Take the words “all contributors.” Now close your eyes and contemplate what those words mean in plain English. This exercise serves two purposes, by both focusing your mind on the definition and simulating exactly how much the D.C. Circuit thinks you should know about the political process. How did they come to their decision, you might ask? By twisting, turning, and bending the words of the English language in a way that’s still illegal in nine states.
I mean, what more can you say about an opinion that calls dictionaries an “optical illusion?” Seriously…
Federal government lawyers are having their pay frozen. But let’s face it: you don’t don’t go into government service for the money.
You might do it for the experience. You might do it for the lifestyle. And, depending on the position, you might do it for the prestige.
Someone once said to me, “You can’t eat prestige.” “Maybe not,” I replied. “But prestige certainly is delicious!”
For a young lawyer, one of the most prestigious government gigs around is a Bristow Fellowship. These four one-year fellowships in the Solicitor General’s Office are generally regarded as second only to Supreme Court clerkships in prestige (and many Bristow Fellows later go on to clerk at the Court). You can read more about the Bristow, including the job responsibilities and the application process, on the Department of Justice website.
Earlier this month, the four Bristows for 2011-2012 were notified of their good fortune. Who are they?
[Ed. note: We now turn the floor over to the fabulous Laurie Lin, of Legal Eagle Wedding Watch, for a guest post on the D.C. Circuit clerk book proposal controversy. This post was originally scheduled for publication yesterday afternoon, when Laurie was holding down the fort while we were offline and in transit. Sadly, technical problems -- yeah, we know, we're working on it -- prevented timely publication.]
We know the DC Circuit’s caseload is notoriously light, but we had no idea the clerks were jonesing so hard for something to do! Two current clerks in Judge A. Raymond Randolph’s chambers recently circulated a book proposal on habeas corpus and the war on terror, a topic about which they claimed to have some expertise — as a result of the high-profile cases to which they currently have access in Randolph’s chambers! Read on for more about this ethical morass:
The problems arose when their proposal, which was emailed to constitutional scholars across the country, surfaced on a blog. University of Miami professor Steve Vladeck raised questions about how this affected their work as clerks for a Judge A. Raymond Randolph. Randolph, of course, not only authored the most recent decision about the Guantanamo detainees, Boumediene v. Bush, but was also the scribe for two cases already overturned by the Supreme Court, Rasul v. Bush and Hamdan v. Rumsfeld.
It was a connection the two clerks flaunted, noting that they brought a “unique perspective” to edit submissions because “they have spent a year in the legal trenches” as clerks on the D.C. Circuit “during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”
But the two men forgot one key thing: to tell (or, rather, to ask permission from) their judge.
More on this controversy, including Judge Randolph’s official reaction to his clerks’ jaw-droppingly poor judgment, after the jump:
Fun news CAN break over a holiday weekend. Check out this Times article (by the indefatigable Adam Liptak, a Yale Law School alum):
A divided panel of the [exceedingly powerful] United States Court of Appeals for the District of Columbia Circuit, which will soon decide an important case concerning detainees at Guantánamo Bay, Cuba, rejected a friend-of-the-court brief submitted in the case by [seven] retired [federal] judges. Two former chief judges of the court were among those rebuffed.
The unsigned majority decision, for Judges David B. Sentelle and A. Raymond Randolph, said the brief violated a 1982 advisory opinion from a committee of the Judicial Conference of the United States, which is the administrative and policy-making body of the federal court system.
“Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge,” the advisory opinion said.
Translation: :”Former judges, you’re not such hot s***. You’re nothing but lawyers with frustrated gavel fetishes.”
The brief was rejected over the dissent of Judge Judith Rogers:
Judge Judith W. Rogers dissented. She said the 1982 advisory opinion was meant to address situations in which former judges acting as lawyers are referred to by the honorific title “Judge.” That practice, if allowed in court, could improperly influence juries, confuse people and make parties to lawsuits lose confidence in the judicial system.
But the situation here, with former judges submitting an appellate brief on their own behalf and with the government’s consent, is different, Judge Rogers wrote. “Indeed, denying the unopposed motion for leave to file may itself create an appearance of partiality,” she wrote.
Liptak points out that (1) Judge Sentelle and Judge Randolph, the judges in the majority, were appointed by Republicans (Reagan and Bush I, respectively); (2) Judge Rogers is a Clinton appointee; and (3) two of the former D.C. Circuit chief judges on the brief, Abner J. Mikva and Patricia M. Wald, were appointed by Carter.
So was the dissing of the brief politically motivated? Judge Mikva doesn’t think so — but ascribes the decision to even cattier reasons:
Mr. Mikva said the rejection of his brief was motivated by personal animus, not politics. “It’s not political at all,” he said in an interview. “This was clearly aimed at me.”
The judges in the majority, Mr. Mikva said, were furious with him because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.
“They’re so close to retirement age,” Mr. Mikva said of the judges in the majority. “They really should grow up.”
OUCH. Boy do we miss the good old days on the D.C. Circuit!
Pull up a chair, kiddies, and listen to our tale. Back when Abner Mikva was Chief Judge, from 1991 to 1994, the D.C. Circuit went through a period that judicial historians refer to as The Golden Age of Bench-Slappery.
Conservatives and liberals were at each other’s throats — almost literally. Abner Mikva didn’t get along with several of his more conservative colleagues, including David Sentelle and Laurence H. Silberman. During one heated argument, Laurence Silberman reportedly said to Abner Mikva, “If you were 10 years younger, I’d be tempted to punch you in the nose.” How delicious!
Sadly, the Golden Age couldn’t last forever. In 1994, Chief Judge Mikva resigned to become White House Counsel under President Bill Clinton. He was replaced by Chief Judge Harry T. Edwards.
The famously cantankerous Harry Edwards — who once asked a lawyer at oral argument, “Counsel, are you shitting me?” — raised hopes that the Reign of Bitchiness would continue at the D.C. Circuit. But as it turned out, Chief Judge Edwards actually emphasized collegiality during his reign. And the D.C. Circuit — an unfathomably prestigious court, baby steps away from the Supremes — has never been the same.
(For some excellent perspectives on the controversy over the spurned brief, check out this VC post by Jonathan Adler. In the comments, legal ethics experts such as Stephen Gillers and Steve Lubet weigh in.) Appeals Court Rejects Brief Submitted by Ex-Judges [New York Times via How Appealing] NYT on Judicial Amicus Brief Rejection [Volokh Conspiracy] Court Nixes Brief Because Ex-Judges Called Themselves Judges [WSJ Law Blog]
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The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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