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Tony Mauro reports in the National Law Journal that the Jones Day law firm hired ten Supreme Court clerks this year, topping its previous record of seven. More from WSJ. For reaction, Tony gets a quote from Seth Waxman, who chairs the Supreme Court practice at Wilmer Hale.

Seth Waxman, a former U.S. solicitor general who heads the appellate and Supreme Court practice at Wilmer Cutler Pickering Hale and Dorr, questioned how any firm could provide enough work to such a large number of associates in a way that would grow their talents and keep them at the firm.

“In our practice, we’re looking to mentor and train associates with the intention that they be our colleagues for a long period of time,” Waxman said. “I am skeptical that any law firm could provide that kind of mentoring and commitment” to such a large number of former law clerks.

Beth Heifetz, who chairs Jones Day clerk hiring process offered this reply:

“We are able to recruit and retain so many clerks each year because we have demonstrated to each preceding class our ability to integrate them into the casework more easily than most firms can,” Heifetz said.

The former clerks “enjoy the opportunity to continue to work with one another and with other recent clerks,” she said.

Jones Day makes “a big commitment to helping each lawyer develop professionally in the way that makes the most sense for each individual lawyer,” Heifetz said.

The retention rate for the clerk hires at the firm is high, Heifetz said. A National Law Journal tally determined that of the 19 former high court clerks Jones Day hired over the last three terms, only two have left the firm—both from the 2011-2012 class.

Clients are pleased with the firm’s hiring of former high court clerks, Heifetz added, and her colleagues at the firm, “to a person, believe in our recruitment [of Supreme Court clerks] and stand behind it.”

Heifetz said the firm did not make offers to all of last term’s clerks but met with many of the clerks after their stint at the court was over.

 

In Unprecedented, I discuss the role that Jones Day’s team of #SCOTUS played in NFIB choosing them to argue the Obamacare decision:

Initially, the case was “presumptively” going to Gibson, but after Jones Day’s pitch, which approached the case from the “ground floor,” Harned changed her mind. Harned told me she “didn’t really know the attorneys at Jones Day” before the interview, but was “blown away at the level of thought they had already given the case—a lot more than from other firms.” Harned was also impressed by the breadth of experience at Jones Day, which had recently hired a large number of Supreme Court clerks from both conservative and liberal justices. Barnett advised Harned that Jones Day had the “right strategy” and was the “best choice.” Barnett favored Jones Day because he “wanted a firm that was least likely to follow his lead, and most likely to con- tribute their own theories. This is exactly what happened.”

Jones Day will also figure prominently in the sequel, Unraveled, for their role in King v. Burwell.

On Thursday, Eric Segall and I debated the topic of Selecting the Next Justice at the Georgia State Federalist Society Chapter. It was a lot of fun.

 

Update: Georgia State offered this lengthy writeup of the event–someone was taking notes:

Eric J. Segall, Georgia State University Kathy and Lawrence Ashe Professor of Law, faced off againstJosh Blackman, associate professor of law at the South Texas College of Law, during a riveting debate, “Picking the Next Justices,” on Oct. 29 for the Georgia State chapter of The Federalist Society.

Appointing U.S. Supreme Court justices is perhaps the most important decision the next two or three presidents may make, Blackman said.
An aging court—four justices will be well over 85 in 10 years —means that several appointments are likely to occur within the next three presidential cycles.

Of the last 16 justices appointed, 12 have been chosen by five Republican presidents and four by two Democratic presidents. Over the years, Blackman said, a significant number of justices appointed by Republicans have drifted to the left in varying degrees.

“Republicans have been pretty lousy at picking justices who adhere to the views that perhaps they want,” Blackman said.

The Ronald Reagan nomination of Robert Bork and subsequent blocking by Democratic opposition set a precedent that nominations could be stopped, Blackman said. Reagan’s next nominee, Douglas H. Ginsburg, also was strongly contested. That’s how the moderate Anthony Kennedy sailed through—he was a compromise to avoid another fight. “It’s a decision that has been haunting Republicans for 30 years,” Blackman said.

That’s why his first piece of advice in picking the next justice is to be prepared to fight. “A bruising confirmation battle is worth the political capital for a lifetime appointment,” he said. “A justice survives long beyond a presidential administration…. If it’s a qualified judge, try it again.”

Both Blackman and Segall agreed that ‘paper trails’ are an asset for candidates. “No more blank slates,” Blackman said. “We need to know how a judge views the Constitution.”

They differed however, in what a potential justice should be asked while being vetted.

Blackman said judges shouldn’t be given a litmus test, and asking their opinion on current issues is pointless.

“We need to focus on the Constitution and not issues du jour. A president can’t understand what the big constitutional case will be. You don’t know what the next big thing will be,” Blackman said.

Professor Eric Segall said nominees should be questioned about their stance, to ascertain how thoughtful they are regarding important decisions.
Segall said nominees should be questioned about their stance, to ascertain how thoughtful they are regarding important decisions.
“How do you feel today about either the second amendment or a case A vs. B?” Segall asked.

The biggest disagreement was whether or not it is admirable for justices to brood over decisions and fluctuate on opinions.
The president should “pick people with courage who can stand up for their principles and not people who vacillate and go with wherever the wind goes,” Blackman said. “The law requires a sense of certainty.”

Segall dissented. “If you’re about to decide whether Roe vs. Wade is about to be overturned … agonize about it, think about it,” Segall said. “It’s hard, it affects the whole world… it’s that characteristic ‘I might be wrong, so I might change my mind’… That’s what we need. So I hope when the next Supreme Court vacant seat occurs, it’s not just that ‘we want this person because they do what we want’ … what we want are people who will take their jobs seriously, humbly and with deference.”

Segall said humility is the single most important characteristic one should look for when appointing a justice.

“What we need are men and women who understand we don’t vote for them, we can’t fire them, they don’t stand for election, and they should only interfere with our government when it’s absolutely necessary or when the Constitution is absolutely clear,” Segall said.

As far as the Constitution is concerned, the two disagreed over whether original meaning matters.
Blackman said it’s imperative prospective justices be asked questions such as ‘how do you understand the original meaning of the second amendment,’ and ‘how do you understand the original meaning of the due process clause’ to test their knowledge of the history of the Constitution.

Segall said an ‘original’ would have no idea what we are talking about in most cases, and that no member of the Supreme Court has ever been consistent in caring for originals.

“No judge goes back to the 1800s to figure out what they would have done,” said Segall. “It’s an impossible task. They all decide cases by today’s values. … It’s the burden of proof that matters.”

They also argued over what constituted judicial activism.

“There has been a very serious shift within the Federalist Society to move away from this notion of judicial restraint because the archetype of restraint in our modern era is the chief justice’s decision in Obamacare,” Blackman said. “I think you will see less conservatives saying we want no more judicial activism because of the Obamacare decision. I think it’s created a shift in how people look at the Supreme Court.”

Segall shot back: “What they’re saying is, ‘he reached a result different than the one we wanted, and therefore it was not judicial restraint,’ and that is the problem with America’s discussion on the Supreme Court today. These people would say ‘restraint, restraint, restraint, restraint,’ and they wanted that for really one reason, reverse rule. … The very message of the Federalist Society is restraint—excuse me, used to be. Because it turns out, once they got control of the Court, now restraint is not so good anymore.”

The lecture notes are here.

To get a sense of how large the Laurel region is in this case, it considers a 20 mile semicircle (Pi * 20^2 = roughly 1,200 sq miles!) of Camden, Burlington, and Gloucester County.

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The issue of affordable housing for families is still pressing–see this article from Times.

When Mayor Michael R. Bloomberg announced that the city was planning to develop new super-small apartments — called “microunits” — it represented another step toward his ambitious goal of building or preserving 165,000 homes for poor and moderate-income families across New York by 2014.

But some housing advocates, community leaders and elected officials say this latest proposal only highlights that one demographic group has been left out: large, poor families.

This group includes members as disparate as West Africans in the South Bronx, Hasidic Jews in Brooklyn and Bangladeshi in Queens, who are united by their inability to afford the high prices for large market-rate rentals and their inability to find publicly subsidized alternatives even as the overall housing stock has swelled.

The lecture notes are here.

Individual Liberty II

• Eisenstadt v. Baird (1494-1500).
• Roe v. Wade (1500-1516).
• Planned Parenthood v. Casey (1516-1540).
• Notes (1540-1544).

Eisenstadt v. Baird

This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.

This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.

This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.

This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . .  and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”

Roe v. Wade

This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.

Here is McCorvey in 1985.

Roe didn’t even make top billing in the Times. LBJ died on decision day.

In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.

I could not find a full, color photo of the Leutze painting. Here is the best version I could find.

Here is another portrait of Taney:

 

The vote lineup in Eisenstadt v. Baird was very odd. The majority opinion by Justice Brennan  was joined only by Stewart, and Marshall. Justice Douglas joined the majority opinion, but wrote that it was a First Amendment case. So the majority opinion (if you can call it that) only had four votes. Justices White and Blackmun concurred in judgment, based on a strained argument that the law couldn’t be applied to a married couple under Griswold: because “nothing has been placed in the record to indicate her marital status,” the conviction cannot be sustained. These two didn’t embrace Brennan’s reasoning at all. Chief Justice Burger dissented. So six votes to affirm the lower court, one to reverse. Finally, “MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.”

Eisenstadt was argued on 11/7 and 11/8 of 1971, and was decided on 3/22/72. Powell was confirmed on 12/7/71 and Rehnquist was confirmed on 12/10/71. Both began serving on 1/7/72. Had the case been argued about 2 months later, both Powell and Rehnquist could have participated–and potentially altered the fragile balance Brennan held together.

Based on a quick perusal of Oyez, the first case that both Rehnquist and Powell voted on was United States v. Mississippi Chemical Corporation. It was argued on 1/10/72 and decided on 3/6/72. They also voted on Argersinger v. Hamlin. It was initially argued on 12/6 (before their confirmation) but reargued on 2/28 (after they began service), so that’s kosher.

Roe v. Wade was argued for the first time on December 13, 1971 (after the confirmation), and was later reargued on October 11, 1972. Powell and Rehnquist voted after the latter argument.