The District of Columbia Court of Appeals panel — 2 Obama appointees and a Biden appointee — may favor Trump's freedom of speech and reverse the gag order in the January 6th case.

I'm reading "Appeals court judges express skepticism as Trump lawyer fights to reverse gag order in Jan. 6 case" (Law and Crime).

The Court of Appeals judges are Patricia A. Millett, Cornelia Pillard and Bradley Garcia. Millett and Pillard are Obama appointees, and Garcia is a Biden appointee.

After 8 years, we finally got our 7th Circuit judge — as the Senate votes in defiance of Tammy Baldwin.

The Wisconsin State Journal reports:

The Senate voted along party lines to confirm Milwaukee attorney Michael Brennan to fill an opening on the 7th U.S. Circuit Court of Appeals. The tally was 49-46. The seat has been open for more than eight years, the longest ever for the nation’s appellate courts.

The Senate gives lawmakers a chance to weigh in on a judicial nominee from their home state by submitting a blue-colored form called the “blue slip.” A positive blue slip signals the Senate to move forward with the nomination process. A negative blue slip, or withholding it altogether, signals a senator’s objection and almost always stalls the nomination.

Until this year, it had been nearly three decades since the Senate confirmed a judge without two positive blue slips. Brennan’s confirmation marked the second time it has happened this year. Baldwin declined to return her blue slip.

"Upworthy showed everyone that you get more pageviews with two-sentence headlines. What happened next will blow your mind."

From a Facebook discussion of the Slate article titled "Republicans Stole the Supreme Court/Democrats, don’t let them get away with it."

Should the GOP Senators get started confirming Merrick Garland before the election?

I'm reading "Flake says it might be Garland time" (at Politico). Arizona Senator Jeff Flake is saying that even before election day, perhaps the GOP-controlled Senate should move on confirming Garland. Why not wait until after the election (and avoid the in-your-face lack of confidence in Trump)?

Flake's comments come as the Senate GOP weighs how to deal with a Clinton nomination to the Supreme Court. Senate Majority Leader Mitch McConnell (R-Ky.) has ruled out taking up Garland in the lame duck. But that raises the prospect that Clinton could pick someone other than Garland, whom Republicans once praised as a consensus nominee before rolling out a blockade intended to allow voters to weigh in before the vacancy is filled.

What I read between the lines there is: If they wait until after Clinton wins, to move on Garland is to deprive the President-elect of her choice. And that would be after they said that they needed to hold off on Garland because the American people should have the choice of what sort of Supreme Court we want. If the people decide for Clinton, shouldn't Clinton be the one to make the choice? The GOP Senators have held off, in the hope that the GOP candidate might win and get to make the appointment, but if they think Trump is going to lose, their best option might be to move on Garland while they still have a shred of a chance to act as though they're just doing the normal thing of confirming the President's nominee.

Should the GOP Senate move now to confirm Garland?

Yes. Confirming Garland works better before the election, and HC is almost sure to win.

Yes. It was Obama's nomination to make and they should have confirmed him already.

No. HC is going to win and, at this point, she deserves the appointment if she does.

No. The lack of faith in Trump is wrong, he might win, and his getting the appointment is important.

No. Filling the seat has been an issue in the election, and it's too late to take that away from us.

No. There's time enough to confirm Garland if and when Hillary wins.

I don't understand this enough to want to vote in this poll but still want an option.

pollcode.com free polls

ADDED: Poll results:

"Sarah Palin Signs Deal to Preside Judge Judy-Style Over Her Own Reality TV Courtroom."

"Unlike the two famous TV judges, Palin does not have a juris doctor degree. But the source notes that the bestselling author has a variety of other qualities that make her perfectly suited to the job...."

Sure. Why not make up new ways to be a judge? This aligns nicely with the suggestions I've seen lately that the President ought to put a nonlawyer on the Supreme Court. Who trusts lawyers to make decisions? Branch out!

Oh, yeah, here it is. Glenn Reynolds said it: "Maybe it’s time to name a non-lawyer to the Supreme Court. There’s nothing in the Constitution that requires Supreme Court justices to be lawyers, and there are some pretty decent arguments as to why non-lawyers should be represented.... [L]aw is supposed to govern everyone’s actions, and everyone is supposed to understand it.... [T[here are hundreds of millions of Americans who aren’t lawyers, and surely some of them are smart enough to decide important questions...  Shouldn’t we open the court up to a little diversity?"

"Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself."

"Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue."

Said Joe Biden in June of the election year 1992, when he was chair of the Senate Judiciary Committee, and the President was the Republican George H.S. Bush.

I didn't need that quote to know that it's a partisan power struggle — wrapped up in legal mystification — and if the parties were reversed the Democratic Senators would be saying what the GOP Senators are saying and the Republican President would be saying what the Democratic President is saying.

But I think it can help some people focus on reality... even as I believe that current political interest is a far stronger force than the search for the truth.

ADDED: The NYT front page highlights the Biden remarks as a "potential disaster":



Notice how the Times assumes the reader is on Obama's side on this, as it fails to add "for Obama" or "for Democrats" to "potential disaster." The link goes to a forum titled "Battle for the Supreme Court: Our Insiders’ Guide," and with comments by various NYT reporters. Michael D. Shear says:

For President Obama, it is a potential disaster. He and his Democratic allies had been carefully executing a pressure campaign aimed at shaming Republicans for vowing to block consideration of a nominee to replace Justice Scalia, but the emergence of a 24-year-old video on Monday throws into doubt the effectiveness of that strategy.

Carl Hulse says "Democrats may have taken one on the chin over the old video of Mr. Biden," but once Obama comes out with an actual nominee, the subject will change. That seems like a concession that Democrats have lost on the abstract point that the Senate has a duty not to obstruct.

For Obama, "appointing Supreme Court Justices is a process of trying to lock outcomes in place, and we shouldn't believe [him] if in the future [he tries] to say otherwise."

A position I took on September 29, 2005.

My son John remembered that and wrote about it just now on Facebook:

I basically agreed with my mom, Ann Althouse, back when she wrote this (eerily prescient) blog post after Chief Justice Roberts was confirmed in 2005. And I still basically agree with it — which doesn't change my view that the president and the Senate should act promptly to replace Justice Scalia....

"The scenario that the left would most favor and the right most fears would be the selection of a barrier-breaking nominee who could spur liberal support and turnout in November."

"The name most frequently discussed in this situation is Attorney General Loretta Lynch, who would be the first black woman to serve on the court. A former United States attorney and Harvard Law graduate, she drew the votes of 10 Republicans when she was confirmed as attorney general."

From a NYT article "Obama’s Options for a Supreme Court Nominee, and the Potential Fallout."

I don't understand the Loretta Lynch idea. Don't we need an attorney general? Why would you vacate that position and set up another appointments problem in an election year? Why would you make a political football out of her when she's doing important work that we rely on continually?

"If anyone thinks the center of the electorate is clamoring for Obama to name another left-wing jurist they’re nuts."

"The liberal left will be as loud as they ever have been, but the reality is that the consternation will be confined to the activist left."

Said Josh Holmes, Mitch McConnell’s former chief of staff, quoted in a NYT article floating the theory that the GOP plan not to act on an Obama nominee to replace Scalia "could alienate moderate voters and imperil incumbent Republicans in swing states."

I think Holmes's assessment is correct, especially coming after years of Obama's pushing the limits of executive power (one of the issues in a pending Supreme Court case right now). Why wouldn't the Senate make its vigorous claim to power and exert it? That, to my mind, fits the most fundamental idea about separation of powers, expressed in Federalist 51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government.

ADDED: It was a creed written into the founding documents that declared the destiny of a nation: Yes, we can.

If a liberal Supreme Court Justice replaces Scalia, how many 5-4 conservative precedents will the new 5-person liberal majority overturn?

This is the question that's waking me up in the middle of the night.

I'm thinking of the cases that are coming up in my Constitutional Law classes this week, wondering which ones were decided 5-4, and imagining saying: But if Justice Scalia had died earlier and been replaced by an Obama nominee, this case would have gone the other way. So the case you have read and its inverted version, with the dissents as the majority, are essentially equally good law, distinguished not by reason and logic, but by the hardiness or fragility of the human body. Yes, you need to see that this is the precedent now, but you need also to know that it may be the other way around by the time you graduate. It's naive self-deception to learn the cases as a statement of the law. They are only temporary resting places. And yes, I've devoted my life to teaching people like you about these scurrilous writings, but they were somewhat satisfyingly anchored by this Justice whose time on the Court has spanned my teaching career, who wrote with engaging clarity and vigor. Now comes the deluge of muddled repositionings, couched in tedious verbiage and, bobbing woozily in the muddy water, you will spot a few bright-colored floaty toys, the overrulings.

But first come the articles, written by law professors, like: "How Scalia’s Death Could Shake Up Campaign Finance/It might be the opening reformers have been waiting for," by Richard L. Hasen. Maybe the new liberal majority — if it comes to be — will overturn Citizens United. And yet:

... Supreme Court justices of whatever stripe are reluctant to easily overturn precedent.... It does not look good for Supreme Court precedent to swing like a pendulum, or for lower court judges to ignore Supreme Court rulings, making the boundary between law and politics look ever more porous.

I boldfaced the word "look." I expect the justices to to tend to appearances. It won't look like a pendulum swinging or an ever more porous boundary. It also won't look readably Scaliaesque. The coherence of the changes will be explained in long, complicated opinions that no one will want to read, but that law professors will have to continue to assign and explain.

"But I hope he sends us someone smart," said Scalia to David Axelrod. "I hope he sends us Elena Kagan."

Writes Axelrod, at CNN.com today.

He's relating a conversation he had with Scalia when they happened to have been seated together at the White House Correspondents Association dinner, right after David Souter had announced his retirement.

I was surprised that a member of the court would so bluntly propose a nominee, and intrigued that it was Kagan.... Later, I learned that Scalia and Kagan were friends.... Each was a graduate of Harvard Law School and had taught at the University of Chicago Law School, though in different eras. They were of different generations, he the son of an Italian immigrant, she a Jew from New York City's left-leaning West Side. But they shared an intellectual rigor and a robust sense of humor. And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good, honest fight.

Kagan did not get that nomination, though she got the next one, when Justice John Paul Stevens retired a year later. The Souter seat went to Sonia Sotomayor... and perhaps you remember that before she was nominated, when she was thought to be the top candidate, she was openly attacked in the press as not smart enough. Jeffrey Rosen made "The Case Against Sonia Sotomayor":

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

ADDED: I assume Axelrod's story is true. He did wait to tell it until the one who could contradict it died, but what advantage is there in this that would make it seem like a lie? To my ear, it hurt Sotomayor, but Axelrod might not have thought about that. So I see an advantage in saying that the honorable conservative wanted a worthy liberal with whom to engage and therefore, perhaps, that it might honor him to be replace by a really smart person of Obama's choice.

Gov. Kasich thinks it's "kind of cool" for the people "to have sort of an indirect vote on who's going to be a Supreme Court justice."

On "Meet the Press" today, Chuck Todd pushed Ted Cruz about the GOP plan not even to "bother" considering an Obama nominee for the now-empty Scalia seat on the Court. Looking at the problem not from the perspective of the power struggle between the President and the Senate, Kasich stressed the role of the people:

GOV. JOHN KASICH: But, you know, I just think at a time when the country is so divided, it would just be great if the president didn't send somebody forward and we had an election. And then everybody would be clear about what they want in the next Supreme Court justice. 

Todd taunted him: But you could end up with a Democratic Senate and a Democratic President and then you'd get an even "more liberal justice than what President Obama might provide." Kasich stuck to his love of democracy:

GOV. JOHN KASICH: Well, but that's life. I mean, you know, then the people actually have had some say. It's really kind of a unique thing when you think about it, Chuck. It's unique to say that the public itself is going to have sort of an indirect vote on who's going to be a Supreme Court justice. I think that's kind of cool. 

Yeah, it is kind of cool. Scalia's seat is the 5th vote to be added to the liberal 4 or the conservative 4. It's cool to have a vote on precisely that.

But, as Kristen Soltis Anderson said on "Fox News Sunday":

Only 20 percent of Americans say that they think that the Supreme Court is too conservative right now... [Y]ou have 37 percent of Americans who think the court is already too liberal, in general I think conservatives are excited about having this battle moving into November.  

A question for liberals is: Why don't you want to ask the people what we want? I can think of a few answers. #1 is: We're afraid the people want to preserve the existing balance, not suddenly to shift to the left. And conservatives should needle them with that: You don't want to hear what the people want, because you know they don't want a more liberal Court.

But there are other reasons: #2: Why should liberals wait to get what they want through an election when they see a way to get what they want now? #3: The people don't really understand the workings of the Court and don't know what they really want, not like the experts, the liberal elite. #4: Constitutional law is not about the transitory preferences measured in elections but enduring values and principles enshrined in a venerable document intended to transcend political passions. #5: The presidential election is about many important issues that have been developed over the past months — immigration, ISIS, the economy, heath care — and it would be a terrible distortion to suddenly twist it into the question whether we want the Supreme Court to be majority conservative or majority liberal.

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?"

Asks John Cassidy at The New Yorker, and you might wonder why the question doesn't work the other way too: Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?

The way I asked the questions yesterday was:

Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

I gave some balance to it, a question for both parties, but you can see by the difference between my questions that the GOP is tempted in a different way, lured to move the social issues forward and alienate people. Like what happened back in the War of 2012, the War on Women.

But let's see why Cassidy thinks the GOP is exposed in a way that the Democrats are not. He's saying that political maneuvering to hold the nomination for the next President is an "apparent contravention of precedent and the U.S. Constitution." Nice use of the word "apparent" to avoid responsibility for an actual constitutional law interpretation.

But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)

Just as Donald Trump wrings political energy out of saying that Ted Cruz is not a "natural born citizen," Democrats can get something out of saying Obama has the right to fill the vacancy. The President has a power to nominate new Justices, subject to the check of the Senate, which must confirm. It's balanced power, to be played out politically.

So what if the GOP-dominated Senate plays hard? Cassidy says it will "prompt" "outrage" "among Democrats and independent-minded Americans who dislike partisan warfare." The GOP "appears to be intent on hurtling into a deep pit." Obviously, Cassidy wants to scare the Republican Senators away from pushing back, checking the President's power with their own power, but you've got to play chess games looking ahead several moves.

The GOP will also say it's partisan politics, and this argument will be boosted by the usual claim that liberal Supreme Court Justices infuse their opinions with political preference that does not belong in constitutional interpretation. They'll celebrate their dead icon Scalia, whose method of interpretation will be presented as politically neutral and legally solid. We need another Justice like him, they will say. How terrible to allow Obama to install the 5th vote that achieves a liberal majority on the Court, they will say. Not only is the delay crucial, but the next President must be a conservative, they will say.

Cassidy says:

If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race....

Small wonder, some senior Democrats already appear to be dancing a jig. 

"Dancing a jig"?! Dancing on a man's grave? Is it not obvious how the GOP will respond? That was the basis of my question yesterday: "Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives?"

The jig of raging desire is revolting to those who do not share the Democratic orientation.

ADDED: The title of this post is the title of Cassidy's essay that appears with the essay, but in the sidebar "Most Popular" list the title is "Will Scalia’s Death Boost the Democrats?" That's a much uglier image, depicting the dead body as a step stool. The Democrats are just hopping up on it. In the more sober title, the bad behavior comes from the Republicans and the Democrats stand by decorously, merely accepting what is handed to them.

AND: Here's the membership of the Senate Judiciary Committee, through which any nomination must pass. One notable face: Ted Cruz. What an opportunity for him to perform in The Theater of Proper Constitutional Interpretation. The GOP hold the majority and can calmly control the vote. The trick will be maintaining scrupulous dignity and veneration of constitutional principle. Expect Antonin Scalia to be canonized as the Saint of Constitutional Principle. The Democrats will not have him as their scary monster anymore. Dead, he's an angel. It will be hard to say his seat should be filled by someone unlike him.

That game has been played successfully: I'm thinking of the vicious fight that flared up when George H.W. Bush nominated Clarence Thomas to take the seat that Thurgood Marshall had vacated. That happened in 1991, with the presidential election a year away. Bush won that fight, even with a Democratic majority on the Judiciary Committee, but he proceeded to lose the election. Obama doesn't face reelection, so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack. I'm sure he's working on an exquisitely strategy.

ALSO: "Scalia's Grave-Dancers Deserve a Harsh Verdict," by Stephen Carter. 

How will the death of Antonin Scalia affect the presidential election?

I am absorbing the shock of the loss of Justice Scalia, who has been such an important figure in American constitutional law throughout the years. He was the first new Justice to come onto the Court in the time that I've been teaching. (I began in 1984, and he was nominated, by President Reagan, in 1986.) I've been reading his work for 30 years, and now there will be no more of his writings.

What will happen? I assume that it will be almost impossible for President Obama to get a nomination through the Senate. Is some compromise possible? Perhaps some old and widely respected, neutral-seeming judge or law professor? Do such beasts still roam Earth?

Is it unseemly to talk about the election? No, it is necessary. An old man has died. And he is a man who said, quite recently: "For the believing Christian, death is no big deal." The examinations of his life's work will need to be made, but I feel compelled to talk about what we are always talking about: the next election.

Both conservatives and liberals are launching furious thoughts and plans, including the plan to peg the other side as politicizing the Court and for showing its fighting spirit too soon, while the news of death is so fresh.

There's a GOP debate tonight. We'll get a first taste of how the new focus on the Supreme Court will work. Both parties' candidates are going to say their party needs to have the nomination, lest terrible things happen. Which party has the better argument that things will go awry without their person holding what must be seen as slot number 5 in what will make majority — a majority that will be either liberals or conservatives, depending on whether we get a liberal or conservative President?

The liberals have a great hunger after all these years with only 4, always needing to win over a swing vote. Imagine if they get it: No more of the endless puzzling over what Anthony Kennedy might think about this or that issue. The liberals will be 5, and all the arguments and opinions will be different.

If the conservatives get the nomination, we'll have more of the same, including the susceptibility that Justices appointed by a GOP President have to the lure of the liberal side of the Court, where a Justice can feel the love of the legal elite (as Justice Scalia loved to point out).

Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

ADDED: Obama needs to figure out how to present a nominee in a way that would make the Republicans look as bad as possible if they oppose and obstruct. Even if the nominee is rejected, political progress will have been made.

I predict that candidates and their supporters in both parties will overplay their hand and get into trouble. There's no way everyone can show restraint and act neutral and dignified about the Court. It's more a matter of who self-inflicts the most harm.

"Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs..."

"... we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at."

Said Judge Posner, in a piece titled "The chief justice’s dissent is heartless."



ADDED: Perhaps the heart should be ripped out. Maybe we like our judges heartless. But "heart" has been a big theme in judging judges.

At the John Roberts confirmation hearing, Senator Teddy Kennedy probed him about heart:

KENNEDY: [Y]ou were enormously complimentary about Earl Warren, about him understanding not only the law, but also understanding the importance of a chief justice, bringing other justices together in a very important way in terms of dealing with a societal issue and a question. And I think we're a fairer country and a fairer land because of this.This was really the bringing together of the mind and the heart. Oliver Wendell Holmes said, "It's dangerous to think about legal issues can be worked out like mathematics."

And another nominee who was here not too long ago [Stephen Breyer] had this to say about the head and the heart: "What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. if you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse."

How did Roberts respond?

I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives.  I always insisted when I was a lawyer about getting out into the field and seeing. If I was arguing a case involving native villages in Alaska, I went to the villages. If I was arguing a case about an assembly line, I went to the assembly line. You had to see where the case was going to have its impact and what it's impression was going to be on people. Now, none of those cases were as important as Brown v. Board of Education but the basic principle is the same: I think judge's do have to appreciate that they're dealing with real people with real cases.I think judges do have to appreciate that they're dealing with real people with real cases. We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.

Voting against Roberts, Senator Barack Obama said:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult.... [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

After Obama became President and got to choose his own Justice, his nominee, Sonia Sotomayor, disentangled herself from that heart business: 

The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law.... What judges consider is what the law says.

Obama had chosen Sotomayor after doubling down on this idea of heart, saying:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

When he said that, I blogged:

[W]e know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?

And I remember way back in 2005, when President George W. Bush was struggling to convince us that Harriet Miers belonged on the Supreme Court. "I know her; I know her heart" he said, and I blogged:

I razzed the Democrats for all the "heart" talk at the Roberts confirmation hearings, and the word makes me suspicious. Bush knows hearts (and he can look into a man's eye and see his soul). One wonders if his father believed he knew David Souter's heart...

This reminds me. I once conceived of a superhero I called Framerman:

Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman — bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies — clutches at his heart and succumbs.

Well, so, even Framerman had a heart!

"If the court puts Texas back under federal preclearance, it will be a victory for Eric Holder and the Department of Justice..."

"... which is using lawsuits in Texas and North Carolina as test cases to try to restore preclearance to those states that seem to be engaging in the most discrimination. The DOJ got lucky to draw as the trial judge in the Texas voter ID case Judge Nelva Gonzales Ramos, an Obama appointee who drafted a well-reasoned and comprehensive opinion slamming the state of Texas for discriminatory and unconstitutional conduct."

Writes lawprof Richard Hasen at Talking Points Memo.

"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).

"Are you suggesting that committing marriage fraud, which in this case meant paying $8,000 to another person and lying to immigration officials for years, is the American dream?"

Said the federal judge, to the lawyer for the former New York State assemblywoman Gabriela Rosa. The judge, Denise L. Cote, did not like the argument that Rosa had "married to obtain a green card 20 years ago when she was following the American dream and 'looking for a better life.'"

The federal Probation Department recommended no prison sentence, but Judge Cote disagreed, saying that written submissions on Ms. Rosa’s behalf included “very troubling suggestions” that the crime resulted in part because Ms. Rosa was following the American dream.

She said the suggestions were a “disservice to all our immigrants who actually try to follow the law and gain citizenship legitimately.”

Judge Cote was not appointed by Barack Obama, who, the day before Rosa's sentencing, appeared at the annual gala of the Congressional Hispanic Caucus Institute and said: "Fixing our broken immigration system is one more big thing we have to do and one more thing we will do."

Judge Cote was appointed by Bill Clinton. 

"Who do you think the president could nominate and get through the current Senate that you would rather see on the Court than me?"

That's a question Ruth Bader Ginsburg says she "asked some people, particularly the academics who said I should have stepped down last year" and "No one has given me an answer to that question."

Ginsburg knows how to frame a question, but so do I. Here's mine: When that question falls on the ears of people close enough to Ginsburg to hear it and they make no sound, what does their silence mean?

"Do you think George Bush would have been able to do this, or any white president would have been able to do this? No."

Said Georgia Rep. David Scott, a member of the Congressional Black Caucus, complaining to Valerie Jarrett about 2 of Obama's judicial nominees...

... one who once supported a state bill to keep the Confederate battle emblem a part of Georgia’s flag, and another who led the defense of the state’s photo ID law, which Scott claims is a statute designed “to keep black folks, as much as possible, from voting.”

“I asked her specifically that they should be [withdrawn]. She just didn’t say anything.... The president should have said, ‘There’s absolutely no way I want to go down in history as putting these kinds of people into federal court nominations against my own African-American [people]’ ... It’s a tragedy.... This is a terrible mistake, history will record it as such.... And it breaks my heart that it’s a black president.”