FIRST ONE @ ONE FIRST

Is Jeff Rosen Reading F1@1F?

Posted in Clairvoyance by Mike Sacks on February 18, 2010

Professor Rosen follows up his TNR piece on Chief Justice Roberts’s political awareness with a WaPo column giving serious thought to another F1@1F fancy – Justice Barack Obama:

He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.

These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.

Rosen continues with a couple of his fantasy scenarios:

It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.

I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline.  As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.

Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling.  He invokes Justice Brandeis as the prototype for a Justice Obama:

Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.

On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.

Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history.  But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice.  Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African-American, or President to turn up on the Court.

But he could be the momentous fifth vote to turn the Court back to the left.  He won’t make that history if he replaces Stevens or Ginsburg.  And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.

Two Vacancies this Summer?

Posted in Clairvoyance by Mike Sacks on February 4, 2010

ABC’s Ariane de Vogue writes:

Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.

I do believe Stevens will retire and that Judge Diane Wood will be his nominated successor.  But I deeply question that Ginsburg intends to step down.  As National Law Journal’s Tony Mauro reported a little over a year ago (and, due to a paywall, as conveyed by the WSJ Law Blog):

Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.

However, Ginsburg’s health scares since then, including pancreatic cancer and a spill on an airplane, may have changed her mind.  If so, I submit the following prospects:

After Obama’s firefight with the GOP over the very liberal and quite white Judge Wood, he will send up a moderate/center-left nominee of color. Hence Ward, Katyal, and Koh.

Because Breyer will remain on the bench if Ginsburg retires, there will be no need to fill the “Jewish seat.”  That puts Kagan, Sunstein, and Waxman on the back burner for the third vacancy.  And only Kagan will be young enough to be nominated by then, given the present robustness of the other justices in the over-70 club (Scalia, Kennedy, Breyer).

Patrick is at the bottom because he is running for reelection this year and I believe Obama will choose a black woman before he puts another black man on the Court.  After all, I think Obama himself may be the Court’s third male African-American justice after he leaves office.

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UPDATE: Since this writing, I’ve been somewhat disabused of my Harold Koh suggestion.  Let me offer Denny Chin and Goodwin Liu as two other possible Asian-American nominees for when Ginsburg steps down NOT this summer.

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Orthogotive?

Posted in Case Reports by Mike Sacks on January 11, 2010

Briscoe has been argued and submitted.  A few quick impressions:

1) Justice Sotomayor owns this case. The general sentiment among those in the know who were standing out in the cold this morning was that this case would be decided by Justice Sotomayor.  If there was any doubt, Sotomayor herself put it to rest at argument.  She came out swinging as the first justice to question the advocates for the petitioners and respondent.  She appeared to be carving a middle path between the majority and dissent in Melendez-Diaz. To Briscoe’s lawyer, she emphatically stated, “I trust the trial process,” signaling her former prosecutor/trial judge’s sympathy to Virginia; yet she asked Virginia’s lawyer how the Court could articulate a rule that would satisfy Briscoe and seemed bothered by Virginia’s assertion that a trial by affidavit would satisfy the Confrontation Clause.

2) Justice Scalia isn’t budging. It took until the end of the argument, but Scalia made his displeasure clear to the entire courtroom, interrupting Virginia’s counsel to ask, “Why is this case here?”  That question, he noted, wasn’t directed towards the Commonwealth; it was for the Court.  Melendez-Diaz made Briscoe redundant, so the only reason Briscoe was before the Court was to overturn Melendez-Diaz on a “spite cert” (my term, not Nino’s) by Melendez-Diaz’s four dissenters.

3) Breyer is budging. Justice Breyer was in the dissent in Melendez-Diaz, but seemed receptive to Sotomayor’s difference-splitting as a way to limit Melendez-Diaz without overturning it.  Indeed, he tipped his hat to stare decisis, demanding Virginia justify its statute under Melendez-Diaz even after he “laid his cards out on the table” that he didn’t agree with the case.

4) The case may not be a simple 5-4. Sotomayor’s difference-splitting may be enough to get a broad majority to affirm the core of Melendez-Diaz, which held that if the prosecution seeks to introduce a forensic report, the lab technicians must be made available as live witnesses for defendants to cross-examine.  Such a majority would discard Scalia’s formalistic requirement that the witness must be the prosecution’s.  At argument, justices from both sides of the Melendez-Diaz divide seemed to accept that Virginia may construct an efficiency-oriented statute that allows for the defendant to call a lab technician to the stand as an adverse witness, provided that Virginia not only bear the costs of presenting the witness, but also suffer the consequences if the witness no-shows.  Up to seven justices could be satisfied by such a scheme, as Scalia (and probably Thomas) will likely refuse to modify Melendez-Diaz.

5) Alito and Ginsburg agree: GVR. At the end of the argument, both Justices Alito and Ginsburg asked Richard Friedman, counsel for petitioner-defendant Briscoe, why the Court shouldn’t just Grant, Vacate, and Remand the case back to the Virginia Supreme Court to test whether its former statutory scheme adequately protected Briscoe’s right to confrontation.  If these two, who were on opposite sides in Melendez-Diaz, can agree, then perhaps the rest of the Court could, too.  Even Scalia would be happy to do so: the Court would avoid chipping away at Melendez-Diaz, and he would not have to waste his time firebombing his colleagues on Briscoe‘s merits.

6) Orthogotive? Richard Friedman busted out a word that none of the Court had ever heard.  He repeated it several times, but I remain unclear what the word was.  I will wait for the Court’s official transcript.  Until then, I will relish the memory of a Supreme Court lit up with the excitement of learning a new word.

More later: I’ve been up since 3am!

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