John McIntyre and Ronald Cass on the "offensive" media attack on Justice Scalia and how it threatens the independence of the courts.
Brian Fitzpatrick argues (persuasively, I think) that Justice Scalia should not have recused himself in the pledge of allegiance case. "There is nothing wrong with Supreme Court justices expressing their views on issues pending on the court's docket." Via Markel, who is soliciting comments.
Another thought about the controversy. There has been ideological screening of clerks for at least twenty years. We just somehow never hear about the justices on the left who have been subjecting their clerk applicants to stringent ideological litmus tests. At least Scalia hires a liberal once every two or three years, but a Federalist Society member has no chance at a Stevens clerkship—the only reason to apply for one in recent years was because O'Connor was rumored to insist that all her applicants apply to all of the justices.
I strongly suspect the Rehnquist Court's bias towards cases divining minor nuances of criminal procedure while disregarding tremendously important business and civil procedure cases stems from the fact that cert petitions have been reviewed by only two or three clerks from the entire Court, the vast majority of whom have had next to no experience in real-life litigation. Having clerks that have sullied their hands doing document production or dealing with real clients' real legal issues can only benefit the nation's laws.
Disclosure: I practiced with Adam Ciongoli for a year after his first clerkship at Kirkland & Ellis, and think he deserves a Supreme Court clerkship as much as anyone.
I, for one, didn't know -- until I saw this Jeff Rosen article tipped by Ann Althouse -- that Supreme Court Justice William O. Douglas's memoirs contained many stories that Douglas appears simply to have made up for effect.
Thom Lambert refutes the New York Times' latest attempt to create a scandal over the innocuous practice of judicial education seminars and Justice Scalia's decision to keep a pre-existing commitment rather than attend a meaningless swearing-in ceremony that was scheduled barely days in advance.
...and they're critical of the alarmism of the Senate Democrats and N.Y. Times editorials, reports the New York Sun. At RedState, "Leon H." observes that the tactic of "Borking" well-qualified nominees like Alito is damaging to the image of the legal profession as well as the courts, and is likely to provoke distaste from much of the bar, conservative or not. (via Taranto)(cross-posted at Committee for Justice blog).
Mike at the Crime and Federalism blog has a deft refutation of the latest and lamest Senator Kennedy effort to derail the Alito nomination.
Thom Lambert discusses Senator Dewine's questioning of Judge Alito on the LePage's case. We discussed Alito's vote in the case Oct. 31.
Elsewhere in Supreme Court antitrust news, Josh Wright, Christine Hurt, Mike Hofman, and Ron Davis discuss the Court's review of the abysmal Ninth Circuit decision in Texaco v. Dagher, which essentially held joint ventures per se illegal; oral argument was heard January 10, and SCOTUSblog gave their standard preview. The Chamber of Commerce and NAM filed an amicus brief. Ninth Circuit watchers won't be surprised that Judge Reinhardt wrote the majority 2-1 decision.
Larry Ribstein in Forbes and Jonathan Adler in the Wall Street Journal discuss the appropriate role of the judiciary in the context of Democratic questioning and press coverage of Judge Alito. I also wrote about this Jan. 6.
Professor Bainbridge, who departed from a lot of conservatives in supporting the Gang of 14 filibuster compromise and bucked the GOP party hierarchy in being a powerful opponent of the Harriet Miers nomination, now feels vindicated. As he notes, it's still too soon to tell for sure how this political drama will all play out -- even though Sam Alito seems almost certain to be confirmed, the real battle royale will come when a replacement for Justice Stevens, the presumptive fifth vote to uphold Roe, is named. Stevens turns 86 this April; whether his replacement will be named by GWB or his successor is anyone's guess.