I SPY

DOM asked us to help out this week and we've put together a little Supreme Court update. The Supreme Court agreed to return to the arena of terrorism Monday when they granted cert in 
Clapper v. Amnesty International  which challenged the constitutionality of  the Foreign Service Intelligence Surveillance Act. 
The second circuit found that the plaintiffs- a collection of lawyers, journalists and the odd activist- had standing to challenge the Foreign Intelligence Surveillance Act, and it is this point only that is on appeal. The second circuit then  refused to re-hear the case en banc, prompting Chief Judge Jacobs to issue a rare dissent on the denial to re-hear the case en banc.
The CJ's attack on the veracity of the  plaintiffs/lawyers is startling, and the CJ's comparison of the plaintiffs to a disturbed pro se plaintiff suing the CIA for thought control is downright amusing. From the CJ's dissent (you can read it all here): 


      An assortment of lawyers, journalists and activists, 
and organizations representing such people, facially  challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”... Their claim is that the FAA lowers the standards for obtaining warrants to surveil foreign persons abroad, which has caused the plaintiffs, who are not foreigners, to develop a reasonable fear of being surveilled when communicating with foreigners around the world who are their journalistic sources, clients, human rights victims, witnesses and so on--all of whom are, in plaintiffs’ estimation, potential objects of surveillance. The plaintiffs contend that this fear compels them to communicate with their clients or foreign contacts only in  person, at such trouble and expense as to constitute injury that supports standing. ..
To support the otherwise-mysterious idea of injury to these plaintiffs (and causation), the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression...
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake--for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over  government policy--an interest that the law of standing  forecloses. For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can  be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar. But, as to the standing analysis, there is this difference: The pro se plaintiff is actually suffering, is truly hoping for redress, and is not bringing suit as a  pretext to weigh in on government policy. 
Rumpole says: Wow. It's not often the Chief Judge of the Second Circuit Court of Appeals writes with  sympathy for pro se plaintiffs suing the CIA for thought control. "Politics and standing make strange bedfellows, eh?" 

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Lawyers behaving badly

Everyone's all aflutter about the depo drawings leading to sanctions against lawyers.  Here's the order by Judge Altonaga. 

South Florida Lawyers and ATL cover the story. 

Civil lawyers are so funny.  All this fighting about discovery.  Try coming to criminal land -- no depos, no witness statements, no nothing.  And when something does get buried, no sanctions are allowed. 

Anyway, I'm taking the week off from blogging next week, and leave you in the capable hands of Rumpole, SFL, Jeff Marcus, and a potential mystery blogger.  If something really exciting does come up, I'll pop my head in.

For now, I'm going to go and try to get in on some of this Facebook action.

Have a nice weekend.

"There are consequences for disobeying the word of God."

That was Christian school administrator John Ellis when he fired a teacher for conceiving a child three weeks before marriage. Oy vey.

 The 11th Circuit explained that there are also consequences for violating the law.  From Thomson Reuters:

Hamilton sued the school in 2010 under a federal law that bars discrimination based on pregnancy, seeking compensation for lost wages and emotional distress. A federal district court ruled in the school's favor before a trial, finding that Hamilton failed to establish that she was fired for her pregnancy rather than moral concerns over her premarital sex. But a three-judge panel of the 11th Circuit disagreed on Wednesday.
The court pointed to evidence that the school was more concerned about Hamilton's request for maternity leave than her admission to having premarital sex. Ennis expressed concern over finding a replacement teacher, Hamilton testified.
"Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide," Judge Edward Carnes wrote for the unanimous panel, sending the case back to the lower court for a trial.
At a late stage in the appeal, Southland had tried to argue that the separation between church and state prevents courts from applying discrimination laws to churches' employment decisions. The school pointed to a recent Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which upheld religious groups' right to choose their ministerial employees without government interference.
But the 11th Circuit found that the school had waited too long to raise that argument and even admitted in a court filing that it did not consider Hamilton a "minister" with religious duties.
David Gibbs, a lawyer for Southland Christian School, said in a statement that he would defend the school's religious rights before the district court. The school "is protected under the First Amendment to hire and fire its ministerial employees according to its sincerely-held religious beliefs," he said.

I like the way Judge Carnes crisply starts the opinion (which was joined by Judges Martin and Jordan):

A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal.

Wednesday News & Notes

1.  Is Scalia becoming too much of an advocate on the bench?  Via Bloomberg:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.
Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”


Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and- take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.
“His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”

2.  Rusty Hardin is crossing the Roger Clemens' snitch (via BLT):

Cross-examination began late Tuesday with Rusty Hardin, Clemens' top lawyer, noting how "subdued" and "down" McNamee has appeared on the witness stand the past couple of days.
"Do you consider yourself a victim?" Hardin asked McNamee.
"A victim of my own doing," he said.

 Meantime, the jurors are sleeping through portions of the case, and are getting booted (via the NY Times):

But it seems that for all the care and caution that went into scrutinizing the Washingtonians who would end up determining Clemens’s fate, one fundamental question was overlooked: can you stay awake during the trial?

The trial of Clemens is in its fifth week — with Brian McNamee, the government’s star witness, now on the stand — and already, two jurors have been dismissed for falling asleep.

The first juror excused by the judge, Reggie Walton of United States District Court, was a 27-year-old chronically unemployed man who was let go last week. During juror questioning, he told prosecutors that he would “rather be asleep” than serve on the jury. In the end, he tried to do both but failed.

Walton then warned the remaining 15 jurors and alternates: “Stay alert. We don’t want to lose anybody else.”

But another juror, a young woman who works as a cashier at a supermarket, failed to heed that warning. She nodded off on Monday — the day McNamee, Clemens’s former trainer, began his testimony — and was dismissed by Walton on Tuesday.

It was just last week that Walton scolded the prosecutors and the defense lawyers for asking too many unnecessary questions and boring the jurors so much that they had begun to discuss the case among themselves, which they were told not to do. He even threatened to put a time limit on the trial.

3.  Bond condition: read and write book reports.  No joke (via SF Chronicle):

One of three men indicted for allegedly trying to sell a grenade launcher during a deal that led to gunfire in Richmond was ordered released on bond Monday by a federal judge, who allowed him to remain free so long as he reads each day and completes book reports.
Over the objections of federal prosecutors, U.S. District Judge Yvonne Gonzalez Rogers granted a request by 23-year-old Otis Mobley Jr. to be released before trial. She ordered him to "read and complete book reports," spending an hour every day on books and at least a half an hour writing.
The judge said she plans to provide a reading list for Mobley as he awaits trial.

4.  Is John Edwards going to testify (via Washington Post):

Many people watching the case believed Edwards would testify so the jury could hear directly from the former U.S. senator and trial lawyer, who had a reputation for his ability to sway jurors. But putting Edwards on the stand was also a gamble: It would have exposed him to withering cross-examination about his past lies and personal failings.
Most experts were convinced calling Hunter to testify would have dredged up more negatives and lies. The defense also elected not to question Edwards’ oldest daughter, Cate, who has sat behind Edwards nearly every day of the trial and could have helped humanize him.

UPDATE -- He didn't testify.

Americans for Immigrant Justice expanding to DC

They used to be called FIAC -- Florida Immigrant Advocacy Center.  From the new and improved website:

AI Justice was founded in 1996 as the Florida Immigrant Advocacy Center when federal funding restrictions prevented Legal Services Corporation (LSC) agencies from representing most immigrants, unless they already had legal status.  The organization was cofounded by its current executive director, Cheryl Little, Esq., along with two Catholic nuns, Sr. Maureen Kelleher RSHM and Sr. Catherine Cassidy HM.  In its first year of operation, the staff inherited over 3,000 cases that LSC agencies in Florida were no longer allowed to handle.
Since its inception, AI Justice has represented immigrants from all over the world.  Beginning with ten employees and a $400,000 budget, it has grown to a staff of 38 and a $3.5 million budget.  Since 1996, its lawyers have closed over 80,000 cases, and AI Justice has become a national trendsetter in the immigration field.

 Holly Skolnick is the current President and one of the leaders, helping to expand the group to DC (where she started as a public defender).  She's a good choice as she has a long history with public service (President of the Greenberg Fellowship Foundation and a member of UM's Center for Ethics and Public Service).

Monday Morning

Nothing much new to report....

The Heat looked pretty good yesterday, even after Bosh got hurt.  Indiana is pesky but shouldn't be a problem.

Rumpole covered the FACDL banquet.  It was a very nice event at the Biltmore.  Judge Gold was honored as was Judge Hubbart.  Roy Black did a nice job introducing Hubbart and explained what it was like to be a PD before he took over (i.e., no jury trials and only part-time PDs).

Barack Obama may be the first president in 30 years to have more judicial vacancies at the end of his first term than when he started.

The John Edwards trial is still going.  Will Rielle take the stand?

Anyone in trial down here?

Judges read blogs

Even Justices do:

Supreme Court justices – most recently Elena Kagan – routinely cite Bashman's blog as a must-read, and visitors to the chambers of Chief Justice John Roberts Jr. have spied How Appealing displayed on his computer screen. A federal appeals judge once chided a prosecutor in open court for not following the blog and not knowing about a case Bashman had cited.

Judge Jordan answers questions at the Bankers Club

It was a good talk -- Judge Jordan is extremely patient and answered everyone's questions, even the silly ones that drag on and on where lawyers just want to hear themselves say something.  Judge Marcus even joined in on one answer and explained that the judges on the court do not engage in "collective bargaining." 

While we had two circuit judges in attendance (which is about 20% of the court!), there is a fight brewing over President Obama's most recent nomination to the 11th Circuit -- Jill Pryor.  From the AJC:

The 11th Circuit opening, created by Judge Stanley Birch in August 2010, also has been declared a judicial emergency. The circuit has jurisdiction over cases in Georgia, Florida and Alabama.
No pick for any of the vacancies has made it to the committee hearing stage and the process typically slows in an election year, with Republicans hoping for a new administration with more friendly nominees.
But the tango between Georgia’s senators and the White House has been odd even by the standards of the often contentious judicial nomination process, according to longtime observers.
Chambliss and Isakson refuse to say why they are blocking President Barack Obama's nomination of Atlanta attorney Jill Pryor for the 11^th Circuit appeals court, after both senators said they would approve her if she were nominated to the district court.
In January Chambliss and Isakson wrote to the White House saying they would approve Pryor and U.S. Magistrate Linda Walker for the district court openings, and Atlanta attorney Mark Cohen for the appeals slot.
Obama nominated Walker for the district court judgeship in early 2011, but as is often the case with multiple nominees from the same state the White House demanded she be included as a package with federal public defender Natasha Perdew Silas, whom Isakson and Chambliss blocked without giving a reason.
The Senate returned both nominees to the White House at year's end, and Obama has not renominated anyone for the district court openings.
The two senators also have not given "blue slips" to the Senate Judiciary Committee to allow a hearing on Pryor, a longstanding courtesy for home-state senators. Representatives of both senators said they do not comment on judicial nominees.
“They need to explain publicly why they’re holding up her nomination, which has been vacant for a long time,” said University of Richmond law professor Carl Tobias, who studies the confirmation process. “They’re sort of turning the Constitution on its head. The senators don’t nominate and give the president a chance to reject.”
Party politics is a potential motive. According to campaign finance records, Pryor often donates to Democrats, and last year she gave $2,500 to Obama’s re-election campaign.
Cohen, the senators’ preferred appellate pick, served as executive counsel and chief of staff to Gov. Zell Miller.

Glenn Sugameli calls out the senators:

Glenn Sugameli, who tracks judicial nominations for the environmental group Defenders of Wildlife, noted that Georgia's two senators were outspoken in opposing filibusters of President George W. Bush's judicial nominees. In a 2005 joint op-ed in The Atlanta Journal-Constitution Chambliss and Isakson wrote “denial of an up-or-down vote goes against basic principles of fairness."
Sugameli said the turnaround is striking, considering that the senators are preventing a hearing, much less a filibuster.
“To pervert that into a situation where you’re essentially demanding the right to make all of the nominations for all of the slots is outrageous, unwarranted, and ... it really hurts the people not only in Georgia but in the rest of the circuit for whom justice delayed is going to continue to be justice denied,” Sugameli said.