How Appealing Extra

How Appealing Extra

Wednesday, January 20, 2010

© 2010 The Daily Journal Corporation.
All rights reserved.

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

January 20, 2010

Three Californians Up for Federal Bench

By John Roemer and Rebecca Beyer
Daily Journal Staff Writers

SAN FRANCISCO - The Obama administration is poised to nominate three Northern Californians to the federal bench, sources have told the Daily Journal.

The nominations could come as soon as today, when the U.S. Senate reconvenes.

Goodwin H. Liu, a UC Berkeley School of Law associate dean and constitutional scholar, is said to be an Obama pick for one of the two vacant seats on the 9th U.S. Circuit Court of Appeals.

According to one Northern District source who declined to be named, Liu has been vetted both by the Federal Bureau of Investigation and the American Bar Association for a federal appellate appointment. A former O'Melveny & Myers appellate litigator in Washington, D.C., who earlier clerked for U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, Liu joined the Berkeley faculty in 2003.

A Yale Law School graduate, Liu last year published "Keeping Faith with the Constitution" with Pamela S. Karlan of Stanford Law School and Christopher H. Schroeder of Duke University School of Law.

He did not return calls seeking comment Tuesday.

Lucy H. Koh, a state superior court judge in Santa Clara County, is an Obama choice for a federal judgeship in the Northern District of California, two sources said. She has also been vetted by the FBI and the ABA.

Koh, whom Gov. Arnold Schwarzenegger appointed to the state bench in 2008, is a former McDermott Will & Emory appellate law and intellectual property partner who served in the Clinton administration as a special assistant to the U.S. Deputy Attorney General in Washington, D.C. and as a special counsel for the U.S. Department of Justice.

The Harvard Law School graduate did not return calls Tuesday.

Obama also intends today to renominate U.S. Magistrate Judge Edward M. Chen of San Francisco to a federal district court judgeship, two sources said.

The President, who first nominated Chen last year, must either renominate Chen or abandon him, because he failed to win unanimous consent in the Senate to remain in consideration for a confirmation vote.

Chen, a UC Berkeley School of Law graduate and the first Asian-American on the federal bench in Northern California, was a target of Republican opposition at his nomination hearing last fall, when he was grilled for his past employment with the American Civil Liberties Union and for a law review article commenting on the benefits of diversity in decision making.

On Tuesday, a member of Chen's staff said he would have no comment. In August, Chen said in a statement that he was "deeply honored" to have been nominated and was looking forward to the confirmation process.

Edwin K. Prather, the president of the Asian/Pacific Bar of California, said the Asian-American legal community would support both Liu and Koh, if the pair are nominated. The bar also supports Chen.

"If Goodwin is nominated to sit on the 9th Circuit, he would be a fantastic addition to the court," Prather said. "He is a brilliant scholar and has a breadth of experience that would really serve the court well."

Daily Journal Staff Writers Craig Anderson and Robert Iafolla contributed to this story.

Monday, January 11, 2010

© 2010 The Daily Journal Corporation.
All rights reserved.

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

January 11, 2010

High Court To Weigh Overseas Custody Battle

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Tackling a sensitive question of international law, the U.S. Supreme Court will weigh this week whether a child brought unlawfully to the United States by his mother must be returned to Chile, where the father lives.

The case is in many ways the mirror image of the high-profile dispute that recently sparked a media furor over the attempts of an American man to regain custody of his 9-year-old son who was taken to Brazil by his then-wife five years ago.

There are also echoes of the international tussle in 2000 over the fate of Elian Gonzalez when his Cuban father sought and won the boy's return to the communist island over the objection of relatives in Florida.

In the Brazilian case, David Goldman finally won custody of his son, Sean, just before Christmas after a lengthy legal fight.

That dispute was about whether Brazilian courts would comply with the Hague Convention on International Child Abduction in returning Sean Goldman to his father.

At Tuesday's argument, the U.S. justices will address whether American courts are bound to do the same when the parent seeking return did not have custody of the child. Abbott v. Abbott, 08-645.

In California, there are around 75 cases a year in which a parent abroad seeks the return of a child and about the same number of instances in which children are unlawfully taken overseas from the state, according to the Attorney General's Office, which has filed a brief in the case.

Timothy Abbott, a British astronomer who lives in Chile, is seeking custody of his son, referred to as A.J.A. in court papers.

Abbott's wife, Jacquelyn Abbott, an American, took A.J.A. to Texas in August 2005 despite a 2004 order from a Chilean judge that prevented either parent from removing the child from Chile. This kind of ruling is known as a ne exeat order. What adds to the complexity of the case is that Jacquelyn had custody of A.J.A. and had previously alleged that Timothy Abbott had been physically and verbally abusive.

Timothy Abbott filed suit in federal court in Texas seeking the return of A.J.A. to Chile.

Both the district court and the 5th U.S. Circuit Court of Appeals agreed that Jacquelyn Abbott had violated the Chilean judge's order but did not conclude that there had been a violation of the international child abduction treaty. The 9th Circuit adopted a similar approach when it dealt with the same issue, but other courts are split on the question.

In the Brazil case, it was the courts there under international scrutiny.

Goldman's former wife, Bruna Bianchi, took Sean to Brazil on vacation in 2004 but never returned. Goldman attempted to regain custody under the Hague Convention, but the case became even more complex when Bianchi died in childbirth after remarrying. Her family nevertheless attempted to keep custody of Sean.

The Abbott case does not have the same tabloid storyline but still rests on how courts interpret the Hague Convention.

Timothy Abbott's attorney, Amy Howe of Howe & Russell in Bethesda, Md., is asking the Supreme Court whether a ne exeat order confers upon the remaining parent a "right of custody" as defined by the Hague Convention.

As for Jacquelyn Abbott, her attorney, Stephen B. Kinnaird of Paul, Hastings, Janofsky & Walker in Washington, notes in his brief that international law only requires the return of a child "if the left-behind parent has rights of custody, but not if he only has rights of access."

The Obama administration backs Timothy Abbott, with Solicitor General Elena Kagan noting in an amicus brief that the U.S. State Department "has long understood" that the Hague Convention interprets ne exeat orders as a "right of custody."

She also noted that courts in other countries, including Britain and Germany, have reached a similar conclusion.

California has filed a brief in support of Timothy Abbott, making the argument that if the United States does not recognize the right of other countries to prevent parents from taking children out of the country, then courts in other countries may take the same approach toward children abducted from the U.S.

A ruling against Timothy Abbott would "impair the state's ability to recover internationally abducted children and would undermine" the Hague Convention on child abductions, Deputy Attorney General Elaine F. Tumonis said in the state's brief.

The case has, however, split various children's and women's advocacy groups.

While organizations focusing on child abduction tend to back Timothy Abbott, some women's groups note that cases that implicate the Hague Convention often involve women fleeing domestic violence. Sometimes the only option left to women facing abuse is to leave the country, lawyers for various domestic violence organizations, including the Battered Women's Justice Project, note in their brief.

Among those who filed briefs on the mother's behalf is Margaret Drew, who runs the domestic violence clinic at the University of Cincinnati College of Law.

She said in an interview that the Supreme Court should show deference to the Chilean court ruling that gave Jacquelyn Abbott custody in the first place.

"When a court has ... determined what's in the best interests of the child, that decision needs to be respected by other courts," Drew said.

The diplomatic implications are not as profound as the Obama administration makes out, she added, because it's rare for both parents not to get some custody rights when couples are divorced in American courts.

As a result, "this issue would not arise," Drew said.

Taking a more nuanced view, the Children's Law Center of Los Angeles joined a brief arguing that the 5th Circuit ruling was wrong but not specifically advocating for the rights of either parent.

The attorney who filed the brief, Barry S. Pollack, a partner at Sullivan and Worcester in Boston, said that the district court had failed to follow a procedure under the Hague Convention that would allow the judge to ask the Chilean government to file an opinion stating its view of the underlying Chilean law.

He described it as "premature to conclude that the best interest of the child" were considered by the Chilean court because there is no evidence that Timothy Abbott was stripped of all his custodial rights.

Monday, January 04, 2010

© 2010 The Daily Journal Corporation.
All rights reserved.

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

January 4, 2010

Former Clerks Are Sitting Pretty

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - At a time when law school graduates are increasingly struggling to get hired or facing lower pay, one elite group is sitting pretty: former U.S. Supreme Court clerks.

Even during the recession they can still command signing bonuses of up to $250,000, on top of a starting salary that can top $160,000 if they join major firms, according to lawyers familiar with the hiring process.

Although a few of the many former clerks now working in California have branched out in other directions, usually to take government positions, slots at firms and law schools tend to hold the most attraction for "The Elect," as legal blogger David Lat has described them. And later in their careers, the federal judiciary is often the next natural step.

Upon completing a clerkship, a lucrative position at a major law firm is a "siren song that's hard to ignore" according to Supreme Court clerkship expert Todd C. Peppers, a professor at Roanoke College in Virginia.

Peppers describes a Supreme Court clerkship as the "most prestigious internship in the country."

That, in addition to the desire of many clerks to influence public policy, is the reason why "you don't see many law clerks off the beaten path," he added.

Among those who took the traditional route is Paul J. Watford, a partner at Munger Tolles & Olson in Los Angeles, who clerked for Ruth Bader Ginsburg in the 1995-1996 term.

He joined the firm after his clerkship, then served three years as a prosecutor in the Los Angeles U.S. attorney's office before returning.

Beyond the financial incentives, clerks are attracted to major firms because "they want work that engages them at a similar intellectual level," Watford said.

Supreme Court clerks "have a real deep love of the law from an intellectual standpoint" but large firms are among the few places where they can continue to engage with the law on the same level after leaving Washington, he added.

Other former clerks at major firms in California include Theane Kapur, who clerked for Justice Sandra O'Connor, and Julian Poon, who clerked for Justice Antonin Scalia. They are both at Gibson, Dunn & Crutcher in Los Angeles. Tara S. Kole, a partner at Beverly Hills entertainment boutique Gang, Tyre, Ramer & Brown, also clerked for Scalia.

Also based in Los Angeles are Jeremy Maltby, a partner at O'Melveny & Myers who clerked for Justice David H. Souter, and Mark E. Haddad, who clerked for Justice William J. Brennan Jr. and is now the chairman of the global appellate group at Sidley & Austin.

Academia also has a strong pull on Supreme Court clerks, who generally revel in debating the law at an advanced intellectual level.

Stanford Law School alone has 16 former Supreme Court clerks on its faculty, including such leading lights as former 10th Circuit Judge Michael W. McConnell, who clerked for Justice Brennan, and Pamela S. Karlan, who clerked for Justice Harry A. Blackmun.

Other law schools in the state can also lay claim to former clerks. John C. Eastman, a former Justice Clarence Thomas clerk, is the dean of Chapman Law School, for example, while Vikram Amar, a Blackmun clerk, is the associate dean at UC Davis School of Law.

Later on in their careers, clerks can perhaps hope for a judicial nomination. In stepping up to the bench, they would be following in the footsteps of several 9th U.S. Court of Appeals judges, such as Chief Judge Alex Kozinski, who clerked for Chief Justice Warren E. Burger, and Sandra Ikuta, who clerked for O'Connor.

Those former clerks with an interest in politics and public service seek presidential appointments.

Jeffrey L. Bleich, formerly a partner at Munger Tolles in San Francisco and clerk to Chief Justice William H. Rehnquist, recently became the ambassador to Australia in recognition for his fundraising efforts during the 2008 campaign.

Lawyer and author Edward Lazarus, recently of Akin Gump Strauss Hauer & Feld in Los Angeles, is now chief of staff at the Federal Communications Commission. A Blackmun clerk, Lazarus is best known for his controversial book, Closed Chambers, which exposed the inner workings of the court.

Some former prominent figures in Washington have gone in the opposite direction, such as former secretary of state Warren M. Christopher, now at O'Melveny & Myers in Los Angeles, who clerked for William O. Douglas, and Kenneth Starr, the former special prosecutor, solicitor general, and federal judge, who clerked for Chief Justice Burger and is now the dean of Pepperdine Law School.

Even those who take a diversion from the traditional career path often spend a couple of years at a firm, not least to pay off law school debts.

Vince Chhabria is one of two former Supreme Court clerks at the city attorney's office in San Francisco, an unusual statistic for a local government agency (the equivalent office in Los Angeles has none). He initially joined blue chip firm Covington & Burling after completing his clerkship with Justice Stephen G. Breyer in 2002.

Chhabria admits he "stumbled upon" the city attorney's office but, largely because of the San Francisco government's activist stance on various issues, he hasn't regretted it.

"There could be no more interesting client than San Francisco policy makers," he said.

Christine Van Aken, who clerked for Justice Souter in 2004, has since joined Chhabria at the office. Knowing she was moving to San Francisco after her clerkship, she was looking for "the highest quality" work but also "a good work-life balance," she said.

Van Aken turned down approaches from major firms, despite the bonuses on offer. "I'm happy with my decision," she said.

Another of the class of 2004, Darren J. Powell, also made the move into government by taking a post at the California Attorney General's Office.

After clerking for Stevens, he initially followed the dollars by joining Munger Tolles in San Francisco. "It certainly helps with the student loans," he said.

But Powell was attracted by the extra responsibility and diverse caseload he could take on in a government position. His cases have run the gamut from the state budget issues to long running prison litigation.

One former clerk who has taken a diversion from the traditional career path is Miles Ehrlich.

Unusually for a Supreme Court clerk, many of whom are attracted to the intellectual conundrums thrown up by the law, Ehrlich is instead fascinated by the nitty gritty of trials.

He initially followed a similar route as other clerks by joining the U.S. Justice Department in Washington after completing his year with Justice Anthony M. Kennedy during the 1993-1994 term.

After six years there, he moved to the U.S. attorney's office in San Francisco, where he ended up heading the white-collar crime division.

But in 2006 he decided to re-write the rules by co-founding a small defense firm, Ramsey & Ehrlich, based in Berkeley.

"I guess I have gone in a different direction than many of the other clerks," he said. "I'm typically drawn more to the facts than the law, and I think my own strengths lie more in dealing with people, than in debating legal doctrine."

Stacey M. Leyton has adopted what could be described as the middle ground.

She is a partner at a San Francisco law firm, but in her role at boutique outfit Altshuler Berzon she is largely involved in public interest issues.

A former Breyer clerk, Leyton was more than happy to waive the opportunity to earn big bucks at a large law firm.

Upon leaving Breyer's chambers after the tumultuous 2000-2001 term, during which Bush v. Gore was decided, Leyton went straight to Altshuler Berzon, where she represents unions and individuals, often in employment-related disputes. One of her colleagues, Linda Lye, clerked for Ginsburg.

Like those who sought government jobs, Leyton said a large part of the attraction was the "varied docket."

Before moving to San Francisco, Leyton did meet with one big law firm recruiter in Washington, but despite the money on offer, "quickly realized that it was not where I was going to find satisfactory work."

Friday, January 01, 2010

© 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.

December 31, 2009

Obama Treads Fine Line With His Liberal Supporters

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - In its first year in office, the Obama administration has walked a fine line in its cases before the Supreme Court, disappointing some supporters with its hard line on terrorism detainees while breaking with the Bush administration on business issues.

In the national security arena, the administration, represented before the court by Solicitor General Elena Kagan, has disappointed its more liberal supporters by not completely repudiating the Bush White House's overarching view of executive power despite showing its willingness to compromise on certain issues.

Kagan has, however, shown a willingness to break with the Bush administration over investor lawsuits against corporations. Unlike her Republican predecessors, she has actively supported the investors.

There are also a small number of cases that were briefed before Kagan took office, including an Establishment Clause dispute over a cross on federal land in the Mojave desert. In cases like that, Kagan had little choice but to proceed along similar lines to the Bush administration. Incoming solicitor generals would risk tainting their relationship with the court if they sought to tinker with pending cases, court experts say.

Overall, Kagan's office has been fairly cautious, said regular Supreme Court advocate David C. Frederick, a partner at Washington-based Kellogg, Huber, Hansen, Todd, Evans & Figel. "I don't detect any major surprises," he added. "There is a steadiness to the law."

Robin S. Conrad, who heads the U.S. Chamber of Commerce's National Chamber Litigation Center, warned against making rash judgments about Kagan after less than a year in office. "Time will tell," she said.

On the touchy subject of terrorism detention, the Obama administration has been treading a fine line that has not always received support from liberals expecting major changes.

Sharon Bradford Franklin, senior counsel at the left-leaning Constitution Project, conceded that events have "not gone the way I hoped" since the new president took office.

Her main cause of concern is the administration's refusal to release a group of ethnic Chinese Uighurs even after the detainees successfully filed habeas corpus petitions in federal court. Kiyemba v. Obama, 08-1234.

The Obama Justice Department is hoping to make the case moot by arranging for the detainees to be released overseas, but in October, with seven still in detention, the Supreme Court agreed to hear the case.

"The administration is continuing to assert the power to decide when and whether to release them," Franklin said. She regards such a position as "highly troubling."

Franklin did give some credit to Kagan's office for resolving the legal mess concerning the detention of Qatari citizen Ali al-Marri, who had been in custody since December 2001. al-Marri v. Pucciarelli, 08-368. That case rested on whether Congress's authorization for the use of military force granted to President Bush just days after the Sept. 11, 2001 terrorist attacks allowed for a lawful resident of the United States to be held without charge.

In December 2008, the Supreme Court agreed to hear the case, but it was dismissed in May when the Obama administration decided instead to charge al-Marri with various fraud and terrorism related offenses. He eventually pleaded guilty and was sentenced to eight years in prison.

Franklin said she would have preferred if the Supreme Court had gotten the chance to rule definitely on the issue, but the eventual outcome was "the next best thing."

But there are examples where the Obama administration has taken a distinctly new approach. Perhaps most notable is Kagan's decision to ally the government with investors in cases against big business, something the Bush administration did not do.

In two cases argued this fall, Kagan not only filed amicus briefs in favor of investors but also received permission from the court to participate in the oral argument.

One is on the question of whether courts have the right to intervene over excessive fees paid to investment fund advisers in suits brought by shareholders. Jones v. Harris Associates, 08-586.

The other is a securities class action case focusing on what level of knowledge plaintiffs need to have about the fraud before a two-year statute of limitations is triggered. Merck v. Reynolds, 08-905.

"The Obama administration approach was a breath of fresh air," said Frederick, who represents the investors in both cases. The Bush administration "was not nearly as supportive of investors," he added.

The Chamber of Commerce's Conrad downplayed Kagan's role in the cases, saying that the 7th Circuit ruling in Jones had been widely criticized.

In Reynolds, she noted, the solicitor general's position was "not on all fours" with the investors.

In cases already briefed or granted when Obama took office in January, the administration, by tradition, had little choice but to complete what the Bush administration had started. An example is the high-profile Mojave desert cross case.

American Civil Liberties Union attorney Peter J. Eliasberg thought the new president's lawyers might take a different approach to the Bush administration in the case.

The Supreme Court agreed to hear the case in February, after Obama took office, but the Bush administration had filed the petition appealing the 9th U.S. Circuit Court of Appeals ruling.

At issue is whether the 9th U.S. Circuit Court of Appeals 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 a cross sits, in exchange for another parcel of equal value. Salazar v. Buono, 08-472.

When the case was granted, Eliasberg, while accepting that the new administration had little leeway, thought the Obama lawyers might downplay the Bush administration's position on standing, which was considered anti-plaintiff.

But they didn't.

The Bush lawyers had argued that the plaintiff didn't have standing to sue in the first place because he was a Christian himself and did not live near the cross.

"They could have not - should have not - taken the position the Bush administration took," Eliasberg said. He did concede, though, that Kagan did not stress the standing issue at the oral argument. A decision is expected early next year.

In cases on the horizon, Kagan will not face any of the constraints present in the Mojave case. In that sense, the true tests for the Obama administration lay ahead, Conrad said.

One on the horizon is a case brought by the Chamber of Commerce against an immigration law in Arizona. The controversial law, upheld by the 9th Circuit, requires employers to check on the immigration status of their workers. Chamber of Commerce v. Candelaria, 09-115.

An unusual alliance of the business community and civil rights groups immediately filed suit in protest.

In November, the Supreme Court asked the solicitor general to file a brief in the case before deciding whether to grant the petition. It has not yet been filed.

"We are waiting to see how they will weigh in," Conrad said. "That will be revealing."