ConfirmThem

....and on its effect on the Federal Circuit:

http://legaltimes.typepad.com/blt/2009/08/slot-opens-on-federal-circuit-...

"Eight of the court's 12 judges will be eligible to retire or to take senior status in less than two years. The judges currently eligible for senior status include Chief Judge Paul Michel, Pauline Newman, Haldane Mayer and Alan Lourie. Those eligible this year are Schall, Timothy Dyk, Arthur Gajarsa and, in early 2010, William Bryson. Four senior judges now sit on the court: Daniel Friedman, Glenn Archer, S. Jay Plager, and Raymond Clavenger.

The potential changeover would be the greatest since the court was established in 1982. Often mentioned by patent practitioners and academics as potential nominees are: U.S. district judges Kathleen O'Malley of the Northern District of Ohio in Cleveland; Jeremy Fogel of the Northern District of California in San Jose; and Patti Saris of the District of Massachusetts in Boston, along with Judge Mary Ellen Coster Williams of the U.S. Court of Claims in Washington."

http://howappealing.law.com/081409.html#034987

""Effective at noon on Friday, August 14, 2009, Hon. Alice M. Batchelder of Medina, Ohio, became Chief Judge of the Sixth Circuit, succeeding Hon. Danny J. Boggs, who had served in that capacity since October 1, 2003." So states a notice posted today at the home page of the U.S. Court of Appeals for the Sixth Circuit.

A reader emails, "Note that Judge Batchelder's 65th birthday is tomorrow." Thus, by stepping down as Chief Judge today instead of serving his full seven-year term as the Sixth Circuit's Chief Judge -- which apparently would have expired sometime in 2010 -- Judge Boggs has allowed Judge Batchelder to become the Sixth Circuit's Chief Judge, a post she would have been statutorily ineligible to assume once she turned 65 years of age."

Apparently Boggs resigned earlier to ensure that a conservative would remain as the chief judge of the contentious 6th Circuit until after Obama's first term.

If anyone doubted that Sotomayor is a liberal, she has hired law clerks from John Paul Stevens and Ruth Bader Ginsburg, both of whom attended her White House reception. It appears that Stevens and Ginsburg are doing their best to get Sotomayor indoctrinated early on in her Supreme Court career. I wonder if they are afraid that she may fall in with the wrong people (Roberts, Scalia, Kennedy, Thomas and Alito). Why this rushed orientation? Does it signal Stevens' retirement at the end of this upcoming term?

http://legaltimes.typepad.com/blt/2009/08/sotomayors-law-clerks.html

"Like some of her recent predecessors, Supreme Court Justice Sonia Sotomayor has hired two law clerks who have already clerked for other justices. The Court today released the names of the current term's law clerks, including these four for Sotomayor: Jeremy Marwell, Eloise Pasachoff, Lindsey Powell and Robert Yablon. That's two males and two females, with other demographics unconfirmed. The names were first ferreted out by the Above the Law blog on Tuesday.

Yablon and Powell are the veterans, having just completed clerkships for Justices Ruth Bader Ginsburg and John Paul Stevens, respectively. When justices join the Court, they find it useful to bring in clerks who already know the Court's intricate and sometimes baffling procedures and quirks.

Pasachoff clerked most recently for Sotomayor's friend and 2nd Circuit colleague Robert Katzmann, who was active in supporting Sotomayor's nomination to the high court. Marwell clerked for D.C. Circuit Judge Stephen Williams and is an alum of the Department of Justice Office of Legal Counsel. Before coming to the high court, Yablon clerked for 9th Circuit Judge William Fletcher, and Powell -- apparently no relation to the late justice Lewis Powell -- clerked for D.C. Circuit judge Merrick Garland. With the exception of Williams, the "feeder" judges for her clerks are usually viewed as liberals."

http://www.law.com/jsp/article.jsp?id=1202433073863

"D.C. Court of Appeals Judge Vanessa Ruiz, who has been aggressively pushed by a number of well-connected Democratic lawyers for promotion to the U.S. Court of Appeals for the D.C. Circuit, is being taken to task for having an excessive backlog of undecided cases.

As part of a mandatory review before Ruiz could be reappointed to another 15-year term, the seven-member D.C. Commission on Judicial Disabilities and Tenure wrote that her backlog was "the highest by far" of any appellate judge at the court. In the District, judges on the local bench -- like federal judges -- are nominated by the president and confirmed by the Senate. Unlike federal judges, they must be reappointed after serving 15 years.

Despite giving Ruiz a "well qualified" rating, which automatically ensures her reappointment, the commission pulled few punches in the evaluation it sent to President Barack Obama. "The Commission believes that this problem is not only about the pace of opinion production, but also about a less than fully adequate appreciation on the part of Judge Ruiz as to how her backlog adversely affects the litigants, the court, and her colleagues," the Aug. 10 evaluation said.

One commissioner, Jones Day partner Noel Francisco, a former Bush U.S. Department of Justice official, took the unusual step of filing a dissent which recommended that Ruiz receive merely a "qualified" rating because of the backlog. A qualified rating means the president must either renominate the judge and subject her to Senate scrutiny again or pick someone else. Commission members are appointed by the president, the D.C. mayor, the D.C. Council, the chief judge of the U.S. District Court for the District of Columbia and the D.C. bar. Both the mayor and the bar get two picks each. Francisco was appointed to the commission by Bush."

http://legaltimes.typepad.com/blt/2009/08/rehnquist-papers-part-deux.htm...

"Last November, the first segment of the extensive collection of the late chief justice William Rehnquist's papers became public at the Hoover Institution Archives at Stanford University. It was a small batch, limited by Rehnquist's stipulation that no files about specific cases be released during the lifetime of any other justice serving at the time. With Justice John Paul Stevens, who joined the Court in 1975, still alive, that meant only the case files from Rehnquist's arrival at the Court in 1972 until 1975 could be released.

But within the last few weeks, and without fanfare, the archives allowed public access to the next batch -- no case files, but an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005, the year he died in office. The material offers a glimpse at the inner workings of the Court and of Rehnquist's own dealings with other justices as an associate and then chief justice."

http://legaltimes.typepad.com/blt/2009/08/rehnquist-papers-white-house-w...

http://legaltimes.typepad.com/blt/2009/08/rehnquist-on-singing-dixie-and...

http://legaltimes.typepad.com/blt/2009/08/missing-rehnquist-at-the-month...

http://legaltimes.typepad.com/blt/2009/08/rehnquist-papers-the-chief-and...

http://legaltimes.typepad.com/blt/2009/08/supreme-court-middle-school-ed...

"Retired Supreme Court Justice Sandra Day O'Connor's "Our Courts" web site, aimed at middle school students, has gone live with two interactive animated games that will, she hopes, engage young people in learning about and appreciating the role of courts in their daily lives. You can find the games here.

The game that engaged us the most was Supreme Decision, in which a hypothetical female swing-vote justice -- hmm, who might that be? -- asks you, the player, to help her reach a decision in a First Amendment case, Ben v. Hamilton Middle School. The dispute involves a student barred from wearing a t-shirt bearing the name of his favorite band, called "Hall of Rejects." After brief arguments on both sides, the swing justice, named Irene Waters, comes out of the Court's conference to seek research help from her law clerk -- that would be you -- on how to decide the case. You then get to listen to mini-debates between justices on each side of the issue, answer questions about their views, and then vote which side to support. The issues imbedded in the dispute are well-explained and presented in an interesting way.

The game's full court, by the way, is composed of five women and four men, and the chief justice, male, is named Zimmer. Justices Mendez and Hsu are among the nine. We won't tell you how it all ends.

The other game, Do I Have a Right?, puts players in the role of lawyers in a law firm, with new clients coming in the door with civil liberties-related issues to litigate. (How come no "dormant commerce clause" disputes, one wonders?) As relative novices with such online games, we found this one somewhat clunky, and the clients seemed to pile up in the waiting room. But maybe that's a touch of realism. Your middle-schooler might navigate it more quickly.

In a statement, O'Connor said today, "Law and government are not about abstract rules or dry facts. They are about how people use the rules and facts to get things done. Our Courts' first two games teach students how to apply the law through the eyes of a judge or a lawyer. They are fun and engaging for students, and easy to use in the classroom or at home.""

http://www.ajc.com/news/new-georgia-supreme-court-116310.html

"That biography of Ulysses S. Grant on [U.S. Attorney]David Nahmias’ bedside table might have to wait."

"Nahmias, 44, a conservative, was appointed last week by Gov. Sonny Perdue to replace the liberal justice Leah Ward Sears, who retired from the court to pursue private legal practice earlier this year. In Georgia, Supreme Court justices are sworn in without a confirmation process, unlike the U.S. Supreme Court.

Nahmias previously was an assistant U.S. attorney and, in Washington, D.C., a counsel to the assistant attorney general in the Criminal Division of the Department of Justice."

"Nahmias earned a full academic scholar to Duke University. “I was kind of a science person until I got to college,” he recalls. “Then I realized figuring out why people do things is more interesting than figuring out why viruses do things.” He graduated second in his class.

He then attended Harvard Law School, was an editor of the Harvard Law Review (along with Obama) and graduated magna cum laude."

http://howappealing.law.com/081709.html#035001

http://www.scotusblog.com/wp/sotomayors-first-vote-on-death-penalty/

"The newest Justice, Sonia Sotomayor, on Monday night cast her first vote in a death penalty case, joining three other members of the Supreme Court in dissent as the Court permitted the execution Tuesday of an Ohio inmate, Jason Getsy, 33. He was scheduled to die in Lucasville, Ohio, at 10 a.m. Tuesday.

The Supreme Court’s order is here. Sotomayor would have granted a stay of execution, along with Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens. Sotomayor’s predecessor, retired Justice David H. Souter, frequently voted to postpone executions."

http://www.eonline.com/uberblog/hwood_party_girl/b139903_jlo_throws_dinn...

".Lo threw Sonia Sotomayor, the first Latina Supreme Court Justice, a dinner party at her Long Island home last night, according to Gossipcop.com.

Hubby Marc Anthony cohosted the intimate affair, which featured a cocktail hour before the main event.

So how many people made the list for the political party?

The guest list only featured about a dozen people, and most were "political types.""

http://legaltimes.typepad.com/blt/2009/08/souter-blocks-access-to-his-pa...

"The New Hampshire Historical Society has announced that retired Supreme Court Justice David Souter is donating his personal and professional papers to the society. But don't book travel to New Hampshire quite yet to take a peek; Souter has placed an extraordinarily long restriction on public access to his papers, barring anyone -- researchers, historians, friends, journalists -- from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory.

The unusually severe bar on access is surprising in one sense, but very Souter-esque in another. Souter is an avid historian -- in fact joining the board of trustees of the New Hampshire Historical Society as part of the announcement of his decision to donate his papers there. He knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events.

But Souter is also an intensely private person, especially protective of the Supreme Court on which he served for 19 years. He was a lifelong diarist and may have decided that his files were too sensitive to be made public while any of his colleagues or many of his law clerks are still alive. Other justices have solved similar issues by making some segments of their papers available earlier, others later.

'I would have been surprised by anything under 25 years,' said University of Cambridge professor David Garrow, a Court historian who has written extensively about Souter. 'I guess I would have hoped for 25. But, given his diary keeping (though we don't know for sure whether or to what extent he continued that at the Supreme Court) I could imagine him wanting to believe, for instance, that pretty much all his clerks would be gone by the time that everything came open.'"

"While President Barack Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court received all the attention this summer, at least 80 other appointments to the federal judiciary remain on his to-do list.

Yet to be filled are two vacancies and an expected third in Pennsylvania's Middle District, representing half of the Harrisburg-based court's complement of six full-time judges."

"Who will get the recommendations of Pennsylvania's U.S. senators, Arlen Specter and Robert P. Casey Jr., for the Middle District judgeships will be determined in part by a screening panel now being assembled.

A spokesman said Casey first wanted the Senate to confirm Thomas Vanaskie's nomination to the Third Circuit Court of Appeals, which would create the third vacancy. Vanaskie has served on the Middle District Court since 1994 and was its chief judge from 1999 to 2006."

http://www.pennlive.com/editorials/index.ssf/2009/08/federal_bench_vacan...

I've returned from weeks away (from this site, that is) and am astounded anew at the information so many people provide. Three cheers for Boggs and Batchelder!

Interesting re Soto clerks and possible efforts to insulate her from evil conservative influence. Interesting speculation re Stevens.

And then there's the beginning of the Rehnquist papers. I might have mentioned in the past that my parents knew Bill and Sandra at Stanford just after WW2 (and that those two dated! Think of the what ifs!). My dad asked Bill Rehnquist to look over his 1948 "Credo."

And much, much more. Thanks every one! Keep the flame alive!

http://news.yahoo.com/s/ap/20090902/ap_on_go_su_co/us_supreme_court_stevens

Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year.

Maybe the prospect of the Dems losing Senate seats next year is pushing up his timetable.

The fact that Stevens has appeared so political recently (by attending Sotomayor's WH reception and helping her hire liberal law clerks) does signal to me that he desperately wants to shore up the liberal contingent on the Supreme Court.

Why now, though? As I understand it, he never helped Souter, Ginsburg or Breyer hire their law clerks. An upcoming retirement announcement seems like a good answer to his recent flurry of activitiy. Before he leaves, I bet he wants to make sure that the liberals won't be undermined by Roberts and the conservatives.

If he does leave, I wonder how effective Ginsburg will be leading the liberals against the conservatives. Stevens has been quite successful in handling Kennedy. Will Ginsburg fare much better? Will she assign the task of persuading Kennedy to either Breyer or Sotomayor? Something to think about.

http://www.scotusblog.com/wp/wp-content/uploads/2009/09/Sotomayor-ceremo...

"A formal investiture ceremony for Associate Justice Sonia Sotomayor will take place at a special sitting of the Supreme Court in the Courtroom on Tuesday, September 8, at 2 p.m. On August 8, Sonia Sotomayor was sworn in as the 11 lh Justice in a private ceremony at the Supreme Court so that she could begin to participate in the work of the Court immediately. Press seating for the Court ceremony will be by reservation. Requests for seating must be received by the Public Information Office no later than 3 p.m., Friday, September 4.

Chief Justice John G. Roberts, Jr., Justice Sotomayor, and Justice Sotomayor's family will be available for photographers at approximately 2: 15 p.m., Tuesday, September 8, on the front plaza of the Supreme Court building, immediately following the investiture ceremony.

Chief Justice Roberts and Justice Sotomayor will walk down the front steps of the building and stand briefly at the base of the steps on the plaza. They will not be available for questions. Members of Justice Sotomayor's family will then join the Justice briefly for photographs. Again, there will be no opportunity for questions."

Obviously, the likeliest answer is that yes, Stevens is planning on retiring in June. But, he's not exactly an idiot -- he knows that news of his *not* having hired a full complement of clerks for the October 2010 will spark this kind of political speculation.

So my guess is that of course, Stevens plans to retire in June, and that everyone's speculation these last few years that he somehow had wanted to stay until he became the longest-serving justice ever was always a little crazy. Those are the kinds of "records" that super-intense court-watchers pay attention to, but few others care about. Longevity, after all, does not in and of itself equal greatness.

But, assuming that Stevens does *not* necessarily plan to (or want to) retire in 2010, here are two alternate scenarios -- neither of which is remotely far-fetched:

--He may have privately gotten some bad news, health-wise, recently, that he hasn't informed the public (or the Court) of yet, and he may have just begun planning for an orderly transition in the event that the health matter takes a turn for the worse for him in the next year or more.

--Stevens also may have just decided to change his hiring pattern for clerks, given his age. He may have concluded that look, I'm turning 90 in 2010, and should I really make these far-out commitments that I can't be sure that I can keep? He may have decided to start committing to only one clerk a year, and then as the term approaches, if he feels good, he may decide to then quickly grab three other (obviously very surprised and excited) young law school graduates as clerks once his term approaches. It would be a little unorthodox and non-traditional, but given how healthy Stevens seems (to the public) to be, this is an option. And one could imagine him following this kind of practice for several years running, as a way of not wanting to make promises that a guy in his 90s can't be certain of keeping.

As I wrote above, I still think the likeliest option is that yes, he retires in June. But, both of these are plausible scenarios, and we should be surprised by neither one of these.

Who leads the liberals (and lures Kennedy) if Stevens goes? Who knows. I could see Breyer being the most successful at persuading Kennedy -- him, far more than Sotomayor (or a frail Ginsburg).

To be honest, I think part of the reason for the 2001 > 2005 version of Anthony Kennedy (other than the Bush v Gore backlash) was that Stevens, O'connor, and Souter represented a different kind of Republicanism that he could relate to, who represented a different vision than the Rehnquist one. All 3 of them will be gone.

When Kennedy originally joined the court, Brennan, Marshall, and Blackmun were still on there, and they represented another extreme. I don't think he related with them, and I don't know how well he could relate to a quartet of Democratic appointments either.

Also, Kennedy would be the senior justice in a Kennedy/Ginsberg/Breyer/Sotomayor/? 5-4 decision (obviously he will never be the senior justice in the other direction), so he's going to be responsible for assigning opinions there. Stevens did a very good job at that, but that might be partially due to his seniority. I don't know whether Kennedy will relish that role.

http://www.latimes.com/news/nationworld/nation/la-na-stevens3-2009sep03,...

"Justice John Paul Stevens, who will turn 90 next year, has given a hint that this Supreme Court term will be his last, potentially clearing the way for a second appointee from President Obama next summer.

Stevens, like most of the justices, hires new law clerks a year in advance, and he confirmed that he had hired only one for fall 2010, not the usual contingent of three or four. Retired justices have one clerk."

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/02/AR200909...

"Justice John Paul Stevens has hired only one clerk for the Supreme Court term that begins in October 2010, and in the tea-leaf-reading world of the court, that is being taken as a sign he is considering retirement.

Active justices generally have four clerks, and Stevens, 89, has hired that many for the court's new term, which begins next month. Stevens usually hires all of his clerks at the same time, and well in advance of the term in which they will work.

So his decision to make one hire thus far for the 2010-2011 term -- retired justices are entitled to one clerk -- seems significant. A court spokesman confirmed the hiring Wednesday after an inquiry from the Associated Press. Stevens's office declined to say more."

http://legaltimes.typepad.com/blt/2009/09/justice-stevens-exiting-next-y...

"...if Stevens wanted to retire during the Obama administration, then next summer might also be his best opening for the next few years. The fate of the Democratic majority in the Senate after the 2010 election is uncertain."

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/03/AR200909...

"How seriously do they take change over at the Supreme Court? Very seriously.

It's not that the justices won't welcome Sonia Sotomayor as one of The Nine. But it sounds as if the prospect of a third new justice in four years is a bit traumatic -- even to one of the new justices.

"To some extent, it's unsettling," Chief Justice John G. Roberts Jr. told C-SPAN as part of a series of broadcasts the network plans about the court. "You quickly get to view the court as . . . composed of these members, and it becomes kind of hard to think of it as involving anyone else. I suspect it's like people look at their families." Roberts is approaching his fourth anniversary on the court.

"It's stressful for us because we so admire our colleagues," added Justice Anthony M. Kennedy. "We wonder, oh, will it ever be the same?""

1. I expect Stevens to retire in 2010, and probably Ginsberg to retire in 2011. Unless Obama nominates someone with ethical problems or in far left field, I think the confirmations will be smooth. I would be shocked if one of these two replacements isn't Elena Kagan. I don't expect Obama to nominate someone who will revolutionize liberal judicial thought, unless it happens unexpectedly. I also don't expect any of Obama's nominees to be a reverse Souter. I thought there may be a small chance with Sotomayor on abortion, but even if that is so, it will be because of her personal views and thus more activism rather than Sotomayor being convinced by the originalist viewpoint.

2. Roberts will have to get used to more new members, as I predict above.

3. As far as liberal leadership, that will likely be Breyer in the short term, and Kagan in the long term. Breyer may be more or less successful in getting Kennedy than Stevens was, I don't know. But Kennedy will probably hew to the center right quite often and may write a limiting concurrence when he sides with us (most of the time), or write a narrow opinion when he sides with the liberals.

4.I think the major fights regarding nominations will come in 2013-2016 period if Kennedy or one of the conservatives retire. It is too early to tell who will be President then. But I'm willing to bet that the Dems won't have as big as a majority as they do today.

I also suspect Stevens will retire next summer, and Ginsburg the next.

That is why liberal Obama winning the White House in 2008 will historically be so significant. He will appoint three justices in four years. Brings tears to my eye just thinking 'What if McCain had won?'

It is especially painful because I suspect Obama will be a one term president. But by the time his term is over, the liberals will have three young votes on the court, who will be there for at least 20 years.

I know elections have consequences, but the 2008 election's consequence will be gigantic.

I don't think it will be as significant as you think if Obama is a one-term President. If the new GOP President gets to replace Kennedy/Scalia/Thomas, then we'll still get a conservative, yet very polarized Court. The result of this may be a general decline in prestige of the judicial system on the left, which may actually be a boon for us strict constructionists.

OTOH, had McCain won and replaced a couple of these liberal justices, then the conservative viewpoint would become the main viewpoint, and may be more accepted by society. If major Supreme Court decisions come down 7-2 rather than 5-4, I think society and the legal establishment is more likely accept them, and consider the liberal dissenters the fringe.

If McCain had won, I think Souter and Stevens still would retire. I doubt Ginsberg would though.