Underneath Their Robes

Justice Thomas's Clerks: Who Are They?

By Article III Groupie

Inquiring minds want to know.

Update: And now we know (see the update to the post at Above the Law).

Still no word about Justice Souter's clerk hiring, though....

Email: [email protected]

Project Kagan

By Clerquette

Since former Harvard Law School Dean Elena Kagan's nomination to the fantastically lofty post of Solicitor General, much has been written about one of the most pressing issues facing the nation's appellate advocate-in-chief. We're not referring to the thorny jurisprudential and ideological matters confronting the country's first Solicitrix General. No, dear readers; we're talking about an issue which, by now, is plenty ripe for review: to wit, what should Solicitrix Kagan wear?  

President Obama's nomination of Dean Kagan - who is known as a "brilliant Constitutional scholar and writer," and who "garnered wide praise for the triage work she did at Harvard Law" - was met with "near universal acclaim." But commenters were also quick to point out the "epiphenomenal fashion crisis" threatened by Kagan's ascendance to the position, which has historically been occupied by men. And, as we know, tradition dictates that those men don a "frock coat with tails, stripey pants, and a vest" when they step up to the highest lectern in the land to argue before the Supremes. At the risk of stating the obvious, Clerquette submits that a woman as distinguished as Solicitrix Kagan can hardly be expected to "represent" in Victor/Victoria-style drag.

On this point, the panel is unanimous. "Here's ... hoping that she never dons that silly morning coat in the first place," declared Dahlia Lithwick in Slate. Blogress Ann Althouse quibbled with the very thought of referring to the sartorial custom of wearing tails to the High Court as a "tradition," preferring instead to call it "an affliction." And law professor Patricia Williams recounted an incident, "perhaps apocryphal," involving a female advocate whose appearance in a "dove brown" or "doe-beige" suit prompted then-Chief Justice Rehnquist to "go berserk." Thereafter, the S.G.'s office recommended that women wear a "feminized" version of morning attire, which Professor Williams described as "more or less like the men's version, only with darts at the bust-line: that is, a dark jacket, often with silk trim on the lapels and those perky Scrooge McDuck tails flapping out behind."

Although Kagan wore a black pantsuit when she was officially presented to the Court on March 20, it has been noted that her opening day outfit was "not dispositive." Why? Because "[w]omen who wear the morning coat buy a man's coat -- and usually pants as well -- and have them tailored to fit, a process that can take time."  Gasp!

Needless to say, we hate to think of Solicitrix Kagan going where no woman has gone before dressed as ... Scrooge McDuck.  So, dear readers, we're looking for your suggestions re: a fitting outfit for SG Kagan to don when she faces the Supremes. Clerquette wants to hear your ideas, or, better yet, see your suggestions depicted in photographic or illustrated splendor.

So, please, send Clerquette your ideas, artistic renderings, and Heidi Klum-approved designs. We look forward to publishing the most lectern-worthy entries!

Email: [email protected]

Justice Ginsburg: A People Person?

By Article III Groupie

Around One First Street, Justice Ruth Bader Ginsburg isn't known for being the most fun justice (although she does smell nice). Ruthie's days as a cheerleader ended long ago.

It's a tradition for each justice to have lunch once during the Term with the four law clerks of each of their colleagues. Clerks who have dined with Her Honor report that lunch conversation is painfully awkward. A clerk brings up a topic; RBG offers a short comment; the conversation dies. A second clerk brings up a different topic; RBG offers a short comment; the conversation dies. Lather, rinse, repeat.

But maybe RBG is more fun once you take her beyond the Beltway. She recently attended the annual symposium of the Ohio State Law Journal, "The Jurisprudence of Justice Ruth Bader Ginsburg: A Discussion of Fifteen Years on the U.S. Supreme Court," and it sounds like she was interesting and engaging. Reports Law Dork:

Most important, it was clear, is her humanity.  From her stories about retired Justice Sandra Day O’Connor to her opera recommendations — Butterfly or Boheme, for a first opera — it was clear that Justice Ginsburg is a woman who loves people and cherishes the role she plays in American life.

Sounds like she's not retiring. All eyes remain on Souter.

Update: Adam Liptak's account of RBG's appearance in Ohio is available in the New York Times.

Email: [email protected]

Keepin' It Real

By Clerquette

United States District Judge Manuel ("Manny") Real may be the baddest of Article III bad boys. Among other things, Judge Real is known for his legendary reversal rate, for telling attorneys that his courtroom "isn't Burger King" because "we don't do it your way here," and, perhaps most (in)famously, for being addressed as "Motherfucker" in open court, by Hustler kingpin Larry Flynt.  In short, one might say that Judge Real marches to the beat of his own drum, or, more often, the footfalls of the angry mob comprised of litigants, attorneys, and even his own co-jurists.  

So, given that Judge Real's penchant for stirring up trouble is practically res judicata, Clerquette was hardly surprised to hear that he appears to be in hot water once again.  It seems that the good judge has been overseeing the seized assets of deposed dictator Ferdinand Marcos for nearly a decade, during which he may have neglected to keep careful notes on pesky details like, oh, say, account activity.   

The Los Angeles Times reports that, following a 1995 trial, Judge Real awarded $1.9 billion to several thousand Filipino claimants who sued Marcos, claiming that they suffered human rights abuses at the hands of the former dictator. (As you may recall, Marcos was forced into exile in Hawaii in 1986 - although we question whether "exile"  is the proper term for a permanent vacation in a luscious tropical locale. Marcos left behind a substantial contingent of disgruntled constituents, as well as wife Imelda's massive shoe collection, estimates of which range from around 1,000 to a foot-boggling 2,700. Oh, the horror.)

Since the mid-'90s, the fate of the funds in question has been the subject of a "cascade of appeals," says the LAT, which culminated in the Supreme Court's determination, last year, that the proper venue for the matter was a Filipino court.  After the high court's ruling, Judge Real was ordered to return the Marcos booty to the Merrill Lynch account from which it had been seized.

That's where things, apparently, get complicated. Judge Real's accounting seems to rely on a bit of "fuzzy math," and lawyers on both sides of the dispute estimate that at least $5 million, and "as much as $50 ... or $60 million" remains unaccounted for.  

Requests for Judge Real to show, well, everyone, the money have gone largely unheeded. Judge Manny's clerk told the LAT that Real "doesn't comment on things," and the Judge has remained mum. If past precedent is any indication of whether he intends to respond in anything other than his own sweet time, the short answer is: ha! Judge Real has been ignoring his critics for longer than many of us have been alive. As Judge Real told a reporter in 1999, his steely resolve has been honed by years of deflecting official AND unofficial censure.

Is Judge Real blessed with a robe of the finest Teflon? No. Just lifetime tenure.

Email: [email protected]

Some Souter Speculation: A Secret Rendezvous with Senator Leahy? And What About the Clerks?

By Article III Groupie

Lately there has been a great deal of speculation about possible retirements on the Supreme Court. See, e.g., this nice Slate piece by Dahlia Lithwick. She notes that even though Justice John Paul Stevens is the oldest justice, and Justice Ruth Bader Ginsburg the most infirm (due to her battles with cancer), D.C. insiders actually regard Justice David Souter as the most likely to step down. At a panel discussion in Charlottesville last month, Adam Liptak, the New York Times's SCOTUS correspondent, issued this assessment: "If you had to make a guess [about who will leave the Court next], you’d have to guess Souter."

A3G agrees. Especially after she heard this, from one of her tipsters:

Attended oral arguments at SCOTUS [last week] in Gross v. FBL Financial.... I got to hear Carter Phillips call Justice Breyer "Justice Ginsburg" without ever realizing it, which was entertaining. [FN1]

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

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

My assumption (which could be wrong) is that Souter was waiting for Leahy for a lunch meeting or something. Now, maybe they were meeting to discuss New England living, or judicial salaries, but with all the speculation about retiring Supreme Court justices, I can't help but wonder whether they were discussing Souter's career plans.

Indeed. The two men met back in 1990, before Justice Souter's own confirmation hearings.

Of course, it's quite possible that the two men didn't meet. Maybe Justice Souter was waiting for someone other than Senator Leahy, and Senator Leahy was at One First Street on unrelated business. Or maybe they did meet, but for some innocuous, non-retirement-related reason. (Senator Leahy's office did not respond to a request for comment.)

Here is one other juicy tidbit: upon information and belief - if she's wrong, please email A3G and correct her - Justice Souter has not yet hired his law clerks for October Term 2009. Even though Justice Souter typically hires last among the current justices, he's generally done by April. We are now well into April, and there has been no word of Justice Souter hiring clerks - not on Above the Law, nor the Clerkship Notification Blog, nor Wikipedia. Recall that OT 2009 clerks will start up at the Court in July 2009. If he's not planning to retire, shouldn't Justice Souter get a move on, and hire some?

If you have some inside info - about a possible Souter/Leahy meeting (or lack thereof), or clerk hiring by DHS (or lack thereof) - please contact A3G. Toodles!

[FN1] Addresing Justice Breyer as "Justice Ginsburg" - heaven forfend! Carter Phillips is one of the very best Supreme Court litigators - and, more importantly, a member of the Elect (OT 1978 / Burger). As is his daughter, Jessica Phillips (OT 2007 / Alito). Are Supreme Court clerks fallible after all?

Email: [email protected]

I Dream of Jeannie Sandy?

By Article III Groupie

Because Article III Groupie is one busy lady, she has enlisted some help around here. You've already had the pleasure of meeting her federal judicial handmaiden, Clerquette (who has already started speculating about Obama circuit court nominees).

But A3G will still make the occasional cameo. You can take the girl out of the judiciary, but you can't take the judiciary out of the girl. Indeed, your above-signed blogress continues to eat, sleep, and even dream about her judicial American idols.

Yes, that's right - A3G dreams about judges. Since it's Holy Week, perhaps that explains why A3G had a dream the other night about going to Mass and finding retired Justice Sandra Day O'Connor administering the Eucharist. SOC isn't Catholic, but she is Anglican. Close enough, right?

Justice O'Connor was serving as Eucharistic minister at the back of the church; the priest celebrating Mass was at the front. Not surprisingly, everyone headed for SOC, so they could have their brush with celebrity.

Then A3G's dream got really weird. After Communion, the aisles of the church were filled by topless dancers: large, African-American women, with Ash Wednesday-style ashes on their foreheads. They were wearing baby blue skirts from the waist down - and absolutely nothing from the waist up. Their ample breasts swung furiously in the church's dim light.

Any thoughts on how to interpret this dream? Feel free to post a comment (registration required), or email A3G. Thanks in advance for your Freudian insights.

Email: [email protected]

Judge Greenaway: On His Way to an Eagle ... or an Albatross?

By Clerquette

The other day, Clerquette put out the call for scrumptious tidbits of news and gossip ... and you, dear readers, delivered with a delightful amuse-bouche of juicy inside scoop. 

Thanks to the Article III Groupies among us whose starry eyes are fixed upon the [undeniably glamorous] Third Circuit, Clerquette is informed and believes that the District of New Jersey's very own Judge Joseph Greenaway will be nominated to fill the seat vacated by former - now Justice - Judge Samuel Alito. 

Judge Greenaway was born (in London - how quaint!) in 1957, and graduated from Columbia University ('78) and Harvard Law School ('81).  Then-Citizen Greenaway began his legal career in style, clerking for Judge Vincent Lyons Broderick in the estimable Southern District of New York.  After a post-clerkship layover at Kramer, Levin, Nessin, Kamin, & Frankel, his "interest in public service beckoned" (according to one bio), and he trod the well worn path from BigLaw to the United States Attorney's Office.  Judge Greenaway did God's work as an Assistant United States Attorney in Newark, New Jersey for five years before he was lured away by Johnson & Johnson, where he tended to the needs of Big Pharma as in-house counsel.  His apotheosis came in 1996, when he was appointed to the bench by lovable rouge/President, Bill Clinton.

By all accounts, Judge Greenaway is a popular and even-tempered jurist, who is well-regarded by both government and defense lawyers.  But he is, perhaps, best known to his friends and colleagues in the DNJ for his love of golf, which is reported to exert a not-inconsiderable influence over his schedule during the sparkling days of spring, the balmy days of summer, and the crisper days of autumn.  A tipster notes, however, that while Judge Greenaway's love of the game is legendary, so is his tendency to rely on the kindness of strangers (and others) for an invitation to the 'dance floor.'  Last we heard, Judge Greenaway did not belong to his own club, preferring instead sample the many storied courses that grace the Garden State. Can you blame him? Clerquette is guessing that there is no shortage of partners who are eager for some ex parte greens-time with Judge Joe.

Of course, technically speaking, the seat for which Judge Greenaway is rumored to be under consideration is no more distinguished than the "average" spot on the Court of Appeals (as if!).  But, between you and I, Clerquette thinks that a seat vacated by one who has ascended to membership in the Supremes is probably sprinkled with a bit of gold dust in the process.  So Clerquette barely fluttered a well-curled eyelash when she heard that Judge Greenaway has also been mentioned as a possible Obama pick for (drumroll please) the Supreme Court.  Our tipsters may be dreamers, but they're not the only ones: take judicial notice, readers, of this Wikipedia entry, which lists Judge Greenaway as one of the District Court judges who name has been mentioned as a potential Obama nominee. Chalk it up to luck, plate tectonics, or some other mysterious force, but Clerquette has to wonder if, just maybe, those who move on up to the (North)East side leave a trail of breadcrumbs in their wake...

Of course, a Greenaway nomination might have a neutralizing, er, we mean "balancing" effect on the High Court. Judge Greenaway has identified "sentencing criminal defendants" as the "hardest task (emotionally)" that he faces as a judge, and, according to one tipster (of the more conservative strain), at a recent professional conclave cited Charles Hamilton Houston as his judicial inspiration.  Although Houston is regarded as a pivotal, and revered, figure in the fight against icky Jim Crow laws, Judge Greenaway's embrace of the Houston-ism that holds that a "lawyer is either a social engineer or a parasite" apparently left some of the Federalists in the audience reaching for their pocket squares to dab at the alarm-induced sweat on their collective brows.

Clerquette awaits news of Judge Greenaway's future, and wonders whether he will come to rest on the totally fab Third Circuit, or "play through" on his way to the Promised Land.

Email: [email protected]

Welcome Back, Groupies

[Editrix note: Please welcome Clerquette, one of the writers who responded to A3G's request for new voices on UTR.]

By Clerquette

Well, dear readers, we have a lot to catch up on.

When last you stopped by for a peek underneath the robes of our nation's most fabulous jurists, the world was a different place. Justices Roberts and Alito were newly minted members of the highest court in the land, the markets were awash in ill-fated cash, and Project Runway was on the verge of a fourth, magical season.

Needless to say, times have changed. Venerable firms have been reduced to piles of smoldering dust, would-be first-years are counting deferral dollars instead of billable hours, and this blogress can barely swing last year's handbag without hitting an underemployed lawyer. Lucky are those who need nothing more than the air that they breathe, and to bask in their love for our new President. The rest of us need some frolic and detour.

Fear not! Things may be darkest before the dawn, but, in this dimmest of moments, a light beckons on the horizon. That’s right, friends: lucky for us, the perpetually fabulous Article III Groupie is here – in spirit, at least - to banish our collective blues. But, since A3G is a pretty busy gal these days, she has decided to enlist the help of yours truly, Clerquette. Needless to say, Clerquette is inordinately pleased to join UTR.

Like her illustrious predecessor, Clerquette graduated from an esteemed law school and went on to clerk for a federal judge. Alas, her proximity to judicial finery ended there, and she has toiled in the formerly lush, still well-heeled (but tragically dull) vineyards known as “Big Law” ever since. Clerquette is happy to report that her appetite for tantalizing gossip and spicy dispatches remains undiminished - by national economic malaise, the demands of Big Law, or the constant distraction of deeply discounted consumer goods. And that, dear readers, is where you come in.

Clerquette, like her predecessor, depends on you, her loyal readers and correspondents, for scrumptious tidbits of news and gossip about federal judges.” So please: e-mail her (at clerquette at gmail dot com) with the inside scoop! But first, allow her to refresh your collective recollections as to our e-mail policy, which is as follows:

Pursuant to our standard e-mail policy, anything that you email Clerquette may be published in "Underneath Their Robes" ("UTR"), but on an anonymous basis. If Clerquette would like to attribute anything to you by name, she will obtain your consent prior to doing so. Clerquette is grateful for (almost) all reader correspondence, and she apologizes in advance for not being able to respond to every email message that she receives.

Welcome back to UTR, fellow Article III groupies! Let the gazing begin.

- Clerquette

Email: [email protected]

Seeking A New Writer

Things have been very quiet here at Underneath Their Robes. Your hostess with the mostest in federal judicial gossip, Article III Groupie, is toying with the idea of letting a new writer take over this site and generate new content -- if she can find the right person for the job.

This would not be a paid position -- alas, UTR doesn't make money for your undersigned blogress -- but a labor of love, for someone fascinated by federal judges and eager to blog about them. You could write as much as or as little as you like; the only requirement is that you stick to the subject matter. Writing under a pseudonym is permissible, even encouraged; it gives the site an air of mystery, and generates buzz.

If you might be interested, please email Article III Groupie (ArticleIIIGroupie at gmail.com), and tell her a little bit about yourself and why you'd like to write for UTR. Thanks.

Justice Clarence Thomas's Fabulous Book Party

Broadcasted tonight on C-Span. For a detailed write-up, see here.