Senate Confirmation Battles--Pining for the Good Old Days?

Posted on July 14, 2010 by Kendall Gray

As reported by Erin Miller at SCOTUSBlog, the committee vote on Elena Kagan's Supreme Court nomination has been delayed until next week, ostensibly to provide additional time for senators to parse her written responses.  I suppose that's little enough to ask in exchange for a most prestigious job for life, but color me cynical.  No matter what the answers say, we will be treated to senators in front of television cameras opining that the same person is either an insufferable "judicial activist" or unsurpassed "legal scholar," and one already knows which senators will hold which view.  One suspects, therefore, that ideology has become disconnected from reality, no matter which ideology is held.

The cynic amongst us, therefore, would say that senate confirmation hearings are nothing more than an empty Kabuki dance--and that with bad dancers.  All the players assume their accustomed rolls and say their accustomed lines while performing their accustomed movements.

The high minded might counter that the Senate has a constitutional obligation to carry out as part in the separation of powers--at its height to save The Republic from life tenured legislators run amok.

Presumably, that is why the language of the high minded can become so heated, to wit, this statement about The President's nominee:

It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a person could be put in the Court, as I believe she is likely to be. She is a muckraker, an emotionalist for her own purposes, a socialist, prompted by jealousy, a hypocrite, a person who has certain high ideals in her imagination, but who is utterly unscrupulous, in method in reaching them, a person of infinite cunning. . . . of great tenacity of purpose, and, in my judgment of much power for evil.  

I mean, if half of that were true, who would nominate (much less confirm) such a scoundrel?  But can even half of it be true?  And have we now made such a mess of the confirmation process that such incivility occurs without condemnation? 

But don't answer yet.

That statement is not about President Obama's nominee.  And the nominee was not even a woman.  I cheated.  I changed the gender in the quote. 

The quote is about President Wilson's nominee.  And the nominee's name was Louis Brandeis. 

Yes, that Louis Brandeis. 

The person who hurled such calumnies at the future Justice Brandeis was William Howard Taft, who probably wanted the appointment for himself and who later served as Chief Justice on the same court with this Brandeis "muckraker." 

And yet The Republic managed to survive the muckraking creator of the Erie Doctrine.  (The Republic has, to date, always done so).

The point: we've been doing confirmation wrong for a long time.  The amount of wrongness just waxes and wanes with the political temperatures of the times.

But it is still wrong, even if well-established wrong.  And it is a wrong lawyers have special responsibility to address.  Ours is the job of promoting respect for the judiciary, even a judiciary with which we sometimes disagree. 

How would this process look if self-serving Senators were held accountable by members of the bar in their states?  And I wonder, do we lawyers have the judgment to recognize opportunistic Kabuki dancing, even when committed by those of our own political stripe?

We now return you to our regularly scheduled appellate blog.

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Kawasaki v. Beloit Corp.: Don't Leave The Reader In Suspense

Posted on June 23, 2010 by Kendall Gray

Monday's Supreme Court opinions, ably reported by Erin Miller at SCOTUSBLOG, were . . . how does one say it . . . underwhelming. 

There I sat with my vuvuzela and SCOTUS face paint waiting on Bilski and waiting to see if the Fourteenth Amendment protects me from having the City of Chicago pry my guns from my cold dead fingers, and what do I get?

Who knew?  Like you, I was gobsmacked.

But separate from the legal issues involved, I noticed something about the legal writing that pushed my buttons--indeed a HUGE pet peeve with me.  So consider yourself warned, SCOTUS.  Consider this post a wag of my prodigious, blogger finger.

After the jump, your humble blogger will demonstrate why Supreme Court Opinions are no place for prospective suspense writers.  Just tell us, "whodunit."

Perhaps in an effort to make Monday's statutory fare more exciting, all of the majority authors made their opinions into page turners--i.e., you had to turn the pages to find out what happened.  If a practitioner did this in a brief, a court might well issue an order to show cause why said lawyer ought not be horsewhipped. But with a court's opinion, no horsewhipping is in the offing.  Only finger wagging.

Here is how the page turner approach works.  The Court states the main issue, sometimes succinctly and sometimes not, and then launches into an impenetrable statement of the procedural history of the case, the decisions below, or the circuit split without saying how the issue comes out and why.  These recitations are impenetrable, not because the Court is using "fancy words" to dumbfound us non-Ivy-League-types, but because the Court has withheld any structure for the reader to use in organizing the information--i.e.:

What is the answer to the question and why?

Knowing just this little bit of information makes the factual and procedural recitation much easier to digest.  When you write this way, it solves the 3 a.m. Judge and kidnapping the reader problems I have written about before because you:

  • Tell them what you're going to say
  • Say it
  • Summarize what you've just said.

You can see the problem in every one of the Court's Monday opinions, but  Kawasaki Kisen Kaisha Ltd. v. Beloit Corp. gets the prize.  Check out this statement of the issue.  Note the unnecessary detail about the case they are about to distinguish, the unnecessary citations, the abbreviation gobbledygook, the length, and (oddly for all this length) what is left out:

These cases concern through bills of lading covering cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, in land destination in the United States. The voyage here included ocean transit followed by transfer to a rail carrier in this country. The Court addressed similar factual circumstances in Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14 (2004). In that case the terms of a through bill were controlled by federal maritime law and by a federal statute known as the Carriage of Goods by Sea Act (COGSA), note following 46 U. S. C.§30701. Kirby held that bill of lading provisions permissible under COGSA can be invoked by a domestic rail carrier, despite contrary state law.

The instant cases present a question neither raised nor addressed in Kirby. It is whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite prohibitions or limitations in another federal statute. That statute is known as the Carmack Amendment and it governs the terms of bills of lading issued by domestic rail carriers. 49 U. S. C. §11706(a).

Really?  Is all that necessary? Can you tell from this statement that this is a forum contest?  No?  I couldn't either.  But surely the Court will tell us the answer before regaling us with a primer on maritime legal history, right?

Not exactly. 

First we get three pages of factual and procedural recitation tracing the transport of the goods from Asia to a train wreck in Tyrone, Oklahoma and thence into the California state courts and removal to the Central District of California.  Is Tyrone relevant?  Is the Central District of California relevant?  Are removal issues involved?  Does it matter that the case was removed rather than originally filed in federal court?  I can't tell because I still don't know the answer or the reasoning.  In fact, I don't know the question.  The Court has not even stated that this is a forum contest.  Is it going to be . . . .

Tokyo?

Or perhaps is it to be . . .

Los Angeles?

But, OK.  Surely we'll get some indication how the story ends before the Court gets deep into the brambles of its legal discussion, right?

Not exactly.

The Court, instead, indicates that we are going on a detour through COGSA, which if you do not recall, was defined five pages ago:

Before turning to Carmack, a brief description of COGSA is in order; for “K” Line’s and Union Pacific’s primary contention is that COGSA, not Carmack, controls. . . .

Really?  Brief description?  Can't you just tell me who won and why before a discussion of COGSA followed by the history of the Carmack Amendment in all its glory? 

  • Is it a draw? 
  • Will Kawasaki advance from Group C to the next round?
  • Is it Tokyo or is it Los Angeles?  Maybe Tyrone? Was that just a red card?

Alas, my vuvuzela is silent.  My SCOTUS face paint is smeared.  And before you know it, we're eight pages into a 21 page opinion before the Court indicates for the first time that the the lawsuit belongs in Tokyo, and I'm still uncertain why. 

Sure, one can read the syllabus.  But one shouldn't have to with a well written opinion.  What's more, you don't have a syllabus when you are writing a poorly written brief.

Instead of all the page turning suspense, there is a better practice for the legal writer, especially in writing briefs that are always in danger of finding their way into a court's circular filing cabinet: 

  • A good piece of legal writing is not a mystery novel.  Don't make the reader turn to the back of the book to read the last chapter first.
  • Legal writing done well is not a Sudoku puzzle or a crossword.  Don't make the reader turn the newspaper upside down in search of the answer key.
  • Your brief is not a scavenger hunt.  Don't make the reader guess which details are important and which can be ignored.
  • Your brief is not a Team USA World Cup match where the audience will wait on the edges of their seats until the 92nd minute.  Score early. Score often.
  • Instead, provide the overall guide and structure before zooming in.  Sum up the conclusion and the reasoning first, so the reader knows where you are going and why.

Here, for example, Kawasaki could just as easily have been written:

Bills of lading cover cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, in land destination in the United States. The question here is whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite provisions in the Carmack Amendment governing domestic rail carriers' bills of lading.  If so, this suit must be brought in Tokyo.  If not, this suit may proceed in California where it was filed.

The answer is: Tokyo.  The ocean carrier's bill of lading controls because . . . .

See how easy that was?

Let sound the vuvuzelas!!! (vuvuzalae?) 

Break forth into song. Ole, ole, ole . . .

See the COGSA flagons flow. 

We're going to Tokyo, not Tyrone and not Los Angeles!  And we know why!

And, the opinion's shorter too.

No need to thank me, SCOTUS.  I'm just here to help. 
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