September 2007

The Tarlton Law Library at UT has recently put online the Texas Legal History Digital LIbrary, which is comprised of two sites, one of which is dedicated to the Texas Constitutions 1824-1876 and which aims to:

provide[] page images of the constitutions of Texas in effect from 1824 to 1876. Also included are copies of journals and debates of the constitutional conventions at which those constitutions were adopted. The resource links provisions of the several constitutions to those portions of the journals and debates where those provisions were discussed.

The second site focuses Texas Supreme Court and Court of Criminal Appeals’ Justices from 1836-1986, which:

includes, for each member of the Texas Supreme Court and Court of Criminal Appeals between 1836 and 1986, a portrait and biography, citations to opinions authored, and links to additional resources.


Thx to Tarlton Law Library and the generosity of the Texas State Library and Archives Commission

WTC Flag

Apparently, there is more to Mr. Toobin‘s book, The Nine, than just anectdotes of Justice Souter‘s propensity to leak about the eyes. Below are some more excerpts:

Souter couldn’t be reached in time to make Rehnquist‘s funeral because he is a technophobe–he has a telephone and a fountain pen but “no answering machine, fax, cell phone or e-mail” (he was once given a television but never plugged it in).

Rehnquist was not impressed with Bill Clinton and his wife. When told that the newly elected president was thinking of nominating Hillary as attorney general, the [C]hief [J]ustice quipped, “They say Caligula appointed his horse counsel of Rome.”

When Rehnquist ordered the other justices to show up in Court for arguments in the case of Clinton v. Jones on the morning of a freakish snowstorm that dumped 21 inches on Washington, chaos ensued. Running late, Scalia ordered his driver to break the law: “By the power invested in me, I authorize you to run these lights!”

O’Connor‘s husband, John, sometimes embarrassed her with his crude sense of humor. He introduced himself to legendary Justice Harry Blackmun by handing him a business card that listed his skills as “Tigers Tamed, Bars Emptied, Orgies Organized.”

When she was being vetted as a nominee back in 1981, former Justice Sandra Day O’Connor lied to (or at least misled) then-Justice Department aide Kenneth Starr, telling him that she had never cast a vote on an Arizona measure to liberalize abortion. In fact, as a state senator, she’d voted April 29, 1970, to end criminal prohibitions on abortions in the state.

Rehnquist Court

Thx to AbovetheLaw and ABC News

Watch out all you swinging folks out there, tomorrow is apparently Conception Day (at least in Russia, where it’s been creepily timed so that every child conceived tomorrow will be born on Russia’s Constitution Day).

Hey baby

Thx to Breitbart

These slides from Gen. Petraeus’ presentation before Congress today are particularly enlightening.

Gen. Petraeus

Thx to the Politico

Casting aside Justice Potter Stewart’s famously vague description of obscenity (“I know it when I see it”), the Third Circuit will apparently hear oral argument tomorrow regarding whether Janet Jackson’s “accidental wardrobe malfunction” at the Super Bowl halftime show three years ago was obscene.

Justice Stewart

Thx to How Appealing

Last Friday, Jeff Skilling filed his appellant’s brief with the Fifth Circuit, which just barely exceeded the 14,000 word limit–by about 46,000 words.

Skilling’s brief clocked in at 58,922 words (and 239 pages), and to be fair, his counsel at O’Melveny & Meyers moved for leave to exceed the word limitation in FRAP 32(a)(7)(B)(i). However, no matter how “extraordinary and compelling” Skilling’s counsel’s reasons may be, part of the art of appellate practice is being able to distill hugely complicated issues down to more manageable and simplified points of error. Counsel at O’Melveny & Meyers probably would have been wise to remember that.

60,000 words

It’s one thing to ask for 100, 500, or maybe even a 1,000 words more, but to ask to quadruple the word limit? At the end of the day, such sloppiness just admits you have no idea what your appeal is really about and attempts to make the circuit judges do your work for you.

Thx to the WSJ Law Blog

As of this week, SCOTX is posting it’s calendar through August 2008 online. Blake Hawthorne and Chief Jefferson deserve kudos for the continuing modernization and increased accessiblity of Court information.


Thx to the
Texas Appellate Law Blog

This morning sitting at an extremely non-nerdy appellate lawyer meeting in Austin (yeah, right), one of the speakers was Kurt Kuhn of Brown McCarroll appellate practice fame, who presented a fascinating paper on recent voting trends at SCOTX since the recent musical chairs of new Justices up there has slowed down.

As part of his presentation, Mr. Kuhn printed up SCOTX trading cards for each Justice, complete with opinion statistics on the back. No idea if Mr. Kuhn plans to mass-market these, but they are a truly brilliant idea, and a necessary desk accessory for any Texas appellate lawyer.

Trading card fodder

Thx to Kurt Kuhn and Brown McCarroll

Last night, FDT finally announced his candidacy for President on the Tonight Show. If his electoral luck is similar to that of the last major candidate to announce a run to Jay Leno (another actor turned politician), FDT will be our next President.

I have intentionally muted my initial enthusiam for an FDT run because I wanted to wait until there was actually a campaign to support. That said, I remain somewhat undecided between Rudy and FDT, but now at least we’ll finally get to see how both candidates do head-to-head. Below, see FDT’s official announcement video.

Thx to HotAir

In his new book, The Nine, Jeffrey Toobin writes that Justice Souter considered resigning from SCOTUS after the Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). According to Toobin, Justice Souter was “shattered,” and wept when he thought of the case.


Reason no. 236 why Justice Souter should never have been nominated to the Court. As Tom Hanks once presciently opined, “there’s no crying in [judging].”

Thx to the San Francisco Examiner

Yesterday, the District of Columbia–whose arguments Judge Silberman soundly rejected in the D.C. Circuit’s recent opinion in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)–filed its Petition for Writ of Certiorari to SCOTUS. Behold, Parker now has a docket number, 07-290, and a new name, District of Columbia v. Heller. So renamed because only one of the underlying six appellants, Dick Anthony Heller, was found to have “standing” by the D.C. Circuit.


As noted earlier, this case is dramatically important to the Constitutional landscape because: (1) the opinion is so well and persuasively written by Judge Silberman; (2) it unabashedly holds that the Second Amendment guarantees an individual’s right to bear arms; and (3) with Parker‘s issuance, the D.C. and Fifth Circuits are now the only circuits in the country to have upheld the individual rights model.

Lyle Denniston at SCOTS Blog posits that Heller may even be heard this term. The last time SCOTUS issued a II Am. case it was 68 years ago in 1939, in the case of U.S. v. Miller.

One interesting note is that the D.C. petition raises a single question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” So phrased, it seems to open the door for the Justices to carve out some niche disallowing an individual’s right to own a handgun, but affirming the individual right to own a rifle or shotgun. When one reads Judge Silberman’s opinion though, it seems difficult to parse out distinctions in the nature of the right based only upon type of firearm. With Justice Kennedy in the swing seat however, anything is possible.

Thx to SCOTUS Blog

The Austinist has a good rundown of kid-friendly venues at which parents can enjoy a nice adult beverage.


I can personlly vouch for Phil’s Icehouse (which, by the way, may just have the best burger I’ve ever eaten–the “78704”), Freddie’s Place (which is great for pets, but a bit buggy outside), and Nutty Brown (which is huge, and just a fantastic venue, but just a bit far to get to).

Thx to the Austinist

Denise Davis, former House Parliamentarian who–along with her deputy Chris Griesel–resigned in protest at the end of the 80th Session due to Speaker Craddick’s disregard of their parliamentary advice and his assertion he did not have to recognize a privileged motion from the floor (which just so happened to be a motion to replace him as Speaker), will practice as Special Counsel in the Legislation and Policy practice group with Baker Botts’ Austin office.


No word on whether Chris Griesel, an appellate and parliamentary expert, will join her there.

Thx to Texas Politics (the blog, not the damnable thing)

It’s not public yet, but Carrington Coleman has apparently matched the $160k scale (at least for years one and two).


Thx to trustworthy but anonymous sources

Howard Bashman noted the D.C. Circuit’s new homepage today, but after vistiting it, I am at a loss for words as to what might have possessed the webmaster to put up such a strangely-designed page–particularly for a court, and a federal appeals court at that.


I am admittedly biased, but the federal circuits should follow the Texas Office of Court Administration lead, and standardize at least all the circuit websites with identical formatting and interfaces. That way, goofiness like the new D.C. Circuit website can’t happen.

Thx to How Appealing


Thanks to a poster over at Greedy–Texas, below is the full Locke scale for years 1-8, including the deferred compensation package.

Compensation for Associates in Texas Offices:
Class Base Deferred Total
2006 $ 160,000 $ – $ 160,000
2005 $ 170,000 $ – $ 170,000
2004 $ 172,500 $ 15,000 $ 187,500
2003 $ 175,000 $ 35,000 $ 210,000
2002 $ 180,000 $ 50,000 $ 230,000
2001 $ 185,000 $ 65,000 $ 250,000
2000 $ 190,000 $ 65,000 $ 255,000
1999 $ 195,000 $ 65,000 $ 260,000

The deferred portion of the compensation will be payable at year-end only to those associates who work at least 2000 billable hours for the year. No deferred amount will be payable to those associates who work less than 2000 billable hours. For this purpose, billable hours will include up to 100 hours of pro bono work which has been approved by the Firm for credit.

All amounts indicated above are annualized amounts. For 2007, the deferred amounts will be pro rated so that associates meeting the performance target will earn 5/12ths of the deferred amounts set forth above.

We will continue to evaluate our year-end merit-based bonus program in light of changing market conditions. In view of the increased base and deferred amounts, the lower tier bonus amounts will likely be eliminated.

The mid-level and high-level bonus amounts will likely remain, with the performance targets consisting of 2200 hours for the mid-level bonus and 2400 hours for the high-level bonus. As in the case of the performance target for the deferred amounts, the performance targets for the year-end bonuses will take into account up to 100 hours of pro bono work approved by the Firm for credit.

Thx to Greedy–Texas

Yesterday, Tony Snow announced he was leaving the Whitehouse on September 14, and was quite frank about the financial sacrifices that led him to the decision. In both a genuine and magnanimous gesture, Tony remarked to the venerable Whitehouse correspondent, Helen Thomas–who has covered every President since JFK–that he hoped that he was making “life a living hell” for some Whitehouse Press Secretary when he is her age.


All the best to Tony and his family. As I’ve said before, I don’t know if we’ve had a better Whitehouse Press Secretary, in any administration. None of the Reagan, 41, or Clinton press secretaries ever struck me as particularly genuine or smart–just smarmy.

Thx to Tony Snow for his service and sacrifice to our country, to Breitbart, and HotAir