American Constitution Society (ACS), Judicial Nominations, SCOTUS, Supreme Court

ACS 2013: Liberals Aren't Very Optimistic

Progressive lawyers try to find silver linings in a judicial landscape that keeps kicking their interests in the gut.

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Greetings from Washington, D.C., the site of the 2013 American Constitution Society National Convention! The mood at the annual meeting of the Anti-Federalist Society is heavy on the gloom and doom so far. I mean, they’ve won five of six national popular elections, you’d think liberals could take a second or two to be happy, no?

But the looming disasters of Fisher and Shelby County permeate the discussion. Had Fisher come down yesterday as a lot of us had expected, I’m not sure the Capital Hilton would have had enough booze in stock.

It’s not just the continuing battering ram the courts have taken to the progressive agenda that’s getting folks down. At least four times, I’ve been asked the whereabouts of one Elie Mystal, who participated in the kick-off “career alternatives” panel last year and was promptly not asked back. Something about taking off his pants to demonstrate how blogging differs from law.

Here are my early takeaways, including nuggets from Senator Elizabeth Warren and Senator Jeff Merkley…

This is my first visit to an ACS Convention and so far it’s been a good time. Well, the hotel bar is way too expensive. I mean, hotel bars are always expensive, but $10 for a well drink? That’s the kind of injustice that this convention, themed, “…and justice for all” (screw you libertarians!), should start working on righting.

The hotel bar was my first stop of the convention because I was absolutely skipping the speed dating networking event. Stilted and forced conversation is lame. Instead, I met the representatives of the University of Richmond School of Law who had the same idea I did and magically we’d done a better job networking by not going to the official event. And we’d gotten beers. #winning

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Senator Elizabeth Warren kicked off the evening’s gala dinner. Warren’s speech outlined all the ways that corporations are out to get liberals, which turns out to be pretty extensive in Warren’s estimation. The tone reminded me of an old SNL parody of a presidential debate involving Jimmy Carter where Carter was asked, “Is the War on Poverty over?” and Carter (I think Dan Aykroyd) responded, “Yeah, and the poor lost.”

Citing a couple of studies, Warren noted that the federal judiciary (and the Supreme Court specifically) is the most pro-business it has been in decades. And she identified the control of the cert process as one of the most pernicious aspects of the pro-corporate Supreme Court, allowing the Court to police the discussion in favor of the U.S. Chamber of Commerce — the most successful entity in the Supreme Court game.

To solve this attack on the progressive agenda, Senator Warren thinks it would help if judicial nominees weren’t almost exclusively drawn from the ranks of Biglaw attorneys and prosecutors. That’s all well and good, but as long as America tends to elect Biglaw attorneys and prosecutors, there’s not much chance they’ll think outside the box.

After the main course, Senator Jeff Merkley took the stage as a non-lawyer, more outright liberal. Speaking of being a non-lawyer, both Warren and Merkley rock the “law-yer” pronunciation. I understand Warren, she’s from Oklahoma right in the hotbed of the linguistic mistake of using the “hard law” pronunciation, but what’s Merkley’s excuse? He’s from my native Oregon and we know how to pronounce “lawyer.”

Anyway, Merkley continued the theme of explaining how much everything sucks these days by literally ticking off a list of all the horrible problems he sees. He didn’t talk as much about the legal profession as Warren, but he made two notable forays into the subject.

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Merkley is at the forefront of getting the FISA courts to make their decisions public because breaches of the Fourth Amendment should at least be publicized.

Merkley also talked about his personal crusade against the Senate’s filibuster procedure that is employed to hold up judicial nominations. Merkley, who kind of looks like Jefferson Smith thinks that cloture should not be required for a bunch of motions and that when it is required, the standard be shifted from needing 60 votes to proceed to needing 40 votes to keep debating. And most importantly, Merkley thinks Senators should have to actually go Mr. Smith Goes to Washington and talk for hours to gum up the legislative works.

Both Senators concluded with hope for the future and — perhaps without very much specificity — suggested the gathered audience could successfully make the world a better place, but it felt a little cold comfort after the bad news cavalcade. As I left the ballroom and passed the items up for bidding in ACS’s silent auction, I noticed Radiohead’s Kid A on display and it made total sense.

So that was the gala dinner in a nutshell.

Then I was off to the bar and I finally empathized with the depression these folks were feeling when I had to watch something good happen to LeBron James.

If anyone sees me walking through the halls, feel free to say hello. And if you’re looking for an impromptu ATL meeting, I’ll be tweeting out my drinking plans from either @JosephPatrice and/or @atlblog.

Supreme Court: U.S. Chamber Of Commerce Undefeated This Term [Huffington Post]
Jeff Merkley Pushes NSA Chief Over Surveillance, Says Legal Standards Have Been Made “Unrecognizable” [Huffington Post]

Earlier: Some Of You Talk Funny And Don’t Know How To Pronounce Your Own Career

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