"Law professors report with both awe and angst that A.I. apparently can earn B’s on law school assignments and even pass the bar exam."

"Legal research may soon be unimaginable without it. A.I. obviously has great potential to dramatically increase access to key information for lawyers and nonlawyers alike. But just as obviously it risks invading privacy interests and dehumanizing the law.... At least at present, studies show a persistent public perception of a 'human-A.I. fairness gap,' reflecting the view that human adjudications, for all of their flaws, are fairer than whatever the machine spits out.... Judges, for example, measure the sincerity of a defendant’s allocution at sentencing. Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation, a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.... Many appellate decisions turn on whether a lower court has abused its discretion, a standard that by its nature involves fact-specific gray areas. Others focus on open questions about how the law should develop in new areas. A.I. is based largely on existing information, which can inform but not make such decisions...."

Wrote Chief Justice John Roberts, quoted in "Chief Justice Roberts Sees Promise and Danger of A.I. in the Courts/In his year-end report, Chief Justice John G. Roberts Jr. focused on the new technology while steering clear of Supreme Court ethics and Donald J. Trump’s criminal cases" (NYT).

Speaking of humanity, remember when Senator Barack Obama voted against the confirmation of Justice John Roberts because Roberts said "he saw himself just as an umpire"?: "But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.... In... 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

By the way, in literal, as opposed to figurative, baseball, A.I. does a better job of calling balls and strikes.

But also be clear about this: Was Barack Obama wrong to nominate Merrick Garland? You must clearly say that he was or I won't "let you" be clear.

Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.

— Joe Biden (@JoeBiden) September 19, 2020

ADDED: From Barack Obama's statement on the death of Ruth Bader Ginsburg:

Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.

A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.

How does that basic principle apply to you, President Obama? You went ahead and made a nomination. Why shouldn't the new President follow his predecessor's precedent. What can you say to me that isn't "based on what’s convenient or advantageous in the moment"? It's hard to play the hypocrisy card!

AND:

.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!

— Donald J. Trump (@realDonaldTrump) September 19, 2020

ALSO: Speaking of "what's convenient or advantageous in the moment," why did Senator Kamala Harris vote against Neil Gorsuch?! Here's her statement. Can anyone seriously portray that as based on anything lofty?

Judge Gorsuch's deeply conservative views put him well outside the mainstream.... Given the controversial nature of this nominee, it is deeply unfortunate Senate Republicans took unprecedented steps to ram Judge Gorsuch through the Senate instead of the President working with Democrats and Republicans to find a consensus nominee.

That's a frank claim of power by a Senator. Obama frankly exercised the power that he had to make a nomination, and the Senate majority at the time frankly exercised the power that they had. Why should we expect the current Senate majority to do anything other than to cast the votes it has and confirm? All I can think is that they might become convinced that it will help them win Senate elections if the issue is left open for the election. That could happen, especially considering that they can still complete the appointment after the election and before the Senate and the presidency can change hands.

Will Trump and the GOP Senate get a new Justice confirmed before the election?

My first thought was that they won't even try. They'll use the open seat as a political issue — an argument why it is so important to reelect Trump and to keep a GOP majority in the Senate. And the backup plan can be that if Trump loses, they can accomplish the appointment after the election, before the new Senate and President are sworn in. So what if they said something else before the election?!

But then — in discussion here at Meadhouse — the thought came up that this election could be contested. There's so much talk about election fraud and mail-in voting, that there could be Bush v. Gore type litigation arising in various states, and the outcome of the election could well depend on that. Right now, the Supreme Court has only 8 Justices, and though there are presently 5 conservatives and only 3 liberals, a 4-4 tie is possible, with one vote switch, and Trump might want his person on the Court to lock in a conservative majority.

ADDED: The strongest argument for Trump to go right ahead and immediately nominate someone is that President Obama made a nomination in the election year of 2016 when Antonin Scalia died. Obama's nominee was not confirmed, but that was because the GOP controlled the Senate. There was nothing about Obama's lack of support in the Senate that made him more willing to put forward a nomination in an election year. He made the nomination in spite of the lack of support. Why should Trump refrain when he has Senate support?

AND: "McConnell says Senate will move to confirm Ginsburg replacement" (WaPo).

“President Trump’s nominee will receive a vote on the floor of the United States Senate," McConnell said in a statement hours after the court announced Ginsburg’s death.

Also at that link: "More than 90 minutes after news of Ginsburg’s death broke, President Trump — speaking at a campaign rally in Bemidji, Minn. — seemingly remained unaware of the news.
While closing out the rally, however, Trump alluded to the importance of the Supreme Court’s direction in the upcoming election. 'We will nominate judges and justices who interpret the Constitution as written,' Trump told the crowd, to cheers and shouts. He told his supporters that the next president 'will have anywhere from one to four' vacancies on the Supreme Court to fill. 'Think of that,' Trump said, warning that conservatives would be 'stuck' for decades with a Supreme Court they did not like if the Democrats won in the fall."

And (same link): "Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

Joe Biden ought to come right out and say who he will nominate if he is elected.

"U.S. Circuit Judge Merrick Garland’s nomination to the Supreme Court expired at noon Tuesday..."

"... clearing the way for President-elect Donald Trump to fill a vacancy Senate Republicans held open for months with an appointee championed by conservatives."

Judge Garland’s nomination languished for 293 days until it expired with the formal adjournment of the 114th Congress. Republicans said their inaction on the nomination was a way to permit voters to weigh in on the Supreme Court’s direction by electing the next president. Democrats accused Republicans of “stealing” a nomination that voters entrusted to President Barack Obama in his 2012 re-election.

No funny business of the type discussed here and here happened.

I wish Merrick Garland well in his continued service on the Court of Appeals, and I thank President Obama for not doing anything bizarre in the transition from the old to the new Congress today. I hope that's a sign of restraint that will prevail in the next 17 days until the new President arrives.

There will be 5 minutes today between the 114th Congress and the 115th Congress — will Obama try to use the recess appointment power to put Merrick Garland on the Supreme Court?

This Fox News report tells us "there’s no active chatter" on the subject, but if there were the plan, maybe there would be enforced quiet.



It's quiet. Too quiet.

The drama is over at noon.

Or is it?

Is the Supreme Court "short-handed" when it has 8 Justices and not 9?

"Short-handed" seems to be the Word of the Day as the Supreme Court begins its new term.

The Washington Post has "Supreme Court to begin new term short-handed as its ideological balance hinges on fall vote."

NPR begins its discussion of the new Supreme Court term with "It's been nearly eight months since Supreme Court Justice Antonin Scalia died unexpectedly, leaving the nation's highest court short-handed...."

The McClatchy headline is "What’s a shorthanded Supreme Court likely to do in its new term? Maybe nothing." (Nothing is better than all those things that are worse than nothing.) UPI: "Supreme Court begins term Monday shorthanded, future hinging on presidential election."

"Short-handed" implies that there is an amount of work to be distributed to members of a team, and that each person will have more work to do if there are fewer members of the team. But does the Supreme Court work like that? Each case is decided by a vote of the group. An odd number of Justices is more likely to produce a clear precedent. It's not certain, because the odd number can become even if someone recuses himself or herself. And the majorities often get together to decide the case on some minimalist, technical, or fuzzily stated ground. But the Supreme Court gets its work done whether the team consists of 9 or 8 or 7 or 6. The original number of Supreme Court Justices was 6 — an even number. And when Franklin Roosevelt offered to raise the number as high as 15, the extra help with the work was seen as an attack on the Court.

Yes, an individual Justice has the task of drafting the opinion (with the help of 4 law clerks), but the opinions have gotten longer and longer over the years, to the point where few people can tolerate reading much of the text. There's no sign that more hands are needed in the work of the Court.

There's just an open slot, and it has become a central issue in the presidential campaign. Those who want the balance on the Court to tip liberal would have liked for President Obama to have had the appointment, but the constitutional check that is Senate confirmation presented an obstacle, and the people couldn't be roused to put enough pressure on the Senate to move Obama's nomination forward. It will have to be the election that will determine which way the Court will tip. That is indeed harrowing, but not because the Court must slog on "short-handed."

The NYT avoided the buzzword of the day. It chose a more dramatic word — "crippled":  "A Crippled Supreme Court’s New Term." The text supports that drama. The editorial begins:

This is American politics in 2016: the normalization of the deeply abnormal, the collapse of customs of behavior and respect, and the creation of an environment so toxic and polarized that the nation’s leaders struggle to carry out the most basic tasks of government.

We're told that the failure to let Obama replace Scalia is "entirely contrary to the workings of a constitutional government, and it is inflicting damage on the court and the country." But what damage? 

Meanwhile, the eight justices have split evenly in several major cases, which puts off any final judgment on lawsuits that affect millions of Americans. 

The cases are still decided and the lawsuits come to an end. A split merely leaves the result in the court below where it was. By "final judgment" — which normally refers to the conclusion of the dispute between the parties to one lawsuit — the NYT seems to mean that we don't get a usable statement of the law to be applied in other cases.

The inability to issue precedent-setting rulings appears to have led the justices to grant review on fewer new cases than usual....

If the problem is a dearth of precedent-setting rulings, that explains why people have accepted waiting for the results of the election. Let us decide which way we want those precedents to go. Plenty of people would rather let President Obama nail it down: Go liberal! But the "workings of a constitutional government" — the Senate's confirmation power — have blocked that easy path to a liberal majority.

Despite the dramatic posturing of the New York Times, the nation has absorbed the question of which way the Court should go into our presidential election. There's nothing "deeply abnormal" or even shallowly abnormal about that. The people will decide.

Is Justice Thomas the one with the heart, the empathy? Let's look at the questionable material he included in that death penalty case.

Yesterday, the Supreme Court decided a case called Brumfield v. Cain:

Justice Sotomayor [joined by Justices Breyer, Ginsburg, Kagan, and Kennedy] wrote... an opinion that was focused almost exclusively upon the specific evidence about whether the convicted man, Kevan Brumfield, was intellectually disabled....

Justice Thomas wrote one dissenting opinion.... Although most of the Thomas dissenting opinion was joined by the Chief Justice and Justices Alito and Scalia, those three three did not join in a section of the Thomas opinion that described the heroic efforts of one of the murdered officer’s sons to keep the rest of the family together, and his heroic efforts on the football field as a star in college and in the pro football ranks.  Alito issued a brief separate opinion for himself and the Chief Justice, saying that the section of the Thomas opinion at issue was “inspiring,” but added that those two members of the Court did not regard that part as “essential to the legal analysis in this case.”

Here's the text of the case. Here's the material in the Thomas opinion that Alito and the Chief thought didn't belong:

"For many people, the President of the United States is the government of the United States. It’s why he gets the credit and blame for so many things..."

"... like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him."

Writes Jeffrey Toobin in The New Yorker about the King v. Burwell case.

"I love the law, intellectually. I love nutting out these problems, wrestling with these arguments."

"I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more."

Barack Obama, quoted at the end of Jeffrey Toobin's mostly routine New Yorker piece about Obama's "judicial legacy."

ADDED: What's up with the verbal phrase "to nut out"? The (unlinkable) Oxford English Dictionary designates the relevant meaning — "to work out through careful thought; to puzzle out" — as "slang" that is "chiefly Austral. and N.Z." Example: " If you have trouble nutting this maths problem out, the Australian Mathematics Competition is not for you." There are no other meanings for "nut out," though "nut" without "out" is a verb that can mean: 1. "To look for or gather nuts" (rare), 2. "To curry favour with" (obsolete), 3. "To fix, fit, or fasten by means of nuts," 4. "To castrate" or "Of a man: to have sexual intercourse with (a woman)" (U.S. slang), 5. "To butt with the head" (British slang), 6. "To kill" (Irish English slang).

"If congressional Republicans had even minimal institutional trust in the president, Mr. Obama would be able to assemble a majority to pass immigration reform."

"He can't, or won't, and so he rants. More than a few Americans watching parades pass by this weekend will recall that one man's whim as the way we make laws has no support in the U.S. Not now, not ever."

Writes Daniel Henninger in a Wall Street Journal piece. (If you don't have a subscription, google some of that text and you'll get in on a free pass.)

Henninger is more sanguine about Boehner's lawsuit than I am, but he is right, I think, to point to the Supreme Court's recent resistance to the expansion of executive power and to question what seems to be Obama's idea: If Congress won't give him want he wants, that justifies executive power to do what needs to be done.

"Did you know the Obama administration’s position has been defeated in at least 13 – thirteen — cases before the Supreme Court since January 2012 that were unanimous decisions?"

"It continued its abysmal record before the Supreme Court today with the announcement of two unanimous opinions against arguments the administration had supported....'

"It's downright appalling that the Obama administration would give in to right-wing obstruction and nominate ... an anti-choice, anti-equality candidate for the federal bench."

"Putting forward a right-wing candidate that would make George W. Bush think twice for a lifetime judicial appointment isn't horse-trading; it's caving on core progressive values, period."

ADDED: A week ago, I blogged about the Congressional Black Caucus meeting with Valerie Jarret about this and one member complaining: "Do you think George Bush would have been able to do this, or any white president would have been able to do this? No.... This is a terrible mistake, history will record it as such.... And it breaks my heart that it’s a black president."

Why is the NYT publishing yet another article on the fact that Justice Ginsburg is not resigning from the Supreme Court?

I was a bit surprised to see this article, with a big picture, at the top center of the NYT on-line front page today. It's utter non-news. So what's the point? She did an interview with Adam Liptak, but just last June, we'd heard the same thing, in the pages of the NYT, from Linda Greenhouse.

Let's look at Liptak's article as opposed to the front-page teaser, which says: "Amid calls from some liberals that she step down in time for President Obama to name her successor, Justice Ruth Bader Ginsburg said she was fully engaged in her work." Think about why that is the teaser. But Liptak is writing because he got an interview:

Obama thinks it's "important for the court to weigh in" on gay marriage.

"My hope is that the court reaches these issues," he said, alluding to the standing problems in the 2 cases, which could keep the Court from reaching the merits.

The standing problem in the DOMA case resulted from Obama's own decision not to defend the law. I'm sure Obama — as an erstwhile lawprof — knows that the Supreme Court doesn't just "weigh in" on issues. It can only decide real adversarial disputes between parties, and his refusal to defend the federal statute is the basis of the argument that this is not a "case" within the meaning of Article III of the Constitution.

"The President Barack Obama administration is claiming that authorities do not need court warrants to affix GPS devices to vehicles to monitor their every move."

"The administration maintains that position despite the Supreme Court’s infamous decision last year that concluded that attaching the GPS devices amounted to search protected by the Constitution."

The question of whether probable-cause warrants issued by a judge are needed is an open one because the high court stopped short of answering it. The court ruled in January, 2012, that attaching the device amounted to a constitutionally protected search because it was a trespass on a private vehicle.

"Obama pushing to diversify federal judiciary amid GOP delays."

Headline at The Washington Post — for article that has the top placement on the front page).

In Florida, President Obama has nominated the first openly gay black man to sit on a federal district court. In New York, he has nominated the first Asian American lesbian. And his pick for the U.S. Court of Appeals for the D.C. Circuit? The first South Asian.

Reelected with strong support from women, ethnic minorities and gays, Obama is moving quickly to change the face of the federal judiciary by the end of his second term, setting the stage for another series of drawn-out confrontations with Republicans in Congress.

This is such a ridiculous Obama puff piece. Obama pushing to diversify the federal judiciary? Like it's an Obama innovation?! I can't remember when Presidents didn't go out of their way pick federal judges from various minority groups.

WaPo is obviously using this diversity hook to criticize Republican resistance to liberal nominees. Does anyone in their right mind believe the GOP objects to these nominees because of their particular diversity factors.

Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."

She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."

But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:

“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."

But the news media got their sound bite: Unfortunate!

She was also prompted give the other side a sound bite:

Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.

"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."

Not ideal! Take that!

Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.

"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."

It's unusual... not how that time is usually spent....

I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.

Ironically, that's a civics lesson.

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

Only 15% of likely voters think the Supreme Court puts "too many limits on what the federal government can do."

Rasmussen reports.

30% think the Court doesn't put enough limits on the federal government. 40% thinks the Court gets it just right — which I presume is partly because people tend to trust the Court's authority on legal issues and partly because the Court is actually pretty good at providing just about the right degree of countermajoritarian balance.

That 40% — those who think the Court is getting it right — is about the same among Republicans, Democrats, and unaffiliated groups. But what about the rest of the Republicans, Democrats, and unaffiliated groups? Are they saying too much or not enough? Interestingly, the Republicans and unaffiliated voters are saying not enough.  The Democrats are divided into too much and not enough. All of that shows, I think that attacking the Court as "activist" isn't a very useful political move.

Thirty-nine percent (39%) of all voters trust the Supreme Court more than the other two major branches of the federal government – the presidency and Congress. Thirty percent (30%) trust the president more, while only 12% put more faith in the Congress. Nineteen percent (19%) are not sure. Those figures reflect only modest changes since May 2009.... 

Most Republicans (70%) and voters not affiliated with either of the major parties (54%) have a favorable regard for the high court. Democrats by a 50% to 42% margin do not.

But then 60% of Democrats trust the president more than the other two branches of the government. Fifty-five percent (55%) of GOP voters express more confidence in the Supreme Court, a view shared by just 19% of those in the president’s party. Among unaffiliateds, 40% trust the court more, while 27% have more confidence in the president.

Interesting how the "unaffiliateds" seem more in sync with Republicans than with Democrats.  This suggests it is not wise for Democrats to continue to denigrate the Court.

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.