"A class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand."

Wrote 7th Circuit Judge Diane Sykes for the 3-judge panel that threw out the case against Subway that was premised on the restaurant's promotion of "footlong" subs that were not always actually a foot long.

The litigation began after Australian teenager Matt Corby in January 2013 posted a Facebook photo showing a Footlong sandwich he bought was only 11 inches long, not 12....

By the way, Sykes "is considered to be near the top of Trump’s short list" of potential Supreme Court nominees, according to a Politico article from last January. She used to be a justice on the Wisconsin Supreme Court, and "was part of a legal movement that helped set in motion a conservative transformation of the judiciary in her home state."

7th Circuit reinstates Wisconsin voter ID law.

The Milwaukee Journal Sentinel reports.

After blogging this morning about the impending oral argument — here — I listened to it — here — all the way to the end where the state asks the court to reinstate the law today, and I look and see that, in fact, has already happened.

The MJS reports that the court issued an order allowing Wisconsin to enforce the law for the upcoming elections. The court noted the way the Wisconsin Supreme Court's decision "reduces the likelihood of irreparable injury, and...  changes the balance of equities and thus the propriety of federal injunctive relief, and... the state's probability of success on the merits."

The judges on the panel were former Wisconsin Supreme Court Justice Diane Sykes along with Frank Easterbrook and John Tinder. At the oral argument today, they were quite skeptical of the power of the district judge to reject the importance of preventing in-person voter fraud.

In the 2008 case upholding the Indiana voter ID law, Crawford, the U.S. Supreme Court had accepted that the state had an important interest in preventing fraud and in promoting public confidence. In the current case, the district judge, Lynn Adelman, held a trial and listened to an expert witness who opined that it's unlikely that anyone would engage in this kind of fraud. Those who are challenging the Wisconsin law want the appeals court to defer to his factfinding, but Sykes and Easterbrook resisted the notion that hearing opinion witnesses could enable a trial judge to supersede the opinion of the U.S. Supreme Court.

The NYT's Supreme Court writer smacks down the New Yorker's Supreme Court writer in one devastating sentence.

We've been talking (and talking and talking) about Jeffrey Toobin's toolish attack on Clarence Thomas in The New Yorker, and it's not surprising that the NYT needed to take notice and say something. So here's Adam Liptak in today's Times:

Jeffrey Toobin of The New Yorker recently called Justice Thomas’s silence “downright embarrassing.” But the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.

Pow! That's all you need. Except... Liptak has 2 problems to solve: 1. Clarence Thomas must still be portrayed in a negative light, and the shot at Toobin can't leave Thomas standing there looking good, and 2. Liptak isn't writing a blog post, which could be ideal with a 1-sentence set-up and a 1-sentence zinger, and he's got to generate more material to make this look article-y.

Liptak solves his 2 problems by replaying the old criticism of Thomas that he doesn't have as much respect for stare decisis as the other Justices. He's more willing than the others to reframe constitutional law doctrine to get to what he thinks the Constitution really means. They see more value in leaving existing doctrine as it is.

Of course, no Justice is absolutely set on keeping all the old doctrine, and no Justice, including Thomas, completely disrespects stare decisis. It's a matter of degree and judgment, but Liptak squeezes a column out of it by painting Clarence Thomas as a disrespectful kind of guy. The man laughed at stare decisis:

Here is a good way to get a belly laugh from Justice Clarence Thomas: Suggest to him that the Supreme Court’s decisions should seldom be overruled.

“You are the justice who is most willing to re-examine the court’s precedents,” Judge Diane S. Sykes told him in November, in a public conversation at an annual dinner sponsored by the Federalist Society, the conservative legal group.

Justice Thomas responded with a deadpan statement that the audience could tell was a joke. “That’s because of my affinity for stare decisis,” he said, using the Latin term for “to stand by things decided.” Then he let out a guffaw.

“Stare decisis doesn’t hold much force for you?” Judge Sykes asked.

“Oh, it sure does,” Justice Thomas responded. “But not enough to keep me from going to the Constitution.”

He was still laughing. The audience gave him a standing ovation.

Well, that took up a lot of space, the whole first screen of the column Liptak is filling. Dialogue is great for space-filling, because you get all those extra paragraph spaces. And you get all those extra clauses telling us where these words were spoken and who that interlocutor is. The smackdown of Toobin is tucked in the center of the column.

What's all this attention to Thomas laughing at stare decisis? I suspect he was laughing at the predictability of the question. Of course, he knows what they say about him. Liptak tells us that Justice Scalia is in the audience and that Justice Scalia once said "[Clarence Thomas] does not believe in stare decisis, period." I guess it was funny — perhaps you-had-to-be-there funny — that he deadpanned and then laughed. Perhaps he found it intriguing to use the word "affinity," as if he and the abstract concept (stare decisis) had a sort of personal relationship (with some complexity and not just lovey-dovey), or maybe he just meant to be sarcastic, as if to say oh, yeah, I just love stare decisis (meaning I hate it).

The bottom part of Liptak's column is about a particular case coming up for argument next week — Halliburton v. Erica P. John Fund — where a precedent should perhaps be overturned. But the case isn't about constitutional law, it's about an interpretation of the Securities Exchange Act, so it's really got nothing to do with what is distinctive about Clarence Thomas, and Liptak knows this and explains it. Legislatures can correct bad court decisions interpreting statutes, so we're not heavily reliant on the courts to fix mistakes. Liptak's explanation takes 5 paragraphs, and then there are 4 more paragraphs about why that Securities Exchange Act interpretation might be bad.

Column completed. My take on it is, Liptak needed to trounce Toobin. He knocked him out with one solid blow. Now what? Oh, I have all this other material. There's that stuff about Halliburton v. Erica P. John Fund ready to go because there's the argument next week, and Clarence Thomas can be connected to that because... oh, let's go with the old stare decisis material. The column practically writes itself. It's as if it were already written.

The much-admired November 14th interview with Clarence Thomas — now on YouTube.

Discussed previously here, linking to an Above the Law item that is now titled "Justice Clarence Thomas Speaks!" but was previously titled "Justice Clarence Thomas Speaks — And Oh What A Speech!"

I'm going to guess that the "And Oh What A Speech!" part got dropped not because ATL wanted to back away from expressing enthusiasm but because it's not a speech. It's an interview. And part of what's good about it is that the interviewer 7th Circuit Judge Diane S. Sykes is excellent. The gushing over Thomas deprived Sykes of her share of the gushing.

Now, I don't like what's left of the title — "Justice Clarence Thomas Speaks!" — because it redirects our attention to a favorite liberal media meme about Thomas: He doesn't speak at oral argument. But you can easily look up his reason for that. It's been observed and discussed many times. And Clarence Thomas frequently speaks outside of the oral argument setting, so I don't like the hey-who-knew-the-guy-could-speak snark — which is what we're left with once the "And Oh What A Speech!" is lopped off.

Anyway, the fact is, this is an excellent 50 minutes of conversation, and thanks to The Federalist Society for putting it up.

7th Circuit strikes down Wisconsin law limiting contributions to political action committees.

Milwaukee Journal Sentinel reports:

Wisconsin has long had a $10,000 limit on how much one could give each year to political action committees. But the panel said that law is not in keeping with the U.S. Supreme Court's ruling last year in the Citizens United case, which determined that corporations and unions can spend freely in elections.

"Citizens United held that independent expenditures do not pose a threat of actual or apparent quid pro quo corruption, which is the only governmental interest strong enough to justify restrictions on political speech," Judge Diane Sykes wrote for the panel.

"Accordingly, applying the $10,000 aggregate annual cap to contributions made to organizations engaged only in independent spending for political speech violates the First Amendment."

Is "The White House Butler" an outrageously racist headline?

There's been some discussion here in Madison, Wisconsin, where former Wisconsin Supreme Court Justice Louis Butler is a visiting professor at the law school, about whether that headline, on a Wall Street Journal editorial, is racist. The editors begin:

As consolation prizes go, Louis Butler can't complain. After being twice rejected by Wisconsin voters for a place on the state Supreme Court, the former judge has instead been nominated by President Obama to a lifetime seat on the federal district court. If he is confirmed, Wisconsin voters will have years to contend with the decisions of a judge they made clear they would rather live without.

Judge Butler served on the state Supreme Court for four years, enough time to have his judicial temperament grow in infamy. Having first run unsuccessfully in 2000, he was appointed by Democratic Governor Jim Doyle to the seat vacated by Justice Diane Sykes in 2004. But after serving four years, voters had seen enough of his brand of judicial philosophy, making him the first sitting justice on the Wisconsin Supreme Court in four decades to lose a retention election last year.

The editorial proceeds with a few paragraphs about how liberal Butler supposedly is and concludes: "Mr. Butler's nomination shows the dominance of liberal ideology in Mr. Obama's judicial selections, and especially a contempt for Wisconsin voters."

Now, my position is that the President of the United States, under the U.S. Constitution, has the power to appoint federal judges, and therefore he can choose liberal or conservative judges as he sees fit. If they are well enough qualified — which includes the requirement that they have a judicial temperament and are committed to legitimate legal methodology — the Senate should confirm them. This is why I supported George Bush's nomination of Samuel Alito:

Those Democrats who are already insisting that Judge Alito's record on the bench makes him unacceptable should keep in mind that someday they, too, will have a president with a Supreme Court seat to fill, and it would serve the country well if that president wasn't forced to choose only among candidates with no paper trail. To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work.

So Louis Butler has a liberal record as a judge. Obama is the President. I don't see the problem with confirmation.

But are the Wall Street Journal editors to be condemned as racist? I guess I need to nail down the point that Butler is African American. That's never mentioned in the editorial. Some of the people I have heard from are absolutely committed to the conclusion that the headline "The White House Butler" is undeniably and outrageously racist.

Now, it occurs to me that the person who came up with that headline may not even have known that Butler is black. It's not in the editorial, and I think headline writers tend to work with what's in the article. Here, the headline writer might have simply tried to come up with some play on the last name and didn't have to go very far to come up with the idea of a butler serving in the White House to insinuate that the judge would be doing Obama's bidding — carrying political ideology into the court.

The conventional image of a butler is quite white:

Those who see racism in the headline — because of the juxtaposition of "Butler" and "House"? — may perhaps be thinking of the idea of the "house negro and the field negro," as famously explained here by Malcolm X:



(Written text here.)

But there is nothing about Louis Butler's position in relation to Barack Obama that is at all like the "house negro" that Malcolm X opposed. And you'd have to stretch to say that the editorial insinuates that he is. You'd have to portray Obama as "the master" and the people of Wisconsin as the "field negroes." It's just too much to read into the editorial. You sound silly even saying it.

But that's not to say that the Wall Street Journal didn't lay a trap for Madison liberals. Maybe they knew they were putting in just enough resonance with racism to bait university types into crying racism. And if they do, as noted, those professors will sound silly, because there is nothing racial in the entire text of the editorial. And what will the people of Wisconsin think — those voters who twice rejected Louis Butler as a state judge — if they learn that Madison professors find outrageous racism in that headline?

What will the Wisconsin voters think?
	Thank you for opening my eyes about racism.
	One more reason to see Madison as a lefty enclave.
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"Wisconsin is in many ways a liberal state... but its electorate showed this week that it favors judicial restraint over activism."

John Fund at the Wall Street Journal comments on the defeat of Wisconsin Supreme Court Justice Louis Butler:

[T]he liberal majority on Wisconsin's Supreme Court [has] made so many suspect calls [beginning] immediately after Justice Diane Sykes stepped down to join a federal appeals court. Democratic Gov. Jim Doyle replaced her with Mr. Butler, a former Milwaukee judge and public defender who had lost to Ms. Sykes by a 2-1 margin in a nonpartisan race in 2000. Justice Butler soon wrote the infamous decision in Thomas v. Mallet, which created a guilty-until-proven-innocent approach to product liability. Wisconsin became the only state to adopt a "collective liability" theory in lead paint cases: Whether a company actually produced the lead paint that harmed a claimant was irrelevant to its guilt or innocence....

... Louis Butler's bid this year for a full 10-year term was bound to be contentious. Teacher unions, trial lawyers and Indian tribes (which had benefited from the court's controversial expansion of casino gambling) poured money into third-party ads attacking [his opponent] Judge Gableman. They were matched by business groups such as Wisconsin Manufacturers & Commerce, which ran ads noting that Justice Butler had earned the nickname "Loophole Louie" from fellow public defenders for winning reversals of his clients' criminal convictions. Justice Butler made the mistake of embracing the nickname, claiming it was "affectionate." Voters weren't amused.

Fund's bottom line is in favor of judicial elections as "a check on the judiciary."

If judges are umpires [as Chief Justice of the United States John Roberts once said], the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.

Wisconsin citizens seem to have demonstrated their liking for conservative state supreme court justices.

Does this mean somone can defeat Chief Justice Shirley Abrahamson when she runs for a 4th term next year?

No one has announced plans to run against Abrahamson yet, but the election is a year away. Jim Pugh, a spokesman for Wisconsin Manufacturers and Commerce, said conservative judges — Diane Sykes, Patience Roggensack, Annette Ziegler and now Michael Gableman — have won each of the past four contested elections.

Gableman was elected Tuesday, beating incumbent Justice Louis Butler, the first time a sitting Supreme Court justice has been ousted in 41 years.

But who dares to challenge the monumental Shirley Abrahamson? Now that an incumbent has lost, perhaps someone with far more weight than Gableman will step up. People around Madison are stunned — stunned enough that I can see it from Brooklyn — at Butler's loss to someone who was quite obscure:

... Gableman wasn't well known before he decided to challenge Butler in this year 's race. Hailing from a one-judge county in far northwestern Wisconsin, Gableman announced his candidacy less than six months ago and defeated Butler, of Milwaukee, by 51 percent to 49 percent

So who will take on Shirley Abrahamson? I'm not calling for her defeat, please note. I am only saying that, given the Wisconsin voters' taste for conservative judges, we deserve top-quality conservative candidates.

ADDED: Here's a map showing the voting pattern in the Butler-Gableman election:



I think this says a lot about Wisconsin. My Wisconsin is that dark blue square down at the bottom.

Michael Gableman wins Wisconsin Supreme Court seat from Louis Butler.

This was a fight known mainly for the nasty ads put out by groups supporting the candidates, but the bottom line is that the balance on the court has changed.

Here's a recent Wall Street Journal article that focused on the race:

After four years of judicial activism, one of the court's most liberal members, Justice Louis Butler, is up for re-election -- and voters get to send a message about what they expect from their judges....

The last time Badger State voters had a chance to vote on Justice Butler, in 2000, the then-Milwaukee County Municipal Judge lost by nearly 2-1 to then-state Supreme Court Justice Diane Sykes. But when a seat opened up on the high court in 2004 with the elevation of Justice Sykes to the federal Seventh Circuit Court of Appeals, Democratic Governor Jim Doyle appointed Judge Butler to the slot.

Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left. The court systematically dismantled the state's tort reform laws, eliminating caps on noneconomic damages in medical malpractice rulings. In another case, the court made Wisconsin the only state to accept "collective liability" for manufacturers in cases involving lead paint. Whether a company actually produced the paint became irrelevant to guilt or innocence.

I didn't endorse a candidate (or vote) in this election.

CORRECTION: Sorry I had Butler's first name as Michael overnight. The perils of posting at 1 a.m.

UPDATE: President Obama has nominated Louis Butler to be a district judge here in the Western District of Wisconsin.

17 cert. grants!

The Court is back!
The two most interesting issues seem to be "the constitutionality of requiring voters to show a photo ID before they may vote (Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25)" and "the constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering (Baze v. Rees, 07-5439)."

ADDED: More on the photo ID case:

In general, Republicans argue that identification laws reduce voter fraud, while Democrats oppose them on grounds that they lower the turnout among people who tend to vote Democratic.

Coincidentally or otherwise, the two Seventh Circuit judges who voted to uphold the Indiana law, Richard A. Posner and Diane S. Sykes, were put on the bench by Republican presidents (Ronald Reagan and President George W. Bush, respectively), while the one dissenting judge, Terence T. Evans, was elevated by President Clinton.

Writing for the majority, Judge Posner acknowledged that the Indiana law favors one party. “No doubt most people who don’t have Photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates,” he wrote.

But the purpose of the law is to reduce voting fraud, “and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote,” Judge Posner said. And assertions that many people will be disenfranchised, or that there is no significant voter-fraud problem in Indiana, are based on unreliable data and “may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate,” the judge held.

In dissent, Judge Evans wrote that the Indiana law imposed an unconstitutional burden on some eligible voters. “Let’s not beat around the bush,” he wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

Comprehensive coverage of the Biskupic speech and the traditional and new media panels at the 7th Circuit Conference.

Fortunately, someone was there taking complete notes and has the energy to write it all up. I'm eager to read this if only to find out what I said. I have some notes, but they're really sketchy. Actually, I have some sketches too, and I'll scan them later today. (I mean, if you're hankering for caricatures of Judge Posner and Geoffrey Stone, you will be fulfilled.) For now, let's check out what was Simon has to say -- a lot! -- about what everybody said about law and the old and new media. I'll just quote one passage to give you a taste of the detail:

[Judge Diane] Sykes steers the panel to another aspect of the impact of blogs: should judges read them? Should they cite them? Volokh chuckles that they should definitely cite them. As to reading them: he doesn't see how in this regard reading them is any different to¹ reading a newspaper. He adds that blogs can almost serve as a quasi-Amicus brief, one that bypasses the cumbersome amicus process. And as a general rule, he adds, if you get an idea from a source, any source - be it an Amicus brief, the New York Times or Sentencing Law & Policy, you should cite it. The session's only question a little later picks up on this, wondering if it's appropriate for blogs to try and influence judges. Volokh observes that logs are public information no less so than a treatise or a newspaper, they are citable and should be cited, and while it might be inappropriate to try and influence a judge in a private email conversation with them, doing so by putting forward arguments in the public record seems appropriate enough. In some senses, he says, what is legal scholarship other than an attempt to influence judges?

Bashman notes that Judges clearly read blogs: aside from the Chief Justice, who we know reads How Appealing (see above), if he points out a typographical error in an opinion on his blog, the opinion is usually corrected or temporarily withdrawn until it can be corrected within a half-hour. He's learned from this to save a copy of any opinions before pointing out particularly humorous typos.

Althouse doesn't see any impropriety per se, but observes that there's a concern that certain kinds of reporting on blogs might influence Judges to play to the audience a little; if a certain kind of opinion seems likely to get them good reviews on the blogs, there's a concern that might distort judicial behavior. "AMK," I write in the margin and underline twice. Connecting this to the subject of cameras in the court Ann mentions David Lat's "judicial superhotties" contest, and wonders what pressures it would exert on Justices for blogs to be writing catty and critical comments about the Justices' appearence. "Perhaps not every blogger would do that... But I would," she concludes, with a chuckle. (This is the day's audience laughter runner-up to Turley's line about Roberts.)

-------

¹Simon's English. And he likes footnotes. I haven't done a blog post footnote since my first year of blogging. I have a personal rule against it. But I'm breaking my rule here as a tribute to Simon for writing such a damned comprehensive post on the conference. It's really helpful. And full of good observations and insights. By the way, I deleted a footnote of his from the quoted passage. It was footnote 41! As for what Turley said about Roberts (and his family), I remembered that to blog about in my post about the media panels. It was: "They looked like they were raised hydroponically by Karl Rove."

The "new media" panel at the 7th Circuit conference.

I'm reading Christine Hurt's comments on the "new media" panel from yesterday's 7th Circuit conference, and I realize I still haven't put my comments in writing.

As Christine notes, one of the questions asked by the moderator -- Judge Diane Sykes -- was "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" I think all of us bloggers -- Christine, me, Howard Bashman, Richard Garnett, Jason Czarnezki, and Eugene Volokh -- thought that blog posts that might influence real decisions are no more worrisome than newspaper op-eds. They're published openly, so what's the problem?

[O]ne questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case. Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area. However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.

I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do. If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia. What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?

Interesting! I think people do feel threatened by blogs. Suddenly, a new set of individuals have amplified voices and a daily audience. That has always been the case with mainstream media, but this seems so strange and chaotic. You might want to tell them that since anyone can do it, it's less disturbing than mainstream media, which used to dominate and monopolize. But with blogs, there are so many of them and they might say anything about anything. They might make a point of being completely unfair. Some of the most popular blogs got popular that way. And what must be even more confounding is that it seems that in order to balance the blogs that go against you, you're supposed to blog too. It's horrifying to think that you may be required to blog. Blogging is a new kind of speech competition -- a speech rat race. What?! Now we have to keep up with the Instapundits?!

But this insinuation that the legal bloggers are unethical -- I think that's a desperate ploy to get us to stop or at least feel constrained. They feel threatened, so they'd like to make us feel threatened back. But it's such a lame argument to suggest blog posts are somehow like ex parte communications with the judge.

Anyway, I enjoyed this subject of judges reading blogs. Howard Bashman had a story of someone seeing that Chief Justice Roberts having How Appealing shamelessly displayed on his computer screen. Do they have to think now about how their opinions will play in the blogs? And is it good -- or somehow degraded -- for them to be thinking about such things? Do they suspect the other judges of writing lines that the bloggers will quote? But that's not much different from looking at what the newspapers think or seeing what lines get quoted in the newspaper, and as Eugene Volokh said on the panel, at least the bloggers link to the original texts. The newspapers choose what they want to quote or paraphrase, but then that's all the readers get. The law bloggers as a rule link to the text of the case or the transcript of the oral argument, and if we've taken something out of context, our readers can go right to the source, and they can call us on our distortions in our comments sections or on their own blogs.

I noted that the panel was heavily stocked with academic bloggers. It was a relatively sedate group, if I was the edgiest person there. I said I thought it was good for judges to read the more irreverent bloggers like David Lat because judges -- even more than law professors -- are often surrounded by people who are extremely deferential to them, and they ought to want to expose themselves to some different attitude. Law blogs are a handy way for them to transcend the cocoon.

More about the panel later, maybe. I've got a huge deadline to meet in the next 16 hours. Plus, "American Idol" is on tonight.

ADDED: It occurs to me that lawyers just don't know how to use Google or Technorati to check to see if anyone is blogging about their cases, so that the discussion really doesn't seem to be going on openly and in public. The solution is obvious: They need to learn.

Writing about the law -- traditional reporting and blogging.

Joan Biskupic gave the opening address today at the 7th Circuit Judicial Conference. Her theme was the importance of traditional journalism in covering the Supreme Court. She described sitting in the Supreme Court to hear oral arguments and the announcements of opinions. She's there. She has the sense that she is witnessing history and creating the historical record.

But a Supreme Court decision isn't an event that takes place in the courtroom. There is value to a reporter's description of how passionate a justice sounded reading from a dissenting opinion or the dubious expression on a justice's face during oral argument, but there is no reason to elevate this writing over a law professor's analysis that is based on reading opinions and argument transcripts and drawing on a long, scholarly study of the Court's work. What has changed and what is challenging traditional journalism is that, with blogs, law professors now write about the cases on the same day. We get the cases and argument transcripts right away, so no one needs to rely on a reporter who was physically present to hear something.

Why isn't it better to have a horde of legal experts receiving the same-day texts and writing whatever they think deserves to be written? One answer is that newspapers exist and must contain articles reporting the news, including the news from the courts. But newspapers don't have to exist and they don't necessarily do the best job of providing information about the law. As Biskupic said, there are very few regular reporters on the Supreme Court beat. These reporters cover all the cases, but law bloggers write about what they choose. Some of us stick to specialized areas of law. Some of us write extensively when the case deserves it and say nothing about other cases. Why is it better to have the same generalist writing about all the cases and providing a steady stream of articles of the same length and depth?

Of course, journalists portray themselves as neutral and strictly governed by professional standards. Meanwhile, bloggers can do anything. But nothing stops a blogger from reporting the work of the courts in a neutral way, following a journalistic approach. And journalists have their biases. Bloggers may provide opinionated commentary, but we may expose the places where the traditional reporters are displaying bias. Isn't it better to have more voices in the mix? There's this notion that the bloggers are distorting what used to be a purer process of delivering the news about the cases, but I think it's more accurate to say that the process only used to look pure because a few reporters were monopolizing the flow of information.

Biskupic noted that a traditional journalist may be asked to blog on her newspaper's website. She, in fact, experimented with a blog -- not visible to the public -- on the USAToday site, and she admitted she wasn't cut out for it. It was hard for her to be chatty and spontaneous, and the idea was abandoned. "I don't have a blogger personality," she said.

Later, there were two panels. The first, discussing traditional media, included David Savage and Jonathan Turley as well as Biskupic. The second, moderated by 7th Circuit judge Diane Sykes, had -- along with me -- Eugene Volokh, Christine Hurt, Richard Garnett, Jason Czarnezki, and Howard Bashman. I'll just do some highlights.

One subject on the first panel was the way some Justices go out and about doing public appearances. Biskupic said: "Justices get in trouble when they go on the road. Well, we like when they get in trouble."

Someone on the first panel complained about how boring it is to sit through confirmation hearings. Now, see, here's why blogging is better! You don't sit in the room getting bored. You're home with the TiVo, making strategic decisions about which parts to watch and commenting only where you have something to say. The reporters see the hearings as mindnumbing blather because they have to produce a news story. Something happened, so there must be an article commemorating the event. Bloggers pick what they want to talk about it. There are no particular spaces to be filled. Just a stream to carry on.

About John Roberts and his family, Turley said: "They looked like they were raised hydroponically by Karl Rove."

Savage picked up the theme of journalistic neutrality. He said journalists represent a "Green Zone" where there is no "pitch to the left or right." And he wheeled out the conventional opinion about blogs: Everyone goes to the blog that expresses the bias they like. The point here is that you need traditional media to keep people from cocooning inside their preexisting beliefs. But newspapers can be worse. People who rely on newspapers can't pop around looking for variety. They are stuck with that one reporter, decade after decade. And one of the things bloggers do is point out the slants and distortions in the newspaper articles.

I'll have to write something about the blogger panel later, because the cocktail reception is already under way, and the dinner is coming up soon. Speaking at the dinner: Justice John Paul Stevens and Solicitor General Paul Clement. So I've got to get my act together and make it to the dinner.

"The Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government."

The Milwaukee Journal Sentinel has excerpts from a speech by 7th Circuit Judge Diane Sykes, complaining about the Wisconsin Supreme Court (where she was once a justice):

In a series of landmark decisions [in the past year], the court:

• Rewrote the rational basis test for evaluating challenges to state statutes under the Wisconsin Constitution, striking down the statutory limit on non-economic damages in medical malpractice cases;

• Eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of lead-paint pigment, expanding "risk contribution" theory, a form of collective industry liability;

• Expanded the scope of the exclusionary rule under the state constitution to require suppression of physical evidence obtained as a result of law enforcement's failure to administer Miranda warnings;

• Declared a common police identification procedure inherently suggestive and the resulting identification evidence generally inadmissible in criminal prosecutions under the state constitution's due process clause;

• Invoked the court's supervisory authority over the state court system to impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded....

The terms "modesty" and "restraint"- the watchwords of today's judicial mainstream - seem to be missing from the Wisconsin Supreme Court's current vocabulary. Instead, the court has adopted a more aggressive approach to judging.

The argument for Diane Sykes as the post-Miers nominee.

From Jessica McBride:

I don't profess to understand what's going on in Bush's mind nowadays because I still can't wrap my mind around WHAT he was thinking about Miers. But here is why a Diane Sykes candidacy would be a brilliant move for Bush. The more I think about it, the more I think that Diane Sykes has a female John Roberts feel about her.

Read the whole thing! A key point: Diane Sykes is from Wisconsin:

[A] Sykes' nomination puts Wisconsin Democratic Senators Herb Kohl and Russ Feingold in a box. Wisconsin is unique in that we have TWO Democratic senators on the Senate Judiciary Committee. Both voted for Sykes [for the 7th Circuit appointment]. But they did more than that; they actively pushed her for the federal appeals court. And they were liberally quoted lavishing praise on her, saying they couldn't think of a reason to oppose her and citing the fact that she was so highly qualified blah blah blah. The humorous part is that I didn't believe Kohl and Feingold one bit that they think the Conservative Diane Sykes is the best thing since sliced bread. They just wanted Wisconsin Gov. Jim Doyle to get an appointment to the state Supreme Court. He appointed Louis Butler, who has solidified a new liberal majority on the court that is responsible for the decision on medical malpractice, among others. But now Kohl and Feingold would be in a box of their own creation. Which is deliciously humorous. What goes around comes around. They deserve it. NO RESERVATIONS about Sykes, both senators said then, according to the Milwaukee Journal Sentinel.

Nice. Many more points are made at the link. You should go there!