Deep in the heart of Texas

By this time next week, I will be a Texas resident. I will be in Austin, not San Antonio, but still this is fantastic.


Grateful hat-tip to Above the Law.

Frito...Lays

Plus a shout out to Lowell "The Hammer" Stanley...I remember him from late nights watching TV in college.

Visit msnbc.com for Breaking News, World News, and News about the Economy

Why am I getting into academia?

...when I have to overcome obstacles like this:

A new poll for Fox News is a good indication of how members of the one of the nation's most important institutions operate largely out of the public's consciousness. Asked "Which one of the current U.S. Supreme Court justices do you most admire or agree with?", half of the respondents had no idea. They either did not have an answer to the question or could not name a justice. On the silver lining front, the figure was 68 percent when the question was asked six years ago.

The "winner" in the poll, conducted last week, was Justice Clarence Thomas, perhaps the court's best-known and most controversial member. But he shared the top spot (11 percent) with -- drumroll -- Sandra Day O'Connor, who left the court in 2006.

When a 50% ignorance rate is considered "good news" our democracy officially sucks.

Judge Sotomayor might be the luckiest person alive

...not just being tapped to sit on the highest court in the land. She's lucky on other counts too. Check out this Chicago Tribue story:

Last Nov. 23 she hit a jackpot in a Florida casino, collecting $8,283 in winnings while gambling with her mother.

Sotomayor listed her winnings in a recently released disclosure form outlining her 2008 finances.

She's a liberal jurist who enjoys gambling and baseball? She's right up my alley, even if she is a Yankees fan. (Though I must admit, if I were born and raised in the Bronx, I would cheer for the Bombers as well.) This should make for a potential tense October on the Court if the Yanks square off against Justice Alito's Phils or Justice Stevens' Cubbies.

I <3 Courtoons

Another epic courtoon!

One Tough Klutz

As you may have heard by now, Judge Sonia Sotomayor is in a cast and on crutches after breaking her ankle:

Sotomayor was rushing through the hallways at LaGuardia to catch her flight when she injured her foot. He said she boarded her plane despite the injury and traveled to the Old Executive Office Building next to the White House before determining that she needed treatment.

Wow! She broke her ankle, and still managed to catch her flight and went to the White House?!? I will never doubt the toughness of anyone born and raised in the Bronx. How did her Secret Service detail let her get away with taking such poor care of herself? (I'm assuming that she already has Secret Service protection - does anyone know for sure?)

Apparently, she's not the first injury-prone Democratic nominee for the high court:

In 1993, when [Stephen] Breyer was a federal appeals-court judge in Boston, he had what is certainly the most famous bicycle accident in Supreme Court history. A few days before an interview with President Clinton for the vacancy on the Court created by Byron White's resignation, Breyer crashed while trying to avoid a pedestrian near his home in Cambridge, breaking a rib and puncturing a lung. He was in pain during the meeting with the President, and it didn't go well. Breyer was appointed the following year, after Harry Blackmun retired.

Well it could be worse for the Democrats. These Republicans are much bigger klutzes:

Concering Umpires and Objectivity

Senate Republicans believe a good Supreme Court justice should behave as if he were a baseball umpire, an analogy first employed by Chief Justice Roberts during his 2005 confirmation hearings. Judge Sotomayor, in the opinion of some Republicans, runs afoul of this principle in her comments that her ethnicity and gender, in some instances, shape her view of the law. Thus, somehow Sotomayor morphs from an umpire into a player in the game.

Sen. John Cornyn criticized Judge Sotomayor on these grounds: "The focus shouldn't be on the umpire and what their sex or gender is, or ethnicity. It ought to be on the game."

This is a flawed analogy for a number of reasons, most importantly because it is a faulty representation of baseball. The New York Times recently ran a great story about Little League umpires, such as Seth Lofton:

One of the biggest challenges for Mr. Lofton, and for any umpire, is navigating the enigma of the strike zone. Although there are specific guidelines, the zone is notoriously elastic and every umpire seems to have a slightly idiosyncratic version.

Mr. Lofton admits to employing a different strike zone for younger players. “If the score is 15-0 in the second inning, you widen the strike zone for one team and narrow it for the other,” said Mr. Lofton, who has a 19-year-old daughter and a 15-year-old son, who plays football, not baseball. “You don’t want them to go home crying.”

Umpires also tend to adapt their role for younger players. They become an instructor as much as a neutral arbiter, telling batters where to stand and pitchers how not to balk. If he called every balk, Mr. Lofton said, “You’d be there all day.”

As you can see, baseball is not always black and white. I can attest to this from personal experience. When I came to the painful realization that I had no talent as a baseball player, I became a Little League umpire. Your inference about interpretation in baseball umpiring is absolutely correct. Every umpire's strike zone varies a little, and the game situation is taken into consideration when calling balls and strikes. I was instructed by my head umpire that my strike zone should be slightly wider when the batter has two strikes against him. He told me this because he thought it was important to teach young kids to be more aggressive when there are two strikes.

In fact, the rules of baseball recognize that umpires often must rely on their own judgment independent of the written text of the rule book.

"Section 9.01 (c) ‐ Each umpire has the authority to rule on any point not specifically covered in these rules."

This rule is in the rule book for both Little League and the Major Leagues. It is used very rarely - in eight seasons of umpiring I only had to invoke this rule once. But I think it is a recognition that umpiring baseball is not as simple as it appears. You can't just a computer program based on the rules of the game and expect a robot to apply the rules with exact precision. There is a gray area that
requires human judgment based on interpretive philosophies.

Let's take a more realistic view of judges and umpires. Otherwise Oliver Wendell Holmes and Bill McGowan will both rise from the graves to eject Sen. Cornyn from the game.

The case for judicial pay raises

Chief Justice Roberts has advocated for a judicial pay raise since he ascended to the high court in 2005. He has been unsuccessful thus far, but here is a new argument he can make in his case to Congress.

Federal judges deserve a pay raise because they occasionally have to something as inane as this:

[W]hile the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist...So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

Yes, you read that correct. Some freaking nutjob brought suit against Quaker Oats for false advertising in its Cap'n Crunch Crunch Berries cereal. When a trained and accomplished legal professional has to explain in a written opinion that crunch berries do not, in fact, exist, that judge deserves a raise!!!

A grateful hat tip to Lowering the Bar.

Who says justices can't have any fun?

I just finished reading a fantastically juicy book of Supreme Court gossip, called The Secret Lives of the Supreme Court. It's intellectually worthless, but nonetheless, quite entertaining.

One of the things I learned reading this book is that only one justice has a credit on IMDB (for something other than playing themselves in a documentary). Harry Blackmun had a cameo in Amistad, the 1997 film about the Supreme Court case by the same name. Justice Blackmun played Justice Joseph Story and is featured in the scene where former President John Quincy Adams, played admirably by Anthony Hopkins, pleads with the Court to free a shipload of slaves who had staged a rebellion on the high seas.

At the beginning of this clip you can clearly see Justice Blackmun sitting three from the left:

GOP gender hypocrisy

Sorry, but I'm just on a cartoon kick this week. (HT to Slate)

Another legal cartoon blog!

Freackin' awesome! Check out Legal Toast. Visit that site like Chicagoans vote, early and often.