Poetic Justice for Justice Alito. Maybe.
U.C.-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of appeals was killed a couple years ago by Senate Republicans upon the pretext that Lui had trashed Alito to the Senate Judiciary Committee in testimony during Alito’s confirmation hearing. Lui predicted that Alito as a justice would be exactly what Alito as a justice is. Now that Lui’s prediction has proven spot-on*, Obama should nominate him, not for the Ninth Circuit but for Supreme Court upon Ginsburg’s retirement in a year or two.
It would be at least some small poetic justice for this justice.
But Alito’s demeaning, denigrating treatment of litigants and counsel is emblematic of a veritable hallmark of the Federalist Society-affiliated appellate judges. Certainly not all of them do that, but also certainly, several high-profile Reagan/H.W. Bush-era appellate appointees have made that type of conduct a mark of peer prestige, and others, who don’t naturally have that personality—including some appointed by Clinton—emulate it. Something about being in with the in-crowd. It is, or at least for a long time was, the cool thing for them to do.
*The link is to a terrific article in Slate today by Mark Joseph Stern. But credit also must be given to the Washington Post’s Dana Milbank, who in a column published earlier this week was, I believe, the first of the now-several commentators to report on this.
UPDATE: I posted a similar comment to Stern’s article in the article’s Comments thread on Slate. In response, a commenter called Bigmouth wrote:
While I’d love to see Liu on the Supreme Court, I’d like to see the President pick fights he can actually win lol.
To which I responded:
This is one he would win if he chose to pick that fight. The high profile of the matter, coupled with the under-recognized importance of the generational change among voters–particularly the growing importance of the Millennials–and the overdue, very public highlighting of Alito’s votes and his conduct on and off the bench, would win it for Obama.
Not that I expect that lackluster, gutless wonder to actually pick this fight. But if he does, he’ll win it.
Get judges down to earth:
Just stand outside the courthouse — every courthouse — informing people: “If you don’t have to salute the flag, you should not have to rise when the judge walks in. Nobody will rise once they think of it. Game over.
I refused to remove my hat in an Illinois courtroom (the judge was not yet present — was a bully). I gave the court officer my little spiel and offered to explain to the judge when he came in (he didn’t ask).
I should have added: “If you think this is church, tell the ladies to put hats on (can they tell the ladies to take hats off?).
Gives me another pesky idea. Have “Freedom Hat Day”: hand out hats outside courthouses for the men to assert their First Amendment rights.
I call this “broken windows theory for cops and judges”: full application of First Amendment discipline — remind them they are no bigger than anybody else. Make them repair their small First Amendment misbehavior and you repair the lawless atmosphere that encourages more serious offenses.
Exactly, Denis. In writing this post, I considered saying also that state-court judges have, en masse, followed the lead of these federal judges, but I decided to leave that for a later post. The specifics are stunning and appalling. The very essence of the American judicial system has changed dramatically in the last three decades.