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May 2009 Archives

May 2, 2009

Pam Karlan and Souter's Seat--Stuntz

If Obama wants to appoint a Scalia for the left, he should choose Pam Karlan, a longtime colleague of mine at Virginia who now teaches at Stanford. Pam is (1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer. The last point matters enormously. Robert Jackson served only thirteen years on the Supreme Court, but his opinions remain influential today because of his talent with language. Many judges and justices leave their mark on the law because of their votes. Only a few have influence that lasts beyond their lifespan, and the common thread in those judicial careers is an uncommon ability to capture a complicated argument in a memorable phrase. Henry Friendly, Learned Hand, Louis Brandeis, Oliver Wendell Holmes, John Marshall — all had that talent, and many of those phrases survive and shape legal doctrine today. Intellectual horsepower helps, but horsepower alone isn’t enough to produce a lasting impact on the law. David Souter is a perfect example: he may be among the smartest Justices to serve on the Court, but he seems incapable of producing clear, tight opinions. A couple decades hence, few will cite his work.

 The opposite is true of Justice Scalia, whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions. Of the names I’ve seen mentioned, Pam and the D.C. Circuit’s Merrick Garland are potentially in that league; my former boss Elena Kagan may be as well. I’m not sure who is the wisest of the three, but Pam is the best writer. I know no one else who can turn out so much work that is so pleasing to read. Plus, she can be devastatingly funny. That is a recipe for the kind of influence that lasts.
Most presidents miss this point. One hears a lot about the smarts and experience of judicial appointees, but rarely about their language skills. The same is true in my line of work: productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase. That is a mistake. The legal and academic markets are filled to overflowing with smart opinions and law review articles. The ones that stand out are fun to read — and those are few and far between.

May 7, 2009

Kagan, Karlan and Empathetic Judges--Stuntz

My post about Pam Karlan as a potential Supreme Court nominee (see below) got more play than I expected. (I’m always surprised when someone reads something I write. Usually, I think: this can’t be a good use of readers’ time . . .) Which is all to the good: I think Pam would be marvelous in that job. But Pam isn’t the only first-rate candidate under discussion. My former boss Elena Kagan would likewise be terrific. A big part of the reason why goes to an idea that has attracted a lot of attention of late: empathy. 

Most of the talk about empathy and judging is silly. Roughly speaking, empathy means a combination of passion and understanding. Does anyone want Justices who don’t understand how some important piece of the world works? Should we fill the Supreme Court with Justices who are less than passionate about doing justice? These questions answer themselves. In any event, Karlan and Kagan share an important virtue in this regard: both have professional experiences that are unusual among candidates for this job—and both have exhibited the combination of understanding, detachment, and passion that the best lawyers bring to the table. Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. (She also knows Bill James. How cool is that?) Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights. Good for her. Kagan knows how a White House works from her time in the White House Counsel’s office under Bill Clinton, useful information for one who sits in judgment of presidents’ actions. More important still, Kagan has run the equivalent of a medium-sized business—and she ran it with a combination of cool-headed detachment and genuine devotion, for the institution she ran and for the people who work here. Good for her too. I’d still pick Pam first, but it’s a close call.

One more observation on this subject: Whenever these openings happen, there is a tendency to root for the appointment of the candidate who most nearly shares the writer’s ideology. That tendency is natural, but it ought to be resisted. All Americans benefit when Supreme Court Justices are high-caliber intellects with a flair for language, characteristics that Karlan and Kagan share. My own politics are center-right, but I want good, smart judges and Justices on the left (where Karlan mostly is) and center-left (where Kagan resides) as well as on my piece of the ideological spectrum. The current Supreme Court does not suffer from too much high-quality ideological debate. More like too little.

More Good Cancer News--Stuntz

I was more than a little nervous about the results of my recent brain MRI. I needn’t have been: the films were clear; no detectable cancer. (Insert sigh of relief here.) As a family member put it, “they took pictures of your brain and found nothing there.” . . . 

The films were obviously good news. At the same time, they also frustrate me: I have a nonstop headache, my right leg hurts more than it ever has, and I’m at least a little nauseous all the time—often more than a little. The headache I can deal with. Back pain, sciatica, and I are old friends; much as I hate it, I can handle that pain too. I’m good at pain. Nausea is another matter. It wears me down, interferes with work and with family life. Worse, it mystifies my docs, which means it won’t disappear anytime soon.
I’m pleased and relieved to know that my life won’t be ending as soon as I expected. And I well understand that the last portion of that life probably won’t be pretty: cancer deaths are a nasty business. All of which is OK. But I had hoped to have some time when I felt like I did before cancer entered my life—like I felt when my only health problem was chronic pain in my back and right leg. (“Only” doesn’t really fit in that sentence.) I haven’t seen that time yet. I hope it’s out there somewhere.

May 8, 2009

More on the Chrysler Bankruptcy--Skeel

Several days ago, I wrote a short post noting some of my concerns about the extent to which the government seems to be commandeering the bankruptcy process in Chrysler as a means of effectuating its auto policy.  This commentary develops the critique in a bit more detail, and puts it in historical perspective. 

May 13, 2009

Spring in Boston--Stuntz

Before moving to New England nine years ago, a couple of friends told me that T.S. Eliot must have lived here when he wrote: “April is the cruelest month.” Winter seems to last forever—and then, bang! Summer comes. Spring pretty much doesn’t happen. Or so the conventional wisdom holds.

 It isn’t so. This time of year, you get lots of sunny days in the 60s, sometimes with a late shower thrown in. Trees are flush and dogwoods bloom; walking around my neighborhood, I can’t help smiling.  I’ll never understand why Bostonians are so fond of griping about the climate. . . .

State Judges and the Supreme Court--Stuntz

Plenty of people have noted that recent Supreme Court picks have all come from the federal bench. The usual response is to argue that we should look for non-judges to appoint to the Supreme Court. There is some merit to that position, but I’d also look more to state-court judges.

 My friend Joe Hoffmann and I are working on a criminal law casebook; in the course of selecting cases for the book, I’ve read a ton of state appellate decisions. There are certainly some bad state appellate courts out there, but there are also some excellent ones, and in surprising places: not just New York and California but Kansas and Iowa, North Carolina and Connecticut. A large fraction of the constitutional litigation that occupies the Supreme Court comes from the states; the Justices would do a better job in those cases if they had more experience with them before coming to the Court. Here’s one example of that problem (there are many others): Murder cases are rare in federal court but common in the states. If the bodies of constitutional law that regulate the death penalty—nearly all defined by the Supreme Court—are dysfunctional, as most lawyers and academics believe, the reason may be that Supreme Court Justices have too little experience with the laws and procedures at issue in murder cases. Choosing a couple of good state-court judges for Supreme Court vacancies would help to remedy that problem.
Another advantage of picking state judges for Supreme Court vacancies is that most state appellate judges are elected officials. Nominees who both have judicial experience and know what it means to run for office have a lot to be said for them: think Sandra Day O’Connor, who in retrospect looks like a pretty good choice. Perhaps President Obama, who is said to like the idea of picking a politician, can get a twofer: an elected official with judicial experience. There are a lot of them out there. Just not on the federal bench.

May 16, 2009

Soon to be Ex-Judge McConnell--Skeel

With the exception of Supreme Court speculation, the biggest news in my little neighborhood these days is the announcement that Judge Michael McConnell will step down to join the faculty of Stanford Law School. As many readers will know, McConnell was the nation’s leading religion clause scholar and a law professor at the University of Chicago and then the University of Utah before being appointed to the federal court of appeals. No doubt there are many reasons for his decision to give up his judicial robes—the desire to return to the scholarly fold and to litigate occasional, high profile cases, perhaps, or weariness with the routines of appellate judging. But surely one small factor is that any prospects for a nomination to the Supreme Court are now very dim. Judge McConnell is quite young—he’s only 53 or 54—but it is highly likely that President Obama will be in office for the next eight years. By the time there’s a realistic chance of a Republican president, he’ll be in his 60s. Given the clear emphasis these days on appointing young justices, the odds of a future nomination are small and distant.

My guess is that Judge McConnell is not the last of the high profile, Republican appointed appellate judges who will step down in the next few years.

May 19, 2009

Banking on Bankruptcy--Skeel

This op-ed by equity fund manager Scott Sperling in today’s Wall Street Journal makes an interesting case that the Obama administration’s handling of Chrysler and GM is actually evidence of capitalism at work. In my view, he’s right that the restructuring of these companies has some similarities to how things would play out if the government weren’t cramming down its own preferred plans. Both companies would have filed for Chapter 11, and would have been restructured. But the op-ed strikes me as very misleading in its suggestion that restructuring of Chrysler in particular can be squared with the bankruptcy laws. In talking about Chrysler, Sperling seems to suggest that it’s fine to give employees, retirees or anyone else (including current stockholders, presumably) a large stake in the new company, so long as they aren’t allowed to keep everything they have now. That is, he seems to forget the rules of priority, which say that the senior lenders are required to be paid first. When he turns to General Motors, on the other hand, he suddenly remembers the priority rules. The recalcitrant bondholders really aren’t entitled to anything (or much of anything), he argues, because the government, as senior lender, is entitled to be paid first.

In my view, he’s right about GM and wrong about Chrysler. The government’s commandeering of the Chrysler bankruptcy, and rewriting of the priority rules, has laid the groundwork for a lot of mischief in the future.
Also on the bankruptcy front, Cleary Gottlieb lawyer extraordinaire Lee Buchheit and I have a little op-ed today arguing for a new approach to the financial distress of large, systemically important financial institutions. We propose that lawmakers provide for a 60-90 day interim period as a prerequisite to bankruptcy proceedings. In my view, the existing bankruptcy framework, this proposal, or the enactment of special bankruptcy provisions aimed at large nonblank financial institutions are each preferable to the current administration proposal, which would dramatically expand the FDIC’s authority and would continue the strategy of relying on bailouts. I hope to outline these thoughts in more detail in future posts and commentary.

May 26, 2009

Hispanics and Latinos--Stuntz

This is a trivial comment, but I note that all the early reports on Sotomayor’s appointment refer to her as “Hispanic.” This puzzles me. Brazilians aren’t Hispanic—they speak Portuguese—and Spaniards are. Why should Spanish ancestry matter more than, say, Dutch or Swedish ancestry? (Full disclosure: I’m descended from Swedes. We’ve already had our Supreme Court Justice—Earl Warren, whom his political ally Tom Dewey once called “that big dumb Swede.”) And why should Brazilians count for less than, say, Argentines or Bolivians? This is the great advantage of the label Latino: it encompasses all whose ancestry is Central or South American, and it excludes Europeans. Why a politically correct culture continues to use the un-politically correct terminology is beyond me.