SCOTUS Potential

Seth Waxman 6 Seth P Waxman Above the Law Above the Law.JPG

“You mean to tell me that this guy has argued before the Supreme Court? This guy, in the button-down shirt? Seriously?”
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Here are the remaining photos from our recent Movie Night With Justice Breyer. The first batch was posted over here.
As we previously explained, these pictures are pretty awful — dark and blurry. Because of all the priceless art lying around, we weren’t allowed use a flash inside the darkened precincts of the Phillips Collection.
And we’re not great at photography to begin with. And we could use a better camera. (Did you catch that, Sony and Canon publicists?)
But if you’re looking for a break from all the law firm pay raise coverage, maybe you’ll appreciate them. Check them out, after the jump.

double red triangle arrows Continue reading “Movie Night With Justice Breyer (Part 2)”

David Levi David F Levi Judge Dean Duke Above the Law.jpgBig news for both the federal bench and legal academia: Chief Judge David F. Levi, of the Eastern District of California, has been picked as the next dean of Duke Law School.
If approved by the trustees, Levi will replace Dean Katharine Bartlett on July 1. Here’s the official press release.*
Chief Judge David Levi is one of the most highly-regarded district judges in the entire federal judiciary — and this should come as no surprise, given his pedigree. The 55-year-old judge is a Harvard College and Stanford Law grad, former Ninth Circuit clerk, and member of the Elect (OT 1982/Powell).
Legal genius runs in the Levi family. David Levi is the son of the late Edward Levi, former Attorney General under President Ford (and recently in the news in the wake of President Ford’s passing; he recommended Justice Stevens for the SCOTUS). As the WSJ Law Blog points out, David Levi’s older brother is also a high-powered lawyer: John Levi, a partner at Sidley & Austin.
When we clerked on the Ninth Circuit, we worked on an appeal from a decision of then-Judge Levi (he became Chief Judge in 2003). It was a bizarre an interesting case involving a transsexual ex-prison inmate, one Torey Tuesday South, who filed a civil action against California prison officials. She alleged that the officials improperly cut off her sex hormones (which she had been taking since she was a teenage boy). The officials asserted qualified immunity.
The record on appeal was really weird highly unusual. It included quasi-soft-porn photographs of Torey Tuesday South in various unusual positions, designed to showcase certain parts of her anatomy. It also included materials that gave us a crash course in gender dysphoria.
We’ll spare you the details; if you’re curious, you can look up the decision on Westlaw. In the end, Chief Judge Levi’s decision to allow the case to move forward was affirmed. The factual findings and legal reasoning he provided in support of his ruling were impeccable.
In his new role as dean of Duke Law School, David Levi will surely grapple once again with issues of transsexuality. But the questions presented will be less thorny. For example: Can transexuals use both the male and female bathrooms in the law school (as they can in the New York subway)?
The Duke deanship is an exciting new opportunity for one of our nation’s most distinguished jurists. Congratulations, Your Honor!
Food for thought: Professor Orin Kerr wonders: Is Chief Judge Levi, regarded by both liberals and conservatives as a fair and thoughtful jurist, the kind of Supreme Court nominee who could win over Democratic senators?
David Levi is only 55 years old. He’s a moderate conservative with 16 years of judicial experience, as well as a civil procedure guru. Now he’s adding another feather to his cap: the deanship of a prestigious law school. If he steers clear of controversy as dean, he’s certainly a SCOTUS possibility.
* From the Duke alum who sent us the press release: “I can speak for many of my fellow Duke Law alums when I say good riddance to the former dean, Kate Bartlett.”
Update: Some Duke alumni dissent from this assessment of Dean Bartlett. For further discussion, see the comments.
Federal Judge David F. Levi selected as Dean of Duke Law School [Duke Law School]
Duke Law School Selects Judge David Levi as Dean [WSJ Law Blog]
Wonderful news for Duke Law School, but a sad loss of a very talented judge [How Appealing]
David F. Levi bio [FJC]
Ex-Inmate’s Suit Advances [Sacramento Bee]
Transsexual inmate mistreated, court says [Sacramento Bee]
More on 100-0 Nominees [Volokh Conspiracy]

Harry Pregerson Judge Harry Pregerson Above the Law.jpgOr at least a big benchslap upside the head, courtesy of the Supreme Court. Per Orin Kerr:

A lot of people have talked about the Supreme Court’s small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it. He handed down an opinion today in Carrington v. United States that has “Destination: One First Street” written all over it.

Read the rest of Professor Kerr’s devastating critique here. Howard Bashman also doesn’t think highly of the opinion.
Professor Kerr concludes by quoting George Will: “[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases.” Will’s article was about a “Reinhardt special.” But as Carrington shows, Judge Stephen Reinhardt isn’t racking up reversals all by himself; he gets by with a little help from his friends.
One final note: Carrington gave Judge Consuelo Callahan, the luscious Latina sometimes mentioned as a possible Supreme Court nominee, the opportunity to write an impassioned, high-profile dissent. Judge Callahan should be grateful to Judge Pregerson for giving her the chance to develop conservative street cred. If she gets nominated to the SCOTUS someday, she should thank Judge Pregerson at her investiture.*
(We’d be curious to hear what Professor Doug Berman, sentencing guidelines guru, thinks of Carrington.)
Update: Professor Berman weighs in. Interesting! Are the conservatives now guilty of putting their policy preferences ahead of the letter of the law?
* Best correction ever, from Slate: “Our article originally identified Consuelo Callahan as Consuela Callahan.”
Because, you know, all Latinas in the state of California are named “Consuela.” They’re all maids. And they’re all played by Lupe Ontiveros in the movies.
Carrington v. United States [Volokh Conspiracy]
Carrington v. United States (PDF) [Ninth Circuit via How Appealing]

Frank Easterbrook Judge Frank H Easterbrook Above the Law.JPGBack in September, we reported that Judge Frank Easterbrook — “a veritable judicial hottie, a possible SCOTUS nominee, and brother of well-known author and ESPN.com commentator Gregg Easterbrook” — would be taking over in November as the chief judge of the Seventh Circuit.
The passing of the torch has now come to pass. From a tipster:

Judge Frank H. Easterbrook (your favorite judicial bear hottie) assumed the mantle of Chief Judge of the Seventh Circuit on Monday, November 27.

Judge Joel Flaum turned 70 over the weekend. Under 28 U.S.C. 45(a)(3)(C), he was forced to step down as chief judge.

There was a nice little party in the main courtroom for employees of the court. Cake even!

How lovely! But we think that Chief Judge Easterbrook might have preferred an Arby’s Melt.
28 U.S.C. § 45: Chief Judges [Cornell Law School / Legal Information Institute]
Earlier: All Hail the Chief: Judge Frank Easterbrook

Last week, an investiture ceremony was held for Judge Neil Gorsuch, recently confirmed to the U.S. Court of Appeals for the Tenth Circuit. And it was a star-studded affair. From the Denver Post:

Seven-year-old Emma and 5-year-old Belinda helped their father, Neil Gorsuch, into his judge’s robes Monday after the newly appointed 10th Circuit Court judge was sworn in.

Munching on cookies after the formal ceremony, Emma said she thought it “was nice.”

Supreme Court Justice Anthony M. Kennedy, who was in Denver to administer the oath, spoke directly to the little girls before Gorsuch raised his right hand. “He’s doing it to remind all of us that the first obligation any American has is to defend and protect the Constitution of the United States,” he said.

Justice Kennedy’s pedagogical impulse is admirable. We suspect, however, that Emma and Belinda were thinking more about cookies than the Constitution.
Some supplementary coverage, from an ATL tipster:

The entire en banc 10th Circuit was present. Justice Kennedy administered the oath. Attorney General Gonzales read the commission. Both Colorado Senators made remarks, as did Mark Hansen of Kellogg Huber (the insanely prestigious appellate shop from which Gorsuch rose). Half of the Justice Department was there: Rachel Brand, Elisebeth Collins Cook, Brett Gerry, Wan Kim, Gregory Katsas, among others.

The Gorsuch clerks showed everyone around Denver and got trashed on consecutive nights. Good times were had by all.

Article III groupies, Judge Neil Gorsuch is one to watch. He’s brilliant, he’s young, and he’s incredibly well-connected. Look for him to rise through the ranks of Supreme Court feeder judges in the years to come — and, perhaps, to be nominated to the Court himself someday.
(Judge Gorsuch is taking the seat of Judge David Ebel, who has been the Tenth Circuit’s resident feeder judge for quite some time now. Guess that’s the 10th Circuit’s designated “feeder seat.”)
Update: Would someone be able to locate and/or send us a good photo of Judge Gorsuch for our files? Our quick Googling didn’t produce anything useful.
10th Circuit judge’s oath a family affair [Denver Post]

Erika Harold Miss America Above the Law.jpgAt the risk of seeming Harvard-centric — yesterday we wrote about Larry Tribe’s dog — we bring you this brief report on the Ames Moot Court finals, held last week at Harvard Law School. From the Boston Globe:

Every year, the Ames Moot Court finals at Harvard Law School are a pretty amazing affair, bringing together a dozen third-year law students who have already beaten out a couple hundred of their classmates, in front of high-ranking real-life judges. But this year, the cast of characters seemed particularly interesting.

On one team was Erika Harold (at right), the 2003 Miss America. The other team included Kevin Terrazas, who started law school after serving in Iraq with the 101st Airborne Division.

The bench for the competition was similarly distinguished. It’s traditional for a Supreme Court justice to preside over the Ames Moot Court finals, and this year was no exception: Justice Anthony M. Kennedy, the Court’s increasingly influential swing vote, wielded the gavel. He was joined on the bench by two of the most brilliant members of the federal judiciary: Judge Diana Gribbon Motz, of the Fourth Circuit, and (super-feeder) Judge Merrick B. Garland, of the legenday D.C. Circuit. Both Judge Motz and Judge Garland have been mentioned as possible Supreme Court picks in a Democratic administration.*
The case presented was a fictional one, captioned Adam’s Apple Markets v. Aphrodite Cosmetics. The team representing Aphrodite, which featured veteran Kevin Terrazas as an oralist, won best overall case. Beauty queen Erika Harold and her teammates won the prize for Most Congenial best written legal briefs. Tian Tian Mayimin, who argued for defendant Aphrodite Cosmetics, won for best oral presentation. (But in announcing the oralist award, Justice Kennedy “noted the judges emphasized substance over style.” Does that mean that Mayimin’s style left something to be desired?)
Were any of you in attendance at this august event? If so, and if you have any funny or interesting tidbits to add, please do so in the comments.
* Does anyone remember those TV commercials for Motts applesauce cups, in which a little kid says to his co-conspirator, “I got the Motts”? If Judge Motz is ever nominated to the Supreme Court, we’d like the president to announce her nomination by exclaiming, “I got the Motz!”
Shirin Shakir Memorial Team Wins 95th Ames Moot Court Finals [Harvard Law Record via How Appealing]
Miss America Loses Harvard’s Moot Court Competition [WSJ Law Blog]
Ames Moot Court Final video [Harvard Law School via How Appealing]
Moot Court Finals Rule at HLS [Harvard Law School]

Edith Jones Edith H Jones Edith Hollan Jones Above the Law.jpgFor years we’ve been huge fans of Judith Edith H. Jones. She had a reputation as a tough, smart, conservative judge. She was known as as a badass of the bench, more than capable of eviscerating counsel or colleagues who crossed her. Her dramatic nickname — “horsewoman of the right-wing apocalypse” — pretty much said it all. (See here, hottie #3.)
(The high-powered Judge Jones was also a recurring Supreme Court short-lister — so frequent a SCOTUS mention, in fact, that Slate once dubbed her “Susan Lucci in Judicial Robes.”)
So our obsession with Judge Jones went way back. How could we not adore such a strong-willed, right-wing judicial diva? Sometimes muttering her full name under our breath — the Honorable Edith Hollan Jones — would make us shiver involuntarily.
This past weekend, at the Federalist Society conference, we actually got to meet Judge Jones. It was a thrill! And we even got to take a picture of her — so cool!
(Alas, Judge Jones forbade us from publishing it on the internet — and we don’t want to be found in contempt. So the picture will have to remain in our personal stash of federal judicial portraits. Sorry!)
In addition, we had the chance to observe Judge Jones up close, while she was in the audience of the final panel of the conference — a magnificent shouting match between social conservatives and libertarians that was nominally entitled “The Role of Government in Defining Our Culture.” (We expect to write more about this steel-cage match panel discussion later.)
We are sad to report, however, that some of these observations have changed our view of Judge Jones. We reveal what we saw, after the jump.

double red triangle arrows Continue reading “Judge Edith Jones: And She Brakes for Small Animals, Too”

Arlen Specter Senator Arlen Specter Above the Law.jpgToday’s sessions at the Federalist Society annual conference kicked off with a speech by Senator Arlen Specter (R-PA), the current (but outgoing) chairman of the Senate Judiciary Committee. His remarks, which focused on the judicial nominations process, were engaging and informative. The crowd enjoyed his dry wit.
We may have more to say about Senator Specter’s address later. For now, a quick account of our exchange with him during the question-and-answer session. When it was our turn to question Senator Specter, we asked:

Senator Specter, as the current chair of the Senate Judiciary Committee, do you have any thoughts on specific individuals who might be suitable nominees to the Supreme Court? And on a related note, what do you think of Senator Chuck Schumer’s suggestion of you as a possible nominee?

The Senator took the second question first. His good-natured, joking response (paraphrased):

It’s the best idea he’s had in a decade. In fact, it’s the only good idea he’s had in a decade!

Senator Specter went on to note that, back in 1971, he was talked about as a possible Supreme Court nominee (according to the Nixon tapes). He quipped that 1971 “would have been a better time” than today.
Finally, with respect to opining on possible SCOTUS nominees, the senator demurred. He noted that while he certainly could offer some names, as part of the Senate’s “advise and consent” function, he would exercise his discretion not to speak on the subject. He said he expected President Bush to appreciate that decision.

Justice John Paul Stevens Above the Law.jpgRumors that Justice John Paul Stevens is about to step down from the Supreme Court are a recurring feature of the legal gossip landscape. As we previously observed, JPS retirement rumors “return each spring, with the birds and the flowers.”
But hey, we’re good sports, so we’ll blog about them. ‘Cause one of these days, they might actually turn out to be true — and we wouldn’t want to be caught flat-footed. (Our personal view, though, is that Justice Stevens will leave the Court as the late Chief Justice Rehnquist did — through death, not retirement.)
Anyway, here’s the latest gossip. Per Sean Rushton, executive director of the Committee for Justice, and an active participant in judicial confirmation battles:

For the past several weeks, there has been a rumor circulating among high-level officials in Washington, D.C., that a member of the U.S. Supreme Court has received grave medical news and will announce his or her retirement by year’s end. While such rumors are not unusual in the nation’s capital, this one comes from credible sources. Additionally, a less credible but still noteworthy post last week at the liberal Democratic Underground blog says, “Send your good vibes to Justice Stevens. I just got off the phone with a friend of his family and right now he is very ill and at 86 years old that is not good.”

Rushton’s rumor was picked up over at Confirm Them.
If Justice Stevens does resign from the Court, who might fill his robes? U.S. News’s Washington Whispers column offers this intelligence:

President Bush isn’t looking very far for his next conservative pick to the U.S. Supreme Court: His top two candidates work just 12 blocks away in the U.S. Court of Appeals for the District of Columbia Circuit. Insiders say Judge Janice Rogers Brown, appointed in June 2005, tops the list, followed by Judge Brett M. Kavanaugh, appointed in May.

Also up: Peter Keisler, whose nomination to the D.C. court is pending. So there’s no vacancy, you say? With apologies to Justice John Paul Stevens, 86, it’s his seat they hope to fill.

As ATL readers know, we love ourselves some Janice Rogers Brown. But would this outspoken, conservative judicial diva be able to make it through a Democrat-controlled Senate? The same goes for Brett Kavanaugh, whom Senator Chuck Schumer once described as “the Zelig of young Republican lawyers.”
Maureen Mahoney Maureen E Mahoney Above the Law Supreme Court.jpgSo we’d be interested in your views on a question that a (clearly conservative) reader sent to us earlier today:

How about a piece on SCOTUS candidates Bush could get through the Senate now that it’s controlled by Communists?

(Now now, dear reader, conservatives are trying to play NICE with Nancy Pelosi and her pals. No name calling.)
One obvious response: Maureen Mahoney (above right). We previously wrote about Mahoney in great detail over here. We expressed concerns over whether she would be perceived as conservative enough to secure the nomination. But in a Senate controlled by Democrats, being a moderate conservative — as opposed to a hardline one — would be a plus.
Thoughts?
Update: Lots of interesting names in the comments.
The Rumor About John Paul Stevens [Human Events]
Talking About Judge Brown [Confirm Them]
Another Reason to Go GOP [Confirm Them]
Washington Whispers [U.S. News and World Report]
Maureen Mahoney: “The Female John Roberts”? [Underneath Their Robes]

Last week we asked for your input on the most flattering hairstyle for Judge Janice Rogers Brown, of the exceedingly prestigious D.C. Circuit. Judge Brown, a high-powered and conservative jurist, may someday be the first African-American woman to sit on the Supreme Court.
We offered you a choice of two looks: “Bangs Janice” and “Perm Janice.” And “Bangs Janice” won in a landslide, with 92 percent of the vote.*
We can see why. Consider this reader email (with photographic support):

This is an easy one: “Bangs Janice” all the way. With bangs, Judge Brown looks like the hip and attractive comedienne, Wanda Sykes:

janice rogers brown and wanda sykes.JPG

“Perm Janice,” on the other hand, calls to mind a different black woman:

janice rogers brown and aunt jemima.JPG
We agree; Judge Brown should steer clear of that second look. Left-wingers already try to reduce Judge Brown to a racial stereotype (as BlackCommentator.com did when it published an offensive cartoon of her). Judge Brown doesn’t need to help them do it.**
Do you know of a prominent figure within the legal profession who sports two (or more) divergent looks? If so, please let us know. We’re always seeking other candidates to go before the jury in ATL’s Courtroom of Style.
* One reader objected to our hairstyle terminology. But even if our terms were erroneous, we provided photographs to make clear which hairstyle was which. So voters should not have been confused.
** Conservatives were outraged by the JRB cartoon. In the words of Byron York, the cartoon depicted Judge Brown “as a fat black woman with huge lips, an unruly Afro, and an enormous backside.”
Earlier: A Random Friday Poll: The Hairstyles of Judge Janice Rogers Brown

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