser at the White House to face the nation as a nominee to the Highest Court in the Land? 

On information and belief, the answers to the above Questions Presented are, respectively, no, no, and no.  But we live in America, dear readers, where anything can happen. 

Perhaps that's why the above-signed blogress dreamed last night of a world in which SS, still redolent with that new-nominee smell, would sit down for an interview with the Supremes' ultimate fans: Clerquette and Article III Groupie. And who's to say we don't live in such a world? Perhaps SS will eschew the ardent requests of the Grey Lady, WaPo, CNN, the AP, Time, 60 Minutos, and the rest of the madding crowd, and grace her friends at UTR (who TRULY appreciate her) with a bit of face time. Hint, hint. 

Clerquette will be practicing positive visualization, and has read The Secret cover to cover, hoping to pick up tips about maximizing prospects for dream achievement. Since she is fully convinced that, yes: we can! woo SS, we need to do some homework.  Stated differently, when SMS eventually sits down for an exclusive with her gal pals at UTR, where will our chat begin?

Groupies: unite! The moment to mobilize is now! We need your suggestions, requests, and most shameless admissions about what YOU want to know about SS, from the mouth of SS. What's that sound (you ask)?  It's Clerquette cracking the reader-participation whip. Don't wait for someone else to do it; we all know where that leads. 

You can e-mail us at:

[email protected]  OR [email protected]

... or find Clerquette on Facebook or Twitter!

The Sotomayor Nomination: The Morning After

by Clerquette 

Well, Groupies: we had a lot of excitement yesterday. Some of you may have dined heartily from the buffet of Judge Sotomayor ("SS") coverage, and awakened feeling a bit over-served. Others may have approached the rich sampling of "Sotmayors d' oeuvres" with more moderation, and be feeling slightly less satiated.  Still others may have to sheepishly admit to some late-night interweb activity, during which [arguably excessive] consumption of nomination-related materials occurred. This blogress sees nothing wrong with the last of these categories, or, for that matter, admitting that one is powerless over judicial gossip.

So, dear readers: where are we on the Morning After the big event ... and where do we go from here? The wonderfully distinguished folks over at SCOTUSblog have done the math, and determined that, in the last 30 years, the average spread between nomination and confirmation has been 72 days. Clerquette can't help but wonder what those days will bring.  Will the disco ball of SCOTUS glamor illuminate the next 72 days, blinding judicial stargazers with 1,000 (or more) points of light?  Or will the confirmation process follow the path of a high school quarterback, peaking early and then attempting to reclaim the glorious sheen of yesteryear?

The above-signed blogress can't help but wonder whether we're bound for Door #2.   While it's only the morning after, the chatter on both sides is remarkably tame. On the pro-SS side, the plaudits are standard issue: effusive and slightly over the top, as one might expect. Sotomayor "has been hailed as one of the ablest federal judges currently sitting;" she was a "fearless and effective prosecutor;" she saved baseball.  Commentary by detractors is also ho-hum: theoretical opponents insist that she is a "liberal activist of the first order"; that she is a "racist" who does not appreciate the finer points of white men; that she is a "kind of a bully on the bench." That she shot a man in Reno, just to watch him die.

But even the most voiciferous criticisms strike this blogress as, well, somewhat flaccid. Why (you ask)? Because, Groupies: it appears that POTUS may have picked a candidate who is as bulletproof as they come. Her backstory could be the script for an inspiring Lifetime movie. Her academic credentials are beyond reproach. Her personal life (SS is divorced with no children) seems sterile enough to guarantee that there are no slyly-paid nannies in the closet and no Alfred Pirro (or Bill Clinton!)-esque husband with naughty proclivities.  And, as one who has served the public for most of her career, she seems an unlikely candidate for complex financial pecadilloes, or an unfortunate game of "How Many Houses do I Own?" 

But wait: there's more to Sotomayor's magical forcefield. Take the claim that SS is "racist," por ejemplo: it seems to have originated with Rush Limbaugh.  Two words: Credibility fail.  In addition, SS's discussion of how her judicial philosophy is informed by being a Latina woman can hardly be attacked without the risk of offending Latinos and women, whom the GOP can ill-afford to piss off.  What about the claims that she is a judicial activist? Well, upon closer examination, her comments on that subject were somewhat non-committal, and more in the nature of an observation than a firm "Yes we can ... make policy at the Court of Appeals level!" proclamation. (See also Ricci, in which SS was not nearly active enough for some.) 

Finally, some have observed that her opinions are "exhaustive but often narrow," and best described as "technical," "incremental," and evincing "unflashy competence." In other words, they are par for the course. As former members of the court family are well aware, for every sexy case that comes down the pike, there are countless others which push the limits of one's tolerance for the dormant commerce clause, the meaning of a particular ERISA provision, or anything related to the law of the sea. 

Given POTUS's successful selection of a nominee who may well walk between the raindrops of a confirmation-related storm front, the "question presented" is this: what will the conversation turn to??  SS's hair? Her clothes? Her (gasp) implicit endorsement of gambling, in the form of law clerk card games at Chez Sotomayor? Please, dear readers, share your thoughts!

E-mail me at [email protected], or find me on Facebook or Twitter!

SCOTUS Leaderboard: Sonia Hits an Ace!

by Clerquette

The above-signed blogress dreams of events as exciting as and new as the announcement of a SCOTUS nominee (and a potentially diva-riffic one, at that!). Indeed, Clerquette retired last night with visions of the dawning of the Age of Sonia, Diane, Elena, or Janet dancing in her head. 

Today, that age dawned, while this blogress watched from cyber exile. Imagine the indignity of being stuck  all day in interstate transit,  like some kind of heavily regulated truck ... and far from the blogosphere. The horror, dear readers: the horror.

 But enough about me. Clerquette directs  your attention (or any remaining shards not already focused on the newest Soon to Be Supreme) to Judge Sotomayor.  

By now, we all know her story -- and quelle story it is! She's from the hood; she was raised by a single mother after her father's untimely death; she was inspired by Nancy Drew, Girl Detective. She moved on up, from the Bronxdale houses to Princeton, and then to Yale.  She's been known to pine - pre swine flu, of course -for pigs' feet.  Yes: these are among the elements of a carefully crafted love story to our new Justice-in-waiting, designed to convey the true irresistibility of the woman we are about to pick apart.  Indeed, as some have observed, her compelling personal narrative seems almost as central to her presentation as a nominee as her credentials.

In the coming weeks and months, much attention will be devoted to the hypothetical inquiry into why Judge Sotomayor should ascend to Supreme-hood.  But, for the moment, this blogress wonders how POTUS could have picked anyone else, given her slam-dunk fulfillment of so many criterion of the "nominee must be empathetic, look good in black," sort.  (See, e.g., John Dickerson's thoughts  on BHO's calculus, in this Slate piece.) 

 But there will be time yet, dear readers, for a hundred visions and revisions of our collective thoughts on Sonia from the Block, before the taking of testimony at her eventual confirmation hearing.  For now, Clerquette will abstain from further beating of the dead horse, and leave you instead with a few photos which, in her humble opinion, are most likely to become emblematic in the coming months. 

Most Likely to Demonstrate the Multi Cultural Values of the Obama Administration

Most Likely to Demonstrate that SS is a Survivor -- of Horrific Eighties Fashion and  Eyewear Trends

 Most Likely to Demonstrate that SS is Among those Who Appear to be  Ignoring Joe Biden

Most Likely to Convey SS's No Nonsense Judicial Gravitas (No Neck Doily Here!) 

 Most Likely to be Used by SS Detractors to Suggest Irascible Temperament  

Most Likely to Illustrate the New York Leg of SS's Amazing Race-from Humble Beginnings to Article III Digs

Most Likely, Due to Serendipitous Sign Placement, to be Used if Confirmation Battle Gets Dicey

Most Likely to Show that SS is a Warm, Fuzzy, Family Gal Has the E-Factor

Got more? You can e-mail me at C[email protected], or find me on Facebook or Twitter!

Liveblogging the Sotomayor SCOTUS Announcement

By David Lat, over on Twitter.

President Obama To Nominate Judge Sonia Sotomayor to SCOTUS

By Article III Groupie

We'll have more commentary later today. For now, check out Above the Law and SCOTUSblog.

SCOTUS Leaderboard: Fantasy Supreme League?

by Clerquette

Bonjour, Groupies! The above-signed blogress has missed her dear readers, though she has it on information and belief that you were well cared-for by A3G AND our new friend, Blair Lawdorf. But enough chit-chat: let's get down to business. 

When last we spoke, Clerquette was under the impression that the roster of potential SCOTUS nominees had been reduced to a much-touted "short list," comprised of six -- and possibly eight names. To refresh your collective recollections, the candidates for ascension were Solicitor General Elena Kagan, Judge Sonia Sotomayor, Judge Diane Wood, Homeland Security chief Janet Napolitano, Governor Jennifer Granholm, and California Supreme Court Justice and hopeless longshot unlikely nominee Carlos Moreno.  Some SCOTUS watchers were betting on Court of Appeals Judge Merrick Garland in place of Moreno, but who are we kidding? Though both are distinguished jurists, they lack the crucial XX factor.

Given the general consensus that the above-cited short list represented the Most Likely to Hold Court at One First Street, Clerquette is puzzled by the recent emergence of dark horses, many of whom have been flying so far below the radar that they might well be mistaken for Canada geese, or fancy kites. With sources as reputable as Nina Totenberg and the ABA Journal tossing names into the Souter replacement waters like judicial chum, Clerquette has to wonder: whither will this folly lead us, Nina & Co.?

Among the names now festooning the list of nominees, like sprinkles on a sundae, are the following: 

Christine Arguello -  District Judge for the District of Colorado.

Reuben Castillo - District Judge for the Northern District of Illinois.

Nora Demleitner - Dean of Hofstra Law School, and prompter of much puzzled head-scratching. 

JoAnn Epps - Dean of Temple Law School and known sports fan.

Annette Gordon-Reed - New York Law School Professor and winner of the extremely sexy Pulitzer Prize. 

Caitlin Halligan - former Solicitor General in New York; now partner at Weil, Gothsal, & Manges.

Bernette Johnson - Louisiana Supreme Court Justice and non-friend of lesbian parental rights.

Alan Morrison - Consumer rights advocate (you know, like Ralph Nader!).

Patricia O'Hara - Soon-to-be former Dean of University of Notre Dame Law School.

Johnnie Rawlison - Sassily-named judge on the Court of Appeals for the Ninth Circuit.

Bryan Stevenson - Death penalty abolitionist. 

Patricia Timmons-Goodson - first African-American member of the North Carolina Supreme Court. 

Again, Clerquette is not sure what explains the sudden focus on obscure and random lesser known candidates. One guess is that POTUS is attempting to fake left, muddying the waters to detract focus from a single nominee.  Another is that someone in or around the White House is gathering names for a fantasy judicial draft.  For the record, Clerquette LOVES the idea, and will gladly bring the chips, dip, and crudite when the draft is held, presumably over at BHO's place. Could there be another explanation for the sudden advancement of these names - some of whom belong to people who were unaware that they were in the running at all? If there is, dear readers, and you know what it is: do tell!  And, more to the point, do any of them have fantastic hidden qualifications, like General Elena Kagan?  Kagan is known, inter alia, for her bold decision to provide "free coffee to caffeine hungry law students," which, in this blogress's humble opinion, is more than enough direct evidence of outstanding E-factor to justify Kagan's nomination to the bench, and perhaps for sainthood. 

Please, Groupies: share your thoughts!

You can e-mail me at [email protected], or find me on Facebook or Twitter.

Thinking Outside the Box: Reality TV Judicial Diva!

By Blair Lawdorf

While it seems Diane Wood is the current front runner, I would like BHO to consider a dark horse candidate that could bring some much-needed fabulousity to the Supremes - Amazing Race grand prize winner Tammy Jih!  Tammy is everything that President Hunky is looking for in a justice: young (she's only 28), female, a minority, and a full time litigatrix (NOT a crusty appellate judge). Think about it: she's young enough to not have left much of a paper trail regarding her judicial philosophy, she has trial experience, and America has gotten to know her diverse skill set after watching her every week on season 14 of the Amazing Race. While she may not have to face a deadly cheese wheel or carry a pig on the bench, surely her problem solving approach and drive would serve her well when matching wits with the likes of Nino and the gang. The challenges she faced on the show will be a breeze compared to the Senate confirmation process. As an added bonus, her sartorial sense would be another force in Mrs. Obama's arsenal against the DC fashion doldrums. VIVA LA TAMMY (you know you love her)!

Email: [email protected]

SCOTUS Leaderboard: Could It Be Wood?

By Article III Groupie

Various outlets, including the AP and CNN, reported earlier this week that President Obama has settled on a short-list of six possible Supreme Court nominees: 

-- Michigan Governor Jennifer Granholm;

-- Solicitor General Elena Kagan;

-- Justice Carlos Moreno (California Supreme Court);

-- Homeland Security Secretary Janet Napolitano;

-- Judge Sonia Sotomayor (2d Cir.); and

-- Judge Diane Wood (7th Cir.).

Of the six, is Judge Diane Wood of the Seventh Circuit emerging as the frontrunner? One observer seems to think so.

Feel free to share your information and opinions about these candidates with A3G, via email. Thanks!

Email: [email protected]

Justice Cardozo's Love Child?

by Clerquette

 This afternoon, Ashby Jones of the WSJ Law Blog blogged a Washington Post story about, inter alia, the "gentle" lobbying by Hispanic groups for the appointment of the nation's first Hispanic member of the Supreme Court. (Whew! Pardon the multiple layers of hearsay.) One of Jones's readers wrote in to say, in essence, "been there, done that." According to the reader, the beloved Justice Benjamin Cardozo - father of privity and proximate cause, champion of The Flopper - was of Portuguese descent. Thus, if confirmed, Judge Sonia Sotomayor would be the first female Hispanic justice.

Putting aside the fact that the Portuguese are not necessarily "Hispanic," there is the small issue of whether Cardozo was actually Portuguese. But Clerquette leaves that debate to the experts ... like Professor Andrew Kaufman, who Jones consulted regarding the mystery of Cardozo's heritage.  You can read his comprehensive reply here.

This blogress is interested in a much more pressing issue raised by IMO Cardozo: to wit, the Justice's startling resemblance to Late Night host and lovable cut-up Conan O'Brien. Clerquette directs your attention to the photo array below.

Seriously, dear readers: can you deny the likeness? Although Justice Cardozo is believed to have been celibate, homosexual, suffering from an unusually low sex drive, or overly fond of his sister Nellie (or perhaps a combination of those factors), Clerquette can't help but wonder whether he had a dalliance somewhere along the line, thereby ensuring the survival of his gene pool. How the Justice's likeness resurfaced in an Irish comedian from Massachusetts is yet another mystery, which, in this blogress's humble opinion, may turn on a question of causation.

SCOTUS Leaderboard: Is it Sotomayor ... by a Nose?

by Clerquette

Clerquette's pal Kash, over at ATL, has either been doing some online betting (not that there's anything wrong with that) or watching Fox News. Or both. Either way, she tipped this blogress off to an actual bookmaking site that is busy tabulating the odds on various contenders for the title of "Obama's 1st Nominee for Associate Justice."

Wondering whether to put your money on Judge Sotomayor or Cass Sunstein? General Kagan or Janet Napolitano? Kathleen Sullivan or Dean Koh? Or perhaps you just returned from a trip to the moon on the Russian space shuttle, and haven't had a chance to catch up up on the news, in which case you might be wondering whether you should wager on feeder Judge Merrick Garland ... or Michelle Obama.  Well, dear reader, head on over to  www.paddypower.com, which provides the odds on the afore-mentioned potential nominees and nominettes, as well as popular (and not so popular) 'candidates' Wardlaw, Sears, Castillo, Patrick, and Hillary Clinton. Inexplicably, Jennifer Granholm does not appear in the virtual starting gate, though paddypower indicates that the odds for other candidates are available "on request."

At the moment, paddypower has Judge Sotomayor in pole position. Interesting. Clerquette loves the presumable mathematical precision behind paddypower's odds, especially since the ability to achieve "mathematical precision" is not within her tastefully decorated wheelhouse, so to speak. Nonetheless, this blogress can't help wondering what goes into these calculations. After all, dear readers, how does one determine a value for "empathy," which is at the top of POTUS's list of "turn ons"? No: really ... how does one quantify the E-factor?

Odds aside, this article by Neil Lewis makes a compelling case for Judge Diane Wood, of the Seventh Circuit. According to the article, Judge Wood was nominated to the bench (by President Clinton, in 1993) due in no small part to the ringing endorsement of Senator Paul Simon, who described her as "a reliable progressive who would be cerebral enough to go up against the court's two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook." In other words, Judge Wood, who is, incidentally, a member of The Elect (OT '76) offers a "counterpoint" to the jurists seated to her ideological right, and (according to former Chicago Dean Geoffrey Stone) "would not be intimidated by any of the Supreme Court's conservative voices," like, oh, for instance, Nino's. Said Stone, "Diane is a serious and accomplished scholar who has demonstrated the ability to go toe to toe with Dick and Frank,” who “can be intimidating figures.” See Diane engage in spirited intellectual debate. See Dick shrink.

So, to summarize: Judge Wood has the ability -- which may elude definition, but is essential nonetheless -- to take on a spitfire like Justice Scalia. As several example in Lewis's article illustrate, she also seems to have the E-factor, and on at least one occasion showed actual sympathy toward a litigant caught in the whirling storm drain of an immigration proceeding. Those are two qualities that, in this blogress's humble opinion, may push Judge Woods closer to the top of the Leaderboard. But the icing on the cake - the hat trick, if Clerquette may mix sports metaphors - may be Judge Wood's parenting. Yes: parenting. Specifically, Judge Wood's daughter is quoted as having said that, "on family road trips, the children did not ask 'What state are we in,'" but rather, "Which circuit are we in." Two words, dear readers: family values.

Sentenced Judge Seeks Psychological Help, Soap on a Rope

by Clerquette

Whether you're an Article III Groupie, a casual court watcher, or a member of the general population taxpaying public, you'd probably like to believe that the federal judiciary is comprised of people of integrity and sterling character. For the most part, it is ... with some exceptions.

Exhibit A: Naughty former District Judge Samuel Kent, who was sentenced today to 33 months in the pokey for obstruction of justice. As many Groupies are aware, the obstruction charges against Kent stemmed from an investigation into his relentlessly randy behavior with respect to, inter alia, his case manager and secretary, whose complaints led to the "first sex abuse case ever against a sitting federal judge."  In addition to hard time, sentencing Judge Roger Vinson ordered Kent to pay a $1,000 fine and $6,550 in restitution to the two afore-mentioned women.  

The sordid details of Kent's fall from grace (or perhaps simply from a less disgraceful state), have been well documented.  (See, e.g., the sparkling coverage by our friends at ATL). For those of you whose recollections thirst for some refreshment, the basic facts are as follows: Kent was accused of aggressively harassing several women who worked in the Galveston, TX courthouse, where he was the sole federal judge -- a fact which, apparently, led Kent to engage in the figurative equivalent of  rubbing his hands together, laughing mainacally, and proclaiming the courthouse fiefdom to be "Mine ... all mine! BWAHHAAHHHAAA!" According to case manager Cathy McBroom, Kent harassed and sexually abused her over several years, "culminating in March 2007, when she said the judge pulled up her blouse and tried to escalate contact until they were interrupted." Donna Wilkerson, the judge's secretary, told of similarly crude behavior, and when Kent's attorney suggested that she was complicit in the "affair," Wilkerson responded to say that "[b]eing molested and groped by a drunken giant," was "not [her] idea of an affair." Meow!  In this blogress's humble opinion, Wilkerson gets high marks for sass under pressure.  

Kent was admonished and suspended from service for four months. Then, in Septmeber, 2008, comeuppance arrived in the form of a grand jury indictment - handed down in the very courthouse where Kent both prowled and presided.  Although he initially came out swinging, pleading "absolutely, unequivocally not guilty" and talkin' trash about his readiness for a trial on the merits of what he "consider[ed] to be flagrant, scurrilous charges," it was, not unexpectedly, only a matter of time before Judge Kent saw the light of day from a practical (i.e., sentencing) perspective and/or realized the extent of his mental illness, substance abuse, and the aberrant behavior both had caused. Indeed, Kent claims that he is disabled, and thus entitled to collect his full pension, which is a generous $169,300 per year.  Though his official diagnosis is unclear, some court-watchers are undoubtedly surprised that "lecherous jerk" might be considered a disabling condition.  In any event, Kent pleaded guilty on the eve of trial, thereby saving himself from a decidely un-sexy level of "exposure." Not so hot, is it, Judge?

At Kent's sentencing today, his victims spoke candidly of the psychological damage they suffered at his hands, the miserable work environment they endured, and the overall ickiness of his behavior.  (As anyone who has clerked can attest, chambers can be small places, and the thought of our wise, somewhat parental judicial patrons cornering us to cop a feel is enough to induce vomiting in many of us.)  Kent also got a good, hard bench-slapping.  "Your wrongful conduct is a huge black X, a smear on the legal profession, a stain on the judicial system itself, a matter of concern in the federal courts," U.S. District Judge Roger Vinson told him. Reports indicate that Kent looked at his feet and apologized to his family and the court staff, but did not express contrition to his victims. Perhaps he a sua sponte motion to reconsider is in order?  No rush: there's no time like hard time for catch up on one's administrative matters, reading, and small craft projects. 

Speaking of "hard time," Clerquette notes that Kent's sentence will probably result in his assignment to what is known euphemistically as a "camp," and known colloquially as "pillow-tag ripper jail." Mind you, dear readers: these institutions are still prisons, and one's peers/shower companions might include both chastened Ponzi-schemers AND violent criminals doing stints for "violence lite."  Nonetheless, federal camps have a reputation for being a place where the deer, the antelopes, and the mildly bad actors play.

Toodles, Judge Kent!

E-mail me at [email protected] ...

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Monday Round-Up

by Clerquette

After a busy few days, Clerquette is delighted to turn her attention back to all things Article III. Sadly, the new week begins with little news from the front regarding the Souter Replacement Watch ... unless, of course, an exciting tidbit awaits in Clerquette's inbox. (Please accept my apologies, dear readers: I'm still doing a bit of digging out.) Sadder yet, Clerquette doubts that she will find an "FYI" message from POTUS, or Nina Totenberg, in her mail.  (Hint, hint.)  Clerquette does, however, appreciate the dispatches from non-POTUS, non-Nina correspondents ... even if you have been somewhat dilatory with respect to sending in your homework assignments/thoughts on IMO SCOTUS Leaderboard: Match play v. Stroke Play. (Hint. Hint.) 

 

One Groupie from the Eureka! State wrote to tell us about a Judicial Sight-ation. While few things make Clerquette and A3G happier, this one was a particular blogress-pleaser, since it involved A3G favorite Alex Kozinski (of the sprawling, lambent Ninth Circuit). Our tipster saw Judge Kozinski's magic act at the recent "First Annual Conference on Federal and State Appeals," in Los Angeles, and was appropriately delighted by the his speech, entitled "The Wrong Stuff," which addressed the fine points of "how to lose an appeal."  It was, apparently, the best thing uttered by a California Superhottie in recent memory.

Our tipster tells us that a crowd of swooning fans (perhaps Article III Groupies and paparazzi yelling "Over here, Judge!  Who are you wearing??") shouted to Kozinski as he exited stage left right, asking him when he expected to be called upon to consider filling the seat being vacated by Justice Souter. On information and belief, his Superhotness responded to say that he had already politely declined such an offer from BHO -- in order to appear at said bar function. 

At the risk of stating the obvious, Clerquette would like to point out that Judge Kozinski's response to the above inquiry demonstrates a textbook-worthy command of social etiquette. Indeed, in addition to his brilliant legal mind and documented quantum of hotness, Judge Kozinski is clearly aware that etiquette consists not only of starting from the outside fork and working one's way in, but of making others feel special.  Though we're reasonably certain that Judge Kozinski will not be appearing on the SCOTUS Leaderboard, A3G and I are nonetheless charmed by his gracious implication that nothing - not even a call to duty from POTUS himself - could keep him from a social commitment. 

Another tipster wrote to us from the left coast ... by way of the Third Circuit. As some Groupies are aware, octogenarian Court of Appeals Judge Ruggero Aldisert accomplished the near-impossible several decades ago when he relocated his Pittsburgh chambers to Santa Barbara, California.  Clerquette has no doubt that Judge Aldisert remains incredibly thankful for this salutary change of venue, which was occasioned by a doctor's recommendation that he relocate to a balmier jurisdiction after bypass surgery.  Nonetheless, based on the Judge's reputation for being a formidable - and somewhat prickly - jurist, Clerquette speculates that if Judge Aldisert had been unable to move to a more temperate climate, he may have simply ordered Pittsburgh to shape up, or risk being held in contempt.  

But Clerquette digresses.  Judge Aldisert, it seems, was forced to flee the Jesusita fire that ravaged the Santa Barbara area. According to our tipster, the Judge was forced to evacuate his chambers along with "clerks Matt Bartlett and Meehan Rasch." Any more details, Groupies? Clerquette envisions Judge Aldisert, robes flowing, taking flight as flames licked the retreating feet of His Honor and clerks Bartlett and Rasch.  Was the escape this dramatic ... and if so, when did Judge Aldisert pause to order the fire (in his most sonorous tone) to reverse course, consistent with his directions?

E-mail me at [email protected] 

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:

 

Matchmaker, Matchmaker

by Clerquette

Clerquette has a homework assignment for you, dear readers.  Read on.

Like any good Groupie, the above-signed blogress has spent the last week or so with her ear to the ground (skip the mental image, please) and her eye on the news (and the SCOTUS Leaderboard, of course!). Needless to say, in the absence of hard information, Souter-replacement coverage has taken the form of gossip, speculation, and overly opinionated editorializing -- present company included. 

Clerquette can't help but notice the slightly wistful tone that, in recent days, has crept into the voices of some members of the punditocracy. Everyone wants something different in a nominee, but Clerquette can't help but feel, at times, as though she is reading an ad on Craigslist Match.com for an ideal candidate.

Choosing a Supreme Court nominee is hard! As a preliminary matter, Clerquette thinks we can all agree that the nominee must be a nominette, which narrows the field - though not by much.  And she has to look good in black, which shouldn't be hard. But some of the desired qualities of this UberJudge are beginning to emerge, giving shape to the collective vision of the judicial fox who will occupy the Souter seat. As reported by Adam Liptak in this article, there appears to be a collective yearning for a nominette who is "bigger and bolder."  According to Professor John McGinnis, she should also be "a very good writer." Editor Fred R. Shapiro agrees, noting that the current court is "eloquence challenged."

Of course, she has to be intelligent. But are garden-variety smarts enough to get our nominette to the A-list?  Not even close. Even those with divergent opinions about the mystery candidate's other qualities agree: she must be a worthy adversary playmate for Nino, who reigns as the Simon Cowell of The Supremes. 

Should she be gay, or at least "gay friendly"? The jury is out. And while no one has said, directly, that she should be attractive, a number of speculators have implied that the portly need not apply. Finally,the emerging consensus is that our Supreme nominette must posses the ill-defined quality of "empathy." (Empathy, scoff conservative critics doing their advance work, is just another word for being partial. Indeed, they insist, a justice should be a cold, hard machine, with "empathy for no one." Meow!)

So, dear readers: here's your assignment. Clerquette wants to see your best effort at a personal ad, describing the perfect match for Nino, the Judicial Diva of our dreams, the Empathetic (or Ice) Princess, who will lead us from the current, wit-free landscape and into the lush forest of eloquence and spitfire ... you get the picture.  Bring it, Groupies!

District Court Judges: the New Black

by Clerquette

Just as parents claim not to have a favorite child, the above-signed blogress could not possibly choose a pet from amongst the fruitful branches of the Article III judiciary. Clerquette does, however, have a special place in her heart for members of the District Court, who she considers the unsung heroes of the federal bench. In addition to being a colorful and fascinating crowd, District Court judges are Fixers, capable of handling just about anything that comes their way. Need a TRO? Your local DJ can hear your plea, despite the fact that you waited until 4:22 on Friday afternoon to make it. Wondering if anyone will make it through the endlessly-pronged analysis required to test the mettle of your employment discrimination claim? Your District Judge has a special superpower, to wit: the ability to determine whether the evidence, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact. And assuming, arguendo, that you'd like to see your local Ponzi schemer sentenced to a stint in the pen, who ARE you going to call? That's right, dear readers: you'd turn to someone who has slogged through the Booker-Fanfan Swamp and knows just how to navigate the smooth superway known as 'Route 3553.'

Clerquette could go on and on. You get the idea: DJ's are more than just Superhot faces: they are the craftsmen and women of the bench, the Master Carpenters (and we all know the heights to which a carpenter has been known to rise ...). For the foregoing reasons, Clerquette was delighted to read this article by Senior District Judge Ann Aldrich in today's New York Times. Judge Aldrich posits that, if POTUS wants it done right, the ideal nominee to this bench would be (you guessed it) a judge who has served on a federal trial court. As Aldrich explains, the Supremes (past and present) generally lack "the practical experience that is necessary for providing district courts with clear and workable directives."  The result, she writes, are decisions which result in the required application of vague or confusing standards, which the district courts struggle to apply (often with inconsistent results).

The appointment of a DJ would infuse the Court with a "touch of practical knowledge and understanding," says Aldrich (who, incidentally, bears an odd resemblance to Alice, of Brady Bunch fame). Hmm. POTUS is known as a "pragmatist," and has expressed a commitment to nominating a replacement for DHS who will understand "how our laws affect the daily realities of people's lives." Will he look deeper in the applicant pool ... past the Woods, the Wardlaws, the Sunsteins, and of course, the Sotomayors and Kagans? That remains to be seen. Clerquette will be watching.

E-mail me at [email protected]

or find me on Twitter or Facebook!

SCOTUS Leaderboard: Sotomayor's Flub

by Clerquette

Well, dear readers, it looks (to this blogress, at least) as though Judge Sotomayor's slide down the Leaderboard continues. The Washington Post reported today that, at a 2005 speech at Duke Univeristy, Judge Sotomayor told the crowd that. "[a]ll of the legal defense funds out there, they're looking for people with court of appeals experience" because "the court of appeals is where policy is made." Perhaps Judge Sotomayor realized the error of her ways; reports the Post, she "then sought to soften the statement, adding lightly, "I know this is on tape and I should never say that, because we don't make law, I know. Um, okay. I know. I'm not promoting it, I'm not advocating it." The audience then "laughed as she brushed off the statement, perhaps sarcastically."  Um, er ... yeah.

As our readers are well aware, Sotomayor may have packed the conservative cannon with fodder with her (arguably) imprudent comments.  After all, if her speech had been subtitled, it may have been translated loosely as "I believe that the Court of Appeals is a place where judicial activism is alive and well" or "Judicial activism rocks!" More to the point, most conservatives will hear these words, whether they were uttered or not. Clerquette hears something else: the sound of rancor, which will inavriably develop if POTUS puts forth a nominee with "activist" tendencies. 

Recent news regarding other nominees raises additional questions about who the true front-runners may be in the Amazing Race to One First Street. As Politico reported this morning, two of the top contenders - Kathleen Sullivan and Pam Karlan -- are openly gay. Although Clerquette applauds these scholarly sirens for their pride, she has to wonder whether POTUS and his gang -- hardly vocal advocates of gay marriage -- are ready to be as loud and proud about their support for a gay nominee. Even with a near-filibuster-proof majority in the Senate, Clerquette wonders whether either side is ready for the down and dirty confirmation battle that either Sullivan or Karlan would face.  Indeed, just thinking about it -- all the picketing, the Glenn Beckering, the chance for Sarah Palin to reappear and tell us all about "family values" -- makes this blogress want to decompress with a hot bath and some leftover Percoset.  

In other words, though Clerquette admires and respects Sotomayor (who, she hastens to remind you, is still a Judicial Diva!), Sullivan, and Karlan, all three ladies may be "over par" at the moment.  Stay tuned, Groupies. 

Thoughts? Opinions? Tips?  Email me at [email protected] -

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Confirmed!

by Clerquette

Sorry, Article III groupies: Clerquette didn't mean to feed you a piping hot dish of "What did I miss?" Alas, there are no new judicial confirmations to report (or, for that matter, fresh stats from the SCOTUS Leaderboard).

There is, however, confirmation of a delicious piece of  judicial intel reported here by intrepid reporter (and co-blogress extraordinaire) A3G. To refresh your collective recollections, one of A3G's trusty tipsters attended a SCOTUS oral argument back in March. The tipster, in describing his/her visit to the court, told A3G that: 

The real interesting part was that on my way out about an hour after argument, I passed Justice Souter standing near the security gate at the side door (near the cafeteria). He was just standing there, apparently waiting for someone. I get outside, and there, walking up the ramp towards the door, is Patrick Leahy, sans entourage.

[Ed. note: Readers of UTR are the kind of people who don't need to be reminded of this, but Senator Leahy is chairman of the Senate Judiciary Committee - which plays a central role in handling Supreme Court appointments.]

As fellow groupies are aware, rumors of the Souter-Leahy redezvous, as well as Justice Souter's late-term clerklessness, were two early indicia of what is now known to all: Justice Souter's plan to live free or die.  

The news, dear readers, is that the Souter-Leahy lunch (and, a fortiori, A3G's hunch) have now been confirmed. Both Politico and the Congressional Quarterly Blog report (here and here) that Senator Leahy one-upped the rest of the judgerazzi in more ways than one. First, Senator Leahy may have been the first to learn of DHS's plans, a secret that Clerquette hopes the Senator cherished in a manner reflecting its sanctity (i.e., by writing "I know a secret about DHS!!" in his Hello Kitty diary, or its Senatorial equivalent). Second, Leahy reports that he "got a beautiful handwritten note from Souter," which -- in Clerquette's opinion -- trumps the two-line letter submitted by the Justice to POTUS. Finally, lest we negelct the obvious "dish," Leahy and Souter went out to lunch. Yes, friends: Lunch. Considering DHS's storied habit of bringing - and eating - the same thing for lunch every day (one apple, including core; one cup yogurt), Clerquette thinks that a casual lunch on the town may have been both the figurative third horseman of the apocalypse, and the finest feather in Senator Leahy's cap. 

What the two ate, however, remained a matter of speculation as of press time. 

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SCOTUS Leaderboard: Is the Smart Money on Kagan?

by Clerquette

Happy Cinco de Mayo, dear readers! Clerquette hopes that you all have some festive activities planned for later today (or lunchtime, depending on how slow your practice is at the moment) to celebrate both the cooption of this traditional holiday by the likes of Corona and Tostitos, and your escape from the ravages of swine flu. But first, Clerquette would like to direct your attention to two pressing issues.

First and decidedly foremost is the matter of Justice Souter's replacement. As we all know, the most important quality in any replacement is merit. Clerquette also has a fabulous bridge to sell you (water views; easy access to transportation - any takers?). Of course, there are also secondary, but still important considerations, like diversity -- in all its many, splendored forms. Thus, given that Justice Ginsburg is now the single, lonely woman on what is otherwise a Boy's Bench, Clerquette thinks we can all agree on the rebuttable presumption that POTUS's eventual nominee will be a woman.

The question of course, is which judicial fox will occupy the Souter seat. As you know, our/ATL's leaderboard points to General Kagan and Judge Sotomayor as front-runners.  But, while some Court-watchers (and POTUS fans) are unabashedly agog at the possibility of the "diversity double" that would be accomplished by Judge Sotomayor's nomination, a few interesting rumblings to the contrary have emerged. Point I: a number of commenters, including Adam Liptak of the New York Times, have pointed out that the notion of promoting "diversity" amongst the Supremes requires both consideration of  personal characteristics and credentials and a good, hard look at the presumptive nominees' path to power. Given the homogeneity of the current bench, which consists entirely of former federal judges (who are, admittedly, irresistible!), might POTUS seize this opportunity to mix it up a little? He has, after all, identified Justice Earl Warren as his personal judicial dreamboat, citing Justice Warren's political background and the pragmatism with which it infused his juristic decision-making.

But wait: there's more! In an article so chock-full of Article III gossip that Clerquette read much of it while breathing into a paper bag (narrowly avoiding a dramatic swoon) esteemed law professor Jeffrey Rosen writes that Judge Sotomayor may not be quite ready for prime time. Although she gets high marks for sass and biographical appeal -- not insignificant qualities -- Rosen reports that some have raised doubts about her strength on the merits. For example, he writes, many of his sources have "expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative." Gasp! Juicier yet, Rosen quotes a former Second Circuit clerk who opined that Sotomayor was "'not that smart and kind of a bully on the bench.'" The clerk also noted that Judge Sotomayor had what sound (to this blogress) like patent indicia of divadom: specifically, said the clerk, "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." Colleagues seem to agree. According to Rosen,

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Clerquette loves a good diva, and admits that a colorful personality might spice up the otherwise staid Supreme armada. Having said as much, Clerquette thinks that apotheosis to the highest bench in the land should be reserved for the super-hottest judicial minds, and is deeply distressed by the thought of a sub-par intellect making the vertical journey. 

Based on the above, could General Kagan have an elegant leg up on Judge Sotomayor? Consider this: as Professor Rosen noted in an interview this morning , Kagan brings "a unique combination of intellectual dazzling firepower and also tremendous personal skills," and "did such a good job, at Harvard Law School, of convincing not only liberals but conservatives to converge around common outcomes."  In short, Kagan (a) has a non-judicial background (which might appeal to POTUS's penchant for the pragmatic), (b) is a consensus builder (much like her putative predecessor, Justice William Brennan), and (c) is brilliant. Could she be on the verge of overtaking Sotomayor?  Among other things, her ascendance to the High Court would solve many thorny wardrobe issues.

Clerquette realizes that you, dear readers, probably have a few billable matters to attend to, and thanks you for patiently reading her long rumination. But before you go, we must address Point II.  Clerquette expects an answer to the following question (and yes: that was the sound of the whip cracking, my darlings):

For scoring purposes, is the Sotomayor v. Kagan faceoff match play, or stroke play?

Toodles!

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Underneath Justice Souter's Robe

by Clerquette 

Welcome, dear readers, to the First Monday ... of the Post-Souter World.  What's that, you say? Do I hear the Groupie contingent gently reminding Clerquette that Justice Souter is, for the time being, still a member of The Supremes?  

Clerquette thanks you for your commitment to accuracy, and assures you: she is well aware that Justice Souter remains ensconced in his dimly lit chambers at One First Street. But (Clerquette noticed over the weekend) in addition to the sudden crop of bettors on the Souter replacement (present company proudly included!), a crowd has gathered to essentially eulogize Justice Souter, and to praise or criticize his contribution to the Court. 

Of course, Clerquette was pleased to read the many, thoughtful analyses of Justice Souter's jurisprudential legacy, which was not unlike a short, mental journey back to Con Law class. But Clerquette was downright delighted by some of the more personal tidbits about the Justice -- the Souter trivia, rendered, in some cases, by those who know him best. Clerquette is referring, of course, to the Souter branch of The Elect. 

Past clerks are, of course, generally respectful of their Supreme benefactors' privacy (does that sound too "Axis of Evil"? Clerquette means "the Justice for whom they clerked") and not inclined to dish dirt. Propriety does not, however, militate against the disclosure of endearing, quirky details about the Supremes, which are like chicken soup for the Article III groupie's soul. 

A particularly fine piece, which included both a summary of Justice Souter's professional accomplishments and a delicious helping of Souter trivia, is Kermit Roosevelt's comparison, in Slate, of Justice Souter to Cinncinatus. And another former clerk, Heather Gerken, offered more general praise for a man she calls a "judge's judge," and a "courtly  lawyer" in the NYT.  Although many Court-watchers have long been aware of the Justice's aversion to technology (and resultant practice of writing opinions in longhand), we have been treated some other delectable pieces of Souter trivia, old and new.  See, e.g.,  

- The ever-thrifty Justice Souter was, at times, known to read by natural (though sub-optimal) light, rather than wasting electricity;

- Justice Souter brought his lunch, consisting of a yogurt and apple, every day; and

- was known to reheat yesterday's coffee in the microwave.  (Aha! One technological innovation that the Justice did partake of!)

Clerquette loves the personal quirks and delicious details of the Article III personality ... and The Supremes in particular!  That is a not-so-subtle hint, dear readers, for a bit more fodder to feed this groupie's soul.  

In the meantime, Clerquette's eye remains on the SCOTUS Leaderboard ... 

E-mail me at clerquette@gmail. com ...

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Pleased to Meet You, Groupies

By Blair Lawdorf

Greetings, Judicial Gossipmongers. Exciting times are upon us once again: speculation on a new Supreme! I'm here to help Clerquette and A3G whip you readers into a frenzy faster than you can say "Meemaw Miers."

Like my colleagues, prestigious educational institutions have been blessed with my fabulous presence. But my dreams of a long career in Big Law were brutally dashed when I was laid off in the Great Law Firm Massacre of '09. Sadly, I have been forced to toil away as a do-gooder in a nonprofit while I plot my reinvention. What better way to climb back to the top than through the chambers of a Hottie of the Federal Judiciary? So in the meantime I have traded in my Loubous for some Lanvin flats while I entertain you.

The standard UTR policy applies: send me your juicy tips and I promise I will keep your contributions anonymous (unless of course I have your consent): [email protected].

XOXO,
Queen B

SCOTUS Leaderboard: Sotomayor v. Kagan

by Clerquette

If, like Clerquette, you spent the day secretly hoping for a decent -- or, for that matter, ANY -- tidbit of information about who might succeed departing Justice David Souter, you are probably a tad frustrated by now. Although Clerquette is well aware that actual beta regarding potential nominees will not emerge for some time, a girl can dream, right?  

Clerquette was momentarily hopeful when, late in the day, POTUS made a surprise cameo at a press briefing in order to discuss Justice Souter's retirement.  Hope was short-lived. POTUS merely explained that, in Souter’s replacement, he is looking  for someone “who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives."   Snore.  Thanks for nothing, POTUS.

Needless to say, POTUS's opaque remarks did nothing to assuage Clerquette's appetite for a hot scoop of judicial dish. So, dear readers, Clerquette notes sadly that the only tidbit to emerge from this day of diligent speculation, guesswork, and wagering is that Judge Sonia Sotomayor is now leading General Elena Kagan in the  ATL reader poll, which asks who (of the nine most popular putative candidates) should replace Justice Souter.  

Clerquette does not envy the poor soul who will ultimately have to decide between these two uber-achieving dynamos of the federal bench and bar (respectively).  Both natives of New York City, both graduates of Princeton University, and both Law Review editrixes (Sotomayor at Yale, Kagan at Harvard), these ladies have distinguished themselves in more ways than Clerquette can count.  

That's where you come in, dear readers.  Clerquette is looking for your well-reasoned opinion as to who should move up to the dee-luxe bench at One First Street: Sotomayor, or Kagan. Your criteria for ranking can be extra-judicial (within the bounds of propriety, of course), and supported by illustrative exhibits and hearsay.  Clerquette looks forward to hearing -- in your words -- why Judge Sotomayor or General Kagan should be rewarded with the ultimate "green jacket": the neck doily.

E-mail me at clerquette@gmail. com ... 

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Justice Souter Replacement Watch: One Circuit at a Time

by Clerquette

Whew! Clerquette never thought that late-night breaking news from One First Street would keep her up past her bedtime ... but that's one of the many things that the above-signed blogress loves about The Supremes: the way they keep us guessing.  In any event, Clerquette fell asleep counting potential nominees who -- instead of leaping, sheep-like, over little fences -- were jumping through hoops before the Judiciary Committee.

Alas, Clerquette was unable to divine the names or identities of these nominees as they frolicked by (robes flowing, gavels in hand), although the herd of her dreams definitely included afore-mentioned notables Kagan, Sotomayer, Wardlaw, Sullivan, Patrick, Koh, and Wood.  And Clerquette's third grade teacher, which was weird.

This morning's news brings us no relief from the information void: there is much speculation, a few more guesses, a lot of hat, and very little cattle.  While our friends at Above the Law have set up a poll so that you, dear readers, can weigh in about your favorite putative picks for Souter Successor, Clerquette is hoping for more dish on potential candidates from "behind the headlines." In other words, Clerquette wants to hear your humble opinions about contenders, dark horses, and diamonds in the coal from your neck of the woods.

One thoughtful tipster has already weighed in from the Eleventh Circuit.  According to our tipster, we shouldn't overlook Barbara Pariente, a "former chief justice ... with a very strong liberal streak."  On the other hand, Justice Pariente does come from the Sunshine State, where (as the name implies) appellate arguments are available to all.  As we know, when it comes to being a S. Ct. nominee, being a little less, er, "well-documented" is generally thought to be preferable.  Moreover, Pariente's husband, [State] Judge Fred Hazouri, sits in Broward/Palm Beach. Clerquette thinks that, based upon the enumerated factors, Justice Pariente might look better on a list of possible nominees for a seat on the 11th Circuit.

Another possible candidate mentioned by our tipster is 11th Circuit stalwart Rosemary Barkett, who would make a dreamily liberal -- and fantastically diverse -- nominee for aspiring egalitarian BHO.  Judge Barkett was born in Mexico to parents of Syrian descent and convent-raised (though she eventually went free-range), and served on the Florida Supreme Court from 1979 until her ascension to the Court of Appeals in 1993. Indeed, based on Judge Barkett's interesting heritage, she is often considered the first Hispanic, first Arab-American, AND the first woman to serve on (and then preside over, as Chief Justice) Florida's highest court.  How's that for a troika?

Judge Barkett, however, is also nearing age 70. Although 70 is, in Supreme Court terms, virtual adolescence, speculation is high that BHO may be on the lookout for a slightly younger candidate to carry the mantle of establishing a Supreme Court legacy.  (Translation: they should be reasonably calculated to outlive Roberts, Alito, and Thomas.)  

As for other possibilities from the Sunshiney States of the 11th Circuit: another tipster suggests Clinton appointee Charles Wilson.  Although Wilson clearly lacks the Double X factor, he is African American and, at age 55, might still be carded at the doors to One First. 

Clerquette must return, at least for now, to the grind of non-Souter-related matters. Oh, the horror, given this moment of Article III zen! Clerquette's ear will be to the ground, and her eye will be on her inbox ...

Please, feel free to e-mail me at [email protected] 

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