Diarmuid O’Scannlain

How the Ninth Circuit Stole Christmas

By David Lat

Let’s play a quick game (which we might return to later if there’s interest). If we were to give out awards to the different federal judicial circuits, in the manner of a high school yearbook, which awards would go to the different circuits? Here are some of my nominations:

(Article III groupies: Feel free to suggest others, in the comments.)

As for the other awards, well, they’d all go to the Ninth Circuit. It’s the nation’s most famous (or infamous) federal appeals court, so it would win “Most Likely To Become A Celebrity.” It’s the biggest, so it would win “Most Popular” (especially among the ACS and ACLU crowd). It would win “Most Athletic,” since it includes California. And it would win “Biggest Flirt,” thanks to its numerous superhottie judges. (Don’t you wish they all could be California jurists?)

The Ninth Circuit would also run away with “Most Likely To Be Made Fun of on YouTube” — since it already has been. How many circuit courts can claim that distinction?

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Federal Law Clerks: No Pay Raise for You!

By David Lat

Law clerks aren't jumping for joy these days, especially when it comes to pay.

I spent last weekend in Portland, Oregon, where I attended the 25th judicial anniversary celebration and law clerk reunion of my former boss, Judge Diarmuid O’Scannlain of the Ninth Circuit. It was a warm and wonderful occasion, a chance to reconnect with old friends and to catch up with the O’Scannlains (Judge and Mrs. O’Scannlain were joined by all eight of their children for the festivities). Former clerks shared happy memories from their time in PDX clerking for DFO.

Most former law clerks I meet — mainly law clerks to federal judges, whether Article III or magistrate or bankruptcy — recall their clerkships fondly. They praise the excellent experience, the clerkly camaraderie, and the training and mentoring they received from their judges (for the most part; a few describe judicial clerkships from hell).

It struck me as strange, then, that “law clerk” recently came in at #7 on CNBC’s list of 10 Most Hated Jobs. I can’t help wondering whether courthouse administrative personnel with the title of “clerk” were somehow mixed in with federal judicial law clerks. The median salary of $39,780 a year suggests that this might be the case, since federal law clerks (and many state law clerks) make more than $40K these days.

Then again, people don’t clerk for the money. Sure, clerkship bonuses, especially Supreme Court clerkship bonuses, can be considerable — but in most cases, a graduate who goes straight into a law firm will do better financially than her classmate who clerks after graduation.

If you’re planning to clerk or interested in clerking for a federal judge, you should be aware of the latest news about law clerk compensation….

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Grammer Pole of the Weak: ‘I Respectfully Dissental’

By David Lat

In our most recent Grammer Pole of the Weak, over two-thirds of you voted against the use of gender-neutral language, opting instead for the historic use of “he,” “him,” and “his” to cover both sexes. In the poll before that one, over 80 percent of you voted in favor of the serial comma. These results suggest that Above the Law readers are traditionalists in matters of grammar, usage, and writing style.

But back in August, 60 percent of you said that you are all right with “alright.” So perhaps ATL readers are open to the evolution of the English language and the creation of new words.

How do y’all feel about neologisms? Let’s look at two new words, coined by none other than the newly svelte Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit….

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Supreme Court Clerk Hiring Watch: The Changing of the Guard

By David Lat

July has arrived. At law firms, partners leave early on Friday, so they can beat the traffic out to the Hamptons (or the Eastern Shore, or the Cape).

At the Hollister store across the street from the Above the Law offices, hot shirtless men stand outside, trying to lure shoppers into the darkened, heavily perfumed, previously bedbug-ridden space. At 7-11 stores, they are giving away 7.11-ounce Slurpees (because today is 7-11 — geddit?).

And at One First Street, home of the Supreme Court of the United States (aka “SCOTUS”), clerk classes are transitioning. July is when outgoing Supreme Court clerks leave the marble palace — do pass go, do collect a $250,000 signing bonus — and their replacements arrive. The arrivals and departures are staggered over the entire month, so the departing clerks can train the newest members of the Elect.

July is a good time for an update on Supreme Court law clerk hiring. Let’s have a look….

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Quote of the Day: Well, cherries are delicious….

By David Lat

The [Ninth Circuit] seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the un-constitutionality of the action here was clearly established.

Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ [Former Attorney General John] Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression.

– Justice Antonin Scalia, writing for the Court in Ashcroft v. al-Kidd (via Josh Blackman). (The eight Court of Appeals judges are those who joined Judge O’Scannlain’s dissent from the denial of rehearing en banc.)

More Fun From Chief Judge Kozinski

By David Lat

There’s always something fun going on in the Ninth Circuit. Last week, the Court voted against rehearing en banc in United States v. Alvarez, a case raising the constitutionality of the Stolen Valor Act (a law that essentially criminalizes false claims of military heroism). A divided three-judge panel struck down the Act on First Amendment grounds, and the Ninth Circuit voted against reconsidering that decision en banc.

Judge Diarmuid O’Scannlain (disclosure: my former boss) wrote a spirited and persuasive dissent from the denial of rehearing en banc, on behalf of himself and six other judges. The dissenters argued that the Act passes constitutional muster and that the First Amendment does not protect knowingly false statements of fact (subject to certain exceptions not presented by the law). The position that the Stolen Valor Act is constitutional is shared by a number of prominent scholars, including First Amendment guru Eugene Volokh.

But this is far from an open-and-shut case (unlike many of the Ninth Circuit cases that generate dissents from denial of rehearing, which we’ve previously described as the “Bat Signal” flashed by right-of-center Ninth Circuit judges to the Supreme Court when the lefties run amok). On the other side of the Alvarez case was Chief Judge Alex Kozinski — Professor Volokh’s former boss, and a jurist who, like Judge O’Scannlain, is often vindicated by SCOTUS smackdowns of Ninth Circuit liberals.

(Digression: I don’t like it when two of my most favorite federal judges cross swords! It’s like watching a fight between My Two Dads. I’d much rather see the two of them join forces against the Emperor Palpatine and She Who Must Not Be Named.)

Chief Judge Kozinski wrote a rather colorful concurrence to the denial of rehearing en banc. Some hilarious highlights from it, plus a fun movie-related tidbit from His Honor, after the jump.

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Legal Eagle Wedding Watch: Registry Error

By Laurie Lin

And just like that, it’s December. Flurries fill the sky, Wham’s “Last Christmas” saturates the airwaves, and the list of weddings in the New York Times shortens dramatically. Quality tends to decline along with quantity, but we’ve been pleasantly surprised to find plenty of comment-worthy nuptials (and attractive brides!) over the past couple of weeks.

Here are the three weddings that most caught caught our eye:

Elizabeth Kronick and Michael Kleinman

Alexandra Endelson and Michael Bassik

Lucy Martinez and James Sullivan Jr.

Check out these couples’ pictures and write-ups, including one jaw-dropping wedding registry — plus a list of all the recent legal eagle weddings — after the jump.

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Legal Eagle Wedding Watch: Spreading the Love

By Laurie Lin

We’ve decided to tweak the format of Legal Eagle Wedding Watch a bit. Beginning today, we’ll be bringing you all the lawyer weddings featured in the New York Times.

This, admittedly, is the kind of everyone’s-a-winner feel-goodism that we normally abhor. Alas, to be frank, we’re sick of the constant death threats from couples who don’t make our column. Don’t worry — we’ll keep the focus on our brilliant featured couples, as always. But starting with today’s installment, you’ll also be able to check out the honorable mentions (and others) at the end of each post.

Also, congratulations to Elena Lalli and Guillermo Coronado, who edged out Caroline Lopez and Nicholas Miranda in our last reader poll for Couple of the Week.

This week’s featured couples are:

1. Meredith Osborn and Christiaan Highsmith

2. Claire McCusker and Michael Murray

3. Emily Keifer and Jordan Barry

More about these couples — and a list of all the NYT’s recent legal eagle matings — after the jump.

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Judge Kozinski Doesn’t Track with the Ninth Circuit on GPS and the Fourth Amendment
Calls his fellow judges ‘cultural elitists’ when it comes to privacy.

By Kashmir Hill

Chief Judge Alex Kozinski gives a thumbs up to privacy for the poor

A user’s manual that’s 200+ years old can be difficult to apply to modern technologies. Thus, it’s been a challenge for judges interpreting the Fourth Amendment as it applies to police surveillance via GPS tracking devices on cars.

There has been a plethora of precedents set across the country as to whether slapping a GPS tracker on a car is considered a “search” and whether a warrant is needed. A Wisconsin state court decided last year that warrantless GPS surveillance is okay. Within a week of the Wisconsin decision, a New York state court disagreed. More recently, the D.C. Circuit ruled that GPS tracking is indeed a search, and introduced what the Volokh Conspiracy’s Orin Kerr called a “mosaic theory of the Fourth Amendment,” i.e., that a series of discrete facts may be public, but their aggregation may violate privacy rights. Kerr dissed the D.C. Circuit’s mosaic ruling, but Cato’s Julian Sanchez was a fan.

The Ninth Circuit got in on the GPS-Fourth Amendment throwdown too. As noted by How Appealing, a Ninth Circuit panel — consisting of two of the court’s more conservative members, Diarmuid O’Scannlain and Randy Smith, and Judge Charles Wolle (S.D. Iowa), sitting my designation — ruled that police officers who placed a GPS device on the underbed of a suspected drug dealer’s car while it was parked outside of his house did not violate his constitutional rights.

Chief Judge Alex Kozinski was not happy about their decision. He wrote an angry dissent from the denial of rehearing en banc, accusing the judges of “cultural elitism,” by granting privacy rights to the rich but not to the poor…

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Calls his fellow judges ‘cultural elitists’ when it comes to privacy.“

Legal Eagle Wedding Watch 9.6: The Point Is Probably Moot

By Laurie Lin

champagne glasses small.jpg
LEWW’s memory isn’t what it once was, but we can’t recall a stronger week in legal nuptials than this one. All six of our featured newlyweds are truly impressive, and a few are even interesting! And not to give anything away, but if you love SCOTUS clerks (and oh, we do!) prepare to curl your toes in ecstasy.
Here are our finalists:

1. Lee Bickley and Martin Carr
2. Betsy Anderson and David Gottlieb
3. Karen Dunn and Brian Netter

Join us in evaluating these couples, after the jump.

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Legal Eagle Wedding Watch 7.12: French Kissing

By Laurie Lin

champagne glasses small.jpgRejoice, wedding fans! We have some compelling mid-summer material for you this week: Wachtell, SCOTUS, lesbians, French nobility — read on for the details on all of that and more, as reported in the New York Times and filtered by us.
Our finalist couples:

1. Rebecca Gutner and Rodman Forter Jr.
2. Laura Hammond and Christopher Hemphill
3. Laure de Vulpillières and Vanessa Dillen

Admire these couples’ achievements, after the jump.

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The Ninth Circuit Curse

By David Lat

Larry Craig small Larry E Craig Larry Edwin Craig gay senator Idaho Above the Law blog.jpgHere’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.

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Official ATL Endorsement: Judge O’Scannlain for Attorney General

By David Lat

diarmuid o'scannlain diarmuid f o'scannlain.jpgWe 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]

Lady and Ted’s Excellent Adventure: Wedding Photos That Rock

By David Lat

Ted Olson wedding 1
“Okay, Judge Bork. Smile and say ‘The Original Understanding’!!!”
(Also: Is that Harvard Law prof Laurence Tribe standing behind Robert Bork, or just someone who looks a lot like him?)
Earlier this week, we gave you a detailed report about the fabulous nuptials of Ted Olson — the winning lawyer in Bush v. Gore, former Solicitor General, and current Gibson Dunn partner — and his beautiful and brilliant bride, Lady Booth.* The Olson wedding was attended by the crème de la crème of D.C. and conservative legal circles.
Now we have an update to our prior coverage, an ATL exclusive: WEDDING PICTURES!!! And they’re not boring, like the ones your college roommate makes you look at every time you visit her house. Did Justice Sandra Day O’Connor attend your college roommate’s wedding?
Check out the pics — there are just a few of them, it won’t take you long — after the jump.
* “Lady” is her given name, not a title. See here.

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The Eyes of the Law: A Visit to the Ninth Circuit

By David Lat

9th circuit seal ninth circuit.JPGThe Ninth Circuit may be getting slapped around by the Supreme Court lately. (Yeah, what else is new.) But they continue to go about their business. Keep on truckin’, Your Honors!
One of you was kind enough to attend a recent Ninth Circuit sitting — not just any old sitting, but the one graced by that judicial celebrity, Justice Sandra Day O’Connor — and send us a detailed report.
That account of the oral argument — plus a bonus judicial sight-ation, and some added commentary from us — appears after the jump.

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The Eyes of the Law: Ted Olson’s Star-Studded Nuptials

By David Lat

ted olson theodore b olson theodore olson.jpgThis past Saturday, October 21, Washington superlawyer Ted Olson and his fiancee, Lady Booth, were married. The wedding ceremony took place at the stunningly beautiful Meadowood resort, in Napa Valley, California.
Olson, a giant of the Supreme Court bar, served as Solicitor General — the federal government’s top lawyer before the Supreme Court — from 2001 to 2004. He’s currently a partner in the elite D.C. office of top-flight firm Gibson, Dunn & Crutcher.
Olson successfully litigated the landmark 2000 election case, Bush v. Gore, in the Supreme Court. On the losing side: renowned litigator David Boies. But presumably there were no hard feelings, since Boies showed up for the wedding festivities — along with many other legal luminaries.
Some legal celebrity sightings, from the Washington Post’s Reliable Source:

More than 300 guests attended the midafternoon ceremony on the golf course, including Supreme Court Justice Anthony Kennedy, former justice Sandra Day O’Connor, Homeland Security Secretary Michael Chertoff, legal commentators Victoria Toensing and Joe diGenova, NPR’s Nina Totenberg, legal names such as Robert Bork, Kenneth Starr, David Boise [sic], and Olson’s law partner Bill Kilberg. U.S. Appeals Court Judge Laurence Silberman performed the ceremony, and Wall Street Journal Publisher Gordon Crovitz served as best man.

This is Booth’s first marriage and Olson’s fourth. The couple will honeymoon in Hawaii.

We hear through the grapevine that the wedding was, not surprisingly, “a great time. It seemed like half of Washington was there!”
Other notable guests: Judge J. Harvie Wilkinson, of the Fourth Circuit; Judge Diarmuid O’Scannlain, of the Ninth Circuit, and his ever-stylish wife, Maura O’Scannlain; Frank Fahrenkopf, former RNC chairman and current gaming industry superlobbyist, with his wife, Mary; current Solicitor General Paul Clement; and conservative pundit Laura Ingraham.
Despite the tremendous collective brainpower of these august guests, we hear that several of them were left scratching their impressive craniums by one wedding detail: the request on the wedding invite for “Napa Casual” attire.
These leading minds of the bench and bar can slice, dice, define and parse the most complex legal terms known to man. But throw two innocent little words at them — “Napa Casual” — and watch them panic.
If only every day could be a court day. Who doesn’t look good in black?
Update: You can check out photographs from the wedding by clicking here.
Napa Nuptials for Olson and His Lady [Washington Post]
Theodore B. Olson, Solicitor General bio [USDOJ.gov]
Theodore Olson [Wikipedia]

DFOpalooza: The Farewell Brunch

By David Lat

o'scannlain brunch 3.JPG

Judge Diarmuid O’Scannlain’s current law clerks, a merry band: Vincent Kalafat, from Notre Dame; Rod Forter, from Columbia; Marah Stith, from Yale (blogged about supra); and Father Bill Dailey, from Columbia.
Well, Ninth Circuit and O’Scannlain groupies, we’ve come to the end of the road. This is our last batch of pictures from our delightful weekend in Portland, Oregon, attending DFOpalooza.
After the Friday night reception at the Pioneer Courthouse, and the Saturday night dinner at the Town Club, the weekend concluded with a farewell brunch at the O’Scannlain residence. The weather couldn’t have been better, and many guests sat out on the expansive judicial patio, where they enjoyed wonderful brunch fare (including an amazing artichoke-and-chicken dish that was nothing short of a revelation).
More pictures, after the jump.

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Another Dispatch from DFOpalooza

By David Lat

o'scannlain reunion 9.JPG

Judge Diarmuid O’Scannlain, Mrs. Maura O’Scannlain, and two decades’ worth of law clerks and judicial assistants. (We apologize for the less-than-stellar quality of this pic. If you live in the D.C. area and would like to give us a tutorial in digital photography, email us.)


Our photo essay about the historic Pioneer Courthouse, in Portland, Oregon, is complete . But our coverage of “DFOpalooza” — the delightful weekend of events celebrating Ninth Circuit Judge Diarmuid F. O’Scannlain’s 20th judicial anniversary — isn’t quite done.
After the jump, more fun photographs. We traveled across the country to be there, so we intend to milk it for all it’s worth. And, of course, it’s good publicity for our awesome former boss.
If you’re a federal judge who’s wondering, “Why isn’t my law clerk reunion being covered this lavishly?”, there’s a solution: Invite us to your next one! (Hey Frank — we hear your house in Alaska is pretty sweet.)

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ATL Caption Contest Winner: Schopenhauerian

By David Lat

little girls pioneer courthouse.JPG

No, we didn’t forget about our little caption contest. But we almost did, due to the paucity of entries. The runaway winner: Schopenhauerian, our “celebrity commenter” here at ATL.
Here is his — or her? — winning entry, to accompany the photo shown above:

Meet legal supergeniuses Emily and Mandy, the youngest clerks in the history of the Supreme Court.

After earning her JD from Harvard Law summa cum laude, Emily previously clerked for Judge Kozinski. Mandy, first in her class at Stanford Law, served in the office of Solicitor General Paul Clement and went on to clerk for Judge Luttig. Emily’s interests include comparative constitutional law, baton twirling, 18th century German literature, and roller skating. She has also written extensively on all aspects of international arbitration law. Mandy specializes in federal jurisdiction and statutory interpretation, and is the world’s leading authority on “My Little Pony” collectibles.

What clinched it for us: the “My Little Pony” shout-out. We have a weakness for all things MLP.*
And Schopenhauerian gets bonus points for the superior graphics skills demonstrated in this photoshop masterpiece:
david lat supreme court photo.jpg

“Mr. Lat, we know you love attention, but don’t you think this is taking it a bit too far?”
Congratulations, Schopenhauerian! (Please email us — we’re very interested in getting to know you.)
* We will refrain from telling you, due to its embarrassing nature, about how when we were little, we commandeered our sister’s “My Little Pony” collection to convene a “Pony Parliament.” In the end, the tenuous governing coalition assembled by Pretty Parasol© fell apart after a vote of no confidence.
(Clearly we evinced a keen interest in political and legal affairs from an early age.)
Earlier: ATL Caption Contest

The Pioneer Courthouse: A Photo Essay (Part 4)

By David Lat

3 pioneer courthouse 8.JPG

Yes, ladies, he really is this handsome. Sorry, he’s taken.
From left to right: Professor William Birdthistle; Mark Schneider, an AUSA in Chicago; Ninth Circuit Judge Diarmuid O’Scannlain; Brian Murray (OT 2002/Scalia); Deputy Assistant Attorney General Jonathan Cohn (OT 2000/Thomas); Carol Murray (we think); Cindy Zmijewski Demers (in profile); Ryan W. Bounds, of the Office of Legal Policy (and the Office of Sartorial Counsel).
For those of you who don’t like eye candy (of the admittedly blurry kind), you’ll be happy to know that this is the last in our series of photo essay posts about the historic Pioneer Courthouse, in Portland, Oregon. The prior installments can be accessed here (scroll down).
The latest batch of pictures, showing former O’Scannlain law clerks on a judge-led tour of the renovated Pioneer Courthouse, appear after the jump.

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