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Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."
Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.
The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.
With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.
Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.
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It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.
This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970. Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."
Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)
Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:
... I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...
One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."
("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)
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It seems fitting that
Justice John Paul Stevens chose Chattanooga, Tenn., for his first public comments since he declared that capital punishment is unconstitutional with these words in
Baze v. Rees:
[T]he imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
Chattanooga, it may be remembered, was the intended destination of nine African-American young men whom a sheriff's posse pulled off a freight train and brought to
Scottsboro, Ala., where within weeks most were convicted of capital rape (a
crime now under Supreme Court review) and sentenced to death.
On this date in 1931, eight of the condemned Scottsboro defendants were interviewed by teacher/author/activist
Hollace Ransdell, who wrote in her report, commissioned by the American Civil Liberties Union:
I visited them there in their cells in the death row on May 12, locked up two together in a cell, frightened children caught in a terrible trap without understanding what it is all about.
Cases of two Scottsboro defendants resulted in landmark Supreme Court judgments:
Powell v. Alabama (1932) established that the Constitution guarantees indigent capital defendants a right to effective appointed counsel, while
Norris v. Alabama (1935) held that the county's systematic exclusion of African-Americans from the jury pool violated the Constitution's equal-protection guarantees. No Scottsboro defendant was executed.
Alabama retains capital punishment, however, as do three of the four states in the 6th Circuit: Kentucky, home to the derby and the
Baze case; Tennessee, home to Chattanooga; and Ohio have a total of
four women and 317 men on death row (the fourth state in the circuit, Michigan, does not permit the death penalty). Thus it's worth noting that Stevens' criticism of the sentence reportedly "drew a round of applause" from the scores of federal judges and hundreds of lawyers in attendance.
Stevens indicated that even as he continues to adhere to court precedents authorizing capital punishment—indeed, he voted against capital defendants on the precise issues at bar in
Baze and in a consular-access case,
Medellín—he welcomes discussion on the ultimate question. Referring to the former decision, Chattanooga's Mercer wrote:
Justice Stevens ... conceded his opinion would 'generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.'
(Cross-posted at IntLawGrrls blog)
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Harris County, Texas, Judge
Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in
Medellín v. Texas was Article 36(b) of the 1963
Vienna Convention on Consular Relations, which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts
here). The enforceability
vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In
Medellín—involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice
John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the
Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice
Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. (
Margaret E. McGuinness'
ASIL Insight here; prior Convictions posts on the decision
here and
here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys—
Sandra Babcock, clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law,
Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice
John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in
Medellín.
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That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of
Kennedy v. Louisiana.
Yes.
Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in
Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.
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Despite the years that I've labored in the law of crime, today marks the first time I find myself on a "Convictions" list. Happily, I've assumed the label not in a court of law but in this court of public opinion just launched by Slate. The brains behind this new blog is that lawyer-journalist-veteran extraordinaire, Phillip Carter. My heartfelt thanks to Phil for this opportunity to join what promises to be a spirited online discussion on matters of law, criminal and otherwise.
A brief "Who am I?" to begin my end of this dialogue: Visiting professor of law at the University of California-Berkeley School of Law, on sabbatical from my steady gig as professor of law at the University of California-Davis School of Law (Martin Luther King Jr. Hall). Trained as a federal criminal defense lawyer, I specialize in the study of law's responses to globalization, paying particular attention to how national, regional, and international legal regimes interact as they endeavor to combat atrocity and cross-border crime. Subjects of my recent publications range from Guantánamo and Abu Ghraib to U.S. courts' consultation of extranational norms to the impartiality deficit in international criminal justice. These days I'm at work expanding an earlier biographical study of John Paul Stevens, the U.S. Supreme Court justice for whom I, along with "Convictions" colleague Deborah N. Pearlstein, had the privilege of clerking.
Along with two dozen other women who focus on international law, policy, and practice, I'm a proud member of the year-old IntLawGrrls blog, where I expect to cross-post many of my "Convictions" contributions.
Looking forward to e-talking.
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