Judge Danny Boggs

Judge Boyce F. Martin Jr.

Judicial misconduct comes from all across the ideological spectrum. Judge Richard Cebull of Montana, who reportedly spewed out racist emails like an ATM dispensing twenties, was an anti-Obama conservative. Meanwhile, Judge Boyce F. Martin Jr., whose ethical troubles we alluded to yesterday, was a prominent progressive on the Sixth Circuit.

Judge Martin was appointed to the court in 1979 by President Jimmy Carter and wrote major opinions attacking the death penalty and defending affirmative action. He also penned fun opinions that included references to The Simpsons and Austin Powers.

Alas, this liberal lion has roared his last. Did an investigation into possible judicial misconduct help drive Judge Martin from the bench?

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Judge Paul Watford

Congratulations to the newest member of the U.S. Court of Appeals for the Ninth Circuit, the Honorable Paul J. Watford. On Monday, Watford, currently a 44-year-old partner at the super-elite Munger Tolles & Olson, was confirmed to the federal bench. The vote was 61-34, and it came after a bit of drama in the Senate.

It’s surprising that Watford’s nomination was so contentious, given that he has a number of backers from the right side of the aisle. As noted by the San Francisco Chronicle, “[h]is supporters included conservative UCLA law Professor Eugene Volokh, who has described Watford as brilliant and ideologically moderate, and attorney Jeremy Rosen, former president of the Los Angeles chapter of the conservative Federalist Society” (and a noted appellate lawyer, who has appeared before in these pages).

That’s not all. Watford clerked for Chief Judge Alex Kozinski, one of a handful of prominent conservative or libertarian judges on the (generally liberal) Ninth Circuit. If you look at the ranks of former Kozinski clerks, you’ll see many members in good standing of the vast right-wing conspiracy (and some who are not, like Paul Watford — who went on to clerk for Justice Ruth Bader Ginsburg, and was nominated to the Ninth Circuit by a Democratic president).

Now that the handsome Watford has joined his superhottie boss on the bench, we have a trivia question: Who is the circuit judge with the most former law clerks to join him on the Court of Appeals during his lifetime?

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Judge Jerry Smith

Above the Law readers weren’t particularly fond of Judge Jerry E. Smith’s “homework assignment” for the U.S. Department of Justice. In a reader poll, about two-thirds of you expressed disapproval of the Fifth Circuit ordering the DOJ to submit a three-page letter discussing judicial review. (The order came in the wake of, and in apparent response to, unfortunate comments on the subject by President Obama.)

But let’s say that you’re among the one-third of readers who view Judge Smith as courageous for calling out a former Con Law professor for making misleading statements about judicial review (statements that, in fairness to the president, he subsequently clarified). Let’s say that you’d like nothing better than to clerk on the Fifth Circuit for Judge Smith.

Well, aspiring law clerks to Judge Smith, there’s something you should know….

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Why is Bob smiling? Because police now need a warrant to check his email (joke stolen from Julian Sanchez).

Thanks to a huge decision out of the Sixth Circuit, your email and the Fourth Amendment just got better acquainted. The police need to get a warrant to take a peek at the contents of someone’s inbox, writes Judge Danny Boggs — once rumored to be on the SCOTUS shortlist — in the court’s opinion (PDF, via a thrilled EFF).

The court says that the 1986 Stored Communications Act, which grants law enforcement access to email older than 180 days old with a simple subpoena or court order, is unconstitutional, since it enables the police to conduct unreasonable searches.

“This is a very big deal,” writes law professor Paul Ohm. “[T]his is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.”

The case that led to the decision dealt with extensions of a different variety. The defendant that challenged the po-po’s warrantless search of his email is Steven Warshak, the mastermind behind Enzyte, a questionable herbal supplement purported to increase the size of a man’s erection. Sometimes, new constitutional protections pop out of the strangest places…

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