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In his response to Bruce Allen Murphy’s book about Justice Scalia, Steven Calabresi (with his co-author Justin Braga) offers some inside scoops (which I hadn’t seen) about the nominations of Justices O’Connor, Kennedy, and Souter, and the non-appointments of Starr, Posner, and Wilkinson. The details are, well, salacious.

As a member of the Reagan Administration for two years and as a close friend of leading Reagan Administration and George H. W. Bush Administration legal officials, I know a lot about how Justices O’Connor, Kennedy, and Souter got to be appointed to the U.S. Supreme Court.

First, Kenn Starr picked SOC. Calabresi calls Starr’s conservatism “squishy.”

Given the tiny number of women who attended law school in the 1950’s, it is very unlikely that any such conservative woman existed who had attended the nearly all male law schools of the 1950’s. Justice O’Connor was hand-picked by former Judge Ken Starr who served as Attorney General William French Smith’s Councilor and Chief of Staff in the early 1980’s. Starr was at the time a very moderate Republican with squishy views that were indistinguishable from those Justice O’Connor later displayed on the Supreme Court.

Calabresi blames Starr for this nomination.

In hand-picking Justice O’Connor for appointment to the U.S. Supreme Court, Ken Starr picked someone very much like himself: a mediocre, squishy, centrist with slight conservative leanings. Justice Scalia did not drive Justice O’Connor to the left. She was already there when President Reagan appointed her. The person to blame for the fiasco of the O’Connor appointment is not Justice Scalia but Ken Starr.

Calabresi also thinks Starr would have been a terrible nominee:

I think Starr would have joined O’Connor and Kennedy in refusing to overrule Roe v. Wade, and he would have been a constant thorn in William Rehnquist’s and Antonin Scalia’s side as he was when he was on the D.C. Circuit. He craved the approval of the Georgetown dinner party circle and of the elite law schools. He was also prone to make mistakes and furiously stubborn about not backing down from them in a way that has always reminded me of Justice Harry Blackmun who devoted his life to the defense of his mistake in Roe v. Wade. It was a serious error of judgment ever to have considered Ken Starr for appointment to the Supreme Court. His disastrous handling of his appointment as an independent council to investigate Bill Clinton proved to the nation all of his many flaws in judgment.

Second, we learn that Bill Bennett was key in stoning Doug Ginsburg’s nomination (come one, that pun was better than “going up in smoke.”)

After Judge Bork’s defeat, the Justice Department, led by conservative Attorney General Edwin Meese III, offered up a libertarian, former Harvard law professor Douglas Ginsburg as the second nominee. Ginsburg’s nomination went down in flames after it was discovered that he had attended a party at Harvard Law School in which students and faculty were openly smoking marijuana to which he did not object. Education Secretary Bill Bennett and his key aide William Kristol idiotically led a crusade to get Ginsburg to withdraw his nomination because he was soft on marijuana. That campaign succeeded paving the way for Justice Anthony M. Kennedy’s appointment. Ironically, Bennett and Kristol would have more likely agreed with Ginsburg than they have with Kennedy.

Third, the blame for Anthony Kennedy goes to “liberal Republican” Howard Baker and the “squishy” A.B. Culvahouse (who 20 years later helped vet Sarah Palin as VP):

The nomination of Anthony M. Kennedy after the Bork and Ginsburg fiascos fell to liberal Republican Howard Baker, who was the White House Chief of Staff trying to stave off Ronald Reagan’s threatened impeachment over Iran-Contra, and to his squishy White House Council, A. B. Culvahouse, because conservative Attorney General Edwin Meese had lost his control over the Supreme Court nomination process after the Bork and Ginsburg fiascos. General Meese’s candidate for the third nomination was J. Clifford Wallace, a mediocre candidate but a very devout Mormon who was an ardent conservative. The White House rejected Wallace out of hand preferring either Judge Bork’s conservative friend from his days at Yale, Ralph K. Winter, or Judge Anthony M. Kennedy. Winter’s candidacy was tubed because of the implacable opposition to him from Senator Joseph Biden, the Chairman of the Judiciary Committee, who quite wrongly thought Winter was just another Bork. Conservatives advising A.B. Culvahouse then rallied around Judge Kennedy who was seen as being more conservative than Judge Patrick Higginbotham who was another possible nominee. Kennedy was known to the White House to have had the strong support of Harvard Law Professor Laurence Tribe, a leading liberal, which made him confirmable in the heated politics following the Bork and Ginsburg fiascos.

And, for good measure, Calabresi has this to say about Posner:

Up until now I have purported to take Posner’s argument with Scalia on its own terms, but I do not feel I can in all honesty leave matters there. The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law. I think Posner blames Scalia for steeling his seat on the Supreme Court, and he quite personally and pettily resents and is envious about Scalia’s very visible presence on the High Court as one of its leading members. When Judge Robert H. Bork was nominated to the Supreme Court in 1987, Judge Posner joined Senator Ted Kennedy in trying to squash Bork’s nomination by writing an article in the New Republic entitled “What am I? A Potted Plant?” The point of the article was to argue for more judicial law-making than Scalia, Bork, or Ed Meese thought proper. Posner’s attack on Heller is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.

Calabresi explains that NO ONE wanted to appoint Posner to the Court:

The reality is that in all the extensive work I have done both in government and out of government for President Ronald Reagan, President George H.W. Bush, and President George W. Bush I have never, ever once heard ANYONE say that they thought we should consider Richard Posner for appointment to the U.S. Supreme Court. When the Meese Justice Department compiled detailed files on its fifteen most promising candidates for appointment to the Supreme Court, Richard Posner’s name was not on the list. When George H.W. Bush and George W. Bush kicked around names of possible Supreme Court nominees, Richard Posner’s name was again never on the list. When Posner’s name did come up, which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke. If Scalia had not been appointed to the Supreme Court in 1986, the seat would have gone instead to Robert Bork, or Doug Ginsburg, or Ralph Winter, or Anthony Kennedy, or Patrick Higginbotham, or J. Clifford Wallace, or Larry Silberman, or Jim Buckley, or Stephen Williams, but certainly not to Richard Posner. It was not Justice Scalia who kept Richard Posner off the Supreme Court. Justice Scalia has had nothing but nice things to say about Posner over the last 28 years. The thing that kept Posner off every single Supreme Court list I have ever seen is his baby selling proposal, his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics rather than originalism. Posner has no-one to blame but himself for the fact he was not appointed to the Supreme Court.

And Judge Wilkinson:

Judge J. Harvie Wilkinson is yet another inferior federal court judge who is a Supreme Court wannabe and who is envious of Justice Scalia and angry to have been passed over, at least in my opinion. … Unlike Judge Posner, who has never ever been considered for appointment to the Supreme Court, Judge Wilkinson was seriously considered by the Administration of George W. Bush for appointment to the High Court. He was interviewed by the President and was passed over in favor of brighter, younger, and more originalist judges like John Roberts and Sam Alito. Once again, Justice Scalia, on whom Judge Wilkinson vents his wrath, has never said a negative word to me about Judge Wilkinson. Judge Wilkinson has only himself to blameforthefacthewasnotappointedtotheSupremeCourt. HiscampaignagainstJustice Scalia is nothing more than sour grapes and is unfair to Scalia who is not responsible for the fact that Judge Wilkinson talked himself out of a job when he was interviewed by President George W. Bush.

Wow.

The very-cool FiveThirtyEight will be using FantasySCOTUS predictions for pending cases. The first feature by Oliver Roeder looks at EEOC v. Abercrombie and Fitch.

Here I’ll turn to two sources: the {Marshall}+ algorithm — a computer program designed specifically to predict court cases — and the wisdom of the crowd at FantasySCOTUS — fantasy baseball’s even nerdier little brother. This is how likely those predictors view a Supreme Court reversal vote from each justice — a reversal would be a win for the EEOC and Elauf.

The predictions are all over the place, and most are made with little confidence — the likelihood of many justices voting to reverse the 10th Circuit decision hovers near the middle.

The computer algorithm foresees a 7-2 reversal, with Justices Antonin Scalia and Clarence Thomas dissenting. The crowd predicts the opposite — a 9-0 affirm as of Tuesday morning, but with a few justices more or less on the fence. And not everyone in the crowd agrees. “As it stands now, some of our best players are across the map on this case,” Josh Blackman, FantasySCOTUS’s creator, told me.

The crowd predictions may well improve. Some predictors will pore over the oral argument transcript looking for clues in the justices’ questions. But there’s only one way to find out what’ll happen for sure — wait. The court will likely issue its decision in this case in June.

The lecture notes are here. The live chat is here.

Scope of Federal Powers III

• Taxing Power (637-643).
• The Spending “Power” (643-645).
• United States v. Butler (645-648).
• South Dakota v. Dole (648-656).
• New York v. United States (657-670).
• Printz v. United States (670-683)

Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.

The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.

Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.

I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.

Here is their modern-day image.

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.

And some cartoons.

South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.

Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

Sheriff Richard Mack at the Utah Capitol.

Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

More pictures of Sheriff Printz

Whenever I write a post about Justice Ginsburg’s most recent comments, I brace myself for the torrent of criticisms. They usually fall along 7 lines. I will try to identify them here, so I can simply link back in the future. I don’t claim I have perfect responses, but these seem to be the most common criticisms I receive.

1. But what about Justice Scalia? This comment goes something like this–“Justice Scalia has been talking about abortion or homosexuality for years. Isn’t that inappropriate?” Invariably, all of these comments circle back to Scalia’s remarks about his published dissents in Planned Parenthood v. Casey and Lawrence v. Texas. I see a huge difference between a Justice commenting on a case he already decided, and weighing in on a case not yet decided. I am not a big of this practice. I would prefer a Justice let their opinions speak for themselves. But, talking about already-decided cases doesn’t run the risk of inserting bias into pending cases. Now, some may reply, “his comments about abortion from Casey will impact his decision in Carhart. If he thinks there is no constitutional right to abortion, of course the partial birth abortion ban is constitutional.” Likewise, his dissent in Lawrence already made the argument that if states cannot criminalize sodomy and express moral disapproval about homosexuality, they also cannot prohibit same-sex marriage. In a way, he expressed his opinion on this topic a decade ago. But if he now makes this point explicitly in public comments–that bans on same-sex marriage must be upheld–he acts inappropriately. This is the case pending before him. There is definitely a fine line here, and I don’t pretend that Scalia is always on the correct side.  I’ve frequently criticized Scalia where he messes up.
2. What difference does it make? This criticism contends, “we all know how Justice Ginsburg is going to rule in this case. Why do we care what statements she makes?” I am not so formalistic to think that Justices approach all cases with blank slate. They certainly have priors–some we can glean from previous decisions, and some we may never know about. But historically, judges strive to maintain the appearance of propriety, so the litigants and the justice system at large think they are getting a fair shake. Judges wear flowing robes (and doilies) and sit behind majestic columns to impart a sense of detachment from the everyday society. Whether this is true or not, the courts support this image. These sorts of comments destroy that veneer.
3. Don’t we want to know what they think? This argument is made most forcefully by my friend Eric Segall. To summarize, Eric argues that it is better that we know what the Justices are thinking. I won’t even attempt to respond to Eric’s argument here, short of my answer, “I’d rather we didn’t know.” Following from my previous comment, I think the Justice system would be materially worse off if the pretenses of neutrality were cast away. Again, this is a deeper philosophical issue that goes far beyond Justice Ginsburg.
4. Won’t their questions at oral arguments give away their opinions? Another species of this critique is that the Justices often signal how they will vote during oral arguments. Empirically, this is not correct. If this were the case, then experts would be able to predict the votes of 8 Justices (Thomas excepted) with stunning accuracy. They don’t. They barely beat chance. Even the most sophisticated algorithms based on oral argument transcripts can only get 70%. The best players on FantasySCOTUS only get about 80% correct. While a justice’s questions may often suggest which way they are leaning, often Justices serve as the devil’s advocate–they want the lawyer to strengthen or weaken a different argument. The question of whether a Justice is signaling his views, or playing devil’s advocate, is ample to maintain the appearance of neutrality.
5. The Justices are not bound by the Code of Judicial Ethics? Yes, the Justices are not bound by the rules of ethics that the lower courts are subject to. Although, they claim they abide by the canons of ethics. The Court adopted an “Ethics Resolution” in 1991, before RBG joined, promising to abide by the canons.
6. But she is the NOTORIOUS RBG?! Some argue that Ginsburg is 81, a living legend, and has no fucks to give (pardon the expression). Who cares if she comes to the State of the Union drunk. YOLO. Next time she should bring a selfie stick! #NotoriousRBG As I noted following Hobby Lobby in a post titled Ruth Bader Hubris, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” It becomes very dangerous when people glamorize a person whose job is to decide important legal issues. The opinions and the person blend together, making it difficult to separate the two.
7. What about Posner? The last, best hope of justifying any questionable behavior by a Judge is to cite Judge Posner. I’m sorry, this doesn’t work. Judge Posner is sui generis, and I don’t necessarily mean that in a positive way. He lives by his own code. He routinely writes and speaks, at great length, about topics that come before him. These comments are not limited to discussions of his opinions, but represent commentary on the most important issues of our time. He also routinely criticizes Supreme Court precedent in books and columns, outside the scope of his judicial duty. We can debate at length the role of Posner, but he should not serve as some sore of lodestar to assess the ethicality of what judges do. I would be content to leave him as an outlier.

I don’t claim that these argument are air-tight and clear-cut. I also don’t claim that my position is correct. Ethical arguments often exist in the areas of grey between black and white. But in the future, when a Judge speaks out of turn, I’ll link back here.

Justice Ginsburg has taken to her nickname, the Notorious R.B.G. She has told the story that her law clerks had to explain to her what it meant. Although, I doubt they explained to her how Christopher George Wallace gained the monicker Notorious B.I.G. The talented rapper, before he made it big (pun intended), was a high school dropout, arrested for weapons charges by the age of 17, spent 9 months in prison for dealing crack at 18, was arrested for threatening to kill two fans, and was later arrested again for drug and weapon charges. In any event, the name has stuck, such that a Google search for “Notorious” brings up RBG before BIG.

Yet, as this term progresses, the notoriety RBG is drawing to herself becomes less and less appropriate for the role of a Justice. In a recent interview with Bloomberg, Ginsburg is asked about the possible impact of the Court’s potential ruling on same-sex marriage.

Are you concerned, that if this Court, this year were to say that there is a constitutional right for same-sex couples to marry, that there are parts of the country that would not be able to accept or would not accept that decision.

The correct answer would have been, “I cannot answer that question because this case is currently pending before the Court.” Even accepting the premise of the question–that the Court will find a “constitutional right for same-sex couples to marry”–casts a weight on how RBG will rule. (As if her vote is in any doubt, but I still feign for the appearance of neutrality.”)

But, the Notorious RBG sought to add to her notoriety. I transcribe here her entire answer (only an excerpt is included here).

I think it is doubtful that it wouldn’t be accepted. The change in people’s attitude has been enormous. In recent years people have said this is the way I am. And others looked around and we discovered it’s our next-door neighbor. We’re very fond of them. Or it’s our children’s best friend, or even our child. I think that s more and more people came out and said ‘this is who, I am the rest of us recognized they are one of us.

Imagine if someone asked a Justice how people will react if the IRS rule in King was nullified?  Oh wait. Ginsburg kinda answered that too.

Asked about the president’s legacy, Ginsburg pointed to the law, known as Obamacare, which she voted to uphold in the 2012 case.

“Our country was just about the only Western industrialized country that didn’t have universal health care for all of the people, and he made the first giant step in that direction,” she said. “That’s certainly one of the things he will be remembered for.”

These questions are premised on the Court ruling a certain way, and should not be answered.  These are the type of policy arguments that appear in an amicus brief, not in the statements of the Justices, delivered at the Supreme Court.

Speaking of which, the Human Rights Campign is soliciting signatures for its “People’s Brief” with RBG’s quote from this interview. It is captioned, “Supreme Court Justice Ruth Bader Ginsburg agrees Americans are ready for marriage equality.” “Agrees”! Are they actually arguing that Justice Ginsburg has made up her mind, and agrees with HRC on this issue? We all know this is the case, but it is unseemly for advocates before the Court to make such representations in seeking signatures for an amicus brief!

(As an aside, that photo of Ginsburg is about 20 years old. I think it is from the Court’s group picture in 1994. She isn’t even wearing a teacup jabot! Her first group picture with a doily was in 2006).

Ginsburg’s next comment compares bans on same-sex marriage to segregation laws.

There was a familiarity with people that didn’t exist in the beginning when the race problem was on the front burner. Because we lived in segregated communities. It was truly a we/they kind of thing. It is not so with the gay rights movement. I do not think it would take a large adjustment.

Here, she speaks entirely out of turn, and labels the animus behind bans on gay marriage with those about miscegenation. She compares the “race problem” with same-sex marriage bans. This is a seriously value-laden judgment that tars millions of Americans with the brush of bigotry–and potentially her own colleague, who is in an inter-racial marriage. But it is clear how Justice Ginsburg views the millions of Americans who not-too-long ago voted to amend state constitutions.

Yet Ginsburg’s argument also take on a salience I don’t think she appreciates. Footnote Four is often cited to explain why certain “discrete and insular” groups are entitled to heightened judicial reinforcement of their rights. If this is a doctrine the Court seriously (contestable), would the gay rights movement fit in? Though small in number, is this a group that lacks the political power today to advance their causes through the political process? This issue came up in February of 2012 when the federal district court in California invalidated DOMA. Whatever the argument was about the political clout of the gay-rights movement in February of 2012, as acknowledged by RBG herself, three years later it is much, much stronger. This is a huge testament to the power and message of the gay-rights community, that people have (in staggering number) supported their causes. But it is a double-edged sword. With this heightened political power, the argument for a judicial intervention becomes much, much weaker, as the political process becomes a more viable option for change.

Ginsburg’s final comments should have been her first.

And of course we shouldn’t speak much more about this subject because one way or the other it will be decided before we leave town in June.

As she says this she smirks.

This isn’t the first time this term she has made comments that potentially warrant recusal. She previously made comments about Texas’s abortion laws, while they were on appeal to SCOTUS (here and here). The National Organization for Marriage has called on RBG to recuse in this case.

As I noted following Hobby Lobby in a post titled Ruth Bader Hubris, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” If Justice Ginsburg is intent on staying on the bench, she should comport herself as a Justice, and stop talking about pending cases. Court watchers should stop fawning over her inappropriate comments, even if they agree with it.

Further, I’m amazed that people are praising the fact that a Justice came to the State of the Union so intoxicated that she fell asleep. So much for sober as a judge. The district judge for whom I clerked was so serious about this image, that he wouldn’t even drink a beer in public, lest someone accuse him of judging under the influence. Also, she has fallen asleep in years past, so either she has been drunk before, or she just doesn’t bother staying awake. I’m not sure which is worse. If most people feel asleep at work, due to intoxication, they would be fired. (Although I’m sure EEOC would sue for a violation of the ADA).

I hope people can put aside the celebrity,  and recognize that one of the 9 most important Judges in the world is acting entirely inappropriately–and she doesn’t seem to care.

Update: In response to Rick Hasen, who asks me to compare RBG to Scalia, I post here a comment I made over the summer with respect to abortion:

What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other. Scalia and GInsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents–not specific cases that may come before the Court. RBG’s comments seem akin to Scalia’s comments about the pledge of allegiance while the Newdow litigation was making its way through the lower courts. Scalia did recuse there.

The same dynamic apply here. Scalia and Ginsburg can and do make comments about general issues, but Ginsburg directly addresses pending cases in a way that I deem wildly inappropriate. When Scalia did so, he recused in Newdow.

Update 2: A flashback to Dahlia Lithwick’s comments on Justice Scalia recusal in Newdow in 2003:

Is this brilliant jurist losing his mind? Is he so frustrated by 17 years of failure to sway an allegedly conservative court to his side on social issues that he no longer cares who he offends or how biased he may appear? Has he become so swept up by the Coulter/Limbaugh/O’Reilly game of court-bashing that he cannot see how damaging it is when played by a justice? Or is he running for elected office? What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?

And, Scalia recused.