Underneath Their Robes

The Race to the Courthouse: Some Insights from the Oscars

After reading A3G's previous post, some of you might be saying: "A3G, you blogged extensively about Judge Samuel Alito not that long ago. Haven't we heard enough about him?"

The answer: of course not! Dear readers, you must understand: a period of Supreme Court nomination speculation* is the federal judicial equivalent of the run-up to Oscars night. The contenders are everywhere, and there's no such thing as overexposure!

Consider the relentless media campaign mounted by Hilary Swank in the weeks leading up to the Academy Awards. She appeared on numerous televsion shows, including 60 Minutes, and graced multiple magazine covers. Did being in the public eye so much hurt her in any way? Absolutely not! (Now, is A3G saying that Judge Sam Alito is like Hilary Swank in a black robe? Well, no -- that distinction belongs to Judge J. Michael Luttig, as explained below.)

As many of you have surely noticed, the race to One First Street bears an uncanny resemblance to the Best Actress race at this year's Oscars. Consider the common archetypes populating both competitions:

The Young Frontrunner (J. Michael Luttig, Hilary Swank): Despite being incredibly youthful, Luttig and Swank are the ones to beat. Their gifts are undeniable; brilliance like theirs comes along once in a generation. Perhaps just as importantly, both are masterful campaigners. Swank was a one-woman publicity machine in the weeks leading up to the Oscars, running a highly effective campaign that was aggressive without being off-putting. And Luttig, while at the DOJ, was the genius tactician behind Justice Thomas's hard-fought confirmation battle.

Now, some people resent Luttig and Swank for their phenomenal success. Some find the inevitability of their victory to be painfully boring. But can "player-haters" prevent the Young Frontrunners from triumphing in the end? Probably not. Swank ran away with the Oscar this year, even though she won an Oscar not that long ago for much stronger work in Boys Don't Cry. So bet against Judge Luttig at your peril!

The Aging Divo/Diva (J. Harvie Wilkinson, Annette Bening): Talented but coming on in years, the Aging Divo/Diva has done battle with the Young Frontrunner before. See, e.g., Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); the 2000 Oscars. Can Judge Wilkinson succeed where Annette Bening failed?

Both Wilkinson (60) and Bening (46) repeatedly emphasize that they remain physically vigorous, despite being older than their leading competitors. Judge Wilkinson likes people to know that he can keep up with his clerks when they go running, just as Bening likes people to know that she can keep up with Warren Beatty in bed. But when it comes to picking Supreme Court justices, presidents can be as youth-obsessed as Hollywood casting directors. Judge Wilkinson has his work cut out for him...

The Highly Respected Journeyman (Samuel A. Alito, Jr., Kate Winslet): Both Alito and Winslet have been on the scene for a while, and they are justifiably held in high regard. For many years, they have been working hard and turning in fine performances. They are personally pleasant, and they are exceedingly well-liked.

But they face the same problem: How can they steal the momentum from their flashier, more aggressive colleagues? Despite his misleading nickname of "Scalito," the unassuming Judge Alito isn't nearly as forceful a personality as Justice Scalia. How can Judge Alito avoid becoming breakfast for Judge Luttig's pack of hungry wolves -- the powerful network of well-placed Luttigators, who all share a cult-like devotion to the aggrandizement of their former boss?

The Deserving Longshot (Michael W. McConnell, Imelda Staunton): According to the people who saw Vera Drake (all 27 of us), Imelda Staunton's remarkable performance in that film was truly Oscar-worthy. Similarly, Judge McConnell, one of the finest legal minds of our time, fully deserves a seat on the Supreme Court.**

But their chances of victory are not high, although for diametrically opposed reasons. Staunton's problem was obscurity: people didn't know enough about her ("Imelda who? Wasn't she that lady with all the shoes?"). McConnell's problem is the exact opposite: people know too much about him, thanks to almost two decades as a prolific, conservative legal scholar. A love letter signed by a bunch of liberal law professors -- in a transparent attempt to pave the way for their own judicial nominations, under President Hillary -- helped him land a seat on the Tenth Circuit. But it might not be enough to get him to One First Street. After combing through Judge McConnell's academic writings, all the major liberal interest groups have him in their cross-hairs.

The Newcomer Hottie (John G. Roberts, Jr., Catalina Sandino Moreno): The "Newcomer Hottie" moniker says it all. Just like the lovely Miss Moreno, Judge Roberts is an undisputed hottie who is relatively new on the scene, appointed less than two years ago to the storied D.C. Circuit ("[On Constitution Avenue] did Kubla Khan / A stately pleasure dome decree...").

As A3G has previously opined, Judge Roberts has a pretty good shot at the Court. His newcomer status could actually help his candidacy: he has less of a paper trail than some of the other potential nominees. He has been a well-behaved circuit judge, and he hasn't issued any crazy or controversial opinions during his short time on the bench. (Sure, he did write the opinion in the infamous "french fry case," but as a legal matter it was obviously the right call.)

It's possible, though, that Judge Roberts could face the same fate that Moreno did: he might lose this time around to someone with more experience (e.g., Judge Luttig). But just like Moreno, Judge Roberts is talented enough, and youthful enough, to be a strong contender in the future. Time is on his side.

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

So what can we conclude after comparing the Supreme Court shortlisters and the 2005 Best Actress nominees? Well, Judge Luttig's nomination is probably as inevitable as Hilary Swank's triumph. An upset victory by an attractive newcomer, Judge Roberts, is the next most likely outcome. Remember how bizarro hottie Adrien Brody came out of nowhere to defeat a slew of more experienced actors to win the 2003 Best Actor race?

Of course, until President Bush holds that fateful press conference, anything is possible. Judges Wilkinson, Alito and McConnell are still in the running, and they should have acceptance speeches prepared just in case. A3G has some advice for them: Don't make the Sarah Jessica Parker/Hilary Swank mistake; remember to thank your wives! And while you're at it, how about a shout-out to your loyal law clerks too?

* A3G is engaging in Supreme Court speculation primarily for entertainment purposes. The extensive media coverage and interest group agitation over the identity of our next Supreme Court justice should not obscure one fundamental fact: at the current time, the Supreme Court is like a motel with a big NO VACANCY sign outside.

** The comparison between Judge McConnell and Imelda Staunton isn't perfect. Why? He has better fashion sense!

At the Oscars, Staunton was widely condemned for her disastrous dress. One commentator said it made her "look[] like she belonged in Oz, not just because of the emerald hue of her dress, but because of the cut; the high waist and mid-calf length skirt was not at all flattering." Another critic said her gown "ma[de] her look bowlegged, and like a troll, not to mention the netting she is dragging along behind her! Hello, you are going to the Oscars, you are not going fishing!"

In contrast, Judge McConnell's attire at the Federalist Society National Lawyers Convention earned him unanimous praise. The following comment is representative: "Who knew that a former professor could dress so well?" More details will follow in the promised sequel to this Robing Room Report, which A3G will hopefully publish before the 2005 convention...

Judicial SIGHT-ation: "Mr. Chief Justice, Paper or Plastic?"

If you haven't already read the recent, juicy New Yorker profile of Justice Antonin Scalia, A3G recommends that you get your hands on a copy of it pronto. It's not available online, but this interview with author Margaret Talbot hints at some of the delights contained therein.

In her article, Talbot identifies "Scalito," a.k.a. Third Circuit Judge Samuel A. Alito, Jr., as a possible candidate for Chief Justice (and competition for Justice Scalia, who has allegedly launched a "charm offensive" for the job of Chief). But Judge Alito can also be spotted outside the New Yorker's august pages. A regular UTR correspondent offers this judicial sight-ation:

Hi A3G. Just wanted to share with you a judicial celebrity sighting of the truest kind, as opposed to a pseudo-sighting of a judge at a panel discussion or conference he's participating in. A colleague of mine who lives in [town name omitted], N.J., recently saw Supreme Court short-lister Samuel Alito -- at the local Shoprite, doing his grocery shopping!

Now that's what A3G calls a judicial sight-ation! It's inspiring to hear that Article III judges -- including possible Supreme Court justices -- are "just like us," as US Weekly might say. Yes, federal judges use their brilliant minds to untangle the most complexly reticulated statutes. And yes, they use their infinite wisdom to delineate the contours of our constitutional freedoms. But just like us -- and apparently unaided by their law clerks -- they use their own two hands to pick up boxes of Honey Nut Cheerios and place them gingerly in their shopping carts.

Is it only a matter of time before someone poses the question, "Mr. Chief Justice, paper or plastic?" Alas, don't count on it. According to UTR's spy, "Judge Alito bags his own groceries."

WOW! What more could one ask for in a Supreme Court nominee?

Justice Is Blind: From Timid to Tyrannical

My goodness, this is embarrassing!  UTR hasn't offered up blind items of judicial gossip since last year. So let's address this deficiency without further delay, with this hot-off-the-presses edition of Justice Is Blind.

One UTR reader kindly offers up multiple blind items:

Are there some judges who take the cloister a little too seriously?  When one [Southern District of New York] judge has a jury sitting, and he spots a juror or two on his way to the courtroom, he actually turns tail and hides out until the jurors have disappeared. Same when he spots a lawyer in a pending case. (We all remember when the court of appeals wondered about the S.D.N.Y. judge who allegedly stuck her head in the jury room and told them not to be hung up but to get a verdict.)

But this isolation can go too far.  It can lead to judges imagining that the reason for having a "no go" zone has to do with their being superior beings altogether.  I remember when [Judge X] was sworn in on the Fifth Circuit, and said to the assembled group that she thanked [Politician Y] for getting her the job, and promised to serve "God," and then after a pause, "my country."  Judge John Brown, may his memory ever be glorified by the lovers of Article III, leaned over and said, "[Judge X], I just want you to remember that you were appointed, not anointed." 

Another reader offers this blind item, also about a Lone Star jurist:

Care to examine a tyrant on the bench? Try [this Southern District of Texas judge]. He writes his own rules, and if you don't like them, he will send you to jail while hearing a civil case.  All local attorneys cringe at the thought of apprearing in his court, knowing that year by year it gets even worse.

Here's a blind item about another disaster on the bench, a trial judge in the northeast:

[Judge Y] is unbelievably lazy. She doesn't want to put in the work to get complex cases right. Her basic problem is that she doesn't enjoy the day-to-day work of the trial court -- she's just in it for the prestige. She is obsessed with maintaining a low reversal rate, not because she wants to get the cases right, but so she can get promoted to the Third Circuit -- more prestige. (But promotion would be tough for her, in part because of some sketchy business dealings by her husband, which almost derailed her nomination the first time around...)

[Judge Y] inappropriately tries to strong-arm the parties into settling, so no one will appeal, and when that doesn't work, she tries to jawbone them into not appealing. She tries her best to avoid making the tough calls. Sometimes you just want to say to her, "Your Honor, you're a judge -- so try exercising some judgment!"

And finally, for our last blind item, let's return to the S.D.N.Y. for a humorous anecdote:

The scene: a birthday dinner for the beloved S.D.N.Y. jurist, [Judge A]. In attendance are [Judge A], his wife [Mrs. A], and numerous former clerks of [Judge A]. One of these former clerks, a partner at a high-powered law firm, is now married to a federal judge.

Perhaps in a state of inebriation, the former clerk gets up to give a toast. At some point during his toast, he turns to the (rather elderly) wife of his former boss and declares: "[Mrs. A], you and I are very lucky people. Each of us gets to go home tonight and f*** a federal judge!"

This is just to tide you over. A3G is working on several other blind items that are far more juicy and scandalous than these relatively tame ones. So check back soon!

The Hilarious Hedgehog: Judge Richard Posner

As you may recall, the incredibly brilliant Judge Richard Posner entrusted A3G with the privilege of breaking the news of his new blog, The Becker-Posner Blog. Like many of you, A3G has been enjoying the blog immensely since its debut.

A3G will leave substantive comments on the weighty issues discussed in The Becker-Posner Blog to others (e.g., the smart folks over at the Volokh Conspiracy). She will confine herself to what she knows best, namely, style. Judge Posner is not only an analytical genius, but a brilliant prose stylist -- and to A3G, of course, the latter is far more important.

To make her point, she would like to direct your attention to some of The Giant Hedgehog's recent remarks on the controversy swirling around Harvard's embatled president, Lawrence H. Summers. Take the following comment from this post, which could be read as poking fun at the extremism of Summers's enemies:

For these actions, Summers -- the most exciting and dynamic president that Harvard has had since James Conant -- has been (or at least has felt) compelled to undergo a humiliating course of communist-style "reeducation," involving repeated and increasingly abject confessions, self-criticism, and promises to reform. He has been paraded in a metaphoric dunce cap.

Terrifically funny stuff. Or consider this comment, which could be viewed as mocking Summers:

Were Summers an expert on the reasons for gender-related occupational patterns, and as a result had special insight into the issue of women's lack of proportional representation in science careers, there might have been a real cost in his failing to speak to the issue. However, since he is not an expert in this area, there would have been no great loss to human knowledge had he kept silent and let the experts engage with the issue.

"[N]o great loss to human knowledge" -- what a gem of comic understatement!

The Posnerian prose style is wonderfully dry, and Judge Posner's amazing writerly feat is his generation of delight from desiccation. The Giant Hedgehog doesn't laugh at his own jokes, which just makes them funnier. And when he cuts you down, with a clean slice of his linguistic lightsaber, his face bears no expression. It's all done with a clinical elegance; disdain is a dish best served cold. Magnificent!

Finally, a digression: a number of you have accessed UTR apparently seeking the great New Yorker profile of Judge Posner from December 2001. It's available here (pdf). Happy reading!

Questions Presented: Still Seeking Interviewees

Article III Groupie's two-part interview with Judge John Tinder (S.D. Ind.) was well-received throughout the blogosphere -- which was not surprising, given that her interviewee is a delightful and distinguished jurist. A reader sent A3G this lovely note:

Many thanks for turning the spotlight on the southern district of Indiana. I have worked in close proximity to Judge Tinder [as a law clerk to another judge] but feel I got to know a side of him that I might otherwise never have known. You have terrific interview skills. Keep it up!

A3G would like to keep it up -- but she needs your help. Please help her locate her next guest for Questions Presented!

And now, the real point of this post: for A3G to express how miffed she was upon seeing this "10 questions" interview with DHS Secretary Michael Chertoff, formerly a judge on the Third Circuit. Back when he was a judge, Mike Chertoff declined to answer 20 questions for UTR. So he can make time for Time, but he can't stop to shoot the breeze with the Gossip Queen of the Third Branch? For shame!

Here are the three most interesting exchanges from the interview (interesting to A3G, since they touch on personal rather than policy matters):

Q: You had a lifetime appointment as a judge -- you couldn't be fired.  You had time to jog in the mornings and spend time with your family. Why leave that?

A: There is no question I left behind a very enviable professional situation. But for me, after living through 9/11, I really think [securing our country] is the most important challenge of my generation.

Q: You grew up the son of a rabbi. Has that informed your thinking in the way you approach this job?

A: My parents always taught me two things: Do the difficult and unpleasant things first, and always admit your mistakes if you make them. Don't try to shave the truth. You are much better off if you come out up front and say, "Hey, I messed up."

Q: You have said securing the homeland is not a sprint, it's a marathon.  Ever run a marathon?

A: No, I've never run a marathon. Generally I run four to six miles. I have kind of been toying with the idea of doing a marathon, but I don't quite understand why I would want to do it. I guess I should have said, "It's not a sprint, it's a middle-distance run."

Reasonably interesting stuff -- but nothing terribly new, at least not to those of you who took UTR's Chertoff Challenge.

A New Approach to Blogging

As you may have noticed, over the past few weeks Article III Groupie has been a somewhat unreliable blogger (and email correspondent). Some of this delinquency has been intentional. As noted here, A3G has resolved to spend less time on Underneath Their Robes this year, so she can focus on other projects of hers (and her miserable day job). But A3G has been even less active at blogging than she would like. Part of the problem is that her blogging style, involving posts that are longer and more carefully wrought than those of the average blawg, requires a sizable investment of time. Unfortunately, due to both work and her other interests, lately A3G hasn't had sizable chunks of free time.

The problem of falling behind in blogging compounds itself. When A3G falls behind, failing to blog about all kinds of blog-worthy developments and current events (e.g., the Terri Schiavo litigation), she grows guilty and depressed. The guilt and depression translate into avoidance, which causes her to stay away from blogging and emailing even more. The avoidance causes her to fall even farther behind -- and the vicious cycle repeats itself.

So A3G will now attempt to break out of her rut. She is going to try a little blogging experiment. She is going to try making UTR less magazine-like and more like, well, a blog -- which is, after all, what it is. Going forward, her posts will be more frequent, pithy, and spontaneous. UTR is going to be more like a quintessential weblog: a collection of the author's random ramblings, distracted musings, tangents, brain farts, etc. (There will probably also be fewer graphics, which take considerable time to track down and, in some cases, to doctor.)

Now, those of you who have been readers of UTR from the beginning may recall that A3G said she would try this approach before. Back in August 2004, she announced that she would take a more casual approach to her blogging. But she failed to follow through on her stated intentions; her blogging style didn't really change much after that announcement. Well, as you're about to see, this time it will -- starting tonight.

In the weeks ahead, please give A3G your feedback on how you're liking (or disliking) her new style of blogging. This will help her decide whether she should stick with the new approach or revert to the old. After all, this is an experiment. A3G is hoping that the new approach will (1) reduce her blogging fatigue; (2) help her overcome her avoidant personality disorder, by forcing her to blog multiple times each week (even if her posts are pathetic, one-paragraph affairs); and (3) allow her to be a more timely blogger, responding quickly to fast-breaking news. But if it doesn't work, either for A3G or for you, then we'll go back to the way things were. Capice?

You can share your thoughts with Article III Groupie by email. As noted here, A3G cannot and does not respond to all messages. But she does try to reply to as many messages as she can. Unfortunately, in recent weeks A3G has fallen way behind in her correspondence. At long last, after months of sloth, she is slowly cleaning out her email inbox -- which explains why some of you may now be receiving responses to emails from 2004.

In her defense, A3G's neglect on the email front is somewhat excusable. For several weeks, she had computer problems that prevented her from emailing. By the time these problems were resolved, her email backlog was so enormous that she couldn't bear to deal with it. So she buried her head in the cyber-sand for a few more weeks. But now that weeks have turned into months, she has summoned up the courage to tackle the problem.

That's all for now. And no, there will be no cheesy sign-off tonight -- that's not the new blogging paradigm here at Underneath Their Robes. A sign-off represents a farewell, a leave-taking. But as the blogress behind the "new" UTR, A3G isn't going anywhere. She will now be a regular and constant presence in the blogosphere, chattering away incessantly, although perhaps with less flair than before.

Let's see how it works, shall we?

Judicial SIGHT-ations: Hail to the Chief!

Like many observers of the Supreme Court, Article III Groupie was extremely pleased to learn that Chief Justice William H. Rehnquist is now back on the bench. He looked better than he did on Inauguration Day, and he presided over yesterday's oral arguments without difficulty. The most noticeable difference was WHR's somewhat hoarse and raspy voice, a result of his recent tracheotomy.*

Because of the Supreme Court's ban on cameras in the courtroom, A3G has no pictures to share with you of the Chief on the bench. But he was photographed leaving his home in Arlington, Virginia, wearing a barn jacket in the tasteful, conservative shade of stone. After seeing the photos, fashion maven A3G guessed that WHR's barn jacket was by L.L. Bean -- and she was, of course, correct. Check out the pictures at right, and click on each photograph for a close-up if you doubt A3G's conclusion. (Photo of Rehnquist by Manuel Balce Ceneta for the Associated Press; photo of barn jacket by L.L. Bean.)

Now, L.L. Bean is perfectly fine, but surely the Chief can do better! With a salary in excess of $200,000, which he will continue to draw even after he retires, plus a healthy net worth, WHR has some money to burn. A3G would like to see him take more sartorial risks. How about head-to-toe Dolce?

Too much to ask, you say? Perhaps you have a point. Dolce & Gabbana may be too fashion-forward for the Chief; a made-to-measure Brioni suit might be more in keeping with Big Willie's Style. But please don't assume that WHR, simply because he holds the lofty title of Chief Justice of the United States, is completely indifferent to fashion.

As A3G noted back when she gave him his UTR birthday horoscope, Chief Justice Rehnquist is a Libra. And this Libra profile advises the Chief as follows: "[You] make the best shopping buddy! Because of your excellent taste, off-the-rack is usually not quite good enough.... You're a trendsetter when it comes to spicing up a classical look."

This last observation is uncannily accurate. Let's recall how the Chief "spiced up" that most "classical" of looks -- the austere judicial robe, in basic black -- with the brilliant touch of four gold bars on each sleeve. If the Chief does retire at the end of this Term, he would make a formidable competitor in the second season of Project Runway...

Very well, that's enough about WHR for now; A3G is just glad that he has returned. Please note that she has refrained from distasteful speculation concerning the Chief's exact diagnosis -- she respects his privacy, as appropriately urged by Professor Thomas E. Baker, who once served as the Chief's administrative assistant.**

In closing, A3G will leave you with a few judicial sight-ations of other members of the Court (the first two fairly recent, and the last two not-so-recent, but very amusing):

1. Justices O'Connor, Scalia, and Ginsburg, dining on caviar and quail at the Kennedy Center (oh, and UTR wishes Justice Ginsburg a belated happy birthday);

2. Justice Breyer reporting for jury duty up in the Boston area;***

3. Justice O'Connor, dining on the decidedly less-than-haute fare of the Olive Garden (A3G enjoys "Three Meat Ravioli" as much as the next gal, but who the heck takes a Supreme Court justice to the Olive Garden?); and

4. then-Judge Breyer treating a courthouse security officer like a parking valet.

A3G cannot vouch for the accuracy of the last two stories, courtesy of the amusing Bitter Waitress website. SGB's allegedly high-handed treatment of the courthouse security officer is inconsistent with his dutifully reporting for jury service like an ordinary citizen, as well as his reputation around One First Street as a generally nice guy, one of the most friendly justices.

The SOC sighting, however, is perhaps corroborated by various accounts of Justice O'Connor spending the 2003 Fourth of July weekend in Philadelphia. While in Philly, SOC officially opened the National Constitution Center along with Ed Rendell, governor of Pennsylvania and, more importantly, spouse of the Honorable Midge (a.k.a. Third Circuit Judge Marjorie O. Rendell -- who will, thanks to her husband's ill-considered Super Bowl wager, be singing the national anthem next month up in Boston).

Humming "Hail to the Chief,"

Article III Groupie

* Until late last year, A3G, like most Americans, had never heard the word "tracheotomy." Over the past few months, however, the tracheotomy has been ubiquitous. Other tracheotomy recipients who have recently been in the public spotlight include American Idol contestant Anthony Fedorov, who has a decent shot of winning now that Mario Vazquez is out of the picture, and the Holy Father, Pope John Paul II (more details via The Pope Blog).

** Chief Justice Rehnquist's current administrative assistant is former DOJ lawyer Sally M. Rider, the subject of this interesting profile, written by Charles Lane of the Washington Post -- and, of course, Shattered Glass fame. How many legal journalists can say they've been portrayed by a movie star?

At this point in time, there is absolutely nothing to corroborate the rumor that Julia Roberts is in talks to portray Linda Greenhouse, the monumentally influential, left-leaning Supreme Court correspondent for the New York Times. But it's not as far-fetched as it might initially seem. Consider the following:

1. Roberts and Greenhouse have roughly the same hair color. Compare Roberts with Greenhouse.

2. Roberts has a weakness for law-related roles, such as her Oscar-winning portrayal of paralegal Erin Brockovich, or her role as a law student in the Supreme Court-centric Pelican Brief.

3. It would be fitting for a gorgeously seductive movie star like Roberts to step into the shoes of Greenhouse, the Femme Fatale of One First Street. How many women are capable of producing tectonic shifts in American jurisprudence merely by batting their eyelashes at Anthony Kennedy? Indeed, liberal Linda's disproportionate influence over AMK was memorably dubbed "the Greenhouse Effect" (reportedly by former D.C. Circuit Judge Laurence Silberman).

*** One of the bloggers behind the Magic Cookie blog, who brought the SGB jury service item to A3G's attention, offers this wonderfully detailed eyewitness account:

I had jury duty a few days ago in Marlborough, Mass. I noticed a tall, well-dressed man at the front of the room. I thought he looked vaguely familiar. (WHY didn't I at least attempt small talk??) The jury pool was called into the courtroom to be selected for a trial. The judge asked several questions, including, "Are you, or are any of your immediate family or close friends, involved in law enforcement?" This gentleman raised his hand in response to the question and went up to talk to the judge. Later, he got called up again. This time, we saw him shaking hands with the judge, but couldn't hear what they were saying.

I got on the jury. The distinguished-looking gentleman did not. When the trial was over, the judge came to talk to us and revealed that [the gentleman] would have been the next juror selected if any of us had been challenged, and that, in response to the law enforcement question, he went up and said, "I feel I should tell you that I was the special prosecutor for Watergate."

I sat in that jury room room, two feet away from Justice Breyer, for HOURS, and I did NOT talk to him. ARGH! Ever since then I've been concocting these fantasies about how I would have been the only one to recognize him, and would quietly go over and ask if he was Justice Breyer, and then we would chat about jury duty and Cambridge and upcoming cases on the docket, and I would tell him that I'm going to law school next year, and he'd give me advice, and four years later when I applied to clerk for him he would remember me, and we'd reminisce about having jury duty together....

And then I snap out of it and realize that I DIDN'T recognize him, and when he turned around to hear the conversation I started with the woman behind me, he smiled and I smiled back and returned to my book instead of saying anything. What a wasted opportunity!

An Immodest Proposal: Three Potential Supreme Court Nominees

To: Harriet Miers, White House Counsel

From: Article III Groupie

Date: March 10, 2005

Re: Possible Supreme Court Nominees

Over the past few months, speculation concerning possible vacancies on the U.S. Supreme Court has reached a fever pitch. News organizations have reported that you and your colleagues are developing a shortlist of potential nominees to the Court. As the blogress responsible for Underneath Their Robes, the leading blawg of federal judicial gossip, here are my unsolicited thoughts on the subject.

The judicial appointments process is more politicized than it has ever been. The Senate Democrats are playing hardball, filibustering circuit court nominees deemed unpalatable by core Democratic constituencies. As a result, President Bush must view judicial appointments in pragmatic political terms as well. Traditional factors for selecting nominees, such as qualifications and jurisprudence, must be balanced against more practical considerations.

This is especially true for the Supreme Court. Due to the Court's high visibility, many Americans want the Court to reflect the diversity of the nation as a whole. Thus, when it comes to Supreme Court nominees, two critical considerations are (1) demographics, i.e., will selecting this nominee advance the standing of the Republican Party within an electorally desirable segment of the population; and (2) confirmability, i.e., can this nominee get past the Senate.

The judges reportedly under serious consideration for a spot on the Court are all conservative white males: J. Michael Luttig (pictured at left), J. Harvie Wilkinson, Michael McConnell, judicial hottie John Roberts, and Sam Alito.* They are demographically unappealing, and their confirmability is questionable. Because these judges are all among "the usual suspects," liberal interest groups have already compiled detailed dossiers on them. Should any of these judges be nominated to the Court, these groups will immediately pounce, denouncing the nominee as a "right-wing ideologue" who is "out of the judicial mainstream."

To catch these groups flat-footed, the White House needs to think "outside the box" when it comes to the Court. The universe of possible nominees must be expanded beyond white male judges who belong to the Federalist Society. Notably, Article III of the Constitution, which governs the judicial branch, contains no requirement that Supreme Court justices have prior judicial experience. In fact, the Constitution does not even require justices to have law degrees. So here are three demographically compelling, easily confirmable nominees, whose nomination to the Court would definitely take the Democrats by surprise:

1. Jennifer Lopez. After the welcome demise of "Bennifer," followed by her marriage to Marc Anthony, J. Lo's stock has skyrocketed. Nominating J. Lo to the Court would solidify support for the Republican Party among Latinos, a rapidly growing community that is crucial to the party's continued electoral success.

J. Lo's confirmation is guaranteed. As soon as the members of the Senate Judiciary Committee imagine La Lopez in a gravity-defying, Versace black robe, she will be voted out of committee faster than she divorced Cris Judd. And who could resist the prospect of a case parenthetical reading, "Lo, J., dissenting"?

2. Oprah Winfrey. Much Supreme Court speculation has focused on Janice Rogers Brown of the California Supreme Court, who would become the first African-American woman ever to serve as a justice if appointed to the U.S. Supreme Court. But whether she could win confirmation is doubtful, given her reputation as a right-wing judicial diva.

If President Bush would like to make history by appointing an African-American woman to the Supreme Court, why not nominate Oprah Winfrey? Oprah would bring a new level of empathy and emotional accessibility to the Court, frequently criticized as a distant and impersonal institution. With Oprah on the bench, litigants would start crying, hugging, and reconciling with each other in the middle of oral argument. And Oprah would have no trouble winning confirmation -- after giving every senator a new car!

3. Janet Jackson's Right Breast. The Constitution does not require Supreme Court justices to be judges, lawyers, or even complete human beings. If President Bush would like to place a body part on the Court, he would be hard-pressed to find a more deserving candidate than Janet Jackson's right breast. Jackson's breast would bring a wealth of relevant experience to the bench. Some of the most important cases decided by the Court concern the First Amendment, free speech, and indecency law. No one has more intimate familiarity with these issues than the Jacksonian mammary, which found itself at the heart of national controversy after exposing itself during the 2004 Super Bowl halftime show.

There is a longstanding tradition within American politics of presidents using their appointment power to reward loyal allies who have helped them win office. And as Frank Rich of the New York Times recently observed, "on November 2nd, Ms. Jackson's breast pulled off its greatest coup of all: the re-election of President Bush."

So shouldn't the president "show a little love" to Janet Jackson's right breast, by nominating it to the Court? In terms of Supreme Court appointments, one could do a lot worse...

* And now, a lengthy digression concerning the order of judges on the shortlist. It appears that Judge Alito may be the dark horse contender. After breathlessly reciting the names of Judges Luttig, Wilkinson, McConnell, and Roberts, the Times mentions Judge Alito as an afterthought: "Another possible candidate is Judge Samuel A. Alito of the United States Court of Appeals for the Third Circuit, who sits in Newark."

Now, Judge Alito is not exactly chopped liver. As a Princeton and Yale Law grad, an alum of the Solicitor General's office, and a former U.S. Attorney, clearly he's no slouch. He is a highly respected appeals court judge, and he has been on the bench for almost 15 years -- much longer than either Judge McConnell or Judge Roberts.

But consider this fact: the four judges higher than Alito on the short-list are all members of the Elect. Luttig clerked for Burger (via then-Judge Scalia of the D.C. Circuit), Wilkinson clerked for Powell, McConnell clerked for Brennan (an ideologically interesting pairing), and Roberts clerked for Rehnquist (then an associate justice).

So what can we learn from Judge Alito's B-list status? It just goes to show that no matter what you accomplish within the law, the badge of inferiority known as Great Unwashed status will haunt you for your entire legal career. To all of you 3Ls and feeder judge clerks who are stressing out over whether you'll land a Supreme Court clerkship, just think: if you fail in your quest, you will suffer the consequences for the rest of your professional life.

GOOD LUCK!!!

Condolences to Judge Joan Lefkow

Several readers, via email and blog post, have asked for Article III Groupie's comments on the recent tragedy concerning the family of Judge Joan H. Lefkow (N.D. Ill.). On Monday, February 28, Judge Lefkow returned home to find that her husband, lawyer Michael Lefkow, and her mother, Donna Humphrey, had been shot to death. (For more extensive coverage, visit How Appealing, which has collected numerous news articles about these events.)

Suspicion in the murders has centered on the followers of white supremacist Matthew Hale, who was convicted last year of plotting to murder Judge Lefkow. Hale is now in prison awaiting sentencing. Judge Lefkow had presided over a trademark dispute between Hale's group, formerly known as the World Church of the Creator, and the Oregon-based Church of the Creator.*

Although she has been following this story closely, A3G has not blogged about it until now, mainly because she does not have much to say. On behalf of all UTR readers, A3G extends her deepest sympathies to Judge Lefkow and the Lefkow and Humphrey families. These events demonstrate, all too horrifically, the sacrifices that federal judges sometimes make in the course of performing their duties -- sacrifices that make them true American heroes. And, as various commentators and politicians have stated, the tragedy also underscores that the government can -- and must -- do a better job of protecting federal judges, their families, and their staff members.

A3G was also disturbed to learn that the internet may have played a role in these events. According to various news accounts, Lefkow family photographs and Judge Lefkow's home address were posted on white supremacist websites. It is possible that the killers obtained the Lefkows' home address from one of these sites.

As someone who regularly posts information about federal judges on the internet, A3G would like to ensure that the information appearing in her blog is not used for evil ends. She is cognizant of security issues when she blogs, which is why she does not publish personal identification information about judges, such as home addresses.** With respect to judicial photographs, almost all of the pictures A3G posts are either (1) already available on the internet, or (2) provided by the judge in question and used with the judge's permission.

But if you're a federal judge mentioned in Underneath Their Robes who believes that a particular reference to you in this blog presents a security issue, please e-mail Article III Groupie, so she can take immediate corrective action. While A3G firmly believes in the public's right to comment on (and even criticize) our federal judges, she obviously does not want any of them to be endangered in any way. Indeed, A3G is second to no one in her love of the federal judiciary. She could never forgive herself if she contributed, however inadvertently or indirectly, to any harm befalling a federal judge.

Sincerely,

Article III Groupie

* Ironically, Judge Lefkow had granted summary judgment in favor of Hale's group (as noted here). Only after she was reversed by the Seventh Circuit did she order Hale to stop using the name "World Church of the Creator" -- or be fined $1,000 a day for non-compliance. (Links to various opinions and briefs in the litigation are collected here.)

** Obsessive readers of UTR may recall that the home address of Judge Susan J. Dlott (S.D. Ohio) and Stan Chesley was originally mentioned in the UTR Cribs post about their judicial mega-mansion. But A3G was merely quoting from an article about the house that appeared in the Cincinnati Enquirer, a newspaper whose circulation is larger than UTR's tiny readership by orders of magnitude. At any rate, A3G has revised that post to omit the address.

Questions Presented: Judge John D. Tinder!!! (Part 2)

Without further ado, here's the second half of Article III Groupie's interview with a judicial celebrity so hot that he gives off sparks: Judge John D. Tinder, of the U.S. District Court for the Southern District of Indiana!*

The first half of the interview, including a brief bio of Judge Tinder, is available here. As before, A3G's questions appear below in italics, and Judge Tinder's answers follow in ordinary roman type.

11. What about your non-robescent attire -- what do you like to wear "underneath your robe," as well as outside the courtroom? How would you describe your personal style?

I have heard lawyers say that there are suit judges, sport coat judges and, these days, golf shirt judges. I would be labeled as a suit judge.

I ordinarily wear a suit if I have a court day. If a hearing could result in someone going to prison or the entry of an adverse judgment against a party, the litigants deserve to have the judge wear a dress shirt, a tie and a suit. My suits are strictly off-the-rack stuff, with the purchase decision being based on price rather than designer label. The same is true for shirts, etc. I try to find the cheapest presentable ties I can find, generally at T.J. Maxx, because, as anyone who ever has eaten with me knows, I am lucky to get two meals out of a tie. I should be covered with visqueen before I eat, like the front row spectators at a Gallagher concert.

However, if I have no court activities scheduled on particular days, those are always casual days in my office for my staff. Because of public expectations and attendance at public functions, I usually wear at least a sport coat on those days, or have one in my office closet that I can throw on, if needed.

Outside the office, there are no ties, no suits and no sport coats. My preferred attire would be a beat up pair of blue jeans, a golf shirt, a sweater and comfortable shoes (no particular brands on any of these items). If an event requires being more dressed up than that, I would generally rather not go.

12.  Rumor has it that you have a fierce golf rivalry with your colleague, Judge Richard L. Young, and that you enjoy live music concerts and watching the Indy 500 time trials. Can you comment on these rumors?

The rumors of a golf rivalry, or that I golf at all, are patently false. It is true that I used to occasionally play golf, and that Judge Young and I have competed, perhaps fiercely, for the fabled Brooks Cup in the past. But that is over. It is now 30 degrees here in central Indiana, I no longer have my golf clubs in the trunk of my car, and I am spending this winter in a 12-step program to beat a bad case of golf addiction, so I fully expect to never play golf again. At least not for several months.

The Indianapolis 500 is one of the unique events held here, so I try to get my law clerks to spend an hour or two at the track each spring. I am not a big racing fan, but if you live in a city that hosts 3 major racing events (including the Brickyard 400 and the U.S. Grand Prix Formula One race), you can’t avoid some exposure to it. We also get some race-related litigation from time to time, so this could be considered field research.

13.  In addition to being seen on the links, you have also been spotted by judicial celebrity stalkers at a James Taylor concert. Aside from golf, what are some of your favorite leisure time activities?

Too many hobbies, not enough time. It is with reluctance that I discuss this subject at all because as soon as lawyers find out you have any kind of interest in something, they fall all over themselves trying throw analogies into their arguments and briefs to mention they think your favorite hobby is. When reports of my interest in baseball surfaced (I attended Dodger Fantasy Camp years ago), for months, I heard about foul balls, curve balls, home runs and balks until I could hardly stand it.

Per Judge Tinder: "This is my fake baseball card (front and back) from the 1992 Dodger Fantasy Camp. The mustache lasted about one year."

Per A3G: Click on the thumbnails for a better view; the back of the card notes that "[o]ne of John's favorite activites is being affirmed by the 7th Circuit." Also, she believes Judge Tinder made the right choice in ditching the mustache. Sans facial hair, he is quite the judicial hottie!

Also, I am a little embarrassed for people to know about the frivolous ways I spend leisure time -- and I don’t want people to think that I ever do anything other than work. Litigants (and lawyers) waiting for decisions don’t like to read about how their judge goofs off. Additionally, my out-of-office interests could be charitably described as eclectic, but perhaps more honestly could be labeled trivial and schizophrenic.

My wife and I enjoy attending live concerts, mostly rock and pop bands -– the list of performers that we have seen is too long to remember, but a few examples will demonstrate the variety of our interests: The Rolling Stones; Nanci Griffith; Judy Collins; Chris Isaak; Joni Mitchell; Crosby, Still, Nash and Young (and the various combinations that tour); Sarah McLachlan; the Nevilles (brothers, sisters, cousins, etc.); Emmylou Harris; The Eagles; Phil Collins; The Chieftans; Paul Simon; James Taylor; etc., etc. Actually, we have probably seen the Chieftans about 10 times (attributable to my Irish heritage, I suppose), and I may be the only federal judge who has ever been to a back stage party with the Chieftans.

There are few types of music that I don’t like (I have no ear for rap or hip hop), but I am strictly a recreational listener. I know nothing about music, except what I like. This play list is typical of the variety of things I enjoy: on a recent drive to the Evansville division of our court, I listened to Live, Pearl Jam, U2, Handel’s Messiah and the Beatles covers on the soundtrack from the film “I Am Sam.”

We enjoy traveling, especially when it combines several of our interests. For example, a great trip for us is to attend Jazz Fest in New Orleans in the spring. This is my wife’s home town, and her best friend still lives there. Plus, Jazz Fest is a great eating and music venue. I describe it as like being in college again, except having money to buy things.

I enjoy a variety of sports. I run, bike and cross country ski, depending on the season, but solely for recreation and fitness at this point. I used to run in 5 and 10k races, and have completed several mini-marathons, and one marathon, but that was years and about 30 pounds ago. As a spectator, I enjoy professional golf and baseball and college basketball.

14.  It's sometimes hard to believe, but federal judges are people too. Just like the rest of us, federal judges read books (and not just case reporter volumes), go to the movies, watch television, etc. Please tell us a little bit about your tastes in books, movies, and television.

I suppose that my tastes would be described as very wide but not very deep. I love to read, novels especially. Some of my favorite authors are Scott Turow, John Irving, Susan Isaacs, Elmore Leonard, Larry McMurtry, Carl Hiaasen, and Nelson DeMille. There are many others, but I won’t bore your readers with a catalogue. I do want to mention three books that I especially enjoyed which may demonstrate the variety of things I read for pleasure: “A Heartbreaking Work of Staggering Genius” by Dave Eggers -– I think he is one of the great new writers; Dennis Lehane (author of "Mystic River" -– which is good) also wrote “Shutter Island,” which is one of the best mysteries I have ever read (if you figure out what is going on in this book before the ending, you are very clever); and finally, Nelson DeMille’s “The Gold Coast” should be in the pantheon of great books about the Mafia.

I watch a lot of movies. I especially enjoy the sort of off-beat, small movies that have a different perspective. For example, here are some of the movies that would make my top hundred list: Memento, Being John Malkovich, Say Anything, Sideways, Body Heat, I (Heart) Huckabees, Raising Arizona, The Man Who Wasn’t There (and I suppose about anything by the Coen brothers.) The most recent film I saw was The Merchant of Venice.

My television viewing has diminished greatly with the demise of the sitcom. Through the years, I have been a fan of Taxi, Cheers, Frasier, Wings, Sports Night, Seinfeld and a few others. I have no interest in the so-called reality shows. Lately, about all I watch are certain HBO series (The Sopranos, Six Feet Under, Deadwood, Curb Your Enthusiasm), Keith Olbermann’s Countdown on MSNBC and, of course, the Golf Channel.

15.  Federal judges have sometimes been compared to lions and lionesses, the fearsome rulers of the legal professional jungle. They might also be thought of as eagles, soaring high above the plebeians toiling below them. If you were an animal, what kind of animal would you be?

I really have never thought of myself as an animal, although I recall that in my days as an AUSA, we used to refer to one of the district judges as “The Great American Eagle” because he appeared to be perched on his chair behind the bench, with his eyes darting around the courtroom, taking everything in, ready to pounce if things in the courtroom got out of line. If I had to choose an animal to be, I would want to be a Labrador Retriever. (I am partial to dogs, especially Labs, and am definitely not a cat person.) I think of Labs as ordinarily being friendly, listening carefully to what people say, trying earnestly, with a furrowed brow, to understand, but not always being able to do so, and probably preferring to be outside, running around and playing fetch. After lawyers read my rulings, they may think they would have done better arguing to a dog?

16.  Speaking of animals, might you have been a party animal? Rumor has it that you were a member of the Beta Theta Pi chapter at Indiana University. If the rumors are true, can you comment on what your fraternity experience was like? Also, do you think that fraternities get a bum rap in the media and popular culture?

Rumors of my affiliation with Beta are true. Suspicions about whether I was a party animal are not well founded. If I had been cast in the classic movie “Animal House,” I would have been Hoover, not Bluto Blutarsky. I had a terrific experience. The Beta house had a wide range of members, some from very wealthy backgrounds to others who had to wash dishes to help pay room and board. Although the membership was not diverse in race or gender, we had a wide range of political, moral and personal beliefs. It was a fascinating experiment in communal living. I think the world should allow for experiences like this as people are growing up.

17.  Your wife is a trial lawyer with an active practice. You, of course, are a federal judge. How do you and your wife talk (or vent) about work, in the way that married couples have done since time immemorial, while at the same time honoring the confidences that you are each duty-bound to maintain?

My wife and I have plenty to talk about other than law. We never discuss any work that is ongoing, and if we talk about a case that she or I have, it would only involve things that are in the public record. The bright line of the confidentiality of our respective jobs is very clear. If anything, we would be more likely to discuss the personalities of the participants in cases rather than factual or legal issues. I try not to talk about my work very much. In fact, it is not unusual for my wife to read about a decision I have made without hearing from me that I had the case.

18. Earlier in our interview, you referenced your Catholic faith. Some judges -- such as former Alabama Chief Justice Roy Moore -- have gotten in trouble for letting their religious beliefs affect their professional conduct. What role does your own religious faith play in your work as a federal judge?

No one who attended Catholic grade school for 8 years and a Jesuit high school in the 50's and 60's left unaffected. The experience shapes your perspective on matters of morality, religion, philosophy, discipline and many other subjects. But religious affiliation and religious beliefs should have no role in the performance of a judge’s duties. In my professional career, I have prosecuted death penalty cases, ruled that Wicca is a religion subject to anti-discrimination protection, and issued many other rulings that probably would have caused the nuns of my youth to rap my knuckles heavily. Decisions are to be made on the law and the facts, not slanted because of personal beliefs.

19.  If you had not entered the legal profession, what do you think you would have become instead?

Before I went to law school, I really wasn’t headed anywhere. When I started undergraduate school, I had intended to get an accounting degree, work as an accountant for a while to accumulate some funds, and then decide whether to go on to graduate school. But then something happened when I was a first semester sophomore -– I took my first (and last) accounting course. I hated it.

I then sampled a variety of subjects in business, psychology, statistics, political science, sociology and religion. My undergraduate degree is from the business school, but my transcript looked as though I randomly took courses from each page of the college catalogue. I had no particular academic concentration as an undergraduate, so I doubt that I was employable.

I started into law school within a couple of weeks after graduating, and have been in law ever since. Political activity, both on and off campus, was a big hobby, and I suppose I might have drifted toward that as a career if the law hadn’t gotten in the way.

20. You have very detailed courtroom practices and procedures; clearly you have put a great deal of thought into maximizing the efficiency of your chambers. What advice -- perhaps in the form of five or ten helpful hints -- would you offer to newly commissioned federal district judges? [Photo at right courtesy of Carol M. Highsmith Photography, Inc.; click on the thumbnail for a closer look.]

The practices and procedures to which you refer were the result of responding to a questionnaire from Aspen Publishing for its Directory of Federal Court Guidelines. Because those responses were being included in that publication, I posted them on the court’s web site. If left to my own devices, I probably would not have structured those things in that particular way.

Generally, I don’t think that formal procedures are necessary and feel that I am willing to adjust to the needs of particular cases. I usually don’t have a problem with lawyers doing whatever they want to do, however they want to do it, as long as they have a plan which furthers the communication of necessary information. But often good courtroom practices are often perceived to be requirements of the judge.

For example, I don’t think it is a bad idea to question a witness or make an argument from counsel table instead of from a lectern -– if the lawyer makes him/herself heard. But experience shows that lawyers often slump in their chairs and talk down into their notes instead of to the witnesses, and it can become very hard to hear them. They also see to be more comfortable if they have a structure imposed for them and I think that they like to think that they are required to conduct their case from the lectern. Of course, it is a matter of respect for a lawyer to stand (if he/she can) when addressing opposing counsel, the court, the jury or a witness. But I don’t require that. Nonetheless, because my courtroom is equipped with a lectern, lawyers tend to end up there when making presentations. It puts them closer to the witnesses, the jury, the court reporter and the document camera. In the end, I think that the appearance of a lawyer conducting his/her case from the lectern is very professional but I don’t think it has to be required. The same is true of most so-called rules of courtroom practice or procedure. They are usually just good practices of professional communication which become perceived of as rules.

Unsolicited advice to new federal district judges:

1. You are participating in a marathon, not a sprint. You need to maintain your health, a clear head and a pace that will carry you to completion.

2. Everything you have learned about law before beginning this job is just the starting point. Do you remember studying for the bar exam, especially on subjects that you didn’t take in law school? Welcome to a U.S. District Court.

3. The case that you prepare for thoroughly will settle. The case that you ignore will go to trial–badly.

4. Oral arguments are useful if you are prepared nearly well enough to make your ruling before the argument starts, so that you know the case about as well as the lawyers do.

5. It would be a mistake to lower your law clerk hiring standards to employ someone as a favor to a friend.

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

WOW -- Judge Tinder hit a real home run! Article 3 Groupie thanks Judge Tinder for taking the time to chat with her in cyberspace, as well as for putting such care and thought into his extremely thorough, witty, and informative responses.

Well, dear readers, you know what the end of a "Questions Presented" interview means: the start of a new period in which A3G begs for her next judicial interviewee. Think of UTR as PBS or NPR, where programming must be interrupted on a regular basis to make time for abject pleading. So, if you happen to be a federal judge willing to be fawned over by A3G, or if you know of a federal judge who might fit the bill, please don't hesitate to e-mail.** Only YOU can prevent forest fires!

She's got questions, you've got answers,

Article III Groupie

* Some of you may have noticed that the photograph at left is different from the photograph used in the first interview post. Both are official photographs of Judge Tinder, but the picture at left is the more recent of the two.

** A3G has previously interviewed two district court judges from the Midwest, Judge Tinder and Judge Gettleman, and one circuit court judge from the West Coast, Judge Wardlaw. For demographic balance, A3G would love to have an East Coast appeals court judge as her next interviewee. But beggars can't be choosers, so she will take what she can get!