Underneath Their Robes

Souter Retiring? No Forking Way.

by Clerquette

As law clerks to the Honorable David Souter are well aware, our quirkiest Justice has been famously adamant about the one thing that would guarantee his retirement from the Court.  Is it an ideological matter? An intractable dispute with one of his colleagues? A violation of his zero-tolerance policy for underwear chatter? 

No, dear readers. It's something more ... fundamental. 

Specifically, the Justice  has long insisted that when -- or if -- the supply of plastic cutlery in his Chambers was depleted, he would have to retire from the Court.  Legend has it that the Souter clerks, in an effort to stave off this eventuality, have been stockpiling plastic flatware for as long as anyone can recall.

Well, friends and fans: it appears that Justice Souter has run out of sporks and knives.  And, clearly, he is a man of his word: reports surfaced late tonight that Justice Souter would be leaving the Court. Facts are still in short supply; it is not known, for example, whether somone snoozed on cutlery duty, or if an act of God is to blame for the "fork-up."  But NPR's Nina Totenberg (who, Clerquette is informed, broke the story) reports that Justice Souter has advised the White House that he will retire at the end of this term.  Amongst the factors that contributed to his decision, writes Totenberg, were his  distaste for Washington, D.C., a persistent longing for the country roads of his native New Hampshire, and the election of Barack Obama, who is likely to nominate a true ideological successor to Souter. (Clerquette is unsure whether, as a technical matter, this would mean nominating a successor who turned out to be entirely different than he or she appeared, or actually replacing Souter with a liberal jurist.)  

Despite the predictions by (inter alia) Clerquette's co-blogress, as well and our friends at Above the Law, that Souter's ongoing clerkless-ness was a sign that he was down to his last few forks, Clerquette cannot help feeling somewhat shocked - shocked!  A Justice leaving for reasons unrelated to advanced age or illness? And, just think, dear readers, of the potential nominees for us to "vet"!  The scandals! The battles in the theater of war known as "The Senate"! The Franken- contingent filibuster-proof majority that will, hopefully, guarantee safe passage through the confirmation process for the next illustrious member of The Supremes! 

And who might the candidates be? Well, it is too early to offer anything but pure speculation ... which Clerquette is happy to do, in this instance.  Here are a few of the names we've heard bandied about:  

- Massachusetts Governor (and Obama buddy) Deval "Just Words" Patrick

-CTA9 Judge Kim Wardlaw and CTA2 Judge Sonia Sotomyer -  both doubly delightful Hispanic women

-Elena Kagan (who still has that new-Solicitor General smell, but who would probably welcome the opportunity to wear a judicial robe, rather than the ol' morning coat )

-Former Yale Law School Dean (and lovably controversial nominee) Harold Koh, and

-CTA7 Judge Diane Wood. 

In addition, Hillary Clinton and Janet Napolitano have been mentioned as possible nominees, although Clerquette suspects that neither of these superstars is ready to trade in her pantsuit for a neck-doily. 

Clerquette bids you adieu, and will be back as soon as we have some more information to share, dear readers. My apologies, but Clerquette needs to save her energy for tomorrow's news cycle, which, hopefully, will be all Souter, all the time.  

In the meantime, send me YOUR thoughts -- or dish -- on who should succeed Justice Souter. Clerquette can't wait to dig in.

Email: [email protected]

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Bench-Slapped! Nino Responds to 'Studious' Invasion of Privacy

by Clerquette 

The above-signed blogress admits to daydreaming about what it would be like if, one day, the anxiety-inducing 'ping' or intrusive new-message rumble of her BlackBerry signaled the receipt of something more glamorous than the Daily Decision Alert or conference call dial-in instructions ... like an e-mail from one of the Supremes!  Sadly, Clerquette has yet to experience such e-Nirvana.  But our fabulous friend at Above the Law, Kashmir Hill, is living the dream.

As Kash reports today, ATL wrote last week about a Fordham law professor who instructed his class to assemble a dossier of publicly-available information about Justice Antonin Scalia.  Although Clerquette can certainly understand the urge to satisfy one's cyber-curiosity about this famously spicy jurist, the professor was, in fact, responding to Nino's remarks at a conference on privacy issues, at which he pooh-pooed the notion that "every single datum about [his] life is private." Nino's characteristically no-nonsense opinion: "That's silly."

Kash wrote to the Justice to ask him how he felt about the assembly of what sounds, to Clerquette, like the starting ingredients for Nino's Facebook page. (Hint, hint.) And Nino wrote back, with his typical puissance.  Clerquette encourages you to go directly to the source for full coverage, but cannot resist the urge to share Nino's response here:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Meow!  Professor Reidenberg, you got served ... with a helping of Nino's famously piquant CastiGate-O-Rade! Consider yourself honored.

Congratulations, Kash! For now, Clerquette continues to dream a dream of Supreme e-mail.

Email: [email protected]

... or find Clerquette on Twitter!

Judicial Sight-ation: Judge Posner in the Big Apple

by Clerquette

After days of a veritable maelstrom of reports about swine flu, bird strikes, Somali pirates, and torture, Clerquette was desperately in need of a spirit-boosting respite from bad news. In these dark times, what does a girl have to do to get a little relief?  Make a visit to the day spa? Spend a weekend at Kripalu? Head to the bathtub for some Calgon escapism? 

These are all good ideas, dear readers, but in this instance, my deliverance from the blues came from a most unexpected source: the Federalist Society. Admittedly, the Federalists  are not generally known as the folks to turn to when one is in need of a mental adjournment from the stresses of daily life. They were, however, the hosts of a Very Special night at New York City's Cornell Club, featuring none other than ... Judge Richard Posner! And nothing puts the spring back in this groupie's step like proximity to an Article III superstar like the illustrious Judge Posner.  

Judging (pardon the pun) by the turnout, Clerquette was not the only one whose "relief sought" included some quality time with a distinguished jurist: the event, which was billed as a conversation of sorts between Judge Posner and American Enterprise Institute fellow and deregulation guru Peter Wallison garnered an overflow crowd. And what a crowd it was! Let it suffice to say that the affair was something akin to a conservative/libertarian Grateful Dead show (set in a state which, of course, exists to preserve freedom).  The crowd was comprised of a colorful smattering of septuagenarians, young Brooks Brothers-clad Alex (and Alexa) P. Keaton types, one fabulously coiffed woman with an elegant, Jackie O-style vertical updo, and more than a few bow-tie wearers. 

As the parking lot, er, I mean, Ivy Room filled with Posner acolytes, a palpable sense of restlessness descended. In a fitting demonstration of free market principles, competition for seating and refreshments (the supply of which was far outstripped by demand) grew intense; chairs were aggressively staked out with Hermes scarves and Valextra briefcases, and men in bespoke suits jockeyed for a turn at the dwindling cracker pile. Indeed, Clerquette began to wonder whether a fight for the individual's right to crudite would break out in the buffet line.  At one point, moderator Liz MacDonald (of Fox Business News) distracted Clerquette with a pretextual inquiry about the hot hors d'oeuvre, and then seized the opportunity to swipe the cheese tongs.  Needless to say, Clerquette does not approve of poor plate-side manners in the presence of an Article III luminary!

Eventually, the show got underway.  The madding crowd, however, was not to be appeased; when MacDonald began her opening act with a declarative -- and distinctly Seinfeldian -- "Did ya hear about Air Obama doing a flyover of lower Manhattan?  What is up with that? Did ya hear about this thing with Bank of America?," an elderly gentleman seated behind Clerquette answered wearily, "Yes, dear. Yes, dear ... we did." After some rapid-fire denunciation of ... something (the precise subject of the remonstrance was unclear) and a comparison of certain economic policies to "faith-based initiatives," MacDonald cited John Kenneth Galbraith for the proposition that the "only purpose of economic forecasting is to make astrology look respectable."  That principle, Clerquette finds, is res judicata!

Finally, the lectern was ceded to the distinguished guest. Although Judge Posner's credentials and accomplishments are both too resplendent (and too numerous) to catalogue fully here, let it suffice to say that he is a bona fide member of The Elect, and then some; among other things, His Honor graduated from Harvard Law School (magna cum laude '62), clerked for Justice William J. Brennan (OT '62), and -- lest we forget -- turned "Law and Economics" into a household turn of phrase.  And, of course, he ascended to the Court of Appeals for the Seventh Circuit in 1981, from whence he has dispensed his distinctive market-driven judicial magic ever since. 

Alas, Judge Posner's speech began with some minor technical difficulties which, to Clerquette's surprise, were barely tolerated by the restive crowd.  As the Judge struggled to adjust his microphone, the crowd fussed captiously.  Clerquette saw one woman turn to her companion and announce smugly that "this is why everyone should invest in media training and developing presentation skills."  (Surely she was not suggesting that the father of law and economic analysis polish his public speaking technique? Clerquette moves for sanctions!)  Another gentleman in the crowd carped irritably that the "crowd [was] too rowdy because they' [were] all drunk.  All of 'em."  Another audience member bellowed for Judge Posner to "bend over into the microphone, for God's sake."  (Gasp!  Uttering the words "bend over" to an Article III judge?  Clerquette nearly reached for her smelling salts.)  Clerquette heard yet another man lament that the equipment malfunction was not His Honor's fault. "They should be helping him," he said crabbily.  Clerquette refrained from asking the nice man whether he was advocating institutional intervention into a judicial process.  

The good news, dear readers, is that Posner handled both the fractious audience and the sophisticated subject matter with a most judicial degree of equanimity and grace.  Speaking extemporaneously, His Honor summarized, succinctly, the historical allocation of risk in the American banking system, enumerated the causes and early indicia of the current financial crisis, and engaged in a thoughtful, though critical, analysis of Mssrs. Greenspan, Bernanke, and those who seek to stifle the market with intrusive regulations.

But, speaking of bubble-bursting ... Judge Posner had barely concluded his remarks when Clerquette heard the gentleman behind her grumbling.  

"That was a lot of strained history that we already knew," he announced.  

"Well," his companion said, "I suppose a judge can do whatever he wants."

Order in the Court!  Clerquette hereby declares the following: an Article III rock star like Judge Posner is entitled to susbtantial deference,  folks.  A few members of tonight's crowd could have benefitted from the exercise of much wiser discretion, so to speak.

But no matter. This fan thoroughly enjoyed her brief moment in the glow of an Article III luminary (which was, sadly, cut short by the persistent call of billable matters).  Clerquette likes to think of it as an "Article III spritzer" -- just enough to refresh a weary soul, and to tide us over until the next Judicial Sight-ation.

Have judicial sight-ations of your own?  Clerquette would love to hear about them!

Email: [email protected] 

... or find Clerquette on Twitter!

Some Reading Recommendations from A3G

By Article III Groupie

Your above-signed blogress is going to be away from the web for two weeks, on a much-needed vacation. But fear not, lovers of judicial news and gossip; A3G leaves you in the capable (and well-manicured) hands of Clerquette.

Before she departs, A3G would like to leave you with a few reading recommendations. Some of these items are a bit old, so you may have already read them; but if you haven't, they're well worth your time. In no particular order:

1. Justice Stevens Renders an Opinion on Who Wrote Shakespeare's Plays [Wall Street Journal]

Maybe Justice Stevens should retire and pursue a second career as a literary scholar?

Of course, the justices are an opinionated bunch. In addition to JPS, Justices Scalia, Kennedy, Breyer and Ginsburg offered thoughts on the question of who wrote Shakespeare's plays.

2. Conservatives gaining sway on a liberal bastion [Los Angeles Times]

An interesting article about the evolution of the Ninth Circuit. Best quote (offered to put the Ninth Circuit's reversal rate in context):

"They typically don't take your case to say, 'You did a great job!' " Molly C. Dwyer, clerk of the court [for the Ninth Circuit], said of the high court's 75% reversal rate across the 13 circuits.

3. Three key players on the 9th Circuit [Los Angeles Times]

A sidebar to the L.A. Times article mentioned above, focusing on three judges who are no strangers to these pages: Chief Judge Alex Kozinski; Judge Stephen Reinhardt; and Judge Diarmuid O'Scannlain.

Okay, A3G's flight is boarding, and sprinting in Manolos is never fun. Toodles!

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Judge O'Scannlain as a Feeder Judge

Article III Groupie's obsession with The Elect, aka Supreme Court clerks, is well-documented. So it should come as no surprise that she's also obsessed with "feeder judges": those lower-court judges with a track record of sending their clerks on to the SCOTUS.

Earlier this month, the blog of the Daily Journal ran an item about Judge Diarmuid F. O'Scannlain (9th Cir.) as a feeder judge. Judge O'Scannlain has been a feeder judge for many years (see here) - and his feeder judge ranking is rising fast, thanks to his placing three clerks at the Court for October Term 2009.

Check out the write-up, after the jump.

Citizen Chertoff

by Clerquette

Having stepped into the Manolos of A3G relatively recently, Clerquette is, admittedly, somewhat behind the news cycle.  Nonetheless, it is never too late for an update on a doubly delectable superstar -- in this case, past UTR favorite Michael Chertoff, who, we learned recently, has officially moved on to the next phase of his illustrious career. 

If you've forgotten the multi-faceted nature of the Honorable Mike Chertoff's fabulosity, allow Clerquette to refresh your recollection.  First, Chertoff is a member of The Elect: after graduating from Harvard College (magna cum laude, '75) and Harvard Law School (magna cum laude, '78), and clerking for distinguished SDNY Judge Murray Gurfein, Chertoff spent OT '79 at the elbow of Justice William J.  Brennan, Jr.  After a brief stopover at Latham & Watkins, Chertoff returned to the Southern District as an Assistant U.S. Attorney, where he passedmuch of the 1980s making his boss, Rudolph Giuliani, look good.  Chertoff  eventually returned to his ancestral home (New Jersey), where he served as First Assistant U.S Attorney, and then "full-frontal" U.S. Attorney from  1990-1994.  

Whew!  Clerquette is getting winded.  Let's fast forward past a few dozen notable achievements (with apologies to our illustrious subject) to 2003, when Chertoff ascended to the Court of Appeals for the Third Circuit. Alas, Chertoff's time on the bench was brief ... but what it lacked in longevity, it made up for in judicial flair.  During his fleeting tenure, we learned that Judge Chertoff was an avid runner and weightlifter, an impeccable dresser, and inclined (or -gasp! -forced???) to fetch his own lunch.  We realize that this latter, scandalous detail was unearthed five-plus years ago. Clerquette believes, however, that there is no statute of limitations on shaming law clerks who fail to carry the judicial take-out bag. In any event, Judge Chertoff was alluring enough to inspire his very own trivia quiz, known as the "Chertoff Challenge."  As A3G concluded back in the day, "Judge Chertoff may be a fairly private person, but he can't hide the fact that he is a fun and fascinating individual 'underneath his robe.'"  Clerquette joins the majority's opinion!

Recently, now-citizen (but still Honorable) Chertoff announced the formation of The Chertoff Group, which will "advise corporate and government clients on security and risk management issues."  (FYI: Chertoff has also signed on at Covington & Burling, where he will be Senior Of Counsel.)  The Chertoff Group is sure to be a powerhouse: in addition to its marquee member, the firm recently added such luminaries as General Michael Hayden (of CIA and NSA fame), and former DHS-ers Admiral Jay Cohen, Charles Allen, and Paul Schneider.  But let's not kid ourselves, dear readers: the firepower on this gunboat will be provided by the only principal whose qualifications include "Anointed One" -- Chertoff himself.  And, although the WSJ noted last week that Chertoff would be "going head to head in the business world with former bosses John Ashcroft and Rudolph Giuliani," Clerquette is quite certain that the former judicial superstar can overrule the competition sua sponte.

Chertoff will be holding court in his current hometown, Washington, D.C.  Although Clerquette is always hoping for news of judicial sight-ations, she will make an exception, in this instance, for a former-judicial sight-ation.  If you've seen Judge/Secretary/Citizen Chertoff, drop us a line and let us know what he's up to.  

Email: [email protected]

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Justice Breyer: Boxers or Briefs?

By Article III Groupie

Oy. A3G likes to peek underneath the robes of The Nine, but what happened in Court today may have crossed the line.

This caused A3G to wonder about whether Justice Stephen G. Breyer, as a youth of "8 or 10 or 12," wore tightey-whiteys. She sees Justice Breyer as a tightey-whitey kind of kid. But did briefs exist when SGB was a boy?

As it turns out, they did. Justice Breyer was born in 1938, and briefs were first sold in America in 1935. By the time Justice Breyer was eight years old or so, briefs were probably all the rage.

Justice Breyer’s Public Undressing [Washington Briefs]

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Congratulations to She-Who-Must-Not-Be-Named!

By Article III Groupie

Who is She-Who-Must-Not-Be-Named? To refresh your recollection, look back at this post, which discusses political dynamics on the fabulously fractious Ninth Circuit:

Judge [Stephen] Reinhardt is the Emperor rather than Darth Vader because Darth Vader's position is already taken: by the brilliant, cold-as-ice Judge Marsha Berzon.

A member of the Elect, Judge Berzon uses the light-saber of her chilly intellect to cut down all who stand in her way. President Clinton spent a tremendous amount of political capital pushing Judge Berzon's nomination to the Ninth Circuit through the Senate, despite strong opposition from the Republicans, because he knew that only she was qualified to take up the mantle of Judge Reinhardt. After Judge Reinhardt's inevitable passing, only Judge Berzon can provide comparably courageous and cunning leadership for the left wing of the Ninth Circuit. Article III Groupie is both obsessed with and deathly afraid of Judge Berzon, who will no doubt cast her dark shadow over the pages of UTR in the not-too-distant future.

She-Who-Must-Not-Be-Named may be one of our nation's most fearsomely liberal jurists - but she's also now the mother of a Pulitzer Prize winner! From the AP:

Las Vegas Sun reporter Alexandra Berzon and her editors said Monday that they believe the Pulitzer Prize-winning stories they produced about construction safety brought an end to a spate of worker deaths at resort projects on the Las Vegas Strip.

"I think it's great recognition for the newspaper and for everyone," said Berzon, who estimated she wrote more than 50 stories on the subject.

Like her mother, whose legal credentials are blinding in their splendor, the Berzonspawn is something of a prodigy. She's only 29 years old - a far cry from the grizzled gumshoes often favored by Pulitzer pickers - and she has been at the Las Vegas Sun for just over a year (since December 2007).

Clearly Alex Berzon is far better at writing and reporting than she is at carrying coffee. Now that she's a Pulitzer winner, presumably she'll have interns to fetch coffee for her.

Congratulations to Alexandra Berzon and the entire Berzon family!

Las Vegas Sun reporter 'in shock' to win Pulitzer [Associated Press]
Flying the Friendly, Federal Judicial Skies [Above the Law]

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Happy Birthday, JPS!

By Article III Groupie

Justice Stevens turns 89 today. Happy Birthday, Your Honor!

Despite his advanced age, don't expect Justice Stevens to retire from the Supreme Court anytime soon. Most observers expect Justice Stevens to remain on the SCOTUS until after February 24, 2011, at which point he would replace Justice Oliver Wendell Holmes as the oldest justice in the Court's history, or maybe even after July 15, 2012, when he would break Justice William O. Douglas's record as the longest-serving justice.

Happy birthday to Justice John Paul Stevens [How Appealing]
John Paul Stevens [Wikipedia]

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Feeder Judges and Law Schools - October Term 2009

By Article III Groupie

Still no information on clerk hiring by Justice Souter. But based on the other eight justices' picks for October Term 2009, here is a list of top feeder judges and law schools for OT 09.

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