Senate Prepares for "Nuclear Option"

[thesightless]

Re: Senate Prepares for "Nuclear Option"

this is exactly where politics was headed and its gonna happen. they dont even care about anything anymore, just democrats vs republicans. (and keeping thier jobs and hooking up thier friends.) what ever happened to serving the public.

[sammwalk]

Re: Senate Prepares for "Nuclear Option"

^^^yeah, exactly. Now it all seems like reactionary politics, like if you don't like the other guy, it doesn't matter if he's right, we're going to vote against him anyway. Sucks.

[thesightless]

Re: Senate Prepares for "Nuclear Option"

living in NY, i see the worst example of this.. Hillary. the bitch just talks down anything that has a republican tie, even if its a joint repub/democratic proposal. shame she is a cvnt, she hurts bill's rep more than lewinsky in the public eye. she is the prime example of partisen politics

[gsturm]

Re: Senate Prepares for "Nuclear Option"

the ridiculous thing is that as judicial appointments go, bush's have been academically more well-qualified than is perhaps traditionally the case. a good number of those the democrats are filibustering were number one or two in their law school class and some of them are also former supreme court clerks, worked in the solicitor general's office, were asst u.s. attorneys, etc.

and a number of them, like estrada, have no prior judicial record, so the charge that they are "extreme" or "outside the mainstream" is a little absurd -- the democrats have no way to know for certain what person X will be like in deciding actual cases when he/she becomes a judge if that person has not been a judge before. which, if the dems would let them through, might generate some pleasant surprises (for the dems, that is) -- i.e., souter's appointment by bush I and blackmun's appointment by nixon.

[toasty]

Re: Senate Prepares for "Nuclear Option"

the ridiculous thing is that as judicial appointments go, bush's have been academically more well-qualified than is perhaps traditionally the case. a good number of those the democrats are filibustering were number one or two in their law school class and some of them are also former supreme court clerks, worked in the solicitor general's office, were asst u.s. attorneys, etc.

And? I hope thesightless will back me up on this, but as someone that has been through law school myself and been in practice for a number of years now, I have to say that academic chops does not necessarily translate into a successful legal career. When I think about the folks that finished in the top few spots of my class, who I would consider friends, I see people who may be very book smart but who may lack that intangible factor that makes for a good attorney. They might be the first person I'd call if I couldn't remember the name of a case that stood for a certain proposition, but If I ever had a legal problem that I couldn't handle myself, these folks would be among the last people I'd call.

The other thing that is important to remember is that law school doesn't teach you shit about the actual practice of law. Some of the bars near where I work are also frequented by law students at nearby Washington University. I always overhear them, brimming with arrogance about how friggin' brilliant they all are, pontificating about legal theory and policy, and how Justice so-and-so would likely rule on x issue. This is a mindset that I remember myself -- after all, we're in law school, damn it, and that means we're smart mother fuckers, right? [insert dripping sarcasm here] Anyway, I also remember the bitchslap back to reality that happens when you get your first job and learn that all that knowledge you thought you had really doesn't help from a practical standpoint and that you are, practically speaking, a dumb ass. Being a brilliant law student does not guarantee you anything but a high-paying first job. After that, the proof is in the pudding.

When I look around at my friends from law school that have achieved a really high level of success in the practice of law, none of them finished anywhere near the top of their class. Those at the top of the class may have nice looking resumes with clerkships and the like and may have "good" jobs, but they are not the movers and shakers in the bar. You say these appointees were number one or two in their class, I say "what have you done for me lately?"

Another thing about government attorney jobs, like the attorney general's office, prosecutors, etc. -- they don't pay shit compared to private practice, so that means that three types of people take these jobs: (1) people that can't get a job elsewhere, (2) people that want to get some trial experience before going into private practice, and (3) people that have political aspirations. When you're talking about the US Attorney's office, which is a tough job to get, you are looking almost exclusively at group number 3. When I hear that a potential judicial nominee has put in time at the US Attorney's office, I say, "no shit." All the more reason to look closely at their agenda, IMHO.

and a number of them, like estrada, have no prior judicial record, so the charge that they are "extreme" or "outside the mainstream" is a little absurd -- the democrats have no way to know for certain what person X will be like in deciding actual cases when he/she becomes a judge if that person has not been a judge before. which, if the dems would let them through, might generate some pleasant surprises (for the dems, that is) -- i.e., souter's appointment by bush I and blackmun's appointment by nixon.

That's just not true. When you are talking about someone with a well-documented stance on certain issues, I don't think they need to have actually had the opportunity to rule on something for everyone with a bit of sense to know how they would rule if given the chance.

More importantly, however, what the hell is anyone doing appointing as district court judges people who have no history in the judiciary? Normally, you've got to at least prove yourself at the state level before you get to that level -- or at least you ought to. That's the last thing we in the bar need -- giving people lifetime tenure before we even know if they'll be good judges. There is nothing more frustrating than standing before a judge that has no conception of the actual, real-life practice of law because they rocketed up the chain so quickly.

[thesightless]

Re: Senate Prepares for "Nuclear Option"

its a shame that none of them can use common sense, cause they are so afraid to offend thier more radical constituents. republicans never want to tell people to just change the channel, so we have an uproar over saving private ryan, and MNF. but democrats would rather sacrifice some domestic strenghtening and security at the 48 continental to keep killers and rapists alive. i thought about this the other day and realized something

ill use this example cause its been bugging the shit out of me that this worm is still alive and because of the uber libs he will remain so.
the guy who raped and killed jessica lundford wont be sentenced to death, so after he has 1.kidnapped, 2. raped a child, 3. murdered a child, 4. had his friends and family lie for him, he will live off the state for the rest of his life, if he even gets a life term. and his accomplisses arent being charged. so,.

AVG cost to keep in inmate in FLA pen--- 2,000 a day (underestimate)
times x 365 days in a year
guys in in his 30's i assume so times x 50 years if he lives to 80
for a grand total of 36,500,000 dollars of the FLA taxpayers cash (i know there's no income tax, you pay it in other ways) to keep him alive when according to this handy google search http://www.cheaperthandirt.com/ctd/p....asp?sku=87551
the cost of a .22 caliber bullet is 15. dollars for 100 pack....

[gsturm]

Re: Senate Prepares for "Nuclear Option"

fair play re: many of your points, toasty. i concur with a lot of them. i went to law school too, clerked for a federal court of appeals judge, and have been practicing for six years now, so i know from experience that, e.g., it's preferable (probably for all concerned but at least as a practitioner) to deal with judges who are humans instead of replicants as much as possible. but i think it's hyperbole to go down the "none of them can use common sense" road. i have personally worked with a couple of his "radical" "outside the mainstream" nominees on litigation matters, and from what i have seen they have plenty of common sense.

the rest of your post i think mostly is riffing on the proposition that well-rounded cum laudes generally make better lawyers than non-well-rounded summa cum laudes. as a general proposition, i agree. but that doesn't really take you anywhere in this dialogue, as Bush's controversial appointments have not been people fresh off their Justice Thomas clerkships. rather, they are folks like McConnell, Kavanaugh, Estrada, etc who have reasonably long records of impressive achievement. granted, as you note, some of them fluffed their resumes with prestigious government jobs, which are an easier go of it than the private sector for the most part. but, (a) most of those that worked in the government worked at OLC, the SG's office, DOJ Civil Appellate, etc -- that is, places that require hours comparable to NYC/DC big firms; and (b) all of his nominees could probably have gotten a job at name-your-prestigious-firm-of-choice at any time during their legal careers on account of their resumes and probably would have made partner there because they by and large are all freakshow workaholics. that doesnt mean they are good people or will make great or even good judges -- just, IMHO, that they are at least as qualified as the average Clinton, Reagan, Bush I, etc. appointee.

as far as people putatively needing to have a track record as a state court judge -- as you would have it -- before they get appointed to the federal bench, that's a cheeky formula for a liberal federal judiciary, given that probably 70 or 80% of state court judges are what most would consider "liberals," and many if not most of them are popularly elected -- i.e., fundamentally populist politicians who happen to have law degrees.

for the record, i consider myself a left-leaning libertarian. i hate the president and almost everything he has done since he took office. i think a lot of his judicial nominees thus far are not the kind of nominees i would have chosen were i president. but i think it's disingenuous to criticize his nominees for not having enough experience on the bench (how much, query, do you think they need to have? does Al Gonzales have enough to qualify him to be AG, for example?) or the appropriate "judicial temperament" as the ABA does when what, I think, you really mean is that you think his nominees are too "conservative" or you otherwise don't agree with or like them.

just my .02 of course -- cheers and flame away!

[gsturm]

Re: Senate Prepares for "Nuclear Option"

i guess i should have added or acknowledged that he has nominated a fair number of truly extreme (by nearly one's standards) turds that i consider objectively unqualified on account of unambiguously expressed views that are outright anathema to our constitutional order. pryor from alabama is the shining star example here. pickering and owen are not far behind IMO. but most of them i think are highly qualified along all relevant metrics -- they're just (mostly) "conservatives."

in any event, IMO, their appointments wouldnt be such a big deal if Congress wasn't so spineless in punting so many issues of national importance to the judiciary (affirmative action, abortion, and gay rights, just to name a few). frankly i'm not sure what is worse -- being governed by pat leahy, joe biden, tom delay, rick santorum, etc. or by justices breyer, ginsburg, thomas and rehnquist (to use examples from all parts of the political spectrum).

anyhow, it's an interesting topic. living here in DC, it's damn near all the cognoscenti talk about these days (iraq seems to be old hat since everyone either privately or publicly acknowledges it's a complete debacle).

[toasty]

Re: Senate Prepares for "Nuclear Option"

^^Well, I my point was essentially that just because someone has a good legal education on paper doesn't mean that they will necessarily be great lawyers or judges, which you obviously know since you've been through all of that yourself. I don't even mean to suggest that these folks don't necessarily have the chops to do the job -- I'm just saying that, in the abstract, a great education alone should not be some sort of free pass to the federal bench -- lots of people have that.

as far as people putatively needing to have a track record as a state court judge -- as you would have it -- before they get appointed to the federal bench, that's a cheeky formula for a liberal federal judiciary, given that probably 70 or 80% of state court judges are what most would consider "liberals," and many if not most of them are popularly elected -- i.e., fundamentally populist politicians who happen to have law degrees.

for the record, i consider myself a left-leaning libertarian. i hate the president and almost everything he has done since he took office. i think a lot of his judicial nominees thus far are not the kind of nominees i would have chosen were i president. but i think it's disingenuous to criticize his nominees for not having enough experience on the bench (how much, query, do you think they need to have? does Al Gonzales have enough to qualify him to be AG, for example?) or the appropriate "judicial temperament" as the ABA does when what, I think, you really mean is that you think his nominees are too "conservative" or you otherwise don't agree with or like them.

You're right, I don't care for many of Bush's appointees or, more specifically, their ideolgies. That's a different issue, though. I wasn't intending to speak about anyone in particular, just to speak in a general sense. With that said, I do think that someone ought to have prior experience as a judge before receiving a federal appointment, regardless of their political leanings. I just do. As I'm sure you're aware having worked with both the bench and bar, they are two different jobs. Amongst the jobs available in the judiciary, federal district court judge is a pretty sweet gig. That's quite a place to start without a track record of any sort, especically when you can only lose your job for high crimes, etc.

In the districts where I regularly practice, there is a marked difference between the district court judges who went straight to the federal bench and those who worked their way up through the judiciary. I find those without prior experience to be loose cannons -- I'd much rather practice before a judge I viewed as unfavorable but predictable and consistent than one who could do absolutely anything at any time. It's maddening, and that includes judges that, based upon who appointed them, one would think would be sympathetic to my clients' positions. How about letting them be magistrates first, and cut their teeth there first?

At the end of the day, though, Bush has had more appointees go through than any other president in recent history. Clinton, Bush 41, Reagan, Carter all had far more appointees not make the cut than W. That W has managed to paint democrats' opposition to a relatively small number of judges as if it is some sort of coup (and have people believe it) is a tribute to his ability to play the media like a Stradavarius.

[thesightless]

Re: Senate Prepares for "Nuclear Option"

he really has become better with the media. he is like a hick version of being cute and vulnerable clinton. i dont know, there are things i agree with and things i dont about him, i just dont ever wanna have to dealing with another 9/11, so they could send every man with a gun in and i would be for it. but his social policies are a bit ""overreaching"" into our liberties.

[gsturm]

Re: Senate Prepares for "Nuclear Option"

agreed, toasty, that he has gotten very adept at playing the media on this issue despite his essential stupidity and that the furor on the right about this issue is objectively overblown.

at the same time, i think, the left since roughly the bork incident has been very systematic in approaching the courts as their redoubt when (as is often the case) they aren't able to generate their preferred social policy outcomes through legislative action. hence, the juggernaut known as ATLA, a seriocomic excess of hyperventilation over the class action fairness act, the left's literally incredible rhetoric about bush's judicial nominees (i think "revanchist" is about the only possibly relevant negative word i haven't heard used by dems in congress or the media to describe them), etc.

i think for the most part the right's invocation of the nuclear option and their generally increased seriousness about appointments is a reaction to some very real populist hijacking of our courts (here i'm mostly thinking of things like the tobacco litigation, elected state judges' wilful ignoring of amicus preemption dismissal briefs by the federal regulatory agencies for defendants in consumer class actions (i have personal experience with this one in a particularly horrific "magnet" state court), asbestos, etc.). but then again our lives are essentially run by huge corporations, so maybe that hijacking is a justified check/balance on their otherwise unlimited power. dunno.

anyhow, v. much agreed with your larger point that L Rev, fancy clerkship, ritzy govt posts, etc, shouldnt be a free pass to the federal bench. those on both sides of the ideological aisle who fit that demographic have been usually debacles on the bench in terms of perceived evanhandedness and legitimacy -- i.e., kozinski, luttig, etc. i actually wouldn't mind if congress required a magistrate stint as you suggested beforehand. the judge i clerked for was a state court and federal district judge before he was on the court of appeals, and even though he was a reagan appointee, i found him totally non-ideological, pragmatic and scrupulously fair -- much in contrast to a number of the other judges on that court appointed without such prior experience, one of whom was a fiery conservative you'd prolly know by name who used to call my judge on the phone and scream at him about what a pussy he putatively was in fourth amendment cases (i.e., he actually cared about applying the law rather than just rubber-stamping every police search and locking up every criminal defendant).

anyhow, like i said, an interesting topic. in the end, i doubt that the republicans will actually change the voting rules given (a) the bad press they have gotten for doing so in the DeLay ethics investigation and (b) that Frist badly wants to be president and won't run the risk that this will backfire on his watch. but who knows -- there is no limit to the audacity of the right these days.

cheers.

[toasty]

Re: Senate Prepares for "Nuclear Option"

i think for the most part the right's invocation of the nuclear option and their generally increased seriousness about appointments is a reaction to some very real populist hijacking of our courts (here i'm mostly thinking of things like the tobacco litigation, elected state judges' wilful ignoring of amicus preemption dismissal briefs by the federal regulatory agencies for defendants in consumer class actions (i have personal experience with this one in a particularly horrific "magnet" state court), asbestos, etc.).

MadCo?

[gsturm]

Re: Senate Prepares for "Nuclear Option"

Yep, I have personally tasted the MadCo lash in some asbestos cases -- it's really more like a Moroccan bazaar than a court of law in my experience there. But the amicus brief fiasco was in state court in New Orleans, where the judge candidly informed me that he didn't care what the federal government thought about his jurisdiction and that his job was to "do justice" in the case before him, no matter what the law might say. This, mind you, was shortly before he was pulled off the bench for six or seven different ethics violations. Lovely!

[toasty]

Re: Senate Prepares for "Nuclear Option"

I suspect we're on opposite sides of some cases. I am a plaintiff's class action lawyer myself and, since I'm based in St. Louis, I do a lot of work in MadCo. Suffice it to say that you can find examples of class action abuse there and in a lot of other venues around the country, but the reality is far different than what is suggested by the media. I do view it as a check on corporate power -- sort of to say, "Guess what -- if your business includes bilking consumers, there's a chance you could be dragged into an unfriendly venue." Of course, by virtue of the class action reform bill, that threat has been diluted.

As I'm sure you're well aware, defendants play the very same venue games, just in a different way -- I can't tell you how many times I've had a case removed to federal court where there is clearly no fed'l jurisdiction, stayed pending MDL transfer, and then sucked into an MDL only to be remanded months -- or even years -- later. Dfts got what they wanted, though -- delay, and the opportunity to get rulings on some issues in the interim in a court they consider more friendly. It's a two way street.

[gsturm]

Re: Senate Prepares for "Nuclear Option"

Yep, absolutely -- you just listed some of the favorite games we play on my side of the bar! At some level, it really is just a game -- sad, IMO, that it should be that way when so much is at stake.

Anyhow, I'd love to pick your brain offline sometime about life on your side of the street. I'm hoping to switch sides at some point in the next year or so and have actually been in early discussions with a plaintiffs' firm about doing that. Seems like you guys generally lead much better and more fulfilling lives than folks on my side of the aisle. But perhaps there is some grass-is-greener in that sentiment. Dunno. I do know that I cant go on billing ~2400 hrs/yr forever in this kind of work.