To San Francisco, apparently, to clerk on the Ninth Circuit.

We hope that the author of this email is clerking for one of court's slave-driver judges. He needs to be kept busy, so he won't have time for any more literary endeavors.

"Pleaded" or "pled" may be a matter of personal preference. But turns of phrase like "I had to have breakfast with my unit" and "the inadequate salve of an orgasm" ought to be criminalized -- even in the Ninth Circuit.

Correction: We've heard from the woman who received the email. As it turns out, she works for the Ninth Circuit; the sender does not (although he is an attorney, in southern California). She construes the references to the Ninth Circuit to mean "that the job he currently has is *his version* of the Ninth Circuit -- that is, his dream job."

"It Was A Risk -- Dating You. Risking My Reputation. Where Was Respect For That?" [Jezebel]

So it looks like no bail for Stephen Yagman, the colorful and controversial civil rights lawyer who was convicted last year of tax evasion, bankruptcy fraud and money laundering. Yagman will start his three-year prison term later this month.

Yagman asked to remain free on bail while appealing his conviction (to the Ninth Circuit -- a court with which Yagman has a long and tortured history). But the district court denied his request.

Perhaps the court didn't want Yagman out and about, dropping $2,000 on shoes and $262 on dinner -- as he allegedly did just hours after filing for bankruptcy, as part of a scheme to avoid paying more than $200,000 in state and federal taxes.

High-profile LA lawyer denied bail [Associated Press]

The judicial fiefdom of Chief Judge Alex Kozinski is about to expand. From today's Recorder (via How Appealing):

An extra seat for the 9th U.S. Circuit Court of Appeals cleared Congress on Tuesday and is headed to President Bush's desk.

The U.S. Senate unanimously passed the Court Security Improvement Act on Monday night, and the House of Representatives approved it on a voice vote Tuesday. Buried in that bill is language that removes one seat from the D.C. Circuit and moves it to the 9th.

Makes sense to us. Any court that takes the summer off, as the D.C. Circuit essentially does, isn't exactly overwhelmed. Meanwhile, the Ninth Circuit is by far the nation's largest and busiest federal appeals court. It's so huge that it has been the subject of repeated attempts at a split (so far unsuccessful, perhaps because of the Ninth Circuit Curse).

As Dan Levine's article notes, "the seat won't materialize until Jan. 21, 2009 -- the day after President Bush leaves office." We have no doubt that President Hillary Clinton will be able to fill it with a distinguished jurist.

Indeed, President Clinton may be able to reshape the Ninth Circuit, in the same that President Carter reshaped it -- in a way that still endures today, as reflected in the court's strong leftward tilt. Many of the liberal lions who are eligible for senior status but have declined to take it, such as Judges Harry Pregerson and Stephen Reinhardt, may finally be willing to do so, once they know that the court's future is in President Clinton's capable hands.

Congress OKs Extra Seat for 9th Circuit [The Recorder via How Appealing]

This Friday, at the Ninth Circuit courthouse in San Francisco, a ceremonial "passing of the gavel" will be held. The court's outgoing chief judge, Mary M. Schroeder, will hand over the gavel to her successor, Alex Kozinski. Details about the ceremony appear in this press release (PDF).

From How Appealing (additional links collected below):

Judge Kozinski was able to sneak some humor into the news release:

"The chief judge of the circuit assumes the position based on seniority. The chief judge is the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a circuit judge; and (3) have not served previously as chief judge. Judge Kozinski also believes that looks count, though he can provide no support for that proposition.

That last sentence, we're guessing, is a nod to Judge Kozinski's victory in our Superhotties of the Federal Judiciary contest. With such a robust sense of humor, is it any surprise that Judge Kozinski has his own Facebook fan club?

The Ninth Circuit's press release states that "still and video cameras will be permitted" at the gavel passing ceremony, which is taking place on Friday, November 30, at 4 p.m., in Courtroom One of the James R. Browning U.S. Courthouse. If an ATL reader (or readers) would be willing to take pictures or videos and send them our way, we'd be most grateful. Thanks!

Ninth Circuit Attempts to Prepare Itself for Chief Judge Alex Kozinski [How Appealing]
‘Hottie’ Judge Kozinski Continues Joke in Press Release [ABA Journal]
Apochiefosis [Volokh Conspiracy]
Gavel Passing to Mark Changing of the Guard for Ninth Circuit Court of Appeals (PDF) [U.S. Court of Appeals for the Ninth Circuit]

A photo op with two of the nation's most distinguished jurists: Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski!

(Judge Reinhardt seemed a bit skittish about the taking of this picture, but Judge Kozinski's enthuasism was infectious. Or maybe it was just hard for Judge Reinhardt to say no to the incoming Chief Judge of the court.)

For the limited but passionate segment of the ATL readership that avidly follows the federal judiciary and clerkship news, the past week has been a good one.

First, there was this very interesting Legal Times article by Joe Palazzolo, about the debacle known as the law clerk hiring process. Executive summary: "As in most family feuds, it's the kids who suffer most. In interviews, newly hired law clerks rated this year's hiring frenzy on a scale from 'unfortunate' to 'an utter mess.'"

At the D.C. Circuit, lights shone in the windows of some judges' chambers before dawn on Sept. 19. They had scheduled their first interviews between 6:45 and 7 a.m.

[Yale Law School Professor Christine] Jolls, who is a member of a committee of professors and deans that advises the Judicial Conference on the hiring process, says she got a 2 a.m. e-mail from one of her students who had just emerged from an interview with a 2nd Circuit judge. The judge had scheduled the interview for Sept. 19 at 12:01 a.m.

If you know, feel free to identify the judges who scheduled these insanely early interviews, in the comments.

Second, for those of you follow clerkship bonus developments, on Tuesday the ever-helpful Law Clerk Addict posted an updated Vault 100 clerkship bonus chart. You can access it here.

Third, today the National Law Journal serves up a delightful profile of the nation's #1 judicial superhottie (male), Judge Alex Kozinski of the Ninth Circuit. As of December 1, make that CHIEF Judge Kozinski. Congratulations, Your Honor!

Links to the aforementioned sources, plus excerpts and commentary on the Kozinski profile, appear after the jump.

Update: Also after the jump, some scuttlebutt about which judges were conducting the midnight and early morning interviews.

Here's a little riddle: What do these three senators have in common?

Sen. Larry Craig (R-Idaho)

Sen. Ted Stevens (R-Alaska)

Sen. Lisa Murkowski (R-Alaska)

First, they're all Republican senators from underpopulated sparsely populated states.

Second, they've all run into ethical, legal, or political problems. You know all about Senator Craig -- in fact, more than you ever wanted to. As for Senator Stevens, see here and here. As for Senator Murkowski, see here.

What's the third thing they have in common? Find out, after the jump.

We linked to this interesting MSNBC article, about possible replacements for outgoing Attorney General Alberto Gonzales, in Morning Docket.

We'd now like to link to it again, and draw your attention to the very end of the article. Doug Kmiec, a top Justice Department official in the Reagan and Bush I administrations, is quoted as follows:

"[T]he president might be well advised to pick a senior court of appeals judge appointed by Reagan; perhaps, Diarmuid O’Scannlain of the Ninth Circuit, Kenneth Ripple of the Seventh Circuit, or Edith Jones of the Fifth."

[Kmiec] said, "The integrity of these individuals is unquestioned; by virtue of judicial office, they have been freed of partisanship for some time, yet, by virtue of appointment, would be acceptable to the base of the President’s party."

Judge O'Scannlain for Attorney General? What a fabulous idea!

Having clerked for Judge O'Scannlain, we're admittedly biased. As we previously wrote:

During two decades of distiinguished service, Judge O'Scannlain has established himself as a shining star in the federal judicial firmament. We had the honor and pleasure of clerking for Judge O'Scannlain during the 1999-2000 judicial year. He was a wonderful boss to us and our co-clerks, and he continues to be a great mentor and friend to this day. (He's also quite handsome, in a Paul Newman sort of way; see photo at right.)

But you don't need to be a former O'Scannlain clerk to recognize the soundness of Kmiec's reasoning. (As for the other two judges Kmiec mentions, we're not that familiar with Judge Ripple. Judge Jones, while diva-licious, she might be a tough sell to a Senate controlled by the Democrats.)

So we hereby issue this official ATL endorsement: Judge O'Scannlain for Attorney General!

(Psst, Nixon Peabody peeps: Can you do up a theme song?)

Senate confirmation hearings promise drama [MSNBC]

A relationship between a prisoner -- falsely accused, natch -- and a compassionate woman on the outside, crusading for his release. What could be more romantic?

Well, if the woman happens to be a court clerk, with responsibility for handling prisoner filings, the situation goes from romantic to problematic. From the Seattle Post-Intelligencer:

A deputy clerk at the 9th U.S. Circuit Court of Appeals in San Francisco has been fired after striking up a romantic relationship with - and trying to help win the release of - a Washington man serving life in federal prison, court documents show.

Jane Cross, 57, came under scrutiny in June, after she filed a Washington State Bar Association complaint against Kurt Hermanns, an assistant U.S. attorney in Tacoma who handled the prosecution of William G. Moore on methamphetamine and other charges in the mid-1990s. She was placed on leave and subsequently fired last week.

In the immortal words of Def Leppard: Love bites.

More after the jump.

* Charges coming in "collar bomb" case. [CNN]

* Size matters. And bigger isn't always better, as the Ninth Circuit demonstrates. [Los Angeles Times]

* That's some hardcore pwnography. [Click 2 Houston (KPRC, Houston NBC affiliate)]

* Deal reached in Libya foreign medics AIDS trial, with details to come tomorrow; Libyan Supreme Court had been expected to uphold death sentences. [Jurist]

* Facing child sex charges, but don't want that fact to slow down your legal career? Check out the Solomon Islands. [CNN]

Several commenters drew our attention to the Supreme Court's quasi-amusing decision today in Los Angeles County v. Rettele (PDF). We also received reader email about it:

"In the per curiam opinion in LA County v. Retelle (PDF), we get a nice discussion of racial harmony in the context of naked white people being awakened early in the morning by cops executing a search warrant on a house that was previously owned by black criminal suspects."

From the Court's unsigned opinion, joined by seven justices:

"Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that '[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies' safety.' We need not pause long in rejecting this unsound proposition."

"When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search."

The SCOTUS reverses the Ninth Circuit? Happens multiple times each Term. Boring.

The SCOTUS summarily reverses the Ninth Circuit, in a per curiam opinion? Happens a few times each Term. Uninteresting.

The Supreme Court benchslaps the Ninth Circuit, for not being politically correct enough? PRICELESS.

(For more substantive analysis of Rettele, check out this post, by Orin Kerr.)

Los Angeles County v. Rettele [U.S. Supreme Court (PDF)]
Supreme Court Reverses Ninth Circuit in Out-of-Bed-Naked Search Warrant Case [Volokh Conspiracy via SCOTUSblog]

Despite his recent public criticism of blogs, we've always viewed that colorful legal genius, Judge Alex Kozinski, as a great friend of blogging.

Judge Kozinski's nomination of himself as a "judicial hottie" played a crucial role in the development of our original blog, Underneath Their Robes. And he has been a supporter of our blogging over the years. Even his criticism of us has been constructive and well-intentioned (even if harsh).

But if Judge Kozinski has soured on blogging, perhaps it is showing through in his jurisprudence. Check out today's decision by the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates.com (PDF).

We haven't finished reading the opinions just yet. But based on Robert Loblaw's this write-up, which provides a helpful summary and pellucid analysis, the decision doesn't look like good news for bloggers -- or any other websites that host user-generated content.

Sigh. This whole "blogging" thing ain't as much fun as it used to be.

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC
[U.S. Court of Appeals for the Ninth Circuit (PDF)]
Important Ninth Circuit Decision on Websites’ Legal Immunity under the CDA [Decision of the Day]

Earlier: Kozinski On Blogs: "Hateful Things"

Some time ago, we posted an anecdote about the family travel mishaps of Judge Marsha Berzon, of the U.S. Court of Appeals for the Ninth Circuit.

Many ATL readers enjoyed the story. But Judge Berzon's colleague, Judge Alex Kozinski -- one of the federal judiciary's most brilliant thinkers and talented writers -- was less pleased. He sent us an open letter criticizing the story and our decision to publish it.

We posted Judge Kozinski's letter here, and we promised a more detailed response.

We intended to publish a response much earlier. But having to respond to a benchslapping at the hands of a brilliant federal judge tends to induce "writer's block." Who'd have thunk it?

Anyway, we finally got over our writer's block. Our response appears after the jump.

We feel a bit like Senator Joe Biden must feel right now, after his ill-advised comments about Senator Barack Obama. In case you haven't heard, Sen. Biden paid Sen. Obama's presidential candidacy some backhanded compliments:

“I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.”

Take foot (or, in our case, keyboard). Insert into mouth. Then push, as far as it will go.

Yesterday we published a post about a recent plane trip made by Judge Marsha Berzon, of the Ninth Circuit, and her family. It was supposed to come across as playfully irreverent (and yes, slightly snarky). But instead, it turned out to be rather mean-spirited, at least in the eyes of some readers -- such as Judge Alex Kozinski.

In a later post, we will explain various aspects of that original post (and vigorously defend the decision to publish in the first instance). But for now, we would like to point out that the timing of our post could not have been worse.

The following email is representative of others we've received. It's from a former clerk of Judge Berzon (who, by the way, thinks very highly of her and enjoyed the clerkship):

Judge Berzon’s brother passed away Tuesday quite suddenly and unexpectedly. So, whereas I would be bothered by such a post about someone I so thoroughly revere as a general matter, I wouldn’t normally object to its very existence — I’d just fight back. Given current circumstances, however, I do think it is in especially poor taste this week, a point you might want to consider as you post further on the subject.

Point well-taken. Obviously we had no idea of the passing of Judge Berzon's brother at the time we published our post. It was a story we had on hand for a while -- non-time-sensitive stuff, or what we in the biz call "evergreen" material -- and we didn't get the chance to write it up until yesterday. So it was pure (and unfortunate) coincidence that it appeared at such a terrible time for the Berzon family.

We send our sincerest condolences to Judge Berzon on the passing of her brother. And we apologize if we have in any way made such a difficult time for her family even more trying.

Update: Some interesting comments here. Please be sure to read our clarification of the point of this post. Thanks.

Earlier: Flying the Friendly, Federal Judicial Skies: An Open Letter from Judge Alex Kozinski
Flying the Friendly, Federal Judicial Skies

Yesterday we put up a post about the mishaps of a federal judge and her family on a recent plane trip. You can read that post by clicking here.

A number of you found it amusing. But not everyone was so pleased.

This morning we received an email from Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit. Judge Kozinski is one of the most highly respected members of the federal judiciary. He is a brilliant thinker, a great writer, and a colorful character. He is a top-ranked feeder judge, and a former Supreme Court clerk himself. Most importantly, he is the reigning Superhottie of the Federal Judiciary.

We reprint Judge Kozinski's letter below (and after the jump). We are running the letter without interruption, in unredacted form. In a later post, we will reprint his letter again, but with our paragraph-by-paragraph commentary.

And now, Judge Kozinski:

Dear David:

I've been a long-time fan of your efforts to demystify and humanize the federal judiciary. Which is why I was so shocked and disappointed by your recent posting about my colleague, Judge [Marsha] Berzon. The part dealing with the incident on the airplane is a vicious and wholly gratuitous personal attack on Judge Berzon and her family. Assuming it bears some nodding resemblance to the truth, which I seriously doubt, it is so laden with pejoratives and half-witticisms that it seems designed only to wound and deride, rather than to enlighten. Federal judges may be public figures who must endure whatever criticism is leveled at us for our work product, but what possible justification is there for holding up members of our families for public ridicule?

Will a single one of your readers have been enlightened or helped in any way by learning what a lawyer who may be nursing a grudge against the judge based on his appearances before her, thinks about her family's airplane demeanor?

The story we're about to share with you is great, gossipy fun. But we must warn you that it's not for everyone. It's on the long side, and it's aimed at a rather narrow demographic.

It's most likely to entertain (1) current or former Ninth Circuit clerks and (2) people who follow the federal judiciary very, very closely. If you were a reader of Underneath Their Robes back in the day, then this story is for you.

In recognition of its "inside baseball" nature -- and so as not to inflict it upon people who just want Biglaw salary info -- we've placed the complete story after the jump.

The latest item for Eyes of the Law, our legal celebrity sightings column, is a doozy. From the AP:

Rock band Bon Jovi, Harrisburg restaurants and school bands from all over the state were part of yesterday's daylong celebration of Pennsylvania Governor Ed Rendell's inauguration for a second term....

Even more talented than Rendell was his wife, Midge Rendell [aka Third Circuit Judge Marjorie O. Rendell], who capped the concert by singing a duet with rock star Jon Bon Jovi of "Who Says You Can't Go Home?"

The performance brought the night's first standing ovation. Rendell ambled up on stage afterward and marveled that no other first lady could sing with Bon Jovi.

"Take that Maria Shriver," he bellowed, referring to the wife of California Gov. Arnold Schwarzenegger.

Please correct us if we're wrong. But this is, as far as we know, the first time a federal circuit judge has sung a duet with Jon Bon Jovi.*

In addition to her musical prowess, the Honorable Marjorie Rendell also deserves props for being the Stylish Marjorie Rendell. The attractive Judge Rendell, a federal judicial hottie, wore a gown by noted designer Paula Hian to the inauguration festivities.

For hard-core fashionistas, a lengthy description of the frock appears after the jump.

* Oh good, Cully says pro bono is ok again. [Washington Post; Washington Post (letter to the editor) via WSJ Law Blog]

* "Two things made Christopher Willever's drunken burglary of a Tobacco Hut even worse as he crawled across the store floor — a lousy belt and his camera-loving backside." [MSNBC]

* U.S. Attorneys' increasing rate of attrition. [Wall Street Journal via WSJ Law Blog (departures generally); WSJ Law Blog (Kevin Ryan)]

* Tennessee is tennetaxin' illegal drugs. [Time]

* Time for new business cards and letterhead over at Wiley Rein & Fielding [Legal Times]

* The mystery raised here has been answered. Richard Posner isn't the only federal government official who likes to blog. [Opinion Juris]

* Gay Sullivan & Cromwell partner David Braff, to the New York Times: “I’ve been openly gay since I arrived at this firm in 1984. There’s absolutely no atmosphere of hostility toward gay people here.”
[New York Times via DealBook]

* The fight over whether Judge Stephen S. Trott's seat on the Ninth Circuit belongs to Idaho or California has been resolved -- for now. [How Appealing]

Federal judges represent some of the best and brightest minds the legal profession has to offer. Although there are exceptions, federal judges generally have incredible credentials and adhere to the highest ethical standards.

In contrast, state court judges tend to be icky. When you read in the news about a judge who sexually harassed a secretary, got arrested for drunk driving, or used a penis pump behind the bench, the odds are high that it will be a state rather than federal judge.

When a former state judge gets confirmed to a federal judgeship -- as is increasingly the case, since state court judges are often "safe" picks in these politically charged times -- does she shed her icky ways?

Not necessarily. Consider the tale of Judge Deborah L. Cook, a member of the Sixth Circuit since 2003. From Muckraker/CIR:

A federal judge identified by the Center for Investigative Reporting for making campaign contributions while on the bench has apologized for violating the judicial code of conduct.

Judge Deborah L. Cook of Ohio made two political donations after she was appointed by President Bush to the 6th U.S. Circuit Court of Appeals in 2003. A CIR report and story for Salon.com on Oct. 31 revealed that both Cook and a Clinton-appointed judge, Dean D. Pregerson of California, had apparently given campaign contributions, though federal judges are prohibited from doing so.

A pretty dumb-ass mistake. The limitations upon political activity by members of the judicial branch are familiar even to rookie law clerks. It's something you learn about at clerk orientation.

Ah, orientation -- that's where Judge Cook lays the blame for her mistake:

“I violated this proscription against federal judges making political contributions early in what I hope will be a long tenure,” Cook wrote in her letter of apology [to Chief Judge Danny Boggs], which was filed with Judge Boggs’ order [resolving the complaint]. “Though not an excuse, my misstep here resulted from habit and a lack of awareness of the prohibition.”

Cook wrote that she was used to making contributions as a state judge. According to her letter, she did not attend the “New Judges School” after she was confirmed as a federal judge and “thus missed being alerted there to the federal canon.” The “Baby Judges School,” as it is often called by judges, is a non-mandatory training and orientation for newly appointed judges.

"Baby Judges School": Ignore it at your peril.

A little bit more, after the jump.

* Federal court lets the Alpha Dog out. [AP via How Appealing]

* The negligence causation standard is the same under FELA for railroad negligence and employee contributory negligence. Norfolk Southern v. Sorrell. [U.S. Supreme Court (PDF)]

* Execution in Oklahoma first of the year in the U.S. [Jurist]

* iSuit. [Associated Press; WSJ Law Blog]

* House passes minimum wage increase. [AP via Yahoo!]