Feb 4, 2013

Targeted Killings and Article III Courts

EmptyWheel highlights a key focus on the so-called “Kill Memo” that focuses on the role of courts to review the executive’s policy. In short, they have no role, citing cases like Haig v. Agee and Baker v. Carr, to argue that the courts cannot consider these issues.

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Haig v. Agee, 453 US 280, 292 (1981), because such matters “frequently turn on standards that defy the judicial application,” or “involve the exercise of a discretion demonstrably committed to the executive or legislature,” Baker v. Carr, 369 US 186, 211 (1962). Were a court to intervene here, it might be required inappropriately to issue an ex ante commend to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

Curiously, no citations to any of the detainee cases that asserted strong judicial oversight over the Executive’s war powers.

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Feb 4, 2013

If at first you don’t Ginsburg, Scalia, Scalia again

RBG Tells Paul Clement no, so Clement asks Scalia. This is the SCOTUS  equivalent of mom saying no, and asking dad.

(FURTHER UPDATE 7:10 pm:  Lawyers for HealthBridge on Monday evening renewed their plea, asking that it be referred to Justice Antonin Scalia.   Such requests are permitted under the Court’s Rule 22.  The fact that one Justice has denied an application does not bind any other Justice, if the request has not been submitted by the first Justice to the full Court.  Justice Ginsburg did not do so before she denied the plea Monday afternoon.)

(UPDATE 4:50 pm:  Justice Ginsburg denied the application that is discussed in this post.  She acted without seeking responses from the other side.  There was no opinion, so there was no explanation.  That does not bar a request to another Justice, but such second efforts are seldom successful.)

Update: Supreme Court Rule 22.4 provides:

4. A Justice denying an application will note the denial thereon. Thereafter, unless action thereon is restricted by law to the Circuit Justice or is untimely under Rule 30.2, the party making an application, except in the case of an application for an extension of time, may renew it to any other Justice, subject to the provisions of this Rule. Except when the denial is without prejudice, a renewed application is not favored. Renewed application is made by a letter to the Clerk, designating the Justice to whom the application is to be directed, and accompanied by 10 copies of the original application and proof of service as required by Rule 29.

The rule says “any other Justice.” Curious clement chose Scalia. I would’ve sent it to Thomas, who likely thinks that much of the NLRA is unconstitutional.

Update: On Facebook, my friend Ian Milhiser points out that Justice Alito’s sister, Rosemary Alito, represents the petitioner. He would presumptively be recused on this case. Shall we say, vehicle problems.

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Feb 4, 2013

Chief Judge of 11th Circuit Tells President He Won’t Take Senior Status Till 2 Vacancies Filled

Confirm them now!

The chief judge of the federal appeals court based in Atlanta said Monday that he may not take senior status on Aug. 1 if the president and the Senate have not filled two Georgia-based vacancies on the court.

But Dubina said taking senior status “is not a done deal until you tell the president,” an action he has not made yet because of the delay in filling the two Georgia-based seats on the Eleventh Circuit.

Dubina, who was appointed in 1990 and whose seat is based in Alabama, said he didn’t want to leave his colleagues “in the lurch” with only nine active judges.

He recalled early in his appellate career when the court had several vacancies and only nine judges—with about half the caseload of today. “Nine judges is extremely difficult,” he said, noting that the court suspended its rules requiring two Eleventh Circuit judges on each three-judge panel. Instead the court allowed only one Eleventh Circuit judge on a panel, joined by two visiting judges—a solution that risked the consistency of the court’s precedents, he said.

What do you think about this? A Chief Judge holding up his retirement on the President confirming judges? Really, it is the Senate’s failure to confirm these judges. I wonder if this will have any impact on the Senate filibusters?

I should note that Chief Judge Dubina, along with Judge Hull, authored the joint opinion in the 11th Circuit finding that the individual mandate was unconstitutional.

H/T How Appealing

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Feb 4, 2013

I will be on Huffington Post Live to talk about Background Checks and the Second Amendmetn

The link to the segment is here. I’ll be on at 3:00 EST. I’ll be on with host Abby Huntsman, and Reason Editor Jacob Sallum, among others.

Here is the video.

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Feb 4, 2013

Is it “cert-worthy” or “certworthy”?

In Paul Clement’s application to SCOTUS in an NLRB case, he uses the word “cert-worthy.”

This case not only presents three related but independently cert-worthy questions, such that there is an unusually strong likelihood that this Court would review should the Court of Appeals affirm, but also involves particularly strong equities that make the risk of irreparable injury absent a stay concrete and acute

I checked the Westlaw database for cert petitions: there are 455 hits for “certworthy” and 624 hits for “cert-worthy.”

I guess “cert-worthy” is more accepted, but not by much. I’m inclined to go with whatever Paul Clement thinks.

Of course, the phrase “cert-worthy” reminds me of the Seinfeld episode with “sponge-worthy.”

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Feb 4, 2013

Justice Ginsburg on the Death Penalty and Being a “Great Diva”

Justice Ginsburg gave an interview about Opera on WQXR, and she touched on the death penalty.

RBG: Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict. When you are with a group of nine people, the highest court in the land, you can’t pretend to be king or queen. If I had may way, there would be no death penalty. But the death penalty for now, is the law. But I can say, I won’t participate in those cases, then I would not be an influence.Q: But it’s not the law in every state:

RBG: No, but it is the law in most states. Well over half states.

Q: I don’t want to get too involved in this. How does this translate to the highest Court?

RBG: There is a question about the fairness of the trial. Maybe the prosecutor failed to disclose exculpatory evidence. Maybe the defendant was not mentally competent. These are the issues that come to us.

Interestingly, RBG would not take the approach that Justices Brennan and Marshall did–that the death penalty was always unconstitutional. Yet, their position became marginalized because they perpetually dissented.

RBG also spoke to her true career ambititions–being a “Diva.” RBG is asked when she knew she had a talent for law, and what she wanted to be.

RBG: My first answer is not a great lawyer. It is, I would be a great diva. But I totally lacked that talent, so the next best thing is the law.

I think we would all agree that Justice Ginsburg is the finest diva at One First Street.

RBG also touches on Wagner’s music, which she said is “associated with the Third Reich.”

Her interviews comes on around 5:45.

H/T How Appealing

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Feb 4, 2013

The Solicitor General and Same-Sex Marriage

Adam Liptak has a great Sidebar column exploring whether the Solicitor General will file a brief in the Prop 8 case, where the Federal Government is not a party. Last week, I attended an event on the Supreme Court term at Georgetown Law Center. Adam (no doubt with this column in mind) asked the all-star panel if the SG would file a brief. Former Acting SG Neal Katyal said that the government only decides if it will file a brief at the last minute–suggesting that one may be written, but never submitted.

Paul Clement quipped that when he was in the SG’s Office, Ted Olson was in charge, and the government decided not to file a brief–presumably the brief would have been against gay rights.

Nor did it weigh in on the last major gay rights case, Lawrence v. Texas, which in 2003 struck down state laws making gay sex a crime.

The solicitor general in 2003 was Theodore B. Olson. He is now in private practice and is one of the lawyers challenging the California ban on same-sex marriage. On Jan. 18, he and his colleague David Boies, along with lawyers from the San Francisco city attorney’s office, met with Mr. Verrilli to urge him to take a stand in the California case. Defenders of Proposition 8 made the opposite pitch a few days later.

Mr. Verrilli was noncommittal, but there is now reason to think that Mr. Olson will prevail in persuading Mr. Verrilli to ignore the precedent Mr. Olson had set. That is largely because Mr. Obama’s thinking on same-sex marriage continues to evolve

Oh how times change.

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Feb 4, 2013

Contracts Professors Rejoice! Donald Trump is Suing Bill Maher

You may recall that Bill Maher said he would donate $5 million Donald Trump’s preferred charity if he could prove he is not “spawn of his mother having sex with an orangutan.” Trump, of course, retained a lawyer, provided a copy of his birth certificate, and threatened to sue unless Maher paid up.

Here is the letter Trump’s attorney sent Maher:

Dear Mr. Maher:

I represent Mr. Donald J. Trump.  I write on his behalf to accept your offer (made during the Jay Leno Show on January 7, 2013) that Mr. Trump prove he is not the “spawn of his mother having sex with an orangutan.”

Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan. Please remit the $5 million to Mr. Trump immediately and he will ensure that the money be donated to the following five charities in equal amounts: Hurricane Sandy Victims, The Police Athletic League, The American Cancer Society, The March of Dimes, and The Dana-Farber Cancer Institute.


Scott S. Balber

Later trump postured to sue:

 “He made an absolute offer. I made an absolute acceptance. I showed him documentation, and he owes me $5 million, which I’m going to give to charities,” Trump said. “Let’s see what happens, and if he doesn’t give me the money, we’ll probably sue him.”

Contracts professors rejoice, you now have another case to teach other than Leonard v. Pepsico to illustrate reasonableness of offers.

The Donald is suing! This morning on Fox News he announced “breaking news” that he is in fact suing.

“[Maher] made me an offer. I accepted the offer immediately, and he didn’t come through with the $5 million,” Trump said on Fox News.

But wasn’t Maher joking? He was a comedian on the Tonight Show?

“I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact, he was nervous when he said it. It was a pathetic delivery,”

What a pathetic waste of public resources for a court to entertain this suit. Maybe at least Trump can be sanctioned?



H/t Althouse

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Feb 4, 2013

Sotomayor Tells Oprah How The President Selected Her

It’s a surprisingly good interview.

O: What did you think when you heard President Obama was considering you for the Supreme Court?

SS: I thought he was crazy. No, seriously—I am not a betting woman, but I kept telling my friends, “He’s never gonna pick me.” Not in a million years. I’m very rational, and I’m another New Yorker—at the time there were a few others—and I’d had a very contentious nomination to the Court of Appeals for the Second Circuit. I couldn’t figure out why he’d elect to go into a battle over me. And so I was in total disbelief when I was called that day.

O: Was it something you’d aspired to, the Supreme Court, or ever thought about?

SS: The minute I began to understand the importance of the Supreme Court, which really wasn’t until law school, I also understood how unlikely it was to become a justice. It’s said that you have to be struck by lightning. So it’s not something you can live your life aspiring to. In the deep, deep recesses of your fantasies, you think, “Wouldn’t that be cool?” But really, it’s just a fantasy.

O: So when he called you…

SS: I was at home. I’d had an interview with him earlier that day—it was the first time we’d met—and he told me that he’d call to tell me his decision.

O: That he would personally call you.

SS: Yes. His staff had sent me home to New York to pack, just in case he picked me. I was standing in my dining room, the phone rang, and the first thing I heard was, “This is the White House switchboard operator; please wait, the president’s coming on the line.”

O: Oooooooh!

SS: He got on the phone and said, “Judge, I have decided to make you my nominee to the U.S. Supreme Court.” Now, I don’t cry. But the tears just started to come down. My heart was beating so hard that I actually thought he could hear it. I realized I’d put my right hand to my heart to try to quiet it. It was the most electrifying moment of my life. The next day I was walking to the East Room at the White House, where the press statement of my nomination was about to happen, flanked by the president and vice president. They have longer legs than me, so I whispered, “Please wait.” And they turned around and smiled and waited for me to catch up. In that moment, I had an out-of-body experience. I was so overcome with emotion; I knew that if I stayed within my body I couldn’t deal with what I had to do. So it was like all of that energy came out of my body and started watching me from up here [motions to the sky].

O: You had to let some of it go, because it wouldn’t have been good to start crying in that moment.

H/T DC Dicta

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Feb 4, 2013

Does ABA Accreditation Standard That Limits Professor’s Practice of Law Violate Rules of Profesional Conduct? [Update: Never mind]

In order to be a full-time law professor, under ABA accreditation standards, one must limit their practice of law. However, according to the rules of profesional conduct, a member of the bar can only limit their practice of law in very narrow circumstances. Would ABA accreditation standards be in tension with ABA model rules, such that a full-time professor who certifies that they are not engaged

ABA Accreditation Standard 402(B) places certain limitations on what a full-time member of the faculty can do outside of teaching. Specifically, it severely limits the professor’s ability to engage in the practice of law.

A full-time faculty member is one whose primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsibilities described in Standard 404(a), and whose outside professional activities, if any, are limited to those that relate to major academic interests or enrich the faculty member’s capacity as a scholar and teacher, are of service to the legal profession and the public generally, and do not unduly interfere with one’s responsibility as a faculty member.

As part of this accreditation standard, I had to certify to the law school that any outside-practice is minimal.

An interpretation of this standard makes clear that full-time faculty should not have a relationship with a law firm:

Regularly engaging in law practice or having an ongoing relationship with a law fi rm or other business creates a presumption that a faculty member is not a full-time faculty member under this Standard. This presumption may be rebutted if the law school is able to demonstrate that the individual has a full-time commitment to teaching, research, and public service, is available to students, and is able to participate in the governance of the institution to the same extent expected of full-time faculty.

Many state professional rules of conduct place strong restrictions on an attorney’s ability to limit his practice of law.

ABA Model Rule 5.6 (Restrictions On Right To Practice) provides:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

Similarly, California Bar Rule 1-500 provides:

(A) A member shall not be a party to or participate in offering or making an agreement, whether in connection with the settlement of a lawsuit or otherwise, if the agreement restricts the right of a member to practice law, except that this rule shall not prohibit such an agreement which:

(1) Is a part of an employment, shareholders’, or partnership agreement among members provided the restrictive agreement does not survive the termination of the employment, shareholder, or partnership relationship; or

(2) Requires payments to a member upon the member’s retirement from the practice of law; or

(3) Is authorized by Business and professions Code sections 6092.5 subdivision (i), or 6093.

(B) A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules.

The form I had to certify for purposes of ABA accreditation perhaps could be considered an “employment” contract, or maybe  “other similar type,” though ejusdem generis, those agreements all seem to apply to law firm partnership matters, not ABA accreditation standards.

Could it be that full-time law professors who certifies such a form would be in violation of this rule of professional conduct? There seems to be ethical issues here–and maybe even antitrust concerns?

Of course, a professor who has to make this certification could choose to withdraw from the bar in order to avoid this conflict, though that would hardly be a desirable result, as that would limit even the ABA’s permitted practice of law related to academic matters.

H/T Michael Tenenbaum

Update: I think I may have read the statute too hastily. As David pointed out in the comments, the rules seem to allow restrictions during the employment relationship. An agreement can’t “restrict[] the right of a lawyer to practice after termination of the relationship.” I seem to recall something from professional responsibility that strongly disfavored any contracts that limit representation, but this rule does not quite capture that.

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Feb 4, 2013

A Room Full of Chimps Beat Nate Silver’s Super Bowl Prediction

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