Underneath Their Robes

A Law Clerk Hiring Update: Justice Kennedy's Swinging Clerks!

Much ink has been spilled over how Justice Anthony M. Kennedy, after Justice O'Connor's replacement by Judge Alito (knock on wood), will become the Supreme Court's one and only "swing justice." Well, if that's the case, then meet the four swinging AMK clerks, for October Term 2006:

1.  David Foster (Harvard '05/Kozinski)

2.  Lisa Marshall (Yale '05/Leval)

3.  Eric Murphy (Chicago '05/Wilkinson)

4.  Mark Yohalem (Harvard '05/Rymer)

This is an interesting crew. Compared with the current crop of Kennedy clerks, which balances a Garlandista and a Tatel Tot against a Kozinski clerk and a Roberts clerk, this group may skew slightly more conservative: only of the four (Lisa Marshall) comes from a liberal feeder judge (Leval).

For a compilation of A3G's prior reports on OT 2006 law clerk hiring, along with some additional intelligence, check out this post at Amber Taylor's blog, Prettier Than Napoleon.

Welcome, New York Times Readers

If you've reached Underneath Their Robes via the link in Professor Jeffrey Rosen's interesting essay, "Judicial Expsoure," in this week's New York Times Book Review, welcome! Even though Professor Rosen decries the public's increased interest in, and focus upon, the personal lives of federal judges -- a view from which Article III Groupie obviously dissents -- she is grateful for the shout-out.

Professor Rosen mentions Judge Alex Kozinski's self-nomination as a judicial hottie; if you're looking for it, click here. Rosen also alludes to "giddy fan e-mail messages" sent to A3G from Judge Richard Posner; some of them can be accessed here, here, here, and here.

By the way, some time ago, A3G contacted the Legal Affairs editors responsible for the Debate Club and suggested an online debate between herself and Professor Rosen, on the subject of whether the greater attention being paid to the personal lives of judges was a salutary or unwelcome development. The Legal Affairs folks were enthusiastic; they said they would check with Professor Rosen and get back to her.

A3G never heard back from them, so she assumes that the good professor was not interested in going toe-to-Prada-clad-toe with her. Perhaps he feared -- not without foundation -- that such a debate would rapidly veer away from substantive discussion and towards the trading of catty bon mots. But if you ever change your mind, Professor Rosen, A3G is ready and willing to take you on!

UTR Cribs: The Late Chief's Teepee Sold

Yes, Article III Groupie realizes that this "news" was reported last week, concerning a real estate transaction that took place last year. But A3G has been extremely busy, preparing for her upcoming move to Washington, D.C. (where she will be joining the appellate practice of a large law firm; she's had it up to here with "trial work," a.k.a. document review). So if she's a little behind the times, please -- cut her some slack!

Last week, Amy Argetsinger and Roxanne Roberts, the Reliable Source gals, offered this juicy tidbit (scroll down to last item; via How Appealing):

SURREAL ESTATE

Seller: The family of William Rehnquist

Price: $747,000

Details : The 16th chief justice of the United States and his wife, Natalie, bought their North Arlington home near Marymount University in 1983 for $207,500, according to public records. He continued living there after her death eight years later, and it was in this three-bedroom, three-bath brick townhouse that Rehnquist himself succumbed to thyroid cancer Sept. 3. His daughter, Janet , a Washington attorney, handled its sale shortly before Thanksgiving.

A3G can add one more detail (which she feels it raises no security issue to mention, since Chief Justice Rehnquist has passed away and his family has sold the house): the Rehnquist residence was located at 2329 N. Glebe Road, Arlington, Virginia.

Speaking of Supreme residences, Washingtonian Magazine -- perhaps inspired by UTR Cribs? -- ran an article in its December 2005 issue entitled "At Home with the Supremes." In this fascinating piece, the magazine offered photographs, descriptions, assessed values, and market values for the houses of all nine current Supreme Court justices (plus the possible next justice, Judge Samuel A. Alito, Jr.).

Unfortunately, this mouthwatering article isn't available online. And you don't want to borrow A3G's copy, since the pages are stuck together (no, not with hair gel; that's dried-up drool). But if you can locate your own hard copy of the December 2005 Washingtonian, turn to page 92, for an article that gives new meaning to the term "real estate porn." Scrumptious!

A Law Clerk Hiring Update: Nino Rocks Out!

The Rock Star of One First Street has selected the members of his glorious band, "The Originalists," for October Term 2006. Here are the four fortunate fellows who will be clerking for Justice Antonin Scalia in OT 2006:

1. Dan Bress (UVA '05/Wilkinson '05-'06)

2. Louis A. Chaiten (Northwestern '98/Sutton '03-'04)

3. Joshua Lipshutz (Stanford '05/Kozinski '05-'06)

4. Hashim Mooppan (Harvard '05/Luttigator '05-'06)

If you're feeling a sense of déjà vu, well, there's good reason. This all-male crew is remarkably similar to Justice Scalia's current crop of clerks: a Kozinski clerk, a Luttig clerk, and a Wilkinson clerk, all coming to One First Street directly from their circuit court gigs; and one clerk who graduated from law school a few years ago, clerked for a well-regarded conservative judge, and burnished his credentials with a stint at the DOJ's prestigious Office of Legal Counsel (a.k.a. Finishing School for the Elect).

Will Justice Scalia, like the late Chief Justice Rehnquist, play tennis with his clerks? Perhaps. If recent news reports are correct, it looks like Nino would rather spend his time on the court than at the Court!

Last night, Nightline reported:

At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia had instead spent his afternoon on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.

Not only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.

As far as A3G is concerned, however, the "judicial junket" issue is not the most problematic aspect of this whole episode. Far more troubling: the brilliant Justice Scalia's ineptitude with a tennis racket!

Yes, it's true. Justice Scalia can dissent like nobody's business; but the most gifted prose stylist on the Supreme Court is no great shakes on the tennis court. The Nightline broadcast was accompanied by grainy, surreptitiously taken video footage of Justice Scalia in his tennis whites. And based on that footage -- which shows Nino offering up anemic, underhanded serves; hitting wild, flailing backhands; and lumbering across the court, with a sluggish shuffle of feet -- A3G would respectfully suggest: "Justice Scalia, please -- stick to the duck hunting!"

Justice Is Blind: Is THAT What You Call "Good Behavior"?

Here are a few blind items of judicial gossip to usher in the new year:

1. This prominent appeals court judge parties a little too heartily for his own good. At one legal conference, he got so drunk that he had to be carried back to his hotel room -- where the partying continued, through the consumption of tequila shots! The following day, he was spotted with a bad hangover and a pronounced limp (the result of injuring his foot on the dance floor the night before).

2. In contrast to the jurist just mentioned, who may engage in excessive fraternization with non-judges, this Supreme Court short-lister isn't exactly Miss Congeniality. After she delivered a speech at a midwestern law school, she had lunch with some law students and faculty members -- where she proceeded to alienate the entire group, with her pedantic, constant correction of minor misstatements, made by her dining companions in casual conversation.

This judge's distance caused several attendees to dub her "an ice queen." When one law student asked about the judge's family, in a well-intentioned effort at small talk, the judge responded frostily: "I'd rather not get into such matters -- and certainly not with you!" (While a judge's reluctance to discuss her personal life is entirely understandable, the "certainly not with you" was gratuitious; the inquiry could have been deflected far more politely.)

3. This East Coast circuit judge, who was a distinguished legal academic before taking the bench, has a weakness for reruns of Xena: Warrior Princess.

4. After this comely district judge was nominated as a judicial hottie, a former colleague emailed her about the contest and said that he would vote for her. The judge subsequently declared herself to be "mortified" by the proceedings -- but maybe she was just upset that she didn't make the top five!

5. This female circuit judge was asked for her reaction when a colleague of hers was nominated as a judicial superhottie, but she was not. This judge quipped: "Well, I've been dubbed a judicial diva. Hotness fades; but diva-hood is forever!"

Truer words were never spoken...

In re: "Those 'Happy Homos'"

Some of you may have read this interesting New York Times profile of David B. Lat, who serves as Article III Groupie's mouthpiece to the world. Lat has some corrections, clarifications, and comments on Jonathan Miller's article, which should hopefully appear in these pages in the near future.

For the time being, however, A3G would like to defend David Lat against a specific accusation that has been leveled against him by some who have read the article. If you've met David Lat in person, you know that although he's a genial and pleasant fellow, he's a bit of a wimp. This is why he needs a strong woman -- to wit, Article 3 Groupie -- to rush to his aid.

Miller writes:

[Lat] skipped the sixth grade, and attended Regis High School, the prestigious all-boys Catholic high school in Manhattan, where he gained a reputation as a skilled debater (he sang the Banana Boat song when he delivered a speech about Haitian refugees). From there he went on to Harvard, where he socialized little while earning a degree in English and adopted a conservative worldview, writing lacerating opinion columns for The Harvard Crimson.

He declared, among other things, that campus liberals had no "no broad, overarching philosophy." He lamented the revocation of Ireland's ban on divorce, and repeatedly castigated the school's Gay, Lesbian and Bisexual Student Association.

In one column, entitled "Those 'Happy Homos,'" he wrote: "National Coming Out Day is just another event in the recent rash of identity-based pride rallies. These alleged celebrations of diversity have devolved into mutual masturbation festivals. They reassure people who are still deeply troubled by their lifestyle choices and are desperately seeking a stamp of approval. We have a duty to deny them this approval."

Those statements brought a harsh rebuke from members of the organization in a subsequent letter to the editor that called the column "spiteful and logically vapid."

Based on the foregoing, some of you have accused David Lat of being "homophobic." Much could be said on this subject; but for present purposes, suffice it to say that nothing could be farther from the truth.

Just as Samuel Alito should not be judged based on statements in a job application from 20 years ago, Lat should not be judged based on his (literally) sophomoric ramblings in a college newspaper, from over a decade ago. These "youthful indiscretions" -- of a hotheaded, rabble rousing campus conservative -- should not be viewed as an accurate reflection of who Lat is today. Nor do they represent the views he currently holds on such issues as homosexuality, gay marriage, etc.

Also, for the record, the reference in the column's title to "Happy Homo[s]" -- which could be viewed as derisive or derogatory -- should not be ascribed to Lat. If you read the column in its entirety, you'll see that the title was merely quoting from posters that were put up around the Harvard campus by the BGLSA.

More on this subject may follow in a subsequent post. But for the time being, A3G wanted to get these thoughts into circulation, to stop the flood of hate mail that poor Mr. Lat has been receiving from people who believe, incorrectly, that he harbors some animosity towards gay Americans (or, for that matter, gay persons of any nationality).

Article III Groupie's Fifteen Minutes

Article III Groupie's alter ego, David Lat, is going to be on tonight's installment of The Charlie Rose Show, where he will discuss the Alito confirmation hearings.  The show will air at 11 p.m. Eastern time.

It's well worth watching, not because of Mr. Lat's presence, but because of the great legal minds -- all former Supreme Court clerks, of course -- who will be chatting with Mr. Rose during the show: Professor Charles Fried, of Harvard Law School; Professor Noah Feldman, of NYU Law School; and Professor John Yoo, of Boalt Hall. Evan Thomas, assistant managing editor of Newsweek magazine, will also be interviewed. 

Although Lat will never join the ranks of the Elect, at least he gets to be on television with them. Neato!

In addition, last Friday, while he was traveling in India, David Lat participated in a telephone interview with Mary Darcy of WAMC (Northeast Public Radio). Lat explained the meaning of various legal terms and concepts expected to get bandied about at the Alito hearings. You can access an audio clip of that interview via this page (scroll down to "download me"; Lat's interview begins at around the 6:45 mark).

Where in the World Is Article III Groupie?

Article III Groupie just returned to blogging -- but now, sadly enough, she must take her leave of you once again. She's going to be out of the country for the next two weeks or so, attending the overseas wedding of a close friend.

If she gets the chance, A3G will try to do a little blogging and e-mailing while she's away. But she's uncertain about how much internet access she will have in her destination. So please don't be surprised if A3G doesn't blog much over the next two weeks (and please don't be offended if she's unable to respond to your email).

This means that A3G will probably miss much of the upcoming Supreme Court confirmation hearings for her beloved Judge Samuel A. Alito, Jr. The thought of being away from C-Span and the internet during the Alito hearings, which start up on January 9, upsets A3G as much as missing the Barneys Warehouse Sale did last August. But she had no control over the timing of either the hearings or her friend's wedding, so there's no sense in fretting.

Some people might be relieved to hear that A3G won't be blogging much, if at all, about the Alito hearings. A UTR reader recently drew A3G's attention to this interesting passage in an article in today's New York Times by David D. Kirkpatrick:

"[Judge Alito] will have a couple hairs out of place," said one participant [in the process of preparing Alito for the hearings, a.k.a. the "murder boards"].

"I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is. That is a very useful look, because it is a natural look. He's able to go toe-to-toe with senators, and at the same time he could be your son's Little League coach."

UTR's correspondent remarked to A3G: "You seem to have had an effect on mainstream media judicial coverage!" And the self-involved A3G can't help thinking that Kirkpatrick's source was preemptively refuting an anticipated negative review of Judge Alito's personal style from A3G (especially with that pointed reference to the Garden State, which she and Judge Alito share as a home state).

But if this White House insider was worried about A3G mocking Judge Alito, he need not fret. A3G confesses that, like the notorious Robin Givhan, her assessments of style are often colored by ideological considerations. So even if Judge Alito turns out to be a fashion disaster at the hearings, A3G will probably pull her punches, declining to savage such a staunch conservative. (This self-admitted bias also explains A3G's somewhat harsher treatment of the more dubious Harriet Miers, who was no favorite of conservatives.)

Some of you might be wondering: Where will A3G be spending the next two weeks? Well, if you were a "spicy blogger," where would you go for vacation? Why, India, of course!

Yes, that's right. While Senatrix Dianne Feinstein is asking Judge Alito how he feels about Roe v. Wade "as a man," A3G will be shopping for saris "as a woman." She also looks forward to savoring some samosas (pictured at right) -- hopefully they won't give her gastrointestinal distress. In case she doesn't get to blog between now and the start of the hearings, A3G wishes Judge Alito the very best of luck in his quest for a seat on the Supreme Court!

Article III Groupie: The Bitch Is Back!

Happy New Year, my little judicial chickadees!!!

Going into a new and exciting year of judge-watching, Article III Groupie is delighted to be blogging once again at Underneath Their Robes. She'd like to take this opportunity to thank all of the commenters and e-mail correspondents who have warmly welcomed her back to the blogosphere. But was there ever any doubt that A3G would return to you? As the old saying goes, "You can't keep a good [wo]man down!"

To those of you who were "nice" to Article Three Groupie during her absence from UTR, she thanks you for your support during a stressful and trying period. To those of you who were "naughty," saying all sorts of mean things about the undersigned blogress -- and you know who you are -- A3G says: "You ought to be ashamed of yourselves. That's no way to treat a lady!"

Okay, fine, Article 3 Groupie knows what you're thinking: of all the denizens of the blogosphere, A3G, the queen of snark, has no standing to complain of harsh treatment. To quote another aphorism, "Live by the blogger's keyboard, die by the blogger's keyboard."

So A3G will leave you with a different saying: "Hell hath no fury like a woman scorned!"*

--Article III Groupie

P.S. To any people who are scandalized by the title of this post, please note that it's simply a reference to a song by Sir Elton John.

* Actually, any threat of A3G attacking her detractors is completely idle; A3G plans to be gracious in victory. To borrow a turn of phrase from her fellow diva, hotelier Leona Helmsley, Article 3 Groupie has better things to do than worry about "the little people."

Justice Scalia: The Stand-up Comedian of One First Street?

Here at Underneath Their Robes, Justice Antonin Scalia has a nickname of long standing: "The Rock Star of One First Street." But perhaps it's time to bestow a new moniker upon Nino: "The Seinfeld of One First Street"?*

Rumor has it that Justice Scalia, deeply disappointed about not even being considered for the job of Chief Justice, has been more disengaged from life at the Court ever since. Well, if Nino is dissatisfied with life inside the marble palace, maybe he should think about hitting the stand-up comedy circuit.

According to this NYT article by Adam Liptak, a fascinating and fabulous study by BU Law School Professor Jay D. Wexler has scientifically determined that Justice Scalia is the funniest Supreme Court justice. As noted in the lede of Liptak's piece, Justice Scalia is "19 times as funny as Justice Ruth Bader Ginsburg."

Breaking news: "Nino is much funnier than Ruthie." Gee, tell Article III Groupie something she doesn't already know! Guess this is what passes for news on a long holiday weekend. (Liptak's funny and well-written article has been hovering at or near the top of the Times's "Most E-mailed Articles" list since its publication.)**

Okay, in fairness to Liptak's excellent article and Professor Wexler's brilliant study (pdf), here are some more newsworthy tidbits:

1. RBG is physically capable of laughter. Wexler writes:

And, of course, it is widely believed that Justice Ginsburg doesn't even laugh herself, much less make others laugh. The notion that Justice Ginsburg does not laugh is mistaken.  As one of Justice Ginsburg's clerks during the OT '98 Term, I can attest that she does, in fact, laugh. Maybe not often, perhaps not loudly or with great vigor and the wild waving of arms, but laugh she does.

(Prior to clerking for Justice Ginsburg, Professor Wexler served as a Tatel Tot and went to Stanford Law School.)

2. The legal deities known as Supreme Court clerks -- a.k.a. "the Elect" -- make mistakes. Liptak writes:

Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.

"Thank you," Justice Souter said, with characteristic self-deprecation, "but apologize to him."

"[Laughter.]"

Srinivasan, an Assistant to the Solicitor General, clerked for Justice Sandra Day O'Connor.

3. The Supreme Court is getting funnier under Chief Justice John Roberts. Liptak writes:

The New York Times, building on Professor Wexler's pioneering work, analyzed the available transcripts for the term that began this October. The mood under Chief Justice Roberts has brightened, the analysis found, with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term.

In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.

Chief Justice Roberts made a strong early showing, coming in third, with 13.

Not only is the new Chief a total hottie; he's also hilarious!

Professor Wexler explains his study in a short, very funny article in the unfailingly entertaining Green Bag. Check it out by clicking here (pdf). Enjoy!

* Actually, "The Seinfeld of One First Street" is already taken as a nickname. Here's a little known fact: Seinfeld once clerked for Justice Scalia!

No, not that Seinfeld; Gil Seinfeld, a Harvard Law grad and no relation to Jerry (as far as A3G knows). As one would expect from a Guidomaniac, Gil is fairly liberal -- he was the token liberal or "counterclerk" in the Scalia chambers that Term. (N.B. Justice Scalia doesn't always adhere to the practice of hiring one liberal clerk; check out the comments to this PrawfsBlawg post. Of Justice Scalia's four current clerks, all are conservative.)

** Speaking of the NYT "Most E-mailed Articles" list, please feel free to e-mail this AP wire story to 20 of your closest friends. (The last line of the piece, however, requires a correction; if you're reading this post, you know that UTR no longer requires a password.)