Category Archives: Bench & Bar

Marty Lederman at SCOTUS Blog: Tom is right, however, that Tuesday’s oral argument raised the possibility of at least two additional outcomes: that the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case. So which of these seven outcomes is most likely?

Darwin, Grant R., Originalism and Same-Sex Marriage (February 15, 2013). University of Pennsylvania Journal of Law and Social Change, Vol. 17.1, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2239782 Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy …

Newsbusters: Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General — the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court — and was specifically asked about DOMA and same sex marriage (emphasis mine):

Mark Steyn at NRO: Three weeks ago, I wrote: An institution that predates the United States by several millennia will be defined for a third of a billion people by whichever way Anthony Kennedy feels like swingin’ that morning. The universal deference to judicial supremacism is bizarre and unbecoming to a free people.

NY Times: A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day.

Blog of the Legal Times: The Senate has confirmed Ketanji Jackson to become a judge for the U.S. District Court for the District of Columbia, filling the only open spot on the court.

The list is here.

Sacramento Bee: All eyes will be on Sacramento’s own Justice Anthony M. Kennedy this week when the U.S. Supreme Court hears oral argument in two important cases dealing with issues of fairness and equality under the law. These cases ask whether our Constitution allows same-sex relationships to be treated differently than their opposite-sex counterparts.

Pittsburgh Post-Gazette: Pennsylvania Supreme Court Justice Joan Orie Melvin submitted her resignation today, a month after she was convicted on public corruption charges.

Pew Research Center for the People and the Press: As the Supreme Court prepares to hear arguments on two same-sex marriage cases, and with several other high-profile cases on its docket, the court’s favorability rating remains close to an all-time low . . . Republicans’ views of the court, which tumbled 18 points following the court’s ruling on the health care law, have rebounded somewhat in the current survey . . .

NBC: A lesbian cousin of Chief Justice John Roberts will attend the landmark Supreme Court arguments on gay marriage and says she is confident he will see that gays deserve “dignity, respect, and equality under the law.”

Politico: Halligan had been nominated to serve on the U.S. Court of Appeals, District of Columbia Circuit, but Senate Republicans blocked her confirmation for the second time earlier this month despite lamentations from the White House that she was enormously qualified and had waited more than 700 days since being nominated the first time in 2011.

Bloomberg: President Barack Obama’s appointment of labor board members last year while most senators were out of town met skepticism from appeals court judges weighing whether he overstepped his constitutional powers.

SCOTUS Blog: Spectators seeking to get into the Supreme Court chamber for next week’s oral arguments on the same-sex marriage cases began lining up on Thursday at about 9 p.m. — more than four days before the first argument, Tuesday at 10 a.m.

Wall Street Journal: Fresh off his victory litigating the 2000 presidential-election case, Bush v. Gore, Theodore Olson was named President George W. Bush’s solicitor general and began looking for a brilliant young conservative to be his deputy. The job went to Paul Clement . . .

The Gazette: The U.S. Senate Judiciary Committee approved Assistant Federal Public Defender Jane Kelly’s nomination to the 8th Circuit Court of Appeals Friday.

CNSNews: Sen. Charles Schumer (D-N.Y.) said Democrats will “fill up the DC circuit one way or another,” even it means changing the rules in the Senate to get nominees confirmed.

Miami Herald: Like Cook, most of the lawyers who become members of the Supreme Court bar will never argue before the court. The justices hear only about 80 cases a year, and the majority of the lawyers arguing them are specialists who routinely appear before the court. Still, nearly 4,000 lawyers on average join the bar every year, and the fees they pay bring in more than $750,000 annually.

Pocono Record: Voters may not know as much as they should about statewide judicial candidates. But the common sense of ordinary citizens inspires more confidence than savvy, politically motivated power brokers in smoke-filled rooms. Pennsylvanians need judges who are willing to face the voters, not who owe their appointment to insider fat cats.

SCOTUS Blog: The Supreme Court on Friday afternoon released the list of lawyers who will argue in the two-week sitting that begins on Monday, including the line-up of attorneys who will argue the same-sex marriage cases in the second week of that sitting. The schedule for the marriage cases appears below the jump

Boston Globe: The Supreme Court will release audio recordings of next week’s arguments in two gay marriage cases just a few hours after they conclude.

Press Democrat: Viewing a public file at the Santa Rosa courthouse will cost $10 under a proposal from the state’s judicial branch that is drawing fire from critics who say it will limit access to public information.

Intelligencer Wheeling News-Register: They see the court also as a court that only reluctantly makes new law, whereas in the past I think they viewed it as a court that looked for opportunities to legislate.

FoxNews: President Obama nominated Justice Department official Thomas Perez for Labor secretary Monday — but the candidate could be haunted by a newly released report that found he gave incomplete testimony on the controversial decision to drop charges against members of the New Black Panther Party.

AP: President Barack Obama has chosen Thomas Perez, a top Justice Department official, to be the next secretary of labor, calling him a consensus builder whose “story reminds us of this country’s promise.”

Wall Street Journal (via Google): Chief Justice John Roberts preserved one of President Barack Obama’s main legacies—and helped forge his own—by largely upholding the president’s health-care law last year. Now, the two leaders’ places in history are entwined again, as the Supreme Court prepares to hear two gay-marriage cases later this month.

Damon W. Root at Reason: Many of his critics may be too ignorant to know it, but Thomas’ writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow. He may not be a modern liberal, but there is no question that Clarence Thomas is part of a civil rights tradition that started with Frederick Douglass.

SCOTUS Blog: At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on state power to require would-be voters to show proof of citizenship to register. Arguing for state and local officials in Arizona v. The Inter Tribal Council of Arizona (docket 12-71), will be Arizona Attorney General Thomas C. Horne, with thirty minutes of time.

The HIll: The cuts to the court system from sequestration are “simply unsustainable,” Justice Anthony Kennedy warned Thursday.

Jonathan Adler at the Volokh Conspiracy: Partisans in judicial nomination fights like to play the victim. As each side tells it, obstruction of judicial nominees is all the other side’s fault. Each act of contemporary obstruction is justified by some act of obstruction that came before. The reality, however, is that there are no clean hands in these fights any more. For over twenty-five years the two parties have been engaged in an escalating game of tit-for-tat. Each time the tables are turned, the opposition party retaliates in kind, and then some. Given the reactions to my post yesterday on judicial nominations, I thought it would be worth recounting the history (as I have before) — with the relevant data — and then to explain what it means. I’ll follow this up with a post on what I think should be done, in light of this history, to end the obstruction of judicial nominees.

Lyle Denniston at Constitution Check: Article II, defining the “executive power” of the national government, says that the president “shall take care that the laws be faithfully executed.” But the Constitution itself is obviously one of the laws undoubtedly within the president’s care, and the presidential oath makes that a binding duty. What does the occupant of that office do if legal advisers claim that a law passed by Congress is unconstitutional? Does it still get “faithfully” enforced?

AP: These varied family portraits of the justices are somewhat at odds with the arguments of gay marriage opponents who stress the unique ability of heterosexual couples to have babies as a reason to uphold bans on same-sex marriage.

Jack Balkin at Balkinization: At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices. I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?

Talking Points Memo: In a closed door lunch meeting with Senate Democrats on Tuesday, President Obama expressed his frustration with Republican slow-walking and filibustering of key nominees, and urged them to address the issue, according to a senior Senate Democratic aide.

Findlaw: The U.S. News and World Report law school rankings are out, reports Above the Law. Suddenly, the universe has meaning. Except a school ranking doesn’t make you more employable if you’re years out of law school.

Jonathan H. Adler at Volokh Conspiracy: As his Election Law Blog Rick Hasen has a fairly thorough summary of the just-released Justice Department Inspector General’s report on the politicization of the Civil Rights division. The bottom line: liberal and conservative employees of the division did not play well with one another.

Volokh Conspiracy: Below I’ve created a table listing the top fifty-five law schools according to their “peer” ranking on U.S. News, with the last column showing each school’s ranking according to the latest “scholarly impact” study conducted by folks at St. Thomas Law School.

Howard Bashman at the Legal Intelligencer: Appellate lawyers cannot help but experience an extra degree of excitement when an appeal on which they are working presents a question of first impression. All cases may be unique in some respect, but a true case of first impression appears infrequently.

SCOTUS Blog: This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

SCOTUS Blog: The National Labor Relations Board will seek to go on to the Supreme Court in a major constitutional test of the President’s power to make appointments to government offices when the Senate is out of town, the Board announced Tuesday.

Volokh Conspiracy: No real surprise here: the NLRB is going to skip seeking en banc review of Canning v. NLRB and petition for cert.  There are scads of other cases now working their way through the courts of appeals and this is a way of resolving the issue once and for all.

Blog of the Legal Times: Over the next month, lawyers and judges interested in serving on the U.S. District Court for the District of Columbia can apply for a judicial vacancy that’s expected to open up this summer.

How Appealing reports and links to the document.

Findlaw: Beyond that, most law schools just don’t prepare students for running a firm. Some would argue that schools don’t prepare them for practicing law, though that particular concern is slowly eroding as more schools add practice-based education and clinical opportunities. The New York Times highlights a few of these efforts, such as Hastings’ Lawyers for America initiative and trend of academic credit for externships. They also point out another more promising trend: the small firm incubator.

Jonathan Adler at Volokh Conspiracy: Over the weekend, the NYT published a highly misleading story about Republican filibusters of President Obama’s judicial nominees. Consider the very first sentence of the article: “A fresh feud over federal judgeships has again begun to agitate the Senate, with Republicans so far blocking President Obama from filling any of the four vacancies on the nation’s most prestigious and important appeals court.

David Fontana at Huffington Post: So maybe it is time to look outside of Washington, to look to the states for new and exciting judicial nominees who actually become judges. Why the states? Well, for one thing, there is less that Republicans who lose elections at the state level can do to block Democrats from getting progressive judges on the bench.

Blog of the Legal Times: The Senate unanimously confirmed Washington lawyer Richard Taranto to the U.S. Court of Appeals for the Federal Circuit on Monday, more than 17 months after he was first nominated for the position and more than a year after his confirmation hearing.

Wall Street Journal (via Google News): Senate Republicans used a filibuster last week to block the nomination of Caitlin Halligan to the D.C. Circuit Court of Appeals, and Democrats are in full boil. President Obama denounced “the Republican pattern of obstruction,” but Republicans are merely following the filibuster precedent that Democrats set when George W. Bush was President. Turnabout is unfair play.

The Montana Standard: The Montana Democrat will recommend that District Judge Susan Watters take U.S. District Judge Richard Cebull’s Billings seat and that Supreme Court Justice Brian Morris replace U.S. District Judge Sam Haddon of Great Falls.

SCOTUS Blog: Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by inexperienced (and often under-resourced) counsel instead of Supreme Court specialists are generally at a distinct disadvantage.

Business Insider: But neither of those cases dealt with marriage, and Kennedy made some remarks last week that have some members of the gay community on edge.

Wall Street Journal (via Google): orthwestern University School of Law, one of the country’s top law schools, said it will reduce the size of its incoming class by about 10%, citing declining applications and a “shakeout” in the market for legal jobs.

The Hill: President Obama plans to nominate Thomas Perez, who heads Justice Department’s Civil Rights Division, to become the next secretary of Labor, according to reports.

Washington Post: O’Connor was in the panel majority that said Arizona’s requirement of proof of citizenship when registering to vote in federal elections conflicted with federal law.

Wilson Times: A Supreme Court justice has responded to an 11-year-old Wilson girl’s heartfelt appeal for federal recognition of same-sex marriage.

National Law Journal: The Multistate Bar Exam is getting its first major update in nearly four decades. Starting in 2015, civil procedure will be added to the 200-question, multiple-choice exam that almost all aspiring lawyers must take. (Louisiana is the only state that does not use the MBE).

Law.com: Can’t pass the bar exam? Here’s a $10,000 refund. Two law schools are experimenting with refund programs for graduates who don’t pass the bar examination after two tries, provided they complete a rigorous set of bar preparation courses beforehand.

AP: Clark County District Judge Elissa Cadish submitted a letter to the senators, made public Friday, saying she asked President Barack Obama to withdraw the nomination after it appeared to have reached an impasse.

Sentencing Law and Policy Blog: Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).

NPR: It’s not solely Senate Republicans who are to blame for the headless government. Obama has failed to put forward nominees for some posts, and Light says the president is “moving at a snail’s pace” to make other nominations. Light says the administration also has “the longest questionnaire in the presidential history for vetting people who might become nominees. It’s brutal.” That serves to discourage some people from wanting to become nominees in the first place.

SCOTUS Blog: We present the results of a new study, which offers significant methodological improvements over past studies by combining experimental and observational elements . . . We found that even when ruling on highly controversial and politicized issues – such as the health care and immigration rulings we considered – the Supreme Court can change public opinion.

NY Times: When Douglas J. Sylvester, dean of the law school at Arizona State University, was visiting the Mayo Clinic in Minnesota a couple of years ago he mentioned the shifting job market for his students — far fewer offers and a new demand for graduates already able to draft documents and interact with clients. The Mayo dean responded that his medical students and graduates gained clinical experience in hospital rounds closely supervised by attending physicians.

Seattle Times: Struggling to respond to a state Supreme Court order to put more money into education, some state Senate Republicans on Wednesday came up with a way to save a bit of money: reduce the size of the court. Senate Bill 5867, introduced Wednesday morning, would reduce the court from nine members to five (the minimum allowed in the state constitution).

Sacramento Bee: “A democracy is only as strong as you make it, and you can’t make it strong unless you know its history,” he told high school students Wednesday at the federal courthouse.

Bloomberg: The Feb. 28 Virginia ruling is the first appellate decision addressing the application of the First Amendment to lawyer blogging, according to Bloomberg BNA Law Reports. The question of when and how attorneys may market themselves via blogs and websites has become a hot topic in legal circles. | Hunter v. Va. State Bar

AP: “Out of Order: Stories From the History of the Supreme Court” (Random House), by Sandra Day O’Connor

SCOTUS Blog: Greenhouse and Siegel use the source materials republished in the book to challenge the conventional wisdom that, “if the Court had stayed its hand or decided Roe v. Wade on narrower grounds, the nation would have reached a political settlement and avoided backlash.” Once again, Linda Greenhouse has graciously agreed to answer a few questions about her work on this subject.

Washington Times: President Obama’s effort to reshape the federal judiciary will enter a new phase of open warfare with Republican lawmakers Wednesday when the Senate votes on whether to break the filibuster of Caitlin Halligan’s nomination for a seat on the prestigious D.C. Circuit Court of Appeals.

The Hill: In a subcommittee hearing on Tuesday, two legal scholars said that the Regulations From the Executive in Need of Scrutiny (REINS) Act would be held constitutional despite arguments it would infringe upon the power of the Executive Branch.

Washington Times: Facing the stiffest Republican opposition to a judicial nominee in two years, the White House is pushing for a confirmation vote this week on Caitlin Halligan’s appointment to the U.S. Court of Appeals for the D.C. Circuit.

Above the Law: These days, now that word has gotten out that employment in the entry-level legal sector has run dry, law school applications are on pace to hit a 30-year low. You’d think that given the gravity of the situation — not to mention the ebb and flow of class action lawsuits having to do with job statistics — law schools do their best to comply with the ABA’s standards, but apparently even that’s too hard to do.

Washington Blade: The U.S. Senate on Monday evening made history with little difficulty when it confirmed the first openly gay Asian-American for a seat on the federal bench. By a voice vote, the Senate confirmed Pamela Ki Mai Chen, a lesbian, for a seat on the U.S. District Court for the Eastern District of New York.

Columbia Law School: Amicus Brief Argues U.S. Supreme Court Should Consider Example of Other Liberal Democracies, Which Have Determined Excluding Gay Couples From Marriage Violates Their Fundamental Rights

NRO Bench Memos: The Witherspoon Institute’s William E. and Carol G. Simon Center on Religion and the Constitution, which I have the honor to direct, will again sponsor its annual summer seminar this year, “The Moral Foundations of Law.” Held August 5 to 9, 2013, on the campus of Princeton University . . .

Christian News Network: The Commonwealth of Virginia has sworn in its first openly homosexual judge, according to reports.