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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."

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May 22, 2009

Sotomayor, Moreno in Talks For Souter Seat

By Laura Ernde and Lawrence Hurley
Daily Journal Staff Writers

The Obama administration is stepping up its efforts to appoint a new U.S. Supreme Court justice by approaching two more judges on its shortlist. Having already reportedly interviewed 7th U.S. Circuit Court of Appeals Judge Diane Wood, the White House has also been in contact with another frontrunner, Sonia Sotomayor of the 2nd Circuit, and long-shot contender Justice Carlos R. Moreno of the California Supreme Court, sources have told the Daily Journal.

An attorney vetting potential U.S. Supreme Court candidates contacted Moreno this week. Moreno declined to talk about the vetting process Thursday. "I'm very honored to be on what people term to be the 'shortlist,'" he said.

Sotomayor, 54, the other leading Hispanic candidate, is rumored to be meeting with President Barack Obama at Camp David this weekend, according to a Washington lobbyist who is pushing for the administration to appoint a Hispanic and has had contact with the White House.

Obama is scheduled to stop in Los Angeles next Wednesday during a West Coast tour.

Moreno is considered to be a long shot because at 60 he's relatively old for a U.S. Supreme Court appointee by recent standards. Also, Obama has been said to be looking for a woman for the job.

Hispanic groups met with White House officials Thursday to discuss the vacancy, said Nan Aron, president of the Washington-based liberal advocacy group Alliance For Justice, which will support whomever Obama nominates. Aron said the Hispanic groups felt Thursday's event, which she didn't attend, had been a "good meeting."

The White House refused to comment on the vetting process.

With Justice Ruth Bader Ginsburg currently the only woman on the court, and only the second justice in history, most legal experts and political pundits expect Obama to nominate a woman.

Along with Sotomayor, the other leading contenders are reportedly Wood and Solicitor General Elena Kagan. Other names mentioned include Jennifer Granholm, the governor of Michigan, and Janet Napolitano, the former Arizona governor who heads the U.S. Department of Homeland Security.

Members of California's Hispanic legal community have lined up behind Moreno, a former federal judge who was appointed to the state Supreme Court in 2001, making calls on his behalf shortly after Justice David Souter announced his retirement early this month. Sen. Dianne Feinstein's office also urged Obama to consider Moreno or 9th U.S. Circuit Court of Appeals Judge Kim McLane Wardlaw, 54, another Hispanic, to fill Souter's vacancy.

Moreno, the son of Mexican immigrants, grew up in a working class neighborhood in East Los Angeles that is now the site of Dodger Stadium. He worked as a deputy city attorney and a commercial litigator at a law firm before becoming a judge.

Moreno has a reputation for being liberal on civil rights issues and conservative on criminal justice issues. Last year, he joined the majority opinion in overturning a law banning same-sex marriage.

The state justice has enjoyed bipartisan support, with Republican governors appointing him to his first two state court judicial positions and Democratic President Bill Clinton putting him on the federal bench in Los Angeles in 1998. Gov. Gray Davis, another Democrat, appointed him to the state Supreme Court, where he remains the only Democratic appointee.

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May 21, 2009

OBAMA BREAKS FROM BUSH ON PRE-EMPTION

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - President Barack Obama broke sharply from Bush administration policy Wednesday by announcing his administration will not insist that federal law pre-empts state law on a variety of policy issues. One of the main aims of the Bush administration tactic was to restrict the ability of plaintiffs to file lawsuits under state consumer protection laws.

The announcement should delight but not surprise trial lawyers, who often tussled with the Bush administration over when federal laws should pre-empt state laws on issues such as tobacco and drug regulation.

In a memo signed by Obama himself, the president said his aim was to "state the general policy of my administration that pre-emption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for pre-emption."

He ordered federal agencies not to include any language about pre-emption in preambles to regulatory statements unless that was the express purpose of the regulation.

The Bush administration's U.S. Food and Drug Administration put the pre-emption tactic to famous use in a case that drew derision from Supreme Court Justice John Paul Stevens in a March majority opinion knocking down the Bush policy of opposing drug liability lawsuits in state courts under the pre-emption rule. Wyeth v. Levine, DJDAR 3199.

Stevens wrote that "the FDA's recently adopted position that state tort suits interfere with its statutory authority mandate is entitled to no weight."

In another clear reference to the Bush administration, Obama asked department heads to "review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions." Regulations that contain such pre-emption statements may then be amended, Obama announced.

An administration spokesman said the White House's intent was to "restore the integrity" of the regulatory process by respecting the differing roles of federal and state government.

Paul Bland, a staff attorney at public interest law firm Public Justice, hailed the announcement. Trial lawyers saw the Bush administration's efforts, aimed at curtailing multi-million dollar state court jury verdicts that trend in favor of plaintiffs, as a form of back door tort reform.

"I think it's an extremely important and welcome development," he said. "In addition to health, safety and the environment, the states have long played a central role in consumer protection."

If "the spirit of this memorandum is followed," he added, a number of regulatory decisions that were detrimental to consumers could be reversed.

Victor Schwartz, general counsel of the pro-business American Tort Reform Association, said lobbyists for trial lawyers would be "popping the corks on the good champagne" upon reading the announcement.

But Schwartz noted that it didn't rule out the use of regulatory pre-emption in all cases or touch upon the ability of Congress to pass legislation containing pre-emption provisions.

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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.

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May 13, 2009

OBAMA'S 'EMPATHY' COMMENT UNITES CONSERVATIVES
'Empathy' Remark Rallies Conservative Opposition

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - For conservative activists gearing up to fight the confirmation of President Barack Obama's yet-to-be-named U.S. Supreme Court nominee, there's one word that will shape their entire strategy: empathy.

When Obama said on hearing of Justice David H. Souter's retirement earlier this month that he is looking for "that quality of empathy, of understanding and identifying with people's hopes and struggles" in candidates for the court, it set alarm bells ringing on the right.

For conservatives, Obama's comments constituted a code, which once deciphered signaled to them that he wants to appoint a liberal activist judge who will make policy from the bench.

It's also a word that can act as an umbrella term under which conservatives of all stripes can unite, activists say.

For social conservatives the term conjures up hot-button issues like gay marriage and abortion, but business groups feel it also suggests that an Obama justice would be more likely to side with plaintiffs rather than corporate America.

The nominee - due to be announced in the coming weeks - will face probing questions about his or her judicial philosophy at a confirmation hearing before the Senate Judiciary Committee.

The hearing will be scheduled over the summer, with Democrats hoping the new justice will be in place in time for the court's new term, which starts in October.

Media reports suggest that the shortlist of nominees features such names as Solicitor General Elena Kagan, 7th U.S. Circuit Court of Appeals Judge Diane Wood and Judge Sonia Sotomayor of the 2nd Circuit.

With Democrats in sight of a filibuster-proof majority in the Senate, there is little Republicans can do to prevent eventual confirmation.

But that won't stop them from seizing on Obama's empathy remarks, according to Curt Levey of conservative legal group Committee for Justice.

Empathy "means favoring certain groups or people" in court, he said, which, at worst, "means using the ruling to show empathy to make policy."

Liberals are expecting that rhetorical battle, said Marge Baker, executive vice president of liberal group People for the American Way, which will support Obama's nominee.

She regards it as a "fake fight" aimed at stirring the conservative base.

"You have the labels from the right about judicial activists legislating from the bench, which we believe is misleading," she said.

But Baker conceded that Obama's phrase is likely to unite disparate conservative groups.

Dr. Charmaine Yoest, president of anti-abortion group Americans United For Life, certainly thinks so, saying that conservative activists "see a common thread" in Obama's remarks that brings them together as they await the nomination. Obama's favored judicial ideology suggests, "a real blurring of the lines between what a jurist is and what a legislator is," she added.

For abortion opponents, the real concern is that an Obama nominee would vote to overturn various restrictions on abortion, including the ban on partial birth abortions that the Supreme Court upheld in 2007. Gonzales v. Carhart, 550 U.S. 124.

Activists who oppose gay marriage are equally concerned that the Supreme Court could recognize a right to same-sex marriage in the U.S. Constitution.

Just last month, the Iowa Supreme Court ruled that a state law limiting marriage to a man and woman was unconstitutional. Iowa is one of five states where gay marriage is now legal.

Tony Perkins, president of the Family Research Council, which opposes gay marriage, has said Obama would violate his oath of office if he nominates "an activist of any type of who promotes a personal agenda."

The business community is also paying close attention.

Robin Conrad, who heads the U.S. Chamber of Commerce's litigation center, has already warned in a statement that judges who "legislate from the bench," can "add a layer of unpredictability to the legal system that makes it much harder to do business or to attract investors to our markets."

Some Republicans may also raise concerns about how a nominee might view the Obama administration's intervention in the economy, said Michael O'Neill, who was Republican chief counsel on the Judiciary Committee when Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were confirmed.

The pressure the government is putting on creditors of automobile manufacturer Chrysler to allow the company to reorganize as it faces bankruptcy prompts various legal questions concerning both contractual obligations and private property rights, he added.

"Creditors have property rights," O'Neill said.

Liberals, of course, downplay Obama's remarks about empathy, saying he merely wants to recalibrate what they regard as a right-leaning court.

"It doesn't mean he wants a judge who will reason based on the results he wants," said People for the American Way's Baker.

What's certain is that regardless of whom Obama nominates, conservatives will be desperate to keep their pet causes in the public eye.

"We are paying attention and we want to see real hearings," said anti-abortion activist Yoest. "We don't want to see a rubber stamp."

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May 08, 2009

HISPANICS PUSH MORENO FOR U.S. SUPREME COURT

By Laura Ernde
Daily Journal Staff Writer
SAN FRANCISCO - Members of California's Hispanic legal community want to make sure President Barack Obama doesn't overlook their favorite candidate for the U.S. Supreme Court - California Supreme Court Justice Carlos R. Moreno.

Supporters said Moreno, 60, would bring a much-needed West Coast perspective to the court as well as diversity of experience. The son of Mexican immigrants, he grew up in a poor neighborhood in East Los Angeles and went on to Yale University and Stanford Law School. Moreno was a state and federal judge before being appointed to California's high court in 2001.

Even before Justice David Souter announced last week that he would retire at the end of the term, the Hispanic National Bar Association began lobbying Obama to appoint the first ever Hispanic Supreme Court justice.

In an interview with the Daily Journal, Moreno said he didn't know if he was being considered by the White House but said he was honored to have been chosen by ethnic bar groups.

"I'm very happy with the work I'm doing on the California Supreme Court in terms of the issues we decide, the collegiality of the court and my work on foster care, but..." he said, pausing, "the opportunity to serve on the United States Supreme Court or even just to be considered is something that I would definitely accept if I had the good fortune to be nominated.

He acknowledged that with his age, "my clock is ticking."

Moreno's name surfaced in a few articles late last year but has been largely absent from most of the likely-candidate lists that have been circulating this week. The conventional wisdom has been that Obama is looking for a woman to fill the spot as well as someone 5 to 10 years younger than Moreno.

That hasn't deterred the Mexican American Bar Association of Los Angeles and the San Francisco La Raza Lawyers Association from both voting this week to endorse Moreno.

Santa Clara County prosecutor Christopher Arriola, a leader among Latino lawyers who's familiar with the judicial appointment process, has also been working behind the scenes to see that Moreno gets considered for the job. Arriola serves on the board of La Raza Lawyers of California but said he was speaking only for himself because the Hispanic lawyers group had not yet made a formal endorsement.

Arriola acknowledged that Judge Sonia Sotomayor, 54, of the 2nd U.S. Circuit Court of Appeals had emerged as a leading contender for Souter's seat. The daughter of Puerto Rican immigrants, Sotomayor grew up in the South Bronx and went to Princeton University and Yale Law School.

"There are two great Hispanic candidates in Judge Sotomayor and Justice Moreno who both have very different backgrounds," he said. "But we in California feel the court could also benefit from the West Coast perspective and want to ensure that Justice Moreno is duly considered for this historic vacancy."

Alicia Villarreal, a partner at Morgan, Lewis & Bockius in Los Angeles, has also been lobbying for Moreno, whom she met when she was a federal prosecutor and he a federal judge.

Moreno has endeared himself to lawyers all over the state with his willingness to give time and energy to their causes, she said. For example, Moreno has handed out awards every year for a charity scholarship program Villarreal founded for Hispanic law students.

"He's just a wonderful human being and someone who I highly respect and admire," Villarreal said.

She and Arriola have been in touch with the offices of California Sens. Dianne Feinstein and Barbara Boxer and talked to other community leaders to drum up support for Moreno.

The state justice has enjoyed bipartisan support, with Republican governors appointing him to his first two state court judicial appointments and Democratic President Bill Clinton putting him on the federal bench in Los Angeles in 1998.

Gov. Gray Davis, another Democrat, appointed him to the state Supreme Court, where he remains the only Democratic appointee.

Moreno has a reputation for being liberal on civil rights issues and conservative on criminal justice issues. Last year, he joined the majority opinion in overturning a law banning same-sex marriage.

Two years ago, he wrote the majority opinion in an employment case that sided with employees bringing wage-and-hour class actions, Gentry v. Superior Court, 42 Cal.4th 443. The 4-3 decision discourages class arbitration waivers in employment contracts.

Judge Kim McLane Wardlaw, 54, of the 9th U.S. Circuit Court of Appeals in Pasadena has also been mentioned as a serious contender. Her mother is Mexican-American.

The presidents of the two ethnic bar groups that endorsed Moreno said the justice was the only person they vetted before making the endorsement.

"We're endorsing [Moreno] not just because he's Latino, but he's demonstrated he's a person who is mindful of the struggles of people of color," said Niki Solis, president of San Francisco La Raza Lawyers Association. "He hasn't forgotten where he's come from."

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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.

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May 04, 2009

9TH CIRCUIT JUDGE ON LIST OF CONTENDERS TO REPLACE SOUTER

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - With President Barack Obama reportedly looking for a liberal woman or Hispanic to replace David Souter on the U.S. Supreme Court, Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in Pasadena is being mentioned as a contender.

Wardlaw, placed on the circuit bench by President Bill Clinton in 1998, has the advantage of relative youth. At 54, she's the same age John Roberts was when the Bush administration made him chief justice.

Nan Aron, president of the Washington, D.C.-based liberal advocacy group Alliance for Justice, said she thinks Wardlaw should be considered in the top tier of any list of candidates.

"I have heard her name frequently mentioned," Aaron said.

Thomas C. Goldstein, founder of the influential Supreme Court Web site Scotusblog and co-head of Akin Gump Strauss Hauer & Feld's firmwide Supreme Court practice, suggested in 2007 that Wardlaw might replace Souter in 2009.

He stood by that prediction Friday, although he added two other names with California connections.

"Wardlaw is a serious candidate," Goldstein said, "and she and Pam Karlan at Stanford and Kathleen Sullivan formerly of Stanford will all be thought about."

Pamela S. Karlan, 40, the founding director of Stanford Law School's Supreme Court Litigation Clinic, once clerked for Associate Justice Harry A. Blackmun, the author of Roe v. Wade, 410 U.S. 113 (1973).

Karlan didn't immediately return a call seeking comment Friday but told the Daily Journal in March, "At some point in my life, I think it'd be great to be a judge."

Kathleen M. Sullivan, 53, a former Stanford Law School dean who chairs the national appellate practice at Quinn Emanuel Urquhart Oliver & Hedges in New York, drew applause last summer at the 9th Circuit's annual conference when she blasted the Bush administration's practices of undercutting legislation with signing statements and of failing to operate with enough transparency.

"There is no authority to declare vague, ambivalent signing statements as the current president has done," Sullivan said. "And if the shroud of presidential secrecy over rendition and torture or the wiretapping of citizens has to await disclosure by the New York Times, that is an extremely troubling presidential arrogation of power."

Sullivan's office said she was on a plane and unavailable to comment Friday.

Many detected Wardlaw's liberal bent last year when she wrote for a 6-5 divided en banc panel majority. The decision reversed an earlier ruling and found Arizona middle school officials violated a student's Fourth Amendment rights by strip-searching her on suspicions that she was hiding prescription strength ibuprofen.

That outcome is currently before the Supreme Court, where the conservative justices appeared likely at oral argument last month to side with school administrators. Safford United School District v. Redding, 08-479.

On Friday Wardlaw joined the majority in another en banc decision from the 9th Circuit, this one allowing two women to sue former officials with the Alaska governor's office, despite the state's sovereign immunity defense, for damages related to claims of sexual harassment, gender pay disparity and retaliation.

Wardlaw was born in San Francisco to a Scotch-Irish salesman father and a Mexican-American accountant mother. The judge has said she is reportedly the first Hispanic-American woman appointed to a federal appeals court.

Wardlaw, who did not return a call to her chambers, has also said she was ostracized for being the only Mexican girl in elementary school.

"I saw a lot of unfairness and injustice growing up," she said. "I have a strong sense of justice and a strong moral compass. I've always had that."

UCLA School of Law Professor Kenneth L. Karst remembered Wardlaw telling him as a student there that she wanted to be a federal judge.

"You can imagine my gulping at that," Karst, a constitutional law scholar, said Friday. "But I thought of her at once when I heard the president would like to appoint a woman."

Karst said he's followed his former student's impressive career and gave Wardlaw high marks for legal decision making.

"Read her opinions and you'll see a good legal mind at work," he said. "She'd be the sort of justice who'd be a careful student of legal principles and the details of legal analysis."

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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.