I Got Them Monday-Morning No-Caffeine-Today Blues

This will be a random collection of the results of misfiring synapses this morning.

• Dept. of Election Hangovers: You may recall my condemnation of the Illinois Supreme Court race in the Fifth District a couple of weeks ago. Over $10 million was spent on that race. For a state-court, regionally elected judgeship. There were races for the Senate that barely spent that much! My one bit of schadenfreude is that one of the two—oops, one is still a sitting judge, I can't tar them both with the language they deserve—was also on a judicial retention ballot—and lost. Under Illinois practice, judges come up on retention ballots every ten years, and must receive a 60% "retain" vote. This means that one or two across the state—at both the intermediate appeals and trial levels—fail retention every year. Unfortunately, that's not going to stop this campaign from becoming a model for the future… because operatives for both sides will contend it worked. I'm going to watch this one as closely as I can (which, given my focus on intellectual property, isn't as close as it might otherwise be); and, because I so seldom practice in Illinois state courts, my judicial-misconduct complaint finger will be on a hair-trigger. If I see so much as a hint of prejudgment in opinions…
• Speaking of judges, the Arlen Spector "controversy" appears to be dying down a little, if only because I think Rove et al. have realized that they might drive Spector into becoming a Democrat (if only on voting matters). But that doesn't change the (probably immediate, unfortunately) need for at least one Supreme Court nomination during the rest of George III's presidency. Tom Goldstein has some interesting thoughts started over at SCOTUSBlog. I think the Bush Administration could do worse than Judge Roberts; for that reason, it probably will. I haven't read a lot of Judge Roberts's opinions from the DC Circuit yet, but I think there's a serious "Souter issue" here. Those opinions that I have read are a lot more "rule of law" than they are doctrinaire.

  I am not entirely sure that elevating a sitting judge is such a good idea. If there is one thing that I think the Supreme Court has suffered since the early 1960s, it is the absence of a disinterested academic. A nine-judge court that meets en banc can afford to have one, or even two, members with limited (or no) judicial experience. Although Felix Frankfurter's direct legacy on the court is rather disappointing to virtually everyone, I think his academic approach probably benefitted the Court's deliberations far more than the influence of law clerks can possibly do. I'd like to see a top civil-procedure scholar considered for the Court. I've been reviewing the Court's civil procedure jurisprudence during the Rehnquist era with an eye toward a possible article or two, and I've been brought up short time and again by the Court's blindness to the implications of what it is doing and lack of rigor, except when Justice Stevens has written.

  I'd like to see a top IP scholar, too, but the six or seven candidates I can think of just won't do… especially as the best one would create another "mother-child" controversy like we had on the Ninth Circuit a few years back with Betty and William Fletcher. Two of the others flunk on some other grounds, and the remainder are probably unconfirmable for political reasons.

• Now somebody is taking a run at NewsCorp. And NewsCorp is incorporating a poison pill and whining. Hmm. More schadenfreude on a Monday morning, before judging moot court at the law school this evening (which is why I'll probably be a bit scarce through midday tomorrow).