Federal Judges

I came of age in the law in the late 1980s. At the time, arbitration was viewed as a big deal and a possible threat to the judicial system. Many corporations were adding arbitration clauses to their contracts; companies were agreeing to arbitrate, rather than litigate, disputes; and pundits feared that the judicial system would suffer.

What were the perceived benefits of arbitration?

It’s private. Companies wouldn’t have to share their dirty corporate laundry with the world.

You get to pick your own decision-maker. If you fear generalist judges, you can select an industry specialist as your arbitrator.

Arbitration is cheaper. Limited (or no) document production; no depositions; no silly, time-consuming motion practice. No serious appellate review, and thus relatively few time-consuming appeals.

This was perceived as being not just good, but great! Parties could design their own processes to have private judges resolve disputes quickly and efficiently, and corporations would spare themselves the expense and indignity of appearing in court.

Indeed, a couple of decades ago pundits feared that arbitration would soon threaten the judicial system. Parties with means would plainly prefer arbitration to litigation, so there would be ample demand for arbitrators’ services. Arbitrators are often paid at the rate of private practice lawyers, rather than public servants, so good judges would leave the bench in droves to accept more lucrative jobs as private arbitrators. The quality of judges would decline, and America would be left with a two-tiered system of justice: High-quality, private arbitration for the rich, and low-quality, public courts for the poor.

Or that was what the pundits said….

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Christine Quinn

As we all await a vote on gay marriage in New York, the New York Observer came out with a wonderful list: the 50 most powerful gay people in New York. They’ve called them “power gays,” and that, my friends, is just fun to say. Here, I’ll use it in a scene.

OLD GUY: Is that guy over there… a gay?
ELIE: No. He’s a POWER gay.

The number one most powerful gay person in New York is City Council Speaker Christine Quinn. That makes sense. Christine Quinn could well be the next mayor of New York City, and unlike other potential NYC mayoral candidates, she doesn’t have a penis that can be photographed and disseminated over Twitter.

But, more relevant for our purposes, the power gays include a number of lawyers….

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That’s very impressive support. Off the top of my head, I don’t think I’ve ever seen anything quite like it. Washington is a small place, and informal channels will generally get word back to the relevant folks in the Senate without a public letter…. But the fact that so many conservative former clerks publicly support [Alison] Nathan’s nomination [to the S.D.N.Y.] is quite impressive.

– Professor Orin Kerr, commenting on a letter signed by 27 former Supreme Court clerks in support of the nomination of Alison J. Nathan, a former law clerk to Justice John Paul Stevens who has been nominated to a judgeship on the Southern District of New York.

I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

The judges think clawback provisions are a good idea; in most situations, it strikes me that the judges are right. So what are FRE 502 clawback provisions, and why are inside and outside counsel routinely missing this trick?

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I don’t have a problem with appointing an openly gay person. Because they’re not going to try to put sharia law in our laws.

Herman Cain, Republican presidential candidate, explaining why he would consider appointing an openly gay person to his cabinet, even though he would not appoint a Muslim to the federal bench or to his cabinet. (Gavel bang: Andrew Sullivan / The Dish.)

Judge Fred Biery

Three years ago, we bestowed Judge of the Day honors upon the Honorable Fred Biery, a federal judge in the Western District of Texas. Back in 2008, Judge Biery rejected a religious school’s attempt to join an influential statewide extracurricular organization. In the process of ruling against Cornerstone Christian Schools, Judge Biery took the Bible and turned it around on them, in a snarky opinion quoting religious texts to refute a religious school.

(His Honor apparently enjoys colorful writing. See also this amusing ruling, with shout-outs in the footnotes to such fabulous creatures as Barbra Streisand and Stephen Sondheim.)

Well, it seems that Judge Biery — make that Chief Judge Biery, as of last June — continues to antagonize organized religion. Let’s read about the latest controversy he’s incited, this time involving an imminent high school graduation ceremony….

UPDATE: Judge Biery’s ruling in the case discussed below was overturned on Friday afternoon by the Fifth Circuit. Details and links appear in the update at the end of this post.

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Justice Stephen G. Breyer

Are justices of the U.S. Supreme Court gods, or men? There’s evidence on both sides. Their brilliant legal minds and dazzling résumés weigh in favor of deity designation. Their ability to make mistakes suggests that they’re mere mortals.

Supreme Court justices: they’re just like us! They get into accidents — as Justice Stephen Breyer did over Memorial Day weekend, while riding his bicycle near his home in Cambridge, Massachusetts. Justice Breyer broke his right collarbone in the incident — ouch (and more evidence to support my dislike of cycling).

This isn’t even the first vehicular mishap for one of the nine in 2011. As you may recall, Justice Antonin Scalia got in a car accident, back in March — and received a ticket for it.

Physical accidents involving federal judges might not be shocking; brainiacs aren’t known for their grace and agility. But ethical oversights might be more surprising.

Let’s look at the latest controversy involving Justice Samuel A. Alito Jr. — and whether the hubbub is justified….

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Katherine Forrest: You'd smile too if you were this rich.

I recently wrote about Katherine B. Forrest, the celebrated litigatrix nominated to a federal judgeship on the breathtakingly prestigious Southern District of New York. Forrest currently serves as a deputy assistant attorney general in the Department of Justice’s antitrust division, but before joining the DOJ she was a longtime partner at Cravath, Swaine & Moore — a premier, if not the premier, American law firm. Forrest was one of CSM’s most popular (and most powerful) young partners.

Katherine Forrest has a reputation as an incredible attorney, and she has the awards to prove it (see question 8). Not surprisingly, the ABA deemed her “unanimously well-qualified” as an S.D.N.Y. nominee.

So here’s what I wondered: Why did the amazingly accomplished Forrest, a partner at super-lucrative Cravath for over a dozen years, declare a mere $4.3 million on her net worth statement? Granted, $4.3 million is nothing to scoff at; KBF is rich (even by Elie’s standards). But it seemed to me that a lawyer of her distinction, who was a partner at a top firm for such a long time, should be even richer.

Thanks to information from helpful readers who saw my earlier post, I now know the truth. As it turns out, Katherine Forrest is considerably wealthier than that $4.3 million number suggests.

Way richer, in fact. Let’s find out….

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Katherine Forrest: Why isn't her net worth higher?

As I’ve previously mentioned, one of my favorite parts of the judicial nomination process is the attendant financial voyeurism. Judicial nominees are required to make detailed disclosures about their finances, allowing us to learn about their income and net worth. For example, thanks to her nomination to the Supreme Court last year, we got to learn about Elena Kagan’s net worth.

Last week, the Senate Judiciary Committee released financial disclosure reports for several of President Obama’s recent judicial nominees — including antitrust litigatrix Katherine B. Forrest. Forrest has been nominated to the mind-blowingly prestigious Southern District of New York, perhaps the nation’s finest federal trial court. As a highly regarded lawyer who has won numerous awards and accolades (listed in her SJC questionnaire), Forrest will fit right in if confirmed to the S.D.N.Y. — a superstar among superstars.

The fabulous Forrest currently serves as a deputy assistant attorney general in the Department of Justice’s antitrust division. She joined the DOJ last October — a commendable public-service commitment that required her to relinquish her partnership in one of America’s mightiest and most prestigious law firms, Cravath, Swaine & Moore. When she left to pursue government service, Forrest had been a Cravath partner for over 12 years (since 1998), and had been with the firm for about 20 years in all (since 1990).

At the time of her departure for the Justice Department, Katherine Forrest had been taking home hefty paychecks for decades. First she was an associate at Cravath, which pays its people quite well, in case you hadn’t heard. Then she was a partner at the firm (reportedly one of the most well-liked and most powerful younger partners) — from 1998 to 2010, a period in which average profits per partner at CSM routinely topped $2 million and occasionally exceeded $3 million. And remember that Cravath is a lockstep partnership with a reported 3:1 spread, meaning that the highest-paid partners make no more than three times as much as the lowest-paid partners. So it’s not possible that she was earning, say, $400,000, while other partners were earning millions (which can be the case at firms with higher spreads).

In light of the foregoing, what is Katherine Forrest’s net worth, according to her Senate Judiciary Committee financial disclosures? Not as much as you might expect….

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Reports indicate that cloture has not been invoked for Goodwin Liu’s nomination to the Ninth Circuit. That means the filibuster is still on. That means he’s going to be a law professor, not a judge (at least until the next election cycle).

Senators Susan Collins (R-ME), Olympia Snowe (R-ME), and the totally [curse words] Ben Nelson (Something – NE) all voted against Liu. Game, set, match.

Maybe Goodwin Liu and Miguel Estrada should start a support group.

UPDATE (2:40 PM): The vote to end debate failed, 52-43; 60 votes were required.

Senate votes on cloture for Goodwin Liu confirmation [Daily Kos]

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