Kagan Hearing Recap

The hearings on the nomination of Elena Kagan to be Associate Justice of the United States Supreme Court ended with a whimper rather than a bang.  In an op ed piece in last weekend’s Milwaukee Journal Sentinel, I reviewed the arguments put forth by her critics and found them wanting.  You can read my piece here.

My colleague Rick Esenberg had a different view of the nomination.  You can read Rick’s piece here.

It seems that the Kagan hearing failed to generate much interest.  Given the scant written record of the nominee, there was simply not much to get excited about.  She has a long and distinguished professional career, but her various positions as law clerk, executive branch policy advisor and Solicitor General all involve the application of her personal talents in the furtherance of someone else’s agenda.  As a law school dean, she conciliated between factions rather than advocating one particular viewpoint.  One looks in vain for written expressions of her personal views on controversial legal issues.

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Judges Take the Stand

Chad Oldfather has a new paper on SSRN reviewing William Domnarski’s book Federal Judges Revealed.  Not exactly the lurid exposé suggested by the title, Domnarski’s book synthesizes the insights he gained from reviewing more than 100 oral histories given by federal judges to different interviewers over a period of many years.  As Chad notes, oral histories have the potential to add much to our understanding of the judiciary, for judges are generally less guarded about their personal views and experiences in these interviews than in their written opinions.  On the other hand, as a drawback to oral history, Chad notes that there is no clearly established, rigorous methodology for taking an oral history.  That may be one reason that Domnarski’s book apparently lacks any really surprising insights into the federal judiciary.

As one of the more interesting aspects of the book, Chad highlights Domnarski’s treatment of the role of judicial clerks: “Federal Judges Revealed provides valuable testimony from judges regarding how they use their clerks, and how much they depend on them.”  For instance, one judge says, “[M]any of [my clerks] have an ability to grasp technical details and relationships that entirely escape me.  Let’s face it; I try to get clerks who are significantly brighter than I am.”  Some may find such statements about the importance of clerks a bit troubling — one might question who is really in charge, the presidentially appointed judge or the fresh-out-of-law-school clerk. 

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What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al. 

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

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