Category: Supreme Court


Mainstreaming Accountability

Ninth Circuit Judge Milan Smith, who just rejected John Ashcroft’s claim of qualified immunity in Abdullah Al-Kid v. John Ashcroft, wrote that the Bush Administration’s alleged practice of abusing of the material witness statute was “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Notably, Judge Smith was quoted last year saying the following about the Ninth Circuit:

[Smith] credits this “mainstreaming” [evidenced in a lower reversal rate] of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

“It’s very rare anymore that you’re [going to] have three Carter judges sitting together [on a panel],” said Smith.

Smith believes the current composition of the Circuit explains the reduction in extreme opinions: “We have 27 active judges and 22 senior judges [on the Circuit] . . . . Of those, Carter appointed 15 in total.”
Of the 15 Carter appointees, two have passed away, one has retired completely from the court, and nine have moved into senior status, a form of semi-retirement whereby a judge vacates his seat and hears a diminished caseload but keeps his full salary. Almost every Carter appointee is now over the age of 70, and Smith stated that it will not be long before the remainder of them “leave this vale of tears.” Only three Carter appointees remain active, including former Chief Judge Mary M. Schroeder and well-known Judge Stephen Reinhardt. According to Smith, the less critical atmosphere which allowed the appointment of these more strident and ideological judges changed during the Reagan administration.

I wonder how the Carter-holdouts felt about this set of comments when they appeared?  Maybe Judge Smith was misquoted.  But if this article represents his thought, it’s pretty clear that he seems himself as a pragmatic “mainstream” conservative, who wants to be seen as reasoanble and apolitical, making his evident annoyance with the government’s position in the Ashcroft case all that much more remarkable.


Conference: Important Questions of Federal Law—Assessing the Supreme Court’s Case Selection Process

YLJ Online

The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. Breakfast and refreshments will be provided. If you are unable to attend, podcasts of conference sessions and downloadable papers from the panelists will be made available by Yale Law School’s main website. Select papers will also be published by The Yale Law Journal Online. Information on the conference can also be downloaded by clicking here.  For more information on The Yale Law Journal Online and the conference, please contact YLJ Online Editor Kathleen Claussen here.

Unilateral Disarmament

David Fontana and Micah Schwartzman complain in TNR that President Obama has failed to appoint young judges to federal appeals courts:

The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.

I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for the nation as a whole. (I favor more seasoned judges, particularly as life spans lengthen.)

This is one of many examples where Democrats are trapped in a difficult dilemma by Bush administration practices. If they appoint older judges, they let the circuit courts’ current rightward skew persist longer. But if they retaliate with relative youngsters, we lose the experience and insight that only age can bring to the courts. Same goes for executive appointments: many transparently political appointees of the Bush era have “burrowed in” to permanent positions at agencies, and balance probably requires similar strategies close to the end of the Obama administration — even if long-serving bureaucrats could do a better job in such positions.

Similar dynamics affect government transparency policies. For example, the Brennan Center recently “gave the Obama administration an F for its use of State Secrets” and has criticized it for continuing several Bush era policies of opacity. Here, again, a change would probably be for the better — but we all know that if a terrorist attack occurred, Dick Cheney’s acolytes would be on TV the next day declaring that Obama’s openness helped cause the carnage.

The health reform debate provides a final example. Bush’s plan for Medicare Part D was essentially an unfunded benefit. Rather than take on the tough task of real cost containment, he and the Republican Congress delegated it to fragmented private insurers with little power to make it happen. Conservatives now complain about a dodgy cost curve in Obama’s plans, but denounce virtually every proposed effort for cost containment as “socialized medicine.” Obama’s political fortunes probably rise if he follows the Bush path, but the country will be better off if he and Congress embrace fiscal responsibility.

In light of these examples, I think Fontana and Schwartzman have shed light on a larger phenomenon of the dangers of unilateral disarmament in an increasingly partisan age. If rules of cooperation like the filibuster exist at any less a status than constitutional norm, perhaps the Dems should think deeply about the proper deployment of the “constitutional option” pioneered by those on the other side of the aisle.


In Favor of Wise Latinas

It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population! Read More


Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.


CJRA Records Before 1998?

Though open government is a priority of the administration, the court system is taking a decidedly different, slower, path.  Here’s one example.  I’d like to collect the CJRA Reports from the Southern District of New York from 1992-1998, when Judge Sotomayor was sitting on that bench. Those Reports would tell us how many motions “pending” Judge Sotomayor had at six month intervals — i.e., how efficient & quick she was in dispensing justice.  Unlike reversal rates, measures of activism based on hierarchical standards,  and citation studies, CJRA motion  statistics would shed light on Judge Sotomayor’s time as a district court judge, and also have the virtue of being easy to translate for the public.  Some judges allow motions to sit on their dockets. Others don’t.  (Discounting for the first year or two on the bench, as many new judges are given a biased set of cases by their colleagues – the dogs of the other judges’ dockets.)

Unfortunately, PACER records CJRA information from 1998 onward, and I can’t seem to figure out where (online or off) the old reports are housed.

Any ideas?


Profile of SCOTUS Blog’s Tom Goldstein

goldstein-tomToday’s Washington Post has an interesting profile of SCOTUSBlog’s Tom Goldstein, a partner at Akin Gump and founder of SCOTUSBlog. From the article:

What makes the brash and balding 38-year-old such a hot media property is, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like “the world’s biggest idiot. I was out there on a limb.”

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site’s host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. “Lyle could write that our clients are completely insane and evil and there’d be nothing to stop him,” Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument. . . .

A graduate of American University’s law school, Goldstein founded a small firm — soon joined by his wife — in the third bedroom of their Northwest Washington home. He pursued his goal, to become a Supreme Court practitioner, by cold-calling lawyers in cases that might be headed for high court review. Goldstein was denigrated by more credentialed members of the bar as an overeager ambulance chaser, but the strategy worked: He has argued 21 cases before the Supreme Court. (Goldstein still finances his old firm, which includes his wife and remains at his home, now in Chevy Chase, a few doors down from Chief Justice John Roberts. The firm is an Akin Gump subcontractor.)

White House officials had asked to consult Goldstein on the court vacancy, but by the time he returned from a weekend in Paris, Obama had made his choice. Determined not to miss the action, Goldstein canceled a meeting in Los Angeles with a top producer about a reality series based on his life, the rights to which were bought by Sony Pictures Television. (“They must be smoking crack,” Goldstein says.) A poker fanatic who plays with pots as large as $100,000, he also delayed plans to compete in the World Series of Poker in Las Vegas.

For more, read the article.


The Yale Law Journal Online: Sonia Sotomayor’s Note

YLJ Online

The Yale Law Journal Online* is pleased to present the Note published by Sonia Sotomayor in Volume 88 (1979).  Judge Sotomayor, who has been nominated by President Obama to the Supreme Court of the United States, was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.   If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.

Judge Sotomayor’s piece, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, analyzed issues regarding Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood.   The Note can be accessed here.

*Effective Fall 2009, The Pocket Part will be integrated into The Yale Law Journal Online, the new online companion and platform of the Journal.  Further details will be forthcoming.


Politicians and Justices

As I’m stuck at the airport, I think it’s blogging time.  (I guess that that’s the legal equivalent of “clobbering time” in the Fantastic Four.)

Every time there is a Supreme Court vacancy, lots of thoughtful people say, “Gee, what the Court really needs is someone with major electoral experience.  A Governor or a Senator.”  But it never happens. Indeed, you have to go back to Earl Warren to find that sort of nominee.  Why does this idea always flame out (no pun intended)?

Read More


Some Supreme Court Trivia

The White House says that Judge Sotomayor has more experience on the federal bench than any Supreme Court nominee in the last one hundred years.  Does anyone know who the last nominee with more was?  (Holmes was on the Massachusetts Supreme Judicial Court for twenty years before TR picked him, but I guess they are referring to someone else.)