Category Archives: Bench & Bar

Robert Barnes at Washington Post: Instead, the nine brandish definitions as a way to dress up their subjective decisions with an “objective veneer,” they say.

The Concord Monitor interviews former Justice David Souter: Warner: But you do not think as some believe – Justice (Antonin) Scalia being one – that you can stick to what he calls the fair reading of the text, which he says is basically what a reasonable reader would understand the text meant at the time of its adoption? Souter: No, you cannot stick to that. I gave a speech a couple years ago in which I gave an example of why simply reading doesn’t do it. That is, if you look at the text of the First Amendment, “Congress shall make no law abridging the freedom of speech and so on,” no law sounds pretty tough. But in fact everybody recognizes – conservatives, liberals – there are some laws that Congress can make that in a practical sense do limit the freedom of speech.

National Review Bench Memos: Great news out of Kansas. The Kansas senate overwhelmingly passed judicial selectionreforms on Wednesday. The constitutional amendment, required for the Kansas supreme court reforms, passed with a 28-12 vote, while the Senate Concurrent resolution, required for the Kansas Court of Appeals reforms, passed with a 29–10 vote, with one abstention. The Capital Journal has more . . .

Wall Street Journal: Law-school applications are at their lowest in a decade, but that hasn’t stopped a handful of colleges and universities across the nation from opening new law schools.

Fed Soc: Today, President Obama nominated Jane Kelly and Gregory Alan Phillips to the United States Court of Appeals.

Trib.com: President Barack Obama on Thursday nominated Wyoming Attorney General Gregory Phillips for the United States Court of Appeals for the Tenth Circuit.

Aaron Zelinsky at Huffington Post: The federal judicial branch is in crisis. No, I’m not talking about marriage equality, the Voting Rights Act, or corporate financing of elections. Judges have a problem with how they hire their law clerks.

Cleveland.com: “While I recognize capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold,” O’Neill wrote in his dissent.

The Hill: Sen. Roy Blunt (R-Mo.) on Wednesday said he and freshman Sen. Ted Cruz (R-Texas) are putting forward legislation that would cut the salaries of the two National Labor Relations Board (NLRB) members who were recess-appointed last year.

NY Times: Law school applications are headed for a 30-year low, reflecting increased concern over soaring tuition, crushing student debt and diminishing prospects of lucrative employment upon graduation.

Above the Law: Yesterday the D.C. Circuit announced that its judges won’t be participating in the Law Clerk Hiring Plan.

Fox News: Massachusetts Gov. Deval Patrick has selected his former chief-of-staff William “Mo” Cowan to serve as interim U.S. senator until a special election to fill the seat left vacant by Secretary of State designate John Kerry.

SCOTUS Blog: Political polarization in Congress seems to be affecting the relationship between Congress and the Supreme Court, inadvertently strengthening the Court at the expense of Congress. These days – unlike in the past – Congress rarely overrides the Supreme Court’s statutory decisions. Yet the same congressional polarization that is strengthening the Court is likely to spill over into the Supreme Court nominations process, greatly increasing the risk of a Senate filibuster when the next conservative Justice leaves the Court.

The HIll: Sen. John Kerry (D-Mass.) sailed through the chamber in a 94-to-3 vote, with Sen. James Inhofe (R-Okla.) and Texas Sens. Ted Cruz (R) and John Cornyn (R) casting the only “no” votes.

Wall Street Journal (via Google):

AP: The Senate Foreign Relations Committee is scheduled to vote Tuesday on President Barack Obama’s nomination of Sen. John Kerry to be the next secretary of state.

SCOTUS: The spreading constitutional controversy over President Obama’s use of the power to appoint government officials when the Senate is not in full session has now reached all but three of the federal courts of appeals, with thirty separate challenges.  So far, only one of the cases has been decided — the overwhelming defeat of the President’s position by the D.C. Circuit Court last Friday.

The job description is here.

Abstract. It is generally assumed that the Constitution requires the Senate to vote to
confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary,
that when the President nominates an individual to a principal executive branch position, the
Senate’s failure to act on the nomination within a reasonable period of time can and should be
construed as providing the Senate’s tacit or implied advice and consent to the appointment. On
this understanding, although the Senate can always withhold its constitutionally required
consent by voting against a nominee, the Senate cannot withhold its consent indefinitely
through the expedient of failing to vote on the nominee one way or the other. Although this
proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues
that this reading of the Appointments Clause would not contravene the constitutional text,
structure, or history. The Essay further argues that, at least under some circumstances, reading
the Constitution to construe Senate inaction as implied consent to an appointment would have
desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action
on presidential nominations.

Wall Street Journal: The ditty struck a nerve—and brought down the house, a largely pinstriped crowd of 80 or so lawyers there for a musical refresher course on the virtues of civility. But it is no laughing matter to those who fret that a tide of rudeness has engulfed the legal profession.

Paul Campos at Salon: The Supreme Court justice is paid thousands to “teach” in Europe — and his law students are footing the bill

Reuters: On separate occasions in recent days, lawyers on opposite sides of a Supreme Court fight over same-sex marriage took an elevator to the fifth floor of the Department of Justice, entered a large conference room and made a pitch to Solicitor General Donald Verrilli and other top Obama administration lawyers.

Breitbart (video) carries the CBS segment: From Georgetown law professor Louis Michael Seidman: I’ve got a simple idea: Let’s give up on the Constitution. I know, it sounds radical, but it’s really not. Constitutional disobedience is as American as apple pie. For example, most of our greatest Presidents — Jefferson, Lincoln, Wilson, and both Roosevelts — had doubts about the Constitution, and many of them disobeyed it when it got in their way.

The Hill: The Senate enacted modest reforms to its filibuster rules with votes Thursday evening that kept bipartisan relations intact but left disappointed liberal groups fuming.

Boston Globe (AP): The Democrat on Thursday announced he has tapped Superior Court Judge Christine Keller to serve on the Connecticut Appellate Court. Keller is married to former House Speaker Thomas Ritter of Hartford.

Ed Whelan at National Review Bench Memos: As this Politico article reports, Senate majority leader Harry Reid and Senate Republican leader Mitch McConnell agreed today to some changes to the Senate rules governing filibusters but rejected the “more sweeping changes” that some on the Left were urging. I won’t try to summarize here the changes that affect legislation and executive-branch nominations . . .

AP: The Senate’s senior Democrat and Republican reached a tentative agreement Thursday to impose modest limits on the filibuster, the delaying tactic that minority parties have long used to kill legislation.

Detroit News: Bridget Mary McCormack was sworn in as Michigan’s newest Supreme Court justice Wednesday afternoon in a festive and traditional investiture ceremony attended by family and friends.

Daily Writ: I have a new Article out in the Journal of Legal Metrics entitled Top Supreme Court Advocates of the Twenty First Century. You can download the article here here. This Article identifies the Supreme Court litigators who have argued at least five times since October 2000, making them — by some measures — “expert Supreme Court litigators.”

Blog of the Legal Times: Senate Republicans are holding up the nomination of Sri Srinivasan for the U.S. Court of Appeals for the D.C. Circuit, saying they want to know more about his role in the abrupt settlement of a Fair Housing Act case a year ago.

National Review Bench Memos: Hearings in Kansas over judicial selection reform continued yesterday, as two members of Kansas’s judicial nominating commission testified for the House Judiciary Committee. They attested to what Bench Memos readers already know—that the commission masks partisan politics in the name of “merit.”

Fisher, Jeffrey L., A Supreme Court Clinic’s Place in the Supreme Court Bar (February 29, 2012). Stanford Law Review, Vol. 65, 2012 ; Stanford Public Law Working Paper No. 1921430 . Available at SSRN: http://ssrn.com/abstract=1921430 or http://dx.doi.org/10.2139/ssrn.1921430

Blog of the Legal Times: Five federal judicial nominees got a nomination hearing Wednesday before the Senate Judiciary Committee, a sign that Democrats will continue to push aggressively to reduce the historically high number of vacancies on the federal bench.

The HIll: The Nevada Democrat said he would give Republicans another 24 to 36 hours to agree to filibuster reform and then trigger the so-called nuclear option. This controversial tactic would allow him to change the Senate rules with a simple majority vote.

The Hill: Senate Majority Leader Harry Reid (D-Nev.) will present colleagues with options for reforming the Senate’s filibuster rules in a Democratic Caucus meeting Tuesday.

Charles J. Cooper at Washington Times: A case now before the U.S. Supreme Court could clarify a 200-year-old mistake by the great Chief Justice John Marshall. Standard Fire v. Knowles concerns judicial forum shopping and the interpretation of the Class Action Fairness Act, but it also reinvigorates a long-running debate about federal court jurisdiction.

UVA: When University of Virginia law professor Toby Heytens was a law student, he was a self-described “law nerd” with a keen interest in constitutional law and the Supreme Court. Yet Heytens found the U.S. Office of the Solicitor General — which represents the federal government before the Supreme Court — to be a bit of a mystery.

Reuters: The power of federal government agencies over local authorities was at issue before the U.S. Supreme Court on Wednesday, in two complex cases whose outcome could affect the spread of wireless telephone services nationwide.

AZ Central: Despite winning many battles over the past four decades, anti-abortion forces may be losing the war.

SCOTUS Blog: Something really big, and potentially decisive, happened to a major new property rights case between the time the Supreme Court took it on, and Tuesday’s argument by lawyers before the Court. The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk.

Washington Post: Virginia’s General Assembly appears poised to put an openly gay judge on the bench Tuesday, reversing itself on one of the most contentious issues of last year’s session.

Huffington Post: House Republican leaders have signed on to spend up to $3 million to keep defending the Defense of Marriage Act in court, according to a copy of their newly revised legal contract obtained by The Huffington Post.

Aaron Greenspan: Most lawyers turn to outrageously priced, subscription information services such as LexisNexis, Westlaw, and Bloomberg Law to get their case information. Those services simply compile data from PACER and mark up the cost, which ultimately gets passed on to clients, who pay even more. In other words, most lawyers love PACER because it helps them make money—or they just don’t care either way. Meanwhile, the public is harmed as the cost of litigation soars, and key legal arguments are priced out of reach (especially for pro se plaintiffs who represent themselves).

Jess Bravin at Wall Street Journal: Sonia Sotomayor’s memoir being published this week gives a fuller—and sometimes harrowing—dimension to the tale of her rise from a Bronx, N.Y., housing project to the nation’s highest court.

Law360.com: The federal government has asked the U.S. Supreme Court to weigh in on a Federal Circuit en banc ruling that found congressional efforts to withhold judicial salary adjustments violated the compensation clause of Article III of the U.S. Constitution.

Christian Post: Stanford Law School has established the nation’s only Religious Liberty Clinic, enabling students under the professor’s supervision to represent clients who are fighting to win legal battles on the grounds of religious freedom in America.

The New Republic: Much less is known, however, about old friendship between Olson and their opponent in this case, Charles Cooper, one of the many lawyers who helped Olson on Bush v. Gore. Cooper and Olson are both part of Washington’s tiny tribe of top-flight conservative litigators.

SCOTUS Blog: The Supreme Court on Monday turned down a plea by the national Republican party to free it from a three-decades-old court order that limits its right to challenge voters’ qualifications.

Detroit Free Press: Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged “blatant and brazen violations” of judicial conduct rules the commission said were “unprecedented in Michigan judicial disciplinary history.”

Hartford Courant: Gov. Dannel P. Malloy nominated state Appellate Court Judge Carmen Espinosa on Monday to become the first Hispanic justice of the state Supreme Court.

Cass Sunstein at Bloomberg: In recent years, those who study federal courts have started to test these claims by analyzing many thousands of judicial votes. Armed with actual data, the researchers are finding that much of the conventional wisdom is wrong, or at least way off.

PennLive.com: But eight county judges from across the state are challenging the 70 and out rule as being illegal under both the Pennsylvania and U.S. constitutions.

NewsOK: Tom Colbert, sworn in as chief justice of the Oklahoma Supreme Court the same week America was commemorating the 150th anniversary of the Emancipation Proclamation, recalled Friday the sacrifices that family members and others made for him to attain that position.

NY Law Journal: The six-year renovation of the Thurgood Marshall U.S. Courthouse at 40 Foley Square is nearing completion at a time when space is needed to accommodate a record number of federal judges in lower Manhattan.

WWNO.org: The first woman elected to Louisiana’s Fifth Circuit Court of Appeal is now the first woman to become its chief judge.

Blog of the Legal Times: There will be a Tea Party for two on the Republican side of the Senate Judiciary Committee next session. Senate Republicans announced today that newly elected Senator Ted Cruz (R-Texas), a lawyer who was backed by the Tea Party movement, will serve as a member of the committee during this session.

CNSNews: President Barack Obama re-nominated former New York State Solicitor General Caitlin Halligan to the Court of Appeals for the District of Columbia after her nomination had been blocked for more than a year . . .

The White press release is here.

Carl Tobias at The Hill: In August, Northern District of California Judge James Ware retired after two decades of service, leaving the court with four vacancies in 14 judgeships. The huge caseload prompted the U.S. Courts to declare all four “emergencies.”

Mirror of Justice provides some details.

Minding the Campus: Failing Law Schools, a recent book by Brian Z. Tamanaha, a law professor who has also been a law dean, savages American legal education–and rightly so. Tamanaha’s criticisms go something like this: the ABA accreditors and their allies control and dictate to legal educators. The controllers are the deans, professors, librarians, etc. who use accreditation to force on all schools their desired model of legal education, a model which is beneficial to the faculty.

Washington Post: “Yes, for each citizen’s tax dollar, only two-tenths of one penny go toward funding the entire third branch of government!” Roberts wrote. “Those fractions of a penny are what Americans pay for a judiciary that is second to none.”

Virgin Islands News: President Barack Obama signed into law a bill authorizing direct review of V.I. Supreme Court decisions by the U.S. Supreme Court, Delegate to Congress Donna Christensen said Saturday. Christensen sponsored the legislation, H.R. 6116, which amends the Revised Organic Act of the Virgin Islands, with respect to the judicial procedure for appealing the decisions of courts of the Virgin Islands to courts of the United States.

Philly.com: New Jersey Democrats have long argued that they would approve only “diverse” nominees to the state Supreme Court. But now, as liberal opposition builds against Gov. Christie’s most recent picks, the definition of diverse appears to be changing.

Cherminsky at the ABA Journal: The year 2012 saw blockbuster decisions from the U.S. Supreme Court. The court will be most remembered for largely upholding the Patient Protection and Affordable Care Act (in National Federation of Independent Businesses v. Sebelius), and for striking down key provisions of Arizona’s restrictive immigration law, SB 1070 (in Arizona v. United States). In both, Chief Justice John G. Roberts Jr. joined the more liberal justices over the strong dissents from the court’s most conservative members.

Topeka Capitol-Journal: The president has four spots — a number larger than usual in one year — to fill in 2013 on the 10th U.S. Circuit Court of Appeals, a tribunal one step below the U.S. Supreme Court.

Lansing State Journal: Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state’s top court, much of that time in the minority responding to opinions set by the conservative majority.

AP: A major gay-rights group said Thursday that Chuck Hagel’s comments on gays and his past votes are “unacceptable,” another strike against the former Republican senator’s chances of becoming the next defense secretary.

The Hill: President Obama will nominate Sen. John Kerry (D-Mass.) to replace Hillary Clinton as the secretary of State on Friday, according to multiple reports.

Blog of the Legal Times: By voice vote on December 17, the Senate confirmed Fernando Olguin to the U.S. District Court for the Central District of California and Thomas Durkin to the U.S. District Court for the Northern District of Illinois.

Mark Sherman at AP: “The vicious opposition by the left to Bob Bork’s nomination turned what had sometimes been a contentious confirmation process into literally a political campaign,” Meese said Wednesday.

Mike McConnell at Slate: It probably would have been less politicized and more committed to the rule of law.

Wall Street Journal: The U.S. Senate has had many low, retrograde moments, but easily among the worst was its 1987 rejection of Robert Bork to sit on the Supreme Court. Bob Bork died Wednesday at age 85, having contributed far more to American law than the 58 Senators who voted against him and more than most Supreme Court Justices.

Wall Street Journal: Without the Constitution’s original intent as their guide, wrote the great jurist who died Wednesday at 85, justices are left with merely their own ‘moral philosophy.’

AP: President Barack Obama’s possible pick of Republican Chuck Hagel to run the Pentagon raises serious concerns among some of his former Senate colleagues, who question his pronouncements on Iraq, Israel and the Middle East.