Dahlia Lithwick

Ed. note: Today we’re pleased to present a guest post by John Carney. He’s the editor of our sibling site, DealBreaker, and a non-practicing attorney.
Please note that the views expressed in this post are those of John (and John alone). Unlike John, we HAVE met Dahlia Lithwick, and think she’s fabulous — one of the sharpest and funniest writers about the Supreme Court working today. We admire many members of the SCOTUS press corps — e.g., Jan Crawford Greenburg, Tony Mauro, Lyle Denniston — but we don’t know of another writer who marries insight and humor the way that Lithwick does. As you can see from our Facebook profile, we are proud members of the We Love Dahlia Lithwick group.
Okay, enough disclaimers. John has a different view — and since we value viewpoint diversity here at ATL, here it is. Enjoy.
dahlia lithwick headshot.jpg*****************
Slate has been running its usual end of term round-up, a back-and-forth between Dahlia Lithwick (at right) and Walter Dellinger. Except for Dellinger’s defense of political speech against the slippery opinion of Chief Justice John Roberts, it’s a deeply disappointing discussion. Lithwick, who I have never met, comes off as a deeply frivolous person.
It’s almost hard to write about Lithwick’s view of the school speech case, Morse v. Frederick, without sounding foolish. The case arose when a student unfurled a banner reading “Bong Hits 4 Jesus.” Lithwick chastises Roberts for reading this as “clearly advocacy of a ‘pro-drug’ message.”
“In Morse, Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase ‘Bong Hits 4 Jesus’can be read as ‘celebrating drug use’; indeed to get there he needed only insert the imaginary words, ‘bong hits [are a good thing].’ When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say ‘bong hits [will kill you],’” Lithwick writes.
The most difficult question raised by Lithwick here is whether she’s a liar or a fool. That sounds a bit harsh. But I can’t come come up with any other credible explanation for that paragraph. Anyone of normal intelligence understands that “Bong Hits 4 Jesus” is drug advocacy. The only question is whether it’s a command that would mean “Do Bong Hits For Jesus” or a confession meaning “I Do Bong Hits For Jesus” or even an offer, as in “I Have Bong Hits Available For Jesus.” In any case, it’s undoubtedly pro-drug.
Read the rest, after the jump.

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Supreme Court hallway Above the Law Above the Law Above the Law.JPGOr, perhaps more importantly, their $200,000 signing bonuses? That’s the question Dahlia Lithwick takes on in her recent Jurisprudence column for Slate.
The sums in question are even larger than Lithwick notes. She writes:

That will be [a] $200,000 [bonus] on top of a starting salary of $145,000 to $160,000. Which adds up to an awful lot of Pottery Barn sectional furniture for someone who is, on average, 26 years old and just two years out of school. As Chief Justice John Roberts pointed out recently, that $360,000 beats the heck out of the $212,100 he’s taking home for, well, chief justice-ing the entire nation.

Actually, the starting salaries are even higher, since pretty much all firms give Supreme Court clerks seniority credit for their two years of clerking. So a clerk who went straight through to a feeder judge, the SCOTUS, and a private law firm would be paid like a third-year associate: $170,000 in Washington, or $185,000 in New York (or in the D.C. office of a New York firm).
Lithwick interviews Walter Dellinger and Carter Phillips, who offer various justifications for the outsized bonuses as an economic matter. We have our doubts — and are quoted as a dissenting opinion:

On his legal gossip blog, Abovethelaw.com, David Lat tracks lawyer salaries with the glee most of us reserve for American Idol. And according to him, the hefty law clerk bonus stopped making any real economic sense several decimal points ago. Lat notes that these new associates just don’t bill extraordinary hours; that boutique appellate practice isn’t that lucrative; and a good many former clerks have academic aspirations. “They’re billing 1,800 hours, not 2,500, and a lot of them are probably already working on their job talks,” he says, referring to their sales pitches for the academic market.

The real allure of the Supreme Court clerk, says Lat, is that they are trophy purchases, “something for a firm to crow about in their recruiting materials.” Ouch. If Lat is correct about this, the boutique firms are buying former Supreme Court clerks when they might be better off investing in something more enduring, like new leather sofas for their lobbies.

We stand by these remarks, but maybe we’d remove the “Ouch.” These bonuses don’t make pure economic sense (in our opinion); but neither do many other things that law firms spend gobs of money on. If a firm wants to drop $200,000 on a SCOTUS clerk, or on an Alexander Calder for the lobby, that’s their prerogative.
We’re quoted later in Lithwick’s piece:

[S]ome firms, notes Lat, have decided to stop pursing the Supreme Court clerks and spend their recruiting dollars on what he characterizes as the near misses. “For every one of the 36 smartest law kids,” he says, “there is another equally smart law kid who just had a bad interview [for a Court clerkship].” And if law firms make the economic decision to give bonuses to them, “they get all the benefits of a knock-off Prada purse: They perform the same function, they look great, and you know they’ll do a great job.”

We’d single out Kellogg Huber of D.C. as one such firm. Some of you have expressed curiosity about who pays the biggest clerkship bonuses. We believe it’s Kellogg Huber. This tiny, super-elite Washington litigation boutique is rumored to pay clerkship bonuses of $100,000 to federal appeals court clerks — and for that kind of money, combined with the firm’s small size, it can afford to be picky. The non-SCOTUS clerks at the firm tend to be those who came thisclose to landing a job at One First Street (e.g., feeder-judge clerks who interviewed unsuccessfully for Supreme Court gigs).
Update: Do you have an opinion on whether Supreme Court clerkship bonuses are too high, too low, or just right? You can express it by voting in our poll. To vote, click here.
What to make of those astronomical Supreme Court signing bonuses? [Slate]

NYLS 13 James Lindgren Jim Lindgren Randy Barnett Randy E Barnett Volokh Conspiracy Cameron Stracher Above the Law.JPG
A pair of Volokh Conspirators, Professors James Lindgren and Randy Barnett, at last week’s NYLS conference on writing about the law. Inset: Professor Cameron Stracher, who organized the symposium.
In our write-up of the NYLS conference panel on law reviews, we offered the following fashion commentary:

Professors Barnett and Stracher are both rockin’ the “downtown auteur” look: black or dark blue suit, dark collarless shirt, no tie. Not bad in a vacuum, but unfortunate that they’re on the same panel with the same look (except as to the color of their shirts).

Professor Barnett has taken issue with our observations. He claims that he was wearing a crewneck shirt, while Professor Stracher was wearing a turtleneck — and that “a world of difference” exists between the two.
We pulled out our photographs of Professors Barnett and Stracher. Professor Barnett is clearly wearing a crew neck — the same crew neck he’s wearing in his website photo, it seems. But we couldn’t tell the type of Professor Stracher’s collar (above inset).
So we looked up Professor Ann Althouse’s more detailed photograph of Professor Stracher (together with yours truly). Yep, that’s a turtleneck (although a relatively short one).
We apologize to Professor Barnett, and we regret the error.
In addition, Professor Lindgren wanted to clarify his choice of a button-down shirt (for which we criticized him). He explained that he has several levels of sartorial formality, and he deliberately chose a button-down because he viewed the NYLS conference as calling for a moderate rather than extreme level of formality. Given the fairly laid-back nature of the proceedings, we can see where he’s coming from.
For true legal-media-and-academia groupies, additional pictures of top legal journalists and law professor bloggers appear after the jump.

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* Dahlia Lithwick on SCOTUS and the death penalty. [Slate]
* A panel of the Seventh Circuit is made up entirely of Sixth Circuit judges sitting by designation. Of course, recusal seems to make sense when the defendant plotted to attack the Seventh Circuit’s courthouse. [How Appealing]
* Novak testifies: he got the info from Armitage and Rove. [CNN]
* Pay the judges! [WSJ Law Blog]
* I’ve my got my mind on my merger and my merger’s on my mind. [

alberto gonzales alberto r gonzales attorney general.JPG* AG Gonzales: Federal judges are unqualified to make national security decisions. [MSNBC]
* AG Gonzales: Federal judges should be making national security decisions. [MSNBC; Washington Post]
* Affirmative action takes center stage at Boalt. [WSJ Law Blog]
* Dahlia asks, “Have the Supreme Court’s opinions become suggestions in Texas?” [
* Linda discusses the Texas death penalty cases as well. [New York Times]
* Former Cendant Chairman Walter Forbes get sentenced to 12 years and seven months in prison, on accounting fraud charges. The prosecution was handled by the U.S. Attorney’s Office for New Jersey; Forbes was represented by Williams & Connolly. [WSJ Law Blog]
* Picking a jury for the Scooter Libby trial in D.C., the biggest small town in America: it ain’t easy. [Washington Post]

All About Eve 2 Linda Greenhouse Jan Crawford Greenburg Jan Greenburg Jan Greenberg Jan Crawford Greenberg Above the Law.JPGOur favorite movie of all time is All About Eve (1950). It’s the story of a brilliant but aging stage diva, Margo Channing (Bette Davis), and an aspiring actress, Eve Harrington (Anne Baxter). Margo befriends Eve, taking the star-struck youngster under her wing. But then the exceedingly ambitious Eve starts to threaten her mentor’s reign as queen of the theater.
The small Supreme Court press corps can be compared to the clubby world of the theater. It’s populated by distinguished veterans, like Tony Mauro, and emerging younger talents, like Dahlia Lithwick. (Expressed in Broadway terms, Mauro and Lithwick could be compared to, respectively, Christopher Plummer and Sutton Foster.)
The stage has its great divas — e.g., Bernadette Peters, Chita Rivera — and so does the SCOTUS press corps. Nina Totenberg is certainly one of them. But the undoubted queen of Supreme Court correspondents is Linda Greenhouse, of the New York Times.
Greenhouse has been covering the Court for almost three decades, since 1978. She enjoys unmatched access to the justices, especially those in the middle and left wings of the Court. Supreme Court justices are notoriously media-shy. But Linda Greenhouse can magically reach them on their cell phones, at any hour, and get them to spill their deepest and darkest secrets. If you want to know whether there was blood in a justice’s stool this morning, ask Linda G.
So here’s our question:

If Linda Greenhouse is the Margo Channing of Supreme Court reporters, does that make Jan Crawford Greenburg into Eve Harrington?

Just like Eve Harrington, Jan Crawford Greenburg of ABC News is a talented and attractive young woman, whose star is on the rise. In the past three months, she has scored coveted in-person interviews with almost half of the Supreme Court:

(1) Chief Justice John Roberts, in Miami;

(2) Justices Antonin Scalia and Stephen Breyer, here in Washington; and

(3) earlier this week, Justice John Paul Stevens (his first network television interview ever).

For all of you non-journalist types, please understand: these are MAJOR COUPS.
And there’s more. As Howard Bashman notes, later this month, Greenburg has a “top-secret” new book on the Court coming out. That book, Supreme Conflict, is being touted as drawing upon “unprecedented access to the Supreme Court justices and their inner circles.”
(Note to Greenburg’s book publicist: We’d love to get a reviewer’s copy, if you wouldn’t mind sending one our way.)
Call it Greenhouse v. Greenburg. Linda Greenhouse’s historic domination of Supreme Court coverage is under siege, as Jan Crawford Greenburg makes some serious inroads at One First Street. And we’re not the only ones who have taken notice. Check out Howard Bashman’s great interview with La Greenburg, posted just this morning, in which he accurately describes the trajectory of her career as “meteoric.”
We will surely piss off some people with this question, but we’ll ask it anyway:

Could Greenburg’s status as a hottie be contributing in any way, however small, to her journalistic success?

In All About Eve, you will recall, Eve Harrington uses her beauty and charm to seduce theatre critics, writers, and directors.*
Some of you might object: “This whole ‘All About Jan’ theory is ridiculous. Linda Greenhouse has been covering the Court since Jan Crawford Greenburg was in footsie pajamas. Do you really think LG is about to be supplanted as Empress by some upstart kid?”
We respond by quoting this exchange from All About Eve, between Margo Channing and her lover, Bill Sampson:

BILL: Darling, [to succeed in the theater,] you’ve got to keep your teeth sharp. All right. But you will not sharpen them on me — or on Eve…

MARGO: What about her teeth? What about her fangs?

BILL: She hasn’t cut them yet, and you know it!

But Jan Crawford Greenburg HAS sharpened her pearly whites (which we’ve admired up close). And she’s ready to sink them into Linda Greenhouse.
* Rumor has it that back in the day, as a young and attractive reporter, Nina Totenberg was not averse to “workin’ it.” If you can confirm this rumor or shed more light on it, please drop us a line.
N.B. We are NOT suggesting that Nina Totenberg pulled The Full Judith Miller. We’ve simply heard that Totenberg, back when she was a youthful beauty, was highly skilled at deploying feminine charm in getting her sources to talk.
Update: This comment is one of the best compliments we have ever received in our entire life. Addison DeWitt is our idol. Thanks, Michael Doyle!
Interview of Jan Crawford Greenburg by Howard Bashman [How Appealing]
Jan Crawford Greenburg [NewsHour Extra: The Road Taken]
Linda Greenhouse bio [Wikipedia]
All About Eve [IMDb]
All About Eve screenplay [Screenplays for You]
Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court [Amazon]

Antonin Scalia Stephen Breyer Above the Law SCOTUS Supreme Court Justices.JPG

We agree with Andrew Sullivan: Dahlia Lithwick did a superb job in her write-up of the Scalia-Breyer debate, which took place Tuesday night at the Capital Hilton. We attended as guests of the ACS, whom we thank for their hospitality.
For our fourth and final post about the evening — prior posts here, here, and here — we’ll quote liberally from Lithwick’s great Slate piece, with commentary of our own appended and interspersed.
It all appears after the jump.

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Antonin Scalia Stephen Breyer Above the Law SCOTUS Supreme Court Justices.JPG

Question: Now that the Supreme Court is hearing hardly any cases these days, how are the justices spending all their free time?
Answer: On constitutional law road shows, in which they debate the proper way to go about interpreting that foundational document. What fun!
On Tuesday, Justice Antonin Scalia and Justice Stephen G. Breyer held forth on the subject before a packed ballroom at the Capital Hilton. The event was co-sponsored by the American Constitution Society and the Federalist Society. It ran for about an hour and a half; Jan Crawford Greenburg, of ABC News, served as moderator.
Our prior coverage of the event appears here and here (photos). Our third installment appears after the jump.

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supreme court 1.jpgThe Supreme Court heard a number of interesting oral arguments this week — and we’re way behind in our coverage of them. We’re working on catching up.
On that note, it’s too bad that audio recordings of this week’s SCOTUS arguments aren’t available. As noted by the WSJ Law Blog, the Court released same-day printed transcripts in Watters v. Wachovia Bank and the greenhouse gas case — but no audio broadcasts or same-day recordings.
This was pursuant to the Court’s policy of selectively releasing recordings based on whether there is “heightened public interest” in a case — i.e., whether it involves a hot-button issue. And these two cases, despite their major implications for business, environmental law, and federal-state relations, didn’t make the cut.
We’d like to echo Dahlia Lithwick’s recent call for the Supreme Court to revisit this policy of selective audio-casting:

If the Supreme Court justices really want the public to recognize that what they do is subtle and legal, as opposed to ideologically driven, why would they release the audio in precisely those cases in which they are most stridently split? Why reinforce the stereotype of a partisan 5-4 court that splits along the most-basic liberal/conservative lines?

(Oh, and Howard Bashman is with us on this — which means that of course we’re right.)
Releasing same-day audio tapes of ALL Supreme Court oral arguments, regardless of the level of “public interest,” would take a clean, bright-line approach to the issue. It would allow the public to learn more about the workings of the Court, but without the intrusion of cameras in the courtroom. Justice Breyer wouldn’t have to worry about television close-ups of his wattle; Justice Scalia could leave his eyebrows au naturel.
Finally, same-day audio release would save the Court — or the Court’s Public Information Office — from having to determine whether a case is “sexy” enough to merit broadcast. Because do you really want Kathy Arberg deciding what’s sexy?
(Speaking of Kathy Arberg, a few weeks ago the Supreme Flacktress put up a “help wanted” sign at One First Street. Out of curiosity, does anyone know whether the position is still open?)
Listen Up: The Supreme Court’s hot/cold audio-casting policy [Slate]
Should Congress Mandate Supreme Court TV? [Law.com via How Appealing]
Listen to Today’s Supreme Court Oral Arguments… Not! [WSJ Law Blog]

* When committing a robbery, try not to target a master of illusion. [CNN]
* Another legal show goes the way of “The Law Firm.” [CNN]
* Dahlia Lithwick begins this article, “Chief Justice John Roberts is the Dr. McDreamy of the federal bench.” [Slate]
* Dismissal sought in the CIA leak case. [AP]
* Justice Kennedy, the likely swing vote in Monday’s decision in Ayers v. Belmontes, also holds the critical vote in deciding the constitutionality of the Partial-Birth Abortion Ban Act. Here’s some interesting commentary on last week’s oral arguments. [SCOTUSblog]

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