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….
Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with references to ‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’…
The stalk-and-eventually-marry-your-doorman phenomenon continues to enthrall the NYT weddings editors. This week they shine the spotlight on yet another bride — this time a producer at CNN — who found love in the lobby. LEWW encourages female Biglaw associates to embrace this trend. You’re in and out of office buildings all day, ladies — open your eyes to the lusciousness perched behind those security desks!
And now, this week’s finalist couples:
Yesterday we opined that Judge Laurence H. Silberman would get the Attorney General nomination. Now we take that back.
After our post, a knowledgeable source informed us that Laurence Silberman isn’t interested in the job. A second source, who confirmed Judge Silberman’s lack of interest, added that he might be tougher to confirm that one might expect for a longtime federal judge. See here.
Then we came across this great analysis of the AG situation, by the ever-fabulous Jan Crawford Greenburg. She writes, over at her blog, Legalities:
The White House could announce as early as Wednesday its nominee to replace Attorney General Alberto Gonzales, and former U.S. Solicitor General Theodore Olson has emerged as a leading candidate—despite initial concerns in the administration that he could face a tough confirmation hearing, according to sources close to the process.
Olson, a highly regarded Washington D.C. lawyer, has broad support inside the administration because of his deep experience in the Justice Department in two different presidential administrations. In addition to serving as solicitor general during President Bush’s first term, Olson headed the Office of Legal Counsel during the Reagan Administration.
FLASH: Ted Olson becomes frontrunner for Attorney General, top sources tell DRUDGE REPORT; announcement could be imminent… Developing…
But we’re not so sure. Remember when Edith Brown Clement looked like the frontrunner for the Supreme Court seat vacated by Justice O’Connor? This White House likes surprises.
More discussion, after the jump.
As noted in the Washington Post, President Bush is expected to name Alberto Gonzales’s replacement as attorney general in the next few days, after returning from Australia tomorrow. The WaPo seems to be predicting Ted Olson:
[F]ormer solicitor general Theodore B. Olson has emerged as one of the leading contenders for the job, according to sources inside and outside the government who are familiar with White House deliberations.
Other candidates still in the running include former deputy attorney general George J. Terwilliger III and D.C. Circuit Court of Appeals Judge Laurence H. Silberman, according to the sources, who declined to be identified because of the sensitivity of the discussions.
Even though we’re still rooting for our former boss, based on this short list, we’re predicting Judge Laurence Silberman (who previously served as Deputy Attorney General, the #2 job at the Justice Department).
More thoughts, including discussion of George Terwilliger and Larry Thompson, after the jump.
* Short list of possible attorney general nominees includes George J. Terwilliger III and Judge Laurence H. Silberman (D.C. Circuit). [Washington Post via WSJ Law Blog]
* “Sen. Larry Craig should be allowed to withdraw his guilty plea… because he was under extreme stress after being hounded by journalists asking questions about his sexuality, his lawyer argues.” Umm, okay. [Associated Press]
* Judges of the Foreign Intelligence Surveillance Court hike up their robes a little more, show the world about national security. [Sidebar / New York Times via How Appealing]
* Prominent Democratic fundraiser Norman Hsu flipped out on train, “at one point stripping off his shirt and shoes,” before his crazy ass got arrested. [San Francisco Chronicle via Drudge Report]
* Uproar over Missouri Supreme Court culminates with Gov. Blunt offering a half-hearted endorsement of his own appointee. [Kansas City Star via How Appealing]
The D.C. Circuit’s administrative law-heavy docket can be a total snooze-fest less than thrilling. But at least that uber-prestigious court is stocked with some interesting personalities.
Like the prominent, conservative, and temperamental Judge Laurence H. Silberman. From a tipster:
How about giving a shout-out to the latest Silbermannerisms? Yesterday Judge Silberman served up these two gems in a completely run-of-the-mill case, Menkes v. DHS (PDF):
“In response, the government raises a number of threshold jurisdictional arguments. Frankly, we do not think them worth a tinker’s damn.”
“This argument [is] unworthy of the government.”
OUCH — but not out of character for Judge Silberman. More from our source:
[H]e’s badass. The all-time greatest Silbermannerism:
“If you were ten years younger, I’d punch you out!” [Silberman to Abner Mikva, in conference with Ken Starr, as recalled by Mikva -- New York Times, 9/1/1998]
Someday I’ll start a blog on the DC Circuit, and when I do I plan to make Silbermannerisms a regular feature. But in the meantime, I hope you put those quotes to good use! He’s surely the greatest Judicial Divo of all time.
Judge Silberman is certainly in the running for that title. But what about his liberal counterpart, Judge Harry T. Edwards? No shrinking violet, he. Menkes v. DHS (PDF) [U.S. Court of Appeals for the D.C. Circuit]
Attorney General Alberto Gonzales may be slightly more secure in his position these days than in the recent past, when it was looking like “Gonzales” was Spanish for “canned.” But he’s not out of the woods yet — which is why speculation about possible successors continues.
Ben Wittes, writing for TNR Online, has some excellent insights. His overall take:
[B]etween a sinking administration that still demands loyalty above all else and congressional Democrats keen on using their new oversight powers, finding a candidate who satisfies both sides will be hard. The next attorney general must be someone acceptable enough to Democrats not just to get confirmed but to tamp down the fire Gonzales has witlessly set.
But he must also be enough of a conservative to satisfy the White House. And he needs a reputation for probity and moral seriousness sufficient to speak to the public and to Congress with the respect that Gonzales obviously lacks. It’s a tall order–a pinch so tight that it squeezes out almost all of the names being bandied about in public.
Wittes then marches through various possible nominees. Discussion continues, after the jump.
Yeah, we know: Attorney General Alberto Gonzales remains in office.* But his days are looking numbered. He’s received the kiss of death — a presidential expression of “confidence” — and even some Republicans are calling for his resignation.
So we have to ask:
If Alberto Gonzales steps (or gets pushed) aside, who should take his place as Attorney General?
We’re rooting for Shanetta Cutlar. But if she doesn’t get tapped, Andrew Cohen floats this interesting idea.
Right now, Patrick Fitzgerald is most well-known for his (successful) work on the Scooter Libby case. This may preclude his selection as AG, given the political hot potato that it turned into — and the embarrassment it caused for the Bush Administration.
But let’s not forget that, setting aside the Libby case, Fitzgerald has the background that one would normally seek in an Attorney General. He’s the U.S. Attorney for the Northern District of Illinois (Chicago), one of the nation’s most prestigious prosecutor’s offices, and he has some serious additional credentials.
After graduating from one of our nation’s finest high schools (shameless plug for our alma mater), Pat Fitzgerald went on to Amherst College and Harvard Law School. Before taking over as the U.S. Attorney for the Northern District, he was a line prosecutor in the legendary Southern District of New York. As an AUSA in the SDNY, he worked on some major prosecutions, including the trials of Omar Abdel Rahman and Ramzi Yousef. He has been praised for his work as U.S. Attorney in Chicago.
Thoughts? Nominating Fitzgerald as AG might be kinda crazy, but kinda brilliant. It would change the story line big time, in a way that the White House might welcome.
(Some other random names we’ve heard as possible AG candidates: former Deputy Attorney General James B. Comey; SEC Chairman Christopher Cox; and Judge Laurence H. Silberman, of the D.C. Circuit.)
* It’s a rainy Friday afternoon, not much is going on, and people aren’t paying attention to the news. If you’d like to step down, Mr. Attorney General, there are still several hours of prime resignation time available to you. The Case for Attorney General Patrick Fitzgerald [Washington Post / Bench Conference]
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]
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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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