Duke law dean David Levi, who served as Chief United States District Judge for the Eastern District of California prior to his appointment as dean in 2007, has an article in yesterday’s National Law Journal on Chief Judge John Roll of the District of Arizona. Judge Roll was shot and killed as he stood in line to see Congresswoman Gabrielle Giffords in a shopping center parking lot in Tucson a year ago. Levi uses the instance as an example of the informal relations between judges and legislators, which he argues is “the every day job of making democracy work.”
I'm late to the fan club of Downton Abbey, the English TV costume-drama that initially premiered in the U.K. in September 2010. Later this month, the show will begin its second season here in the U.S. under the "PBS-Masterpiece Classic" label. I couldn't help but think that actor Hugh Bonneville might be a good candidate for a leading role in a film about the Supreme Court.
The September 29, 2011 issue of the New York Review of Books included this interview with Judge Richard Posner. Eric Segall (Georgia State) conducted the interview, which ran under the headline, "The Court: A Talk with Richard Posner." Here is an excerpt:
EJS: Hasn’t the nomination process become a total farce? At her confirmation hearing, Justice Sonia Sotomayor said repeatedly that she would decide hard cases based on the law, and John Roberts made the infamous analogy to the judge as an umpire.
RP: I have made fun of Roberts about the umpire thing but I don’t blame either of them because the confirmation hearings are not for real. At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law. Sometime later I received the printed report of the confirmation hearing, and my answer—my nuanced answer—had been changed (without notice to me) to yes, judges should just apply the law and not make the law.
EJS: You told the truth. Why can’t they now?
As I said, judicial appointments were less controversial in those days. * * *
EJS: I think you wrote to me that the nominees should have to answer questions about specific issues and that we should do away with the hearings altogether.
RP: The senators do a very poor job at judicial confirmation hearings. It is amazing to me that no senator took Roberts up on his umpire remark. Fifteen of them were sitting there and they let the remark pass unchallenged. I think the problem is that they are given questions to ask by their staff. They read the questions to the nominee but since they don’t really know what is going on they can’t ask a follow-up question.
EJS: How could Justice Thomas get confirmed after he said under oath that he had never discussed Roe v. Wade with anyone is his life?
RP: The problem is that if the nominee says, “I’d be lying to you if I said I didn’t have a preliminary judgment,” he is accusing his predecessors of having lied, right? It is very tricky. The problem is that we have a political system in which the definition of a gaffe is telling the truth.
Judge Posner has a knack for telling the truth, even when it is not very attractive. It's a great interview.
Goodwin Liu, the University of California Berkeley law professor whose nomination to the 9th circuit languished due to Republican opposition, was confirmed as the newest member of the California Supreme Court on Wednesday. In many ways, Governor Brown's appointment achieved the same goal that Senate Republicans sought to prevent: it set up Liu with the experience necessary to make him a credible Democratic nominee to the United States Supreme Court. In addition, it wil give him a big voice in the development of law in America's most populous state - he will be one of seven voices on the Cal Supremes (rather than one of - how many...29?... members of the Ninth Circuit.)
Now he just needs Obama to get another shot at appointing a justice.
The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004-06, when Sotomayor was on the Second Circuit Court of Appeals, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.
I have a couple of reactions when I first read a draft of this paper -- one was that I'm not entirely convinced that publication rates and number of published pages are so much measures of quality as measures of ego-centrism. (I would also imagine that length of opinions is strongly correlated with circuit -- I'd imagine that the DC Circuit opinions are, on average, much longer than, say, the Fourth Circuit. Of course the authors take circuit into account towards the end of the paper.) To put this point into the context of legal academics -- how much weight would we give to an evaluation of a faculty candidate based on the number of pages she produced? Maybe some, but I think we'd be a lot more concerned with an assessment of quality. My second reaction was that I really need to perform a thorough parallel study for some of my antebellum judges to see how their "reputations" travel.
For those of you who may have missed it, check out Judge Martin Sheehan's decision in Kissel v Schwartz in Kentucky. The decision is extremely short and certainly worth a read for a quick dose of humor.
As I mentioned, I am teaching a Supreme Court seminar this Fall. For one assignment, students write a cert pool memo on a pending petition, and then conference in groups of nine to decide the petitions. As one of these petitions, I selected an interesting Establishment Clause petition.
Might a witness's post on a judge's Facebook page, wishing the judge a happy birthday, constitute an ex parte communication? The South Dakota Supreme Court addressed that issue in an opinion handed down this week. You'll find the opinion here.
While there I stopped by the U.S. Consulate where I had interned as an undergraduate a decade earlier. The Consulate serves as the Strasbourg Office of the U.S. Permanent Observer to the Council of Europe and as such follows its proceedings, including those of the ECHR. The Consul General, an American-trained attorney, introduced me to her interns and asked me to tell them what things an American legal audience might be interested in learning about the ECHR.
I suggested that, for starters, I would personally be interested in learning about the jurists' backgrounds, i.e. his/her legal training, prior judicial service, and political and jurisprudential commitments.
"Why would the identity and background of the adjudicator matter?" I attempted to elaborate the problem of vagueness in construction and the more than occasional interstitial lawmaking in which judges may necessarily engage. I explained too that my suggestion was not making any normative claim about the way judges ought to judge, just a descriptive one. No good. She dismissively snapped: C'est un truc américain. Roughly translated: "that's an American thing."
The irony of the exchange still amuses me. I occasionally use the example when talking with students about interpretation and legal culture. In the United States, I am considered a formalist, but in the land that exported Derrida and critical theory my suggestion branded me a rank hyperrealist!
It is my sense that the dominant official legal discourse in France remains a variety of formalism, where judging is talked about more like a deductive science proceeding apodictically from the Code’s premises to a legal ruling. My colleague Chaim Saiman recently directed me to Mitchel Lasser’s interesting 1998 Yale Law Journal article arguing there is an unofficial discourse about the role of judges in mainstream French academic doctrine and in judicial magistrat argumentation that does admit gaps in legislative coverage and a discretionary judicial role. Either the French intern didn’t get the memo or the message is not made clear in the classroom.
My interest in judicial selection was what had brought me to Strasbourg. It is my prediction that the judicial selection processes for the COE's ECHR and the EU's European Court of Justice will grow increasingly contested as the prevailing official portrayal of judging changes and the public recognizes judging for what it is. The calls of EU parliament members for greater democratic participation in the ECJ appointment process suggest that day may not be far away.
Many thanks to the Faculty Lounge for having me guest blog this month.
In late June, the SCOTUS handed down Stern v. Marshall, its most recent decision to touch on Article III, legislative courts and the increasingly complicated world of bankruptcy adjudication. Congress could greatly simplify this area by just giving bankruptcy judges Article III tenure. Many of the constitutional complications would simply disappear (well, except perhaps that pesky Appointments Clause issue) and bankruptcy could be streamlined. So why not give bankruptcy judges Article III tenure? We could even make the judges PAS appointees.
The last time that was seriously tried in Congress, the proposal was killed by the political opposition. Who were the chief opponents of Article III tenure for bankruptcy judges? It wasn't Congress, but the Article III judiciary itself.
One of the arguments offered against tenure was that so enlarging the Article III judiciary would diminish the prestige of individual membership in the Club. That diminished prestige would, like flagging judicial compensation, make it more difficult to attract the best legal talent to the federal bench in the future.
Assuming, arguendo, we ought to pursue a certain level of judicial prestige as a recruitment incentive, is minimizing the growth in the size of the judiciary the best way to do it and what is the background level of prestige that ought to be maintained?
Prestige (ill defined in the marketing literature) seems to me to be a subjective reaction elicited from others in response to the perceived status of a position, product, etc., that one usually associates with being elite (e.g. high quality and possibly scarce in supply). That suggests we need to know who the relevant "prestige" community intended to have this reaction is. If the goal is to assure effective recruitment of well-qualified candidates to be federal judges, then presumably the target market should be peers of federal judges who are talented enough to do the job.
But who is that relevant community? Partners at (especially large) law firms, federal legislators, officers in the executive branch, state judges, law professors, the practicing bar generally, the legal press and media that will transmit the message to these groups? Those groups have grown significantly over time. What year should form the baseline ratio of judges to lawyers that maintains the requisite prestige?
One could always aim to increase federal judicial prestige by increasing the number of lawyers to judges. That may increase the prestige component of federal judicial "compensation."
But if we were to eliminate the initial stipulation that prestige ought to be something we pursue, would it just be better to compensate judges with other perks of office, e.g. better compensation (which I suppose might in turn have some positive effect on prestige)? Do we really want to encourage recruitment of judges who seek the position, in not insignificant part according to the prestige rationale, for the fawning of others?
The New York Times features a story today about the rapid pace of resigning state court judges due to frozen judicial pay:
There is perhaps no more fitting finale to a long legal career than a judgeship. Ascending the bench after years appearing before it can bring power, respect, personal satisfaction, reasonable hours and, often, free parking. There have traditionally been few steps beyond: Retirement. Or death....
Now, for the first time in memory, judges are leaving the bench in relatively large numbers — not to retire, but to return to being practicing lawyers. Turnover in New York has increased rapidly in the last few years: nearly 1 in 10 judges are now leaving annually, a new study shows.
I admit that I am torn about this issue. On the one hand, it seems ridiculous that judges with decades of experience often make less than first-year associates and law professors. Surely their level of dedication and expertise deserve some more financial reward, right? With the current situation, we lose our best judges due to financial pressures. We don't want to end up with a system in which only the rich can afford to become judges.
On the other hand, however, with legal employment at a standstill, with the economy in a ditch, and funding scarce, it's hard to justify substantive raises for the judiciary, deserving or not. It's hard to feel sorry for the NY judge in the article who had to sell her "summer home in the Hamptons" to continue to serve in the judiciary when unemployment is so high and prospects so dim in the legal profession.
The second day of the AALS workshop on "Women Rethinking Equality" featured luncheon addresses by legal historians Kenneth Mack (Harvard) and Tomiko Brown-Nagin (UVa). The theme was "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy."
Professor Mack spoke about civil rights lawyer Pauli Murray (picture at right) and her development of a "Jane Crow" theory of gender discrimination. Professor Mack is completing a book entitled Representing the Race: Creating the Civil Rights Lawyer, 1920-1955, to be published by Harvard University Press.
Professor Brown-Nagin shared her work on Constance Baker Motley, the civil rights lawyer, judge, and government leader. In her public remarks, Judge Motley never acknowledged that she had experienced gender discrimination. Professor Brown-Nagin's work with Judge Motley's private papers reveal the Judge's awareness of gender inequality and its deleterious effects. Professor Brown-Nagin is working on a biography of Judge Motley.
In the film clip below, Judge Motley talks about how she first became interested in the law.
I'm interested in these two historical figures and the work of these two legal historians. Looking forward to reading both forthcoming books!
Duke Law School has just established a new Center for Judicial Studies, the brain-child of Dean David Levi, who served as Chief United States District Judge for the Eastern District of California prior to his appointment as dean in 2007. A core component of the center is a new master’s program in judicial studies, which will be open to an inaugural class of 10 to 15 judges entering in summer 2012. The program will examine the history, institutions, and processes that shape the judiciary and affect judicial decision-making.
The part I find most exciting, however, is the center’s intended role as an incubator for innovative scholarly research on the judiciary, under the direction of my colleague Jack Knight, a professor of political science and law at Duke University and a renowned expert in the study of judicial institutions. And this is probably the part that most interests you, too (or, at least, most appeals to your self-interest).
The center will host academic conferences on topics related to judging and judicial institutional design. The center also will fund graduate fellows and visiting scholars who undertake original research projects with special relevance to the judiciary. A web-based journal is planned to disseminate research on the judiciary, report on conference proceedings, and provide a forum for discussion and comment. So, if you’re interested in the judiciary, the Center for Judicial Studies is interested in you.
Berkeley Law Professor Goodwin Liu has formally withdrawn from consideration as a Ninth Circuit nominee. He did so by requesting that President Obama withdraw his nomination. Liu, a former Rhodes Scholar who (notwithstanding this particular burp) may yet find his way onto the Supreme Court, has been the lightning rod for criticism among the conservative court-watching set. I, for one, was wondering if he'd get a recess appointment a la Bill Pryor.
I guess that's not happening. (There is, however, a push to make a recess appointment of Elizabeth Warren for chief of the Consumer Protection Financial Bureau.)
Amidst the confirmation controversy over Berkeley Law Professor Goodwin Liu, you might be interested in his Questionnaire for the Senate Judiciary Committee. It is here. The Questionnaire has an extensive list of his publications beginning at page 8. The Questionnaire also has links to many of Professor Liu's articles and speeches.
The Senate Judiciary Committee's webpage with materials for other nominees in the 112th Congress is here.
Justice Prosser David Prosser, of the Wisconsin Supreme Court, is up for reelection. But according to the NYT, the race has turned into a referendum on Governor Scott Walker and his union-busting efforts. That really irks Justice Prosser and he made the following comments according to the Times:
“I feel like the victim of a drive-by shooting,” Justice Prosser, 68, said in an interview in which he described his record on the court as moderate. “Here I am, I’m walking along, I should win this race going away. But I mean, not if people aren’t thinking about what they’re doing.”
A couple of years ago in a post titled The Coming Judicial Clerkship Application Crush I suggested - accurately, as it turned out - that the economic crisis would cause a surge in judicial clerkship applications among the most highly credentialed law students. Federal clerkships have long been highly sought positions, but all evidence suggests that the rise in applications has made them even more difficult to secure.
That 2009 crush continued and only increased this past fall according to this report. Now the question is whether things will ease up now that we see a soft bounce in entry level associate hiring. My prediction is: just a little. If that comes to pass, it'll be good news for students at not-quite-super-elite national schools and strong regionals.