Judging the Judges
Yesterday afternoon I spent a couple hours checking out the woman who should have been the nominee to replace Sandra Day O’Connor on the US Supreme Court, Edith Brown Clement. Replacing the first woman ever appointed to the Supreme Court with another woman seemed a no-brainer, and therefore within the capabilities of George W. Bush, whose wife even recognized the sensibility of such a replacement. Appointing a Hispanic female would score political points in that community also, but apparently elevating Alberto to Attorney General was deemed sufficient for now, without risking an affirmative action backlash from the white privilege Republican base.
I found that Judge Clement has an impressive record. She did not attend an Ivy League law school, but instead stayed in her own community and graduated from Tulane in Louisiana. For several years, she practiced maritime law, which though somewhat exotic, still is the real world. She then put in over ten years as a Federal trial judge, compiling an excellent record of handing down over 1,300 decisions, of which only 17 were reversed on appeal. Her experience as a lawyer in private practice and as a trial judge taught her that cases turn on the real facts and on the proper application of the relevant law. Determine the facts and the law, and the outcome should logically follow.
When Judge Clement was elevated to the Federal Court of Appeals, the transcript of her confirmation hearing in the Senate showed her to be much like Sandra Day O’Connor, a judge who examined each case very closely on its facts and who studied the applicable law with great respect, always keeping in mind the awesome importance of our Constitution. Label them conservative and strict constructionist, but in fact they are relatively moderate. O’Connor’s “swing vote” record has set an example of how to ameliorate the ideological polarization in America. On the abortion “litmus test”, like O,Connor, Clement made it clear she realized Roe v Wade is the established law of the land and should not be eroded or overturned. Clement was confirmed unanimously for the Appeals Court.
But that was the afternoon. In the evening, Bush did what should have been more predictable - he nominated a white male Rehnquist clone, John G. Roberts, Jr. Like Rehnquist, Roberts is very bright and very Republican. Roberts is a Harvard Law grad, who does not seem to have practiced any “real people” law. He has a great talent for appellate argument and has served as counsel in the Reagan White House and as an Assistant Solicitor General for the US under Bush the First, arguing about three dozen cases before the Supreme Court. He has no trial judge experience and has only been an Appeals Court judge for two years.
On the abortion litmus test, Roberts has criticized Roe, but since that was as Solicitor, he can say he was only advocating the view of his client, the first Bush Administration. Lawyers advocate the positions of their clients, but don’t necessarily share those positions personally. Nevertheless, to the extent a lawyer chooses which clients to represent, if a lawyer always represents corporate polluters or if a lawyer is a public defender, that may reflect the personal views of the lawyer. And herein lies what is probably the real Bush litmus test for a Supreme Court Justice who could serve for the next 30 years - the firm Roberts worked for, Hogan & Hartson, primarily represents international business corporations.
I found that Judge Clement has an impressive record. She did not attend an Ivy League law school, but instead stayed in her own community and graduated from Tulane in Louisiana. For several years, she practiced maritime law, which though somewhat exotic, still is the real world. She then put in over ten years as a Federal trial judge, compiling an excellent record of handing down over 1,300 decisions, of which only 17 were reversed on appeal. Her experience as a lawyer in private practice and as a trial judge taught her that cases turn on the real facts and on the proper application of the relevant law. Determine the facts and the law, and the outcome should logically follow.
When Judge Clement was elevated to the Federal Court of Appeals, the transcript of her confirmation hearing in the Senate showed her to be much like Sandra Day O’Connor, a judge who examined each case very closely on its facts and who studied the applicable law with great respect, always keeping in mind the awesome importance of our Constitution. Label them conservative and strict constructionist, but in fact they are relatively moderate. O’Connor’s “swing vote” record has set an example of how to ameliorate the ideological polarization in America. On the abortion “litmus test”, like O,Connor, Clement made it clear she realized Roe v Wade is the established law of the land and should not be eroded or overturned. Clement was confirmed unanimously for the Appeals Court.
But that was the afternoon. In the evening, Bush did what should have been more predictable - he nominated a white male Rehnquist clone, John G. Roberts, Jr. Like Rehnquist, Roberts is very bright and very Republican. Roberts is a Harvard Law grad, who does not seem to have practiced any “real people” law. He has a great talent for appellate argument and has served as counsel in the Reagan White House and as an Assistant Solicitor General for the US under Bush the First, arguing about three dozen cases before the Supreme Court. He has no trial judge experience and has only been an Appeals Court judge for two years.
On the abortion litmus test, Roberts has criticized Roe, but since that was as Solicitor, he can say he was only advocating the view of his client, the first Bush Administration. Lawyers advocate the positions of their clients, but don’t necessarily share those positions personally. Nevertheless, to the extent a lawyer chooses which clients to represent, if a lawyer always represents corporate polluters or if a lawyer is a public defender, that may reflect the personal views of the lawyer. And herein lies what is probably the real Bush litmus test for a Supreme Court Justice who could serve for the next 30 years - the firm Roberts worked for, Hogan & Hartson, primarily represents international business corporations.
posted by Tom Blake | 10:27 AM
2 Comments:
Wouldn't you consider Roberts' ruling that a twelve-year-old's rights weren't violated when she was handcuffed and arrested after eating a single french fry, an example of 'real people' law?
Anna & Seth in California
The “French fry”case involving the 12 year old girl was a “real people” law case. The lawyer who represented her in the suit against the Transit Authority was practicing “real people” law, meeting with the girl and her family and having the opportunity to provide that unique blend of personal and legal counseling which is at the heart of what a good attorney should be doing.
The lawyer representing the Transit Authority also had the opportunity to practice “real people” law, by having the appropriate officials meet with the girl and see how the application of the zero tolerance policy seriously affected the child.
I do not know whether the attorneys took advantage of the opportunities. I have not researched the details of their work. The Authority has changed the policy, ostensibly as the result of bad press from the arrest, but I wonder if a lawsuit and appeal were really necessary to accomplish that - especially since the resulting publicity also affects the child. I would have preferred that this matter had been handled by low key meetings between her attorney and the attorney for the Authority, resulting in a written apology and a policy change, without all the hoopla.
When I said John Roberts did not practice “real people” law, I meant he did not handle cases like this one, as the lawyer meeting with the girl and her family, or as a lawyer for the Authority meeting with the girl and her lawyer and family. If this case had actually gone to trial, instead of just being argued on paper motions, the trial judge would have listened to the testimony in person, a “real people” experience. Practicing Appellate law as he did, Roberts would have been
involved in such a case on paper only, with no need to meet with the real people involved. Similarly, in hearing the case on appeal, Roberts was only involved with the real people on paper.
The “French fry” case law is apparently fairly well decided. Judges cannot ordinarily second guess decisions of rule makers and enforcers, even if the judges think the zero tolerance policy is ill conceived. Criticism of what some call “overcriminalization”, might be expected to come from advocates for civil liberties, but it may be that the loudest critics actually come from the other end of the political spectrum - conservative libertarians, who are opposed in principle to most governmental regulation. Pointing out how the current “zero tolerance” mentality started with the school shooting cases in the 90s, this interesting article on overcriminalization actually comes from the Heritage Foundation’s conservative thinkers.
Personally I think a zero tolerance policy to protect kids from guns in public schools is much more worthy of judicial deference than a zero tolerance policy to protect public transit users from French fries.
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