Sunday, May 30, 2010

Kagan's Nomination, The Roberts Court at 5, Lippman & the NY Court, Decisions & Voting, Etc.--and the Road Trip

Haiti
[Again, just to be clear: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]
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Back to New York Court Watcher after a BBQ Road Trip with my son Martin in celebration of his graduation from law school. [More about that below for anyone interested.]

Tuesday, May 18, 2010

On a Road Trip

I'm on a road trip with my son, Martin, who just graduated from law school. So I will probably not be blogging till I return.

Meantime, Jim Neely's Interstate Barbecue in Memphis is amazing. Best I've ever had.
Well, tonight we're trying Rendezvous Barbecue. (That's apparently dark rub as opposed to Neely's sauce. Who knew? Well, my wife did. She's the one who insisted on Neely's.)

Then it's off to Kansas City (also BBQ & blues), with a stop in Pittsburg, Kansas for Chicken Mary's & Chicken Annie's--supposed to be great fried chicken.

Then Amarillo for the Big Texan. Then to my sister Amelia & brother-in-law Roger Belizaire in Midland, Texas for whatever feast my sister will cook-up & great wine my brother-in-law will serve.

Then...

OK, I'll be back to posting on New York Court Watcher as soon as I return.

Sunday, May 9, 2010

Supreme Court: Short List to Replace Stevens (Part 6: Sidney Thomas)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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[First, a Correction/Clarification. As a good friend reminded me after reading the previous post on Jennifer Granholm--specifically regarding my singling out Justice Thurgood Marshall as a civil rights attorney-- Justice Ruth Bader Ginsburg was, of course, a noted civil rights attorney prior to her judicial career as well, especially for women's rights. It should be added that she was also a law professor for many years. But (and I really have no "buts" when it comes to that extraordinary person, woman, lawyer, Justice), she was already an established member of the judiciary by the time she was appointed to the Supreme Court. Justice Thurgood Marshall, by contrast, had only been a federal judge for a few years--after nearly 30 years as a civil rights lawyer extraordinaire--before being elevated to the Supreme Court. That was my intended point.]

Sidney R. Thomas

He's white, a guy, born and educated in Montana, a Protestant, and apparently straight.

In other words, he's not a minority or a woman--you know, the only people President Obama cares about, or so some think.

He's not a New Yorker or even an Easterner--there are already 3 New Yorkers on the Court (Scalia, Ginsburg & Sotomayor, and even Roberts who was born in Buffalo), and only 1 Westerner (Kennedy).

He was not educated at one of those Northeastern Ivy League law schools, and especially not at Harvard or Yale--every Justice, except retiring Justice Stevens, graduated from Harvard or Yale or, in the case of Justice Ginsburg, from Columbia after studying her 1st 2 years of law school at Harvard.

He's not another Catholic or Jew--6 Justices are Catholic (Roberts, Scalia, Kennedy, Thomas, Alito, & Sotomayor), 2 are Jews (Ginsburg & Breyer), and only retiring Justice Stevens is Protestant.

He's not gay, or so it would appear he's not inasmuch as he's married with 2 children and no one seems to be claiming otherwise. In any event, he's not a gay or lesbian activist with a same-sex marriage agenda that would scare the bejesus out of some Senators and almost certainly spark a filabuster.

So there's plenty about Judge Thomas that would commend him to those Senators (and their constituents) who are Obama's (and liberals') reflexive opponents. A Judge Thomas nomination removes many of the specters that most frightens or galls many conservative Senators (and, again, their constituents) about a liberal, minority president getting a second nomination to the Supreme Court.

A few other things. Thomas practiced law for nearly 20 years after he graduated from law school--and he did so in Montana, not in some big Eastern-establishment law firm in New York or Washington. He was appointed by President Clinton to the 9th Circuit in 1996, so he's had federal appellate judicial experience for 14 years--he's not a rookie to judging.

But there's one trait of Judge Thomas that undoubtedly towers over, or trumps, everything else. For Obama and his most ardent supporters it is a huge and essential positive for the next Justice. For Obama's opponents in the Senate and the conservative commentariat, as well for much of the electorate, it's almost certainly a deal killer and the trigger for a heated, bitter, and prolonged confirmation battle.

Judge Thomas is a liberal. More than that, and he has a long, liberal paper trail.

Thomas has been prolific as a federal appeals Judge, and his opinions would be used against him in confirmation hearings and in public relations warfare. Some conservative commentators are already geared up for a fight if he is nominated. He is, according to them, a Judge on the radical left wing of a radical left court--i.e., the most liberal of the federal appeals courts, and the one that the (conservative) Supreme Court reverses much more than it does any other court.

Of course this has little to do with "objective," "neutral" merit. Certainly nothing to do with how smart Thomas is, or how well educated, or how competent as a lawyer or judge, or how well he can write opinions, or how much he understands about the nature of judging and the role of judges and courts (especially the role of the Supreme Court in our federal republic), or how honest and fair and ethical and otherwise honorable he is.

But it certainly does have a great deal to do with how he sees the world, how he sees the role of government and the liberties and equal treatment of people in a free society, how vigorous or passive he believes the Supreme Court should be, and how he will vote.

Yes, there's lots of lip-service from both Democrats and Republicans that how a nominee will vote does not or should not matter in the confirmation process, just so long as the nominee is qualified. But that is largely nonsense. It's nonsense to suggest that it doesn't matter. It's nonsense to say it shouldn't matter. It does and it should.

We're not talking about a traffic judge. (And even there it matters!) We're not talking about some low-level bureaucrat. We're talking about a Justice on a Court that is the final arbiter of the most critical issues of life and liberty in a free society. How the Justices vote matters. How a nominee would vote matters. And how a nominee would vote matters even more when the Court is split 5-4 on so many of the most crucial questions for the country.

In short, Obama's and the liberals' opposition would be crazy NOT to care about how an Obama nominee would vote if confirmed. And they WILL care very much about a nominee like Thomas. He would not be an easy confirmation. He would face vigorous, concerted, sustained opposition. For that reason, it doesn't seem very likely that he'll get Obama's nod.

But just in case he does, or just to see why he would face such opposition, let's take a quick look at some of his opinions. In fact, let's just look at a few of his recent dissenting opinions--you know (and are probably tired of hearing) that these are the most revealing of the opinions a judge writes. These reveal what's important enough to go public with one's disagreement with colleagues who constitute the majority of one's court.

As for Thomas, he's written plenty of them. Since his appointment 14 years ago, he has written about 100 dissents. By contrast, for example, Judge Merrick Garland, who is also being considered by Obama, has authored only 15 since he was appointed 13 years ago. Judge Diane Wood, also apparently on the short list, has been a very active dissenter on the conservative 7th Circuit where she sits. But even her output, a little more than 50 dissenting opinions in 15 years, is half of Thomas's. (The possible nominations of Judges Garland and Wood were profiled in previous posts on New York Court Watcher: Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010; Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1]), May 3, 2010;Supreme Court: Short List to Replace Stevens (Part 4a: Merrick Garland [2]) , May 4, 2010.)

So let's check out some of Thomas's dissents. For lack of a better, less cherry-picked selection, let's just look at his last 5 dissents.

In Bull v. City & County of San Francisco (2010), the appeals court upheld a policy to strip search all arrestees who were being jailed, as well as any prisoner who had contact with an outside visitor. Thomas dissented on the ground that the policy applied to all arrestees regardless of the nature of the crime or whether there was any reason to suspect danger or criminal evidence.

In Pugh v. Astrue (2010), the appeals court affirmed the trial court's denial of a claim for social security disability benefits. Thomas dissented, arguing that the trial court should have reviewed the claim and not merely rubber stamped the administrative agency's decision to deny benefits.

In Norwood v. Vance (2010), the appeals court approved the decision of prison officials to disallow any outdoor exercising during lockdowns which extended for most of 2 years. Thomas dissented, arguing that his court should have upheld the trial court's ruling, based on a jury verdict, that the action of the prison officials was unjustified.

In U.S. v. Mitchell (2009), the appeals court upheld a drug conviction despite a juror at trial who might have been biased because her close relative was killed by a drug dealer. Thomas dissented, arguing that the trial judge should not have seated the juror who said that her judgment might be affected, and that the judge's error required an automatic reversal of the conviction.

In Martinez-Madera v. Holder (2009), the appeals court upheld an order to deport an alien who was convicted of attempted murder, despite the fact that his stepfather was a U.S. citizen. Thomas dissented, arguing that the defendant had been raised by his stepfather since the age of 6 months, had been treated as the stepfather's son for over 40 years in this country, and was thus entitled to be treated as the son of the citizen stepfather--which would preclude deportation.

Now, just a few more dissents in recent years. These I am cherry-picking as among those which Thomas would surely be grilled about were he to be nominated.

In Jacobs v. Clark County Sch. Dist. ((2007), Thomas argued in dissent that a mandatory school uniform policy violated the students' constitutionally protected free speech.

In U.S. v. Comprehensive Drug Testing, Inc. (2008), Thomas argued in dissent that the government had engaged in an unconstitutional search when it looked for the drug testing records of 11 major league baseball players in computer files, as authorized by a warrant, but then found the records of numerous other players in the course of that search.

In Shahverdy v. Mukasey (2008) [and several other cases], the appeals court affirmed the order of the Board of Immigration Appeals which denied an alien's request for asylum because it did not believe the alien's claim that she would be subject to persecution in her home country. Thomas [in this case and the others] dissented on the ground that the alien's claims were wrongfully discounted.

In U.S. v. Kelley (2007), a search of the defendant's home computer, conducted pursuant to a warrant, uncovered child pornography. The appeals court upheld the search, but Thomas dissented, arguing that the warrant was not supported by probable cause to believe that Thomas actually had any child pornography on his computer.

In U.S. v. Cortez-Rocha (2005), the appeals court upheld a border agents' search of the defendant's spare tire which uncovered marijuana. Thomas dissented on the ground that there was no justification for the search.

In Jespersen v. Harrah's Operating Co. (2006), the appeals court held that it was not sex discrimination for a Nevada casino to require its female bartenders to wear make up. Thomas dissented, arguing that the casino's policy conformed to outdated and impermissible sex stereotypes.

OK, that's enough. The patterns are clear. In both criminal and civil cases, Judge Thomas is what's known in common parlance as a liberal. Quite liberal.

Now that might not be offensive to everyone. [ Disclosure: It certainly is not to me. Whether or not I agree with all of Thomas's opinions--and I do not--I do prefer judges who err on the side of being liberal, i.e., on the side of civil rights and liberties and social justice and generally being progressive, than those whose impulses are the opposite.] It will actually be very welcome to most Obama supporters and other liberals. But it WILL be cause for dismay and fierce opposition from others if Thomas is nominated for the Supreme Court.

Just think again about those few opinions we just identified. Just think about what was involved. Prisoners. Drugs. Aliens. School discipline. Child pornography. Traditional view of the sexes. On all of those matters, Thomas was on the less popular side of the issue. In fact, the very unpopular side of most of those issues. The side of the issues that many will have serious and even thoughtful disagreements with. But more than that, the side of the issues that can be exploited and demagogued by Obama's political opposition.

It would be a nasty and divisive nomination fight. And one that I would not bet on Obama and Thomas to win. Obama and his advisers surely know that. For that reason, I think that a Thomas nomination is a very long shot.

Well, the word is that a nomination is very shortly forthcoming. We shall see and, naturally, we shall then blog!

Wednesday, May 5, 2010

Supreme Court: Short List to Replace Stevens (Part 5: Jennifer Granholm)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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We've already discussed Elena Kagan, Diane Wood, Leah Sears, and Merrick Garland as possible nominees for the Supreme Court to replace retiring Justice John Paul Stevens. Each of them are on Obama's short list, or have been at some point in the process. (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010; Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010; Supreme Court: Short List to Replace Stevens (Part 3: Leah Sears), April 26, 2010; Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1]), May 3, 2010;Supreme Court: Short List to Replace Stevens (Part 4a: Merrick Garland [2]) , May 4, 2010.)

[My own guess is that, among those 4, Judge Garland tops the list. Not only is his educational, legal and judicial record quite extraordinary, but in light of recent developments, he may be a particularly compelling political choice. The attention of the nation the past few days have been fixed on the attempted terrorist car bombing in Times Square. Well, Garland just happens to have been working at the Justice Department in the Clinton administration where he supervised the Unabomber and Oklahoma City bombing prosecutions. He knows the harsh realities, obstacles and demands of dealing with terrorism under the law. Not just as a judge in an ivory tower or some other public official waxing and waning from afar. But we will see, and apparently pretty soon.]

There are at least 3 other possibilities regularly reported to be under serious consideration. Judge Sidney Thomas of Montana, Homeland Security Secretary Janet Napolitano, and Michigan Governor Jennifer Granholm. We'll take a quick look at Granholm in this post and try to get to Thomas and Napolitano before Obama makes his pick.

Jennifer Granholm

She is the Governor of Michigan, currently serving her second 4-year term. She fits Obama's bill in looking for someone from outside the monastic-like life of the appellate judiciary. As Governor she has lived the rough and tumble of politics, fighting for her positions on state law and policy, experiencing the push and pull and compromise of making that law and policy, and necessarily trying to serve the interests of her constituents. I.e., she has been working for "real" people with "real" needs and concerns, not just the names of parties in the title of appellate cases to be decided in a sterile environment, by "neutrally"applying the language of the law, wherever that might lead, with less regard for the consequences for "real" people.

Yes, that's why Obama and other politicians, as well as many judicial scholars, would prefer some Justices with more "real world" experience--experience in governance or business or serving actual people as clients (or even professors who study such things--what a crazy idea!). Any list of the great Justices includes a disproportionate number of those who had a good deal of non-judicial experience and, in fact, little or no judicial experience at all.

The current Court includes only Justices who were judges. It has no Chief Justice Earl Warren (Governor of California), Justice Sandra Day O'Connor (Arizona State Senator), Justice Hugo Black (U.S. Senator), Justice Thurgood Marshall (civil rights attorney) [but see below], Chief Justice Harlan Fiske Stone or Justice Robert Jackson (U.S Attorney General), Chief Justice Charles Evan Hughes (Governor of New York), or Justice Felix Frankfurter (law professor--had to get that one in), etc., etc.

'Nough said. There are no such Justices on the Court now.

That's a big part of the case for Jennifer Granholm. Shortly after law school, she was appointed a federal prosecutor in Michigan. After a few years she was appointed corporation counsel for Wayne County. She was then elected the state's attorney general (and the first woman to hold that position). Four years later, in 2002, she ran for and was elected Governor (also the first woman). She won reelection in 2006 despite her Republican opponent's spending a personal fortune challenging her.

Oh, you say, so she's a good politician. And, you may also have read that she was once a beauty queen with Hollywood aspirations. OK, then. Well how about considering this: She graduated from Berkeley Phi Beta Kappa, and then from Harvard law school with honors. (Not too shabby. And pretty good indications that she's pretty bright.) She then clerked for a federal appeals court judge--just about the most prestigious position a law graduate can win. It also means that she's seen how an appellate court operates and decides cases. That is, she knows what appellate courts really do and how they really make case law.

But of all (or the few) really capable politicians, why her? Well, Granholm was an early and active supporter of Obama in his run for president. She even played the role of Sarah Palin to help prepare Joe Biden for the vice-presidential debate. After the election, she was a member of Obama's transition team. So she's an FOO, and apparently Obama's an FOG. (That's Friend of Obama and Friend of Granholm for those of you not on the inside.)

In short, Jennifer Granholm has the legal and political background--and proven skills--to commend her to President Obama, as well as to Senators who would prefer a non-judge as the next Justice. She also has the political ties to Obama such that, with all the rest that she has to commend her, he can't help but consider her.

She is also white and a Midwesterner--i.e., not a minority (who Obama typically favors--so the refrain goes) and not another Northeasterner. She is, however, Roman Catholic. Her appointment would mean 7 Catholics on the Court, 2 Jews, no Protestants. Do not dismiss the political weight of that consideration. It's a political drawback. Whether it's spoken or tacit, it will deeply bother some Senators and their constituents.

Some other possible drawbacks for Granholm: as a Governor in a state which has experienced a declining auto industry, a failing economy, and high unemployment, she has had her hands full with crisis after crisis and with decisions unpopular with her Republican opposition in the state senate. Some of that partisan opposition might well spill over into Republican opposition in the U.S. Senate.

Additionally, there will no doubt be some push back--at least early on--because she lacks judicial experience. But most of that will evaporate when it is explained--as it has been in several previous posts on New York Court Watcher, including a little bit in this post--that many of the very best Justices had little or no judicial experience. Indeed, that the correlation between a great Justice and prior judicial experience is just about zero. (Justice Felix Frankfurter observed that long before I did.)

Ultimately, unless something unforeseen arises, Granholm would almost certainly be an easy confirmation. That is something else that would commend her to the President.

In the next post--unless Obama has already made his pick, and it's not Judge Sidney Thomas--we'll look at that possible nominee.

[Correction/Clarification: As a good friend reminded me after reading this post, Justice Ruth Bader Ginsburg was, of course, a noted civil rights attorney prior to her judicial career, especially for women's rights. It should be added that she was also a law professor for many years. But (and I really have no "buts" when it comes to that extraordinary person, woman, lawyer, Justice), she was already an established member of the judiciary by the time she was appointed to the Supreme Court. Justice Thurgood Marshall, by contrast, had only been a federal judge for a few years--after nearly 30 years as a civil rights lawyer extraordinaire--before being elevated to the Supreme Court. That was my intended point.]

Tuesday, May 4, 2010

Supreme Court: Short List to Replace Stevens (Part 4a: Merrick Garland [2])

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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In the last post on New York Court Watcher, we began our examination of federal appeals Judge Merrick Garland as a possible--indeed very possible--choice of Obama for the Supreme Court. We reviewed his educational and career background prior to his appointment by President Clinton to the U.S. Court of Appeals for the D.C. Circuit in 1997. (See Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1]), May 3, 2010.)

We then took a look at some of his judicial opinions in criminal cases. Specifically, we looked at his dissenting opinions in those cases--i.e., as we've elaborated several times previously, the opinions he wrote in cases where he disagreed strongly enough with the majority of his colleagues that he felt compelled to express his differences publicly. Those particularly revealing opinions showed Garland to be quite tough on criminal defendants.

In each dissent he took a more pro-prosecution position than his colleagues. (This, of course may make him more palatable to Senate Republicans and, thus, make his confirmation, that much easier. More about that later.) To be clear, however, Garland's pro-prosecution positions were disagreements with his colleagues about what he saw as overly technical, narrow and rigid--rather than common sense--interpretations and applications of the law. His disagreements were NOT in the nature of the all too typical nonsense about liberal colleagues being soft on crime, or disregarding society's interests in crime control and safety, or making law to favor the rights of the accused over the victims.

No, not at all. His dissents were always tempered, respectful, thoughtful, and clear that he simply thought the majority got it wrong. Moreover, his dissents do not indicate a willingness to sacrifice due process for crime control. His "law and order" dissents were NOT in the nature of excusing police misconduct in obtaining evidence, illegal government tactics, or any official malfeasance. Rather, they evince little sympathy for overly technical, rigid views of the law that result in excusing indisputably illegal misconduct and corruption.

[So, for example, in U.S. ex rel Totten v. Bombardier Corp (2004), a case discussed in the last post, Garland argued, in dissent (against a majority opinion written by then-Judge John Roberts), that a prosecution for cheating the federal government should be upheld against a private contractor that had sold defective cars to Amtrak, which “receives billions of dollars in federal funds that it uses to pay contractor[s]."
This parenthetical was revised from the original post to illustrate the case that was intended.]

But now, let's turn to the civil cases. First, let's look at the 4 cases involving worker rights in which Garland dissented. In every case, he sided with the worker.
[Another big, and related nota bene: by contrast, Chief Justice Roberts record in cases involving workers is not very sympathetic to worker rights. See e.g., GUEST POST: Chief Justice Roberts on Employment Discrimination--Not Often the Worker's Friend, April 30, 2010.]

In Fed Ex v. NLRB (2009), the appeals court overruled a decision of the National Labor Relations Board (NLRB) that the company committed an unfair labor practice by refusing to collectively bargain with the union representing certain drivers. The court held that the drivers were too independent to be considered employees and, thus, the company did not have to deal with them through their union. Garland argued that there were good reasons for viewing the drivers either way, as employees or independent contractors, and therefore that the ruling of the agency with expertise and responsibility for such matters should control. In short, it was reasonable to view the drivers as employees and to require the company to deal with the drivers' union.

In Northeast Beverage v. NLRB (2009), the appeals court overruled a decision of the NLRB that the employees' walkout was a protected union activity. The court held that the walkout was not part of an ongoing labor dispute--which would have been protected. Garland argued that the NLRB's decision was perfectly reasonable because the walkout was directly related to the company's closing of the drivers' work facility, and the drivers had walked out to get answers about their continued employment. In short, the agency's ruling in favor of the employees should be upheld.

In Ross Stores v. NLRB (2001), the appeals court overruled the NLRB's decision that the company committed an unfair labor practice when it told an employee that union solicitation was not allowed. The majority held that the complaint was filed too late because it was not filed within 6 months. Garland argued that the complaint was "closely related" to a complaint which was timely filed and approved by the court--i.e., the company fired the employee for favoring unionization. Under the law, that makes the dismissed complaint a timely one. In short, the agency's ruling siding with the employee should be upheld.

In Berger v. Iron Workers Reinforced Rodmen, Local 101 (1999), the appeals court reversed the trial court's calculation of back pay for workers who were the victims of racial discrimination in employment. The court held that the back pay should have been less because the calculation of the "benchmark" pay should have taken into account the zero-earnings of employees who did not work. Garland argued that, although the trial court's calculation was different, it was not unreasonable or "clearly erroneous"--and that is the legal standard for review. In short, the ruling of the court below, which was more favorable to the employees, was reasonable and should be upheld.

As with Garland's dissents in criminal cases, the common thread in these cases involving rights of employees is clear. He consistently supported rulings that favored workers as long as they were reasonable--even if a contrary decision might have been more technically, strictly correct. Where it's possible to decide a case either way, Garland has erred on the side of favoring workers.

In these cases, he is much more the liberal that one would expect of someone who worked in both the Carter and Clinton administrations. The same is true for other civil cases in which he dissented: freedom of the press, the public's right to know, environmental protection, and the treatment of detainees.

In Lee v. Dept. Of Justice (2005), the appeals court ordered a newspaper to disclose confidential sources to a plaintiff who was seeking information for his private lawsuit against the government. Garland argued that the public had an overriding interest in protecting the freedom of the press to gather information from confidential sources, and that that interest outweighed a plaintiff's need for information in a private lawsuit.

In McDonnell Douglas v. U.S. Air Force (2004), the appeals court ruled that information about prices paid by the Air Force for maintenance work was not available under the Freedom of Information Act (FOIA). The majority held that release of the information would harm the competitive position of the company that won the bid to do the work. Garland argued that the majority's rule virtually foreclosed the availability of any such information about the prices government pays to private contractors; under FOIA, withholding information should be the exception, not the rule.

In Am. Corn Growers v. Environmental Protection Agency (2002), the appeals court overruled the agency's so-called Haze Rule which required the states to implement regional anti-haze programs to help clear the air in national parks and wilderness areas. The majority held that the agency was infringing on the authority left to the states under the federal Clean Air Act. Garland argued that the EPA's interpretation of the legislation was entirely reasonable and that, given the agency's expertise and responsibility in the area, its interpretation should be deferred to by the court.

In Saleh v. Titan Corp. (2009), the appeals court dismissed lawsuits by Iraqi nationals who alleged abuse at the hands of private military contractors while at Abu Garaib prison. The majority held that the contractors were too closely tied to combat activities of the U.S. military to be subject to ordinary tort liability. Garland dissented on the ground that no one was claiming that the "beat[ings], electrocut[ions], rape[s], attacks by dogs" and other abuses inflicted by the contractors on the plaintiffs were authorized by the U.S. military. In fact, Garland noted, no official of either the current or previous administration has defended the contractors' conduct or suggested it was part of any military function.

It's not too difficult to see a pattern in these dissents. In every one, Judge Garland took the position one would expect of a liberal. Pro-workers' rights, pro-free press, pro-freedom of information, pro-environment, and pro-humane treatment of war prisoners.

Of all those, it's that last one that could, however, cause some concern at confirmation hearings. That--meaning his dissent in Saleh v. Titan Corp.--especially when combined with his participation in the Hufaiza Parhat case.

In Hufaiza Parhat v. Gates (2008), a 3-judge panel of the D.C. Circuit, including Garland, ordered the release of a Guantanamo Bay detainee. In a decision otherwise sealed for national security reasons, the panel announced that the government's decision that Hufaiza Parhat was an "enemy combatant" was "invalid." It was the first civilian judicial review of the government's claimed justification for holding a Guantanamo detainee.

Combined with Garland's dissent in the Saleh (the Abu Garaib case), this may provide fodder for Senators bent on opposing an Obama nominee of the ground of being soft on our enemies or insufficiently deferential to the the military. That might well be grasping straws, but there are other real political considerations in nominating Garland.

First, he's extremely well qualified--education and legal and judicial experience. So, at the very least, he wouldn't face opposition on the basis of strict, ideologically-neutral merit.

Also in his favor, he's a white male. Nominating him will help show that Obama isn't only interested in promoting the interests of minorities and women--an increasingly frequent refrain and growing suspicion among the President's political opponents. It might also help Obama's party which is much less popular with white men than are the Republicans.

Additionally, Garland is from the Midwest--Illinois. He would be replacing a Midwesterner. At least as important, this means that Garland is not another Northeasterner. Or even an Easterner. Justices Stevens and Kennedy are the only non-Easterners on the Court. Yes, Chief Justice Roberts grew up in Indiana. But he was born in Buffalo, New York. He has been living and working in Washington, D.C. for a long time. He was elevated from a court in D.C. And, he went to college and law school at Harvard.

As for that last matter, it would surely be a negative to some to have yet another Justice from one of those northeastern Ivy League law schools. In Garland's case, Harvard. Every Justice, except the retiring Justice Stevens (Northwestern University law school), graduated from Harvard or Yale or, in the case of Justice Ruth Bader Ginsburg, from Columbia. (And she actually studied law at Harvard for 2 years.) No doubt, Southern, Midwestern and Western pride will be hurt if none of their schools are represented on the Court.

Along similar regional/tribal lines. A Garland appointment would also mean that all 9 Justices were either Catholic or Jewish. Stevens is the only Protestant currently on the Court. Replacing him with Jewish Garland would mean a Court composed of 6 Catholics and 3 Jews. That's quite an extraordinary statement about the progress of ethnics in America. But it is surely not one that will be viewed as optimal, pleasing, or even acceptable to many. It will certainly not be one that is missed in news reports, nor one lost on those with a hypersensitive sense or even paranoia about minorities getting all the breaks and taking over America. Indeed, there have been rumblings to that effect regarding this coming appointment.

Along similar, if even less "compelling" concerns, is the D.C. Circuit lock on the Court. If Garland is appointed, he would be the 5th Justice elevated from that single court. Roberts, Scalia, Thomas, and Ginsburg were also from that court. Garland's appointment would mean a majority of the Supreme Court Justices from just one of the nation's federal appeals courts--and none, by the way, from any of the state supreme or appeals courts. Justice Sandra Day O'Connor was appointed from an Arizona state appeals court, and Justice David Souter had previously served on the New Hampshire Supreme Court. But all the current Justices are from a federal appeals court, and a plurality from the D.C. Circuit.

What that also means, is that all the current Justices are from courts. All the Justices were Judges. All come from judicial careers. Many, including Obama himself, have raised that as a concern. That is, all the Justices come from a similar occupational mode. Garland would not bring any diversity to the Court in that regard. He was, however, a prosecutor, he did serve in the Justice Department, and he did work as a private attorney. So a good part of his career has not been the monastic life of a judge. But, his career has been that for the last 13 years.

Nevertheless, when everything is added, Judge Garland seems like a rather easy confirmation if he's nominated by Obama. Sure, there are a few irritants for some. Mostly, there are the regional/tribal factors. Obama is certainly aware of these and is weighing them. But the one likely to be the most politically salient--the Catholic, Jewish, and no-Protestant factor--is the least likely to be raised by a Senator, at least not too explicitly, as being troublesome.

I, for one, will not be surprised at all if Judge Garland is the nominee.

There are a few others who are apparently being seriously considered by Obama. Federal appeals Judge Sidney Thomas of Montana is one. We'll have to take a look at him. Homeland Security Secretary Janet Napolitano and Michigan Governor Jennifer Granholm are also being mentioned. We'll try to get to each of them before Obama actually makes his pick. The reports yesterday and today are that the President is getting very close.

Monday, May 3, 2010

Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1])

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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In previous posts on New York Court Watcher, we looked at Elena Kagan, Diane Wood, and Leah Sears as possible replacements for the retiring Justice John Paul Stevens. (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010; Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010; Supreme Court: Short List to Replace Stevens (Part 3: Leah Sears), April 26, 2010.) All three are apparently being considered, or have been considered, by President Obama for the Supreme Court appointment.

Beyond these three, several others have been identified repeatedly in published reports as among those who are being seriously considered. And certainly, Obama's short list, even his very serious short list, includes at least a few more names.

One name that is mentioned prominently is Merrick Garland. That shouldn't be surprising. Even a quick examination of this federal appeals judge tells why. [Well, maybe not so quick. We'll do this in 2 posts.]

His resume? First rate. Educated at Harvard, both undergraduate and law. Then clerkships with Judge Henry Friendly at the 2d Circuit Court of Appeals (the federal appeals court that sits in Manhattan) and Justice William Brennan at the Supreme Court.

It would be impressive to clerk for any Judge or Justice on those 2 courts. But William Brennan was perhaps the most influential member of the Court--within the Court--during his tenure, and certainly one of the most influential liberal Justices in the history of the Court.

And Henry Friendly was one of the greatest and most widely admired of all federal judges--on any court, of any ideological or jurisprudential bent. [Then why didn't Friendly make it to the Supreme Court, you ask? Well, for the very same reason that most of the truly great judges don't. Merit is but one factor in appointments. In fact, it's rarely, if ever, the decisive one. Sorry to break it to you. Political and personal considerations have determined most appointments to the Court. Not who's the best. Again, sorry. And, spoiler alert for children, there's no Santa Claus, Easter Bunny, or Wizard of Oz either.]

But returning to Garland, those clerkships are as good as it gets for someone just graduating from law school. [Another BTW: Chief Justice John Roberts had a very similar post-law school experience. He also clerked for Friendly, and then he clerked on the Supreme Court for Chief Justice William Rehnquist.] Following the clerkships, Garland worked at various times as a private lawyer in one of the nation's major law firms, Arnold & Porter, and as a government lawyer in the Department of Justice.

His government positions included several years in the office of the Attorney General in both the Carter and Clinton administrations, and as a federal prosecutor in the District of Columbia. In the Clinton administration, working in the Criminal Division of the the Justice Department, he supervised the Unabomber and Oklahoma City bombing prosecutions.

Garland was appointed to the D.C. Circuit by President Clinton in 1997. In his 13 years on the federal appeals bench, Garland has developed a reputation as a moderate. Somewhat more conservative than liberals in criminal matters. More liberal than conservatives on other issues. A look at some of his judicial opinions seems to confirm that view.

Although Judge Garland has authored nearly 300 opinions as a federal appellate judge--and we (meaning I) won't be outlining all of them in this post--it's possible to get a sense of his judicial priorities and perspectives from a few of his dissenting opinions. Indeed, as is usually true, the dissenting opinions are very revealing.

[The importance of dissenting opinions in discerning a judge's ideological and philosophical views and leanings has been discussed, explored, and applied on this blog, as well as in countless judicial studies. For posts on New York Court Watcher discussing dissents, see Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010; Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 30, 2010.]

Garland has written dissenting opinions--i.e., publicly took exception to his colleagues' decision--in 5 criminal and quasi criminal cases. In every one, he sided with the prosecution.

In Valdes v. U.S. (2007), a police officer repeatedly accepted payment for obtaining license plate information for an undercover FBI agent posing as someone who wanted information for "these f*** people [who] owe me a lot of money." The officer was convicted of receiving an "illegal gratuity." The appeals court reversed on the ground that the officer was not involved in an official action or decision. Garland rejected that technical view of the law. He would have upheld the conviction for the "payoff[s]" as clearly being "public corruption" within the law's intended target.

In U.S. v. Wilson (2001), the appeals court reversed the defendant's enhanced sentence for false identification. According to the majority, the defendant was not engaged in an "extensive" criminal enterprise because that typically required at least 5 participants. Garland argued that the increased sentence was justified, regardless of the number of accomplices, because the defendant's criminal activity was certainly extensive when all the other circumstances were considered.

In U.S. v. Watson (1999), the appeals court reversed a conviction for drug possession with intent to distribute because the prosecutor at trial had inaccurately quoted a witness's testimony. Garland dissented on the ground that the mistake involved only one sentence of a defense witness's testimony, that the defense counsel didn't even bother to correct any possible confusion on redirect, that the prosecutor's mistake was entirely innocent, and that it caused no real prejudice.

In U.S. v Spinner (1998), the appeals court reversed weapons and drug convictions. As for the majority's view that the expert testimony was insufficient in describing the weapon, Garland argued that that was irrelevant since the weapon itself was in evidence for the jury to examine. As for the majority's view that the prosecutor impermissibly presented evidence of the defendant's bad character, Garland noted that the defendant actually introduced the issue by claiming he was a "changed man" who no longer sold drugs.

In U.S. ex rel Totten v. Bombardier Corp (2004), a quasi criminal action against a contractor, under the federal False Claims Act, for delivering defective rail cars to Amtrak, the appeals court held that the government had no claim because Amtrak is not the federal government. Garland viewed the majority's interpretation of the law as overly narrow. He would have upheld the claim against the contractor on the ground that "Amtrak receives billions of dollars in federal funds that it uses to pay contractor[s]."
[A big nota bene here: then-Judge John Roberts--soon to be Chief Justice--wrote the majority opinion against which Judge Garland dissented.]

There's little doubt from these cases that Garland has little use for narrow, technical, overly legalistic interpretations and applications of laws intended to combat fraud, corruption, and drug trafficking.

That's the more conservative, pro-prosecution side of Judge Garland. In the next post we'll look at his dissents in civil cases. In those cases, which involve the rights of workers and other civil entitlements and liberties, he is much more liberal. Indeed, unmistakably so.

[Another big, and related nota bene: by contrast, Chief Justice Roberts record in cases involving workers is not very sympathetic to worker rights. See e.g., GUEST POST: Chief Justice Roberts on Employment Discrimination--Not Often the Worker's Friend, April 30, 2010.]

We'll see in the next post.