Judicial Nominations

Rachel Brand Rachel Brand Rachel Brand Above the Law.jpg* Some interesting comments about Harriet Miers getting a Fifth Circuit nomination, as well as speculation about who might replace her as White House counsel. [ConfirmThem]
(We second the suggestion of Rachel Brand (at right). Brand previously worked in the White House counsel’s office, before her appointment to head the Office of Legal Policy at the Justice Department.)
* From an Instpaundit correspondent: “I’m no law prof, but isn’t the presumption of innocence most useful before a pile of facts come out indicating that the accused are, in fact, innocent?” [Instapundit]
* Speaking of which, check out Best Defense, which “seeks to place the presumption of innocence front and center.” [Bag and Baggage]
* Jeez, he’s even more of a tool than we thought. Can someone please talk some sense into him about 2008? [Althouse]
* Backlash to the backlash against (allegedly) excessive executive pay. [Point of Law via Dealbreaker]
* Amen. With the exception of news aggregators, blogs are by their nature idiosyncratic, rather than comprehensive. So don’t get your briefs in a wad when we fail to write about your pet topic. [Volokh Conspiracy; Althouse]

Mike Wallace Michael Wallace Michael B Wallace Phelps Dunbar Fifth Circuit.JPGVia How Appealing, of course (because who else besides us and Howard Bashman is blogging right now):
1. Controversial Fifth Circuit nominee Michael Wallace (at right), a member of the Elect (Rehnquist/OT 1977) who was still rated “unqualified” by the ABA, will ask President Bush to withdraw his nomination next week.
This is a smart and gracious move by Wallace, which will allow the White House to save some face. Since Wallace couldn’t even get confirmed in the Republican-controlled 109th Congress, his chances of confirmation in the 110th Congress would have been next to nil.
Manuel Real Manuel L Real Manuel Lawrence Real Judge.jpg2. Disciplinary sanctions may be imposed upon Judge Manuel Real (C.D. Cal.), the Los Angeles federal judge accused of improperly intervening in a bankruptcy case to rescue a damsel probationer in distress (Deborah Canter, routinely described in news accounts as “a comely female”).
Ladies and gentlemen, chivalry is officially dead. What’s the point of being “a comely female” if you can’t get favorable treatment from the federal courts?
Judge Real has appealed the censure ruling of the Ninth Circuit Judicial Council to the Judicial Conference of the United States. It’s not clear when they will rule.
Judicial hopeful steps aside [Clarion-Ledger]
Michael B. Wallace bio [Phelps Dunbar]
Web error reveals censure of U.S. judge [Los Angeles Times]
Manuel L. Real bio [FJC]

Marissa Cooper Alex The OC girl girls lesbian kiss.jpgWe’re obsessed with federal judges. And we’re fascinated by lesbians (in a strange, quasi-sociological way). So of course we must weigh in on the whole Senator Sam Brownback/Judge Janet Neff controversy.
The uber-conservative Senator Brownback (R-KS), a likely standard-bearer for social conservatives in 2008, had been blocking Judge Neff’s nomination to the federal bench — currently she’s a Michigan state-court judge — because she once attended a same-sex commitment ceremony. For lesbians.
But earlier this week, Sen. Brownback announced that he would permit a vote on Janet Neff’s nomination. We see this as good news.
Call us libertine (or libertarian), but Senator Brownback’s original position was a bit much. We agree with Dan Markel’s characterization of it as “asinine” and “obtuse.” Regardless of your views on gay marriage, it seems unwarranted to hold up a judicial nomination because the nominee once went to a party. Back in 2002. For lesbians.
(And we’d add that Judge Neff is merely a District Court nominee. How much damage can she do there? If she issues an opinion holding that the U.S. Constitution guarantees lesbians the right to marry, she’ll be reversed faster than you can say “power tools.” And if Brownback is worried that she’d use her judicial authority to go around marrying Sapphists left and right, it’s too late — she’s already a state court judge.)
Here’s a little more background (and commentary):

Janet T. Neff — the judicial nominee whose nomination to the federal bench is being delayed while Sen. Sam Brownback investigates what, exactly, she did at a lesbian couple’s commitment ceremony — says that she attended the event merely as a friend and did not act out of line. In a letter to Brownback that was quoted today by the AP, Neff wrote:

“The ceremony, which was entirely private, took place in Massachusetts, where I had no authority to act in any official capacity and where, in any event, the ceremony had no legal effect…”

“When Mary and her partner, Karen Adelman, asked me to participate in their commitment ceremony by delivering a homily, it was not different from being asked by my own daughters to be part of an important event in their lives.”

And we think we speak for everyone when we say: BURN HER!!!!!! SHE’S A….COMMITMENT CEREMONY ATTENDEE?!?!?!?!

It’s unclear what Brownback will do next to try and stop Neff’s nomination. However, rumor has it he is currently in his lab testing hairs that he plucked from Neff’s head to see if any of “the gay” happened to seep in through her scalp and penetrate her soul.

Even more dubious than Senator Brownback’s original position was this idea:

Mr. Brownback… said he would also no longer press a proposed solution he offered on Dec. 8 that garnered even more criticism: that he would remove his block if Judge Neff agreed to recuse herself from all cases involving same-sex unions.

In an interview with the Times, Professor Charles Fried, the prominent conservative legal scholar, explained why this proposal would be problematic. For lesbians. And the judiciary, too.
But wait — it’s not over yet. Senator Brownback will allow a vote on Janet Neff, but he wants more hearings, so he can question her further about her participation in the lesbianic rituals. (Read: grandstand for Republican primary voters.)
We’ve rambled on long enough; now it’s your turn. After all, YOU are Time’s Person of the Year.
Please help out Senator Brownback. In the comments, please suggest questions for Brownback to propose to Judge Neff if supplemental hearings take place. Thanks.
Update: Some well-expressed views on this from Captain Ed (via Instapundit).
Brownback Wants to Re-Question Nominee [Associated Press via How Appealing]
Senator Removes His Block on Federal Court Nominee [New York Times]
This time of year, however, it’s usually the free booze, Ecstasy, and mistletoe [PrawfsBlawg]
Yes, Ms. Neff, but when the women kissed — did you look at them for a period extending three seconds? [Good As You]

Third Circuit 3rd circuit 3d circuit 3d cir.jpegA few quick updates on our former stomping grounds, the U.S. Court of Appeals for the Third Circuit:
1. There’s been some speculation about who might be nominated for the Third Circuit seat previously held by Justice Alito. What we’re now hearing is that it’s probably going to Judge Noel Hillman, a former high-ranking Justice Department official, just confirmed to the District Court (D.N.J.).
This might be surprising, considering that Judge Hillman has barely warmed the district court bench. His investiture as a district judge took place only a few weeks ago.
Noel Hillman Noel L Hillman Noel Lawrence Hillman Noel Laurence Hillman judge Above the Law.jpgBut nominating Judge Hillman to the court of appeals actually makes political sense for the White House — especially in its current, weakened state. President Bush doesn’t have a great deal of political capital right now, and he’ll be dealing with a Democrat-controlled Senate come January (assuming Sen. Johnson hangs in there).
Picking a nominee who made it through the Senate just a few months ago would be a shrewd move. Since the two New Jersey senators supported Hillman for the district court, it would be awkward for them to oppose him for the circuit court now.
Of course, this is just a rumor. And rumors can be wrong. So stay tuned.
2. Judge Kent Jordan, formerly on the Delaware district court bench, was sworn in as the newest Third Circuit judge on Friday morning. The ceremony was small and private. Judge Jordan was confirmed by the Senate earlier this month, by a vote of 91-0, before the end of the 109th Congress.
3. Another Third Circuit nominee, Judge Thomas Hardiman (W.D. Pa.), may not be as easy a sell as one might have thought. Senate Democrats are tut-tutting him for making political contributions to Republican candidates before he was nominated for his district judgeship.
Call us cynical, but this strikes us as no big deal. Making (perfectly legal) campaign contributions to U.S. senators? How else do you become a federal judge?
Seriously, this is not a new practice. Political patronage goes back to, like, the Jackson Administration. And strategic campaign giving has been engaged in by judicial nominees on both sides of the aisle (PDF).
This is why we were unimpressed with Salon’s “four-month investigation” showing that, lo and behold, politicians reward their contributors with federal judgeships. We could have told you that in four seconds.
Noel L. Hillman bio [FJC]
Senate Confirms Kent Jordan to 3rd Circuit, Replacing Senior Judge Jane Roth [Legal Intelligencer]
Judge Kent Jordan Confirmed to the Third Circuit [How Appealing]
Kent A. Jordan bio [FJC]
Another Bush judge on the hot seat [Salon.com via How Appealing]
Thomas M. Hardiman bio [FJC]
Riding Circuit — In a Taxicab? [Underneath Their Robes]
Non-Scandal [Committee for Justice Blog]

Confirmation Wars Ben Wittes Benjamin Wittes Above the Law.jpgHey, guess what? In our best impression of Howard Bashman, we’re going to tell you all about a recent lunch of ours.
On Tuesday, we had an absolutely delightful lunch with Benjamin Wittes. He’s an editorial writer for the Washington Post, specializing in legal affairs, and the author of a new book about the judicial confirmation process: Confirmation Wars: Preserving Independent Courts in Angry Times.
We recommend Confirmation Wars most highly. It’s tremendously well-researched, as well as fascinating and fun to read. (Even the footnotes are juicy.) It has the rigor of an academic book — it’s published in connection with the Hoover Institution at Stanford — but the readability of, well, a non-academic book. And it came out after the Roberts and Alito confirmations were concluded, so it’s informed by those recent experiences.
Wittes ably diagnoses the problems with the current judicial nomination and confirmation process, then offers up some solutions. And he’s commendably fair-minded and non-ideological in his assessment of a highly controversial subject. (To learn more about the substantive views expressed in the book, check out this article, from the Harvard Law Record.)
Starting in January, Wittes will be away from the Post. He’s going on a six-month book leave, to work on his next project: a book about the federal appeals court. We can’t wait to read it!
In case you’re wondering, we lunched at Georgia Brown’s, just down the street from the Post offices. We both had the soup special — black bean, if memory serves — and the fried chicken salad, which was scrumptious, even if not very healthy for a salad. And we gossiped incessantly about federal judges and judicial nominees. What a blast!!!
Confirmation Wars: Preserving Independent Courts in Angry Times [Amazon.com]
Confirmation Wars: Ben Wittes on How to Preserve Judicial Independence [Harvard Law Record]

Capitol building Above the Law Legal Blog 2.JPGVia Howard Bashman, we learned of the cancellation of tomorrow’s Senate Judiciary Committee hearing. This piqued our curiosity: What was the hearing for, and why was it canceled?
So we did a little poking around. We learned that the SJC was planning to hold confirmation hearings for an “unspecified handful of district court nominees.” But since these nominations “were going nowhere fast,” in the final week of the 109th Congress, the cancellation is really “no big deal.”
Meanwhile, in other nomination-related news, Sean Rushton — executive director of the Committee for Justice, which crosses swords with Nan Aron “promotes constitutionalist judicial nominees” — is stepping down. He’s leaving for a position with the Bush Administration.
Rushton will be replaced by Curt Levey, who has served as CFJ’s general counsel since the summer of 2005 (and who also blogs over at ConfirmThem, an excellent source of nomination news and gossip). Congratulations to Curt on his new position!
NOTICE OF COMMITTEE HEARING CANCELLATION [Senate Judiciary Committee via How Appealing]
Changes at CFJ [Confirm Them]
CFJ Announces Curt Levey as Executive Director [Committee for Justice]

William Wilkins William W Wilkins Jr Billy Wilkins.JPGLast week was a busy one in legal news, so we apologize for our tardiness in bringing you this news. As first reported at the South Carolina Appellate Law Blog, and later picked up by The State, Chief Judge William Wilkins is retiring as chief judge of the Fourth Circuit.

William “Billy” Wilkins of Greenville is stepping down as chief judge of the 4th Circuit U.S. Court of Appeals, a position he has held since 2003….

Wilkins, 64, in a prepared statement Thursday afternoon said he had notified President Bush of his decision to step down effective July 1, 2007.

“It’s time to move on,” he said.

The obvious questions. First, who will replace him as Chief Judge?

Under federal seniority rules, his successor would be Karen Williams of Orangeburg, who would become the first woman to hold that position in the circuit. Williams, 55, is the next senior judge younger than 65.

Karen Williams Karen J Williams Above the Law.jpgJudge Williams, you may recall, is a judicial hottie, described by the New York Times as “a tall, slender woman with delicate features and a regal carriage.” Rumored to have both a private plane and a personal shopper, the stylish Judge Williams is known around her hometown of Orangeburg as “Miss Karen.”
(Yes, she’s married. But as a fellow South Carolina native explains, “the first thing one must learn about Orangeburg is that every woman is referred to as Miss,” regardless of her marital status.)
And who might be nominated to the Fourth Circuit to fill the new vacancy on the court? Some speculation appears after the jump.

double red triangle arrows Continue reading “Chief Judge Wilkins Makes Way for “Miss Karen””

stack of bills cash money.jpg* It’s all about the benjamins, baby. Bonus season is upon us. And we’re standing by to broadcast every move. So please email us with any news, rumors, and leaked memos about bonuses.
* Truthful tips are especially welcome. Look for the first wave of bonus announcements in the coming week.
* And check out the most anal retention letter ever.
* In non-Biglaw developments, it was a busy week for the Supreme Court. They heard all about EPA regulatory discretion, the Federal Circuit’s recondite jurisprudence, and other fun topics.
* On tap for the SCOTUS: Ken Starr and a bizarrely fascinating case. It’s like Bill ‘n Monica, all over again. But is it sexy enough for same-day audio-cast? Probably not.
* Meanwhile, on Capitol Hill, the imminent Democratic takeover is already being felt at the Senate Judiciary Committee. The big white-collar shops are eagerly anticipating lots of new business.
* Speaking of elections, please cast your vote for November 2006 Couple of the Month. And if you’re an NYU Law School student, please forward us the results of voting in the 3L hottie contest.
* In federal appellate judge news, Judge Morris Arnold is recovering nicely, Judge Richard Posner is getting testy, and Judge Frank Easterbrook is now Chief Judge Frank Easterbrook.
* And over in the district court, Judge Lee Rosenthal (S.D. Tex.) is probably out of the running for a promotion to the Fifth Circuit (despite being very highly regarded).
* Finally, in state court land, some judges are getting a little big for their britches robes. They’re mouthing off, railing against immigrants, and making spectacles of themselves. Pipe down, Your Honors, and stay out of trouble.

Arlen Specter 2 Senator Arlen Specter Above the Law.jpgHere’s another excellent article from Jeffrey Toobin of the New Yorker. It’s about the role played by Sen. Arlen Specter (R-PA), outgoing chair of the Senate Judiciary Committee, with respect to the recent habeas corpus legislation (aka the Military Commissions Act of 2006).
If you’re confused about the controversy over this legislation, which has wound its way through both the federal courts and the Senate chamber, the article is well worth your time. It explains recent developments in this complex area of law with commendable clarity.
And it also contains fun bits of color and gossip. We collect a few highlights, after the jump.

double red triangle arrows Continue reading “Senator Arlen Specter: One Heck of a Squash Player”

Lee H Rosenthal Judge Lee Rosenthal Above the Law.jpgBefore the Thanksgiving break, we wrote a fair amount about some possible nominees to the U.S. Court of Appeals for the Fifth Circuit. We’ll now pick up where we left off, and continue with more detailed profiles of some of the potential nominees we mentioned.
But first, a request. A number of ATL readers have expressed interest in speculation about nominees for the open seats on the Third Circuit (Justice Samuel Alito’s old seat) and Fourth Circuit (Judge J. Michael Luttig’s old seat). If you’ve heard anything interesting on these subjects, please do share.
Today’s possible Fifth Circuit nominee: Judge Lee H. Rosenthal, of the Southern District of Texas. Here are some things we’ve heard from our readers about Judge Rosenthal:

“Best judge on the S.D. Tex. bench, which is actually passably deep. Sweet, rational, bright and tough all in one package.”

“The country could not do better, and I think even hyperpartisan Democrats would be able to see that. She’s my pick if Bush wants to avoid spending any significant political capital.”

“A stellar trial judge who would make a superlative appellate judge. And those two don’t always go hand in hand. See, e.g., Ann Claire Williams of the 7th Circuit (who should have remained an excellent district judge instead of becoming a thoroughly mediocre appellate jurist).”

(Judge Williams, if you’re reading this, please note that these are simply opinions from ATL readers. They do NOT represent our own views.)
More comments about Judge Rosenthal, from the readers of Grits for Breakfast:

“Several readers identified Rosenthal… as an] exceptional, fair, and qualified judge[].”

“One reader feared losing Judge Rosenthal or Judge Elrod as trial judges, and suggested Rosenthal deserved a 5th Circuit appointment and Elrod should fill her federal district court slot.”

“Lee Rosenthal is by far and away the most learned Judge I have ever practiced before. She seems to be fair, well-reasoned and straightforward.”

So given all this praise, why did we place Judge Rosenthal in the second tier of possible nominees — an “outside possibility” for the Fifth Circuit?
Well, to make a long story short, we hear that some conservatives are concerned about her “reliability” (i.e., her ideological consistency). And even though the new Senate will be controlled by the Democrats, the White House and the Republican on the Senate Judiciary Committee do not feel compelled to put forward nominees whose conservatism is even slightly in question.
(At least not yet. It remains to be seen whether the scrappy Chuck Schumer, aided by Nan Aron and friends, will wear them down over time.)
What do you know about these potential 5th Circuit nominees? [Grits for Breakfast]
Earlier: More Fifth Circuit Scuttlebutt: R. Ted Cruz
Some Fifth Circuit Scuttlebutt

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