Posted 11:32 AM by Howard Bashman

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May 12, 2010

Cross Case In Supreme Court Was Kagan's First-Ever Win

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court's ruling last month that a cross on federal land in the Mojave Desert could remain standing while lower courts look again at the legal issues marked a first-ever court victory for U.S. Solicitor General Elena Kagan.

The case was one of six the nominee to replace Justice John Paul Stevens has argued while serving as solicitor general. Before her appointment to that position in March 2009, she had never argued a case in court. Conservative critics have already pointed to her lack of practical legal experience as an issue that Republican senators should probe during her confirmation hearing.

So far the Supreme Court has decided just two of the cases Kagan argued and only the cross case went in her favor. The other was the major campaign finance case in which the court lifted restrictions on independent corporate expenditure during campaigns. Citizens United v. FEC, 2010 DAR 949.

The Mojave cross hit the headlines again this week when it mysteriously disappeared.

Representing the government, Kagan argued that the cross, built to honor World War I veterans, should be allowed to remain in place despite objections from the American Civil Liberties Union that it violated the Establishment Clause of the First Amendment, which prevents the government from endorsing one religion over another. The court's conservative justices sided with Kagan in a 5-4 ruling in which Stevens wrote a dissenting opinion. Salazar v. Buono, 2010 DJDAR 6249.

The majority of the justices agreed that a lower court judge should get a second chance to decide whether the constitutional violation was cured when Congress ordered that the site on which the cross stood be transferred to private ownership.

The controversy began when former National Park Service employee Frank Buono filed suit to challenge the cross in 2001. A year later, Judge Robert J. Timlin of the Central District of California agreed that there was an Establishment Clause violation. But the issue before the Supreme Court focused on a later decision in which Timlin ruled that the 2004 law transferring the land into private ownership was "an attempt by the government to evade the permanent injunction." The 9th U.S. Circuit Court of Appeals, in a September 2007 opinion, agreed with Timlin.

The Supreme Court agreed to hear the case in February 2009, after President Barack Obama took office but before Kagan's confirmation as solicitor general. The Bush administration had filed the petition appealing the 9th Circuit ruling.

In her institutional role as solicitor general, Kagan was obliged to defend the land transfer statute, a point that Buono's lawyer, Peter J. Eliasberg of the ACLU of Southern California, conceded.

But he was disappointed that Kagan did not ease back as much as she could have on an argument made by the Bush administration that Buono didn't have standing to sue in the first place because he was a Christian himself and did not live near the cross.

"It wasn't an institutional obligation" to make the standing argument, Eliasberg said Tuesday. "But in the end it didn't matter."

Eliasberg noted that Kagan's job was merely to defend the congressional statute that transferred the land and not to take a position on the underlying question of whether religious symbols should be allowed on federal land.

During the oral argument in October, Kagan faced as many tough questions from the liberal justices as she did from the conservatives, with Justices Ruth Bader Ginsburg and Sonia Sotomayor among the most vocal. Most of Kagan's time was taken up with the procedural questions, prompting Chief Justice John G. Roberts Jr. to joke at one point that "before your time expires, we would like to spend a couple of minutes on the merits."

Lawyers who represented the veterans were muted in their praise of Kagan's approach to the case, despite the outcome.

Kelly Shackelford, president of Plano, Texas-based Liberty Institute, a conservative legal group that represents the Veterans of Foreign Wars in the case, said he would have preferred it if the Obama administration had made forceful arguments in defense of veterans' memorials and the symbolic use of crosses.

"We felt there were certain things that weren't being argued," he said.

As for Kagan's performance, Shackelford downplayed the importance of oral argument, saying that "the Supreme Court will do what it's going to do" regardless of what lawyers argue.

But, he conceded, "the important thing is getting a victory."

Charles V. Berwanger, a partner at Gordon & Rees in San Diego, who is involved in a similar dispute over a cross on Mount Soledad in La Jolla, also minimized the importance of Kagan's involvement in the case. He represents the Mount Soledad Memorial Association, which has for years fought to save the cross in the face of Establishment Clause objections made by the ACLU.

"I don't take whatever argument she made as being indicative of her personal feelings or how she would rule as a justice," he said.

It's unclear yet whether Kagan's involvement in the case will feature during her confirmation hearing. Alan Brownstein, an expert on the First Amendment at UC Davis School of Law, said it says "virtually nothing" about where Kagan stands on the underlying issues.

But he noted that she "handled it pretty well" by seeking a narrow opinion. "It was a decision very limited in scope, which she asked for," he said.

While activists in Washington continue to delve into Kagan's record, the mystery of who stole the cross late Sunday or early Monday remains unsolved.

Henry Sandoz, who has acted as a caretaker for the cross, has already promised to rebuild it, Shackelford said. Both Shackelford and Eliasberg said they doubted the removal of the cross would have any impact on the lower court's reconsideration of the case.

Posted 11:28 AM by Howard Bashman

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May 11, 2010

Supreme Court Nominee Braces For Deja Vu

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - U.S. Supreme Court nominee Elena Kagan knows exactly what to expect when she appears before the Senate Judiciary Committee for her confirmation hearing this summer. That's because she went through the whole process a little more than a year ago when President Barack Obama nominated her to the position of solicitor general.

Although her confirmation then was never in doubt, some Republican senators, knowing full well that she could appear before them again, previewed some of the arguments that will now come up in a more intense manner over the coming weeks.

Those same senators were quick to say Monday that they will take a different and more exacting approach to a Supreme Court nomination.

Last year, seven Republicans voted in favor of her confirmation, including two members of the Senate Judiciary Committee. She was confirmed on a 61-31 vote.

During that confirmation hearing, Republicans focused on Kagan's role, as dean of Harvard Law School, in an attempt by some law schools to prevent the military from recruiting on campuses in protest of the military's "don't ask, don't tell" policy on homosexuality in the armed forces. They also raised her lack of practical legal experience prior to her service as solicitor general and whether memos she wrote to Justice Thurgood Marshall while clerking for him in the 1987-88 term are indicative of her ideology.

Legal and political experts expect those issues to be raised again.

Kagan, 50, was seen as the frontrunner to replace Stevens after the 90-year-old justice announced his retirement in April.

Kagan has served as solicitor general since March 2009. Prior to that she was dean of Harvard Law School for six years, a period during which she was acclaimed for breaching ideological splits among faculty members.

It was in February 2009 that Kagan appeared for her first confirmation hearing before the Senate Judiciary Committee. Although the hearing was not confrontational, Republican senators did ask the nominee some searching questions.

Her position on "don't ask, don't tell" was perhaps the most controversial issue raised. As part of the campaign against the policy, she joined a brief in a high-profile case that ended up before the Supreme Court.

In that case, several universities opposed a law allowing the federal government to withhold funding from schools that barred military recruiters from working on their campuses in protest of the "don't ask, don't tell" policy. The Supreme Court unanimously rejected the challenge in a 2006 decision. Rumsfeld v. FAIR, 126 S. Ct. 1297.

During the hearing, Sen. Jon Kyl, R-Ariz., asked Kagan whether she would have energetically defended a statute with which she disagreed if she had been solicitor general at the time.

"I absolutely would have, senator," Kagan said.

In such circumstances, "there is a clear obligation upon the solicitor general to defend a statute," she said.

Kagan's role in the dispute over "don't ask, don't tell" already has been raised by Republican activists and conservative activists reacting to her nomination to the court.

Curt Levey, executive director of the Committee for Justice, said Monday that it raises questions about where Kagan stands on gay marriage, an issue that could come before the Supreme Court in the coming years.

Americans, he said, "should be worried about this nominee's views on gay rights."

Experts added that her opposition to allowing military recruiters on campus could be used to attack her patriotism and paint her as an out-of-touch liberal elitist.

Conservatives also have started repeating earlier criticisms about Kagan's lack of substantive legal experience. Before being appointed solicitor general, Kagan had not argued a case before the Supreme Court, or any other court, and spent just two years, from 1989 to 1991, in private practice with Williams & Connolly in Washington.

Sen. Tom Coburn, R-Okla., who is a medical doctor, focused his questioning on that issue during the 2009 hearing.

"Of all I've read, the only real criticism that you've had is that you've not been a litigant in the past," he said. "And as a physician, you know, I don't send patients to the professors at the university unless they're the expert in the field who have actually practiced rather than just taught."

Kagan responded that she brought "a lifetime of learning and study of law" including "constitutional and administrative law issues that form the core of the court's docket."

She also stressed her "communications skills" that she said, tongue-in-cheek, "made me, I'm just going to say it, a famously excellent teacher."

Coburn eventually voted in favor of confirmation.

Those arguments about lack of experience could find new life, since Kagan is trying to become the first Supreme Court justice without previous judicial experience in nearly 40 years.

Critics also have blasted her for her lack of scholarship during her years as a professor and dean, when she produced just a handful of written papers.

It's not just conservatives who are worried about the lack of a paper trail indicating where Kagan stands on key issues.

Prior to her nomination, Kagan received some criticism from the left, with some worried that she may not be liberal enough. During the hearing, both Democrats and Republicans are likely to probe her on where she stands on certain social issues, including abortion.

Nancy Keenan, president of NARAL Pro-Choice America, said Monday that her group would "look forward to learning more about her views" on abortion.

But supporters inside and outside the White House say talk of Kagan's scant resume is an exaggeration. They point to her academic career and four-year stint in the Clinton White House from 1995 to 1999, as Obama did in announcing her nomination Monday.

By 1999, she was sufficiently well-regarded for Clinton to nominate her to the U.S. Court of Appeals for the District of Columbia Circuit but the Republican-led Senate didn't move to confirm her appointment.

Her legal career began with a clerkship with D.C. Circuit Judge Abner Mikva before she clerked for Justice Marshall, whom she has described as "the greatest lawyer of the 20th century."

Kagan obtained her undergraduate degree from Princeton in 1981 before attending Harvard Law School. She also studied at Oxford University.

During the 2009 confirmation hearing, Kagan also was confronted with various memos she wrote while clerking for Marshall. Sen. Arlen Specter, a Republican from Pennsylvania who has now switched to the Democrats, raised one memo in particular in which Kagan said it would be "difficult" for religious groups to provide advice and care to pregnant teens "without injecting some kind of religious teaching."

Kagan promptly disavowed the contents of the memo, saying that when she reviewed it just before the hearing, "I thought, 'That is the dumbest thing I've ever heard'."

Republican senators who voted in support of Kagan's confirmation as solicitor general quickly clarified their position Monday, making it clear that an appointment to the Supreme Court is a different scenario. Among them was Kyl.

"As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court," the Arizona senator said in a statement.

Although a filibuster, which requires 40 votes, is not expected, Democrats now have 59 seats in the Senate compared with 60 last year following the election victory of Republican Scott Brown in Massachusetts in January.

Among senators on the judiciary committee, it is perhaps Specter who finds himself in the strangest position. At the time of Kagan's first hearing, he was the ranking Republican on the committee and eventually voted against her nomination on the grounds that she wasn't forthcoming enough.

But in April 2009, he switched to the Democrats and will now be under pressure to support Kagan's confirmation.

Specter said Monday he has "an open mind" about the latest nomination and said he hoped she would "address important questions" about such issues as executive power, abortion and warrantless wiretapping.

The confirmation hearing likely will be held some time before the Senate recesses for the summer.

As for Kagan herself, she is likely regretting remarks she made in a 1995 University of Chicago Law Review article called "Confirmation Messes."

She wrote then that nominees should have the chance to elaborate on their legal theories when they testify.

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public," she wrote.

At last year's hearing, Kagan was quick to distance herself from that sentiment. "I'm not sure if, sitting here now, I would agree with that statement," she said.

Still, Ohio State University political scientist Elliot E. Slotnick predicted Republican senators would "hammer her with her words" critiquing the confirmation process.

"The absence of that written record," he added, "coupled with what she's said about vacuousness of Senate hearings and the performance of candidates creates a perfect storm for her to be more forthcoming in her hearing."

Staff Writer Robert Iafolla contributed reporting.

Posted 12:36 PM by Howard Bashman

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May 7, 2010

Call for Court Consensus Builder May Be Overrated;
Some Say Obama Should Focus on Intellect And Judicial Philosophy

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The Obama administration says it is keen to appoint a consensus-builder to replace retiring Justice John Paul Stevens on the U.S. Supreme Court, but those familiar with the internal workings of the court say the administration may be overstating the importance of such skills.

As recently as Wednesday, White House adviser David Axelrod told the Associated Press that President Barack Obama is looking for "that kind of spark and leadership" that Stevens has in picking his replacement. Axelrod described the court as a "consensual body."

But former Supreme Court clerks say that characterization doesn't chime with either the way Stevens operates or the reality of the court's decision-making process.

Those with experience at the court say Stevens' skill as a builder of majorities is somewhat exaggerated. Supreme Court justices do not change their votes based on charm alone, they say.

In that light, former clerks add, Obama can afford to focus more on intellectual ability and judicial philosophy and less on political skills.

The White House is nearing the end of the selection process with an announcement due within days. Stevens will retire at the end of the court's term in June. Those interviewed so far are Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals, Solicitor General Elena Kagan, D.C. Circuit Judge Merrick Garland and the 9th Circuit's Sidney R. Thomas.

Vince Chhabria, deputy city attorney at the San Francisco City Attorney's Office who clerked for Justice Stephen G. Breyer in the 2001-2002 term, said he believes the supposed need for a strong justice who can marshal the liberal wing of the court and win over some of the conservative justices is largely misguided.

"I think the emphasis on consensus building is a bit overblown," he said.

The raves over Stevens' tactical savvy, especially concerning his supposed influence over regular swing vote Anthony M. Kennedy are an example of that perception of the retiring justice, Chhabria added.

But, Chhabria noted, "it does not take a rocket scientist or a brilliant tactician to realize that if you want to solidify your majority, you assign the opinion to the justice whose vote is most in doubt."

That is exactly what happens in many cases in which Kennedy is the key fifth vote for the liberal justices, he added. As the senior associate justice, Stevens gets to pick who writes the opinion if the chief justice is not also in the majority.

Joseph Thai, a former Stevens clerk who is now a professor at the University of Oklahoma College of Law, agreed that in the debate over consensus-building, "the importance is over-emphasized."

He recalled that when he worked for Stevens in the 2000-2001 term, the justice did not have personal meetings with the other justices, talk to them much by phone, or engage in any horse-trading.

Stevens' influence came via his seniority and his draft opinions in which he was able to offer arguments that would appeal to enough justices to get a majority, Thai said.

Stevens was not a deal-making politician, like White House Chief of Staff Rahm Emanuel, he added.

Paul Watford, a partner at Munger Tolles & Olson in Los Angeles who clerked for Justice Ruth Bader Ginsburg in the 1995-1996 term, has a similar impression of Stevens.

He does not consider Stevens to be a coalition builder in the same vein as William J. Brennan Jr. or Chief Justice Earl Warren, who were known for their ability to influence their colleagues during their time on the court.

As for whoever replaces Stevens, it would be possible to "count on one hand" the number of cases on which a junior justice could have a major influence, Watford added. That's because the new justice gets to speak and vote last at the justices' conferences and doesn't get to assign opinions.

"They get the dogs," Thai said. "They don't get the big opinions."

Thai conceded, though, that Solicitor General Elena Kagan's experience dealing with faculty when she served as dean of Harvard Law School could at least give her "a good skill set" that she may be able to make use of in the long term. Wood has also won praise for her ability to win over conservative colleagues on the 7th Circuit.

One factor the White House would be right to consider when considering who should replace Stevens is the risk of alienating Justice Kennedy by picking someone too outspoken or ideologically driven, Watford said.

Of the various short-listed contenders, "none of them raise that concern," Watford said.

Court-watchers have pointed out in the past that retired Justice Sandra Day O'Connor might have sided with the conservatives more during her time on the bench if justices appointed after her like Justice Antonin Scalia had been more flexible.

Like the former clerks, liberal advocacy groups hoping to influence the White House's thinking on the nominee are also less concerned about the future justice's political skills than they are about other qualities.

Marge Baker, vice president of People for the American Way said that her organization is most keen on a justice who has "a common-sense understanding of the law."

How that justice interacts with his or her colleagues would be important but not the key concern, she added.

"You certainly don't want someone who's just a nice guy," Baker said.

Irrespective of whether the White House actually wants a consensus-builder on the court, Elliott Slotnick, a political science professor at Ohio State University, said that the use of the term helps lay the groundwork for the confirmation fight that lies ahead.

The White House is using "the rhetoric of moderation" to try and send the message that whoever the president picks will not be out of the mainstream and should not be filibustered, he added.

Posted 10:30 AM by Howard Bashman

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April 15, 2010

High Court Nomination For '10th Justice' Would Be Rare

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - If Elena Kagan replaces Justice John Paul Stevens on the U.S. Supreme Court, as many expect, she would join a select group of former solicitors general who have gone on to be justices.

It's surprisingly rare for a solicitor general to be appointed to the court. The last time it happened was in 1967, when Lyndon B. Johnson nominated Thurgood Marshall to the court. Marshall remains one of only two sitting solicitors general to have been nominated. The other was Justice Stanley F. Reed, appointed to the court by President Franklin D. Roosevelt in 1938.

Kagan, who clerked for Marshall, could be the third, if President Barack Obama picks her and the Senate confirms her.

Other possible candidates reportedly on the White House's radar include Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Diane P. Wood of the 7th Circuit and Jennifer Granholm, the governor of Michigan.

Judge Sidney Thomas of the 9th Circuit has also attracted some interest, according to some reports.

Aside from Marshall and Reed, there were two other Supreme Court justices who served as solicitor general, but they were not in that position when appointed to the court. They were Robert H. Jackson and William Howard Taft. Robert H. Bork, whom President Ronald Reagan unsuccessfully nominated to the court in 1987, had been solicitor general during the Nixon and Ford administrations.

Experts, including those who have served in the Office of the Solicitor General, don't all agree as to why sitting solicitors general don't get nominated more often.

"I don't think there's any particular reason," said Theodore B. Olson, the Gibson Dunn & Crutcher partner who served as solicitor general during the George W. Bush administration. He added that "it's a logical place" for the White House to look when there's a vacancy on the court.

Most experts agree that one reason solicitors general haven't had more luck in the past is that it is a job in which the incumbent can come into conflict with the White House over how to approach cases at the Supreme Court, thereby threatening that person's chances of getting nominated.

Secondary considerations include the fact that someone coming straight from the Office of the Solicitor General would be forced to recuse from a large number of cases involving the federal government during his or her first term.

As the administration's advocate before the Supreme Court, solicitors general provide the justices with the federal government's official view on a myriad of legal issues.

Veterans of the Office of the Solicitor General and others familiar with the way the office works say that this can lead to solicitors general butting heads with the White House over the way cases should be pursued.

Such conflicts can then harm their chances of getting nominated if a vacancy on the Supreme Court arises.

"That can be a very contentious office," said Lee Epstein, a professor at Northwestern University School of Law in Chicago. "They can make a lot of enemies in the Justice Department and White House."

Differences can emerge over whether to file petitions or even whether to file amicus briefs in certain cases, she added.

Some believe Kenneth W. Starr's hopes of serving on the Supreme Court were dashed by internal conflicts. He served as solicitor general during the George H.W. Bush administration but was passed over in favor of David H. Souter when Justice William J. Brennan Jr. retired in 1990.

Makan Delrahim, a Los Angeles-based shareholder at Brownstein Hyatt Farber Schreck who has served as a Republican staffer on the Senate Judiciary Committee said Starr was "certainly groomed and would have been a fantastic candidate."

Starr, the outgoing dean of Pepperdine University School of Law, was snubbed in favor of Souter apparently because some in the administration thought he wasn't conservative enough, according to reports, although that perception was based in part on his record as a judge on the U.S. Court of Appeals for the District of Columbia before he became solicitor general. He could not be reached for comment.

Conflicts within an administration rarely become public, but it was reported that Olson clashed with then-White House Counsel Alberto Gonzales over his stance on affirmative action when he was serving as solicitor general. In 2003, Olson wanted to take a harder line when two cases concerning the University of Michigan's admissions policy arose, but Gonzales successfully petitioned for a more nuanced stance, according to reports. The court ended up endorsing the university's law school admissions policy while invalidating the undergraduate admissions system. Grutter v. Bollinger, 539 U.S. 306 and Gratz v. Bollinger, 539 U.S. 244.

Olson said Wednesday that disagreements do occur but that ultimately, as in the affirmative action cases, the administration "took the position that the president wanted." He also noted that at that time he had no expectation of being nominated to the Supreme Court if a vacancy occurred.

The episode is a sign that "problems can arise when a solicitor general wants to take a position that the White House counsel or president does not want for a political reason," Delrahim said.

A second possible reason solicitors general don't get nominated more often is likely because a new justice coming from the position of solicitor general would be forced to sit out cases on which he or she worked before being nominated, experts said. That constitutes a significant portion of the Supreme Court's docket, especially as it would include cases in which the government files an amicus brief.

Justice Marshall recused himself in 98 of the 171 cases the court heard during his first term in 1967-1968, according to Lawrence S. Wrightsman, a psychology professor at the University of Kansas who has written about the Supreme Court.

So far, the court has granted 11 cases for next term. Of those, three directly involve the federal government.

"That would be a downside in the short-term," Epstein said. "But it's a pretty short-term downside."

Delrahim said the prospect of recusals is "definitely a concern for the president" but he agreed that the focus would be more on the long-term benefits of nominating a particular candidate.

Experts also point to other reasons why solicitors general don't get appointed to the court. One is the trend in recent years to appoint experienced judges. On the current court, all of the justices served as judges.

Another is that the White House often looks outside Washington in order to respond to political considerations, such as a preference for a certain race, gender, religion, or place of origin.

Lisa S. Blatt, a partner at Arnold & Porter who spent 13 years as an assistant to the solicitor general, said she could think of no overriding reason why solicitors general have not been appointed more often. She served under six of them, including Olson.

Blatt also pointed out that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. both served in the Office of the Solicitor General, albeit not in the top job. Historically, a number of justices occupied other senior positions at the Justice Department before being nominated.

Blatt doubts Kagan's current position as the so-called "10th Justice" would be a hindrance when President Obama makes his decision.

"I think it's appropriate for the president to nominate someone who has been solicitor general and not a judge," she said.

So far, Kagan has argued six cases this term, and no positions her office has taken have attracted major controversy. For her first few months after taking office in March 2009, Kagan was bound by the positions taken by the Bush administration on cases already before the court.

Georgetown's Harris said Kagan has been "extremely capable" at oral argument. But after only a year as solicitor general "it's too soon to tell" how effective she has been, Harris added.

Posted 2:10 PM by Howard Bashman

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March 18, 2010

Spotlight On Potential High Court Nominee

By Lawrence Hurley

Daily Journal Staff Writer
WASHINGTON - A case the U.S. Supreme Court has taken up over a Christian group's challenge to UC Hastings College of the Law's nondiscrimination policy for student groups could end up influencing the political debate over a possible vacancy on the court this summer.

In many ways, the case puts 7th U.S. Circuit Court of Appeals Judge Diane P. Wood, one of the leading contenders for the eventual opening, in the same position that then-2nd Circuit Judge Sonia Sotomayor was in last year over her role in a case before the court last term.

Rumors have been circulating that Justice John Paul Stevens, the longest serving of the current justices, might resign at the end of the term since it emerged last summer that he'd only hired one clerk for next term.

When Sotomayor was nominated in May 2009 after Justice David Souter stepped down, conservative activists highlighted her involvement in a 2nd Circuit decision in which the panel found that the City of New Haven, Conn. could throw out the results of a test for firefighters seeking promotion after blacks didn't score highly enough on it. White firefighters who passed the test challenged the city's decision, saying it discriminated against them under Title VII of the Civil Rights Act.

The Supreme Court ended up reversing the 2nd Circuit ruling last June on a 5-4 vote. Ricci v. DeStefano, 2009 DJDAR 9567. That happened just weeks before Sotomayor appeared before the Senate Judiciary Committee for her confirmation hearing. Republican senators spent considerable time asking about her role in the case.

This time around, the subject matter is vastly different. The focus of attention would be a dissenting opinion that Wood wrote in 2006 when the 7th Circuit tackled the same issue that's before the Supreme Court in the UC Hastings case.

In its 2-1 ruling, the 7th Circuit overruled a district judge who had refused to grant a preliminary injunction requiring Southern Illinois University School of Law to recognize the Christian Legal Society, which does not permit homosexuals in its organization. Christian Legal Society v. Walker, 453 F.3d 853.

Wood said in her dissent that the school's nondiscrimination policy should have stayed in place while the case proceeded, largely because of the absence of a fully developed factual record showing that the group had was likely to prevail on the merits.

With Justice Stevens saying in a recent interview with the New Yorker that if he were to retire this year, he would decide in the coming weeks, Wood's four-year-old dissent could get more attention in the months ahead.

Most court watchers think the frontrunner if there is a vacancy would be Solicitor General Elena Kagan, in part because she is considered a moderate and therefore more easily confirmable. Wood is seen as the darling of the left, having written opinions on various hot-button issues, including abortion, during her 15 years on the appellate bench. Other names mentioned include Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and Jennifer Granholm, the governor of Michigan.

Wood's dissenting opinion has already attracted the ire of some conservatives. It was mentioned by some last summer when Wood was widely touted as a contender to replace Souter before Sotomayor got the nod.

In a May 2009 memo distributed before Sotomayor was nominated, the Washington-based conservative Judicial Confirmation Network, originally formed to support President George W. Bush's nominees, highlighted Wood's opinion in its critique of her qualifications.

"She has consistently twisted the constitution to deny the rights of religious people that the constitution in fact was designed to protect," the memo said. "In one case, she would have allowed a public university to revoke the student organization charter of the Christian Legal Society because it declined to extend membership to homosexuals."

The conservative group, which has now changed its name to the Judicial Crisis Network, is likely to raise the matter again should there be a vacancy, according to legal counsel Carrie Severino.

The fact that the Supreme Court is hearing the 9th Circuit case "will make her role in the case and the way she approaches the law even more salient," Severino said.

At issue in the case before the Supreme Court, to be argued April 21, is UC Hastings' policy that requires all student groups to allow anyone to be full voting members and serve as officers. The rule is applied to those seeking to join religious groups even if they don't share the core religious belief of the group in question. Christian Legal Society v. Martinez, 08-1371.

In order to be a voting member of the Christian Legal Society, students have to adhere to "orthodox Christian beliefs, including the Bible's prohibition of sexual conduct between persons of the same sex."

The 9th Circuit upheld the Hastings policy in a brief one-page opinion citing circuit precedent.

In an e-mail, Supreme Court advocate and commentator Tom Goldstein of Akin Gump Strauss Hauer & Feld in Washington said Wood's opinion "would go into the equation" when the White House is selecting a nominee, but he noted that she has written several other opinions on such issues as abortion that would likely get more attention from conservatives.

The Christian Legal Society case differs from the firefighter dispute last term, he added, because the group "stands a good chance of losing," which would mean that Wood's position would be vindicated.

Both sides make reference to the 7th Circuit case in their briefs.

Michael McConnell, the Stanford Law School professor arguing the case for the Christian group said he isn't sure how much the 7th Circuit case will figure in the high court's consideration of the issue.

"It is hard to say, but I am preparing for anything," he said.

Gregory G. Garre of Latham & Watkins in Washington, the lawyer representing Hastings before the Supreme Court, declined to comment.

In her dissent, Wood said the university "was on well-trodden ground" when it told the society that the nondiscrimination policy applied to all student groups, she said.

Conservative activists, including Ed Whelan of the Ethics and Public Policy Center, have not just focused on Wood's opinion. They also point to the lengthy exchanges between Wood and the group's attorney, Greg Baylor, at the oral argument in 2005.

At one point in the audio recording of the argument, Wood characterized the legal society's views of homosexuals as one in which homosexuals are "not fully human."

That prompted a quick response from Baylor, who said that the membership policy "is not about hatred, it is about love."

At that, Wood, in a tone of surprise, said: "Goodness."

The way she conducted herself at oral argument "would be a small part of a much larger case against her," Whelan said.

Michael Dorf, a Cornell Law School professor who wrote an amicus brief in support of Hastings on behalf of the Association of American Law Schools, rejected any suggestion that Wood's approach to the case was out of the mainstream.

"I think that the conservatives who invoked Judge Wood's dissent on this point are way off the mark," he said. "Her position rests on a principle that conservatives have long touted: that rights are 'freedom from' government interference, rather than entitlements to government subsidies."

Posted 10:20 AM by Howard Bashman

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March 2, 2010

For Amputees, An Attorney Who Knows Their Pain

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When Conal Doyle walks to the lectern at the U.S. Supreme Court Tuesday, he will do so with a detectable limp.

The California-based plaintiffs' lawyer, who recently relocated to Los Angeles from Oakland, will become one of the few known amputees to have argued before the justices.

The 39-year-old had his right leg amputated at the age of 2 after being born without one of the bones in the leg.

It is not known how many amputees have argued before the court, as it is often not noticeable to court staff. Occasionally, the court provides assistance to counsel who need it, according to the public information office. In one example from recent years, an attorney who had trouble standing for the entire 30-minute argument was allowed to rest on a high stool. Others have used wheelchairs.

Doyle, a keen skier, needs no such assistance.

Fitted with a prosthetic leg, Doyle regularly represents amputees, often on a pro bono basis when they are battling for insurance coverage.

"It helps me to empathize with my clients and with technical issues related to prosthetics," he said of his own experiences in an interview in Washington last week.

By coincidence, the man whose family he represents in the Supreme Court case also faced an amputation months before he died. He was Francisco Castaneda, a Salvadoran national who died of penile cancer after being refused a biopsy by federal immigration officials. He passed away in February 2008 despite the amputation of his penis. His family is now hoping to sue the individual health care workers who failed to assist him.

The Supreme Court case is likely to be an uphill battle for Doyle, according to legal experts, in part because the 9th Circuit is the only federal court to have allowed claims against individual federal health care workers.

The case hinges on whether a claim for damages relating to health care in federal immigration detention can only be sought via the Federal Tort Claims Act, the normal mechanism for suing the federal government. Hui v. Castaneda, 08-1529.

Castaneda's family would rather sue the healthcare workers individually via a so-called Bivens action, named for a 1971 Supreme Court ruling that allows people to sue individual federal employees for constitutional violations. Bivens v. Six Unknown Named Agents, 403 U.S. 388.

Plaintiffs prefer Bivens claims, which can lead to a jury trial, over the FTCA, which lead to a bench trial and no chance of punitive damages. The defendants include two civilian doctors employed by the federal Prison Health Service, Timothy Shack and Esther Hui, in addition to several other officials.

Castaneda, who was brought to the United States by his parents as a child but never had legal immigration status, was originally detained by the California Department of Corrections in December 2005 following a criminal conviction for drug possession. It was at that point that he first sought medical help for a lesion on his penis. Medical staff suggested he see a urologist and have a biopsy. But he completed his sentence in March 2006 without doing so.

Facing deportation, he was transferred into the custody of Immigrations and Customs Enforcement in San Diego. He again sought medical help but didn't see a urologist until June 2006. The urologist, who wasn't a federal employee and is not a party in the case, suggested a biopsy but it was never scheduled because officials at the Washington D.C.-based Division of Immigration Health Services refused to give permission.

He was not deported and eventually released in February 2007 and immediately sought medical help. He was diagnosed with penile cancer, and his penis was amputated on Feb. 14, 2007.

Castaneda filed suit in the Central District of California against the U.S. government and public health officials in November of that year claiming violations of his Fifth and Eighth Amendment rights.

In its Oct. 2008 ruling, the 9th Circuit allowed the Bivens claim to proceed.

The federal government has admitted liability on the FTCA claims but damages have not yet been established. A parallel case in state court against California officials remains pending.

Doyle, a partner at Oakland-based Willoughby Doyle who is working on the case in association with public interest firm Public Justice, has only ever argued before appellate courts on a handful of occasions. One was in the win before the 9th Circuit.

He has completed multiple moot courts in preparation for Wednesday's argument.

"It's a complex case so the trick is trying to make these complex arguments make sense," he said.

Doyle, a Florida State University College of Law graduate who began his career in Florida defending local governments in civil rights cases, may be arguing his first case before the high court, but he's in good company. His opposing counsel, Elaine J. Goldenberg, a partner at Jenner & Block in Washington, is also making her debut.

In a brief email, Goldenberg said she's "feeling confident in the strength of our legal arguments."

She also has the backing of the Obama administration. Solicitor General Elena Kagan wrote in an amicus brief that language in the 1970 Emergency Health Personnel Act specifically barring "any other civil action" apart from FTCA claims should apply to Bivens claims against Prison Health Service employees.

"The provision was specifically designed to protect PHS personnel from damages suits because their low pay made it difficult for them to purchase liability insurance," Kagan wrote.

John T. Nockleby, a professor who runs the civil justice program at Loyola Law School in Los Angeles, said it's likely that at least four justices would vote to reverse the 9th Circuit, based on the fact that four votes were needed to grant the defendants' petition.

"I think that going in you would have to say the defendants have four votes," he said. "The question is where the middle of the court is these days."

Despite the obstacles he faces, Doyle remains both upbeat and realistic as the argument approaches.

"I'm excited to do it," he said. "I'm really feel we should win the case but I understand certain members of the court do not look favorably on Bivens claims. We feel strongly we are right on the law."

Posted 12:14 PM by Howard Bashman

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March 1, 2010

California Attorneys Weigh In on Guns

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Reflecting strong California interest in a major gun rights case before the U.S. Supreme Court, lawyers from the state have been heavily involved on both sides as this week's oral argument approaches.

The court will hear arguments Tuesday as to whether the Second Amendment right of individuals to own firearms can be applied to state laws and regulations via the 14th Amendment. McDonald v. Chicago, 08-1521.

Of 52 amicus briefs in the closely watched case, California-based lawyers filed 11. Another two were filed by Washington-based lawyers on behalf of clients from California.

Although the latest case before the high court is out of Chicago, it closely mirrors one currently before the 9th U.S. Circuit Court of Appeals concerning Alameda County's gun show ban that prevents such events from being held on county-owned land.

It is also a sequel to the Supreme Court's decision in 2008 finding that the Second Amendment extends to an individual's right to bear arms. Heller v. District of Columbia, 554 U.S. 290. That case, which only involved federal law because the jurisdiction in question was the District of Columbia, didn't address whether the Second Amendment applied to states.

In the California case, a unanimous 9th Circuit panel concluded in April 2009 that the Second Amendment did apply to the state but that states nevertheless had the authority to regulate. Nordyke v. King, 2009 DJDAR 5557. Judge Diarmuid F. O'Scannlain wrote in the opinion that the ban was not problematic because the Second Amendment as interpreted by the Supreme Court in Heller, protects the right to bear arms only in self-defense, not the right to carry a firearm on publicly-owned land.

The court later re-heard the case en banc in September but held off issuing a decision after the Supreme Court took up the issue.

The 7th Circuit and 2nd Circuit have both concluded that the Second Amendment isn't incorporated against the states via the 14th Amendment guarantee of due process, meaning that the right to bear arms is not an individual right under state law unless the state provides for it in its constitution.

Among the many amicus briefs coming out of California is one filed by the gun rights activists who challenged the Alameda County regulations and California Attorney General Jerry Brown, who filed a brief back before the justices decided to hear the case, urging that the court decide the issue once and for all. Also keen to have their voices heard are 34 California district attorneys and even experts on American colonial history. Overall, seven of the briefs filed by California lawyers are in support the City of Chicago and the Village of Oak Park, which are defending their gun regulations, while four support efforts by the National Rifle Association and others to overturn the regulations. Several of the briefs were filed on behalf of out-of-state or national groups.

In Attorney General Brown's brief, he pointed out that California, unlike 44 other states, does not have a provision in its constitution that mirrors the Second Amendment.

Brown wrote that "the court should extend to the states Heller's core Second Amendment holding that the government cannot deny citizens the right to possess handguns in their homes, but also provide guidance on the scope of the states' ability to reasonably regulate firearms." Brown did not file a brief supporting either side in Heller.

Donald E.J. Kilmer Jr., the San Jose attorney who argued the 9th Circuit case on behalf of gun show operators, urged the court in his brief to not only incorporate the Second Amendment but also give lower courts guidance on how to approach cases on gun regulation like the Alameda County gun show case.

He wants the Supreme Court to require lower courts to apply strict scrutiny, the form of review reserved for balancing constitutional rights against government interests, when a fundamental right is at issue or the governmental regulation being assessed involves a "suspect classification," when analyzing gun regulations.

"The government should have some compelling reason for saying 'you can't engage in this conduct'," he said. Alameda County made no such effort in his case, he said.

What Kilmer described as "common sense" laws, such as those requiring background checks for those attempting to purchase firearms, could meet such a standard, he added.

In the brief filed on behalf of California district attorneys and other groups, attorney C.D. "Chuck" Michel of Michel & Associates in Long Beach, argues that incorporation of the Second Amendment would constitute a recognition of what most Americans believe anyway: that there is an individual right to armed self-defense, even in states like California that don't have such a provision in state law.

"The bottom line is that once the federal right is incorporated, then the state right - or lack thereof - becomes less relevant," Michel, who represented the NRA in the 9th Circuit, said in an interview. "In that respect, it's critical that the Second Amendment is incorporated."

The city of San Francisco, which settled its own case over gun regulations in public housing in the wake of Heller, signed onto a brief supporting Chicago that was filed by Henry C. Su of Howrey in Palo Alto on behalf of various cities, including Oakland, Sacramento, and Richmond.

The brief calls upon the Supreme Court not to disrupt the "delicate federal-state balance" that allows states to regulate gun ownership. Su argues that the Second Amendment was enacted solely to protect the states and citizens from federal power. Therefore "it makes no sense to incorporate the right to bear arms against the states."

Owen J. Clements, San Francisco's chief of special litigation, warned of the "scary prospect" of local jurisdictions, especially smaller cities with budgets to match, having to worry about litigation costs whenever a gun regulation is considered.

A Supreme Court ruling incorporating the Second Amendment would likely have "a chilling effect on reasonable gun regulations," he added.

In another brief arguing against incorporation, Robert A. Goodin of Goodin, MacBride, Squeri, Day & Lamprey in San Francisco adopts a historical approach. He represents historians who disagree with the Supreme Court's conclusion in Heller.

The brief contains references to historic texts like William Blackstone's Commentaries on the Laws of England, published in 1769, the English Bill of Rights from 1688, and proceedings of the British House of Commons from the early 1800s.

Goodin, who conceded the brief is quite unlike his usual legal work, said the Second Amendment was intended only to enshrine the right of individuals to participate in the local militia.

"Heller got it wrong," he said.

Posted 11:20 AM by Howard Bashman

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February 18, 2010

Free Speech Takes Stage at High Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It could be a good year for freedom of speech at the U.S. Supreme Court.

The court has already struck down part of one congressional statute in the landmark campaign finance case decided last month and could do the same in two others, legal experts say. For the court to strike down three statutes on First Amendment free speech grounds in one term is not common, but that's what many court-watchers are predicting.

The first of the as-yet-undecided cases will be argued next week. It revolves around the continuing efforts of the Los Angeles-based Humanitarian Law Project to challenge a federal statute that outlaws assistance to groups designated as terrorist organizations. Holder v. Humanitarian Law Project, 08-1498. The group says the statute violates its free speech rights.

The other case the court hasn't ruled on yet, on whether a statute that bans the depiction of animal cruelty is constitutional, hangs in the balance after a one-sided oral argument back in October. A ruling could come as soon as Feb. 23.

In all three cases, the lawyers challenging the constitutionality of congressional statutes have strong arguments, First Amendment experts say.

"I wouldn't be surprised if the First Amendment won in all three cases," said Ahilan Arulanantham, a lawyer for the American Civil Liberties Union of Southern California.

Striking down all three laws on free speech grounds in one term "would be unusual but not unprecedented," according to Daniel Ortiz, a professor at the University of Virginia School of Law.

The last time he could remember it happening was in 2001, he said. In total the court has struck down parts of congressional acts due to free speech concerns 20 times since 1985.

There is one other free speech case the court will rule on this term - on whether the First Amendment rights of attorneys are violated by the law that prevents them from advising clients to take on extra debt before declaring bankruptcy - but based on the December argument the court seems unlikely to reach the constitutional question. Milavetz v. United States, 08-1119.

So far, the trendsetter this term is the campaign finance case.

The Humanitarian Law Project's attorney, Georgetown Law Center professor David Cole, admitted in an interview that the campaign finance ruling gave him some cause for optimism because of the majority's favoring of First Amendment arguments over those advocating restrictions on political speech. His reply brief, due on the day the ruling came down, ended up containing four citations to the case, in which the court lifted restrictions on independent corporate-funded speech during political campaigns. Citizens United v. FEC, 2010 DJDAR 949.

In doing so, the court struck down a key provision of the Bipartisan Campaign Reform Act passed by Congress in 2002, finding that the campaign finance restrictions were an unconstitutional burden on free speech. The ruling means that corporations, both for-profit and non-profit, now have the right to use their general treasury funds to pay for a wide range of election communications, including television spots and pamphlets that criticize or praise a particular candidate. The ruling, Cole said, "shows a heightened sensitivity to prohibitions on political speech, even when advanced for important reasons."

The Humanitarian Law Project's efforts are "nothing more than political speech" aimed at promoting lawful activity, he added.

The material support statute bans providing "service... training ... expert advice or assistance" to any group the U.S. government has designated as a foreign terrorist organization.

In its December 2007 decision on a case that began back in 1998 when the law project filed a lawsuit challenging the 1996 statute, the 9th Circuit concluded that the statute was unconstitutionally vague as applied to the law project. The law project provides support for the non-violent activities of two groups: the Kurdistan Worker's Party in Turkey and the Liberation Tigers of Tamil Elam in Sri Lanka. Both organizations are designated as terrorist groups. The law project maintains that it wanted to teach the groups how they can achieve their goals without recourse to violence, such as by filing human rights complaints with the United Nations.

Founded in 1986, the law project advocates for the use of international law to end conflicts. It is led by Ralph D. Fertig, a civil rights lawyer and former federal administrative law judge.

U.S. Solicitor General Elena Kagan counters in the Obama administration's brief that the statute "only incidentally affects expressive activity" and is not a "content-based restriction on speech."

Kagan said that while certain activities are banned, groups like the Humanitarian Law Project remain free to lobby Congress and otherwise promote human rights causes.

The statute regulates conduct, such as providing direct aid to terrorist groups, not "a particular type of expression," she added. The government maintains that assisting such groups in appearing before the United Nations and providing advice on international political advocacy is enough to violate the statute.

Several groups filed amicus briefs supporting the government in arguing that concerns about terrorism trump the limited restrictions on free speech covered by the statute.

Chapman University School of Law professor John C. Eastman, who filed a brief on behalf of the conservative Center for Constitutional Jurisprudence, expects a majority of the court to focus on the national security issues rather than the First Amendment.

"I think they will uphold the statute," he said.

As for Citizens United, Eastman doesn't think it will have "any impact" on how the case comes out because the court will not consider it as a free speech issue.

What remains to be seen is whether this month's argument in the material support case ends up mirroring the October argument over the statute banning depictions of animal cruelty.

Afterwards, many observers predicted that the court seemed inclined to strike down the law. U.S. v. Stevens, 08-769.

Congress passed the statute in 1999 after becoming aware of so-called "crush videos" that show women stamping on live animals, usually while wearing high-heeled shoes.

In 2005, the defendant challenging the law, Robert J. Stevens, was convicted in Pennsylvania for selling videos depicting dog fighting, some of which were filmed in Japan, where it is legal.

A majority of the justices, including some who were in the minority in Citizens United, expressed concern about the over-breadth of the law, which is written in such a way that it could apply to imagery showing a wide variety of actions involving animals. Humanitarian Law Project attorney Cole makes similar arguments.

The reason all three statutes could be struck down is that Congress hasn't learned its lesson from previous experiences, according to Cole.

"The court states time and time again that its most stringent analysis is for criminal bans on speech," he said.

Posted 11:02 AM by Howard Bashman

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February 4, 2010

High Court To Hear Torture Case

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When the question of whether former officials of foreign countries can be sued in American courts for acts of torture goes before the U.S. Supreme Court next month, it will be a landmark moment for a nonprofit legal group in San Francisco.

Although the case comes out of Virginia, the legal brains behind the fight are from the Center for Justice and Accountability, based on Market Street. In its 12-year history, the group has never had a case reach the Supreme Court, a milestone that executive director Pamela Merchant has mixed feelings about.

Merchant's clients, five Somalis who accuse a former Somali prime minister of various human rights violations, won when the case was argued before the 4th U.S. Circuit Court of Appeals, traditionally considered the most conservative of the federal appellate courts, so she would have preferred the high court not to get involved at all.

"For an organization of our size it's a little bit daunting," she sighed in a recent telephone interview. "We didn't think the Supreme Court would take the case."

The defendant, Mohamed Ali Samantar, was the defense minister and later prime minister of Somalia during the 1980s when the country was led by dictator Mohamed Siad Barre. After the regime fell in 1991, Samantar ended up in Fairfax, Va.

Through the close-knit Somali community, some 1,500 of whom live in the San Francisco Bay Area, the family of one of the plaintiffs, Bashe Abdi Yousuf, heard Samantar was in the United States and wondered if there was any way of holding him accountable for his alleged actions.

After hearing about the CJA, Yousuf's relatives contacted the group, which agreed to investigate further.

Founded solely to assist torture victims seeking justice, the CJA has just 12 staff members but has enjoyed considerable success. The group has filed claims in U.S. courts against human rights abusers from such countries as Bosnia, Chile, and El Salvador. It has won every case that has gone to trial, Merchant said. The group also represents human rights victims pursuing claims in Spanish courts for alleged violations that took place in Guatemala and El Salvador.

Seeking to broaden the Somalia case, the CJA's staff attorneys talked to others in the U.S.-based Somali community and visited Somalia itself, picking up four more plaintiffs along the way.

They include two United States citizens: Yousuf, who was detained, tortured, and kept in solitary confinement for six years, and Aziz Deria, who fled Somalia after his father and brother disappeared.

Of the other three plaintiffs, all of whom are Somali citizens, one survived a firing squad by hiding under dead bodies, one had two family members executed and one, a woman, was repeatedly raped and held in solitary confinement for three years.

In 2004, the CJA, after seeking outside legal assistance from Cooley Godward Kronish, filed suit in the Eastern District of Virginia. The plaintiffs sought redress under the Torture Victim Protection Act, which creates a cause of action for torture committed in "any foreign nation," and the Alien Tort Statute, which gives United States courts jurisdiction to hear certain international disputes. Samantar sought immunity, setting up the legal question now before the Supreme Court: whether a foreign state's immunity from lawsuits under the Foreign Sovereign Immunities Act extends to individuals acting in their official capacities. Samantar v. Yousuf, 08-1555. The Supreme Court has previously ruled on the scope of the FSIA but not on the question of whether it can apply to former government officials.

The district court found that Samantar had immunity under the FSIA, but the 4th Circuit disagreed. In the January 2009 opinion, a three-judge panel noted that the act is too vague, stating only that "a foreign state" had immunity and making no mention of individuals. Based on a study of congressional intent, the court concluded that the law "does not apply to individual foreign government agents like Samantar."

The 9th U.S. Circuit Court of Appeals is one of five federal appellate courts that have reached the opposite conclusion. The 9th Circuit was, in fact, the first appeals court to rule on the issue back in 1990 and is regularly cited in Samantar's brief. Chuidian v. Phil. National Bank, 912 F.2d 1095, 1103.

Merchant, a former federal prosecutor who joined the CJA in 2005, thought the 4th Circuit opinion was "a clear, solid decision" and was not expecting the Supreme Court to intervene, in part because the question of bringing human rights violators to justice in American courts "is not a very robust area of the law."

That the Supreme Court did decide to take the case raises the question of whether it did so simply to reverse the 4th Circuit, she admitted.

"That's always your concern, but we hope that's not the reason," Merchant said.

At the Supreme Court, experienced advocate Patricia A. Millett of Akin Gump Strauss Hauer & Feld will be handling the argument.

Samantar's attorney, Shay Dvoretzky of Jones Day in Washington, maintains that the Supreme Court would "open the door" to officials from the United States' closest allies facing lawsuits in American courts if it endorsed the 4th Circuit's ruling.

Congress passed the FSIA to give "uniform treatment" to foreign states and officials, but under the approach suggested by the Obama administration, there would be a confusing "two-track regime," one for foreign governments and one for officials, he added.

Dvoretzky, a former clerk to Justice Antonin Scalia who will be arguing for the first time at the court, also warned that it would undermine one of the aims of the act, which is to encourage other countries not to allow lawsuits against the United States and its officials.

The Obama administration has urged the Supreme Court to affirm the 4th Circuit. Solicitor General Elena Kagan noted in the government's amicus brief that whether or not individuals should be sued is not governed by FSIA, but is instead determined by the executive branch, which can file a "statement of interest" outlining its views in such cases.

Kagan's attempt to strike the middle ground hints at the splits the case has created among certain internationally oriented groups, including those representing Jewish interests. The American Jewish Congress and others filed amicus briefs in support of Samantar due to concerns that former Israeli officials could be targets for lawsuits in American courts over alleged human rights abuses committed against Palestinians. In fact, in two recent cases, district judges in the District of Columbia and the Southern District of New York both concluded that former Israeli officials had immunity.

The Anti-Defamation League, originally formed to combat anti-Semitism, has taken a different position. In its brief in support of neither party, it stresses that the "worst offenders" of human rights atrocities, including genocides like the World War II Holocaust, should be held to account for their actions.

David Kaye, executive director of UCLA School of Law's international human rights program, has some sympathy for groups seeking to reconcile apparently competing interests.

"It's a struggle for them to figure out where they stand," he said.

It would be "a major setback" for human rights lawyers if the court granted immunity to officials, he added.

Merchant, meanwhile, remains conflicted as the March 3 argument approaches.

Although concerned about the prospect of losing, she's pleased that the case will, at a minimum, highlight the situation in Somalia, a "broken state" that remains in turmoil and has since become a hotbed for terrorism.

"Of course it's exciting," she said of the argument. "All lawyers think about the day when one of their cases goes to the Supreme Court."

Posted 3:22 PM by Howard Bashman

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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.

Posted 12:25 PM by Howard Bashman

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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.

Posted 8:50 PM by Howard Bashman

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© 2010 The Daily Journal Corporation.
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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."

Posted 4:33 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 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."