FIRST ONE @ ONE FIRST

Today’s Stories that Weren’t

Posted in Anticipation, Clairvoyance, Justicespotting by Mike Sacks on March 23, 2010

Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008′s landmark ruling in Boumediene v. Bush.  The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.

But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court.  Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”  Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.

Without Kiyemba on the docket, this week has held little promise for F1@1F.  I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!).  But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood.  I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.

But United States v. Stevens, Salazar v. Buono, and Padilla v. Commonwealth of Kentucky did not come down today.  Instead, we got a unanimous bankruptcy decision.

Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion.  Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said.  In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.

The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”

It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan.  F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.

Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment.  Still, here’s to a more fruitful next week for F1@1F.

Finally, two bits of miscellaneous debris from yesterday:

  • ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.”  The article reports out and builds upon what I observed here in January.
  • The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General.  Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.

UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…

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  1. [...] will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain.  Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question. [...]


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