Posted 10:20 AM by Howard Bashman

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October 4, 2010

High Court to Hone in on 9th Circuit; A Third of Cases to Be Reviewed This Term Arise From Nation's Biggest Circuit

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When Cliff Gardner walks up to the podium at the U.S. Supreme Court next week, he may well momentarily think he has stepped into the boxing ring next door to his Berkeley law office.

As a defense lawyer representing a prison inmate seeking habeas corpus relief, he will be dreading a knockout punch from the conservative-leaning court.

The Supreme Court regularly takes pro-defendant habeas corpus cases with the intent of reversing lower court rulings, especially if those rulings, like the one in Gardner's case, come out of the 9th U.S. Circuit Court of Appeals. The 9th Circuit is often seen as the federal appellate court most out of sync with the Supreme Court, not just in habeas corpus cases, but on a host of other issues. In the 2009-2010 term, the circuit was reversed or vacated 12 times and affirmed four times.

Gardner's is one of four 9th Circuit habeas corpus rulings the court has taken so far to be argued in the 2010 term, which starts Monday.

The rest of the docket also has a substantial 9th Circuit and California flavor.

Of 54 cases the court has agreed to hear so far, 18 are 9th Circuit rulings. The justices will also be reviewing one California Court of Appeal opinion in a product liability case and a direct appeal from the three-judge district court panel that has ordered the state to release thousands of prison inmates.

Commenting on the proportion of 9th Circuit cases, University of Pittsburgh School of Law professor Arthur Hellman noted that the circuit was "overrepresented on the docket."

The 9th Circuit is the biggest circuit by area and population, and its caseload constitutes 20 percent of the total heard by federal circuit courts. But its rulings make up 33.3 percent of the cases the Supreme Court has agreed to review so far. That's a higher percentage than recent years. Last term, for example, there were 16 9th Circuit cases out of 77 heard on the merits, which is 21 percent of the docket.

One of the reasons may be that the losing lawyers in 9th Circuit cases are "more aggressive" in seeking review because they know that the Supreme Court often looks upon the circuit's rulings with a skeptical eye, Hellman said.

The case that Gardner is arguing, in which California Attorney General Jerry Brown sought review of the 9th Circuit ruling, could be a perfect example.

"I understand why most people think they will reverse," Gardner said of the justices in a recent interview at his office.

Although the Supreme Court regularly takes habeas corpus cases that have little application beyond the individual inmate involved, experts say Gardner's case could have a broader impact in large part because of an additional question the court itself has asked the lawyers to argue: whether federal courts should give deference to the state appeals court's final judgment if the state court denied habeas corpus review via a summary decision. Harrington v. Richter, 09-587. Gardner's client, Joshua Richter, was convicted of murdering a man and injuring another during a 1994 robbery in Sacramento. In August 2009, the 9th Circuit granted Richter habeas relief in an en banc decision, with four judges dissenting.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, described it as a "huge case" because it could affect hundreds of cases across the nation. The California Supreme Court regularly disposes of cases via so-called "postcard" denials.

The question of how federal courts should view such rulings "has been kicking around" since Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, Harris said. The law included a major reform to habeas corpus law that restricted the ability of defendants to seek review of state court rulings in federal court.

Harry J. Colombo, the California deputy attorney general who is arguing the case for the state - his first before the Supreme Court just two months before he retires - said the outcome "would be significant" if the court concludes, as expected, that summary decisions should be given deference under AEDPA.

"It would be more consistent with the federal habeas statutory scheme," he added. Most observers expect Colombo to win that case.

They also predict the Supreme Court will affirm in another case, which is probably the most high-profile 9th Circuit case scheduled for argument. The question there is whether a California law restricting the sale of violent video games to minors violates the First Amendment. Schwarzenegger v. Video Software Dealers Association, 08-1448.

The law, which California passed in 2005 but which has never gone into effect because of the legal challenge, would have banned the sale or rental of video games that allow users to facilitate the "killing, maiming, dismembering, or sexually assaulting an image of a human being" to consumers under the age of 18. The 9th Circuit struck the law down in a February 2009 ruling.

At issue in the case is whether violence in video games can be treated the same as sexually explicit material, the sale of which to minors can be banned under a 1968 U.S. Supreme Court decision. Ginsberg v. New York, 30 U.S. 629.

In that case, the court concluded the state had a rational basis for believing obscene material would harm minors.

The Supreme Court has never ruled on whether violence can be treated the same as sexually explicit material.

Similar laws to California's have been struck down by other federal courts, meaning there is no circuit split, which has prompted most legal experts to ponder why the Supreme Court bothered intervening.

Eugene Volokh, the well-known First Amendment expert at UCLA School of Law, who has filed a brief in support of the video game industry, speculated that the court's decision to take the case, which requires the votes of a minimum of four justices, at least "suggests that at least four of the justices disagree with the lower court."

The video game case is just one of a number of major business-related cases before the justices, including four that feature questions on when federal law preempts state law. One, on the issue of whether federal law preempts a plaintiff from suing Mazda Motor Corp. under California law, is the case in which the court will review a California Court of Appeal ruling. Williamson v. Mazda, 08-1314.

In August 2002, Thanh Williamson, a passenger sitting on an aisle seat in the second row of a 1993 Mazda minivan, was killed in a collision. She was wearing a lap seatbelt, which caused her body to jackknife, causing severe injuries and internal bleeding.

Her husband, Delbert, who survived the crash, sued Mazda in Orange County Superior Court alleging various state law product liability and negligence claims. Judge Hugh Michael Brenner dismissed the suit, agreeing with Mazda's argument that the Federal Motor Vehicle Safety Standard, the law that lays out minimum safety standards for vehicles, preempted the state law claims. At the time of the crash, it did not require shoulder belts for the aisle seats of minivans.

In an October 2008 opinion, the 4th District Court of Appeal affirmed.

The case has attracted significant interest from the business community, which has thrown its support behind the car company.

Maureen Mahoney, of counsel at Latham & Watkins in Washington, who is part of the team representing Mazda, said the case illustrates the difficulties car manufacturers face. On the one hand, they have to design cars that can be sold nationwide and meet federal standards, but on the other hand, they can face "crushing liability" in state courts even if they have met the national requirements, she said.

Plaintiffs' attorneys "must be entering the term with some trepidation," Mahoney added, in part because the now retired Justice John Paul Stevens was "their champion" when it came to preemption cases. His replacement, Elena Kagan, has recused herself from the Mazda case due to her previous role as solicitor general, which will make it even tougher for the plaintiffs, experts say. Kagan has so far recused herself in 25 of the cases the court has decided to hear.

Doug Kendall, president of the liberal-leaning Constitutional Accountability Center, who has filed an amicus brief on the side of the plaintiffs, conceded that Stevens' departure was a boon for Mazda, but he noted that in preemption cases, "the court's lineup does not split along ideological grounds." He also noted that recently the court has been more favorable to plaintiffs in preemption cases than it had in previous years.

One of the other preemption cases looks to many experts like another 9th Circuit reversal. The court will examine a challenge to an Arizona law requiring employers to check on the immigration status of their workers. The 9th Circuit upheld the law in a March 2008 opinion. An alliance of business and civil rights groups argue that the law is preempted by federal immigration law. Chamber of Commerce v. Whiting, 09-115.

Roy T. Englert Jr, a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber in Washington, described it as "an easy case" for the Supreme Court, which will view it through the prism of "federal power versus state power," and likely find in favor of the federal government.

It may well be, however, that the biggest cases of the term haven't yet reached the justices.

Whether the cases that receive most of the attention from court experts and the media at the beginning of the term remain at the center of attention next June when the court hands down its final opinions depends on what petitions the justices look favorably on in the coming months in time for them to be argued before next term.

Many lawyers expect the court to take up the huge gender discrimination class action filed by female employees against Wal-Mart, Wal-Mart v. Dukes, 10-277. In April, the 9th Circuit approved class certification on a 6-5 en banc vote. If that case is argued this term, many court-watchers think it could end up as one of the major rulings.

"It's the 800-pound gorilla," Englert said.

Posted 2:15 PM by Howard Bashman

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August 10, 2010

APPOINTMENT FOR SOLICITOR GENERAL NOT EXPECTED SOON

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The White House is not likely to rush into appointing a permanent successor to Elena Kagan as solicitor general after her elevation to the U.S. Supreme Court, according to legal sources in Washington.

Kagan, sworn in as the court's newest associate justice Saturday, served as solicitor general, the Obama administration's chief legal advocate, for just over a year.

Despite her confirmation appearing to be a foregone conclusion for weeks, sources familiar with the process say the White House does not have a solicitor general nominee lined up.

The lack of quick action on appointing a permanent successor means acting solicitor general Neal Katyal, one of two frontrunners for the position, will probably remain in his current capacity well into the court's October 2010 term.

Even if Katyal were to get the nod and the White House were to nominate him as soon as the Senate returns from its summer recess in September, it's highly unlikely he could be confirmed in time for the start of the term on Oct. 4.

The other favorite for the permanent job is Donald B. Verrilli Jr., who currently serves in the White House.

Katyal served as Kagan's deputy, a political appointment, and has argued eight cases before the court. There is recent precedent for an acting solicitor general serving for an extended period. During the Clinton administration, Walter Dellinger was acting solicitor general for the entire 1996 term.

For Katyal, the one possible obstacle should he be nominated is that some conservatives have attacked his role in representing detainees at Guantanamo Bay.

As a Georgetown Law Center professor, Katyal argued and won one of the key detainee rulings before the Supreme Court. In the 2006 ruling, the court held 5-3 that the military commissions set up by the Bush administration to try detainees violated the Geneva Convention. Hamdan v. Rumsfeld, 548 U.S. 557.

Verrilli, an experienced Supreme Court advocate, was among those considered for the solicitor general position when President Barack Obama was first elected, according to prominent appellate lawyers in Washington.

Before joining the Obama administration, Verrilli headed Jenner & Block's Supreme Court practice. He has argued 13 cases before the court on both business and pro bono matters.

Verrilli was appointed Associate Attorney General, the No. 3 position in the Justice Department, when Obama took office, but moved over to the White House in early 2010 to be a senior counsel.

Other names mentioned in connection with the job - but with less regularity - include Paul Smith, a senior partner at Jenner & Block, and David Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel.

Posted 10:58 PM by Howard Bashman

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August 2, 2010

COURT'S RECENT MIRANDA RULINGS WON'T HAVE BROAD IMPACT

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Although the U.S. Supreme Court issued three much-discussed rulings last term trimming back the protections for defendants during police interrogations, criminal lawyers say they are unlikely to have much impact on the ground.

A combination of police using their interviewing expertise to skirt the law, defendants realizing they have a right not to talk and the narrow issues tackled by the justices mean the three decisions will affect only a small number of cases, according to both prosecutors and defense attorneys.

All three somewhat narrowed the protections afforded to defendants by the landmark 1966 case, Miranda v. Arizona, 384 U.S. 436, in the which the court first held that interrogators had to inform a suspect of his 5th Amendment right to an attorney before conducting an interview. If the defendant does not ask for a lawyer, the statements can be used at trial only if he voluntarily waives his right to counsel.

Police, prosecutors and some judges have been critical of the ruling over the years, saying it unjustifiably hindered efforts to secure confessions. The Supreme Court has returned to the issue in various cases over the years, tweaking the law in favor of police while stopping short of major changes.

The three cases in the term that just ended were part of that trend.

"It's an indication the court is willing to consider trimming back around the edges," said Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, a conservative legal group. "I don't think there's any danger of the court overruling Miranda."


In February, the court unanimously reversed the Maryland Court of Appeals in addressing whether the Supreme Court precedent stating that once a defendant invokes his Miranda rights, any statement made while he is still in custody is suppressed. The question was whether Miranda continues to apply when the suspect is serving a prison sentence for an unrelated crime. Maryland v. Shatzer, 2010 DJDAR 2731. In the case, Michael Shatzer was in prison when first questioned about an allegation that he sexually abused his son. He refused to talk, but almost three years later police questioned him again when more details emerged. This time, Shatzer agreed to talk after waiving his Miranda rights.

The court, in an opinion by Justice Antonin Scalia, stated that a prison sentence does, in fact, constitute a break in Miranda custody and therefore police can re-interview suspects as long as it is more than two weeks after the first attempt.

In the second case, decided in March, the court ruled 7-2 that police do not have to clearly state that a suspect has a right to a lawyer to be present throughout questioning. A simple statement saying that a suspect has the right to talk to a lawyer before answering questions was sufficient, the court said in an opinion by Justice Ruth Bader Ginsburg that reversed the Florida Supreme Court. Florida v. Powell, 2010 DJDAR 2675.

Of the three cases, it is considered the least important because in most jurisdictions the police warning is more precise.

The case that got the most attention was a 5-4 ruling issued in June in which the court ruled that a suspect's silence during questioning does not imply that he has invoked his Miranda rights. In the case before the court, which came out of the 6th U.S. Circuit Court of Appeals, suspect Van Chester Thompkins was silent for three hours before stating "yes" when asked if he prayed to God to forgive him for the murder he was being questioned about. The Supreme Court held in an opinion by Justice Anthony M. Kennedy that a suspect must unambiguously say that he is invoking his Miranda rights. Berghuis v. Thompkins, 2010 DJDAR 8047.

In assessing the impact of the rulings, prosecutors and defense lawyers agree that they do not constitute a major upheaval in the law, but they differ on the details.

For prosecutors in California, the cases have not raised many eyebrows, according to Lael Rubin, director of prosecution support operations at the Los Angeles District Attorney's Office.

"We have had no expressions of concern either from prosecutors or from law enforcement," she said.

Of the three, Shatzer could be most useful to the police because it gives them clear guidance on when they can re-interview suspects who are in prison on unrelated charges, Rubin added. The other two cases largely endorse the way California courts and the 9th U.S. Circuit Court of Appeals have interpreted the law for years, she said.

Not surprisingly, defense lawyers have a more negative assessment of the Supreme Court's actions, not just in the three cases last term but also in other Miranda-related rulings in recent years.

That's because lawyers are so certain they will lose attempts to suppress evidence based on a Miranda violation they are less likely to try, according to Richard La Fianza, a deputy public defender in San Bernardino County.

"I see a lot of attorneys giving up on Miranda challenges because they see it as a hopeless cause," he said.

The recent rulings are unlikely to change that analysis one way or the other, he said.

La Fianza himself makes a Miranda challenge in one out of 20 cases, he estimated. Usually those cases involve suspects who don't speak English.

For Konrad Moore, chief deputy public defender in Kern County, the rulings indicate a skewed perception of the criminal justice system that does not take into account several disadvantages defendants face.

"It would seem that the court largely accepts the proposition that only a guilty person would admit to having done wrong," Moore said.

That's a perception that defense attorneys and defendants "painfully learn is far from true," he added.

In questioning how much impact the three cases will have, Robert Weisberg, co-director of the Stanford Criminal Justice Center at Stanford Law School, said the Supreme Court is focused more on judges than the police.

The recent cases constitute "love letters to lower courts" rather than instructions to police officers, he said. The Supreme Court often calls federal appellate courts to task, especially the 9th Circuit, for second guessing state court findings in criminal cases when defendants file habeas corpus petitions.

Police interrogators know how to "comply with Miranda while exploiting the situation to solicit confessions," he said.

Ultimately, in a small number of cases, defendants might be a little worse off, but "it could be that the police won't take this as a license to investigate more aggressively," Weisberg said.

Looking ahead, experts expect the Supreme Court to continue to trim back Miranda in future cases.

"We have a majority on the court that is taking a narrow view of Miranda," the Criminal Justice Legal Foundation's Scheidegger said. "Where the issue is close on existing precedent, they will lean toward allowing the evidence in."

But, as public defender La Fianza noted, as long as Miranda remains the law of the land, defendants generally are aware of their rights and aren't about to make it easy for the police.

In the 12 murder cases he is working on, only one suspect gave a statement to police.

Posted 8:33 PM by Howard Bashman

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July 26, 2010

WHAT NEXT AFTER CITIZENS UNITED?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - As election season approaches, confusion reigns over how the U.S. Supreme Court's recent landmark campaign finance ruling that eased restrictions on independent corporate-funded expenditures will influence events.

Multiple questions are being debated by campaign finance experts, including whether corporations and unions will seek to exploit their new freedoms, how the Federal Election Commission will respond, and how much information the public will have about the paymasters behind TV attack ads.

In January's ruling, the court ruled 5-4 that unions and corporations, both for-profit and non-profit, have the right to use their general treasury funds to pay for television spots that criticize or praise a particular candidate. Citizens United v. FEC, 2010 DJDAR 949.

In previous elections, corporations and unions could only participate in federal elections by setting up political action committees, or PACs, which could then be used to make donations to candidates or fund independent expenditures. PACs are subject to regulation by the Federal Election Commission and can only accept up to $5,000 a year from each individual donor, thereby restricting how much they can spend.

The Supreme Court ruling gives unions and corporations the opportunity to play a much more significant role in endorsing or opposing a particular candidate, but it's not yet clear how much that will affect the November mid-term congressional elections.

According to FEC data, some unions and corporations have made direct independent expenditures already, but the vast bulk of election spending occurs in two months prior to Election Day.

"The real test is going to come in the weeks immediately preceding the November mid-term elections," said Dave Levinthal, the communications director for the Center for Responsive Politics, an elections watchdog group.

The big question is whether corporations and unions "come out full force" in making independent expenditures, or whether the landscape remains more or less unchanged, he added.

Many experts don't expect a deluge of corporate cash, a scenario that Democratic politicians, including President Barack Obama, have predicted.

That's because the vast majority of businesses do not necessarily want to get directly involved in the political process, according to campaign finance attorney Joseph Sandler, a member of Sandler, Reiff & Young in Washington and former general counsel of the Democratic National Committee.

"It's fair to say it appears unlikely that individual corporations will avail themselves of this decision," he said. "It will be trade associations, business groups, and unions."

What may also make corporations and unions think twice before spending is that the FEC has yet to formally respond to Citizens United. Therefore, there are no rules in place for such organizations to report independent expenditures out of their general treasury funds. There is also uncertainty over how much information politically active groups have to disclose about corporations or unions that donate money for use in elections.

"Most companies are waiting to see what the FEC does," said Brett G. Kappel, an expert in campaign finance law at Arent Fox in Washington.

The FEC is working on new rules, with draft proposals due by the end of September, said spokeswoman Judith Ingram.

In the meantime, there is some evidence that politically oriented groups are gearing up to take advantage of the new leeway they have to solicit money from corporations and spend those funds on political ads during election season.

Commonsense Ten, a Democratic group, and the conservative Club for Growth have both recently notified the FEC that they intend to form committees that will solicit unlimited donations. Commonsense Ten specifically stated that it wants to accept money from unions and corporations.

Experts predict any corporations that do want to engage in the political process in a more direct way are likely to contribute to groups like Commonsense Ten or set up arms-length organizations in order to distance themselves from whatever political speech they make.

Businesses, in particular, would not want to alienate potential customers by associating too closely with a particular campaign, said election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles.

Ideally, companies want an outcome where the candidate they support "knows what you are doing but no one else does," he added.

Although the arms-length group would in most cases have to disclose to the FEC which corporations contributed funds, that information would only become available later and only then to those who are inclined to search through the agency's data. Businesses can also donate money to trade associations and related groups, such as the U.S. Chamber of Commerce, which - even before Citizens United - spent millions on federal elections, usually to the benefit of the Republicans. Likewise, unions have always been a major source of cash in support of the Democratic Party.

As corporations and unions digest what exactly Citizens United allows them to do, the waters are further muddied by efforts in Congress to pass legislation intended to restrict the decision's impact.

Known as the DISCLOSE Act, it would, among other things, impose new disclosure requirements on independent expenditures. Among the provisions is one that would require corporate CEOs to appear on camera if their company is a major source of funding for an ad.

If enacted, the law would significantly blunt the impact of the Supreme Court ruling because it would increase the scrutiny of corporations that are politically active, said Arent Fox's Kappel.

"I think it would discourage people from contributing," he said.

The legislation has passed the House of Representatives but Democrats are struggling to attract the 60 votes needed to pass the Senate version. It is unlikely to become law in time for November's election, and those following the issue say that even if it did, it may be amended so that it doesn't go into effect until the 2012 elections.

Uncertainty over what Congress will do could deter corporations and unions from spending much this year, according to Loyola's Hasen. In fact, most experts agree it won't be until 2012, a presidential election year, that the real repercussions of Citizens United will be felt.

"There's still some wait-and-see that's going to happen," Hasen said.

Posted 2:05 PM by Howard Bashman

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July 16, 2010

BREYER TO STEP IN AS CHIEF DISSENTER?
Following Stevens' Retirement, Breyer Could Assume His Position as Most Vocal Critic

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - With Justice John Paul Stevens now retired, Justice Stephen G. Breyer looks ready to replace his former colleague as dissenter-in-chief on the U.S. Supreme Court.

Some legal observers think he could even take on a more prominent role as the leading liberal voice on the court.

Stevens, who served on the court for nearly 35 years, was long known for being the justice most likely to write dissenting opinions. It was just one of many roles associated with him, another being his skill as a strategist. But even before Stevens left the court at the end of last month, Breyer was exhibiting a similar inclination to write at length - and often - in dissent. In the term that just ended, only Stevens wrote more dissents than Breyer, 12 versus eight respectively. In contrast, five of the justices wrote four or fewer dissenting opinions. The statistics are similar if extended over the last five terms, according to Supreme Court website Scotusblog.com.

Last term, Stevens was also the only justice who was in the minority more than Breyer: 22 times compared with Breyer's 19.

Breyer's willingness to air his dissenting views in public extended beyond the court's rulings in argued cases. The 71-year-old also wrote a spirited dissent when the court granted a stay that prevented California's Proposition 8 trial from being televised.

"I believe this court should adhere to its institutional competence, its historical practice, and its governing precedent - all of which counsel strongly against the issuance of this stay," he wrote.

Later in the year, Breyer also penned a memorandum publicly criticizing the court for closing its grand front entrance to the public.

Appointed by President Bill Clinton in 1994 after serving on the 1st U.S. Circuit Court of Appeals for 14 years, Breyer's early years on the court were characterized in part by his deference to his more senior colleagues, including Chief Justice William H. Rehnquist, court experts say.

Breyer's increasing outspokenness has coincided with the ascendancy of Chief Justice John G. Roberts Jr., who was appointed in 2005. He has been "probably the most vocal critic of muscular rulings by the Roberts court that pushed the law sharply to the right," said Doug Kendall, president of the Constitutional Accountability Center, a left-leaning legal think tank.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, said that Breyer might be preparing to at least try to take on Stevens' mantle. Only Justice Ruth Bader Ginsburg, appointed a year earlier, has longer tenure on the court among the liberal ranks. Justice Sonia Sotomayor has only served for a year and Stevens' replacement, Elena Kagan, still awaits Senate confirmation.

If Breyer, who was a professor at Harvard Law School before he was appointed to the 1st Circuit, is seeking a more prominent role, it's not a move that many would have predicted, Harris said.

"There have been times when he has seemed more idiosyncratic in his views and less interested in playing a strategic or leadership role," she said.

But she noted that "a lot of people didn't see it coming" when Stevens first became more prominent.

Kendall expressed doubt about whether Breyer could effectively replace Stevens when it comes to engaging in intellectual battle with the conservative justices. Known for his pragmatic approach to the law, Breyer is unlikely to replicate Stevens in "taking on directly the arguments made by the conservatives over the meaning of the Constitution," said Kendall.

Still, Breyer has not just dissented on paper, he has also been vocal in criticizing the majority by reading summaries of his dissenting opinions from the bench, something justices do relatively rarely to signify the intensity of their opposition.

In the last term, he did so in three high-profile cases, including two decided on the last day. Some see those public utterances as a sign that Breyer is not just a passionate dissenter but also someone who wants to take the fight to the conservatives.

First, on June 21, he spoke out when the court ruled 6-3 that a Los Angeles group's political advocacy for foreign groups designated by the government as terrorist organizations could potentially run afoul of a federal law banning providing material support to terrorist groups. Holder v. Humanitarian Law Project, 2010 DJDAR 9347.


Breyer stated his concern that when the First Amendment is pitted against national security, the latter should not always prevail. "That never has been, and should not be, the law," he said.

Breyer then spoke from the bench twice on the final day of the term, beginning with the court's 5-4 decision in which it concluded that the Second Amendment right to bear arms applies to state and local regulations. McDonald v. Chicago, 2010 DJDAR 9899.

He was scathing of the conservative majority, questioning the idea that the right to bear arms is a fundamental right that should be applied to the states under the due process clause of the Fourteenth Amendment.

Breyer then spoke at length minutes later when the court issued another ruling in which the majority found that a section of the corporate reform and accounting law passed by Congress in the aftermath of the Enron Corp. scandal is unconstitutional. Free Enterprise v. Public Company Accounting Oversight Board, 2010 DJDAR 9997.

Georgetown's Harris, who was in the courtroom on the last day of the term, described Breyer's performance that day as "very significant" in part because "his spoken remarks were very strong and really well done."

Vince Chhabria, who clerked for Breyer in the 2002 term and is now deputy city attorney at the San Francisco City Attorney's Office, downplayed the idea that Breyer's dissents are a sign that he has become more outspoken.

Breyer has always been willing to speak out on issues he cares most strongly about, Chhabria said.

"It depends on the strength of his feelings on the subject," he added.

Chhabria pointed to Breyer's sharp dissent in 2007 when the court struck down school race integration programs in Seattle and Louisville, Ky. as an earlier example. Parents Involved in Community Schools v. Seattle School District No. 1, 2007 DJDAR 9798.

But it was not just in the court's written opinions that Breyer's voice was prominent in the 2009 term. In the sharp debate in January over whether the Prop. 8 trial in San Francisco should be televised, Breyer again led the dissenting liberals. In a 10-page opinion, Breyer questioned whether the court even had the authority to intervene over what was essentially a question of judicial administration. Hollingsworth v. Perry, 2010 DJDAR 665.

Even more unusual was the incident in May, in which Breyer publicly dissented when it was announced that the court's famous front entrance would be closed to the public for security reasons.

"I think the change is unfortunate and I write in the hope that the public will one day in the future be able to enter the court's Great Hall after passing under the famous words 'Equal Justice Under Law,'" Breyer wrote.

Both the Prop. 8 and door closure issues were not typical Supreme Court business and could both be viewed as matters in which the chief justice, as the head of the judiciary, might normally expect "a fair bit of deference," Georgetown's Harris said.


As Kendall of the Constitutional Accountability Center noted, Breyer "has certainly been willing to express his disagreement" with the chief justice.

Whether or not Stevens' departure leads to a greater role for Breyer remains an open question, but his former clerks believe he is capable of taking on such a role.

"Justice Breyer would be a very good candidate to fill the void as the leading progressive voice," Chhabria said.

Deanne E. Maynard, who chairs the Supreme Court practice group at Morrison & Foerster and clerked for Breyer during his first term, said his outgoing personality could also help him win the all important fifth vote, which often tends to be Justice Anthony M. Kennedy.

"The justice's personality is well suited to being a leader," she said. "He would be very comfortable in that role."

When Stevens announced his retirement, Harris, who clerked for him, admits she didn't immediately see an obvious successor.

"I wonder whether it could be Justice Breyer," she said. "It's well worth watching."

Posted 4:15 PM by Howard Bashman

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July 9, 2010

STAYS WERE COMMON AT HIGH COURT

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - One of the most distinctive features of the U.S. Supreme Court's just completed term was the justices' unusual willingness to intercede at the early stages of controversial cases through their power to stay lower court rulings.

Perhaps the most high profile example of this was the stay granted in January that prevented the broadcast of the blockbuster trial in San Francisco over the constitutionality of California's Proposition 8, the ballot initiative that banned gay marriage.

The Supreme Court also attracted attention for two other stays it granted, both in cases coming from the 9th U.S. Circuit Court of Appeals.

The first came in October, just weeks before Election Day, when the court acted to prevent the release of the names of people opposed to a same-sex partnership law in Washington state.

The second came in June, just before the end of the court's term. By staying a 9th Circuit ruling that upheld Arizona's campaign finance laws, the justices threw that state's election season into chaos. Their action meant a district court ruling that prevented publicly funded election subsidies from being distributed to candidates went into effect. The court will not decide whether it will hear the case on the merits until October, meaning the case will not be resolved before November's election.

Supreme Court experts are reluctant to read too much into stay applications, but all three attracted scrutiny, not least because they touched upon such hot-button issues.

Erwin Chemerinsky, dean of UC Irvine School of Law, described it as "unusual" for the court to grant three stays in such high profile cases in a single term.

"I do think it was surprising, but whether it is a trend or an aberration obviously can't be known yet," he said. Unless justices dissent from a decision to grant a stay, as four did in the Prop. 8 case, it is also impossible to know which ones voted in favor and whether others disagreed.

Troy D. Cahill, counsel at Akin Gump Strauss Hauer & Feld in Washington and a former staff attorney at the Supreme Court, cautioned against reading too much into the motives of individual justices.

The court is required to take into consideration various factors when deciding whether to grant a stay, including the likelihood that four justices will vote to hear the case on the merits, he said. Justices also consider to what extent the lower court ruling upends the status quo of established law. But, Cahill noted, the justices can differ over how to weigh the various factors.

"I don't think it's that the test is being manipulated or that there's any impropriety," he said of the three stays.

The court rarely grants stay applications. Most consist of last minute applications from death row inmates. Any individual justice can grant a stay, but in practice most applications are referred to the full court. Then, five votes are required. As with the Washington petition-signers case, the court often grants a stay of a lower court ruling with a view to conducting a full review of the case on the merits.

The court does not maintain statistics on how many stay applications are granted. Supreme Court experts say there are a handful in any given term, usually in capital cases. The most recent example of a stay in a death penalty case came in March when the court granted a stay of execution to convicted murderer Henry Skinner of Texas while it considers whether to hear his petition concerning DNA evidence that was never analyzed prior to his trial. Skinner v. Switzer, 10-70002.

How the justices can differ over whether to grant a stay was illustrated perfectly in the court's 5-4 vote in January over whether Chief Judge Vaughn R. Walker of the Northern District of California could allow the Prop. 8 trial to be broadcast.

The liberal justices, led by Justice Stephen G. Breyer, openly questioned whether the court even had the authority to intervene over what was essentially a question of judicial administration. Hollingsworth v. Perry, 2010 DJDAR 665.

In the unsigned per curiam opinion, the conservative majority said a stay was warranted because Walker did not follow the necessary procedures for changing local court rules, including allowing proper time for public comment.

Breyer wrote a 10-page dissenting opinion in which he listed the various factors the court is required to consider before granting a stay. "This case, in my view, does not satisfy a single one of these standards," he wrote.

The justices disagreed on "virtually every element of the test," Akin Gump's Cahill noted.

In the Washington state case, the Supreme Court's intervention meant the names of those who signed a petition in opposition to a law that granted benefits to same sex partners would not be released prior to Election Day last year.

The state said it was required to disclose the names under the state Public Records Act but it faced opposition from various groups that oppose gay marriage rights.

In June, the Supreme Court decided the case narrowly, without reaching the question of whether the names should be released. Doe v. Reed, 2010 DJDAR 9570.

Instead, the court upheld the general right of states to release the names of people who sign petitions to put issues before a popular vote, holding on an 8-1 vote that the First Amendment rights of those who sign petitions are not automatically violated.

But the court said people who sign the petition could make case-by-case challenges to the release of names if they can persuade a federal judge that there is a likelihood of threats or harassment. The Washington petition signers now have a chance to do that before the state can release the names.

The eventual outcome in the case illustrates how the court's decision to grant a stay does not necessarily foreshadow the final ruling, Supreme Court watchers say.

Election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles, noted the stay in the case was not a surprise because the Supreme Court had merely maintained the status quo - specifically that the names were not in the public domain - until it had a chance to review the case on the merits.

But Hasen and others feel quite differently about the stay in the Arizona elections case because the stay was sure to have a direct impact on election season despite the fact that the court hadn't yet decided whether to hear the case on the merits.

The stay was "really surprising," Hasen said, because it seemed to contradict Supreme Court precedent stating that courts should not issue decisions that affect how elections are conducted in the middle of election season.

"It's hard to see how the Supreme Court can justify changing the rules," he said.

While the parties brief the case, a provision of a state campaign finance law, known as the Citizens Clean Elections Act, that provides extra public subsidies to candidates who are running against privately funded candidates, is on hold. Candidates in this year's elections who opted to take the subsidies, including sitting governor Jan Brewer, a Republican, are now at a disadvantage against candidates raising funds privately.

The law gives candidates the opportunity to receive public financing if they give up their right to raise private funds. The amount of funding varies depending on whether the candidate faces an opponent in the primary or general election. The provision of the law under scrutiny allows the candidate to get additional funding if they are being outspent by someone raising funds privately. Primary elections in the state take place on August 24. McComish v. Bennett, 09A1163.

Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law, who is in favor of campaign finance reform, described the court's action as "very irresponsible" because it threw "the entire system into chaos."

The decision to intervene indicates to Youn that the justices "are really not looking at the real-world consequences."

Nicholas C. Dranias, an attorney at the conservative Goldwater Institute in Phoenix, Ariz., who filed the application in the case on behalf of various political candidates, said he viewed the Supreme Court's actions quite differently.

Although the Arizona law was passed in 1998, the legal challenge was launched immediately after the Supreme Court issued a 2008 campaign finance ruling that cast into doubt the future of public financing. Davis v. FEC, 2008 DJDAR 9585. In that case, the court struck down a provision of the 2002 McCain-Feingold campaign finance law that increased the contribution caps for candidates running against self-financed opponents.

Dranias conceded that seeking a stay was a long shot but said he did so because he was so confident that the Arizona law was unconstitutional based on the ruling in Davis.

Criticism of the court's decision to grant the stay "has surface level appeal," he added, but ultimately, "the First Amendment is more important than the sanctity of politicians getting taxpayer funds."

Ultimately, the fact that the court granted the three stays in such a short period may have as much to do with the lawyers who filed the applications as with the justices, Akin Gump's Cahill noted.

In controversial cases in which lawyers like Dranias have strongly held convictions, "litigants are more likely to exhaust every potential opportunity," he said. "It's an illustration of the zealousness of the lawyers."

Posted 2:00 PM by Howard Bashman

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July 6, 2010

9th Circuit Reversals See Decline

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It was a good year before the U.S. Supreme Court for the much-maligned 9th U.S. Circuit Court of Appeals.

Traditionally, the 9th Circuit, which is often portrayed as out of touch, is the court most reversed by the Supreme Court. In the 2009-2010 term, the circuit was reversed or vacated 12 times and affirmed four times.

That reversal rate may seem high, but it's lower than in recent years. Last term, the court was reversed in 14 out of 16 cases. The 9th Circuit's reversal rate also compares well with some other circuits. The 7th Circuit was reversed in 10 of 11 cases and the 6th Circuit was reversed in all seven of its cases under review, according to statistics prepared by SCOTUSblog.com.

Chief Judge Alex Kozinski pronounced himself pleased with the reversal rate.

"I think we did really well," he said. The court's 75 percent reversal rate was actually slightly lower than the average for all the circuits this term, he added.

One of the court's leading conservative judges, Diarmuid F. O'Scannlain, described the overall rate as "a relatively good year for our court," although he pointed out that half of the reversals were unanimous.

Of the cases that were affirmed, only one was unanimous, he added.

For one of his liberal colleagues, Judge Kim McLane Wardlaw, the Supreme Court's focus on other circuits was welcome.

"I think the Supreme Court this year was an equal opportunity reversal machine," she said. In recent years, the justices "seemed to have it in for us," Wardlaw added.

The 9th Circuit reversal rate might have been higher but for two cases in which most Supreme Court watchers expected the justices to overrule the appeals court but that ended up coming out the other way.

One was a case in which the 9th Circuit, in an opinion by Judge A. Wallace Tashima, said that a Washington state public records law did not infringe on the First Amendment rights of anti-gay marriage campaigners who signed a petition calling for a referendum on a state law granting benefits to same-sex couples. The law requires names of petition signers to be released.

The Supreme Court, which initially granted a stay preventing the names from being released before Election Day in November 2009, ended up affirming the 9th Circuit on narrow grounds. Doe v. Reed, 2010 DJDAR 9570.

The court found on an 8-1 vote that the public records law was not unconstitutional in all situations but allowed the anti-gay rights activists the opportunity to argue on remand that it could be unconstitutional in situations where there is a possibility of threats and intimidation.

"They punted the major issue," said Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law.

The second case was a dispute over whether UC Hastings College of the Law could refuse to register a Christian group that wanted to bar gays from active membership. The 9th Circuit held in an unsigned opinion that there was no constitutional problem.

The Supreme Court held 5-4 that the law school's "all comers" policy that requires all student groups to allow anyone to join as members did not violate the First Amendment rights of the Christian Legal Society. Christian Legal Society v. Martinez, 2010 DJDAR 9821.

The court did not reach the bigger question of whether the law school's nondiscrimination policy, which prevents students from, among other things, discriminating on the basis of sexual orientation, itself discriminates against certain religious groups.

This case came out the way it did in part because it proved to be "factually messy and complicated" once the justices delved deep into the facts, according to Andrew J. Pincus, a partner in Mayer Brown's Supreme Court and appellate practice in Washington.

For Kozinski, who was part of the 9th Circuit panel, the case was an example of the kind of difficult issues the Supreme Court is required to take up.

"It could have come out either way," he said.

In the final analysis, the judges on the 9th Circuit who participated in those cases, "have to take a lot of comfort in these outcomes," said Thomas C. Goldstein, who co-heads the Supreme Court practice at Akin Gump Strauss Hauer & Feld and is SCOTUSblog's publisher. That's because the justices, while initially showing skepticism about the lower court's rulings, ended up endorsing them.

But, as in most years, there were some cases that fit the definition of a classic, liberal 9th Circuit ruling that the Supreme Court was likely to reverse.

The most obvious example was a habeas corpus case concerning a convicted child rapist. The Supreme Court initially scheduled the case for oral argument but then took the unusual step of summarily reversing it before the argument took place. McDaniel v. Brown, 2010 DJDAR 441.

The 9th Circuit ruling, written by Wardlaw, held that the district court could have considered evidence that wasn't in the record that questioned the reliability of the prosecution's DNA expert. The Supreme Court disagreed on a unanimous vote.

Wardlaw said she "totally expected" that outcome after the defendant's lawyers adopted a different approach at the Supreme Court level. The case was part of a trend in which the Supreme Court has been "further narrowing the habeas corpus right," she added.

The justices also summarily reversed the 9th Circuit in a second habeas corpus case in which the appeals court, in an opinion by Judge Stephen Reinhardt, found that the defendant had received ineffective assistance of counsel. In the per curiam opinion, the Supreme Court explicitly pointed out flaws and discrepancies in Reinhardt's analysis. Wong v. Belmontes, 2009 DJDAR 16107.

As for the other circuits with high reversal rates, habeas corpus was also the reason why the 6th Circuit attracted the attention of the justices. Of the seven cases the Supreme Court heard, five, including one summary reversal, were habeas corpus cases in which the appeals court had granted relief to the defendant only to be second-guessed by the justices.

The 7th Circuit, meanwhile, has had a high reversal rate in the past, but to have 10 cases reversed in one term is "certainly a disproportionate share of the docket," according to Arthur Hellman, a professor at the University of Pittsburgh School of Law.

Unlike the 9th Circuit, known for reaching liberal positions that are reversed by the more conservative Supreme Court, the 7th Circuit is more likely to issue rulings that are more conservative than the high court, he added.

One example this term was an immigration case in which the Obama administration, which won before the 7th Circuit, declined to defend the appeals court ruling before the Supreme Court. The 7th Circuit held that federal courts do not have the jurisdiction to review motions to re-open deportation proceedings. The Supreme Court reversed on a unanimous vote. Kucana v. Holder, 2010 DJDAR 903.

"There, the 7th Circuit was way out of line," Hellman said.

Akin Gump's Goldstein said the reversal rates for other circuits this term reinforces the idea that the 9th Circuit's traditionally high rate of reversal is as much a result of its diverse and heavy caseload as it is about the ideology of its judges.

"It's not that the Supreme Court has lost confidence in the 9th Circuit across the board," he added.

Posted 3:15 PM by Howard Bashman

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June 4, 2010

6th Circuit Takes Lead As Most Reversed Appeals Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.

Earlier this week, the justices reversed the Cincinnati, Ohio-based 6th Circuit for the seventh time in seven cases (including one summary reversal), meaning a 100 percent reversal rate for the term.

Of those, five, including the summary reversal, were habeas corpus cases in which the appellate court had granted relief to the defendant only to be second-guessed by the justices.

The most high-profile was this week's Miranda ruling, in which the court held on a 5-4 vote that a suspect's silence during a police interrogation did not invoke his right to silence. Berghuis v. Thompkins, 2010 DJDAR 8047.

Pro-defendant rulings in habeas corpus cases that are subsequently reversed by the high court are traditionally associated with the 9th Circuit, especially when the court's liberal figurehead, Judge Stephen Reinhardt, authors the opinion in question.

Due to its size and larger caseload, the 9th Circuit always takes up a greater proportion of the Supreme Court's docket than other circuits. It's too early to say what the 9th Circuit's reversal rate will be this term as only four of the 14 argued cases have been decided. Of those, three were reversals.

Kent S. Scheidegger, legal director of the conservative Sacramento-based Criminal Justice Legal Foundation, said it was "quite possible" that the 6th Circuit will, for this term, take the 9th Circuit's mantel as the circuit most at loggerheads with the Supreme Court - at least in terms of habeas corpus cases.

Although overall, the number of 6th Circuit cases under review was fewer than the number of 9th Circuit cases, it is more noteworthy because the circuit is smaller than the 9th, he added.

"To have that many reversals is even more significant than it would be for the 9th," Scheidegger said.

It's tough to make assessments about the 6th Circuit's reversal rate over several terms because the Supreme Court does not often review more than a handful of its cases each term. Last term, the justices reversed five out of five cases, but in the 2007-2008 term, the court only reviewed three 6th Circuit cases and reversed two.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

"These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA," he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General's office, said Thursday that the state is "going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations."

One has already been filed and another will be filed in the coming weeks, she added.

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said the increased attention the Supreme Court is paying to the 6th Circuit is similar to what 9th Circuit judges are used to.

"The justices and their clerks start to see a pattern and they then look at cases that fit the pattern," he said.

The Supreme Court is also sure to be aware of some highly contentious ideological splits among the judges in the circuit that have spilled over into opinions, Hellman added.

But the focus on the 6th Circuit this term does not suggest that the court is turning its attention away from the 9th Circuit's habeas cases, he said.

After all, the Supreme Court took up three 9th Circuit habeas cases this term, with two fitting the familiar profile.

In the first, Judge Kim McLane Wardlaw wrote the majority opinion granting habeas corpus relief to Troy Brown, a man convicted of sexually assaulting a 9-year-old girl.

The case was scheduled for argument but then removed from the calendar and summarily reversed. McDaniel v. Brown, 2010 DJDAR 441.

The second was another summary reversal, this time of a Reinhardt opinion granting habeas relief to a convicted murderer. Wong v. Belmontes, 2009 DJDAR 16107.

The third case, on the question of how to calculate good time credit for federal inmates, is less easy to categorize because the 9th Circuit ruled against the defendant.

U.S. District Judge Philip S. Gutierrez of the Central District of California, sitting by designation, wrote the opinion. The Supreme Court has yet to issue a ruling. Barber v. Thomas, 09-5201.

There are also already two 9th Circuit habeas cases on the docket for next term, indicating that it will be business as usual in coming years, Scheidegger said.

"It's dangerous to read too much into variations in one term," he added.

Posted 4:23 PM by Howard Bashman

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June 2, 2010

High Court Okays Torture Suit

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - In a major victory for a San Francisco-based human rights group, the U.S. Supreme Court Tuesday ruled unanimously that former officials of foreign countries are barred from claiming immunity under the Foreign Sovereign Immunities Act for alleged acts of torture.

The case marked the first trip to the court for the 12-year old Center for Justice and Accountability, based on Market Street.

CJA's clients are five Somalis who accuse a former Somali prime minister Mohamed Ali Samantar of various human rights violations. They can now pursue their claims against Samantar, who served as defense minister of Somalia during the 1980s when dictator Mohammed Siad Barre led the country. After the regime fell in 1991, Samantar ended up in Fairfax, Va.

The Supreme Court left open the possibility that Samantar could claim immunity under common law when the case returns to federal court in the Eastern District of Virginia. Under that scenario, which is based on case law and not on any specific federal statute, the State Department traditionally plays a major role in advising the court on whether a defendant should be granted immunity. The issue of whether Samantar can claim common law immunity was not before the court. Samantar v. Yousuf, 2010 DJDAR 8076.

The case began when the relatives 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.

Of the five plaintiffs, two - Yousuf and Aziz Deria - are United States citizens. Yousuf was detained, tortured, and kept in solitary confinement for six years, while Deria 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, with the help of Cooley Godward Kronish, filed suit 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 countered by arguing that a foreign state's immunity from lawsuits under the FSIA extends to individuals acting in their official capacities. The district court found that Samantar had immunity under the FSIA, but on appeal the 4th U.S. Circuit Court of Appeals disagreed.

The 9th Circuit is one of five federal appellate courts that had reached the opposite conclusion from the 4th Circuit. Chuidian v. Phil. National Bank, 912 F.2d 1095, 1103 (1990).

Justice John Paul Stevens wrote in his majority opinion that the FSIA "does not govern the determination" of whether Samantar can invoke immunity.

That's because the FSIA only refers to "foreign state" immunity, not the immunity of individuals.

Stevens wrote that "there is nothing to suggest" that the statute should extend to "an official acting on behalf of the foreign state."

He also stressed "the narrowness of our holding," which allows Samantar to assert common law immunity. Stevens noted that "it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state." In those situations, the former official could claim immunity.

Tuesday's ruling is the CJA's most high-profile victory to date. In the past, it has filed claims in U.S. courts against human rights abusers from such countries as Bosnia, Chile, and El Salvador. The group also represents human rights victims pursuing claims in Spanish courts for alleged violations that took place in Guatemala and El Salvador.

CJA's executive director, Pamela Merchant, described the ruling as a "tremendous victory" for her group that reinforces the idea that "accountability remains a priority in our country."

She is hopeful that her clients will prevail under the Torture Victim Protection Act, which "clearly contemplates that cases like this should go forward."

Merchant's point was reinforced by Sen. Patrick J. Leahy, D-Vt., the chairman of the Senate Judiciary Committee, who stressed in a statement Tuesday that Congress intended for the statute to be used against former officials of foreign countries. "The United States should not provide safe haven to those who use their position of authority to commit torture," he added.

Samantar's attorney, Shay Dvoretzky of Jones Day in Washington, said he expects his client to successfully assert common law immunity because the lawsuit relates to Samantar's official acts while in office.

"Lower courts should continue to hold that individual foreign officials are immune from suit for their official acts, as foreign courts do when U.S. officials are sued abroad," he said.

How the case is likely to come out remains unclear because the State Department has never stated a position on whether Samantar deserves immunity. The waters are muddied further by the fact that Somalia itself has been in political turmoil since Siad Barre's regime was overthrown in 1991.

Tuesday's ruling does not make resolution of the case any easier, according to Michael J. Edney of Gibson, Dunn & Crutcher in Washington, who filed a brief in support of Samantar on behalf of three former Republican U.S. attorneys general.

The problem with the ruling is that common law immunity is so unpredictable because it relies upon case-specific input from the State Department, which judges give "nearly dispositive weight," he said.

Edney had warned in his amicus brief that a ruling against Samantar could make foreign lawsuits against former United States officials more common.

"If you can't guarantee a reliable system of sovereign immunity, then other states will reciprocate," he said.

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.