Recess Appointments, Constitutional Hardball And The Political Question Doctrine
Posted: March 21, 2013 Filed under: Appellate Law Leave a commentThe Editorial Board of the Connecticut Law Tribune recently wrote an interesting editorial (behind the Trib’s pay wall) on the D.C. Circuit’s decision concerning the scope of the president’s authority to make “recess appointments” pursuant to Article II, section 2 of the U.S. Constitution. (“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”) The Editorial Board offers a thoughtful perspective on the decision, including a suggestion that the Supreme Court should consider the matter and affirm the decision, even though doing so could lead to governmental paralysis. I write to offer an alternative perspective based on a practice that Harvard Law School Professor Mark Tushnet describes as “constitutional hardball.” I suggest the Supreme Court treat the issue as a “political question” that is not subject to judicial review.
“Tell ’em what you’re gonna say, say it, tell ’em what you said.”
Posted: February 10, 2013 Filed under: Appellate Law, Legal Videos, Practice and Procedure Leave a comment
Robert Bork, Ctd.
Posted: January 10, 2013 Filed under: Appellate Law | Tags: borking, robert bork Leave a commentIn a previous post following the recent passing of Judge Robert Bork, I questioned whether the ferocity with which certain groups on the political spectrum attacked Bork when he was nominated to the United States Supreme Court had created an unintended backlash that has turned Supreme Court nominations into a blood sport. Read the rest of this entry »
Former Chief Justice Robert Callahan Passes Away
Posted: January 2, 2013 Filed under: Appellate Law Leave a commentFormer Connecticut Supreme Court Chief Justice Robert Callahan passed away last night at the age of 82. He served on the Supreme Court from 1985 to 1999, first as an associate justice and later as chief justice after Ellen Ash Peters took senior status.
I had the great honor of getting to know Justice Callahan during the 1990-1991 Supreme Court term, when I was a law clerk. His clerk that year was Brian Henebry, now the managing partner of Carmody & Torrance. I spent a fair amount of time in Justice Callahan’s chambers and always enjoyed speaking with him. He was warm, had a great sense of humor, loved his job, loved the Court, and loved his family. He will be missed.
Should Supreme Court Justices Be Nominated Exclusively From The Ranks Of Sitting Trial Or Appellate Judges?
Posted: December 31, 2012 Filed under: Appellate Law | Tags: andrew mcdonald 2 CommentsGovernor Malloy recently nominated his chief legal counsel, Andrew McDonald, to fill a position on the Connecticut Supreme Court created by the retirement of Justice Lubbie Harper, Jr. In a just-published column, Manchester Journal Inquirer managing editor Chris Powell raises a number of questions about McDonald’s nomination. As a former state legislator and as the governor’s legal counsel, Mr. McDonald has taken strong positions on a variety of issues, including religious liberty and freedom of information. Powell is right to identify these issues, and asking Mr. McDonald about them during his confirmation process is both legitimate and appropriate. Read the rest of this entry »
Judge Bork And The Law Of Unintended Consequences
Posted: December 19, 2012 Filed under: Appellate Law Leave a commentJudge Robert Bork died today at the age of 85. I don’t need to tell readers of this blog who he was and how he became so well-known to the general public. The sole point of this post is to ask whether the political left would have attacked him the way it did if it had been able to foresee how its excoriation of the judge following his nomination to the U.S. Supreme Court would politicize the judicial nomination process beyond imagination. Read the rest of this entry »
Judge Posner On The Costs And Benefits Of Imprisoning The Elderly
Posted: December 19, 2012 Filed under: Appellate Law, General Law Leave a commentI am not a criminal lawyer and I have no experience, education or meaningful understanding about the sentencing of convicted criminals. So I am not in a position to critique this recent concurring opinion by Judge Richard Posner of the Seventh Circuit Court of Appeals, except to say that it clearly reveals his “law and economics” approach to all things legal. Posner can turn any problem–including sentencing–into a cost/benefit analysis. Read the rest of this entry »
CBA Judicial Interview Project Goes Public!
Posted: December 17, 2012 Filed under: Appellate Law, Practice and Procedure Leave a commentIf you want to know what six present and past justices of the Connecticut Supreme Court think about effective appellate advocacy, follow this link to the Judicial Interview Project of the CBA’s Appellate Advocacy Section.
Over the past several years, section members (including yours truly) have interviewed some of our state’s most distinguished appellate jurists about the qualities that go into good appellate briefs and oral arguments. The justices were incredibly generous with their time and spoke with complete candor. These interviews are “must see TV” for any lawyer who appears before any appellate court. And thanks to the pro bono efforts of Brandon Smith Reporting, transcripts of the interviews are also available.
Supreme Court Agrees To Hear Same-Sex Marriage Cases
Posted: December 7, 2012 Filed under: Appellate Law Leave a commentThe Supreme Court has agreed to consider the constitutionality of the federal Defense of Marriage Act (“DOMA”) and California’s Proposition 8. Here is the link to the order granting the cert. petitions:
http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf
For more on this important development, click here.
Selecting Issues On Appeal
Posted: November 28, 2012 Filed under: Appellate Law, Legal Videos, Practice and Procedure Leave a commentDeciding which issues to present on appeal is one of the most important decisions an appellate lawyer must make. Here are some thoughts on the right way (and the wrong way) to select issues.
Appealingly Brief! 