FIRST ONE @ ONE FIRST

SOC: More like me, please!

Posted in Justicespotting by Mike Sacks on January 26, 2010

After attending today’s O’Connor Project conference at Georgetown Law, I am convinced that Justice O’Connor’s aim is to fill the state judiciaries with little Justice O’Connors.  And that’s not necessarily a bad thing.

The conference asked, “Will Caperton and Citizens United Change the Way States Pick Judges?”  Panelists fretted over the influence of corporate money in state judicial elections as well as the right balance between a judge’s receptivity to and independence from public opinion and the political climate.  O’Connor’s recommendation of merit selection–a process she helped institute as a state legislator in Arizona–seems a more responsible, insulated hybrid of appointment and election processes.

Indeed, I got the sense that O’Connor believed merit selection would safely yield judges receptive to public opinion…but not too much; and judges independent from politics…but not too much.

On the whole, I find agreeable the idea of a judiciary made up of pragmatists like O’Connor who, as Barry Friedman and Dahlia Lithwick wrote yesterday, possess “a built-in barometer of the public mood.”  Perhaps the tiny dissenter in my head screaming “BUSH V. GORE!  BUSH V. GORE!” can be countered by the understanding that that was the rare case to generate so much heat as to malfunction O’Connor’s barometer.  And really, O’Connor’s vote was consistent with the weary public’s desire for an end to the election’s interminable indecision; her mistake was interpreting that weariness to require the Court to unilaterally declare a winner.

Nevertheless, O’Connor’s own blind spots during her Supreme Court career may yet prove that however a state chooses to balance a judicial candidate’s receptivity and insulation from politics, there will be no perfect reform.  The key is to minimize the variables that will adversely impact the balance.  And for its efforts to do so, the O’Connor Project deserves credit.

For a good write-up of O’Connor’s remarks, see Adam Liptak’s report on the NYT website.

Meat v. Beans

Posted in Justicespotting by Mike Sacks on January 19, 2010

USA Today’s Joan Biskupic writes today on the ideological and stylistic differences of Justices Scalia and Breyer:

They appear at law schools together to discuss their competing views of the Constitution. They take ideological aim at each other in rulings. And their differences are increasingly playing out in testy fashion on the bench.

No two justices seem to drive each other so nuts during oral arguments. That was clear during the first session of the new year, as Justices Antonin Scalia and Stephen Breyer squabbled in a series of cases last week.

Scalia is conservative and Breyer liberal. Yet their differences on the bench are ones of both substance and style. As Breyer begins a long, hypothetical question, Scalia — a fast-speaking, get-to-the-point guy — often slaps his hands up to the sides of his head.

Breyer doesn’t exude irritation as much as frustration. A pragmatist, he is irked when Scalia interrupts his interest on how a ruling might affect real life.

As Biskupic illustrates her point with the justices’ behavior during last week’s American Needle argument, her article reminds me of my own brief Scalia-and-Breyer story that similarly exemplifies their differences.

Sometime during our stay here in DC, my girlfriend and I found ourselves wildly out of place at a party with many well-established Washington-types.  One glance around the room would make any mortal quake under the power on display.  We had two choices: stand in the corner with eyes averted or swallow our fears and engage.  We went with the latter and made towards the buffet table.

As we both stepped up to the plate–literally, dinner plates–we hit yet another obstacle.  For me, big slabs of beef with no knives in sight; for my girlfriend, on the opposite end of the table, giant beans she had never seen.  I didn’t know how to properly eat what I so wanted, she didn’t want to eat what she didn’t know.

I stood there staring at the forks and meat on the table, imagining to myself just how I could carnivorate without making a scene.  Should I aggressively saw the meat with the side of my fork?  Should I stuff the whole thing into my mouth?  Should I just tear it with my hands?

Then I looked to my left and found Justice Scalia making for the meat.  How appropriate!

Me: Justice Scalia, how do you eat the meat without a knife?

AS: Well, you take this bread [he takes bread from the breadbasket on the table], you fold the meat on top of it, and you eat it!

Me: You just gnaw on it?

AS: Yes, that’s how you eat it.

I was so excited to be getting meat-eating lessons, however curt, from Justice Scalia that I looked across the table to see if my girlfriend was taking it in.  But instead I found myself witnessing the very study in contrasts Biskupic writes of today: Justice Breyer was very intently introducing my girlfriend to the wonder of fava beans.

Now, whenever my girlfriend and I find ourselves at fancy parties with buffets featuring slabs of beef sans knives and giant fava beans, we take care to seek out our own overwhelmed peers–easily spottable by their uneasy eating–and impart to them the lessons we learned from those old adversaries, Justices Scalia and Breyer.

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