(no subject)

[vicarz]

http://www.doommovie.com/ It looks horrible...perfect.

Miers? Was never a judge. It's sad that the amount of scrutiny for SCOTUS judges has merely resulted in picking un or under-qualified members to avoid having to answer questions about their judicial records.

The hot-button issue over and over again is abortion. Eventually Roe will fall or the law will have to change to add an explicit right to privacy. During this period of terrorist fear I doubt we'll see anything but a further constriction of freedoms, so if you want abortion better turn your views to state-level decisions. I think the battle will be lost in the states, as most people who care strongly are those that are zealously pro-life. It's one of those issues that doesn't affect a high enough % of people to affect policy, especially as people with money can always get abortions if they want. Apathy has many victims.

Speaking of Bush groupthink, are people seeing through this oil refinery scam?
http://news.yahoo.com/news?tmpl=story&u=/nm/20051004/us_nm/hurricanes_bush_refineries_dc_4
Bush is pushing to give money away, either directly, through public land donation (former military bases), removing EPA pollution restrictions, or giving tax breaks to the oil conglomerate. This is in a year that oil companies are posting record profits...is this what he means by smaller government? Will Haliburton build the refineries? I'm truly thrilled at the prospect of using taxpayer dollars to aid an industry that is reaping its own rewards already.

Comments

[joanarkham.livejournal.com]

The Doom movie preview made me motion sick. Ugh.

[anarcha.livejournal.com]

"un or under-qualified members to avoid having to answer questions about their judicial records"

Huh?

I call bullshit. How is she unqualified or underqualified? (and understand, I'm not sure how I feel about her, but I really don't think anyone with a basic knowledge of how the judicial system works can argue that she's UN-qualified or UNDER-qualified).

If it's because she hasn't ever served on the judiciary, well, you should know as a law student that past judicial service isn't necessarily a prerequisite. Past SCOTUS justices who had not previously served as judges include: Powell, Byron White, Rehnquist, and Warren.

Her lack of prior judicial service or published writing does make it harder to determine how she would rule in the future, but it doesn't mean that she's not qualified. She clearly has years and years of experience practicing law and arguing cases, working through the legal analysis that she will need to do on the bench.

A lot of nonlawyers assume that there's some gaping maw of experience between a judge and a lawyer -- but you, as a law student, should know that the legal analysis is the same whether you're arguing one side or evaluating both sides. Years of experience litigating is years of experience litigating. She knows how the system works; she knows how read the holdings of specific cases and apply them.

If it's because she's a SMU law grad who wasn't on law review rather than a fancy-schmancy Harvard/Yale/Stanford grad .... well, I don't think much of that argument either.

[vicar.livejournal.com]

She's unqualified for the same reason I'm not qualified to teach law classes. I've attended and taken exams, but not been in the role of professor (hey it was that or a sports metaphor - same reason a pitcher can't play as a catcher).

Yay, another Rehnquist? I realize it isn't a new thing, but inexperienced judges in SCOTUS seem odd. A criticism of our new Chief Justice was his short judicial history. It seems the way to avoid a confirmation hearing is to simply find noobs to fill the role.

And egads...that woman's makeup.

[anarcha.livejournal.com]

[whoops -- posted in wrong place -- I deleted and moved]

Well, I would argue that the primary reason you're not qualified to teach law classes is NOT that you haven't previously taught law, but rather that you haven't graduated law school. Additionally, presumably you wouldn't have experience practicing the type of law that you wanted to teach.

Your pitcher/catcher analogy is also inapplicable. Pitching and catching are two distinct skills using different sets of muscles. In contrast, judges and litigating attorneys use the same set of analytical skills. That's why law school graduates who go on to clerk at a high-profile court are so heavily desired by big law firms -- by the time they start at the law firm, they've already had a year or two of developing their legal reasoning skills. That's also why it's not rare to see people shift back and forth between serving as a judge and a litigator.

The skills used by a litigating attorney and a judge are the same. To oversimplify: both read the applicable case law and consider how that caselaw could be applied to the issue at hand. The distinction is that a) attorneys then select the interpretation of the case law that best serves their client, while b) the judge considers the interpretations presented by both sides, and decides which interpretation she considers more on point. So, the steps and the reasoning are the same, it's just the end result that is different.

[vicar.livejournal.com]

How dare you attack a sports metaphor!?

The considerations and position seem different enough that judging should be considered a different skill than merely presenting argument and forecasting what a ruling judge will decide. It seems unlikely the skills of an adversarial trial lawyer would meld well into the role of judicial officer.

You outgun me here though - as a law student my knowledge of the practice of law is limited. It seems counter-intuitive that they skills would be the same even in the same arena. Exposure seems different than practice. While the reasoning may be similar, presenting an argument must be a very different talent than selecting which argument best fits the case facts and facing higher-court review.

There must also be some skill to managing a courtroom and docket that is different than lawyering. Again, I have limited knowledge of that arena.

There must be many judges in the US who have superior qualifications, who have both lawyering and judging experience.

[anarcha.livejournal.com]

See, you keep saying that judging a case and arguing a case must be different, but you haven't ever said HOW they are different -- what analysis does a judge apply that counsel does not?

As counsel, I look at the issue and the applicable law, and decide how I am going to argue that the law should be applied in way "x." As part of doing this, I consider all the possible ways that the law could be applied, and also consider how my opponent is going to argue the law be applied (lets say that opposing counsel will argue that the law should be applied in way "y").

As judge, I look at the issue and the applicable law, as well as the arguments for applying the law in way "x" or "y," as presented by the different sides. Then I decide how I feel the law should actually be applied, whether that be way "x" or way "y" or way "z".

So, the analysis is the same, the only difference is the final step.


"There must also be some skill to managing a courtroom and docket that is different than lawyering. "

Sorry, but this argument doesn't work either. SCOTUS is a unique institution, with its own rules that are quite different from any of the lower courts (with the possible exception of some of the state supreme courts). Serving as a federal judge for umpteen years doesn't mean that you have any experience with the SCOTUS rules of procedure.

The SCOTUS courtroom functions entirely differently from other courts. For one thing, there really isn't a "docket" to manage -- cases are argued on a single day. There is no discovery or witness testimony or cross-filing of motions to dismiss. Also, the bulk of the "management" of the Supreme Court falls to the various clerks and staff. As a justice, her "management" of the court will basically be organizing her own chambers and voting on cert petitions (along with the other eight justices). Experience managing a courtroom as a judge really doesn't translate here.

"There must be many judges in the US who have superior qualifications"

But your point wasn't that there were other judges with superior qualifications, but that she was "unqualified." Big difference between the two.

[kernelpanic.livejournal.com]

Arguing that similar skill sets are required to perform both lawyer and judge does not actually provide any proof that a lawyer has the needed skills and perhaps more importantly, the wisdom and experience to be a judge. You yourself say that they have different final steps. That final step is the crucial one, the one which needs added skills and experience.

[anarcha.livejournal.com]

You yourself say that they have different final steps. That final step is the crucial one, the one which needs added skills and experience.

Well, yes, the final steps are different, but you err in assuming that means that the practicing attorney lacks a skill that the judge has. Actually, the judge's final step is the attorney's second-to-final step.


To set it out more clearly, here's how the steps are different.

A lawyer looks at the issue and how the case law applies to the issue. The lawyer determines all the different ways that the case law could be applied, including the way the other side will argue that the law should be applied, and the way that the judge will probably want the law to be applied. Then the lawyer formulates an argument for why the case law should be applied a certain way.

A judge looks at the issue, and how the case law applies to the issue. The judge then determines how he or she thinks that the law should be applied, taking into account the arguments made by each side.

So, the reason the steps are different is that the attorney takes an additional step in reasoning beyond that of the judge: the attorney must formulate an argument to convince the judge. Advocate and judge follow the same reasoning path, the judge just stops earlier.


I actually asked a coworker about this today. He's as qualified as anyone to opine on this issue: he graduated from law school three years ago, and spent a year working at a firm and then two years clerking in federal courts (one on the District Court for the E.D.Va, and a second year on the 7th Circuit Court of Appeals). He's just returned to private practice (He joined my firm, and I'm now supervising him on a case).

He absolutely agreed with me that lack of prior experience as a judge does not in anyway indicate that one is not qualified to be a Supreme Court Justice. He even went a step further, and noted that while experience as a practicing attorney is essential for a judge, experience as a judge is only moderately helpful for a practicing attorney. The reason for this is that, as I stated above, the judge stops his or her path of legal reasoning a step before the attorney does.

[vicar.livejournal.com]

Try as you do to walk me into a good argument, I just don't have one.

SCOTUS is an unusual beast, that is true. Sometimes I wonder what the judges actually do vs. their staff. It might be the world's easiest job!

You make a good argument that lawyering is similar to judging, but something in my gut doesn't accept it. I know you consider both sides of the argument before you present your client's best shot, but that seems different than selecting the better argument. Why? I suppose if you knew which argument was superior you'd just settle the case right away unless you were trying the case to damage the other party through legal expenses?

Most qualified vs. unqualified - if only I had nudged that earlier. Of course, I kind of liked the O'Connor surprise, but don't expect that to happen twice.

Nice bullshit call. I think you're winning / you won.

[anarcha.livejournal.com]

"I suppose if you knew which argument was superior you'd just settle the case right away"

Yes, except that usually it's not so black and white. It's rarely clear that one argument is "superior." There can be more than one "correct" legal interpretation.

For example, there's a case in the first circuit, U.S. v. O'Connell, 890 F.2d 563 (1st Cir. 1989). The text of this decision states "We hold that a corporation should be held liable under the False Claims Act for the fraud of an agent who acts with apparent authority even if the corporation received no benefit from the agent's fraud."

However, O'Connell was based on an appeal from a District Court decision addressing whether a corporation could be held liable under the FCA for the fraud of an agent who acts with apparent authority even if the agent did not intend for the corporation to benefit from his or her fraud.

So, does O'Connell hold only that the corporation can be held liable for the agent's fraud, even if the corporation did not benefit from the fraud (reading only the text of the decision); or does O'Connell hold that the corporation can be held liable for the agent's fraud even if the agent did not intend to benefit the corporation (including the background and practical effect of the case in the interpretation)?

The answer is: attorneys can make a great argument for each side.

[vicar.livejournal.com]

I'm sitting in a class in which they say more than 90% of all cases settle, and notes that depending on how you split up discovery makes a negative value suit economically reasonable. The vague rulings, those that teeter on the fence, allegedly are a minority of cases - and of those the ones people pursue despite all the related expenses are even smaller.

Or so this guy says in Litigation and Dispute resolution theory. Not an exciting class, let me tell you...during class.

[anarcha.livejournal.com]

Oh, unquestionably 90% of all cases settle. But that's due more to the huge costs of electronic discovery than to the fact that the case should clearly and undeniably be decided one way or the other.

You can be certain that you'll win if you get an intelligent judge, and still settle simply because it costs less to settle than it does to win.

Also, don't forget that in our discussion, I've been oversimplifying by assuming that a case involves a single issue. In actuality, they hinge on 8-15 issues.

[vicar.livejournal.com]

That's about the third reply that LJ ate today.

I don't have a good argument other than the general feel that a judge must have some skill in judging above that of the lawyer, that the skill set of weighing both arguments before presenting the client's best is different than choosing the "right" one.

If lawyers could choose the right one, they'd always settle in all but the rarest case that ran right down the middle. Well, the other issue might be that a lot of lawyering is gaming the system and using legal expenses and delay tactics to elicit settlements more favorable to the client regardless of the legal issues.

Nice bullshit call though - I think you're winning / you won.