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July 22, 2005



During Breyer's confirmation hearing, there was some discussion about Justice Goldberg's concurrence in Griswold, which Breyer was rumored to have worked on as a clerk.

Friendly Hand

I believe Judge Friendly drafted his own opinions, Posner style. His clerks might add a comma here or there, but he really didn't use them for opinion writing as most judges now do.

Happy Fun Lawyer

Even when he was 75, ill, and going blind?


Well, I think using a dicaphone counts as writing it yourself.

Happy Fun Lawyer

Certainly it does; is that what Judge Friendly did, or is that just speculation? If it's fact, then that makes te Friendly opinions less important. Anyway, it's the SCOTUS opinions that are of greater interest.

And, incidentally, if Senate Democrats are going to ask for Roberts' memos at the DOJ and White House, why aren't they also asking for his bench memos?


That is pure speculation on my part. However, I have known some judges to dicate their opinions from hospital beds.

As for me, I think that his bench memos are privileged. Likewise, his work at the SG is probably privileged but the law isn't quite settled on this. Unlike some other nominees with similar resumes, his “client” (that is the elder Bush's administration) may have waived a lot of their privileges, by putting part of the memos in the presidential library.

I expect that there will be a big fight over this stuff. And, although I would err on the side of non-disclosure, I think that since the current administration isn't taking the “advise and consent” thing too seriously, Congress should do all it can to figure out if this guy is good. Personally, I think he should be confirmed, but that doesn't have much to do with my analysis.

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