Clarence Thomas

Alberto Gonzales: The Morning After

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Alberto Gonzales 3 Alberto R Gonzales Attorney General Above the Law blog.jpgAttorney General Alberto Gonzales made a make-or-break appearance yesterday before the Senate Judiciary Committee. We covered his SJC testimony extensively. See here, here, and here.
If the Gonzales testimony were a Broadway show, today would be the morning after opening night, when the all-powerful Ben Brantley theatre critics weigh in. And based on the reviews (see links below), the Al Gonzales Show is the biggest disaster since Dracula the Musical. Will someone please drive a stake through the heart of AGAG’s tenure?
As you know, we love drama, and we love surprises. We were secretly hoping that Gonzales — who has never been a great public speaker (we’ve seen him) — would deliver a bravura performance, one that would resurrect his career, leaving his critics stunned and speechless. We were looking for a home run, a tour de force like Clarence Thomas’s Senate testimony, as described by Camille Paglia:

Make no mistake: it was not a White House conspiracy that saved this nomination. It was Clarence Thomas himself. After eight hours of Hill’s testimony, he was driven as low as any man could be. But step by step, with sober, measured phrases, he regained his position and turned the momentum against his accusers. It was one of the most powerful moments I have ever witnessed on television. Giving birth to himself, Thomas reenacted his own credo of self-made man.

But Alberto Gonzales is no Clarence Thomas — and his days as AG are numbered. Gonzales isn’t Spanish for “Souter”; it’s Spanish for “toast.”
Al, the President’s Man [Slate.com]
On a Very Hot Seat With Little Cover and Less Support [New York Times]
Gonzales Rejects Call for His Ouster [Associated Press]
Senators Chastise Gonzales at Hearing [Washington Post]
Gonzales Says He Didn’t Know Why Two Were Fired [Washington Post]
Roughed Up on the Hill [Washington Post]

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‘I Tawt I Taw… A Judicial Conservative!’

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tweety bird Ruth Bader Ginsburg Justice Ginsburg Above the Law blog.jpgWe’ve been learning all sorts of things about Justice Ruth Bader Ginsburg lately. Like her history as a high school cheerleader (which is, by the way, a perilous pursuit).
And now we learn her secret nickname at One First Street. From the Washington Examiner:

Anyone who has seen Supreme Court Justice Ruth Bader Ginsburg knows that, although she’s big on law, she’s short on physical stature. Some of the employees who work around her in the Supreme Court Building find her diminutive size rather endearing and have taken to calling her Little Tweety Bird, a moniker they use only within their small circle.

But, lest you think that Ginsburg might rule such a nickname as “out of order,” that same circle insists that it’s a kind nickname, and one meant to reflect the notion that they feel very protective of Ginsburg.

Does that make Justice Scalia into Sylvester the Cat? Probably not. Justices Scalia and Ginsburg are close personal friends. They share a love of opera, and their families sometimes spend New Year’s Eve together.
We nominate Justice Thomas for the role of Sylvester the Cat. In the 1947 cartoon Tweetie Pie, the Sylvester the Cat character went by the name “Thomas.” MEOW!
A nickname for Ginsburg [Washington Examiner / Yeas and Nays]

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ATL Poll Results: Justice Thomas Provokes Strong Feelings

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Yeah, we know — quelle surprise. Or, less delicately, “No s**t, Sherlock.”
Anyway, here’s the data, from a poll in which almost 1500 votes were tallied:
ATL poll results Clarence Thomas Justice Clarence Thomas Above the Law blog.JPG
As one of you noted, the results basically form an inverted bell curve. Over 56 percent of respondents clustered at the extremes: “Very Unfavorable” (30.6 percent) was the most popular choice, followed by “Very Favorable” (25.9 percent).
Speaking of SCOTUS-related polls, there’s still time left for you to vote on whether $200,000 bonuses for Supreme Court clerks are too high, too low, or just right. To vote, click here.
Earlier: Justice Thomas: The Sphinx Breaks His Silence

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Justice Thomas: The Sphinx Breaks His Silence

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Clarence Thomas 2 Justice Clarence Thomas Above the Law blog.jpgJustice Clarence Thomas is one of the quieter Supreme Court justices, at least at oral argument and in terms of media appearances. (He can be quite gregarious and charming in smaller settings.)
But Justice Thomas recently sat down for a chat with Business Week, which you can read here. The interview focuses on Justice Thomas’s undergraduate education at Holy Cross and the effect that the Reverend John E. Brooks had upon CT as a mentor.
You can read excerpts at the WSJ Law Blog. We think the Law Blog hits the most important parts. But we’d add to the mix Justice Thomas’s comments about his college classmate and friend, superstar defense lawyer Theodore Wells, now defending I. Lewis “Scooter” Libby:

Do you feel a sense of fraternity with the people you went to school with?

In a distant way, I absolutely do. We don’t pal around. I absolutely admire Ted Wells and he and I are quite different. He’s one of the finest lawyers in the United States. But you know what? It’s not unpredictable. It’s something that could have been predicted. Think of the people who took chances on him.

There was a wonderful fraternity—The Cross. When you were a crusader, you looked after each other—no matter where you were. That doesn’t mean they would always be in a position to do you a favor. But they were there, just as a friend. I’ve never been turned away by a graduate of The Cross.

While we’re on the subject of Justice Thomas, we’re curious about your opinions of him. Please take our poll:


Online Extra: Supreme Court Justice Clarence Thomas Speaks [BusinessWeek]
BusinessWeek Interviews Justice Thomas [WSJ Law Blog]

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Two New Arguments in Favor of Higher Pay for Supreme Court Justices

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Listen up, Chief Justice Roberts! Here are two new arguments you can use to make the case for higher judicial pay.
1. From the Drudge Report:
Drudge Report Judge Judy Judith Sheindlin.jpg
Shira Scheindlin Judge Judith Sheindlin Judge Judy Above the Law.JPGAccording to Forbes, Judge Judy has a net worth of $95 million. She earns $25 million a year — over 100 times the Chief Justice’s salary.
Random aside: Contrary to rumor, and despite their shared irascibility, Judge Judy Sheindlin (at left) and Judge Shira Scheindlin (S.D.N.Y.; at right) are NOT related. As you can see, their last names are spelled differently. Despite this difference, Judge Scheindlin of the Southern District regularly receives telephone calls from people in search of televised justice.
2. Because of his low pay, Justice Clarence Thomas has been reduced to eating at ESPN Sports Zone.
(Yes, we know, CT got a seven-figure advance for his memoirs. But when you enjoy Corvettes, luxury RVs, and fine cigars, the money goes fast.)
Wonk’d: Barely Legal [Wonkette]
The Richest 20 Women In Entertainment: Judith “Judge Judy” Sheindlin (#13) [Forbes]

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Benchslapped: Scalia v. Thomas?

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Antonin Scalia Clarence Thomas justices.JPGWho knew that jurisdiction in the patent context could cause judicial tempers to flare? In MedImmune, Inc. v. Genentech, Inc., an 8-1 decision handed down earlier this week, Justice Antonin Scalia and Justice Clarence Thomas — who voted together almost 90 percent of the time last Term — exchanged harsh words.
Justice Scalia wrote the opinion of the Court, holding that a patent licensee doesn’t have to terminate or breach its license agreement before suing to challenge the patent’s validity. Justice Thomas dissented, finding no standing to sue.
From a tipster:

Scalia’s MedImmune opinion disembowels Thomas’s dissenting arguments one by one. See footnote 6 (“This is demonstrably false.”). Or footnote 9 (“It obviously is not.”).

One of my kids takes Synagis (a very very expensive medication), which is why I read the decision. While patent law is not my practice area, Scalia’s scorn is very clear and understandable to even a patent law layperson.

Now, Justice Thomas doesn’t take all this lying down. He accuses Justice Scalia of “misread[ing] our precedent,” “inappropriately rel[ying]” upon various cases, and committing “serious error.”
But this match must be scored for Scalia. Some other goodies (all in the footnotes, of course, where judges get to be catty and not feel guilty about it):

Footnote 2: “The dissent contends that the question on which we granted certiorari does not reach the contract claim. We think otherwise.”

Footnote 5 6: “[The dissent would be correct] only if the license required royalties on all products under the sun, and not just those that practice the patent. Of course it does not.”

In other words: “CT, get your head out of your ass!”
Justice Sandra Day O’Connor used to take criticism from Justice Scalia rather personally. But she should have realized that with Justice Scalia, it’s really not personal. To paraphrase what our mother told us in second grade, “Nino only picks on you ’cause he likes you.”
P.S. To be sure, we suspect Justice Scalia doesn’t think very highly of Justice O’Connor as a judicial thinker — in contrast to, say, Justice Ruth Bader Ginsburg, whom he can respect even when they disagree.
MedImmune, Inc. v. Genentech, Inc. [FindLaw]
Court rules on right to bring patent case [SCOTUSblog]

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Yale Dean Harold Koh Hearts Conservatives

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Yale Law School dinner 5.JPG
Last Friday night, we attended a Yale Law School alumni dinner here in Washington, at Acadiana restaurant. It was timed to coincide with the big AALS conference of law professors in DC, since so many YLS alums are in legal academia.
The keynote speaker at the dinner was Professor Heather Gerken, who was snatched up from Harvard by Yale last year. She gave an interesting talk about her proposal for a “Democracy Index,” a national system for ranking the election-law practices of the different states. (We won’t repeat her remarks here, since Professor Gerken’s proposal is laid out in detail in her Legal Times commentary.)
Before Professor Gerken spoke, the audience was addressed by Dean Harold Hongju Koh. He updated us about recent developments at the law school, and gave the standard spiel about the brilliance and diversity of Yale’s first-year class.
(In case you’re wondering, the Yale 1Ls have a median GPA of 3.91. Their ranks include oodles of Rhodes Scholars, Marshall Scholars… and a massage therapist. You can have the Rhodies, the whole lot of ‘em; just give us the massage therapist.)
Dean Koh also delivered remarks that could be viewed as part of his new charm offensive: an attempt to reach out to YLS conservatives, in the wake of some criticism on that front.
Some random photos — plus very surprising news about Justice Clarence Thomas and Yale Law School, the alma mater he’s had a rocky relationship with — after the jump.

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Attention, Concerned Alumni of Yale: Justice Alito Gets (Green)housed

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samuel alito harold koh linda greenhouse.JPGChristmas is less than three weeks away. Are you stumped about what to get for your liberal lawyer friends?
Assuming they’re okay with Christmas gifts — maybe they object to even personal celebration of the holiday — have we got an idea for you: Harold Hongju Koh Bobblehead Dolls!!!
Harold Koh is the dean of Yale Law School. And he’s an unapologetic liberal, regarded by some YLS students and alumni as allowing his personal political beliefs to affect his work as dean (not for the better). It’s only natural for the Yale chapter of the ACS, a leading liberal organization, to honor him with a bobblehead doll.
Above the Law has just learned of another manifestation of Dean Koh’s alleged political hackery. One of his deanly duties is to preside over the committee that selects a recipient for the Yale Law School Award of Merit. This prestigious and prominent honor is presented each year to an outstanding graduate or longtime faculty member of YLS.
We’ve heard that Dean Koh, short-circuiting any real discussion, essentially ordered that the 2007 Award of Merit would go to Linda Greenhouse — the left-leaning Supreme Court correspondent of the New York Times. Other committee members proposed Justice Samuel Alito ’75, confirmed earlier this year to the U.S. Supreme Court, as the most natural and appropriate choice. But Dean Koh squelched their support for the conservative jurist. He cut short the deliberations, declaring by fiat that Greenhouse — who did a one-year master’s program at Yale — would receive the award.
Does this strike you as outrageous? It gets worse. The reasoning employed by Dean Koh — to the extent that he employed reasoning, as opposed to simply forcing his pick upon the committee — was pretty dubious.
Based on what we’ve heard, we’ve created a fictionalized transcript of the committee meeting. Check it out, after the jump.

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Supreme Court Justice “Net Popularity Scores”

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supreme court 2006.jpgYou may recall our recent Above the Law reader polls for Most Favorite Supreme Court Justice and Least Favorite Supreme Court Justice. The results of those polls are available here and here, respectively.
One of you had an interesting suggestion: Combine the results of the two polls to generate “net popularity scores” for the justices. These scores, combining measures of how much each justice is liked and disliked, could be viewed as measuring “overall” popularity.
We thought it would be interesting to see the results, so we went ahead and did this. We took the percentage of the vote each justice received in the “Most Favorite” poll, then subtracted from it the percentage of the vote received in the “Least Favorite” poll. We labeled the result the justice’s “Net Popularity Score” (NPS).
Here are the results of this number-crunching, with the justices ranked by NPS, from highest to lowest:
net popularity score 2.jpg
A few quick thoughts:
1. The rankings strike us as decent measures of overall popularity. Two of the top three finishers are favorites of their respective ideological wings. Justice Scalia, a cult figure among conservatives, comes in first; Justice Stevens, a hero of the liberals, places third.
2. The Chief is like Sara Lee: Nobody doesn’t like him. He got zero percent of the votes in the “Least Favorite” poll (just 24 votes out of 6,290). And, presumably due to his good looks and great resume — since he doesn’t have many opinions to be judged by yet — he won 16 percent of the “Most Favorite” vote. This gave him an NPS of 16, almost enough to beat Nino.
3. The next three justices — Justices Breyer, Thomas, and Alito — have net popularity scores close to zero. This makes sense too: as jurists, they don’t excite grand passion (even if Justice Thomas, prior to his confirmation, was a controversial figure).
4. Justice Alito, a fairly low-key personality, earns a “perfect” score of zero. Two percent of voters picked him as their favorite; two percent picked him as their least favorite. He’s like The Justice Who Wasn’t There (although, in fairness to Justice Alito, he’s too new to the bench to have made many enemies or fans).
5. Three justices have negative net popularity scores: Justices Kennedy, Souter, and Ginsburg. Their negative scores may have been affected by the fact that the voter pool in the “Least Favorite Justice” pool skewed to the right (thanks in large part to an Instapundit link).
6. As for why Justice Ginsburg attracted such a high percentage of the “least favorite” votes, Ann Althouse — and her commenters — have some interesting thoughts on the matter.
Earlier: ATL Poll Results: Your LEAST Favorite Supreme Court Justice
ATL Poll Results: Your Favorite Supreme Court Justice

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ATL Poll Results: Your LEAST Favorite Supreme Court Justice

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After finding out your Favorite Supreme Court Justice (answer: Justice Scalia), we asked about your LEAST Favorite Supreme Court justice. And the result was surprising, at least to us.
Voter turnout was massive, with over 6,000 votes cast. Maybe everyone’s in a voting frame of mind, with Election Day so close. Here’s how you voted:
least favorite supreme court justice poll results.JPG
The “winner”: Justice Ruth Bader Ginsburg, with a whopping 40 percent of ballots cast. Second place went to Justice David H. Souter, with 19 percent of the vote.
Thank you to the voters — all 6,000 of you. And thanks to everyone who linked to the poll, especially Glenn Reynolds, Ann Althouse, and Jason Harrow (of SCOTUSblog).
We have a few cursory observations on these results, which appear after the jump.

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