Category: Supreme Court

22

A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment

[ I started writing this as a comment to Frank's post, but it got too long. ]

I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:

Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!

My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.

Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).

This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?

There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.

Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don’t out-earn their judges.

In short, Justice Kennedy’s factual premise about lawyer salaries doesn’t support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don’t know if that’s worth pounding the table before a Senate Committee.

6

Vanity Fair on Hamdan et al.

Marie Brenner, at Vanity Fair, has written a really fascinating article on the genesis of Hamdan. It focuses on Neal Katyal and Charlie Swift. Here are a few excerpts (but, of course, this is one you will want to read yourself). On Larry Tribe’s role at a moot:

During the weeks Katyal prepared to argue Hamdan’s case in front of the Supreme Court, he slept little. He traveled to law schools and law firms around the country, mooting his case 15 times, and each time he came away with more critiques and more suggestions. He assembled a team of law students and worked with Joe McMillan, an expert on international law and a senior partner at the law firm Perkins Coie. Eventually, three lawyers at the firm were helping pro bono. In his first practice session at Harvard, Laurence Tribe told him, “Neal, you feel a little small at the podium.” Katyal understood that this meant he was overly deferential when it came to addressing the Supremes

On winning and the blogosphere:

Paraphrasing Justice Breyer, Swift recalls the scene: “‘As I understand it the petitioner says that the guy is not a combatant because he is not engaged in classic combatant acts.… The war in which you say he was fighting is not actually a war.’ I was suddenly quivering in the courtroom, thinking, He’s got it! We have won! I am singing Hallelujah!”

On the day the decision came down, June 29, the telephones began to ring in the jag offices. Katyal and Swift were at the court, waiting to hear the decision read. Within moments, the jag lawyers, reading scotusblog.com, were shouting, “We won! We won! We won everything!”

On John Yoo

‘I kind of feel like I have been hung out to dry,” says John Yoo. “People say that I am responsible for everything, as if I had the full point plan for what we are going to do. In fact, I was fairly low down on the organizational chart. [Those above me] have basically decided they are not going to talk about this anymore. It is as if, if all the flak falls on this guy, well, fine. I don’t like it, but unlike them I think it is my responsibility to explain what we did and why.”

Yoo and I met in Philadelphia, in the lobby of his hotel, near Independence Hall, where he was preparing to be interviewed about his book War by Other Means. Round-faced and amiable, he seemed younger than his 39 years. His conversation is larded with euphemisms—”factor,” “cost,” “a negative”—which he uses to explain his analysis of torture. It was a “factor” for Yoo that “coercive methods” might make evidence inadmissible in a trial. Did he ever consider the moral implications of locking away in shackles potentially innocent men who had little ability to petition a court? “I said that I had no doubt it would be extremely controversial. I talked to people about it,” he told me. And his conclusion? “The one negative was international opinion,” he said, giving the phrase all the weight of a potato chip.

0

Supreme Court docket down; citations to bloggers up

Linda Greenhouse’s NYT article is fascinating, noting that:

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

The drop in the Court’s docket is fascinating, and Greenhouse’s article sets out some interesting potential contributing factors (noting a decline in filings by the Solicitor General, for instance).

Of possibly even greater interest to the professional navel gazers blogging world is Greenhouse’s familiar citation to of the legal blogosphere in her article. She mentions a SCOTUSBlog post by Tom Goldstein (which seems to have provided some of the initial idea for her own article); she also casually mentions a blog post by Orin Kerr.

Blog readers everywhere have to be wondering if Greenhouse’s article doesn’t provide its own answer. Supreme Court case load down . . . cites to bloggers up . . . could the two be somehow connected?

There is no correlation; grasshopper, there is only causation. And this one is easy: Supreme Court case numbers are down because of legal blogs.

Orin and Dan and Eugene and Stephen Bainbridge and Gordon Smith (and so on, and so forth) are successfully solving problems before the Justices get to them, and blogging the answers in real time. And given the blogosphere’s growth, it’s just going to get worse. The Court’s docket will continue to shrink until the frustrated Justices eventually cave in and begin blogging themselves (instead of just lurking). So just you watch — by next term, all new clerks will be required to know Movable Type.

Remember, you heard it here first.

7

Nazi Stolen Art Claims Pervade Record Auction

Welcome to the season of the major art auctions in New York. The New York Times (11/9/06) reported:

In a landmark sale, the biggest in auction history, nearly half a billion dollars’ worth of art changed hands last night at Christie’s sale of Impressionist and modern art. Soaring prices for blockbuster paintings by Klimt and Gauguin left thousands of spectators, who came to watch and to buy, gasping.

Not me. Instead I’m gasping at all the legal back stories involved in Wednesday night’s auction.

Picasso_angel_fernandez_de_soto.jpgThe most current one involved Christie’s lead item: Picasso’s “Portrait de Angel Fernandez de Soto” a.k.a. “The Absinthe Drinker.” On Monday, SDNY judge Jed Rakoff dismissed a suit brought against the auction house by an heir of a prominent Jewish Berlin banker who had owned the painting during WWII. The suit claimed title to the painting and sought its return or $60 million plus attorneys fees. Although Judge Rakoff ruled that the federal court had no jurisdiction over the matter, he hinted at his opinion on the merits stating, “I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money.” That suspicion was first raised by Christie’s who publicly questioned the motivation of the plaintiff in waiting 70 years to bring suit and then only days before this major auction. Christie’s attempted to take the high ground calling the plaintiff’s actions “a disservice to the restitution community.”

The painting has been owned by the foundation of Sir Andrew Lloyd Weber’s (of “Cats” fame) since 1995. According to the plaintiff, his ancestor consigned the painting to his Swiss art dealer who sold it in the last months of his life. Christie’s contends the painting was sold after his death, but argues that either way it was a legal sale. The plaintiff’s suit rests on his claim the sale of the painting was under duress by the Nazis; a so-called “forced sale.” In this case, it seems that the Nazis seized the banker’s assets thereby forcing him to sell the art in 1934 in a depressed Berlin art market. This set of facts departs slightly from successful forced-sale claims in which art was sold in “Jew auctions” where Jewish art dealers were prohibited from making sales other than through Nazi-organized art auctions.

The lawsuit was re-filed in New York State Supreme Court on Wednesday. Finally, just hours before the auction, Christie’s announced it was withdrawing the painting because “of eleventh-hour claims” that cast a “cloud of doubt” over title to the painting. The painting was estimated sale at $40 to $60 million. This means that if the painting were sold at say $50 million (all the other works sold exceeded their estimates), Christie’s lost $6 million, or its 12% commission (the lower commission charged for expensive works).

pAdele1.jpgAlso part of Wednesday’s auction were five Gustav Klimts that were the subject of a 2004 Supreme Court case, Austria v. Altmann, 541 U.S. 677. In that case, Adele Bloch-Bauer, the subject of one of the paintings, willed the paintings to the Austrian Museum upon her husband’s death. She died, the WWII ensued and the paintings were seized by the Nazis. After the war, her husband willed them to their nieces and nephews. The Supreme Court ruled that the 1976 Foreign Sovereign Immunities Act could be applied retroactively to Altmann’s case, thus paving the way for Altman to sue the Austrian Government in US Courts. In April of this year, the Austrian National Gallery was compelled by a national arbitration board to return the five paintings to Maria Altmann, the niece of the original owner. On Wednesday night, the portrait of Adele Bloch-Bauer sold for $87.9 million, a Klimt record and almost double its estimate. The room reportedly exploded in applause.

Still another work in Wednesday’s auction was the subject of a legal dispute. “Berliner Strassenszene” by Ernst Ludwig Kirchner was only recently was turned over to the heirs of Jewish shoe factory owner Alfred Hess by the Bruecke-Museum in Berlin, where it hung since 1980. In that dispute, Hess’ widow contended she was intimidated into bringing the painting back to Germany from safety in Switzerland.

5

Lies, damn lies, and statistics

The Senate race is all about the Supreme Court, my friends tell me. If you want one type of Justice, vote Republican; if you want another type, vote Democrat. They’re right, of course. The Senate will have to confirm any appointments that Bush makes in the next two years. But just what kinds of results can we expect from a Democratic versus a Republican Senate? A quick survey of recent justices (excluding Justices Roberts and Alito, who are too new to really judge) shows:

Recent Justices Nominated by Republican President and Confirmed by a Democratic Senate

Clarence Thomas

David Souter

Anthony Kennedy

William Rehnquist

Recent Justices Nominated by Republican President and Confirmed by a Republican Senate

Antonin Scalia

Sandra Day O’Connor

The results are clear, aren’t they? If you would like to see justices similar to Justice O’Connor appointed, then vote Republican. And if you would like justices like Justice Thomas or Chief Justice Rehnquist appointed, then vote Democratic. History doesn’t lie, does it? Based on past history, for example, you can accurately tell your friends that you’re voting Republican this year because you didn’t much like Justice Thomas and Chief Justice Rehnquist, and prefer Justice O’Connor.

I only hope this information doesn’t arrive too late to influence anyone’s political choices this election day.

5

Supreme Court Poll

Which of this year’s Supreme Court cases will be most significant?

  
Free polls from Pollhost.com

13

Expertise and the Blawgosphere

TortureRack.jpgA recent, well-publicized, comment thread over at the VC caught my attention. In it, Professor Ilya Somin explained his silence on the habeas/torture legislation as a combination of humility and utility maximization:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Marty Lederman commented:

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative initiative — *not* because they are bloggers or even legal bloggers (heaven knows we don’t want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty.

It is a debate with some bite, I think, for this blog. We aspire to be a general interest law blog, with mostly serious content. But we have demonstrated little collective interest in the habeas/torture problem. Sure, we’ve had a few posts, but nothing like the sustained attention given by Balkinization, or Opinio Juris. The question I wonder about is whether a blog that claims to be a general interest legal forum has a duty – if it is to be respected – to weigh in the big legal questions of the moment.

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4

It’s Time for the Supreme Court to be Heard

microphone.jpgWe are heading into the first full Supreme Court term in 19 years with a new Chief Justice, John Roberts, who is sure to consider changing some of the Court’s policies. So it seems worth asking once again why the Court does not immediately release audio broadcasts of all oral arguments.

Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court’s Public Information Office said only that it was the Court’s “tradition” to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.

Listening to the arguments provides insight into how cases will likely be decided and perhaps even a view of how future cases presenting related issues will be resolved – information that is too important to be reserved to the handful of Supreme Court bar members who can make it into the courtroom. Although transcripts of oral arguments are published on the Supreme Court’s website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.

I was in the courtroom in 2002 for the oral argument debating the constitutionality of Virginia’s cross-burning law, and I can attest that only someone who heard the argument could have felt the power of Justice Clarence Thomas’ comments on the history of cross-burning, or understood the impact of his words on the justices’ view of that case. More generally, only those who hear the justices speak can detect sarcasm or disbelief in their voices, or know when they are truly asking questions and when they are making pronouncements about how the case should be decided.

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