Fifth Circuit

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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* When SCOTUS cases involve public companies and rulings are misinterpreted, it can lead to some pretty volatile stock performance, as was evidenced by yesterday’s highs and lows for Myriad Genetics of BRCA1 patent fame. [Washington Post]

* The ethics complaint against Judge Edith Jones of the Fifth Circuit has been transferred to the D.C. Circuit after receiving a blessing from the Chief Justice of the United States. Uh oh, that’s serious business if Roberts is involved. [Times-Picayune]

* The number of women working in the NLJ 350 is sad. They make up only one-third of all attorneys working in Biglaw, and we’re stuck celebrating the tiniest positive changes. Sigh. [National Law Journal]

* Proskauer Rose’s former CFO, Elly Rosenthal, settled her $10M disability discrimination suit against the firm in anticlimactic fashion, “without costs to any party as against the others.” [Am Law Daily]

* California is obviously trying to one-up New York with this one. In addition to a 50-hour pro bono requirement, they’re pushing for 15 hours of real-world training before bar admission. [The Recorder]

* Try to stop a man from throwing a pie in your husband’s face and in return you’ll be served with your wifely walking papers a few years later. Aww, Rupert Murdoch is such a kind old man. [Bloomberg]

* The first rule of Insider Trading Club is, you do not send discoverable e-mails about Insider Trading Club. [Dealbreaker]

* Arnold & Porter staged a mock Olympics last time around. Now we’re just waiting for the other shoe to drop and we learn that the antitrust group was doping. [Washington Post]

* Georgetown Law student Bindhu Parmathi crowned Miss District of Columbia! She will go on this September to participate in the Miss America pageant (aka “The pageant that Donald Trump doesn’t own). [The Examiner]

* To recap: TSA took the stance that knives should be allowed on planes, but balked at fictional Jedi weapons. Yay America! [Lowering the Bar]

* Illinois passes some of the strictest fracking regulations in the country. That’s a reference to hydraulic fracturing. Not just dropping Battlestar Galactica references. [Breaking Energy]

* Indiana thinks it can discipline lawyers for criticizing a judge via private email. I would say that’s an insane misreading of the law, but I don’t want to get disciplined in Indiana, which sounds like the terrible prequel to Fifty Shades of Grey (affiliate link). [The Indiana Lawyer]

* Five businessmen take off their pants to protest taxes. This is a bad precedent. I don’t want to see any of these Tea Party folks take off their pants. [TaxProf Blog]

* Congrats to ATL reader Alicia Long, as well as co-author Jayne Jones, on publishing their new book Capitol Hell. [Amazon (affiliate links)]

* The Judge Edith Jones incident should raise the national concern to improve diversity on the bench. But it won’t. [Judicial Clerk Review]

* More follow-up on CBS’s improper campaign ad totally objective news documentary “Brooklyn D.A.” [New York Daily News]

* If fans in the front row of your concert start holding out papers for you to grab, DON’T DO IT! Unless you want to get sued. Video after the jump, courtesy of Gawker

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