Enough.

Like all of us, I have been struggling to process the extraordinary events in Washington, DC over the last couple of days. Since this blog was founded in 2017, I have made every effort to afford Donald Trump the respect due to the Presidential office. That form of respect, I felt, was owed to American democracy itself.

But Trump clearly respects neither the office nor American democracy. The insurrectionist mob that attacked the U.S. Capitol on Wednesday had assembled and moved at his direction. And he did virtually nothing to stop the carnage, placing thousands of people directly in harm’s way. It is entirely proper that he be removed from office immediately.

The aftermath of the insurrection offered some comfort for those who still have great faith in America as the beacon of freedom and democracy. I watched the Senate return to its chamber and continue its debate, with members on both sides of the aisle recognizing the gravity of the situation and the particular blessings of liberty that elevated them to membership in the greatest deliberative body in history. Perhaps this shocking moment will remind all of Congress — all of our leaders, elected or unelected — that they bear heavy responsibilites that come with public service, among them reasoned debate and respect for the rule of law. Maybe — just maybe — they will lead rather than snipe. Maybe they will contemplate rather than tweet. Maybe they will show us that they, too, and worthy of the offices with which they have been entrusted.

And what of the judges? A SCOTUSBlog editorial has called on the Supreme Court to issue a statement confirming the basic fact that Joe Biden won the Presidential election. I think that is unlikely, given the Court’s reticence to express any view on an issue not directly before it. But it is nevertheless a good idea. The Justices are Americans first, and through a combination of merit and happenstance they find themselves in a position of prominence at this moment in history. They sat silently while another mob destroyed a federal courthouse in Oregon this summer. It is time to speak up. History will remember what they say — and what they don’t.

Other judges will eventually have their say, as the insurrections are rounded up and brought to justice. I am reminded of a moment nearly seven years ago, when Boston was shaken first by the bombs that detonated at the finish line of the Boston Marathon, and later that week by a manhunt that shut down the city and surrounding towns for an entire day. It was the first time I heard the phrase “shelter in place,” and it was terrifying. When I returned to school after the incident, I struggled for what to say to my students. I decided to read them a portion of the statement given by Judge William Young when he sentenced another terrorist — “shoe bomber” Richard Reid — in 2004. It captured all the feelings I had that day:

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too muich stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down and bring them to justice.

So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.

In a very real sense Trooper Santiago had it right when first you were taken off that plane and [placed] into custody, and you wondered where the press and TV crews were, and [he] said, “you’re no big deal.” You’re no big deal.

What your counsel, your able counsel and what the equally able United States Attorneys have grappled with, and what I have as honestly as I know tried to grapple with, is why you did something so horrific. What was it that eld you here to this courtroom today. I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.

And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.

It seems to me you hate the one thing that to us is the most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not to believe as we individually choose.

Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fully, individually, and discretely.

It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, [and] will go on in their … representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.

Make no mistake, though, It is yet true that we will bear any burden, pay any price, to preserve our freedoms.

Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, not war, individual justice is in fact being done.

The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will.

Custody, Mr. Officer. Stand him down.

Judges speak for our communities, our ideals, and our shared values. Many of them will have the chance to reiterate those ideals, proudly and publicly, in the coming months. It is altogether fitting that they — and we — do so. America is better than this terrible moment. Let’s get our house in order.

Arguing a Supreme Court case from home: a sketch artist’s view

I have been meaning to link to this wonderful SCOTUSBlog piece, in which courtroom sketch artist Art Lien captures attorneys conducting this past fall’s Supreme Court oral arguments from their home offices. The images alone give you an incredible glimpse into the variety of styles and philosophies. Some attorneys, dressed to the nines, stand at a podium in front of pristine surroundings. Others wear jeans and hoodies at their desks, surrounded by overflowing stacks of paper.

I always remind my Civil Procedure students that law school demands some sort of professional conformity, but that within those bounds they should never lose sight of their individual passions, personalities, and styles. These sketches are a terrific example of how confidence in your own style and successful lawyering can go hand-in-hand.

John J. Parker’s failed Supreme Court nomination

Columnist Ray Hill at The Knoxville Focus has been running an interesting multi-part series on the nomination of Judge John J. Parker to the Supreme Court in 1930. Judge Parker, who was serving on the Fourth Circuit Court of Appeals, would narrowly lose his confirmation vote due to the complex political alignments of the era. He would continue to serve on the Fourth Circuit until his death in 1958.

Parker has long been an interesting character from the perspective of federal court organization and administration. A politician before he began his judicial career, Parker was very closely tied to the leadership of the American Bar Association, and was one of the principal architects of the “Queen Mary Compromise” which created the modern Judicial Conference of the United States. (Interested readers can learn more here.)

Ray Hill’s pieces paint a vivid history of the Parker nomination, from the surprise opening on the Court occasioned by Justice Edward Sanford’s untimely death (after a routine dental appointment), to the rift within the Republican Party, to the shifting political demographics of the South. Although all four parts collectively feel repetitive at times, it’s a valuable overview of a fascinating moment in history.

The four parts of the series can be found here, here, here, and here.

 

Assessing the Supreme Court’s new oral argument format

When the coronavirus pandemic forced it to move to telephonic oral arguments last May, the U.S. Supreme Court adopted a new format. Each Justice, in descending order of seniority, was afforded three minutes to ask questions of each side. The result was much cleaner, and in many ways more interesting, that the conversational scrum that typically erupts at One First Street. Justice Thomas has come alive, knowing that he will be able to get a question out without interruption. And while more junior Justices have some of the wind taken out of their sails for having to wait their turn, some of the follow-up questions have proven to be equally interesting and clarifying.

Of course, not everyone is happy with the new format, and Bloomberg Law reporter Kimberly Strawbridge Robinson has been all over it. Last month, she explained that it has been harder for advocates and reporters to get a sense of what’s on the mind of Amy Coney Barrett, the juniormost Justice, since she is last in the queue to ask questions. And recently, she reported that many of the Justices themselves dislike the format, specifically because it stifles the freewheeling discussion to which they are accustomed. In particular, Justice Breyer, who likes to tease out lengthy hypotheticals during oral argument, has been frustrated to hear the Chief Justice say “your time is up” before the question is even complete.

I’m not sure there is an answer that will please everyone. My gut instinct is to extend the time for oral argument — there is nothing magical about 30 minutes per side — but that will probably just invite more palaverous and repetitive questions. What about submitting written questions to the parties after the argument? I’m just spitballing here. But having enjoyed getting to hear Justice Thomas’s thinking during telephonic hearings — not to mention the clarity of not having everyone talk over each other — I would hate to just have a knee-jerk reversion to the old system when the pandemic subsides.

Barrett confirmed and sworn in

Amy Coney Barrett is now the newest Justice of the United States Supreme Court. After a 52-48 vote Senate vote, she was sworn in last night by Justice Clarence Thomas.

Justice Barrett has demonstrated the intelligence, legal skill, care, and demeanor to be an influential member of the Court for decades to come. As importantly, the Court is back to full strength and in a better position to carry out its Constitutional duties efficiently and effectively.

On Biden, the Court, and what voters “deserve to know”

Joe Biden’s refusal last week to state whether he supports the Court-packing scheme advanced by several prominent members of his own party, and his insistence that voters “don’t deserve” to know where he stands on the issue, has drawn understandable scrutiny. Several commentators have attempted to dissect both the political cynicism behind the proposal and Biden’s strategy for declining to comment on it. (In particular, I recommend the first dozen minutes of this Commentary podcast as well as this op-ed by Gerard Baker in the Wall Street Journal).

I want to focus here on what the kerfuffle means for Biden post-election, since it seems very likely that he will win the Presidency next month. As Baker points out (behind a paywall, unfortunately), “even Mr. Biden—something of a procedural conservative—must be aware how grotesque the idea [of court packing] is. The prospect of a high court turned into an adjunct of the executive and legislative branches, staffed by black-gowned, forelock-tugging accessories to untrammeled political excess, must surely give him pause.”

Baker is right. Biden is too steeped in the Washington politics of the last fifty years to not be a traditionalist on this issue. Indeed, he has had three decades to reveal himself as a disruptor of court structure, both as a high-ranking member of the Senate Judiciary Committee, and as Vice-President. To be sure, he has spearheaded legislation that has changed court operations, and he bears heavy responsibility for setting the tone of current Supreme Court confirmations with his behavior during the confirmation hearings of Robert Bork and Clarence Thomas. But he has nevertheless conducted himself according to the standards of twentieth-century American politics: play hard, and don’t kick the game board over just because you think you’re losing.

The extremists in his party disagree, and are embracing the vision of converting the Court into an arm of the progressive movement by brute political force. This  development should concern all who believe in preserving the delicate balance between court independence and interdependence, and indeed the proposal is playing very poorly with most voters. (Perhaps in a nod to this reality, Biden himself finally stated that he was “not a fan” of court packing in a radio interview on Monday.)

Progressive extremists will certainly put pressure on a Biden Administration to force the court-packing policy into existence, especially if Democrats win the Senate in November.  And of course Biden, like any President, would feel some compulsion to support the legislative agenda from a same-party Congress. But some of the more senior legislative members of his own party recognize the inherent dangers (political and structural) of court-packing, and would likely try to to slow down any movement, especially in the Senate. Moreover, there is no significant reason to believe that his White House would simply be a vessel for extreme progressives. Biden is a wily veteran in Washington. No matter how he may project on the camoaign trail, he surely knows how to wield the levers of power behind closed doors.

Bottom line: A Biden Administration will not support court packing and will try to deemphasize it. Look for Biden to lean on Nancy Pelosi, and others who have been burned by aligning themselves with their intraparty radicals, for assistance in tamping down the extremism. Biden’s position may prove to be a last stand, depending on the growth of the radical progressive wing of the Democratic Party, and court-packing may remain as an issue in 2024. But a lot will happen between now and then, and the short-term likelihood of this terrible policy proposal coming to fruition is probably slimmer than it appears.

Jurisdiction stripping is back, this time from the left

Here’s something I wrote about federal judicial accountability:

Many commentators have praised Article III’s guarantees of life tenure and freedom from salary cuts as essential tools to preserve judicial independence. Far less frequently have the commentators explored the impact of these guarantees on judicial accountability. Rather, until relatively recently, the prevalent assumption (dating back to the original Federalist debates) has been that “the perceived need for judicial accountability to counterbalance life tenure, nonreducible salaries, and judicial review, began and ended with the impeachment mechanism.” A reexamination of that assumption, however, has been sparked in the early twenty-first century both by academic commentators and some in Congress. The last ten years alone have produced a host of creative— sometimes outrageous—alternatives to promote federal judicial accountability through (in most cases) a combination of executive and legislative power and populist sentiment. Some such proposals are effectively substance-neutral, most notably replacing life tenure with fixed, lengthy judicial terms. Other proposals, however, are aimed at the substance of judicial decision-making, among them several schemes to strip federal courts of jurisdiction to hear certain types of cases. Prominent politicians have even occasionally threatened impeachment—or worse—for federal judges as a punishment for decisions they did not find appropriate. Contributing to the tenor of politically “accountable” judges is a federal judicial appointment process that has become increasingly partisan in the last two decades.

This paragraph was part of the introduction to an article I co-wrote twelve years ago, and yet it feels surprisingly fresh. The difference is that while many of the efforts to subject the court to populism and political sentiment a decade ago came from conservatives, today those same views are being embraced by the liberal establishment. Countless bad ideas — Court packing, term limits, and the like — continue to emerge, with the most recent being the rediscovery of jurisdiction-stripping. Bloomberg Businessweek explains:

Some liberal proponents believe jurisdiction stripping could help Democrats shield bold future legislation from damaging court battles. In theory a Democratic Congress could pass a health-care plan or a Green New Deal with a provision stipulating that the legislation lies outside the bounds of Supreme Court review.

Under variations of the jurisdiction-stripping proposal, Democratic lawmakers could also limit the ability of lower courts to review legislation or could confine legal challenges to geographic regions where courts are generally sympathetic.

Let’s be clear about what’s happening. Today’s politicians, unable or unwilling to do the hard work of compromise and dealmaking, are leaving the courts to make sense of hastily written and sloppy laws. When lawmakers don’t like the results, they propose extreme “fixes” which would deny the courts the ability to do even their core adjudicative work. This is wrong, whether it comes from the right or the left, and is symptomatic of how awful our political class — and their academic enablers — have become.

Turley on court packing

Jonathan Turley has been a voice for sanity among legal commentators during the tumultuous past year. His new op-ed at The Hill, which looks at the dangers and irony of Democrats’ court-lacking schemes, continues his tradition of strong and reasonable analysis. A snippet:

For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be some kind of litmus test. Democrats have pledged to add new justices to ensure a bench that will vote to uphold or overturn cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes like voting to uphold Roe. This rationale has reached truly dystopian levels, with former White House counsel John Dean insisting that, by creating a new ideological majority, Democrats would remove politics from the Supreme Court.

Litmus tests and the idea to pack the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. It would obliterate an institution that has preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will evaporate if Democrats conduct litmus tests or pack the bench.

The whole article is well worth the read.

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”