Diarmuid O’Scannlain

Supreme Court Clerk Hiring Watch: The Changing of the Guard

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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….

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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.)

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More Fun From Chief Judge Kozinski

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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

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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

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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.

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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.“

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Legal Eagle Wedding Watch 9.6: The Point Is Probably Moot

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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

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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

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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

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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]

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