Nomination Nation

News, views, and gossip about judicial appointments. Please send your tips to Pozinski [at] gmail [dot] com or Senator [dot] Spectator [at] gmail [dot] com.

Thursday, September 30, 2004

A Plan to Put Us Out of Business

Angus Dwyer and Will Baude, two Yale Law students, debate the merits of an unusual proposal put forth by Professor Mashaw: What if the Supreme Court appointed the lower federal judges rather than the President nominating judges with the advice and consent of the Senate? I'll tell you what would happen -- this blog would have a lot less to talk about. But that's a different story.

Dwyer does a decent job of explaining why, at least if district and circuit judges are considered "inferior officers," this plan wouldn't present any constitutional problems. He also makes a sensible argument that it might ease some of the gridlock of the current judicial nomination process and (perhaps) result in less political appointees. Will contends that there is a danger that allowing the Supreme Court to appoint its own inferior courts would only entrench the high court's own ideology and bias.

I think Will is pretty close to getting it. The problem here is one of separation of powers. The framers very carefully chose to have the judiciary appointed through the advice and consent model so as to have an independent third branch in which each of the other two had a say regarding its composition. Taken a step further, the Judiciary -- the final arbiter of "what the law is" -- was to be picked by a system resulting from a compromise between national interests (represented by the President) and the states' interests (represented by the Senate). Allowing the Supreme Court to control the process, then, would disrupt these checks and balances. Granted, the nine members of the Supreme Court would still be appointed in the same manner, but that doesn't satisfy the intent of the original system when you consider that the vast bulk of the federal judiciary -- over 850 active judges -- would be picked independent of the advice and consent system.

In short, the idea, while intriguing, wouldn't work. The framers were concerned about improper influence in the appointments process, which is why one faction resisted giving the power solely to the President, and another resisted giving the same to the Senate. To contravene both and give it to 9 (or, I suppose, 5) Supreme Court justices, I believe, would please none of the Framers.

Update: More thoughts from "The Fox."

The Conspiracy Continues?

Ex-clerks and conservative big-wigs aren't the only ones condemning the actions of those who spoke out about the Supreme Court's decision in Bush v. Gore in the current issue of Vanity Fair magazine. Now several senators have begun pushing for an investigation.

Of course, the senators happen to be prominent Republicans, but you were getting used to the lack of bipartisanship on this issue, right? Senators Saxby Chambliss (R-GA), John Cornyn (R-TX), and Lindsey Graham (R-SC) sent a letter to Sen. Orrin Hatch (R-UT), Chairman of the Senate Judiciary Committee, suggesting that perhaps the subcommittee on Administrative Oversight and the Courts might want to "pay attention" to the matter.

In explaining their reasons for concern, the senators cut and paste from the statement signed by the aforemention group of conservative ex-clerks, then conclude:

Judges throughout the federal judiciary, including the U.S. Supreme Court, rely on the assistance of law clerks to ensure the smooth and expedient administration of justice. If members of the judiciary cannot rely on the confidentiality of their deliberations and discussions with law clerks, the judiciary as we know it simply could not function.
The senators ask Chairman Hatch to "consider hearings or other measures to determine whether there has been misconduct by employees of the United States Supreme Court, and if so, what measures should be taken in response."

Scary stuff. But I doubt anything will come of this. Remember, the Republican-run Judiciary Committee has had its own problems with confidentiality in the past.

(thanks to Professor Volokh for posting the senators' letter)


In other "Clerkgate" news, Edward Lazarus (who, as Pozinski pointed out, wrote "Closed Chambers," the non-fiction book that lead to the current confidentiality agreement) has a column online today arguing that the Supreme Court is wrong in its "aggressive attempts to suppress investigation of its internal decision-making process."

Lazarus also confirms that, as NN's investigation revealed, most of the signatories who condemned the clerks' actions are "right-wingers."

Wednesday, September 29, 2004

No Biggie?

Chris at The Smoke Filled Room argues that it is possible the next president will not have that big of an impact on the Supreme Court's long-term future.

Based on the relative ages of active senators, Chris notes that Justice Stevens could try to outlast a second Bush administration. In that case, Bush would get to appoint at most two justices, and would be replacing two conservative-leaning seats in Rehnquist and O'Connor, so the overall ideaology wouldn't shift all that much. On this last point, I tend to disagree, since it is likely that Bush would appoint an O'Connor replacement with less of a tendency to vote with the liberal wing on certain issues.

If Kerry is elected, Chris argues, he would probably only get to replace Stevens, thus only trading one liberal for another, with the Chief and Sandy holding on a little longer (until the Guliani administration?).

All of this is simply a fun game to keep us all busy. We have no idea what will really happen. After all, any number of things can happen in four years. Thomas could retire to drive around the country in his r.v., Ginsburg could become a professional poker player, Souter could get mugged again, etc.

Only time will tell.

Throwing in the Towel

Since we have nothing better to do until a Supreme Court justice actually retires than speculate about possible replacements, I thought I'd mention one prominent circuit judge that has probably successfully removed herself from the running. Judge Edith Jones of the Fifth Circuit is widely mentioned as a potential nominee if Bush gets to appoint a justice (click some of the links in my prior post for what I mean).

At least until a couple weeks ago.

Jones wrote the opinion for a unanimous panel in McCorvey v. Hill, a case brought by the original plaintiff in Roe v. Wade, who has since had a change of heart and seeks to nullify the case. The court denied her requested relief. Jones then took the unusual step of concurring in her own opinion, writing an additional view advocating for the re-evaluation of Roe and everything for which it stands. Needless to say, it was quite odd, and garnered an awful lot of attention from the media and bloggers alike. In my opinion, it was a baffling move. And, as one current 5th Circuit clerk remarked to me last week, "No one knows what that had to do at all with the case."

Seeing as though abortion is the hottest of all hot-button judicial issues, and often cited as a "litmus test" for nominees, most judges with their sights set on the high court try to stay away from saying anything publicly about their views, let alone publishing an opinion railing against it. As the Greedy Clerks pointed out the day after the opinion was released, this may be the proverbial nail in Judge Jones' coffin (start here).

As Chris Geidner notes at the blog De Novo, this represents a marked diversion from Jones' attitude when she was being considered by Bush I for the seat that eventually went to David Souter. At that time, Judge Jones said that one of her goals as a judge was "not to grandstand from the bench. I like to write to the point and on the issue that is at hand."

Riiiiiiight. Think Luttig and Wilkinson put her up to it to get her out of their way?

Friends of the Five Friends of Bush

One of the perks of confirmation as a life-tenured federal judge is the ability to select America's top law graduates each year to work as law clerks in your chambers. You can trust your clerks, because ethical rules prevent them from discussing pending cases and require them to disclose any conflict of interest between them and a pending case. The Supreme Court (SCOTUS) not only requires clerks to remain silent about pending cases, but also explicitly requires clerks to sign a confidentiality agreement. This vow of silence bars them from ever talking about anything discussed during their time at the Court. Edward Lazarus, author of Closed Chambers (a detailed account of his time as a clerk to Justice Blackmun), and inspiration for the rule, calls this vow a "rule of secrecy surpassed only by the CIA."

Vanity Fair magazine recently wrote an expose on Bush v. Gore, where they interviewed several former Supreme Court law clerks. Broadly stated, the article's theme was that Bush v. Gore was about politics, not law. Former clerks of the "liberal justices" offered a behind-the-scenes look at the case to support VF's thesis. As the magazine acknowledged, these clerks provided unprecedented access to decision-making at the Court. The clerks' justification for spilling the beans? Since the Court did not follow what they believed to be the Court's proper role in adjudicating Bush v. Gore, the clerks don't have to abide by their gag order. The clerks felt that the Court didn't live up to its end of the bargain.

This caused an uproar. Miffed that former SCOTUS clerks broke their vow of silence, several former clerks rallied and signed a statement of outrage provided to Legal Times:

Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court. Personal disagreement with the substance of a decision of the Court (including the decision to grant a writ of certiorari) does not give any law clerk license to breach his or her duty of confidentiality or "justif[y] breaking an obligation [he or she would] otherwise honor." (emphasis added)
One would think that, in attempting to confirm their "differing views on the merits of [Bush v. Gore]," the statement's drafters would have amassed bipartisan support by soliciting ex-clerks from the chambers of both liberal and conservative justices. Additionally, this cross-ideology alliance would further show that Bush v. Gore is indeed about law, not politics.

Unfortunately, the opposite is true. Nomination Nation, inspired by A3G's investigative journalism, decided to track down all of the statement's signatories. We then matched each person with his or her justice or, if they are not ex-clerks, with his or her field or political connections.

The results were staggering. Of the 96 signatories (9 of which were never SCOTUS clerks), 65 of them clerked for one of the "five friends of Bush" -- the conservative majority in Bush v. Gore. 4 clerked for minority justices, and the rest of the ex-clerks' justices have retired or passed away, most if not all of which were conservatives (e.g. Chief Justice Burger, Justice White). Perhaps less surprising, the most common justice was Justice Kennedy, who coincidentally takes the hardest hits from the article.

Of those who were not ex-SCOTUS clerks, all are prominent conservatives. Among the signatories: former RNC General Counsel Jan Baran; Bush I Attorney General William Barr; Reagan and Bush I Attorney General Dick Thornburgh; Bush I White House Counsel C. Boyden Gray; Judge Kenneth Starr, who impeached President Clinton; former Solicitor General Ted Olson, who argued Bush v. Gore before the Court; and several high-ranking attorneys from the Office of Legal Counsel and Office of the Solicitor General in the Nixon, Reagan and Bush I administrations.

Not the most diverse group of viewpoints. So how did this list get assembled? One of the signatories, an ex-clerk of Clarence Thomas, tells Nomination Nation that (s)he received the statement from another ex-Thomas clerk and that it "just got passed around from one friend to the next." Either that, or someone has the Federalist Society mailing list saved in their Outlook Contacts.

The lady doth protest too much, methinks.



Senator Spectator collaborated on this report.


For a list of the Supreme Court clerks who were there when Bush v. Gore was decided, check out this post at the blog Underneath Their Robes.

For more on the Vanity Fair article, check out this post at Life, Law, Libido.

Do We Need More Judges?

The media, the politicians and, well, all of us here at NN tend to focus on current judicial vacancies when discussing who should and should not be appointed, confirmed, filibustered, etc. We talk about judicial emergencies like an entire circuit is on the verge of collapse. We talk about how failure to confirm a nominee may shut down the entire federal court system. But are we missing an even bigger problem? Outside of the (relatively) small number of open seats on the federal bench, is there a need for even more judges?

That was the topic of a hearing last summer of the House Judiciary Committee Subcommittee on the Courts, the Internet, and Intellectual Property. The hearing was convened to discuss the proposal of the Judicial Conference of the United States for the creation of 11 new Courts of Appeal judges, 46 new District Court judges, and to make permanent 5 temporary District Court judges (available here; see pp. 18-20). Among those testifying were Judge Dennis Jacobs (CA2), William O. Jenkins, Jr. from the GAO, law professor Arthur Hellman (Pitt), and Rep. Howard Berman (D-Cal. 28th).

Professor Hellman provided the most thorough and interesting testimony, in not only supporting the Conference's recommendation for creating new judgeships, but also criticizing the failure to push for the creation of even more. In particular, Hellman finds fault with the Fifth and Eleventh Circuits, who voluntarily agree to deal with their growing caseloads by funneling off cases deemed less meritorious to a summary or NOA (no oral argument) calendar for review. According to Hellman, the reliance on staff attorneys and clerks, and the resistance of new judgeships in these circuits, "runs the risk of compromising 'the appearance of legitimacy of the appellate process [and] the quality of appellate justice.'"

By way of numbers, CA5 and CA11 have much higher "adjusted filings" (statistical calculation of cases per judge based on a nationwide appellate baseline) than the other circuits -- indeed, almost twice as many as in the circuits identified by the Conference as requiring additional judgeships. If the recommendations regarding the other circuits were applied to these two circuits, Hellman explained, CA5 would need 28 judges, and CA11 would nearly double in size to 22.

But, alas, the Conference does not recommend an increase in judges unless a particular circuit requests one. And the judges on the Fifth and Eleventh just don't seem to want to grow. I recently had an opportunity to chat with several judges on the Fifth Circuit. While acknowledging that there was a lot of work to be done, they unanimously agreed that it was manageable, and that they didn't want the court to get any bigger. The bigger the court gets, one of the judges explained, the less consistency there would be in the law of the circuit, leading to the undesirable result of more en banc hearings. This view was echoed in the comments of Judge Tjoflat (CA11), reported by Professor Hellman in his testimony. Hellman refutes these concerns by changing the focus to the quality (or lack thereof) of the actual work produced by the circuits:

I have no doubt that the judges of the Fifth and Eleventh Circuits believe that they are giving adequate attention to the cases and have not compromised any of the essential functions of an appellate court. But I am not confident that judges can necessarily recognize when they have gone too far in relying on procedural shortcuts or when they have begun to delegate responsibilities that they should be undertaking themselves. For example: Do the judges too readily accept the drafts of precedential opinions prepared by their law clerks? Do panel members sign on to the authoring judge’s opinion without carefully scrutinizing the statements of law or the rationale? Do the second and third judges on a screening panel defer too much to the judge who initially reviewed the case? These are not lapses that occur overnight. Change is gradual and incremental, as judges imperceptibly find themselves adopting practices that they would have rejected when caseload pressures were less exigent.
Professor Hellman concludes his testimony with a (somewhat) radical proposal to change the process of how we decide whether new judgeships are needed. He says that the Conference should continue to ask the individual circuits if they feel that they need help, but that after the circuit responds, there should be an opportunity for dissenting judges, and the public, to comment on the recommendation before being adopted into the final report transmitted to Congress (in a process similar to administrative "notice and comment" rulemaking).

What do you think? Tell us your opinion in the comments section below this post.

For more on this interesting debate over how to deal with the increasing caseload of the federal judiciary, including anecdotes and views from different circuits, check out what the Greedy Clerks have to say starting with this post and continuing on from there.

(Thanks to GC contributor "JBT33" for the heads-up.)

Monday, September 27, 2004

Lack of Consent

To this point, we (and the media) have been focusing solely on the implications of the presidential election on the nomination of any future Supreme Court justices (or other federal judges). You know, of course, that a justice doesn't reach the high-back leather chairs of power without getting through the Senate first.

Chris at the blog The Smoke Filled Room has a post explaining what he believes to be the Republicans' best case scenario in the Senate elections this November, and how it may affect judicial confirmations. While I don't necessarily agree with some of his predictions, it's worth checking out.

Sunday, September 26, 2004

The Honorable Richard S. Arnold (1936-2004)

Eighth Circuit Judge Richard Arnold passed away Thursday evening after battling cancer for many years. A distinguished jurist, once mentioned as a possible Democratic Supreme Court nominee, Judge Arnold's loss will be felt by all who work for, follow, and admire the Federal Judiciary, including all of us here at NN.

For more: NY Times obituary; hometown newspaper article; AP obituary; an ex-clerk's tribute.

Judge Arnold took senior status in 2001, so his passing does not create a vacancy on the Eighth Circuit.

Potential Nominees, By the Numbers

Steve Dillard, a/k/a "Feddie" from the blog Southern Appeal, does some math regarding the age at which most Supreme Court justices retire. He concludes that the next president will appoint at least two justices based on his research and analysis, with Bush having the potential for a third.

Feddie previously offered his thoughts on potential nominees in this thorough post.

We also thank him for linking to our fledgling effort last week.

Oooh! Oooh! Pick me! Pick me!

As Borked pointed out below, the next president could have the opportunity to appoint at least three Justices to the Supreme Court. I'm not going to link to some of the countless articles and editorials saying the same thing over and over again (there are other sites for that). It is more fun, however, to speculate about who these new Justices would be.

To that end, you can check out a few sites where people have already begun preparing their short lists. This is all, of course, mere speculation (if you happen to have any inside info, please email me or my co-bloggers), but it is still something to do to pass the time until the Chief, Sandy, et al. decide to hang up the robe.

  • Next week's issue of Newsweek offers a short piece with all the predictable favorites (Hispanic conservatives, semi-moderate Clinton appointees, etc.).
  • The September/October issue of Legal Affairs has an illustrated survey of Supreme Court candidates based on their "stats," as evaluated by two law professors who took a "Moneyball"-style approach to evaluating judicial talent. Interesting, but ultimately not a likely indicator of who will get nominated.
  • Here's an old list of potential Bush nominees for the High Court. "Old" as in they don't link to anything past 2002, and because there are some on the list who ended their chances a long time ago.
  • More recently, back in April, Washingtonian magazine tried their hand at predicting what a Kerry and Bush Court would look like. They stick to the usual suspects (without realizing that Starr and Tribe have no shot), before completely going off the deep end with a mention of Justice (Hillary) Clinton towards the end.
  • For what it's worth, here's what Democratic Senators (and Judiciary Committee members) Schumer (NY) and Leahy (VT) think Bush should do if he gets to nominate a Justice. Oddly, Schumer suggests a colleague of his, Senator Specter (nice name) (R-PA). Should Specter win his bid for re-election (which it appears he will), he is in line to be Chairman of the Judiciary Committee, which means no matter what happens he will have a big part to play.
  • More speculation on possible Bush nominees from three political science professors. With charts!

In reality, Bush or Kerry could decide to pull a nominee completely out of left field. But, as most of these links show, there are some consensus picks on both sides of the aisle. Stay tuned, and if you don't like one or the other of these lists, go VOTE!

Friday, September 24, 2004

I can't believe this guy was Counsel to Prez

[Editor's Note: It appears that Dr. Grishka is referring to the column by John W. Dean referenced in Borked's post immediately below. Dean was White House Counsel to President Richard M. Nixon.]

Dean is getting demented. Just some of the errors in his post. First off, Reagan campaigned in 1980 and 84 not 82 and 86. Second, Roe was a 7-2 vote (White and Rehnquist dissented), not a 6-3.

Next, Kerry may not have talked much about his likely SCOTUS choices, but he has a 20 year voting history on Supreme Court nominees.

Yea-Breyer, Ginsburg, Scalia (no Nays were cast), Kennedy (no Nays); Nay-Souter (one of only 9 Nays), Thomas, Bork, Rehnquist (for CJ). The Kennedy-Scalia votes are not all that indicative because they were unanimous. The Souter-Rehnquist vote is more telling because he voted against promoting a highly qualified Justice to CJ, and against a very moderate judge whom he viewed as "too conservative."

Then of course, Dean goes on blabbing about 5 Justices selecting Bush. What nonsense. First of all, 7 justices agreed to reverse Florida's SC. Next, it continues to baffle me why a 5-4 (even if it was 5-4 and not 7-2) decision of SCOTUS is bad, while 4-3 SCOFLA (by an all-Democrat court) is good.

Look, being a political and a judicial junkie myself, I understand the importance of Presidential election to the development of the law. I also understand why partisans would want to spin facts their way. But please, before spinning anything, let's at least get the facts right.

Next President Likely To Appoint Three Justices

It's likely an understatement to note that the issue of judicial appointments has been an "under the radar" issue in this year's presidential campaign. As noted in this article from Findlaw's Writ, however, the next president is likely to appoint at least three Supreme Court justices.

Thursday, September 23, 2004

The nomination that almost never was

Well, almost the same thing can be said about Ken Starr. A brilliant lawyer with an impeccable resume, just a step away from SCOTUS. Yet, the controversy surrounding Clinton permanently doomed his chances. Very unfortunate. Then again, I am still waiting for the first Russian immigrant federal judge. :)

Will Judge Pickering accept another recess appointment?

It seems not, judging by recent comments he made to members of the Meridian [Mississippi] Rotary Club. Said the judge:

If the President wants to make an appointment in January, we would evaluate it at that time. I would not want to go back through what I've gone through before just for the sake of going through another fight. If there was some confirmation, certainly I would like to be confirmed.

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