Bush nominee story (response to Levinson and Tushnet)

[Levinson]

I must say that I can easily understand why someone who signed up for a bar exam would try to find practically any excuse not to take it!  What signing up does show, though, is a certain mens rea about its being necessary, which cuts against him.

sandy

-----Original Message-----
From: RJLipkin at aol.com
To: kkatkin at cinci.rr.com
Date: Mon, 21 Jun 2004 20:06:28 EDT
Subject: Re: Bush nominee story (response to Levinson and Tushnet)

In a message dated 6/21/2004 5:47:16 PM Eastern Daylight Time, 
kkatkin at cinci.rr.com writes:
I substantially agree with Prof. Levinson that, in the present case (where
the nominee graduated from law school, passed his bar exam, and practiced
law competently for many years), it seems like overkill to deem him
unqualified to serve as a federal judge solely because he forgot to pay one
or two bar association bills.
        I agree that this failure should not disqualify an individual from 
being confirmed as a federal judge.  However, I am incredulous about two aspects 
of this story and of our discussion of it: (1) Some seem to be characterizing 
the failure to meet one of the basic mechanical obligations of the profession 
as a simply a de minimis failure.  By 'mechanical' I mean something that in 
itself we are required to do but doing so says little, if anything, about how 
well we uphold our professional (ethical) responsibilities as lawyers. After 
all, most lawyers disciplined for ethical misconduct are members of the bar of 
the state or jurisdiction they practice in. (2) We must be careful not to 
suggest or imply, or so it seems to me, that this failure needs no greater 
explanation than a failure to resubscribe to the NY Times or, as the case may be, the 
Washington Times. I do not believe that it is idiosyncratic on my part to take 
very seriously renewing my membership in the California Bar. Consequently, I 
simply cannot understand--that is, I cannot fill with personal content--how 
the nominee in question failed to renew his bar membership and then subsequently 
failed to take a bar exam after signing up to take it.  I do not know, nor 
can I imagine, what reasons could adequately explain this conduct.  And I am 
skeptical that explanations referring to the responsibilities of staff members or 
to an inordinately large caseload, and so forth, stand as plausible excuses 
or even conceivable explanations of the failure in question.  Indeed, I'd bet 
that an explanation, if forthcoming, would reveal a great deal about the 
nominee's personality, if not his character. 

        Let me raise an entirely different matter that probably deserves a 
thread of its own.  Does anyone know whether (and to what extent) political 
players such as Senators supporting the nominee as well as those opposing him 
attend to the discussions on this list (and other lists) to harvest arguments in 
favor or against the nominee? If such harvesting occurs do we (as list members) 
have special obligations to argue 'objectively,' however that's understood, 
and avoid advocacy designed to affect the confirmation decision?  Or is such 
advocacy, in the above circumstances, a perfectly legitimate exercise on this 
list?

Bobby


Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware