Tag Archives: Category: Bench and Bar

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.

Religion Clause Blog: A federal district court judge in New York City yesterday denied a motion by counsel for an accused terrorist who wanted to exclude Jews from the jury because there will be inflammatory testimony at trial about Jews and Zionism.

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.

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.

Washington Times: “It is not an exaggeration to call the [Proposition 8 case] Hollingsworth v. Perry the ‘Roe v. Wade for marriage . . . ’”

Alan Sears on Faith and Liberty (links to audio stream and description) with David Garrison. | alt link: MP3 audio 52:27 mins

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.

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).

AP: Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.

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.

Roll Call: The Senate voted 51-41 to end debate on the nomination, nine votes shy of the 60 needed to move forward. Alaska’s Lisa Murkowski was the only Republican to cross party lines, voting to invoke cloture.

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.

Blog of the Legal Times: The Senate will vote Wednesday morning on Caitlin Halligan, the embattled nominee for the U.S. Court of Appeals for the D.C. Circuit, as part of a recent Democratic push to fill federal judicial vacancies.

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.

Paul Mirengoff at Power Line: But before getting into the weeds, we should step back in awe of the fact that the Supreme Court will likely decide the issue stated above. Assuming that threshold issues such as standing don’t prevent a ruling on the merits, nine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case).

LifeNews: Americans United for Life Action President and CEO Dr. Charmaine Yoest called for the U.S. Senate to vote no on cloture on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit, in what will be a scored vote on

QC Times: Two years after voters served the Iowa Supreme Court with a shocking blow, the judicial selection process continues to be debated, as witnessed at a forum Saturday with Iowa Supreme Court Justice Thomas Waterman.

Houston Chronicle: When federal Judge Royal Furgeson Jr. took senior status from the federal bench in San Antonio in 2008, colleagues thought it would be a matter of months before his seat was filled. Five years later, the vacancy is categorized as a “judicial emergency” . . .

TPM: In a wide-ranging profile published in the latest issue of The New Yorker, Supreme Court Justice Ruth Bader Ginsburg addressed when her time on the bench may draw to a close.

LA Times: The shift in favor of gay rights may have an effect on the justices. If not, it could still doom restrictive marriage laws in liberal states like California.

Nathan Schlueter at Public Discourse: To reject the presence of natural law in documents of the Founding era is to embrace both cynicism and romanticism.

Washington Post: In Florida, President Obama has nominated the first openly gay black man to sit on a federal district court. In New York, he has nominated the first Asian American lesbian. And his pick for the U.S. Court of Appeals for the D.C. Circuit? The first South Asian.

Witte, John and Nichols, Joel A., Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions (2013). Faulkner Law Review (Forthcoming 2013); U of St. Thomas Legal Studies Research Paper No. 13-05. Available at SSRN: http://ssrn.com/abstract=2227114

International Business Times: Halligan “is unqualified to sit on such a prestigious court because of her conduct in office, using her position in state government to advance radical, pro-abortion legal theories against the constitutional rights of pro-life citizens,” said AULA’s Dr. Yoest.

Amanda Becker at Roll Call: Some of the more conservative justices on the Supreme Court weren’t shy about assessing their neighbors across the street Wednesday during oral arguments in a closely watched Voting Rights Act case.

Texas Tribune: Roberts and his colleagues are off the leash. Their counterparts in Texas are not so lucky. Elected judges have to hope the politics work out — that voters will understand unpopular decisions and blame the people who write the laws and not the people who interpret them.

SCOTUS Blog: At their Conference this morning, one of the many issues the Justices will take up is the motion for divided argument in the Windsor challenge to the federal Defense of Marriage Act. A divided argument order provides for oral argument by more than just the petitioner and respondent.

Blog of the Legal Times: The committee unanimously voted to approve Nelson Roman to be a judge for the Southern District of New York and Shelly Dick for the Middle District of Louisiana. The other nominees had opposition from Republicans: William Orrick for the Northern District of California was approved 11-7, and David Medine for the privacy board was approved 10-8.

Business Insider: “[A]dministration lawyers worry that taking such an expansive view in legal briefs could unnerve some justices in the Supreme Court’s conservative wing, the people familiar with the matter said,” the Journal reported.

Ed Whelan at National Review Bench Memos: In the Prop 8 case, an amicus brief filed on behalf of former New York chief justice Judith Kaye, law professor Stephen Gillers, and others undertakes to refute the case that I made in the last quarter of my amicus brief that both Ninth Circuit judge Stephen Reinhardt and trial judge Vaughn Walker improperly failed to recuse themselves. (I don’t yet have an online link to the Kaye/Gillers brief; I’ll add it in when I find it.) The Kaye/Gillers brief commits critical errors and evasions.

National Catholic Register: Law student warns against the social harm that would come from a redefinition of marriage.

Blog of the Legal Times: Jane Kelly got an extra friendly reception from the Senate Judiciary Committee at her confirmation hearing Wednesday for the U.S. Court of Appeals for the Eighth Circuit, soaking up a stream of compliments and fielding questions about why diversity in the courts is important.

ABA: A group of plaintiffs that includes lawyers and legal organizations has no standing to challenge a foreign surveillance law, the U.S. Supreme Court ruled Tuesday in a 5-4 opinion.

Bloomberg BNA: Protections for lesbian, gay, bisexual, and transgender workers continue to emerge, but still more can be done to stop discrimination, an Equal Employment Opportunity commissioner and others said Feb. 13 during an employment law webinar sponsored by the American Bar Association

Bryan A. Garner at ABA Journal: I’ve been trying, in other words, to say that lawyers on the whole don’t write well and have no clue that they don’t write well. Now, thanks to an erudite lawyer friend of mine in Atlanta, Scott Killingsworth, I’ve discovered that there’s a scientific explanation for this phenomenon: the Dunning-Kruger effect. In 1999, two Cornell psychologists—David Dunning and Justin Kruger—conducted a series of studies . . .

NewsOK: The Oklahoma City magistrate judge’s confirmation was delayed by politics for nearly nine months before he was unanimously approved by U.S. Senate

Election Law Blog: Via SCOTUSBlog comes the news that the Supreme Court, without comment, has denied cert. in Danielczyk v. U.S.,The decision not to hear the case is significant, because it means the Supreme Court majority, which has shown hostility to campaign finance limits, has decided not to move as aggressively as it could in further deregulating the campaign finance system.

NPR: The Supreme Court says it won’t hear a case that would have let candidates solicit money from corporations. By doing so, the court is reaffirming one strict ban on corporate political money, three years ago after easing other limits in its controversial Citizens United ruling.

CBS: She may be a felon convicted on six counts of public corruption, but Justice Joan Orie Melvin is still a member of the Pennsylvania Supreme Court — for now.

Harvard Crimson: The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

JCOnline: Cara Putman , an attorney at Bennett Boehning & Clary LLP, has been recognized by The Alliance Defending Freedom for her work in securing rights within Indiana public high schools.

National Review Bench Memos: The body passed a proposed constitutional amendment to reform the state’s judicial selection system, by an overwhelming margin of 29 to 2.

Orin Kerr reports at the Volokh Conpsiracy.

Randy Barnett at the Volokh Conspiracy: I just posted to SSRN a new paper of mine, The Gravitational Force of Originalism, that I will be presenting next week at the Fordham conference on “The New Originalism and Constitutional Law.” Here is the abstract . . .

Alan Sears at Townhall: A lawyer who is not moral is something very akin to a doctor who is not compassionate. He may be capable, technically, of doing the job, but why would he want to? What satisfaction can there ultimately be for a physician in helping people whose well-being he cares nothing about? . . . If the law is not about morals, then it’s about the exercise of power for its own sake: I am making a law so that I can force you to do what I want you to do. Divorced from a higher, deeper, greater moral authority, the exercise of creating, defending, and enforcing the law is about the ego of those whose arrogance demands the subservience of others.

The Atlantic: “What I tell my law clerks is that we write these so that they are accessible to regular people. That doesn’t mean that there’s no law in it. But there are simple ways to put important things in language that’s accessible. As I say to them, the beauty, the genius is not to write a 5 cent idea in a ten dollar sentence. It’s to put a ten dollar idea in a 5 cent sentence” . . . The quote that was likely most disheartening to his law student audience: “I wound up the court 17 years after I graduated. And I made my final payment on my student loan my third term on the court.”

Daniel Fisher at Forbes: Ten of the 15 decisions so far have been on 9-0 votes, and seven of those were unanimous. This follows the trend in the 2011-2012 session, when 30 of 77 decisions were 9-0, according to The Supreme Court Database. Last year, only 14 decisions came down with the supposedly inevitable 5:4 split, and more than half of those decisions were described as “liberal” by TSCD.

Breitbart: The Supreme Court has taken McClutcheon v. FEC for arguments this fall. McClutcheon is a challenge to the part of the current version of FECA that limits how much money an American citizen can give to one of the national political parties in a two-year period. Although the overall limit is slightly over $100,000, that’s beside the point of asking what empowers the federal government to tell a citizen how much communication he can have with his fellow citizens in the political process.

AP: President Barack Obama is trying to change the face of a federal judiciary that has a long tradition of white men passing judgment on parties from all walks of life – if he can get his nominees past the Senate.

USA Today: In a move that could signal the end of a key restriction on political giving, the Supreme Court announced Tuesday it will consider a case challenging the limit on how much individuals can donate directly to federal candidates and political parties.

Mercury News: On a May day in 2009, Vaughn Walker was going through one of his weekly routines as a federal judge, reviewing a stack of new lawsuits assigned to his San Francisco chambers, when one case caught his eye: Perry v. Schwarzenegger.