Personal history
Kennedy grew up in Sacramento, California as the son of a prominent attorney. He is not a member of the Kennedy political family. As a boy he came into contact with prominent attorneys such as Earl Warren. He served as a page in the California State Senate as a young man.[2]
Kennedy graduated from C. K. McClatchy High School in 1954. He was an undergraduate student at Stanford University from 1954-58, graduating with a B.A. in Political Science, after spending his senior year at the London School of Economics.[3] He earned an LL.B fromHarvard Law School in 1961.
Kennedy was in private practice in San Francisco, California, from 1961–1963, then took over his father's practice in Sacramento, California, from 1963–1975 following his father's death.[2]From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific[3] and currently continues teaching law students (including legal seminars during McGeorge's European summer sessions in Salzburg, Austria). He remains Pacific McGeorge's longest-serving active faculty member.
During Kennedy's time as a California legal professor and attorney, he assisted then-California Governor Ronald Reagan with drafting a state tax proposal.[2]
Kennedy has served in numerous positions during his career, including the California Army National Guard in 1961 and the board of the Federal Judicial Center from 1987-1988. He also served on two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities (subsequently renamed the Advisory Committee on Codes of Conduct) from 1979-1987, and the Committee on Pacific Territories from 1979-1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit by President Gerald Ford in 1975, upon the recommendation of Reagan.[2]
Appointment
Kennedy was nominated to the Supreme Court after Reagan's failed attempts at placing Robert Bork and Douglas Ginsburg there.[4][5]
While vetting Kennedy for potential nomination, some of Reagan's Justice Department lawyers said Kennedy was too eager to put courts in such disputes that many conservatives would rather leave to legislatures, and to identify rights not expressly written in the Constitution.[6] Kennedy's stance in favor of privacy rights drew criticism; Kennedy cited Roe v. Wade and other privacy right cases favorably, which one lawyer called "really very distressing."[7]
In another of the opinions Kennedy wrote before coming to the Supreme Court, he criticized (in dissent) the police for bribing a child into showing them where the child's mother hid her heroin; Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it."[8]The Reagan lawyers also criticized Kennedy for citing a report from Amnesty International to bolster his views in that case.[8]
Another lawyer pointed out "Generally, [Kennedy] seems to favor the judiciary in any contest between the judiciary and another branch."[8]
Kennedy endorsed Griswold v. Connecticut as well as the right to privacy, calling it "a zone of liberty, a zone of protection, a line that's drawn where the individual can tell the Government, 'Beyond this line you may not go.'"[9] This gave Kennedy more bipartisan support than Bork and Ginsburg. The Senate confirmed him by a vote of 97 to 0.[9]
Supreme Court tenure
Jurisprudence
Appointed by a Republican president, Kennedy’s tenure on the Court has seen him take a somewhat mixed ideological path; he usually takes a conservative viewpoint, but sometimes has looked at cases individually.[2]
Kennedy, or Sandra Day O'Connor, or both of them, have served as swing voters in many 5-4 or 6-3 decisions during the Rehnquist and RobertsCourts. On issues of religion, he holds to a far less separationist reading of the Establishment Clause than did Sandra Day O'Connor, favoring a "Coercion Test" that he detailed in County of Allegheny v. ACLU.[citation needed]
Kennedy supports a broad reading of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment, which means he supports a constitutional right to abortion in principle, though he has voted to uphold several restrictions on that right, including laws to prohibit partial-birth abortions. He is "tough on crime" and opposes creating constitutional restrictions on the police, especially in Fourth Amendment cases involving searches for illegal drugs, although there are some exceptions, such as his concurrence in Ferguson v. City of Charleston. He opposesaffirmative action as promoting stereotypes of minorities.[citation needed] He also takes a very broad view of constitutional protection for speech under the First Amendment,[citation needed] invalidating a congressional law prohibiting "virtual" child pornography in the 2002 decision, Ashcroft v. ACLU.[10]
Habeas Corpus
On June 12, 2008, Kennedy wrote the 5-4 majority opinion in Boumediene v. Bush. The case challenged the legality of Boumediene’s detention at the Guantanamo Bay military base as well as the constitutionality of the Military Commissions Act (MCA) of 2006. He was joined by the four more liberal judges in finding that the constitutionally guaranteed right of habeas corpus applies to persons held in Guantanamo Bay and to persons designated as enemy combatants on that territory. They also found that the Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus and that the MCA was an unconstitutional suspension of that right.[16][17][18][19]
The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before pursuing habeas corpus actions in the district court. In the majority ruling Justice Kennedy called the Combatant Status Review Tribunals"inadequate."[16][17][18][19] He explained, “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is.'”[20] The decision struck down section seven (7) of the MCA but left intact the Detainee Treatment Act. In a concurring opinion, Justice Souter stressed the fact that the prisoners involved have been imprisoned for as many as six years.[21]
Analysis of Supreme Court tenure
Kennedy has reliably issued conservative rulings during most of his tenure, having voted with William Rehnquist as often as any other justice from 1992 to the end of the Rehnquist Court in 2005.[26] In his first term on the court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice.[27]
According to legal writer Jeffrey Toobin, starting in 2003, Kennedy also became a leading proponent of the use of foreign and international law as an aid to interpreting the United States Constitution.[28] Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues.[28] The use of foreign law in Supreme Court opinions dates back to at least 1829, though according to Toobin, its use in interpreting the Constitution on "basic questions of individual liberties" began only in the late 1990s.[28]Especially after 2005, when Sandra Day O'Connor, who had previously been known as the court's "swing vote", retired, Kennedy began to get that title for himself. Kennedy is more conservative than former Justice O'Connor was on issues of race, religion, and abortion, and intensely dislikes being labeled a "swing vote".[29]
On the Roberts Court, Justice Kennedy often decides the outcome of a case. In the 2008-2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, 5.[30]
Outside activities
Kennedy has been active off the bench as well, calling for reform of overcrowded American prisons in a speech before the American Bar Association. He spends his summers in Salzburg, Austria, where he teaches international and American law at the University of Salzburg for theMcGeorge School of Law international program and often attends the large yearly international judges conference held there. Defending his use of international law, Kennedy told the September 12, 2005, issue of The New Yorker, "Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there’s some underlying common mutual interest, some underlying common shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that’s what we’re trying to tell the rest of the world, anyway.”
Justice Kennedy is one of thirteen Catholic justices— of whom six sit in the present court — out of 111 justices in total in the history of the Supreme Court.[35]
Born in Oakland, California, Tallman received his Bachelors degree in 1975 from the University of Santa Clara and his Juris Doctor in 1978 fromNorthwestern University School of Law, where he served as the executive director of the law review.
Federal Judicial Service
Despite being a Republican, Tallman was nominated by President Bill Clinton to his current seat on the Ninth Circuit on October 20, 1999 and was confirmed by a voice vote of the U.S. Senate on May 24, 2000.[2][3] Tallman was nominated to fill the seat vacated by longtime Ninth Circuit judge Betty Binns Fletcher, who took senior status in 1998. Clinton's previous nominee to that seat, conservative Washington State Supreme Court Justice Barbara Durham, had been nominated in January 1999 as part of a bipartisan deal brokered by Washington's senators at the time,Slade Gorton and Patty Murray. However, Durham withdrew her nomination to the seat just four months later because of her husband's terminal heart condition.[4] Tallman then was nominated after he was one of three potential nominees that Gorton recommended to the White House.[1]
Tallman is on the record as supporting a split of the Ninth Circuit due to the backlog of cases.
Notable Opinions
Bull v. City and County of San Francisco, August 22, 2008. Tallman dissented on the issue of whether San Francisco jails could strip search those detained for minor, non-violent offenses: "When people are dying as a result of our errant jurisprudence, it is time to correct the course of our law."
Paez received his Bachelor of Arts degree from Brigham Young University in 1969. He attended the Boalt Hall School of Law, University of California, Berkeley and graduated in 1972.[1]
Richard Allen Posner (born January 11, 1939, in New York City) is currently a judge on theUnited States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at theUniversity of Chicago Law School. He is an influential figure in the law and economicsmovement.
Posner is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory. The Journal of Legal Studies has identified Posner as the most cited legal scholar of all time,[1] and a 1999New York Times article identified Posner as one of the most respected judges in the United States.[2]
Early life and education
Posner graduated from Yale College (A.B., 1959, summa cum laude), majoring in English, and from Harvard Law School (LL.B, 1962, magna cum laude), where he was first in his class[3] and president of the Harvard Law Review. After clerking for Justice William J. Brennan of the United States Supreme Court during the 1962-63 term, he served as Attorney-Advisor to Federal Trade Commissioner Philip Elman; he would later argue that the Federal Trade Commission should be abolished
In 1968, Posner accepted a position teaching at Stanford Law School.[3] In 1969, Posner moved to the faculty of the University of Chicago Law School, where he remains a Senior Lecturer and where his son Eric Posner is a Professor. He was a founding editor of the Journal of Legal Studies in 1972. President Ronald Reagan appointed Posner to the Seventh Circuit in 1981.[2] He served as Chief Judge of that court from 1993 to 2000, while remaining a part-time professor at the University of Chicago.[2]
Posner is a pragmatist in philosophy, a classical liberal in politics, and an economist in legal methodology. A prolific author of articles and books on a wide range of topics including law and economics, law and literature, the federal judiciary, moral theory, intellectual property, antitrust law, public intellectuals, and legal history. He is also well known for writing on a wide variety of current events including the 2000 presidential electionrecount controversy, President Bill Clinton's affair with Monica Lewinsky[2] and his resulting impeachment procedure, and the 2003 invasion of Iraq, his analysis of the Lewinsky scandal cut across most party and ideological divisions. Posner's greatest influence is through his writings on law and economics—The New York Times called him "one of the most important antitrust scholars of the past half-century." In December 2004, Posner started a joint blog with Nobel Prize-winning economist Gary Becker.[4] He also has a blog at the Atlantic, where he discusses the financial crisis.[5]
Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because, despite his "obvious brilliance," he has taken a number of "outrageous" positions:
- Contention in a 1999 Raritan article that the rule of law is an accidental and dispensable element of legal ideology;
- Argument that buying and selling babies on the free market would lead to better outcomes than the present situation, government-regulatedadoption;[6]
- Support for the legalization of marijuana and LSD.[7]
[edit]Legal positions
Today, although generally considered a figure of the right, Posner's pragmatism, his qualified moral relativism and moral skepticism,[8] and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand.Posner's political and moral views are hard to summarize. His parents were affiliated with theAmerican Communist party, and in his youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. He encountered Chicago School economistsAaron Director and George Stigler while a professor at Stanford.[3] Posner summarized his views on law and economics in his 1973 book The Economic Analysis of Law.[3]
- Torture
When reviewing Alan Dershowitz's book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge", Posner wrote inThe New Republic, September 2002 that "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information. ... no one, who doubts that this is the case, should be in a position of responsibility."[10][11]
- Prisoners
In a dissent from an earlier ruling by his protege Frank Easterbrook, Posner wrote that Easterbrook's decision that female guards could watch male prisoners while in the shower or bathroom must stem from a belief that prisoners are "members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect.... I do not myself consider the 1.5 million inmates of American prisons and jails in that light."[3]
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