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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at
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« Remail | Main | Discussing The Supreme Court Vacancy, Take 2 »

July 5, 2005

Discussing the Supreme Court Vacancy, Take 1

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Posted by Dennis M. Kennedy

Doc Searls recently suggested that it would be helpful (or at least interesting) for lawyer bloggers to discuss the current Supreme Court vacancy and potential appointment candidates. I thought we should jump into the fray before the Mainstream Media turns the analysis of the next Supreme Court appointment over to Tom, Cruise, Barbra Streisand and other celebrity thought leaders.

First of all, we all need to appreciate how truly difficult it is for a President to make this kind of decision. If I were President, I'd be agonizing over which of my colleagues Denise, Ernie, Marty and Tom to appoint first.

However, it's not my decision to make. So, let's consider my analysis.

1. The Current Model for Selecting a Supreme Court Justice. A President searches far and wide to find a candidate who seems to match the ideology of the party in power, but who has virtually no paper trail. Many trial balloons are floated, but the eventual appointee is probably not well-known. After the nomination, a confirmation process ensues that takes the term "politics of personal destruction" to a new level. To the extent the candidate is not ideologically polarized going into the process, he or she probably is by the end of the process. After the appointee is confirmed, the political parties gear up to make the next confirmation process even more destructive.

2. The "Why Wouldn't This Approach be a Little More Reasonable?" Process. I may be a Pollyanna, but I struggle with the idea that process #1 is good for anyone and wonder if there may be a better way. Here's my modest proposal. We start to look at a Supreme Court nomination in most cases as a promotion from the Federal Courts of Appeals. At any given time, there are a number of these judges who are highly regarded for their skills, aptitude, wisdom and temperament. Simply appoint one of them. If the Republicans are in power, they get to pick one of the judges who is right of center and, if the Democrats are in power, they get to pick one of the judges is left of center. The confirmation process is then friendly and respectful and we do not expect much uproar unless an appointee has truly unique issues. As a result, we avoid a process that undercuts the authority of and respect for the Supreme Court.

In the current case, for example, here's what might happen. Justice O'Connor has resigned. To illustrate my approach with an example, I would personally find Judge Richard Posner as a perfectly reasonable choice (and he's a blogger too!). He's a Federal appellate judge, experienced, widely respected and, based on my one observation of seeing him speak, seems well-suited to be a Supreme Court judge. The Republicans are in power and, regardless of my own politics, I think it is their right to pick a judge perceived as right of center. We then have a friendly and respectful process that brings out the best aspects of Judge Posner and he quickly gets confirmed.

Now, the current vacancy raises the diversity issue and I'm quite sensitive about that issue. Any reluctance I might have about a Posner appointment in my example relates to the diversity question. However, I am OK with replacing a female justice in this case with a white male justice because Posner is not a young man and other vacancies may occur in the near term allowing the diversity issues to be addressed in the near term.

Obviously I've over-simplified the issues and examples to start the discussion and to move the focus on what might become a more civil and civilized process.

Now, believe or not, I've gotten a few questions about my own prospects for being named to this Supreme Court vacancy. I think that we all can agree that this blog post (especially what follows) should put an abrupt end to whatever slim chances I might have had. Nonetheless, let me kick in with one of those "top ten" lists that pass for political analysis these days and give you the ten reasons Dennis Kennedy won't be appointed to the Supreme Court anytime in the foreseeable future.

10. There's already a Justice Kennedy. There'd be way too much confusion.

9. There's that now-legendary Metallica blog post I wrote.

8. I'd want to do some "All Request Tuesdays" for the Supreme Court to give quick answers to burning legal questions.

7. I can't even think of one argument for not televising arguments before the Court.

6. There is such an opening to be known historically as the "Justice with a sense of humor" that I'd probably try to hard to earn the title.

5. You can't use emoticons to indicate when you are being ironic in Supreme Court opinions. I'd be worried that an ironic comment would be misinterpreted as the law of the land.

4. My motto would be: "Decide more cases. Write shorter opinions."

3. It looks like the Supreme Court spends most of its time deciding cases in areas of law that I have spent my whole career trying to avoid.

2. I wouldn't want to take a step backward in the technology I use at work.

1. There are many other legal bloggers who deserve much more than I do the honor of being the first blogger named to the Supreme Court. It'd be nice if one of them were considered for an opening in the Court one of these days.

Comments (4) + TrackBacks (0) | Category: Provocations


1. Hylton on July 6, 2005 8:53 AM writes...


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2. Ron Stutes on July 7, 2005 3:33 PM writes...

I think that your scenario #1 is the model used by Bill Clinton (and the last President Bush) to get his appointees through with relatively little conflict. It remains to be seen if this President Bush will seek to avoid conflict, when many of his supporters seem to be ready to start the Ultimate Cage Match.

Another interesting idea is that conventional wisdom would disqualify Posner because he is too old. It appears to be the new rule that an appointment seeks to have impact for at least 20 years to come. This practice, of course, raises the stakes and increases the chances that the confirmation fight will be nasty.

I second the nomination of Judge Posner for another reason - despite the fact that he is significantly more conservative than I am, he can write an opinion better than about any judge I know of.

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3. Anonymous on December 14, 2007 11:19 AM writes...


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4. Anonymous on January 12, 2008 12:39 PM writes...

Sorry :(

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