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The new Supreme Court justice will be male, a strong-minded centrist, and he’ll hire only a couple of law clerks — one of whom will be a Cuban-American. No, we’re not talking about any real Supreme Court justice who might be appointed by the next president. The justice in question will be the star of “First Monday,” the Supreme Court drama that could end up on CBS-TV next fall. “It’s still a couple of steps from a commitment,” says co-creator Paul Levine. “But if ‘West Wing’ can do it, why can’t we?” As a Miami lawyer with the firm of Grossman & Roth, Levine once joined in a brief on behalf of the Florida First Amendment Foundation in the Supreme Court case of The Florida Star v. B.J.F. He is currently executive story editor for the Paramount Network Television series “JAG.” Levine’s co-creator for the Supreme Court venture will be Donald Bellisario, who is creator and executive producer of “JAG.” Past series created and produced by Bellisario include “Quantum Leap” and “Magnum, P.I.” “JAG,” now in its sixth season, managed to inject sex appeal and excitement into a line of work — lawyering for the Armed Forces — that heretofore seemed to be lacking both. If anyone can do the same for the Supreme Court, it is the 52-year-old Levine. Before heading to Hollywood from Florida, Levine wrote “9 Scorpions,” surely the most sexually charged of the recent spate of Supreme Court law clerk thrillers. It featured one Lisa Fremont, a stripper-turned-law-clerk who seduces her justice, Sam Truitt, for a complicated set of reasons — one of which is to sway his vote on a pending case. But that is not the model for the new TV show, Levine insists. ” ’9 Scorpions’ inspired me to think of the Supreme Court in this way. But it won’t be the same justice,” he says. Levine adds, “We’ll be picking up the red velvet curtains and getting a glimpse at the most shrouded, secret institution we have. But we will do it in a respectful way. It won’t be an expos�. There is nothing to expose.” It will be a challenge to keep a Supreme Court-based drama interesting, Levine acknowledges. “Judges, by nature, are not active, like doctors saving lives,” says Levine. “And at the Supreme Court, you don’t have the drama of trials and witnesses and the like.” But the mega-popularity of NBC’s “The West Wing” has paved the way for a show like “First Monday.” “It showed you can have intelligent issues resolved in highly dramatic ways,” says Levine. And even “The West Wing,” he points out, isn’t the first show to add drama to what is, in real life, an undramatic setting. “If you did a realistic series about hospitals, it wouldn’t look like ‘E.R.’ It would be about filling out forms.” The dramatic possibilities posed by the Court’s docket are endless, says Levine. “Gay rights, abortion, the rights of protesters at abortion clinics — there’s a wealth of material there,” he says. “We may not do boundary disputes or ERISA cases, but there are plenty of other areas to explore.” As he currently envisions it, the show will focus on a single justice and his chambers, though the rest of the Court will be portrayed to a lesser degree. The justice will be a centrist, Levine says, “so how he votes won’t be predictable. There will be some surprise to it. But he will have very strong principles.” He will be the junior justice, Levine says, and the show will open, aptly enough, on the first Monday in October. A search is under way for a noted actor who fits the part. As with other fictional works about the Court, the justice will have only two or three clerks, to make relationships less complicated. And as for the Cuban-American clerk? “That’s because I’m from Florida,” says Levine. Levine, who visited the Court in connection with his book, says he nonetheless is looking for a former Court law clerk to consult with to add authenticity to the scenes and the dialogue. “I’d love to have someone who was really there.” SURVIVING THE SUPREME COURT Speaking of television, the lunch crowd at the Supreme Court cafeteria did some star gazing recently, when none other than Rudy Boesch, one of the final four contenders on the cast of the CBS show “Survivor” stopped by. Boesch was at the Court as a guest of the Court’s marshal, Dale Bosley. Both are former Navy SEALs, a proud and tight fraternity. Bosley, 54, was a SEAL for 25 years — including four years commanding a 200-man SEAL team — before going into private practice as a lawyer briefly and then coming to the Court six years ago. Boesch, 72, retired in 1990 after a 45-year Navy career. The Court’s employee newsletter, Oyez! Oyez!, dutifully noted that Boesch ate chicken salad and fruit at the Court. His rat-eating days are over. JUDICIAL AUTHORS Chief Justice William Rehnquist reminisced about the late Justice William O. Douglas as he helped launch a new lecture series for the Supreme Court Historical Society — “The Supreme Court and the Art of the Written Word.” The first lecture, delivered by Loyola College professor and Court history buff James O’Hara, focused on the justices’ “extra-judicial” writings. In introducing O’Hara, Rehnquist said that his own sampling of justices’ writing through the centuries showed a range from “a graceful style” to “dense, turgid, and almost incomprehensible” writing. Rehnquist, himself the author of three books, recalled that early in his tenure on the Court, he and his late wife, Nan, visited Douglas at his summer retreat in Goose Prairie, Wash. Before retiring one night, Rehnquist asked Douglas if he could take a book to read. Douglas pointed to a long bookshelf. “All the books had but one author — William O. Douglas,” Rehnquist said with a laugh. Douglas, who died in 1980 at age 81, wrote more than 30 books in his lifetime. But Douglas was not the only justice who wrote books. By O’Hara’s encyclopedic count, more than 50 of the justices through history authored books before, during, or after their tenure — from Joseph Story’s profound “Commentaries on the Constitution” to Louis Brandeis’ populist “Other People’s Money, and How the Bankers Use It,” written two years before joining the Court. O’Hara’s overall verdict on judicial writing bowed gracefully toward the current Court, which boasts three book authors: Antonin Scalia and Stephen Breyer, in addition to Rehnquist. “Some justices write very, very well,” O’Hara summed up. “Others, all in the 19th century, do not write very well.” Next in the series: On Nov. 8, University of Connecticut Professor R. Kent Newmyer will discuss opinion writing in the early republic. TRIBE CLEARS THE AIR No legal brief has gained more attention in the Supreme Court’s new term than an eye-popping critique of the Environmental Protection Agency’s Clean Air Act regulatory power, written by none other than liberal Harvard University Law School Professor Laurence Tribe. The brief was filed on behalf of the General Electric Co. in the key case of Browner v. American Trucking Associations, a challenge to clean air regulations based on the once-obscure “nondelegation” doctrine. That doctrine, usually favored by conservatives as a check on the regulatory state, says that Congress may not delegate away its legislative powers to executive branch agencies. Tribe embraces the doctrine without reservation, arguing in the brief that “value-laden policy choices” should be made by “politically accountable legislators rather than faceless bureaucrats.” “It’s an astonishing brief,” says Georgetown University Law Center Professor Roy Schotland. Quoting fellow Professor Richard Lazarus, Schotland likened it to conservative Robert Bork “writing a brief arguing for reaffirmation of Roe v. Wade.” The case will be argued Nov. 7. Tribe is amused by the attention the brief is getting, but says no one should be surprised at the position he takes. Tribe, who has had an ongoing relationship with GE on Supreme Court matters, says, “I’ve been a hawk on excessive delegation for years — since my days as a law student in the Pleistocene era, actually. So it’s hardly like a Bork brief in favor of Roe!” NO FRIEND OF THE GOVERNMENT Another brief in Browner v. American Trucking Associations has caused considerable buzz for containing a rare attack on the author of an amicus curiae brief. In the Clinton administration’s latest reply brief defending the EPA’s regulations, footnote 10 says industry respondents “distort” many aspects of the record below. “The comments of some of supposedly disinterested amici warrant brief mention,” it continues, singling out a brief filed by 20 law professors and scientists who attack the EPA’s rulemaking process as a “science charade.” The lead academic on the brief is Gary Marchant, associate professor of law at Arizona State University. The Solicitor General’s footnote states, “although Marchant portrays himself as a disinterested law professor � he actually served as one of ATA’s primary counsel in the proceedings below.” Reached by phone in Tempe, Marchant dismissed the footnote as an “ad hominem attack that will probably backfire on the government.” Marchant acknowledges he came to Arizona in the summer of 1999 after working on the ATA case with Edward Warren at Kirkland & Ellis. “But I’ve had no funding or connection with the association since then, and the fact is, 19 other academics signed it with me,” Marchant says. “For the government to deal with our arguments by attacking one of the authors is pretty egregious and probably won’t impress the Court.” The “science charade” phrase has been around for a while, Marchant says, and represents a respectable line of thinking that says the EPA has been masking its policy choices for clean air standards by falsely invoking scientific evidence.

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