(The Return of) Ignatz, by Sam Heldman

Wednesday, July 13, 2005

If you are at all a fan of traditional southern American fiddle music, or are open to being one, you should check out the debut record of Brittany Haas, which my friend Bruce Molsky just sent me. It will blow your mind -- just the right mix of technique, adventure, tradition, and taste. And then there's the fact that apparently Ms. Haas is still a teenager, which is even more mind-blowing.

posted by sam 8:02 PM 2 comments

Tuesday, July 12, 2005

Supreme Court and Justice O'Connor
With characteristic bluntness as compared to my characteristic whateveritisness, Nathan Newman compellingly discusses Justice O'Connor's voting record on labor and employment matters.

posted by sam 9:35 AM 0 comments

Monday, July 11, 2005

criminal law strategies
Interesting article in the Bham News about the Scrushy trial. It discusses a long pre-indictment memo that my old friend Donald Watkins, Scrushy's lead counsel, presented to the prosecutors laying out exactly how and why any trial would lead to an acquittal. His predictions turned out to be exactly right, and the prosecutors walked the unsuccessful path laid out before them. Of course, it's not always the best strategy to tell the other side exactly how you will beat them ...

posted by sam 7:33 AM 2 comments

Cooper, Time, Miller and Rove

This article about Matt Cooper's near-jail experience to protect his "source," Karl Rove, makes the whole thing seem extremely odd to me. If I'm reading correctly, Rove really had (as we were all led to believe) signed a document waiving any confidentiality privilege and giving his permission for any reporters to testify about conversations they had with him. And so first odd thing is that Cooper -- perhaps along with many others in journalism -- thinks that morality or professionalism or something requires a journalist to refuse to testify EVEN IF there is such a waiver, unless the source ALSO tells the particular journalist "yes, and that includes you"? I do understand the notion that some waivers, in some contexts, are coerced. But the only "coercion" that could have existed here was Rove's own mental calculus about what was better as a political matter and what was better for his own job prospects. But Cooper thought that morality required him to keep Rove's statements to him a secret, even though Rove had balanced his own interests and decided to the contrary? This really does sound to me as though journalists think that they are super-human, more wise than the rest of us and bound by their own non-legal moral code that trumps everything else.

The second odd thing is -- ok then, is Judith Miller even more so? Or is her source someone else, someone who either hasn't given a blanket waiver or wasn't willing to have his lawyer tell hers, "yes that means you too."?

posted by sam 7:14 AM 2 comments

Sunday, July 10, 2005

random prediction
A random and pessimistic prediction. If Chief Justice Rehnquist does retire soon, then President Bush will nominate two people whom his spinners can portray as a compromise of the sort I mentioned below (i.e., one Rehnquist-like, one O'Connor-like), but whom they actually think and hope will be further right than that. In other words, one truly far-out and extremely divisive (e.g., Brown or Owen) and then someone such as Luttig or Garza whom they will present as very workmanlike and middle-of-the-road (and who will seem m-o-t-r ONLY by comparison with the more extremely divisive nominee).

posted by sam 4:40 PM 0 comments

something entirely trivial

Have you seen the new version of the nickel, with a new picture of Jefferson and the word "liberty" in his handwriting on the front, and a buffalo on the back? Very cool.

posted by sam 8:15 AM 1 comments

Friday, July 08, 2005

On Monday, go see French Toast* at Fort Reno if you are in or near DC.

* link plays music.

posted by sam 11:59 AM 0 comments

Supreme Court

I am hereby on record as saying that, if the Chief Justice retires in the next few days as widely expected, it will be a good thing. This has nothing to do with the Chief Justice himself, but is instead about the process. Two vacancies right now would be better than one not only because (as many have pointed out) it creates at least the greater possibility of some compromise (with one nominee more in the Rehnquist mold and another more in the O'Connor mold). I am not especially hopeful that the President will move towards compromise in that way. But even then, two vacancies would be better than one because of the impact in case of meltdown or prolonged stalemate -- if the Term is to start with fewer than 9 on the bench (which wouldn't be good but is a possibility if the President avoids compromise), it would be better to have 7 instead of 8. Why? Because 4-4 ties are a total bummer and a waste of time in the Supreme Court.

posted by sam 9:33 AM 3 comments

Wednesday, July 06, 2005

question of the day
Is President Bush really annoyed with the right wing of his party for pressuring him about the Supreme Court nomination? Or is he acting annoyed for some political reason?

If he is really annoyed, that will be fun to see. It will have its roots in the Terri Schiavo circus, and his recognition that he was taken too far out on a limb that time.

But I am not so naive as to think that anything coming out of any White House is perfectly genuine.

posted by sam 7:56 PM 0 comments

Monday, July 04, 2005

a refresher course on some judicial confirmation bs
We've all been over these things before, but as a quick refresher:

Republicans will say, in regard to the confirmation hearings for a Supreme Court nominee, that it is improper for Senators to ask, and for the nominee to answer, questions about the nominee's legal views on specific topics.

In part, the assertion always is that a nominee cannot ethically answer such questions because, if he or she did so, it would then be inappropriate for him or her (if confirmed) to hear cases raising the issue. This is demonstrably wrong. Nobody suggests that a law professor who has published an article arguing that Roe v Wade was wrongly decided is, if he or she becomes a judge, thereby precluded from hearing a case raising the question whether Roe ought to be overturned. There is no such ethical rule, period. So, since it is ok for a future judge to express an opinion in a law review, there is likewise no ethical prohibition against a judge deciding such cases after having talked about the issue in a different forum. On this point, see the Supreme Court (per Justice Scalia) in White v. Republican Party. (Note that I am not talking about questions of the form "how would you vote in such-and-such case which is going to be on the Supreme Court's docket this Term?").

Another part of the assertion is that, if Senators ask such questions, this amounts to extracting promises from judges that they will rule in a certain way, as the price of confirmation. This, too, is simply false. Nobody is asking a nominee to lie about his or her beliefs, or to promise to make judicial votes that he or she disagrees with. These questions are information-seeking, not promise-extracting. They can be, and should be, answered honestly as such.

The other part of the assertion is that it is inappropriate for Senators to want to know such things or to take them into account when voting to confirm or not. On this, again, see Justice Scalia in White, supra; and see Eleventh Circuit Judge Bill Pryor, who stated before he became a judge that it was vitally important that the Senate question nominees about their views, and that the Senate exercise its constitutional authority to block judges if they did not have the proper judicial philosophy. Now, it is conceivable that some Republicans disagree honestly with this, and think that the process should be different; but they cannot legitimately claim that Democrats are doing something bad by taking the role that Justice Scalia and Judge Pryor have recognized as proper.

posted by sam 3:05 PM 2 comments

Saturday, July 02, 2005

Why is Boyden Gray biased against a potential Hispanic nominee???
When Miguel Estrada was being blocked from confirmation to the federal bench, a group led by Boyden Gray and others created a television ad portraying this as discrimination based on national origin. You probably remember that; it was discussed here. Now Boyden Gray has been part of a delegation to the President telling him not to nominate Attorney General Gonzales. What a shameless twit.

posted by sam 3:23 PM 6 comments

the unsexy cases in the Supreme Court

So much of the analysis of Justice O'Connor's retirement, in the news outlets as well as the legal punditry, has to do with the hot-button constitutional cases, and how Justice O'Connor's replacement might well be further to the right than she has been on some such cases. There is, of course, the issue of Roe's future, and the Ten Commandments (on which Justice O'Connor was in the 5-4 majority striking down the Kentucky display, here), and the diversity in higher ed cases of two terms ago -- as well as some others that you can find discussed all over the place.

My frustration with the way that this fight may play out is that those issues may draw too much of the attention -- "too much," I admit, being a value judgment, based on my view that those hot-button cases, important as they are, are not the only important thing that a Supreme Court Justice does, and in many ways are not even the most important thing. Equally or more important, I think, is a Justice's votes on the unsexy cases -- the interpretation of federal statutes and the procedural rules that govern litigation. I am pleased that there has been at least some attention in the news media to the fact that, on many such issues, Justice O'Connor was quite likely to vote in favor of "business" interests -- and that the views of aa nominee on this sort of issue are important as well. See, e.g., here and here.

These unsexy issues -- in particular, issues about a nominee's tendency to vote in one way or the other in cases involving consumer rights, statutory employment rights, and so forth -- could yet end up being quite important if the President nominates Priscilla Owen as Tom Goldstein predicts, or if he nominates Judge Jones from the Fifth Circuit, or former Justice Brown from California. I hope that the President departs from his normal practice of picking fights and nominates someone more moderate than those; but if one of them gets the nod, I do hope that there will be at least as much attention to their patterns of voting in run-of-the-mill statutory cases as to their views on hot-button issues such as abortion.

posted by sam 3:09 PM 0 comments

too bad a blog can't become pseudonymous mid-stream

I am, I admit, uncertain about how vigorously to blog about Justice O'Connor's retirement -- about my feelings on her legacy, and about the pros and cons of possible nominees.

On the one hand there is the good and obvious reason to keep my damn mouth shut: the slight possibility that some Justice or Judge would be aware of what I say here, be displeased by it, and therefore be less well-disposed towards me. And the reason to blog is pretty weak, given that it is fanciful to think that I would have any impact by blogging about such things. I do not flatter myself with thoughts that I would be an important part of any movement, in regard to the upcoming confirmation battle. The battle will be principally fought on terrain where I will have little to add. If the nominee has issued opinions reflecting a hostility to privacy rights, or equality, or other high-profile easily-defined issues, I won't be the first to find those opinions on LEXIS.

But, with some reasonable level of self-editing, I will try to have interesting things to say anyway. Part of the reason is that, paradoxically perhaps, I have more respect for high-level federal judges with whom I disagree vehemently, than many people do. Here is an example. If you've read Ignatz before, you know that I spent a good bit of energy writing words in opposition to Bill Pryor's nomination to the Eleventh Circuit. And I strongly believe that he knows this, because among other things it was in the Alabama newspapers. So it was with some irony that, mere days after the "compromise" that led to his confirmation, I appeared before a panel of the Eleventh Circuit that included him. I knew that he would be on the panel, and my client had the option of calling in a substitute for me. But I believed, and told my friends who raised their eyebrows at me, that this history would not make a difference to the case. I still believe that he will, quite often, issue decisions with which I disagree vehemently. Some of them will be in cases that I brief and argue. But I don't believe that it will be about me. And the oral argument before him gave me no reason to change my mind on that.

So, if there is any judge who may happen to become aware of some criticism I have made, take this as a compliment if you will: the reason I am willing to be a small part of public discourse is that I trust your integrity, even when I strongly disagree with your views.

posted by sam 10:54 AM 0 comments

Friday, July 01, 2005

Ignatz 2 1/2, or is it 3?
Today seems like an auspicious day to get back into this thing, which I've been meaning to do. There is, of course, Justice O'Connor's retirement. And then the fact that it's the second half of the year. And also I have some time.

The recent hiatus has mostly been work-related. Much interesting stuff on my plate these days. Filed my opening brief in the Supreme Court in Martin v Franklin Capital, available here (pdf). As you may recall, it deals with the fascinating question of what legal standard governs the decision whether to award attorneys' fees under 28 USC 1447(c) upon remanding a removed case. I like the issue because it allows me to say "Piggie Park" a lot. Never mind -- it's funny to me. Probably will be argued in November.

Also have a brief due in the Eleventh Circuit sitting "en banc" (i.e., all twelve judges, plus in this instance one senior judge, making lucky 13), on a good question of constitutional law in the criminal context -- the Confrontation Clause, and whether it allows prosecutors to have their witnesses testify by two-way videoconference from overseas. (See here, pdf file from Court re issues). That brief's almost done. To be argued in October.

Then there are various other things too. But enough about that.

On the music front, check out the clip of Ted Leo playing for the locally-produced rock and roll kids' tv show "Pancake Mountain." That kid with the glasses who says "we sing that at school" sure is cute. Ted Leo is a nice fellow and a great songwriter/singer/fast-right-hand guitar player.

More to come later, including the burning question: "Will President Bush absurdly claim that gender had nothing to do with it when he nominates a woman to replace Justice O'Connor, just as his father absurdly claimed that race had nothing to do with it when he nominated Justice Thomas?"

posted by sam 6:53 PM 2 comments

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