Convictions: Slate's blog on legal issues

Judge Bait

David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?

In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.

Oops!

That's about the best response the Justice Department and White House can muster after finding out that 46 of the 74 judges on the federal Board of Patent Appeals and Interferences were appointed in an apparently unconstitutional manner. Adam Liptak writes in his NYT "Sidebar" column how this matter would have continued to go unnoticed but for the intrepid reporting and writing of GWU law professor John Duffy, who published a short paper on the issue.

What amazes me is how many people were simply asleep at the switch here. There are hundreds, if not thousands, of lawyers who practice in this area, and the appointment of patent court judges is a big deal to those lawyers and their clients. You'd think that one of these lawyers would have found this issue while looking for a way to overturn an unfavorable decision—but that apparently didn't happen. Kudos to professor Duffy for his investigative skills.

But now what? Is there a way that Congress or the Department of Commerce can retroactively endow these judges with lawful authority?  Can these judges' decisions be saved?