The Impartiality Paradox
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
In Defence of the Court's Integrity
In Defence of the Court’s Integrity 17 In Defence of the Court’s Integrity: The Role of Chief Justice Charles Evans Hughes in the Defeat of the Court-Packing Plan of 1937 Ryan Coates Honours, Durham University ‘No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. We are a young nation and nothing can be taken for granted. If our institutions are maintained in their integrity, and if change shall mean improvement, it will be because the intelligent and the worthy constantly generate the motive power which, distributed over a thousand lines of communication, develops that appreciation of the standards of decency and justice which we have delighted to call the common sense of the American people.’ Hughes in 1909 ‘Our institutions were not designed to bring about uniformity of opinion; if they had been, we might well abandon hope.’ Hughes in 1925 ‘While what I am about to say would ordinarily be held in confidence, I feel that I am justified in revealing it in defence of the Court’s integrity.’ Hughes in the 1940s In early 1927, ten years before his intervention against the court-packing plan, Charles Evans Hughes, former Governor of New York, former Republican presidential candidate, former Secretary of State, and most significantly, former Associate Justice of the Supreme Court, delivered a series 18 history in the making vol. 3 no. 2 of lectures at his alma mater, Columbia University, on the subject of the Supreme Court.1 These lectures were published the following year as The Supreme Court: Its Foundation, Methods and Achievements (New York: Columbia University Press, 1928). -
The Watergate Story (Washingtonpost.Com)
The Watergate Story (washingtonpost.com) Hello corderoric | Change Preferences | Sign Out TODAY'S NEWSPAPER Subscribe | PostPoints NEWS POLITICS OPINIONS BUSINESS LOCAL SPORTS ARTS & GOING OUT JOBS CARS REAL RENTALS CLASSIFIEDS LIVING GUIDE ESTATE SEARCH: washingtonpost.com Web | Search Archives washingtonpost.com > Politics> Special Reports 'Deep Throat' Mark Felt Dies at 95 The most famous anonymous source in American history died Dec. 18 at his home in Santa Rosa, Calif. "Whether ours shall continue to be a government of laws and not of men is now before Congress and ultimately the American people." A curious crime, two young The courts, the Congress and President Nixon refuses to After 30 years, one of reporters, and a secret source a special prosecutor probe release the tapes and fires the Washington's best-kept known as "Deep Throat" ... the burglars' connections to special prosecutor. A secrets is exposed. —Special Prosecutor Archibald Cox after his Washington would be the White House and decisive Supreme Court firing, Oct. 20, 1973 changed forever. discover a secret taping ruling is a victory for system. investigators. • Q&A Transcript: John Dean's new book "Pure Goldwater" (May 6, 2008) • Obituary: Nixon Aide DeVan L. Shumway, 77 (April 26, 2008) Wg:1 http://www.washingtonpost.com/wp-srv/politics/special/watergate/index.html#chapters[6/14/2009 6:06:08 PM] The Watergate Story (washingtonpost.com) • Does the News Matter To Anyone Anymore? (Jan. 20, 2008) • Why I Believe Bush Must Go (Jan. 6, 2008) Key Players | Timeline | Herblock -
Observations on the Rise of the Appellate Litigator
Observations on the Rise of the Appellate Litigator Thomas G. Hungar and Nikesh Jindal* I. INTRODUCTION........................................................................511 II. THE EMERGENCE OF A PRIVATE APPELLATE BAR ...................512 III. The Reasons Behind the Development of a Private Appellate Bar..........................................................................517 A. Appellate Practices as a Response to Modern Law Firm Economics ..............................................................518 B. Increasing Sophistication Among Clients About the Need for High-Quality Appellate Representation ...........523 C. The Increasing Stakes of Civil Litigation........................525 D. A Changing Supreme Court ............................................527 IV. SKILLS OF AN EFFECTIVE APPELLATE LAWYER.......................529 V. CONCLUSION ...........................................................................536 I. INTRODUCTION Over the last few decades, there has been a noticeable increase in the visibility and prominence of appellate litigators in the private bar. Most of the attention has focused on Supreme Court advocacy, where certain private law firms and lawyers have developed reputations for specialized expertise and experience in 1 briefing and arguing cases before the Court, but the phenomenon extends to other federal and state court appeals as well. The practice of law as a whole is becoming increasingly specialized, and the trend in appellate litigation is no exception, although it appears to be a more recent occurrence than the growth of substantive speciali- * Thomas G. Hungar is a partner at Gibson, Dunn & Crutcher LLP and Co- Chair of the firm’s Appellate and Constitutional Law Practice Group. He previously served as Deputy Solicitor General of the United States. Nikesh Jindal is an associate at Gibson, Dunn & Crutcher LLP and a member of the firm’s Litigation Department and of the Administrative Law and Regulatory and White Collar Defense and Investigations Practice Groups. -
Book Review, Commentary, and Appreciation
Wyoming Law Review Volume 1 Number 1 Article 7 January 2001 Book Review, Commentary, and Appreciation Joel L. Selig Follow this and additional works at: https://scholarship.law.uwyo.edu/wlr Recommended Citation Selig, Joel L. (2001) "Book Review, Commentary, and Appreciation," Wyoming Law Review: Vol. 1 : No. 1 , Article 7. Available at: https://scholarship.law.uwyo.edu/wlr/vol1/iss1/7 This Article is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Wyoming Law Review by an authorized editor of Law Archive of Wyoming Scholarship. Selig: Book Review, Commentary, and Appreciation BOOK REVIEW, COMMENTARY, AND APPRECIATION ARCHIBALD COX: CONSCIENCE OF A NATION. By Ken Gormley.! Reading, Massachusetts: Addison-Wesley. 1997. Pp. xxii, 585. $30.00 ($18.00 paperback (Cambridge, Massachusetts: Perseus. 1999)). Reviewed by Joel L. Selig* I. There are not many accounts of lives in the law that can be rec- ommended without reservation to students, lawyers, and general readers. One that can be so recommended is Ken Gormley's well-researched, well-crafted and readable biography of Archibald Cox. This recommen- dation can be made without regard to the prospective reader's special- ized interests or legal or political philosophy. Cox's most memorable moment in the limelight, and the one with the largest audience, was his October 20, 1973, press conference in which he explained why, in his capacity as Watergate special prosecutor, he was insisting that President Richard M. Nixon produce a limited num- ber of specified White House tape recordings (pp. -
The Cover-Up Unravels
The Roots of Watergate Tactics used by Nixon’s supporters to try to ensure his reelection in 1972 led to the Watergate scandal. Section 2 The Roots of Watergate (cont.) • The Watergate scandal began when the Nixon administration tried to cover up its involvement in the break-in at the Democratic National Committee headquarters, along with other illegal actions. • Many scholars believe the roots of the Watergate scandal lay in Nixon’s character and the atmosphere that he and his advisers created in the White House. Section 2 The Roots of Watergate (cont.) • As part of their efforts to help the president win reelection, Nixon’s advisers ordered five men to break into the headquarters and steal any sensitive campaign information. • They were also to place wiretaps on the office telephones. • The media discovered that one of the burglars, James McCord, was not only an ex-CIA official but also a member of the Committee for the Re-election of the President (CRP). Section 2 The Roots of Watergate (cont.) • Reports also surfaced that the burglars had been paid to execute the break-in from a secret CRP fund controlled by the White House. • Meanwhile, few people paid much attention to the scandal during the 1972 campaign, and Nixon won by a landslide. Section 2 The Cover-Up Unravels The president’s refusal to cooperate with Congress only focused attention on his possible involvement. Section 2 The Cover-Up Unravels (cont.) • Under relentless prodding from federal judge John J. Sirica, McCord agreed to testify before the newly created Senate Select Committee on Presidential Campaign Activities. -
Oral History Interview – JFK#1, 11/25/1964 Administrative Information
Archibald Cox Oral History Interview – JFK#1, 11/25/1964 Administrative Information Creator: Archibald Cox Interviewer: Richard A. Lester Date of Interview: November 25, 1964 Place of Interview: Washington, D.C. Length: 73 pages Biographical Note Cox, Solicitor General, US Department of Justice (1960 - 1965), discusses legislative work with the labor movement, and his position as Solicitor General, among other issues. Access Open Usage Restrictions According to the deed of gift signed October 11, 1965, copyright of these materials has been assigned to the United States Government. Users of these materials are advised to determine the copyright status of any document from which they wish to publish. Copyright The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excesses of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. The copyright law extends its protection to unpublished works from the moment of creation in a tangible form. Direct your questions concerning copyright to the reference staff. Transcript of Oral History Interview These electronic documents were created from transcripts available in the research room of the John F. -
The Rehnquist Court and Beyond: Revolution, Counter-Revolution, Or Mere Chastening of Constitutional Aspirations?
THE REHNQUIST COURT AND BEYOND: REVOLUTION, COUNTER-REVOLUTION, OR MERE CHASTENING OF CONSTITUTIONAL ASPIRATIONS? THE PROCESSES OF CONSTITUTIONAL CHANGE: FROM PARTISAN ENTRENCHMENT TO THE NATIONAL SURVEILLANCE STATE Jack M. Balkin & Sanford Levinson* I. INTRODUCTION: PARTISAN ENTRENCHMENT Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory of “partisan entrenchment.”1 Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an update of our thoughts, together with some amendments to our initial formulation. By far the most important amendment is to draw out in more detail how the development of constitutional doctrine by courts occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. The forces of democratic politics drive these regime changes, and the major actors are not courts but the political branches. Although courts may initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them through the development of constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions and practices that we call the “National Surveillance State,” which, we think, represents the major constitutional development of our era. The National Surveillance State responds to the particular needs of warfare, foreign policy, and domestic law enforcement in the twenty-first century. That such a state is emerging has become clear in the wake of 9/11 and debates about the War on Terror. However, it is not limited to the * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. -
Office of Solicitor General
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS THE OFFICE OF SOLICITOR GENERAL PREFACE If any legal position warrants the appellation, "the appellate lawyer's lawyer," it is that of Solicitor General. Seth Waxman, himself a former Solicitor General, has pointed out that "the office of the Solicitor General of the United States is a wonderful and unique creation,"' noting that only the holder of that office, among all the officers of the federal government, is required by statute to be "learned in the law." 2 President after president has complied with that instruction: The list of Solicitors General that follows this preface includes the names of some of this country's most distinguished lawyers. There may even be those who think of the Solicitors General as a corps of immortals, for as Waxman discovered, "[s]ome 60 years ago, a letter found its way into the United States mail addressed simply 'The Celestial General, Washington, D.C." 3 The inadequacy of the address notwithstanding, the Post Office "apparently had no trouble discerning to whom it should be delivered. It went to Robert H. 1. Seth P. Waxman, Speech, Presenting the Case of the United States As It Should Be: The Solicitor General in Historical Context (address to the Supreme Court Historical Society, Washington, June 1, 1998) at I (available at <http://www.usdoj.gov/osg/about osg/sgarticle.html>). 2. Id. 3. Id. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 3, No. 2 (Fall 2001) THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Jackson, then Solicitor General of the United States." 4 Waxman is quick to point out that neither he nor any of his predecessors had "pretensions of other-worldliness," but he does acknowledge that they "have all been fortunate to have been able to serve in what Thurgood Marshall called 'the best job I've ever had." We in the law can see that it is indeed a special job, for the Solicitor General is the only lawyer who, as Francis Biddle put it, "has no master to serve except his country." 6 The responsibilities of the job are great, but so are the rewards. -
Master Pages
Master Pages 15 • Be Careful With My Court Legitimacy, Public Opinion, and the Chief Justices SHAWN C. FETTIG AND SARA C. BENESH On June 28, 2012, the Supreme Court announced its decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services et al., upholding the Affordable Care Act by a vote of 5-4. Chief Justice John Roberts read his majority opinion. Almost immediately, political scientists and pundits alike began dissecting the opinion and the reason for Chief Justice Roberts’s vote. Public approval of the Court, as noted by the media, was at its lowest levels ever as the Court prepared to hear the case.1 Many argued that the Court’s legitimacy weighed heavily on Roberts as he considered the case, with CBS News reporting that Roberts, as chief justice, “is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.”2 “To be sure,” wrote New York Times reporter Adam Liptak, “the chief justice considers himself the custodian of the Supreme Court’s prestige, authority, and le- gitimacy, and he is often its voice in major cases.”3 He reprised the role in King v. Burwell, the 6- 3 decision announced almost exactly one year later upholding the subsidies associated with the health care exchanges.4 There, Rosen argued, the chief used the case’s reason to confer legitimacy. Judicial restraint, Rosen suggests, drove the chief’s decision, for “In a polarized age, it is important for the Supreme Court to maintain its institutional legiti- macy by deferring to the political branches.”5 We know that the Court is influenced by public opinion and the Court’s decisions are often in line with it.6 We also know that judicial legitimacy is fairly widespread and relatively stable,7 and that it is drawn from diffuse 374 Ward.indd 374 2/12/2016 2:30:33 PM Master Pages Be Careful With My Court • 375 support, a “reservoir of good will,”8 that is resilient and resistant to signifi- cant fluctuation. -
The Political Process, Equal Protection, and Substantive Due Process
ARTICLES THE POLITICAL PROCESS, EQUAL PROTECTION, AND SUBSTANTIVE DUE PROCESS Jesse H. Choper* Stephen F. Ross** ABSTRACT In its landmark decision in Carolene Products, the Supreme Court crafted a uniquely American solution to the counter-majoritarian dilemma present in any constitutional democracy: when unelected judges should substantively review policy choices made by elected legislators and executives. The political process theory underlying that decision is that a court with a history of decisions based on judicial ideology should limit close review of government actions to three situations: (1) when the action contravenes a specific provision of the Bill of Rights, (2) when the action threatens to improperly limit the political process, or (3) with regard to the broadly worded Due Process and Equal Protection Clauses, when courts determine that the political process does not work normally. The Supreme Court has not faithfully implemented this approach over the years. However, neither Justices nor commentators have developed a superior alternative approach. We believe that most Americans ought to prefer a return to Carolene Products, as superior (either philosophically or because of risk aversion) to leaving important constitutional precedents subject to the vagaries of highly partisan politics. Our approach builds upon insights of Justices Harlan Fiske Stone, Robert Jackson, and Thurgood Marshall. First, courts should consider challenges initially under the Equal Protection Clause. Second, the category of cases warranting heightened judicial scrutiny should be expanded to include those in which claimants can prove that they are excluded from the Madisonian factional “wheeling and dealing” that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can demonstrate that animus or prejudice precludes their ability to use the political process to redress their grievances. -
Howard Baker Files: Series I Subject File: Box 3: Folder 15 Judge
Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Baker, Howard H. Jr: Files Folder Title: Judge Bork, Nomination of (4) Box: 3 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing "Balance" on the Supreme Court In raising concerns about the nomination of Judge Robert Bark to be Associate Justice of the United States Supreme Court, some have suggested that, whatever the nominee's other qualifications, it might be appropriate for a Senator to oppose Judge Bark's nomination on the ground that it would affect the "balance" on the Supreme Court. This is a theme developed by Professor Laurence H. Tribe of the Harvard Law School. This novel argument is at odds with the history of Supreme Court appointments since the beginning of the Republic. The United States Constitution nowhere specifies that any particular "balance" is to be permanently maintained on the Supreme Court. Opposing a particular nominee because the nominee would alter the "balance" on the Court is merely a veiled way of saying that one disagrees with the philosophical direction in which a nominee would move the Court. Whatever the propriety of opposing a nominee because of philosophical differences, this should not be confused with an objection of "imbalancing" the Court. The constitutional reason for rejecting this so-called "balance" test is clear: If the Senate tried to preserve the narrow balances of the present Court on, e.g., criminal procedure or administrative law, it would undermine the constitutionally-guaranteed independence of the Supreme Court. -
Watergate and the Two Lives of Mark Felt
Watergate and the Two Lives of Mark Felt Page 1 of 7 washingtonpost.com Advertisement Watergate and the Two Lives of Mark Felt Roles as FBI Official, 'Deep Throat' Clashed THE VALUE By Michael Dobbs Washington Post Staff Writer STARTS Monday, June 20, 2005; A01 WITH THE The Watergate scandal had reached a peak, and President Richard M. Nixon was furious about press leaks. His suspicions focused on the number two man at the FBI, W. Mark Felt, a 31-year bureau veteran. He ordered his aides to "confront" the presumed traitor. Another man may have panicked. Over the previous six months, Felt had been meeting secretly with Bob Woodward of The Washington Post, helping him and fellow Post reporter Carl Bernstein with a series of sensational scoops about the abuse of presidential power. But the former World War II spymaster had an exquisite sense of how to play the bureaucratic game. In a Feb. 21, 1973, FBI memo, Felt denounced the Post stories as an amalgam of "fiction and half truths," combined with some genuine information from "sources either in the FBI or the Department of Justice." To deflect attention from himself, he ordered an investigation into the latest leak. "Expedite," he instructed. Recently identified as the secret Watergate source known as "Deep Throat," Felt is the last and most mysterious of a colorful cast of characters who have captured the national imagination. Now 91, and in shaky health, the former FBI man joins a pantheon of Watergate figures ranging from H.R. "Bob" Haldeman and G. Gordon Liddy to John J.