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The Funniest Justice, week 4: Maximum sentence (access required)

During oral arguments yesterday in the case CSX transportation v. Alabama Dept. of Revenue, Justice Department attorney Melissa Sherry was greeted mid-sentence with the dreaded red podium light – a signal to counsel that their argument time has expired.

“You can finish the sentence,” Chief Justice John G. Roberts said to Sherry.

Sherry wasn’t sure one sentence would be enough. “I don’t know if I will get to the point,” she said.

“Use a lot of conjunctions,” Justice Antonin Scalia advised, rousing a round of laughter.

That was one of three laughs Scalia earned this week, enough to keep him in the top spot of the Funniest Justice tally. But Justice Stephen Breyer is making a contest of it, earning four laughs this week to stay in Scalia’s rearview mirror.

Here are the standings after four weeks of arguments:

Justice Antonin Scalia: 12

Justice Stephen Breyer: 11

Justice Anthony Kennedy: 4

Chief Justice John G. Roberts, Jr.: 3

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Bush: Miers opposed for not being ‘glib’ and ‘fancy’ (access required)

In his memoir, “Decision Points,” former President George W. Bush seems clearly proud of his Supreme Court legacy – the appointments of Chief Justice John G. Roberts and Justice Samuel Alito. But he’s also still sour over the failed nomination of White House counsel Harriet Miers, blaming Washington conservative elitists for dooming her bid because she wasn’t a “fancy” Ivy Leaguer.

Bush also reveals how close he came to nominating two different people to fill the vacancies that emerged during his administration: Judges Priscilla Owen and Mike Luttig.

Roberts was initially nominated to replace Justice Sandra Day O’Connor, who had announced her retirement. But after Chief Justice William Rehnquist died about six weeks later, Bush nominated Roberts for the chief justice position and renewed his search for a replacement for O’Connor. Be famously selected White House counsel Harriet Miers.

Miers’ tumultuous bid for the Supreme Court ended three weeks later after reports of growing criticism of her lack of judicial experience. But Bush blames conservatives, including Ann Coulter, for torpedoing Miers’ bid because the Southern Methodist University alum was more hoi polloi than Harvard.

“It seemed to me that there was another argument against Harriet, one that went largely unspoken: How could I name someone who did not run in elite legal circles?” Bush wrote, according to the Dallas Morning News. “Harriet had not gone to an Ivy League law school. Her personal style compounded the doubts. She is not glib. She is not fancy. She thinks hard before she speaks – a trait so rare in Washington that it is mistaken for intellectual slowness. As one conservative critic (Coulter) condescendingly put it, ‘However nice, helpful, prompt and tidy she is, Harriet Miers isn’t qualified to play a Supreme Court justice on “The West Wing,” let alone to be a real one.'”

Bush said his biggest regret was putting his friend Miers through the experience at all.

“While I know Harriet would have made a fine justice, I didn’t think enough about how the selection would be perceived by others,” Mr. Bush writes. “I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington.”

Bush also revealed that he also seriously considered nominating Owen instead of Miers, but feared that Democrats may filibuster Owens’ bid, CBS News’ Jan Crawford reports.

Wanting an easier confirmation, he turned to Miers instead.

After Miers’ withdrawal, Bush nominated Alito. During a visit by Alito and his family to the White House after his confirmation, Bush said to him: “Sam, you ought to thank Harriet Miers for making this possible.” Alito responded: “Mr. President, you’re exactly right.”

Bush also reveals that Vice President Dick Cheney and Attorney General Alberto Gonzales didn’t initially back Roberts. Instead they preferred Luttig.

He also was keenly aware of his father’s disappointment in his pawn Supreme Court pick: Justice David Souter. Souter had “evolved into a different kind of judge than he expected,” Bush wrote.

Supremes mull challenge to military’s ban on gays (access required)

The legal battle over the military’s “don’t ask, don’t tell” policy has landed before the U.S. Supreme Court.

The Log Cabin Republicans, the GOP gay rights group that sued the Obama administration seeking an end to the police that prohibits openly gay service members, appealed to the high court Friday. The group asked the justices to allow a lower court ruling barring the policy’s enforcement to stand as the administration appeals. Last week the 9th Circuit Court of Appeals allowed the Pentagon to resume enforcement of the rule as the government’s appeal proceeds.

Justice Anthony Kennedy, to whom 9th Circuit petitions are assigned, asked the Department of Justice to chime in on the matter Friday. The government’s response is due Wednesday.

The Republican group’s bid for relief from the Court faces long odds. Kennedy can either decide on this own whether to take up the case, or refer it to a full court. Should he choose the latter option, Justice Elena Kagan will likely not participate given her previous position as solicitor general, when she was tasked with defending the policy. Her absence sets up the possibility of a 4-4 split on the issue, resulting in the 9th Circuit ruling being automatically affirmed.

Meanwhile, oral arguments resume at the Court this morning. The Court is also expected to issue orders including cert. grants and denials. Keep an eye on this blog and on Lawyers USA Online for updates.

Stevens urges support of NYC mosque plan (access required)

Saying “fear of the unknown is the source of most invidious prejudice,” retired Justice John Paul Stevens urged Americans to be supportive of a plan to build an Islamic center and mosque near the site of the World Trade Center in New York.

In a speech at the National Japanese American Memorial Foundation in Washington Thursday, the retired Supreme Court justice said Americans should not show animosity to all American Muslims simply because the Sept. 11 terrorists were also Muslim.

“Guilt by association is unfair,” said Stevens, according to a report by the Associated Press.

Stevens, a World War II veteran, said he come to a similar realization himself years ago after seeing Japanese tourists at Pearl Harbor. His first thought, he said, was “[t]hese people don’t really belong here.”

He later realized such broad generalizations were wrong.

“We should never pass judgment on barrels and barrels of apples just because one of them may be rotten,” Stevens said.

The Funniest Justice, week 3: Uncontrollable laughter (access required)

“Juries are not controllable. That’s the wonderful thing about juries – also the worst thing about juries.”

Justice Antonin Scalia had the crowd laughing with that comment during Tuesday’s oral arguments in the case Schwarzenegger v. Entertainment Merchants Assn., one of three laughs the justice earned this week. Justices Breyer and Kennedy also showed their funny sides, drawing two rounds of laughter each from the bench.

There are the standings after three weeks:

Justice Antonin Scalia: 9

Justice Stephen Breyer: 7

Justice Anthony Kennedy: 4

Justice Ruth Bader Ginsburg: 3

Chief Justice John G. Roberts, Jr.: 2

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Justices talk sex, torture and video games (access required)

While most news organizations are recapping yesterday’s elections (if you hadn’t heard, Republican took the House and Democrats held onto the Senate), today’s Supreme Court-related headlines are all about sex, violence and video games.

“What common sense is there in having a state of the law that [a] 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games?” Asked Justice Stephen Breyer during yesterday’s oral arguments in Schwarzenegger vs. Entertainment Merchants Assn., which considers the constitutionality of a California law banning the sale of violent video games to minors.

Those in the press galley took particular note of Justice Samuel Alito, who seemed to disagree with his colleague Justice Antonin Scalia’s approach to determining whether the law violated free speech rights.

Scalia, ever the originalist, argued that prohibiting violent content was never contemplated by those who drafted and ratified the First Amendment.

“You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment,” Scalia said. “They knew [that] obscenity was bad, but what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?”

Alito had a different view.

“Well, I think what Justice Scalia wants to know is what James Madison thought about video games,” Alito said, drawing a round of laughter. “Did he enjoy them?”

“No, I want to know what James Madison thought about violence,” Scalia answered.

Later, Alito explained his view.

“We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified,” Alito said. “[T]his presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted,” and to suggest that it could have been “is entirely artificial.”

How Appealing’s Howard Bashman has a roundup of all the coverage of yesterday’s argument.

For more on today’s oral argument in the highly anticipated seatbelt preemption case Williamson v. Mazda Motor of America, check back later on this blog and on Lawyers USA Online.

Supremes to decide if minors get Miranda warnings, video games (access required)

The Supreme Court seems to be taking a keen interest in the Miranda rights of juveniles. Yesterday the Court granted certiorari in the case J.D.B. v. North Carolina, which considers whether considerations such as age can be considered in determining whether a youth is in police custody and therefore entitled to Miranda rights. The case involves a 13-year-old special education student who confessed to a burglary after being questioned by police at his school.

Last month the Court took up the consolidated cases Camreta v. Greene and Alford v. Greene, which consider whether the Fourth Amendment requires a warrant, a court order, parental consent or exigent circumstances before law enforcement and child welfare officials are allowed to interview a suspected child abuse victim at a public school.

The Court granted certiorari in five cases in total yesterday, taking on issues involving the exclusionary rule, attorneys’ fees, the right to counsel and the patent assignment rights of federally-funded inventions. (You can always find a list of cert-granted cases here on Lawyers USA Online.)

Today oral arguments continue at the Court, starting off with the highly anticipated case Schwarzenegger v. Entertainment Merchants, which considers whether a California law banning the same of violent video games to minors violates the First Amendment.

As Supremes return, lower courts still weigh issue of life for juveniles (access required)

Today the justices of the Supreme Court return to the bench to hear oral arguments. Also look for the Court to release orders from its Friday conference today. We’ll update you on any newsworthy developments later today.

Meanwhile, courts around the country are dealing with the impact of a Supreme Court decision from last term: Graham v. Florida, which held that life without parole is an unconstitutionally cruel and unusual punishment for a juvenile convicted of a crime less than murder.

Not only has the ruling caused courts to give new sentences to the 150 or so inmates directly covered by the ruling, it had also lead to a host of petitions from some of the roughly 2,500 prisoners serving life without parole for crimes committed as juveniles – including murder, reports the Wall Street Journal.

“Judges will fear that if they let someone out, he may commit another crime,” Bryan Gowdy, one of the winning lawyers in the Graham case, told the Journal. “But judges need to respect the constitutional right of juvenile offenders to have a meaningful opportunity at being released from prison.”

But prosecutors say there is no need to extend the Graham ruling to murder cases. “There are millions of young kids who do not commit outrageous crimes,” said Scott Burns, the head of the National District Attorneys Association. “To say we can excuse a small percentage who do just because their frontal lobe hasn’t developed is not persuasive.”