The LSAT, Logic Games, & Brendlin

One component on the standardized test used for admission to law schools around the country, is called logic games. Logic games comprise a range of different situations in which a student taking the test must know how to arrange and coordinate multiple sets of elements at a time.

For example, say that a college counselor needs to meet with five students: Betty, Carol, Dan, Ellen, and Fin over the five day week. The test taker must coordinate the schedule for the college counselor. Simple right? However, there may be several restrictions to the counselor's meeting schedule such as the fact that she cannot see any girls on Monday or Wednesday, Carol must see the counselor before Dan, and Carol must see the counselor anytime in between Betty and Ellen. The Law School Admissions Test (LSAT) thus requires students to be able to separate important issues and determine what really matters in resolving a problem.

Similarly in the recent case involving passenger's rights to bring a constitutional challenge against a traffic stop search (Brendlin v. California), a similar element of being able to separate issues and deal with multiple elements at a time is at hand. The case is interesting in that the methamphetamines seized on Brendlin's person implicate him in illegal drug use. Why should a person who most probably committed a crime be allowed to bring a challenge to his detention and suppress this evidence? It is most likely for this reason why the California Supreme Court ruled against Brendlin since letting a person who violated the law go free is not "equal justice under law." Yet, the question which the justices should have addressed separates this issue of guilt and innocence, requiring them to ascertain whether or not Brendlin or a person similarly situated has the right to bring a constitutional challenge to the seizure. Whether or not the person is guilty or innocent based on this evidence seized during the traffic stop is an entirely separate issue.

The question posed to the justices was: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop." How else could a person sitting in the vehicle not be detained? It would be ludicrous to say otherwise. Come on, justices use those good skills that the LSAT reinforced.

It appears that perhaps the California Supreme Court justices need a little logic games review for the next term.

Increasing Tension in Lower Court Nominations

It is well known among scholars of the law that most of the power to decide cases lies with lower court judges rather than courts of appeal or courts of review. The rationale is that higher courts, while they have the power of reviewing lower court decisions, do not have the time to review all of the lower court decisions and therefore they usually stand as the law.

However, it appears that there is always a frenzy over appointing judges at higher levels in the court system. Alito and Roberts are examples on the USSC. On lower courts, we saw in the summer of 2005 the contentious battles over the nomination of Priscilla Owens and Janice Rogers Brown for federal courts. Owens was finally confirmed for her seat on a federal appellate court and Brown now serves on the United States Court of Appeals for the District of Columbia Circuit.

Recently, a similar, but less contentious battle over the Governor John Corzine's nominee for chief justice of the New Jersey Supreme Court has brought to light this battle over lower court nominees. Corzine nominated Stuart Rabner, former attorney general for the state, but some minorities in the New Jersey Senate criticized Corzine for Rabner's nomination citing the fact that not as much consideration was given to minority candidates.

Rabner was confirmed by a vote of 36-1 indicating that although there was concern over his nomination, this did not pose much of a threat to his nomination. It appears, therefore that either credentials were more important in state legislators decision to confirm Rabner or that his political ideology was in line with that of state legislators despite concerns over his race.

Composition of the Court & the NSA Terrorist Surveillance Program

The controversy over the NSA terrorist surveillance program may actually have some connection to the current composition of the Court as it stands right now.

Recall that nearly a year and a half ago White House Legal Counsel Harriet Miers withdrew her nomination. The reasons given for her nomination were quite vague. While many speculated that she did not want to participate in a confirmation process which would cause both political parties much anguish, there was also one other factor. A quick read of her letter withdrawing her name from the nomination process sheds light on the fact that the White House may have been trying to prevent the public from perusing confidential documents, perhaps regarding the NSA terrorist surveillance program. The text of her letter reads:



Dear Mr. President:


I write to withdraw as a nominee to serve as an associate justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.


As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.


As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.


I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your administration and this country.



Most respectfully,


Harriet Ellan Miers



While there is no conclusive proof of what these documents were, it remains interesting to speculate that these documents contain secrets about the NSA terrorist surveillance program.

Pearson as a Symbol of Increasing Litigiousness in American Society

D.C. administrative law judge, Roy Pearson, is giving lawyers and jurists alike a bad name. If lawyers--who may eventually become judges--didn't already have enough of a bad name already, Pearson is taking the reputation of jurists down to a new historically low level.

According to a June 21st ABC report on the pants lawsuit saga that is currently clogging our overloaded judicial system (with which Pearson should himself be familiar and therefore should be ashamed of clogging it even more with useless lawsuits), Pearson broke down in tears during his testimony detailing the traumatic events of losing his pants. ABC reports:

A Washington, D.C. law judge broke down in tears and had to take a break from his testimony because he became too emotional while questioning himself about his experience with a missing pair of pants....

But as he explained the details of the missing pants, Pearson struggled to get through his hour and a half of testimony, most of which concerned his credentials and his background.

He became visibly emotional when he reached the point in the story where he confronted Soo Chung from the dry cleaning store.

"These are not my pants,'' he testified yesterday, telling her "I have in my adult life, with one exception, never worn pants with cuffs."

But Chung insisted, Pearson testified.

"These are your pants."

Pearson rushed from the courtroom, tears streaming down his face.

Poor Pearson.

Pearson's case really represents only the tip of the iceberg in an increasingly litigious American society. According to Professor Robert Kagan in his piece entitled American Adversarialism, the number of cases being appealed today is about fifteen times that of the number in 1960--an increase of nearly 1500% in appeals.

No New Jurisprudence in Enemy Combatant Decision

While much has been made of the decision of the 4th Circuit Court of Appeals to curtail powers of the president to declare civilians "enemy combatants" and hold them indefinitely without trial, the Court of Appeals appears to only affirm what the USSC decided in Hamdi v. Rumsfeld (2004). Justice O'Connor wrote:

While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233–234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

Indeed, the 4th Circuit's decision (oddly enough one which was overturned in the Hamdi case) falls in line with the Court's reasoning approximately 3 years ago. Indefinite detention of so-called "enemy combatants" is unconstitutional and unsound use of governmental power.