Blue Wave Breaks: Both Sides Claim Victory in Inconclusive Midterm


Jansen VanderMeulen ‘19
Editor-in-Chief

Taylor Elicegui ‘20
Features Editor

The Democrats’ predicted “Blue Wave” swept unevenly across the country last Tuesday, washing aside suburban Republicans and handing Democrats the House of Representatives, but falling short against conservative rural strongholds, especially in the Senate. With several races (mostly in California) remaining uncalled, Democrats have gained thirty-two seats in the House of Representatives, converting the Republicans’ 235-193 majority to a Democratic majority of 227-200. But Republicans swept aside several vulnerable Senate Democrats, taking seats in Florida (subject to recount), Missouri, Indiana, and North Dakota while losing Sen. Dean Heller’s seat[1] in Nevada and the seat left open by Sen. Jeff Flake’s retirement in Arizona. This two-seat gain increases Republicans’ majority in the Senate from 51-49 to 53-47.

 

Democrats also had a good night at the state level, flipping seven governorships, including the seat held for two terms by liberal nemesis Gov. Scott Walker (R-Wisc.) and the open Kansas race in which notorious immigration scourge Kris Kobach was the Republican nominee. Republicans won wide victories in the liberal bastions of Massachusetts, Maryland, and Vermont, while managing to take back the Alaska governor’s mansion from the independent who won it in 2014. Republicans hold twenty-two state trifectas (that is, control of both houses of the legislature and the governor’s seat), Democrats hold fourteen, and thirteen states still have divided government (with Mississippi too close to definitively call). According to election law expert and UVA Law Professor Michael Gilbert, the result of the governors’ races will make the redistricting process more complicated in 2020 and increases the chances states will be gerrymandered in a bipartisan fashion to favor incumbents rather than the one-sided partisan redistricting more common in recent years.

 

In Virginia, three Republican House incumbents lost: Reps. Barbara Comstock (R-Va. 10), Dave Brat (R-Va. 7), and Scott Taylor (R-Va. 2) were defeated by Democratic challengers. In the open seat covering Charlottesville vacated by Rep. Tom Garrett (R-Va. 5), journalist Leslie Cockburn (D) came up short against distillery owner Denver Riggleman (R). Cockburn carried Charlottesville and Albemarle County, but Riggleman swept to a six-point victory by carrying most of the rest of the district, which stretches from the North Carolina border to the Washington, D.C. exurbs. Meanwhile, Sen. Tim Kaine (D-Va.) swept to a fifteen-point victory over Prince William County Board of Supervisors Chairman Corey Stewart, winning commanding majorities in the Northern Virginia D.C. suburbs and flipping the traditionally Republican Richmond suburbs of Chesterfield and Henrico Counties. Stewart ran up strong totals in rural Southwest Virginia and the ruby-red Shenandoah Valley, though Kaine won the cities of Staunton, Harrisonburg, Waynesboro, Lynchburg, and Blacksburg. Stewart came under heavy criticism for calling anti-Semite Paul Nehlen his “hero” and for embracing Alabama Chief Justice Roy Moore after allegations that Moore had sexual relations with various underage girls. Meanwhile, about 40 UVA Law students got involved in monitoring polls across Virginia. Organized through the Democratic Party of Virginia, these students, including Molly Cain ’20, provided precinct information to voters, assisted those who cast provisional ballots, and kept track of wait times. Cain emphasized the importance of such work amid voter-eligibility and ballot-counting challenges across the U.S.

 

Partisan shifts across the country mirrored those of Virginia. Republicans won Senate seats in Indiana, Missouri, North Dakota, and (probably) Florida by winning huge victories in rural areas, with increased turnout from the last midterm in 2014. Democrats defeated Republican House incumbents in areas such as Oklahoma City, the Chicago, Dallas, and Houston suburbs, and exurban Los Angeles. Also of note, Democrat Lucy MacBeth defeated Rep. Karen Handel (R) in the Atlanta suburbs, after Democratic challenger Jon Ossoff lost in a 2017 special election to replace Secretary of Health and Human Services Tom Price in the same seat.

 

The night started off slow for Democrats as their candidates for Florida Governor and U.S. Senator—predicted by the polls to win by three to five points—fell behind their Republican challengers amid off-the-charts rural turnout and a weak showing among Miami Hispanics. But Democratic wins piled up; Republican House seats fell across the Upper Midwest, ensuring a Democratic majority before California had even begun to count. According to Law Democrats President George Rudebusch ’20, “What we saw in the 2018 midterms was America taking an affirmative and resounding step to the left. Although a slanted map put the Senate majority out of reach, Democrats have much to rejoice. We took control of the House for the first time in eight years. We elected more minority candidates to Congress than ever before, including a historic number of women. We netted seven new governorships. We expanded Medicaid coverage to another 300,000 Americans in Idaho, Nebraska, and Utah. We voted to increase the wages of nearly 1 million workers. And we restored voting rights for 1.4 million Americans in Florida.” Law Republicans President Max Wagner ’19 disagreed. “Last week’s midterms were a success for the Republicans. Democrats were heavy favorites to take the House. Their gains in the chamber were well within the range of a normal midterm election. Republicans have expanded their control of the Senate, which was the more important chamber for Republicans at this time.”

 

Several of the yet-undecided races have the potential to shift the narrative and analysis of the election. Eight House races and one Senate race remain too close to call. In Florida, recounts remain underway for U.S. Senator and governor. Republican Rick Scott (R) leads Sen. Bill Nelson (D) by 12,562 votes, or 0.15 percent. Professor Gilbert described the situation as feeling very similar to the 2000 Florida recount that preceded Bush v. Gore. The Florida Secretary of State ordered a machine recount by November 15, and Florida law requires a manual recount if the election is within 0.25 percent. However, Palm Beach County Supervisor of Elections already announced it is impossible for Palm Beach to finish its recount by then, drawing the ire of Scott and Republicans. Scott and others (including the President) have made unsubstantiated claims of voter fraud, while Democrats have been on the defensive about Broward and Palm Beach Counties’ lack of compliance with transparency laws that require public disclosure of election information, including number of ballots on hand. Professor Gilbert finds these unsubstantiated claims of fraud to be destructive, but said the claims are more of a reflection of who is ahead rather than a partisan position. Democrat election law attorney Marc Elias, head of Perkins Coie’s Political Law practice group, is representing the Nelson campaign and suing the Florida Secretary of State.[2] Elias has been tweeting out frequent updates; readers may follow @marceelias for the latest on his efforts. In the governor’s race, Rep. Ron DeSantis (R) remains in the lead by 33,684 votes over Tallahassee Mayor Andrew Gillum (D) and the machine recount will proceed until Thursday.

 

The midterms were largely good for UVA Law alums; of the eight who ran, at least six won.[3] Sen. Angus King ’69 (I-Me.) retained his Senate seat, defeating his challenger Eric Brakey (R) by 19.6 percentage points. Sen. Sheldon Whitehouse ’82 (D-R.I.) easily won his third term. Sen. Bill Nelson ’69 (D-Fla.) remains locked in the race with Governor Rick Scott (R). Rep. Sean Maloney ’92 (D-N.Y. 18) won his fourth term in a district that twice voted for President Obama and then went for President Trump in 2016. On Sunday, November 10, Rep. Maloney announced his candidacy to lead the DCCC. Rep. Sheila Jackson Lee ’75 (D-Tex. 18) easily kept her seat and will go on to her twelfth term. Rep. Don McEachin ’86 (D-Va. 4) won his first full term after winning the seat in a 2017 special election. In statewide races, Ken Paxton ’91 (R) won re-election as Texas’s attorney general. Jeff Bartos ’97 (R) lost his race for Pennsylvania lieutenant governor.

 

Amid the tumult and upheaval that is the era of President Donald Trump, the midterm elections provided a surprisingly predictable result: Democrats re-took the House of Representatives, just as Republicans did in President Obama’s first midterm in 2010 and in President Clinton’s first midterm in 1994. And while Republican gains in the Senate should not be discounted—especially their rural surge and their gains in important presidential states like Florida—those gains can more easily be credited to the difficult map faced by Democrats, who defended twenty-three seats to the Republicans’ ten. The partisan makeup of the new Congress will now be a mirror image of the Republican House/Democratic Senate that President Obama faced beginning in 2011, a parallel that should worry President Trump if he has grand designs on passing a legislative agenda. And civic advocates may rejoice: Midterm turnout, at close to half the eligible population, was the highest in nearly fifty years. Whatever else is true of the current era, it is not one marked by quiescence or apathy.


[1] Sen. Dean Heller (R) lost to Rep. Jacky Rosen (D). Rosen got on the Democratic Party’s list of possible Congressional candidates for Nevada’s Third District in 2015, at the suggestion of then-state district judge Elissa Cadish—Rosen was one of Cadish’s bridesmaids. Political reporter Jon Ralston said there was “something Shakespearean” at Heller losing to Rosen, considering Heller blocked Cadish’s 2013 federal judge nomination “in an extraordinary act of demagoguery and pettiness.” Jon Ralston, Predictions for Thursday, The nevada independent, (Nov. 4, 2018 1:45 AM), https://thenevadaindependent.com/article/predictions-for-tuesday.

[2]Of the twenty-six elections that have gone to a recount since 2000, only three changed the results. Elias represented the candidates in two out of those three elections.

[3]This list is the product of a good-faith, but not necessarily exhaustive, search. Please send an email to editor@lawweekly.org if you know of any UVA Law alums we missed so we can include them in next week’s newspaper. Also, many thanks to Diddy Morris for her contributions!

Changes Coming to Printing Policy: The Law Weekly Investigates


Sam Pickett ‘21
Staff Editor

It was just last March that I was touring the Law School, and while I don’t remember much from that whirlwind of a visit, I distinctly remember the tour guide pointing to the Copy Center and proclaiming that we could use it to print our course materials and resumés for free. A better, more prepared future student asked if they would print it on special resumé paper. I (unaware that special resumé paper existed but suddenly intrigued) was excited to hear the tour guide affirm that, yes, we could even print it on special resumé paper.

Fast forward to November 2018, a few months after I made the questionable decision to attend law school, I began hearing rumors that the Copy Center would change its course materials and resumé policies. Eager to use the mighty power of journalism to flex the muscles of justice, I was prepared to do some hard-core interrogation. I arranged for a meeting with Troy Dunaway,[1] the Senior Assistant Dean for Business and Finance and overseer of printing. While I entered ready to “do some investigative journalism,” I left with a better understanding of how the printing system works now and what the changes will actually look like this spring.

What does the system look like now?

Students currently receive an allocation of $25.00 printing credits per semester. At 5 cents per page, that’s 500 pages a semester, with any unused credits rolling over to the next semester. That allocation is to be used as students please, but students are not expected to use it for printing course packs or resumés through the Copy Center. Course packs are instead printed in the Copy Center, where they can be picked up (or not) by students at the beginning of each semester. This system has resulted in “hundreds of thousands of pages” being wasted each semester, according to Dunaway, with many students opting to use the sources online instead of in print. In an effort to discourage waste, to bring UVA Law in line with its T14 peers, and to be more efficient with the Center’s resources, Dunaway is making a change.

What will the system look like Spring 2019?

Dunaway will be implementing an individualized course pack delivery model. Instead of having course materials already printed out upon students’ arrival, professors will put all of their materials online and students will be responsible for ordering these materials to the Copy Center themselves through an e-ticketing tool (this sounds like a lot of work, but it takes maybe thirty seconds). The cost will be subtracted from our printing credits. The allocation of printing credits, however, will be raised significantly to account for students’ increased printing needs. Dunaway has not yet decided how much the allocation will increase during this next trial semester, but he plans to raise the allocation enough to take the “price pressure” out of students’ decisions to print.[2] In other words, Dunaway will increase the printing allocation enough to allow students to print a full course-load of class materials and still be able to fulfill their other printing needs. Dunaway and his staff will then study the data on students’ needs in an on-demand print model and adjust the allocation accordingly. In this manner, the school hopes to promote more conscientious printing among students, which can help reduce the Law School’s significant paper waste.

            Students will also be relieved to know that they will continue to be able to print resumés for free at the Copy Center. Dunaway also seemed to think that they will continue the policy of printing future 1Ls materials for them during their fall semester, a service that this 1L expressed support for.

Considerations for Students

            Dunaway repeatedly stressed the experimental nature of this upcoming semester. He invites student feedback and hopes to continue improving upon the new individualized on-demand printing model. He says IT is ready to help students and faculty and that he has received support from both SBA and the Law School’s administrators.

            That being said, students should prepare to make some changes. With the new individualized nature of printing, they will need to account for some turnaround time when they order their materials. In other words, don’t wait until thirty minutes before your class to order the materials printed and bound. And, while the increased allocation should prevent students from paying anything out of pocket next semester, this may not be the case in the future. Thus, students should be prepared to use their printing credits wisely in the future to prevent having to add additional credits to their account.


[1] Dunaway has been key in organizing a number of important changes around the law school in recent years, including free resume printing (we didn’t always have that!) and the new coffee machines with compostable coffee grounds.

[2] It is worth noting that printing credits are not real money.  The only money you pay for printing is what you spend when you go over the printing quota.

Tyler Ambrose: A Story of Destiny


Tyler D’Ambrose ‘21
Staff Editor

There are many times in one’s life where the path forward seems uncertain and every turn could be the wrong one.  But on occasion, opportunities will present themselves that compel one’s attention.  That is precisely the situation that transpired when this writer was given the opportunity to sit down with someone at UVA, with whom he shares a nearly identical name. 

           When pressed with the hard question of why his last name was missing a “D” and an apostrophe, Ambrose insightfully answered that, since he was born before me, it was I who most likely had the misspelled name.  Quick wit and insight come second-hand to Tyler Ambrose.  A UVA graduate who deferred from Harvard Law to work as the Assistant to the Dean for Special Projects, Ambrose has displayed a remarkable capacity for talent in his short professional career.  In his current role, Ambrose provides special support to Dean Goluboff.  In addition to providing briefing materials to the Dean’s guests at the Law School and helping her prepare for meetings and events, Ambrose also facilitates the Dean’s social media presence.  In speaking about Dean Goluboff, Ambrose said simply, “She’s brilliant.”  Ambrose expressed appreciation for being able to “learn a lot from her” during his time at UVA, and expressed appreciation for being exposed to the different perspectives of his co-workers.  Ambrose specifically mentioned how the Dean’s sense of humor helps to “energize the people around her.”

           Additionally, Ambrose said that UVA’s unique environment makes it a special place among the other top law schools in the country.  Before arriving at UVA, Ambrose was not sure if collegiality “was just a talking point” used by admissions to attract prospective students.  His experience here indicates otherwise.  “Most of my co-workers have been here for at least fifteen years.  I think that speaks to the environment here.”

           The interview was not without controversy, however.  Being in Charlottesville for a few years has given Ambrose a unique perspective on one of the area’s most popular restaurants: Bodo’s Bagels.  On the topic of Charlottesville eateries, Ambrose said simply, “I think bagels are overrated.”  Ambrose contended that there is an “overwhelming hype over Bodo’s.”  As he puts it, “A bagel’s a bagel’s a bagel.”  While Ambrose’s credibility on this position is without question, it remains to be seen whether the UVA student body can handle the uncomfortable veracity of this statement.

           As for Ambrose’s future prospects, there seems to be no limit to what he may accomplish.  Although he is “not sure what [his] long-term destiny is,” Ambrose expressed interest in higher-education spaces.  He hopes that eventual obtainment of a law degree will help him engage in higher education advocacy in “a more sophisticated way.”  There is no doubt that his experience at UVA will help him in this regard.  And with a name as great as his own, there is plenty of potential to be realized.

The Right Thing to Do, the Right Time to Do It: The Confirmation of Thurgood Marshall


William Fassuliotis ‘19
Guest Columnist

            On October 2, 1967, Thurgood Marshall took his place on the bench as the 86th Justice on the Supreme Court—the first Black and first non-white Justice in its 178-year history. President Lyndon Johnson appointed Marshall. After Abraham Lincoln, Johnson did more to improve the legal status of African Americans than any other President by shepherding the Civil Rights Act of 1964 and the Voting Rights Act of 1965 through Congress. In addition to advancing the cause of integration in society through legislation, integrating the Supreme Court would prove a powerful symbol confirming the gains made so far. The only problem: There was no opening on the Court at the beginning of 1967, and it looked unlikely that a vacancy would open.

            Opportunity would come soon. In late February, 1967, Justice Tom C. Clark[1] announced he would take senior status towards the end of the year. Earlier in February, Johnson announced he would appoint Ramsey Clark as Attorney General. The two Clarks shared more than surnames: Ramsey was Tom’s son. To avoid the appearance of conflict when the government argued in front of the Supreme Court, Justice Clark decided to retire at the relatively spry age of 67 so his son could advance his career. Was Ramsey Clark’s appointment a coincidence? Johnson knew that Clark would have to retire if he appointed Clark’s son, and, as my next article will discuss, this would not have been the first time Johnson schemed to create a vacancy on the Supreme Court. Manufactured or not (and I think Johnson likely did intentionally create the opening),[2] Johnson had his opening.

            As Lyndon Johnson said in his nomination remarks, Thurgood Marshall “already earned his place in history” prior to his nomination. Marshall had argued thirty-two cases before the Supreme Court, which Johnson remarked was more than all but six other men up to that point.[3] He argued both as a private litigator for the NAACP, including Smith v. Allwright (White Primary Case), Shelley v. Kraemer (racial restrictive covenants), Brown v. Board of Ed. (needs no explanation), and as the Solicitor General for the United States under Johnson.[4] President John F. Kennedy appointed him to the Second Circuit in 1961, only the second African-American Circuit Judge. Marshall was, without a doubt, one of the most experienced litigators in America at the time, and one of the most experienced in American history.[5]

            Like Justice Louis Brandeis before him, Marshall faced opposition that was overtly about his likely liberal jurisprudence, but was in large part motivated by racism. Unlike Brandeis, Marshall sat before the Senate Judiciary Committee during his confirmation hearing and was subject to Southern Senators’ snide insinuations. During the hearing, Senator Strom Thurmond (D-S.C.) (of States-Rights “Dixiecrat” fame during the 1948 election) grilled Marshall with over sixty arcane questions about the Thirteenth and Fourteenth Amendments, which Marshall often did not know the answer to. Thurmond railed against Marshall as ignorant of the drafters of the Fourteenth Amendment, Marshall’s so-called expertise. Senator Ted Kennedy ’59 interrupted Thurmond and asked if Thurmond knew who the drafters were. Flustered and ignorant himself, Thurmond said he’d let Kennedy know later. (Thurmond forgot the cardinal rule of cross-examination: never ask a question you don’t know the answer to).

            After cajoling, President Johnson, similar to President Wilson with Brandeis, convinced twenty senators to abstain, rather than vote against Marshall. It took two months, but Thurgood Marshall was confirmed by a vote of 69 in favor, 11 against.

            It is easy to understand why Marshall was chosen to be a Justice on the Supreme Court. But why was he the first African American to sit on the court? The proximate answer is racism— racism made any previous attempt dead on arrival. But why was Marshall the first? Marshall was not the only Black lawyer fighting for equality and civil rights. In fact, there was another African American who was given strong consideration before Johnson chose Marshall.

            Earlier, I noted Marshall was the second Black federal appellate judge—the first Black appellate judge was the lesser known William H. Hastie. Hastie, born in Tennessee, would graduate from Amherst as valedictorian, and Harvard Law School as member of its Law Review. Hastie would make history as the first African-American federal district judge when, in 1937, President Roosevelt appointed him as judge for the District of the Virgin Islands. After two years, Hastie resigned to become dean of Howard University’s School of Law, where one of his students was a young Thurgood Marshall. Together, Hastie and Marshall would co-argue Smith v. Allwright and Morgan v. Virginia in the Supreme Court. Hastie would again make history as the first African-American appellate and Article III judge[6] when Truman appointed him to the Third Circuit in 1949.[7]

            Hastie’s name did come up as a possible nominee for the Supreme Court, including during the Eisenhower administration. Hastie’s best opportunity came when Justice Charles Evans Whittaker retired early in President Kennedy’s administration.[8] Hastie was the first choice of Robert Kennedy, then serving as Attorney General under his brother.[9] However, Hastie was not chosen because there were fears that Hastie, outside of racial questions, was too conservative. Kennedy’s Assistant Attorney General for the Office of Legal Counsel, Nicholas Katzenbach (who would become Deputy Attorney General after Byron White’s confirmation) asked Chief Justice Warren about his thoughts on Hastie. Warren was adamantly opposed, telling Katzenbach that Hastie is “not a liberal, and he’ll be opposed to all the measures that we are interested in.” Robert Kennedy called Justice William O. Douglas to ask about Hastie, who responded Hastie would be “just one more vote for [Justice Felix] Frankfurter,”[10] Douglas’s chief ideological opponent and the Court’s leading conservative at the time. (A sign of the times—Justices felt no compulsion to avoid advising members of the executive branch.) Not wanting to risk a conservative Justice, and wary about whether an African American could be confirmed, Kennedy ended up appointing Byron White to the seat.[11]

            And so history goes, contingent on choices we could easily imagine going different ways. But Thurgood Marshall would be the first African-American Justice, because as President Johnson said when explaining the choice, it was “the right thing to do, the right time to do it, the right man and the right place.”

            Next time: Johnson’s judicial blunders and the beginning of the end of the Warren Court.


[1] A Truman appointee in 1949 from Texas, Justice Clark had a fair amount of correspondence with Marshall earlier in their careers. Clark was the Attorney General from 1945 to 1949, where he prosecuted civil rights violations more vigorously than any of his predecessors since reconstruction. Marshall, as head of the NAACP’s legal arm, would write to suggest where the federal government could intervene more or better. When Clark was nominated for the Supreme Court, Marshall wrote in support for Clark.

[2] E.g. https://www.washingtonpost.com/news/retropolis/wp/2017/10/02/lbjs-shrewd-moves-to-make-thurgood-marshall-the-nations-first-black-supreme-court-justice/?utm_term=.b41c060dd5f0
I have not found a source attempting to disprove Johnson’s purported politicking, but enough sources about the nomination do not even bring up this amazing, must-say, scenario that I am hesitant to say it certainly happened.

[3] Chief Justice Roberts now holds the record for most Supreme Court arguments prior to becoming a Justice, arguing 39 and winning 25 of them.

[4] Bizarrely, Marshall’s record is contested. Most sources, such as his New York Times obituary, say he argued fourteen for the NAACP and eighteen for the government, winning twenty-nine of thirty-two. But a minority of sources say he argued nineteen for the government, winning fourteen. Compare Randall W. Bland’s Justice Thurgood Marshall (nineteen for government) with https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/bday/0702.html (eighteen). I have no idea who is right as finding this data is difficult.

[5] Absolutely fascinating to me, Marshall was involved in helping Kenya draft its first post-colonial constitution. While not all of his suggestions were incorporated in the final constitution, his biggest contribution was a “just-compensations”-like takings provision to protect the white minority from land confiscation. “I said that I was going to give the white Kenyan the same protection I would give a Negro in Mississippi. … They can take your land, but they had to pay you. And if they don’t give you the price you like, you can file [suit].”

[6] As a territory, the District Court for the Virgin Islands is an Article IV court, the chief difference being that its Judges do not have lifetime tenure.

[7] The Third Circuit hears appeals from the Virgin Islands. Hastie was also the Virgin Islands’ governor from 1946-1949, also appointed by Truman.

[8] Justice Charles Evans Whittaker is a cautionary tale against being promoted beyond one’s capabilities. A stellar district judge (appointed in 1954), but a merely good appellate judge (appointed in 1956), Whittaker was overmatched as a justice (appointed in 1957). After vacillating over Baker v. Carr, Whittaker had a nervous breakdown, prompting his retirement at the age of 61 and after only five years on the Court.

[9] This narrative predominantly comes from Dennis J. Hutchinson’s “The Ideal New Frontier Judge” in The Supreme Court Review Vol. 1997, pp. 373-402.

[10] Frankfurter was known for his judicial restraint in all fields, economic and social, and viewed the protections of the Bill of Rights as more limited than most of the rest of the Warren Court did.

[11] The choice is ironic as White, while by no means doctrinaire, would join or author a fair share of “conservative” opinions.

ANG's Guide to the PILA Live Auction


ANG
Commentator Without Portfolio

Editor’s Note: The PILA Live Auction will be held this Thursday, November 8 from 5:30 to 8 p.m. in Caplin Pavilion. Wine and light refreshments will be served and the professor whom the Student Body selects for the honor will be pied in the face. The Silent Auction will be held on Saturday, November 10, at 9 p.m. at the Omni Hotel. Tickets for the Silent Auction are $35 and will be on sale in Hunton & Williams Hall from 10 a.m. to 2 p.m. through Wednesday.

ANG looks forward to spending the piles and piles of money ANG earned[1] over the summer on recovering from the stresses of 3L with a one-week stay in a Lake Tahoe vacation home with five of ANG’s nearest and dearest (starting bid of $2,000). Due to the limited acquaintanceship ANG possesses after umpteen years at this institution of highest education and ANG’s resultant lack of choice in identifying those dear ones, ANG is certain that certain of ANG’s companions will compel ANG to do things like hike, ski, or “participate in water-based activities” (whatever those may be).

Obviously, this will be exhausting. ANG will have to immediately take a truly relaxing vacay south of the border . . . the question to answer is: a one-week stay in a beachfront condo in Cozumel with one or two of ANG’s laziest (read: favorite) friends (starting bid of $810) or a three-night stay at Hacienda Guachipelin in Rincon de La Vieja Volcano, Guanacaste, Costa Rica with ANG’s beloved, who will get to enjoy both One-Day Adventure Passes while ANG chillaxes (starting bid TBA)? Or does ANG just optimize the utility derived from that one southbound airfare and go for both?

Upon return to los Estados Unidos, ANG expects ANG will need opportunity to reacclimate to the Virginia climes, rendering a weekend stay at Camp House in Flint Hill, Va. an absolute necessity (starting bid of $500). Add on to that a wine BASKET (not just a bottle, folks!) and a gift card to a local restaurant? ANG might not bother coming back to Charlottesville.

In the unlikely event ANG makes it back from these adventures and deems there to be any hope in schmoozing professors for a passing grade, ANG will be looking for companionship[2] at the following competitive events. These include a choice between Poker Night for Five with Professors Bowers, Gilbert and Schwartzman or Poker Night for Four with Professor Ferzan (both with a starting bid of $200). Does one of these sound like a better deal than the other??

For when ANG is pretending to be an educated and/or refined individual like ANG’s mom always hoped ANG would grow up to be before she relinquished this pipe dream, ANG plans to bid on and win Pub Trivia for between five and nine people with Professor Brady (starting bid of $300). No word on how prominently Kelo will feature in the question set. If “physical activity” is more where your skills lie, ANG will need the assistance of seven individuals for Dinner and Croquet for Eight with Professor Geis (those seven can figure out croquet and ANG will eat everyone’s dinner; ANG was banned from any mallet-based sports after an incident that does not bear going into).

Last but not least, ANG will bid as high as ANG needs to[3] in order to win the Ice Cream Social with Dean Goluboff and Professor Schragger (starting bid of $200 but real talk that’s not a reasonable estimate of the value). This is still a competitive event; if you haven’t seen ANG eat ice cream then you haven’t seen ice cream eaten. Period. ANG is listening if anyone wants to form an alliance in bidding / financing this event.

For those interested in consolation prizes and/or making a fierce comeback in the bidding wars during the silent auction on Saturday night, ANG understands that there will be some truly excellent salted chocolate-chunk cookies on the table, among other delectables (as well as other, non-edible items). Let us pray that if any of the above prizes are snatched out from under ANG, ANG will at least be able to eat ANG’s sorrows away in gourmet style.


[1] Making sure all the real associates were eligible for free lunch on the firm was a full-time job, yo.

[2] Applicants for the position of “companion” must provide evidence of winning tendencies in the selected event. ANG can’t be a champion at everything and gets by only with a “little” help from ANG’s friends.

[3] COME AT ME, UVA LAW BROS!!!

Fake News: 1Ls Resent All Who Dared Compare This Place to Disneyland

“First of all, I haven’t seen a single [expletive] teacup,” observes one first-year student


Kristen Ridgway ‘19
Guest Satirist

CHARLOTTESVILLE­ – As exams approach, first-year students at the purported “Disneyland of Law Schools” are searching for secluded locations to cry on grounds, having concluded that law school is nothing more than an absolute anxiety-ridden hellscape.

“When I was choosing among schools, the whole ‘Disneyland of law schools’ thing tipped the scales in favor of UVA,” said Colin Smith ’21, who recently broke a blood vessel in his eye after watching an Instagram story in which a section mate showed off her nearly-finished outlines. “If this is Disneyland, my god… what is Harvard like?!”

In lieu of regularly-scheduled appointments, the entire staff of the Office of Career Services has fled Charlottesville for the remainder of the semester, leaving behind nothing but a single copy of the school's ABA Employment Summary Report that indicates average employment levels of 97.4 percent. In the margins, a handwritten message apparently scrawled by a staff member reads, "Seriously, what more could you possibly want from us?" 

Dean Risa Goluboff expressed a lack of sympathy for those who believed any law school on earth would be anything like Disneyland, remarking, “I think it's pretty obvious Mickey Mouse would have gone to Darden.”

The Admissions team will continue to conduct tours of the law school through November 30 as scheduled, but has asked first-year students to muffle their sobs in the presence of prospective applicants.

----

Kristen Ridgway

kar5zn@virginia.edu

Law and Tech Collide at Meta CTF Cybersecurity Event


Conor Hargen ‘20
Guest Contributor

On a recent Saturday, a group of about 300 people gathered at UVA’s Darden School of Business. Some were accomplished professionals with decades of experience; others came armed with only a keen interest to learn. Regardless, everyone had one thing in common: a passion for cybersecurity.

 

On October 20, students, government officials, private attorneys, and tech professionals convened to take part in Meta CTF, a cyber capture-the-flag competition addressing challenges in cybersecurity and data protection. Students met with leading attorneys, responded to simulated data breaches, and discussed cybersecurity issues with industry professionals.

 

Through this event, students learned about crisis response, legal exposure, and the tools companies utilize to counter malicious hackers. One problem involved a hypothetical ransomware attack in which hackers encrypted sensitive files from a corporation and demanded money in exchange for the decryption key. These problems required students to make business decisions, determine civil and criminal liability, comply with regulations, and recommend policy responses.

 

John Woods Jr. ’95 and David Lashway, Co-Global Heads of Cyber Security practice for Baker McKenzie, helped advise students during the event. Woods has spent years leading investigative and legal responses to some of the biggest data breaches in the country and advising clients on how to avoid them. Lashway counsels Fortune 100 companies on data security and network breaches, in addition to serving as lead counsel to the cyber investigation firm in the 2016 U.S. presidential election hack.

 

Over lunch, Woods and Lashway shared insights from their years at the forefront of cybersecurity law. They stressed the importance of giving clients a comprehensive approach to data security and investigating breaches. Students also learned about the shifting landscape of cybersecurity law and, in Woods’s experience, how it intersects with corporate governance, litigation exposure, and insurance liability.

 

Also in attendance were representatives from Sony, Capital One, Google, Raytheon, General Electric, CrowdStrike, and FireEye. The keynote address was delivered by NSA Deputy National Manager for National Security Systems Marianne Bailey.

 

Among the attendees was Grace Tang ’21. A 1L with a Bachelor’s degree from the University of Waterloo and a CPA certification, Grace was keen to learn more about data protection and the security issues of major corporations. After the event, Grace was surprised by the availability of industry professionals and the cutting-edge nature of their work.

 

“I came out of the event with a better understanding of the importance and scope of cybersecurity in the modern age through reading statutes, analyzing cases, and consulting secondary sources . . . CTF was an incredible opportunity to hear from some of the brightest minds in the field.”

 

LIST teamed up with members of the UVA Computer and Network Security Club to organize this year’s Meta CTF. The group has been running a purely technically focused event for years, but approached LIST last year to collaborate on an event that would include legal and business dimensions.

 

“We wanted to integrate legal and policy components into the CTF this year in order to create a more real-world environment and give students a more complete view of the entire cybersecurity field and possible career paths,” said Jake Smith ’20, who helped organize the event. “In addition, it's crucial that technical people understand the business aspects and vice versa to work together effectively.”

 

When asked about plans for next year’s events, LIST President Jeremy Gordon said, “The event was truly an incredible experience—not only were LIST members able to gain exposure to the technical side of cybersecurity, but they were able to do so in an integrated environment by working alongside people who will likely be their future clients. This experience, I think, was too valuable to be a one-off, and I look forward to working to grow and expand it in the future.”

 

----

Conor J. Hargen

cjh4zn@virginia.edu

 

Ike's Mistake Part II – The Nomination of William J. Brennan Jr.


William Fassuliotis ‘19
Guest Columnist

President Eisenhower’s first term proved to be an eventful one. Ike brought an end to the Korean War stalemate and convinced reluctant hawks to support the armistice. He signed into law the act that started the interstate system. He cut taxes and balanced the budget by reducing the size of the military. These and more brought an impressive resume for his campaign for reelection in 1956. But Eisenhower had also suffered a heart attack the year before, and at 64, there were not-so-quiet concerns about his health as he was beginning to finish his second term. In addition, the events that would lead to the Suez Crisis began to simmer. 

 Judge Brennan is congratulated by President Eisenhower after his selection to the Supreme Court. Photo courtesy Associated Press.

Judge Brennan is congratulated by President Eisenhower after his selection to the Supreme Court. Photo courtesy Associated Press.

Perhaps of more interest to the legal profession, Ike had to this point appointed two Justices to the Supreme Court: Chief Justice Earl Warren1 and Justice John Marshall Harlan. The latter Justice was not the first John M. Harlan to sit on the court; his grandfather was nominated by President Rutherford B. Hayes, and served from 1877 to 1911. Harlan II would work on his opinions on the desk Harlan I used and wore his grandfather’s pocket watch. Harlan I is best known as the lone dissenter in Plessy v. Ferguson2––“[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens”––and Harlan II would join the Court just in time to help carry out the spirit of his grandfather’s dissent into the law of the land in Brown II and other segregation cases.3   

As if the above were not enough issues for the campaign, it was a mere two months before election day (early September 1956) when Justice Sherman Minton4 informed President Eisenhower that he would retire soon and that Ike would have a chance at a third nomination before the election. Fearful of losing, Eisenhower and his advisors came to use this vacancy to shore up electoral support. The Supreme Court as a political motivator was not novel back then and is so obvious now so as to hardly merit mention. But Eisenhower was not thinking of nominating an ideological firebrand to ignite the ideologue’s support. No, Eisenhower didn’t nominate Brennan for what he believed, but for who he was: an Irish, Catholic, Democrat from the Northeast. Such voters were key members of the New Deal coalition, but also the voters Eisenhower attracted as the Supreme Commander of the Allied Forces in World War II. But why focus on these demographics? And why Brennan?  

In private, Eisenhower laid out three criteria for the next justice: (1) experience on lower courts; (2) relative youth (younger than 62) and good health; and (3) if at all possible, a Catholic faith. The first criterion was in response to Truman’s tendency to pick his friends or, in the eyes of critics, cronies. Eisenhower viewed such appointments as unpleasant and harmful to the Court’s status. Eisenhower was particularly interested in appointing a state court judge. There had been no state judge appointed to the Court since Benjamin Cardozo nearly three decades earlier, and various state court interests lobbied Eisenhower to change this. The second criterion is self-evident.  

The third criterion may strike the current observer as odd. The Court today has a Catholic Chief Justice and is majority Catholic (and has been since 2006, when Justice Samuel Alito was confirmed). But at the time, no Catholic sat on the court. The longtime “Catholic seat” sat empty for seven years since the death of Justice Frank Murphy in 1949. Political pressure was borne on Ike as well. The powerful Archbishop of New York, Cardinal Francis Spellman, had personally asked Eisenhower to appoint a Catholic as early as 1954. And while Eisenhower had won Northeast Catholics in the previous election, vigorous campaigning for the Democratic nominee by a young, charismatic Senator named John F. Kennedy made outreach even more important in the minds of Republicans.  

The search was headed by Attorney General Herbert Brownell.5 The criteria did not leave many options––only two federal judges fit the bill. At this time, Brennan was a Justice on the New Jersey Supreme Court. Despite Brennan’s being a Democrat, the Republican Governor of New Jersey appointed him to the state trial court, before elevating him to the state Supreme Court. To the extent that Brennan had a reputation, he was known as an able administrator and proponent of court reform. Along with state Chief Justice Arthur T. Vanderbilt, Brennan implemented a system that drastically reduced congestion in the state judiciary. It was for this that Brennan first came to the attention of Brownell and on the path to becoming a Justice.  

Earlier, on May 22 in 1956, Brennan delivered a speech on the topic of court efficiency in Washington, D.C. at the Justice Department headquarters. He had delivered similar speeches many times before, but this was easily the highest profile venue to hear it. Despite the admittedly boring nature of the topic, this conference played a pivotal role for Brennan’s selection. After listening to Brennan’s twelve-page speech, Brownell and his Deputy AG were suitably impressed and sensed from the speech a moderate conservatism, making him the best choice when the vacancy opened later that year.  

One story that was perpetuated for so long as to become legend was that this speech was not even Brennan’s. The story goes that Brennan was a last-minute substitute for his mentor, New Jersey Chief Justice Vanderbilt. His substitution was so last minute that Brennan read Vanderbilt’s speech, and that the good impression he had on Brownell was actually a false impression, the imprint of someone else. Brennan’s selection would then be quite literally a mistake from its beginning faulty premises. While repeated for much of Brennan’s life, later evidence contradicts the story as little more than myth.6 Mistake or not, Brennan’s selection was not by accident. Brennan was the only name Brownell recommended to Eisenhower.  

On October 16, 1956, Eisenhower put Brennan on the Court through a recess appointment.7 A recess appointment commission would expire at the end of the term, so if Eisenhower lost, Brennan could lose his spot on the Court if the Democrat Adlai Stevenson wished to appoint someone else. Eisenhower would win the election, convincingly, however, 457 to 73 electoral votes, and 35.5 million (57.4%) to 26 million (42%) for Stevenson. On March 25, 1957, Brennan would be confirmed by the new Senate by voice vote.8 And Justice Brennan would stay on the court for 33 years, longer than all but six other justices.  

This article’s primary source, in addition to above citations, was Seth Stern and Stephen Wermiel’s “Justice Brennan: Liberal Champion.” Next time: the nomination of the first African American Justice: Thurgood Marshall. 


1 See last week’s article, Ike’s Mistake: The Accidental Creation of the Warren Court, for more.  
2 He also dissented in Lochner v. New York, making him two for two in dissenting from cases that would form the anti-canon.  
3 The Senate actually refused to hold a vote on Harlan’s nomination at first. Eisenhower nominated Harlan on November 8, 1954, after the midterm election. Southern segregationists were able to hold off hearings until the new Congress was inaugurated. When Harlan’s nomination expired at the end of the Congress, Eisenhower re-nominated Harlan. The Senate finally confirmed Harlan on March 16, 1955, 77-11. 
4 Justice Minton was appointed by President Truman in 1949 at the age of 58 and served only seven years. Minton retired due to a combination of poor health and his frustration at the “activist” turn of the court, which he felt he had little influence over and dissented regularly.   
5 In a sign of the times, vetting was handled directly by the Attorney General, the Deputy Attorney General, and two or three others, not the scores of lawyers or outside groups used today. Brownell claimed he read all four hundred of Brennan’s opinions, on top of his other AG duties. The sparse vetting team could help explain how someone who would be as liberal as Brennan could be appointed. Brennan was only the third Justice to have a background check conducted by the FBI. The report was put together in no more than a day.  
6 For the evidence against, see Stephen J. Wermiel’s “The Nomination of Justice Brennan: Eisenhower's Mistake? A Look at the Historical Record.” 
7 For those with recent nominations in mind, does this directly contradict the so-called McConnell Rule, which purports to prevent new Justices during a presidential election year, invoked to avoid holding hearings for Judge Garland, Obama’s nominee? This example is mixed, and it likely depends on your priors. Ike did get his justice on the Court, and there is no sign that the Democratic majority in the Senate objected at the time. But, the Senate did not vote on it. As a recess appointment, Brennan’s commission would expire if no action was taken. And Eisenhower was running for reelection, not termed-out like Obama was. But do those distinctions actually matter? For a more extensive treatment of the topic, see https://www.washingtonpost.com/news/fact-checker/wp/2016/02/24/a-recent-supreme-court-appointment-in-an-election-year-without-controversy/?utm_term=.c3cf30db3307.  
8 In the intervening time, a new vacancy on the court opened up when Justice Stanley Reed retired. Charles Evans Whittaker was confirmed on the same day to fill the spot.  

A Midwesterner in NYC: The Law Weekly's Missouri Correspondent Takes a Trip North


Kolleen Gladden ‘21
Staff Writer

Driving into the city felt like a dream. I pressed my face against the passenger window and took it in with a sense of reverence and awe. The midnight skyline glowed, an endless sea of lights. The Statue of Liberty stood proudly in the foreground, a reminder of how, for seemingly countless people over generations, this place meant a fresh start and renewed sense of hope. I took a deep breath. “Wow, isn’t this beau-” before my childlike wonder was quickly interrupted by a cacophony of honking cars screaming from all directions.  

 The City as seen from Central Park. Kolleen Gladden /  Virginia Law Weekly .

The City as seen from Central Park. Kolleen Gladden / Virginia Law Weekly.

I was born and raised in Southwest Missouri. When I turned eighteen, I made the treacherous journey an hour from home to attend a college in rural Kansas. Charlottesville is, by far, the largest city I have ever lived in or near. I am easily wooed by the simple pleasures of life, such as being near an L.L. Bean and a Trader Joe’s. When fall break approached, I felt brave or perhaps simply foolhardy enough to venture to New York City for the week. Thankfully, a 1L friend was also taking the trip and offered me a ride (thank you, Dominique) and another 1L friend set me up with a friend of his to stay with (thank you, Will). When Dominique dropped me off at a subway station, it became quickly evident that navigating was not going to be intuitive. Public transportation in Southwest Missouri is making a public service announcement on Facebook soliciting a ride from whoever happens to be available on that given day. I have heard rumors of a singular bus, an ancient vehicle that haunts the streets of my hometown, with a less reliable schedule than the transit in Rock Bottom from Spongebob. I looked at the signs, attempting to glean meaning from the combinations of letters and numbers. When I finally made it to the doorstep of the apartment, I felt as if I had successfully conquered the labyrinth that is NYC.  

I was greeted by Susanna, the new friend that I would be staying with. I realized at first sight that she was much cooler than I could ever dream of being. She had recently shaved her head, and wore an effortlessly chic maxidress. Throughout the week, I became increasingly fascinated by her coolness. She is a professional model who teaches Yoga, and plans to lead a troupe to Costa Rica. She goes to unconventional gyms in chic neighborhoods and attends art gala events––in short, the essence of sophistication. That night, she took me to a refurbished arcade, a hub of nightlife in her neighborhood in Williamsburg, and introduced me to several friends. Two of them were writers with Columbia degrees, and another was also a professional model. They all wore leather jackets and talked about the local scene. Is this what all New Yorkers are like? I felt as if I had wandered into a television show about Brooklyn and was interacting with the main characters. They inspired me, and the next morning I threw on a maxi dress and hit the town running.  

Something I love about New Yorkers is their fanatic dedication to the city itself. At school, I casually mentioned I would be traveling there to a few people, and by the end of the week I had no fewer than eight Excel spreadsheets filled with recommendations. My travel plan was a combination of following the spreadsheets and wandering off at random subway stops to see where the roads would take me. At no point in my life had I ever identified with Buddy the Elf more. At one point, I exited the wrong subway stop and ended up in sea of people, sound, and light. After some confusion, I realized that I had somehow wandered into Times Square. The sheer amount of stimuli was unbelievable. I came to realize that New Yorkers truly are unfazed by anything. I passed performers, costumed vigilantes, sights of all kinds that people passed without even a glance. This is especially true on the subway. One evening, while traveling home, I listened to a woman deliver a sermon to a throng of travelers, only to be followed by a troupe of dancers who executed perfect routines on the poles and handlebars. I watched with wide-eyed fascination as everyone else wore headphones and looked off into the distance. 

During the trip, I roamed through East Village, finding an excellent thrift store and trying the famous Baohous, a low-key eatery with an excellence that cannot be overstated. I went inside every museum I crossed, taking in everything from classic paintings to sensationalized modern portraiture. For most of my stay, I visited fringe areas of the city recommended by locals––as a result, I saw a more laid-back version of the Big Apple. If I could give anyone advice from my experience, it would be to go with a sense of adventure and at least a spreadsheet or two from a local. I hope to go again soon and see where the roads lead. New York City truly is a one-of-a-kind place, and yes, it did live up to the hype. 

 

Fake News: 3Ls Blame Dugas for Enrollment Troubles


Graham Pittman ‘19
Guest Satirist

Third-year law students at the University of Virginia School of Law expressed their outrage earlier this week after Assistant Dean of Academic Services and Registrar Jason Dugas nearly failed to remind them about the spring enrollment period. 3L representative Jeff Richardson spoke before a crowd of angry upperclassmen and reporters gathered outside of the school on Monday to criticize Dean Dugas for not emailing them sooner about the registration deadlines that have been posted on LawWeb for at least three months.

“Who could have guessed that we wouldn’t get advanced warning from the Registrar’s office in the form of a series of timely, informative, and technologically integrated emails? It’s like the rug was completely pulled out from under us,” said Richardson. “The administration needs to be held accountable. It’s absolutely unreasonable for them to expect us to remember the specifics of a process that has in no way changed since 1L.”

Richardson claims that many 3Ls were unable to complete the 30-minute course selection process with only four days’ notice. “In addition to playing on multiple softball teams I’m also taking a full twelve credit schedule this semester, including Common Law IV and VII. . .When exactly did Dugas expect me to find the time to sign up for class? Considering how bad the reception is on the back nine of Birdwood and the upstairs bar at Biltmore, it’s a miracle that any of us even saw his email.”

 “My parents are paying nearly $60,000 for me to go to school here. The least the administration can do is tell me when I need to register for class,” added Richardson, who hasn’t been to his Securities Regulation seminar in at least three weeks. “Law school is supposed to prepare us to be lawyers; we shouldn’t be wasting our time worrying about strict, arbitrary deadlines, reading through tedious documents, or paying attention to small details.”

Richardson warned that the 3L class would pursue further action if the administration fails to make amends. “Mark my words, if one of us ends up having to take a Friday class we’re going to organize a petition.”

Ike's Mistake: The Accidental Creation of the Warren Court


William Fassuliotis ‘19
Guest Columnist

            When General Eisenhower was inaugurated in 1953, he became the first Republican president in twenty years. Presidents Roosevelt and Truman would appoint twelve justices,[1] drastically changing the character and ideology of the Court. Except for Justice Harold Burton, whom Truman appointed as a gesture of bipartisan goodwill, every justice on the court was a Democrat. While Eisenhower was no ideologue, he would explain to advisors, in public, that “My [Ike’s] principal concern is to do my part in helping restore the Court to the position of prestige that it used to hold, and which in my opinion was badly damaged during the New and Fair Deal days.”[2] Eisenhower would appoint five justices, enough to recreate the Court’s character and ideology. Whatever Ike expected, the coming judicial revolution certainly was not it.

 As then-Vice President Nixon looks on, Earl Warren administers President Eisenhower his second oath of office in 1957.  Photo courtesy Dwight D. Eisenhower Presidential Library.

As then-Vice President Nixon looks on, Earl Warren administers President Eisenhower his second oath of office in 1957.

Photo courtesy Dwight D. Eisenhower Presidential Library.

            Spearheaded by Chief Justice Earl Warren and Associate Justice William Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. The changes were legion, including a constitutional right to privacy,[3] the right to remain silent,[4] the elimination of official school prayer in public schools,[5] desegregation,[6] and much more. Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings. After he was no longer president, Eisenhower purportedly said, “I have made two mistakes, and they are both sitting on the Supreme Court.” Or that Warren’s nomination was “the biggest damn-fool mistake I ever made,” or that his biggest mistake was “the appointment of that dumb son-of-a-bitch Earl Warren.” Historians argue whether or not Eisenhower ever said any of the above. But the statements reflect how Eisenhower and many others felt. How then, if Eisenhower did not intend a revolution, did he ignite one anyway? The answer lies in two elections: the 1952 and 1956 Presidential elections.

            Despite his overwhelming popularity among the American people, Ike was not assured the Republican nomination in 1952. After being convinced by the Draft Eisenhower movement to run, his main opponent was Senator Robert Taft of Ohio, son of President and Chief Justice William Howard Taft. Known as “Mr. Republican” for his stalwart conservatism, he and his supporters believed that after scores of failed dime-store New Deal candidates, only a true conservative nominee could put a Republican in the White House after a generation of failure. Like his father forty years before him, Taft controlled the party machinery, hoping to best a less conservative but more popular opponent. When the convention opened in Chicago–– coincidentally the same city as the Taft-Roosevelt convention years before––neither Taft nor Eisenhower definitively had a majority of the delegates. Enter Warren.

In 1952, Earl Warren was in his third term as Governor of California. A Republican, he started his public career as District Attorney of Alameda County. Appalled by the corruption he saw in state government, he busted bribe-taking politicians and officials, cracked down on crime, and ran his office in a professionalized, non-partisan way.[7] He would keep these attributes as he ran successfully for California Attorney General[8] in 1938, then Governor in ’42, ’46, and ’50. He campaigned and governed as a fiscal conservative but a progressive social reformer, winning acclaim and praise within the state and without as “an able, incorruptible administrator who has built up enormous public faith in his honesty and political integrity.” He was so popular that in his first campaign for reelection, he won both the Democratic and Republican primaries, running virtually unopposed. Such success led him to talk of presidential aspirations. Warren was Thomas Dewey’s ticket mate as vice-president in the 1948 election, best remembered as the erroneous “Dewey Defeats Truman” election.[9] This was the only election Warren would ever lose.

            With such success, Warren declared himself a candidate for President in 1952. As California’s “favorite son,” he was assured of its seventy-odd delegates, on the first ballot at least. Warren hoped that if Taft and Eisenhower deadlocked, both would lose momentum and he could be the compromise candidate. Enter Richard Nixon. If you may allow a bit of editorializing, I believe that Nixon is one of the most important figures in Supreme Court history to never have sat on the bench. He will figure prominently in many future articles. Forty years old at the time, Delegate Nixon was California’s junior senator. Despite this, there was little love lost between the two. Both won overwhelming statewide victories in 1950, attracting independents and Democrats, but in very different ways. Warren won through policies appealing to the center; Nixon won by painting his opponents as communist sympathizers and accusing his opponent in the 1950 Senate election as “pink right down to her underwear.”

            Nixon, nominally pledged to Warren on the first ballot, let it be known in private that he truly supported Eisenhower. In return, viewing Nixon as a young, energetic candidate who could unite the conservative elements of the party, Eisenhower’s campaign staff offered him the vice president spot if he could get California’s support. Warren’s biographers portray Nixon as a backstabber, looking out for only his own ambition. In fairness, Warren refused to endorse Nixon when he first ran for Congress and only tepidly supported Nixon’s run for Senate. There was little reason for Nixon to be loyal to Warren, and both would detest each other for the rest of their lives. (Stay tuned for future articles on this.)  

            Senator Nixon played a crucial role in getting California to adopt the “Fair Play Amendment” during the convention. Complicated and arcane, the amendment involved something called “the Texas Steal” and two competing delegations from southern states, one for Taft and one for Eisenhower, trying to get seated at the convention. A vote for “Fair Play” was in essence a vote for Eisenhower and would come close to securing him the nomination, thus ending Warren’s chance for the presidency. In the end, the Fair Play Amendment won, and Eisenhower cinched the nomination on the first ballot.[10] Had Warren become president, vice president, or some other spot, there would be no Warren Court. Ike would easily win the election.

            Eisenhower, however, was impressed by Warren. When discussing his ideal justice, he told advisors he wanted on the court “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.” In other words, he was looking for a “statesman.” The historical record is mixed, and will perhaps never be known. Some sources report a quid pro quo agreement, such that Warren would vigorously campaign for Eisenhower in exchange for a spot on the Court. I do not find these claims to be overly credible. Warren fit many of the attributes Ike listed and Ike seemed to have a genuine respect for Warren and thought him to have similar “middle of the road” philosophy. Eisenhower called Warren to tell him Ike considered him for Attorney General, but decided to go elsewhere. Warren claimed that afterwards, Ike said, “I want you to know that I intend to offer you the first vacancy on the Supreme Court.” In any event, Warren believed he had been promised a spot on the Court. On September 8, 1953, Chief Justice Fred Vinson suffered a heart attack and passed away at the age of 63.[11] After some hesitation (Eisenhower thought there was some difference between being promised an Associate position versus the Chief Justice; Warren adamantly said there was not), Ike put Warren on the Court through a recess appointment in time for the 1953 October term. Warren was confirmed by the Senate by a voice vote on March 1, 1954. The rest, as they say, is history.

            Sources include Stephen E. Ambrose’s “Eisenhower: Soldier and President”, James F. Simon’s “Eisenhower vs. Warren”, and Ed Cray’s “Chief Justice: A biography of Earl Warren.” Next time, Eisenhower’s other “mistake”: Justice Brennan’s path to the high court.


[1] Eight and four justices, respectively. This excludes FDR’s elevation of Harlan Stone, a Coolidge appointee, to Chief Justice.

[2] This was in part a reaction to Truman appointing buddies and, for lack of a better word, cronies as Justices.

[3] E.g., Griswold v. Connecticut, 381 U.S. 479 (1965), and Katz v. United States, 389 U.S. 347 (1967).

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] Engel v. Vitale, 370 U.S. 421 (1962).

[6] E.g., Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[7] Although some of his prosecutorial methods would later be found unconstitutional by his Court.

[8] His tenure as AG shamefully included the internment of Japanese-Americans that ended up being upheld in Korematsu v. United States. It is life’s ironies that one of the drivers for internment would also be the architect of ending legally-enforced racial segregation, though some biographers argue that his later regret over internment led him to be a forceful opponent of segregation on the bench.

[9] Dewey and Warren rather famously did not get along very well. Nina Warren, Earl Warren’s wife, voted for the Truman ticket, disliking Dewey and not wanting to see her husband become Vice-President.

[10] If interested, John Dickerson’s “Whistlestop” has a great two-episode podcast on the convention, titled ”Eisenhower, Taft, and the Texas Steal”, and ”Eisenhower, Taft, and the Wizard of Ooze.“ Strongly recommend them.

[11] Vinson was appointed by Truman in 1946. He was the last Chief Justice appointed by a Democratic President. Truman and Vinson were great poker buddies, and Vinson was likely appointed in part because of that relationship.

Cleveland: Center of the Universe


Sarah-Jane Lorenzo ‘21
Staff Editor

Editor’s Note: When reading controversial pieces such as this, readers should remember that this author’s position does not necessarily reflect the opinion of the Editorial Board or the University of Virginia School of Law.

You may not know it, but Cleveland is the fall break destination of your dreams.[1]

Yes, you read that right! Cleveland, Ohio. The heart of the nation! I do not write in jest. A sprawling metropolis and my wonderful hometown, Cleveland is the place to be—probably for life, and certainly for a great five-day vacation in the fall. The people are friendly, the food is great, and even LeBron James considers the Cleveland area to be his true home. If Cleveland is good enough for King James, it’s definitely good enough for you. He may have left to finish his career in L.A., but we have no hard feelings here. We know LeBron is well aware there is no place like home. He’ll be back!

Cleveland truly has everything you could ever need. From the Rock and Roll Hall of Fame to the Cleveland Orchestra (which is among the top ten in the world), Cleveland’s music scene is strong. Downtown Cleveland is very hip, and our restaurants are top notch. Iron Chef Michael Symon lives in Cleveland! My brother once rescued his dog.

The Cleveland Metroparks are spectacular, and just a short drive from the city’s center. Tow paths wind through vibrant forests in the suburbs, past trickling waterfalls and shale cliffs. And—to even my surprise—we actually have a beautiful beach. More day-to-day amenities include friendly people everywhere, a low cost of living, and excellent grocery stores (I know it sounds silly, but they really are great. My favorite, Miles Farmers’ Market, has tasty muffins and free coffee!).

Do you like chocolate? Cleveland has the best chocolate. Malley’s chocolate is the epitome of creamy chocolatey deliciousness. Once you try it, you’ll want to move to Cleveland just for easy access. No other chocolate can compare.

We are also very close to Canada. If you ever truly get fed up with America in general, you can always gaze wishfully across Lake Erie and dream of your escape. But—why would you want to escape? You’re in Cleveland! Even when America may be going through rough times, Clevelanders buckle down and stay strong. We have steadfast pride in our great city.

Some of you, as you read this excellent extollation of Cleveland’s virtues, may be snickering to yourselves. Stop! Don’t judge a midwestern gem by stories of a burning river and failing football team. We’ve bounced back since then. Our river has not caught fire in nearly 50 years, thank you very much. And with Baker Mayfield in our football lineup, we’re on track to have three great sports teams: the Browns, the Cavs, and the Cleveland Indians.

Clearly, others do see Cleveland’s virtues. President Obama visited my high school twice! That’s probably why he was re-elected. Love from Cleveland will take you far.

So what did I do during my fall break in Cleveland? Mostly study for my contracts midterm with breaks to hang out with my grandparents and go for a hike. But if I weren’t a 1L, my fall break definitely would have been more interesting. Here are the top five things you should do on your next visit to The Land:

  1. Befriend my grandparents. They are great!

  2. Get breakfast at the Yours Truly at Transportation Boulevard. Follow that breakfast with a quick visit to Malley’s to stock up on chocolate before hopping on the Cuyahoga Valley Scenic Railroad, which will take you through Cuyahoga Valley National Park, stopping at charming rural towns along the way. At several points, the train meets the Ohio & Erie Canal Towpath Trail; “hop on” and “hop off” options are available for hikers and bikers.

  3. Grab an ice cream cone and stroll through Chagrin Falls. It’s a cute little town with a massive waterfall at its center. My favorite shops to visit there are the local bookstore (very cute!) and the old-fashioned hardware store that’s brimming with antiques. While you’re in town, be sure to grab a sandwich from Dave’s Cosmic Subs. Maybe you will even see the founder, Cosmic Dave! He is cool. He goes to my gym and his picture is on bottles of Dave’s Cosmic Sub Sauce, which is sold in regional grocery stores.

  4. Spend a day at the museums at University Circle. The Cleveland Museum of Art is free and wonderful. My favorite exhibit is the Armor Court, although I always love stopping by the Monet and Morisot paintings, too. After visiting the art museum, you might want to check out some of the other top-tier museums within walking distance, including our natural history museum (we have Balto, the heroic Siberian Husky sled dog who saved Nome, Alaska, from a diphtheria epidemic!) and our botanical gardens (complete with a butterfly room!). Also in University Circle is Severance Hall, home of the Cleveland Orchestra.

  5. A short walk away from the museums is Cleveland’s Little Italy, which hosts tasty restaurants and interesting galleries. My favorite places to eat there are Presti’s (baked goods and cafeteria-style lunch) and Mama Santa’s (classic Sicilian pizza—yum). At the end of the day, you can head further downtown to visit The Flats—a trendy, redeveloped area with a great night scene.

Good things start in Cleveland: Stouffer's, Superman, Paul Newman… perhaps your legal career? So next time you plan a vacation, you know where to go. #TheLand has it all. Come to #CLE!


[1] Editor’s Note: See what we mean?

"Tell 'em I miss 'em": A Sit-Down with John C. Jeffries, Jr.


Jansen VanderMeulen ‘19
Editor-in-Chief

As the year began at the Law School, upperclassmen and faculty noticed a striking absence. For the first time in the memory of any current student and many faculty members, the school year did not kick off with a Criminal Law lecture from professor and former dean John C. Jeffries, Jr. ’73. In stark contrast with previous years, no hushed stories about Dean Jeffries’s fabled first-day cold call made their way through the WB hallways; no savage-yet-courteous quotations dripping with Jeffries’s genteel North Carolina accent filled the Law Weekly’s Faculty Quotes section; and jokes about Justice Anthony Kennedy were widely noted to be at a historic low. Since he became the University’s Senior Vice President for Advancement earlier this year, Jeffries has had a new office in Madison Hall on Main Grounds, far from his traditional haunts. 

Jeffries.jpg

Since beginning his teaching career at UVA Law in 1975, after clerking for Justice Lewis F. Powell, Jr. and serving in the Army, Jeffries has been a student favorite. Selected as dean in 2001, Jeffries led the initiative to make the Law School financially independent of Main Grounds, giving greater flexibility to the Law School Dean to set financial priorities. That financial prowess is part of what led new President James E. Ryan ’92 to select Jeffries as the head of University “advancement.” 

 “I work in what used to be called fundraising, which has the virtue of candor,” Jeffries told your Law Weekly correspondents. “About fifteen years ago they started calling it ‘development,’ which sounds like a Third-World problem. Now, it’s ‘advancement.’”  

In his new role, Jeffries reports directly to President Ryan, whose stately office sits right around the corner from Jeffries’s new digs. Ryan has announced an ambitious campaign to raise $5 billion for the University of Virginia’s new campaign. Jeffries explained to us that as state support has failed to keep up with the University’s needs, UVA and other schools like it have come to rely increasingly on private fundraising to make up the difference. 

Jeffries’s new role has him coordinating between the various University fundraising units, like the Law School Foundation and its equivalent across the colleges, schools, and departments. Each of these fundraising apparatuses is responsible for meeting its unit's fundraising goals, which consist mostly in raising money for scholarships, endowed professorships, and facilities.  

Jeffries explained to us that there is a common misconception that universities sit on huge piles of cash they could otherwise spend down. “Most of the money goes into endowments,” he said, noting that the income off these endowments is usually no more than 5 percent of the total fund. The new, $5 billion campaign will have a special focus on funding need-based scholarships, Jeffries told us. In addition to coordinating among the fundraising units, Jeffries will also team with Ryan to secure major gifts, like the $50 million gift from Law School alumni Bruce (’90) and Martha (’91) Karsh announced this summer. 

When Ryan was announced as UVA’s ninth president last September, keen-eyed viewers of the livestream could see Jeffries, a member of the presidential search committee, standing behind the newly announced leader, “grinning like a Cheshire cat,” as one student put it. Ryan and Jeffries go way back; Jeffries taught Ryan during the latter’s time at the Law School from 1989 to 1992. “He was extremely able,” Jeffries remarked, noting that he “recommended [Ryan] to clerk for [Chief Justice] Bill Rehnquist.” They served alongside each other on the UVA Law faculty, authoring a well-regarded piece on the history of the Establishment Clause in the Michigan Law Review. Ryan later served as an academic associate dean of the Law School under Jeffries. Now, as Ryan has taken the helm of the University, he has taken Jeffries for a three-year stint as chief fundraiser.  

Asked if he misses teaching, Jeffries answered emphatically that he does. “I like dealing with students and young people,” he told us, contrasting his students with the donors he now deals with: “Most of the people who are rich are also old.” Elaborating on what he misses about teaching, Jeffries mentioned his special fondness for UVA Law students (“The number-one feature of UVA students is they’re kind to each other. Keep it up.”) and commented on the enormous progress students make during law school, especially 1Ls. Even after more than forty years of teaching, he marveled at the tremendous academic progress students make in their first semester as law students. 

As to whether he will return to teaching after his three-year stint in fundraising, Jeffries told us he would very much like to, but chuckled and noted that “God has something to say with that.” Your Law Weekly correspondents, having taken Jeffries’s Federal Courts class, could not resist asking for some insights into the current makeup of the Supreme Court and the issues facing it. One issue that stands out to Jeffries is affirmative action in universities. Mentioning that the Harvard litigation on behalf of Asian-American students has thrown the traditional debate “into a different light,” Jeffries commented that it has become clearer that “helping someone means limiting someone else.”  

Justice Kennedy, a favorite foil of Jeffries’s in the classroom, controlled the Court’s opinions on affirmative action in recent years, most recently upholding the University of Texas’s “plus factor” affirmative action plan in the newest iteration of the long-running Fisher saga. Jeffries called Kennedy “conflicted” on the issue and said it will be “a big, big deal” for universities if they lose the ability to be conscious of race in admissions. 

Seeming conflicted as he lamented some aspects of his new job (“I miss the kitchen access”) and celebrated others, Jeffries left your Law Weekly correspondents with a clear message for the students of the Law School: “Tell ’em I miss ’em.” 

Letters To The Editor: 9-26-18


A Proposal to Give Diversity Its Full Meaning at UVA Law


Jacob William Roth ‘19

"A Proposal to Give Diversity Its Full Meaning at UVA Law" 

By Jacob William Roth 

 

Diversity has two parts. The first is getting people of diverse backgrounds, beliefs, and values in through the door. The second is learning from the beliefs, values, and practices that result from backgrounds different from our own. This does not mean we must agree or refuse to acknowledge our differences. It means understanding differing views so that we disagree with them well. 

UVA Law has focused on the community’s ability to accept diverse people. But diverse people bring with them diverse ideas, and the community’s ability to understand and learn from those ideas is what gives diversity its meaning. The promise and premise of diversity is not only that opportunities are available to those who have not had them previously, it is also that opportunities are available to all people within the community to learn from disagreements and challenges they never would encounter otherwise.  

My experience provides an illustration of the difference between the two parts of diversity. I am an increasingly observant Jew who entered 1L year with a Jewish identity that was only ethnic. My views and values have changed from 1L year as I have studied the faith and become more observant. I was accepted by the entire community for the idea of being a Jew. I still am now, but when my views and values changed due to my study in Judaism, those views and values were mischaracterized, mocked, or dismissed.  The same people who welcomed me into the community and valued the diversity of my Judaism pushed back against that same Judaism in practice when the values I took from it diverged from their own. This was not caused by anti-Semitism or bigotry. Instead, it was because these people could not understand how a person could be both moral and disagree with them on the issues where we diverged. 

The issue is not that my values and beliefs have been contested. I do not want mere agreement or meek avoidance of differences. I already know what I think and how I think it. What I want—and what we all should want (and need)—is disagreement: disagreement that is strong and serious, while in good faith and convincing; disagreement that forces us to be better in how we hold our beliefs or else be forced to change our minds if we cannot meet the challenge.  

We all already have the skill set to have these disagreements. We came here to develop them and have been doing so each day in class. The skills we develop and use in the classroom we often refuse to use outside of it. The tools are in our hands, but we need the instinct and habit to use them. 

It is ironic that we consider the standards and methods that we employ for pursuing truth and persuading our peers—e.g., good faith debate, honest evaluation of evidence, understanding the full strength and accuracy of the other side even as we oppose it—important enough for a case of theft or fraud but not for what we declare to be really important, like abortion, war, racism, or inequality.  

We can only honor and benefit from diversity in its full meaning when we work through our disagreements by first understanding the other’s views as they do, on their terms and as they see them—not as they first appear to us. No lawyer could avoid getting laughed out of court if he did not understand the other side’s brief in its full strength prior to disputing it. So too do real diversity, acceptance, and respect for the humanity of others mean learning to see other’s values and beliefs as they see them. Disagreement will and must happen, but after understanding, for it is prejudice and bigotry if it happens before. 

We are UVA Law. We have a tradition of collegiality and excellence in the craft of principled, fruitful disagreement. We should honor our institution and give credit to our education by bringing our skills out of the classroom and into the halls; for if we brought what we too often practice in the halls into the classrooms instead, we would realize how farcical it is.  

Our natural instinct is to eschew reason, good faith, and understanding when what is right is embattled, but it is precisely for that battle that our craft was developed. The skills and standards we are taught are for finding the truth in things that emotional, moral, and determine the justness of society.  

Tuesday, a vote will be held on a proposal to add a Cultural and Intellectual Diversity subcommittee to SBA’s Diversity Committee. Its purpose will be to help us practice applying our skills outside the classroom, in the emotional, moral cases we dispute in our community. The Cultural and Intellectual Diversity subcommittee will look at the state of diversity at UVA Law. It will find ways to repair dialogue, continuing and expanding the work of programs like Common Law Grounds, so that when we disagree, we do so well and learn from it, just as a diverse community has the power and duty to do. 

Go to the SBA website and contact a representative for SBA to express your interest in “YES” for the Cultural and Intellectual Diversity Subcommittee and honor the promise and meaning of diversity.  

 

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jwr3uz@virginia.edu 

Brandeis in Brief: The First Public Confirmation Hearing


Part Two of Confirmation Stories, a continuing Law Weekly series


William Fassuliotis ‘19
Guest Columnist

If you can remember back to the confirmation hearings for Judge Kavanaugh, before the accusations were made against him, you likely had one of two sets of thoughts. If you were sympathetic to those opposing Judge Kavanaugh, you may have seen Senate Democrats as engaging in principled opposition, seeking as much information as possible about his time with the Starr investigation, the Bush Administration, and as a judge in order to make the case to the American people, like Ted Kennedy and other Democrats did in 1987. If you were sympathetic to those in support of Judge Kavanaugh, you might have been appalled at the histrionics and tantrums by a bunch of Senators trying to enhance their presidential prospects. Both sides weep for the future of the republic. One can be forgiven for thinking that confirmation hearings have a principled history, dating back to the founding, and only recently become debased political spectacles. This thought, however, is mistaken.  

The expectations surrounding Supreme Court nominees would change forever on January 2, 1916, when Justice Joseph Rucker Lamar passed away.1 On January 28, President Woodrow Wilson, after much deliberation and lobbying (including by The New York Times and others to appoint former President and 1912 electoral opponent William Howard Taft), nominated a close advisor, Louis Dembitz Brandeis. 

By that time, Brandeis had acquired the epithet of “The People’s Lawyer.” The controversy surrounding his nomination can easily be understood by what others wrote about him. To his opponents he was, as Taft wrote to a friend, “a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous in method in reaching them….” His supporters would agree with Justice William Douglas (who would replace Justice Brandeis when he retired), that “the image of Brandeis … was one that frightened the Establishment. Brandeis was a militant crusader for social justice whoever his opponent might be. … He was dangerous because he was incorruptible.”2  

Brandeis invented what would become known as the “Brandeis Brief,” or as he would call it, “What every fool knows.” Instead of relying solely on arguments based on legal precedence and logic, a Brandeis Brief would be filled with facts, statistics, and data explaining why a particular regulation should be upheld as constitutional. This was, for its time, simply radical. He was also successful, even at the height of the Lochner era.3  

At a time when the legal profession in general, and the judiciary in particular, was small-c conservative—valuing tradition, ordered liberty, and the rights of property—the above would have been enough to create a firestorm of opposition. There was another “complicating” factor: Brandeis would be the first Jewish member of the Court. Though raised in a secular household, he would embrace his Jewish faith as he became older, and would be one of the pioneers of Zionism. Few, if any, publicly opposed him on openly anti-Semitic grounds, although in private a number definitely did. Some accused Wilson of nominating Brandeis to bolster Jewish support for the upcoming election and to appease political constituencies. Sometimes subtext, sometimes text, the controversy over his nomination cannot be understood without his religion.  

And so, this set the stage for the first public confirmation hearing. I should note the emphasis is on first public confirmation hearing—the Senate had at least one hearing on a nominee before 1916,4 and nominees were regularly referred to a committee since 1868.5 These were, however, private and closed to the public, short in duration, and, with one exception, without witness testimony. The modern confirmation hearing—public, extensive, and with testimony by proponent and opponents—was pioneered in response to Brandeis’ nomination.6 Both proponents and opponents were unsure whether the nomination would succeed, and both hoped to use the hearing to persuade undecided Senators. 

The first hearing was called to order on February 9, 1916, the first of 19 days of hearings, by far the most of any justice. A subcommittee consisting of five members of the Senate Judiciary Committee heard testimony from 43 witnesses. Opponents testified that his conduct was unprofessional and unethical, his character unfit, and an advocate who would not—nay, could not—be impartial as a Justice. His supporters rebutted those allegations as unfounded attacks by the “privileged interests.” The hearing discussed years of Brandeis’ cases, litigation, activities, and other matters important at the time but footnotes to contemporary historians. Conspicuously absent was Brandeis himself—a nominee would not testify at his own hearing until Harlan Stone in 1925.7 On April 1, the Subcommittee voted in favor 3–2. On May 24, the Judiciary Committee would report favorably on the nomination, 10–8, on a party line. Finally, on June 1, 1916, the Senate voted to confirm Brandeis 47–22.8 Those 125 days remain the longest amount of time between a nominee’s nomination and confirmation or rejection by the Senate. Justice Brandeis would stay on the court until 1939.  

As a judge, Brandeis would be exactly what his supporters hoped for and critics dreaded. He would continue to be an “advocate for the people,” forcefully writing for or joining opinions or dissents in favor of freedom of speech,9 a right of privacy,10 and other decisions that helped, in his view, put the “small man” on a level playing field. He was not, however, a doctrinaire liberal. He decried “the curse of bigness,” and the twin evils of both big business and big government. He was perhaps the biggest proponent of Jeffersonianism since Jefferson himself. He popularized the description of states as “laboratories of democracy,”11 and joined decisions striking down parts of the New Deal he thought centralized too much power in the hands of the federal government. He believed that business and government needed to be small enough that the common man and his neighbors could join together and have control over their own destinies.   

If you have any questions, comments, ideas for future articles, please do email me. I am always interested in them. Sources used, in addition to those in the footnotes, include Jeffrey Rosen’s Louis D. Brandeis: American Prophet, and A.L. Todd’s Justice on Trial: The Case of Louis Brandeis.  

Next time: Eisenhower, Nixon, and the Warren Court.  

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wf5ex@virginia.edu 


1 Justice Lamar, a Taft appointee and a deservedly obscure Justice who served only five years, should only be remembered as one of three pairs of relatives to sit on the Court. He was the cousin of undoubtedly the best-named Justice to ever don the robe: Lucius Quintus Cincinnatus Lamar II, a Grover Cleveland appointee who also served only five years. 

https://www.nytimes.com/1964/07/05/archives/louis-brandeis-dangerous-because-incorruptible-justice-on-trial-the.html 

3 In Muller v. Oregon, the Court unanimously upheld an Oregon law limiting the work day for women in factories to 10 hours. 

http://www.scotusblog.com/2016/03/legal-scholarship-highlight-the-evolution-of-supreme-court-confirmation-hearings/ (“Legal scholarship highlight: The evolution of Supreme Court confirmation hearings”)

https://fas.org/sgp/crs/misc/RL33225.pdf (“Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President“)

6 To be clear, not every nominee had a hearing after Brandeis. The next six nominees did not. But when there were hearings, this was the first and the precedent. Sources disagree on when hearings became standard procedure. Felix Frankfurter in 1939 or John Harlan II in 1955 are commonly listed.

7 Harlan F. Stone would be the first to do so, primarily to answer questions about his actions as attorney general. The practice would not become regular until the mid-20th century. As well, there were six nominees between Brandeis and Stone who either did not have a hearing, or had one in private. 

8 One of those who voted against confirmation was Senator George Sutherland of Utah, who would in 1922 join Justice Brandeis on the bench.

Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

10 Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).

11 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).

Confirm Kavanaugh (if the Allegations are False)


When the news broke that President Trump nominated Judge Brett Kavanaugh to fill Justice Kennedy’s seat, I had some initial concerns. In particular, I was concerned about his role in the Ken Starr investigation and his role as a member of President Bush’s legal teams during the 2000 election and in the White House. It seemed to me that one does not seek out these sorts of opportunities unless one wants to serve as a political operative. Criticisms of Judge Kavanaugh along these lines resonated loudly with me as he seemed poised to be a senator in a judge’s robe.  

However, exploring Judge Kavanaugh’s written record put my concerns to rest. In particular, it was his record as a judge that alleviated my concerns about his being a politician disguised as a judge. He has consistently applied an originalist and textualist approach to his interpretation of law and has applied precedent in a consistent manner. A judge can hardly be denounced for being an originalist or a textualist, even if those interpretive tools are different from the ones an observer might otherwise prefer. These approaches are unquestionably within the mainstream of contemporary jurisprudence and their use should not be seen as a legitimate reason to withhold confirmation. From any objective criteria that one would look for in a Supreme Court nominee, Judge Kavanaugh would be declared well qualified. He graduated from Yale undergrad and law school. He clerked for a Supreme Court justice and served as a federal appellate judge for over a decade. His extensive judicial record shows us already what type of judge he will be. He was unanimously rated “Well Qualified”—the highest rating available—by the American Bar Association, not exactly a bastion of right-wing thought. At a minimum, he is a competent jurist who has the intellectual ability to carry out the role of a Supreme Court justice.  

Similarly, the particular conclusions a judge draws after deploying his or her mode of jurisprudential analysis should not concern us either. Much of the controversy surrounding Judge Kavanaugh’s nomination has centered around whether he would vote to reach certain policy outcomes. These sorts of ideological litmus tests should be eradicated from the nomination and confirmation process entirely. It is one thing if a judge’s analysis does not support his or her conclusion. It is an entirely different thing to make a decision on a judge based on what that conclusions that judge is expected to reach. One can disagree with the conclusions a judge will reach and still think that person is qualified to hold his or her office.  

It strikes me that the controversies surrounding Judge Kavanaugh’s nomination to the Supreme Court are a microcosm of the broader issues facing our politics and our culture more generally. In some ways, the Court has become the most powerful institution in our government, and as a result, choosing the individuals who have the privilege to serve in that institution has become a political game of progressively higher stakes. Activists have increasingly changed their tactics from lobbying legislatures to funding lawsuits to challenge or re-define laws they disagree with. And because courts render their decisions from behind a bench and in robes, beyond the rough and tumble of electoral politics, their decisions are gilded with a veneer of inexorable truth. In other words, when the Court speaks, many people look at it not as if it is merely deciding a case before it, but rather as if it is clarifying right and wrong itself. Unsurprisingly, polarizing issues with morally contentious perspectives (abortion, healthcare, gun laws, etc.) are front and center in the debate over whether to confirm a judge to the highest court in the nation.  

Broadly speaking, we need to turn the temperature down in these hearings so that we can better ensure that the Senate is able to provide sound advice and give informed consent to the nominees before it. This has proven to be especially true with Judge Kavanaugh. Hearings should be about whether a nominee has the intellectual capacity and character to serve as a public official. We should seek to determine whether a nominee has the temperament to be an impartial judge and whether the nominee’s record reflects consistency in his or her approach to the law. Judge Kavanaugh checks all of these boxes. However, the antics we witnessed during his hearings, including hysterical episodes of audience members disrupting the hearings to protest, Sen. Cory Booker’s posturing as “Spartacus,” or Sen. Kamala Harris’s blatant mischaracterization of Judge Kavanaugh’s views,[1] have only served to inhibit the Senate’s ability to credibly carry out this role.  

Unfortunately, the choice of some Senators to exchange credibility for political capital has become more significant given the recent allegations levied against Judge Kavanaugh. Senator Leahy has alleged that Judge Kavanaugh misled the Senate during his hearings for his current position on the D.C. Circuit and then doubled down on these statements during his more recent hearings.[2] Also, a serious claim of sexual misconduct began to trickle out last week, culminating in the accuser, Dr. Christine Blasey Ford, publishing her story in the Washington Post last Sunday.[3] Each of these allegations should be investigated, but the Senate must do so in a way that searches for truth rather than political points. Sadly, the theatrics of the earlier hearings may have vicariously tainted those stepping forward to accuse Judge Kavanaugh of real misconduct. Democrats have been crying wolf for a long time with precious little to support those accusations. Now that there may in fact be a wolf, it is uncertain whether there is anybody to hear the warning cry. Should an honest investigation determine either of these allegations to be credible, I will be the first to admit that Judge Kavanaugh does not possess the integrity to serve on the Supreme Court. However, as of this moment I do not think we are there yet. Monday’s hearing with Judge Kavanaugh and Dr. Ford should be clarifying. 

At the end of the day, an ideal world would have obviated the need for the absurdity surrounding Judge Kavanaugh’s nomination. There is little question he has the ability do the job well. His resume is littered with sterling credentials and his tenure as a judge has shown him to be thoughtful, consistent, and competent. His record assures me that he will not act like a politician while on the bench. Viewed in light of his judicial record, Judge Kavanaugh is exceptionally well qualified for the position to which he is nominated. While we can be free to dispute whether Judge Kavanaugh reaches the right conclusions should he eventually be confirmed, anticipating those disagreements isn’t a reason not confirm him. The only question Judge Kavanaugh’s hearings exposed is whether he has the character to be a judge. Unfortunately, the Senate may lack individuals with the unimpeachable character to credibly make that determination. Alas, that is our system, but I have hope that the honest truth will emerge soon. Should the accusations levied against Judge Kavanaugh turn out to be untrue, the only other arguments raised against confirmation come from a concern over ideology. Judge Kavanaugh has shown himself to not be an ideologue but instead a judge. His record demands he be confirmed as such.  

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wat5pm@virginia.edu

[1] https://www.washingtonpost.com/politics/2018/09/11/did-brett-kavanaugh-offer-dog-whistle-abortion-foes/?utm_term=.ecc7c6b2ab75 

[2] https://www.washingtonpost.com/opinions/brett-kavanaugh-misled-the-senate-under-oath-i-cannot-support-his-nomination/2018/09/13/ea75c740-b77d-11e8-b79f-f6e31e555258_story.html?utm_term=.01f24b3fbd85 

[3] https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html 

[4]

Reject Kavanaugh


George E. Rudebusch ’20 

Editor’s Note: Mr. Rudebusch submitted his column prior to the allegations of sexual assault against Judge Kavanaugh that emerged at the end of last week. For that reason, his column deals only with Kavanaugh’s judicial temperament and ideology. 

The confirmation process of Brett Kavanaugh, Judge of the Court of Appeals for the D.C. Circuit, represents the latest Republican effort to prioritize party over nation. That is nothing new. But what is new—and what we have learned over the past few weeks—is just how eagerly Republicans are willing to accept a bargain that entrenches their own power at the cost of conservatism, democratic norms, and our national politics.  

Democratic legitimacy hinges on deliberation. It springs forth from fair and open processes. This explains why the Constitution requires the advice and consent of the Senate to confirm a justice for a life appointment to the Supreme Court. For decades, Senate Republicans have seemingly understood this, even defending the confirmation process from attempts to change it.  

And yet, since the election of President Donald J. Trump, the Republican Party has embraced with open arms fundamental changes to how the Senate confirms nominees to our highest court. During the confirmation of then-Judge Neil Gorsuch, Republicans invoked the so-called nuclear option, which lowered the threshold for closing Senate debate on a Supreme Court nominee from sixty votes to a simple majority. In doing so, Republicans opted to relax the decades-long cloture rule instead of using traditional democratic processes to confirm their candidate of choice.  

As the Senate proceeds with the confirmation process of Judge Kavanaugh, Republicans continue to flout democratic norms. They have withheld hundreds of thousands of Kavanaugh documents from their Democratic colleagues in the Senate. And they are hellbent on steamrolling the circuit judge through the confirmation process before the midterm elections this November. How is the Senate to advise and consent on Kavanaugh’s nomination with an incomplete documentary record and without sufficient time for due process? And what about waiting until after the midterms in order to “give the people a voice in the filling of this vacancy?” Mitch McConnell, Majority Leader of the Senate, made this very argument in 2016 during the doomed confirmation of Merrick Garland, Chief Judge of the D.C. Circuit Court of Appeals. Does it apply with any less force today?  

For a party that extols the virtues of responsibility, Republicans have been anything but since taking power in 2017. Over the past two years, Republicans have furthered the deep partisan divide in America. They have fortified their unpopular policy positions by degrading our democratic institutions.  

And if they should succeed in appointing Judge Kavanaugh to the Supreme Court, we could experience a profound reworking of our society. In his confirmation hearings, Judge Kavanaugh has expressed cagey, contradictory, and misleading testimony about his views on reproductive rights and whether Roe v. Wade is settled law.  

He also has revealed that he perjured himself in 2006 when he testified for nomination of Judge William H. Pryor, Jr. to the Eleventh Circuit. Evidence of perjury for any judicial nominee should raise serious issues during the confirmation process. But in these times when the line between truth and lie has been obscured, such evidence should automatically disqualify Judge Kavanaugh—and arguably provides grounds for his impeachment from the D.C. Circuit.  

Perhaps most concerning, however, is Judge Kavanaugh’s beliefs in expansive executive authority. His extensive writings on the subject raise the specter that Judge Kavanaugh will shield President Trump from criminal and civil lawsuits that could stem from Robert Mueller’s investigation. His views on Presidential immunity have even caused some to question whether President Trump nominated Judge Kavanaugh specifically to insulate himself from the special counsel’s eventual findings. Chuck Schumer, Senate Minority Leader, arguably said it best when he rhetorically asked, “Is it any wonder that President Trump chose Kavanaugh from the list of 25 [candidates] when we know he’s obsessed with this investigation?” 

For these reasons, and despite his qualifications, Judge Kavanaugh should not be confirmed to replace his former boss, Anthony Kennedy, as an Associate Justice on the United States Supreme Court. Judge Kavanaugh’s nomination has only further inflamed partisan tensions and adds to the mounting evidence that the Republican party is unfit to control all three branches of government.  

Better is possible. Rather than exploiting Kennedy’s vacancy for its own partisan ends, the Republican party should seize it as an opportunity to help heal our ailing body politic. Toward that end, Republican Senators should join their Democratic colleagues and block the confirmation of Judge Kavanaugh. And President Trump should heed Senator Schumer’s advice and nominate Judge Garland to replace Kennedy. Doing so would not only replace a moderate justice with a moderate circuit judge. It would also bridge the partisan gap between Democrats and Republicans.  

Indeed, nominating Judge Garland to the Supreme Court is precisely the olive branch that our nation needs. It would help President Trump to appear reasonable. It would help the Republican party make the case that it can effectively govern. And it would help put reorient our politics in a more bipartisan direction, where the national interest is put before the party.  

 

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ger3aj@virginia.edu 

Exciting New Compost Initiative


Elizabeth Buttita ’20

Student organization lunch events at UVa Law are a well-known staple of life at the Law School. Each semester, organizations of various kinds put on events, such as hosting speakers and panels, which often include food. Yum! Despite the free-food table, these events can generate a significant amount of waste in the form of plates, cups, utensils, food scraps, and the like. Unfortunately, most of the waste ends up in the landfill. Until now! 

Introducing zero-waste events! Thanks to the Recycling and Waste Diversion Program here at UVa, we now have the ability to create "green" events by providing recycling and compost bins at events. Additionally, the program offers compostable wares, such as plates and utensils. The process is very simple and completely FREE. Event organizers simply contact UVa’s recycling supervisor, Victor Martin (vem8n@virginia.edu), to request bins (and compostable wares, if desired) for the event. Once event organizers let him know the date and location of the event, approximately how many people are expected, which bins are being requested (compost, recycling, and/or landfill), which compostable wares are wanted, and desired drop-off and pick-up time, Victor and his team will be on the case! They will drop off the bins and wares and come back to pick it up at the end of the event. It’s that easy!  

It is important to note that event organizers must be willing to help attendees discard items into the appropriate bin. This is essential to successfully making the event zero-waste. For instance, if a compost bin gets contaminated with non-compostable items, it unfortunately must go to the landfill. Additionally, if non-recyclables are placed in the recycling bin, the result will be a lot of unnecessary work for Victor and his team.  

For this reason, SBA's Building and Environmental Services Committee will be hosting an information session about what is compostable and recyclable. The session will also demonstrate what a zero-waste event looks like by serving food and having compost and recycling bins. Be on the lookout for more details! 

In the meantime, feel free to contact me (mkb4ja@virginia.edu) with any questions, comments, or comments. 

 

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mkb4ja@virginia.edu

Tainted Love

Editor’s Note: This piece by Kyle O’Malley '19 ran in the March 14, 2018 edition of the Virginia Law Weekly, but was inadvertently omitted from the website. The newspaper regrets the error.

In 1983, in response to the AIDS crisis, the FDA implemented a lifetime ban on blood donations from homosexual men who had had sex since 1977. [1] Despite a 2015 revision to that policy, now generally allowing men who have sex with men (MSM) to donate after a year of celibacy, [2] it remains for all practical purposes a lifetime ban on blood donations for many gay and bisexual men—including and especially ironically those who pose zero risk, such as HIV-negative monogamous couples. Heterosexual men, by contrast, are permitted to donate whenever they please, no matter how widespread, anonymous, or risky their sexual activity. [3]This is not because heterosexual men (or their partners) cannot contract HIV. It is because they are not homosexuals. This discriminatory prohibition, even in altered form, exists despite calls from activist and medical groups for the FDA to develop systems for screening donors that do not equate gay sex, risky sex, and HIV. It exists despite the fact that the Red Cross and other blood banks test every unit of blood that they receive.[4]

Nor is it the case, as some argue, that the change to the FDA’s policy (from a lifetime ban for homosexual men to a 12-month ban for men who have sex with men) is a well-reasoned, science-based approach designed to exclude donations only from those engage in risky behavior and is therefore not “discriminatory” in the relevant sense. The logic is that since the ban applies only to men who have had sex with men within the last twelve months – instead of to “homosexual men” over their entire lifetimes – it doesn’t target gay and bisexual men. That is, only the of behavior (homosexual sex) among those possessing a particular nonspurious trait (the male gender) is targeted—their immutable characteristics are simply irrelevant. The FDA isn’t discriminating against you because you are gay; the FDA is discriminating against you because you have had gay sex.  

This argument is Panglossian:[5] it fails to fully appreciate that men who have sex with men are predominantly (if not almost exclusively) homosexual or bisexual. To target their behavior is to target their identities. It is to discriminate on the basis of the fundamental expressions that manifest the immutable characteristics that are homosexuality and bisexuality. It is an argument that works, perversely, to cleave our identities from our expressions of them in a way that is dangerous to our liberty—both sexual and civil. Gay and bisexual men, in order to donate, must render themselves sexless; they must effectively become either celibates or heterosexuals to participate in this life-saving act of giving. Gay sex is no longer constituent of homosexuality and the heterosexual majority feels, as a result—dare I say it?—less squeamish.  

Thus, a homosexual man whose intimacy is protected under Lawrence[6] and whose marriage is protected under Obergefell[7] is told by the FDA that, because he has been intimate with his lawful husband in the last year, he is no longer able to donate blood to save that husband. Nor of course to save his own children, his friends, his neighbors. His blood, by virtue of his exercise of his constitutional rights, is presumptively tainted—before any answer to the question of his HIV status is ever sought. By seeking and forming powerful public and private bonds in his community—through matrimony, marital intimacy, co-parenthood, etc.—he is unable to form others.  

This is the promise of assimilation and participation in civic life undermined by the alienation of stigmatization. And to be a gay man, or a queer or gender-nonconforming person of any kind, is to face these kinds of contradictions and ironies on a daily basis.  

It is pedestrian, though correct, for me to say that in America I can be engaged on Sunday and fired on Monday because I was engaged on Sunday. It is perhaps less pedestrian, but by no means less correct, for me to say that if I wake up on Tuesday and choose to go on with my wedding, I must be prepared for the possibility that by Wednesday the Supreme Court will say that, not only may a business owner constitutionally deny me services otherwise offered to the public simply because I am gay, but that the state may not intervene to protect me even if it wants to.[8] By Thursday, I may realize that I live in a society where a great many people beyond my pastry chef—maybe my doctor, or my lawyer, or my insurer?—refuse me service. By the end of the week, I may find that I have my marriage and little else.   

If that’s what Kennedy means by “dignity,” he needs a new dictionary.   

I look forward to a time when these kinds of uncertainties do not continue to undermine my confidence in the equal status of my citizenship. In the meantime, I try to cope with those uncertainties, as do millions of other LGBTQ Americans.  

And so it was with disappointment and surprise that several gay students, myself included, encountered the presence of blood donation services during this institution’s recent “Diversity Week.” A blood bank, at the behest of the SBA, had set up shop in an alcove in Withers Brown. Balloons and tables scattered with applications spilled out into the hall. People came and went, donating blood and saving lives. The world turned. Yet my world kind of stopped. For two days, I had to pass those tables—that life-saving operation—and think about how my love for my partner has precluded my participation. For two days, I had to bear witness to what appeared to be my community’s ignorance or indifference to this discrimination. Notwithstanding the fact that last year the SBA was made aware of the problem. Notwithstanding that this was our Law School’s “Diversity Week.”  

Even if the Court and several of the states haven’t committed to sexual orientation nondiscrimination, UVA has purported to. On these Grounds, the “University of Virginia does not discriminate on the basis of . . . gender identity, . . . [or] sexual orientation.”[9] The University’s Office for Equal Opportunity and Civil Rights clarifies that the University’s nondiscrimination policy is enforced except where discrimination is otherwise permitted by law. But whether the FDA’s regulations have the force of law is a separate question than whether the University should stand against discrimination notwithstanding the legal force or permissibility of the FDA’s regulation. That is, quite aside from whether the FDA’s regulation permits this kind of discrimination is the question of whether the University should tolerate the discrimination the FDA’s regulation engenders. 

And there are good reasons why the University and its Law School should not tolerate this discrimination, all of which have force independent of the apologetic’s call for tolerance in the name of securing an adequate blood supply. I invite a discussion on these Grounds about why sometimes discriminatory means are substantively wrong, no matter how important their ends, no matter how fair their procedures, and no matter their susceptibility to being mislabeled “not discrimination” at all. Most of all, I hope that no matter our reasonable disagreements about what constitutes sound policy at the FDA, we embrace Professor Buckler’s exhortation, first inscribed upon the edifice of this institution as it was rebuilt into Clark Hall in 1932, to “labor with learning, courage and devotion to preserve liberty and promote justice.”10 That includes liberty and justice for gay students, too. And that starts at home. 

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Kyle O'Malley’19

kpo4ua@virginia.edu

[1] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm

[2] https://www.redcrossblood.org/donating-blood/lgbtq-donors

[3] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm

[4] https://www.redcrossblood.org/donating-blood/lgbtq-donors

[5] “Panglossian, adj. and n.”. OED Online. January 2018. Oxford University Press. http://www.oed.com/view/Entry/136838?redirectedFrom=panglossian (accessed March 01, 2018) (“of, relating to, or characteristic of a Pangloss; unwaveringly or unrealistically optimistic”).

[6] 539 U.S. 558

[7] 135 S.Ct. 2584

[8] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)

[9] https://eocr.virginia.edu/notice-non-discrimination-and-equal-opportunity

Confirmation Stories: From Washington to Trump

Will Fassuliotis ‘19
Guest Columnist


When a seat on the Supreme Court vacates, the president is tasked with a great responsibility. Alone among the national government, federal judges have lifetime tenure. Each justice a president appoints is a justice that will put his or her imprimatur well after that president leaves office. Since the start of the 20th century, a justice has on average served (roughly) 13 years after the president that appointed him or her left office.[1] Since the Eisenhower administration (beginning in the middle of the 20th century), that number increases to an average of seventeen years. In other words, a president’s choice reverberates for another three or four terms after he leaves the White House.

            President Trump is unique, perhaps, in that he has prominently outsourced his decision making. Also unique is how public the decision making has been. During the campaign, he released two lists of nominees he would consider, first of eleven,[2] then twenty-one judges.[3] As President, he has maintained an updated list of twenty-five.[4] While it is certainly nothing new for potential nominees to become public (President Clinton was pretty clear he wanted Governor Mario Cuomo of New York to fill the seat Justice Ginsburg eventually would),[5] most public knowledge comes from leaked private talks, or after the fact interviews and investigations.

            In any event, to replace Justice Kennedy, President Trump has selected Judge Kavanaugh, only just added on the third list. Judge Kavanaugh is young. At 53 years old, he could easily serve twice the average length calculated above. He is, to use the abused phrase, “impeccably credentialed,” a D.C. Circuit judge for over a decade, a former clerk to Justice Kennedy, and a graduate of Yale Law School. In the hearings, he has already faced voracious criticism, and if he is confirmed, it will likely be by only a narrow margin.

            Has it always been this way? Not exactly. Take Edwin Stanton. He was the Secretary of War during the Civil War for Presidents Lincoln, Johnson, and Grant. In 1869, Grant nominated him to the Supreme Court, and the Senate promptly confirmed. Shortly after, and before he could take his seat, he passed away.

            Or take Justice John McLean. McLean was postmaster general under Presidents Monroe and John Quincy Adams.[6] During the 1828 election, he supported Andrew Jackson, who would end up defeating McLean’s old boss, J.Q. Adams. Today we might think of the postmaster as, at best, a second-tier cabinet position. However, in the 19th century the position was a potential source of large amounts of federal patronage. But at first only a potential source, as McLean favored meritocracy, and resisted wholesale staff replacement merely to reward Jackson supporters. Upset that McLean would not distribute jobs to Jacksonians, but wary of upsetting other supporters by firing him, Jackson found a solution when a vacancy arose on the Supreme Court. Kicking him upstairs, McLean was nominated and confirmed to the Supreme Court.

 Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

            Justice McLean is not well remembered, certainly not as well as Jackson’s last nominee, Chief Justice Roger Taney. The first Catholic (and the first non-Protestant) appointed to the Supreme Court, Taney is infamously remembered for authoring the Dred Scott decision. McLean was one of the two dissenters. Perhaps he should be better remembered.

            Finally, even the father of our nation, George Washington, was not immune to confirmation chicanery. In 1795, John Jay, the first Chief Justice, resigned from the bench to become Governor of New York. To replace him, Washington appointed John Rutledge while Congress was in recess. Rutledge was one of the original associate justices, but resigned after one year to be Chief Justice of the South Carolina courts. Rutledge served until the Senate reconvened, where it promptly rejected him, 14–10, on account of his opposition to the Jay Treaty. The more some things change, well, the more other things stay the same.

            Whoever replaces Justice Kennedy will be the 114th American to sit on the highest court in the land. I hope to share a few of the stories of how they got there. Next time, Justice Brandeis and the first public confirmation hearing.



wf5ex@virginia.edu