Eminent Domain

I know I said that I was taking a hiatus. I am. I just need a break from studying Land Use, and making a post seems like a great way to shift my mind away from the Penn Central test (post-Lucas) for a little while.

In our last Business Associations class of the semester, we were treated to the musical stylings of Professor Hurt and her husband. It was a rousing good time. I tried to use the voice memo recorder on my cell phone to record the songs, but it didn't work. I would like to share the new lyrics of one of the songs with you.

Van Gorkum (sung to the tune of Cecilia by Paul Simon and Art Garfunkel)
Lyrics by Christine Hurt and Paul Stancil

Van Gorkum, you're breaking my heart
You're shaking my confidence daily
Oh, Delaware, please change your mind
It's not a crime to be lame

Van Gorkum, the case must be wrong
Directors just cannot be liable
I'm a director, and I'm in good faith
I've nothing at stake, I'm all that
I'm all that

Saturday in the afternoon, with Van Gorkum
Up in their boardroom
Some zoned out to outer space
When they came back down
Pritzker owned the whole place

Van Gorkum, you're breaking my heart
You're shaking my confidence daily
Business Judgment Rule, where have you gone?
I need you now, come on home
Come on home

Oh, oh Disney - the court loves me again?
I fall on the floor and I'm laughing
Oh, oh Disney - good faith wins again?
I fall on the floor and I'm laughing

These lyrics are in reference to the Van Gorkum and Disney cases concerning director liability. It's law humor, which means that 99% of the population doesn't think it's funny.

This reminds me a lot of an idea that I've had since my freshman year of college. Think about how many songs you know (meaning you know all of the lyrics). I don't know about the rest of you, but I know a hell of a lot of songs. What if you created a series of study aids that took course information and set it to music? There is something about the pairing of words and music that just sticks in your brain. I'm currently trying to write a song explaining the holding of the regulatory takings case Lucas v South Carolina Coastal Council, set to Shinedown's Save Me. I'm calling it Pay Me.

I will be taking a short break from blogging during exams. I just don't have the time to keep up with legal news and study at the same time. If something really interesting happens (like a great Supreme Court case), I'll probably write a post or two.

As I mentioned to yesterday, I am very pleased that Judge Michael Brennan threw out the plea agreement that the DA's office gave to four of the election tire slashers. Of course, this doesn't really amount to much, considering that they will be out for work release most of the day. Basically, they have to sleep downtown. Still, Judge Brennan showed a lot of guts by doing the right thing, especially considering the social unrest and anger with the courts around here lately.

The Pratts, classy as ever, decided to whine about the decision. From the Journal-Sentinel article...

"Isn't it funny - in the city of Milwaukee, you can beat a man half to death and get exonerated, and here you've got four men who committed a property crime"...

That quote goes on (the audio is here). "...at worst, and they get time in jail." So at worst, this is a property crime (cause those aren't serious at all...)? I think at worst, this is a civil rights violation and interfering with an election. It's nice of our former mayor to make that totally inapt comparison to the Jude case too. What's the line of reasoning here? The Jude trial came out poorly, therefore no one can ever be convicted of a crime again in Milwaukee? I'm not fan of Tom Barrett, but I'd rather have him as mayor instead of this clown.

Please do listen to that audio link, because you get to hear Mrs. Pratt out doing her old man as far as classless, disgusting comments go. "The judge had on his robe. He should've had on his hood." I wonder if anyone other than talk radio and the blogs are going to highlight that wonderful comment.

Spivak and Bice seem to think that this was in part a political move by Brennan to get Republican voters behind him. Judge Brennan has been considering a run for the Wisconsin Supreme Court. With Justice Wilcox retiring, Republicans will be eager to get another conservative judge elected to replace him. I think this is an unfair insinuation. Based on Judge Brennan's time on the bench, this decision seems very much in line with who he is as a judge. He's tough but fair, a real no-nonsense guy. I hope he does run for the WISC.

Judge Michael Brennan.

Lobbyists will not be able to make contributions to political campaigns because of a legislative maneuver by Republican legislators. This was never the intended result of the action, but a mistake by the Ethics Board has resulted in lobbyists being shut out of contributing...

The situation unfolded in part because of bad advice from the state Ethics Board, which told legislators last year that a parliamentary maneuver would not affect ethics rules. But after lawmakers acted, the Ethics Board reported that, in fact, legislators would be prohibited from soaking up lobbyist money.
...
Last year, in the midst of a fight over raising the state's minimum wage, Republican legislators extended the legislative calendar - which normally ends in the spring of election years - through December 2006, more than a month after the Nov. 7 election. As long as the Legislature remains in session, lawmakers can block administrative rules, including those that would set a new minimum wage; after the session, the Democratic governor can impose such rules without legislative oversight.

This move does block Doyle from raising the minimum wage, but it also keeps the legislature in session. Under Wis. Stat. 13.625(1)(c), lobbyists are allowed to make contributions during a window, usually from June 1 to election day. June 1 is usually when the legislature is finished with its floorperiod.

When the Republicans decided to extend the session, they asked the Ethics Board if this would affect the lobbying rules. That call fell to Jonathan Becker, legal counsel for the Ethics Board...

Becker said a lawmaker's staffer - he wouldn't say who - contacted him last year to ask whether the calendar change would have any implications on lawmakers under the state's ethics code. Becker wrongly told the staffer no.

"I just whiffed it," he said.

Haha. Well, at least he's not trying to make up excuses.

This does create an interesting issue though. The lobbyists could bring a claim that their Constitutional rights are being violated by shutting them entirely out of making political contributions. The courts have allowed certain restrictions to be made on the lobbyists (for example, the window), but totally shutting them out doesn't seem like it would jive with Buckley v Valeo. If a challenge comes, it will probably come sooner rather than later. The election is not that far off...

Today, the Supreme Court handed down two opinions. One, Northern Ins. Co. of N.Y. v Chatham County, was a unanimous decision written by Justice Thomas. The second, Day v McDonough, was a 5-4 decision. Check out this line up though. The five-vote majority opinion authored by Justice Ginsburg was joined by Chief Justice Roberts, Justice Kennedy, Justice Souter, and Justice Alito. The dissenters were Justice Stevens, Justice Scalia, Justice Thomas, and Justice Breyer. Stevens wrote a dissent, joined in part by Breyer. Scalia's dissent was joined by Thomas and Breyer.

The majority concluded that federal judges can correct a state's error and dismiss an inmate's appeal that misses a filing deadline. Okay, it's not the sexiest case in the world but still kind of interesting. People often look a the Justices as fitting into a neat conservative-liberal line up. That may be true on the high profile legal issues like the death penalty, abortion, and free speech, but the same doesn't go for more legalistic issues like the Habeus Rules.

It's one week before exams begin, and I'm a little on edge. Expect blogging to be fairly light and spotty in the next few days. Of course, I expect the Court to hand down a huge decision just to spite me. Eh, I'll deal with it. Anyway, exam season means a few things for me. First, my diet goes straight to hell. Second, I live in the library... more than usual.

To break up the day, I usually take a half hour or forty-five minute break to go read a book. That activity doesn't make much sense intuitively, considering I'm reading the entire time that I'm studying. But leisurely reading is actually a break for me.

Today, I found the book that I am going to read for the next week or two whenever I need a time out from the exciting world of zoning laws, arbitration, and general partnerships: Resurrection: The Confirmation of Clarence Thomas by former Senator John Danforth. Danforth was Thomas' main supporter, mentor, and cheerleader during the confirmation process. He was intimately involved in the entire mess and has a lot of insights on what happened. I'm not far into the book, but a familiar character has already popped up and I expect to read about him in greater detail throughout the book. That character is J. Michael Luttig, who is now a judge on the 4th Circuit Court of Appeals. Luttig did a lot of the actual prep work with Thomas. They had daily studying sessions to help prepare Thomas for the committee hearing. I'm beginning to see why Thomas and Luttig are such good friends.

So far, it's a great book. Danforth has a very readable writing style that is a welcome diversion from reading statutes and codes. I'm in no rush to finish it, especially since I have a long way to go until exams are done, but I'll give some closing thoughts after I finish it.

Judge McConnell takes on the recent Supreme Court decision in US v Booker. In that case, the Court declared that Sentencing Guideline system imposed by Congress unconstitutional. McConnell takes on three issues: What has been the effect of Booker on sentencing? Are the Booker decisions coherent as a matter of constitutional doctrine? Has Booker improved the sentencing process as a practical matter?

McConnell examines how the Justice Stevens and Breyer opinions should be read. He refers to one view as Booker maximalism...

[D]istrict courts are liberated to sentence criminal defendants in accordance with the judge's sense of individualized justice, with the Guidelines merely taken into "consideration" for what they are worth. In such a system, the Guidelines are like the Pirate Code in the movie Pirates of the Caribbean: more what you would call guidelines than actual rules.

These references might seem odd and kind of trivial, but I like them. For some reason, I can read an article about a legal topic that doesn't interest me if I have an extra-legal example to compare it to (even if it is a pretty limited comparison).

If you're really interested in Booker, sentencing, and all the rest of that fun stuff, check out the Sentencing Law and Policy blog run by Professor Douglas Berman. If you're really interested, read Booker itself. It only clocks in at 124 pages.

In my e-mail this morning...

On Saturday, a water main broke between Johnstone Hall and the Law School. It needs to be excavated and until it is repaired, there will be no air conditioning in the Law School or the Law Library. They anticipate that the repair will take about a week. We apologize for any inconvenience this may cause.

No AC in the law school the week before exams. Guess who will be studying elsewhere.

The RIAA litigation juggernaut rolls on...

A federal lawsuit filed this week in Rome by the Recording Industry Association of America alleges that Carma Walls, of 117 Morgan St., Rockmart, has infringed on copyrights for recorded music by sharing files over the Internet. The lawsuit seeks an injunction and requests unspecified monetary damages.

The lawsuit states, "“Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the copyrighted recordings, to distribute the copyrighted recordings to the public, and/or to make the copyrighted recordings available for distribution to others."”
...
"“I don't understand this,"” Walls said. "“How can they sue us when we don't even have a computer?"

Walls also noted that his family has only resided at their current address "“for less than a year."” He wondered if a prior tenant of the home had Internet access, then moved, leaving his family to be targeted instead.

Let's take a look at the apparent copyright violations...

[T]he RIAA'’s lawsuit maintains that Carma Walls, through the use of a file-sharing program, has infringed on the copyrights for the following songs: "“Who Will Save Your Soul," Jewel; "Far Behind," Candlebox; "Still the Same,"” Bob Seger; "I Won't Forget You,"” Poison; "“Open Arms," Journey; "Unpretty,"” TLC; No Scrubs,"” TLC; and "Saving All My Love for You,"” Whitney Houston.

Maybe the US Attorney will also file on bad taste charges.

I am a pretty strong supporter of property rights in general as well as intellectual property rights specifically. I do not participate in illegal file sharing for that reason. But this is just insane. If the RIAA has legitimate complaints against people, they are free to file the lawsuit. This situation shows that they might not be doing their homework before filing suit, though. Perhaps they should've investigated who actually lived at that address and for how long. They didn't and now this family has to hire a lawyer to fight this. Many members of the public already hate the RIAA's guts, and this is not helping.

Man to stand trial for rape after having sex with the wrong woman. This is a set of facts that sounds like it belongs in an American Pie movie.

Paul John Chappell, 31, was invited back to the editor's Bondi flat after they met during a night out.

The pair went to bed and Chappell later got up to use the bathroom.

But Chappell claims he mistakenly returned to the wrong bedroom, where the editor's 23-year-old flatmate was asleep.

He got into bed with the flatmate and initiated sex, allegedly believing she was the other woman.

The flatmate participated because she thought it was her own boyfriend who had come to bed after falling asleep in the loungeroom.

When she turned on the light, the "hysterical" woman saw Chappell in her bed and realised her boyfriend was still asleep on the couch.

Read the entire article though. It's really a hell of a situation. Here's an example of poor word choice...

"I was totally gutted that it was him and not (my boyfriend)," she said.

No further comment from me on that.

I'm reluctant to really comment much on this case for a few reasons. First, I'm not at all familiar with this Australian sexual intercourse without consent law. Second, I just don't think that this article contains enough facts to make any concrete conclusions.

I will say this though. Even if Chappell is telling the truth about his side of the story, he's still more to blame for the incident than the woman. He climbed into her bed and started having sex with her without verifying her identity. It's definitely a strange case, and I'm interested to see how it turns out in the end.

Tonight's episode of American and the Courts on C-SPAN included part of the panel of Solicitors General from the Federalist Society event in Milwaukee that honored the legacy of the Rehnquist Court. The excerpt on the show included the opening remarks from the three panelists (who were skillfully guided by moderator Dean Joseph Kearney of MULS). In addition to those remarks, the panelists discussed the Commerce Clause cases, the 11th Amendment cases, and briefly touched on executive power, specifically Morrison v Olsen. The website has the entire video available, not just the excerpt from tonight's show. It's an interesting discussion, but let me warn you in advance. These guys don't explain much. If you aren't familiar with the cases already, you might find things a little confusing.

In the past, I've made comments on here about certain judges being clerk farms. In particular, I believe I mentioned Judge J. Michael Luttig as being a feeder for clerks to Justice Scalia and Justice Thomas. Here is an interesting list of federal judges whose clerks have gone on to clerk on the Supreme Court. It's really amazing to just look at the numbers. There are a lot of judges who have sent up one or two clerks, not many that have sent up an intermediate number, and a handful who have sent up a large number. There are only seven members of the 20+ club...

Judge Calabresi - 20
Judge Tatel - 21
Judge Edwards - 22
Judge Wilkinson - 27
Judge Silberman - 30
Judge Kozinski - 34
Judge Luttig - 39

Luttig is the reigning champion of the clerk farming competition. The bulk of his clerks end up with either Scalia (14) or Thomas (16). That shouldn't be too surprising, considering how close in ideology Luttig is to those two. Also, Luttig clerked for Scalia and helped Thomas during his confirmation process. They're generally on the same page.

Kozinski is a favored feeder for Kennedy and had been for O'Connor. That's also not entirely surprising. Kozinski is not a traditional conservative judge. While I don't think he's the same as Kennedy and/or O'Connor, they all share the mark of occasionally being wild cards. Interestingly, Scalia has taken on four Kozinski clerks and Ginsburg has taken on three.

Another interesting aspect to this is that I can't see any of the four conservative judges on the list being nominated to the Supreme Court. One would think that a judge who produces fine clerks would be high on the list for the Court. Silberman and Wilkinson are both too old. That's just a timing issue that goes along with the whole Supreme Court vacancy process, though. There are many great judges that don't get a seat on the Court simply because there wasn't a vacancy while they were in their prime. Kozinski is too much of a wild card for any president to pick him. Luttig is the interesting one. He's young enough, and he's got a solid record. Apparently, he and President Bush don't get along very well. I've heard that Luttig's interview with the president didn't go well. I've heard that there is also something in the past that turned Bush against Luttig. He's likely to have a chance with the next Republican president, assuming it's not Jeb.

As far as the liberals go, Calabresi and Edwards are both too old. Tatel is also fairly old, but he's also blind. I could see some goofy president nominating Tatel just to claim that "first". But seriously, Tatel wouldn't be a bad pick for a Democrat president facing a Republican Senate. He's also interesting because he only became a judge in 1994. In that time, he's racked up impressive clerk feeder numbers. Luttig was confirmed in 1991, but the rest of the judges on the list are 80's appointees. I find this all intriguing as hell, but I'm an Article III geek.

What do Supreme Court Justices do when they aren't hearing cases, writing opinions, or just sitting around massaging their powerful brains? They go to high powered Washington DC dinners with heads of state.Justice Anthony Kennedy is seen here greeting Chinese President Hu Jintao. I'm not sure if Kennedy told Hu that his "days were numbered", but I doubt it. He certainly should have, though.

Though I have my doubts that he will read this or it will get back to him, I'd like to wish Justice John Paul Stevens a happy 86th birthday today. Justice Stevens has had a long and illustrious career as an attorney. He then served on the Seventh Circuit Court of Appeals for five years and has been sitting on the Supreme Court since December 1975. There's not much else in a career that a lawyer could want. Why not retire?

I came across something interesting while browsing the comments on Confirm Them recently. Since a handful of trustworthy sources have said that Justice John Paul Stevens plans to retire at the end of this term, there has been a lot of talk about who the next nominee will be. Apparently, the White House is discussing names. The interesting thing is that a lot of the potential nominees have nicknames (though that is not uncommon in the federal judiciary). Here are a few of them that people in the know have leaked to us judicial geeks...

"Belle" - Judge Karen Williams (4th Circuit Appeals Court) - That is supposedly in reference to the character from Beauty and the Beast, not the fact that Judge Williams is Southern.

"Sharpshooter" - Judge Diane Sykes (7th Circuit Appeals Court) - I'm not sure the origins of this one, but it sounds cool.

"The Queen of the Night" - Judge Edith Jones (5th Circuit Appeals Court) - This is a reference to Mozart's The Magic Flute, not vampirism.

"Dancing Queen" - Judge Consuelo Callahan (9th Circuit Appeals Court) - I have no clue about this one.

"Professor Snarky II" - Judge Michael McConnell (10th Circuit Appeals Court) - Justice Scalia is Professor Snarky I. McConnell has spent over 15 years teaching law and writing extensively on legal issues.

"Ebenezer Scrooge" - Judge Frank Easterbrook (7th Circuit Appeals Court) - Judge Easterbrook is not known for being the most cuddly of people.

"Little Bork" - Miguel Estrada (Former Assistant Solicitor General) - Apparently, this nickname (in reference to Judge Robert Bork) was given to Estrada while he worked in the SG's office.

Based on the current political climate and the fact that I've picked her erroneously every time before (I'm playing the odds...), I think that "Belle" is the next one up for one of the nine chairs. But we'll have to wait and see.

The Supreme Court ordered reargument in Hudson v Michigan, a case about whether evidence should be excluded if the police fail to knock and announce themselves before executing a search warrant. This case was originally argued in early January, when Justice O'Connor was still on the Court. Since she left the Court before any decision came down, her vote does not count. That left the judgment to the eight remaining Justices who heard the argument. Apparently, they couldn't come to a suitable outcome (meaning that it's 4-4 right now). SCOTUS has the following information...

No date has been set for the re-argument, but the preliminary indication is that it would come during the current Term, rather than be carried over to the new Term opening in October. A tentative date is Thursday, May 11 - two weeks after the Court's currently planned conclusion of oral argument on April 26.

If that's true, that's a very interesting development. First, this probably means that Justice Alito's vote gets to decide the case. Second, I can't help but wonder why they would extend oral argument for 2 weeks to hear this case. Why not just hold it over until next October? It's not like that hasn't happened before in the past. Maybe a certain retiring Justice wants to have his say in this case, even if it is in a dissent. It's idle speculation, but it's a possibility.

The Supreme Court heard argument Tuesday in United States v. Gonzalez-Lopez, a case concerning the Sixth Amendment right to counsel. Linda Greenhouse has a round up of the case and the oral arguments in this article. Since it is in the NYT and I expect a lot of people to get their impressions of the case from this article, I'd just like to explain something about it. It has nothing to do with the merits of the case, just something said during the arguments. Greenhouse offers this quote at the end...

"I don't want a 'competent' lawyer," Justice Scalia told Mr. Dreeben. "I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

What is the Twinkie defense? I thought you might be wondering that. Well it involves the case of Dan White, a former San Francisco politician who had recently resigned from office. He shot and killed two men in San Francisco's city hall, one of the men being the mayor. According to the story, White's team of lawyers argued that White's eating of Twinkies and other sugar-heavy food had diminished his mental capacity. He was found not guilty of murder by the jury (but he was convicted of voluntary manslaughter, a lesser charge). That's how the story goes.

This isn't exactly true, though. One of the doctors who testified said that White was depressed and that his crappy diet was a sign of that depression. The media, being the lazy and sloppy folks that they often are, decided to remove that important step in the story. They just went with the snappy line that "the Twinkies made him do it". The media made it look like the Twinkies were the cause, when that was not what the lawyers argued at all. This is one of my favorite legal urban legends, so I just thought I'd clear things up.

I'm not a fan of a large federal government or the bloated agencies that go along with it. But sometimes, they win me over. Today, I salute the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS). Their website is just plain cool. The graphics have totally made me a supporter of... whatever the hell it is that they do.I'm getting a t-shirt made with this on it. Apparently, the bird flu will cause roosters to grow to massive size and use telephones.

In other totally non-law related news, I saw a skunk running around near Wisconsin and Water tonight. He had no idea where the hell he was.

I found this cool website thanks to a post on BBA. Click on the Community Mapping link on the left. It gives you a map of Milwaukee and a list of "layers". The most interesting ones to me are the crimes. Simply by clicking on them and zooming in on the map, I can see all of the reported criminal activity that happened in my neighborhood this year. Nothing too interesting to report in my general vicinity, just a few aggravated assaults, locked vehicle entries, and a burglary. Play around with it.

USA Today, newspaper of pretty pie charts and maps, has a pretty interesting map today about what abortion laws would look like in the US if the Supreme Court overturned Roe v Wade. They conclude that 22 states are likely to restrict abortion access significantly, affecting 49.6% of the population.

Since South Dakota passed a sweeping law to ban almost all abortions, focus in the abortion debate has shifted to the states. The states, after all, would be the battleground for future restrictions or protections if Roe would be overturned. Some states have already acted...

For instance, four states have passed "trigger" bans on abortion that would go into effect immediately if Roe were reversed. Six other states have passed laws that would automatically protect access to abortion. Three states have enacted all 11 of the current restrictions on abortion tracked by the non-profit Alan Guttmacher Institute, from requiring waiting periods to limiting abortion coverage in insurance plans. One state, Vermont, hasn't passed any restriction.

Parts of the map are a little confusing. For instance, the article has the following to say about Wisconsin...

There are some factors that this analysis doesn't take into account.

Among the states ranked as likely to enact new restrictions, Michigan and Wisconsin now have governors who support abortion rights and presumably would veto a ban if they were still in office.

But if you look at the map, Wisconsin is colored as one of the states that is likely to significantly restrict abortion access. The problem is that there are many factors to look at in this analysis, and this map is a little too simplistic. The article itself mentions one: Doyle. Expect this to be a top talking point in the election this fall. Another factor to look at is the Republican controlled legislature. Surely this would increase the likelihood of restrictions. That's doubtful if Doyle is governor, though. As it is currently, the legislature can't override his veto. Another factor to look at is how public opinion would change in a post-Roe world. That may significantly affect how people vote.

The article does its best to clear up the ambiguity and broad-brush approach of the map. But the problem with a map like this is that it doesn't look at the intricacies of state politics and more importantly, how the political climate of the country would change if Roe were overturned. That's a variable that is impossible to take account before it actually happens.

It seems like everyone is talking about Justice John Paul Stevens lately. I'm not the only one who thinks that the bow-tied one will be riding off into the Florida sunset at the end of this term. This Scripps Howard article discusses the possibility of a Stevens retirement this summer. The introduction is my favorite part...

As Justice John Paul Stevens turns 86 this week (Thursday, April 20), he is the latest jurist-to-watch in what has become, during President Bush's second term, a vulturine pastime for ideological activists: predicting the next vacancy on the Supreme Court.

Haha, I love it. Let me make something clear. There is nothing "vulturine" about what I'm doing. I do not wish death on any Supreme Court Justice. I just want a speedy retirement of the liberal wing of the Court. They are then free to hit the lecture circuit, write books, teach a law school course, or just hang out in Boca. In fact, I wish them long and fulfilling retirements.

The article is a pretty nice examination of us vultures though. Here's my favorite reptile Ralph Neas...

"I am prayerful that he will not retire," said Ralph Neas, president of liberal advocacy group People for the American Way, which fought the nominations of Roberts and Alito. More than 100 precedents could be overturned, affecting privacy, equal opportunity, religious liberty, environmental safeguards, checks and balances regarding presidential powers. It probably would firmly ensconce the right wing in control of the court for perhaps for 25 or 30 years."

I can just imagine Neas kneeling at his bed side, wearing those footy pajamas, praying with all his heart that the four liberals and Justice Kennedy hang on until 2008. He's probably also praying that the Democrats don't royally screw up the presidential election or else his cause is lost.

Here's a conservative that I've never heard of...

Manuel Miranda, founder of the Third Branch Conference, which campaigns for conservative judicial nominees, said he greatly admires Stevens as a legal mind. "But as a conservative activist or strategist, I think, 'This is what we're fighting for, we're fighting to shift the country to a more conservative alignment.'

That's the issue. This is vote number five. If Stevens retires and Bush doesn't royally Souter-up this nomination, there will be a solid five vote conservative majority. It's also a fairly young majority. Chief Justice Roberts is 51, Justice Alito is 56, and Justice Thomas is 57. Justice Scalia is the old man of the group at 70. But if he has a majority and those dissents of his now become majority opinions, I guarantee that's enough to get him to live to see 100.

The rest of the article discusses Justice Stevens, his history, and his jurisprudence. It closes with a prediction on the possible confirmation fight...

If President Bush and the Republican-led Senate could get a more conservative nominee confirmed in Stevens' place, Harrison chuckled, "I might like the results better." But Harrison said that's a big "if," given the president's low ratings with voters now and the shakiness of some Republican seats in the Senate in this election year.

"The state of the Republicans is not very good at the moment," Harrison said. "The sad likelihood is, if there were a vacancy between now and the convocation of the 110th Congress in January (2007), the likelihood of the individual being confirmed would not be so good."

I don't agree with Harrison on this. If the right nominee is picked, he/she will get confirmed, regardless of the president's approval ratings. Look at the public's numbers on Alito. Even with the demonization campaign mounted by many on the Left, the public was still soundly behind confirmation. The only thing that could stop a nominee is something glaringly bad in their past (real ethics problems, fire-and-brimstone legal speeches, explicit calls to overturn Roe).

In fact, the right nominee could unite the Republican party, give them something to fight for, and help them pull their collective heads out of their collective butts. I'm not a fan of the current crop of Republicans in Washington DC. They deserve every low approval rating number that they've got. They need to get their heads straight and start acting like the Contract with America wasn't just something that Gingrich scribbled onto a cocktail napkin one night. A confirmation fight, and this would be a real confirmation fight, might be do them some good.

The Supreme Court has decided to hear Carey v. Musladin, better known as the button case. Mathew Musladin was convicted of murdering Tom Struder, the new fiance of Musladin's estranged wife. At the trial, Struder's family wore buttons with pictures of Struder's face. Frequent Eminent Domain punching bag Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote the opinion throwing out Musladin's conviction and life sentence, saying that the buttons might have swayed the jury.

The Court will take this case up in the fall. I have a very limited knowledge of Criminal Procedure (because Crim law is the last field in the world that I want to do) but here's what I think about this. At issue appear to be statutory limits on habeas corpus. The petitioner would have to show that the state courts have not followed US Supreme Court precedent. Here, Reinhardt's opinion (Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005)) doesn't say that (unless I'm totally missing something). He's looking at the Ninth Circuit's decision and how the California Court of Appeals got the case wrong in respect. The statute says look at the Court, it doesn't look like Reinhardt did, but the Court hasn't said anything on this subject anyway. What's an appeals court judge to do?

Today is Eminent Domain's first birthday. I can't believe that I've been doing this for a year...

I honor of this occasion, here is a link to an entertaining law review article. Here's the abstract...

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo word. The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community. Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.

Law can be fun too.

While doing my bi-weekly cruise through the other Marquette student blogs, I came across this interesting post by Matthew Lowerr of Agrestic. Matthew takes a look at how the punk scene has changed in the run up to the 2004 election and since then...

As a republican/libertarian there is a certain amount of crap you have to accept as a fan of punk music. I along with the majority of my friends in high school accepted that fact and for the most part it wasn't an issue. Starting in 2003 as part of the run-up to the 2004 elections that all changed. Suddenly the "“tolerance"” was gone from the scene, and the rhetoric was stepped up a notch or two.

I'm in the same boat as Matthew on this. I'm a punk fan who has all but turned my back on "the scene" in the past few years. I've never been a fan of Anti-Flag or NOFX, who I consider the two most prominent anti-Bush bands of the past election season. I listen mostly to the Ramones, the Misfits, the Buzzcocks, the Germs, lots of "the" bands. The most overtly political punk bands that I like are Bad Religion and The Clash. I like the music. I'm not buying the CD or going to the show to get a political speech.

Matthew is right about how the election really brought things to the surface in the punk scene. The election took the bands who were already political and heightened their activism. That activism spawned the PunkVoter website and the ubiquitous PunkVoter booth to get people signed up to vote and get them "educated". The educating materials weren't exactly what I would call fair. Shocking, I know. I honestly don't care if a kid signs up to vote at a booth like this, looks at the candidates, and chooses Kerry. I just get pissed off when the kid who signs up at that booth votes for Kerry because NOFX told him to do it. From talking to some of these kids, I know that is the case. Just saying "Bush sucks" is not an intelligent argument to back up your vote.

In his post, Matthew also talks about his experience at an Anti-Flag show after the election. The anger and rhetoric was at an all time high...

That night, at George Webb'’s, I vividly remember the three of us talking about this drastic change in the scene and wondering if we had just been blind to it for years. We didn't think so -– and I still don'’t think so -– but I know it was that night when my blind love of Punk music died.

In response to the comment about the drastic change in the scene, I think that it's a pretty nuanced issue. It depends on what the scene is to you. To me, part of the scene has always been very collectivist and absolutist.

I spent many weekends in my high school years at punk shows in Riverwest that were held in basements, garages, and other crappy venues. That was the Milwaukee scene to me. I gave up on it, but it wasn't for political reasons. It was because so many of the people involved were just as elitist and snobby as the people they hated so much. They ragged on preppy kids who shopped at The Gap and all looked alike. They also had no problem telling me that I didn't dress "punk enough". It was so much about image and conformity. That conformity spread into politics in a big way during the election. It's a shame too. So many punk fans consider themselves open minded and tolerant. A lot of them are anything but.

For the foreseeable future, I won't be going to any shows. That doesn't bother me much though. I'll just sit at home and listen to The Bronx "Kill My Friends" on iTunes. I like to feed the capitalist machine, one 99 cent download at a time.

As linked on How Appealing, Judge Diarmuid O'Scannlain of the Ninth Circuit Court of Appeals recently gave this speech about why the Ninth Circuit should be split. Judge O'Scannlain is something of a rebel on the Ninth for holding this view. Many of his fellow judges on both sides of the political spectrum, from Judge Stephen Reinhardt to Judge Alex Kozinski, have been against splitting the Ninth.

I have written about this issue in the past, looking at Judge Frank Easterbrook's views of the Ninth as well as Senator Murkowski's bill to split the circuit.
As you can see from the map, the Ninth Circuit is huge. Judge O'Scannlain points out that it covers nearly 40% of the land mass of the US. It also serves approximately 60 million Americans. It's staggeringly large. I think that it is just a matter of time before a split happens and a 12th Circuit is created. However, I don't think anything will happen until a majority of the judges on the appeals court join with Judge O'Scannlain's views.

I'm shocked.

Late in their third day of deliberations, an all white jury found three former Milwaukee Police officers not guilty of beating Frank Jude Jr. at a 2004 Bay View house party.

It's going to be an interesting time in Milwaukee in the forseeable future.

Until any rioting starts, I'm going back to work on my Business Associations outline.

In case you're interested, here is the video from Justice Antonin Scalia's speech in Switzerland. This was the speech with the somewhat controversial question and answer session where Scalia discussed enemy combatants before the Hamdan case was argued. Scalia is in top form during the Q&A session. He especially takes it to a questioner who goes on an extended attack on the US. Scalia cuts him off at one point and asks if this is a question or a diatribe. Scalia needs his own TV show.

I'm usually not one to trade in rumors, but I have it on good authority that Justice John Paul Stevens will be retiring from the Supreme Court at the end of this term. I also have it on good authority that the White House is aware of this. I guess it may be time for me to be shocked.

Of course, this might be totally wrong, or Justice Stevens may change his mind (as Supreme Court Justices are prone to do), but I trust this information right now. Now that I've said that, I'm sure Stevens will stay on the Court and make me look like an idiot. Do your worst, bow tie.

I love titles with dual meanings. It's strange how things work out sometimes. I am usually pretty good about keeping Eminent Domain updated and fresh, but I have been lagging lately. There hasn't been much legal news that I want to talk about in the past week. There haven't been any Supreme Court decisions handed down in quite a while. Even the appeals courts haven't produced anything that has caught my eye. Aside from the lack of fresh material, I haven't had a lot of time to go digging for more obscure material. I'm in the middle of the mad application rush for the summer. I've been churning out cover letters like some kind of cover letter churning machine. Compound that with the ever looming Sword of Damocles that is the exam season, and the result is a crappy time to be me.

It's especially frustrating because I just got linked on Confirm Them (a big thank you to the Confirm Them folks). I haven't been linked on many "big" websites, just Point of Law for ridiculing Laurence Tribe, Slashdot during the dental school blogger fiasco, and Project D.U (presented by AT&T!) for a partial birth abortion post. One would think that with the possible increased readership from winning a place on the fairly illustrious Confirm Them blogroll would get me posting like crazy with my A list material. Yes, one would think that.

Now on to some actual substance. Speaking of Confirm Them, they have an interesting post about recent remarks made by Justice Ruth Bader Ginsburg. The CT post examines her slamming of originalism, but I want to focus on something else that she said...

[A] threat that can't “"be ... easily discounted," she continued, is in the confirmation process for judicial nominees, which Ginsburg likened to a "“political hazing." The process, she said, risks politicizing the judiciary, so that decisions are rendered along party lines.

In earlier remarks to a media law class at the NU College of Journalism and Mass Communications, Ginsburg recalled a conversation with Warren Burger, former Supreme Court chief justice. Burger told Ginsburg his confirmation hearing took one hour. Hers lasted four days, she told the students.

Can we even wrap our brains around that idea these days? I know I can't. The first Supreme Court confirmation hearing that I have any personal memory of is the Clarence Thomas hearing. I would love to be able to blame the length of the Thomas hearings on the fact Joe Biden was committee chairman, but there were other circumstances involved. With the Burger situation, he was a Nixon appointee replacing the beloved-by-some, reviled-by-others Earl Warren. Yet the entire hearing took only one hour. In today's political climate (and depending on the committee chairman), that hearing would probably last well over a week.

I think that these hearings got out of hand after the Robert Bork nomination. They became political platforms for preening senators and wannabe presidents. Justice Ginsburg is right; they have become a political hazing. It's that kind of hazing that keeps highly qualified individuals from serving in the judiciary. They don't want to put themselves and their families through it.

I think that the hearings should be limited. Especially in modern times, any damning information about a nominee will not come to light in the hearings. It will be found by a journalist, a blogger, a staffer, or an interest group. The hearings don't bring those incidents to light; investigative work BEFORE the hearings brings those incidents to light.

I'm not saying that we have to go back to the days of Justice Byron White's nomination by President Kennedy (White's hearing was 15 minutes long and consisted of 8 questions), but the current process is excessive. The hearings are simply an opportunity for senators to ask stupid questions that they don't understand, score political points with their base, and waste the nominee's time. Let the FBI do the background check, the senators can have their meetings, and the interest groups can do their research. Then have the shorter hearing. Small changes in the process will do a lot to prevent good nominees from declining to serve.

I came across an interesting factoid while browsing this weekend's posts on Confirm Them...

Of the 101 former justices of the U.S. Supreme Court, 50 left office "feet first"” whereas 51 left office by retiring or resigning or assuming senior status.

Wow, I had no idea that half of all the Supreme Court Justices have died in office. I guess if you have a job that cushy you're not going to want to leave it. The law-related bar bet trivia gems continue...

Of those 51 who left office voluntarily, the party of the appointing president was the same as the party of the replacing president in 34 instances, and the party was different in the remaining 17 instances.

That assumes that you count Democratic-Republican appointments as Democratic and you count Whig appointments as Republican. I'm not sure if that is entirely fair, but that's another debate for another time.

These fun Supreme Court facts didn't just appear on Confirm Them for no particular reason. They are keeping the hope alive that Justice Stevens will retire at the end of this term or the next. He was a Republican appointee and we do have a Republican president. I would be shocked if there was a retirement at the end of this term. Everyone on the Court seems healthy and happy. I stand by my prediction that there will be one more retirement before the 2008 election, though. It probably just won't happen soon.

Chief Justice John Roberts got a standing ovation after President Bush acknowledged him at the National Prayer Breakfast last Friday. I think that's Bench Memos' Ed Whelan right behind the Chief Justice. I'm sure the camera caught him right before he stood up. Whelan's a fan; he wouldn't disrespect Roberts.

There's not really much more to this post. I just thought it was a cool picture.

EDIT: I was right.

Professor Bainbridge recently had a post with his own book recommendations related to his chosen field: corporate law.

Several of my corporate law students have asked for recommendations of books dealing with big corporate law litigation or deals. The idea is to put into context some of what we've been learning in class.

One of the problems that I have with law school is that there isn't enough of this context material. I don't blame the professors, though. They have a limited amount of time to teach us a huge amount of information. Taking a class period or two to do something as simple as a case study is a risk. The professor may be giving the class an excellent, real world example, but he or she also loses a class period where another substantive area could be covered.

I have only read one of the books that Professor Bainbridge recommends: DisneyWar. It is a great introduction to how a corporation works, the role of a board of directors, the roles of officers, and the roles of shareholders. It's a big book (over 600 pages) but it reads exceptionally fast. It also takes a somewhat dry topic like corporate law and frame it as a dramatic story. Once this semester is over, I plan on re-reading it. After taking Business Associations, I should be in a position to appreciate the corporate law aspects even more.

There has been a bit of nervousness and a few worried discussion about MULS dropping out of the top 100 in the US News and World Report law school rankings. I've never put much stock in the rankings to begin with, so I'm not feverishly trying to transfer or anything. Via the ELS blog, Marquette Law Professor J. Gordon Hylton has used the same data to rework the list in this, "The US News and World Report Rankings Without the Clutter." Professor Hylton thinks that many of the categories used by US News are ambiguous and unhelpful when trying to determine the quality of a law school.

Grade point average depends on undergraduate institution and major; assessment by lawyers and judges is usually just blind guessing; acceptance rates are a function of the applicant pool and subject to manipulation; employment statistics are affected by local and regional market conditions; and bar passage rates are a function of how rigorously the exam is graded and the composition of the pool of bar takers.

The revised list makes the best use of the available data, but even the helpful data like the peer assessment could be improved upon.

I will never understand the reliance on the US News list anyway. Once you get beyond the top schools, there is very little difference in the overall quality. The differences are in the distinct programs and areas of specialization that the schools have. The updated composite scores in Professor Hylton's list show that there is quite a plateau once you get to the second quartile.

As an aside, Professor Hylton also knows more about baseball history than any other human being on the planet. The guy is a walking almanac.

I found this wonderful video clip linked on Conglomerate. It's got everything: yelling, swearing, threats of violence, disparaging remarks about a man's mother, Southern accents, the whole nine yards. Keep in mind that depositions usually don't go like this.

This beer is one of my favorite microbrews to get while out at a good bar. The Amber Ale has a great coppery, brown color. It looks a lot like a Newcastle Brown Ale. It has a nice malty aroma that has a traditional "beer" smell. Unlike most macrobrews and many basic micros, you know that this beer has some character and some kick to it just from the aroma. The flavor is fairly malty. There is a blend of fairly traditional Munich malts and caramel malts that make the flavor of this beer exceptionally good. It has a rich, heavy mouth flavor, but manages to keep a certain sweetness because of the American hops. Bell's is an excellent Michigan microbrewery. They have a ton of varieties available throughout the year that you should try. The Amber Ale is similar to a British or Irish ale. It's filling and packs enough of a punch to make you notice it.

Sorry for the scant posting lately. I've been incredibly busy with school and my personal life. Also, there hasn't been a Supreme Court opinion handed down in a while. I can only write about what they give me.

The Wall Street Journal has an editorial about Justice Anthony Kennedy. As the new swing vote on the Court, expect more articles written about Kennedy. I don't know if he will get the amount of fame (or infamy) that Justice O'Connor got from her time as the swing vote, but we'll see. The WSJ highlights some of Kennedy's swinging tendencies...

While nominated as a conservative by Ronald Reagan, Justice Kennedy has proven on the High Court that he is open for intellectual rent: from his flip-flop on church-state relations in Lee v. Weisman in 1992, to his anti-abortion nods during his confirmation only to turn into a reliable vote for Roe v. Wade, to his recent embrace of foreign law to justify his own legal preferences, and so on.

The editors are a little kind to Kennedy on the abortion issue here. He didn't only come across as an anti-abortion Justice in his confirmation hearings, he voted that way... for a while. He was on board with then-Chief Justice Rehnquist's draft opinion in Webster v. Reproductive Health Services that would've changed the Constitutional standard of Roe v Wade. He switched positions in Planned Parenthood v Casey, when (based on past votes) it looked like there were five votes to overturn Roe.

The editorial quotes Judge Silberman's famous Greenhouse Effect and the media's influence on the voting patterns of some of the Justices.

If the Justice typically joined with conservatives, however, he'd soon find himself characterized as somebody else's clone, or not very bright, or a traitor to his race, or some other derogation.
...
Judge Silberman's point is that such media hazing has a larger impact on some Justices than is widely believed, especially given the desire many of them have to be revered and to fit into Washington's social whirl.

Would this really happen? Would a Supreme Court Justice vote to please the media? Well, Mark Tushnet discusses that in A Court Divided...

Kennedy's concern for his public persona is suggested by the views of a former Kennedy law clerk, recounted by Rosen: Kennedy "would constantly refer to how it's going to be perceived, how the papers are going to do it, how it's going to look."
p. 176

I find that very troublesome. The whole idea of lifetime tenure for federal judges is based on a desire to insulate them from public pressure and shifting public opinion. Justice Kennedy seems too preoccupied with what people think of himself and the Court. He enjoys the Washington DC embassy party circuit a little too much. Ronald Reagan once described judges as needing "the lonely courage of a patriot". Kennedy should remember the words of the man who nominated him and stop worrying what the newspapers say about him.

This is just weird...

British anti-terrorism detectives escorted a man from a plane after a taxi driver had earlier become suspicious when he started singing along to a track by punk band The Clash, police said on Wednesday.
...
The taxi driver had become worried on the way to the airport because Mann had been singing along to The Clash's 1979 anthem "London Calling," which features the lyrics "Now war is declared -- and battle come down" while other lines warn of a "meltdown expected".

Mann told newspapers the taxi had been fitted with a music system which allowed him to plug in his MP3 player and he had been playing The Clash, Procol Harum, Led Zeppelin and the Beatles to the driver.

Maybe the taxi driver isn't a punk fan? Oddly enough, the random function on my MP3 player picked "London Calling" for me this morning.
Jim Robbins of The Corner reminds us of what the late Joe Strummer of The Clash had to say after 9/11...

I think you have to grow up and realize that we're facing religious fanatics who would kill everyone in the world who doesn't do what they say. The more time you give them the more bombs they'll get.

Interesting quote, especially from Strummer.

Today, Justices Anthony Kennedy and Clarence Thomas testified before the Subcommittee on Transportation, Treasury, Housing and Urban Development, The Judiciary, District of Columbia (that's a long name) of the Committee on Appropriations. The Justices appear before Congress to discuss the budgetary needs of the Supreme Court for the coming year. C-SPAN carried the hearing live, and you can watch the replay here.

It's not the most thrilling thing to watch, but it's a chance to actually get to see two of the Justices speak on camera. There is a question from the chairman about televising the Court cases. Not surprisingly, both of the Justices are not in favor of it. Justice Thomas is very concerned about security issues, and Justice Kennedy is concerned about separation of powers issues.

Go vote, because I'm not going to. This is the first time that I won't be voting. I'm going to be at school all day, so I can't get to my local polling place while it is open. The only thing on the ballot for me is a judgeship, and I honestly don't want to vote for either candidate. So it all works out in the end.

Law Professor Orin Kerr has his own analysis of Dahlia Lithwick's article on the language issues that the Democrats have with judicial nominees. Kerr thinks that Lithwick is off base by assuming that the public cares about grand things like legal theories. They're really looking for something much simpler than that from their judges...

My sense is that the public debate tends to be about the law/politics distinction. My guess is that if you ask nonlawyers what they want in a Supreme Court Justice, most will say that they want a Supreme Court Justice who follows the law rather than plays politics. Both Roberts and Alito delivered on that wish. Both emphasized that they would follow the law rather than try to reach any particular result. It's the animating idea of Roberts'’ umpire analogy, as well as Alito'’s frequent statements that he believes in the rule of law.

I think he may be right. It's fun to debate the nature of originalism or the merits of a living Constitution, but those are big discussions. Those are debates that legal scholars have in law review articles for years and years (and never get settled). It's likely that most people just want a Justice who is going to follow the law and keep politics out of their decisions as much as possible.

One of the biggest weapons used against Robert Bork was his view that a Supreme Court appointment would be a wonderful intellectual opportunity (or something like that). If I didn't know what Bork really meant, a statement like that would make me nervous. That sounds like a law professor who is itching to get on the Court to monkey around with the Constitution. While that not might be an example that is overtly "political" as stated in Kerr's post, it sounds like it goes beyond the Roberts/Alito rule of law idea. It sounds like it goes beyond the narrow role of judges. In my opinion, Bork's record from the DC Circuit showed that he wasn't likely to do that. The statement was just part of bad committee hearing prep. I still think that is the type of concern people have: judges will be political animals, driven by policy and legal theory goals, and will forget the true, limited nature of their jobs.

I spend many hours each day reading law and law-related materials. When I'm outside of school and reading just for leisure, I don't read a lot of law books. The law books that I do read for pleasure are generally about the Supreme Court and Constitutional law. Sure, I'll occasionally read something about legal theory, like Richard Epstein's Takings book, but that is rare. Here are three of my favorite books about the Supreme Court.


The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong. This is the book that got me interested in the internal politics of the Supreme Court. It covers the first seven terms of the Burger Court. The Burger Court was in many ways a transitional court between the liberal Warren Court and the more conservative Rehnquist Court. Because of this, there are many strange decisions from the Court during this period. The accounts of the backroom dealings and politics among the Justices, the almost universal contempt for Chief Justice Burger, and the personalities of the Justices are all incredibly interesting. The newest edition has a different cover, but I'll always prefer the one on my first edition hardcover: old men in 1970's era suits. Snazzy.



A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet. I read this book earlier in the year for my American Constitutional History course. This is probably the most current book about the Supreme Court. Tushnet, a law professor, examines the important cases of the past 15 years and looks at the ideological differences among the Justices. His view is that the real split on the Rehnquist Court is not between conservatives and liberals, but between old school conservatives and Reagan-era ideological conservatives. The liberals only have five votes when those two conservative groups disagree on an issue. It's an interesting and readable book. Tushnet's biases aren't very hidden. He's no fan of Justice Scalia but heaps praise on Justice Thomas. One of Tushnet's major criticisms of Scalia is that his poison pen style of writing has alienated his colleagues, making it harder for Scalia to form majority coalitions.


The Tempting of America by Robert Bork. This book is really two books in one. The first half is devoted to a detailed examination of the history of Constitutional law and the Supreme Court. Bork analyzes each Court, looking at their controversial decisions, and tells the reader where the Justices got it wrong or right. He uses these examples as support for his favored judicial theory, originalism. This part of the book can be fairly dense and even had me looking up cases online and terms in Black's Law Dictionary. The second part of the book is the more readable and, in my opinion, more enjoyable. Here, Bork tells the story of his confirmation process. He gives the reader an insider's look at the entire ordeal, providing the kind of detail that only someone in his position could. It also shows the reader how smarter the Republicans have become since the Bork hearings. I wouldn't look for a repeat of history any time soon.

If you're interested in these books, I would recommend reading them in that order. Bork's book is easier to read if you have the kind of background that the first two books provide. There are a lot of legal terms and processes that you pick up just by reading the first two books. They really walk you through the whole world of the Court. Bork's not the handholding type. I would recommend having a decent legal knowledge base before jumping in with both feet.

Oh, Adam Cohen. You are such a card. Cohen often writes about the Supreme Court and legal topics. Today, he's gone above and beyond his usual eye-rollingly bad work with this editorial piece.

First, I'll give him a few compliments. Cohen does a pretty good job summing up the voting differences between Justice Anthony Kennedy and former Justice Sandra Day O'Connor. Since it is generally thought that Kennedy now holds the center of the Court and its important fifth vote, this analysis is an important and enlightening one for readers who don't watch the Court much.

Now for the criticism. Read this...

At last week's oral argument in Hamdan v. Rumsfeld, probably the term's most important case, the outcome was all but decided when Justice Anthony Kennedy spoke. He strongly suggested by his questions that he would join the four moderate justices in rejecting the Bush administration's position on a key aspect of its war-on-terror powers.

The four moderate Justices?! Are you kidding me?! Only in the screwy world of the New York Times can Stevens, Ginsburg, Souter, and Breyer be called moderates. They are liberals, Cohen. It's okay. You can admit it. The rest of the legal world does.

I think Cohen is trying to usurp NYT Supreme Court reporter Linda Greenhouse. The "Greenhouse Effect" has been a legal community buzzword for some time now. Basically, it means that Greenhouse praises the moderate and conservative Justices whenever they break ranks and side with the liberal wing. This strokes the ego of the side-switching Justice and encourages it to happen more. After all, the conservative Justices rarely get praised for their votes. Cohen seems to be using this piece to urge Kennedy to the left.

But it is likely that rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result.

...there are signs that his views are evolving.

He is also someone who cares what other people think.

...there is something refreshing about a justice who genuinely seems to have an open mind.

I'd imagine that we can expect increased Kennedy ass kissing from Adam Cohen and the NYT. I'm fine with that; I expect that. I'm not fine with the moronic claim that any Justice on the Supreme Court that isn't a conservative is a moderate. Either Cohen is so far to the Left that they actually do look like moderates, or he's never read an opinion written by any of them.

EDIT: In the comments section, Nick reminded me that this was an opinion piece and I should mention that. Out of fairness, I edited the post to include that. This is not a straight news story.

However, I don't think that helps the NYT in this situation. Adam Cohen is not just some shlub off the street who got an opinion piece printed in the paper. He is on the editorial board of the NYT. That should tell you where the board is coming from ideologically.

How Appealing had a link to an interesting article by Dahlia Lithwick. Lithwick is one of the legal writers for Slate. While I rarely (okay, never) agree with her opinions about the law and the Supreme Court, she's an excellent writer. This article, while kind of silly, highlights an important issue concerning Supreme Court nominees like Roberts and Alito: the Democrats have no clue how to stop them.

It's a word game. It's a label game. The Democrats are 0-2 so far. Here's what happened with Roberts...

First they probed the "state of the judicial heart." Like a team of cardiological residents, they took turns inquiring whether the nominee had a heart and where he stored it.
...
Roberts's cogent response-It's my job to call balls and strikes, not to pitch or bat-sounded both simple and principled in response to the liberal hand-wringing.

And here's what happened with Alito...

Again, they took turns pressing the nominee on whether he saw it as his judicial role to make cases come out fairly for the poor and underprivileged, regardless of the law. And again their quarry struck a more compelling note: I don't bend and twist the law to make it come out in favor of anyone. I neutrally apply the law, and let the chips fall where they may.

The Democrats knew that they couldn't get away with an outright demonization, as they did with Robert Bork. They had to try these two avenues, and they failed. They were flustered. They were floundering. All one had to do was watch the coverage of the Judiciary Committee to see Roberts and Alito running circles around these attacks.

Lithwick makes the following analysis of the situation...

Words failed them, I suggest, because no words seem to suffice; there is no phrase or theory for what liberals seek in a jurist. The rhetoric of a "living Constitution" is in decline. What stands in its stead is either the "judge from the heart" principle or the ambiguous mandate to place a finger on the scale for the "little guy," regardless of the outcome compelled by the law itself. No wonder the country is at war with judicial "activists." The senators make them sound just awful.

I honestly think that they lost the debate on judges (which I claim with more than a bit of bias) for the near future. People are uncomfortable with the idea of judges being agents of social change, as they had been in the past. Slowly but surely, the country has drifted away from that old way. We want our judges to act like judges, not politicians. We want our legislatures to craft public policy, not our courtrooms. I can't think of a person who embodies that view more than Chief Justice Roberts.

The most interesting part about the article isn't the fairly humorous "how would a public relations firm help the liberals" bit. The most interesting part is that Lithwick doesn't have a definitive answer to her question. She closes with this...

I don't care what they call it! the boss would shout as the spiky-haired guy checked his cell phone. Progressives need to figure out what they want in a judge, and give it a name! They can call it "play nice" or "repair the world" or "level the playing field." But when the next confirmation comes along, there needs to be a word for what liberal judges do.

I know her examples are just brainstormed ideas that aren't meant seriously, but let's look at them anyway. "Play nice" sounds way too much like a parental thing, and I don't know anyone who looks at Justice Souter as a father figure. "Repair the world" is just Earl Warren Part 2, and that'll be a hard sell these days. "Level the playing field" is just the look-out-for-the-little-guy thing that they used against Alito.

She can't come up with a good answer. Regardless of my ideological differences with her, I will vouch for Lithwick's knowledge of the judiciary anytime. It's not a matter of not being able to come up with an answer. Gradually, the public has been growing supportive of more conservative (judicially) judges. Say what you will about him, but Stephen Breyer is no William Douglas. The only thing that can stop a Supreme Court nominee like Roberts or Alito is something damning (very controversial writings, a horrible committee performance, a real ethics scandal, etc.). You can't come up with some set of magic words that will stop judges like Roberts and Alito.

Supreme Court Shake Up

Washington, D.C. - A series of events has caused a massive shake up in the United States Supreme Court. Five new Justices have been confirmed by insomnia-stricken Republican Senators during a late night session.

Justice David Souter was taken into custody by the Washington D.C. local government via the power of eminent domain. Using the recent Kelo v City of New London decision, the Council of the District of Columbia took title to Souter. Chairman Linda Cropp stated that the council decided that Souter had a better economic use as a DC cab driver. He starts work Monday.

Justice Ruth Bader Ginsburg was seen leaving in the late afternoon with agents of President Robert Mugabe of Zimbabwe. In the spirit of his controversial land reforms, Mugabe instituted a policy of judicial reform. The Zimbabwe Parliament approved Mugabe's plan to stock their judiciary with the best judges possible from around the world. Ginsburg, a supporter of the influence international law, complied with Mugabe's request that she join Zimbabwe's bench.

Justice John Paul Stevens was last seen entering the Beau Ties, Ltd. factory three weeks ago. He has been missing ever since.

Justice Stephen Breyer is beginning a new job with a Washington D.C. Starbuck's. Breyer famously spent the past eleven years as the junior Justice. One of his duties included getting coffee for the other Justices. Since Justice Samuel Alito has joined the Court, Breyer has been relieved of his duties. In his resignation letter (which smelled like a mocha latte), Breyer told President Bush that he has finally found his true calling.

Justice Anthony Kennedy, mirroring his indecisive concurring opinion in Vieth v Jubelirer, has been standing in front of a mirror for the past two weeks comparing tie-shirt combinations. Kennedy refuses to come out of his home until he finds the right combination. He also refuses to let anyone help him.

In light of this strange activity, five vacancies have developed on the Supreme Court. President Bush, relieved to not have to pick a single name from his list, simply sent his entire list to the Senate Judiciary Committee. Late in the night, the Senate Republicans voted to confirm the five new Justices. None of the Senate Democrats were in attendance for either the committee vote or the Senate vote because they all have diarrhea.

Monday morning, the Roberts Court will welcome Justices Michael McConnell, Frank Easterbrook, Diane Sykes, J. Michael Luttig, and Janice Rogers Brown.

In other news, People for the American Way's Ralph Neas' head just exploded.