Justice Department

Want to Clerk for the Judge Who Took on Obama?

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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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Attorney General Eric Holder Responds to Judge Jerry Smith’s Homework Assignment

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Remember the homework assignment issued by Judge Jerry Smith of the Fifth Circuit to the U.S. Department of Justice? Earlier this week, Judge Smith ordered the DOJ to file a three-page, single-spaced letter discussing the principles of judicial review, in light of prior comments by President Barack Obama that could be construed as questioning the doctrine.

The response was due today at noon (Houston time) — about 20 minutes ago. It was filed on behalf of the Department by Attorney General Eric Holder.

Let’s take a look, shall we?

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Benchslap of the Day: Fifth Circuit Orders DOJ To Write ‘We Respect Judicial Review’ in Three-Page Letter

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'I'm so glad the Justice Department respects judicial review!'

The nation recently received a lesson in constitutional law from President Barack Obama (who famously taught Con Law at the University of Chicago). As we mentioned yesterday, President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The problem with this lesson: it wasn’t exactly accurate. Those “unelected” federal judges “overturn … duly constituted and passed law[s]” all the time — well, maybe not all the time, but on occasion, when said laws are inconsistent with the U.S. Constitution. It’s neither “unprecedented” nor “extraordinary,” and it doesn’t amount to judicial activism; rather, it’s called judicial review.

One prominent conservative jurist, Judge Jerry E. Smith of the Fifth Circuit, took it upon himself to set the record straight on this matter….

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Morning Docket: 02.28.12

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From SCOTUS to POTUS?

* Justice Clarence Thomas for president? Hey, it could happen. Lat and Kash’s 2010 proposal is getting a second look. [Daily Beast]

* Speaking of presidents, the Arizona and Michigan primary elections are today. I know folks on the coast often don’t pay too much attention to those middle-of-the-country states, but it will be interesting to see what the Illegal Immigration State and Crippled American Auto State have to say about our ragtag bunch of Republican presidential candidates. [New York Times]

* Emails published yesterday by Wikileaks appear to show that certain Pakistani military intelligence knew where Osama bin Laden was hiding in the months before Seal Team Six raided his garrison and killed him. I hope Wikileaks has juicier material in the pipeline? [Telegraph (U.K.)]

* Congratulations to Tony West, who will become acting associate attorney general, the No. 3 post in the Justice Department. [Chicago Tribune]

* Interesting report on tensions between the White House and the NSA, which has tried to get permission to monitor private web activity, perhaps at the expense of privacy. But Google knows everything you do on your computer, so why shouldn’t the government? [Washington Post]

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Benchslap of the Day: Say My Name, Say My Name

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Judge Carlos Bea

Judge Carlos Bea is one of my favorite members of the Ninth Circuit. He’s refreshingly conservative, on a famously (or infamously) liberal court. He has a fascinating personal history; how many federal judges can claim they were almost deported? He has an ancestral home — some call it a castle — in Spain, which he sometimes makes available to vacationing law clerks. And he tools about town in a vintage Rolls-Royce (which, rumor has it, he received as payment for legal work before he took the bench).

Well, it looks like one assistant U.S. attorney has some expensive tire marks on his back. Check out the epic benchslap that Judge Bea just dished out — not just to the poor prosecutor, but to the United States Department of Justice….

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Non-Sequiturs: 01.30.12

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Professors Richard Epstein (left) and John Yoo

* Are you still trying to make sense of the conflicting opinions in United States v. Jones, the GPS tracking case recently decided by the Supreme Court? Professor Barry Friedman has this helpful round-up. [New York Times]

* Elsewhere in law professors opining on SCOTUS, what do Professors Richard Epstein and John Yoo predict the Court will do regarding Obamacare? [National Review Online]

* A Spanish CFO, a Finnish tax lawyer, and a moody Hungarian CEO walk into an Amsterdam coffee shop…. [What About Clients?]

* Musical chairs: prosecutor Greg Andres is leaving DOJ for DPW. [DealBook]

* In case you missed this fun Friday story, it got picked up by MSNBC today. [Digital Life / MSNBC]

* Did your law firm give you an iPad? Are you wondering what to do with the darn thing? Here’s an idea, after the jump….

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The DOJ Wants You, Experienced Attorneys — To Work for Free

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Despite the media echo chamber saying that the economy is improving, it’s obviously still tough to find work. Especially for lawyers. Everyone says you’re supposed to have a can-do attitude, but we sometimes prefer to think about all the things that you can’t do as an attorney.

Included in that list is getting a paying job at the U.S. Department of Justice. The DOJ has had a hiring freeze in place for a year now. We’ve heard reports of some thawing — i.e., selected parts of the DOJ receiving authorization to fill a handful of priority positions — but, for the most part, there are hardly any paying lawyer jobs to be had in that division of government.

Instead, U.S. Attorney’s Offices around the country have been posting unpaid Special Assistant United States Attorney positions for some time now. We covered them last May. My colleague (and former assistant U.S. attorney) David Lat defended the SAUSA gigs somewhat, arguing that the nonpaying jobs might not be as bad as they seem. It’s fun, exciting work, and it provides valuable experience and serious professional credibility.

There is a crucial, ominous difference between then and now, though. Previous SAUSA jobs were generally aimed at entry-level or fairly junior attorneys. Now we’ve got a recent opening that’s asking for more.…

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The State of the Union (2012): Open Thread

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SCOTUS in the house at SOTU.

President Barack Obama delivered his State of the Union address this evening, and it was even less exciting than last year (which was less exciting than the year before, when the famous Obama v. Alito showdown over Citizens United took place). Tonight was light on drama — one of the most compelling moments came early on, with the arrival in the chamber of retiring Congresswoman Gabrielle Giffords — and President Obama’s speech was light on new ideas. Considering that we’re in an election year, with no major legislation likely to pass anytime soon, this shouldn’t come as a surprise.

Your Above the Law editors covered the speech via Twitter. See @ATLblog, @DavidLat, @ElieNYC, and @StaciZaretsky.

Here’s an open thread for discussion of the address. We’ll get the party started with a few legally oriented highlights, after the jump.

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Non-Sequiturs: 01.12.12

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Dominique Strauss-Kahn

* Dominique Strauss-Kahn’s lawyer has a challenge for you: “I defy you to tell the difference between a naked prostitute and any other naked woman.” [Dealbreaker]

* It’s not often that Cravath partners leave for other firms, but it happens. Jeffrey Smith, former head of the environmental practice at Cravath, recently decamped for Crowell & Moring. [Am Law Daily]

* Former Bush Administration DOJ official John Elwood, now a partner at Vinson & Elkins, breaks down the Office of Legal Counsel’s recently issued opinion on recess appointments. [Volokh Conspiracy]

* Blawging, Flawging & the Mathematical Theory of Information. Also: what do laser hair removal in D.C. and lemon law in Wisconsin have in common? [Associate's Mind]

* Are Americans finally waking up to the higher education bubble? [Instapundit]

Professor Ann Althouse: birthday girl.

* It appears that Joseph Rakofsky, whose handling of a criminal case drew critical comment, struggles on the civil side too. Justice Emily Goodman returned a proposed order of his with this notation: “Decline to sign. Papers are incomprehensible.” [New York Personal Injury Law Blog]

* If you’re a trusts and estates lawyer or a reader of fiction, consider checking out this well-reviewed new novel by Patrick James O’Connor, which takes the form of an extended last will and testament. [Amazon (affiliate link)]

* Happy Birthday, Professor Althouse! [Althouse]

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Recess Appointments: How Do You Stop A Legal Sham?

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It’ll take some time before a court rules on the legality of Barack Obama’s recess appointment of Richard Cordray to the Consumer Financial Protection Bureau. In case you haven’t been paying attention, Obama nominated Cordray two years ago, but the Republicans have refused to allow his nomination to come to a vote. Obama then wanted to use his recess appointment powers to fill the vacancy while Congress was away, but Republicans have blocked that through a series of sham sessions in which a couple of members gavel in and gavel out in a few seconds every couple of days. Last week, Obama decided those sessions did not constitute real sessions and appointed Cordray anyway, and we’ve all been treated to a week of howling from the right about an “illegal” power grab by the executive branch.

I appeared on the Mike Huckabee Show this weekend and defended the president’s appointment. It felt a lot like writing here at ATL: the live studio audience even booed me to make me feel at home.

But on Friday, Republican lawmakers did something really funny: they asked Eric Holder and the Department of Justice to explain what role the Office of Legal Counsel played in advising or authorizing Obama’s move. I’m immediately reminded of Bones McCoy trying to get back to the quarantined Genesis planet in Star Trek III when he says: “There aren’t gonna be any damned permits! How can you get a permit to do a damned illegal thing?”

Regardless of the legality of the recess appointments, did Obama do the right thing?

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