Holy Hullabaloos, The Blog

RBG Grants a Stay: A Recollection

So yesterday, Justice Ginsburg issued a stay of a lower court's approval of the whole bankruptcy deal involving Chrysler and the sale of a bunch of its assets to Fiat and whatnot.  Though it doesn't happen often, individual justices of the Supreme Court have the authority to grant stays of lower court decisions when they believe that the stay is necessary for the Supreme Court to decide whether to decide the case on the merits.  In other words, if a lower court decision would result in some irreversible action (like the whole Chrysler deal), and if there's a plausible argument that the lower court decision involves some legal issue that might be worthy of Supreme Court review, the adversely affected party might ask a justice to issue an emergency stay of the lower court decision so the whole Court will have some time to decide whether in fact the case is worthy of review.  The request goes to the justice who has authority over the geographical area where the case comes from; Justice Ginsburg is the justice in charge of the second circuit area, which includes New York, and so the request went to her.  The justice has the option of either just deciding whether to grant the stay him or herself, or alternatively to bring it to the whole Court to decide whether to grant the stay.  A decision to grant a stay doesn't mean that the Court will actually go ahead and decide the case on the merits; it just means that the Court thinks the issue is important enough that it needs some time to consider whether to decide the case on the merits. 

When I was clerking for Justice Ginsburg in the 1998-1999 term, I had occasion to work on one of these stay requests.  It was late in the term--maybe June or something--and as usual I went on a long lunch break.  I can't remember whether it was one of those days when I went back to my rat-infested apartment to eat and watch a rerun of Good Times or whether I went to the Au Bon Cafe with friends or what, but I remember coming back after lunch to find this big file on my desk involving a request for an emergency stay in a really famous religion case--one in which I discuss in Holy Hullabaloos (available now from amazon).  Now, I'm good at certain things, but one thing I'm not good at is dealing with emergencies.  Luckily, there generally aren't any emergencies at the Court.  Clerks do a lot of work, but you always know what's coming and you generally have a good amount of time to do it.  This allows you to plan your work in a rational fashion and not have to worry that something unexpected is going to come up and bite you in the ass.  Well, this file bit me on the ass, and I freaked out.  I said something like: "Ahhhh" and wet myself.  OK, I didn't wet myself, but I got very nervous and worried and also a little irritated because now I was going to have to do all this work to figure out what the stay application was all about, which meant that I wasn't going to have time to watch more television or work on my unbelieveably horrible novel about a blueberry muffin called "Arrivederci, Loser," the title of which was based on a piece of hate mail that my wife once received from a former nutso friend who thought that my wife had abandoned her for me (she had). 

The case in which the stay was requested is too confusing to describe fully here.  It basically involved a first amendment Establishment Clause (church/state separation) challenge to the state of New York's decision to grant a community of Satmar Hasidic Jews its own school district so it could administer publicly funded assistance to disabled children in the community.  Back in 1994 the Court had invalidated the first version of this arrrangement in the Kiryas Joel v. Grumet case that I discuss in the book.  In subsequent years, the state made several attempts to comply with the Court's decision in that case while still giving the Satmars the authority they wanted.  The thing I worked on was a request to stay a lower court decision holding the most recent attempt unconstitutional.  Luckily for me, Justice Ginsburg, as usual, knew exactly what to do and didn't really much need my help and so it all turned out fine (the Court in fact granted the stay but didn't end up hearing the case, though a few justices thought they should have), but I still sharply remember the feeling of YIKES I had coming back to lunch to find the latest iteration of a famous case in my field of interest sitting on my desk.

Sotomayor? More Like Sotomay...boorrrrring

So, for those of you who get all your information about the world from Holy Hullabaloos: The Blog, here's some breaking news--President Obama has named Second Circuit Court of Appeals Judge Sonia Sotomayor to be his nominee to replace the retiring Justice David Souter on the Supreme Court.   Well, that's nice, I guess.  There are certainly some pluses here.  She's an accomplished judge who will probably sail through the confirmation process.  She's moderately liberal, much in the mold of Justices Breyer and Ginsburg.  And she brings welcome diversity to the bench, both as a woman (it's truly incredible that more than 2/3 of the bench will still be male; hopefully the next 2 or 3 picks will also be women) and as the first Hispanic ever to be nominated to the Court (it's maybe worth noting however that, religiously, she adds to the Court's surprising lack of diversity, as she will be the 6th Catholic Justice if confirmed).  It is true that some people who are familiar with the second circuit say that she is mean to lawyers and generally not a very nice person, which if true (and I have absolutely no personal knowledge about this) is unfortunate, because I think we have enough qualified jurists that we don't need to reward mean people by giving them such a plum job, but apart from this little thing, I guess it's a fine pick.

Still, though, for those of us who are very liberal and also kind of like to watch a fun Washington spectacle once and a while and who are getting incredibly bored with how every member of the Supreme Court apparently has to come from the Court of Appeals, this choice is incredibly boring.  Sotomayor?  More like Sotomaysnore!  I mean, with his high approval ratings and most likely 60 democrats in the Senate, wouldn't this have been a great time for the President to name someone exciting to the Court?  Someone maybe who hasn't been an appellate judge, like a trial judge or a governor or Larry Bird or something?  Or someone who is a real lefty McLeftster who could kick some Scalia ass from time to time, like Pam Karlan or, better yet, me.  I mean, what's the chance that Sotomayor is going to do that incredibly irritating thing where you say exactly what the other person says right after they say it, like I would have done every time Scalia opened his mouth?  Probably little to none, I'd guess.  Finally, at least Obama could have made the summer a little more fun by nominating someone incredibly controversial, so we'd have the prospect of some Senate Judiciary Committee battles and coke-can talk and yelling and maybe burping to look forward to when we weren't being reminded of how down the toilet the economy is going and what have you.  Anyway, I guess what I'm saying is that IT SHOULD HAVE BEEN ME!!!!!!

New Article About Justice Ginsburg's Footnotes

Hi.  Next week I'll be participating in a symposium at the New England School of Law in downtown Boston on the jurisprudence of Justice Ruth Bader Ginsburg.  The six presenters are all former clerks of the Justice, and some of the most likable ones at that.  I'm on a panel with Hugh Baxter, also of BU, and David Franklin of DePaul, who sometimes likes to claim that he is funnier than I am.  I will be giving a kind of lighthearted talk about Justice Ginsburg's footnotes, which includes an anecdote about how she and Justice Scalia once got into an opera footnote related skirmish in a case I was working on.  The paper I'll be presenting is available here in case you can't make it to the symposium, which is open to the public and starts at 12:30.

My Speech on Evolution and Intelligent Design at West Virginia University

This previous Monday I was honored to have the opportunity to give the Edward Donley Memorial Lecture at West Virginia University as part of its university-wide celebration of Darwin's 200th birthday.  I hung out in Morgantown for a few days, and I have to say that the faculty of the WVU law school is the nicest, most fun, and friendliest group of legal academics I've ever met.  My speech was entitled "Two Errors About the Evolution Controversy (or What I Learned From My Visit to the Creation Museum)."  I thought the speech went well, and it was a pleasure taking questions from the audience and talking to students afterward.  The speech was webcast, and if you'd like to watch some or all of it, you can take a look here.

If you're interested, there's a brief reference to my "black and white zoo" idea at 28:20 in the speech.

I'm also kind of curious if anyone has any opinions on my shirt-tie-suit combo.  The tie and shirt are a little bit of a mismatch, but I think it kind of works.  Could be wrong on that though.

Clerkin' for RBG, Part I

As everyone who follows the news knows by now, Justice Ginsburg recently had surgery for pancreatic cancer.  This has sparked speculation about whether she might retire soon.  I don't know anything about the details of her illness; although I clerked for her during the 1998-1999 term, and although we got along very well, we do not keep in touch.  I do know that she is about the toughest person you will ever meet, and if anyone can beat pancreatic cancer, it's her.  I definitely wish her and her family all the best.

 

The news reminded me of a piece I wrote a couple of years back called "Clerkin' for RBG," which related some of my memories from my clerkship.  I thought it was a good piece, but nobody seemed interested in publishing it.  I thought this would be a good time to put it on the blog.  It's long, though, so I'll have to post it in installments.  Here's installment #1:

   

     When former Supreme Court law clerk Edward Lazarus published Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court in May of 1998, curious readers bought the book in droves to find out what really happens behind the scenes at the nation’s highest court.  The law clerk community, however, flipped out.  Claiming that Lazarus had breached his confidentiality obligations to the Court, critics called his actions  “wrong,” “offensive,” and a “betrayal.”  One prominent sitting judge who previously clerked at the Court argued that Lazarus had violated several canons of the Supreme Court Clerk Code of Conduct as well as “the bond of loyalty to his Justice, the other Justices, and his fellow clerks.”  Charges like this are enough to make any former law clerk hesitate to say just about anything about his or her time working at the marble palace.

 

            On the other hand, the temptation to talk is strong.  Whenever anyone finds out that I clerked for Justice Ruth Bader Ginsburg during the 1998-1999 term—whether it be a student, a newly made friend, or just some random stranger that I’ve accosted on the street or in the men’s room—they inevitably want to hear about my experiences.  What was it like working there?  Was Justice Ginsburg nice?  Is it true that Justice O’Connor made her clerks do aerobics?   Does Felix Frankfurter’s ghost really haunt the Great Hall?  What does it feel like to sit shirtless in the Chief Justice’s chair screeching “Order in the Court” after four margaritas?   Because I get tired of talking about the only other interesting experience I’ve ever had (side note: do not plan vacations on the web while drunk, or you too might decide that spending a frozen night in a Quebec Ice Hotel sounds like a good idea), I often feel the urge to mention a few tidbits from that year.  And although I always refrain from divulging any confidential secrets, I generally say something, usually before the guy even comes out of the stall.

 

            In this Essay, I will try to walk the same precarious line that I tiptoe whenever I talk about the twelve months that I worked for Justice Ginsburg.  I will reveal nothing that would shed light upon the inner workings of the Court, at least nothing that has not already been prominently divulged (the fact that clerks take part in a “cert pool,” for example, to help the Justices decide which cases to hear, is an example of a piece of purportedly inside information that is already widely known).  I will discuss no specifics about the particular cases decided when I was there, and I will not talk about any substantive conversation that Justice Ginsburg had with me, or with anyone else, in the event that I happened to overhear such a conversation through the plastic cup I regularly held between my ear and the door to her office.

 

            Lazarus published his controversial book right before I was about to start clerking, so coming in I had visions of a year filled with ideological tension, backbiting intrigue, and wild shootouts on the Court’s spiral staircase.  As it turned out, though, nothing of the sort ever took place.  Perhaps it was because our term was conspicuously devoid of any cases involving hot button issues like abortion or affirmative action (the two cases I worked hardest on dealt with insurance fraud and the statute governing removal of cases from state to federal court), or maybe it was because the thirty-six of us who clerked that year were a friendly bunch, but the term was exceedingly quiet from an ideological perspective.  One liberal colleague observed toward the beginning of our tenure that he thought one of our conservative colleagues wanted to start a right-wing cabal among the clerks but that the guy simply lacked the charisma to pull it off.  Other than that, though, there was very little of the conservative-liberal infighting that Lazarus claims took place when he worked at the Court.

Next Installment: How many steps are there leading up to the front doors of the Marble Palace?

Armed with Ideas from the Harvard Lampoon, Sunstein Goes to Washington

So, President-elect Obama has announced that he will be appointing Cass Sunstein--the nation's preeminent legal scholar, currently at Harvard and The University of Chicago--to head up a critical risk assessment agency within the Office of Management and Budget.  This may not seem like a big deal, especially for someone who has been talked about as a potential Supreme Court nominee, but it is in fact a really important position.  The head of OIRA (the "Office of Information and Regulatory Affairs") is the person who is primarily responsible for ensuring that government regulation is rational and cost-beneficial.  Sunstein has written endlessly about risk management (as well as just about everything else), so he was a natural choice for the position.

Sunstein has been influenced by and part of an academic movement known as behavioral economics, which challenges traditional economic theory's assumption that people act rationally by arguing that people often act irrationally, although in predictable ways (they value some things more than they should and some things less than they should; they fear certain risks more than they should (think sharks) and some things less than they should).  It's likely, as Dan Slater writes in WSJ's legal blog today, that Sunstein will bring this behavioral economics approach to law and legal regulation to his work at OIRA.

In describing what behavioral law and economics means, Slater quotes a podcast of Sunstein's in which Sunstein says that there's a little of "Homer Simpson" in all of us--for example, we act impulsively when it's not in our long term best interest, we fear things irrationally, etc.  Hmm, wait a second: Homer Simpson?  Isn't he a main character on The Simpsons?  And hasn't The Simpsons been written over the years by lots and lots of alums of the Harvard Lampoon, the nation's preeminent humor magazine?  And wasn't Sunstein, as this blog reported a couple of months ago, a member of the Harvard Lampoon?  It seems that Sunstein will be bringing a part of the Lampoon with him down to DC after all.  Hmmmmmmmmmm, indeed.

I wonder what other characters, ideas, and skits written by Lampooners will influence Sunstein in his work at OMB.  SNL's Matt Foley, who lived in a van down by the river?  Letterman's "let if float"?  Should be interesting.

Big News from DC: Obama Names Top Justice Department Officials; I'm Not One of Them

So, there's big news coming out of the Obama camp in the past couple of hours.  The President-elect has named four of his big appointees to serve under AG appointee Eric Holder in the Justice Department.  The nominees will be Elena Kagan, current Dean of Harvard Law, for Solicitor General (the person who argues on behalf of the U.S. government at the Supreme Court); David Ogden of WilmerHale as the Deputy AG, Tom Perrelli of Jenner & Block as the Associate AG, and Dawn Johnsen of the University of Indiana School of Law to head the Office of Legal Counsel, the office which in the Bush Administration issued the so-called "torture memo" and which I used to work for (pre-Bush Administration/torture/unbelieveable executive overreaching, etc.)

There are some pretty notable things to note here, and let me just note one.  For one thing, Obama picked Kagan over Kathleen Sullivan of Stanford Law School for the SG position.  I feel a little disappointed by that, only because I worked for KS as a research assistant in law school.  But it's really no surprise, and Kagan will be marvelous.  Yale Law School must be celebrating Harvard's loss of Kagan, though, since Kagan was a superstar dean who made all sorts of great improvements at Harvard, which now threatens Yale as the top law school in the US.  Johnsen is a terrific pick--if I'm not mistaken, she was one of Clinton's nominees for the same position but was never confirmed and either worked as the acting head or as a deputy; this was all before I got there so I'm not sure.  In any event, she's a leading thinker on Presidential power and very experienced and will certainly lead the office in the right direction.

I don't know Ogden at all, but Perrelli is a great guy--funny, a little goofy in a good way, and a ridiculously hard worker.  He worked himself way up in DoJ during the Clinton Administration at a very young age I would guess not only through his vast abilities but also because he's incredibly likeable and everyone likes him and also he's very likeable.  This may come as a surprise to some of you, but not all bigshot DC lawyers are likeable.  No, it's true.

One other thing to note about this group of nominees is that I am not in it.  Now, I guess I was kind of a long shot for SG, especially given how crappy I was at oral argument in moot court (KS herself was one of my judges, and she almost made me cry) and how I've never argued a single case anywhere in my life, but still, a guy's got to be kind of disappointed to be left out of such an exciting party. 

I guess the most important decisions left are who will be the ADAGs (Associate Deputy Attorney Generals) and the DAAGs (Deputy Associate Attorney Generals) and more importantly, who will be the PADAG (the Principal Associate Deputy Attorney General) and the PDAAG (Principal Deputy Associate Attorney General).  I think I sort of remember that there was also an APDAG, but I can't quite figure out what position that would be.  Who knows, maybe I'll get it! 

Cass Sunstein: The Harvard Lampoon Years

Long before he was a top advisor to Barack Obama . . . long before he was on the short list for any possible Supreme Court vacancies . . . long before he was the most prominent law professor in the world, Cass Sunstein was a member of the Harvard Lampoon, the nation's preeminent college humor magazine.   The Lampoon counts among its alumni numerous literary luminaries, from William Gaddis to George Plympton to John Updike.  It has also sent too many writers to count off to Hollywood, where they've written for every comedy show imaginable, from The Simpsons to SNL to Futurama to Different Strokes (I don't know for sure about that last one, but it seems plausible).  Conan O'Brien, for instance, was the President of the magazine when he was a student at Harvard.

As any legal academic knows, Sunstein is incredibly, amazingly, ridiculously prolific.  A quick search of a prominent academic database reveals that Sunstein has authored (or co-authored) 114 articles since the turn of the millennium.  And this doesn't count his many books and op-ed pieces and letters to Congress and who knows what else.  It is rumored that Sunstein once wrote an environmental law article for the Yale Law Journal with his left hand while writing a constitutional law piece for the Stanford Law Review with his right hand, at the same time.  (This rumor has not been confirmed, however.)  I myself am pretty sure that a few years ago I saw Sunstein on Nightline writing out an article on his laptop in between fielding questions from Ted Koppel.  (Again, not confirmed.)  So, imagine my surprise when I spent a couple of afternoons recently poring through issues of the Lampoon from 1972-1975 at the Boston Public Library and the Harvard Archives and was unable to find even one single signed piece written by Professor Sunstein.

Now, this doesn't mean that Sunstein didn't actually write anything for the magazine.  He certainly was on the masthead for about ten issues, and the December 1973 issue announces his election to the Lampoon with great fanfare: "With immoderate imbibition of the customary holiday spirits, a wild interpretative dance, and several calls from the Cambridge police, Lampy proudly tugs at the bellrope to announce the election of the following new members: ". . . Cass Robert Sunstein `75-2. . . ."  Many of the issues have unsigned pieces which Sunstein may have written or contributed to, and since the general view of Sunstein is that he's an incredibly kind and helpful person, maybe he even wrote a story and let someone else sign his or her name to it.  But unless I just missed it in my five or six flips through the relevant issues, Sunstein did not claim authorship of any piece during his tenure at the Lampoon.

Sunstein is, however, listed as a contributor to two parodies written by the Lampoon while he was on the staff.  The first is a parody of Parade, that weird magazine with the cartoon about the clever Saint Bernard that you find in a lot of Sunday newspapers.  Specifically, Sunstein is credited, along with two others, as a contributor to a column called "Keeping Up With Youth," which contains three little pieces, including my favorite, "Age the Difference," which includes this opening line: "Today's youth is consistently younger than their parents."  The piece continues: "As one college sophomore commented, 'if my father wasn't at least 20 years older than me, we'd practically be the same age.  If you're looking for a generation gap, I think you've got it there in a nutshell.'"

Sunstein is also listed as one of about ten contributors to the Lampoon's 1974 parody of Sports Illustrated.  The parody is 112 pages long, and there's no indication as to which of the articles Sunstein may have written (the authors are listed as people like Barry DeHatchett, Tex Tile, and Curry Ritzcrackrick).  It's too bad, because some of them are real gems, like the piece on the "International Wheelchair Diving Rolloffs," the article about fishing for deep sea elk, and a story about a golf tournament hosted by Idi Amin, featuring man-eating crocodiles, a minefield on the eighth hole, and sand traps filled with, you guessed it, quicksand.  In the entire parody, I think my favorite moment might be found in the "People" column, penned by "Jeannette Juice," who reports of Vida Green, the "world's oldest and least competent infielder," that his 715th career error "came with the bases loaded and no outs in the third inning of a game against the San Bernadino Grub Larvae, when Green totally misread a slow grounder to second and ended up booting it soccer-style into the left field upper deck."  Professor Sunstein, if you're reading this, please please tell me you wrote that.