How Appealing Extra

How Appealing Extra

Tuesday, September 29, 2009

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All rights reserved.

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September 28, 2009


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Los Angeles-based American Civil Liberties Union lawyer Peter J. Eliasberg first heard about a controversial cross erected on federal land, it didn't seem like a case that would end up at the U.S. Supreme Court.

They never do.

But 10 years later, Eliasberg is frantically preparing for his first argument before the high court in an Establishment Clause case that is one of the highlights of the term that begins Oct. 5.

An experienced attorney who has argued a number of times before the 9th U.S. Circuit Court of Appeals, Eliasberg, 49, has spent the last weeks criss-crossing the country as he prepares for his biggest challenge ever.

His hectic schedule has included moot courts at Harvard Law School, his alma mater, and media interviews with the likes of National Public Radio and NBC News in Washington.

He conducted an interview with a Daily Journal reporter at Union Station in Washington, a bag on each arm, while waiting for a train to New York. The following day, another moot court awaited, this time at New York University School of Law.

Although eager for a triple espresso from a nearby Starbucks, Eliasberg appeared to be thriving on the attention the case has generated.

"It's exciting," he said. "It's an opportunity not many lawyers get to have."

He is, in fact, no stranger to cameras. He worked as a professional photographer for a decade before attending law school, and his wife, Catherine Dent, is a successful TV and movie actress in Los Angeles, best known for a recurring role on FX show The Shield.

After law school and two clerkships - including one with Judge Stephen Reinhardt of the 9th Circuit - Eliasberg ended up at the ACLU of Southern California and has stayed there ever since.

The case that will bring him to the Supreme Court on Oct. 7 grew out of a long-running religious dispute over a cross in the Mojave Desert that was erected to commemorate war veterans but has instead sparked years of debate about the proper roles of church and state.

At issue is whether the 9th Circuit was correct to bar the federal government from transferring to the Veterans of Foreign Wars a parcel of land in the Mojave National Preserve on which the cross sits in exchange for another parcel of equal value. Salazar v. Buono, 08-472.

Eliasberg and his colleagues maintain that the land transfer, which was ordered by Congress, was a way of circumventing the First Amendment.

A second issue in the case concerns whether Eliasberg's client, Frank Buono, had standing to sue in the first place, as his government opponents point out that he is a Christian who has no reason to be offended by the cross.

He also lives in Oregon and, although he used to work on the preserve and has visited since then, he is not regularly exposed to the cross.

Eliasberg has handled the Mojave case almost since Buono filed his original complaint in 1999. At the time, it did not seem like a complex issue.

"This is a case I thought would end with a strongly-worded letter," the attorney said.

Despite various setbacks for his client, Eliasberg stuck with the case and, in 2007, the 9th Circuit concluded that the land transfer authorized by Congress did not cure the First Amendment violation.

But the biggest hurdle still awaits, according to First Amendment expert David Cole, a professor at Georgetown Law Center who has worked with the ACLU in the past.

Cole said it is a "tough case" for Eliasberg, in part because the government is not arguing that there was never a First Amendment violation, but is instead saying that it took action to fix the problem by transferring the land into private hands.

Cole described Eliasberg as an "extremely able lawyer" who has the advantage of working on a case that's "very well briefed" on both sides.

Recalling her own first argument, Deanne Maynard, a Morrison & Foerster partner in Washington who has argued 11 cases before the Supreme Court, said the biggest challenge for Eliasberg is preparing for the persistent questions from the nine justices.

"There's very little time to string together more than one or two sentences," she said.

She also noted that Eliasberg's familiarity with the case isn't necessarily an advantage. Although it means he will find it easier to memorize the facts in the case, Maynard said, lawyers in such situations almost know too much and can sometimes struggle to provide the concise answer the justices will be looking for.

"You can get caught up in the facts," she said.

A confident Eliasberg does not appear fazed by such concerns. Despite the increasing prominence of a specialized Supreme Court bar in recent years, dominated by the likes of Gibson Dunn & Crutcher's Theodore B. Olson, he is adamant that the ACLU has the talent and resources to effectively represent his client.

"We have done a lot of cases," he said, ticket in hand, as his Amtrak train began to board. "We don't need Ted Olson to come in and rescue us."

Tuesday, September 15, 2009

© 2009 The Daily Journal Corporation.
All rights reserved.

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

September 14, 2009

Roberts, Alito Pledged Deference; Activists After All?

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. successfully navigated their Senate confirmation hearings, both promised to show deference to U.S. Supreme Court precedent.

Now, following oral arguments last week in a major campaign finance case, it appears they will vote to overturn two prior Supreme Court cases, a move that critics say shows that their adherence to a modest judicial philosophy is patchy at best.

But a close reading of the confirmation hearing transcripts shows that Roberts and Alito, who were both nominated by George W. Bush in 2005, left themselves plenty of wiggle room when it comes to re-appraising old cases they disagree with.

Although both said they would respect stare decisis, the legal concept of respecting the authority of prior court decisions, neither said justices should always follow Supreme Court precedent.

Their comments could help justify their actions if, as most observers predict, the court strikes down restrictions on independent corporate-funded speech prior to federal elections. Citizens United v. FEC, 08-205.

To reach that goal, the court would have to overrule two prior Supreme Court cases that gave the court's blessing to restrictions on corporate spending: Austin v. Michigan Chamber of Commerce, 496 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003).

During the argument last week in Citizens United, Roberts and Alito gave no hint they were inclined to avoid the First Amendment question presented in the case and decide the case on narrower grounds.

Roberts has also given prior warning as to where he stands on campaign finance issues following his majority opinion in a related case two years ago, when the court weakened a key provision of the landmark McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002. FEC v. Wisconsin Right To Life, 551 U.S. 449.

Alito, who was in the majority in that case, wrote a brief concurring opinion in which he pointedly did not rule out overturning McConnell at a later date.

Some court-watchers, however, are loath to predict a broad constitutional ruling in the campaign finance case after being burned last term when they made similar forecasts on an important voting rights case.

Then, Roberts and Alito were part of an 8-1 majority that avoided the constitutional question and thereby upheld a vital part of the Voting Rights Act. Northwest Austin Municipal Utility District Number One v. Holder, DJDAR 8986.

Other legal experts point out that although the court did not decide the constitutional question in the voting rights case, it could return to it at a later date.

Remarks to Senators

Roberts and Alito both faced questions about how they would approach stare decisis during their confirmation hearings.

From the perspective of senators, particularly those who are pro-choice, the questioning was an attempt to pin the nominees down on their willingness to overrule Roe v. Wade, the landmark 1973 case that endorsed the right of women to have abortions.

Although unwilling to elaborate much on that issue, Roberts and Alito did give lengthy legalistic explanations of their interpretation of stare decisis.

Roberts, whose hearing took place in September 2005, described overruling precedent as "a jolt to the legal system" that should be avoided unless absolutely necessary.

"It is not enough that you may think the prior decision was wrongly decided," he said. Justices have to take into account "settled expectations" and such issues as "the legitimacy of the court," "whether a particular precedent is workable or not" and "whether a precedent has been eroded by subsequent developments," Roberts added.

During Alito's confirmation hearing in January 2006, the nominee acknowledged under questioning from then-Sen. Joseph R. Biden Jr., D-Del., that the Supreme Court does not need to follow its own precedents.

"It is not an absolute requirement, but it is the presumption that the court will follow its prior precedent," he said. Alito then added that the court does, however, "need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important."

He cited the notorious 1896 ruling Plessy v. Ferguson, in which the court endorsed separate-but-equal accommodations for blacks and whites, as an example of a case the court rightfully overruled.

Justices not boxed in

Looking back at those comments, "there are no statements that either made that boxes them in," said Rick Hasen, an expert in election law at Loyola Law School in Los Angeles. The justices are now engaged in process of balancing their respect for stare decisis with their misgivings about the earlier rulings, he added.

Other legal experts, like Doug Kendall, of the Constitutional Accountability Center, a progressive legal group that supports campaign finance limits, concede the justices can overrule cases but stress that any court that does so needs stronger justification.

"It's tough for them to justify overturning a precedent like Austin," Kendall said. Although Austin was decided in 1990, it is based on 100 years of campaign finance law, Kendall added.

Key to how the court will rule is Roberts's and Alito's willingness to categorize the case as a recent ruling that is not settled law, he said.

The oral argument would suggest that they have no qualms about categorizing it that way, especially Alito, who at one point expressed his views with some clarity.

"All of this talk about 100 years and 50 years is perplexing," Alito said. "It sounds like the sort of sound bites that you hear on TV. The fact of the matter is that the only cases that ... may possibly be reconsidered are McConnell and Austin. And they don't go back 50 years, and they don't go back 100 years."

Who's leaning which way?

Michael O'Neill, who was chief counsel of the Senate Judiciary Committee during both the Roberts and Alito confirmation hearings, thinks that Alito may have fewer reservations than Roberts about overruling precedent.

In some ways Roberts still thinks like the advocate he was, O'Neill said, keen to raise issues that later courts can address down the line.

Alito may be less reluctant to reappraise precedent because, having spent 16 years as a judge on the 3rd U.S. Circuit Court of Appeals, he is not so conscious of the disruptive effect such changes can have on practicing lawyers, O'Neill added. Lawyers on the ground "have a more conservative approach because they know how a big jolt to the law can affect the parties," he said.

Roberts, meanwhile, has said he favors an incremental approach to changing the law.

His opinion in the 2007 campaign finance case, which weakened the McCain-Feingold law by allowing corporations to fund issue advertising that does not explicitly endorse a candidate, would seem to reflect that view.

Famously, his opinion limiting the scope of campaign finance laws prompted fellow conservative Justice Antonin Scalia to describe his approach as "faux judicial minimalism" and "judicial obfuscation" because the chief justice did not specifically overturn the court's 2003 ruling in McConnell.

Citizens United now gives Roberts the chance to reap the fruit of the seeds he planted in that earlier opinion, having given clear notice of his intent.

"That appears to be what he is doing here, which is quite appropriate," said O'Neill, now a professor at George Mason University School of Law. "You hate to move the law in fits and starts."