This afternoon, the Federalist Society at the University of Chicago Law School sponsored an interesting debate. It featured Berkeley law professor John Yoo, author of the so-called “torture memos,” and Bob Barr, the prominent libertarian and former congressman, debating the following subject: “Presidential Power v. Civil Liberties in Times of War.”

(Executive power is the subject of Professor Yoo’s new — and well-reviewed — book, Crisis and Command.)

Reports on the proceedings from attendees — plus comment from Professor Yoo, who apparently accused the Bush Administration of “incompetence and stupidity” — after the jump.

UPDATE: Photos added, after the jump.

Barack Obama just finished up his first State of the Union address. Lots of interesting things: jobs, gays in the military, health reform capitulation c’mon we’re so close we’ve got to do something…. Oh, and nuclear power plants are back on the agenda. CHECK YOU RADIATION LEVELS.

But the biggest legal news, at least from the perspective of your Above the Law editors, was Obama’s smackdown of the Supreme Court — while six of the nine were sitting right in front of his face.

It was so harsh that it inspired Justice Samuel Alito to shake his head and to mouth the words “not true” at the president — very reminiscent of the “you lie” moment from the last time Obama spoke in front of a joint session of Congress.

The video and additional details — plus UPDATES, including a mini-debate between Kash and Lat, and a READER POLL — after the jump.

We’re taking some trips down memory lane this week at Above the Law. Yesterday we wrote about Peter John, a Lawyer of the Day from 2007.

Today we bring you news about Herman Thomas, a Judge of the Day from 2007. He was accused of improperly paddling prisoners, but was acquitted at trial.

Now he’s exploring new opportunities in the political realm. From WKRG:

Three months after he was found not guilty of paddling and sexually abusing inmates, former Mobile County Circuit Judge Herman Thomas is running for State Senate.

“I wish to continue my commitment to serve my community that has done so much for me and my family,” Thomas said.

Like acquitting you on charges of spanking male prisoners and trading favorable treatment for sexual favors?

Herman Thomas isn’t the first former judge to go into politics. Over the years, there has been significant movement between the judicial and the legislative branches. (Linda Greenhouse has this nice write-up of the phenomenon.)

But ex-Judge Thomas’s move still seems a bit… random. Could there be another reason he’s running for elected office?

When I think of the Conservative Political Action Conference (CPAC), I think of, well, conservatives. When I think of Liberty University, which claims Jerry Falwell Jr. as its chancellor, I think of conservatives. So when Liberty Law School sponsors a CPAC event, I don’t expect there to be major conflicts between the two organizations.

And, apparently, I would be totally wrong about that. A tipster sent us this link from OneNewsNow:

Liberty University Law School has withdrawn as a co-sponsor of next month’s Conservative Political Action Conference (CPAC) in Washington because a Republican homosexual activist group is being allowed to co-sponsor the event.

If there are some people who think the anti-gay-marriage movement is nothing but bigotry in drag, it’s because of institutions like Liberty Law School.

More details after the jump.

Ah, censure. It’s what politicians do when no laws have been broken but they’re still really pissed about what went down.

With little debate, the South Carolina House of Representatives overwhelming voted to censure Governor Mark Sanford. The Palmetto Scoop reports:

After less than 30 minutes of debate, the South Carolina House of Representatives voted overwhelmingly on Wednesday to censure Gov. Mark Sanford for misconduct in office.

A total of 102 of 113 present members voted to pass a resolution formally rebuking the governor for misusing state aircraft as well as for his 2008 and 2009 publicly-funded trips to Argentina to visit his mistress. Sanford reimbursed the state for both Argentina trips.

Ooohhh, burn! That should teach him.

SC House censures Sanford [Palmetto Scoop]

Quinn Emanuel was instrumental in clarifying the New York State Constitution to allow Governor David Paterson the power to appoint a Lieutenant Governor — the post now being filled by Richard Ravitch. The firm would like $1 million for its counsel.

For those of you not steeped in the murky underworld of New York state politics, here’s a quick recap. Then-Governor Eliot Spitzer banged a prostitute. Lieutenant Governor David Paterson ascended to the top spot, and longtime Republican leader Joseph Bruno became acting Lieutenant Governor. That didn’t last long as the Democrats took control of the state senate by a slim majority, and Bruno resigned under the cloud of scandal (Bruno has since been convicted on charges of corruption). The New York State Senate exploded when two Democrats — Pedro Espada Jr and Hiram Monserrate — switched sides to join the Republicans and their new leader, Dean Skelos. At the time, Monserrate was facing charges of slashing his girlfriend’s face after spying another man’s business card in her purse. He was later convicted of misdemeanor assault, but cleared of the felony charges. In any event, Monserrat changed his mind and went back to the Dems, leaving the state senate deadlocked with 31 democrats and 30 republicans plus Pedro Espada. Espada was elevated to president of the Senate (turncoats gotta eat) and claimed that as president of the Senate he was acting Lieutenant Governor. Alright guys, I’m not gonna lie to you. This is gonna get kinda weird: Espada claimed he should have two votes.

In New York, Concrete jungle where dreams are made of, There’s nothing you can’t do,
Now you’re in New York, These streets will make you feel brand new, Big lights will inspire you,
Lets hear it for New York, New York, New York

Paterson announced he would be appointing a Lieutenant Governor. And that’s where Quinn Emanuel steps into this morass of prostitute banging corrupt girlfriend beaters.

That was the question posed in yesterday’s popular Ethicist column, in the New York Times. Here’s the question that a reader posed to columnist Randy Cohen:

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics?

NAME WITHHELD, GREENWICH, CONN.

Ah, Greenwich — limousine liberalism, anyone? We are not surprised that this question came from the left side of the aisle. In our experience, liberals — despite their self-proclaimed commitment to “tolerance” — are far more intolerant of people with divergent views. To liberals, the political is so often personal; if you don’t agree with their entire orthodoxy, you are per se a bad person.

Okay, we’re stepping off our soapbox. How did the Ethicist respond?

Find out — and discover whether the partner took the Ethicist’s advice, plus take a reader poll — after the jump.

I always wondered where former FEMA director Michael Brown would end up. I imagined he would end up as a greeter at the Bush presidential library. You know, something that he is actually qualified to do.

Instead, it appears the overmatched bureaucrat is taking his show to law school. No, not as a student, as a professor. TPMMuckraker reports:

Michael Brown, the much-ridiculed former FEMA director who became a symbol of the Bush administration’s disastrous response to Hurricane Katrina, has landed a new gig: teaching a law-school class on the Patriot Act next spring.

What student body will be lucky enough to learn from the best? Details after the jump.

It’s exam time. As we all know, stressed out law students tend to have colorful phrases about difficult exams. There’s a common, sometimes sexually charged vernacular. “That exam raped me,” or “I made property my bitch,” are things you’re likely to hear on campus around this time.

Well, the Student Bar Association at Northwestern University School of Law wants students to watch their language this exam period.

After the jump, check out the warning Northwestern students received from their student representatives.

President Obama seems to have made up his mind about the Khalid Sheikh Mohammed circus trial that will be coming to a New York courthouse near you. The Associate Press reports (gavel bang: ABA Journal):

Obama, in a series of TV interviews during his trip to Asia, said those offended by the legal rights accorded Mohammed by virtue of his facing a civilian trial rather than a military tribunal won’t find it “offensive at all when he’s convicted and when the death penalty is applied to him.”

I’ve argued that Obama isn’t as cool as everybody makes him out to be, but that was certainly some cold-ass rhetoric. “[W]hen the death penalty is applied to him”? Damn brother, you sending in the Wolf too?

Of course, after the jump, the lawyer part of Obama’s brain kicks in and he backpedals like a professional cornerback.

Over the weekend, we had the pleasure of attending the Federalist Society’s 2009 National Lawyers Convention, down in Washington, D.C. As in past years, conservative and libertarian legal luminaries were plentiful, and the panel discussions and other events were excellent.

Some folks — e.g., Josh Blackman — were liveblogging the proceedings. We’re only writing up the conference now, so you can call this “lateblogging” (both because we’re late in blogging about the conference, and blogging late at night; hey, better late than never).

This year, sadly, we missed most of the Thursday events (because of a speaking engagement at the ABA’s Law Firm Marketing Strategies Conference). The first Fed Soc panel we caught was on Friday afternoon:

Free Speech: The Fairness Doctrine

The rumors circulated back in August, but now it looks like it’s finally happening. From Marc Ambinder, shortly before 11 on Thursday night:

Sources in government say that White House Counsel Gregory Craig has decided to resign, and that the president’s personal lawyer, Robert Bauer, will take his place. A formal announcement is slated next week, though word might drop tomorrow.

Looks like that announcement is getting sped up. More after the jump.

UPDATE: Greg Craig’s resignation letter, also after the jump.

It’s the day after Election Day! Granted, this year’s election cycle wasn’t nearly as exciting as last year — when Obama ended racism in America.

Still, there are many winners to congratulate. Republicans Chris Christie and Bob McDonnell are new governors. People can now point to the North Country on a map of New York State. Michael Bloomberg secured a third term as New York City Mayor. And the New York Post (predictably) managed to ignore it all and plastered of picture of Pedro Martinez in a diaper on its front page.

But for our purposes, the biggest winners were the voters of Maine. They successfully defeated the efforts of gays and lesbians to be treated fairly, thus making sure that all of those rugged and earthy Mainers will not be tempted to have the gay sex they secretly desire.

Obviously the tactics of BC Law professor Scott Fitzgibbon — and other defenders of traditional marriages between drunken woodsmen and the girls they knock up — won the day. Do gay marriage advocates have any more tricks stashed in their closets?

Kash says yes, after the jump.

Meet Stewart Rhodes. He graduated in 2004 from Yale Law School, where his paper, “Solving the Puzzle of Enemy Combatant Status,” won a prize for the best paper on the Bill of Rights. Before entering the law, he served as a U.S. Army paratrooper.

What’s Rhodes up to now? Many military men turned lawyers troop off to large law firms, where the discipline and diligence cultivated in the armed forces help them succeed. Others join the JAG Corps or work for defense contractors.

But Rhodes, who was a non-traditional student at YLS, has taken a non-traditional career path since graduating.

Last week we wrote about the move of prominent D.C. lawyers Lanny Davis and Eileen O’Connor from Orrick to McDermott Will & Emery. Am Law Daily described the jump as follows: “Lanny Davis, a longtime Washington, D.C., lawyer who supported Hillary Clinton’s presidential bid and was a fraternity brother of George W. Bush, is taking his unique practice from Orrick, Herrington & Sutcliffe to McDermott, Will & Emery.”

It’s not the case, however, that the entire practice moved. As noted by one commenter, the rest of the legal strategic and crisis management practice remained with Orrick. Consistent with this, an Orrick spokesperson issued the following statement to ATL:

We wish Lanny and Eileen well, but Orrick’s law, policy, media, and crisis management practice remains vibrant and strong with continuing plans for expansion and will keep delivering its unique blend of legal, public relations and government affairs counsel to our clients around the world.

Remaining at Orrick are partners Adam Goldberg, who was co-chair of the practice with Davis, and Joshua Galper. Goldberg and Galper will head the practice going forward. In addition, the associates who work in and with the law, policy and media group are staying at Orrick.

As for clients, it’s not yet clear which ones will stay with Orrick and which will move to McDermott. “Thankfully, this is a practice where we’ve always had plenty of work, so that’s not an issue,” Galper said. (We’d guess, however, that certain clients closely tied to Davis — like CEAL, the Honduras business group supporting the coup in that country — will travel with him.)

Get to know Messrs. Galper and Goldberg, and read more about Orrick’s very interesting and unusual practice area, after the jump.

* At the Supreme Court, much ado about a cross. [Washington Post (Robert Barnes); Washington Post (Dana Milbank)]

* Former Heller Ehrman partners deny that the firm was insolvent in 2007. [Am Law Daily]

* The new Honduran government, which came to power through a coup, has hired lawyers and law firms — including Lanny Davis, who recently moved from Orrick to McDermott — to defend its legitimacy. [New York Times]

* And there may be more work for antitrust lawyers, thanks to a new Justice Department invesitgation of IBM. [Reuters]

* Key Democratic lawyers agree to allow Guantanamo detainees to be transferred to the U.S. for trial. [Washington Post]

* Prosecutors drop one victim from the case, but Judge Herman “Who Needs A Spanking?” Thomas still faces charges dozens of counts related to 14 other victims. [CNN]

* No, it’s not your imagination: Gov. Jon Corzine’s campaign commercials are making fun of former U.S. Attorney Chris Christie (pictured) for being fat. (Disclosure: We worked as an AUSA under Christie from 2003 until 2006.) [New York Times]

Retired Supreme Court Justice Sandra Day O’Connor is not really retired yet. “I am more busy in retirement than before,” she told Above the Law in a recent interview. One of her myriad projects is Our Courts, a non-profit organization that develops Web-based games to teach seventh- and eighth-graders about government. We spoke with Justice O’Connor recently for our piece for the Washington Post reviewing the games.

We had hoped to actually play the games with her, but it turns out she’s not much of a gamer. Not being the computer type, she hasn’t actually played the Web-based games herself. “I watched young people play it. They have a lot of fun. They’re actively engaged. I think it’s very exciting,” she told us.

Justice O’Connor has been touring the country to promote the games. She even stopped in to chat with Jon Stewart on the Daily Show. We got to catch up with her via conference call last month. We rung her up at One First Street — like some retired Biglaw partners, retired SCOTUS justices get to keep an office. After her secretary connected us, Justice O’Connor answered the phone: “Sandra Day O’Connor.”

We discovered that O’Connor is adamant about bringing an end to the election of judges in America. Read more from our interview, after the jump.

The University of Virginia Law School, and legal academia more generally, have been rocked recently by a controversy involving a leading law professor and claims of anti-gay animus.

William N. Eskridge Jr. — currently the John A. Garver Professor of Jurisprudence at Yale Law School, where we had great good fortune of having him as a professor — testified last month before Congress in support of the pending Employment Non-Discrimination Act of 2009 (ENDA). ENDA would prohibit sexual orientation and gender identity discrimination in the workplace. In explaining the need for ENDA, Professor Eskridge made reference to his own career, testifying that “I was denied tenure at the University of Virginia School of Law in 1985 based in part on my sexual orientation.” You can, and should, read his complete testimony here (opens as a Word document).

The controversy has, of course, reverberated throughout the blogosphere. See, e.g., the UVA Law Blog (including 40+ comments, many of them quite insightful); Brian Leiter’s Law School Reports (here and here); and The Faculty Lounge. The UVA Law Blog also reprints a Virginia Law Weekly article from January 1986 about the Eskridge tenure denial (which was strongly opposed by students; if you’ve been lucky enough to have Bill Eskridge as a teacher, this should not be a surprise).

We reached out to both Professor Eskridge and UVA Law School. We received written statements from Professor Eskridge and from Dean Paul G. Mahoney.

Their statements, plus a comprehensive collection of links, appear below.

Over the years, numerous proposals have been made to split the Ninth Circuit, the nation’s largest federal appeals court. There are certainly reasonable arguments to be made in favor of a split.

But regardless of the merits of a split, the careers of politicians who have backed these proposals seem to meet unfortunate ends. We’ve dubbed this effect the Ninth Circuit Curse. Check out this list of victims.

Last Wednesday, Senator John Ensign (R-NV) introduced a bill to split the Ninth Circuit. The very next day, he wound up on the front page of the New York Times — for possible ethics violations. Coincidence?

Politicians, consider yourselves warned: mess with the Ninth Circuit at your peril.

Senator’s Aid After Affair Raises Flags Over Ethics [New York Times]
Senate Ethics Committee investigating Ensign [Political Ticker / CNN]

Earlier: The Ninth Circuit Curse
The Ninth Circuit Curse Strikes Again

Ed. note: Above the Law has teamed up with Law Shucks. Law Shucks has done excellent work translating all of the layoff news into user-friendly charts and graphs: the Layoff Tracker.

For a while there it would look like the first consecutive weeks without layoffs since this time last year (by our reckoning, you have to go back to the weeks ending October 9 and October 2, 2008). Alas, one firm did come through with staff layoffs, about which more after the jump.

As usual, we begin with the US macroeconomic picture, and as usual, it ain’t pretty. For the week, the S&P 500 was down about 2%. That was the second straight week of losses, and the DJIA had its biggest weekly decline in three months. 263,000 net jobs were lost in September and the unemployment rate rose to 9.8 percent, despite perhaps the technical end of the recession. As with the stock market, bad results are one thing, but results worse than expectations are another, and that was the case here. Consensus estimates were net losses of 175,000, so the actual results were way short. August’s revised numbers were slightly better than original reports, though.

The poor results are creating pessimism around when things will start to turn around:

[T]he report also buttressed fears that economic expansion would be weak and hesitant, with scarce paychecks and economic anxiety remaining prominent features of American life well into next year.

“This is a weak report,” said Stuart G. Hoffman, chief economist at PNC Financial Services Group in Pittsburgh. “The rate of job loss has tapered off, but we still haven’t reached the point where businesses are willing to hire.”

Could this create political difficulties for the president?