* A word of advice to the new summer associates: Paralegals can’t be trusted. [Legal Intelligencer]
* SCOTUS dismissed the lawsuit that sought to punish top Bush officials, including former Attorney General John Ashcroft, for detaining Muslims that were not involved in 9-11. [Christian Science Monitor]
* Military commission trials for Guantanamo detainees present many of the same challenges that the Bush administration faced, in spite of Obama’s facelift. [New York Times]
* The White House passed on an opportunity to bring a case involving gays in the military to the Supreme Court. Are they stalling and playing politics or are they right to say that the law should be changed in the legislature and not the courts? [Wall Street Journal (subscription)]
* What do potential SCOTUS nominees and ambulance chasers have in common? Uh, hopefully nothing…[Esquire]
* The court will hear a case against Sarbanes-Oxley in the fall term–is this the time to question too much oversight? [Washington Post]
* A word of advice to the new summer associates: Paralegals can’t be trusted. [Legal Intelligencer]
* I would have no problem at all if potential SCOTUS justices had to answer this questionnaire and those answers had to be published and discussed during the confirmation hearing. [Daily News]
* Married men looking for sex slaves might want to consider the words of the wise Falstaff. Discretion is the better part of valor. [True/Slant]
* New Hampshire Governor John Lynch has some ideas about
reelection religion. [Law Dork 2.0]
* New U.S. Attorneys have been named for New York and New Jersey. I suggest laid off associates start networking with these guys now. Remember, today’s U.S. Attorneys are tomorrow’s rainmakers. [City Room]
* Isn’t being forced to watch Maury Povich a clear violation of the 8th Amendment? I don’t mean liberal “whaaa, when I go to prison, sometimes they give me bad touches” violation. I mean a straight up, dress you in a bonnet and make you watch surveillance DVDs of your mom having sex with your stepdad, violation of the 8th Amendment’s prohibition against cruel and unusual punishment. [Popsquire]
Among the finalists are federal appeals court judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Michigan Gov. Jennifer Granholm, said the sources, who asked not to be identified because they were not authorized to speak by the White House.
Women make up all but one of the top candidates currently being given serious scrutiny, the sources said.
Also on the list, a source said, was California Supreme Court Justice Carlos Moreno. The 60-year-old Los Angeles, California, native was not among the early favorites mentioned by legal analysts and the media. White House press secretary Robert Gibbs previously hinted some of the names under consideration were under the political radar.
Who will get the nod? To be totally honest, it’s pretty impossible to say at this point. Once you get down to a short list of a half-dozen, the choice belongs to the president (as the White House seems to be emphasizing to interest groups). Anything can happen.
President Obama will meet personally with some of the finalists, and his final choice will no doubt be influenced by those meetings. A leading contender can kill his or her chances by coming across poorly in the interview (as former Judge J. Michael Luttig did when he met with President Bush, according to Jan Crawford Greenburg in Supreme Conflict).
But none of this will stop us — or anyone else — from speculating. Speculation is fun! And since we probably won’t have a nominee until after Memorial Day, for the reasons identified by Marc Ambinder of The Atlantic, we might as well pass the time with parlor games.
Additional discussion, plus a pair of polls, after the jump.
Berkeley Law School professor (and former Department of Justice attorney) John Yoo published his inaugural column in the Philadelphia Inquirer on Sunday. He argues that Obama should nominate somebody FDR would have liked to the Supreme Court:
Franklin Roosevelt faced exactly this dilemma. With large majorities at his back, FDR pushed through sweeping legislative efforts to end the Great Depression (which never really worked). His only obstacle became the Supreme Court, which held several basic New Deal laws to violate the Constitution’s limits on federal powers and the economic rights of the individual. Only after FDR waged a campaign to increase the size of the court and give himself more appointments did the justices surrender. The New Deal could not have survived without judges that deferred to the legislature on economic regulation.
Obama could make a pick based solely on race or sex – though it’s not clear why the most empathetic judges are minorities or women – to please parts of his coalition. But if the president wants to secure the success of his economic, political, and national-security objectives, he should remember FDR’s example and choose a judge who believes in the right of the president and Congress, not the courts, to make the nation’s policies. If Obama shoots for empathy instead, he will give Senate Republicans yet another opportunity to rally around a unifying issue where they better represent the majority of Americans.
Wait, so now FDR’s court-packing scheme was a good idea? Because it hobbled SCOTUS and forced them to defer to Roosevelt’s amazing enhancement of federal power? A conservative believes this?
Before we get too bogged down in Yoo’s argument, can somebody remind me why we care about what John Yoo has to say?
The left (over) reacts, after the jump.
* We are not the only ones talking about the problems women have with each other at the office. The New York Times says women bully women. [New York Times]
* Ex-Judge of the Day Hall of Famer Samuel Kent, the first federal judge to be charged with a sex crime, will be sentenced today. He could have gone to the big house for up to 20 years, but his two decades on the bench have made him sentence-savvy. He’ll face three years max thanks to a plea agreement. [Houston Chronicle]
* Former Ohio AG Marc “the Dannimal” Dann has found a new niche. [Legal Newsline]
* A cobbled-together article suggesting that suicide is a trend for stressed attorneys. [National Law Journal]
* Every move you make, every turn you take. A Wisconsin appeals court says the police can slap a GPS tracking device on your car. No warrant needed. [CNet]
* SCOTUS, SCOTUS, SCOTUS. Trying to get into President Obama’s head when it comes to his judiciary thinking. [New York Times]
* White House Chief of Staff Rahm Emanuel may be heading up the SCOTUS nominee search but Vice President Joe Biden is enjoying his grand poobah role in the process. [Washington Post]
* The gambling odds on the nominees. Sotomayor’s the favorite with odds of 13-8. Michelle Obama’s odds? 500-1. [Fox News]
* A guide to the YouTube moments of potential SCOTUS nominees — gaffes and brilliance. Judge Sonia Sotomayor’s clip is the “best” of the bunch — short, concise, and damaging. [Slate]
* The New York Times wants readers to pick Souter’s replacement. Vote Lat! [The New York Times]
- Department of Justice, Lesbians, Morning Docket, Robert Wone, SCOTUS, Senate Judiciary Committee, Supreme Court
* There has been plenty off talk about potential Supreme Court nominees, but how about the conservative groups gearing up to oppose them? [The Washington Post]
* Two highly qualified lesbians, Virginia Linder and Kathleen Sullivan, are apparently on Obama’s Supreme Court short list. [ABC News]
* The ranking Republican on the Senate Judiciary Committee, Senator Jeff Sessions, says that an openly gay Supreme Court nominee should be treated fairly “regardless of what kind of persuasion they may have.” [Fox News]
* Meanwhile Specter has lost his seniority on the Senate Judiciary Committee and will become the chairman of the subcommittee on crime and drugs. “What we don’t want is an angry former Republican during a Supreme Court hearing,” said a Democratic staffer. [Washington Post]
* Police continue to investigate mysteries surrounding the death of Robert Wone, a Washington lawyer who was murdered in 2006. [The Blog of Legal Times]
* Did you know there was an elite “Public Integrity Section” in the Department of Justice tasked with probing corruption charges of public officials? [The New York Times]
The upcoming retirement of Justice David Souter has led to lots of speculation about the next Supreme. We held a poll here at ATL, including some of the potential nominees that have been mentioned most often by the legal press. Almost 10,000 ATL readers put Sonia Sotomayor, with 28% of the vote, and Elena Kagan, with 20% of the vote, at the top of their list (see full results after the jump).
Obama says he wants a Supreme with empathy. Given that, Clerquette at Underneath Their Robes asks whether the smart money is on solicitor general and ex-Harvard dean Elena Kagan:
The question of course, is which judicial fox will occupy the Souter seat. As you know, our/ATL’s leaderboard points to General Kagan and Judge Sotomayor as front-runners. But, while some Court-watchers (and POTUS fans) are unabashedly agog at the possibility of the “diversity double” that would be accomplished by Judge Sotomayor’s nomination, a few interesting rumblings to the contrary have emerged. Point I: a number of commenters, including Adam Liptak of the New York Times, have pointed out that the notion of promoting “diversity” amongst the Supremes requires both consideration of personal characteristics and credentials and a good, hard look at the presumptive nominees’ path to power. Given the homogeneity of the current bench, which consists entirely of former federal judges (who are, admittedly, irresistible!), might POTUS seize this opportunity to mix it up a little? He has, after all, identified Justice Earl Warren as his personal judicial dreamboat, citing Justice Warren’s political background and the pragmatism with which it infused his juristic decision-making.
But wait: there’s more! In an article so chock-full of Article III gossip that Clerquette read much of it while breathing into a paper bag (narrowly avoiding a dramatic swoon) esteemed law professor Jeffrey Rosen writes that Judge Sotomayor may not be quite ready for prime time. Although she gets high marks for sass and biographical appeal — not insignificant qualities — Rosen reports that some have raised doubts about her strength on the merits. For example, he writes, many of his sources have “expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” Gasp! Juicier yet, Rosen quotes a former Second Circuit clerk who opined that Sotomayor was “‘not that smart and kind of a bully on the bench.’” The clerk also noted that Judge Sotomayor had what sound (to this blogress) like patent indicia of divadom: specifically, said the clerk, “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.”
Wow, Professor Rosen, don’t hold back. Those are strong words, and are getting some strong reactions. Glenn Greenwald at Salon excoriated Rosen for the attack piece.
In our initial post, we proposed an unofficial “David Lat to SCOTUS” campaign. You all came up with some interesting suggestions as well. More speculation on Souter’s replacement, and some dark horse candidates, after the jump.
* A Los Angeles Judge accused an asbestos litigation firm of playing “a grisly game of asbestos litigation” after they refiled a Texas case in California because it has more exacting standards for a defendant to obtain summary judgment. Perhaps, judge, you’ve lost a little perspective? [ABA Journal]
* A German court rejected a woman’s appeal to take her married name Frieda Rosemarie Thalheim-Kunz-Hallstein because it is too long. [Time.com]
* “Across Georgia, poor people accused of crimes are being abandoned by their lawyers because there is no money to pay their legal fees” (this might put deferred start dates in to perspective).[The Atlanta Journal Constitution]
* Madoff “turned his investment firm into his ‘personal piggy bank,’” using the ponzi money for his family’s expenses. Personally, I have no energy for renewed outrage. [Bloomberg.com]
ATL readers, there are many names being bandied about as potential nominees for the Supreme Court. We’ve narrowed the list to nine people who have been mentioned by at least two of the following outlets: BLT, AP, and the SCOTUSblog.
That the next Supreme Court justice will lack a Y chromosome is a virtual certainty, but we’ve thrown a few token males into the poll anyway. Who strikes your fancy?
More on these nine, after the jump.
Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October.
Arlen Specter’s switch from Republican to Democrat looms even larger now.
We’ve reached out to the SCOTUS public information officer, but have not yet received comment. (We’re not surprised, though, since we reached out at 10:25 p.m.)
Update (11:47 p.m.): The PIO got back to us:
Justice Souter has no comment.
If true, Souter’s retirement would do little to change the balance of the court. Remember:
An Obama pick would be unlikely to change the ideological makeup of the court. Souter, though appointed by the first President Bush, generally votes with the more liberal members of the court, a group of four that is in a rather consistent minority.
Souter’s retirement is not entirely surprising to regular Above the Law readers. Earlier this month, we — via Underneath Their Robes — told you that Souter hadn’t hired any clerks for the October 2009 term.
Let the jockeying begin for Obama’s first SCOTUS nomination. We invite you to suggest nominees in the comments. Maybe we’ll do a poll…
Update: The BLT has an early line on possible nominees, after the jump.