Thursday, November 30, 2006 

A Lot of Hot Air

Yesterday, the Supreme Court heard oral argument in Massachusetts v EPA, popularly known as the global warming case. I managed to read half of the oral argument transcript yesterday in spite of being in court all morning, having class in the evening, and doing preparations for class tonight. How did I do that? I drastically reduced the amount of sleep I get a night. Try it. It works.

Anyway, the case focused mostly on the standing issue (from what I've read thus far). Hopefully I have time in the near future to elaborate on this, because I think the states have some serious Lujan problems to contend with before we even get to the merits. It's all about the remedy, as a Jason Mraz might say. If standing really is this issue that much of this case will turn on, Justice Kennedy seems to be in the drivers seat yet again. When I do start sleeping again, I'll sleep much more soundly when Justice Kennedy isn't controlling Constitutional law.

As penance for my lack of commentary and analysis, here are some links. Howard Bashman has a nice round up of the media coverage of the case. Jonathan Adler has a collection of commentary.

With that, I am out. I have an oral argument to review a few times before I give it tonight. I'll be arguing that a pregnant meth user should not be chargeable under an Oklahoma child homicide statute. Three cheers for my moral flexibility. I just keep telling myself "this is statutory interpretation, this is statutory interpretation...." and trying to not get hung up on the facts. Wish me luck.

Tuesday, November 28, 2006 

The Audio-Loving Court

All nighters are so fun. Anyway, we are rapidly approaching an interesting stretch in the Supreme Court's calendar. There are some very interesting cases coming up soon. The EPA greenhouse gas case will be argued tomorrow. I'm looking forward to that one, but there is some interesting news about a different high profile case. The K-12 grade school race cases will be argued next Monday. It will be a back to back, two hour marathon of race-based school assignment excitement. The Court has also decided to issue same day audio of the oral arguments. The Court has done this once already this term in the partial birth abortion cases. Law nerds like me love this stuff. I don't know when I'm going to find the time to listen to all 2 hours in the middle of exam fest, but I'll try to find the time.

Monday, November 27, 2006 

I'm Not Dead & The Hallows Lecture

I did make it through the holiday weekend... mostly intact. It was generally a horrible weekend. Most holidays are bad for me. When you add up the glacial progress of my seminar paper, my personal life taking a nose dive, a bad knee injury, and a few other things, you get one big pile of bad weekend. Also, I'm going to be posting less in the near future because exams start next week. My life just rules right now.

Anyway, I do have some news. Marquette has announced the speaker for this year's Hallows Lecture. Judge Carolyn Dineen King of the Court of Appeals for the Fifth Circuit will be giving the lecture, entitled "A Challenge to Judicial Independence: The Politicization of Federal Judicial Appointments." Here is the description...
Judge King will discuss the role of judicial independence in the American system of government and the importance of judicial accountability in maintaining judicial independence. She will describe an increasingly politicized appointment process for federal judges and the accompanying risks to judicial independence, both with respect to the Supreme Court and intermediate appellate courts.
It sounds like a very interesting topic. Unfortunately, I have class at that time. Hopefully, the professor will cancel. I'm interested to see what Judge King has to say on this.

Wednesday, November 22, 2006 

Programming Note

I plan on taking a few days off over the holiday weekend, so updates may be non-existent (or at least very scarce). Aside from my turkey duties, I have a crippling amount of work to do for school. We're rapidly approaching crunch time at the ol' law school, and I've got deadlines to keep. Hopefully, I won't go insane. Last year at this time, I was pretty close. After marathon sessions of studying for my tax exam, I ended up a blubbering mess, unable to sit up straight in a chair from fatigue. Not exactly my finest moment. My goal is to avoid that ugliness again. Anyway, happy Thanksgiving.

Monday, November 20, 2006 

Beer Review: Spaten Oktoberfest

As you can probably tell by the length of this list, I'm a strong believer in beer diversity. I love going to bars with a good beer selection (especially a lot of seasonals) because it's a great chance to try new beers without buying an entire six pack. No one likes getting stuck with five more crappy beers. While out last Friday, I had the chance to sample the taps at a decent bar. They had all of the usual suspects but also many microbrews and seasonals. I tried a few beers, including the Spaten Oktoberfest. I plan on reviewing them all over the course of the week, but I'll tackle the Spaten first. This Oktoberfest had a brown-bronze color. It's a shade darker than the Leine's Oktoberfest. There was a decent amount of head that managed to hang around longer than I expected. The aroma is rich and full. It smells mostly like malts with some hops detectable as well. The flavors are also fairly rich. The breadiness of the malts dominates the flavor. A surprising but complimentary sweet caramel is also detectable. It's a good balance. The flavors seem weighty, but the beer actually has a pretty light mouthfeel. It's highly drinkable. The crisp finish helps that too. This was probably my favorite Oktoberfest of the year so far. I look forward to having another.


Post-Election: The Issue of Judges, Part 3

There has been a lot of talk about the nomination and confirmation of judges lately. There has even been some movement on appeals court nominees. I will discuss that and the implications for the future in Part 4 of this series. Now, I would like to focus on a hypothetical. Let's imagine that the current term of the Supreme Court has come to a close. The Court goes into summer recess. One of the elder Justices retires. The Democrats control the Senate 51-49. Who can win confirmation?

I'm going to examine three lists of nominees. The first list will be the one that Senator Schumer sent to the White House. Get ready for some laughs. The second list will be the candidates endorsed by former Judge Robert Bork. The third list will be my list of everyone else that has a shot but wasn't covered in the previous two. A warning: this is a very long post. I'm trying to be comprehensive in my analysis, and comprehensive usually means long.

Schumer's Posse

Let's start with Schumer's list...
The Honorable Arlen Specter, Republican Senator from Pennsylvania.

The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.

The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.

The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.

The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated by President Ronald Reagan.
Right out of the gate, I'm laughing. Senator Arlen Specter belongs nowhere near the Supreme Court. They shouldn't even let him in the building. His views on the First Amendment, the Equal Protection Clause, and other areas of Constitutional law are just incomprehensible. I'm hoping that he's got a different document that's erroneously labeled "US Constitution" and that he's been reading off of that for the past few decades. Otherwise... yikes. Schumer named him because Specter is pro-choice. That's it. I have a better chance of being nominated by this White House than Specter does.

Ann Williams
Judge Ann Williams is a Seventh Circuit judge, but I honestly don't know much about her. I can't help but be wary when Reagan nominates someone to the district court then Clinton is the one who elevates her to the appeals court. She has a reputation as a moderate. She has a solid resume, but I haven't heard her name mentioned anywhere other than Schumer's list for consideration. It's doubtful that she would get the nomination. If she did, she would probably win confirmation easily. Being the first Black female Supreme Court Justice would probably help that along.

Judge Ed Prado's name had been tossed around a lot after the first vacancy under President Bush. Check out the Draft Prado movement here. He is a Bush nominee, a Hispanic, and widely respected as a jurist. Schumer and other left of center groups support him because he's fairly moderate. I think it's safe to call him a liberal on criminal and federalism issues. He's more likely to take the conservative stance on business issues though. I could honestly see a Prado nomination and confirmation as a back up plan. If a nominee gets voted down, Prado would be the confirmable replacement. He'd be the Anthony Kennedy, not the Robert Bork.

Mukasey (District Judges Get Small Pictures)
I was honestly puzzled at seeing Judge Michael Mukasey on Schumer's list. Mukasey's claim to fame is being the trial judge in the Padilla case. I'm sure that some New York bias leaked into Schumer's choice here. I think that he would change his mind about this choice though. Read Mukasey's defense of the Patriot Act and tell me how that would play to the liberal base of the Democratic Party. He would be a tough War on Terror Justice and a possible ally of the Bush Administration on those issues. I don't think that any district court judge would be nominated, simply because the only appellate experience they have is from sitting by designation on the appeals courts. The last eight confirmed Supreme Court Justices had at least some time as a sitting appeals court judge.

Lame Joke, I Know
Judge Stanley Marcus gives me the same level of wariness as Judge Ann Williams. He is another Reagan appointee who was later elevated by Clinton. I haven't found much information on him anywhere, other than this strange Earthlink page that claims he hates Hispanics. I can't even find a picture of him. I doubt he would be nominated, but I haven't found anything that would block confirmation if he did get the nomination.

Team Bork

Bork's list is a little closer to a list that the White House would actually be using...
Robert Bork: I haven't got a list of three, I've got a list of about eight and I can't very well pick three from that group. Ted Olson, Raymond Randolph, a judge on the D.C. Circuit Court of Appeals, Frank Easterbrook (also a Court of Appeals judge), Michael Luttig, Jay Harvey Wilkinson, Edith Clement, and Edith Jones. There's also Samuel Alito.
In order to get into the mind of the opposition, I read this book, Right Wing Justice by Herman Schwartz. It manages to be a horrible book and a great book at the same time. Schwartz does everything in his power to paint conservative judges as puppy-eating, sunshine-hating trolls. The book is full of eye-rolling moments. However, it does provide a lot of information about how nominees would be attacked by opposition groups like People for the American Way and Alliance for Justice. Now, on to the list...

Ted Olson would be an interesting choice for the Supreme Court. Olson is not and hasn't ever been a judge. He did serve as Solicitor General and is one of the top Supreme Court litigators in the country. I doubt that Olson would get the nomination for a few reasons. First, he's old. At 66, Olson would be much older than Roberts and Alito at the time of their nominations. President Bush has shown a trend in nominating young judges. That makes sense. He wants his judges to be on the bench for a long time. It's a legacy thing. A second reason that Olson would not get the nomination is Bush v Gore. Olson argued and won this famous (or infamous, depending on your politics) Supreme Court case. There is still a lot of hostility from certain Democrats towards anyone involved in the case. There are a lot of old, festering wounds there. Also, Olson's lack of a judicial record would be a problem. The Senate Democrats would demand that Olson answer substantive legal questions to give them an idea of his views. It's highly unlikely that Olson would be nominated, and he would face significant opposition if nominated.

Judge Raymond Randolph is an interesting pick. He's very much a Bork-style pick for the Supreme Court. I haven't heard his name mentioned elsewhere as a potential nominee. Randolph and Bork worked together in the Solicitor General's office in the 1970s. Randolph has been on the DC Circuit for 16 years. He's been involved in some high profile cases, including Hamdan v Rumsfeld, Massachusetts v EPA (the greenhouse gas case that is going before the Court this term) and the Microsoft antitrust case. In another major case, he was also doubtful that Vice President Cheney had to disclose the inner workings of his energy policy task force. It's doubtful that he would be nominated because of his age (he's 63). I think that Randolph would also face serious opposition based on his record. It's a mile long and full of stuff that the Senate Democrats will hate. It's unlikely that Randolph would be nominated and would have a tough battle to get confirmed if he were nominated.

Bork seemed to be naming a lot of old employees in this list. He followed Judge Randolph with Judge Frank Easterbrook. Easterbrook also worked in the SG's office under Bork. Judge Easterbrook has been on the Seventh Circuit Court of Appeals for over two decades. It's hard to argue with Easterbrooks' experience and background. Aside from his time on the bench and as a government lawyer, he is also a top legal scholar in the areas of antitrust, corporate law, and statutory interpretation. The main line of attack on Easterbrook would be judicial temperment. He's not the most cuddly guy. He won't come across on TV like Roberts. He has been called arrogant, intolerant, and rude. At 58, I think that Easterbrook is at the age limit for any Court nominee from this White House. I would be surprised if he got the nomination, because of his record and he's got WMS (White Male Syndrome). If he did get the nomination, confirmation would be a huge fight. Easterbrook would have to win the PR war in the press. That would be the hardest part. He's the kind of nominee that the Senate Republicans should go to war to confirm though.

The Luttigator
Michael Luttig seems to be on everyone's short list (aside from Schumer's list) but the one that matters, the White House short list. He's got a resume that most lawyers would kill for (Scalia clerk, Burger clerk, time at the DoJ, 15 years on the Fourth Circuit Court of Appeals, and now a sweet gig as general counsel for Boeing). He was one of the biggest clerk feeders to the Supreme Court. I doubt he will get the nomination. There have been strong rumors that he and President Bush simply did not get along. There may even be some history there from when Luttig worked for Bush 41. There was also a clash between the administration and Luttig over the Padilla case. If he did get nominated, the fight would be as big (if not bigger) than the Easterbrook fight. Luttig has a long list of things for Democrats to hate. In Gibbs v Babbitt, Luttig narrowly read the scope of the authority of the Fish and Wildlife Service under the Endangered Species Act. In his opinion (a dissent from Judge Wilkinson's majority opinion), he also criticized Wilkinson for calling the Rehnquist Court's federalism cases "judicial activism." He voted to strike down parts of the Violence Against Women Act (as part of that federalism activism again). The Supreme Court did agree with Luttig and company, but many Senators (including Biden, who wrote the legislation) were ticked off about the courts striking down their laws. Luttig is another nominee worthy of Senatorial warfare.

J. Harvie Wilkinson has been one of those names reflexively on every Supreme Court list. He has a long career on the Fourth Circuit. He's seen as a solid conservative vote on most issues. He does have a few strikes against him, though. He talked to the New York Times about his Supreme Court interview. The Bush Administration saw that as a huge betrayal of confidence. Wilkinson also recently wrote an opinion piece opposing Constitutional bans against gay marriage. The Left has a lot of ammo to use against Wilkinson too. As a law professor and former newspaper man, Wilkinson has written many articles on many issues. His civil rights and affirmative action views might prick up some Democratic ears on the Judiciary Committee. His involvement in Dickerson (a move to overturn Miranda) and the Hamdi decision would provide a lot for the Democrats to attack. Wilkinson will not get the nomination because of all of the toes that he's stepped on. He'd have a long road to confirmation even if he did get the nomination.

E. Clement
Judge Edith Clement has had her name tossed around often in the past few years. She is a Bush-nominated judge on the Fifth Circuit Court of Appeals. Many people, including Matt Drudge, thought that she was going to get the original O'Connor vacancy (of course that went to Roberts, then Roberts was withdrawn to be Chief, and the spot went to Alito). I've read a lot of people wonder "Why her?" Don't get me wrong. Judge Clement has had quite a career. She had 10 years on the district court before being elevated to her current spot. She's a prominent Federalist Society member and an open Scalia fan. Beyond that, she hasn't shown us much. She doesn't have the judicial record of a Luttig or a Randolph. She's a scholar in maritime law, not exactly the juiciest legal topic. She has been strong on the issue of federalism, arguing that Congress could not regulate local robberies under the Commerce Clause. Clement would also demand a commercial nexus for the federal government to regulate under the Endangered Species Act. I don't know why, but I think that Clement is much more conservative than she has let on thus far. Maybe it's the federalism views, I don't know. My gut says that she would be a stealth confirmable nominee. She would provide a much more conservative vote than most other confirmable moderates. Of course, my guts have shit for brains so I may be totally wrong. If Clement were nominated after a more obviously conservative nominee got voted down, she would get through.

E. Jones
Chief Judge Edith Jones of the Fifth Circuit Court of Appeals does not look very threatening. However, she is a firebreather. She has opening criticized Roe v Wade, which pretty much kills her chances at being nominated or confirmed. Here's a chunk of her famous concurrence in McCorvey v Hill...
"The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter...That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."
Jones does not mince words. She was one of the finalists for the seat that went to Justice Souter. Things would be very different if Bush 41 went with Jones. She's not getting the nomination, no chance.

This Guy
Samuel Alito. Never heard of him.

Schumer and Bork missed a few names that I think have a decent chance of getting the nomination. Here is the Steve list of potentials...

Judge Karen Williams of the Fourth Circuit Court of Appeals has been my prognosticated pick every time there has been a vacancy under Bush 43. Believe me, I have about as much luck at the blackjack table. She's got 14 years of experience on the federal appellate bench, she's got the support of some important Senators (including Specter), and a strong conservative judicial record. She's also female and married to a Democrat. Williams would be attacked by the Democrats on a few fronts. Dickerson, which I mentioned in Wilkinson's section, will be a huge issue. "Oh no, she wanted to get rid of the Miranda warnings! What will crappy TV cop dramas do now!" I'm sure it will be phrased in a different manner, but you get the picture. She also has dissent in a sexual harassment case and an ADA case involving HIV that would be trouble. I think that she could get the nomination if the White House feels that they need a female nominee. I don't know if Bush would nominate her if he didn't do it when he had the chance. She would face considerable opposition if she did get the nomination. Williams would be worth fighting for though. And I bet Justice Thomas is lonely as the only Southerner on the Court.

Judge Diane Sykes of the Seventh Circuit Court of Appeals has been mentioned as a contender for a SCOTUS spot. She is a Bush 43 nominee to the Seventh Circuit. Rumor has it that Democratic Judiciary Committee member Senator Herb Kohl, one of her homestate senators, would support her nomination. Sykes has been on the Seventh Circuit for a relatively short time, but she has significant judicial experience including appellate/constitutional experience on the Wisconsin Supreme Court as well as trial court experience in the Milwaukee County Circuit Court. She's an active member of the Federalist Society (I see her at all of the local events), and doesn't shy away from criticizing bad judging when she sees it. Sykes is also incredibly personable and would probably do well on TV during the confirmation hearings. The Democrats would attack her on a few issues though. She'll likely be questioned heavily about a statement she made as a trial judge during a case involving anti-abortion protesters. Two protesters blocked access to the clinic by binding their legs with welded pipes to the front of a car. They were charged with disorderly conduct and found guilty. During the sentencing, Sykes said the following...
"I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct."
NARAL is going to have a fit about this. I think that the statement isn't totally disqualifying though. Sykes' chances for the nomination are probably pretty good. I think that she could probably be confirmed with a fight.

Judge Michael McConnell is probably one of the most deserving possible nominees to the Court. It's hard to argue with McConnell's accomplishments. After graduating from law school, he clerked for Judge Wright on the DC Circuit and Justice Brennan on the Court. He worked in the Solicitor General's office and spent almost two decades as a law professor. Professor McConnell's scholarship is widely respected, and his nomination to the Tenth Circuit Court of Appeals was supported by conservative and liberal academics alike. What's the problem? Well, when you call Roe v Wade illegitimate in the pages of the Wall Street Journal, you're going to turn a lot of heads. As an academic, McConnell has many pages of ammunition for the Senate Democrats to use against him. He's also a professed originalist, and many Senate Democrats would do anything to keep the Scalia-Thomas club from getting a third member on the Court. It's easier to attack the legitimacy of a legal theory if it's "just those two extremists" on the Court that abide by it. Another member to the originalist club would help the cause. I doubt McConnell would be nominated because the Democrats could attack him so many ways. Being the third white male nominated by Bush wouldn't help either. He would need a miracle to get confirmed.

If you've been following the nomination discussion elsewhere, Judge Connie Callahan of the Ninth Circuit Court of Appeals has been the "Bush will screw this up and nominate ________" choice. She's been a Ninth Circuit judge for three years and has a reputation as a moderate (or at least, more moderate than the average Bush nominee). Callahan has the support of many Democrats, including the incoming Judiciary Committee Chairman. If memory serves, there wasn't a single group that opposed her nomination to the Ninth Circuit. That's not exactly common. If Bush is concerned about his legacy (and with Iraq as it is now, he should be), he might go for the easy, historic nomination of a Hispanic woman. I think it's a very likely possibility. Callahan would probably be confirmed with a minimal fight from the Democrats. I haven't found anything for them to use as an attack. David Lat thinks that she's "a fairly conservative Republican" who would be "solid on criminal issues." He may be right, but I haven't seen the evidence of it yet. The Alliance for Justice called her a "moderate conservative." Yes, that Alliance for Justice. I'm a bit concerned about Judge Callahan.

Another potential nominee that has some folks worried is Supreme Court litigator Maureen Mahoney. She's got a strong background, even if it does lack judicial experience (like Ted Olson). Mahoney clerked for Judge Sprecher on the Seventh Circuit and then-Justice Rehnquist on the Court. She was a Deputy Solicitor General under Bush 41. She worked with some guy named Roberts. Her nomination to a district court was shelved by Senate Democrats (much like the original nomination to the DC Circuit of that Roberts guy). That forced her to eke out a living doing litigation work at Latham & Watkins in DC. She hasn't made her Republican political allegiances a secret either (and she puts her money where her mouth is). But as David Souter and Sandra Day O'Connor prove, "Republican" does not mean much as far as judicial philosophy goes. The big red flag is Grutter v Bollinger, the University of Michigan affirmative action case. Mahoney argued in favor of the AA policy. Just an advocate working for a client? Nope...
"I'm a Republican, and there's a common misconception that all Republicans oppose affirmative action," she says. "I care deeply about this case."
Yeah, there's trouble. It's possible that Mahoney is William Rehnquist in a skirt (now there's a mental image...) aside from this one issue. But we don't know that because she's got no judicial record to examine. I think that she's got a good chance at getting the nomination. She has no record to attack, but she's on record siding with the Democrats on one issue. Make no mistake. The Senate Democrats will grill her on everything else. They don't want Rehnquist in a skirt plus AA. If she doesn't give them anything damning, I think that she'd be confirmed.

There are a few other names that pop up, but I have much more serious doubts about them. I think that Judges Janice Rogers Brown, Priscilla Owen, and William Pryor have very little chance. The Senate Democrats have said that they will filibuster any nominee that was previously filibustered. These three are on the list, and the Democrats have the votes. You can probably add Judge Brett Kavanaugh and attorney Miguel Estrada to that list too. I may have to change my mind on Brown though. If the renomination of all the "controversial" appeals court judges is a sign of how Bush will handle all nominations, he might nominate Brown regardless of what the Democrats said. Judge Emilio Garza of the Fifth Circuit is probably dead in the water for being so openly critical of Roe. Alberto Gonzales is not leaving his current job as Attorney General. It was enough of a fight to get him confirmed for that post. He's got too much baggage that liberals and conservatives will both rally against. If anyone slipped my mind, I'll update the post later.

Well, that's it. I started working on this late Thursday night and have been plugging away at it bit by bit. My next, and hopefully final, part of this series will try to predict what Bush is going to do about judicial nominations over the next two years. I have no clue when I'm going to have that one written, hopefully soon.

Sunday, November 19, 2006 

Beer Review: Goose Island Honker's Ale

If a bar has Goose Island on tap, you will probably know it right away. The large goosehead taps are hard to miss. I recently sampled the Goose Island Honker's Ale from one of those goofy but endearing taps. It has a nice reddish-orange color. It's sort of a dark amber. There wasn't much head, so it looked kind of flat. I was a bit worried at that point. The aroma isn't incredibly strong, but the hops are noticeable. There are also some citrus scents drifting around in there as well. The taste really surprised me. I was expecting a very pronounced, bitter hop kick to the teeth. The hops are definitely there, but they are balanced perfectly with the malt flavors. It's strong enough to keep your taste buds interested but not so strong that it's a chore to drink. Sweet and bitter, when in the proper proportions, make for a very drinkable beer. If you can't stand bitter, this may not be for you. But I think it is accessible enough for most beer drinkers to get through without too much fuss. I would definitely pick up a six pack of this. I think it would pair well with a meal.



I've been writing and researching a very, very long post about a potential Supreme Court vacancy lately. I've literally spent hours on it, and I'm really starting to wonder why the hell I'm doing it. However, it has been paying off in other ways. In my online travels, I have found some interesting things, even if they are very old interesting things. Take this article for example. Ted Cruz, the current Solicitor General of Texas and possible Fifth Circuit Court of Appeals nominee, discusses a series of columns written by New York Times scribbler Bob Herbert. Herbert spent a lot of ink on the John Luttig murder. John Luttig, father of then-appeals court Judge J. Michael Luttig, was murdered by slimeball carjacker Napoleon Beazley. Cruz takes Herbert to task for the columns, which try to minimize Beazley's culpablility and play the race card like crazy. It's a good read.

Remember the name Ted Cruz. He will be going places.


Crying at the FedSoc Conference?

Today's New York Times seems to paint this weekend's Federalist Society Conference as a sad event. This article, linked via Althouse (come on, you should know by now that I don't read the NYT), makes the mood at the conference look pretty grim...
How glum was the mood? "Well, I guess I've just about climbed back from the ledge - the one I was about to jump off of," said Daniel McLaughlin, a New York lawyer who attended the convention. Mr. McLaughlin said he could not stop fretting over who would be confirmed to the federal bench in the next two years.
Wow, this guy took it pretty hard. How about some more bad news...
That is probably an accurate assessment. Senator Charles E. Schumer, a New York Democrat who has been outspoken in opposing Mr. Bush's nominees, said Friday that the election results "dramatically changed everything."

"The days when the Federalist Society would get just about anything it wanted are over," Mr. Schumer said.
That is probably true. It will be a rough two years for any judicial nominee with "Federalist Society, Member" on their resume. Senator Schumer will see to that.

I think that Professor John Yoo correctly portrays whatever sour feelings the Federalists have right now...
Professor Yoo said that the widespread dismay at the gathering was only over the prospect of judicial nominations, and that it did not signal any lessening of interest in conservative ideas. "The Bush effort to remake the judiciary has crested," he said. "We all will have to play defense for a while on this."
Emphasis added. Seriously, New York Times. We're not all sitting in our rooms, listening to the Sisters of Mercy's "No Time to Cry" while, in fact, crying. The judicial nomination situation is bad, but the Federalist Society is stronger than ever. Fear not, Senator Schumer. We will redouble our efforts. In the visible future, we will see a FedSoc-friendly majority on the Supreme Court.

Saturday, November 18, 2006 

Scalia and Alito at the FedSoc Conference

Tonight's episode of America and the Courts on C-SPAN will feature the remarks of Justices Scalia and Alito at this week's Federalist Society Conference. You can watch the video of it here on C-SPAN's website.


Huckabee: McCain-Feingold Benefits McCain

Arkansas Governor Mike Huckabee has something interesting to say about the McCain-Feingold campaign finance laws. Huckabee, a potential 2008 presidential contender, thinks that the current campaign finance "reforms" unfairly benefit the federal politicians who wrote them...
"If you're a senator, you can take the money you raise in a Senate campaign and transfer it to a presidential, but you can't take money you raise in a state campaign and transfer that to a federal campaign," Huckabee, a Republican, told The Associated Press in an interview Friday.

"McCain was very smart in creating a system where he could take all of this Senate money that he had and turn it over to his presidential campaign to give him a distinct advantage over anyone else who ran," he said.
This point was made about Senator Clinton's Senate campaign war chest. She raised boatloads of money for her re-election for her extremely safe Senate seat. A lot of that money is now waiting for an 08 presidential run. Senators made out pretty well in our enlightened, reformed campaign finance regime.

Of course, McCain never intended the law to work this way...
A spokesman for McCain's committee said transferring the $1 million remaining from his 2004 re-election bid to a presidential campaign is an option, but denied that was a motivation for McCain's campaign finance legislation.

"That wasn't the intent of the law in any way, shape or form," said spokesman Craig Goldman
Just a pleasant surprise, I guess.

Friday, November 17, 2006 

Giuliani on Judges

Over at the Federalist Society blog, I posted an excerpt of Senator McCain's speech at the FedSoc conference. As a registered voter, I'm concerned with how all of the 2008 presidential candidates feel about the judiciary. That issue always weighs heavily on my voting decisions. This post at Red State has some interesting statements from Rudy Giuliani about judges...
While in Ohio, Rudy called into the Bill Cunningham radio show. Speaking about the Supreme Court, Rudy said: "Justices Roberts and Alito were both colleagues of mine [in the Reagan Justice Department] - people I worked with and I admire tremendously. I thought that they were inspired choices that the President made - inspired in many ways, because they also were people who had a strong conservative background and strict constructionists." He added, "Justice Scalia was also a colleague of mine...and he probably would have been my choice for Chief Justice."
Support for Roberts and Alito, and Scalia for Chief... yes, that will do nicely.


Beer Review: Leinenkugel's Apple Spice

Believe it or not, I had not tried Leinenkugel's Apple Spice until this fall. When it was introduced last year, I was intrigued. I meant to get my hands on some, but Apple Spice and I just never crossed paths. When I was finally in the position to try it, I jumped at the opportunity. Apple Spice pours a lot like apple juice. My pint had a minimal amount of head on it. It's fairly clear and juice-like. The aroma is impressive. The apples are definitely front and center, joined by cinnamon, nutmeg, and allspice in the background. The flavor was not exactly what I had expected. In all honesty, my exposure to apple beers is minimal. The only one I remember trying is the New Glarus Apple Ale. The Apple Spice reminded me of apple juice. There's a definite sugary, sweetness involved. It's incredibly easy to drink. It felt like I wasn't even drinking a beer. That can be good or bad, depending on one's point of view. Personally, I wasn't won over by this one. It's innovative and novel, but I guess I was looking for more of a "beer" flavor. I wouldn't turn one down, but I doubt that I would buy another.

As an aside, there is some interesting Leine's news. I am a fan of most of the Leinenkugel products. Even when they don't win me over (like with the Apple Spice, for example), I think that they produce an excellent, accessible product. Their Sunset Wheat and Berry Weiss varieties are year round now. That opens up room for new seasonals. Dick Leinenkugel was on a local morning radio show recently and brought some of the candidate beers for the hosts to try. Based on the hosts' descriptions and what Leinenkugel said about the beers, the new summer seasonal will probably be some form of wheat beer, like a hefeweizen. It will be interesting to see what they come up with next year.


Beer Review: Shiner Bock

I'm constantly reminded how much of a taste difference one can encounter with fresh beer and old beer. This review of Shiner Bock is an example of that. I first tried Shiner Bock in a bottle. I got it from a liquor store that doesn't have the greatest turnover in their stock. That was my mistake. It was conveinent for me to buy the beer there and I did. Unfortunately, the beer was skunky and stale. The experience soured me to Shiner Bock for quite a while. Recently, I gave Shiner Bock another shot. This time, I ordered it at a very busy bar that is known for its excellent beer selection. Good beer + lots of people buying the beer = fresh beer.

Shiner Bock is, shockingly, a bock. Bocks are members of the dark lager family. Traditionally, they were brewed for special occasions and holidays. Monks used to brew and drink bocks during Lent when they had to fast because of their high nutrient content. Shiner Bock has a dark, brownish-red color. The head is off-white and usually dissipates pretty fast. The aroma is fairly light. The dominant smell is roasted malts. The flavors are also dominated by the malts. However, it finishes fairly clean. As you work your way through the glass, the flavor coats your mouth little by little. By the end, you're left with a lingering malty taste. Shiner Bock is not very thick and has a surprisingly light mouthfeel. That may be my personal bias talking though. My definition of a thick beer is often very different than others. Overall, Shiner Bock is a decent bock. It's not incredibly groundbreaking or outstanding but worth a try.

Thursday, November 16, 2006 

George Will Takes on Reinhardt

It's not a great week to be Judge Stephen Reinhardt. First, he's reversed in the first signed opinion of the term from the Court. Then, he has to deal with people like me sniping at him and his goofy jurisprudence. Now, Reinhardt has one of the top conservative columnists in the nation taking him to task. George F. Will's most recent column discusses Judge Reinhardt, the Ninth Circuit, and all the trouble they cause.

When I opened to the editorial section of today's Milwaukee Journal-Sentinel and saw Will's column, I knew it was going to be good based on the first sentence...
There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases.
Calling Reinhardt a "residue of Jimmy Carter's presidency" (that's not a compliment, in case you didn't catch the tone of the text), Will criticizes Reinhardt's now-reversed opinion. He also has harsh words for the various "arcane" procedures that anti-death penalty judges have pushed into the justice system. Will also manages to summarize the facts of the case and the procedural history well.

My favorite part of the opinion piece is the end...
The Supreme Court recently heard arguments in another death penalty case. The question at issue is: Jim Studer and his parents wore a button featuring a photograph of Studer's brother during the San Jose trial of the man who murdered him 12 years ago. A circuit court's three-judge panel, divided 2 to 1, reversed the conviction, arguing that the button interfered with the defendant's receiving a fair trial because the button enunciated the "specific message" that the murdered man was "the innocent party" and that the defendant was "guilty."

The circuit court was the 9th. The author of that opinion was Reinhardt. Tidying up after it, and him, is steady work.
Reinhardt rules, the Court reverses, Reinhardt rules, the Court reverses. It's the judicial circle of life, Simba.



Milton Friedman died last night. There's been a lot of reaction around the net today. I don't have much to add other than that Friedman changed my life. Many years ago, Free to Choose got me into politics, economics, big ideas, and all that other fun stuff. Everything from that point to now is his fault.

Ilya Somin and David Bernstein have some great thoughts on Freidman at Volokh.


I Should Be in Oregon Tonight

The Tax Prof Blog posted this link to the coolest law conference ever...
The Law of Beer
It's not all malt and hops - Oregon's brewers face an array of legal issues from intellectual property law to fundamental constitutional questions.

The 2006 Law of Beer Symposium features panelists from Oregon's Rogue Ales and the former director of Oregon Brewer's Guild.

It takes place on Thursday, November 16 at 7:00 P.M. in Room 110, Knight Law Center, 1515 Agate Street in Eugene. The event is sponsored by the Law and Entrepreneurship Student Association.

Panelists include:
Jack Joyce
Cofounder and CEO of Rogue Ales
Jerome Chicvara
Rogue Ales vice president of marketing
Jim Parker
former director of Oregon Brewer's Guild and coowner of Oaks Bottom Public House.

Craft brewer Rogue Ales was founded in Ashland, Oregon in 1988 and now makes a wide variety of traditional and experimental ales in Newport. The company won four out of 11 gold medals at the 2005 International Beer Competition in England. The competition rates packaged beers and ciders.

The Oak Bottom Public House is a microbrewery and restaurant in the Sellwood neighborhood of Portland, Oregon. Panelist Parker cofounded the brewpub with Jerry Fechter, another Oregon microbrew renaissance figure.
My new professional goal is to be general counsel for Sam Adams Brewery.

Wednesday, November 15, 2006 

Schumer: "No More Alitos"

Well, it looks like the line has been drawn in the sand...
...Chuck Schumer says that the single greatest failure of the Democrats as an opposition party was allowing Samuel Alito to join the Supreme Court.

"Judges are the most important," [Ed. Holy crap! I agree with Schumer on an issue.] said Mr. Schumer, who orchestrated the implausible Democratic takeover of the Senate last week. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won't happen."

From now on, all the President's judicial appointments will need to meet the requirements of Mr. Schumer, the Park Slope power broker who has happily accepted the mantle of chief architect for the Democrats' effort to build a majority for the 2008 elections and beyond.
Chuck's going to play hardball. I'm not surprised at all. He came off as whiny and unhappy in the Roberts and Alito hearings. Why? Because he didn't have the votes to stop them and he knew it. Now, he's got a slim Democratic majority in the Senate. He also might have a 10-8 advantage on the Judiciary Committee. The Republicans' first order of business better be to fight this 10-8 split. It should be 10-9, as it was from 2002-2004 when the Republicans had the same type of slim majority that the Democrats enjoy now. That vote may become very important in the next two years.

I've been really busy this week and haven't been able to spend as much time on the blog as I would like. Once I get this trial brief written, I will finish with the oh so thrilling parts 3 and 4 of my series on the post-election judiciary scene. Part 3 will focus on a potential Court vacancy. I will run through most of the candidates and try to figure out their chances. Part 4 will be my predictions about what President Bush will actually do on the judges issue in the next two years. Look for at least one of those posts by Friday. Also, I have three beer reviews on deck. Most of them should be up this weekend.

Monday, November 13, 2006 

Court Sets a New Speed Record

The first signed opinion of the term is also the first reversal of Judge Stephen Reinhardt (probably with more to come). In a 5-4 ruling written by Justice Kennedy, the Court upheld the "catchall" provision of the California death penalty statute. Roberts, Scalia, Thomas, and Alito joined Kennedy in the majority, with Justice Stevens writing for the dissenters.

I find it rather interesting that the first opinion of the term would be a 5-4 decision. It's more common to have a 9-0 or an 8-1 decision come down first. Just as a matter of time and effort, it's usually easier to crank out an opinion on an "easy" case than it is to circulate drafts of opinions in a strongly split case.

The Judge Reinhardt issue is pretty interesting too. Loyal readers will know that my feelings for Judge Reinhardt aren't exactly a secret. His approach to judicial decisionmaking is a wonderful example of a Warren-era, dinosaur point of view of the bench. A commenter on Volokh linked this analysis of the Ninth Circuit Court of Appeals. It has some interesting things to say about Reinhardt...
Over the past ten years [Ed. This study was written in 2004], the Supreme Court has reversed decisions that Judge Reinhardt authored or joined an amazing 53 times, accounting for more than one-third of the Ninth Circuit cases reversed by the Supreme Court over the past decade (53 of 143, 37 percent). His average of 5.3 reversals per Supreme Court term far outpaces his fellow jurists on the Ninth Circuit, or on any other federal appeals court nationwide.
Those are some impressive numbers. They only get better...
In addition, Judge Reinhardt has personally authored 18 opinions that the Supreme Court reversed during the past decade, meaning that Judge Reinhardt's own legal reasoning is rejected by the Supreme Court on average nearly two times each term. To put these numbers in perspective, consider that a single judge (out of hundreds of federal judges nationwide) is responsible for multiple reversals during each term of the Supreme Court, though the Court only decides about 80 total cases each term.
Reinhardt's reputation is famous (or infamous). As I first read this study, I began to wonder if Reinhardt is bothered by this reversal record and people like me writing about it often. Probably not. After all, he's a federal judge. I'm not. He has the power to write these opinions, and he's got lifetime tenure. I'm a 3L looking for a job. I think he wins out.

What is Reinhardt's actual problem...
By his own account, Judge Reinhardt's stunning reversal record is not due to an innate inability to follow the law and Supreme Court precedent, but his own predisposition to incorporate personal social, political and moral judgments into his decision-making process. Judge Reinhardt's own admissions reveal that he thinks of himself not as neutral arbiter allowing for an objective determination based on the facts and the relevant law, but as someone who necessarily adjudicates cases based, at least in part, upon his own values.
Is anyone shocked that he was a Carter appointee?

Saturday, November 11, 2006 

The Future Looks Dark Ahead...

This was very expected...
When Democrats take control of the Senate in January, they will immediately assume far more power to influence President Bush's agenda, particularly his choice of executive and judicial nominations that must pass through the chamber.

By virtue of their new 51-49 majority, Democrats will now control the committees and the floor schedule - a factor that Bush will have to weigh in his selection process.

"It means send us more moderate people or don't waste your time," said Sen. Richard. J. Durbin of Illinois, the second-in-command and a member of the Judiciary Committee, which considers judgeship nominees. Republicans acknowledge the shift will be a significant factor in high-profile nominations, such as any to fill Supreme Court vacancies, in the remainder of the president's term. But they also note that the Senate tradition of respecting the rights of the minority also gives them the same opportunities to influence the agenda that Democrats perfected during their years out of power.

"It is clearly going to be harder to get his people through, not easier," said Sen. John Cornyn, R-Texas, a White House ally who also sits on the Judiciary Committee.
Emphasis added. I've been buried in tons of work this weekend, so blogging has been light. I will continue my analysis of the judges issue soon though.

Friday, November 10, 2006 

Post-Election: The Issue of Judges, Part 2

In my previous post about the recent election's effects on the judiciary, I examined the difficulties that President Bush will face getting his judges confirmed. Now, I would like to talk about the judicial nominations. The new Democratic majority will have major effects on who gets nominated and who gets confirmed.

First, let's look at the appeals courts. I don't think many people understand the importance of the appeals courts. For most federal cases, this is the final venue. The Supreme Court controls their own docket and takes fairly few cases. If they don't want to hear your case after the appeals court has ruled, you're probably stuck. That's why it's important to have a strong bench of appellate judges.

The president is going to run into a problem here (and he's run into it before). The appeals courts are just not high profile in the eyes of the general public. Finding a legal layperson who can name an appeals court judge is a tough task. The Democrats (and Republicans) have used this in the past to block and delay these nominees. It took the Gang of 14 deal and the previous mess to get the public's attention focused on this issue last time around.

History does love to repeat itself. I believe that the Democrats will stall as many nominees as possible. The ones who are obviously conservative will be blocked outright. The Democrats have a shot at getting back the White House in 2008. If the Senate Democrats can delay the president's judges as long as possible, the new Democratic president will get to fill many of those vacancies. With the ideological balance on the appeals courts hanging in balance, the Democrats have every reason to run out the clock.

President Bush currently has some stalled appeals court nominees waiting for confirmation. As painful as it is for me to say, I think that most of them should be withdrawn. I'm especially pained to say this for Michael Wallace, who I think was unfairly railroaded by some very petty people involved with the ABA. However, I think that Peter Keisler is worth fighting for and can win confirmation. He's a Yale Law grad, a Bork clerk, a Kennedy clerk, and worked in both private practice and for the government in high profile jobs. He's incredibly qualified and deserves the full support of the Senate Republicans.

Confirmation of appeals court nominees can be greatly assisted by the Senate Republicans and the president. However, they cannot repeat their behavior from the previous six years. The Senate Republicans specifically have been sorely lacking in their support of judicial nominees. That may change with Frist leaving the leadership (he certainly won't be missed by me). Also, that may change with the new Republican minority being scared to death about what happened Tuesday. Hopefully, it will be a wake up call, especially on this issue.

I strongly agree with one of the points that Ed Whelan made in his recent article on judges...
More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum.
Judges are a winning issue for conservatives. But they can only win on the issue if they actually talk about it. They didn't do that during this election cycle, much to my chagrin. If the new leadership makes judges one of their centerpiece issues, they may be able to push through at least some of the conservative appeals court nominees. They must fight for them though. They have to make the case publicly for these judges and hammer on the issue so much that the nightly news has to talk about it.

If the Republicans are not willing to fight for these conservative nominees, then there is no reason for the president to nominate conservatives. He would be better off nominating squishy judges like Kennedy. They could win confirmation. At the very least, they may get it right half the time. Their confirmations would also prevent a Democratic president in 2008 from filling those vacancies with liberals. If the Republicans aren't willing to fight on this issue, the possibility of a Democratic president is greatly increased.

The next post in this series will discuss the storm of hellfire that we'll see if there is a Supreme Court vacancy. I'll try to figure out who will be nominated and who could be confirmed.

Thursday, November 09, 2006 

Legally Defining Beer

I stumbled across an interesting section of a Civil Rights Act case tonight. It's Adams v Fazzio Real Estate Co., 268 F. Supp. 630. The case deals with whether or not a bowling alley with a snack bar is a place of public accommodation under the Civil Rights Act.

Under Section 201 of the Act, a place of public accommodation includes "any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection." Basically, if you have a big business/venue with a smaller, public accommodation qualifying business inside of it, then the whole larger business is considered a place of public accommodation. Here, the court is trying to determine if a snack bar is covered under the Act as a place of public accommodation, which would then make the bowling alley covered. Got it?

The defendant tries to claim that the snack bar is not similar to "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises" because of its beer sales...
In essence, Fazzio's argument comes to this: The refreshment counter is not a lunch counter because it sells more beer than food. Beer is not food. When food and beer are sold together, but a greater dollar volume of beer is sold than food, the seller is not principally engaged in the sale of food. n8
The footnote contains some of my favorite language from a court. This is Judge Rubin of the District Court for the Eastern District of Louisiana...
The plaintiff argues that beer is food, citing dictionary definitions, a pamphlet entitled "Beer as an Adjunct in Low-Sodium Diets," the Food, Drug and Cosmetic Act, 21 U.S.C.A. § 321(f); and cases applying that statute in which beer was treated as adulterated food within its terms; and various state court decisions in other contests. It is not necessary to decide here whether or not beer is food within the meaning of the Civil Rights Act of 1964, but the Cuevas case is persuasive on that point. In addition, what is "food" within the meaning of one law is not necessarily "food" within the meaning of another. Even as one man's meat is another man's poison, one man's intoxicant may be another man's food. And vice versa.
Amen to that, Judge Rubin.


Post-Election: The Issue of Judges, Part 1

With today's announcement that the Senate will be going Democratic, I believe that President Bush will be severely hamstringed on judicial nominations. Senator Leahy will be the chairman of the Judiciary Committee. He will set the agenda, the calendar, and the tone of the next two years. Leahy may come across as the kindly but doddering grandfather from the Werther's Original commercials. That is not the case. He's as tough and ideological as Ted Kennedy but without the bombastic style or poor driving record. In light of this power shift in the Senate, I believe that Bush will not be able to get many solid conservatives onto the federal bench, espcially the Court.

This has been a topic of much conversation online today. Recently, a few of us on the web were engaged in our favorite, vulturine past time of Supreme Court vacancy watching. That discussion seems much more interesting post-election, since the playing field has changed significantly. In order to examine this issue fully, I'll be hammering out a series of posts on the topic, examining articles, blog posts, and any demented notions that materialize in my brain. The first article I would like to examine is Ed Whelan's piece in the National Review. Whelan is fairly upbeat, stating that solid judges and Justices can still be confirmed in a Democratic-controlled Senate...
Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate -— Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.
As I read that, my first thought was "well, a lot has changed." Whelan acknowledges that in his next paragraph. The Democratic Party then is not the same as the Democratic Party today. Beyond that, the Thomas confirmation was not without consequences within the Democratic Party. Some of the Democrats who voted for Thomas, like Alan Dixon and David Boren, lost their Senate seats because of it. No one is playing around on this issue. The federal judiciary is high stakes.

Whelan believes that the information age gives the Republicans an advantage...
Opponents can't rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won't go unanswered.
There is definitely some truth to this. The Internet news sites, blogs, cable news, and interest groups can all provide counterpoints to gross distortions of a nominee's record. There will be a rallying in defense of the nominee, but will that really be enough?

Whelan also discusses the diversity card, which Bush has yet to play (unless you count Miers). Sure, this does provide some support that may have been lacking otherwise. Justice Thomas got a lot of support that a white nominee probably would not have gotten. But again, will that really be enough?

Whelan comments on Democrats who voted for Alito, conservative Democrats, and Democratic Senators facing 08 reelection in fairly conservative states. He believes that there will be sufficient pressure on these folks to vote to confirm. All of these points have merit, but I think that they must be viewed the proper, contemporary perspective. The Democrats have a slim majority in the Senate. There will be a huge amount of party pressure for them to use that power to block another Alito or even a Roberts. I think that overrides the Internet counteroffensive, diversity aspect, and the conservative Democrat aspect. For instance...
Senator-Elect Casey of Pennsylvania is an eighth Democrat whom the White House could reasonably look to for a "yes" vote on confirmation. Casey might as well dance on the grave of his father (a hero of mine) if he would vote against a nominee who could provide the decisive vote to restore abortion policy to the democratic processes.
My response to that is "hit the music." The Democrats are not going to let the Court go solidly conservative if they have the votes. No way.

About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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