Some Interesting Reading
It's the middle of summer, hotter than Hell, and I'm sick. Wonderful. I spotted a few legal articles this weekend that are worth a read. I won't go into them too deeply, mainly because I'm hopped up on cold medicine and will probably write an incoherent post.
Howard Bashman has this interesting analysis of the possible split of the Ninth Circuit over the protests of some of its judges...
Pepperdine law professor Douglas Kmiec takes on the current view that it is the Kennedy Court, not the Roberts Court. Kmiec thinks that Kennedy is not just the "new O'Connor"...
Last and certainly least in my heart is Adam Cohen of the New York Times with his whiny editorial complaining about Chief Justice Roberts. He thinks that Roberts has abandoned the judicial modesty approach that many, including Prof. Cass Sunstein, thought Roberts would take. Cohen accuses Roberts of blatantly ruling in favor of Republicans and conservative interests, focusing on the Rapanos and Gonzales cases. Matthew Franck rebuts Cohen here...
Time for more Comtrex.
Howard Bashman has this interesting analysis of the possible split of the Ninth Circuit over the protests of some of its judges...
Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, recently expressed his support for pending legislation to split the 9th U.S. Circuit Court of Appeals into two smaller circuits. Specter's support makes it more likely than ever that the proposal will be favorably reported from the Judiciary Committee to the full U.S. Senate, where the legislation is certain to also gain the support of a majority of senators.This is long overdue. Regardless of what I think of the Ninth's political bent to their decisions, it's just too freaking big to operate as a unified court. Carve it up like a Thanksgiving turkey.
Pepperdine law professor Douglas Kmiec takes on the current view that it is the Kennedy Court, not the Roberts Court. Kmiec thinks that Kennedy is not just the "new O'Connor"...
In writing her down-to-earth lyric for the court, O'Connor was pragmatic; Kennedy, as an explorer of the spatial heavens, was poetic. Commentators, including myself, would occasionally express frustration with O'Connor's balancing tests that only she could apply, but at least she decided the particular — and often sensitive — case before her. Kennedy's writing, while rhetorically eloquent, can be as maddeningly ambiguous as the abstract poetry of Dame Edith Sitwell or the art of Jackson Pollock. Having taught law for more than 20 years, Kennedy sees all kinds of potential permutations and is quite content to let them percolate unresolved — like provocative questions posed during an academic seminar.Of all the lines penned about Justice Kennedy and his jurisprudence, I think this may be my favorite...
Kennedy as a solo act poses the perennial Father's Day dilemma: You know the old man needs something, but darned if you can put your finger on it.That's spot on. Prof. Kmiec thinks that the Court belongs to neither Kennedy nor Roberts. It's at an open minded phase. I'm not sure if I agree, but one term doesn't provide a lot to work with as far as analysis.
Last and certainly least in my heart is Adam Cohen of the New York Times with his whiny editorial complaining about Chief Justice Roberts. He thinks that Roberts has abandoned the judicial modesty approach that many, including Prof. Cass Sunstein, thought Roberts would take. Cohen accuses Roberts of blatantly ruling in favor of Republicans and conservative interests, focusing on the Rapanos and Gonzales cases. Matthew Franck rebuts Cohen here...
Maybe such a view could be sustained if Cohen were to supply legal arguments why a judge should adhere to the deference principle in Rapanos but not in Gonzales. But he doesn’t even try. Instead we get slogans, epithets, and Hyde Park soapbox oration. Scalia’s opinion in Rapanos was “stridently anti-environmentalist,” you see. We know the Corps was reasonable because “four justices agreed with” its view. In the Oregon assisted-suicide case, on the other hand, we had former AG Ashcroft trying to “invoke an irrelevant federal statute”—irrelevant because Adam Cohen says so. Roberts would have “overrul[ed] the voters” of Oregon and “intrud[ed] on state sovereignty.” Bad things to do, if no good ground exists for doing so. But no legal commentator thinks these are principles that trump all other possible grounds for decision-making. (We’ll see whether Cohen objects if his beloved Justice Kennedy puts together five votes in the next few years to bless gay marriage over the wishes of the voters in the “sovereign” states.)I get the feeling that Cohen's love for federalism is very fair-weather. Speaking of "his beloved Justice Kennedy", don't think that this line from Cohen didn't get past me...
The Roberts court's first term was not radically conservative, but only because Justice Anthony Kennedy, the swing justice, steered it on a centrist path.Let the tempting of Tony Kennedy continue.
Time for more Comtrex.
