Underneath Their Robes

Professor John Choon Yoo's New Book

As noted by Instapundit, the new book by Professor John C. Yoo, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11, is now available. Although Professor Yoo's book addresses some very serious subjects, expect flashes of wit as well from this controversial celebrity academic. After all, John Yoo has been recognized by UTR's Robing Room Report for being nothing short of "hilarious," as well as "unbelievably brilliant." The latter compliment is not surprising, since Professor Yoo is one of the Elect (OT 1994/Thomas); the former, however, is noteworthy, since not all Supreme Court clerks are funny.

By the way, the crowd-pleasing Professor Yoo will be a panelist at a star-studded symposium on the legacy of the Rehnquist Court. The symposium is being sponsored by the GW Law Review and will be taking place on October 27-28, 2005. Judicial celebs in attendance will include Justice Ruth Bader Ginsburg and Judge Carlos F. Lucero (10th Cir.). How fabulous!

(Wow, this post is only two paragraphs long. See, A3G is capable of issuing short posts!)

Robing Room Report: Federalist Fiesta Collector's Edition! (Part 1)

From November 11 to November 13, 2004,* the Federalist Society held its National Lawyers Convention in Washington, D.C. Numerous superstars of the vast right-wing conspiracy, including many fabulous federal jurists, descended upon the Mayflower Hotel, turning it into the federal judicial equivalent of the Oscars night red carpet.

The glitzy and glamorous proceedings have been the subject of much discussion throughout the blogosphere. But almost all of this prior commentary has focused not on style, but on (grimace) substance.

So who can report on the more frivolous aspects of the Convention? Enquiring minds want to know: Which judges were looking hot, and which ones were looking -- not? Who was the Best-Dressed Judicial Spouse? And what about the Most Delicious Diva? Sounds like a job for yours truly, a.k.a. "the Joan Rivers of the federal judiciary," and Robing Room Report! (For additional information about robing rooms, including guidance concerning what a judge can and can't do in her robing room, check out this recent opinion from the Second Circuit (link via How Appealing).)

Now, A3G has so much to say about the Convention, so this edition of "Robing Room Report" will take the form of a two-part series. Today's installment (Part 1) will cover non-judicial attendees, who are still Important, as individuals closely connected to the federal judiciary (e.g., members of the Elect, former law clerks, judicial spouses or children, etc.). The next installment will discuss the Convention's brightest stars: the federal judicial deities who descended from Olympus to grace everyone with their presence. A3G believes in saving the best for last!

A long time has passed since the Convention, so let's get down to business. Instead of bothering to repeat them all here, A3G incorporates by reference the caveats, qualifications, and disclaimers set forth in the first edition of "Robing Room Report." If anything, the standard warnings apply even more strongly. As she has previously mentioned, because A3G did not attend this year's Federalist Fiesta, she was forced to rely entirely upon intelligence from field correspondents in preparing this report. She thanks them for their many missives, and she apologizes for her quasi-plagiarism, in the form of her quoting UTR correspondents without citing them by name -- which she does pursuant to UTR's standard e-mail policy, designed to protect contributors from federal judicial retribution.

And now, on to the awards, which will be presented in no particular order. In the spirit of the Oscars, for which nominations will be announced later today, A3G asks: "The envelope, please."

Least Loathsome Untouchable: Christopher A. Wray

This prize, bestowed upon the hottest member of the Great Unwashed, goes to Chris Wray, a participant in an "interesting," "spirited" panel discussion on the PATRIOT Act. Wray has done pretty well for himself professionally, despite being the only Luttigator not among the Elect. Overcoming this disability, he has risen to the post of Assistant Attorney General for the Department of Justice's Criminal Division (sizable shoes previously filled by one of the Anointed, Judge Michael Chertoff, recently profiled in UTR).

Wray wins the prize for Least Loathsome Untouchable, however, based not on his professional achievement, nor on the fact that "all the top D.C. firms have a [crude word omitted] for him" (as noted in this article). Rather, he wins for a far more meritocratic reason: he is "incredibly good-looking"! As one UTR reader gushed, Wray is "hunk-o-licious." He combines "the irresistible, boyish good looks of Nick Lachey with the handsome, rugged manliness of Campbell Scott." And his "genteel Southern accent" is "simply to die for!"

Runner-up: R. Alexander Acosta, Assistant Attorney General for the DOJ's Civil Rights Division. Like Wray, Acosta never made it to One First Street, despite clerking for a prominent conservative jurist (Judge Alito of the Third Circuit). Acosta loses out to Wray, however, not because Judge Luttig feeds more than Judge Alito, but because Acosta -- despite being "slender and appealing" -- is "merely cute." In contrast, Wray is "a hunk of burnin' love" and "a drool-inducing stud!"

If you have doubts on this score, consider the following comment from another UTR reader (which gives new meaning to the term mens rea): "[Wray] used to be a federal prosecutor in Atlanta. If he were an AUSA in my district, I'd commit a federal crime just so he could prosecute me!"

Sorry, dear readers: Wray is married with two children, as reported in the alumni bulletin of Andover, the elite prep school from which he graduated. And Alex Acosta, while not married, is also believed to be taken by a lucky young lady.

Most Adorable of the Anointed: Professor Eugene Volokh

Professor Volokh (SOC, OT 1993), the "baby-faced celebrity blogger" at the hub of the Volokh Conspiracy, "cut a fine figure" at the Convention. As a participant in a panel on free speech and election law, Professor Volokh was looking "absolutely adorable"! He was wearing a "lovely blue suit, blue striped shirt, and gorgeous red tie with distinctive blue-and-gold print (probably Zegna, maybe Robert Talbott)." He was "much better dressed than his former boss" (whose attire will be discussed -- and, A3G regrets to report, criticized -- in Part II of this report).

A digression: If you'd like to see more of Professor Volokh and the super-hot Judge Alex Kozinski, so you can form your own judgments about their appearance, check out this video clip. It's a fascinating segment from The NewsHour with Jim Lehrer dedicated to the Ninth Circuit split. Interviewees include Professor Volokh, sounding endearingly earnest; Judge Kozinski, wearing an elegant dark suit; Judge Diarmuid O'Scannlain, harshly dismissing one argument against a circuit split as "nonsense"; and Queen Mary, er, Chief Judge Mary Schroeder, looking regal and above the fray. It's a real treat for all you Ninth Circuit groupies out there.

Runner-up: Professor Viet Dinh (SOC, OT 1994), who is now back at Georgetown Law, after a stint heading up the DOJ's Office of Legal Policy (OLP), takes second place behind Professor Volokh (his predecessor in SOC's chambers). At the PATRIOT Act panel, Professor Dinh delivered "impressive and highly substantive" remarks, "sans notes." (His delivery, however, could use some improvement: he spoke "too quickly," making him "sound[] vaguely like Elmer Fudd.") Professor Dinh is "so cute, you just want to take him home with you!"

(Get your minds out of the gutter, people! Clearly this correspondent wants to take home Professor Dinh -- who came to this country at age 10, as a refugee fleeing war-torn Vietnam, in an "amazing and awe-inspiring turn of events" -- so he can be taken care of, nurtured, and protected. If you have any doubt on this score, check out the picture (above right) of the "cuddly" Professor Dinh, which reveals his "sweet, boyishly vulnerable appearance.")

Most Entertaining of the Elect: Professor John Choon Yoo

The Elect aren't just cute, like Professors Volokh and Dinh; they can also be very funny. As a participant in a panel entitled "The Use of Foreign Legal Materials in American Constitutional Interpretation," Professor Yoo of Boalt Hall was "hilarious." He delivered "delightfully disparaging remarks" about "those crazy Europeans," basically along the lines of how "we've had to go over there and save their lazy a**es time and time again."

Professor Yoo is an "unbelievably brilliant" academic with a "remarkably large head" (in a literal sense; see above left).  Not too long ago, he was a "red-hot star in the conservative legal firmament" with "impeccable credentials," including clerkships with Judge Silberman, whose acolytes now fill the corridors of executive power, and Justice Thomas (whom Yoo does not support for Chief Justice, interestingly enough).

From 2001 to 2003, while on leave from Boalt Hall, Professor Yoo served as a deputy assistant attorney general in the DOJ's Office of Legal Counsel (OLC). Known as "the brain trust of the executive branch," OLC is "staggeringly prestigious." Former OLC heads include Chief Justice Rehnquist (1969-71), who was appointed directly to the Supreme Court from OLC, and Justice Scalia (1974-77), who has reportedly launched a charm offensive in an effort to become the next Chief.

A digression: Speaking of the Chief, A3G was glad to see that he successfully administered the oath of office to President Bush. But WHR is not looking well these days, as described in almost painful detail in this recent sight-ation (link via Nomination Nation ).**

A further digression: The OLC shall henceforth be referred to in these pages as "Finishing School for the Elect." If you don't land a Supreme Court clerkship that immediately follows your feeder judge clerkship, cool your heels at the OLC, then reapply to the Court. Success is practically guaranteed! Current denizens of One First Street who passed through Finishing School en route to immortality include Curtis Gannon (E. Jones, AS) and Jennifer Koester (Garza, CT). And OT 2005 will witness the apotheosis of at least two more OLC alums, James Ho (J. Smith, CT) and John Demers (O'Scannlain, AS).

But before you rush off to the post office to mail in your application materials -- yes, the Finishing School is interviewing right now -- ask yourself: "Do I really want to write opinions on topics such as 'whether funding for technical assistance for the agricultural conservation programs listed in amended section 1241(a) of the Food Security Act of 1985 is subject to the section 11 cap on transfer of Commodity Credit Corporation funds'?"***

(Speaking only for herself, and with apologies to Meat Loaf, A3G answers the question thusly: "I would do anything for love -- but I won't do that!")

My goodness, sorry for the multiple digressions! Back to the good professor. Alas, an OLC stint has not helped Professor Yoo's career; to the contrary, it has caused it to crash and burn. Thanks to his unfortunate authorship of a controversial OLC memo (pdf) that critics condemned as "soft on torture" -- which caused him to be the subject of student protests at Berkeley, and which the OLC subsequently repudiated -- he is widely viewed as "radioactive" (or, as colorfully expressed by one correspondent, "non-confirmable to the post of Barney-groomer").****

UTR sources therefore offer the following armchair psychology about John Yoo: the fact that he's "out of running for pretty much any prominent [government] position" -- and "saying prayers of gratitude for academic tenure" -- explains why Yoo is such a "loose cannon" these days. Since Yoo "no longer needs to worry about ruining his chances" for a high-profile judicial or executive branch appointment, he "is now free to tell us how he really feels about things!"

Runner-up: Professor Richard A. Epstein. Professor Epstein, "that wacky genius," was "extremely entertaining" at the Convention. While sitting on a panel about Brown v. Board of Education and affirmative action, Professor Epstein "traded highly amusing bench-slaps" with his fellow panelist, Judge Guido Calabresi (2d Cir.). An attendee offers this eyewitness account:

It was the legal academy's answer to those "rap battles" from 8 Mile, in which the rappers tried to outdo other with increasingly creative disses and put-downs. Very funny stuff from both men. Calabresi kept addressing Epstein as "Richie," in this very dismissive tone, as if to say, "Richie, while I was clerking for Justice Black, you were a pimply-faced 15-year-old [vulgarism omitted] while sniffing your mother's underwear."

But Epstein gave as good as he got. At one point, in mockery of Calabresi's sloppy, loosey-goosey approach to interpreting the Constitution, Epstein exclaimed, "Guido, you can't spout poetry and call it constitutional analysis!" Later on, in response to Guido's citation of playwright George Bernard Shaw in one of his rambles, Epstein sniffed, "Guido, you can't beat the constitutional text with a quote from Man and Superman."

Best-Dressed Judicial Spouse: Maura O'Scannlain

Gisele, Natalia, Karolina -- get off the runway, girls! Make way for some real women, whose strappy sandals you are not worthy to untie. Spotted sashaying through the Mayflower as if they were strutting down the catwalks of Milan were several resplendent judicial consorts, including Judy Boggs, the wife of Judge Danny J. Boggs (6th Cir.), and Maureen Scalia, the estimable spouse of the Rock Star of One First Street (i.e., "the Bianca Jagger of One First Street").

Yes, competition in this category was fierce. But the tiara for Best-Dressed Judicial Spouse goes to Maura O'Scannlain, the wife of Judge Diarmuid O'Scannlain (9th Cir.). On one day of the conference, Mrs. O'Scannlain was spotted in "a beautifully finished houndstooth jacket." Another day saw her clad in "a fabulous pantsuit, in Katherine Harris red, with a paisley blouse and perfectly matched red overcoat." Indeed, "just like her husband's judicial philosophy," Mrs. O'Scannlain's personal style is "conservative, elegant, and distinctive." (And as you can see from the NewsHour video clip, her husband isn't a bad dresser either -- even if it wouldn't hurt him to be less conservative.)

Maura O'Scannlain's only fashion misstep: "drab, overly sensible black shoes." Given her outfit, perhaps she should have gone with a pair of "bright red high heels," like those worn by Judge Loretta A. Preska (S.D.N.Y.)...

Non-Article III "It" Judge: Judge Mark V. Holmes

Yes, A3G realizes that you may be tired of hearing about Judge Holmes, who has been the subject of extensive prior coverage in these pages -- even though he is a mere Tax Court judge, not an Article III deity. (The lavish coverage of Judge Holmes is due in large part to the fact that he clerked for The Easy Rider, A3G's all-time favorite judge.)

Judge Holmes deserves a prize, however, for talking up UTR at the Convention. A reader offers this report: "Long time reader, first time spy here. I thought you might like to know that the topic of your site came up when Professor Volokh [also a former Kozinski clerk] and Judge Holmes talked about Jeopardy! Judge Holmes apparently won $17,000 his one day as champion. Professor Volokh lamented that his younger brother Sasha was unable to buzz in quickly enough and lost on his appearance."

A digression: Although he may not be a Jeopardy! champ, Alexander "Sasha" Volokh, yet another Kozinski clerk, is one of the Elect, a future clerk to Justice O'Connor. The rather cute Sasha (see left) was hired last summer by SOC -- without an interview. "How do you like them apples?"

Notwithstanding his genius, Sasha's clumsiness with the buzzer suggests a troubling lack of manual dexterity. A3G can't help but wonder: "The members of the Elect are all unquestionably brilliant, able to find answers to the thorniest legal questions. But how many of them can find this?" (Warning: Do not click through the immediately preceding link if you're in the office!)

Back to Judge Holmes, our Non-Article III "It" Judge. A3G will share with you one last amusing anecdote about him, and then she will desist from mentioning him for a while. Reader Bill MacDonald, identified by name with his permission, offers this story:

I'm afraid you don't do Judge Mark Holmes enough justice. Not only did he compete on Jeopardy!, he also made a verbal appearance on the very first run of Who Wants to Be a Millionaire, back in August of 1999. Knowing of Mark's Jeopardy! prowess, I had asked him to serve as a Phone-a-Friend for me when I was chosen to appear in the second week of the show. When I got to the $250,000 question -- "In Prokofiev's Peter and the Wolf, which of the following instruments traditionally portrays the wolf?" -- Mark replied that he thought it was the French horn.

I wanted him to be a little more specific, so I asked him how sure he was, percentage-wise, and he replied "60%" -- thus making him the first Phone-a-Friend ever to express his certainty in percentage terms, a tradition carried on to this very day. And, of course, Mark was right. If only I had listened to him!

Let this be a lesson to all of us: When a federal judge speaks, we must obey! Ignore a federal judge at your peril...

Non-Judicial "It" Boy: Alberto R. Gonzales

Al Gonzales competes -- and prevails -- in this category, for the most buzz-generating of the non-judicial celebrities at the Convention. (Although he still likes to be addressed as "Judge," Gonzales is no longer a judge -- and he won't be, unless and until he makes it to One First Street.) Gonzales attended the Society's "swanky annual dinner" on Thursday night, where his appearance "caused a great stir throughout the ballroom." As he "diligently worked the room," he was followed by "indiscreet whispering and stares"; he was "definitely the center of attention for the evening."

Runner-up: Senator William Frist, M.D., keynote speaker at the annual dinner. Senator Frist (R-TN) spoke on a topic near and dear to A3G's heart: the filibustering of judicial nominees. The text of his remarks is available here (pdf); for additional commentary from people who were there, see, e.g., here, here, and here.

As current Senator Majority Leader and possible future POTUS, Bill Frist is obviously a super-boldface name. But Gonzales produced greater buzz at the Convention than Dr. Frist, because (1) his appearance was "a surprise to many" (unlike Frist's, which was previously announced); and (2) the Convention took place just one day after the President's announcement, on November 10, of Gonzales's nomination as Attorney General. As a result, "[w]herever he went, [Gonzales] was treated like a rock star!"

Most Delicious Diva: Jennifer Cabranes Braceras

A noted lawyer, freelance writer, and member of the U.S. Commission on Civil Rights, the "saucy" Braceras was the Convention's Most Delicious Diva. Despite being the daughter of Second Circuit Judge Jose A. Cabranes, a prominent judicial Democrat, Braceras is an "outspoken conservative" who has publicly professed her "dislike of Al Gore" -- even though her father was near the top of Gore's Supreme Court short-list. (In terms of her own One First Street picks, she supports the kid from Tegucigalpa.) Braceras clerked for a leading conservative jurist, Judge Ralph K. Winter, Jr., one of her father's Second Circuit colleagues.

Braceras was in "top form" at the conference. A reader described Braceras as "a strikingly handsome woman -- think Frida Kahlo without the unibrow." Braceras boasted "an incredible mane of thick, dark, lustrous hair, held back by expensive-looking sunglasses perched on top of her head." Throughout her remarks, "she would flip the aforementioned mane over her left shoulder, in dramatic fashion." Wearing "a red blouse of artfully crumpled fabric," she held forth before a standing-room-only crowd at the panel "Brown and Racial Preferences," which she "thrilled" with her "strong and eloquent" opposition to racial preferences (including her "blunt dismissal of diversity as 'a crock'").

In sum, Braceras "is a magnificent, fiery Latina conservative. She'd be a great addition to the federal bench (assuming she'd be interested in a judicial position). Someone give her a black robe!"

Runner-up: Abigail Thernstrom, Braceras's colleague on the U.S. Commission for Civil Rights. The "ever-feisty" Thernstrom had some choice words for public school math teachers (many of them members of the reviled NEA, no doubt): "They don't know math! They see a fraction and think it's some sort of hieroglyphic!"

Prom King and Queen: Rachel Brand and Jonathan F. Cohn

The "Prom King and Queen" award goes to the Convention's most high-powered "celebrity couple" -- i.e., members of the Elect who are married to or dating one another. Due to the high number of such couples who were present, the category was hotly contested.

After all, the Engels were in the house. So were the "unbelievably well-connected" Jim Ho (CT, OT 2005), a "Federalist Society heavyweight," and his "exceedingly charming" wife, Allyson Newton Ho (SOC, OT 2002).  They were joined by the "manifestly brilliant" Nick Rosenkranz (AMK, OT 2001), a "rock star of legal academia" who published an article in the Harvard Law Review while still a law clerk, accompanied by the "literally breathtaking" Tali Farhadian (SOC, OT 2004). The "exotically beautiful" Farhadian was described by one reader as "a Rhodes Scholar and Supreme Court clerk whose looks can -- and regularly do -- stop traffic." (The picture at left "fails to do justice" to Farhadian, who "in real life resembles Padma Lakshmi," the insanely gorgeous model-actress married to Salman Rushdie.)

Is it possible to prevail against such heady competition? Well, yes -- if you happen to be Rachel Brand (AMK, OT 2002) and Jon Cohn (CT, OT 2000), this year's Prom King and Queen. Brand and Cohn are "an attractive and overachieving couple, if ever there was one," and "they are at the epicenter of conservative legal circles."

At the tender age of 31, the "turbo-charged" Brand has already risen to the high post of Principal Deputy Assistant Attorney General of OLP. She "knows how to work a room like no one else," and she is "incredibly blessed with abundant brains and beauty." As one UTR reader asks, presumably rhetorically, "How many DAAGs do you know with flawless skin? If the 'law' thing doesn't work out for Rachel -- in other words, if she's not a circuit judge by age 35 -- she can go be the next Noxzema girl!"

The "high-powered" Cohn, who is only 32, oversees immigration litigation around the country, as head of the DOJ's Office of Immigration Litigation (OIL). He is "the intellectual equal of Rachel -- and that's saying something!" He is also "quite cute," even if "not as stunningly good-looking as his wife."

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WOW! So there you have it: Part 1 of the Robing Room Report on the 2004 Federalist Fiesta. Article III Groupie has to sit down -- her head is spinning from the intense red carpet action! (It is thus quite fitting that someone recently accessed UTR by running a Google search for Pictures of people fainting from seeing celebrities.)

A3G hopes you enjoyed this admittedly long-winded account of the star-studded proceedings. She promises you the second and final installment of her Convention dispatch, focused on the federal judges in attendance, in the "not-too-distant future" (whatever that means)...

Planning to attend Federalistapalooza 2005 (so don't seat her in Siberia at the dinner!),

Article III Groupie

* Yes, Article III Groupie realizes that the subject of this post is "so last year" -- literally as well as figuratively. Most of the time A3G is grateful for the freedom she enjoys as a blogress, including freedom from editorial interference and artificial deadlines. But freedom can be dangerous for the undisciplined, with dilatory posts like this one as the result...

** Yes, the Chief showed up to the Inauguration in his super-stylish robe with the gold bars. But he was without the handsome headgear sported by some of his colleagues: the famed Supreme Court skullcaps! Click here, for a picture of "The Doge of One First Street," a.k.a. Justice Scalia in his skullcap. The Men Without Hats in the photo are Justices Souter, Thomas, and Stevens; Justice Ginsburg, thanks to her unfortunately oversized sunglasses, resembles a large insect. (As always, thanks to How Appealing for these and many other excellent links.)

*** No, that isn't a parody, frighteningly enough; it's the actual subject of a real-life OLC memo.

**** The "Memogate" scandal also tarnished the reputation of Judge Jay S. Bybee, the AAG of OLC at the time the memo was issued. (Indeed, some to refer to the memo as "the Bybee memo."). But Judge Bybee had his lifetime appointment to the Ninth Circuit firmly in hand by the time "Memogate" erupted. Indeed, because Judge Bybee was already safely ensconced on an Article III court, some have argued that the White House shrewdly "hung him out to dry" -- they made him into the fall guy for the whole scandal, knowing full well that no unfortunate consequences could befall him.

Robing Room Report: Federal Judicial Trendspotting

SIZZLE! Is that the sound of juicy steaks being grilled at a Labor Day barbeque? Actually, no. It's the sound you're making right now, as you open the red-hot pages of Robing Room Report: Federal Judicial Trendspotting!

As you all know by now, Article III Groupie is one stylish lady. She prides herself on keeping up with the most recent developments in the worlds of fashion, popular culture, and yes, the law. Inspired by Entertainment Weekly's Shaw Report and Vanity Fair's In-and-Out list, which identify the latest trends in their respective spheres, A3G now places her manicured fingernail on the federal judicial pulse. The delicious result is Robing Room Report, UTR's assessment of the Article III zeitgeist. What's in, and what's out? Who's hot, and who's not? Pick up Robing Room Report to get the latest scoop!

Before proceeding to the main event, Article III Groupie must offer a caveat or two. Robing Room Report reflects her own deeply personal take on federal judicial trends. In the event that you take issue with Article III Groupie's identification of something or someone as "in" or "out," A3G apologizes. She's sorry you're not as cool and well-informed as she is!

Sorry, that was rather flip, wasn't it? A slightly more serious tone is warranted as A3G provides this important disclaimer. So try this on for size: Because assessing trends is a highly subjective enterprise, it does not lend itself well to the logical and reasoned debates that are the hallmark of the legal profession. If you disagree with the substance of Robing Room Report, please understand that Article III Groupie isn't purporting to offer an "objective" assessment--to the extent that such is even possible, of course--of what's "too cool for school" within the Article III judiciary. It can be hard to believe sometimes, but UTR is just a blog, and these are merely A3G's humble opinions (which no one is forcing you to read, Ms. Kendall).

Readers, feel free to register your disagreements with Robing Room Report in the "comments" section of this post (or, if you are a fellow blogger, in your own blog). But please refrain from sending Article III Groupie letter briefs outlining your objections to a particular Robing Room Report item, in a campaign to get her to change the offending entry. A3G can tell you right now: "Them's the breaks! UTR is her blog, and she'll cry if she wants to." And so, although Article III Groupie always welcomes factual corrections, expressions of subjective disagreement with her admittedly biased assessment of federal judicial coolness will just waste your time and hers.

As you'll see below, A3G has provided brief commentary for some (but not all) of the items in Robing Room Report. The reason for the brevity or even absence of justifications is that, as noted supra, trends emerge for unfathomable reasons; they do not lend themselves well to reasoned explanation. Like s**t, trends just happen.

So here you go, in no particular order: the latest fads and fashions in the federal judiciary, according to Robing Room Report. Enjoy!

Supreme Court Justice
In: Justice Thomas
Five Minutes Ago: Justice Scalia
Out: Justice Ginsburg

As noted in this article by Jonathan Ringel, people are finally beginning to realize that Justice Thomas, far from being a Scalia clone, has a distinctive and compelling judicial philosophy of his own (which, among other things, places minimal to no weight on stare decisis). Furthermore, as Ringel's piece notes, a new biography of Justice Thomas by investigative reporter Ken Foskett suggests that Justice Thomas's account of his relationship with Anita Hill may be closer to the truth than Hill's. CT's stock is definitely on the rise!

Justice Scalia, UTR's "five minutes ago" justice, was in the public spotlight a lot in 2004. First there were his duck hunting misadventures, then there were his surprising blockbuster opinions in Crawford v. Washington and Blakely v. Washington. But overexposure has led to "Nino"-fatigue, which is why Justice Scalia is "five minutes ago." As for Justice Ginsburg, UTR has to ask: "Ruthie, what have you done for us lately?" (As Tony Mauro notes here, Justice Blackmun wasn't a fan of RBG either, giving her a grade of "C+" for one oral argument she presented to the Court on behalf of the ACLU.)

Feeder Judges
In: Judge Richard Posner (7th Cir.); Judge Alex Kozinski (9th Cir.)
Five Minutes Ago: Judge Laurence H. Silberman (D.C. Cir.); Judge Diarmuid F. O'Scannlain (9th Cir.)
Out: Judge Harry T. Edwards (D.C. Cir.); Judge Guido Calabresi (2d Cir.)

Among feeder judges, Judge Posner is "in" because he was recently blogging over at Lessig Blog--and because he reads UTR, as noted in this piece from the ABA Journal eReport. Judge Kozinski, also a loyal reader of UTR, is "in" because he's the top feeder judge for October Term 2004 (as well as the #1 Male Superhottie of the Federal Judiciary).

Judge Silberman was in the news earlier this year when he was appointed to chair a bipartisan commission to investigate intelligence failures concerning Iraq, and again earlier this summer when a fire in the Prettyman Courthouse destroyed his chambers. But he hasn't been in the public eye since then, which explains his designation as a "five minutes ago" feeder judge. Judge O'Scannlain is "five minutes ago" thanks to a spate of high-profile opinions--see here, here, and here--that are recent, but not that recent. (Thanks to How Appealing for the links.)

Judge Edwards must be "out"--to lunch, that is, since it appears he hasn't issued a published opinion in months. Ah, to be a D.C. Circuit mandarin, sitting around the Prettyman Courthouse and watching my long fingernails grow! As for Guido, 'nuff said... (Elizabeth Kendall of The '04 Wall is already very mad at me.)

Circuit Court
In: Ninth Circuit
Five Minutes Ago: Second Circuit
Out: D.C. Circuit

Yes, it's the perennial butt of summary reversal jokes. But thanks to a number of interesting and important opinions that it has issued recently, the hardworking Ninth Circuit is "in." The Second Circuit is quite prestigious, but it hasn't done anything terribly noteworthy as of late, so it's "five minutes ago." The D.C. Circuit--a court of such elevated stature that merely uttering its name has been known to induce vertigo in the speaker--is "out," on its long summer vacation.

Judicial Diva
In: Judge Kim McLane Wardlaw (9th Cir.)
Five Minutes Ago: Judge Sandra L. Lynch (1st Cir.)
Out: Judge Dolores K. Sloviter (3d Cir.)

For those of you who are new to UTR, a "Judicial Diva" might be described as a high-powered, brilliant, but difficult and demanding female judge. For more detailed discussion of the Judicial Diva, please read this UTR classic, "Fili-BUSTED! Magnificient Judicial Divas have been stopped dead in their tracks. Now UTR asks: Who is the biggest diva?"

A3G has a girl-on-girl crush on Judge Wardlaw, the #2 Female Superhottie of the Federal Judiciary. Keep an eye out for a post from A3G that will vigorously defend this brainy and beautiful jurist against her player-hating detractors. In the meantime, read this post from Greedy Clerks, a nice antidote to some of the venomous messages about Judge Wardlaw previously noted here by UTR.

Non-Article III Judge
In: Tax Court Judge
Five Minutes Ago: Immigration Judge
Out: Bankruptcy Judge

As reported here by UTR, tax court judges can be funny. Who knew?

Judicial Nominee
In: Justice Janice Rogers Brown
Five Minutes Ago: Thomas B. Griffith
Out: Brett M. Kavanaugh

Justice Brown, a worthy competitor in UTR's Judicial Diva Showdown, is nothing short of delectable. Click here for a recent Volokh Conspiracy post by Professor David Bernstein, which concludes as follows: "Justice Brown has once again shown why she deserves to be a D.C. Circuit judge."

Griffith was in the spotlight earlier this summer for a tempest in a teapot relating to his D.C. bar dues, but he has since receded from the public eye. As his dazzling resumé makes clear, Kavanaugh, a member of the Elect--he clerked for Judge Walter K. Stapleton (3d Cir.), Judge Kozinski, and Justice Kennedy--is incredibly smart. (And he's supposed to be cute as well--legendary journalist Bob Woodward describes Kavanaugh as "a dark-haired version of the movie actor William Hurt.") But Kavanaugh has been decried by the Senator From New York Who Isn't Hillary as someone who "would probably win first prize as the hard-Right’s political lawyer," "the Zelig of young Republican lawyers." Thus, despite his breathtaking credentials, Kavanaugh's political baggage--including his Whitewater work for Ken Starr and his service in the White House counsel's office--will make Kavanaugh a tough sell in today's political climate. Even if President Bush wins a second term, bitterness among the Democrats may run high enough to doom Kavanaugh's nomination (already the subject of a filibuster).

Case Type
In: Criminal
Five Minutes Ago: Civil
Out: Administrative

Federal criminal cases are hot thanks to Blakely, which A3G discussed--although not in substantive legal terms--in this post. As you can read about over at Professor Berman's Sentencing Law and Policy Blog or the Blakely Blog, everyone is waiting to see what the Supreme Court will do in the cases of Booker and Fanfan, which present the constitutionality of the federal sentencing guidelines. (Who says folks in the SG's office don't have a sense of humor? Rumor has it that Fanfan was chosen to be the subject of the government's cert petition because they found "Fanfan" such a funfun name to say aloud.)

Will administrative cases ever be "in"? Alas, being a D.C. Circuit judge isn't all fun and games. When you aren't sunning yourself on the Prettyman Courthouse's secret rooftop pool deck (pictured at left)--a location so glamorous and exclusive it makes "The Roof" at New York's Soho House look positively plebeian by comparison--you must decide mind-numbingly boring administrative law cases.

Opinion Type
In: En Banc
Five Minutes Ago: Unpublished
Out: Ghostwritten

For the Third Circuit's condemnation of "ghostwritten" opinions--and the misbehaving district judge who copied nearly verbatim the defendants' proposed opinion, then issued it as the court's opinion dismissing the case--click here. For news coverage of this mini-scandal, click here or here.

In this article, Professor John Burkoff, who teaches legal ethics at the University of Pittsburgh School of Law, observed: "Typically, judges try to deal with each other with kid gloves. In this case, for some reason, the gloves came off." Indeed they did. Let the bench-slappery begin!

Judicial Support Staff Member
In: Secretary
Five Minutes Ago: Courtroom Deputy
Out: Law Clerk

Secretaries are literally "in"; they cover the phones during August and early September, when federal judges make like lazy Europeans and take ridiculously long vacations. Law clerks are literally "out," because this is prime law clerk turnover season. (But law clerks will soon be "in" again, with the start of the official law clerk hiring period this month.)

Judicial Robe Style
In: Medium-length, black
Five Minutes Ago: Daisy Dukes, pastel
Out: Floor-length, white

A medium-length robe in basic black is classic, a staple of the judicial wardrobe that goes well with--or at least covers up--pretty much everything. It's the Article III analog to the "little black dress" that no girl should be without. A pastel micro-mini robe is not seasonally appropriate. Summer is over, honey! (If you insist on wearing an ultra-short robe, please familiarize yourself with this guide to miniskirt protocols from the New York Times.)

As for a floor-length robe in white, it's a bit too Ku Klux Klan-ish for most people's tastes...

Judicial Robe Designer
In: Murphy Robes
Five Minutes Ago: Shenandoah Robes
Out: Bentley & Simon

For Murphy Robes, A3G is partial to the Geneva S-6F. "The ultimate in classic robe styling, the Geneva S-6 sets the standard by which all other judicial robes are compared." To save five dollars--those judicial salaries sure are low!--consider the Arbiter S-11, "an exceptionally comfortable judicial robe designed for judges spending long hours on the bench."

For Shenandoah Robes, stick with the Deluxe Judicial Robe: "This elegant judicial robe is for those who desire the additional tailoring detail of the full-body pleats extending from the hem of the body to the top of the shoulder. The double-bell lined sleeve with finished cuff completes this exquisite model." A3G would not be caught dead in the ValueLine Judicial Robe. "[D]esigned for the budget-minded judge," this design has--the horror! the horror!--velcro closure cuffs.

For Bentley & Simon, only the tropical wool fabric will do. Avoid the polyester crepe at all costs!

Judicial Behavior
In: Taking ridiculously long vacations; blogging
Five Minutes Ago: Nepotism; inbreeding
Out: Doing actual work

Performing real work? Please, don't be ridiculous. Just like judicial robes, the only reason August and September exist is so federal judges can take them off! (Thanks to this post from How Appealing for the nepotism and inbreeding links.)

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Assuming the powers-that-be don't ruin her plans, Article III Groupie will be enjoying the holiday weekend out of town. She will not be checking e-mail or blogging during this time. A3G wishes her readers a relaxing and enjoyable Labor Day!

And on the seventh day she rested,

Article III Groupie