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Wednesday, December 19, 2007

Posted 10:15 PM by Howard Bashman

Sunday, December 16, 2007

Posted 10:30 PM by Howard Bashman

Wednesday, October 17, 2007

Posted 8:15 AM by Howard Bashman

Thursday, October 11, 2007

Posted 6:03 PM by Howard Bashman

Thursday, October 04, 2007

Posted 6:10 PM by Howard Bashman

Thursday, September 27, 2007

Posted 5:27 PM by Howard Bashman

Thursday, September 13, 2007

Posted 6:40 AM by Howard Bashman

Friday, August 17, 2007

Posted 12:40 PM by Howard Bashman

Thursday, July 26, 2007

Posted 10:12 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2007 The Daily Journal Corporation.
All rights reserved.

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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."

Wednesday, June 13, 2007

Posted 2:35 PM by Howard Bashman

Friday, May 25, 2007

Posted 11:05 AM by Howard Bashman

Friday, May 18, 2007

Posted 4:00 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 17, 2007

Repartee, Spectator Outburst Energize High-Court Justices

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - It was a day that won't be forgotten by anyone who had a seat in the courtroom.

On a long-anticipated November morning, the U.S. Supreme Court heard its first major abortion case in six years, and the tension was palpable. The court's police officers appeared to be on extra high alert- as it turned out, for good reason.

Priscilla J. Smith of the Center for Reproductive Rights was eight minutes into her argument against the federal Partial Birth Abortion Ban Act when Rives Miller Grogan, an anti-abortion protester from Los Angeles, stood suddenly and began shouting.

With the justices looking on, officers ran through the stunned crowd and swarmed Grogan. The police dragged Grogan kicking and screaming from the courtroom, his message muffled in the commotion: "Abortion ... innocent blood ... you will perish ... Jesus says...!"

Chief Justice John G. Roberts Jr. tried to lighten the mood.

"We'll give you an extra 30 seconds," he said to Smith with a smile. "Proceed."

Although Smith regained her composure, the case ended in bitter disappointment for abortion rights advocates. A 5-4 court upheld the law in April.

Grogan's outburst, the first such disruption of a Supreme Court proceeding in 20 years, cost him 15 days in jail, a $500 fine and a year's probation.

The interruption was one of many memorable moments during the court's 2006-07 oral arguments, Act II of the Roberts court, in which the justices again seemed to be a more energetic and lively bunch under their younger, more assertive chief justice.

It wasn't the only jaw-dropping moment of the year, thanks to well-known Harvard law professor Arthur R. Miller, who delivered perhaps the best one-liner of the term, and certainly the riskiest, during a key securities-fraud case in March.

When Justice Antonin Scalia, the court's resident flamethrower, suggested that a plaintiff's fraud allegations needed to be very strong to go to trial, Miller shot back with some fire of his own.

"Is that because you never met a plaintiff you really liked?" Miller asked.

Eyes widened. The audience gasped. All of the justices laughed, looking at one another with wide grins as their outspoken colleague seemed temporarily at a loss for words.

"I took a liberty there with the justice," a grinning Miller said during the laughter.

Scalia wasn't silent for long, jumping in a short time later when Miller told Roberts not to take one of his statements literally.

"Let me write that down: We should not take you literally," Scalia said. "All right."

Roberts interrupted to declare a truce.

"OK, you two are even now," he said.

Miller did not return repeated calls for comment.

Although Miller delivered the line of the year, Frances Forsman, the federal public defender for Nevada, delivered one of the best arguments - and received a highly unusual compliment for it.

Forsman, making her first high-court appearance, had the challenge of convincing the court that its 2002 ruling in Crawford v. Washington, which severely limited the admissibility of out-of-court statements made by witnesses who did not appear in person, should apply retroactively.

The task was a tall one. The court had said that only its most bedrock holdings, like the right to counsel, are so important that they should allow defendants to reopen old cases.

Forsman's argument, however, was nearly flawless. If she seemed ready for each and every question, it's because she was. Thanks to four rigorous moot courts, the justices didn't come up with a single question that she hadn't heard before.

"I was on automatic pilot," she said.

Forsman even improvised, mentioning the morning's first case, a dispute involving Duke Energy Corp.

Not even Duke's high-priced lawyers, she said, could have saved her client if out-of-court statements could be used against him. That's why, she said, the right to confront one's accusers in court is so important.

As Forsman prepared to submit her case, 87-year-old Justice John Paul Stevens, the court's elder statesman, spoke up.

"May I ask you a personal question?" Stevens asked. "Were you a moot-court finalist?"

Blushing, Forsman said, no.

"I attended a moot court at Notre Dame in about your year, and it was an awfully good moot court," Stevens said.

The court almost never praises an advocate from the bench, not even in the round-about way that Stevens approached it. His intent, however, was unmistakable.

"Obviously, I was extremely flattered by Justice Stevens' comment," Forsman said.

Even better, she said, was that her "ancient old" wheelchair-bound father was in the courtroom to hear it.

"That was one of the nicest parts of it," she said. "That was probably one of the last trips he'll take."

In the end, however, Stevens' rare compliment was all Forsman got: She lost the case 9-0, proving that even the best oral arguments don't always win.

Although Forsman finished her argument thinking that she had at least an outside shot at winning her case, the justices made clear to Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld that he would not be winning his, a patent case that was among the term's most notable.

Goldstein was in the unfortunate position of having to defend an important and much criticized legal test used by the U.S. Court of Appeals for the Federal Circuit to determine when an invention was obvious and therefore not deserving of patent protection.

The justices, pulling no punches, made clear early and often that they intensely disliked what the Federal Circuit had done. Goldstein, whose case never had a chance, took the beating of the year, and perhaps of a career.

"We always had an idea that we were behind, but I didn't have the sense that they would be so befuddled or so hostile," Goldstein said.

Roberts labeled the lower court's test as "worse than meaningless."

Scalia preferred to call it gobbledygook.

Justice Stephen G. Breyer said he'd read the appeals court's opinion 20 times and still couldn't figure out what it had done.

The jokes rained down.

When Goldstein said that experts had concluded that his client's patent was not obvious, Roberts couldn't resist.

"Who," Roberts asked, "do you get to be an expert to tell you something's not obvious? The least insightful person you can find?"

Goldstein, described in the next day's New York Times as "the straight man in a courtroom comedy," said the argument was by far the most intense onslaught he'd ever faced.

"You have almost no friends," he said.

"You just have to take a very significant step back," he said, which meant urging the court not to radically rewrite patent law.

"In total candor, that worked," he said. "The tone of the opinion is totally different from the tone of the oral argument."

The experience, Goldstein said, underscored a basic lesson about the court: "It's impossible to predict a Supreme Court oral argument."

With the court's hearing fewer cases in recent years, the competition among private practitioners for argument time has grown ever more intense.

And although the group of regular Supreme Court advocates is mostly a men's club, this year's leader was a woman, Maureen Mahoney of Latham & Watkins.

Mahoney, the most accomplished woman advocate at the Supreme Court today, had four arguments this term, the most of any lawyer in private practice. She beat out a handful of male counterparts who had three.

"It's the first time I've led the pack," Mahoney said of her demanding year. "I enjoyed it."

Mahoney, best known for her victory in the 2003 Grutter v. Bollinger case that preserved the narrowly tailored use of race in college admissions, said she was not doing anything different than she did in years past.

"It's just a question of who calls," she said, though she conceded that her high-profile win in Grutter, along with a 2005 win in a case involving Arthur Andersen, had increased her visibility.

"I don't think any of them want it to be a boys club," Mahoney said of her male peers.

It would be best for everyone, she said, if women were arguing more cases.

Things were headed in the right direction, she said, but "it's slower than I would have expected."

Goldstein said Mahoney was a hot commodity these days, "and deservedly so."

"For the first time ever," he said, "we have a woman who is one of the top three advocates before the court."

Wednesday, May 09, 2007

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."

Friday, May 04, 2007

Posted 5:45 PM by Howard Bashman

Thursday, May 03, 2007

Posted 10:40 PM by Howard Bashman

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