How Appealing Extra

Posted 2:00 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

July 06, 2009

JUSTICE KENNEDY'S NOT THE ONLY SWING VOTE ON HIGH COURT

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The public perception of the U.S. Supreme Court is that the nine justices are split rigidly into two ideological camps with Justice Anthony M. Kennedy uncomfortably straddling the divide.

It's an exaggeration that only rings true in a small proportion of the court's decisions, albeit usually the ones focusing on hot-button social issues.

In 79 cases decided in the term that ended Monday, only 23 were 5-4 rulings. Of those, 16 were split along familiar ideological lines with Justice Kennedy as the swing vote.

The liberal wing prevailed in five, while the conservatives won 11. But the remaining eight 5-4 rulings saw the justices aligned differently. Those cases usually hinged on Justices Antonin Scalia or Clarence Thomas joining with several of the liberal justices.

"I do believe the media is overly fixated on Justice Kennedy as the swing vote," said Jeffrey Fisher, a professor at Stanford Law School who regularly argues before the court.

Scalia and Thomas were both key votes in a case Fisher won this term. The court held in a 5-4 ruling that the Sixth Amendment rights of defendants to confront witnesses are violated if they are not given the opportunity to cross-examine certain expert witnesses. Melendez-Diaz v. Massachusetts, 2009 DJDAR 9363.

The other criminal case focused on exceptions to the exclusionary rule that protects people from unconstitutional searches under the Fourth Amendment. A similarly aligned court limited the right of police officers to search cars when they pull someone over. Arizona v. Gant, 2009 DJDAR 5611.

The challenge for counsel such as Fisher, who represent liberal causes before the court, is to decide which of the conservative justices is most easily persuaded.

Kennedy isn't always the first choice.

That's because both Scalia and Thomas can be swayed by arguments that appeal to their rigid conservative judicial views, "which can lead them where it cuts against their conservative political leanings," Fisher said. The same arguments wouldn't work with Kennedy because he doesn't have such a strong judicial philosophy, he added.

Outside the realm of criminal law, Thomas and Scalia also signed on to a majority opinion authored by the court's most liberal justice, Ruth Bader Ginsburg, in a case involving consumer rights.

The court ruled 5-4 in favor of a plaintiff seeking to pursue a claim against Discover Bank in state court. The bank had sought to remove the case to federal court in order to compel arbitration. Vaden v. Discover Bank, 2009 DJDAR 3385.

What the two criminal cases and Vaden also share in common is that Justice Stephen G. Breyer, one of the liberal justices, was in the dissent. This indicates his concern at the practical implication of cases, a theme that runs through his votes on both criminal and business cases, said another leading Supreme Court advocate, David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington. Breyer is not "doctrinally pure" in the same way as Thomas or Scalia, he added.

That isn't to say that Thomas or Scalia always reach the same conclusion.

In one of the last decisions of the term, Scalia wrote the majority opinion holding that state attorneys general can enforce state laws against national banks. Thomas was in the dissent. Cuomo v. Clearing House, 2009 DJDAR 9597.

A few days earlier, Thomas wrote the majority opinion in a maritime case in which he sided with the liberal justices, with Scalia in the dissent. Atlantic Sounding v. Townsend, 2009 DJDAR 9337. The majority concluded that a crew member on a tugboat could claim punitive damages for injuries he suffered at sea.

The fluid nature of vote-counting on the Supreme Court is also reflected in some of the court's more high-profile rulings that didn't end in 5-4 votes. One was a drug regulation case in which many expected the court to be split along ideological lines. The pharmaceutical industry attempted to convince the court that state liability lawsuits are pre-empted under federal law by U.S. Food and Drug Administration labeling regulations.

The court disagreed, ruling 6-3 in favor of plaintiff Diana Levine, with Thomas and Kennedy joining the liberal bloc. Wyeth v. Levine, 2009 DJDAR 3199. Frederick, who argued the case for Levine, said he had a strategy at oral argument that was designed to woo Thomas based on how the justice had voted on other pre-emption cases.

"I was hopeful we could entice him," he added. Although not essential to the outcome - because Kennedy also joined the majority - the strategy worked.

Even more unexpected than that outcome was the 8-1 ruling in an important case on the Voting Rights Act. At issue was Section 5 of the act, which requires political subdivisions in certain states with a history of elections tainted by race discrimination to get approval from the Justice Department before making any changes to their voting regulations. Northwest Austin Municipal Utility District Number One v. Holder, DJDAR 8986. The court stopped short of striking down Section 5, but the justices said it should be easier for political subdivisions to opt out of Justice Department supervision of their elections if there is no recent history of racial discrimination.

Many observers had expected the conservative wing to persuade Kennedy to find Section 5 to be unconstitutional. But instead, led by Chief Justice John G. Roberts Jr., the court ruled narrowly and didn't reach the constitutional question.

Legal observers can only speculate as to why Roberts seemingly led the effort to dodge the key issue in the case. Some, like Frederick, suggest that Roberts may have lacked enough votes to strike down Section 5.

Others, including Arthur Hellman, a professor at the University of Pittsburgh School of Law, said Roberts was trying to avoid a damaging institutional clash with both the Democratic-controlled Congress and a Democratic president.

"He would be concerned about the prospect of a court-Congress battle that would not be good for either institution," Hellman said.

Taken as a whole, the rulings that didn't fall upon ideological lines illustrate that the court should not be viewed from just one perspective, said King & Spaulding partner Paul Clement, who served as solicitor general during the Bush administration.

"There are a number of fault lines," he said.

Posted 11:37 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

July 01, 2009

9TH CIRCUIT REVERSED 14 TIMES THIS TERM

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Back in December, the nine black-robed justices of the U.S. Supreme Court had an unusual experience during a routine oral argument: Both of the arguing counsel abandoned the reasoning of the federal appeals court ruling under scrutiny.

The circuit court in question was the San Francisco-based 9th U.S. Circuit Court of Appeals.

It was a moment that, in a sense, encapsulated the 9th Circuit's performance before the high court in the term that ended Monday.

Indeed, until the last week of the term, the 9th Circuit - often characterized as the most liberal of the circuits, with a high reversal rate to match - had not been affirmed in 13 argued cases that had been decided by the more conservative Supreme Court.

The court narrowly avoided a shutout when the justices affirmed its rulings in two education cases.

The final score: 14 reversals, two affirmances.

(That includes two cases that were partly affirmed and partly reversed. The Daily Journal counted one as a reversal and one as an affirmance based on how the Supreme Court ruled on the main legal question.)

Of the reversals, three were unanimous and three were closely fought 5-4 rulings.

Reflecting on the outcome, Chief Judge Alex Kozinski, a Reagan appointee based in Pasadena, noted in an interview that the Supreme Court has tended to take fewer 9th Circuit cases in recent years and warned of the dangers of reading too much into those that are reviewed by the Supreme Court.

"It's a small tip of the iceberg of what we do," he said by telephone.

Not surprisingly, one of the unanimous reversals was in the case argued in December, a low-profile antitrust dispute in which the 9th Circuit opinion was written by Judge Sidney R. Thomas, a Billings, Mont.-based Clinton appointee. The 9th Circuit affirmed the lower court ruling allowing several Internet service providers to pursue a price-squeezing claim against a unit of phone company AT&T Corp.

The outcome before the Supreme Court was apparent from the moment Chief Justice John G. Roberts Jr. posed his first question to the lawyer for AT&T.

"You are probably feeling pretty good about your chances since your opponent has given up, right?" he said, to laughter in the courtroom.

The justices eventually reversed the 9th Circuit but allowed the plaintiffs to restate their complaint in district court. Pacific Bell Telephone Co. v. Linkline Communications, DJDAR 2673.

Judge Thomas, reluctant to comment about a case that is still pending in the lower court, said in a telephone interview that it is not unknown for both parties to abandon a judge's ruling.

"I'm happy when the Supreme Court can clarify an area of the law," which it did in its opinion, he added.

In that case, the plaintiffs went on to fight another day. In other cases involving big business, plaintiffs, especially environmental activists, didn't fare so well. The Supreme Court reversed the 9th Circuit in all four environmental rulings that were under review. In each, the 9th Circuit had ruled in favor of environmental interests.

"It sounds to me like the Supreme Court is less hospitable to environmental claims than we are," Kozinski said.

But he noted that the 9th Circuit also hears more environmental cases than most circuits because of the large territory it covers, which includes a considerable amount of federally administered land.

The other major reversal was an employment dispute over pregnancy leave, in which the 9th Circuit had found in favor of the employee.

The case hinged on whether AT&T discriminated against women by not allowing them to accrue pension benefits for time they spent on maternity leave before Congress passed the Pregnancy Discrimination Act in 1978.

The Supreme Court held 7-2 that AT&T could not be held liable. AT&T Corp. v. Hulteen, DJDAR 7019.

At least one member of the 9th Circuit, Portland-based Reagan appointee Judge Diarmuid F. O'Scannlain, seemed pleased with the high reversal rate. He wrote the dissenting opinions in the pregnancy case and in a criminal case that was also reversed. Hedgpeth v. Pulido, 2008 DJDAR 17639.

"I had a good year," O'Scannlain said in an interview.

He, along with Judges Ronald M. Gould, a Clinton appointee, and San Francisco-based George W. Bush appointee Carlos T. Bea were the judges the justices were most likely to agree with.

It was also a busy term for Judge Kim McLane Wardlaw, a Pasadena-based Clinton appointee, who wrote the majority opinion in the pregnancy case that was reversed. The Supreme Court also disagreed with her vote in three other cases.

But she did write the majority opinion in a high-profile case concerning strip searches in schools.

The justices, in an 8-1 vote, agreed with Wardlaw that school officials violated the Fourth Amendment's protections against unreasonable searches and seizures when they strip-searched Arizona middle school student Savana Redding. Safford v. Redding, DJDAR 9383.

The Supreme Court did not, however, concur with the 9th Circuit's ruling that the school official involved did not deserve qualified immunity. In an interview, Wardlaw downplayed the significance of whether the Supreme Court agrees with the way a circuit judge voted.

"I really do not think it's very meaningful whether any given judge is on the most panels that are reversed or the most affirmed," she said.

That's because the Supreme Court always has the freedom to depart from precedent in a way circuit judges can't, she added. The only 9th Circuit opinion the Supreme Court affirmed in full this term was written by Clinton-appointee Judge Susan G. Graber, who is based in Portland.

The Supreme Court agreed on a 6-3 vote that parents who place disabled children in private school should have their tuition fees reimbursed even when the student has not previously received special education services in public schools. Forest Grove v. T.A., DJDAR 8975.

Compared with recent years, the 9th Circuit's reversal rate "was at the high end," said Arthur Hellman, a law professor at the University of Pittsburgh who follows the court closely. The 9th Circuit remains "disproportionately represented" on the Supreme Court docket, he added, which makes the reversal rate look more significant that it is.

O'Scannlain clearly thinks that there is good reason for the justices to take a higher number of 9th Circuit cases.

He noted that it was another year "in which the 9th Circuit is out of sync with the Supreme Court."

Thomas disagreed, saying that the circuit is "certainly within the mainstream."

Wardlaw supported his view, noting that the justices only reviewed 16 out of around 12,500 9th Circuit cases. The 2nd Circuit, by comparison, has a caseload of around 8,000.

Of nine 2nd Circuit cases under review, the second highest number after the 9th Circuit, seven were reversed.

Wardlaw quoted Franklin D. Roosevelt appointee Justice Robert H. Jackson who, when describing the role of Supreme Court justices, noted: "We are not final because we are infallible, but infallible only because we are final."

Posted 11:30 AM by Howard Bashman

Posted 10:25 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

June 25, 2009

Environmental Issues Lose in Supreme Court
Mining Decision is Fifth to Disappoint Activists This Term

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court resolved its environmental caseload this term the same way it started: By reversing the 9th U.S. Circuit Court of Appeals.

The last of the court's five environmental rulings came Monday when the justices ruled 6-3 that mining waste doesn't require the same kind of strict regulation as many other forms of solid waste discharged into the nation's waterways. Coeur Alaska v. Southeast Alaska Conservation, DJDAR 8998.

Marking a total defeat for environmental interests this term, the ruling means mining companies face less costly regulation when it comes to dumping waste into water.

Although the five cases focused on different issues, what several of the decisions share in common is deference to executive branch policies that were implemented by the Bush administration, environmental law experts said.

Monday's ruling allowed a mining company in Alaska to dump waste into a pristine lake. It marked the fourth time the justices have reversed the 9th Circuit in four environmental cases this term. In a fifth case, the court reversed a 2nd Circuit ruling on another section of the Clean Water Act.

The first 9th Circuit reversal came back in November, in the court's first ruling of the term, when the court voted 5-4 in favor of the U.S. Navy in a dispute over the environmental damage caused by the use of sonar off the coast of California. Winter v. NRDC, DJDAR 16797.

The next two 9th Circuit cases involved forest service regulations and a dispute over pollution cleanup costs.

"It's been a miserable year for the environment in the Supreme Court," said Richard Frank, executive director of the Center for Law, Energy, and the Environment at UC Berkeley School of Law.

In contrast, it was a good term for business interests and the U.S. government.

In Monday's ruling, the court relied on an internal 2004 Bush administration memorandum stating that, under the Clean Water Act, mining waste should be defined as "fill material," meaning it fell under the authority of the Army Corps of Engineers rather than the U.S. Environmental Protection Agency.

Paul S. Weiland, who heads the land use and environmental resources group at Nossaman, said the decision is "certainly helpful" for mining companies, which now know for sure which section of the Clean Water Act applies to waste material. They will also face less of a financial burden in meeting the costs of regulation, as the Army Corps of Engineers' rules are less strict.

Addressing the mining case and others, Glenn Sugameli, an attorney with the environmental group Earthjustice, criticized the court for donning "pro-business blinders" at the expense of other interests.

Another example he cited was the 2nd Circuit case, in which the court reversed Judge - and likely future Supreme Court Justice - Sonia Sotomayor, who wrote the lower court opinion in favor of environmental groups. Entergy v. Riverkeeper, DJDAR 4885.

In that case, the Supreme Court ruled 6-3 in April that the government can take into account economic costs when considering what kind of technology power plants should use to update their water-intake cooling mechanisms.

In doing so, the court upheld the right of the Bush administration's EPA to adopt a cost-benefit analysis when deciding what upgrades energy companies have to make under the Clean Water Act.

For Albert C. Lin, an environmental law professor at UC Davis School of Law, the outcome indicates that a majority on the court is "quite sensitive to concerns about costs and economics."

That concern is also reflected in a May Superfund ruling, he added, in which the high court let Shell Oil Co. off the hook for millions of dollars of environmental cleanup costs at a California Superfund site.

The court held in an 8-1 decision that the company was not liable simply because it delivered agricultural chemicals to the site. That was the only environmental case in which the court rejected the federal government's position. Burlington Northern v. United States, DJDAR 6381.

The dispute was over a 5-acre site in the town of Arvin, located in Kern County, about 15 miles southeast of Bakersfield.

The one case that didn't present a conflict involving business instead touched on another issue of concern for environmentalists: standing. It centered on a little-known dispute over a U.S. Forest Service rule exempting certain projects from public comment.

The 5-4 ruling, in which the justices barred California environmentalists from proceeding with a lawsuit challenging various regulations, echoed a line of cases decided during Chief Justice William H. Rehnquist's tenure, in which the court tightened the definition of standing, thereby making it harder for plaintiffs to file suit. Summers v. Earth Island, DJDAR 3035.

But as Berkeley's Frank noted, "it's too early to say" whether the ruling is a sign that the court under Chief Justice John G. Roberts Jr. will continue in that direction.

That's in part because in a key global warming case decided in 2007, the court went the other way in holding that states have standing to sue the EPA to enforce the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497.

The forest service regulation case shares a common trait with the Navy sonar ruling of being "really helpful" to the federal government, Nossaman's Weiland said.

Both cases make it harder for private plaintiffs to challenge government actions. In the Navy sonar case, the majority announced an "almost insurmountable standard" for plaintiffs in any case involving national security, Weiland added.

Despite the five defeats, all is not lost for environmental groups.

With the Bush administration out of office, environmentalists are now hoping that the Supreme Court will, as Earthjustice's Sugameli put it, "apply the same principles" of deference to the Obama administration if the EPA enacts new rules that are more pro-environment.

The administration and Congress could also act to reverse some of the recent decisions.

UC Berkeley's Frank predicted that environmental groups will pressure the Obama administration to revisit some of the policy changes made by the EPA in the Bush era, like the ones upheld in the two Clean Water Act cases.

Whether or not the new administration succeeds in rolling back any of the Bush policy changes "is uncertain at best," he said.

Staff writer Robert Iafolla contributed to this report.

Posted 2:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 22, 2009

3rd Circuit Committee in Kozinski Probe Completes Investigation

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - A special judicial committee of the 3rd U.S. Circuit Court of Appeals has completed its misconduct investigation of Chief Judge Alex Kozinski of the 9th Circuit in a long-running probe into sexually explicit photos found on a public Web site run by Kozinski, the Daily Journal has learned.

The committee sent its report and a recommendation regarding possible sanctions to the 3rd Circuit's judicial council in late April, according to a source close to the investigation who declined to be named because he was not authorized to speak about the matter.

U.S. Supreme Court Chief Justice John G. Roberts appointed the five-judge committee last June 16 to evaluate Kozinski's conduct in light of the photos, which showed nude women on all fours painted to look like cows, images of masturbation and public sex and other graphic material.

Kozinski, who keeps chambers in Pasadena, said at the time he was unaware that the site - www.alex.kozinski.com - was open for unrestricted viewing.

The results of the completed investigation have not yet been released.

Asked whether the investigation had hindered the 9th Circuit's operations, Kozinski replied Thursday, "I have been blessed with terrific staff and very helpful and understanding colleagues. We remain one of the busiest and most productive federal appellate courts in the country."

Kozinski and his attorney, Kirkland & Ellis partner Mark Holscher of Los Angeles, declined to comment further on developments in the investigation Thursday. But in an e-mail to the Daily Journal last June, Kozinski wrote, "I consider the server and its contents a private matter. It was not meant to be accessible by others, and I had no idea it was. I would have been more careful of its contents, had I known that it was."

Chief Judge Anthony J. Scirica of the Philadelphia-based 3rd Circuit, who heads both the special committee and the judicial council, did not return a call for comment.

One question the committee likely considered was whether Kozinski violated Canon 2A of the Code of Conduct for federal judges, which requires that "a judge must avoid all impropriety and appearance of impropriety" in "both the professional and personal conduct of a judge," according to official comment on the code.

The content of the report and the nature of the recommendation remain closely guarded. Kozinski had 21 days to respond to the committee's findings, under the rules governing federal judicial misconduct investigations. The 3rd Circuit's judicial council will next consider whether to discipline Kozinski, who called for an investigation into his own conduct after the Web site's existence was disclosed nearly a year ago. In re Complaint of Judicial Misconduct, No. 08-90035.

Kozinski can then appeal the 3rd Circuit's disposition of the complaint to the federal courts' policymaking body, the U.S. Judicial Conference.

New judicial misconduct rules, never before tested, allow for the transfer of such investigations to another circuit "in exceptional circumstances" that in Kozinski's case avoided the awkward prospect of having his subordinate judges scrutinize him.

Two complications may have slowed the investigatory process that has stretched on for nearly a year, according to lawyers experienced in judicial misconduct matters.

Roberts' order specified that the 3rd Circuit should investigate Kozinski's conduct on his Web site "and any pending or new complaints relating to the same subject matter."

That opened the door for Kozinski's chief antagonists to ship lengthy new written grievances to the 3rd Circuit.

One came from Leonidas Ralph Mecham, a former top federal courts administrator whose feud with Kozinski over internal 9th Circuit policy dates from 1998. Mecham sent a 38-page misconduct complaint in November focused on old claims that Kozinski had tolerated and protected the downloading of Internet pornography by federal judges and court employees.

Another complaint came from Cyrus Sanai, the Beverly Hills lawyer who originally discovered the damaging photos online. Indeed, Sanai said, lawyers retained by the 3rd Circuit to assist it in its probe solicited an affidavit from him recounting his involvement with Kozinski. Sanai added that he responded with a lengthy statement stressing his previous run-ins with the judge.

An authority on judicial misconduct matters, Arthur Hellman of the University of Pittsburgh School of Law said those add-on complaints likely bogged down the committee's inquiry.

"If the only question was whether Judge Kozinski took adequate precautions to keep his Web site private, this investigation would probably have been over long ago," Hellman said this week. "So it seems that the special committee was investigating more than that. The 'something more' could well be the complaints filed by Mecham and Sanai."

Even so, both Sanai and Mecham said 3rd Circuit investigators conducted no follow-up interviews based on their complaints, leading them to question whether their criticisms got a serious hearing.

"It's going to be a whitewash," Sanai predicted Wednesday. "They don't want to deal with these issues."

A second complication arose because the revelation about Kozinski's Web site forced him to recuse himself and declare a mistrial in a federal pornography prosecution he was hearing by designation in Los Angeles just as his Web site photos became public last June.

The Justice Department had charged defendant Ira Isaacs with importing or transporting obscene videos as part of a major Bush administration crackdown on pornography. The indictment linked Isaacs to at least 20 Web sites that sold movies containing scenes of bondage, defecation, urination and other graphic matter.

After the mistrial, Isaacs moved for dismissal of the charges on double jeopardy grounds. A different judge denied the motion, and Isaacs' appeal is currently before the 9th Circuit. U.S. v. Isaacs, 08-50423.

The investigation into Kozinski's Web photos and the Isaacs appeal converged last Oct. 30 when federal prosecutors wrote all 50 9th Circuit judges asking them to consider recusing themselves from the Isaacs appeal.

The Kozinski Web site photos, the federal prosecutors wrote, "were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs."

The prosecutors in the Isaacs case noted in a May 4 pleading that "the appellate docket sheet does not reflect that the court has taken any action one way or the other in response to this notice."

That left open the question of whether the 3rd Circuit might have expanded its investigation to include the Isaacs matter.

Kozinski could be subject to further discipline if the council finds the judge's personal misconduct damaged the prosecutors' case in the Isaacs trial, Hellman said.

"One thing we don't know is whether the Ira Isaacs appeal will delay either the resolution of the Web site complaint or the public announcement," Hellman said. "First, the 3rd Circuit Judicial Council may want to wait for the outcome of the appeal, so that it will know whether Kozinski's recusal and mistrial declaration lead to a dismissal of the criminal case. Second, the 3rd Circuit may be concerned about prejudicing the appeal by issuing its findings while the criminal matter is still pending."

Posted 10:40 PM by Howard Bashman

Posted 2:48 PM by Howard Bashman

Posted 7:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May. 20, 2009

Top Contenders for Souter's Seat Diverge on Key Issues

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Soon-to-retire Justice David H. Souter has quietly repudiated the judicial views of a female California judge some believe should replace him and endorsed those of one of the leading contenders in a majority opinion he authored this week involving the rights of women workers.

With most expecting President Barack Obama to replace Souter with a woman, the contrasting opinions of the two women judges on the issue of women workers' rights showed that judges of the same general ideology, and even of the same gender, don't always reach the same conclusions.

Monday's 7-2 ruling, which resolved a circuit split, held that telecommunications giant AT&T Corp. could not be held liable for refusing to grant pension benefits to female employees for maternity leave taken before a federal law on the matter was passed in 1978. AT&T Corp. v. Hulteen, DJDAR 7019.

That decision reversed a 9th U.S. Circuit Court of Appeals opinion written by Pasadena-based Judge Kim McLane Wardlaw, who has been promoted by Sen. Dianne Feinstein, D-Calif., and others as a possible replacement for Souter. Although reports suggest Wardlaw has not made Obama's shortlist, she would be the country's first Hispanic justice if nominated and confirmed.

At the same time, the Supreme Court's decision embraced the conclusion of the 7th Circuit in a 2000 case dealing with the same issues written by Judge Diane Wood, a frequently mentioned frontrunner to replace Souter.

The rulings may give the White House some insight into whether Wood and Wardlaw have "that quality of empathy" Obama has said he is looking for in his nominee.

Both the 9th and 7th Circuit cases addressed whether women plaintiffs could file gender discrimination lawsuits under Title VII of the Civil Rights Act because their maternity leave was not treated like short-term disability for the purpose of calculating their pension benefits. That meant their pension benefits ended up being lower than if their maternity leave had been treated as a disability.

Congress didn't pass the Pregnancy Discrimination Act, which required employers to count maternity leave as disability, until 1978. The plaintiffs, however, argued that even if the law didn't apply retroactively, they still had a claim because the pension benefits were calculated years after the law took effect.

In the AT&T case, decided in favor of the plaintiffs in August 2007, Wardlaw wrote for an en banc court that the phrase in the 1978 law stating "women affected by pregnancy" should be treated the same as those on disability leave applied to AT&T's calculation of benefits and not just to the leave itself. Hulteen v. AT&T, 2007 DJDAR 12527.

AT&T could easily have taken into account the plaintiffs' pregnancy leave when calculating the benefits, but the company "simply chose to continue its systematic discrimination against women, based on pregnancy, even after Congress made it illegal," Wardlaw wrote.

Wardlaw's ruling shows "she is closer to [Justice Ruth Bader] Ginsburg than Souter" in terms of her judicial philosophy, said a former 9th Circuit clerk, who declined to be named because she clerked at the time the court considered the AT&T case. The 9th Circuit decision "is also a good example of empathy for working women," said the former clerk, who is now a California labor lawyer.

Ginsburg's passionate dissent in Monday's case indicates she would be more in line with Wardlaw than Wood, at least on the issue before the court.

In her dissent, Ginsburg, who is the only woman on the court, stressed that the Pregnancy Discrimination Act was drafted to "protect women ... against repetition or continuation of pregnancy-based disadvantageous treatment." Ginsburg has said she would like to see more women on the high court and suggested in an interview with USA Today that women might approach certain cases differently than men.

The recent cases, however, suggested that even different women judges might approach certain issues differently.

In the 7th Circuit case, the almost identical issue was whether Ameritech Corp. had correctly calculated benefits for women who took pregnancy leave before the 1978 law went into effect. Ameritech Benefit Plan v. Communication Workers, 220 F.3d 814.

In her opinion on behalf of a three-judge panel, Wood wrote that she had an "obligation" to follow Supreme Court precedent and that the circuit court had to follow a different line of cases than those Wardlaw cited. Wood conceded that the distinction between the competing precedents was "subtle at best" but found that the employees could not "show the kind of intentional discrimination" required for their lawsuit to proceed.

She also noted that, unlike clearly discriminatory acts, such as unequal pay, "the women knew from the minute they took their pregnancy or maternity leaves that they were not getting full credit for their time off."

In the 9th Circuit opinion, Wardlaw openly criticized Wood's earlier ruling, describing it as "problematic" because it failed to apply the 1991 Civil Rights Act. She also said the decision contradicted the "express legislative directive" contained in the Pregnancy Discrimination Act.

But the 6th Circuit, in an opinion written by another woman judge, Karen Nelson Moore, embraced Wood's analysis when it decided the same issue in 2007. Leffman v. Spring Corp., 481 F.3d 428.

Marcia Greenberger, co-president of the National Women's Law Center, said she believes women bring a different perspective to cases than men but, as Wardlaw and Wood have shown, "all women don't think alike."

"I think it's important for the court to have justices that bring a broad range of experiences to bear," Greenberger said about the need for women justices.

Wood, along with Solicitor General Elena Kagan and 2nd Circuit Judge Sonia Sotomayor, are apparently at the top of the White House's shortlist of nominees, according to media reports.

Wardlaw, despite being the daughter of a Mexican-American woman, has failed to attract enthusiastic support from Latino groups in California, which instead have endorsed California Supreme Court Justice Carlos Moreno.

Other names mentioned include Michigan Gov. Jennifer Granholm and Janet Napolitano, a former Arizona governor who now heads the U.S. Department of Homeland Security.

Conservative activists have expressed particular alarm at the prospect of Wood's possible nomination, seeking to portray her as a liberal activist judge.

Wood "has consistently twisted the Constitution to deny the rights of religious people," the Judicial Confirmation Network, a conservative group, said in a memo released to the press.

Conservatives focus on her role in reviving a long-running case in which abortion rights supporters sought to apply the federal civil racketeering statute to prevent anti-abortion activists from organizing to obstruct access to abortion clinics.

Wood wrote the majority opinion in which the court held that the abortion rights group could seek injunctive relief from federal courts.

The Supreme Court reversed in 2003. NOW v. Scheidler, 537 U.S. 393, 402.

Conservatives view Wardlaw as less of a threat, which may reflect the slim chance she has of being nominated. They see her as an "open-minded" judge who has shown restraint in certain instances, particularly in criminal cases, according to Curt Levey from the Committee for Justice, another conservative group. Wardlaw has shown that "you can be liberal and believe in the rule of law," he said.

Obama is expected to announce his nominee within the next two weeks.

Posted 12:15 PM by Howard Bashman

Posted 10:30 PM by Howard Bashman

Posted 10:28 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 08, 2009

GENDER MAY BEAT ETHNICITY IN JUSTICE PICK
Obama Likely to Pick Woman for Supreme Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Latino legal groups are lobbying hard for President Barack Obama to appoint one of their own to the U.S. Supreme Court for the first time, but the overriding political pressure for a woman nominee could dash their hopes.

With only one woman, Justice Ruth Bader Ginsburg, currently on the court, most legal and political observers say they think the White House will appoint the nation's third ever female justice.

The question then becomes whether Obama will pick an Hispanic woman to replace Justice David H. Souter, who announced his retirement last week.

If Obama does, his options within the federal judiciary - where presidents most often look when seeking a Supreme Court justice - are limited, legal experts said.

Obama has indicated he is keen to take into account diversity of background and experience in choosing a nominee but has not said specifically whether he will appoint a woman or a minority.

Fewer than 4 percent of federal judges are Hispanic, according to the Congressional Hispanic Caucus, which notes that Hispanics make up 15 percent of the U.S. population as a whole.

Although two Hispanic women have been mentioned as leading candidates - Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals and, to a lesser extent, Judge Kim McLane Wardlaw of the 9th Circuit - no others are cited with any regularity.

Of the two, Sotomayor, who is of Puerto Rican descent and graduated from Yale Law School, has so far attracted the most attention, both from supporters and conservative opponents, who have highlighted her sometimes abrasive persona on the bench.

What may appeal to Obama, in addition to her gender, ethnicity and humble origins as the daughter of immigrants, is that she's experienced not only as a judge but also as an attorney in private practice and as a state prosecutor.

The other Hispanic woman candidate, Wardlaw, also comes from immigrant origins, being the daughter of a Mexican-American mother. Wardlaw graduated from UCLA School of Law and went on to make partner at O'Melveny & Myers.

She and her husband, attorney Bill Wardlaw, are both well-connected in Democratic circles. Her husband was once described as the "shadow mayor" of Los Angeles due to his close relationship with former mayor Richard Riordan, a Republican.

Legal observers have also suggested several male Hispanic candidates, such as Ken Salazar, the former Democratic senator for Colorado who is now Secretary of the Interior, and Ruben Castillo, a federal district court judge in Illinois. Members of California's Hispanic legal community have been promoting their favorite candidate - California Supreme Court Justice Carlos R. Moreno (see related story).

But most believe the White House would face more political heat for not appointing a woman than it would for failing to appoint an Hispanic.

Non-Hispanic front-runners include Solicitor General Elena Kagan, Judge Diane Wood of the 7th U.S. Circuit Court of Appeals and Jennifer Granholm, the Democratic governor of Michigan.

"The point has been well made" that the White House is likely to focus on a female appointee, said Arturo Vargas, executive director of the Los Angeles-based National Association of Latino Elected and Appointed Officials. While Obama may have few female Hispanic federal judges to choose from, Vargas stressed that there are "hundreds of thousands" of Latina lawyers across the country, if the White House wants to broaden its net.

"If the president is serious about it, he can look beyond the bench," Vargas said. He cited Antonia Hernandez, the former president of the Mexican-American Legal Defense and Education Fund, who now heads the California Community Foundation in Los Angeles, as an example.

The conventional wisdom in Washington is that Sotomayor and Wardlaw are the "only options" if the White House is looking purely at accomplished Hispanic women lawyers who are well respected within the legal community, said Tom Goldstein, a partner at Akin Gump Strauss Hauer & Feld who co-heads the firm's Supreme Court practice.

"I do think the imperative to appoint a woman is stronger than the desire to name a Hispanic," he said.

Vargas' group and other Hispanic organizations with a presence in Washington, such as MALDEF and the Hispanic National Bar Association, are compiling a list of candidates they hope the White House will consult.

Yet to be made public, the list will include Sotomayor and Wardlaw, according to John Amaya, an attorney in MALDEF's Washington office. He declined to say who else was on the groups' radar.

Amaya said MALDEF had "an open line of communication" with the White House and that he and his colleagues were also speaking with the staff of several senior senators, including Sens. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., who both serve on the Senate Judiciary Committee.

Schumer has already said he would like a Hispanic nominee, naming Sotomayor as a potential pick. The Congressional Hispanic Caucus is also lobbying for a Hispanic nominee. Rep. Nydia Velazquez, D-N.Y., who chairs the caucus, has mentioned Sotomayor as her preferred candidate.

"Appointing our nation's first Hispanic justice would undoubtedly be welcomed by our community and bring greater diversity of thought, perspective, and experience to the nation's legal system," Velazquez wrote in a letter to Obama last week.

But other Democratic members of Congress were more interested in a justice who would tilt the court's ideological balance to the left, and they've been more vocal in calling for a woman than they have been for an Hispanic.

Feinstein indicated in a statement Wednesday that she was particularly keen on a pro-choice candidate who would "treat all people equally under the law and appreciate the effect that Supreme Court decisions have on people's daily lives."

"I would be delighted to have another woman on the panel," she added.

Feinstein declined to say whether she would favor Wardlaw, whose nominations to the 9th Circuit and U.S. district court won her support, or another Hispanic nominee.

Likewise, Sen. Barbara Boxer, California's other Democratic senator, was mum about any specific candidates she might have in mind.

But in a statement issued by her office, Boxer said she would prefer a woman.

"Having spoken with Justice Ruth Bader Ginsburg and former Justice Sandra Day O'Connor, I am convinced it is essential that we have another woman on the bench," Boxer said. "Women make up more than half of our population, but right now hold only one seat out of nine on the United States Supreme Court. This is out of balance."

Another California Democrat, Rep. Linda Sanchez, an Hispanic woman who represents Lakewood and other Southern California cities, said in a statement that she was focused on how the justice would approach the law rather than whether the nominee was a woman or Hispanic.

She added, however, that "it is pertinent to consider both gender and ethnic diversity."

The White House is expected to announce the nomination as early as next week.

Posted 2:55 PM by Howard Bashman

Posted 2:50 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 04, 2009

FREE HAND FOR OBAMA IN JUSTICE PICK
Souter's Departure Lets Obama Shape Supreme Court

By Lawrence Hurley and Robert Iafolla
Daily Journal Staff Writers
WASHINGTON - Now that the opportunity to make an early U.S. Supreme Court appointment has fallen into President Barack Obama's lap, the big decision he faces in replacing Justice David H. Souter is whether to stick or twist.

Souter, who confirmed Friday that he plans to retire at the end of June, has been a reliable liberal vote on the court and could easily be replaced by someone who shares similar views.

But he is by no means an outspoken left-winger. Souter was nominated to the court in 1990 by Republican President George H. W. Bush.

With Democrats within one vote of a filibuster-proof majority in the Senate following the party switch of Sen. Arlen Specter of Pennsylvania, Obama could go for broke and appoint a full-blown liberal to the court for the first time since President Bill Clinton nominated Ruth Bader Ginsburg in 1993.

Such a move wouldn't dramatically alter the balance of the court, although it might tilt the court slightly to the left. It might also pave the way for Obama to reshape the court further should retirement announcements come from 89-year-old John Paul Stevens or 76-year-old Ginsburg, who was recently treated for cancer.

But with plenty of other pressing issues on Obama's plate, such as the slumping economy, two ongoing wars and a possible flu pandemic, the White House may seek a smooth confirmation of a solid moderate.

Another factor is that all of the interested parties want Souter's replacement to be confirmed in time to take the bench for the court's new term, which starts in October.

With most court-watchers expecting Obama to appoint a woman, the question now becomes which of the leading contenders represents a gamble and who would meet with less resistance from conservative activists.

Experts say Obama has broad leeway to choose among diverse option.

"The stars are aligned" for Obama, according to Michael O'Neill, former chief counsel to the Senate Judiciary Committee when Specter was chairman. He helped usher through the nominations of both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

Not only is the president "still in his honeymoon period" and riding high in opinion polls, but he also has a clear working majority in the Senate, O'Neill said.

"He is in a very good position to appoint the person he wants to sit on the court," he added.

By the time Obama's nominee faces a confirmation vote, he may even enjoy a potential filibuster-proof majority of 60 Democratic senators if the contested election is resolved in Minnesota, where comedian Al Franken's narrow victory is in dispute.

Obama does, however, have to be careful not to nominate someone Democrats from conservative states could have trouble supporting.

As for who he will pick, most expect a high-flying judge or legal scholar.

The president, however, could look beyond the judicial and academic community and perhaps choose someone with executive office experience such as former Arizona Gov. Janet Napolitano, who now heads the U.S. Department of Homeland Security, or even a member of Congress, such as Sen. Claire McCaskill, D-Mo., both of whom are lawyers.

But the three candidates most often mentioned by pundits, legal experts and lawyers who practice before the court are recently appointed Solicitor General Elena Kagan, 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor and Judge Diane Wood of the 7th Circuit.

All three, who were mentioned as possible replacements for Ginsburg when she was treated for pancreatic cancer in February, could be confirmed with some ease, experts say, although they would also face considerable heat from conservative activists.

In fact, various conservative groups were already dissecting the careers of potential nominees within hours of Souter's possible retirement being reported.

"The Republicans will go after whoever is named," said Nan Aron, president of liberal advocacy group Alliance For Justice.

But Specter's switch of party allegiances represents a "significant change," she said, because the senator will no longer feel the need to toe the Republican party line when it comes to voting on a nominee.

"It certainly emboldens the president to pick the candidate he wants," Aron added.

Senate Republicans have not yet decided who will replace Specter as the ranking member of the judiciary committee although many predicted the replacement would likely be more conservative than Specter and even more responsive to party leadership.

Nonetheless, several political analysts said that would likely have little impact on confirmation proceedings since the GOP has too little leverage.

As a point of comparison, President George W. Bush was able to place two very conservative nominees on the bench over Democratic objections, and analysts said Obama has more political capital at his disposal than Bush did in 2005.

Depending on how much attention Obama wants to spend on his first Supreme Court vacancy, he can afford to be bold, in terms not just of ideology but also personal background.

"Whether the nominee is moderately liberal or very liberal, they will probably fit comfortably in the Court's left block," said Lee Epstein, a professor at Northwestern University School of Law who has written extensively about the Supreme Court. "The more interesting question is that of diversity."

Diversity in this instance, Epstein continued, falls along multiple dimensions, from gender and race to professional experience and home region.

In addition to being overwhelmingly male and white, all the justices are former appeals court judges and most come from the Northeast.

Of those on the top of the early lists of contenders, the selection of Kagan, the former dean of Harvard Law School, would break from the decades-long tradition of tapping an experienced judge for the high court.

A solid liberal known for her support for gay and lesbian rights, Kagan is also regarded as a skilful negotiator and consensus builder. Despite her recent appointment as the Obama administration's advocate before the Supreme Court, she has yet to argue a case before the high court.

Kagan raised the ire of conservatives when she played a leading role in an attempt by some law schools to prevent the military from recruiting on campuses as a protest of the military's "don't ask, don't tell" policy on homosexuality in the armed forces. Her nomination as solicitor general didn't go as smoothly as expected, with Specter voting against confirmation because he claimed she hadn't answered his questions fully enough.

Some court-watchers, speculating that Obama may want to appoint a minority candidate who is also a woman, favor Sotomayor - a Hispanic woman.

Her credentials when it comes to the politics of confirmation are bolstered by President George H.W. Bush's appointment of her to the district court in the Southern District of New York before President Bill Clinton nominated her to the appeals court in 1997.

Conservatives claim she is more liberal than Democrats would like to admit, pointing to her role in a 2nd Circuit panel that ruled against white firefighters claiming the city of New Haven, Conn. had discriminated against them. In that case, the city invalidated the result of a civil service examination on the grounds that not enough minorities scored high enough to win promotion. The case is currently under review by the Supreme Court. Ricci v. DeStefano, 07-1428.

Curt Levey, of conservative group Committee for Justice, said Friday that Sotomayor was a judge who "clearly committed to judicial activism."

The last of the three names most frequently mentioned is Wood, who, like Obama, taught at the University of Chicago Law School, and was nominated by Clinton to the 7th Circuit in 1995.

The 59-year-old Wood, who clerked for Justice Harry Blackmun and had a leadership position in the U.S. Justice Department's antitrust division during the early years of the Clinton presidency, is a liberal voice on the fairly conservative 7th Circuit.

She is perhaps best known for her role in reviving a long-running case in which abortion rights activists sought to apply the federal civil racketeering statute to prevent anti-abortion activists from organizing to obstruct access to abortion clinics.

Wood wrote the majority opinion in which the court held that the abortion rights group could seek injunctive relief from federal courts.

The Supreme Court reversed that decision in 2003. NOW v. Scheidler, 537 U.S. 393, 402.

Although highly thought of within liberal legal circles, some experts point to her advancing age as a possible disqualifying factor.

Posted 8:40 PM by Howard Bashman

Posted 5:55 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 19, 2009

Lawyer on the Pre-emption Frontlines: Frederick Won Two Supreme Court Cases That May Shape Perception of Court's 2008 Term.

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - For a lawyer arguing before the U.S. Supreme Court, there's nothing worse than facing Justice Anthony Kennedy's steely glare.

If you alienate Kennedy, the current swing vote on the court, there's a good chance you'll lose the case altogether.

That's what seemed to be happening to Washington-based advocate David C. Frederick last October when he represented plaintiffs in a key case looking into whether federal cigarette-labeling regulations prevent plaintiffs from filing in state courts deceptive practices suits against the manufacturers of light cigarettes. Altria v. Good, 2008 DJDAR 18257.

Kennedy didn't take kindly to Frederick's suggestion that lawsuits against the cigarette companies were solely about deceptive marketing practices and did not, technically, touch upon the health risks of smoking.

"Mr. Frederick," the justice said pointedly. "If I take away from your oral argument that it is your position that this suit is not based on a link between smoking and health, I'm going to have difficulty in accepting your position in this entire case."

Frederick was able to extricate himself from that particular dead end, but Gibson Dunn & Crutcher's Theodore B. Olson, who argued the case for the tobacco companies, remembers his counterpart's struggles well.

"He had some tough going there," Olson said. "I thought it was one that could go either way."

It may have been a crucial moment, because it turned out that Kennedy was indeed the swing vote in the 5-4 decision in Frederick's favor that came down in December.

The court concluded that the labeling laws do not, in fact, prevent plaintiffs from filing state lawsuits, a decision that was a blow to the business community.

Not content with rejecting pre-emption once, the justices held in a 6-3 decision earlier this month in an even more high profile case, also argued by Frederick, that state lawsuits against drug manufacturers are not pre-empted by Food and Drug Administration labeling regulations. Wyeth v. Levine, 2009 DJDAR 3199.

In the space of three months, Frederick, who has carved out a niche arguing pre-emption cases, emerged as the victor in two cases that could end up shaping perceptions of the court's 2008 term.

Taken together, the pre-emption cases are a repudiation of the broad arguments adopted by various industries in an attempt to prevent costly litigation in state courts.

By extension, the rulings, especially Wyeth, were also a final defeat for the outgoing Bush administration, which had endorsed the pre-emption strategy.

Frederick, a quietly-spoken veteran of 26 Supreme Court arguments, takes it all in stride.

"What matters is the next one," he said in an interview. "I try not to get too high when things go well and not to get too low when things don't go too well."

Allison Zieve, an attorney for consumer group Public Citizen, hopes the Wyeth case marks the end of an era. Public Citizen had been lined up to argue Wyeth when the trial lawyer lobby pushed for Frederick instead.

"There will be fewer pre-emption arguments than there have been in the past couple of years," Zieve said. "I would expect Wyeth will discourage companies from pursuing those arguments."

That doesn't necessarily mean that the court has suddenly changed course on pre-emption altogether, as Frederick, a partner at Washington firm Kellogg, Huber, Hansen, Todd, Evans & Figel, concedes.

Every pre-emption case is statute specific, he says. Last term, the court ruled in favor of pre-emption in four out of six cases.

In one of those, the court held 8-1 - in a case Zieve lost on behalf of the plaintiffs - that medical devices are subject to federal pre-emption because of specific statutory language. Riegel v. Medtronic, 128 S.Ct. 999.

Justice Ruth Bader Ginsburg was the lone dissenter.

"You really have to get into the history of the statute," Frederick said. "I think the court takes each of these pre-emption cases as it finds them."

The real distinction, experts say, is whether Congress explicitly states in legislation that a particular regulation is intended to supersede state laws. That is known as "express pre-emption."

That argument was successful in Riegel because the device manufacturers could point to such language. In Wyeth, no such language existed, meaning the drug manufacturers had to rely on a weaker argument focusing on so-called "implied pre-emption" in which lawyers look beyond congressional statutes for any evidence supporting their theory of the case.

The cigarette case was a closer vote in part because manufacturer Altria Group Inc., the parent company of Philip Morris, claimed express pre-emption language existed in the labeling law. In the majority opinion, Justice John Paul Stevens conceded that the statute contained some express pre-emption language but concluded that it didn't apply to state deceptive practices claims.

Frederick may be getting a lot of credit for his two victories, but some think he got some help from an unlikely source: The Bush administration.

That, at least, is the theory of Doug Kendall, who heads the Constitutional Accountability Center, a Washington-based progressive legal group.

Kendall believes that the Bush administration pushed too hard in arguing for pre-emption in instances where it was contradicted by statutory or regulatory language.

In Wyeth, for example, administration officials inserted language into an FDA document, over the objections of career staff, in which they asserted that the statutory language supported the pharmaceutical company's position. Government lawyers then cited that language in their brief.

Some of the justices, who may not have been completely sympathetic to Frederick's argument, could have been pushed in his direction because of the government's position, Kendall said.

"The actions taken by the Bush administration were so strained and after the fact, it did color the justices' views in the case," Kendall said.

Stevens, who wrote the majority opinion in Wyeth, even stated that "the FDA's recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight."

Looking back on his two successful arguments, Frederick admitted that both were tough, not least when he found himself on the wrong side of Kennedy in the Altria argument.

"I thought he was asking one of the very difficult questions in the case, and he wanted a straight answer, which I tried to give him," Frederick said.

In response to Olson's recollections about the argument, Frederick noted good-humoredly that neither lawyer got their way.

"There were times when both of us were in trouble," he said.

Posted 8:10 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 20, 2009

U.S. JUSTICES TAKE UP ISSUE OF ID THEFT BY IMMIGRANTS
Courts Disagree Over Whether It Matters if a Suspect Knows An ID Belongs to Someone Else

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Last May, federal agents raided a meatpacking plant in Postville, Iowa, and arrested 389 workers on suspicion of being illegal immigrants. Key to the raid was the agents' focus on whether the workers were using invalid social security or alien registration numbers on their job applications.

Many were using such invalid numbers, and 270 of them were subsequently charged with aggravated identity theft.

The highly publicized raid, conducted by the Department of Homeland Security's Immigration and Customs Enforcement and mirrored in other states, including California, was in many ways made possible by a key ruling two months earlier. The 8th U.S. Circuit Court of Appeals held that in order to prosecute someone for aggravated identity theft, the government did not have to show that the accused knew that the means of identification used belonged to another person. United States v. Mendoza-Gonzales, 520 F.3d 912. The St. Louis, Mo.-based federal court of appeals has jurisdiction over Iowa.

That decision, immigration advocates say, gave the green light to the Bush administration's use of the aggravated identity theft statute as part of its immigration enforcement strategy.

It's a handy tool for prosecutors because they can use the threat of a two-year mandatory sentence as a major bargaining chip when negotiating a plea.

Whether or not the Obama administration will continue with that approach remains to be seen, but the narrow legal question raised in the 8th Circuit case has led to a significant split between the federal appellate courts.

So far, two circuits agree with the 8th Circuit, and three have reached the opposite conclusion, including the 9th Circuit in a July 2008 ruling. United States v. Miranda-Lopez, 2008 DJDAR 11261. The 9th Circuit remanded back to the district judge the case of Salvadoran immigrant Roberto Miranda-Lopez, so he could argue that he didn't know the identity card he presented to police belonged to a real person.

Now, the issue is before the U.S. Supreme Court.

On February 25, the justices will hear oral arguments in an 8th Circuit case that followed in the wake of Mendoza-Gonzales. Flores-Figueroa v. United States, 08-108.

Mexican citizen Ignacio Flores-Figueroa's employer reported him to law enforcement authorities after Flores-Figueroa presented the employer with both a new social security card and a permanent resident card that used a different identity than one he had previously used. Immigration officers found the numbers used on both cards were already in use by others.

Flores-Figueroa was subsequently indicted on two counts of aggravated identity theft in addition to several charges relating to both the forged documents and his illegal entry into the country.

His lawyers, led by Kevin Russell of Howe & Russell in Bethesda, Md., say Flores-Figueroa should not be charged with aggravated identity theft because he didn't know the two identities he used belonged to others.

For immigration advocates, the distinction over intent is key because unlike those who seek to steal an identity for personal gain, most undocumented workers make up social security numbers simply so they can get jobs.

Put simply, immigration lawyers believe the government has inappropriately used the identity theft statute to target immigrants.

"I think this is consistent with all the [Bush] administration's enforcement tactics," said Kristina Campbell, a Los Angeles-based staff attorney with the activist group the Mexican-American Legal Defense and Education Fund. "They never were hesitant to expand laws in unprecedented ways to achieve their goals."

All of those charged in the Postville raid eventually pled guilty to lesser charges than identity theft. Most served five-month prison sentences before being deported.

In the government's latest brief in the case, filed just three days after President Barack Obama took office last month, the incoming administration had little option but to stick to the Bush administration's argument.

Court experts say new administrations rarely change their predecessors' positions in cases that have already been scheduled for argument.

Acting Solicitor General Edwin S. Kneedler, a career lawyer at the Justice Department, wrote in the brief that the identity theft statute, passed by Congress in 2004, is intended primarily to "provide enhanced protection" for people whose identity is stolen.

"The harm a victim suffers when her identity is so misused bears no necessary relationship to the perpetrator's awareness of her existence," Kneedler said.

Identity theft victims rights groups back Kneedler's position.

In an amicus brief in support of the government on behalf of several crime victims organizations, Stephen V. Masterson, of Howrey's Los Angeles office, argues that a ruling contrary to the government's interpretation would have a negative impact on the ability of identity theft victims to get restitution.

Whether or not the defendant intended to steal someone's identity, "the havoc wrecked on the victim's life is the same either way," Masterson said.

He stressed that the position taken by his clients is not intended to "advocate any heavy-handed treatment against immigrants."

So far, the Obama administration has not said how it'll tackle immigration enforcement in the workplace, but Janet Napolitano, the new secretary of the Department of Homeland Security, addressed the issue during her confirmation hearing in mid-January.

She conceded that immigration laws have to be enforced at the border but also at the workplace because of "employers who use the lack of enforcement as a way to exploit the illegal labor market."

While stressing that employers who hire illegal workers will be prosecuted, Napolitano did not mention what sanctions the workers themselves would face.

Some immigration lawyers think this could signal a return to the Clinton administration's approach, in which immigration enforcement at the workplace centered on the government obtaining administrative warrants normally used for inspections of regulated entities.

This allowed agents to investigate company records before deciding whether to take any criminal enforcement action. Importantly, the focus of that approach was on the employer rather than the employee.

Although there's been little policy movement in Washington, immigration lawyers remain optimistic that the administration will end some of the Bush administration's tactics.

"We are definitely hopeful that the Obama administration won't continue with the enforcement only strategy of the Bush administration," said Campbell of the Mexican-American legal group.

Even if that change does occur, Campbell still believes the case before the Supreme Court deserves close scrutiny because individual federal prosecutors around the country may still seek to interpret the law in as broad a way as the Bush administration did.

"I think it's important the court clarifies what it means," Campbell said.

Posted 10:50 AM by Howard Bashman

Posted 11:25 PM by Howard Bashman

Posted 11:20 PM by Howard Bashman

Posted 10:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

December 1, 2008

Power Station Case Generating Heat In Monterey Bay

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The delicate issue of how the government should weigh environmental interests against those of big business comes before the U.S. Supreme Court this week.

The justices will consider what kind of economic analysis the federal government can undertake when deciding how much energy companies have to spend to update water intake mechanisms for power plants so they meet environmental standards, Entergy v. Riverkeeper, 07-588, PSEG Fossil v. Riverkeeper, 07-589, and Utility Water Act Group v. Riverkeeper, 07-597.

Although the consolidated case, scheduled for argument Tuesday, comes out of the New York-based 2nd U.S. Circuit Court of Appeals, it could have a dramatic impact on the opposite side of the country.

Or - to be more specific - in Monterey Bay.

That's where the Moss Landing power station has been operating for the last half-century.

The owners of the plant are currently locked in a similar dispute that is heading to the state Supreme Court, Voices of the Wetlands v. California State Water Resources Control Board, 2007 DJDAR 18432.

The relevance of Riverkeeper to the Moss Landing case is shown by the fact that the California court, which has already accepted the case, has deferred action until the U.S. Supreme Court issues its decision.

At issue is whether the Clean Water Act allows the U.S. Environmental Protection Agency to use a cost-benefit analysis when ordering energy companies to retrofit water intake mechanisms.

"It's important as a matter of deciding the role dollars and cost consideration should play in charting environmental policy," said Richard Frank, executive director of the California Center for Environmental Law and Policy at UC Berkeley School of Law.

The debate over the use of cost-benefit analysis in environmental regulatory decisions has raged for years. In essence, it attempts to calculate the value of environmental interests into a dollar figure that can then be balanced against the cost to the industry of a particular regulation.

The EPA has successfully used cost-benefit analysis to enforce other sections of the Clean Water Act, much to the frustration of environmentalists, who believe it does not give sufficient weight to environmental interests.

The dispute in Riverkeeper arose when various environmental groups, including New York-based Riverkeeper Inc., challenged the EPA's implementation in 2004 of a new rule that requires existing power stations to retrofit their water intake mechanisms.

In its January 2007 decision, the 2nd Circuit, in a blow to the energy industry, held that a cost-benefit analysis was not the appropriate way of calculating environmental interests.

Riverkeeper focuses on Section 316(b) of the Clean Water Act, which regulates the mechanisms power plants use to siphon off water for use in cooling systems.

Since the EPA promulgated rules to enforce the regulation in 1976, it has allowed officials to make cost-benefit analyses on a case-by-case basis.

That means that energy companies can argue in certain circumstances that the cost of adopting the latest technology is prohibitive.

The 2nd Circuit concluded that the Clean Water Act does not allow the EPA to make cost-benefit analyses when it comes to the intake structures.

Rather, the agency is required to make a "cost effectiveness" analysis.

The court defined this as a cost that can be "reasonably borne" by the industry but is limited to "less expensive technology that achieves essentially the same results" as the most expensive technology available.

Under this definition, the EPA would not have the discretion to rule that the costs are too high to make any changes.

The Bush administration has sided with the energy companies, arguing that there is nothing in the Clean Water Act to suggest that the EPA cannot use a cost-benefit analysis.

"The court of appeals erred by attempting to micro-manage the agency's exercise of its broad statutory discretion," Solicitor General Gregory Garre wrote in his brief.

The government maintains that it's up to the EPA to decide what analysis it uses.

Entergy's lead counsel, Elise N. Zoli, wrote in her brief that the 2004 rule and 2nd Circuit decision combined create "a regime under which the nation's existing electricity supply may be forced to shut down during lengthy retrofits."

Opposing the energy companies and the federal government are Riverkeeper, other environmental groups and several states that were involved in the litigation before the 2nd Circuit, including New York, Massachusetts, and Rhode Island.

The Moss Landing case, in state court because the State Water Resources Control Board has the delegated authority from the EPA to issue Clean Water Act permits for power plants, touches upon largely the same arguments.

As Berkeley's Frank put it, the board is "directly confronting the same cost-benefit issue involved in the Entergy case."

The California dispute centers on the attempt by the owners of Moss Landing to seek a new Clean Water Act permit.

From 1998 to 2006 the plant was owned by Charlotte, N.C.-based Duke Energy Corp.; it is now owned by Houston, Texas-based Dynegy, Inc.

The water resources board used a cost-benefit analysis, concluding that a new intake system would add $12 million to $13 million to retrofit the water intake system.

But, the board calculated that the environmental benefit of the updated system would be worth between $4.68 million and $9.75 million and concluded that the cost was "wholly disproportionate" to the environmental benefit and allowed the plant owners to use older equipment instead.

In December 2007, the 6th District Court of Appeal upheld the water resources board's decision. The importance of Riverkeeper to the California case is underlined in various amicus briefs filed in the U.S. Supreme Court case.

Voices of the Wetlands, the environmental group that is the plaintiff in the California case, filed one, authored by Stanford Law School Professor Deborah A. Sivas.

She said in an interview that the importance of the case in California goes way beyond Moss Landing. Owners of the other 18 active coastal plants in the state will also be watching closely. Many of those plants are aging and need to be refurbished, if not rebuilt altogether, Sivas added.

There have been signs that some of the plant owners have been willing to incorporate the latest, more expensive technology for their intake systems, but if the Supreme Court endorses cost-benefit analysis, "it will open the door to all the California coastal plants to do that," she said.

Also weighing in on Riverkeeper is the California Council for Environmental and Economic Balance, an industry group that includes owners of California plants among its members.

San Francisco-based Pillsbury Winthrop Shaw Pittman partner Kevin M. Fong, the group's attorney, argues that in California in particular, with its history of energy shortages, "a site-by-site cost-benefit analysis is essential" because the state's coastal plants generate nearly half of the energy produced in the state.

Adopting a different type of analysis could be disastrous, Fong maintains.

"Enormous costs would be imposed on individual plants, leading to a likely loss of generating capacity and widespread economic disruption resulting from an energy deficit," he wrote in his brief.

Pro-industry lawyers point hopefully to the court's decision last month to uphold the U.S. Navy's right to conduct operations off the coast of California despite the threat to marine mammals. Winter v. Natural Resources Defense Council, 2008 DJDAR 16797.

Steven G. Giesler, an attorney with the Sacramento-based Pacific Legal Foundation, a conservative public interest law firm that filed an amicus brief in support of the energy companies, believes the ruling showed the court's willingness to consider environmental interests in the same way as it would any other party.

To that end, it could be "a hopeful harbinger of what the court will decide" in Riverkeeper, Giesler said.

Sivas, meanwhile, doesn't appear too hopeful her side will prevail.

"It will probably be a close call," she said.

Posted 4:35 PM by Howard Bashman

Posted 11:05 AM by Howard Bashman

Posted 11:45 AM by Howard Bashman

Posted 12:55 PM by Howard Bashman

Posted 8:30 PM by Howard Bashman

Posted 5:00 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

October 3, 2008

Pre-emption Tops Justices' Fall Docket
Roberts' Impact on The High Court Is Still Being Debated

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The increasingly high-profile debate over the extent to which federal law trumps state law takes center stage Monday when the U.S. Supreme Court opens its 2008 term.

After hearing six cases on federal pre-emption last term, the court already has another two on its docket, including one that is the first case to be argued this fall.

It concerns whether federal law pre-empts state law on the issue of how tobacco companies can market low tar cigarettes. Altria v. Good, 07-562.

Revisiting Last Term

Last term, the court found in favor of pre-emption in a series of cases, including a drug device case in which the court ruled in an 8-1 decision that federal law pre-empts state law when it comes to regulating certain types of devices. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The justices are hearing the second, and possibly even more important, pre-emption case in November.

That is a case about whether plaintiffs can file suit against drug companies in state court over pharmaceutical products if the Federal Drug Administration has already approved the drug. Wyeth v. Levine, 06-1249.

Devastating for Trial Lawyers?

If the pharmaceutical companies win in Levine, it could be devastating for trial lawyers, who could be denied the opportunity to file drug liability cases in state court, depending on how broad the ruling is.

Pre-emption is a suitable note on which to open the 2008-2009 term. In the absence of any sure-fire blockbuster cases this fall, it is set to be one of the dominant issues.

Levine and Altria "are really the two very important cases the court will decide in the business area this year," according to Paul Clement, who recently stepped down as solicitor general.

The business community - and the Bush administration - is keen to push pre-emption as a way to prevent state court juries from awarding multi-million dollar verdicts to plaintiffs.

Georgetown Law Center's David Vladeck, who previously headed consumer advocacy group Public Citizen's litigation team, describes the expanded role of pre-emption as the "get-out-of-jail-free defense" for corporate defendants.

Furthermore, as Erwin Chemerinsky, dean of the new law school at University of California at Irvine, points out, the court under Chief Justice John G. Roberts Jr. has "found pre-emption in every cases where there's been a business challenge to a state or local regulation."

But, as court-watchers note, there is a significant difference between Altria and Levine that could have a major impact on how they come out. Altria, rests on whether Congress explicitly stated that federal law pre-empted state law.

This "express pre-emption" argument, based on finding specific statutory language that makes it clear Congress intended for state law to be pre-empted, was successful in Riegel.

But in Wyeth, the issue is whether pre-emption occurs through implication, not express statutory authorization, in what as known as "implied pre-emption".

Gibson Dunn & Crutcher partner Theodore B. Olson is arguing Altria for the cigarette manufacturer in what will be his 50th appearance before the court, but - having successfully argued Riegel last term - he is also keeping a close eye on Levine.

He said in an interview that the case will clearly be a "topic of conversation" in Levine, but he conceded that the emphasis on implied rather than express preemption could affect the outcome.

"It's not clear how it's going to come out, but the Riegel case is a precedent that will be on the minds of the justices," Olson said. "Do you want juries across the country deciding or do you want these standards set centrally by experts?"

It isn't easy to predict a winner in Levine, in part because, as Vladeck notes, several of the more conservative justices, including Clarence Thomas, have concerns about finding pre-emption when it isn't explicitly authorized in congressional legislation.

"Some of the die-hard conservatives have great skepticism about the courts ability to wipe away causes of action without guidance from Congress," he said.

Thomas, in fact, was the sole dissenter in one of the pre-emption cases last term in which the court held that the Federal Arbitration Act trumps state law in a dispute involving TV's "Judge" Alex Ferrer. Preston v. Ferrer, 128 S. Ct. 978 (2008).

That was one of six preemption cases last term. The court ruled in favor of pre-emption four times, with one 4-4 tie in another case involving pharmaceutical companies, in which Roberts recused himself. Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

In the remaining case, in which the court did not find preemption, it was a secondary issue in the dispute involving the punitive damages oil giant ExxonMobil is required to pay for the Exxon Valdez oil spill. Exxon v. Baker, 128 S.Ct. 2605 (2008).

The fact that the court is taking preemption cases is nothing new, said Rebecca K. Wood, a partner in the Washington office of Sidley Austin.

It is just getting more attention now because the court is finding for preemption more often, she added.

But Wood stressed that, of the six cases last term, five involved express preemption. Kent was the only one that didn't. "One term does not a trend make," she said, but "the court did appear to find in favor of preemption more than it normally does."

9th Circuit Cases

Although pre-emption is a dominant theme so far, there are a number of other potentially important cases among the 41 already scheduled for argument.

Several emanate from the 9th U.S. Circuit Court of Appeals, often characterized - not always accurately - as the Supreme Court's punching bag.

One is a challenge to the Navy's use of sonar devices off the coast of California, which environmentalists say is harmful to whales. Winter v. Natural Resources, 07-1239.

The oral argument is Wednesday. Winter is one of three 9th Circuit rulings on environmental issues up for review this fall.

Another 9th Circuit case, scheduled for oral argument in November, addresses whether prosecutors in a long-ago Los Angeles County murder case should receive absolute immunity after the man convicted of the crime, Thomas Goldstein, was found to be innocent after spending 20 years in prison. Van de Kamp v. Goldstein, 07-854.

The case that is likely to attract the most headlines this fall, however, comes out of the 2nd U.S. Circuit Court of Appeals.

It revolves around the question of whether TV networks should be fined when someone swears on live TV.

At issue is the Federal Communications Commission's decision to change its long-standing policy and fine networks for so-called "flying expletives," a move the 2nd Circuit struck down as "arbitrary and capricious." FCC v. Fox, 07-582.

Although characterized by many as a censorship case, Marty Lederman, of Georgetown Law Center, notes that the case - which will be argued on Election Day - actually rests on the Administrative Procedures Act, which the networks are relying on.

"But, looming over the case, is the First Amendment question," he conceded.

Likely to be less prominent in the public eye are a number of employment cases, including one focusing on whether employees are bound by mandatory arbitration when their contract is negotiated by a union. 14 Penn Plaza v. Pyett, 07-581.

Gibson Dunn partner Eugene Scalia, son of Justice Antonin Scalia and an expert on employment law, described it as "potentially one of the most interesting and significant labor and employment cases" of the term.

As for criminal law, there are several Fourth Amendment cases scheduled for argument.

In one being argued Tuesday, the court will decide whether evidence seized during an arrest should be excluded because the arresting officer was incorrectly advised by an another law enforcement agency that there was a warrant for the defendant's arrest. Herring v. United States, 07-513.

Roberts' Impact

The term is likely to provide further guidance as to how Roberts is shaping the court as chief justice in what will be his fourth one in charge.

Sidley Austin's Wood points, for example, to the "lopsided" majorities in the recent preemption cases as a sign of the court moving "towards consensus and narrower rulings" that Roberts is said to favor.

That could foreshadow a narrow ruling in favor of the drug companies in Levine that would bring an end to some state lawsuits but not others, Irvine's Chemerinsky suggested.

Such a conclusion could be reached, he said, by drawing a distinction between potentially dangerous drug risks that have been known about for a long time, as in Levine, and products that have gone to market more recently.

Whatever Roberts' influence, Olson - who knows better than to offer anything less than fulsome praise to the court when he has a case pending - pronounced himself pleased with the chief justice's impact so far.

"Roberts has demonstrated in a short time that he is and will be an outstanding chief justice," he said. "He is a leader, but is also a team player."

Posted 11:40 AM by Howard Bashman

Posted 9:18 AM by Howard Bashman

Posted 12:25 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 12, 2008

Getting on Scalia's Good Side

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - Vocal and persistent, Justice Antonin Scalia can be a source of deep anxiety for counsel during Supreme Court oral arguments, but he's an attorney's best friend in a new book aimed at making lawyers better advocates.

Along with author Bryan Garner, Scalia has penned "Making Your Case: The Art of Persuading Judges," a lightly written and often entertaining book that offers a panoply of tips on how to truly influence the men and women behind the bench - or at least how not to annoy them.

The slim 200-page book is broken into 115 sections of straightforward advice for briefing and oral argument that can improve any lawyer's chances of courtroom success. The tips at times may sound simple, but they can be tough to master: Never overstate your case. Face up to bad facts and don't duck tough questions. Be civil, likable and trustworthy. Skip the legal jargon in your writing, and make it interesting, organized and clear.

Scalia, sitting down with the Daily Journal in his chambers last week, said the biggest lesson lawyers should take from the book is the need to keep a clear focus on the principal job of an advocate.

"Your job is to help the judge, to make it as easy as possible for the judge to understand the case and to come out your way," Scalia said. "And anything that stands in the way of that is to be avoided."

"In a way, I'm feathering my own nest," Scalia said of the book. "To the extent you can get the lawyers to do a better job, the judge's job is easier."

Scalia and Garner spent 18 months on the book, and after a few preliminary meetings to sketch out their plan, the authors each took a crack at the first draft before melding their work together.

"It was genuinely a co-authored book," said Garner, editor in chief of Black's Law Dictionary and founder of LawProse, a company that provides seminars on legal writing and editing. "We were working on the same sections simultaneously, not knowing what the other would say."

Along the way, they received input from 47 judges and lawyers who offered eye-opening insight that made its way into the book, Scalia said.

Scalia, for example, said he learned that many judges prepare for cases by "retro-reading," reading legal briefs in reverse order, the reply brief first, then the responding brief and the opening brief last - just the opposite, of course, of what a lawyer would expect.

"I knew one judge who did that and I thought it was sort of weird," he said. "But it turns out, as we learned from consulting with these other people, that there are a lot of judges who do that. I think it's a dirty thing to do to counsel, but there's no doubt that it tells you right at the outset what the case is about."

A key piece of advice that the authors emphasize throughout the book is the need for lawyers to be as succinct as possible.

The best lawyers, they say, focus tightly on their strongest arguments, say what they need to say and then stop, even if they're well short of their word limit. Attorneys with a reputation for brevity, they say, will discover that judges read their briefs more closely.

"You can learn to do that right away," Scalia said. "Just squeeze all of the water out of each page. My law clerks, if there's one big message they learn here, it's that."

Other advice may take longer to learn.

Scalia and Garner write that a lawyer's only tool of persuasion is language, so he must develop an appealing style of writing and acquire a broad vocabulary - attributes that won't be developed from reading a steady diet of judicial opinions, "which are widely read not, heaven knows, because they are well written but because they are authoritative."

Lawyers, they say, can learn to write by reading good prose. The authors quote 7th U.S. Circuit Court of Appeals Judge Frank Easterbrook: "See if you can write your document like a good article in The Atlantic, addressing a generalist audience."

"That's easy advice to give, hard advice to take," Scalia said with a smile. "How do you make an ERISA case interesting? Well, you do your best. You at least make it clear, and not try to obfuscate it by using a lot of legal mumbo-jumbo."

While Garner says the level of advocacy in America "is not what it ought to be, generally speaking," Scalia says the book should not be read as an indictment of lawyers.

"I didn't mean it to be that," Scalia said. "I can't recall anything I wrote where I had a particular lawyer in mind. But they are all inadequacies that over the years I've seen in various counsel."

He said that in his own personal experience, "I've always thought, by and large, the lawyers do a good job."

Perhaps one of the most striking things about the book is Scalia's insistence that oral argument matters a great deal, a view that runs contrary to the belief among some court watchers that argument sessions are more show than substance.

"Oh yeah, I'm a big fan," said a laughing Scalia, who has a well-deserved reputation as the liveliest and most colorful justice on the bench.

"It rarely changes your mind, but often your mind is not made up when you go in," he said. "And in close cases, oral argument can very often make the difference."

When asked to name a rule from the book that lawyers break most often, Scalia doesn't hesitate.

"The refusal to answer questions," he said. "The thinking that you've scored a point or gotten away with something if you dance around the question and don't really answer it. That is never a success and it's always a failure. It is so often that a judge has to ask, 'Is that a yes or a no?'"

Despite its focus on core principles, "Making Your Case" offers many small nuggets of advice as well, and they're often entertaining.

For example, there's this tip on avoiding Latin phrases: "Judges are permitted to show off in this fashion, but lawyers are not."

And this tip on forgoing judicial flattery: "Never - never - patronize a judge by volunteering 'That's a good question.' Of course it is! All judges' questions are ex officio brilliant."

The authors also are not above suggesting that you try to change your personality, if need be: "All of us are more apt to be persuaded by someone we admire than someone we detest. ... Some people, it must be said, are inherently likable. If you're not, work on it. (It may even improve your social life.)"

Scalia and Garner both say they greatly enjoyed working together, but the men did have their differences, and they decided to air them in the book.

Among the biggest? A fight over the use of contractions - can't, won't, hasn't, didn't - in legal writing. Garner thinks it's fine, and even preferable, to use them (they're used in the book), while Scalia does not, arguing that some judges view them as an affront to the dignity of the court.

"I was afraid for a time that contractions would get in the way of our ability to finish the book," Garner said. "I wanted the contractions and he was un-contracting all of my stuff and I was putting contractions into all of his stuff. Finally, he deferred on that point. But he ended up writing a funny note on it."

In the book, Scalia chafed when Garner noted that some leading appellate judges, including 9th Circuit Chief Judge Alex Kozinski, use contractions themselves.

"Life tenure is a wonderful thing," Scalia wrote in response. "Neither they nor any client of theirs pays a price for their contractions. (Kozinski, for Pete's sake, has been known to write an opinion with 200 movie titles embedded within it.)"

Scalia, widely considered to be the best writer on the current Supreme Court, often has said that he likes having written, but not necessarily the writing process itself.

Working on the book, however, was different.

"This has been less painful than most writing," Scalia said. "Maybe because I had a co-author and we incited each other. Maybe also because what I was writing about was not hyper technical. But even so, if you think I didn't sweat over it, you're just wrong."

High Court's Outspoken Justice Weighs In on Several Topics

During an interview with the Daily Journal to discuss his new book, "Making Your Case: The Art of Persuading Judges," Justice Antonin Scalia shared a variety of thoughts on advocacy at the Supreme Court. Here are some of his remarks.

On the quality of Supreme Court advocacy:
"[Former Chief Justice Warren] Burger used to speak often about the inadequate level, especially of oral argument. That's never been my reaction. In fact, quite the contrary. I'm often amazed at how good some of these people from nowhere are - court appointed counsel from Podunk. Some of these people are very good. My reaction is, my God, we're devoting too many of our best minds to this enterprise of the law. This person should be inventing the gasoline-free automobile or doing something else."

On the trend of experienced Supreme Court lawyers landing more cases, at the expense of newcomers to the high court:
"For my own interest and amusement, I guess it's interesting to see different people. But as far as the quality of argument is concerned, people pay a whole lot for these frequent flyers simply because they're worth a whole lot. They are a lot better. Which is not to say that there aren't others who only appear rarely who are just as good. But, the specialists generally are better."

On how a bad oral argument affects the court:
"It always makes the case harder when the side that you think is probably the right side has not been presented well. Sometimes you wish you could give two grades: who wins on the law and who wins on presenting the law. ... It's only when you become a judge and sit on a bench that you realize how appropriate it is for lawyers to be referred to as officers of the court. They really are invaluable. You have bad lawyers, you're more likely to have a bad decision. They are the principal sources of information on both the facts and the law."

On which is more important, brief writing or oral presentation:
"Probably brief writing. Because, as I say, oral argument often makes the difference but the brief - you start off on the wrong foot, that's the first impression you get of the case. It's hard to rehabilitate a case at oral argument that has been badly presented in the brief."

On whether legal briefs should read like a good magazine article:
"I think they should. ... I try to follow my own advice. And what's said about briefs is probably true about judicial opinions. They also should be brief, and anything that is besides the point should just be scratched."

On whether judicial opinions are less eloquent than they were 50 years ago:
"Undoubtedly judges now have more cases in front of them and therefore have more assistants, known as law clerks. And so the product is increasingly a committee product. ... Most of my opinions I let the law clerk do the first draft. The principal part of my job is to delete, to cut it down to the muscle. And generally speaking, the longer the opinion, the less time the judge has spent on it, at least if the judge has law clerks."

On whether other judges would agree with the advice his book offers to lawyers:
"I hope so, and I hope that those that don't will let me know. Someday down the road we may do another edition. ... I'm sure there's stuff we haven't said that some judges think probably should have been said. I would hope to get that kind of feedback from the bench, or for that matter, from the bar. I'm sure there are some practicing lawyers who might read it and say, 'I have another gimmick that I have found very effective.'"

Posted 11:50 PM by Howard Bashman

Posted 12:10 PM by Howard Bashman

Posted 8:04 AM by Howard Bashman

Posted 10:50 PM by Howard Bashman

Posted 8:45 PM by Howard Bashman

Posted 12:10 PM by Howard Bashman

Posted 10:15 PM by Howard Bashman

Posted 10:30 PM by Howard Bashman

Posted 8:15 AM by Howard Bashman

Posted 6:03 PM by Howard Bashman

Posted 6:10 PM by Howard Bashman

Posted 5:27 PM by Howard Bashman

Posted 6:40 AM by Howard Bashman

Posted 12:40 PM by Howard Bashman

Posted 10:12 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

July 26, 2007

Thomas Charts a Jurisprudence All His Own

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

That passage, from a landmark 1969 decision which held that students had a First Amendment right to wear black armbands to school in protest of the Vietnam War, is one of the most famous lines in the last 40 years of Supreme Court jurisprudence.

This year, when the Supreme Court decided its first student speech case in nearly two decades, Justice Clarence Thomas, in a bold yet little-noticed concurring opinion, rejected the proposition entirely.

"In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools," Thomas wrote.

None of the other eight justices questioned the court's ruling 28 years ago, in Tinker v. Des Moines Independent Community School District, that students retain speech rights at school.

Instead, they divided along ideological lines over whether those rights should extend to school speech that promotes illegal drug use, with the court's conservative majority ruling that a student banner proclaiming "Bong Hits 4 Jesus" was not protected. Morse v. Frederick, 2007 DJDAR 9448.

The press and the public largely focused on the main debate and made little mention of Thomas' solitary and unconventional position.

His concurrence was one of several curve balls the justice has thrown the court since Chief Justice John Roberts and Justice Samuel Alito joined the bench: Amid the hoopla over the new-look Supreme Court, Thomas has quietly continued to chart a provocative and often-controversial path all his own.

"There's certainly going to be some segment of the legal academy that's going to dismiss him as extreme, but there are others, even some liberals, who say, 'This Thomas guy is original, intelligent and makes us think twice,'" said University of Minnesota law professor David Stras, a recent Thomas law clerk.

Duke University law professor Erwin Chemerinsky, however, said Thomas' reputation as extreme is well deserved.

"I find the Clarence Thomas' vision of the Constitution an incredibly scary one," Chemerinsky said. "He's charting a course further to the right than anyone else, and that's on a conservative court."

In the school speech case, Thomas offered a 13-page abbreviated history of U.S. public education in the style of CliffsNotes study guides, one which he said made clear that students traditionally enjoyed no speech protections.

In support of his position, Thomas cited an array of texts that only a graduate student could love, including: "The Emergence of the Common School in the U.S. Countryside," "From Apron Strings to ABCs: Parents, Children and Schooling in Nineteenth-Century Massachusetts" and the 1843 classic "The School and the Schoolmaster: A Manual."

"In the earliest public schools, teachers taught, and students listened," Thomas wrote.

Stras said Thomas' frequent historical explorations are a product of his central focus on what a legal provision meant at the time it was enacted.

"It may seem obscure that he goes into all of that, but to him it's the essential part of what he's deciding," Stras said. "It's amazing that he comes up with this stuff, but he does."

Stanford University law professor Pamela Karlan said Thomas' position in the case ran counter to how most people would view the right of free speech.

"It just strikes me as completely foreign to what Americans have come to understand the First Amendment to mean," Karlan said.

As in the student speech case, Thomas' solo writings often are spurred by his belief that high court precedent should be overturned - something that the other justices are much more hesitant to advocate.

"He does not believe in stare decisis, period," Justice Antonin Scalia said of Thomas' willingness to overrule precedent in Ken Foskett's 2004 book, "Judging Thomas."

"If a constitutional line of authority is wrong, he would say let's get it right," Scalia said. "I wouldn't do that."

Thomas took just that approach in an April decision upholding a trash disposal law in New York. The law forced trash haulers to drive waste to local processing facilities instead of taking it out of state, where they could dump it more cheaply. United Haulers Assn. v. Oneida-Herkimer Solid Waste Management Authority, 2007 DJDAR 5958.

While siding with the majority, Thomas wrote separately to argue that the court should rid itself of more than 100 years of jurisprudence that enforced the so-called "negative" Commerce Clause, which bars states and localities from passing regulations that burden interstate commerce.

"The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice," he wrote.

When Congress has not explicitly chosen to restrict state regulations, he said, states should be free to regulate commerce as they wish.

"That would mean that states could adopt any kind of protectionist law favoring in-state businesses unless Congress passed a statute stopping it, no matter how much of a burden it placed on interstate commerce," said Duke's Chemerinsky.

The Commerce Clause also was the subject of one of Thomas' more fascinating concurring opinions of the term, which he penned in one of the year's biggest cases, Gonzales v. Carhart, 2007 DJDAR 5189, examining the constitutionality of the federal Partial-Birth Abortion Ban Act.

The court's conservative wing upheld the federal abortion law on a 5-4 vote, but Thomas, this time joined by Scalia, wrote a separate opinion noting that the abortion-rights plaintiffs in the case did not question "whether the act constitutes a permissible exercise of Congress' power under the Commerce Clause."

That teaser of a passage left open the possibility that Thomas, a states-rights advocate who believes in limited federal authority, might have voted to strike down the law if only the challengers had questioned whether Congress had legal authority to enact abortion regulations.

Roger Pilon of the Cato Institute, a libertarian think tank, said the issue Thomas raised presented a strategic quandary for both sides and created paradoxes all around.

"Abortion-rights people who normally wouldn't touch an enumerated powers argument with a 10-foot pole are inclined to say that Congress has no authority to regulate abortion," Pilon said. "Anti-abortion people, who tend to subscribe to limited congressional power, are calling upon Congress to legislate when they would otherwise see no such power."

Thomas also used his abortion opinion to reiterate his belief that Roe v. Wade, the landmark decision recognizing abortion rights, was wrongly decided.

In many of his solo writings, Thomas continues to make arguments that leave his liberal detractors howling.

In the immigration case Lopez v. Gonzales, 2006 DJDAR 15787, Thomas was the lone dissenter who believed that a permanent resident convicted in state court for simple drug possession should face the same severe deportation penalties that apply to aliens who are convicted of drug trafficking.

The immigrant's drug offense, committed in South Dakota, was a felony under state law, though it would have been just a misdemeanor under federal law.

The other justices ruled that a state drug offense had to be the equivalent of a federal felony for an immigrant to face harsh deportation sanctions.

In Erickson v. Pardus, 2007 DJDAR 8015, Thomas dissented from a decision allowing a Colorado prisoner to proceed with a lawsuit alleging that prison officials violated the Eight Amendment's ban on cruel and unusual punishment by stopping the inmate's medical treatment for hepatitis.

Corrections officials suspected that the inmate planned to use a prison-provided syringe to inject himself with illegal drugs instead of hepatitis medication.

The inmate, who denied the charge, said the lack of treatment could cause irreversible damage to his liver.

Thomas, after first lodging an objection to the court's Eighth Amendment jurisprudence, said that even in applying the relevant case law, a prisoner should be able to sue only over "actual, serious injuries" and not for the "exposure to the risk of injury."

In other cases, however, Thomas' recent opinions haven't always cut in favor of what might be considered the conservative position. That's especially true in business cases.

In Credit Suisse Securities v. Billing, 2007 DJDAR 8877, Thomas was the only justice who would have allowed antitrust plaintiffs to proceed with a lawsuit alleging that the nation's leading investment banks conspired to rig the prices of initial stock offerings for hundreds of technology companies during the dot-com boom.

In last year's Anza v. Ideal Steel Supply, 126 S. Ct. 2016, Thomas alone criticized the court for placing new limits on the type of civil lawsuits that could be brought under the federal racketeering statute.

And in a closely watched smoker's lawsuit this year against Philip Morris, Thomas reiterated his belief that the Constitution does not constrain the size of punitive damages awards. Philip Morris v. Williams, 2007 DJDAR 2233.

"He's not monolithically pro-business," said Mark I. Levy of Kilpatrick Stockton in Washington, D.C. "In some respects, he's not as good for business as Sandra Day O'Connor was."

"He goes wherever his jurisprudence takes him," Levy said.

While some of Thomas' writings fly under the radar, one of his most visible opinions during the two years of the Roberts Court came last month when a 5-4 court struck down two voluntary school integration programs that used race to determine which students were given seats in certain classrooms. Parents Involved in Community Schools v. Seattle School District No. 1, 2007 DJDAR 9798.

Thomas, whose views on race garner particular attention because he is the court's only black justice, weighed in with a 36-page concurring opinion that questioned whether integration in the school setting was as valuable as the court's liberal dissenters believed it to be.

"It is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement," Thomas wrote.

He also accused the court's liberal wing of adopting a mindset not all that different from past segregationists.

"Indeed," Thomas wrote, "if our history has taught us anything, it has taught us to beware of elites bearing racial theories."

Posted 2:35 PM by Howard Bashman

Posted 11:05 AM by Howard Bashman

Posted 4:00 PM by Howard Bashman

Posted 3:05 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 09, 2007

LAWYERS FACE LESS ACCESS TO DETAINEES
Government Seeks Protective Order on Communications

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - On January 24, 2006, guards at the U.S. government's prison at Guantanamo Bay, Cuba, overheard an inmate reading a book entitled "The Torture Papers: The Road to Abu Ghraib."

The guards immediately confiscated the book, which was marked with a statement that it was a legal document supplied by the detainee's attorneys.

Distrust for Lawyers
"It was a serious threat to the security of the camp," U.S. Navy Commander Patrick M. McCarthy said in an affidavit filed with court papers later that year.

It was also an example of the distrust the government has shown for the detainees' lawyers over the last five years.

Edited by two prominent lawyers, "The Torture Papers" contains a selection of public documents that outline the Bush administration's approach to the war on terror, including the detention and interrogation of suspected enemies.

The title is a reference to the notorious prison in Iraq where U.S. personnel were photographed abusing prisoners.

"Such materials could incite detainees to violence, leading to a destabilization of the camp," McCarthy wrote in his affidavit.

As the result of episodes such as this at the Guantanamo prison camp, the government is now taking its fight with detainee lawyers to a new level.

The Bush administration has taken the controversial step of asking the U.S. Circuit Court of Appeals for the District of Columbia to severely limit the rights of defense attorneys to communicate with their clients confidentially.

Hearing for Protective Order
The court is due next Tuesday to hear oral arguments on the proposed protective order in a case involving eight detainees. Haji Bismullah, et al. v. Donald Rumsfeld, 06-1197.

The order would apply only to those eight men, but would likely set a precedent for future cases, experts say.

The co-editor of the confiscated book, Karen J. Greenberg, executive director of the Center on Law and Security at New York University, said she is somewhat bemused that the government would deem it to be so provocative.

She does not think the book, which contains no classified information, could be considered inflammatory.

But she said she understands where the government is coming from.

On the one hand, she said, lawyers need to communicate with their clients, but Greenberg recognizes that the government has a right to regulate what outside information the suspected terrorists receive.

"The only reason they shouldn't be able to read that book is because they would feel they were being treated unfairly," she said of the detainees.

It's no secret that the Bush administration is no fan of the lawyers who have stepped forward to advocate for the inmates at Guantanamo Bay.

The government claims the detainees, many of whom were captured in Afghanistan in 2001, are "enemy combatants." Government attorneys have repeatedly attempted, with some success, to limit their legal rights.

In January, Defense Department official Charles "Cully" Stimson called it "shocking" to see major law firms helping the detainees and wondered aloud whether corporate clients would boycott the firms. He resigned when his comments during a radio interview provoked a backlash from the legal establishment.

American Bar Association President Karen J. Mathis said the latest proposal would "threaten competent representation without at all advancing national security."

The legal battle is playing out amid concerns that some detainees have lost faith in their lawyers, while other inmates are said to suspect that their attorneys are actually U.S. government representatives in disguise.

At issue before the D.C. Circuit next week is how tightly the government can restrict both personal visits and written communication between defense attorneys and their heavily guarded clients.

There have always been limits on lawyers representing the Guantanamo detainees.

When the U.S. District Court in Washington began hearing habeas corpus claims after the first detainees were captured in the fall of 2001, the court prohibited the lawyers from passing classified information to detainees. In a protective order, the court also authorized a process for the government to seek permission to withhold certain information.

Both sides agree this arrangement has operated fairly well over the last few years.

"While not without its challenges, it has fundamentally worked," said Bingham McCutchen partner Susan Baker Manning, who represents detainees.

The proposed new order goes much further, to the point that lawyers would be limited to three visits.

The government says there is no need for counsel to have unlimited access to their clients because "counsel does not have a need to engage in factual development," according to court papers.

That's a reference to the Detainee Treatment Act, passed by Congress in 2005, which states that attorneys cannot challenge the government's facts.

Defense lawyers can argue only that the government did not follow its own procedures when carrying out a review process known as the Combatant Status Review Tribunal.

The government also wants a shorter leash for all other communications with the detainees.

All written communications would be subject to review. The review team, however, would not share any of the content with the government "except in carefully limited circumstances where communications relate to imminent acts of violence or could harm the national security," according to court filings.

Manning equates this review with censorship. She voiced concern that already fragile attorney-client relationships will suffer further if both parties know their letters are being intercepted.

"Who are they to say what's relevant to my case?" she said of government officials.

Ordinarily, a trial judge would take first crack at fashioning any kind of protective order. But because the Detainee Treatment Act requires all detainee appeals to be heard by the D.C. Circuit, the current dispute is skipping over the U.S. District Court.

The stakes are high for the 385 detainees at Guantanamo because their legal rights are so limited.

Under current law, they have no habeas corpus rights, a status reinforced by the D.C. Circuit earlier this year when it upheld the Military Commissions Act, passed by Congress last October.

With retroactive language, that legislation specifically provided that no one captured in the aftermath of Sept. 11, 2001, is entitled to assert habeas corpus.

Although the Supreme Court thus far has declined to address whether a denial of habeas corpus rights is unconstitutional, it has left the door open for future review.

Lawyers for the detainees say the government therefore has to be cautious in restricting access.

Some of these issues could be litigated in the future if habeas corpus is reinstated, according to Shayana Kadidal, an attorney at the New York-based Center for Constitutional Rights, which has helped coordinate legal representation for the detainees.

He noted, for example, that lawyers need to visit the prison so they can check on the living conditions of the detainees.

"The government has to be careful," he said.

Defense attorneys recently received some support from an unexpected source.

The commander of the Guantanamo prison, Rear Admiral Harry Harris, told the Miami Herald that he no longer thinks it's necessary to limit the number of lawyer visits.

He said the original petition for the new protective order, filed last August, came at a turbulent time when there was a lot of unrest at the prison.

That unrest has since subsided, he said, and prison guards are better able to prepare for visits by the lawyers.

Justice Department spokesman Erik Ablin said the government's official position has not changed.

"The position of the United States is driven by base security concerns which are within the purview of the Department of Defense to evaluate," he said.

A spokesman for the Defense Department declined to discuss the issue.

Whatever the D.C. Circuit decides, representing a detainee is never going to be easy, said Manning.

She has only had time to visit Guantanamo twice. Most of her communications are through letters.

Her clients, a group of seven Muslims from western China who lived in Afghanistan at the time of the U.S. invasion in 2001, have been held at the camp since 2002.

Manning said she and her colleagues have "scrupulously complied" with the terms of the old protective order when communicating with the detainees.

She said that if the D.C. Circuit approves the government's petition, it would seriously undermine her ability to build a relationship with her clients.

She recalled that she once sent a photograph of her newly born daughter via legal mail to try to build a rapport with her clients. But she's worried that this kind of innocent gesture could be curtailed in the future.

"Apparently sending them a picture of my daughter is the best thing I have done," she said. "They were very pleased to see it. I can't do my job if they don't trust me."

Posted 5:45 PM by Howard Bashman

Posted 10:40 PM by Howard Bashman

Posted 10:30 PM by Howard Bashman

Posted 8:25 PM by Howard Bashman

Posted 12:22 PM by Howard Bashman

Posted 10:55 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 21, 2007

E-Mails Shed Light on Inner Workings at Justice
Behind the Scenes Tough Scrutiny of U.S. Attorneys by Top DOJ Officals

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - California's two fired U.S. attorneys probably never knew how closely Washington was watching their every move.

It's now common knowledge that the Bush administration claims it fired San Diego's Carol Lam because of her approach to immigration cases and that San Francisco's Kevin Ryan lost his job to his management style.

But in the 3,000 pages of documents released Monday night, a picture emerges of a department in which the top officials are intimately involved in every twist and turn of each U.S. attorney's office.

Here's Deputy Attorney General Paul McNulty castigating Ryan for issuing a press release without his permission.

And here are Justice Department officials joking about Lam's inability to follow orders.

They even exchange e-mails about local newspaper articles and try to fathom the motives of junior members of Congress.

The White House continues to maintain that the firings were internal personnel decisions based on the individual performances of its prosecutors.

U.S. attorneys serve at the will of the president and can be fired at any time without cause, the administration insists.

"These documents do not reflect that any U.S. attorney was replaced to interfere with a pending or future criminal investigation or for any other improper reason," White House Counsel Fred Fielding said in a letter to lawmakers Tuesday.

Democrats aren't convinced.

"Serious questions remain," said Sen. Dianne Feinstein, D-Calif. "There is no clear rationale for the firing of these eight U.S. attorneys, six of whom were involved in public corruption cases."

Although the documents released this week won't resolve the debate over the politics behind the U.S. attorney purge, they cast a fascinating spotlight on the inner workings of an agency usually shrouded in secrecy.

The documents also show that Justice Department officials had reached two conclusions about the two California prosecutors they eventually fired in January: Ryan was loyal but incompetent, and Lam was the opposite.

The various e-mails, reports and memos paint a portrait of a department operating very much top-down, with officials in Attorney General Alberto Gonzales' office intimately involved in debating every decision.

The internal communications show that the officials were especially keen on avoiding negative publicity. Even an innocent query from a Daily Journal reporter about the future of Kevin Ryan two months before he was removed from office required the attention of six officials, including Gonzales' now-departed chief of staff, Kyle Sampson.

Although held to be one of the Justice Department's "loyal Bushies," as Sampson described those prosecutors who toed the party line, Ryan nevertheless was let go because of management problems within his office.

An undated summary of his job performance used by officials to justify the firing in a March hearing before Congress, described San Francisco as "the most fractured office in the nation."

Morale was low, and Ryan had "lost the confidence of many of the career prosecutors who are leaving the office," the report notes.

Ryan's superiors kept a running tally of his professional transgressions, including his decision to issue without permission from the Justice Department a press release on sentencing penalties for steroids use.

In 2005, Ryan negotiated a plea agreement with three defendants in the high-profile BALCO sports doping scandal.

But a year later, Ryan issued a press release heralding the U.S. Sentencing Commission's decision to increase the penalties for steroids-related offenses.

"We are pleased that the Sentencing Commission has taken this action to impose penalties for steroid offenses that reflect the seriousness of the crime," Ryan said in a release issued March 24, 2006.

Ryan's bosses, however, were not pleased.

According to an e-mail, Ryan's superiors let him know the move was not considered "particularly helpful."

"After our conversations, I am fairly surprised that you would not consult with me or anyone else in Main Justice before issuing a press release on something that has nothing to do with your office," Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, wrote in an e-mail to Ryan dated March 31, 2006. "Please don't do anything further in this area without consultation."

Justice Department officials also stayed up to date on newspaper stories reporting Ryan's poor management skills, the e-mails reveal.

In an e-mail dated Oct. 5, 2006, McNulty's assistant David Margolis sent several colleagues a negative story published about Ryan in SF Weekly, a free tabloid.

"Thought you might be interested in this," the subject line reads.

Judging by two other e-mails released Tuesday, Ryan didn't hold any grudges when he was fired, despite the criticism he had received.

Elston reported in a Jan. 18 e-mail that Ryan was staying loyal as the criticisms over the mass firing began to heat up, led by Feinstein.

Ryan refused to speak to Feinstein's office and didn't return calls from Lam, Elston wrote.

"He wanted us to know he's still a 'company man,'" Elston wrote.

A month later, after he was fired, Ryan continued to butter-up his former superiors.

He told Elston, "You have been a gentleman in your dealings with me, and I appreciate it."

An amused Elston forwarded Ryan's e-mail to three of his colleagues.

"I have a one-member California fan club," he wrote.

Having kept secret about the mass-firing plan, Justice officials seemed unnerved when a Daily Journal reporter called Nov. 15, several weeks before six of the U.S. attorneys were notified of their impending departures.

The reporter had asked whether Ryan was to be retained when his four-year term expired.

E-mails show that at least six officials were briefed on the question, finally agreeing that the reporter should be told that it's department policy not to discuss personnel issues.

"Traditionally, the [office's] response has been something simple like, 'All U.S. attorneys serve at the pleasure of the president, and we do not comment on personnel matters," according to an e-mail sent by Department of Justice staffer Monica Goodling to Kathleen M. Blomquist, a spokeswoman for the department.

For Lam, the path to dismissal was more complex.

It's clear from the department's internal reviews that she was respected and that no one doubted her management ability.

But her willingness to fly solo led to consternation in Washington over such issues as immigration and gun crime enforcement.

In a summary of her job performance, the department observed that Lam "is an effective manager, ... a respected leader, ... is active in Department activities and is respected by the judiciary, law enforcement agencies, and USAO staff."

But the report faulted some of her decisions, noting that "she has focused too much attention and time on personally trying cases" and has not responded to department-ordained priorities on immigration and gun crime.

Perhaps most revealing is a lighthearted e-mail from July 8, 2006, written by Bill Mercer, an official in McNulty's office who was returning that week to his principal duties as U.S. attorney for Montana.

In an earlier e-mail, Elston had told Mercer of his sadness that his colleague was leaving Washington and had remarked, "I am not adjusting well to this change."

Mercer responded, "What that Carol Lam ... won't just say, 'Okay, you got me. You're right, I've ignored national priorities and obvious local needs. Shoot, my production is more hideous than I realized."

Elston replied, "Carol Lam is sad, too, but that was not what I was thinking."

Despite the jocular tone of that exchange, it's clear, however, from other documents, that officials took the complaints about Lam's immigration strategy very seriously.

The newly released documents show that while one top official in the attorney general's office was lauding Lam to Sen. Feinstein and San Diego Republican Rep. Darrell Issa, another part of the office was attacking her record on immigration prosecutions.

Assistant Attorney General William B. Moschella told the California senator and congressman that prosecutions for alien smuggling were "rising dramatically" and that Lam accomplished this with the same or fewer assistant U.S. attorneys as in the previous fiscal year.

"Please rest assured that the immigration laws in the Southern District of California are being vigorously enforced," Moschella said in similar letters to both lawmakers in July 2006.

But an e-mail exchange between two other officials suggests that the Justice Department was looking for a way to shoot down Lam's record.

Elston was alerted in a July 18 e-mail from a colleague that the Southern District of California was the only southwest border district that experienced a negative growth rate, minus 4.15 percent, in annual immigration prosecutions. Arizona had 9 percent growth, and all the other district had double-digit growth rates, he said.

"There also remains the policy question of whether [the Southern District of California's] strategy is appropriate," Albert Steiglitz wrote. "That is, are the goals of the criminal justice and immigration system best served by focusing on fewer prosecutions that in turn seek high penalties?"

Steiglitz said he was "somewhat skeptical" of Lam's claim that her strategy was true to the procedures set out in a memo from former Attorney General John Ashcroft, which said U.S. attorneys had a duty to pursue the most serious offenses.

He said Lam seemed to be arguing that her duty required her to choose between lesser offenses and a "single, more serious prosecution," and he suspected that Lam's effort to invoke the Ashcroft memo "might be inappropriate."

However, in the letters to Feinstein and Issa, Moschella said that the effort to obtain higher sentences for immigration violators who present the greatest threat uses more attorney time.

He also pointed out that Lam devoted half of her staff to immigration cases and used a large part of her resources to investigate and prosecute border corruption cases. In the previous 12 months, he said, Lam prosecuted seven corrupt Border Patrol and Customs agents who were working with immigrant smuggling rings.

Again showing the extent to which multiple Justice officials seemingly liked to weigh in on every issue, several, including Elston, were kept in the loop when Lam met in August 2006 with one of her main critics, Issa, and House Judiciary Chairman F. James Sensenbrenner Jr., R-Wis.

Lam wrote in an e-mail that the meeting was "fine (at least I think it was). The tone was civil and at times even friendly."

Justice Department officials Rebecca Seidel forwarded Lam's e-mail to others, noting, "Sounds like she handled it well and was actually constructive."

Further evidence that the department was keeping close tabs on Lam is provided by a white paper written by Daniel Fridman, counsel to McNulty.

Written on May 26, 2006, the six-page memo analyzes case statistics in Lam's district in the light of the criticisms made by Issa and others.

Fridman reported a "precipitous decline" in immigration prosecutions since 2004, especially when San Diego was compared with other border districts.

He concluded that the district should "place a greater emphasis on pursuing illegal re-entry cases and alien smuggling cases."

Daily Journal Staff Writers Amelia Hansen and Claude Walbert contributed to this report.

Posted 3:15 PM by Howard Bashman

Posted 10:30 AM by Howard Bashman

Posted 5:38 PM by Howard Bashman

Posted 7:04 PM by Howard Bashman

Posted 2:50 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 8, 2007

Before Going Live at Supreme Court, Lawyers Refine on Moot Court Circuit

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - When Los Angeles attorney Jean-Claude Andre learned last year that the U.S. Supreme Court had agreed to hear one of his cases, the lawyer was eager to call his wife and share the good news: He would be making his first high court appearance.

But the court's announcement left Andre with an immediate concern: He would need to practice his arguments, and a quick phone call could ensure that he wouldn't miss out on a particularly good opportunity to do so.

Which call did he make first?

"I honestly can't remember," Andre said with a laugh.

At some point in those first few minutes, Andre, an attorney with Ivey, Smith & Ramirez, dialed Georgetown Law Center in Washington, D.C., and asked the school to set up a moot court in which a group of lawyers and law professors could put him through the ringer before the justices did.

With a high-powered list of attorneys who volunteer their time and an impressive mock courtroom decorated to resemble the Supreme Court's, Georgetown's moot-court services are in high demand.

The school's Supreme Court Institute will moot anyone with a case headed to the court, for free, but for appearances, it won't prep both parties in the same dispute, and it is first come, first served.

Andre's prompt call paid off - the school penciled him in to practice his case, involving the Prison Litigation Reform Act.

When the court accepted another of his cases a few months later, again he called Georgetown immediately.

"The other side in both cases called a couple of hours too late," he said.

Whether a newcomer like Andre or a battle-tested veteran of the Supreme Court bar, most attorneys headed to the high court moot their cases repeatedly before they go live on the nation's biggest legal stage.

By the time the practice sessions roll around, lawyers have written their briefs and tried to prepare for any curve balls the court may throw at them. But are they really ready?

In moot courts that vary in form and formality, the answer comes quickly - and while there's still time to make adjustments.

"We've always got this orientation about why we're right," said Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld, who regularly argues before the court. "Until you're forced to defend something orally in the face of hostile questions, you don't really make yourself see the other side's arguments. That's the real value [of moot courts]."

Veteran Supreme Court advocate Theodore B. Olson of Gibson Dunn & Crutcher said the practice sessions train attorneys to deliver succinct, precise answers and to react quickly.

"In court, you can't waste time, you can't be unclear and you can't stand there and think about the question," he said.

The sessions, Olson said, have the added value of forcing lawyers to get on top of their cases earlier than they might otherwise.

"The fear of being embarrassed and humiliated by people you respect causes you to work hard and get ready," he said.

For the typical moot court session, an attorney will stay "in role" for roughly an hour, sometimes longer, answering rapid-fire questions just as he or she would on argument day.

The purpose is not to limit the session to the 20-30 minutes the typical attorney receives for the actual argument, but instead to handle as many questions as the "justices" can think to ask.

Contrary to some perceptions, mock justices don't pretend to be particular members of the court, so there's no one designated to deliver Antonin Scalia's trademark zingers or Stephen Breyer's famously complex hypotheticals.

In fact, the average moot doesn't feature nine justices, rather five or six.

"Nine is a waste," said Georgetown law professor Richard Lazarus, who co-directs the school's Supreme Court Institute. "You don't need that many to get things going."

Collegially Critical Feedback
And though some mock justices make a concerted effort to be mean, Goldstein said that's not the point.

"The court is actually generally very cordial, very collegial and very smart," he said. "So what you need are people who are going to give you very probing questions."

Particularly for Washington-based practice sessions, Supreme Court attorneys frequently volunteer to serve as justices for their brethren, even if they're not fans of the case they're prepping.

"It's just a matter of helping out as a professional courtesy," Olson said.

After the last questions are answered, moot-court panelists critique the lawyer on style and substance, and because most sessions are done in private, they don't shy away from offering their unvarnished views on the attorney's case.

"These things are really candid," Lazarus said. In the extreme case, he said, panelists will even tell an attorney, "I think you're going to lose your case. Is there a way you can have a soft landing here?"

"The very best advocates are the ones who often change their arguments the most based on the moots," Lazarus said. For first-timers, he said, "it's harder for them to change what they're arguing."

Georgetown is home to one of several established moot-court programs in the Washington area, though the others are more specialized.

The National Association of Attorneys General holds moot sessions for virtually every state attorney with a case at the Supreme Court. The advocacy group Public Citizen preps attorneys representing the so-called "little guy" in public interest cases. Law firm Sidley Austin, meanwhile, offers moot courts and other assistance to federal public defenders.

The U.S. solicitor general's office, which represents the federal government at the court, holds its own internal sessions, normally two for each case. If the office is arguing a case in conjunction with a state or a private party, those lawyers are invited to participate.

Large law firms often organize their own moots internally, inviting in-house lawyers and calling in favors from colleagues in other firms.

Outside of Washington, college campuses are frequently the site for moots. In California, Stanford Law School does them with the most regularity, averaging six or seven each Supreme Court term.

Pamela Karlan, who co-directs the school's Supreme Court Litigation Clinic, said Stanford moots all cases the clinic is involved with, and does a few outside cases, too, relying predominantly on law professors to serve as justices. One student also sits on the mock panels.

The school sometimes invites West Coast attorneys to come in, while other times advocates call in their own requests, Karlan said.

"One of the values we bring to this is, we will moot cases that no one is interested in," she said.

Up the road, Boalt Hall held a moot for one of the most unlikely lawyers to appear before the court this term, Louisville, Ky., attorney Teddy Gordon, who argued that his city's use of racial classifications to assign students to public schools was unconstitutional.

"If I'd applied to Boalt law school in 1968, they would have used my application for the bottom of a bird cage," said a jovial Gordon, a night-school law graduate who spends more time on traffic tickets and divorces than tackling hot-button constitutional issues.

Gordon said the Boalt experience made him realize how much more work he had to do.

"They stopped me as soon as I started," Gordon said. "I absolutely wasn't ready for the intensity of it. They kicked my butt. It was wonderful."

Down at Santa Clara Law School, professor Gerald Uelmen puts together about five moots a year, mostly inviting California lawyers who've had their cases granted.

The sessions are great for students and allow the faculty to stay abreast of cutting-edge legal issues, Uelmen said.

"I stole the idea from Georgetown," he admitted.

Georgetown's Model
Launched in 1999 as a public service, Georgetown's moot court program proved popular almost immediately.

When attorneys called seeking the school's help, "the goal was to see if we could not say no," said Lazarus, the program's co-director.

Because the moots are staffed with volunteers, the program does not cost a bundle to run. The school employs one paid staffer to handle day-to-day operations.

So far this term, the school has held moot sessions for 94 percent of the court's cases.

Armed with a database of 450 lawyers who are willing to serve as justices, Georgetown tries to create a mix on its panels, with a faculty member or two, maybe a former Supreme Court law clerk, and attorneys ranging in age and experience who know the court well.

"It's a little like putting together a string quartet of five or six," Lazarus said. "You want them to work together."

Andre, who made the trip from Los Angeles recently to argue his second high court case, involving the Individuals With Disabilities Education Act, said Georgetown gave him three justices who each had 17 or 18 oral arguments under their belts, plus another two panelists with specific expertise about the law in his case.

"It provided for the perfect moot," he said, "where I got nitpicky questions and big, broad questions."

Andre, who participated in three moots for each of his cases this term, said the mock justices who prepped him for his two arguments anticipated 95 percent of the questions the real justices ultimately asked.

"Both sets of moots were extremely helpful in both cases," he said.

He won his first case and is still waiting on the outcome for his second.

While Georgetown's contacts and location-it's just a short walk from the court-may be its main drawing points, its mock courtroom also has become a signature piece of the program.

The room is adorned with burgundy curtains and a hanging clock designed to resemble those at the court. The carpet is more than a resemblance - it's the real thing. The school asked for, and received, the court's permission to use its ornate pattern.

"It all helps you take the moot seriously," Andre said.

Don't, however, expect to see the mock courtroom in use. Georgetown guards the confidentiality of its sessions so zealously that a Daily Journal photographer was not allowed inside until after Andre's session concluded.

Only specially selected students are ever allowed to attend, and that's only if they have permission from the lawyer.

"When Harvard does [a moot], they turn it into a public event," Lazarus said. "I wouldn't advise anyone to do that."

No one, he said, is going to give a completely honest moot in public.

As a general rule, most attorneys do two or three practice sessions per case. Some do more when preparing for particularly complex cases.

'Will You Moot Me?'
And then there's Georgetown University law professor Neal Katyal, who may hold the modern record: He did a staggering 15 moots before he argued a key war on terrorism case last term in which he convinced the court to strike down a Bush administration plan to try terrorism suspects in military tribunals.

"I basically took a legal pad out," Katyal said, "and made a list of all the people in the country who intimidated me the most, and then I called them all up and said, 'Will you moot me?'"

"For me, it was all about making sure that the right arguments were being made, and being made in the right way," said Katyal, who had watched about 150 Supreme Court arguments but never done one himself.

At the other end of the spectrum are a few old-school holdouts, including veteran advocate Carter G. Phillips of Sidley Austin, who do no moots at all.

Phillips argued his first high-court cases in the 1980s as a member of the solicitor general's office, which didn't hold moot sessions back then. Even after going into private practice, he had argued 15 to 20 cases before the thought of moots even crossed his mind. By then, he decided not to bother.

"There aren't that many dinosaurs like me," Phillips said.

Phillips said he prepares for an argument by sitting around a table with trusted colleagues and just talking to them about his case.

"It's more of a give and take process," he said. "It's really much more conversational. For me, it works just fine. I hope to be more conversational with the justices anyway."

But Phillips, who started the Sidley program that offers moot courts to federal public defenders, said he believes the moot sessions are vitally important for people with limited exposure to the court.

"It's good experience on how not to lose your cool and how not to take it personally," he said.

Goldstein of Akin Gump, however, warned that no amount of practice can completely prepare an attorney for the big day.

"That's a whole other level of stress," he said. "Nothing compares to walking into the courtroom and what that does to your pulse rate."

Posted 7:08 PM by Howard Bashman

Posted 5:00 PM by Howard Bashman

Posted 5:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 26, 2007

SPEAKER'S SENIOR COUNSEL EXUDES EXPERIENCE
Joseph Onek Brings Insider's Resume to Aide Pelosi in Possible 'Legal Arms Race'

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When new House Speaker Nancy Pelosi, D-Calif., hired veteran Washington lawyer Joseph Onek last month to be her senior counsel, legal experts saw it as a warning shot across the bow of the Bush administration.

Onek, a veteran of the Carter and Clinton administrations, is no political lackey. He's a respected civil-liberties advocate and an outspoken critic of what he believes is the current administration's abuse of executive power and a failure by Congress under Republican control to rein in the White House.

Onek, 65, is Pelosi's point man on a host of hotly contested legal issues, from habeas-corpus rights for enemy detainees to the administration's covert surveillance operation.

"I am counting on his vast experience and wise counsel as we deal with a range of legal issues involving the House of Representatives," Pelosi said.

Even some conservatives concede that Onek is highly qualified for his role.

"He is a fine lawyer ... and has an intimate understanding of the executive-legislative relationship," said Pepperdine University School of Law professor Douglas W. Kmiec, who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Kmiec and other legal scholars see Onek as the perfect counterpart to President Bush's new White House counsel, Fred F. Fielding, whom many expect to be open to working with a Democrat-controlled Congress.

More-outspoken conservatives are less complimentary about the appointment, saying they fear Onek's views on civil liberties could damage the president's war on terrorism. The Rev. Louis Sheldon of the Traditional Values Coalition said recently that Onek's background "should be of deep concern to all Americans."

Onek jumped at the opportunity to work for Pelosi largely because of his frustration at the White House's broad interpretation of executive power.

During a recent interview at Pelosi's office deep in the bowels of the U.S. Capitol, Onek made it clear that his role is to help Congress put the brakes on the White House.

"We have an incompetent and overreaching executive branch," he said bluntly. "I think these are a crucial two years because the last six years have been so terrible."

He finds equal fault with the Bush administration and the Republican-led Congress, which he claims failed to put major checks on the president's powers, particularly regarding national-security issues.

Onek said Bush might have benefited from a more-vigilant Congress taking a keen interest in the government's response to Hurricane Katrina and nation-building efforts in Iraq.

"I'm not sure that the executive branch was well-served by having a do-nothing Congress," he said.

The White House did not respond to a request for comment about Onek's appointment.

Onek voiced concern that the Bush administration orchestrated a nationwide spate of firings of U.S. attorneys, including two in California. Sen. Dianne Feinstein, D-Calif., led the chorus of disapproval against the purge - which included San Diego-based Carol Lam and San Francisco-based Kevin Ryan - based on suspicion that Bush wants to handpick successors without going through the traditional Senate confirmation process.

A provision added to the Patriot Act last year would have allowed the administration to adopt such a plan, but the White House has insisted there is no plan to do an end run around the Senate.

Although the issue is of more interest to senators than to members of the House, who have no say in confirmations, Onek is clear that it concerns him.

"There's a reason why we have Senate confirmation," he said. "I don't think that should be lightly given up."

But Kmiec warns that Congress should not attempt to overreach, as Pelosi and others have accused Bush of doing.

"It's one thing to check executive excess; it is quite another to disregard the functions that are assigned by the Constitution to the commander in chief," he said.

Insider's Resume
Onek, a Yale Law School alumnus, has the ultimate Washington insider's resume, having worked in the White House and Congress and as a Supreme Court law clerk.

As a private attorney between government jobs, he was known for his litigation skills. He even has argued cases before the Supreme Court.

"He is a guy with enormous experience in Washington," said Michael J. Gerhardt, a law professor at the University of North Carolina, Chapel Hill. "He may have more familiarity than most with all three branches of government."

Onek clerked for Judge David L. Bazelon of the U.S. Court of Appeals for the D.C. Circuit, then for Supreme Court Justice William J. Brennan.

Onek was deputy counsel to President Carter and worked in the Justice Department and the State Department during the Clinton administration. He became a critic of the current administration while working for the liberal Open Society Institute and bipartisan legal think tank the Constitution Project, where Onek was senior counsel.

His ties to the Open Society Institute, founded and bankrolled by billionaire George Soros, riles conservatives like Sheldon, who claim that Soros' influence on the Democratic Party is unhealthy.

For most Congress watchers, though, Onek's appointment was not surprising. They agree that it is imperative for Pelosi to have strong legal representation when facing down the Bush administration.

Arthur D. Hellman, a law professor at the University of Pittsburgh who testifies before Congress frequently, said it is noteworthy that Pelosi picked someone with "independent standing" within the legal and political communities.

"This means two things: He'll be in the loop, and his advice will be given substantial weight," Hellman added.

Challenging Authority
At the Constitution Project, Onek was director of its Liberty and Security Initiative and was active in the post-Sept. 11 debate over national-security issues including the treatment of enemy combatants at the U.S. naval base at Guantanamo Bay, Cuba, and the administration's controversial warrantless-wiretapping program, which the White House recently pledged to end.

Kate Martin, director of the Center for National Security Studies in Washington, D.C., said Onek was "very much involved as a leading voice" in questioning the Bush administration's tactics after the 2001 terrorist attacks. She worked alongside Onek and describes him as "a wonderful lawyer."

Onek remains critical of the Military Commissions Act, which Congress passed last year at the request of the White House. He describes Congress as having been "too deferential" to the president at that time.

The commissions act stripped detainees of the right to file habeas-corpus claims in federal court, a decision that has troubled lawyers throughout the political spectrum, including former Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa.

The D.C. Circuit upheld that statute last week when it ruled on a series of claims from detainees. Onek said the ruling did not surprise him because the law is not clear.

"It's something of an open question" as to which rights noncitizens have, he said. "Whether that is still good law, or should be good law, is unclear."

Onek demurred over whether Congress should restore habeas-corpus rights, as Specter and Sen. Patrick J. Leahy, D-Vt., the new chairman of the judiciary committee, have proposed, but said he expects to be involved in discussions if the House takes up the issue.

On the surveillance front, Onek is reluctant to embrace the Bush administration's suspension of the warrantless-wiretapping program as a victory. The Justice Department made the decision after obtaining an order from a specially assigned court that deals with foreign-intelligence surveillance, officials said last month when announcing a halt to the program.

That court's order is not public, though, so Onek and others are not sure what to think.

"The problem here is that, until we know exactly what the court ruled, it's very difficult to know if it's a great civil-liberties victory," he said.

Now could be a time for Congress to act by revising the Foreign Intelligence Surveillance Act of 1978, which set up the current process, Onek suggested.

"Congress in '78 passed the law that said, 'This is the exclusive means for getting foreign intelligence,'" he said. "Congress needs to reassert that."

'Legal Arms Race'
As he prepares to tackle such controversial matters, Onek is confident that Congress should work better with the White House now that Fielding is Bush's top lawyer.

"He has a reputation for being capable and reasonable," Onek said, adding that, as a member of the bipartisan Sept. 11 commission, Fielding presumably "understands the need for oversight."

The two make a good match, according to Kmiec, because "Fielding and Onek are simply the modern names for what James Madison referred to as the balance of power preserved by ambition checking ambition."

Onek conceded that most assume legal battles to occur between the executive and legislative branches during the next couple of years, which is one reason people such as himself and Fielding have returned to government.

"I'm not sure there's a legal arms race going on," he joked. "But it's fair to say everyone wants to be prepared."

Posted 2:40 PM by Howard Bashman

Posted 11:05 AM by Howard Bashman

Posted 11:00 AM by Howard Bashman

Posted 3:45 PM by Howard Bashman

Posted 7:30 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 27, 2006

CONGRESSMAN RISES ABOVE IMPEACHMENT
Disgraced Ex-Judge Could Chair House Intelligence Panel

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Congress could have disqualified U.S. District Court Judge Alcee Hastings from ever holding federal office when he was impeached and removed from the bench in 1989.

But lawmakers didn't go that far, and some now regret it.

Three years later, Hastings won his own seat in Congress, where he remains safely ensconced in a Democratic district in south Florida.

In the shake-up from this month's election, with Majority Leader-elect Nancy Pelosi making committee assignments, Hastings suddenly finds himself a front-runner for a coveted job - chairman of the House Intelligence Committee.

This remarkable comeback by a judge deemed corrupt by legislators who are now his peers can be traced to the quirky evolution of federal impeachment law, which has taken new turns with each use, right up through the proceedings against President Clinton.

Hastings was impeached for his involvement in a bribery scandal that dated back to 1981.

In court, he was acquitted on criminal charges that he conspired to take a $150,000 pay-off to fix a case.

But a federal appellate court conducted its own investigation and recommended that Hastings be impeached.

Congress found Hastings guilty following a trial in 1989, but the Senate - the body that conducts the impeachment trial - did not vote to disqualify him from holding future federal positions.

What is clear, experts say, is that the Senate has the power to do so.

The Constitution states that impeachment can lead to disqualification from "any Office of honor, Trust, or Profit under the United States."

Over the course of American history, seven judges were impeached in the House and convicted in the Senate. But only two have been banned for life from federal office.

They were: Judge West Humphries of Tennessee, who was convicted in 1862 for pledging support to the Confederacy; and Judge Halsted Ritter of Florida, who was convicted in 1936 for bringing the judiciary into disrepute after he was charged with evading taxes, charging exorbitant fees, showing favoritism to litigants and doing legal work on the side.

No Ban for Hastings
In Hastings' case, no lifetime ban was written into the formal articles of impeachment.

There are different theories why.

Charles Geyh, who served as counsel to the House Judiciary Committee soon after Hastings' impeachment, said it might just be an accident of timing.

He noted that Hastings' case followed close on the heels of the impeachment of Harry Claiborne, a federal judge from Nevada.

Claiborne was the first federal official to be impeached in half a century (following Ritter), meaning there were no recent precedents for lawyers investigating his case.

He was eventually convicted and removed from office in 1986 from under-reporting his income in a case that included allegations of bribery.

Because Claiborne was 68 at the time, Geyh said, congressional prosecutors might have ruled out that he would even seek federal office and probably didn't see the need to disqualify him. (Claiborne committed suicide two years ago at his home in Nevada at age 86 while suffering from Alzheimer's disease.)

"They didn't bother because he was an older guy," said Geyh, who now teaches law at Indiana University.

"The word on the street was that they didn't do that with Hastings because they didn't do it with Claiborne."

Geyh further speculated that there may have been pressure in Congress to ensure that Hastings, who is black, was treated the same as Claiborne, who was white.

Republican Rep. Daniel Lungren, who voted to impeach Hastings before leaving Congress in 1989 and who later served as California's attorney general, has a different take on what happened.

He said the failure to include the disqualification language in the articles of Hastings' impeachment was merely an oversight by members of the House.

"For some reason that paragraph wasn't in there," Lungren said in an interview. "I think it was a mistake."

Rep. John Conyers, D-Mich., was chairman of the House subcommittee that carried out the initial investigation into Hastings' impeachment. Conyers, who is now poised to head the House Judiciary Committee, did not respond to a request for comment last week.

FBI Sting
President Carter appointed Hastings to the bench in 1979, making him the first black federal judge in Florida.

Just two years later, the FBI set up a sting operation after receiving a tip that Hastings was willing to take bribes in return for favorable judgments.

Federal agents posing as fixers told an intermediary, lawyer William Border, that they would pay Hastings $150,000 if he would throw out a forfeiture case involving two brothers.

Borders agreed to the deal and Hastings subsequently dismissed the case.

In a criminal trial, Borders was convicted for his role in the bribery sting, but Hastings was acquitted.

A subsequent investigation by the U.S. 11th Circuit Court of Appeal concluded that Hastings' exoneration came in large part because he had lied on the witness stand.

Hastings has always maintained his innocence.

In 1989, both Pelosi and Conyers voted to impeach Hastings, along with 411 other members of the House.

Only three members voted against impeachment.

The Senate then voted 69-26 to remove Hastings from office after deliberating behind closed doors for seven and a half hours.

Hastings appealed his Senate conviction, arguing that he did not receive a fair trial on the grounds that the whole Senate has to hear the evidence first-hand rather than the committee that was given the task.

A District of Columbia federal judge backed his claim. But his fate was sealed when the U.S. Supreme Court held in a related challenge brought by impeached Judge Walter Nixon that the courts do not have jurisdiction over Senate impeachment deliberations. Nixon v. United States, 506 U.S. 224 (1993).

Ban Might be Moot
Some legal scholars believe Hastings couldn't have been prevented from running for Congress even if lawmakers had taken a hard line on his impeachment.

According to this view, the impeachment clause in the Constitution only allows disqualification from appointed or civil service positions and does not include elected positions.

A case in point is the nation's very first impeachment proceedings, brought against U.S. Sen. William Blount of Tennessee, who was accused in 1797 of colluding with the British after the American Revolution.

The Senate ultimately dropped all charges because members believed Blount was not technically an "officer" of the United States, according to University of North Carolina Law School's Michael J. Gerhardt, author of "The Federal Impeachment Process: A Constitutional and Historical Analysis."

"The Senate dismissed it because ... he was not an officer," Gerhardt said.

That didn't stop some senators from at least discussing taking further action against Hastings after he was elected to Congress in 1992, according to Gerhardt.

Some openly questioned whether they had jurisdiction to return to the disqualification issue to prevent him from serving in Congress, but no formal action was taken.

Hastings was 53 when he made his comeback. Voters have re-elected him seven times, including this month, to his district in the area of Fort Lauderdale, Fla.

Although Hastings has now served for 14 years without controversy, the possibility that he will be named chairman of the intelligence committee has once again raised questions about his integrity.

'Culture of Corruption'
He is an obvious target for conservatives, particularly because the "culture of corruption" in Congress is one of the themes that Democrats used against Republicans this election season.

Judicial Watch, the conservative legal watchdog group, was quick to bring up Hastings' impeachment as grounds for Pelosi to pass him over for the chairmanship.

Tom Fitton, the group's president, said in an interview that the impeachment showed Hastings is "untrustworthy as a public servant."

He conceded that Hastings has served in Congress without any whiff of corruption, but he said the stakes are higher now.

"As chair of the intelligence committee he would be a keeper of national secrets," Fitton said. "This ups the ante."

The chairman of the committee is privvy to classified material that is not generally available to those outside of the intelligence community. Even other members of the committee and staffers are kept in the dark.

Hastings is known as an expert on foreign affairs and has served on the intelligence committee since 1999.

"I've earned my stripes," he told the Washington Post earlier this month.

Hastings' office did not respond to repeated phone calls seeking his recollection of the impeachment and how it bears on his current situation.

Hastings appears to have strong support from the Congressional Black Caucus, whose members say the time is ripe for a minority to run the committee, according to media accounts.

Rep. Melvin Watt, D-N.C., chairman of the Congressional Black Caucus, which is lobbying on Hastings' behalf, declined to comment.

Whether Hastings has broader backing in Washington is unclear.

His hometown newspaper, the Sun-Sentinel of Fort Lauderdale, has come out in his favor, saying in an editorial that Hastings has "handled highly sensitive information without a hint of scandal or incompetence."

The paper went on to add that there is no evidence of "recent infractions that would disqualify Hastings" from chairing the committee.

But veteran Washington Post columnist Ruth Marcus, who covered the impeachment trial, doesn't agree.

"I can't get past the facts of the case, which convince me that Hastings did indeed agree to conspire ... to solicit the bribe," she wrote in a recent column.

For his part, Congressman Lungren, who now represents the Sacramento area, calls Hastings a "nice guy" whom he frequently sees in the Capitol parking lot.

But Lungren said that in light of recent scandals involving members of Congress, committee chairmen should be held to a higher standard.

"The question is: Are we mature enough about the job we have here that we put aside friendship for a higher obligation?" he said.

A spokeswoman for Pelosi, Jennifer Crider, said assignments on the intelligence committee will not be made until January.

She refused to comment on Hastings' impeachment.

Posted 11:54 AM by Howard Bashman

Posted 12:00 PM by Howard Bashman