We don’t know yet if Judge Pryor made an unknowing blunder or a knowing choice. If the former, he should fix it forthrightly and apologize to the public and the judiciary. If the latter, he should resign.
When you welcome into the chambers of the Chief Judge of a US Court of Appeals a person nationally reported to have written, "I hate black people. Like fuck them all," you do something frightening. It is important that Judge Pryor understand that.
Judge Pryor's choice is all the more remarkable given that the person he chose, a 3L, is not the EIC of her top-50 school's main law review. Nor one of its 29 other editors. Nor an editor of any of the school's 4 other journals, either.
As a young appellate lawyer, I got the idea that one must keep one's hands on the lectern during oral arguments.
I don't remember where I got that idea, but it's fairly common advice. The idea is that OA is formal and gesturing is too casual and can be distracting. 1/
Hands dutifully on podium, my next argument or two stunk.
I'd be at the lectern giving my argument, and the voice in my head listening to myself was shouting, "hey idiot, stop the deadly monotone!" and I couldn't. I had no idea why. Nerves? It was strange and unsettling. 2/
Then I read a book called The Articulate Advocate, by Brian Johnson and Marsha Hunter. Drawing on a robust body of scientific research, they argue that gesturing with your hands and arms is important for effective communication. 3/
1. Progressives are waking up to the importance of younger nominees for federal judges.
But one reason why it's so important hasn't gotten enough attention yet: circuit chief judgeships.
2. Circuit chief judges wield real power. Their control of opinion assignments and administrative control make them the most powerful non-Scotus federal judges. (@marinklevy and Judge Newman have an article on the way in @PennLRev on the office of the chief judge.)
3. Who becomes circuit chief is complicated, but the key part is that you can't become chief once you turn 65.
In practice, this means that younger nominees are far more likely to become chief than older ones.
1. Some legal-writing advice meant esp for first-gen law students.
College taught me that the key to good writing was originality. 1L-year exams taught me that sounding like a lawyer was about spotting every issue.
To become a good legal writer, I had to unlearn both lessons.
2. Good legal writing isn't about coming up with clever new ideas or expressing them in a unique new way. And it's nothing at all like an issue-spotting final exam.
Good legal writing is about clarity.
3. Once you figure out what your most important points are, your job—your only job, more or less—is to state them as clearly as possible.
When McConnell does things like demand Ds honor R circuit blue slips in 2009 or demand Ds honor R filibusters in 2021, despite not doing those things for Ds when he was in power, the problem isn't hypocrisy. It's worse.
McConnell isn't failing to honor his own principles. McConnell's only guiding principle is "If the rules don't prevent it and it adds to GOP power, we'll do it." He's quite consistent about following it.
So when McConnell demands that Ds do this or that, he's simply try to keep Ds from using their power the way he uses his. And why not? It's always worked for him before.
A strong opinion that many of my fellow progressives may strongly disagree with: Biden should put Orin Kerr, a fairly conservative Republican, on the Ninth Circuit.
Look, I anticipate spending the next 4 years mad at the Biden admin for being too timid with judicial nominations. I firmly believe Biden needs to play by the new rules, not the old ones. The days of Ds slowly nominating a bunch of mid-50s moderate prosecutors are over.
Big-picture, Biden's job is to unskew our Trump/Leo-skewed courts. In my view that means putting a lot of brilliant, dynamic, solidly progressive 30- and 40-something black women in circuit seats.