Given the hornet’s nest that the Miers nomination stirred up in the social conservative base, I can’t help but wish that Bush had made Judge Alex Kozinski of the Ninth Circuit the nominee. Sure, they’ll call him a squish on Roe ‘cause he hasn’t promised to go all John Brown on Planned Parenthood’s ass. And he’s waaay too libertarian to have much a fan base outside of the blogosphere, which was recently certified as 99.44% pure libertarian law professor. We’d get the same tearing of hair, rending of clothes, and gnashing of teeth. But we’d also get an unabashedly brilliant jurist in return (with a long record to prove it).
Ahh, well. Man can still dream, right?
P.s. The fact that Alex Kozinski would be my number one pick did not influence this post in the least. In particular, my total devotion to Judge Kozinski did not influence the "unabashedly brilliant jurist" line. I’m totally objective in this: kinda like the New York Times is in its reporting. After all, it’s not mere opinion to conclude that Alex Kozinski is fly, da bomb, and wizard good. Moreover, the uncontroverted facts clearly show that Kozinski is both the dopest and the most wickedly awesome judge in the multiverse, assuming that there is a multiverse — and there must be because it would take a multiverse to produce a judge as brilliant as Kozinski.
I just had a similar thought (in comments, natch) over at Volokhia; readers who wish to sample Kozinski’s prose may visit that post and follow the link to his spirited dissent.
And there’s the famous dialogue he wrote in this dissent.
I’ll agree with Von: it’s not like there aren’t smart conservative judges. It’s just that they have principles, which makes them less than ideal from Bush’s point of view.
But would Kozinski have said that Bush was the most brilliant man he’d ever met? No? Then he was obviously unqualified for the job.
Conservative politics ain’t my cup of tea. But that doesn’t mean I don’t respect the acumen of a Scalia.
I prefer a sharp mind (i.e., competence) over personal loyalty and voting the party line.
(Because it is Friday afternoon and I have caused enough trouble to opposing counsel for one day, here are excerpts from that Kozinski dialogue. Ramirez-Lopez was convicted of guiding illegal immigrants across the border, and the feds deported said immigrants before they could testify. But the feds did take notes of what the deported folks said:)
Ramirez-Lopez: OK, I see it now, but there’s one thing that still confuses me.
[His] Lawyer: What’s that, Juan?
Ramirez-Lopez: You see, the government took all those great notes to help me, just so we’d know what all those guys said.
Lawyer: Right, I saw them and they were very good notes. Clear, specific, detailed. Good grammar and syntax. All told, I’d say those were some great notes.
Ramirez-Lopez: And 12 of those guys all said I wasn’t the guide.
Lawyer: Absolutely! Our government never hides the ball. The government of Iraq or Afghanistan or one of those places might do this, but not ours. If 12 guys said you weren’t the guide, everybody knows about it.
Ramirez-Lopez: Except the jury. I was there at the trial, and I remember the jury never saw the notes. And the officers who testified never told the jury that 12 of the 14 guys that were with me said I wasn’t the guide.
Lawyer: Right.
Ramirez-Lopez: Isn’t the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
* * * * *
Ramirez-Lopez: I see what you mean. But how about the notes? Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn’t the guide. That wouldn’t have taken too long.
Lawyer: Wrong again, Juan! Those notes were hearsay, and in this country we don’t admit hearsay.
Ramirez-Lopez: How come?
Lawyer: The guys writing down what the witnesses said could have made a mistake.
Ramirez-Lopez: You mean, like maybe one of those 12 guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?
Lawyer: Exactly.
Ramirez-Lopez: You’re right again, it probably happened just that way. I bet those guys from Immigration wrote down, “Juan wasn’t the guide,” even when witnesses said loud and clear I was the guide — just to be extra fair to me.
Lawyer: Absolutely, that’s the kind of guys they are.
* * * * *
Ramirez-Lopez: I feel a lot better now that you’ve explained it to me. This is really a pretty good system you have here. What do you call it?
Lawyer: Due process. We’re very proud of it.
(Obviously, not the judge you want ruling on the Padilla case.)
The opinions would be a lot more fun to read than most are.
Anderson: thanks. I also liked one of the bits you excised:
“Ramirez-Lopez: The jury was supposed to decide whether I was the guide or not, right? Don’t you think they might have had a reasonable doubt if they’d heard that twelve of the fourteen guys in my party said it wasn’t me?
Lawyer: He-he-he! You’d think that only if you didn’t go to law school. Lawyers and judges know better. …”
Granted that I only read the first eight pages or so of the dissent, and
Although he might have gone on to fall completely on his face and make a total hash of his arguments and the law, and
Further conceding that in opinions as yet unread by me, he may for all I know say that no trial can possibly be fair that is not concluded with the invocation of Satan and the ritual drinking of the blood of infants, or something equally bizarre and abhorrent,
Yet I say that on the basis of what I’ve read, he would have been an excellent pick.
By the way, did everyone read Michael Berube’s really wonderful post on Miers? Silly everyone for combing her past for clues, he says: use Google’s new ‘Future Search’ and find out what happens. What he finds begins:
“It’s all right there on the Future Internets: her famous declaration in early 2006 that Roe v. Wade was wrongly decided . . . and that a woman’s reproductive rights should be predicated on the equal protection clause of the Fourteenth Amendment instead! Pro-life groups were especially outraged when Justice Miers closed her opinion with a sentence that many legal analysts interpreted as a repudiation of the American religious right: “Psyched you all out, didn’t I?””
and ends:
“Miers was not without her detractors. Her fellow Justice, Antonin Scalia, thought little of her as a legal mind, and took to writing withering dissents as Miers’ influence on the Court grew. Scalia was particularly appalled at Miers’ reasoning in Putnam County Soil and Water Conservation District v. U.S. (2012), in which she wrote, “When the moon is in the seventh house, and Jupiter aligns with Mars, then peace will guide the planets and love will steer the stars, 539 U.S. 558.”
“Mystic crystal revelation indeed,” wrote Scalia, in one of the shortest dissents in the history of the Court.
Through it all, Miers remained humble and self-effacing, saying only, “let there be peace on earth, and let it begin with me.””
But to read more about what the future internets describe as her “stunning series of rereadings of Fourteenth Amendment case law”, you have to go to the original 😉
Alex is the MVP. The Red Sox are done for the year.
Speaking of judicial outrage look at the case Volokh describes here. I’m frankly shocked that this was not considered gross judicial misconduct. The case in short involves a federal judge who sua sponte (meaning on his own motion–not being asked by any party) enjoined an order of eviction against a woman whom he had before his court in a criminal matter. But the woman allegedly didn’t ask for it. (I say allegedly because there is no good explanation of how this judge knew to look for the order that he enjoined other than that it got it through extra-judicial channels which he of course denies). When the Trustee’s asked him to explain the order the exchange was:
Kozinski’s dissent is scathing.
The sad thing is that the facts get worse and worse and worse than that.
The case is a bit long, but I really encourage you to read it. The majority opinion is interesting because it shows that you can glide over things by merely turning them into distractions.
It is also is a good example of not raising facts you can’t prove. The proveable facts are awful and clearly judicial abuse. But there was a suggestion that the abuse was motivated by a romantic relationship–and that wasn’t proveable. The majority latches on to that as if the actions as seen aren’t enough by themselves.
I’m flexible, I’ll take Posner or Tushnet (if law professors qualify). As those familiar with these possibilities can tell, I’m not exactly knee-jerk anything on the court. Sounds like Kozinski would fit quite well into my list of acceptable candidates.
“[May a government agent] testify in a way the prosecutor knows to be incorrect?*
*I say ‘incorrect’ rather than ‘false’ because I have no reason to believe the agent in question lied. Blah blah confused blah mistaken recollection.”
From the dialogue above. Guess Anarch would vote not to confirm.
Kozinski is brilliant, which would eliminate him from consideration by this White House.
I’ma conservative who cannot wait for 2009. Anybody would be better than Bush.
How about defanging him, starting in 2006?
That would mean voting for Democratic House and Senate candidates, because the GOP-controlled Congress has never said “No” to Bush.
Kozinski is both the dopest and the most wickedly awesome judge in the multiverse
me droogies, i hear Kozinski completely horrorshow, and not at all opposed to a little Ludwig Van.
Morning all, I just woke up and at Drum’ blog, he links to this article about Miers ‘European’ relationship with Nathan Hecht. There was also this WaPo article. I tell ya, this is just getting amazing.
Note: a bit of spam here.
xanax: Not anymore…
For a moment there I thought that xanax was one of the least clever spammers ever. We don’t want your drugs, man! Then I thought that maybe this straightforward, undisguised spam was so unclever that it became clever, since no one could believe that it really was spam. Looks like the truth is less interesting, though.
chirp