Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit since last week, is dreading March 1.
With heavy stress on “not,” Chief Judge Garland said he does “not look forward” to the potential sequester because he knows that it would mean cuts and that he would have to make them.
Garland, along with fellow D.C. Circuit Judge Thomas Griffith and Senior Judge Laurence Silberman, spoke Saturday at the Georgetown University Law Center, as part of the J. Reuben Clark Law Society’s annual conference. I attended the panel presentation.
One positive of the new job for Garland is that he can make more writing assignments. Like Justice Breyer, he was a longtime junior judge. Translation: He had to take what he was given to write.
“The public has seen [Garland’s] last opinion on energy law,” Griffith predicted.
Read more about the panel, including Silberman’s jabs at the recess appointments decision, Griffith’s magical (?) clerk gift, and Garland’s limited edition headgear for a court party, after the jump….
It’s been so long since Obama lost something I was beginning to forget what it looked like.
In a reminder that just because the Senate is a dysfunctional band of elderly people doesn’t mean you can put them in a home and wait for them to die, the U.S. Court of Appeals for the D.C. Circuit knocked down some of the president’s recess appointments.
In January 2012, Obama made some recess appointments to the National Labor Relations Board when the Senate wasn’t really in recess. The D.C. Circuit today says that he can’t do that.
Which might, you know, throw out a year’s worth of NLRB work. And it might be bad precedent for the big recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau…
Perhaps this is part of some elaborate research project into the workings of the criminal justice system. Professor Stephen F. Smith, who teaches criminal law and criminal procedure at Notre Dame Law School, stands accused of a serious crime.
According to the South Bend Tribune, Professor Smith faces one count of domestic battery, a class D felony. He’s accused of striking and kicking his wife at their home, in an incident that allegedly took place back in June.
Professor Smith doesn’t fit the profile of the typical defendant in a domestic violence case. How many DV defendants have clerked on the U.S. Supreme Court? How many have graduated from Dartmouth College, where Smith served as a trustee, and the University of Virginia School of Law, where he once taught?
After graduating from Dartmouth and UVA Law, Smith clerked on the D.C. Circuit (for Judge David Sentelle) and SCOTUS (for Justice Clarence Thomas). He practiced at Sidley Austin before joining the UVA Law faculty, where he served as John V. Ray Research Professor before moving to Notre Dame. (Query: What prompted Professor Smith to move from UVA to ND?)
Legal pedigrees don’t get much better than this. But enough of Professor Smith’s dazzling résumé. Let’s learn about the lurid allegations against him — and hear from ND law students about a campus controversy he created….
UPDATE: Please note the updates added to the end of this story. Thanks.
In October 2006, when LEWW reviewed her wedding, we wrote of Aileen McGrath (at right, with handsome hubby Jason Gillenwater):
Aileen is the President of the Harvard Law Review. HELLO!!! And this isn’t mentioned in the announcement, but we’ve learned that she’ll be clerking next year for Chief Judge Michael Boudin, of the First Circuit — feeder judge extraordinaire.
So, Aileen, have you picked which Supreme Court justice you’d like to clerk for?
She has. We’ve learned that Aileen McGrath (Harvard 2007 / Boudin) has accepted an offer to clerk for Justice Stephen G. Breyer in October Term 2008. One source tells us: “[S]he’s universally recognized as brilliant. She was president of the law review and a Sears Prize winner.”
We also hear that the fourth clerk to Justice Clarence Thomas for OT 2008 is a D.C. Circuit clerk (believed to be clerking for Judge David Sentelle). Will someone please give up the name? Update: Her name is Claire Evans. She’s a 2002 graduate of Rutgers School of Law – Camden, and she’s the first alum of the school to score a SCOTUS clerkship. She clerked for Judge Jerome Simandle (D.N.J.) in 2003, and then for Michael Chertoff, back when he was still on the Third Circuit. Reports our source:
“Chertoff liked Claire so much that he took her to the Department of Homeland Security when he left the bench for Washington. Apparently, Claire continues to amaze and has now secured the most coveted of credentials — a U.S. Supreme Court clerkship.”
“[S]he holds the highest cumulative grade point average in the history of Rutgers School of Law – Camden. And, because of a grading change implemented the year after Claire graduated, it is now mathematically impossible for Claire’s epic GPA to ever be topped.”
Finally, expect more SCOTUS clerk hires in the near future. From an in-the-know tipster:
There’s movement among the justices now. At least Alito, Roberts, Kennedy & Breyer have scheduled interviews in the last few days. Kennedy has scheduled pre-screen interviews, at least some of which are with Judge Kozinski.
The current tally of OT 2008 Supreme Court clerks, with Aileen McGrath and Claire Evans added, appears 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]
* Clerkships for the bejeweled bench known as the D.C. Circuit are still available. But spots as Sentelletubbies and Tatel Tots are going fast. [Clerkship Notification Blog]
* A modest proposal for Angelina Jolie: Get married like a lesbian. [De Novo]
* Best comment clusterf**k we’ve seen in a long time: 128 and counting. (Does poor Peter Lattman have to read them all?) [WSJ Law Blog]
* “In her wildest dreams, Barbie could not have imagined herself in the middle of Rule 11 proceedings.” [TJ's Double Play]
* Q: “Do you know where Judge Marsha Berzon’s clerks came from?”
A: “Berzon’s clerks came from Hell…. Oh, wait, that’s where they are going.” [Clerkship Notification 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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