ConfirmThem

ruminate, ruminate.

Just didn't want this post to be an orphan when it came to the thread. Zero is the loneliest number....

http://legaltimes.typepad.com/blt/2009/01/just-in-obama-and-biden-will-v...

"The Supreme Court has just announced that President-elect Barack Obama and Vice President-elect Joseph Biden will pay a private courtesy call on the Court Wednesday afternoon.

They are following a recent tradition of such visits when the White House changes hands. Ronald Reagan and Bill Clinton also visited the Court in the period before they were inaugurated.

The visit has been rumored inside and outside the Court for weeks, but was not confirmed until tonight. The Court is in session Wednesday morning and ordinarily holds a private conference Wednesday afternoon. The precise time of the visit was not announced.

Here is the text of the Court's announcement:

"At the invitation of Chief Justice John G. Roberts, Jr., President-elect Barack Obama and Vice President-elect Joseph Biden will pay a pre-inaugural visit to the Supreme Court of the United States tomorrow afternoon, January 14. This will mark the third time in recent history that a President-elect and Vice President-elect have visited the Court. William Clinton and Al Gore visited on December 8, 1992. Ronald Reagan and George H. W. Bush called on the Court on November 19, 1980. The President-elect and Vice President-elect will join the Chief Justice and the Associate Justices in the ceremonial West Conference Room. They may also join in a tour of the Court. The visit is a private event. There will be no photo or press availabilities."

The 1992 visit by Bill Clinton and Al Gore was quite public and memorable. The late justice Harry Blackmun later joked that he felt he was being looked over to determine his health, but it appeared to be an amicable event."

What Circuits are we likely to lose in the next 4 years, besides the 4th?

It would be great if Obama would renominate 1 or 2 of our people but I will be shocked if that happens.

In the Wall Street Journal back on October 28, Steven Calabresi wrote that circuit "majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal," along with the DC Circuit, suggesting that an Obama win would mean that judges appointed by Democratic presidents could comprise the majorities on all nine of those courts.

To bolster his point, though, Calabresi made a couple of ridiculous exaggerations. The Fifth Circuit is *really* in danger of "flipping" in the next four years? It currently has 13 R-appointed judges vs. 4 D-appointed judges, with one R-appointee having announced his retirement next summer. And Calabresi also exaggerated re: the 6th Circuit; Bush 43 put eight judges on the 6th, and the likelihood of its "majority" changing in the next four years is pretty low, since Batchelder and Boggs both would have to take senior status for that to happen, and Boggs is the chief through 2010.

Defining a "majority" also is of course a lot more complicated than Calabresi makes it out to be. Judges appointed by Republican presidents sometimes vote more with their colleagues who were appointed by Democratic presidents, and vice versa. And deals have an impact, too; Clinton appointed Republican Richard Tallman to the 9th Circuit. Clinton also appointed Johnnie Rawlinson to the 9th Circuit, and she heavily votes along with 9th Circuit judges who were appointed by Republican presidents. And Clinton appointed Chester Straub to the 2nd Circuit, and his vote pattern was eerily similar to that of an appointee by a Republican president. Meanwhile, Bush obviously installed Clinton-appointed district judge Barrington Daniels Parker to the 2nd in a magnanimous gesture, and he also generously reappointed Clinton COA nominees Roger Gregory and Helene White. So Calabresi's article, for what it's worth, undoubtedly oversimplifies things. Here's the current breakdown by circuit, followed by Calabresi's piece:

1st Circuit: 3 R-appointed judges, 2 D-appointed judges, 1 vac
2nd Circuit: 6 R-appointed judges, 6 D-appointed judges, 1 vac
3rd Circuit: 6 R-appointed judges, 6 D-appointed judges, 2 vac
4th Circuit: 6 R-appointed judges, 5 D-appointed judges (Roger Gregory counted as a D-appointed judge), 4 vac
5th Circuit: 13 R-appointed judges, 4 D-appointed judges, 1 vac in 8/2009
6th Circuit: 10 R-appointed judges, 5 D-appointed judges 1 vac, but if you want to count Helene White as a D-appointed judge, then it's 9 R-appointed judges, 6 D-appointed judges, plus 1 vac
7th Circuit: 7 R-appointed judges, 3 D-appointed judges, 1 vac
8th Circuit: 9 R-appointed judges, 2 D-appointed judges
9th Circuit: 16 R-appointed judges, 11 D-appointed judges, 2 vac as of 1/21/2009
10th Circuit: 8 R-appointed judges, 4 D-appointed judges
11th Circuit: 7 R-appointed judges, 5 D-appointed judges, 1 vac on 1/31/2009
DC Circuit: 6 R-appointed judges, 3 D-appointed judges, 2 vac
Federal Circuit: 8 R-appointed judges, 4 D-appointed judges

http://online.wsj.com/article/SB122515067227674187.html

http://legaltimes.typepad.com/blt/2009/01/a-chat-around-the-fireplace-fo...

"President-elect Barack Obama and Vice President-elect Joseph Biden visited the Supreme Court late Wednesday afternoon for a highly private, hourlong courtesy call that included chatting around a Court fireplace with eight of the nine justices.

Continuing the occasional practice of pre-inaugural visits by incoming presidents and vice presidents to the high court in recent decades, Obama and Biden arrived at 3:45 p.m. and left almost exactly an hour later after their fireside discussion and a brief tour of the Court chamber and the justices' conference room.

According to Court officials, all the justices except Samuel Alito Jr. joined Obama and Biden in the Court's stately west conference room, where they sat in highback chairs arranged around the fireplace. "Light refreshments" were served. Also on hand were Jeff Minear, counselor to Chief Justice John Roberts Jr., Gregory Craig, Obama's choice for White House counsel, and Alan Hoffman, Biden's deputy chief of staff. No explanation was given for Alito's absence."

I bet I know why Alito was absent. He appears to really dislike Biden and the way he treated Alito at this hearings:

http://www.huffingtonpost.com/2008/12/04/justice-alito-jabs-biden_n_1484...

"His Supreme Court confirmation hearings three years old, Justice Samuel Alito apparently still harbors some hard feelings toward one Democratic questioner at the time.

Alito made several joking references to Vice President-elect Joseph Biden during an after-dinner speech Wednesday, including Biden's withdrawal from the 1988 presidential campaign over plagiarizing parts of a speech from a British politician.

"To coin a phrase, in the spirit of the vice president-elect, you can't always get what you want, but you get what you need," Alito said, an imperfect rendering of a Rolling Stones lyric.

Then, he added, "Did someone say that before?"

A bit later in his talk at an anniversary dinner for the conservative American Spectator magazine, Alito said he was about to quote liberally from a magazine article. "In the spirit of the vice president-elect, I want to honor the copyright laws," Alito said.

What could be the impetus for these comments?

Alito didn't specifically explain, but he recounted questions Biden asked during the Senate Judiciary Committee's consideration of his nomination.

Biden "became quite agitated about my supposed connections with a sinister Princeton University alumni group...that took up virtually his entire time during the first round," Alito said."

http://legaltimes.typepad.com/blt/2009/01/more-names-emerge-for-key-doj-...

"Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, is the top pick for principal deputy solicitor general, the office’s No. 2 spot, the sources say. From 1998 to 1999, Katyal (Yale Law) served as Holder’s national security adviser in the Justice Department.

The Hamdan ruling, which found that the Bush administration's military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions, was a stinging rebuke to the president's broad assertion of wartime power."

I think Katyal could eventually get a D.C. Circuit nomination.

http://legaltimes.typepad.com/blt/2009/01/smiling-photos-from-inside-the...

"The first photo from the Court's west conference room shows the left-handed Obama signing the Court's guest book with a beaming Chief Justice John Roberts Jr. next to him."

"The second photo shows the justices giving Obama a tour of the Great Hall, the column-filled space outside the Court chamber itself. Obama is flanked by Justice Antonin Scalia on his right and Justice Ruth Bader Ginsburg on his left.."

"The third photo shows everyone in a good mood as Obama and Biden are shown the ultimate inner sanctum: the conference room where, with only the justices present, the Court meets to decide whether to grant or deny cases placed before it..."

He will have the job for a week at most:

http://thecaucus.blogs.nytimes.com/2009/01/16/kneedler-will-be-solicitor...

http://legaltimes.typepad.com/blt/2009/01/katyal-tapped-as-political-dep...

"Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday."

"The Boston Globe, in this Jan. 6 story, noted that Kagan's most influential scholarly writing was a 2001 defense of the Clinton administration's assertion of the right to direct federal regulatory agencies without congressional or court involvement. Kagan argued that without centralized powers, agencies would suffer from "ossification syndrome."

When her article was published in the Harvard Law Review, Katyal was among her critics. Kagan "invites the question of whether the vantage point of an administration that wants to get things done is the proper one for setting parameters in constitutional and administrative law," wrote Katyal, according to the Globe."

"Katyal clerked for Supreme Court Justice Stephen Breyer and Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit."