A few quick thoughts on this rainy Friday night about the Biden Supreme Court Commission . . . (and because the little ones are in the bath and my time is short, this will be *real quick*). (Mini ⚖️Commission 🧵, 1/8-ish)
I've said before that I think the idea of a Commission is a great one. I appreciate that there are those who want action now, but I think there is great sense in bringing together thoughtful and knowledgeable people to exchange ideas, come to their own conclusions & report out. 2
(And on this point – I would very gently ask the critics who are suggesting that this group was formed “in order to do X” or “not to do X” to take a (comfortable) seat. This is an independent group of scholars and practitioners and former judges. Kindly let them do their job.)
On the Commission itself, I think it's a tremendous line-up. Some of the smartest and most thoughtful people in the academy are on it. (And, if we’re being honest, most charming – I see you @WilliamBaude.) (4/8-ish)
Now I appreciate that some folks wish some others had been invited to the dinner party – I think that is in the nature of dinner parties. When I am President (apparently my senate run just took a turn, @scottjshapiro), I promise, I will put you on one!
But in the meantime, I think it is a great thing that we are reviving a rich traiditon of forming commissions. And I think we already owe a debt of gratitude to these remarkable people who are giving their time to improve the Court.
With bath time over and book time about to begin, I will leave it there. But I will return soon to offer some judicial fun facts on opinion assignment in the federal courts of appeals, and, of course, to formally announce my run for President. 😉 (Fin)
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@TheAtlantic has a new article, suggesting we should worry about the courts of appeals in 20 years b/c many Trump appointees will be Chief Judges and might manipulate panel assignments (creating more 2R/1D panels). This piece is *deeply problematic* and misreads my scholarship.🧵
The article begins by noting that in 2040 / 2041, many of the Chief Judges of the courts of appeals will be judges who were appointed by President Trump. That is an observation I and others have made. And that is important in some respects. (2/x)
As I talk about in my forthcoming article, "The Office of the Circuit Chief Judge," the Chief Judge has a number of important responsibilities. And that includes approving the calendar. This does not mean we should expect a whole swath of judges to manipulate that calendar. (3/x)
Who wants to talk about the history of law clerking? Everybody? Good. Let’s pull up a chair for a little judicial administration history….⚖️🧵 (1/x)
According to the late (Second Circuit (❤️) Judge) J. Daniel Mahoney, the "institution of clerking" (don’t you love that phrase?) began over a century ago. It is largely undisputed that the first jurist to utilize legal assistants was one Horace Gray. (2/x)
Who was Horace Gray and why did he feel the need to employ a law clerk? Well, in 1873 he became the Chief Justice of the Massachusetts Supreme Judicial Court of Errors (which could be the subject of its own twitter thread…) and found that his workload had increased considerably.
Following up on an insight from the great @joshchafetz (naturally), a quick thread on what I see as one of the blind spots of the legal academy, concerning methodologies… (🧵1/9)
I’ve always started from the position that the primary goal of the legal academy – as with the rest of the academy – is the production of knowledge. If that’s so, then it would seem we should value a number of different methodologies and approaches… (2/9)
It is important that we acquire more information about how the world works from empiricists – both quantitative and qualitative. It’s important to know how the world once worked from legal historians. (3/9)
With the Court announcing new circuit allotments today, I know what you're thinking - huh, what is the story behind these allotments? Well have I got you covered! Here’s a little judicial administration history thread (with much of the underlying info c/o @FedJudicialHist).⚖️🧵1/
Let's cast our minds back to 1789...remember that the Justices initially had responsibilities on the circuit courts. Specifically, the First Judiciary Act created 3 geographical circuits (Eastern, Middle & Southern) to which the Justices were assigned for circuit riding. 2/
A few years later (in the Act of April 13, 1791) Congress mandated that the Court issue a written order at each session, indicating the circuits to which the Justices would be assigned. Seems totally fine, right? Well... 3/
In the mood for a distraction? Yearning to learn more about en banc courts? Do I have the mini judicial administration thread for you…⚖️🧵🎃 (1 / 11-ish)
First, a word about terminology (c/o the incomparable Judge Jon O. Newman) – “en banc” can be traced back to the Latin “in banco” – the ablative of “bancus” or “bench.” JON notes that a well-regarded etymologist indefnties a use of in banco in English writing in 1645, and...(2)
...a first use of the Anglicized “in bank” in 1768 in Blackstone’s Commentaries. “In banc” apparently came into fashion in England in the 1800s. But, being the Francophile that I am, I prefer “en banc.” (3/11ish)
I appreciate that the Republicans are now trying to emphasize that filling vacancies does not equal "court packing" - but they were not always so careful with words. Back in 2013, this is precisely what some accused President Obama of doing when he filled 3 DC Circuit vacancies.
159 CONG. REC. 16,594 (2013) (statement of @JohnCornyn) (“I think the evidence is overwhelming that what the President is trying to do by nominating these unneeded judges to [the D.C. Circuit], the second most powerful court in the Nation, is he is trying to pack the court...").
@LindseyGrahamSC also referred to filling the D.C. Circuit seats as "court packing," later saying that he told Harry Reid and President Obama that "the consequence of changing the rules in the Senate to pack the court will come back to haunt them.” perma.cc/6REN-PYQL%5D