Legal Pad

Jubilation at Ninth Circuit's Prop 8 Ruling

Supporters of gay marriage gathered Tuesday at the Ninth Circuit U.S. Court of Appeals in anticipation of a ruling on the challenge to Proposition 8, which outlawed marriage between same-sex couples. The court's 2-1 decision finding Prop 8 unconstitutional was greeted with cheers, smiles, and fist-pumping from the crowd outside the courthouse in San Francisco.

U.S. Supreme Court Will Check Milan Smith's Work on Ashcroft's Liability

[Greg Mitchell]

The U.S. Supreme Court on Monday agreed to review a Ninth Circuit ruling that said former AG John Ashcroft can be held personally liable for the DOJ's alleged misuse of the material witness statute. The justices will be checking the work of Judge Milan Smith Jr., a George W. Bush appointee, who held his ground earlier this year when eight colleagues called, unsuccessfully, for en banc review.

Plaintiff Abdullah Al-Kidd,a former running back for the University of Idaho who later converted to Islam, was arrested while heading to Saudi Arabia to study Arabic and Islamic law and imprisoned for 16 days and his movements restricted for 15 months. By then, he'd lost his job and his wife, according to Smith's panel ruling. He was never accused of any crime.

Judge Ronald Gould, a Clinton appointee, writing for himself and six others in March, fretted that Smith's ruling may make it harder to attract qualified attorneys general. Smith countered that the government was paying Ashcroft's legal fees, and would probably indemnify him. Smith added: "The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as attorney general of the United States," Smith wrote. "But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States."

 

 

Did Bybee Sign the Torture Memos to Ease His Ninth Circuit Confirmation?

[Dan Levine]

Anyone wondering why Ninth Circuit Judge Jay Bybee signed the controversial torture memos when he worked at the Justice Department should read the fascinating transcript (.pdf) of a House Judiciary Committee interview conducted in May. Congressman Jerome Nadler, a liberal Dem, asked Bybee about the leverage the White House had over him.

Bush nominated Bybee to the Ninth Circuit in May 2002. At that time and into the summer, Bybee and his colleagues at the Office of Legal Counsel – including Berkeley Law Professor John Yoo – worked on guidelines for the CIA on what constituted torture. But Bybee’s nomination did not move quickly, and he signed the torture memos that August.

“And did the White House have the power to withdraw or delay the nomination if they had wanted to?” Nadler asked.

“If the President had wished to withdraw my nomination, that certainly was within his powers,” Bybee replied.

His nomination eventually had to be resubmitted to the Senate in January 2003.

Obama Nominates Kagan to SCOTUS

[Cynthia Foster]

Amid the flurry of news about President Obama's nomination of Elena Kagan to the Supreme Court, our sister publication NLJ has a solid roundup of all you need to know about the Solicitor General. They're also breaking news on the nomination over at their blog, The BLT.

White House Testing Senate Waters With Liu

[Dan Levine]

It appears the Obama administration is hoping to move quickly on Goodwin Liu, the controversial Berkeley Law professor nominated for the Ninth Circuit. 

The Senate Judiciary Committee scheduled a vote for this Thursday, May 6, though Republicans will likely delay the vote for one week. Democrats hold a numbers advantage on committee, so Liu is expected to pass and get in line for a floor vote by May 13 – just as the nomination for Justice John Paul Stevens is getting into full swing.

That’s when things should get interesting. If Sen. Dianne Feinstein can quickly convince a couple Republicans to support Liu, the White House could push his nomination through a filibuster. That would make it very hard for Republicans to stall Obama’s Supreme Court pick, because no names on the SCOTUS short list are as controversial as Liu. On the flip side, if Republicans stand firm against Liu, then they’d start to look unreasonable if they also try to jettison a less outspoken SCOTUS choice.

Either way, Liu is bait.

[On a related note, 82 pages of Liu parrying Republican interrogatories are available for your perusal (.pdf).]

SCOTUS Shortlist: Obama Interviews Judge Thomas

[Dan Levine]

Several outlets have reported that Ninth Circuit Judge Sidney Thomas, a liberal Clinton appointee based in Montana, interviewed with President Obama to succeed Justice John Paul Stevens on the U.S. Supreme Court. Thomas is known out West for his formidable intellect, and also because he is next in line to succeed Chief Judge Alex Kozinski when his term at the circuit’s helm expires in 2014.

So if Obama selects Thomas, who would take over as chief after Kozinski? According to the court, the next judge in the seniority line is Judge Barry Silverman, a moderate Clinton pick based in Arizona. The next person after Silverman in seniority is Judge Susan Graber, followed by Judge M. Margaret McKeown.

Kozinski told the Wall Street Journal today that he corresponded with Thomas after the interview. Thomas "was a little surprised that it was 'the Full Monty'—that he interviewed with the president and vice president," Kozinski told the Journal. "He thought he would just meet with someone on the president's staff."

Moreno Back In SCOTUS Nominee-Limelight

[Mike McKee]

Carlos Moreno’s apparently still on Barack Obama’s mind.

The NYT's Caucus Blog reported yesterday that administration sources are again floating the California Supreme Court justice’s name for a seat on the United States Supreme Court.

About this time last year, Moreno was vetted by the president’s staff for the opening that eventually went to Sonia Sotomayor. This time, he’s on a short list — of 10, supposedly — to replace retiring Justice John Paul Stevens.

Sonoma County: Impudent in Face of Dying Gay Man and His Partner

[Cynthia Foster]

An elderly gay man from Sebastopol is alleging that Sonoma County officials demonstrated a pretty shocking lack of compassion toward him when his partner of 20 years fell seriously ill and was admitted to a hospital.

According to the NYT's The Bay Area blog, Clay Greene was denied his rights as executor when county officials sought and were granted conservatorship after his partner, Harold Scull, became incapacitated. The county then proceeded, according to the complaint filed last month, to auction off the couples' belongings (over $500k worth) "and at one point referred to Mr. Greene as Mr. Scull’s 'roommate'" among other insults, which you can read about over at The Bay Area Blog.

Greene claims he was subjected to repeated incidents of disrespect, amounting to what appears to be a distinct lack of an ally within the local government, despite his status as executor of Greene's estate.

"Even here, where they had filled out legal documents, because their relationship is so thoroughly invisible and disrespected, it didn’t protect them,” said Shannon Minter, of the National Center for Lesbian Rights.

You can read the NCLR's press release on the case here.

Big Names Involved in Hastings No-Bias Policy Suit

[Cynthia Foster]

As the Hastings non-discrimination policy case makes its way to the U.S. Supreme Court, some legal heavy hitters have turned out not just to write amicus briefs, but also to represent both parties.

The Christian Legal Society, a student group at Hastings that sued the school when they were denied registered organization status because of its requirement that members sign a statement of faith that excludes lesbians and gays, is being represented by Stanford Law Professor Michael McConnell, according to the National Law Journal.

Hastings, which denies claims by CLS that its policy of not recognizing groups it views as discriminatory constitutes a violation of freedom of association, has tapped Latham & Watkins' Georgory Garre. Garre is a former U.S. solicitor general.

The case, Christian Legal Society v. Martinez, has attracted 38 amicus briefs — an "unusually large number." The NLJ story includes some excerpts from various briefs written by some high profile advocacy groups and law firms.

Why Leahy Wants Liu to Stay on Schedule

[Dan Levine]

In what is becoming a full-on time suck for a few particularly devoted bloggers on the left and right, Berkeley Law Professor Goodwin Liu’s nomination for the Ninth Circuit U.S. Court of Appeals is again in the news today. Sen. Patrick Leahy refused to postpone Liu’s confirmation hearing past April 16. Senate Republicans had demanded that Liu be pushed back, after he screwed up and didn’t turn over a raft of speeches and other potpourri that must be painstakingly analyzed by some unlucky staffer in the Judiciary Committee’s minority counsel office.

Beyond sending a firm message to the Republicans, there's another reason why Leahy wouldn’t want to delay Liu’s hearing. Four words: Justice John Paul Stevens. Should Stevens announce his retirement from the Supreme Court in the coming weeks, it will effectively suffocate other committee business, particularly on the nominations front. Liu’s bid for the circuit is already difficult, but fitting him in amid a Supreme Court fight would be a near impossible feat.