Tag Archives: Category: Bench and Bar

National Review Bench Memos: In a move that surprised no one, North Caroline governor Bev Perdue has appointed appellate judge Cheri Beasley to the Supreme Court of North Carolina

The Politico: Justice Elena Kagan opened up about life on the Supreme Court on Thursday night during a wide-ranging, humor-filled interview, discussing what it’s like to write a dissent (with which she has had “a little bit of practice now”), diversity on the court, public opinion and what she anticipates will be the next important issues the court will take on.

AP: Supreme Court Justice Elena Kagan says her colleague Antonin Scalia deserves a lot of credit for getting the high court to divine what laws mean by focusing on the words Congress used.

AP: Now a group of federal judges is pushing a class-action lawsuit to ensure all of the rest of the federal judges who also missed out on their cost-of-living increases get what they feel is their due.

AP: Obama says – quote – “It does not make sense from a prioritization point of view” to focus on drug use in states where it is now legal.

Business Insider: Not only do they want their tuition back, but graduates suing their law schools want the institutions to own up to their alleged lies.

Robyn Hagan Cain at Findlaw: Justice Antonin Scalia moseyed over to Princeton University on Monday to promote “Reading Law.” It didn’t go too well.
We dare say the only thing anyone will remember from the lecture is a question from a student about Scalia’s dissents in Lawrence v. Texas and Romer v. Evans, in which the jurist compared homosexuality to murder, polygamy, and cruelty to animals. In both dissents, Justice Scalia wrote that states should be permitted to legislate their disapproval for homosexual conduct, just as they do for murder and bestiality.

Al Daniel at SCOTUS Blog: In addition to the Office of the Solicitor General, the U.S. Department of Justice (“DOJ”) has seven litigating divisions, each headed by an Assistant Attorney General: the Antitrust Division, the Civil Division, the Civil Rights Division, the Criminal Division, the Environment and Natural Resources Division, the National Security Division, and the Tax Division. Each of these Divisions has a group of attorneys called either the Appellate Staff or the Appellate Section (collectively, “Appellate Staffs”).

SCOTUS Blog reports on this petition pending before the High Court.

Religion Clause Blog: Newly elected Senator Mazie Hirono (D-Hawaii) will become the only new member of the Senate Judiciary Committee during the next session of Congress, the Senate Democratic Steering Committee announced Wednesday.

San Diego Gay and Lesbian News: Elizabeth L. Hillman, a respected scholar in military law and history who was part of the fight to overturn “Don’t Ask, Don’t Tell,” has been appointed Academic Dean at the University of California Hastings College of the Law.

AP: The Supreme Court has asked a Massachusetts lawyer to present arguments on why the justices should not rule on a federal gay marriage law next year.

Fox News: The cuts would force federal courts to lay off up to 2,000 employees or furlough 20,000 employees for 16 days, according to a Dec. 4 letter to federal chief judges around the country from the Judicial Conference of the United States.

NJ.com: Gov. Chris Christie yesterday nominated a Japanese-American judge and the Board of Public Utilities chief to the state Supreme Court, hoping to finally win over Senate Democrats who landed their strongest punch against the Republican governor by rejecting his last two nominees earlier this year.

On Brief, Iowa’s Appellate Blog: This afternoon, the Iowa Supreme Court will hear oral argument in Gartner v. Iowa Department of Public Health, which presents the following issue: When a mother gives birth to a child, does the Iowa Supreme Court’s decision in Varnum v. Brien require that the mother’s same-sex spouse be listed on the birth certificate?

Findlaw (AP): Lawyers for the Senate are asking a federal judge to dismiss a suit by a citizens lobbying group challenging the Senate’s 60-vote threshold for overcoming filibusters.

Sen. Roy Blunt: In light of Majority Leader Harry Reid’s (Nev.) continued threats to launch the so-called “nuclear option” to stop debate or compromise surrounding controversial legislation, Senate Republicans launched a new website today, “Stop The Nuclear Option” where Americans can learn more about Reid’s partisan power grab.

AP: “I don’t think it’s necessary, but I think it’s effective,” Scalia said, adding that legislative bodies can ban what they believe to be immoral.

AP: Supreme Court Justice Sonia Sotomayor says in her upcoming memoir that her lifelong battle against diabetes and the fear that she might die early played a big part in her decision not to have children.

Washington Post: A federal judge began hearing arguments in a case Monday about whether Congress is Constitutionally required to pass legislation by a simple majority vote, and whether the Senate’s filibuster rules violate such a requirement.

National Review Bench Memos: North Carolina governor Bev Perdue has issued an executive order ”temporarily modifying” a previous executive order in which she established a so-called “merit selection” system for appointing judges. Under the terms of her new EO, she will simply appoint a nominee of her choosing rather than select from a panel of nominees submitted by an independent commission.

Washington Blade: The Senate Judiciary Committee reported out by voice vote the nomination of Pamela Ki Mai Chen, whom President Obama nominated in August for a seat on the U.S. District Court for the Eastern District of New York. The panel reported out her nomination in an en banc vote as part of a group of seven nominees.

Religion Clause Blog: The Florida Judicial Qualifications Commission on Wednesday filed a Notice of Formal Charges (full text) against Leon County Judge Judith Hawkins for using her judicial position to sell religious books and materials through her for-profit business, Gaza Road Ministries.

SCOTUS Blog: At tomorrow’s Conference, the Court will consider ten petitions presenting issues relating to same-sex marriage.  During the last two weeks, the blog ran Lyle’s four-part series explaining the issues in each of the cases before the Court, and Amy analyzed the cases and issues in “Plain English”; links to those posts are below.

Blog of the Legal Times: The announcement could be good news for Donna Murphy, a lawyer with the U.S. Department of Justice’s Civil Division. DeMint, who made headlines earlier this year for vowing to reject all White House judicial nominees, has been blocking Murphy’s confirmation to the District of Columbia Superior Court.

Blog of the Legal Times: The freeze on federal judicial nominations appears to be thawing for the first time since the presidential election, at least when it comes to district court nominees.

Ken Klukowski at Breitbart: President Barack Obama made headlines months ago when he installed controversial nominees to key government positions, bypassing the U.S. Senate by declaring the Senate in recess so that Senate confirmation was not needed. Today a federal appeals court signaled that it might rule Obama’s move unconstitutional, and remove those officials from power.

Fox News: South Carolina Sen. Jim DeMint is leaving Congress to head the conservative Heritage Foundation. The Tea Party-backed senator announced the move Thursday, saying he will step down from the Senate in January to become president of The Heritage Foundation think tank.

Washington Times: A federal appeals court on Wednesday questioned not only President Obama’s controversial January recess appointments but the entire system of such appointments, using oral arguments in a case to cast doubt on whether presidential powers can ever be exercised unless Congress has adjourned for good.

Tom Goldstein at SCOTUS Blog: The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

SCOTUS Blog has posted their most recent installment which still includes the marriage cases.

Blog of the Legal Times: The Senate confirmed a federal district judge Monday night and agreed to hold a confirmation vote for a second district judge before the end of the lame duck session, but at the same time cast doubt on whether 17 other pending judicial nominees could get votes this year.

NBC News: A federal appeals court on Wednesday takes up the issue of a president’s power to make appointments when the Senate is out of town, one that has divided Congress and the White House for decades.

Volokh Conspiracy: The Georgetown Center for the Constitution will be devoted to studying and developing originalist textualism.

Muskogee Phoenix: Exactly one year after a crash killed a Muskogee teenager, a complaint has been filed against the judge who sentenced the driver to church.

Lebovits, Gerald, Gewuerz, Drew and Hunker, Christopher, Winning the Moot Court Oral Argument: A Guide for Intra- and Intermural Moot Court Competitors (November 20, 2012). Capital University Law Review, Vol. 41, 2013. Available at SSRN: http://ssrn.com/abstract=2160641 or http://dx.doi.org/10.2139/ssrn.2160641

How Appealing reports.

SCOTUS Blog: SCOTUSblog publisher Tom Goldstein previously told Poynter’s Mallary Tenore “his understanding from staff conversations with the Senate Press Gallery was that SCOTUSblog wouldn’t qualify because it doesn’t have broad-based advertising.”

SCOTUS Blog provides this list that includes the marriage cases.

AP: In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama’s decision to bypass the Senate in appointing three members to the National Labor Relations Board.

National Review Online Bench Memos: As if the governor needed more excuses to make the issue a priority, the state’s judicial nominating commission decided to kick sand in his eyes by sending him a disappointing slate of finalists for a Court of Appeals vacancy.

USA Today: Buoyed by re-election, President Obama is determined to make his mark on the federal judiciary after years of seeing nominees delayed or derailed by Senate Republicans.

Washington Post: Daniel F. Attridge in July will become dean of Columbus School of Law at Catholic University, recruited from his position as managing partner of the Washington law office of Kirkland & Ellis.

Reuters: U.S. Chief Justice John Roberts publicly dressed down an Obama administration lawyer on Tuesday, demanding that he be upfront about policy changes from one president to another and not hide behind language suggesting something else.

AP: Senate Democrats rallied to U.N. Ambassador Susan Rice’s defense as Republicans said they were even more troubled by her account of the deadly attack on the U.S. Consulate in Benghazi, Libya, and signaled they would try to scuttle her nomination if President Barack Obama tapped her as the next secretary of state.

Blog of the Legal Times: President Barack Obama sent three judicial nominees to the Senate on Tuesday for the Eastern District of Pennsylvania, all with experience working as public defenders or with a legal aid organization.

Washington Blade: The White House announced on Tuesday that Obama named Nitza Quiñones Alejandro as part of a group of three nominees to sit on the U.S. District Court for the Eastern District of Pennsylvania. According to the Human Rights Campaign, Quiñones is a lesbian and was recommended by Sen. Bob Casey (D-Pa.).

Courthouse News Service: A Michigan church that subpoenaed several anonymous email accounts after LGBT-rights activists interrupted its services should not face a sanction, the 9th Circuit ruled Monday.

ABA Journal: The 6th Circuit, based in Cincinnati, has had a particularly dismal record before the high court. In the seven Supreme Court terms completed since the fall of 2005, the 6th Circuit has been reversed 31 out of 38 times, for an 81.6 percent reversal rate, based on figures compiled by two Philadelphia lawyers. That leads all the federal circuits for that time period, with the 9th Circuit coming in as the second most reversed—100 out of 128 cases, or 78.1 percent.

Statesman.com: Gov. Rick Perry on Monday appointed his chief of staff, Jeffrey S. Boyd, to fill a vacancy on the Texas Supreme Court.

CNSNews (includes video): Supreme Court Justice Ruth Bader Ginsburg says there will be enough women on the Supreme Court when all nine justices are female.

NY Times: Initially there was little outcry in Muskogee, Okla., last week when a judge, as a condition of a youth’s probation for a driving-related manslaughter conviction, sentenced him to attend church regularly for 10 years.

Joe Hallett at the Columbus Dispatch: And that’s the problem: Voters know virtually nothing about the judges they elect and are left to play the name game. The system limits judges’ ability to campaign, to raise money and even to make statements that might be construed as political. They are not permitted to be identified by party on general election ballots. In short, we make judges politicians at election time but deny them the crucial opportunities to communicate with voters the way other politicians do.

Eric Black at the MinnPost: One belief important to the myth that binds us is this: That when the Supreme Court exercises its role as final decider on important public issues, it does so modestly, on a non-partisan, non-ideological basis and only when necessary to protect the Constitution from clear excesses committed by the political branches. Preserving that belief can be a tall order, and that perception is at a low ebb.

Volokh Conspiracy (video embedded): The Fifth Annual Rosenkranz Debate was held last Saturday during The Federalist Society’s 2012 National Lawyers Convention. The topic was “Natural Law Should Inform Constitutional Law” although I think the title should have been “Natural Rights Should Inform Constitutional Law” since that was what was actually debated. The advocates were Prof. Hadley P. Arkes (Edward N. Ney Professor in American Institutions, Amherst College) and Judge Alex Kozinski (Chief Judge, U.S. Court of Appeals, Ninth Circuit). It was moderated by Judge Thomas B. Griffith (U.S. Court of Appeals, D.C. Circuit).

Here.

Washington Times: When Congress recessed in September for several weeks ahead of the November elections, they left behind 19 judicial nominations that had been approved by the SenateJudiciary Committee but that were awaiting final Senate action. Most are noncontroversial, as 17 received bipartisan support in the committee and seven have support from Republican home-state senators.

AP: A Kansas appeals court attorney was fired Monday after using foul language about the state’s former attorney general in comments she posted to Twitter last week.

Wendy McElroy at the Future of Freedom Foundation: A racial agenda is about to be unleashed on America. According to Investor’s Business Daily (Nov. 8), the Obama administration intends to eliminate the “persistent gaps” between whites and minorities “in everything from credit scores and homeownership to test scores and graduation rates.”

Justin Dyer at Public Discourse: Adam Freedman’s stark proposal in The Naked Constitution that we strip our founding document of its modern and academic glosses shows us that we need to take structural reforms to our Constitution seriously.

John G. Browning at Inside Higher Ed: The Harvard Law Review, arguably the most prestigious and widely circulated law review, had a circulation of 10,895 in 1963–1964. By the 2010–2011 academic year, that figure had plummeted to 1,896.

Richmond Times Dispatch: In his first term, President Barack Obama has had an unprecedented impact on what was long considered the most conservative federal appeals court in the country. Except for the handful of cases that make it to the U.S. Supreme Court, the Richmond-based 4th U.S. Circuit Court of Appeals is the court of last resort for the states of Virginia, Maryland, West Virginia and North and South Carolina.

Robert George and David L. Tubbs at NRO: For this reason and others, the Court should, absent a constitutional amendment defining marriage one way or the other, respect the constitutional allocation of powers and principles of American federalism and allow each state legislature to make policy in this area. The Court should be equally deferential to state referenda (such as Proposition 8 in California) and the 30 amendments to state constitutions that define marriage as the union of one man and one woman. These initiatives are constitutionally legitimate and reasonable policy measures, launched largely because of the provocations of state-supreme-court judges who have redefined marriage for the people of several states. Whatever the liberal pundits have been saying since Election Day, the redefinition of marriage throughout the United States is not “inevitable.” And if the Supreme Court were to invalidate Proposition 8, it would be an act of judicial usurpation even more egregious than its abuse of power in Eisenstadt.

Douglas NeJaime at Jurist: Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue.

First Things: This is welcome news. Next semester, Stanford Law School will start the nation’s first law school clinic focusing on religious liberty. Here’s the announcement from the Stanford website . . .

Blog of the Legal Times: Justice Samuel Alito defended the 2010 decision in Citizens United v. Federal Election Commission on Thursday night, jabbing at critics of the U.S. Supreme Court’s majority opinion but also admitting the success of their public relations campaign.

LifeSiteNews: Research attorney suspended for nasty tweets about Phill Kline: Report The Associated Press is now reporting that the research attorney who tweeted nasty and disparaging comments about Phill Kline – Sarah Peterson Herr – was suspended Friday morning, pending …

Rebecca Downs at Live Action News: Wednesday night, Students for Life of America’s group, Law Students for Life, and Harvard Right to Life held a debate, as part of the Law Students for Life tour. The debate was titled “Should Roe Survive Another 40 Years?” The event was broadcast live via USTREAM, and it is still up on the “Resources” section of the Law Students for Life website for those who are interested . . . Instead, the event first featured a presentation from Steve Aden, from Alliance Defending Freedom, followed by Professor Teresa Collett, of the University of St. Thomas School of Law. Now, I consider myself someone well-versed in the pro-life movement and the Roe v. Wade decision. However, there was much I learned from Aden’s carefully crafted presentation, which started off with the premise that Roe v. Wade is the single worst decision the Court has made and is a Supreme Court decision that the pro-choice side has never been able to get the other side to fully accept. The rest of his presentation involved the top-ten reasons to support his premise. The following portion of the article is my recounting of Aden’s reasons and explanations.

Stuart Benjamin at the Volokh Conspiracy: The most commonly used scores for ideological distance are DW-Nominate scores, based on representatives’ actual votes. These measures reduce various flavors of “liberal” and “conservative” to a single metric, but they are the scores most widely used and trusted by political scientists and political commentators because they measure virtually all the actual votes in a careful and rigorous way. As many people have noted, there used to be lots of ideological overlap between the parties, and lots of moderates in both parties, but there is less overlap, and in particular there are fewer moderate Republicans.

Josh Blackman’s Blog reports on the event.

Huhn, Wilson Ray, The Future Interpretation of the Constitution as a Result of the Reelection of President Barack Obama (November 13, 2012). Available at SSRN: http://ssrn.com/abstract=2174934

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Alliance Defending Freedom Senior Counsel Jordan Lorence will be available for media interviews following his oral argument Monday in favor of a ruling that would allow churches and other faith groups to continue meeting for worship services in New York City public school buildings on weekends.

SCOTUS Blog: On Thursday, the en banc U.S. Court of Appeals for the Sixth Circuit, by a vote of eight to seven, held that the 2006 voter-approved amendment to the Michigan constitution, which prohibited any use of race in the admissions process to any of Michigan’s public colleges and universities, was itself unconstitutional.  The court held that the amendment had impermissibly “reorder[ed] the political process in Michigan to place special burdens on minority interests.”

Emily Newburger at Harvard Law School:  Michael Klarman’s scholarship has focused on the effect that court rulings have on social reform movements. He argues that when courts get ahead of public opinion, political backlash often follows. That’s what he found in an earlier book he wrote on race and the U.S. Supreme Court, and it is a phenomenon he has also observed in cases involving the death penalty and abortion. In his new book, “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (Oxford), the HLS professor explores whether the same effect has taken place when it comes to same-sex marriage litigation.

LoHud.com: Supreme Court nominees never again get the kind of attention that comes during the confirmation process, Justice Sonia Sotomayor said Monday in a question-and-answer session with law students.