Gavel Grab

Archive for February, 2010

Berkeley Law Prof Nominated for Appeals Court


One of President Obama’s most interesting judicial confirmation battles to date may be about to unfold.

Obama has nominated Goodwin Liu (photo at right) for the 9th U.S. Circuit Court of Appeals. Liu teaches constitutional law at the University of California at Berkeley and clerked for Supreme Court Justice Ruth Bader Ginsburg. The 39-year-old law professor, while drawing fire from some conservatives, has won praise from others.

Liu’s nomination  “will be the most high profile confirmation fight that we have seen under Obama” since then-Judge Sonia Sotomayor’s nomination to the Supreme Court, Curt Levey, executive director of the conservative Committee for Justice, was quoted as saying by The Blog of Legal Times. Levey described Liu as one of the leading “radical legal theorists out there,” according to a Washington Post article.

But conservative lawyer Clint Bolick, director of the Goldwater Institute in Phoenix, wrote a supportive letter about Liu last month and said the professor exhibits “fresh, independent thinking and intellectual honesty.”

And former Rep. Tom Campbell, seeking the Republican nomination to run for the Senate seat of Democrat Barbara Boxer, said Liu would bring “scholarly distinction and a strong reputation for integrity, fair-mindedness and collegiality to the Ninth Circuit,” the San Francisco Chronicle reported.

Liu testified against the confirmation of then-nominee Samuel Alito to the Supreme Court. Liu is former board chair of the American Constitution Society. He has supported school choice in urban education, according to the Los Angeles Times. The son of Taiwanese immigrants, he could become the only full-time Asian-American judge on a federal appeals court if confirmed.

The White House also announced Obama’s nomination of District Judge Robert N. Chatigny from Connecticut to the U.S. Court of Appeals for the 2nd Circuit. Judge Chatigny’s record is examined in the Hartford Courant. You can learn more about Obama’s track record for judicial nominations in Gavel Grab.

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Thursday Media Summary

NATIONAL SECURITY/COURTS

National Review: A Mistake, Not a Model
Andrew C. McCarthy – 2/24/2010

Wall Street Journal: Mr. Holder’s Triumph (subscription required)
2/25/2010

Bloomberg: Congress Must Fund Trial of 9/11 Terror Suspects, Official Says
Jeff Bliss – 2/24/2010

Huffington Post: Beyond Politics, Beyond Guantanamo: 9/11 Trials Should Not be Construed as a Partisan Issue
Ginny Sloan – 2/24/2010

Miami Herald: Judge OKs detention of 2 men Bush panel cleared
CAROL ROSENBERG AND MARK SEIBEL – 2/24/2010

CITIZENS UNITED

The Hill/Blog Briefing Room:
Dodd introduces constitutional amendment to reverse SCOTUS on campaign spending
Eric Zimmermann – 2/24/2010

Blog Of Legal Times: Opinions Differ on Future Under Citizens United
Andy Jones – 2/24/2010

CAMPAIGN FINANCE/COURTS

Washington Examiner/AP: La.-based campaign finance suit at appeals court
KEVIN McGILL – 2/24/2010

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Wednesday Media Summary

CITIZENS UNITED

Wall Street Journal: Repealing the First Amendment
(Subscription Required)
2/24/2010

USA Today: States weigh campaign-finance changes
Fredreka Schouten – 2/23/2010

Charleston Daily Mail/AP: W.Va. lawmakers reacting to major elections ruling
2/23/2010

Center For Responsive Politics/Capital Eye Blog: Midterm Elections Will Cost at Least $3.7 Billion, Center for Responsive Politics Estimates
2/23/2010

SCOTUS/MATERIAL SUPPORT

LA Times: Supreme Court weighs anti-terrorism law, free-speech rights
David G. Savage – 2/23/2010

Washington Post: Supreme Court weighs free speech against aid to terrorists
Robert Barnes – 2/24/2010

NPR: Does The Patriot Act Violate Free Speech? (w/audio)
Nina Totenberg – 2/23/2010

NY Times/AP: High Court Weighs Anti-Terror Material Support Law
2/23/2010

NATIONAL SECURITY/COURTS

NY Times: A Terrorist in Court? Life Goes On
JIM DWYER – 2/24/2010

Denver Post: Zazi plea deal shows strength of civilian court
Editorial – 2/24/2010

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Supreme Court Tackles Anti-Terror Law Challenge

The Supreme Court is wrestling with arguments raised in its first review of a part of the USA Patriot Act, passed by Congress shortly after the Sept. 11 terrorist attacks.

In oral arguments, the Obama administration defended a law making it illegal to give support to a foreign terrorist group, while a retired judge and University of Southern California professor challenging the law contended his free-speech rights were threatened.

“What Congress decided is that when you help Hezbollah build homes, you’re helping Hezbollah build bombs,” Solicitor General Elena Kagan told the court, according to a Los Angeles Times article.

David Cole, a Georgetown University Law Center professor, said he represents activists who want to persuade foreign groups to avoid violence and seek dispute resolution at the United Nations. “They seek to advise them on peaceful conflict resolution. They seek to support only lawful activities,” said Cole, who represents the Humanitarian Law Project and its president, Ralph Fertig. Read more

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From Brooklyn to Denver, Terror Plea Reverberates

Najibullah Zazi’s guilty plea in a Brooklyn courtroom, to charges in a New York subway bomb plot (see Gavel Grab), is continuing to reverberate.

A New York Times feature article depicted life going normally in Brooklyn before, and after, the accused terrorist’s court appearance and contrasted that tableau with what it called the mushrooming “culture war” over the Obama administration’s plans to try 9/11 co-defendants in a federal courtroom in Manhattan, as opposed to before military tribunals.

Zazi was arrested by federal authorities in Colorado. The Denver Post has published an editorial condemning as “utter nonsense” the notion that prosecuting terror suspects in civilian courtrooms is soft on terrorism:

“The Zazi plea is an affirmation that the federal court system is — and has been — capable of handling terrorism investigations.

“Not every terrorism suspect ought to be pursued in civilian courts, but the Obama administration has proven, just as the Bush administration did with shoe bomber Richard Reid, that it’s not only possible, but also preferable.”

To learn more about the debate over military tribunals versus civilian courtrooms for trying terror suspects, read Gavel Grab.

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'Citizens United:' More States Weigh Legislation

The rush to rewrite campaign finance laws in state legislatures, in order to comply with Citizens United, is the topic of an article in USA Today.

It presents a good roundup on these efforts, with special attention paid to bills in Iowa and Maryland for disclosure of corporate political spending and to require shareholder approval.

The Associated Press brings an update from still another state, West Virginia, where a House committee advanced bills to require reporting of spending for independent advertising and for shareholder approval in advance of corporate political spending.

The same panel advanced earlier in the week a bill to provide public financing for state Supreme Court candidates in the 2012 elections, according to a report by MetroNews. The legislation was introduced after an independent commission made recommendations on judicial reform (see Gavel Grab.)

Meanwhile advocacy groups that have opposed the Citizens United ruling could benefit from corporate spending enabled by it, according to the Boston Globe, but whether that will actually happen isn’t certain.

To learn more about Citizens United, read Gavel Grab.

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On the Widespread Impact of 'Citizens United'

From Arizona to Washington, D.C., a single day’s dispatches suggest the far-reaching impact of the Supreme Court’s Citizens United decision.

The Arizona Republic reported that Arizona’s secretary of state has proposed changes in the law that would bring compliance with Citizens United. No longer, the newspaper said, was old Arizona law enforceable, because it barred corporations and unions from making political expenditures to support or oppose state candidates.

In Washington, Tom Goldstein looked ahead and predicted in SCOTUSblog that Supreme Court Justice John Paul Stevens will retire; that Justice Ruth Bader Ginsburg will not; and that the Obama administration may raise the court’s profile, uniting with congressional Democrats to portray the court as pro-corporation. Goldstein remarks:

“The public’s hostility to the Citizens United decision – consciously stoked by the White House – is pretty much off the charts.”

You can visit Gavel Grab for polling results, or click here for earlier posts about Citizens United.

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Terror Plea: a Victory for Civilian Courts?

Attorney General Eric Holder has a dual victory to declare. Prosecutors not only won a guilty plea in a New York terrorism plot but they secured it in civilian court.

“In this case, as it has in so many other cases, the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with the intelligence community and our military,” Holder said about the plea by Najibullah Zazi (photo at right), according to a Washington Post article.

The airport shuttle bus driver’s plea in a plot to trigger explosives in New York’s subway came at a moment of fierce debate over the use of military tribunals versus civilian courts to try terrorism suspects. The Post headline announced, “N.Y. terror plea hailed as a validation of court strategy.”

And it came on the heels of remarks by two major figures from the administration of President George Bush, John Ashcroft and Colin Powell,  acknowledging or proclaiming the strengths of civilian trials for terror suspects. Read more

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'Torture Memo' Authors Won't Be Disciplined

It’s official: there will be no discipline for two former Bush administration lawyers who had  a role in drafting the legal policies that permitted harsh interrogation of detainees.

The Justice Department issued a report concluding the two lawyers “exercised poor judgment,” but it did not go so far as to find they had engaged in “professional misconduct” and should be disciplined, the Washington Post reported. The two are Judge Jay Bybee, who sits on a federal appeals court in Nevada, and John S. Yoo.

In months preceding the final Justice Department report, Judge Bybee had been the target of some critics urging impeachment. But Justice at Stake executive director Bert Brandenburg took issue with that approach, calling impeachment of judges for their legal views the “atomic bomb of American politics” and warning that impeaching Judge Bybee  for his memos on interrogating detainees would set a dangerous precedent (see Gavel Grab posts.)

Following release of the Justice Department report, Sen. Patrick Leahy, D-Vt. and chairman of the Senate Judiciary Committee, has urged Judge Bybee to resign from the bench. A lawyer for the judge, however, labeled the report’s finding a “vindication” of her client.

That view was disputed by a Los Angeles Times editorial saying the Justice Department report was “far from a vindication for John C. Yoo and Jay S. Bybee’s shamefully narrow interpretations of laws against torture and extravagant views about presidential power.” The Washington Post published an editorial entitled, “No punishment for torture memos’ authors, but no exoneration, either.”

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Appeal Bid: When a Judge Behaves Badly…

How closely will the Supreme Court review the integrity of lower courts?

An answer may come in an unusual case where a Texas defendant, who was sentenced to death, has told the high court that the judge in his murder trial had been sleeping with the prosecutor.

A New York Times article documents the story of defendant Charles Dean Hood; Texas Judge Verla Sue Holland; and the prosecutor, Thomas S. O’Connell Jr. It notes that “it took Mr. Hood almost 20 years to establish” as fact the relationship of judge and prosecutor, but they ultimately “admitted it.”

Seeking a Supreme Court appeal, Hood has enlisted support in a brief from 21 former judges and prosecutors. Thirty legal ethics experts also filed a supportive brief saying, “A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself.”

“The Supreme Court has lately taken some interest in the integrity of the judicial system,” the Times article notes. It points to the landmark Caperton v. Massey decision,  when the Supreme Court required a judge to step aside from a case because a party to it had given him massive political support. (See Gavel Grab or visit Justice at Stake’s resource page about Caperton.)

In another matter the high court directed a federal appeals court to take  another look at a surprising development;  jurors in a capital murder case gave the trial judge a gift of chocolate fashioned as male genitalia.

Texas’ top criminal court ruled in Hood’s case that he had taken too long bring up the issue of whether a conflict of interest was presented by an affair between a judge and a prosecutor. (See earlier Gavel Grab report.)

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