Bench Memos

This Day In Liberal Judicial Activism—May 4

1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez). Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name. Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.”

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession.” A more blatant defiance of controlling authority of a higher court is difficult to imagine.

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

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