Source: OTHERWISE: The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court – LEDERMAN – Balkinization
I had the privilege of working with Arthur Kinoy and Morton Stavis while at Rutgers Law School. In the ’60’s and ’70’s they were the architects of a remarkable string of victories in the U.S. Supreme Court. They worked on the assumption that every member of the Court could be reached, so confident were they of their arguments’ foundations and the good faith of the members of the court. Today I try to take the same stance as a teacher. But it’s getting harder to sustain. – gwc
Balkinization: The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court
By Marty Lederman (Georgetown Law) (first published October 16, 2018)
On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents. I had just turned eight years old. I’m now almost 58. And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats. That’s right: By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.
The appointment of Merrick Garland should have brought an end to that extraordinary streak. Retaining control of the Court, however, has become an article of Republican faith–hardly surprising when it’s become a bulwark of theirs, a virtual background assumption, for fully half a century. And now, thanks to Mitch McConnell’s deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority. A full century of Republican control is not hard to imagine. (And how’s this for a (related) factoid?: In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)
Source: OTHERWISE: Harvard Drops Harvey Weinstein Lawyer as a Faculty Dean – The New York Times
Students in Winthrop House had called for the resignation of Robert S. Sullivan Jr., a law professor. He and his wife were the first African-American faculty deans in Harvard’s history.
This decision is troubling. Robert Sullivan is a hero lawyer, in my opinion. Closest to home for me was his role in designing and overseeing the late Brooklyn D.A. Kenneth Thompson’s Conviction Review program which scrutinized convictions to find those unjustly jailed. – gwc
Source: OTHERWISE: Should retired judges be beyond the reach of the courts?
by George W. Conk
Alex Kozinski, Brett Kavanaugh, and Maryanne Trump Barry have all been relieved of the burden of inquiries into their conduct under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, which empowers the federal judiciary “to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.”
The three have in common that their resignations from the bench assertedly deprived the courts of jurisdiction because a judge is no longer a judge when he or she retires (Kozinski and Trump Barry) or steps up to the United States Supreme Court (Kavanaugh). In each circumstance, according to the Second Circuit Judicial Council (in the Kozinski case) the “Act is concerned with individuals whocurrently exercise the powers of the office of federal judge”. Because he or she “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the Act” making the proceedings “unnecessary”. Yet the two Circuit Judges collect pensions at full salary for life [28 U.S.C. 371(a)] and, if willing, may be “assigned judicial duties”. [28 U.S.C. 294] The now Associate Justice draws a salary as a member of the highest court and very much “performs judicial duties”. KEEP READING
OTHERWISE: ABA: Immigration Courts face existential crisis – system “irredeemably ” dysfunctional
from the ABA Commission on Immigration – 2019 report (full text linked above):
The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.
A former federal prosecutor has some thoughts on the Barr Gambit … A few thoughts on the Barr Gambit, and Mueller decisions.
Strong discussion of prosecutorial discretion – its use and abuse.
Source: The Barr Gambit – Talking Points Memo
Paul Rosenzweig carefully analyzes the ambiguities in Attorney General Barr’s letter on the still secret Mueller report which reportedly concluded that the Trump campaign did not conspire with the Russian government to steal data and interfere in the 2016 presidential election.
The second aspect is that despite conflicting evidence Mueller decided not to charge Trump with obstruction of justice. The key factors are likely difficulties of proof of intent (liars lying), and adherence to Justice Department policy not to charge if there is another remedy – here impeachment by the U.S. House of Representatives. – gwc
Source: OTHERWISE: Unpacking the Barr Letter re Mueller ~ Rosenzweig // Lawfare – Brookings Institution
Source: 55 years after first SCOTUS appearance, lawyer is back for second redistricting case
Another good thing about legal academia. No mandatory retirement age. – gwc
Bondurant’s current age is 82, and he says he has no plans to retire or to quit his work to improve democracy through the courts.
“I’d rather spend my time doing that than playing golf, in part because I play golf so badly that the opportunity not to play is itself a positive,” Bondurant told NPR. “But this is really important stuff, and it’s very fundamental.”