• Thank you to each and every one of you. This has been immense fun and intellectual stimulation.

    Thank you especially to Dr. Erwin Chemerinsky and Dahlia Lithwick, both wonderful friends and people.

    Lastly, GO BUY THIS BOOK! It is truly remarkable. And it is truly one that, if you care about the courts, you really want to but and read.

    Thank you one and all!

  • I see Dahlia is on to the death penalty, and as our time may be waning, I think that is a great subject. I will however, in case anyone wants to pick up, say that this is one of my questions about the “RBG should resign” argument.

    Where a president picks on the ideological spectrum is INCREDIBLY important, whether for populating District Courts, Circuit Courts, or, most obviously, the Supreme Court.

    Obama has picked a few good judges. And Sotomayor was, and is, excellent. He has, however, by and large picked milquetoast centrist uninspiring jurists that have done not nearly enough to reset the needle from the Bush/Cheney regime. I mean, Obama fought tooth and nail for Hamilton, and not for Liu.

    What, in the world, makes anybody think Obama would ever nominate a true equal replacement for RBG? That is just not in Obama’s DNA.

  • Well, I agree as to the relentless interjection of standing, immunity, qualified immunity, Twombly and even more heinous progeny, etc. I used to have a decent §1983 practice. And was fairly gutsy about taking tough cases. But that was in the 90′s. How can a lawyer that has a duty to his partners and/or family go out on those limbs now?

    You are a better man than me if you can answer.

  • Amazing that JGR did not so think in the AIJA portion. But that is an argument for another day.

  • Erwin, maybe to turn this discussion, just for one moment in a direction that, I know for a fact, many here focus on, let us talk a bit about privacy, surveillance, the Constitution and 4th Amendment thereto, and where this country will go forward from here.

    The details of any, much less all, of the various omniscient dragnet surveillance programs the US Government is running on its citizens, are grand in scope and all encompassing in design. Whether it be upholding more specific (untested) blanket assertions by the government as to individual programs that hoover our life’s data, or whether it be the out of control belligerent assertion of “state secrets” to cover up malevolent, if not blatantly illegal, acts by the government, where do you think we stand?

    Where can, and SHOULD, the courts – notably the Supreme Court – stand?

    Can the Smith v. Maryland third party doctrine hold?

  • Well, as you might remember, I had huge issue with Jonathan Cohn, Beutler and a host of others on “our side” saying the entire historical legitimacy of the Supreme Court rode on the ACA/NFIB decision. I thought it some of the most harmful ands damaging demagoguery imaginable, and fit for the proverbial opponents, and not us. I was, alas, in the minority there. But i am still ashamed liberals engaged in such craven hyperbole.

  • Dean Chemerinsky – It was mentioned above in kind of passing, but let us talk for a moment about the “Marriage Equality Cases”.

    Do you have a preference for which case/case set – out of which Circuit – becomes the stalking horse for the Supreme Court? And, if so, why?

  • Oh, I agree with all that completely. Especially on the 5th cases. Taken overall, as contrary as Scalia has been, I am just not sure - in this area - he is really worse than Breyer, and arguably better on Law + Order overall. Alito is horrible; Kagan has shown not much promise.

  • But, honestly, is that really THAT new? SCOTUS justices have been pulling facts and thought out of their nether regions for as long as they have existed. So we now get to bust them closer to the record with amici baloney…is that really indicative of a new paradigm?

  • Erwin, when it comes to criminal due process, three Amendments have been under attack for as long as i have been practicing in the field – i.e. nearly 30 years. The Fourth, Fifth and Sixth. Although the line up differs a de minimis level on different cases, it does not strike me that this is an area characterized by a strict “partisan divide”.

    In fact, I would hazard to say that the progressive scourge, Scalia, has been every bit as good on these issues, if not often better, than Justice Breyer and, recently, Justice Kagan.

    To what do you attribute this curious dichotomy, and how can we look to make fundamental due process once again a true liberal value?

  • Thank you for this question Dahlia!

  • Oh, wait, you answered that A29 to CTuttle I now see! Very good.

    And can I say, merit selection, even of Supreme Court judges works VERY well here.

  • Regarding merit selection of judges. This is a program we have had here in the (otherwise often backwards) state of AZ for a long time as to Court of Appeals Judges, Supreme Court Judges and, as to the two biggest counties, Maricopa and Pima, Superior level trial court judges. It has been a ringing success.

    But how would that translate as to SCOTUS, can you sketch that out for us?

  • Yes, I am as positive as Erwin is about the need for cameras but, sadly, as negative as you as to the likelihood.

    And, for the record, so far this has not been a partisan affair, there are stubborn libs too.

  • How do you see the mechanism of “cameras coming to the court”?

    Via fiat by SCOTUS itself (I have a hard time seeing this), Congressional action…..what?

    Do you think the quiet success of Kozinski and the 9th Circuit’s openness in this regard can be a template?

  • Okay, let us get this off our collective chests early, so the rest of the conversation will be substantive:

    Erwin, you once before, and have now again recently, called for Ruth Bader Ginsburg to step down and allow a proper Democratically appointed successor.

    I have two questions:

    1) Is it appropriate for us, as the “cognoscenti” to tell a Supreme when to stand aside?

    2) And FAR more importantly, what in the world makes you think Barack Obama would EVER appoint any nominees anywhere near the ideological liberally pure bent of Ruth B. Ginsburg?

  • Erwin and Dahlia, so glad to see you!

    Cannot say how incredibly psyched I am to have this discussion.

  • bmaz commented on the blog post The Culture of Non-Accountability, Ferguson Edition

    2014-09-27 12:42:37View | Delete

    Trial? Accountability??

    What the hell do people think is going on in McCulloch’s grand jury?? For any other human defendant under the same circumstances, this would be a 2-3 hour grand jury presentation in a county level GJ. And I am being WAY generous in giving it that much time.


    McCulloch says they are not just meeting one day a week, but far more than that. And it is STILL going to take until the end of October, if not until the newly extended last GJ day at the end of December or early January.

    I simply cannot emphasize strongly enough how insanely bullshit this is. To top it off, I will hazard a guess that McCulloch is not going to request charges via a suggested indictment submitted for the grand jury to vote on, as is done 99.99% of the time, but will instead read a boatload of confusing and cognitively inconsistent statutes to the GJ and say “Good luck folks, it is all in your hands, let me know what you want to do”!

    Again, I am seriously not kidding. This is insane. Even McCulloch admits he has NEVER done this before. So why is a murderous police officer getting such complete a grand jury presentation that NO OTHER CITIZEN HAS EVER GOTTEN??

    And, yet, both the local and national media are standing back like this is all regular and we just have to wait for the grand jury. Without uttering a peep as to how completely insane McCulloch is making the grand jury presentation. This is just nuts.

  • Little late to the show here, but for the little it is worth, Mo was a family fiend and I worked for him here in AZ for that primary. He would have made a terrific President. That said, I think he may have fallen into the same fate as Carter, though such is kind pretty impossible speculation. Was glad to see you cover that bit in your book.

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