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Bush's Second Pick May Be Announced Friday,
according to CNN. From the story:
  President Bush could announce his next Supreme Court pick as early as Friday, a day after John Roberts is expected to be confirmed as chief justice, administration officials close to the process told CNN Monday.
  Bush earlier in the day hinted he was leaning toward a woman or minority candidate.
  "I am mindful that diversity is one of the strengths of the country," he said. "I have interviewed people in the past and thought about people from all walks of life."
  Bush did not indicate when he might submit his pick, although the officials who spoke on condition of anonymity said it could come Friday.
  The Senate is expected to vote to confirm Roberts as chief justice on Thursday.
  The sources also confirmed the search is focused on women and minorities.
  So the long conference was today, the Roberts vote is scheduled for Thursday, the second nominee may be announced Friday, and the new Term officially starts on Monday. Talk about a busy week for Supreme Court geeks. Hat tip: Howard.
DavidBernstein (mail):
All walks of life? Janitors, prostitutes, software billionaires? I doubt he's even looking at much of anyone who didn't go to a top five law school.
9.26.2005 10:13pm
42USC1983 (mail):
Someone should tell all law students to eat this stuff up because once they graduate, there won't be much time to learn it. Fortunately, I learned most of the terms the cool kids know (e.g., GVR and the long conference) in law school. Otherwise, I'd have no clue what the hell that stuff means.

Hey, why don't you create a dictionary of these terms? I've already forgotten what the acronymn (which all the cool kids use) for when the court "invites" the Solicitor General to express the views of the United States. Some terms to define:

Term
long conference
conference
circuit split
cert. worthy
GVR
Inviting the Solicitor General to express the views of the United States (and its damned acronymn)

I'm sure there are other terms that slip my mind, and I'm sure such a thing would be useful.
9.26.2005 10:55pm
42USC1983 (mail):
amicus brief
petition
brief in opposition (Some of this seems self-explanatory but who knows. That's the problem with this type of specialized knowledge. Those who know the language forget how foreign it used to sound, and those who don't know the language don't know what to ask!)
reply brief
merits brief
petitioner's brief
repondent's briefs

And trivia too (e.g., that the SG always uses grey covers on its briefs). Someone could probably type this up in under 15 minutes.
9.26.2005 11:03pm
42USC1983 (mail):
Yes, I am a presumptous jerk for saying "someone," re: not me, could or should type this up. But I'm not being selfish, since I either remember this stuff or can just look it up in my copy of Stern &Gressman (hey, that's another term to define!)
9.26.2005 11:05pm
OrinKerr:
42USC1983,

You're thinking CVSG. (Call for the Views of the Solicitor General.)

And don't forget DIG, "Dismissed as Improvidently Granted."
9.26.2005 11:09pm
Jonny's_Light (mail):
Yes, I feel completely lost when I read your Dictionary of words to define. But I will take your advice to learn them, since I am a future Law School student...
9.26.2005 11:16pm
Ali Karim Bey:
Sir, let me restate my predictions. Bush will nominate either Judge Callahan (Hispanic woman, GOP future voter effect) or General Larry D. Thompson (African-American, Katrina effect). The debate this week in White House is between these two people.

Other candidates are Karen Williams, but Katrina and GOP future as made her not possible.

AKB
9.26.2005 11:23pm
Jonny's_Light (mail):
The law does not need diversity in terms of interpreting it. But in order to be politically correct with minorities and racial equality, we must make sure it is our Supreme Court and other government jobs are diversified. I guess it makes sense...Any one else feeling that..Criticisms welcome..
9.26.2005 11:49pm
Jonny's_Light (mail):
Correction: But in order to be politically correct with minorities and be equal in regards to race, we must make sure our Supreme Court and other government jobs are diversified.

Added-->Does this mean that the best candidate is sometimes not chosen because of their credentials but because they satisfy that minority requirement. I guess it runs along the line with affirmative action..
9.27.2005 12:22am
SimonD (www):
Jonny's_Light - well, I oppose affirmative action too, so no big shock there. I fail to see what relevance to the task of the Supreme Court the gender or ethnicity of its membership has. One's life experiences are extremely relevant if one is writing a statute, and of none at all if one is interpreting it.
9.27.2005 1:20am
Jonny's_Light (mail):
I agree that their life experiences are very relevant but it seems Bush's decision on who to nominate is based on gender. I'd be very suprised if he nominates a man...
9.27.2005 1:31am
Challenge:
One can support affirmative action in the Supreme Court while opposing it universities and corporations and remain logically consistent. But it does undercut one's moral argument against race-preferences considerably.

I think it would be better to stress diversity of experience and background rather than skin color and gender.
9.27.2005 1:42am
Christopher:
It could be Colin Powell...
9.27.2005 3:47am
Simon (391563) (mail) (www):
I find the claim that [o]ne's life experiences are extremely relevant if one is writing a statute, and of none at all if one is interpreting it to be quite bizarre. For most cases, a judge's life experiences will have no bearing on the result. But for a few -- and of course these are the sort of hard cases that end up in front of the Court -- life experiences are relevant, if unstated, because the law is either underdeterminate or vague. (This is, it should go without saying, hardly a novel or even especially controversial point to make.) Consider, as just one example, Illinois v. Wardlow its progeny, and how the outcome might have changed had the Court been populated with justices more familiar with the police-public reactions on the west side of Chicago.
9.27.2005 8:37am
just me:
So what is the past tense of "DIG" -- "DIGged" or "DUG"??
9.27.2005 9:21am
Medis:
SimonD,

Even assuming you are correct about interpreting laws (I would argue that all linguistic interpretation requires background knowledge, which in turn is dependent on experience, but we need not get into that issue), there is still the other thing judges have to do: make findings of fact. Are you also willing to claim that life experience is irrelevant to that task of judges?
9.27.2005 10:15am
SimonD (www):
Simon (391563) -
I don't have any problem with the outcome in Wardlow. How might the judgement have changed were the "Justices more familiar with the police-public reactions on the west side of Chicago", and why is that desirable? Surely, the imperative is to "administer justice without respect to person", which is to say, to apply the law without regard for the color, wealth, subculture membership or geographic origins of the petitioner?

Medis -
Perhaps you could suggest an example of how "life experience" would be relevant to a finding of fact? I would think that what is relevant to a finding of fact was the facts of the case, which surely do not change based on the circumstances of the litigants? In fact, I would think quite the opposite - if we believed that a finding of fact had been influenced by, say, the race of one of the litigants, how would we possibly maintain the appearence of impartial justice?

Of course, in all this, we are using "life experience" as a coy euphemism for racial and cultural background. On some level, I have no doubt that Justice Thomas' jurisprudential views were influenced by his background, but that is not so say that there is no other road to reach that same result. However, I think there's a big difference between saying that one's views are a product of one's intellect assimilating one's environment, on the one hand, and one's environment alone is a qualification for office, on the other.
9.27.2005 10:52am
-anon-:
I'm going to guess Clement again, but maybe she's just the decoy candidate again.
9.27.2005 10:58am
Medis:
SimonD,

I, at least, am not using "life experience" as a coy euphemism for race or gender--I'm taking the term at its literal meaning, which would be major experiences the person has had during their life. And I think it is useful to consider non-controversial examples before coming back to that issue.

So, you ask for an example of how life experience could be useful to a judge making finding of facts. Consider a non-controverial example, like a case involving complex business matters, with lots of complex arguments on either side and lots of complex evidence in the form of depositions and the like. The judge has to evaluate these arguments and the evidence, determing who is credible, which characterizations of the evidence make sense, and so on. My suggestion would be that a judge with prior experience in business matters--say as a business executive, or just as an attorney who had worked on similarly complex business matters--would be in a better position to make findings of fact in this case than would be a judge with absolutely no business experience.

And to answer your question: the judge can't rely on the facts of the case to make findings of fact, because a judge has to make findings of fact precisely when there is a dispute over the facts of the case. What the judge uses in making findings of fact is EVIDENCE, and the problem they face is how to evaluate and weigh all the evidence they are given. And not to sound too philosophical, but I take it as obvious that experience helps us learn what sorts of factual conclusions we should draw from what sorts of evidence.

But let me know if you disagree with these basic premises, and if not we can consider whether someone's experiences as a member of a certain ethnic group, gender, religion, or so on, could ever be relevant in the same way.
9.27.2005 11:14am
Simon (391563) (mail) (www):
Simon D-

The simple (and rather obvious) response is that questions of reasonableness, as in, "is it reasonable to run away from a police officer even if you have done nothing wrong" are packed with all sorts of almost subconscious judgments based, at least in part, on one's own prior experiences (both as an individual and as a member of a community, whether geographic or ethnic) with the police. And I don't think it is at all controversial to suggest that those experiences vary depending on whether you're living in the west side of Chicago or in Evanston.

It's the same sort of thing as when people are much more likely to over-estimate what an "average" middle class family earns in a year. Surely entirely by coincidence that overestimation is almost always tied to the respondent's own income status.
9.27.2005 11:40am
Bryan DB:
SimonD,
Another example is the statement (I think from Scalia) that no one ever keeps anything personal in his or her car and, thus, there can be no right of privacy in a car. That's a statement from someone who has been chauffeured to work for a very long time. From someone who hasn't been: books, registration, proof of insurance, gym bag, a couple bank receipts, golf clubs, a CD collection, etc. Life experience means a lot when part of your Constitutional rights can depend on it.
9.27.2005 11:56am
JohnO (mail):
Don't any of you remember that very special "Diff'rent Strokes" episode where Willis and Arnold got into the prestigiousn private school even though they flunked the entrance exam because, as Mr. Drummond skillfully pointed out, they had different smarts based on their life experiences, such as how to take a bath when your water has been shut off (pop the fire hydrant and run out there in your underwear -- the headmistress had no idea how to solve that riddle)
9.27.2005 12:00pm
SimonD (www):
Medis,
I'll certainly yield the point that expertise or even experience in a certain field can help a Judge sort between facts in that scenario.
9.27.2005 12:35pm
SimonD (www):
Simon (391563) - why would it be, under any circumstances, reasonable to run away from a police officer? And by reasonable, I mean, in terms of not generating probable cause.
9.27.2005 12:48pm
Simon (391563) (mail) (www):
SimonD-

You've already fallen into a trap. People have an absolute right to avoid the police absent reasonable suspicion or probable cause, which is why even the Wardlow majority recognized that bright line rules could not apply in this area.

The question of whether some action constitutes reasonable suspicion is bound up in whether the action is probative of some sort of criminal activity. In some cases, avoiding the police might have such probative value. In others, perhaps, avoiding the police is probative of nothing more than a wish to avoid harassment or generalized fear of authority.
9.27.2005 1:14pm
David M. Nieporent (www):
Another example is the statement (I think from Scalia) that no one ever keeps anything personal in his or her car and, thus, there can be no right of privacy in a car. That's a statement from someone who has been chauffeured to work for a very long time.

My thought was the Supreme Court's decision in Whren, allowing pretextual traffic stops, which also smacked of someone who hadn't had to drive his (or her) own car. Anybody who drives knows that there's always a violation for which the police can pull you over.

(Of course, it works the other way, too; some of the "liberal" decisions on fourth amendment issues would come out differently if the judges knew more about the way law enforcement really worked, and knew what suspicious behavior looked like.)
9.27.2005 2:03pm
Jack John (mail):
Why doesn't Bush nominate Robert Bork?
9.27.2005 2:32pm
Bryan DB:
SimonD, you wrote:
why would it be, under any circumstances, reasonable to run away from a police officer? And by reasonable, I mean, in terms of not generating probable cause.

How about because: in a bad neighborhood, when the police show up shots are likely to, or will possibly, be fired, and one does not wish to be killed by a stray bullet?
9.27.2005 2:48pm
Challenge:
"People have an absolute right to avoid the police absent reasonable suspicion or probable cause."

People have an absolute right to run from police on the street or in their car? Oh, Volokh Conspiracy, where the finest legal minds congregate.
9.27.2005 3:51pm
SimonD (www):
You've already fallen into a trap. People have an absolute right to avoid the police absent reasonable suspicion or probable cause
What trap? If you see the police, turn around and run, in my view, that instantly gives them reason to suspect that you do not want to encounter the police.
9.27.2005 4:20pm
David M. Nieporent (www):
What trap? If you see the police, turn around and run, in my view, that instantly gives them reason to suspect that you do not want to encounter the police.

That gives them near PROOF that you do not want to encounter the police. But "not wanting to encounter the police" is not a crime. And the police need reasonable suspicion or probable cause (depending on the situation) of a crime in order to stop you.
9.27.2005 4:34pm
Simon (391563) (mail) (www):
Challenge-

I'll be glad to have Orin or one of our hosts step in and correct me, but my memory of the caselaw is exactly that: people have the right to avoid the police by whatever means they choose, so long as those means themselves aren't illegal, e.g., reckless driving, unless the police have at least reasonable suspicion to detain them. If you think that's incorrect, I'd be glad to look at any cases you can cite.

SimonD-

The point is that not wanting to encounter the police is not the same thing as reasonable suspicion. The police, at least in these circumstances, retain the burden of justifying their conduct, not the other way around.
9.27.2005 4:34pm
David Berke:
SimonD,

If I may offer an answer to your question of "why would it be, under any circumstances, reasonable to run away from a police officer? And by reasonable, I mean, in terms of not generating probable cause."

I do not claim that this is likely, but it certainly could happen with a police officer who was corrupt or abusing authority, or peculiar circumstances:

1. As you are calmly sitting on a park bench eating popcorn, a police officer pulls a gun and starts shooting at you.

2. As you are calmly sitting on a park bench, completely innocent of any wrongdoing, a police officer threatens to shoot you if you don't get into the unmarked vehicle.

3. There is an ongoing crime, say a robbery, being perpetrated by a dozen men in a local bank who appear to be armed with automatic rifles. A police car with two officers arrives on the scene and immediately begins calling for backup. You run the hell out of dodge, deciding not to get caught in the incipient gun battle.

4. You were unjustly arrested and beaten on a prior occasion by the police officer who shows up on the scene.

I'm sure I could come up with more similarly unusual scenarios. But all of these would fall to a bright line test; any bright line test which relies upon the discretion of individuals is subject to abuse.
9.27.2005 4:41pm
Cheburashka (mail):
Running from the police establishes probable cause - that isn't the same as avoiding them.

Indeed, avoiding the attention of law enforcement is one of the primary reasons that clients hire lawyers to, among other things, review their mandated public filings.

I personally try to avoid the police whenever I can. On the rare occasions that I've had to call on them in attempts to enforce my rights, I've found them uniformly incompetent, lazy, and unpleasant.
9.27.2005 4:42pm
Redman:
Bush needs a conservative who won't trigger a filibuster . . . someone from the Senate . . . someone young. John Cornyn
9.27.2005 5:22pm
NickM (mail) (www):
David Berke - your hypothetical #3 would probably be held to establish reasonable suspicion from the officer's point of view - your behavior is consistent with that of a lookout for the bank robbers.

Nick
9.27.2005 5:39pm
Medis:
SimonD,

So, assuming that specific life experiences in a certain "field" can be relevant to making factual determinations in that field, the question then becomes whether something like ethnicity or gender could ever fit into that description.

On a per se basis, I would say "no". Ethnicity and gender are descriptions of attributes, not experiences.

On the other hand, if you could tie those attributes to actual (not just hypothetical) experiences, then I don't see why it would not be potentially relevant. For example, I don't think it is enough to say that because you are of a certain gender, you necessarily have a better understanding of gender discrimination in an employment context. But if you actually faced gender discrimination in an employment context, you have had relevant experience in the field.

And that is not an idle example. O'Connor famously faced gender-discrimination when she graduated from law school, and as a result I think her experiences in that area were potentially relevant to her rightful duties as a judge with respect to gender-discrimination cases.

So, if something like that is what President Bush means by "diversity", I don't have a problem with that. In contrast, if it based just on attributes, and not actual experiences, then I agree it is not relevant per se.
9.27.2005 5:47pm
David Berke:
NickM,

Fair point. What if I modified it to read that upon the appearance of the police officers, shooting immediately began, and with the shooting, one ran away rather than answer questions or wait?
9.27.2005 6:42pm
Yankee_Mark:
But isn't the concept of probable cause supposed to be linked to an actual suspected offense. The idea that "He's running so he must be guilty of 'something'" should not be sufficient while the idea that "He's running with a TV in his arms" would appear to present a different situation entirely.
9.28.2005 1:57am
Daniel Chapman (mail):
Why someone from the Senate? Seems like something I'd avoid like the plague. It takes a certain kind of person to be elected to the senate, and that kind of person seems to make a lousy Justice.
9.28.2005 9:52am
erp (mail):
CNN has insider knowledge of White House thinking ? Nah.
9.28.2005 12:53pm