supreme_court

On the heels of my recent post on the importance of law clerks to judicial decision making come the news that Justice Alito has selected his clerks. Alito picked up two of Justice O’Connor’s clerks, Sasha Volokh and Ben Horwich, and also hired Williams & Connolly associate Hannah Smith, who clerked for Alito in ‘01-’02 before clerking for Justice Thomas in OT03. Most interesting though, are Alito’s remaining two hires: current Sidley Austin litigation partner and former Congressional candidate Jay Jorgensen, who clerked for Alito in ‘97-’98 before clerking for Chief Justice Rehnquist in OT99; and Adam Ciongoli, who clerked for Alito in 1995 and 1996, was an aide to Attorney General John Ashcroft from 2001 to 2003, and currently serves as General Counsel of Time-Warner Europe. Charles Lane reports for the WaPo, and Adam Liptak reports for the NYTimes.

I can’t think of any team of clerks so experienced in recent years. Most Supreme Court clerks are relatively recent law school graduates, clerking for a Circuit Court judge, followed by a short stint at a major law firm, the OLC, or the DOJ. Certainly there are occasional exceptions, such as Orin Kerr clerking for Justice Kennedy after teaching at GMU, but not often. Liptak tries to drum up some controversy over the political views of the new hires, particularly Ciongoli, but most commentators seem not to be buying it. Paul Horwitz comments over at PrawfsBlawg, and I agree with his point that there is no reason to think that young clerks have any less an ideological or partisan agenda than older clerks; there simply isn’t the paper trail demonstrating such an agenda in those cases. More than anything else, Alito’s selections demonstrate his trust in his clerks and the need to be able to rely on those with whom you work so closely. UTR has more on recent Supreme Court hiring.

Update: Paul Horwitz continues the discussion at PrawfsBlawg, offering as a comparison Justice Brennan’s decision to withdraw a clerkship offer from Mike Tigar.

David Garrow reviewed Justice Blackmun’s papers, released to the public in 2005, and concludes that towards the end of his career, Blackmun’s clerks all but signed his opinions. In an interview, discussing senility and Supreme Court Justices, Garrow argues that there has been “a dramatic increase over the last 35 or 45 years in the amount of the justices’ work that is performed by their law clerks,” and recommends a “reduction to two or, even better yet, one clerk” from the four clerks available per Justice now. Garrow also comments on the now-deceased Chief Justice Rehnquist, who suffered from an addiction to painkillers in the 1980s. Garrow’s view is controversial, though, and Legal Affairs published several responses in the same issue. Other law professors have weighed in, including Dan Markel, Mark Tushnet, and some of the folks at the Volokh Conspiracy. So how large is the impact of law clerks?

Oh, and to get a little gossipy, you can usually rely on UTR to keep you up to date on all the inside info on Supreme Court clerks, although that duty has been temporarily delegated to MetaFilter’s amber_dale while A3G takes over Wonkette.

[I posted this earlier today to MetaFilter.]

Judge Alito is now Justice Alito, confirmed in the Senate today by a vote of 58-42. With Alito now presumably taking up a position on the Court’s right flank, many court watchers believe Justice Kennedy will be the new swing vote. Some Democrats hastily mounted a sloppy filibuster effort yesterday, but cloture ended that effort by a vote of 72-25. As Prof. Rick Hasen writes, “Thanks to Sen. Kerry, Democrats have two losses rather than one in a 24-hour period.” A few bits of trivia:

• Justice Alito’s confirmation ends Justice Breyer’s eleven-year run as the junior Justice on the Court, second only—by a hair—to Justice Story.
• The Senate’s confirmation actually decreased the number of sitting Justices, because Justice O’Connor’s resignation became effective on confirmation. For the short period between confirmation and Alito’s judicial oath, we had only eight officially sitting Justices.
• Justice McKinley was the first Justice to hold Alito’s seat, confirmed in 1837. Alito is the eleventh Justice to hold the seat.

The Senate hearing on Judge Alito’s nomination to the Supreme Court begins in about an hour, so I thought a quick round-up of some relevant material on Alito was called for. I did a round-up on Alito just after he was nominated, but in the last two-months an enormous volume has been written about the judge.

• Both the New York Times and the Washington Post have comprehensive coverage of the nomination. The Times will have live streaming video and David D. Kirkpatrick will be liveblogging the hearing. Similarly, the Post will be liveblogging at its Campaign for the Court blog.
• C-SPAN has video coverage of the hearing, as well as the video of several other related programs on Alito.
• SCOTUSblog will be liveblogging the hearing, and I expect them to provide the most insight of any of the livebloggers.
• The folks at Law Librarian Blog has a handy list of document archives, including compilations, analyses of judicial opinions, and briefing books. They also have a round-up of coverage on the Law Professor Blogs Network, including a significant number of posts on Alito and federal sentencing law from Doug Berman.
• The Truth Laid Bear monitors blog activity on Alito, and you can search for more on Technorati.
• For the point-counterpoint on the most controversial issues to be addressed at the hearing, compare the recent New York Times editorial and the response from Professor Bainbridge.

I expect the hearings to be relatively heated, especially given the current political climate. Normally, I would expect the most controversial issue to be abortion, but this time around, I expect that judicial review of executive power to be a very hot topic. Interestingly, the Senate will hear from seven of Judge Alito’s current and former colleagues on the Third Circuit. The testimony of sitting federal judges at a confirmation hearing is unusual, to say the least, and to hear from seven of them is probably unprecedented.

President Bush nominated Judge Samuel Alito, Jr. from the Third Circuit to the Supreme Court yesterday. Judge Alito has a reputation as a solid conservative, and Democrats are predictibly rushing to criticize the nomination. Here’s a roundup of information and opinions on Judge Alito:

* The White House has “the remarks of the President and Judge Alito”:http://www.whitehouse.gov/news/releases/2005/10/20051031.html.
* The University of Michigan Law Library has a “fantastic site”:http://www.law.umich.edu/library/news/topics/alito/alitoindex.htm with biographical information, opinions written by Judge Alito, briefs he wrote as a lawyer, and more.
* “The Daily Princetonian”:http://www.dailyprincetonian.com/archives/2005/10/28/news/13656.shtml spoke with classmates and professors of Alito’s.
* The NYT has several articles on the nomination, including a “backgrounder”:http://www.nytimes.com/2005/11/01/politics/politicsspecial1/01alito.html on Judge Alito, and editorials by “Ann Althouse”:http://www.nytimes.com/2005/11/01/opinion/01althouse.html, “Linda Greenhouse”:http://www.nytimes.com/2005/11/01/politics/politicsspecial1/01casey.html?hp&ex=1130907600&en=16a75ab91dd59ab6&ei=5094&partner=homepage, and the NYT Editorial Board, which calls the nomination “Another Lost Opportunity”:http://www.nytimes.com/2005/11/01/opinion/01tues1.html?hp.
* The Washington Post also has comprehensive coverage of the nomination, including a “career timeline”:http://www.washingtonpost.com/wp-dyn/content/graphic/2005/11/01/GR2005110100141.html and a “table of major cases”:http://www.washingtonpost.com/wp-dyn/content/custom/2005/11/01/CU2005110100050.html. The WP also runs the “Campaign for the Supreme Court blog”:http://blogs.washingtonpost.com/campaignforthecourt/, and has more coverage of the nomination “here”:http://www.washingtonpost.com/wp-dyn/content/linkset/2005/03/24/LI2005032400136.html.
* ACSBlog has “some background on Judge Alito”:http://www.acsblog.org/judicial-nominations-2188-who-is-sam-alito.html, and is guaranteed to have “continuing coverage”:http://www.acsblog.org/ of the nomination.
* ThinkProgress has a “critical review”:http://thinkprogress.org/2005/10/31/samuel-alitos-america/ of the nomination, complete with hyperbolic descriptions of a few of Judge Alito’s opinions. “Julian Sanchez”:http://www.reason.com/hitandrun/2005/10/wow_a_nominee_w.shtml and “Patrick ‘Patterico’ Frey”:http://patterico.com/2005/10/30/3872/alitos-dissent-in-casey/ both respond.
* Not all liberals are upset with the choice, however. Kate Pringle, now a partner at a New York law firm, clerked for Judge Alito, and is pleased with the nomination. She “comments”:http://bluemassgroup.typepad.com/blue_mass_group/2005/10/katherine_kate_.html that the judge is “interested in focusing on the immediate case at hand. He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case.”
* Ms. Pringle’s thoughts are echoed by Rick Garnett in an “editorial in the NY Sun”:http://www.nysun.com/article/22380?access=239167, in which he recommends confirming Judge Alito, and concludes: “He will do his best, in every case, to interpret and apply the law as it is, and not to remake the law according to his own view of what it should be. His vision of the Constitution is one that takes seriously the idea that judges’ role in resolving policy debates is a very limited one. Justice Alito, when he is confirmed, will not be in the business of imposing his policy preferences on Americans, but will instead enforce and maintain the structure of government that our Constitution created, one in which individual liberty is protected by dividing and limiting the power of government.”
* While most predict that Alito will be confirmed, albeit after what looks to be a nasty battle in the Senate, Rick Hasen “predicts”:http://electionlawblog.org/archives/004318.html that Alito won’t make it to a floor vote. Orin Kerr “disagrees”:http://volokh.com/posts/1130786987.shtml.
* UTR has a couple of thorough “roundup”:http://underneaththeirrobes.blogs.com/main/2005/10/a3g_not_a_man.html “posts”:http://underneaththeirrobes.blogs.com/main/2005/10/judge_samuel_al.html.
* A number of lawyers and law professors are looking closely at Alito’s record in particular types of cases, including:
** The First Amendment Center on, you guessed it, “Alito’s First Amendment jurisprudence”:http://www.firstamendmentcenter.org/analysis.aspx?id=16003.
** Howard Friedman comments on Alito’s “religious freedom decisions”:http://religionclause.blogspot.com/2005/11/alitos-3rd-circuit-religion-decisions.html, and notes that if Alito is confirmed, “Catholic Justices will form a majority”:http://religionclause.blogspot.com/2005/11/alito-will-make-catholics-majority-on.html on the Supreme Court. See also the “Top ten changes a Catholic majority would make to the Supreme Court.”:http://southernappeal.blogspot.com/2005/10/top-ten-changes-catholic-majority.html
** Of Arms & the Law comments on Alito’s Second Amendment jurisprudence.
** Larry Ribstein examines “Alito’s business law background”:http://busmovie.typepad.com/ideoblog/2005/10/justice_alito.html, while concurring opinions looks more specifically at securities law issues “here”:http://www.concurringopinions.com/archives/2005/10/alito_the_busin_1.html and “here”:http://www.concurringopinions.com/archives/2005/10/alito_and_secur.html.
** William Patry comments on “copyright cases”:http://williampatry.blogspot.com/2005/10/judge-alito-and-copyright.html.
** White Collar Crime Prof Blog covers, as expected, “white collar crime cases”:http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/10/judge_alito_and.html.
** Jack Balkin comments on potential implications for “constitutional doctrine generally”:http://balkin.blogspot.com/2005/11/what-alito-nomination-means-for.html.
* And, of course, this roundup would not be complete without the obligatory “Alito parody blog”:http://samuelalito.blogspot.com/.

Well, we all knew it was coming. Harriet Miers has withdrawn her nomination to replace Supreme Court Justice Sandra Day O’Connor. She submitted her letter [.pdf] this morning, and President Bush made a short statement reluctantly accepting.

President Bush “announced”:http://www.washingtonpost.com/wp-dyn/content/article/2005/10/03/AR2005100300252.html?sub=AR this morning that Harriet Miers, current White House Counsel, is his second nominee to the Supreme Court. Before coming to Washington, Miers served as Bush’s personal attorney in Texas, and was a partner at Locke Liddell & Sapp. ACS has some “background”:http://www.acsblog.org/judicial-nominations-2018-who-is-harriet-miers-.html and “commentary”:http://www.acsblog.org/news-and-announcements-2031-harriet-miers-tapped-to-replace-oconnor.html on Miers. Other commentary:

* “Lyle Denniston”:http://www.scotusblog.com/movabletype/archives/2005/10/the_burden_of_p.html and “Tom Goldstein”:http://www.scotusblog.com/movabletype/archives/2005/10/commentary_some.html both have comments—mostly unfavorable—at SCOTUSblog.
* Jack Balkin calls Miers a “stealth candidate”:http://balkin.blogspot.com/2005/10/miers-nomination.html, taking the nomination as a sign “a sign that the President wants to avoid a fight, either because he is in a relatively weak political position, because he fears that his supporters disagree among themselves, or because he would rather expend his energies and influence elsewhere.”
* UTR “suggests”:http://underneaththeirrobes.blogs.com/main/2005/10/harriet_miers_a.html that Miers might benefit from a make over, and expresses concern about her conservative credentials.
* Stephen Bainbridge “weighs in”:http://www.professorbainbridge.com/2005/10/harriet_who.html, also critical of the nomination.
* “Larry Solum”:http://lsolum.blogspot.com/archives/2005_10_01_lsolum_archive.html#112834852634675411 quotes “Federalist #76″:http://usinfo.state.gov/usa/infousa/facts/funddocs/fed/federa76.htm:

bq. To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

bq. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

“Judge Roberts was confirmed”:http://news.yahoo.com/s/ap/20050929/ap_on_go_su_co/roberts;_ylt=AihWrpT71aaMiVOtEFly.NGs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ– by the Senate earlier today, in a 78-22 vote. Oral arguments in the Court’s October term start next Monday.

If you want to discuss the Supreme Court vacancies, the Rehnquist legacy, the Roberts nomination, and the future of the court, join us over at “LawTalk”:http://talk.brainwidth.net/.