Legal Pad

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."

 

 

9th Circuit Circles Back to Fogel's Death Penalty Order, Tweaks Part

[Ginny LaRoe]

After issuing a late-night order Monday (free reg. req.) remanding the Albert Greenwood Brown death-penalty case back to district court, the Ninth Circuit has tweaked a section dealing with District Judge Jeremy Fogel’s idea to give the killer a choice in how he wanted to die.  Check out paragraph 14 of the amended order filed today.  You can find the original order here.

9th Circuit Judge Reverses Self On No Child Left Behind Decision

[Ginny LaRoe]

New arguments in a challenge to the No Child Left Behind Act must have been compelling because Ninth Circuit Judge Dorothy Nelson has changed her mind.

In a replacement opinion issued today, Nelson now agrees that a group of public school children and their parents have standing to challenge the definition of “highly qualified teachers.” The new majority opinion, authored by Judge William Fletcher, which Nelson joins, also finds that an expanded definition of the term “highly qualified” is invalid — a win for the students who claim that the Education Department’s tinkering with that definition has allowed a disproportionate number of lesser qualified teachers into classrooms with low-income and minority students.

Nelson originally authored the majority opinion saying the students lacked standing. 

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.

9th Circuit Gets Off Easy In Contentious Gun Control Case

[Dan Levine]

Not too shocking: an en banc Ninth Circuit U.S. Court of Appeals dodged the bullet in a controversial gun control case.

The appeal in Nordyke v. King has been contentious. First, a three judge panel upheld an Alameda County gun control ordinance, which prohibited firearms in sensitive public places, and put the kibosh on a gun show at the county fairgrounds. But the judges still found that the Second Amendment should apply broadly, to states. It’s a controversial position long opposed by gun control advocates, but embraced by the likes of attorney general and gubernatorial candidate Jerry Brown (free reg. req.).

The panel opinion brought a successful en banc vote, and an oral argument (free reg. req.) was held last year. Then the case sat for months. Finally, the U.S. Supreme Court recently applied the Second Amendment to states in McDonald v. Chicago, vindicating Brown’s position. Off the hook, the Ninth Circuit ordered the case back to the panel, rather than taking a full en banc whack itself.

Journalists Seem Slim On Details of Alleged Target By Arizona Sheriff

[Dan Levine]

Remember when Joe Arpaio -- the immigrant-hating Arizona sheriff who makes his inmates wear pink underpants -- lived the dream of many a cop by having his leading press critics arrested in the middle of the night, in front of their families? Those journalists had their day in front of the Ninth Circuit U.S. Court of Appeals on Friday, but the judges didn’t seem sympathetic to their claims against Sherriff Joe.

The media company in question is New Times, owner of an alt weekly in Phoenix (along with the SF Weekly). After they led a crusade against Arpaio for over a decade, a special prosecutor arrested Michael Lacey and Jim Larkin for printing a grand jury subpoena, an alleged violation of Arizona state law. 

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."

Cross Still Standing in Mojave Desert

[Cynthia Foster]

A divided U.S. Supreme Court has ruled that a cross, honoring fallen soldiers, can remain standing in a national park.

The cross, installed in 1934 by private citizens in Mojave National Preserve, was the subject of a case that rose through the courts in many years of litigation.

Congress circumvented an early ruling by declaring the cross a national memorial and turning the land over to a veterans group. A district court later issued an injunction against against the land swap, which the group appealed.

The Supreme Court ruling reversed the injunction and the Ninth Circuit's confirmation, and rejected the notion that the First Amendment calls for a black and white separation of church and state. Justice Anthony Kennedy, who authored the opinion, called for a "middle ground" on the issue.

For more on this story, check out Cal Law later tonight.

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.