Legalities

I was struck by Leahy's admiring comments about Hugo Black. When Black retired, Powell took his place, and guess who took Powell's place.

I wonder if Leahy would be so admiring of Justice Black if the Court (at long last) were to adopt Black's correct interpretation of the 14th Amendment. I would rush through the slush and ice barefoot for that (and eat lead off window sills).

He (Leahy) was also schmoozing Kennedy at the end pretty good too. Who does he think he is, Linda Greenhouse?

I was struck by your near-400-word diatribe about what you EXPECTED Kennedy to talk about, disagreeing with what you THOUGHT he would talk about -- and then you suddenly say he didn't talk about it! Someone who was unable to get through those first 400 words would be left with the impression that you were disagreeing with something Kennedy actually said at the hearing, which creates a completely false impression of what happened. This isn't very good reporting, is it?

I agree with Malinda. It's a bit bizarre to lead off with a long refutation of an argument nobody made.

I have read your book and one of the underlying themes is how Justices without a firm judicial philosophy (Kennedy, O’Conner, Souter) are unduly swayed by public opinion and by criticism from law makers, the NY Times and the press in general which, if true, does undermine their independence to some degree. So, for you to now say that criticism is not a threat to Judicial independence seems a tad inconsistent.

"Judges write opinions. Judges get criticized. Judges continue writing opinions, some for the rest of their lives (i.e., life tenure). It’s called democracy."

This is the constitutional arrangement we have for federal judges, but it can hardly be called democracy. If anything, it's intentionally anti-democratic.

Ms. Crawford, it's odd that you don't mention John Cornyn's apologia for violence against judges. O'Connor, at least, has referenced his remarks in her talks on security and independence.

btw, the first half of your book is excellent.

I couldn't agree more with your comments about judicial independence being something quite distinct from current attempts to shield judges from criticism. Judicial independence is largely a matter of structural independence from the executive and the legislature. Personal security for judges is a separate issue, as you note, and has little to do with the domination of the federal judiciary by a coordinate branch of government.

"[I]t's intentionally anti-democratic." Not the criticism part, of course.

FWIW, here's Cornyn's speech from April 2005: http://cornyn.senate.gov/record.cfm?id=236007

(No HTML comments. So sad.)

Not sure it's an "apologia for violence against judges." I don't think's it's so odd, though, to fail to refer to everything that Justice O'Connor has referred to, just because it might be relevant to the discussion.

Kennedy was a lobbyist once in Sacramento, California (state capitol). So was his father, and that's who he worked for before becoming a judge. He still seems to have a bit of the lobbyist in him. (I wonder if that's why he's so susceptible to lobbying by others directed at him.)

I can't think of Kennedy without thinking, as you described in your book, how so many in the Reagan administration were against him and how so many argued against him becoming the nominee -- for the exact detailed reasons then that turned out to be the exact detailed reasons why so many conservatives are against him now (for example, his vote in favor of gay rights in a case while he was on the 9th Circuit, which foreshadowed his opinion in Laurence when he got on the Supreme Court, which is the opinion that opened the way to gay marriage etc.) . . . . and they went ahead and nominated him to the Supreme Court anyway -- mainly because they didn't have anybody else at the ready who they could send up instead. And look at the result of that reckless thinking. That whole episode was a fascinating glimpse at how the Reagan administration, in the overall, did a shallow (even though initially well-intentioned) job in selecting the nominee for that Supreme Court vacancy.

The same thing can be said for Reagan's selection of O'Connor and Bush's selection of Souter. You did a depressingly good job of detailing the step by step details of how these three "surprises" came about. It's amazing to me how so many smart people in the White House could have allowed these nominations to happen, even though these smart people knew that these three nominees likely would turn into exactly what they did turn into.

It's good to now know that the three didn't turn out to be surprises after all, just mistakes.

And then by contrast, it was good to see how the process was so much deeper with Roberts and Alito.

Well, at least people learned by the shallow mistakes that lead to O'Connor, Kennedy and Souter. Without those mistakes, we might not have gotten Roberts and Alito . . . and maybe Owen, Brown or Sykes. (Trying to find the bright side of all that.)

That may be the main thing I came away with from your book. I'm glad I now know what really went on (depressing as it is).

I thought this was an interesting response from Ed Brayton. He has an intersting blog by the way.

http://scienceblogs.com/dispatches/2007/02/justice_kennedy_and_judicial_i.php#more

On sentences that are, as Kennedy says, "too long. . . too severe . . . and too harsh":

As I understand sentencing, it's a question between rehabilitation and punishment. For juveniles, it's all about rehabilitation and for adults it's all about punishment (and protection of the rest of us). Juvenile offenders often go before a judge for half a dozen different offenses before they are ever sentenced to time in juvenile hall (juvenile prison). With adults, it's often three offenses and then throw away the key, and society is then at least permanently safe from that particular offender.

The thinking (apparently backed up by a lot of fact) is that by the time a person is an adult he is pretty much beyond rahabilitation and then the only deterrent is stiff punishment. There, of course, will be exceptions to that, but then you run up against the basic question: do you start risking putting real bad guys out on the street where they will kill innocent people in order not to be locking up some others who may go straight from there on out? Most people are pretty clear on wanting to error on the side of safety.

Kennedy picks an extreme case in the gray area -- an eighteen year old who just misses the cut off for juvenile sentences. Maybe if he'd been arrested a month earlier when he was seventeen, he'd go to juvenile court and get probation, but instead he gets 12-15 mandatory.

Sure, it sounds bad on paper when put like that, but put in the overall context of the times, it doesn't sound so bad at all. And the overall context of the times is that the streets are overflowing with eighteen year olds with guns who kill people without a blink of the eye or a moment of remorse.

How about some of Kennedy's "compassion" for the innocent people these eighteen year olds are going to kill? That compassion is best expressed by locking up the killer for fifteen years on a weapons charge before he kills his innocent victim.

It's a balancing act. Most people want the system balanced to protect innocent people from eighteen year old killers with guns. It's as simple as that.

I disagree with Kennedy. So do most Americans.

I just read your interview comment at confirmthem.com where you said you thought the most likely SCOTUS nominee for a vacancy this year is Janice Rogers Brown and for next year it would be Maureen Mahoney (because the Democrats would stall a Brown nomination next year until after the election.

That's very interesting, on both counts. I think everybody (even Democrats) should hope for a Janice Rogers Brown nomination this year, because that hearing and the run-up to it would be great theatre (both entertaining and enlightening).

My personal opinion is that Bush will not nominate Mahoney even next year because he can't risk alienating social conservatives going into the presidential election. I think he'd still nominate Brown because the fight would do the Republican party good. If the seat had to be left open until after the election, I can't think of any one thing that would get social conservatives out to the polls voting Republican than that (unless Guliani is the nominee).

That sounds like a line of thinking I picked of from, of all people, you.

Actually, I would bet more and more people agree strongly with Kennedy's line of thinking on sentencing policies. With 2 million people now behind bars, a sizable and increasing percentage of Americans have a friend or relative as a part of the correctional system. To say he only illustrates an extreme example is simply not reality. The U.S. imprisons more people, both in pure numbers and per capita, than any other nation. #2 and #3 combined (China and Russia, neither quite known for the their progressive outlook on crime), imprison 2.3 million. We imprison 2.2 million. Only four countries on Earth have minors serving life without parole. We are one of them. The other three countries have about a dozen people total sentenced as minors to life without parole. The U.S. has 9700!!! And for those not serving life, the sentences are still very harsh. Weldon Angelos serving a 55 year sentence for selling a couple bags of marijuana. Richard Paey, a paraplegic, serving 25 years because he had a sizable amount of pain meds for his medical condition, you can go on and on.

Justice Kennedy is right on target.

Justice Kennedy is mixing apples with oranges when he mentions the costs of keeping prisoners incarcerated:
"And when you are spending in the state of California 30,000 a year on a prisoner and 4,500 per student in elementary school there is something wrong"
The thing that is wrong is in Justice Kennedy's figuring.
It sounds like we are spending a lot more to lock a convict up than to educate a child which is the wrong impression.
We keep our convicts locked up 24-7, Weekends and Holidays included. Schools on the other hand are only in session 180 calendar days and for only 6 hours at a time. When you calculate the cost to "educate" a child on Prison Time, $4500 works up to $36,500 a year. So the teachers union can be happy that they are making more money than the Prison Guards.

"NOTE TO JUSTICE KENNEDY: I’m sorry, sir, but you know those detractors who have been known to call you a little pompous and say you’re sometimes filled with an annoying sense of grandiosity? Well, the best antidote is to make regular appearances before a Senate Committee!"

God no! The worst concession the executive branch ever made was the practice of executive branch officials appearing before Congress. This "oversight responsibility" is mentioned nowhere in the Constitution and is a clear violation of separation of powers. To think that a SecState or SecDef should have to sit there and smile while some jerk like Barbara Boxer savages them is disgusting. Where is this described in the Constitution? The last thing the federal judiciary needs is for Congress to think it works for them (yes, Congress sets its jurisdiction, but they are supposed to be co-equal branches of government). A sitting justice should *never* appear before Congress any more than a Senator should be called into SCOTUS's courtroom. I can think of nothing that would threaten the judiciary's independence more than replicating the executive branch's dreadful tradition of appearing before a Senate committee to beg like a dog at the dinner table. Clearly NOT what the framers intended.