Blog

Justice Kennedy opened up by saying that “The circuit conference is a prudent and a proper exercise of the judicial function.” This conference has come under serious fire from Senate Republicans who oppose what they see as lavish spending on a Hawaiian junket during tough economic times.

In fact, Justice Kennedy thought it was particularly appropriate to hold the conference in Hawaii:

 [The recently-deceased Judge Browning] of course, would have endorsed what Chief Judge Kozinski had said about this conference, and he would have been thrilled that it’s in Hawaii, and it’s important that this conference meet frequently in Hawaii. There is a loveliness, even a loneliness in the Pacific that makes it fitting for us to search in quiet for the elegance and the beauty of the law.  The Hawaiian islands, a state on equal footing and of equal dignity with the 13 original states, and all of the other states, is a bastion of freedom in the Pacific. And together with our friends from Federated States of Micronesia, from Marshall Islands, from Palau, from the Commonwealth of the Northern Mariana Islands, and from Guam, they, in a war, the distill within the living memory of many of us suffered anguish and disaster, and hurt and death in defending freedom. And it’s an honor to be here in Hawaii to celebrate the fact that it is citadel of liberty, a bastion of freedom, and we thank the Hawaiian people for their gracious welcome that they always give to us when we come here.T

Kennedy directly addresses the decision of the circuit to postpone the 2013 conference until 2014, and notes that distant learning can be used to help bridge that gap:

With that preface, I probably should not suggest to you those subjects that you might consider for future conferences, but I think your conference, Chief Judge Kozinski, and Judge Taylor ought to give some attention on how you’re going to spend the 24 months between now and the next circuit conference. I can understand that a reasonable argument would be made from a cost benefit standpoint that from time to time the conference can be held every two years but the interim should be used to prepare diligently for the next conference and with distance learning, with Internet websites, with the close cooperation we have between bench, academy, and bar.

In one of the few substantive remarks about his court, Justice Kennedy queries why the Supreme Court is taking so many fewer cases:

Let me suggest just a few topics again, with the disclaimer that my present experience is somehow limited, and I may not understand some of the real problems that you’re facing. It does seem to me that on this same subject of management and litigation that the academy and the bar can be of immense help to the justices, to the judges in trying to expedite the disposition of complex cases. We, on the Supreme Court of the United States, are frankly puzzled as to why our certiorari workload, our certiorari grants are at about one, almost one-third of what they were when I got to the (unintelligible).

AMK looks to academics to help figure this out. Somewhere an empirical legal studies professor got all tingly.

Justice Kennedy feted Kathleen Sullivan:

Secondly, we have wonderful law professors here, the senior law professors like former dean Sullivan, Kathleen Sullivan, Professor Arthur Miller, some wonderful young law professors here. The deans of the law schools met this morning. I would just say about Kathleen Sullivan, I shared a podium with her twice, and she’s a marvelous speaker. We got one very hard question from the audience. She quickly said, “Oh well, Justice Kennedy can answer that.”

Next, Justice Kennedy turns to the current crisis in law schools, and whether students are prepared to be practicing attorneys:

We are now in at a time when law schools are questioning whether or not they are teaching students the right way, and it seems to me that the bench and the bar can engage in serious discussions with the law schools to advise them whether or not, say for the next 20 years, that they have the proper approach for teaching those who will soon be the trustees of the law as active practitioners. That is urgent.

Finally Justice Kennedy turns to the controversial topic of judicial appointments.

Now with the background of Hawaii music which is a very gentle cue for me to conclude my remarks, I might say there is one other subject, a matter of considerable delicacy yet one which must be discussed. And that is the appointment, selection, and confirmation progress, process for new federal judges. The Constitution requires Senate confirmation. The Senate is a political entity and will act in a political way and that’s quite proper. When you’re appointed to a lifetime position, it’s proper for the political branch of the government to have considerable authority over that decision. On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process. And I think its incumbent upon members of this conference, particularly the members of the bar to face the fact that they have the responsibility to ensure that this appointment, selection, and confirmation progress is done without the partisan intensity that now accompanies it. This is bad for the legal system. It makes the judiciary look politicized when it is not, and it has to stop

From this interview. I am somewhat doubtful that Romney would have the votes to do this, unless the GOP somehow takes the House, and maintains the Senate. Even if both of those conditions happen, certain popular provisions–such as guaranteed issue and community rating–will likely survive in one form or another (even if enacted in a separate law not called the Affordable Care Act).

Update: Thank you to commenter Juan for the correction. The GOP already has the House, they would need to also take the Senate. Slip of the keyboard.

A few preliminary thoughts on the complaint the U.S. House filed against Attorney General Holder in the Fast and Furious case.

I never really understood what authority Congress has to do something like this. The complaint cites some unspecified power.

24. The Constitution bestows upon the House, by itself and through its committees, the power to investigate matters and conditions relating to subjects within Congress’s legislative jurisdiction and to conduct oversight of the other branches of the federal government, including the Executive Branch which includes the Department. That power includes the constitutional authority to require the production of documentary evidence from Executive Branch officials and agencies, by way of subpoenas duces tecum.

There is no citation in that paragraph. They must be citing some inherent power of the House. I seem to recall reading somewhere that the Congress has a jail cell, and through some inherent contempt power, they locked people up in the 19th century. I know there is case law to support this, but I don’t think there is anything in the text of the Constitution that grants this power, short of some necessary and proper incidence of their law making powers, perhaps.

The Congress is one of enumerated powers. Inherent congressional powers to compel other branches of government to produce documents seems to broach the separation of powers, putting aside any issues of executive privilege.

The complaint goes on to cite a number of House Rules that permit Congress to subpoena and otherwise request information. But what authority did Congress have to pass these rules? Certainly the House may adopt various rules for its own proceedings. Const. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings . . . .”). But where does the Constitution give Congress the power to conduct oversight of the other branches, and require that they produce documents? The rule-making provision seems, by its text, to apply to internal procedures. The complaint’s argument seems a bit circular. The power to pass rules for internal deliberations seem plenary, though I’m not sure what basis exists to guide rules affecting other branches.

Can the President haul in members of Congress who get in the way of his duty to take care that the laws are faithfully executed? Can the President haul in Judges who do likewise (oh I bet Obama would love to have a beer summit with Chief Justice Roberts!).

I recognize that the Justices do testify in front of Congress, presumably on budget matters affect the judiciary, though these questions frequently meander onto other topics–such as diversity among clerks and cameras in the court. Frankly, these visits always troubled me. Is the funding for the courts contingent on these meetings? If no Justice agreed to come, would the appropriation be cut off? Is that even constitutional? What other strings can Congress place on funding? Could congress make funding contingent on placing cameras in the Court? Opening the front doors up?

This Onion headline sees particularly apt in light of the setup in my new office: “Coworker With Two Computer Screens Not Fucking Around.”

FORT WORTH, TX—Credible sources within your office reported Monday that the guy on the third floor with two computer screens on his desk is not fucking around. “Amazing—he comes in here, sits down next to me and my one sorry-ass screen, turns on his two screens, and starts tearing it up,” marketing assistant Todd Piotrowski said as the guy dragged a window from one screen to the other, which sources confirmed was like watching fuckingMinority Report or something. “He’s got three, maybe four programs open on each screen, plus some sort of group video chat running nonstop—he’s going balls to the wall over there. How is he doing all this with only one keyboard?” Piotrowski also speculated that if there’s a limit to how many tabs you can have open in your web browser at once, this guy’s gonna hit it.

Two monitors? Pheh. I have 3 monitors, plus my laptop, plus my tablet. And I can tell you, I am slowly inching towards the maximum tab limit in Chrome. I keep getting these warning emails from Google telling me to slow down and turn around, but I disregard them. Because I can move a window from one screen to another like a boss.

H/T A lot of people who sent this in.

Alas, the Seaside-outcasts now have a place to saunter on the shore.

A very pregnant Nicole “Snooki” Polizzi and her friend Jennifer “JWoww” Farley finally have a home — at least for the next few weeks.

The pair are slated to tape their “Jersey Shore” spinoff show “Snooki & JWoww” at a home on Johnson Avenue, Mayor Michael Fressola said. Taping begins in a couple of days.

“We got word in advance that they were coming,” Fressola said. “When I got the request I checked into our ordinance to see if we had anything on the books, and there is nothing against a production group coming in and producing a show.”

No constitutional challenges from other towns denying filming permits based on the content of their speech will likely follow.

H/T Evil Ginger