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Friday, April 27, 2007 

McCain's Kind of Justice

Keeping with my theme today, I'm taking yet another break (this time from the painfully dull Turner cable TV cases) to talk about another presidential wannabe and the Supreme Court. Prof. Althouse took part in a conference call with Senator John McCain today. She asked the following question and got the following response...
... Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."
Emphasis added. If you are a Republican presidential candidate, the first half of that answer is mandatory: strict construction (though I'm not exactly sure that that phrase really means anything anymore), won't legislate from the bench, yadda yadda yadda. The bold part caught Prof. Althouse's attention (and mine too). McCain wants someone who has military and/or private sector experience. Interesting. This isn't out of the ordinary, though. President Clinton originally wanted to name a politician to the Court. That obviously didn't pan out (and is slightly different than what McCain was proposing), but the instinct to look beyond the bench isn't all that odd.

Who could McCain pick? Well, there are a few people that immediately spring to mind. J. Michael Luttig is a former appeals court judge, legal conservative icon, and currently general counsel of Boeing. He's had an amazing career and is still in his 50s. Luttig was the first person that popped into my head.

Other options: Larry Thompson, former deputy Attorney General and current general counsel to PepsiCo. Christopher Cox, head of the SEC, former Congressman, and co-founder of Context Corp. Lindsey Graham, Senator, military service in the JAG corps, former appellate judge on the Air Force Court of Criminal Appeals, and open McCain supporter.

I'm sure I'm missing a ton of possible nominees that fit the McCain criteria. These were just the names I could come up with in about five minutes of thinking and Wiki'ing. The most acceptable of the list is Luttig. He would actually be a stellar pick and make me dislike McCain much less than I do now.

I just read the Scott v. Harris opinion. It is really strange that the court, of all the cases that it could have accepted, granted this one with such a trivial outcome. Had the case went to jury trial, it is clear that the cop would have been exonerated. (And if he hadn't, let the appeals begin.) So why would they accept this case and consider this fairly trivial question? Why not just let it ride out and accept a more important case? Why leave it to the Supreme court to weigh incomplete evidence and see if, maybe, this is enough evidence to just jump to a conclusion?

And most importantly, why am I not studying for my Lasers exam, which is in 25 minutes?


This is the first news I've heard that Scott v Harris was handed down. I just printed it on Westlaw and will be reading it shortly. Hopefully I will have some answers for you this afternoon. I could probably answer you now if I knew more about the case. I know the question presented, but not much about the specific facts.

I just got out of my Media Law exam. I've never used the phrase "compelling national security interests" more often. I used it so much that I think I should get an honorary position in the Bush DoJ.

I just noticed something. You take exams in classes named "Lasers." I take exams in classes named "Insurance." I really picked the wrong career track.

Okay, I'm finally done with the case. I don't see this as a trivial outcome at all. It creates a new bright line rule about the 4th Amendment: A police officer's attempt to end a high speed chase that threatens innocent bystanders does not violate the 4th Am, even when the fleeing driver is at risk of serious injury. The concurring Justices don't seem to agree on the per se rule part though.

Whenever there is a pursuit that ends in an injury like this, there's talk of whether the chase is proper, what police procedure should be, etc. These lawsuits, though not exactly common, can be costly. It seems like a timely and important issue.

As for why the Court granted cert in this particular case, it's hard to say for sure. One of the perks of controlling your own docket means never having to really explain yourself. It was probably a combination of a pressing Constitutional issue, interesting facts, and the appeals court being quite wrong.

The biggest reason for the Court taking this case was to tell the lower courts that this was not a violation of the 4th Am. It doesn't really matter (well, it does but you know what I mean) if the jury exonerated the cop here. What matters is that there is precedent saying that this situation gives rise to a 1983 civil rights action. It's the broader effect that counts. The Court wanted to shut the door on that, because #1 it wasn't a Constitutional violation and #2 not every jury is going to be so kind to the police officer.

At least that's my reading of it. I'm not really Mr. 4th Amendment though. It's not my area.

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