Fifth Circuit

There’s not really much to say here. There are just a few things to remember to avoid an embarrassing oral argument. Basically, don’t condescend to the judges on your appellate panel, and try to show up wearing pants (and maybe some socks). Pretty simple, right?

We’ve seen this kind of confrontational tone out of lawyers before, and it never ends well for the attorney. Like when Jones Day’s Matthew Kairis thought it wise to continuously interrupt Judge Posner in Notre Dame v. Sibelius. What happened next was… entirely predictable: Kairis ended up with an earful from Judge Posner about the proper role of an advocate before an appellate panel.

This poor fellow earns the same basic tongue-lashing, just with a different accent…

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On Tuesday, the U.S. Court of Appeals for the Fifth Circuit released the latest opinion in UT v. Fisher, the ongoing battle over the role of race-based preferences in the University of Texas at Austin’s undergraduate admissions policy. Last year, the U.S. Supreme Court ruled that the Fifth Circuit had failed to apply the proper strict scrutiny standard to its earlier review of UT’s admissions scheme. Justice Anthony Kennedy wrote the court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” He cautioned that, if a non-race-discriminatory approach could bring about UT’s stated goal of a “critical mass” of campus diversity, “then the university may not consider race.” The Court remanded the case back to the Fifth Circuit. This week, two of the three judges on the Fifth Circuit panel concluded that the use of race was, indeed, necessary.

Judge Emilio Garza’s dissent (beginning on page 44) criticizes the majority opinion for deferring impermissibly to UT’s claims, despite the Supreme Court’s instruction. He writes, “Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner.” He later writes, “The majority entirely overlooks the University’s failure to define its ‘critical mass’ objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”

How much diversity is a critical mass of diversity? Is this a unit of measure like a team of oxen or a murder of crows? How can a court possibly determine whether a given policy is necessary to achieve critical mass if we don’t know what that is? UT isn’t exactly the International Bureau of Weights and Measures, but a little bit more precision would be helpful.

The concept of critical mass is problematic for many reasons. Its vagueness provides a poor measure for reviewing courts. It packs in several dubious assumptions about the meaning of race. Here’s one more reason why “critical mass” is such a critical mess . . . .

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Give this man a federal judgeship.’ That sounded as if I were desperate, which I was . . . .

– Judge Leslie Southwick, in response to a Washington Post headline during his confirmation struggle.

In The Nominee: A Political and Spiritual Journey, Judge Leslie H. Southwick chronicles the long path to his current seat on the United States Court of Appeals for the Fifth Circuit. Southwick is a former Mississippi Court of Appeals judge, former deputy assistant attorney general in the first Bush Administration, and Iraq war veteran. He was recommended by Mississippi senators for a Fifth Circuit vacancy in 1991 and 2004, for a district judgeship in 2004 and 2006, before his final nomination in 2007. He initially appeared to be an uncontroversial nominee. However, a fierce partisan battle in the Senate threatened his eventual success. The Nominee follows Southwick’s tortuous path, relying on the judge’s day-by-day personal notes.

Southwick’s account is fascinating on its face. He drops names on every page, and it’s exciting to trace the earlier steps of those who would become legal luminaries in later years. For those only generally familiar with the way that federal judges get made — a process resembling in unsettling ways how sausage gets made, Southwick notes — the book provides an education in both the official and the unofficial processes. The book will certainly satisfy in excruciating detail the curiosity of anyone who wonders exactly how stubbornly political the judicial confirmation process has become.

Notably, the book shows just how long the process can be. Before he clears the Senate Judiciary Committee vote, before his nomination even reaches the Senate floor, Southwick writes that the day “was a double anniversary of my seeking a position on the Fifth Circuit. In my diary, I wrote, ‘Tuesday, 10 July. Sixteen years today since this started,’ meaning that I learned on July 10, 1991, that Judge Charles Clark was retiring. In addition, the 1991 date was exactly sixteen years after I wrote my July 10, 1975, letter applying to clerk for Judge Clark.” Judges, whether made the right way or not, are not made overnight.

None of this is what makes the book most worth reading, though — and it certainly is worth reading . . . .

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It will likely warm the cockles of many a Biglaw heart to hear that a bunch plaintiffs’ attorneys got smacked around by a federal court for trying to steal funds from Uncle Sam. They may beat your clients — and deservedly so, since your clients were totally poisoning people — but at least they won’t be getting away with their fat paychecks. Bask in that satisfaction as you go back to your less lucrative life.

If you want to know exactly how these lawyers did it (so you know what not to do, of course), then read on.

Or if you just want to point and laugh at the irony of public interest plaintiffs’ attorneys getting tagged for failing to pay their fair share to the public coffers, you can read on for that too….

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Getty only has images of women or children sniffing things… because men sniffing women is TOTALLY CREEPY.

Of course sniffing a woman can be sexual harassment. Who would even dispute that? Hovering over a woman and inhaling deeply is the move of creepy rapists in Lifetime movies.

A Dallas magistrate judge ruled against a woman who was fired after complaining that men would come into her office and freaking sniff her. Thankfully, an appeals court reversed… because Jesus Christ, ex-convicts were smelling her and talking about how they needed a “release”….

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As Elie reported on Monday, U.S. District Judge Lee Yeakel upheld part and struck down another part of a new Texas law regulating abortion. On Tuesday, the Attorney General’s office sought an emergency stay pending appeal and an expedited schedule for the appeal itself. As of press time, the Fifth Circuit has not ruled on the stay motion. The Circuit will hear the appeal, expedited or not, in the coming months.

In July, when the legislature debated the bill that would become the law now at issue, I wrote about it. I wrote about why I thought the specific provisions of this law were sensible. I wrote about why I thought those provisions were not “anti-woman” as the filibustering Wendy Davis claimed. I suggested a handful of concrete, practical, truly pro-woman measures that legislators could take if they want to genuinely advocate for the welfare of women — measures that don’t involve using abortion as a cure-all.

Now, prognosticating about the fate of the this law as it moves up to the Fifth Circuit raises some additional wrinkles for those who would frame the abortion debate as a matter of “pro-woman” pro-choicers and “anti-woman” anti-abortion advocates….

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‘I’m fixing to sue somebody.’

Who can we pick on if not weak heterosexual males? Who can we make fun of? Who can we bring to tears without fear of a lawsuit as we try to brighten our workdays?

In a modern professional workplace, you rightly can no longer make fun of gay people. It’s not cool to make someone feel bad about their sexuality as they try to go about their business. You can’t make fun of women, lest your taunting piles onto all the hurdles they must overcome. You can’t make fun of minorities, or the disabled, or the mentally ill who might take your ouchy words as justification for killing themselves.

In this context, the effeminate heterosexual male is all we have left. Work stinks. You have to deal with all kinds of BS. Making fun of the dude with sand in his vagina is how real men handle their wage slavery.

But now, the Fifth Circuit is trying to take that away from us. The judges ruled that an iron worker (!!!) was right to sue like a little bitch and recover because his boss made fun of his “non-manly” nature. It’s a sad day for bros everywhere…

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Insurance fraud committed by someone who should know better is one thing. But on top of that, this case features allegations of assault, foreign retaliatory detentions, computer hacking, extortion, spurned lovers, and revenge.

This former Biglaw partner left the practice complaining of back injuries that forever closed the door to the profession. In 2002, the carrier got a request to provide long-term disability benefits. But the carrier never really trusted the partner — because who really trusts lawyers — and conducted video surveillance and multiple independent medical examinations.

Late last week, a federal appeals court sided with the insurance company, agreeing that the partner was more than likely faking it and writing up the whole scandalous tale….

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Howard Dean

* Everything’s bigger in Texas, including the legal wrangling: Eric Holder’s use of the VRA’s “bail in” provision to circumvent the SCOTUS ruling in Shelby may prove to be trouble. [National Law Journal]

* The Fifth Circuit upheld warrantless cellphone tracking yesterday, noting that it was “not per se unconstitutional.” We suppose that a per se victory for law enforcement is better than nothing. [New York Times]

* The pretty people at Davis Polk are fighting a $1.4 million suit over a headhunter’s fee with some pretty ugly words, alleging that the filing “fails both as a matter of law and common sense.” [Am Law Daily]

* Howard Dean is rather annoyed that he’s had to go on the defensive about his work for McKenna Long & Aldridge after railing against Obamacare. Ideally, he’d just like to scream and shout about it. [TIME]

* The ABA is concerned about Florida A&M, and sent a second warning about the school’s imminent failure to meet accreditation standards. Well, I’ll be damned, the ABA actually cares. [Orlando Sentinel]

* Pennsylvania Governor Tom Corbett is suing to prevent a clerk from issuing marriage licenses to gay couples. A silly little lawsuit won’t stop this guy from doing what he thinks is right. [Legal Intelligencer]

Today, the Supreme Court surprisingly ruled 7-1 to vacate the Fifth Circuit in Fisher v. Texas. The opinion was a great big dodge. Anthony Kennedy, writing for the majority, said that the lower court failed to apply “strict scrutiny” to the University of Texas’s admissions policies. Cutting through the legalese, that means the Supreme Court actually upheld the case of Grutter v. Bollinger, which is the controlling case allowing affirmative action in college admissions. While conservative justices indicated that they would have overturned Grutter had they been asked, the majority found that they had not been asked.

If that all sounds like a bunch of legal mumbo jumbo to you that avoids the heart of the issue, you are not a lawyer. You are right, but you aren’t a lawyer.

This is no “victory” for affirmative action. There are still a majority of Supreme Court justices that want, almost desperately, to end racial preferences in college admissions. What the Court did today was threaten colleges and universities that want to use racial preferences to come up with really good justifications for their affirmative action policies. Schools that aren’t really committed to diversity, or that go about achieving diversity in a stupid way, will surely have their programs ruled unconstitutional in the future.

This is, I think, the end of affirmative action as a tool for “racial equality.” But affirmative action as a tool to promote “racial diversity” is alive and well.

Which, all things considered, is just fine by me. I think the Court signaled that it is just no longer buying the old reasons for affirmative action. While the rabid conservatives don’t seem to be wiling to consider any, it looks like moderates like Kennedy may listen to new justifications for using race as a factor in admissions, but you are going to have to convince him….

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