"I respectfully decline your offer," said the judge. "You are a danger to all civilized members of society."

The offer, from Zaire Paige, 24, who had just received a 107-year sentence, was: "With all due respect and from the bottom of my heart, suck my dick."

Obama re-nominates 2 of my Wisconsin Law School colleagues to the federal bench.

From the Milwaukee Journal Sentinel:

President Barack Obama isn't giving up in his attempt to hand a federal judgeship to former Wisconsin Supreme Court Justice Louis Butler.

Attempt to hand — that's a weird way to put it. The President has the appointment power. There's no way to get federal judges other than by having the President "attempt to hand" out the positions.

For the third time, Obama has sent Butler's name to the U.S. Senate as his nominee to become a federal judge for Wisconsin's Western District, based in Madison, the White House announced Wednesday....

Also renominated Wednesday was Victoria Nourse, a UW law professor the president has tapped for the 7th Circuit Court of Appeals in Chicago. Nourse would replace Judge Terence Evans, who has moved to senior status.

And here's the Wall Street Journal on the confirmation issue:

Expect little change in the partisan grudge match over court picks, which Chief Justice John Roberts decried as a "recurring problem" in his year-end report Friday. Democrats will continue to control the Senate, which confirms federal judges. In the last Congress, however, judicial nominations were low on Democrats' priority list, disappointing liberal activists who felt the ex-law professor in the White House and his filibuster-resistant Senate majority squandered an opportunity to reshape the federal judiciary.

In contrast, Republicans long have made molding the courts a top objective. As they did in the last Congress, Republicans likely will make up in energy what they lack in numbers, using parliamentary privileges to slow or block Obama nominees.

"[W]hat Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant."

From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):

The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.

Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.

[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.

So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?

The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.

***

This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.

Who needs technical law when you can do atmospheric law?

Linda Greenhouse purports to be impressed by the post-retirement activities of Justices Stevens and O'Connor.

But there's also this:

Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.

This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.

UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.

"American justice can be rendered calmly, deliberately and fairly by ordinary people..."

"... people who are not beholden to any government, not even ours. It can be rendered with fidelity to the Constitution. You have a right to be proud of your service in this case."

Judge Lewis Kaplan speaks words of inspiration to the jury that acquitted Ahmed Khalfan Ghailani of 284 of 285 criminal charges relating to the 1998 embassy bombings in Africa.

"It's not that I want to prevent someone from having a beverage, but there were mugs, Super-Slurpee kind of things with straws coming out."

The judge will have order.

[Judge Gene Gasiorkiewicz] bought two big boxes of custom-printed plastic travel mugs. The silver mugs have the scales of justice in black on two sides, with the words "RACINE CIRCUIT COURT BRANCH 2" printed

[He] paid about $300 for the roughly 100 mugs - all "made in the U.S. of A." - and said he will give every lawyer who comes before him their first mug free. If it gets lost, he said, the attorney's on the hook for the replacement.

"They can put whatever they want inside it," he said. "When it sits on the counsel table, it's
uniform."

It's good that a judge has a strong feeling for uniformity. It has something to do with being consistent and treating people as equals... doesn't it? In any case, people look totally unprofessional drinking from straws. In fact, I hate to see any adult drinking from a straw, and I loathe when a restaurant serves your water or other drink with a straw already stuck into it. Do you just go ahead and drink from the straw when that happens? Do you realize that the person you'rewith may see you as looking childish — as if you'd worn shorts out to dinner? When there's a straw in my drink, I have to take it out and put it on the table, not that I'm trying to punish the bus boy. But it's really those fat plastic straws that I hate. If a drink came with with 2 paper-wrapped paper straws, I'd be tempted to use them and perhaps drift off into all sorts of straw-prompted nostalgia. Oh... sorry. I'm ranting. But then, I never portrayed myself as a person with judicial temperament.

"Not backing down... President Obama has formally renominated five judges whose candidacies were previously derailed by Senate Republicans."

Sam Stein reports. (Is "reports' the right word?)

Obama's decision to renominate these figures demonstrates that the White House is not just willing, but eager to spotlight the remarkably slow pace of its judicial confirmations...

The administration has been left largely powerless to move Senate Republicans, save for somewhat-idle threats to keep Congress in session while individual nominations are debated. But they are finding more and more allies in their frustration from prominent judicial and political figures. On Monday, the American Constitution Society began circulating a letter signed by a group of former federal court judges appointed by both Democratic and Republican presidents, urging the Senate to take immediate action on languishing nominations.

Former federal court judges appointed by... Republican presidents? Surely, this is impressively neutral support for the President...  or so I will believe when we have a Republican President facing foot-dragging Democratic Senators and there's an equivalent letter signed by former federal court judges appointed by  Democratic Presidents.

"Of course race is involved. Because people don’t generally lose their minds and start acting like idiots in this country unless race is involved somehow…"

Elie Mystal takes on the Wisconsin Supreme Court.

"I don’t see Judge Weinstein as a judge."

"I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court."

Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?

Recounting the history of Harvard's struggle with Critical Legal Studies in the 1980s and the "postradical" period that followed, lawprof David Fontana writes:

The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.

Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.

The country has moved to the right, so there are fewer law professors who are truly liberals. 

Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.

Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.

"Prejudicial"? I know what he meant to say but... what a hilarious word!

Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."

Is Judge Alvin K. Hellerstein too empathetic about the 9/11 lawsuits?

The NYT channels criticisms of a federal judge who has involved himself in judging the fairness and adequacy of settlements in non-class action lawsuits. (In a class action, the judge is required to determine that a setttlement "is fair, reasonable, and adequate.")

The NYT article portrays the 76-year-old as having lost his bearings:

The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years...

“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”...

Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”...

... John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.

“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”

We need cameras in the courtroom, because of the "long, slow decline of the newspaper industry" and the rise of "pseudo-journalist."

Says Judge Kozinski.

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

What Goodwin Liu said about Samuel Alito...

At his confirmation hearing, lawprof Goodwin Liu, nominated for the 9th Circuit Court of Appeals, is  being taken to task by Senator Kyl for what he said at Samuel Alito's confirmation hearing. (There is also talk of Liu as a future Supreme Court nominee.)

“Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man,” Liu wrote. “I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

The testimony was “vicious, emotionally and racially charged, very intemperate, and to me it calls into question your ability to approach and characterize people’s positions in a fair and judicious way,” Kyl said.

Liu only acknowledged that this language was “unnecessarily flowery.”

Flowery? As Lou Reed once sang, "Vicious, you hit me with a flower...."

The NYT fails to distinguish between anonymous and pseudonymous.

It uses the word "anonymous" for "pseudonymous" throughout this discussion of on-line comments, fudging the case for requiring those who comment on news stories to use their real names.

That aside, I'm interested in the question whether a newspaper can investigate and reveal the identity of those who comment without using their real names.

The Plain Dealer of Cleveland recently discovered that anonymous comments on its site, disparaging a local lawyer, were made using the e-mail address of a judge who was presiding over some of that lawyer’s cases.

That kind of proxy has been documented before; what was more unusual was that The Plain Dealer exposed the connection in an article. The judge, Shirley Strickland Saffold, denied sending the messages — her daughter took responsibility for some of them. And last week, the judge sued The Plain Dealer, claiming it had violated her privacy.

Hmmm. I'd like to see this legal question connected to lawsuits that are aimed at discovering who's behind an on-line pseudonym. I tend to disfavor both kinds of lawsuits, but I'll bet there are people who would in sequence, without thinking too much, favor both. You can't favor both, can you?

With the entire C-SPAN archive up on-line, what was the first thing I wanted to re-live?

This:



ADDED: Check out the memorable moments page, which includes:

Al Gore concession in 2000 election

Bill Clinton 1987 press conference where he says he will not be a candidate in 1988

Barack Obama 2004 convention speech

George W. Bush announcing the capture of Saddam Hussein

Ronald Reagan and Gorbachev summit in late 1987.

Clarence Thomas testifying that he did not watch Anita Hill testifying.

Bill Clinton grand jury testimony

Dan Quayle and Murphy Brown

Medal of Freedom Award to Margaret Thatcher

George H.W. Bush inviting Dana Carvey to the White House where he impersonates Bush 1992

If a judge's spouse is politically active, does it "test" his "impartiality"?

Surely, the answer can't be, only if the judge is conservative.

"Former Wisconsin Supreme Court Justice Louis B. Butler was nominated by President Barack Obama Wednesday for a federal judgeship."

Congratulations to our alumnus and colleague!

"It was not a simple yawn. It was a loud and boisterous attempt to disrupt the proceedings."

Contempt! Jail!

"My first love is teaching and scholarship."

Michael McConnell resigns from the 10th Circuit Court of Appeals — after a mere 7 years — to teach at Stanford.

Better to be a lawprof than a judge, don't you think?

At the link: pity for the law clerks who are now plunged into the job market.