Underneath Their Robes

Amended Opinions: A Few Corrections and Addenda

Well, that's why they call it gossip! Two other "little birds" have informed Article III Groupie that her prior intelligence concerning Professor William Kelley is incorrect. According to the first source, Professor Kelley is potentially headed for a new position, but not for a seat on the D.C. Circuit. Instead, Kelley may be taking "a high-level, law-related position in the Bush Administration." A second source offers more specific information: "Kelley is going to the White House as a Deputy Counsel. (Perhaps this is a way station for a D.C. Circuit post.)"

A3G has a high degree of confidence in her latest avian advisors, so she apologizes for her apparent error. She would also like to use this occasion to echo the following observations of Professor Randy Barnett: "If I make the slightest factual error in a blog post, I can count on the readers to point it out PRONTO.... And unlike traditional journalism, I have a ready means to correct errors almost instantaneously."

If Professor Kelley doesn't end up at the White House Counsel's Office, A3G notes that the following two positions remain open: (1) Solicitor General, or (2) principal of the Finishing School for the Elect, i.e., Assistant Attorney General for the Office of Legal Counsel. At the current time, both of these posts are held by "actors": Acting SG Paul Clement, and Acting AAG Steve Bradbury. Does anyone have tidbits concerning when these positions might be filled, and who might be filling them?

(If A3G had her pick of these two jobs -- which she never will, since she is one of the Great Unwashed -- she would choose option (1). She would much rather be strutting her stuff at One First Street, showing off her newest pumps to the justices, than issuing an opinion on "whether canteen service provided through the Veterans' Canteen Service ('VCS') is exempt from review under the Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382 ('FAIR Act').")

While A3G is in the process of correcting and following up on prior posts, she will offer a few additional addenda and interesting reader correspondence. Unlike her correction concerning Professor Kelley, however, these items are rather untimely; some of them relate back to posts that are weeks old. (Their staleness is the result of A3G's hiding from her blog over the past few weeks.)

1. Back in this post, A3G inquired as follows of her readers: "A3G has heard that, in the past few years, Judge [Kim McLane] Wardlaw has been the Ninth Circuit judge most frequently vindicated in the Supreme Court. Can anyone confirm this?"

A reader offered this commendably detailed response:

[Y]ou asked a question about Judge Wardlaw's review rate before the Supremes. Her record is impressive: See Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001) (en banc) (Wardlaw, J.), aff'd, Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) (Stevens, J.); Alaska v. United States EPA, 298 F.3d 814 (9th Cir. 2002) (Wardlaw, J.), aff'd, Alaska Department of Environmental Conservation v. EPA, 124 S.Ct. 983 (2004) (Ginsburg, J.); Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) (Wardlaw, J.), aff'd, 124 S.Ct. 2240 (2004) (Stevens, J.); City of San Diego v. Roe, No. 03-1669 (Dec. 6, 2004), rev'd, 356 F.3d 1108 (Wardlaw, J., dissenting).

Another reader furnished this additional information:

In terms of the #2 Superhottie's record before the Supremes, there was a pretty heated discussion over on the Greedy Clerks board a few months back that cited her record (you previously referred to it in one of your prior posts). It has all the 411....

However, because I know you value the truth, despite my overwhelming love for Judge Wardlaw, I must tell you she was once reversed. Yes, it is true. I think the case is Public Citizen -- it involved NAFTA and whether Mexican trucks should be let into the U.S. To make matters worse, it was a 9-0 decision. (But, unlike in San Diego, where a per curiam opinion sufficed, Justice Thomas actually wrote an opinion explaining her error. (As an aside, I believe Judge Reinhardt was on the Public Citizen panel!))

Nevertheless, even with this one-time error, she is 4/5 in authored opinions/dissents getting the nod by the Court. I don't think there is anyone on the Ninth, or any other circuit for that matter, who comes close to her (albeit in recent years).

A3G thanks her readers for this intelligence concerning one of UTR's most favorite judges (whom A3G interviewed, as you may recall, back in November 2004).

2. In this post, A3G commented as follows:

[T]he individual at the James Madison Dinner [of the Federalist New York Lawyers Chapter] who expressed enthusiasm for UTR is believed to be Jodi Balsam, the chief organizer of the dinner. A3G hopes this is the case! Ms. Balsam is a high-powered, conservative female lawyer, as well as a founder of the NYU Federalist Society. She sounds like a woman after A3G's own heart!

And now, A3G is delighted to share with you some correspondence from Ms. Balsam herself:

Dear A3G - I was thrilled to see my name mentioned in UTR’s Dec. 11 post, as undeserving as I am to be included in the same post as so many luminaries of the federal and state benches. Yes, it was I who shared my enjoyment of UTR with another guest at the Federalist Society James Madison Award Dinner. You might even call me an A3G-G, to borrow a phrase from your favorite Tax Court judge. And the answer to your question at the end of your Dec. 6 post is an unqualified yes.

Not that any of your posts have ever disappointed me, I was surprised that you did not mention that Judge Dennis Jacobs of the Second Circuit Court of Appeals also attended the Federalist Society dinner, and in fact co-chaired the dinner committee, giving warm and witty remarks to an appreciative crowd.

If it seems from my detailed recall of your posts that I have way too much time on my hands, you are probably right. Not only am I a member of the Great Unwashed (my clerkships were in the S.D.N.Y. and the Second Circuit Court of Appeals), I am also a member of the great underemployed, having decided to cut back on my law career to raise a family. I’m still making time for my local Federalist Society lawyers chapter, but that hardly makes me a “high-powered, conservative lawyer.” I nonetheless thank you for your kind words and would be privileged to be considered “a woman after your own heart.”

Looking forward to many more delightful UTR posts,

Jodi Balsam

A3G thanks Ms. Balsam for her absolutely delightful missive -- as well as for pointing out the omission of Judge Jacobs from her discussion of the James Madison Dinner. She also commends Ms. Balsam for taking some time away from her legal career to focus on her family. Some of you may be surprised to hear such thoughts from A3G, who may strike some of you as obsessed with her career. But if A3G seems career-obsessed, it's largely because she has nowhere else to direct her energies; she has not yet been blessed with a husband and children. (But she does have a hunky date for Valentine's Day, thanks for asking, and she wishes her readers a belated Happy Valentine's Day!)

3. In the earliest version of her quiz about Judge Michael Chertoff, A3G stated that Eddie Antar of the "Crazy Eddie's" chain of electronics stores would appear in his own television advertisements. This was incorrect; the person who shouted out the store slogan in the TV spots was an actor. A3G thanks the many UTR readers who informed her of this error (which she previously corrected, in the original post).

********************

As you can tell, A3G cares a great deal about accuracy. As a blogger, A3G cannot hide behind the masthead of a mass media outlet. Rather, her credibility is her only currency. She deeply regrets all errors, including her latest mistake concerning Professor Kelley. (But she begs for your indulgence: in the world of gossip, boo-boos are inevitable.)

A3G thanks all of you, her loyal readers, for promptly correcting her when she errs. And she respectfully requests your continued cooperation in helping to make "Underneath Their Robes" as accurate as possible.

Reversed and remanded,

Article III Groupie

P.S. It appears that some people are getting a little tired of reading UTR. To tell you the truth, A3G is getting a little tired of writing it. It's starting to feel stale to her, with a tiresome tone and repetitive jokes. She isn't ready to close UTR down -- the fate of some of her favorite blogs, such as Skallawwag and Curmudgeonly Clerk. But she's going to post less frequently (which she has already started doing), and she's going to stop feeling guilty about it (which she hasn't started doing).

UTR News and Views: Mr. Kelley Goes to Washington?

"EXTRA! EXTRA! Read all about it!" A little bird tells Article III Groupie that William K. Kelley, a law professor at Notre Dame Law School, will soon be nominated to a federal appeals court. And it looks like we're not talking about any old appeals court. Rumor has it that Professor Kelley may be bound for one of the most exalted courts in the land, whose name A3G's glossy lips are not worthy to utter: the U.S. Court of Appeals for the D.C. Circuit!

As review of his fabulous résumé discloses, Professor Kelley is no stranger to the hallowed halls of the Prettyboy Courthouse. After graduating from Harvard Law School, where he served on the Law Review, Kelley clerked on the D.C. Circuit for Judge Kenneth W. Starr. (At the time, Judge Starr was a top-ranked feeder judge, one of the most powerful battleships in the legal conservative fleet -- well before he ran aground on the treacherous shoals of Monica Lewinsky...)

Like so many D.C. Circuit clerks, Professor Kelley then joined the ranks of the Elect, clerking for Chief Justice Warren E. Burger and Associate Justice Antonin Scalia. In the years since One First Street, Kelley practiced at two major law firms and served, under Ken Starr, in the Solicitor General's office (the only branch of the Department of Justice more prestigious than Finishing School for the Elect).

The rumor of Professor Kelley's imminent apotheosis raises a few questions. First, is there a spot for him on the D.C. Circuit? The court has twelve authorized judgeships. At the current time, there are nine active judges on the court and three nominees for the open slots: Brett M. Kavanaugh, Janice Rogers Brown, and Thomas B. Griffith. (As you surely recall, the nomination of Miguel Estrada was withdrawn in September 2003. By the way, the kid from Tegucigalpa is a good friend of Professor Kelley and a strong supporter of his candidacy for a judgeship.)

One possibility is that Professor Kelley is being groomed for the spot that may open up when Judge Harry T. Edwards takes senior status, which is rumored to be happening in November 2005. But it seems a bit early to be vetting someone for a position that may (or may not) open up in nine months. So here's another, more interesting possibility: Could the White House be thinking about jettisoning one of its three current nominees to the D.C. Circuit, all of whom have engendered enormous controversy?

It's not likely to be Janice Rogers Brown. According to additional D.C. Circuit rumor-mongering, next month the Senate Republicans will be using the "nuclear option" to break the Democrats' filibuster of the Uppity Black Diva. (Thanks to Nomination Nation for the Novak link.)

And now, a digression on Justice Brown. Rumor has it that Janice Brown was first offered a spot on the Ninth Circuit, which would have been a far more logical appointment for her as a justice of the California Supreme Court. But she declined the post. Keeping her eye on the ultimate prize of the Supreme Court, she insisted upon the D.C. Circuit, well-recognized as a way station for One First Street. Her message to the White House: "The Prettyboy Courthouse, or bust!"

A3G can't help admiring the chutzpah of a diva who rejects a nomination to the Ninth Circuit like a plate of chopped liver. In hindsight, however, Justice Brown may have made the wrong choice. In light of the opposition engendered by her nomination to the D.C. Circuit, she probably would have been better off simply taking a seat on the Ninth Circuit. As a sitting justice of the California Supreme Court, she would have been an eminently sensible nominee to the Ninth Circuit -- and very difficult for senators to oppose. And she still would have had an excellent shot of making it to One First Street via the Ninth (which was AMK's path to the Court).

Okay, back to Professor Kelley. If he's about to be nominated to the D.C. Circuit, and if it's "full speed ahead" for the Uppity Black Diva, does that spell trouble for the nominations of either Brett Kavanaugh or Thomas Griffith? Is the White House thinking of pulling the nomination of Griffith, under fire for failing to pay his bar dues? Or will they withdraw the nomination of Kavanaugh, who has been attacked as a conservative partisan? Have the savvy operators in the White House Counsel's Office hatched a plan for rewarding the loyal (and brilliant) Kavanaugh with some other post -- such as a high-level DOJ appointment? Stay tuned...

Very well, that's enough speculation for now. A3G will now leave you with a few tidbits about the "Deliciously Cool" Circuit that she believes to be fairly reliable. First, here's a detailed eyewitness account of the court's recent en banc argument in the Cheney energy case:

In case you missed this superstar laden event, the D.C. Circuit (en banc!) heard arguments in the remand of the Cheney energy task force case on [the morning of Thursday, January 27]. Arguments took place in the posh "ceremonial courtroom" on the sixth floor of the federal courthouse in D.C. And the intellectual firepower present did not disappoint. Acting Solicitor General Paul D. Clement (Silberman, Scalia) argued the case for the United States. Accompanying him at the table, among others, was Deputy S.G. Edwin Kneedler, who makes frequent appearances at One First Street.

The first rows were filled with the elite appellate attorneys from the Department of Justice's Civil Appellate division and the S.G.'s office. Adding a bit of tension to the situation... in two large jury boxes at each side of the courtroom sat clerks to the eight judges on the bench (Ginsburg, Edwards, Sentelle, Randolph, Rogers, Tatel, Garland, Roberts), including at least a few recognizable Tatel-tots. Many of those fortunate folks willl soon do the heavy lifting for the Supremes. I counted myself alongside other awestruck law students in attendance.

Second, here's a recent sight-ation of Judge Sentelle, sporting a cowboy hat, addressing a gathering of the Columbia Law School Federalist Society. According to a UTR source, Judge Sentelle "is a fan of UTR, and [he] knows that his clerks are referred to as Sentelle-tubbies."

Third, A3G would like to dispel certain myths about the D.C. Circuit. Just as the beauty and glamour of Hollywood celebrities spawn all sorts of untrue rumors, the splendor and magnificence of the D.C. Circuit have similarly generated unfounded gossip. The following, frequently repeated rumors about the court are not true:

1. Each judge of the D.C. Circuit, upon entering into service, receives a solid gold gavel encrusted with diamonds (custom-made for the court by Harry Winston). Each gavel is so heavy that it takes two hands to lift it!

2. Before the D.C. Circuit judges enter the courtroom for oral argument, a courtroom deputy unfurls a crimson carpet from the robing room door to the bench, then showers the carpet liberally with rose petals. Fabulous!

3. Every time the court sits en banc, it hires a masseuse and a masseur to give the judges post-argument rubdowns -- full body massages, natch.

4. Under Chief Judge Edwards, the collegiality of the D.C. Circuit left something to be desired. To improve relations between judges, Chief Judge Ginsburg instituted the following tradition: before the beginning of each court meeting, the judges dance around their conference table, to the thumping beat of Gonna Make You Sweat (Everybody Dance Now), by C+C Music Factory.

The judges wear their judicial robes for this ceremonial dance, and they "bust a move" in the exaggeratedly theatrical, high-energy style of music video backup dancers. The best dancer on the court is Judge Judith Rogers, whose signature move involves making the sleeves of her robe cut through the air like kites.

Even if the foregoing items are merely urban legend, the D.C. Circuit is still a magnificently fabulous court that deserves our utmost veneration. A3G hereby calls upon her readers to form a circle, hold hands, and raise their voices in song: "Let us praise the D.C. Circuit with trumpet sound; with harp and lyre; with timbrel and dancing; with stringed instruments and pipe (no, Chief Judge Ginsburg, not that pipe). Let everything that has breath praise the D.C. Circuit!"

On bended knee, before her shoebox diorama of the Prettyman Courthouse,

Article III Groupie

Searching Underneath the Robes: "when should girls wear thongs"

Awakening from her blogging torpor, Article III Groupie is trying to get back into the habit of posting. And few posts are easier to shoot off than those in the Searching Underneath the Robes category. So here are some of the more funny and interesting internet searches, conducted with Google and other search engines, that have brought web surfers to this blog:

1. Some people come to UTR seeking practical information, such as fashion tips, shopping recommendations, and employment advice:

--when should girls wear thongs
--where do nuns buy their underwear?
--common interview questions olive garden

2. Some people reach this blawg by running very weird searches, many of which have nothing to do with the federal judiciary. Here are the finalists for UTR's "WTF Prize":

--names of people who can do weird things with their private parts

--letters by horny female writers

--sexy girls white ice cream

--rehearing food chafing dish

--gay men in santa's clothes

--my son got 84 months in federal how maNY MONTHS IS HE GOING TO GET FOR THE HALFWAY HOUSE

--Yes, Audrey, you do need past present and future people on you power point for Ohio

--SLAPPED IN THE BALLS

--how to wish someone a happy birthday who has passed away

--pictures of good looking nuns

--Homicide case in california 2004 lady was a groupie

--two girls sitting at a computer with their thongs showing

--has steven hawkins [sic] ever had sex [Answer: presumably yes; Professor Stephen Hawking has three children]

3. And some people run searches that A3G finds depressing and pathetic:

--robes under 40 dollars
--how to become a state court judge
--become a new york state traffic court judge

4. Uh, try "1-900-FEEDER":

--Judge J. Michael Luttig phone number

5. Please, darling, get it right -- it's "Groupie":

--"article III" slut whore

6. A3G's advice: be brilliant, and have an IQ over 200:

--How to clerk for Richard Posner

7. How about "a lifetime appointment to a federal court"?

--what makes middle age men hot

8. Well, it's long, and it's hard, and it has a knobby head:

--what does a gavel look like

9. Don't hold your breath, honey; the Chief has bigger fish to fry:

--WILL JUSTICE REHNQUIST RESPOND TO MY LETTER

10. A3G's proposed response: "Faff about One First Street, while meditating on your own brilliance; mourn the closing of the Supreme Court barbershop, including dropping the name of your favorite barber; and lazily turn the pages of cert petitions, while members of the Great Unwashed feed you peeled and seedless grapes."

--US SUPREME COURT CLERK JOB DESCRIPTION
--life of a high court judges clerk

11. Only in A3G's dreams:

--prada courthouse

12. And only in A3G's nightmares -- God save that Honorable Court!

--justice reinhardt
--justice betty b fletcher
--justice sandra lynch

Fascinated by Google Suggest (go there and start typing "underneath their robes"),

Article III Groupie

Courthouse Forum: Jeffrey Toobin!

Article III Groupie realizes that she has been neglecting her blog since the start of the new year. To be sure, one of her New Year's resolutions was to spend less time on UTR -- but perhaps she has now moved to the other extreme, spending too little time on her beloved blawg. She has numerous draft posts waiting to be revised and published, countless ideas for posts she hasn't even started drafting, and several weeks' worth of reader mail to reply to.

Part of the blame for her blogging backlog lies with her day job, which has been extremely busy as of late. But A3G is beginning to think that her reluctance to blog and to respond to e-mail -- or even to check her blog e-mail account, where the queue of unresponded-to messages grows longer and longer each day -- may be due to avoidant personality disorder. So please don't be upset at A3G for her inactivity; she can't help herself.

These days A3G will seize upon any excuse for avoiding UTR-related tasks. She rationalized her recent laziness by telling herself that she needed to give the blogosphere time to digest her last, massive post -- a deliciously dishy take on the Federalist Society's National Lawyers Convention. Unfortunately, to A3G's disappointment, only a brave few dared to comment upon or link to her Robing Room Report. But even though her latest post didn't get much of a public reception, A3G knows -- from her well-placed spies -- that it generated significant buzz among the legal profession's chattering class.

Well, now that over a week has passed, A3G no longer has that excuse. But she is still plauged by blogging lethargy. So she'll do what she does whenever she's feeling otiose: she will take someone else's words and reprint them (with permission) in her blog, in Courthouse Forum: Letters to Article III Groupie.

Today's magnificent missive, which also includes a request for information (a.k.a. a UTR Discovery Request), comes from a celebrity who needs no introduction:

Dear A3G,

I am a fan of your blog.  I am writing a book about the Supreme Court, and I wonder if you'd post a note -- or this note -- saying that I would welcome any tips, opinions or leads that your readers may care to offer.  I can be reached at [click here for email address].

Many thanks,
Jeff Toobin

No, you don't need Lasik surgery; yes, you read that correctly. A3G just received fan mail from one of our nation's foremost legal journalists, Jeffrey Toobin! For those of you who have been living in a cave for the past decade, Mr. Toobin is the renowned CNN legal analyst, New Yorker legal affairs writer, and bestselling author of several critically acclaimed books.

A3G encourages you all to contact Mr. Toobin with tidbits for his book on the Supreme Court. To kick things off, A3G offers Mr. Toobin her own shamelessly self-promoting suggestion: Wouldn't UTR, and its reception among federal judges, make a great subject for a brief, breezy, brilliantly funny Talk of the Town piece for The New Yorker? Article III Groupie is ready for her close-up -- and insanely jealous of the New York Times write-up received a few weeks ago by the Anonymous Lawyer blog of Jeremy Blachman (who appears to be parlaying his blog into a career as a television writer).*

Turning Prada green with envy,

Article III Groupie

* Speaking of lawyers-turned-writers like Messrs. Toobin and Blachman, lately A3G has been entertaining thoughts of making such a transition (perhaps out of growing frustration with law firm life). To this end, she requests any editors out there who might be willing to give her some freelance writing work to please e-mail her.

More specifically, would anyone be interested in picking up "So You Wanna Be a Supreme Court Clerk"? The piece is a delightful 1,000-word essay containing A3G's advice to law school gunners concerning how to join the ranks of the Elect.

A3G knows what you're thinking: "Dissembling harlot, you are one of the Great Unwashed. I can smell your foul stench through my computer screen. What do you know about getting a Supreme Court clerkship?" Well, even though A3G can't write from personal experience, her article reflects insights gleaned from years of keen, quasi-obsessive observation of those who have made it to One First Street.