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Author: Mike Dimino

2

The end is near, and so I face my final curtain

Many thanks to the regular crew at CO, particularly Dan and Dave, for inviting me to comment this past month. I have had a wonderful time and look forward to returning. Thanks also to the many readers who have taken the time to contact me, comment on my posts, or simply to read them. It is wonderful to be part of the electronic community of legal scholars, students, and the interested public, and I am indebted to those who asked me to take a role. Best wishes, and please continue to call and e-mail.

Mike

4

Law Clerk Disqualification

There has been some to-do about this story concerning one of Justice Alito’s soon-to-be clerks. In brief, the article quotes some academics who have a problem with the selection of Mr. Ciongoli, who is a former clerk of then-Judge Alito and a former aid to then-Attorney General Ashcroft. The article reports that Ciongoli had a hand in creating “the Bush administration’s legal strategy after the Sept. 11, 2001 attacks.” As a result, some academics (Deborah Rhode is cited) question whether it is proper to have clerks who are perceived as “partisan” or who may be able to influence the way “his own work” is judged by the Court.

Stephen Gillers is quoted as saying that Ciongoli will likely be removed from working on cases that touch on his prior experience, as a way of mitigating the latter fear. I suspect that is in fact what will occur, but I don’t know that it should, or that if Alito were to ask for Ciongoli’s opinion he would be doing anything the least bit wrong. Is it unethical, for example, for a judge to ask for a clerk’s opinion on a case that was decided the prior year by the court on which the clerk was then working? Obviously the current practice (though not always the historical one) is for judges to recuse when they have participated on a case. (There have been many examples of Supreme Court Justices participating in cases interpreting laws they had a hand in drafting or implementing before assuming the Bench.) But isn’t the situation different when the only prior involvement is that of a clerk, and the judge would be able to evaluate his advice with a grain of salt?

I know of no statutory restrictions on the ability of clerks to participate in cases because of their prior experience. There is the danger of undue influence, but I think it is minimal, since (1) clerks see it as their job to advise their judges and not to deceive them or push for policy results, (2) judges retain the final decision, and (3) the chance that a judge’s opinion will be significantly different from his clerk’s is very small, at least as to an issue for which the clerk has developed a reputation.

I can see a large upside to allowing these clerks to participate in cases with which they are familiar. First, it eliminates a large amount of time that would be spent in gaining background information. Second, it is an inestimable advantage to have a clerk who has substantive experience in the field implicated by a particular case. Decisions are more likely to be correct and anticipate potential unintended consequences if the judge has the advice of someone who knows the field. Third, the prior experience is likely to alert the clerk to potential counter-arguments, so the involvement of the clerk may be as likely to fully inform the judge as to bias his understanding of the case.

All this is different, of course, from the situation where a clerk participates in a decision that may have an effect on the clerk’s future employment, for example if the clerk’s future firm is representing a party in the Court. If anything the problem is more severe in that circumstance, but there (to my knowledge) the involvement of the clerk is left completely within the judge’s discretion.

27

Gay Marriage in New Jersey

Courtesy of Howard is this article from Newsday describing the case pending in New Jersey which challenges that state’s restriction of marriage to opposite-sex couples. In the interest of full disclosure, I favor allowing gay couples to marry, but I would prefer that decision be made by state legislatures. I am not yet convinced that the Equal Protection Clause of the federal Constitution requires state recognition of gay marriages, though I understand the parallels to Loving v. Virginia.

I am curious to see what the New Jersey Supreme Court does with the case, from a political perspective as well as a legal one. Assume that the court thinks the proper result is to strike down the restriction. Should the court “vote its sincere preferences,” as political scientists say, the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President. Surely the last thing the New Jersey Supreme Court wants to do is help Republicans. Heck, that court’s decision in the Doug Forrester case in 2002 was far more transparently partisan than any ruling in Bush v. Gore. Some political science suggests that the court will shade its interpretations so as not to antagonize the other branches, which are not accepting of gay marriage, but the evidence is far from conclusive. See, e.g., Jeffrey A Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28 (1997); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991).

For this reason, however, the court is in a no-win posture. If the court mandates gay marriage, it triggers the ire and votes of Republicans as well as opening itself to criticism for being judicial legislators. If it defeats the claim, it will be accused of doing so for political reasons rather than legal ones. Vermont-style civil unions are another option, though the article reports that New Jersey already grants domestic partnership developments. If the court tries to mandate civil unions its ruling may be the least defensible of all, for it would allow the state to create two classes of couples while effectively conceding that there is no reason not to give homosexual couples all the advantages of marriage.

It’s interesting that the provision apparently at issue is the New Jersey Constitution’s provision that “all persons are by nature free and independent” — not any provision explicitly invoking the ideal of “equality.” I know nothing of the way in which this clause has been interpreted in the past, but isn’t it ironic that the persons invoking the clause want the state to recognize their dependence on their partners, and for the state to recognize a continuing obligation to care for them? Free and independent indeed.

2

1776

I’ve just finished listening to David McCullough’s 1776 and I am very impressed. Though I was a history major in college, I focused on post-Revolutionary, and in particular post-World War II, America. As a result I knew relatively little about the war itself, though of course I knew some about the political philosophy of the founding period.

The book is remarkable in its ability to interest the reader in the personalities of the war, and McCullough does a wonderful job of using quotes from diaries and letters to give one a sense of the lives these soldiers lived.

For better or worse, the book paints a very different picture of General Washington than the one I had previously. McCullough, both for himself and quoting soldiers of the period, criticizes Washington numerous times for his indecisiveness and for several blunders that could have led to the end of the Continental Army and the cause of American independence. Without question Washington was a remarkable leader and an inspiration to thousands, but much more fallible than schoolchildren will be taught on the Wednesday after next.

Perhaps the basic history that most Americans receive must be simplistic, else there would not be time to learn it in any breadth. Thus, we can’t go too far wrong if we recognize that Washington was great, George III was a tyrant, etc. And it may be, too, that my mind simplified concepts that were introduced with appropriate complexity in my grade school days.

But I can’t help comparing the feeling I had in thinking about Washington’s falterings to the discussion I had a few weeks ago about sports officials’ fallibility: Are we better off believing an overly romanticized vision of people, so that we have “heroes” we idoloze, respect, or admire? Does the country benefit more from believing Washington was perfect than it would from analyzing his behavior in the Battle of Brooklyn? Should this inform the way in which we discuss judges? Specifically, how much should we discuss the non-legal influences on Constitutional Law? Does any of this affect the instant replay debate in sports?

In the end, I tend to like to hear the ugly truth, and I care little if some are taken from their high horses. But I’d welcome comments from those who disagree, and applaud Lisa Simpson’s refusal to tarnish the image of Jebediah Springfield.

The title of this post and the first sentence have been updated to reflect the proper title of the work.

2

On Strategic Planning and the “Vision Thing”

My school is in the midst of developing its strategic plan. As I understand it, strategic planning is the process of figuring out where an institution wants to be at a certain point in the future as well as how to get there. In this effort, we wasted, er, spent a whole Saturday talking about what we want to become. And, of course, we want to be a first-class school, recognized for excellence in teaching, scholarship, and service to the global community. Who doesn’t?

I’d like to hear from two groups of readers: First, to those of you academics who have gone through strategic planning in the past, has the process ever induced you to change your individual priorities, or has your school focused attention on achieving a particular goal, to the detriment of others? I.e., does strategic planning frequently lead a school to say, “We are proud of our teachers, but we really want to make a mark with scholarship,” or does strategic planning tend just to find a new way of stating a commitment to be all things to all people? And if the former, does that change the way individual faculty members approach their jobs?

Second, do students considering which law school to attend care about these statements? I remember reading statements of this type and all but ignoring them because they made the same unverifiable claims about the quality of teaching. Occasionally certain emphases could be discerned, but that was rare. I may be an exception, though, and I would be interested to hear others’ impressions of the importance of these statements from a marketing perspective.

4

Spring Law Review Submission Season

A friend and colleague asked me to post a question about the timing of the upcoming spring submission season. Should he wait until March to send out the first wave of submissions for an essay he will soon complete, send it in the middle of February, or at some other time? This post last year by Orin Kerr says that “late February and early March” are the prime times, but I wonder if our readers can provide more specific advice or anecdotal information about turn-over in editorial boards. I’ve also heard of some journals moving to a rolling submissions process, but I don’t know how many use that system, or even whether such a transition would be viable if most of the market continues to accept pieces primarily in February/March and August.

1

On Admitting Mistakes

This story is bizarre, but the predictable combination of arrogance and an official attitude that correcting errors leads to unacceptable disrespect. Apparently a basketball coach collapsed due to a heart condition during a game. A referee thought he was reacting to a foul called against his team and assessed a technical foul. Even as the coach was removed from the court by medical personnel, however, the referees refused to rescind the call. Thanks to the Sports Law Blog for the tip.

I’ve made some blunders in officiating, and I much prefer it if my partner(s) can help me correct an error than forcing me to defend a mistake to a coach. Nevertheless, I can sympathize with the referees here — not because I think their actions were reasonable. Quite the contrary — the actions were unreasonable and they deserve punishment. But some officiating clinics teach that the general practice is to admit mistakes but not go back on a call that is made. (I have no knowledge about basketball clinics or Conference USA policy on this matter, though.) One instructor at a hockey clinic, for example, told me and the rest of the students of an occasion where he prematurely signaled a delayed tripping penalty . . . and the fouled player never went down, meaning that the penalty did not in fact occur. He called the penalty anyway, and apologized as he was doing it. In his mind there was nothing else he could do. The possibility that he would reverse the call was out of the question.

I do not understand the rationale for that sort of approach. In discussing stare decisis in class, we constantly ask whether it is better for courts to leave decided cases undisturbed or for them to correct past errors. But isn’t the worst approach of all — in judging and in officiating — to admit error and say “too bad”? Most sports, I think, are coming around to the notion that it is better to get the call right than to pretend that the officials always got it right the first time. So we see more conferences in baseball and football, it seems, than there used to be. Perhaps without instant replay sports officials would feel less pressure to confer and get calls right.

8

Justice Scalia’s CLE

I had the great privilege of attending the CLE that was the subject of this week’s ABC story. Justice Scalia led several of the discussions/lectures, a task which required him to be an active presenter for several hours each of the two days of the conference. Details of the conference are made clear in a letter Federalist Society President Gene Meyer wrote to the President of ABC News. I am floored that anyone thinks there is anything the least bit improper about Scalia’s attendance. Still more am I surprised that this passes as “investigative” reporting, given that the Federalist Society advertised Scalia’s attendance at the Conference and that the same was reported by the AP immediately after Chief Justice Roberts was sworn in.

Stephen Gillers, a professor at NYU, is quoted in the story as saying that Scalia should not have taken the trip for “several reasons,” including the Federalist Society’s “decided political-slash-judicial profile.” Few, if any, groups would fail to be disqualified from having a sitting judge speak to their members under this heretofore unheard-of test. Certainly the ABA and the ACLU have “decided political-slash-judicial profile[s]” and yet — properly — nobody has raised any question of the propriety of speaking to such audiences.

The public ultimately is much the better for groups’ opportunities to interact with Justices, barring extreme cases where the group in question is pursuing an ex parte contact in a case pending or about to be pending before the Court. This proposition, which has been accepted for decades if not forever, is all the more applicable for situations like the conference in question, because it was an opportunity for the participants to learn interactively about a subject interesting the Justice, as opposed to the more typical event where the Justice simply gives a speech.

Of course this is not the first time critics of Justices have fabricated ethical concerns as a way of encouraging opposition to Justices whose philosophies the critics oppose. Scalia himself was the target of such a campaign recently in the Cheney duck hunting episode, prompting criticism by Gillers among others, and ultimately resulting in Scalia’s release of an extraordinary memo defending his non-recusal in the case and pointing out that ethical rules had never before required refraining from the behavior for which he was being criticized. Similar questionable invocations of ethical concerns appear in the Haynsworth and Fortas confirmations, Fortas’s criticism perhaps less questionable than the others.

UPDATE: Here are two posts discussing the report: one from SCOTUS Blog and another from the VC.

2

On Conservative and Liberal Labels

My most recent post has engendered some discussion on a point tangential to its purpose, but important nonetheless — how to determine whether a particular Justice (or, I imagine, judge or individual for that matter) is conservative or liberal, or somewhere in between. Can we agree in any significant percentage of cases that an individual belongs at a particular place on that spectrum?

I think the answer is no, because such categorization depends on context, and each of us subjectively chooses the context.

Focusing on categorizing judges, now, each of us, I imagine, wants to see conservative and liberal as labels indicating the direction in which the given judge deviates from the ideal. Thus Judge Bork sees originalists not as “conservatives,” but as simply applying the law, and I am sure others on the left are the mirror image. If you’re an originalist, therefore, a conservative is one who deviates from originalism to achieve conservative results, and a liberal is one who deviates from originalism to achieve liberal results.

But because we have no agreement on what is the proper way to interpret legal texts, including constitutions, any labeling system dependent on evaluating a judge’s agreement with the “correct” results is not likely to be effective in general conversation. There are two alternatives I see. First, you could make the label purely relative, being explicit about context. In that manner we could quite sensibly (if over-simplistically) refer to the most conservative Justice on a certain issue, or even the most conservative Justice overall on the current Court.

Second, the inquiry could be more self-consciously empirical, in that a Justice will be scaled liberal or conserrvative based on the percentage of cases in which he decides cases in a liberal or conservative direction. Thus, we would rank Justice Ginsburg as 60% liberal, and Justice Scalia as 34% so. Such an effort has the promise of being relatively objective, but even there there are problems with determining how liberal one must be to be a “liberal” and so forth. For example, Epstein & Segal (from whom I got those figures, see p. 126) characterize Justice Ginsburg as “moderately liberal for voting liberal 60% of the time, but characterize Justice Scalia as “very conservative” and “extremely conservative” for voting conservative 66% of the time.

These debates are played out in plenty of areas besides the judiciary, and rarely do we agree on resolutions because we rarely agree on the proper context. Is academia liberal, for example, because such an overwhelming majority votes Democratic? Or is it conservative because taking a world view American academia is less liberal than much of the rest of the world?

8

The Consequences of Misleading the Judiciary Committee

Edward Lazarus’s column on Findlaw this week discusses the constraints Chief Justice Roberts and Judge Alito have placed on their behavior on the Supreme Court by their Judiciary Committee testimony. Specifically, Lazarus argues that should Roberts and Alito turn out to be more doctrinaire than the moderate conservatism displayed in the hearings, the consequences would be “longstanding and grave.” (Lazarus does not elaborate on the nature of those consequences, which could range from possible impeachment, to restrictions on the Court’s power by legislation, to a loss of confidence among members of the public, to demands for even more specific promises from future nominees, etc.)

I am not confident that Lazarus is correct as a general matter, though he may be as to his principal example — voting to overturn what is left of Roe v. Wade. I see little evidence, for example, that Justice Ginsburg is suffering any ill effects from Congress though she has done little on the Court to justify her image in 1993 as a “moderate liberal.” Similarly, though all nominees routinely profess to understand that the law is more than their personal policy preferences, once on the Court they routinely break that promise. (As Justice Scalia said in a related context, campaign promises are, by long democratic tradition, the least binding form of human commitment. See Republican Party v. White, 536 U.S. 765 (2002).)

If I am correct, there could be at least three reasons there are few repurcussions thus far for reneging on Judiciary Committee commitments. First, Republicans may lack the guts to use ideology in the way that Senate Democrats do. We’ll see whether this is true the next time a Democratic President nominates a potential Justice, but the Republicans’ acceptance of Ginsburg indicates it might be true. Second, a determined minority can prevent Congress from taking just about any official action, so even opposition to a Court decision can be expected to result in no action so long as at least one committee in one house supports the Court’s decision. And of course impeachment is practically impossible. Third is the most obvious: Because the statements nominees make are so general, no behavior could constitute breaking that “promise.”