A few weeks ago, we were emailing with one of our sources about an interesting fact we noticed, based on Above the Law’s real-time coverage of Supreme Court clerk hiring. The fact: thus far, Justice John Paul Stevens has hired just one law clerk for October Term 2010 (Sam Erman (Michigan 2007 / Garland)).

We didn’t write about it at the time, because OT 2010 is still a year away, and it seemed a bit speculative to make much of it so far in advance. But others noticed this fact too — and were faster on the trigger about it. Like the AP:

Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court’s liberals will retire next year.

If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May.

Souter’s failure to hire clerks was the first signal that he was contemplating leaving the court….

Indeed. We started the speculation about Justice Souter’s retirement back in April 2009, over at Underneath Their Robes, based in part on his lack of law clerk hiring (and based in part on a sighting of him with Senator Pat Leahy).

But back to Justice Stevens:

In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now. Information about this advance hiring is not released by the court but is regularly published by some legal blogs.

Cough cough — like Above the Law?

Commentary from expert observers, plus a reader poll, after the jump.

Sigh. It’s Monday, and it’s also a quasi-holiday (Veterans Day). Government lawyers, a significant chunk of our readership, generally aren’t in the office today.

So maybe that’s one reason we’re feeling lazy and unmotivated today. Another possible reason: we’re resting on our laurels.

Late last week, Above the Law was named Best Law Blog, in the 2007 Weblog Awards. Very exciting! Thanks to everyone who voted, in response to our repeated pleas.

Was the contest “a pretty silly affair,” as our erstwhile evidence professor, Brian Leiter, opined? Sure. Which makes ATL’s victory eminently appropriate, since this is a pretty silly blog.

So congratulations to us! And thanks again to everyone who voted.

P.S. To Professors Kerr and Volokh and their fellow Volokh Conspirators: Sure, we’ll buy a round of beer! Just find us at the Federalist Society National Lawyers Convention later this week.

Best Law Blog [The 2007 Weblog Awards]
Does David Lat Owe Us Beer? [Volokh Conspiracy]
Did you vote for the “Best Law Blog” yet? [Brian Leiter’s Law School Reports]

* It’s hard to believe this car was parked in Brooklyn, of all places. [Althouse]

* The law school hiring process privileges glibness — and is that a bad thing? Law professors are hired (1) to train lawyers, of all people, and (2) to write articles that sound like they’re saying a lot, even when they’re not. Glibness would seem to be a BFOQ. [PrawfsBlawg]

* Once our Surgeon General starts getting on our case about drinking, it’s time to leave the country. But don’t move to the U.K. [Charon QC: The Blawg]

* Speaking of emigration, Tonga says: “Give us your tired, your poor, your disgraced and disbarred lawyers, yearning to breathe free.” [Blogonaut]

* Good news, Pennsylvanians. According to Professor Orin Kerr, “you can scream at your overflowing john all you want without violating the state’s disorderly conduct offense.” [Volokh Conspiracy]

* Martindale-Hubbell ratings: Pay to play? We find them less useful than they might otherwise be because so many lawyers aren’t rated. Will charging a fee for inclusion exacerbate the problem? [Real Lawyers Have Blogs; HireTrade Blog]

* Thoughts on the Eighth Circuit fantasy baseball ruling (mentioned in Morning Docket), from Professor Neil Richards. [Concurring Opinions]

* Dionne Warwick is a tax deadbeat? Say it ain’t so! [TaxProf Blog]

* Have a favorite New York blawg / blawger? Vote for them here. [Sui Generis]

* Ann Althouse is a visiting professor at Brooklyn Law School this year — and they’ve put her up in an apartment with some pretty sweet views. (Perhaps she can see 125 Broad Street, home of Sullivan & Cromwell, where she once worked as an associate.) [Althouse]

* Pope Benedict: Tax evasion is sinful (in case you didn’t know that already). [TaxProf Blog]

* Judge to public defender: What, you’re not ready to go to trial on a case you’ve had for less than a day? I’m holding you in contempt! [Record-Courier]

* Courtesy of Orin Kerr, pointers for how to talk about the Jose Padilla verdict at the next cocktail party you attend. [Volokh Conspiracy]

After yesterday, we thought they were all done for the Term. We thought wrong.

Some notable news from the Supreme Court today. Lyle Denniston of the invaluable SCOTUSblog reports:

In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1.

Such a switch by the Court — from denial to rehearing and new argument and decision — may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.

So they’ve changed their mind about a cert grant for the first time in 60 years. What a neat little factoid!

But hey, being a Supreme Court justice means being able to change your mind. And never having to say you’re sorry.

(For more on the likely import of this change of heart, see Orin Kerr.)

Court switches, will hear detainee cases [SCOTUSblog]
Supreme Court Agrees to Take Guantanamo Bay Cases [Volokh Conspiracy]

Our bestest gal pal, Monica M. Goodling, is in the news once again. From the AP (via the Volokh Conspiracy):

The Justice Department is investigating whether its former White House liaison used political affiliation in deciding who to hire as entry-level prosecutors in U.S. attorneys’ offices around the country, The Associated Press has learned.

Doing so is a violation of federal law.

The inquiry involving Monica Goodling, the former counsel and White House liaison for Attorney General Alberto Gonzales, raises new concerns that politics might have cast a shadow over the independence of trial prosecutors who enforce U.S. laws.

Justice spokesman Dean Boyd confirmed Wednesday that the department’s inspector general and Office of Professional Responsibility were investigating Goodling’s role in hiring career attorneys — an unusual responsibility for her to take.

Goodling “may have taken prohibited considerations into account during such review,” Boyd told the AP. “Whether or not the allegation is true is currently the subject of the OIG/OPR investigation.”

Back when Monica Goodling first invoked the Fifth Amendment privilege, a wide range of commentators, from Joshua Micah Marshall to Orin Kerr, expressed skepticism towards her claim. Questions were raised as to whether Goodling had a valid basis for declining to testify.

Gentlemen, in light of the latest news, you should be ashamed of yourselves. We think you owe Ms. Goodling an apology.

Moral of the story: Never doubt the Magnificent Monica Goodling!!!

P.S. Our favorite comment over at the VC: “God told her to.”

DOJ probes politics’ role in hiring U.S. attorneys [Associated Press]
Ex-Aide to Gonzales Accused Of Bias [Washington Post]
Monica Goodling and AUSA Hiring [Volokh Conspiracy]

If so, we’d love to hear from you — please email us (subject line: “Monica Goodling”). Now that Goodling, who served as the Justice Department’s White House liaison (she’s currently on leave), has announced her intention to invoke the Fifth Amendment privilege, the public is hungry for more details about this mystery woman of the DOJ.

So what we do know about Monica Goodling — besides her weakness for Ralph Lauren clothing and red plastic cups?

Dan Froomkin, over at White House Watch, offers up a detailed and comprehensive write-up (with numerous links). He explains why Beltway insiders are once again fixated on a young woman named Monica:

Will another presidency be tripped up by another Monica?

Juries in criminal cases are sternly lectured not to assume guilt when a defendant takes the Fifth. It is, after all, a Constitutional right.

But when a fairly minor player in what had heretofore not been considered a criminal investigation suddenly admits that she faces legal jeopardy if she tells the truth to a Congressional panel? Well, in that case, wild speculation is an inevitable and appropriate reaction.

The WSJ Law Blog also has a nice round-up:

Who is Monica Goodling? She’s a White House liaison for AG Alberto Gonzales and is currently on leave. Emails released by the DOJ last week showed she played a central role in the dismissals. Thanks to this story, we also know that she’s 33, a 1995 graduate Messiah College in Grantham, Pa., and received her law degree at Regent University, the Virginia Beach, Va. school founded by Yale Law School graduate Pat Robertson.

Such credentials led one ATL commenter to wonder:

What I want to know is how a 1999 graduate of the purported “law school” at a purported “university” founded by Pat Robertson has acquired the title of “Senior Counsel” to this nation’s Attorney General.

More on Monica, after the jump.

Big news for both the federal bench and legal academia: Chief Judge David F. Levi, of the Eastern District of California, has been picked as the next dean of Duke Law School.

If approved by the trustees, Levi will replace Dean Katharine Bartlett on July 1. Here’s the official press release.*

Chief Judge David Levi is one of the most highly-regarded district judges in the entire federal judiciary — and this should come as no surprise, given his pedigree. The 55-year-old judge is a Harvard College and Stanford Law grad, former Ninth Circuit clerk, and member of the Elect (OT 1982/Powell).

Legal genius runs in the Levi family. David Levi is the son of the late Edward Levi, former Attorney General under President Ford (and recently in the news in the wake of President Ford’s passing; he recommended Justice Stevens for the SCOTUS). As the WSJ Law Blog points out, David Levi’s older brother is also a high-powered lawyer: John Levi, a partner at Sidley & Austin.

When we clerked on the Ninth Circuit, we worked on an appeal from a decision of then-Judge Levi (he became Chief Judge in 2003). It was a bizarre an interesting case involving a transsexual ex-prison inmate, one Torey Tuesday South, who filed a civil action against California prison officials. She alleged that the officials improperly cut off her sex hormones (which she had been taking since she was a teenage boy). The officials asserted qualified immunity.

The record on appeal was really weird highly unusual. It included quasi-soft-porn photographs of Torey Tuesday South in various unusual positions, designed to showcase certain parts of her anatomy. It also included materials that gave us a crash course in gender dysphoria.

We’ll spare you the details; if you’re curious, you can look up the decision on Westlaw. In the end, Chief Judge Levi’s decision to allow the case to move forward was affirmed. The factual findings and legal reasoning he provided in support of his ruling were impeccable.

In his new role as dean of Duke Law School, David Levi will surely grapple once again with issues of transsexuality. But the questions presented will be less thorny. For example: Can transexuals use both the male and female bathrooms in the law school (as they can in the New York subway)?

The Duke deanship is an exciting new opportunity for one of our nation’s most distinguished jurists. Congratulations, Your Honor!

Food for thought: Professor Orin Kerr wonders: Is Chief Judge Levi, regarded by both liberals and conservatives as a fair and thoughtful jurist, the kind of Supreme Court nominee who could win over Democratic senators?

David Levi is only 55 years old. He’s a moderate conservative with 16 years of judicial experience, as well as a civil procedure guru. Now he’s adding another feather to his cap: the deanship of a prestigious law school. If he steers clear of controversy as dean, he’s certainly a SCOTUS possibility.

* From the Duke alum who sent us the press release: “I can speak for many of my fellow Duke Law alums when I say good riddance to the former dean, Kate Bartlett.”

Update: Some Duke alumni dissent from this assessment of Dean Bartlett. For further discussion, see the comments.

Federal Judge David F. Levi selected as Dean of Duke Law School [Duke Law School]
Duke Law School Selects Judge David Levi as Dean [WSJ Law Blog]
Wonderful news for Duke Law School, but a sad loss of a very talented judge [How Appealing]
David F. Levi bio [FJC]
Ex-Inmate’s Suit Advances [Sacramento Bee]
Transsexual inmate mistreated, court says [Sacramento Bee]
More on 100-0 Nominees [Volokh Conspiracy]

It is SO ON.

More on Judge Pregerson’s Opinion in Carrington v. United States [Volokh Conspiracy]

More Kerr on Carrington and mandate recall discretion [Sentencing Law and Policy]

Distinguishing finality interests between convictions and sentences [Sentencing Law and Policy]

Earlier: Sentencing Law Smackdown: Berman v. Kerr?
Judge Harry Pregerson Is Cruisin’ for a Bruisin’

On Wednesday, Professor Orin Kerr sarcastically mocked — and also analytically attacked — the Ninth Circuit’s recent decision in Carrington v. United States (PDF). In an opinion by liberal stalwart Harry Pregerson, the court authorized resentencing in two cases from the Mesozoic Era the 1990’s. We wrote about the decision here.

We expressed interest in hearing what sentencing guru Doug Berman would have to say about the case. And now Professor Berman has kindly obliged, in a quasi-snarky post that asks, What’s wrong with equitable Booker retroactivity in the Ninth Circuit?

Consider the gauntlet thrown down. Professors Berman and Kerr are two of the biggest crim-law bloggers around. And they kinda look alike, too. (See photos — Professor Berman at right, Professor Kerr at far right.)

Will Professor Kerr take up Professor Berman’s challenge? Might we have a blogospheric battle of the titans on our hands?

(To be sure, you have to be a bit of a sentencing law geek to appreciate this. If you are, then you might also enjoy this post by Professor Berman, Proof the guidelines are reasonable — a riff on our recent post about Justice Breyer writing the U.S. Sentencing Guidelines on Professor Charles Fried’s dining room table.)

Carrington v. United States [Volokh Conspiracy]
What’s wrong with equitable Booker retroactivity in the Ninth Circuit? [Sentencing Law and Policy]
Carrington v. United States (PDF) [Ninth Circuit via How Appealing]

Earlier: Judge Harry Pregerson Is Cruisin’ for a Bruisin’

Or at least a big benchslap upside the head, courtesy of the Supreme Court. Per Orin Kerr:

A lot of people have talked about the Supreme Court’s small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it. He handed down an opinion today in Carrington v. United States that has “Destination: One First Street” written all over it.

Read the rest of Professor Kerr’s devastating critique here. Howard Bashman also doesn’t think highly of the opinion.

Professor Kerr concludes by quoting George Will: “[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases.” Will’s article was about a “Reinhardt special.” But as Carrington shows, Judge Stephen Reinhardt isn’t racking up reversals all by himself; he gets by with a little help from his friends.

One final note: Carrington gave Judge Consuelo Callahan, the luscious Latina sometimes mentioned as a possible Supreme Court nominee, the opportunity to write an impassioned, high-profile dissent. Judge Callahan should be grateful to Judge Pregerson for giving her the chance to develop conservative street cred. If she gets nominated to the SCOTUS someday, she should thank Judge Pregerson at her investiture.*

(We’d be curious to hear what Professor Doug Berman, sentencing guidelines guru, thinks of Carrington.)

Update: Professor Berman weighs in. Interesting! Are the conservatives now guilty of putting their policy preferences ahead of the letter of the law?

* Best correction ever, from Slate: “Our article originally identified Consuelo Callahan as Consuela Callahan.”

Because, you know, all Latinas in the state of California are named “Consuela.” They’re all maids. And they’re all played by Lupe Ontiveros in the movies.

Carrington v. United States [Volokh Conspiracy]
Carrington v. United States (PDF) [Ninth Circuit via How Appealing]

Some updates and corrections to our post from yesterday, And Don’t Even Think About Joining the “Mile High Club”. We quoted an AP article that begun thusly:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

First, a correction. The couple wasn’t charged with violating the Patriot Act, but with violating 49 U.S.C.A. § 46504. As Professor Orin Kerr explains, this provision was amended by the Patriot Act, but “the substantive offense that was charged dates back to the 1960s.”

Second, an update. The couple may have needed air sickness bags rather than a hotel room. From a later AP piece:

A man arrested for allegedly engaging in “overt sexual activity” with his girlfriend on an airliner was lying with his head on her lap because he wasn’t feeling well, his attorney said.

That gesture was misinterpreted by a flight attendant, who humiliated and harassed the couple, said attorney Deb Newton, who represents Carl Persing.

But we can’t blame the flight attendant for misinterpreting things. After all, the woman was “observed smiling.”

Chicken or beef? We’ll have what she’s having.

Lawyer: Man Felt Sick — Not Sexy — on Plane [CNN]

Earlier: And Don’t Even Think About Joining the “Mile High Club”

Jeez, the terrorists really HAVE won. They’ve sucked all the fun out of flying:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, “making other passengers uncomfortable,” when a flight attendant asked them to stop.

“Persing was observed nuzzling or kissing Sewell on the neck, and … with his face pressed against Sewell’s vaginal area. During these actions, Sewell was observed smiling,” reads the indictment filed by the Federal Bureau of Investigation.

Help us out here. How does “pressing one’s face” against the “vaginal area” of a fellow passenger violate the Patriot Act? Especially if that passenger is “observed smiling”?

On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with “serious consequences” if he did not leave them alone.

The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.

Okay, that makes more sense. Press all you want into the “vaginal areas” of your fellow passengers (provided, of course, that you know them and they consent). Just don’t threaten the stewardess flight attendant when ordered to stop, and you’ll be fine.

Update: Professor Orin Kerr has some doubts about this case. See here.

Further Update, and Correction: They weren’t charged under the Patriot Act, but under 49 U.S.C.A. § 46504. See Professor Kerr’s update. Serves us right for not looking at the indictment ourselves.

Mid-flight Sexual Play Lands US Couple Afoul of Anti-Terrorism Law [Associated Press]

The judiciary was largely upstaged yesterday by developments from the other two branches: the Democratic takeover on Capitol Hill, and the resignation of Donald Rumsfeld as Secretary of Defense.

But the Supreme Court was still doin’ its thing yesterday, hearing the cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood. These cases raise the constitutionality of the federal Partial-Birth Abortion Ban Act. So of course there was disorder in the court:

[O]ne man, clad in a shirt that read JESUS, entered the courtroom and sat in the spectator section midway through oral arguments.

Wake up, SCOTUS marshals!!! The guy might as well have worn a shirt reading “ARREST ME” — which is what they did, after this happened:

[D]uring the time allotted to [Priscilla] Smith, the pro-choice lawyer arguing on behalf of Nebraska abortion provider Dr. Leroy Carhart, the man erupted. “ABORTION!” he thundered in a voice that reverberated in the quiet and still courtroom. “REPENT OR YOU WILL PERISH,” he went on. He grabbed the arm of Carhart, who happened to be seated next to him, and pulled him to the ground.

As one would expect, the gracious and unflappable Chief Justice handled the interruption quite smoothly. He “drew polite laughs when he then offered Smith three extra minutes to make her case.”

Update: Or was it just an extra 30 seconds? See here and here.

The protester, a gent by the name of Rives Miller Grogan, was charged with violating 40 U.S.C. 6134. Here’s what that statute provides (robe swish: Orin Kerr):

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

Professor Kerr: “That’s right: It’s illegal to make an oration in the Supreme Court building! So be careful out there, folks.”

Drama in the Court [MSNBC via FARK.com]
When Oral Argument Is a Crime [Volokh Conspiracy]
High Court Focuses on Medical Alternatives in Partial-Birth Abortion Cases [Legal Times via How Appealing]
Commentary: Kennedy vote in play on abortion [SCOTUSblog]
Title 40, United States Code, Chapter 61 [House.gov]

Now that we have the able assistance of Stella Q for Non-Sequiturs — check out her great post from yesterday — we have no place for random links that catch our eye, but don’t merit full treatment in a separate post. Blogospheric leftovers, if you will.

So here’s a special midday “bonus edition” of Non-Sequiturs:

* “Law porn”: Glenn Reynolds is not turned on. [Instapundit]

* Wherever there’s a financial debacle, the plaintiffs’ lawyers can’t be far behind. [DealBreaker]

* Project Runway: We were thinking (and hoping) that Uli Herzner would win. But Professor Althouse called this one correctly. [Althouse]

* This paper sounds interesting. Can it justify damage awards that include payments for prostitute visits? [PrawfsBlawg]

* “[T]he Nietzschean alternative: a postmodern appropriation of pop culture that turns an entire class into a video game.” Unorthodox? Certainly. But it also sounds kinda fun. [Concurring Opinions]

* Forget about Kansas’ Kansas’s Kansas’ issues. What’s the matter with Namibia? [WSJ Law Blog]

* CNN has its finger on the pulse of America — and Orin Kerr is giggling. [Volokh Conspiracy]

We’ve blogged a fair amount about Scott Blauvelt, the Ohio prosecutor charged with public indecency for walking around his office in the nude. His lawyer, Michael Gmoser, seems to be laying the groundwork for an insanity defense. In a statement issued yesterday, Gmoser said that his client was seriously injured in a 2005 car accident, suffers from mental illness, and is “an American with a disability.”*

But Orin Kerr, blogger and criminal law professor extraordinaire, offers a more persuasive defense:

Was Blauvelt’s conduct actually a crime? Let’s assume Blauvelt was conscious and not having some sort of seizure that might raise voluntary act or mens rea issues. Here’s what I gather is the relevant text of the Ohio public indency statute, R.C. § 2907.09(a):

No person shall recklessly do any of the following, under circumstances in which the person’s conduct is likely to be viewed by and affront others who are in the person’s physical proximity and who are not members of the person’s household … Expose his or her private parts.

There are some interesting ambiguities in the statute, but it seems to me that the key question is whether Blauvelt was naked “under circumstances in which the person’s conduct is likely to be viewed by and affront others who are in the person’s physical proximity.”

We don’t know a lot of the facts here, but based on the story it doesn’t seem like this element has been satisfied. As best we know, the only person who saw Blauvelt was the security guard, who saw him at night via a remote security camera. If the courthouse was closed and no one else was expected to be physically nearby, I would think that the statute probably wasn’t violated.

Good stuff. Professor Kerr is one academic who actually knows his way around the real world of law. (This should come as no surprise. Before joining the ranks of the Elect, by clerking for Justice Kennedy, he was an Honors Program trial attorney in the Justice Department’s Computer Crime and Intellectual Property section.)

We have offered some irreverent commentary on Scott Blauvelt’s case. But for the record, we are all in favor of working in the buff. Isn’t that one of the best aspects of working from home?

* Query: Might it be a “reasonable accommodation” under the ADA to let Blauvelt walk around naked?

The Strange Case of the Naked Prosecutor [Volokh Conspiracy]

Earlier: The Case of the Naked Prosecutor, and A Brief Note on Owning It
Scott Blauvelt Needs a New Office Chair