Everybody out of the pool?

With the ABA Standing Committee on the Federal Judiciary rating John Roberts "well-qualified" I think it's not inappropriate to start considering what kind of justice Roberts will be. This notwithstanding the repeated calls from Democrats for more documents from the White House relating to Roberts' past work for various presidents. We've seen plenty of materials from his tenure in the OLC under Reagan demonstrating his willingness, even enthusiasm, to recommend very conservative positions on questions of national authority and separation of powers. The Dems aren't looking to enlighten themselves more on Roberts' attitudes as much as they are looking for damaging material in a desperate hope to derail his nomination. I sympathize, but find the claims that senators can't evaluate Roberts without these materials disingenuous. I also think the current White House's reluctance to share materials from Roberts' term in the solicitor general's office has less to do with hiding things about Roberts and more to do with Bush II's general reluctance to release any information about his father's presidency.

All that aside, Tony Mauro asks an important but somewhat obscure question: Will Roberts join the cert pool? The cert pool is the practice of dividing petitions to the Court requesting discretionary review among the clerks of those justices participating in the pool, which right now is everybody except John Paul Stevens. So, while all the other clerks review and write memos about only a portion of the cert petitions, Stevens' four clerks review them all. As I've told my students, if you ever get a chance to be a Supreme Court clerk, don't clerk for Stevens.

If you're bored to tears by this so far, you may not want to

There are some indications that Roberts may not join the pool, as he's been critical of the arrangement in the past. Justice Marshall's papers revealed some internal disquiet with the pool process as well. In essence, the pool limits the number of eyes that gaze upon each petition, increasing the likelihood of cert-worthy petitions being overlooked. The fact that those eyes don't even belong to a justice makes it even more disconcerting.

Many people have speculated on the dramatic decline in the number of cases the Court accepts for review over the last two decades. No one I know of has examined the possible role of the cert pool, but Brennan and Stevens suggest that clerks are more reticent to recommend grants than the justices. It's certainly something worth considering, as there is some evidence that justices themselves tend to become more willing to grant as their length of tenure grows.

Roberts' suggestion of parallel pools and Kennedy's of a "shadow pool" both seem like improvements over the current situation, in which every petition is briefed twice, but most justices see only one memo and the other justice sees only the other (informally, justices may see both I suppose) and the diametric alternative of dissolving the pool so that each justices' clerks brief each petition for their own justice. The goal should be to divide the briefing so that clerks can spend more time reviewing each petition, but to allow for more than one review for each petition to be shared among justices.

Kennedy writes that his suggestion "would impose a slight additional burden," by which I imagine he means a burden on the justices, who must read two memos rather than one, not the additional burden on clerks. The obvious advantage, it seems, is redundancy for the sake of quality control, but I can see another advantage. With two clerks briefing each petition for general consumption, the review process may produce a sense of competition in which the clerks, either individually or as "teams" try to do a better job than others of rooting out meritorious requests. Since most law school exams are full of "spot the issue" questions, it should be something the clerks are used to.

For more details on the buildup, procedurally and politically, to the Roberts confirmation hearings, see the Supreme Court Nominations Blog.

For those who are still with me after all that slog, I saw Bruce Campbell and his new film, The Man with the Screaming Brain the other day. I also got a copy of his new book signed. That book, Make Love the Bruce Campbell Way, is something of an autobiographical novel complete with celebrity cameos, Hollywood insiderism and a terrifying race to contain a dreadful virus. I've only skimmed it so far, but it seems a lot like Bret Easton Ellis' new novel Lunar Park, but with more vomiting and fewer pratfalls. No wait, less vomiting and more pratfalls.