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Souter to retire
April 30, 2009 7:29 PM   Subscribe

NPR is reporting that Supreme Court Justice David Souter will retire at the end of the current Court term, pending the approval of a replacement to be appointed by President Obama. Appointed by President George H.W. Bush in 1990, Souter's replacement will presumably maintain the balance of ascribed "left-leaning" to "right-leaning" justices at 4-5, but will increase the number of justices on the bench appointed by a Democratic president to 3. At 69, Souter is in fact the youngest of the so-called "left-leaning" justices currently on the bench.
posted by XQUZYPHYR (113 comments total) 5 users marked this as a favorite

 
I think that a better description would be 4-4-1, with the one being Stevens who makes his decisions by tossing a coin.
posted by Chocolate Pickle at 7:33 PM on April 30, 2009


Chocolate Pickle has that right. And Arlen Specter picked the wrong week to stop sniffing glue; he could have been running the GOP this summer if he'd just waited a few days.
posted by gerryblog at 7:36 PM on April 30, 2009


NPR news is breaking this story? That's impressive.
posted by puckish at 7:36 PM on April 30, 2009 [1 favorite]


MSNBC has reported it as well. It was at the tail end of Rachel Maddow's show.
posted by gerryblog at 7:37 PM on April 30, 2009


@Chocolate Pickle. Actually Steven has traditionally been the most liberal/left-meaning member of the court BY FAR. Just some weird blemishes here and there.
posted by grumpster at 7:39 PM on April 30, 2009


4-4-1

Wouldn't that make it 3-5-1?
posted by rakish_yet_centered at 7:40 PM on April 30, 2009


Yeah, Chocolate Pickle meant Kennedy. I didn't read carefully and assumed that was who he said.
posted by gerryblog at 7:42 PM on April 30, 2009


Chocolate Pickle: Stevens flips the coin? You sure you aren't talking about Kennedy?
posted by buddha9090 at 7:43 PM on April 30, 2009


And yet Scalia is still there. I have to admit, the timing is good - Obama will get to appoint a new Justice with only minimal fear of being roadblocked by the speedbump Republicans in the Senate.
posted by deadmessenger at 7:44 PM on April 30, 2009


Grumble. You're right; I meant Kennedy, not Stevens. (I'm not a court watcher.)

This article on MSNBC says "Not so fast."
posted by Chocolate Pickle at 7:45 PM on April 30, 2009


It's a goddamn shame Scalia is the evil Yoda who will live to be like 6000 years old.
posted by The Straightener at 7:47 PM on April 30, 2009 [10 favorites]


That MSNBC article is from earlier today and it has since been confirmed apparently.

Drudge broke the siren out but last I checked he switched it to a picture of Obama with an airhorn. Lame.
posted by palidor at 7:51 PM on April 30, 2009


Oh I guess he got rid of that too. Asshole.
posted by palidor at 7:53 PM on April 30, 2009


I used to hate Scalia, too, and still often do, but the man is the best writer on the court, which is nice for me (a law student) and a lot of times he'll join with Ginsburg unexpectedly to do things like ruling that police have to have probable cause that you have a weapon within arm's reach in order to search your car, as he did last week.

So yeah, it's easy to paint him as the boogieman of SCOTUS, and he's done a lot to earn it, but he's a lot more interesting than that, too.
posted by Navelgazer at 7:57 PM on April 30, 2009 [5 favorites]


Kennedy isn't "predictable" because he's neither a knee-jerk partisan nor an ideologue. As far as I'm concerned, this is something to respect, not ridicule.
posted by aquafortis at 8:01 PM on April 30, 2009


Obama appoints a 14-year old Doogie Houser type.
posted by Ironmouth at 8:05 PM on April 30, 2009 [1 favorite]


Obama appoints a 14-year old Doogie Houser type.

As long as she's paid her taxes.
posted by gerryblog at 8:06 PM on April 30, 2009 [5 favorites]


I predit Obama will appoint 5 Supreme Court justices in 8 years. 3 in 4.
posted by lunit at 8:11 PM on April 30, 2009


Anyone have an idea of judicial candidates who are on the short list?
posted by zerobyproxy at 8:11 PM on April 30, 2009


Scalia is good for the Court. You may not like 98% of his opinions (and let's be honest, most of this is policy rather than legal disagreement), but in that 2% where he writes an opinion you agree with you get a well-researched, well-written, often fiery argument. Even if you don't agree with a single opinion Scalia has ever written, his presence on the court forces the other justices to reason and write more carefully in order to counteract his own writing.

Kennedy is also good for the court (as was O'Connor in her day) - it's great to have someone there that other justices need to convince. Kennedy is moderate from a political standpoint, but his wishy-washy reputation persists because he's simply not as forceful as Scalia (or even Stevens in decades past).
posted by Inspector.Gadget at 8:11 PM on April 30, 2009 [4 favorites]


I know it won't happen, but I would love it if Obama went outside the traditional judicial pool and nominated Al Gore. It would be fitting for a man who missed out on being president in part because of a Supreme Court decision would wind up on the court. He can still do his slideshow between sessions. At 61, he's not super young, but I'll take all I can get.
posted by Pater Aletheias at 8:12 PM on April 30, 2009 [9 favorites]


Man I want to argue about Scalia SO BAD but you know what? I'm gonna go relax and unwind instead.
posted by facetious at 8:14 PM on April 30, 2009 [3 favorites]


Scalia will be found one day dressed in rubber and hung from the hook on the back of a motel door having accidentally strangled himself while masturbating. But I'm glad he exists. Sorta.
posted by unSane at 8:20 PM on April 30, 2009


I know it won't happen, but I would love it if Obama went outside the traditional judicial pool and nominated Al Gore. It would be fitting for a man who missed out on being president in part because of a Supreme Court decision would wind up on the court. He can still do his slideshow between sessions. At 61, he's not super young, but I'll take all I can get.

Are we just naming politicians we like now? Al Gore never went to law school.
posted by Slap Factory at 8:27 PM on April 30, 2009


unSane: Scalia will be found one day dressed in rubber and hung from the hook on the back of a motel door having accidentally strangled himself while masturbating.

Every once in a while I read something so unpleasant to think about that the shock of it causes my brain to cease functioning for a split second. Then comes the thought "please, brain, don't draw me a picture of what I just read." And then BOOM! there it is in horrifying detail and I want to cry.
posted by Kattullus at 8:31 PM on April 30, 2009 [4 favorites]


Anyone have an idea of judicial candidates who are on the short list?

Some folks have knocked around SG Elaine Kagan's name. I think she'd be a good pick. I think with the senate in the turmoil it's in she'd get confirmed pretty quick. Others might think differently 'cause she's got an ivory tower taint on her or whatever, but I'd be happy to see her make it.
posted by Doublewhiskeycokenoice at 8:34 PM on April 30, 2009


NPR news is breaking this story? That's impressive.

Since Linda Greenhouse's retirement from the Times, I would guess that Nina Totenberg is the best connected reporter covering the Supreme Court, so I don't think this should be too surprising.
posted by HiddenInput at 8:35 PM on April 30, 2009


KAAAAAAAAAAGAAAAAN!
posted by grobstein at 8:37 PM on April 30, 2009


Gore's not a lawyer. He should not be made justice.
posted by Ironmouth at 8:41 PM on April 30, 2009 [1 favorite]


SCOTUSblog has some names.
posted by gerryblog at 8:41 PM on April 30, 2009


Chocolate Pickle has that right. And Arlen Specter picked the wrong week to stop sniffing glue; he could have been running the GOP this summer if he'd just waited a few days.


I think the GOP was just to crazy to realize they need to suck his dick. Plus, it was extremely unlikely that was going to win the republican primary? Where's the fun in running a sinking ship full of lunatics that you're going to be kicked off in 18 months anyway? Keep in mind 200,000 moderates switched parties last year to vote in the Hillary/Obama primary. 200,000. Think about what that would do the people in a position to vote on Specter's future in the party.


Besides he'll have just as much ability fuck with judges, etc as a democrat, and has said he wouldn't be giving up his cloture vote that easily.


Scalia is good for the Court. You may not like 98% of his opinions (and let's be honest, most of this is policy rather than legal disagreement), but in that 2% where he writes an opinion you agree with you get a well-researched, well-written, often fiery argument. Even if you don't agree with a single opinion Scalia has ever written, his presence on the court forces the other justices to reason and write more carefully in order to counteract his own writing.

Yeah, sure some schoolgirls might get strip searched every once in a while, but we get some great writing out of him so it's really a good deal!

Are we just naming politicians we like now? Al Gore never went to law school.

Why limit ourselves to politicians? How about Scarlet Johanson!? She's young and she'll definitely increase interest in what goes on the court!

Actually I'd love to see Lawrence Lessig on the court, but I doubt that would ever happen, he's been pretty caustic lately. I also think the court needs more women.
posted by delmoi at 8:43 PM on April 30, 2009 [1 favorite]


I know it won't happen, but I would love it if Obama went outside the traditional judicial pool and nominated Al Gore. It would be fitting for a man who missed out on being president in part because of a Supreme Court decision would wind up on the court. He can still do his slideshow between sessions. At 61, he's not super young, but I'll take all I can get.

Commentators say there's some appetite for naming a politician. (Of course, they really ought to be a lawyer, too. It's a technical job!) Governors are often mentioned. Deval Patrick's name has come up, but I think he's underqualified and toolly.
posted by grobstein at 8:47 PM on April 30, 2009


Yeah, sure some schoolgirls might get strip searched every once in a while, but we get some great writing out of him so it's really a good deal!

I don't often agree with Scalia, but I appreciate what he does to the Court's argument. By the way I hope you have a lot more snark in reserve:

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

posted by Inspector.Gadget at 8:49 PM on April 30, 2009




I would love it if Obama went outside the traditional judicial pool and nominated Al Gore.

I know this is going to sound crass, but if Obama doesn't nominate a woman I will buy you a house.* I don't think any president will ever return the Supremes to either an all white or all male group again.

* I will not buy you a house
posted by Doublewhiskeycokenoice at 8:52 PM on April 30, 2009


delmoi, I love the idea, but given Obama's RIAA-heavy picks lately, Lessig could only be chosen as a way to say, "See, I'm not totally in the pocket of the DRM freaks."

*scratches chin thoughtfully* Actually, can we spin that somehow?
posted by adipocere at 8:59 PM on April 30, 2009


It's almost certainly going to be a woman and Elena Kagan is the current Solicitor General of the U.S., which is casually known as the 10th justice, putting her in a really good position.
posted by Brandon Blatcher at 8:59 PM on April 30, 2009 [1 favorite]


Since the Simpsons have already been brought up I can't resist linking to a recent skewering of Scalia by publius of Obsidian Wings (formerly of Legal Fiction) for his use of the phrase "foul-mouthed glitteratae from Hollywood," Scalia Yells at Cloud.
posted by Kattullus at 9:01 PM on April 30, 2009


If I had a million dollars?

That wasn't a hit on NPR -- I was just surprised, given all the talk about the news department running a skeleton crew. Hats off to Nina Totenberg? (score one for the radio nerds!)
posted by puckish at 9:03 PM on April 30, 2009 [1 favorite]


There's a Wikipedia page devoted to Obama's SCOTUS candidates.
posted by Poolio at 9:15 PM on April 30, 2009


Scalia would be great to have on the court if it weren't for Thomas and Alito. Just like I think I wouldn't consider Roberts such a tool if he was on a more liberal court.
posted by klangklangston at 9:27 PM on April 30, 2009 [2 favorites]


Two words:
Joe The
no wait, 3 words:
Joe The Plumber
posted by 2sheets at 9:48 PM on April 30, 2009 [2 favorites]


I would like to take this opportunity to address President Obama:

Mr. President, a you are about to face a historic decision that will effect the lives of millions of Americans. The direction that this nation travels hinges upon your ability to select a Supreme Court Justice of exceptional skill and dedication. With that in mind, Mr. President, I would like to humbly submit myself for your consideration as a Justice of the Supreme Court of the United States of America.

My qualifications, Mr. President, speak for themselves. I stand 6'6" tall, which I'm certain all Americans can agree is a sign of personal greatness. I average a respectable 3.71 Favorites per comment on MetaFilter, a feat that no Supreme Court Justice has matched since the Eisenhower administration. My lovemaking technique is widely acclaimed, and my talents with the deadly shuriken are unsurpassed in this or any other nation on Earth.

Mr. President, I offer my services as a Supreme Court Justice not for myself, but for all Americans. You have said that we as Americans cannot walk alone, and I agree with you. Mr. President, I will let America hitch a ride on the back of my moped.

Good night, Mr. President. God bless you, and God bless America.
posted by Parasite Unseen at 10:02 PM on April 30, 2009 [5 favorites]


Others might think differently 'cause she's got an ivory tower taint on her

We've been over this too many times. This kind of misogynstic objectification of women has no place on Metafilter. Kagan is an accomplished woman-- Solicitor General of the United States, former Dean of the Harvard Law School-- and to reduce her to a body part is disgusting and unacceptable. You should be thoroughly ashamed of yourself. Flagged.
posted by dersins at 10:11 PM on April 30, 2009 [16 favorites]


I've heard speculation for a long time that one of the things Hillary wanted was a seat on the court. Think she'll be nominated?
posted by Chocolate Pickle at 10:12 PM on April 30, 2009


No. She already has a pretty good job, and she doesn't have any judicial experience.
posted by ThePinkSuperhero at 10:22 PM on April 30, 2009 [1 favorite]


We've been over this too many times. This kind of misogynstic objectification of women has no place on Metafilter. Kagan is an accomplished woman-- Solicitor General of the United States, former Dean of the Harvard Law School-- and to reduce her to a body part is disgusting and unacceptable. You should be thoroughly ashamed of yourself. Flagged.

Help me out here: is this funnier if you actually flagged it, or not?
posted by grobstein at 10:24 PM on April 30, 2009 [2 favorites]


that's some mighty fine dry humor, dersins.
posted by Justinian at 10:27 PM on April 30, 2009 [1 favorite]


Even if you don't agree with a single opinion Scalia has ever written, his presence on the court forces the other justices to reason and write more carefully in order to counteract his own writing.

Except for Alito, Thomas and Roberts, you might have a good point.
posted by Blazecock Pileon at 10:28 PM on April 30, 2009 [2 favorites]


Hopefully, Clarence Thomas will follow Souter.
posted by minkll at 10:59 PM on April 30, 2009


Following Souter has not exactly been the theme of his careerster.
posted by grobstein at 11:01 PM on April 30, 2009 [1 favorite]


It's Sotomayor or Wood with the smart money on Sotomayor. Kagan is second-in-line and will take either Ginsburg or Steven's spot within two years. Souter knew he was leaving and made it clear to many, including those in the administration who let Kagan know this. She wouldn't have taken the SG gig knowing she'd get promoted without arguing a single case. It was a way to make her next-in-line without putting her on the DC circuit, where she'd have a paper trail of opinions.

I know Deval and Kagan fairly well and adore them both, but Deval will never be on the Court. Kagan scares the living daylights out of me and everyone who knows her. She's that smart. Seriously, she could destroy Scalia without batting an eyebrow and still manage to make people wonder what she really thinks. She's going to be a monster on the court, but she's going to wait for at least a year. Kagan is more than a left-wing Scalia. She's a left-wing Frankfurter and young too. Until then, Justice Sotomayor will be fabulous.
posted by allen.spaulding at 11:06 PM on April 30, 2009 [14 favorites]


She's tan, fit, rested, and a Texan through and through. Harriet Miers gets another chance to shine!
posted by squalor at 11:11 PM on April 30, 2009 [3 favorites]


Al Gore never went to law school.

Sure he did. He just didn't finish. He also dropped out of divinity school, so that's a big +2 from me.

But Hillary would be a far better pick.
posted by rokusan at 11:14 PM on April 30, 2009


Help me out here: is this funnier if you actually flagged it, or not?

Not, because it makes slow readers do a double take.
posted by rokusan at 11:15 PM on April 30, 2009


but the man is the best writer on the court

People really, really need to stop spouting this kneejerk argument as if it had anything to do with actual reality. Scalia is really not a brilliant legal writer; he's an entertaining and glib legal writer, and the two are not the same goddamned thing.

Seriously, FCC v. Fox Television Stations, where Scalia rants about how country folk are prone to be more civilized than their big-city cousins, just came out last frigging week. This is not the time to be talking about Scalia's legal brilliance.

(See also: Scalia's crazy-old-man spouting in Lawrence v. Texas.)
posted by mightygodking at 11:37 PM on April 30, 2009 [13 favorites]


Scalia will be found one day dressed in rubber and hung from the hook on the back of a motel door having accidentally strangled himself while masturbating.

It's funny how often we see the world as a reflection of ourself.
posted by codswallop at 11:57 PM on April 30, 2009


As long as she's paid her taxes.

Tax audits for all public representatives. It should (must) be part of the job qualification process.
posted by five fresh fish at 12:43 AM on May 1, 2009 [2 favorites]


Scalia is really not a brilliant legal writer; he's an entertaining and glib legal writer, and the two are not the same goddamned thing.

Truth. At least once an exam I think to myself something like "No, you fool, Scalia would say it that way! Sure it's cute and clever, but you can't get away with that shit til you're a justice!" Then I refine my argument and make it logical instead of catchy.

God, I need to get back to studying.
posted by PhatLobley at 1:22 AM on May 1, 2009 [1 favorite]


Hillary Clinton on the SCOTUS? Can the USA handle a mass Limbaugh/O'Reilly/Beck/Hannity mass suicide live on-air?
posted by PenDevil at 2:34 AM on May 1, 2009 [2 favorites]


Is Cass Sunstein in contention? That would be interesting.

Here's an article he wrote on the myth of the balanced court.
posted by painquale at 2:45 AM on May 1, 2009 [1 favorite]


If I were in charge, I'd have a list of really young ACLU activist lawyers. After I got Glenn Greenwald installed on the Court, I'd nominate one of those lawyers every time a seat opened up.
posted by Kirth Gerson at 3:46 AM on May 1, 2009 [2 favorites]


It's Thomas who really needs to go. Eight competent justices and then....
posted by caddis at 4:34 AM on May 1, 2009


I wanted to see what RedState had to say about this, because I know it's gonna be a hilarious mishmash of joy that Specter left them (because now they can be Pure Conservatives) and anger that Specter left them (because now they have no way to block this).

601 Database redigestation error.

Oh right, I tried to log in yesterday and this is their braindead, server-level bannination measure. Stupid on so many levels.
posted by DU at 4:40 AM on May 1, 2009


Obama should nominate himself. He's got the qualifications and with no filibuster power in the Senate, the GOP can't stop him. Then, once Burris is kicked out, Obama should get himself (re)appointed for that as well. Embodying all 3 branches of government, he will be uniquely placed to enact his agenda:
  1. Zero guns in every pot
  2. Mandatory gay marriages
  3. Replace Bible with Quran
  4. 115% tax rate (whites only)
posted by DU at 4:57 AM on May 1, 2009 [9 favorites]


Kagan being the one who argued for the legality of indefinite detention without trial by expanding battlefield law to anywhere and everywhere? ('The Global Battlefield')

That's a real step forward alright.
posted by knapah at 5:06 AM on May 1, 2009


It was bound to happen Souter or later.
posted by starman at 5:08 AM on May 1, 2009 [2 favorites]


Can the USA handle a mass Limbaugh/O'Reilly/Beck/Hannity mass suicide live on-air?

Yes please.
posted by inigo2 at 6:27 AM on May 1, 2009 [1 favorite]


Can the USA handle a mass Limbaugh/O'Reilly/Beck/Hannity mass suicide live on-air?

YES WE CAN
posted by Faint of Butt at 6:33 AM on May 1, 2009 [7 favorites]


Scalia is really not a brilliant legal writer; he's an entertaining and glib legal writer, and the two are not the same goddamned thing. -mightygodking


Thank you for stating this.
posted by Atreides at 6:38 AM on May 1, 2009 [1 favorite]


I thing mightygodking is over-simplifying. I'm not sure that I'd go so far as to say that Scalia's opinions are brilliant, but his textualism is refreshingly straightforward. Though I don't agree with it, I have a strong respect for a jurisprudence that is built on the idea that the legislature gets to call the shots, and when they do, they should say what they mean.
posted by craven_morhead at 6:49 AM on May 1, 2009 [2 favorites]


Is Cass Sunstein in contention? That would be interesting.

Does he have a vagina?
posted by delmoi at 6:51 AM on May 1, 2009


Also Check out what Matt Yglesias's commenters had to say about Sunstein. They didn't like him.
posted by delmoi at 6:52 AM on May 1, 2009


Can the USA handle a mass Limbaugh/O'Reilly/Beck/Hannity mass suicide live on-air?

It wouldn't happen, because it would require them to actually have convictions beyond cultivating an audience demographic.

Lessig I think is a non-starter until recently he's been a single-issue legal activist. Nothing wrong with that, we need lawyers who take a strong stand on a given issue and aggressively fight for it, but it makes a poor pick for Supreme Court Justice.

In general though, I'm not looking forward to Obama's pick because, (and this is something that's gotten me flamed here before), he's been quite squishy on key issues such as abortion and gay rights, which are almost certain to come up in confirmation debates. So I'm expecting a candidate who is open to some abortion restrictions and separate-but-not-quite-equal domestic partnership law as a compromise to appease conservative elements in his own party.
posted by KirkJobSluder at 7:06 AM on May 1, 2009


scotusblog:despite my earlier predictions, Elliot Spitzer’s odds now seem lower, and President Obama is unlikely to appoint himself.

OK, the Spitzer line is a throwaway, but the Obama appoints himself idea is at least worthy of an Onion story. Something along the lines of not needing to deal with all the shit left behind by Bush and actually having some real power.
posted by CheeseDigestsAll at 7:08 AM on May 1, 2009 [1 favorite]


Michael Geist would rock.
posted by QIbHom at 7:34 AM on May 1, 2009


Obama should nominate himself. He's got the qualifications and with no filibuster power in the Senate, the GOP can't stop him. Then, once Burris is kicked out, Obama should get himself (re)appointed for that as well. Embodying all 3 branches of government, he will be uniquely placed to enact his agenda. . . .

So, the President is constitutionally barred from serving as Senator. BUT so far as I can tell, he can constitutionally sit on the Supreme Court!
posted by grobstein at 7:35 AM on May 1, 2009


This sounds like a perfect opportunity for a reality show. America's Next Top Justice?
posted by bicyclefish at 7:51 AM on May 1, 2009


No. She already has a pretty good job, and she doesn't have any judicial experience.

Regarding judicial experience vis-a-vis Supreme Court justices:
"Chief Justice John Roberts recently stated his opinion that the fact that every currently sitting Justice has, for the first time in history, been a federal appeals judge was a good thing. I myself am not so sure this is a good thing. Looking back at history, scientific studies, even common sense makes this opinion suspect.

I am not sure how many people realize, but there has never been a requirement that a Supreme Court Justice be a judge, or even a lawyer. It’s really only in the last twenty years or so that this has become something of the standard. Historically many have not been judges. Some of the most influential justices were not judges. Chief Justices Marshall and Warren are two examples of this. They may be the two most influential Chief Justices to date with Marshall defining what would become the modern court. Warren is noted for the number of Civil Rights decisions handed down during his tenure. Both were in fact politicians and public servants but neither was ever a judge. This points out that you don’t need to be a judge to be a good justice.

There is a deeper perspective here though in why a SCOTUS full of only judges would be a bad thing. While the law, and an understanding of how the law works is important the Supreme Court requires more than just pure expertise in the letter and workings of the law. The SCOTUS, at least to me, is much more than simply the highest level of appeals court. Decisions made by this court can, and will, have far reaching impact well beyond the case they are hearing. Decisions have been made which have, quite literally, change the course of the nation. Examples of this include Dred Scott vs. Sandford, Marbury vs. Madison, Brown vs. The Board of Education, Rove vs. Wade . Those are just some examples of cases which have had powerful political ramifications. It’s this reason why you need a court with a mix of those who understand public policy as well as law."
posted by ericb at 8:11 AM on May 1, 2009 [4 favorites]


A study [PDF] that looks at a court of Justices that were only judges and concludes that it may not be a good thing.
posted by ericb at 8:14 AM on May 1, 2009 [1 favorite]


I'm a little surprised that Justices Stevens (89) or Ginsburg (76, with health problems) didn't resign first, but I think they probably resign during Obama's presidency. Sometimes it seems like Thomas doesn't want to be on the court.

Hillary Clinton and Al Gore are both 61. A younger justice would stay on the court longer (Roberts is 54).

William Howard Taft was chief justice after he was president.
posted by kirkaracha at 8:20 AM on May 1, 2009


Is Cass Sunstein in contention? That would be interesting.

Does he have a vagina?


Now that would be interesting.
posted by jonp72 at 8:26 AM on May 1, 2009


Also, if Obama appointed himself, that would make Joe Biden president.
posted by delmoi at 9:07 AM on May 1, 2009


No, he'd still be President. And if that's not allowed by the Constitution....signing statement! I know there'll be no objection to that from Republicans, right?
posted by DU at 9:50 AM on May 1, 2009


As a matter of fairness, of changing government as we know it, of hope, and love and all those things he campaigned on, the nominee must be a woman.

Anytime someone starts going on about how sexism isn't really a problem anymore and we live in a post-feminist world, I can laugh at them and point at the Supreme Court (and the Senate) (and the Whitehouse).

It's time to join the 21st century and have one less old white man on the Supreme Court.

I'm a big fan of Sotomayor.
posted by hydropsyche at 2:00 PM on May 1, 2009


Lots of people today are talking about Kim McLane Wardlaw, who, among other things, wrote the lower-court brief in the recent high-school strip-search case, Redding v. Stafford. Given the court's poor performance during oral argument in that case, there's certainly be some good symbolism there.
posted by gerryblog at 3:56 PM on May 1, 2009


I'm going to laugh if Obama nominates Dawn Johnsen or Harold Koh.
posted by homunculus at 4:28 PM on May 1, 2009


Some plausible reasons the President might nominate Kagan in spite of everything, from Orin Kerr.
posted by grobstein at 5:04 PM on May 1, 2009


William O. Douglas was 40 at the time of his confirmation and Thomas was 43. It would be great if a qualified, liberal 40 year old were nominated and confirmed and then served at least 40 years.

I like Justice Souter. The only Justices to turn down all gifts, honorary memberships to private clubs (worth thousands of dollars a year), and the lengthy, all-expenses-paid summer sojourns abroad where the Justices are paid to lecture on the law by Law Schools. Locales have included Italy, the French Riviera and the Greek isles.

This article details how Justice Souter was concerned "not only for the big picture of due process, but the little picture of due process in his own cafeteria"

For example, when Souter thought a young court visitor was racially profiled in 1997 by police, he undertook a low-key investigation. Recent law school graduate Raafat Toss had told Souter that when he approached Blackmun in the Supreme Court cafeteria, several officers physically restrained him and threatened him with arrest if he did not sit down.

Souter told Blackmun in a letter that he was disturbed by the "pretty awful" situation and was taking it up with court personnel. The records do not show how the matter was resolved.

"That to me says a lot about the man's concern - not only for the big picture of due process, but the little picture of due process in his own cafeteria," said Toss, an Egyptian-born lawyer in New York.

posted by mlis at 8:26 PM on May 1, 2009 [1 favorite]


I want to make it clear that when I called Scalia "The best writer on the bench" I wasn't at all saying that he had the best legal mind. In my own opinion, he is doctrinaire, overly simple, and biased when he pretends that his textual approach is neutral.

What I meant is that his style is clear and comprehensive. He's got it easy there, in a way, coming from his position. It's easier to take a knee-jerk conservative position by looking at the framers' intent than it is to take a progressive one. Still, he will spell it all out, and throw in a lot of asides which are simply goldmines for lawyers of any stripe to look into in the future.

An example: A god friend of mine heads up the Innocence Project at my school. You wouldn't expect Scalia to be protecting gang members in any of his opinions, but with enough digging into the 100+ page Heller v DC opinion she found Scalia's list of state and district laws which had to be given strict scrutiny, and that one of them was anything approaching double jeopardy. This makes Virginia law governing gang crimes subject to the highest judicial review there is, which allowed her to have a case.

The other justices either can't or don't generally provide this sort of kitchen-sink explanation to their rulings, and if they do it is provided in such vague terms as to be quickly and easily tossed aside by lower courts. The beauty of Scalia, much as I want to hate him, is that he makes his points simply and directly, and makes so many of them that there's something to fit almost any occasion.
posted by Navelgazer at 8:55 PM on May 1, 2009 [3 favorites]


From MLIS's link:

"I don't see anything wrong in this. I don't see why it is inappropriate to get gifts from friends," said John C. Yoo, now a law professor at the UC Berkeley. "This reflects a bizarre effort to over-ethicize everyday life. If one of these people were to appear before the Supreme Court, Justice Thomas would recuse himself."

Heh.
posted by Cyrano at 1:51 AM on May 2, 2009


Samantha Power.


I can dream, right?
posted by naoko at 10:41 AM on May 2, 2009




Bill Stuntz on the case for appointing a justice of verbal brilliance. He's talking in particular about Pam Karlan, but makes the point (above) about Scalia's clarity and pith.
posted by grobstein at 11:38 AM on May 4, 2009


Jeff Rosen: The Case Against Sotomayor.
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

[. . .] It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.
posted by grobstein at 6:15 PM on May 4, 2009


From Rosen's article:
I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths.
One would think that a responsible journalist would refrain from impugning the ability, intelligence, and temperament of a respected judge until having done so.
posted by dersins at 6:19 PM on May 4, 2009


Don't be fatuous, Jeffrey dersins.

Not every article has to be the summation of all possible knowledge on a subject. Rosen tells us he's reporting rumors and hearsay, not a first-hand impression of her work. He's perfectly direct about it, as your extract shows. We can be enriched by knowing this part of the picture, with the knowledge that it doesn't represent the last word.
posted by grobstein at 6:26 PM on May 4, 2009


I am shocked that TNR would impugn the intelligence of a liberal woman of color. That's so unlike them. They are usually such a progressive magazine. \sarcasm
posted by hydropsyche at 3:30 AM on May 5, 2009


Don't be fatuous, Jeffrey dersins.

Oh, look-- you found a way to call me "dumb" without using the word "dumb." Congratulations on your purchase of a thesaurus! (I'm not really sure what the "Jeffrey dersins" bit was supposed to be about. I assume it was an attempt at being clever in some way, and not that you're suggesting I'm Jeffrey Rosen.)

Anyway, of course not every article needs to contain every possible piece of information, but by writing a hit piece full of hearsay and unattributed smears while admittedly not having done sufficient research to draw his own conclusions, Rosen is presenting us with legal-commentary-as-Page-Six-gossip. Despite your assertion to the contrary, repeating gossip and rumor doesn't add anything useful to the conversation, and is frankly lazy writing.
posted by dersins at 8:48 AM on May 5, 2009


"Don't be fatuous, Jeffrey" is a Big Lebowski quote.
posted by Kattullus at 9:10 AM on May 5, 2009


Oh. If I'd known he was quoting that overrated paean to forced quirkiness, I wouldn't have bothered replying to the rest of the comment. It's not much more than a cast of moderately-engaging "weird" characters engaged in tedious, unfunny, puerile banality in a failed attempt to update Raymond Chandler.
posted by dersins at 9:24 AM on May 5, 2009


dersins, I suppose our real point of difference is that you claim to believe that these negative impressions teach us literally nothing useful about the nominee. That's just crazy. People who have worked on the Second Circuit are a rich source of well-informed opinion about Sotomayor -- one of the best. But they can't be expected to go on the record with negative impressions, because it would be professionally damaging for them. So a "gossip" piece like this one is the only way to bring that wealth of experience into the public debate.

Your repeated complaining about Rosen's lack of independent research (other than interviews with Second Circuit lawyers) is a red herring. Again, the article is useful if it says something useful; it needn't say everything useful.
posted by grobstein at 10:08 AM on May 5, 2009


(er, potential nominee)
posted by grobstein at 10:09 AM on May 5, 2009


dersins, I suppose our real point of difference is that you claim to believe that these negative impressions teach us literally nothing useful about the nominee.

You are correct that people who have worked with her are a "rich source of well-informed opinion about Sotomayor." However, whispered innuendo and unverifiable accusations are not a useful part of public debate, especially when not counterbalanced by research and fact. While Rosen's piece may well contain great truths, it reads like part of a smear campaign. I have no way of knowing whether it is or isn't, and as such it adds nothing of real utility to the discussion.
posted by dersins at 10:48 AM on May 5, 2009


dersins: Oh. If I'd known he was quoting that overrated paean to forced quirkiness, I wouldn't have bothered replying to the rest of the comment. It's not much more than a cast of moderately-engaging "weird" characters engaged in tedious, unfunny, puerile banality in a failed attempt to update Raymond Chandler.

Them's fightin' words…

…but plenty of people with otherwise fairly impeccable aesthetic judgments (Mark Kermode for one) dislike The Big Lebowski. Personally I think it's a failure to realize that the quirkiness serves a purpose and isn't there just for laughs. In fact, The Big Lebowski is incredibly tightly plotted and the only film where the Coen Brothers manage to fully marry their humorous leanings to their skill in constructing a tight plot. It's as skillfully told as Blood Simple and as funny as Oh Brother, Where Art Thou?
posted by Kattullus at 11:32 AM on May 5, 2009


You are correct that people who have worked with her are a "rich source of well-informed opinion about Sotomayor." However, whispered innuendo and unverifiable accusations are not a useful part of public debate, especially when not counterbalanced by research and fact.

You can't get a good range of unvarnished opinions about a sitting judge by asking people who will have to work with her or argue cases before her to speak on the record -- they will fear for their careers. These impressions -- which I think we both agree are valuable -- can only be gathered anonymously and published essentially as rumors.

This can and should be "counterbalanced by research and fact," like thorough analysis of judicial opinions. But as I've said again and again, and you seem to agree, that research and fact doesn't all have to appear in this particular article.

Orin Kerr on the value of a variety of evidence in assessing the acumen of a judicial candidate.
posted by grobstein at 6:55 PM on May 5, 2009


This just gets better. Besides being crap journalism it turns out Jeffrey Rosen might have a few conflicts of interest in the article he wrote:
Jeffrey Rosen's brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration. If Sotomayor's prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court: current Solicitor General Elena Kagan. The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen's brother-in-law (Katyal) becoming Solicitor General. Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.
posted by hydropsyche at 1:26 PM on May 7, 2009


And here is Jeff Rosen's response to the criticism. He addresses many of the points that have come up in this thread, regarding: analyzing Sotomayor's judicial opinions; whether Neal Katyal was a collusive source, and the identities of sources generally; necessity of anonymity; etc. He also reproduces (in full) the Federal Almanac entry on Sotomayor's "temperament":
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."
posted by grobstein at 7:32 PM on May 7, 2009


As the first commenter on that story points out, similar criticisms have been written about male justices. Lawyers have axes to grind. But these criticisms have been given legs by Rosen because they mesh so nicely with stereotypes about Latinas and give everybody permission to let their prejudices loose.

I'm delighted that Katyal wasn't one of his sources. But what about the obvious concern that his brother-in-law is going to benefit greatly if Kagan gets the nomination?

Also, Rosen fails to address the criticisms of his preposterous questioning of Sotomayor's intelligence. I think he recognizes that he went too far in calling an Ivy League grad and well respected judge stupid.

Finally, TNR, still not a liberal publication. It is not surprising that the right wing magazine that masquerades as centrist would undertake a racist smear job against a judicial candidate, nor that the mainstream media would gleefully pick up the story and use it unquestioningly to discredit the candidate.
posted by hydropsyche at 3:50 AM on May 8, 2009








1 point for me, it's Sotomayor.
posted by allen.spaulding at 8:29 AM on May 26, 2009


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