My Day in Court

It was time last week for my biannual service to the D.C. government: jury duty. Apparently, half the people summoned deal with it by not showing up, but of course I, being the law-abiding citizen that I am, always go. Besides, I hear they've started to arrest people who don't.

I'm never impaneled. I've always wanted to serve on a jury -- a useful experience for a Civil Procedure professor, I would think -- but as soon as the lawyers hear what I do, it's all over. Sometimes I can see them playing chicken over me -- I'll survive a few rounds in the jury box, as each lawyer waits for the other to use a peremptory challenge on me. I don't try to avoid service -- I answer the voir dire questions properly and I say that I would be fair to both sides and follow the judge's instructions, which I would, but I'm always struck off.

The only problem is that it can take a long time to get told to go home. This time it took 8 hours. The judge summoned a venire of 78 people and interviewed them one by one to get a jury of 12. We were there from 8:30 am to 4:30 pm. It seems rather crazy. I don't think that's how they did it in the old days.

The only fun part is that there's often someone famous on the venire. The first time I served, it was Robert Bork. When the judge asked if anyone had worked at a law enforcement agency, he stood up and said diffidently, "I used to work at the Department of Justice." The best part was that it happened to be the first Monday in October -- the day the Supreme Court always starts its annual Term. I wanted to go up to him afterward and say, "so, back in court on the first Monday in October -- not quite what you had in mind!" But I didn't.

Big Small Story

A sleeper story in today's WaPo: retirements of judges has left the U.S. Court of Appeals for the Fourth Circuit evenly split between Democratic and Republican appointees.

Finished yawning yet? It's actually quite important. The Fourth Circuit (covering Maryland, Virginia, West Virginia, and the Carolinas) is the nation's most conservative court on many issues -- more conservative than the Supreme Court. The government takes advantage of the court in many ways, such as sneaking terror detainees into the court's jurisdiction so that this conservative court will be the one to rule on the detention's lawfulness. With the even split suggesting that the court may not be so conservative any more, the government's maneuvering room is reduced.

I remember arguing before the Fourth Circuit once in a pro bono case I took after I started teaching. The case was about state sovereign immunity (the doctrine that you can't sue a state government unless it consents to the suit), which is a big conservative issue. The Fourth Circuit was probably the least friendly place in the whole country to litigate the issue. But it was a close case and a lot depended on which three judges happened to be on the panel (three judges are drawn at random from the dozen or so judges on the full court). An old friend of mine who clerked on the court told me, "you'd better pray you don't get Wilkinson or Luttig." Naturally, I got both of them. It wasn't pretty.

Surprisingly, President Bush hasn't even nominated judges for the five vacant spots on the court. The administration claims to be "actively working" on finding nominees. I've always said that when the White House and the Senate are controlled by different parties, the solution is moderate, compromise candidates for judgeships. But this administration rarely seems interested in compromise. Well, if the result is no appointments until the next president, I won't shed any tears.