Eminent Domain

Relax, fella. You need a rest, guy.

Considering that the election was over a month ago, I should probably finish this four-part series of posts. This is really the post that I dreaded writing. I'm going to try to figure out what President Bush is going to do about judicial nominations in the next two years. I have a hard time reading W sometimes, but I'll give it a shot.

On November 15th, Bush sent this list of judicial nominations back to the Senate. Keisler, Haynes, Boyle, Wallace, and the rest of the gang are all there. These are the people that Bush wants on the bench. The president is big on "his people." He's going to keep sending those names to the Senate until something substantive happens. Bush got no help from the outgoing Republican Senate on the "controversial" nominees in this group, and I doubt that Judiciary Chairman Leahy is going to be kind to them.

While it's nice to see that Bush is loyal to his nominees, I think that there are going to be major problems if this continues. The vacancies are starting to pile up, especially on the appeals courts. The Fourth Circuit will have our vacancies once Chief Judge Wilkins takes senior status. Judge Widener said that he would take senior status once his replacement (Haynes) was confirmed. Widener is 83 years old. Nixon appointed him. Not to be morbid but the "big senior status in the sky" might take Widener before Haynes is confirmed. Bush needs to realize that those vacancies need to be filled by conservative judges as soon as possible. If those seats stay empty and a Democrat wins the White House, the once uber conservative Fourth Circuit will look very different.

It's not just the Fourth Circuit either. The Third Circuit has three vacancies. On a court as tight as the Third Circuit, three vacancies is a huge number. There is currently only one nominee. This is unacceptable. The problem is that I don't think Bush and/or his nomination crew think of the judiciary this way. People like me are doing head counts of judges, watching for potential shifts. While Bush wants to get his people on the courts, it doesn't seem like the administration is working hard to fill all of the vacancies. They've become stalled in fights over "controversial" nominees. The Democrats are more than willing to run out the clock, blocking these nominees and keeping the administration fighting unwinnable battles.

Wallace withdrew his nomination. That's a pure class move on his part. He knows that he got railroaded by the ABA, but he also knows that his nomination isn't going anywhere. I'm hoping that the other "fatal" nominees take Wallace's lead, because Bush isn't going to pull them on his own. He didn't pull Miers until she asked him. While a federal judgeship is a sweet gig, some of these nominees need to put that aside and take one for the team and step aside.

I have strong feelings of dread for the next two years and the federal courts. I don't think Bush is thinking about the courts strategically enough. I understand that there are other things going on in the world that take his attention. However if he wants to secure a lasting domestic legacy, he needs to act decisively and intelligently on his federal court nominations. If he doesn't, his second term will be looked back on as one of the biggest blown chances to shore up the federal courts.

From today's Examiner...

NASCAR driver is rebuked for Bush sticker

It's no secret that NASCAR drivers skew Republican, which is fine with the Federal Election Commission, just so long as they don’t display their preferences where anyone can see them.

In a decision announced Tuesday, the FEC sent an "admonishment letter" to Kirk Shelmerdine Racing. Kirk Shelmerdine, a former pit boss for the late Dale Earnhardt, has been an unsuccessful, underfunded and undersponsored driver. He has never finished higher than 26th.

So back in 2004, in a move perhaps designed to draw some attention to his car, he placed a "Bush-Cheney '04" decal on his rear quarter panel, which was otherwise unencumbered by advertising. Democratic activist Sydnor Thompson complained to the FEC, and the agency found that Shelmerdine "may have made an unreported independent expenditure or a prohibited corporate expenditure."

Former commissioner Bradley Smith dissented in one of the case's early votes and blogged about the result this week. He has written that in reference to the FEC's $250 expenditure limit, "evidence is strong that the market value of Shelmerdine's rear quarter panel was approximately $0, give or take $249."

Thank God that the full power of the federal government can halt dangerous activities such as these. First it's decals, then what? Full-sized bumper stickers? I shudder to think.

This AP article picks up on a trend that many people have been noticing: the Supreme Court Justices have been taking a more active, public role lately...

Lately, however, some members of the court have been popping up in unusual places - including network television news programs - and talking about more than just the law.

For an institution that has kept the media at a comfortable distance for much of its existence, the Supreme Court's increasingly public face is astonishing, said University of Chicago law professor Dennis Hutchinson, who served as a law clerk for Justices Byron White and William Douglas.

"More and more, the justices are spending time talking off the bench informally to reporters, on the record, off the record, in public, on tape, on film," Hutchinson said.

The article cites some examples...

Justices Antonin Scalia and Stephen Breyer recently debated their competing views of the Constitution. Breyer and retired Justice Sandra Day O'Connor have talked publicly and repeatedly about threats to judicial independence. Justice Samuel Alito proudly affirmed his membership in the conservative Federalist Society, speaking in a packed ballroom at its recent convention.

Perhaps most noteworthy, though, has been the media-friendly attitude adoped by new Chief Justice John Roberts, in contrast to his predecessor William Rehnquist. Roberts recently was featured on ABC News' Nightline discussing both his view of the court and his son Jack's Spiderman imitation at Roberts' introduction by President Bush.

"Roberts is putting a smiley face in the center chair," said Hutchinson, who recalled earlier eras in which chief justices rigorously avoided the press and looked askance at their colleagues who consented to the rare interview.

A few years back, Justice Scalia said something at one of his public events. It was something along the lines of "my kids tell me to do this... that it's harder to be demonized if you talk to the public." I'm sure I butchered what he said, but that's the main point. I think that Roberts especially sees how important this is. The Court is a weird, mystical body to most people. They hand down decisions that affect everyone in the country (to some extent), yet few people can even name more than two Justices.

I think that 5-4 decisions, especially like the two recent Ten Commandments cases that came down differently, make the general public look at the Court with a critical eye. Maybe this new public Court is an effort to educate the citizenry about what the Court does and why. Or maybe they just like giving speeches and interviews now.

I spotted this in my mom's issue of Fine Tuning magazine (the PBS magazine)...

THE SUPREME COURT
The first television series to fully profile the inner workings of the court; exploring the history, impact, and drama of America's highest court.

This show will premiere on Wednesday, January 31st. It looks interesting and will hopefully be an insightful look at the Court. It's PBS, so I'm not holding out hope.

I have been chastised for my lack of posting lately. I'm sorry. I have been busy with a lot of holiday stuff lately, but I promise that I will have substantive posts very, very soon. If I don't, feel free to punch me on sight.

I'm finally back from fabulous Las Vegas, Nevada. I have about a week of legal news to catch up on, but I plan on posting substantively as soon as possible. I have a draft of the final installment of my post-election judges series that I should have posted within a day or two. From there, who knows? Stay tuned.

Judge Richard Posner has always been something of a trailblazer. He put economics into law, he started a blog (something odd for a sitting judge), and now he's got a digital avatar in Second Life. Second Life is a virtual world with its own economy and a million other things going on that I can't understand. My geek meter only goes so high.

Judge Posner dropped into the digital world to answer questions about his recent book Not a Suicide Pact. Mark Moller of Cato at Liberty has a link to the transcript. There are some pretty good questions and interesting responses from Posner. This puzzled me a little though...

JRP: I hesitate to draw a sharp line, because I don't know what the outer limit of potential terrorist destructiveness is. It is not unrealistic to fear the possibility of a nuclear attack by terrorists or an even more devastating biological attack. The appropriate preventive measures have to be scaled to the magnitude and probability of the threat.

Suddenly, a large wooden cube materializes in the middle of the auditorium, blocking Judge Posner from the audience-- an apparent griefer attack on the event, or the Judge himself.

JRP: That's an example of the kind of threat that worries me-- a huge box marching through an amphitheatre.

It's good to see that Posner can roll with the punches, or in this case, cubes. In addition to cube attacks, Posner also interacted with a raccoon-suited furry. If you don't know what a furry is, then you don't spend enough time on the internet... or I spend too much. There was also an interesting discussion about parody/satire as well as a fireball attack. The internet is really weird.

One of my correspondents in the People's Republic e-mailed me this cool article from Straight Dope. If you are like me, you are salivating at the thought of a new season of 24, the best show on television starring a guy named Kiefer. If you remember the end of the last season, (SPOILER WARNING) the attorney general ordered federal agents to arrest that slimy President Logan. That sparked a Straight Dope reader to ask, who can actually arrest a sitting president?

Interesting question, isn't it? Now before all you Democratic Underground readers get in heat and start humping your computer screens, I'm not implying that our current president will be in cuffs anytime soon. Keep dreaming. Next time, try running a presidential candidate that's not a fop. Until then, you'll have to deal with W. Anyway, on to the cool law stuff.

The SD Staff correctly points out that the power to arrest is a pretty simple issue. The FBI and the US Marshals (both mentioned in the reader's question) have broad arrest powers that cover just about anything that they reasonably believe is a felony. The real meat of the discuss has to do with presidential immunity. Can you arrest the president? Let's ask the experts...

For example, at a 1998 Senate hearing on the subject chaired by John Ashcroft, professors Freedman and Turley said the president could be criminally indicted and prosecuted (at least under some circumstances); professors Amar and Bloch said he couldn't. Three former federal prosecutors also testified. Two said the president could be prosecuted; one said he couldn't.

Lots of help there. Ask two law professors a question and you're probably going to get three answers.

The Amar/Bloch position is called sequentialism. Basically, they believe that the president first must be impeached and removed from office before being prosecuted. That sort of follows logically. The impeachment process is spelled out in the Constitution. Also, Article I, Section 3, Clause 7 states that an impeached and removed official is still subject to indictment, trial, etc. after removal. The Freedman/Turley crew says "no way." While the sequentialist view is nice and orderly, we haven't followed it in practice. The article points out...

For one thing, few sequentialists argue that the vice president is immune from indictment while in office, and in fact Vice President Spiro Agnew was indicted prior to expiration of his term. In a 2000 survey of other cases of indictment without impeachment, professor Jonathan Turley points out that judges Robert Collins, convicted of bribery, obstruction of justice, among other things, and Harry E. Claiborne, convicted of tax evasion and filing a false financial statement, were incarcerated jurists who continued to receive their salaries in prison. Some accused federal judges have argued the sequentialist position but in every case the courts have ruled against them. Turley observes that "governors, high state officials, federal cabinet officers, and federal judges have been similarly subjected to criminal indictment and trial before removal."

That historical perspective is strengthened with the fact that Article I, Section 6 of the Constitution explicitly gives Senators and Congressmen limited immunity, but the Constitution is mum about the president and VP. If the Framers were handing out immunity clauses and they didn't put one in Article II, I guess the president doesn't get it, right?

The sequentialists fire back with a favorite court room argument: policy. When in doubt, make the public policy argument. Thomas Jefferson was on that side...

"The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?"

Too bad for Jefferson that the Supreme Court wasn't. They went the other way in US v Nixon. The Court said that Nixon was fair game for some subpoena action (absent a national security risk from it).

You shouldn't be shocked that the Office of Legal Counsel (which is basically the president's law firm) believes in the sequentialist position. There's an interesting part of the article about then-Solicitor General Robert Bork adopting the sequentialist view... but only for the president. Agnew got hung out to dry. The article also talks about international law implications. I'd talk about it, but I find international law incredibly boring and... apart from concrete reality.

Anyway, it's a cool article and an interesting Constitutional law question. I owe Erick a beer for the link.

Well, I turned in my last take home exam an hour ago. It feels like a huge weight has been lifted from my shoulders. I still have to submit a final version of a brief, but that should take me less than an hour. The draft is done, so I just have to revise it. After that, I have to pound out the rest of my state bar application. Hopefully, I will be able to hand deliver that tomorrow. That will be another huge weight off of me.

I'm eager to get back into the blogging habit. I've been sort of following the legal news lately, but not nearly as much as usual. I was oh so shocked to see the Supreme Court reverse yet another Judge Reinhardt POS opinion from the Ninth Circuit. That issue has been beaten to death on other blogs so I won't say much else about it.

I should have a few posts up within the next few days. Unfortunately, I will be taking yet another break from blogging this weekend. I have a wedding to attend in Las Vegas. Yeah, poor me. I should be back on Sunday, and then the blogging will resume at its usual pace.

I'm eating my dinner, watching the replay of oral argument for the school race cases on C-SPAN. I've seen it once already this week, but it's good enough to watch again. I was struck by something during this viewing though. C-SPAN has incredibly old pictures of the Supreme Court Justices. Seriously. The picture of Justice Kennedy is at least a decade old. He looks like a little boy. The Scalia and Souter pictures are pretty old too. The Alito and Roberts pictures are fairly recent, but so are the Justices. It's not hard to get a current headshot of these people.

The conspiracy theorist in me says that the Justices are bribing C-SPAN to keep the youthful pictures. Kennedy probably cares enough about his image to do that.

The Twenty-first Amendment to the Constitution was ratified 73 years ago today.

Let the good times roll.

For the record, I am not Prof. Richard Epstein. Yes, I did post a video of Prof. Epstein speaking about a legal topic. This does not mean that Prof. Epstein is personally connected with this blog. Do not e-mail me and think you are communicating with Prof. Epstein. You are not.

We are very different people. He is much smarter than I am and has greater job security. He also wouldn't be spending his time reviewing the latest selection from the Sam Adams Brewery. I'm just a 3L with too much time on his hands.

I just got home from my first exam of the semester. It was... yeah. It was a very challenging exam and I did my best. It's always interesting being at the law school during exam time. You get to watch the entire 1L class running around frantically before their first ever law school exam. It's cute... when you forget that you were there once too. You get to watch normally healthy people eat diets of Pepsi, candy bars, and Subway for two weeks straight. You get to watch all of this excitement. Prof. Dimino had this nice quote on PrawfsBlawg recently...

Students are frantically trying to absorb a semester's worth of information, and professors are frantically trying to come up with an appropriately diabolical fact pattern that will test in a single question each element of a course that fills 1500 casebook pages. Temperatures dropped about 35 degrees in a few hours. Yes, December is upon us.

It's the most wonderful time of the year.

Meanwhile in Washington DC, the Supreme Court heard oral argument today in the two grade school race-based assignment programs. I managed to find a TV with C-SPAN this morning, so I caught the replay of the oral argument audio while I tried to study. My thoughts echo those of Lyle Denniston over at SCOTUS. Justice Kennedy seemed fairly hostile to the programs, reiterating his Equal Protection views in this area. I think that this will be one of the cases that the addition of Alito (and subtraction of O'Connor) will be important. I also think that Kennedy will get assigned the opinion. Roberts will want him to write it as an insurance policy. That will keep all five votes and hold the majority.

I'm sure that there will be a lot of analysis about this in the next day or two. I'll keep my eyes peeled for anything really interesting. I'm going to go relax. I've earned it today.

Tonight's episode of America and the Courts on C-SPAN will feature a panel discussion from Georgetown Law about Massachusetts v EPA. If I can tear myself away from studying age discrimination for an hour, maybe I'll watch it. If not, it's always archived on their website.

Here is a cool video of Professor Richard Epstein of the University of Chicago Law school talking to the Federalist Society Chapter at George Mason. The topic is the takings clause and the Kelo v New London case. Prof. Epstein is an expert on the issue of takings and wrote an amicus brief in the Kelo case. The video is almost an hour long, but it's well worth watching if you are interested in the eminent domain/takings issue.

I had to take a short break from studying to post this. According to SCOTUS, the Supreme Court has decided to hear Morse v Frederick, better known as the Bong Hits 4 Jesus case. Here's some background from SCOTUS...

The case involves an appeal by a high school principal and the school board in Juneau, Alaska, supported by the National School Boards Association and various anti-substance abuse groups. The case tests whether it violates the First Amendment for school officials to bar students from displaying messages promoting the use of illegal substances at school-sponsored activities and whether school officials have immunity to damages lawsuits under civil rights law for disciplining a student for displaying a banner with a slang reference to marijuana.

The student, Joseph Frederick, at the time a senior at Juneau-Douglas High School, was suspended for ten days after holding up a banner at a school-sponsored rally; the banner read "Bong Hits 4 Jesus" -- "bong" is a slang word for the paraphernalia used to smoke marijuana, and "bong hits" is teen slang for smoking pot.

I love the explanations of "bong" and "bong hits" that SCOTUS's Lyle Denniston adds. They have a Principal Skinner sort of vibe to them.

The case has received a lot of attention for a few reasons. First, it's a pretty interesting First Amendment-civil rights issue. The Ninth Circuit sided with the student, saying that the school board violated the student's First Amendment rights by suspending him. Second, the phrase "Bong Hits 4 Jesus" just sounds hilariously stupid. It's going to stick in your head long after you first read it. And third, Ken Starr is heavily involved in this case on the side of the school district. Yes, that Ken Starr. I'm guessing that many people only know Starr from his Clinton chasing days. Before that, Starr was a federal judge on the DC Circuit Court of Appeals and Solicitor General under Bush 41. He's no stranger to the Supreme Court. It will be interesting to see him in action again. Hopefully all that time in the sun as dean of Pepperdine's law school hasn't made him too rusty.