Question about Judicial Clerks

[Suddenly]

Textualism can mean different things. In general it means someone that follows the plain meaning of a statute or other item of positive law. That is the really general meaning. In reality we are all textualists to some degree, so we reserve the actual title for those that take it to extremes.

Scalia, for an extreme example, would say that the constitution would allow for the execution of 15 year-olds because the "plain meaning" of the "cruel and unusual punishment" provision at the time of passage did not consider such executions cruel or unusual.

Other less textualist judges would take into account present ideas of "cruel and unusual" in determining the question.

Statutory construction is largely a shell game. I could make a good argument for any approach if it suited my needs. Actually, I have done this. One of the differences between being a lawyer and a judge. Cynical nihilism can be a boon for a lawyer as it allows flexibility.

 

[jj]

Cynical nihilism can be a boon for a lawyer as it allows flexibility.

Indeed, I would suspect it's required in order to do your job well. That's not criticism, either, just recognizing the fact.

 

[Michael Redman]

Nope.

I'll give you another guess -- My hedging has to do with Texas trial work, primarily. I think UT potentially has the best program overall, especially in some areas such as international law (though recently I would say 2-3 other schools in the state could argue the overall point).

But I only applied at 1 law school in Texas because I planned to litigate in Texas. I did not feel that UT was the best for that particular item.

N/A

Interesting. I guessed STCL because those folks seem to think they're getting the best practical education around (whether true or not.) Let's see, no UT, no SMU, no STCL. That only leaves . . . Tech, UH, Baylor, St. Mary's, TSU, and TWU. And I only get one guess? Hmm . . . I honestly perceive all law schools as about equally valuable. Reputation for litigation? Tech may get a reputation for litigation thanks to Bobby Knight. I'm guessing you didn't go to no-dancing university. Well, my alma mater produced John O'Quinn, who has quite a reputation. Are you a fellow alum?

 

[Brown]

I'm surprised that no one has discussed Rehnquist's own clerkship, and the impact it had on his confirmation as Chief Justice.

I believe Vince Bugliosi, in "The Betrayal of America," goes so far as to suggest that Rehnquist may have committed perjury during his Senate confirmation hearings in 1986. Rehnquist asserted that a memorandum that he had written as a clerk--the memo having serious racial overtones--reflected the views of his boss, Justice Robert Jackson, and did not reflect Rehnquist's own personal views.

Justice Jackson was generally regarded as more moderate on the political spectrum than Rehnquist. When the Supreme Court was considering the landmark case of Brown v. Board of Education, Rehnquist wrote a memo saying: "I fully realize that it is an unpopular an unhumanitarian posititon for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson (which supported the "separate but equal" principle) was right and should be reaffirmed."

There is ample basis for questioning Rehnquist's assertion under oath that the pronoun "I" referred to Justice Jackson, rather than to Rehnquist, who was the author of the memorandum. Justice Jackson had not requested that any other memos of "his" views be written in such a fashion, there is no indication that Jackson had been "excoriated" by his "liberal colleagues" for his views, and there would be no point in Jackson's making mention of the unpoularity of such views among the Brethren. Besides, the memo on its face purports to be the views of its author.

 

[Michael Redman]

On the other hand, Jackson's dead.