Category Archives: Bench & Bar

Legal Times: “It is not unreasonable for the American people to have an opportunity to hear firsthand the arguments and opinions that will shape their society for years to come,” Durbin wrote to Roberts in a letter released Tuesday.

Glenn Greenwald at The Guardian: Obama and other NSA defenders insist there are robust limitations on surveillance but the documents show otherwise

SCOTUS Blog: . . . two victim restitution cases, Amy and Vicky, Child Pornography Victims v. U.S. District Court for the Western District of Washington, 12-651, and Wright v. United States, 12-8505 (involving the role of proximate cause in restitution for children depicted in child pornography)

Talking Points Memo: Senate Minority Leader Mitch McConnell (R-KY) on Tuesday starkly warned Majority Leader Harry Reid (D-NV) not to eliminate the filibuster on presidential nominations, threatening to end the 60-vote threshold for everything, including bills, if he becomes the majority leader.

Reuters: The case, Ray Haluch Gravel v. Central Pension Fund, raises the question of whether a federal district court’s ruling on the merits that leaves unresolved a request for contractual attorneys’ fees is a final decision – and thus appealable – or whether the decision is not appealable until the court has ruled on contractual attorneys’ fees.

Findlaw: We’ve pontificated a bit about the decrease in applications, applicants, and demand for law school seats. We’ve also speculated on what that means for wannabe-lawyers. Now, we’re getting concrete examples of the fallout from the law school bubble-burst.

Talking Points Memo: Senate Democrats moved Monday to schedule a confirmation hearing for Patricia Millett, one of President Obama’s three nominees to the D.C. Circuit Court of Appeals.

Pittsburgh Post-Gazette: The state Supreme Court Monday found that judges challenging Pennsylvania’s mandatory retirement age had no legitimate claim and instead said that the proper way to change it is through constitutional amendment.

Findlaw: With NSA surveillance all over the news, you may be wondering: What is FISA? The Foreign Intelligence Surveillance Act (FISA) regulates the government’s conduct of intelligence surveillance inside the United States. The law generally requires the government to seek warrants before surveilling “agents of a foreign power” engaged in espionage or terrorism. In practice, it grants the government wide surveillance authority.

Below is a general overview about what FISA is and what the FISA court does.

John Elwood at the Volokh Conspiracy: Predictions are hard–especially about the future. But it looks like Justice Alito probably was assigned the Bartlett opinion, and the Chief Justice and Kennedy are splitting DOMA and Prop 8. Now who has which, and what are they writing?

Robert Barnes at the Washington Post: That’s not an accusation of sloth but a reflection of reality. As the court heads into the crucial final weeks of the term, it is apparent that the great majority of remaining decisions will be authored by the court’s most consistent conservatives.

Religion Clause Blog: On Thursday, Alliance for Justice submitted a letter (full text) in support of the misconduct complaint to the chief judge of the D.C. Circuit. It says that there is a long pattern of prejudicial statements and actions by Judge Jones, including her repeatedly speaking of the primacy of religion above law.

10TV.com: The associate director of the American Civil Liberties Union of Ohio says the Obama administration is worse than its predecessor on issues of transparency.

SCOTUS Blog: Trying to predict the author of any given Supreme Court opinion is often a fool’s errand. The pattern by which Justices are assigned opinions isn’t entirely fixed. And the original author can lose the majority to some other member of the Court. That said, across an entire Term, the Chief Justice — who does most of the opinion assignments, because he generally is in the majority — does attempt to distribute the workload evenly. If that pattern holds this Term as well, then one feature of the remaining cases is noteworthy.

Houston Chronicle: Chief Justice John Roberts of the U.S. Supreme Court formally ordered on Wednesday that a rare public judicial misconduct complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones be reviewed by officials in a different circuit — one based in the nation’s capital.

National Law Journal: A study released on Tuesday by the American Constitution Society for Law and Policy identified a “statistically significant” relationship between ballooning campaign contributions by business interest to state supreme court candidates and pro-business decisions by those courts.

PennLive.com: Gov. Tom Corbett plans to nominate state appeals court Judge Correale F. Stevens to temporarily fill a vacancy on the state Supreme Court.

Blog of the Legal Times: Earlier this week, Chief Justice John Roberts Jr. announced he was tapping U.S. District Judge John Bates to lead the Administrative Office of the U.S. Courts. Bates is expected to continue serving as an active judge, but his appointment has created a new seat on Washington’s federal trial court for the White House to fill.

SCOTUS Blog: A federal judge in Washington on Wednesday took away part of the Supreme Court’s power to limit picketing, protests, and other demonstrations on the marble plaza at the front of its building on Capitol Hill.  The judge voided all of the sixty-four-year-old law at issue, but then said she meant her ruling to apply only to the plaza even though the law sweeps more broadly than that.   The judge’s opinion is here.

National Review Bench Memos: This is a favorite talking point of George Soros and his allies, who want to replace judicial elections with the trial-lawyer dominated “merit” selection method. The only problem is the empirical evidence doesn’t support Justice O’Connor’s conclusion.

Wiggin and Dana: States are unlikely to reach consensus, so they should aim to reduce role of money, regardless of selection method.

Religion Clause Blog: As reported by the Austin Chronicle and Courthouse News Service, six civil rights groups and seven individuals, most with special expertise in legal ethics, last week filed judicial misconduct charges against U.S. 5th Circuit Judge Edith Jones primarily over comments she made in a lecture titled “Federal Death Penalty Review.”

Volokh Conspiracy: After this decision, Brewington posted various items online “discussing Judge Humphrey, in which he described the judge as ‘corrupt,’ and accused him of engaging in ‘unethical/illegal behavior.’ He also repeatedly referred to the judge as a child abuser.” Brewington was then prosecuted for, among other things, violating Indiana Code § 35-45-2-1, which (in relevant part) criminalizes as “intimidation” . . .

MPR: Former U.S. Supreme Court Justice John Paul Stevens shares his views on controversial court decisions and the inner workings of the court, in a candid interview at the JFK Library in Boston May 20, 2013. Stevens comments on Bush v. Gore, Citizens United, affirmative action and same-sex marriage.

National Journal: He was a Reagan-appointed judge and a Clinton-appointed prosecutor respected by both sides. Then it all fell apart.

CNN: There may seem to be a contradiction between the Clarence Thomas who was the angry campus radical in the 1960s and the conservative hero who sits on the Supreme Court today. But some legal observers say Thomas sees himself as a “prophetic civil rights leader” who is still fighting for the same cause — a colorblind America.

Juan Williams at The Hill: It is difficult to see how the Chief Justice arrives at such a consensus with these four culture war cases. It is more likely the decisions will give way to even more heated emotions, including anger and a further erosion of trust in yet another major American institution.

SCOTUS Blog: We have put together a list of some of the commonly asked questions about opinion announcements that we have gotten during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

Adam Liptak at NY Times: Although no comprehensive record of gay Supreme Court law clerks exists, Joyce Murdoch and Deb Price — authors of “Courting Justice,” a 2001 history of gay rights cases at the court — identified 18 gay men and four lesbians who had been clerks. Ms. Murdoch and Ms. Price also found that the justice most likely to hire gay clerks was the one who said he had never met a homosexual.

The list is here.

Gerard Bradley at NRO: They say that Jones said something like “Death penalties serve the condemned by forcing them to face God.” Well, of course they do — if there is indeed a God. I believe there is, and until I read this story, I thought Judge Jones had a “civil right” to believe there is, too. Most religions maintain that after death there is some sort of divine judgment. Surely Christianity maintains that it is so.

Above the Law: Chaos is a ladder. And right now, the legal education business is chaotic. Prospective law students are starting to wise up to the law school game. Applications have been dropping as law schools struggle to explain how it makes sense to go deep into debt just to participate in a very challenging job market.

Blog of the Legal Times: Supreme Court Justice Sonia Sotomayor’s bestselling memoir about growing up in poverty has earned her more than $3 million, including $1.9 million in advances on royalties she received last year.

Politico: Changing the rules to make it easier to confirm President Barack Obama’s executive branch or judicial appointments may help the White House in the short term, and railing against Republican filibusters plays well with the Democratic base. But privately, that base and abortion rights supporters are concerned how a future GOP president and Senate could take advantage of the new setup.

NPR: I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?” Scalia asked. “When did the law become this?” Marshall says for her, the answer was clear: “When the states started giving huge benefits and privileges to one section of the population.

How Appealing links to the ruling and media reports.

National Law Journal: Two former tenured professors have sued the Phoenix School of Law and the company that owns it, claiming that they were improperly fired after raising concerns about what they called a drive for profits at the expense of students and faculty.

Ken Klukowski at Breitbart: Constitutional protections do not forbid police from taking DNA samples from those arrested for serious crimes, according to the Supreme Court in its 5-4 decision Monday in Maryland v. King.

Washington Post: President Obama will nominate two female lawyers and an African American federal judge Tuesday to serve on the U.S. Court of Appeals for the District of Columbia Circuit, part of an effort to help reshape the federal judiciary before he leaves office.

Religion Clause Blog: As reported by AP, yesterday Missouri Governor Jay Nixon vetoed (full text of veto message) S.B. No 267, the Civil Liberties Defense Act, which provided that any ruling by a court or tribunal will be void and unenforceable if it is based on any foreign law, legal code or system that is repugnant or inconsistent with the Missouri or U.S. constitutions.

AP: Issuing a forceful challenge to Senate Republicans, President Barack Obama nominated three judges to the influential federal appeals court in Washington, declaring that the GOP has “cynically used Senate rules and procedures” to delay and block past nominees.

Reuters: In a major victory for law enforcement agencies, a divided Supreme Court on Monday ruled that police can take a DNA sample from someone who has been arrested and charged but not convicted of a serious crime. | Maryland v. King

The Atlantic Wire: New Jersey Gov. Chris Christie can name a successor for Frank Lautenberg, who died at the age of 89 on Monday, becoming the 299th Senator to pass away in office. But it’s yet another moment when what’s good for Christie in 2013 might not be good for him in 2016.

The Hill: The chairman of the House Judiciary Committee on Sunday said the panel is “very concerned” about the possibility Attorney General Eric Holder committed perjury by testifying under oath that he was not aware of an investigation of a Fox News reporter.

Above the Law: By All Means, Allow Law Students and Grads to Work for Free

The ABA agrees that exploitation of law students and other interns is unacceptable; however, the FLSA uncertainty inhibits law firms from offering students the opportunity to work on pro bono matters in a real-life practice setting. …

Portland Press Herald: The D.C. Circuit court should be allowed to regain full strength without political maneuvering.

NY Times: Senate Majority Leader Harry Reid has vowed to crack down on Republican filibusters several times with no effect, so it’s hard not to feel dubious about his latest threat to change Senate rules if Republicans continue to block President Obama’s nominations. He claims he is considering eliminating the 60-vote threshold to approve judicial and executive nominees.

Ed Whelan at NRO: The White House is expected to demand quick Senate action on its impending nominations to the D.C. Circuit. Any such demand ought to be considered against the backdrop of the Senate’s treatment of President George W. Bush’s nominees to that court . . .

The Hill: The top two Republicans on the House Judiciary Committee have initiated an investigation into whether Attorney General Eric Holder lied under oath during his May 15 testimony on the Justice Department’s (DOJ) surveillance of reporters.

The Hill: President Obama is seeking to retake the political offensive by launching a new battle that seeks to highlight Republican “obstructionism.”

The Hill: President Obama’s forthcoming push to seat three judges on one of the nation’s most influential benches holds major implications for high-profile fights over ObamaCare, financial reform and other policy priorities.

Breitbart: The U.S. Senate on Thursday unanimously confirmed Sri Srinivasan to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit by a vote of 97-0, and he should already be considered someone on President Obama’s short list for the Supreme Court.

The Hill: The House Judiciary Committee is investigating whether Attorney General Eric Holder lied under oath during his May 15 testimony on the Justice Department’s (DOJ) surveillance of reporters, an aide close to the matter told The Hill.

AP: The Senate voted unanimously on Thursday to confirm Sri Srinivasan to the U.S. Court of Appeals for the District of Columbia Circuit.

Talking Points Memo: But the votes won’t necessarily be dispositive of the outcome. Sources familiar with Reid’s thinking say he’s exhausted with GOP obstruction and is ready to end the filibuster for nominations, but they caution that he doesn’t necessarily have 51 votes to make it happen.

The Morning Call: Activists Tim Potts and Eric Epstein said the binder — filled with news articles and editorials critical of Castille’s legal decisions or scandals that have happened under his watch as chief justice — are proof that Castille does not deserve another 10-year term on the state’s highest court.

NJ.com: Gov. Chris Christie called Associate Justice Barry Albin a “grandstander” and said the justices choose to break their silence on public issues that benefit themselves.

LA Times: Senate Majority Leader Harry Reid said Tuesday that he will delay votes on several of President Obama’s nominees for key posts until July, a decision raising the prospect that he’ll seek further changes to Senate rules that would allow executive appointments to be confirmed by a simple majority.

Washington Blade: The Senate confirmed a gay Oregon judge to the federal bench on Monday after nearly an eight-month wait from when he was first nominated by President Obama.

Talking Points Memo: Senate Majority Leader Harry Reid (D-NV) is telegraphing his intention to use the nuclear option to reduce or eliminate the filibuster for nominations this summer if Republicans follow through with their threats to block President Obama’s upcoming nominees.

Ken Klukowski at Breitbart: Several major cases will be decided by the Supreme Court over the next six weeks, including historic issues such as gay marriage and affirmative action. These cases make the remainder of the Court’s term—which ends in June—one of the most carefully watched terms by millions of Americans.

Here.

National Law Journal: Harvard Law School has announced a pilot program under which Harvard undergraduates may apply and gain acceptance during their junior year, provided they agree to work for two years in between graduation and beginning their legal studies. If the pilot program succeeds, the law school might expand eligibility to juniors at other universities, assistant dean and chief admissions officer Jessica Soban said.

Weekly Standard (includes video): California congressman Devin Nunes made the claim yesterday that the Justice Department wiretapped telephones in the House of Representative’s Cloak Room, an exclusive part of the Capitol where members are able to privately interact with one another. Nunes made the claim on Hugh Hewitt’s radio show.

Politico: What should Obama do to take advantage of this momentum? It is time for him to focus on a neglected but important part of the nominations process: the problems with how senators supply the president with candidates to be nominated to the federal bench.

Chicago Weekly: Ginsburg’s decades-long struggle for women’s rights is likely to prove one of the most persistent endeavors in modern American legal history, but she expressed sadness that the prevailing attitude toward such efforts to advance gender equality remains lukewarm at best: “In some places, the word ‘feminism’ is the ‘F’ word.”

AP: The Senate Judiciary Committee has approved three of President Barack Obama’s judicial nominees for a full Senate vote — including one for the influential D.C. Circuit Court of Appeals.

Washington Post: Recent law school grads face a tough job market, daunting student loans and — if they land a job — a demanding work environment. Steven Harper’s “The Lawyer Bubble: A Profession in Crisis”serves as a wake up call and warning for students disillusioned by the prestigious lawyers they watch on T.V.

The Hill: Holder said he recused himself early on in the DOJ’s investigation of what he described as some of the most serious leaks from government officials that jeopardized national security.

The Hill: “Attorney General Eric Holder, in permitting the Justice Department to issue secret subpoenas to spy on Associated Press reporters, has trampled on the First Amendment and failed in his sworn duty to uphold the Constitution,” said Priebus in a statement.

Fox News (AP): The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

Chicago Tribune: Forty years after the U.S. Supreme Court’s landmark Roe v. Wade case legalized abortion, Justice Ruth Bader Ginsburg said the case is not her “ideal picture” for resolving the controversial issue of abortion.

NY Times: President Obama’s latest cabinet-level nominees are running into deep resistance in the Senate, pitching Democrats and Republicans into another tense standoff over White House appointments.

The Hill: “That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she said Saturday. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

SCOTUS LiveBlog is reporting that the U.S. Supreme took no action in Town of Greece v. Galloway (legislative prayer case) or Elmbrook School District v. Doe (public high school graduations in church buildings).