How Appealing Extra

How Appealing Extra

Tuesday, January 31, 2006

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January 31, 2006

Circuit Judge Faults Lawyers for Their Part in Overloading

By Lawrence Hurley
Daily Journal

A San Francisco federal appellate judge didn't mince his words Monday when asked about the dramatic rise in immigration cases before federal appellate courts.

Speaking at a law symposium in Washington, D.C., Senior Judge John T. Noonan Jr. of the 9th U.S. Circuit Court of Appeals said lawyers themselves should shoulder more of the burden rather than blaming the problem on immigration judges and the government.

In a forceful keynote speech Monday at Catholic University of America, Noonan made it clear that lawyers, particularly those in the Department of Justice, also have an obligation to use discretion when deciding which cases to pursue on appeal.

"It's critical that the lawyers on each side of an immigration case understand their responsibilities," Noonan said.

He was equally harsh on immigration lawyers in private practice who are either incompetent or take advantage of immigrants, sometimes both.

How federal appellate courts should deal with the dramatic rise in immigration cases in recent years has prompted much soul-searching among experts in the field.

The 9th Circuit, the nation's largest and busiest, has had to handle a skyrocketing immigration docket, with a caseload increase of 590 percent since 2001, from 954 cases to 6,583 in 2005.

To highlight the flaws in the current system, Noonan talked about a 9th Circuit case from six years ago.

A woman seeking political asylum persuaded a three-judge panel that she deserved a second chance to argue her case because she was not well-represented by counsel. Escobar-Grijalva v. INS, 206 F.3d 1331. (The ruling does not disclose which country she came from.)

Noonan, who wrote the opinion, read at length Monday from a barely coherent transcript of Escobar-Grijalva's original immigration hearing in Los Angeles.

He related how Escobar-Grijalva, who did not speak English, ended up being represented by a lawyer she had never met at the insistence of a somewhat confused immigration judge.

"Imagine coming to a court of law with this transcript," Noonan said.

Noonan expressed shock that the case didn't set off any alarm bells at the Board of Immigration Appeals, the administrative body in the Department of Justice that upheld the immigration judge's decision to deny asylum to Escobar-Grijalva.

Noonan also criticized government lawyers for then defending that decision when the case went to the 9th Circuit. He said all attorneys should be able to admit errors and not "feel compelled to defend the department, right or wrong."

He suggested there are other problems that have contributed to the rise in appeals, including the quality and quantity of immigration judges. But he argued the situation would not be so bad "if lawyers of the Justice Department took it to heart what it means to be a lawyer."

Most observers trace the increase in the appellate caseload back to reforms instituted by then-Attorney General John Ashcroft in 2002 aimed at reducing the huge backlog of cases in the administrative process.

Ashcroft trimmed the immigration appeals board to half its initial size and decreed that individual members could rule on cases, instead of three-member panels, which had been the norm.

Critics say that the changes merely passed on the workload to the federal courts.

The number of immigration decisions appealed rose from 5 percent in 2002 to 25 percent in 2004, according to a report issued by the Administrative Office of the Courts last year.

Nationwide, more than half of the appeals were lodged with the 9th Circuit, adding to its already cumbersome docket.

Some immigration lawyers are also unhappy with provisions of the Real ID Act, which President Bush signed into law in May 2005.

The law requires appellate courts, instead of district judges, to take jurisdiction over habeas corpus petitions in immigration cases.

The 9th Circuit, along with the 2nd Circuit based in New York City, which also has a high number of immigration cases, has taken action to better manage its docket.

Cathy Catterson, the 9th Circuit's clerk, provided details at Monday's conference. The court encourages parties to go into mediation, attempts to bundle cases involving similar issues, and has expanded its pro bono program, she said.

Catterson added that the court also has saved some time by obtaining electronic copies of immigration case records rather than relying on paper records.

After giving Monday's speech, Noonan told the Daily Journal he is concerned the government is appealing too many administrative rulings in favor of immigrants.

"Each one of these cases involves someone's life," he said.

Sitting in the audience Monday was David M. McConnell, Deputy Director of the Office of Immigration Litigation, the Justice Department section that argues immigration cases on appeal.

"I can't comment," he said, smiling nervously, when asked about Noonan's speech.

A spokeswoman for the Executive Office for Immigration Review said an initial increase in government appeals "may have been largely attributable to challenges to the new regulation," meaning Ashcroft's streamlining of the Board of Immigration Appeals.

Another reason for the increase, the department maintains, is that more plaintiffs may be filing claims in federal court in a last ditch effort to avoid deportation.

Edward R. Grant, a member of the Board of Immigration Appeals, acknowledged at Monday's symposium that some immigration judges make mistakes, but he noted that only a small proportion of cases ever go into federal court. He added that about 80 percent of immigration cases that go to the 9th Circuit are affirmed.

Thursday, January 26, 2006

© 2006 The Daily Journal Corporation.
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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.

January 26, 2006

Alito Unfoldings Provoke a Dull Response

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The Senate debate over Samuel A. Alito Jr.'s confirmation to the U.S. Supreme Court is set to drone on for days.

That's even though everyone already knows that - thanks to a guaranteed 55 Republican votes - Alito is sitting pretty.

But even as the predictable political maneuverings play themselves out, Washington observers already are wondering why few Americans living outside the Beltway really care whether Alito, a supposedly controversial nominee, is confirmed or not.

A poll conducted by the Pew Research Center for the People and the Press in early January found that just 14 percent of respondents were following the Alito nomination.

This compared unfavorably with the 47 percent who were following the plight of the West Virginian miners trapped underground and 40 percent who said they were following the war in Iraq.

Another poll conducted just before the hearing began, this one by CBS News, found that 70 percent of respondents couldn't say whether Alito should be confirmed, despite the reams of newsprint dedicated to the subject.

The tepid interest in Alito seems particularly anti-climactic in light of the heavy media campaign by liberal interest groups to highlight how he would tilt the sharply divided court to the right in place of retiring Justice Sandra Day O'Connor.

By contrast, the public wasn't geared up to expect a major confrontation over the nomination of John G. Roberts Jr. to replace William Rehnquist as chief justice because that switch wasn't perceived to affect the ideological make-up of the court.

Richard Davis, a political science professor at Brigham Young University, argued that lack of public interest in the hearing and Senate debate does not suggest that Americans aren't interested in who sits on the Supreme Court, but rather that they had already decided that Alito is a suitable candidate.

"Alito is a guy who looks like a rumpled college professor," Davis said. "There was nothing [in his record] that really resonated with the public."

Some political observers believe the public indifference to the debate over Alito is a mark of the Democrats' failure to convince Americans that the nominee is unqualified to sit on the Supreme Court.

With careful coaching from the White House, the soft-spoken and unassuming veteran federal appellate court judge from New Jersey made no gaffes during the hearing process, making it difficult for left-wing activists to compare him to Robert H. Bork, the Reagan nominee who was rejected by the Senate in 1987.

This is despite the fact that most experts believe Alito's judicial philosophy, which he bases on a narrow interpretation of the Constitution, is similar to Bork's.

Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, suggested that only a filibuster attempt by Democrats - which is highly unlikely at this stage - would grab the attention of the public.

"If the Democratic senators who have bluntly stated that Alito will shift the course of judicial decision-making ... really mean what they say, you would expect a filibuster - even one doomed to fail," he said.

The Democrats were, however, clearly hampered by their failure to uncover a convincing "smoking gun" that would indicate that Alito puts his ideology above the law.

His opinions may show that he is a consistent conservative voice, "but it's difficult to translate that into a campaign slogan," Davis noted.

As noted by Cass R. Sunstein, a professor at the University of Chicago Law School, Alito himself said nothing at the hearing that would arouse the interest of the general public.

"The issues are technical and abstract and as usual, the public will get engaged only if it thinks there is something concrete at stake, or if the candidate is incompetent or corrupt," he said.

Bork was undone in part by his willingness to challenge issues such as the right to privacy, a tactic that Alito and Roberts both avoided at all costs.

The only other Supreme Court nominee in recent history who had difficulties during the confirmation process was Clarence Thomas, nominated in 1991, who faced allegations that he had sexually harassed Anita Hill, a former colleague.

The lack of fireworks during Alito's hearing even led to calls from some senators for reform of the confirmation process.

Sen. Joseph Biden, D-Del., said there was little point in holding the hearings if nominees are not going to be forthcoming about their views.

One of his colleagues across the aisle, Sen. John Cornyn, R-Texas, agreed, but for different reasons. Cornyn said the hearings should not simply be a podium for senators to air their ideological views.

Most observers concur that there was little on display during the Alito hearing that would arouse the interest of the viewing public.

"The sense is that the questions are repetitive," said Davis. "It makes it less interesting for people."

He added that interest groups on both sides of the ideological divide probably don't help matters by hyping up the importance of the hearings beforehand.

As Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, has quipped on many occasions in recent months, nominees will answer "as many questions as they think they have to in order to be confirmed."

This drawn-out process, which Specter describes as a "subtle minuet," is not likely to rival the Super Bowl in the TV ratings any time soon.

But having survived 650 questions during over 18 hours of testimony, that's not something soon-to-be Justice Samuel Alito will be worried about.

Thursday, January 12, 2006

© 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.

January 12, 2006

Testifying for Alito Seems Deft Move But May Be Risky Business

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - When Supreme Court nominee Samuel A. Alito Jr. finishes his time in the hot seat before the Senate Judiciary Committee, he will see the familiar faces of seven current and former judicial colleagues on the 3rd U.S. Circuit Court of Appeals who have taken the unusual step of agreeing to testify on his behalf.

The appearance by Alito's peers, a rarity in the judicial confirmation process, was a politically deft move engineered by Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who said last week that it seemed "perfectly obvious to hear the testimony of the people who really know this guy."

Some legal observers, however, say the judges' appearance is a cause for concern, given the inherently political nature of the confirmation proceedings.

"I think it's very risky business for circuit judges to be weighing in on behalf of one of their brethren," said Indiana University law professor Charles Geyh.

Geyh, author of the forthcoming book "When Courts and Congress Collide," said the judges "open themselves to criticism from the opposition that they're simply serving as toadies for the candidate, and that they are every bit as political as the interest groups that are lobbying for and against the candidate."

He also said such testimony could potentially affect the court's collegiality if other judges on the court disagreed about the merits of Alito's nomination.

If it becomes more common for judges to testify on judicial nominations, Geyh said, "it's only a matter of time when a colleague gets up and says 'This guy is a schlub.'"

The formidable group of judges testifying on behalf of Alito includes 3rd Circuit Chief Judge Anthony J. Scirica, Judge Maryanne Trump Barry, three senior judges and two retired judges who are now in private practice.

Five of the seven were appointed by Republican presidents. They will be among 33 outside witnesses that Democrats and Republicans have invited to Capitol Hill to testify on Alito's nomination. That testimony is tentatively scheduled to begin today.

According to Specter's staff, the last time a judge testified on behalf of a Supreme Court nominee was in 1991, when a U.S. district judge in Washington state testified on behalf of Clarence Thomas.

Former Chief Justice Warren Burger testified in support of the failed Supreme Court nomination of Robert Bork in 1987. An Arizona federal judge testified for William H. Rehnquist in 1971.

University of Pennsylvania law professor Stephen B. Burbank said that, while it was widely accepted that judges should testify before Congress on legislative matters affecting the judiciary, testifying about a nominee was a more touchy subject.

"I'm not sure that this is just like a judge testifying about [Congress] splitting the 9th Circuit," Burbank said. "I don't think it is."

Burbank said he worries about judges being dragged into the "cesspool" of the confirmation process, adding that it would be unfortunate if the public was led to think "that law is just like ordinary politics."

"I expect this [testimony] to be rather anodyne, bland and not terribly helpful. Because if it's more than that, then you run into problems," Burbank said.

But Gene Schaerr, who worked on the Thomas nomination when he was associate counsel to President George H.W. Bush, said that bringing in the 3rd Circuit judges "certainly strikes me as a reasonable thing to do."

Schaerr, a Washington, D.C., lawyer who heads Winston & Strawn's appellate practice, said the judges' testimony was especially relevant because Democrats have raised ethical questions about Alito's recusal decisions.

The judges, he said, can speak to whether Alito engages other judges in an honest and open dialogue and whether he acts in an ethical manner.

"Those seem like legitimate issues to address," Schaerr said.

Specter said last week that the judges "will testify about [Alito's] approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view."

Geyh warned that the Senate confirmation process was quite different from the American Bar Association process for evaluating a nominee's professional qualifications, a process where judges routinely provide confidential testimony about nominees.

Geyh said the Senate "is undertaking an openly political inquiry: Is Judge Alito politically acceptable?"

That, he said, is not the question the ABA asks when it seeks judicial input.

Aside from Supreme Court nominations, judges have occasionally appeared on Capitol Hill to testify for lower court nominees.

One of the most recent examples came in 2004, when Chief District Judge Marilyn Huff of California's Southern District testified on behalf of Roger T. Benitez, a Southern District nominee whom the ABA gave a "not qualified" rating.

Benitez was later confirmed.