The Federalist Society

Bar Watch Bulletin August 9 & 10, 2008

SCOTUS Review, American Press & War, the 14th Amendment, Human Rights, Climate Change, Women in Law, and Immigration

August 10, 2008

The American Bar Association's Annual Meeting will be taking place from August 7-12 in New York City. As always, ABA Watch will be reporting live, providing you with highlights of the day's events.  To read more about resolutions that will be considered by the House of Delegates at this year's meeting or to learn about recent ABA activity, check out our latest edition of ABA Watch.

What follows are some highlights from the weekend's sessions at the annual meeting.

Saturday

Supreme Court Review

Saturday afternoon featured a panel sponsored by the Standing Committee on Public Education  entitled "On the Docket 2008: the 2007-2008 Supreme Court Term." The panelists, who commented on many important cases of the 2007 term, included Tom Goldstein, the head of Akin Gump's Washington D.C. litigation practice and the co-head of the firm-wide Supreme Court practice; Linda Greenhouse, former Supreme Court correspondent for the New York Times and the Knight Distinguished Journalist-in-Residence and the Joseph M. Goldstein Senior Fellow at Yale Law School;  Theodore M. Shaw, professor of law at Columbia Law School; and Kathleen M. Sullivan, the Stanley Morrison Professor of Law at Stanford Law. Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard, moderated.

Goldstein, principally responsible for SCOTUSblog, noted that the Court this term took less cases than it did last term. However, he also pointed out that the Court seems to be granting more cases for this upcoming term, and predicted that the Court will hear around ninety cases. Goldstein also stated that there were less 5-4 decisions this term than last by a 24:12 ratio. Goldstein claimed that with Sam Alito replacing Sandra Day O'Connor, the Court had "taken a material step to the right."

He also discussed Kennedy v. Louisiana, noting that the Court did not take into account the military statute authorizing the death penalty for the crime of child rape. He said that while he was not sure the Court would rehear the case, he felt that the Court might amend the record in order to get it straight. When an audience member asked if that was possible, Goldstein responded: "Can the Supreme Court do 'x'? The answer is always yes." Tushnet seemed unconcerned with the existence of the military statue, asking, "If a statue falls in a forest and no one hears it, does it really exist?"

Linda Greenhouse, who covered the Supreme Court for the New York Times for nearly three decades, spoke about the Medellin v. Texas case.  She was surprised that the Court denied a stay of execution for Medellin. She also was disappointed that President Bush had withdrawn the U.S. from the Optional Protocol of the Vienna Convention, calling the President's decision a "black eye in a moral sense" and a "very substantial problem." Greenhouse also discussed the death penalty case, Baze v. Rees, noting that Kentucky should have "done a better job" in coming up with an execution method and that the case has left "open the door to as-applied challenges."

Finally, Greenhouse talked about Crawford v. Marion County, calling the voter ID law in the case, "the toughest in the country." She also claimed that there was no evidence of voter fraud in Indiana and that the case's "unfortunate aspect is that it's intensely partisan and that these laws have only been passed by Republicans and only found undemocratic by Democrat judges." Shaw agreed, saying, "Everyone knows what the subtext is. They know who's likely to be fenced out. The impact on minorities, particularly on African Americans is on the record." Tushnet chimed in that Justice Stevens, who authored the opinion, has experience with voting fraud as he "comes from Chicago politics, Republican Chicago politics."

Shaw, former Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. (LDF), discussed the Crawford case in greater detail. Concerned with those who would be disenfranchised, he mentioned that many people did not seem to think that owning identification would be a problem but that many poor people did not need IDs to "get into government buildings or take airplanes" and so did not have them. He said, "These folks have a right to vote-- there is an echo of Katrina in that everyone assumed people would get out but poor black folks couldn't get out." He asserted, "This is not about voter fraud." He also discussed the CBOCS v. Humphries case and mentioned that there would be a new retaliation case this upcoming term.

Sullivan, who once served as the Dean of Stanford Law, discussed the detainee cases, claiming that the ones this term as well as Rasul, Hamdi, and Hamdan served as "striking rebukes to the administration, rejecting executive innovations in the War on Terror." Sullivan pointed out that while the Court had claimed that the administration had acted impermissibly by violating statutes or constitutionally protected rights, it had not yet directly dealt with the President's unitary executive theory. Calling the Court's lack of jurisprudence on Article II power "the dog that didn't bark in the night," Sullivan said that the Court was still doubtful of claims of executive prerogative especially because it had taken the administration six years to begin to prosecute some of the terrorists responsible for the 9/11 attacks. Sullivan claimed her take-away point was that the Court had issued a "remarkable series of rebukes, but there has not been a rebuke to the core of the President's claims of power under Article II."

The Roberts Court

Saturday morning featured a panel sponsored by the Section of Litigation entitled "The Roberts Court - The Terrible Twos or Childhood Bliss?" Panelists, Drew S. Days, III of Yale Law School; Pamela Karlan of Stanford Law School; and Dean Kenneth Starr of Pepperdine Law School offered their "scholarly perspectives on whether or how the Roberts Court is maturing." John Barkett of Shook, Hardy, & Bacon LLP moderated.

Professor Karlan, who is the founder and director of Stanford's Supreme Court Litigation Clinic, began the discussion by analyzing the District of Columbia v. Heller case, hailing it as an "illustration of how social movements change the way justices think about the law." Pointing out that Justice Berger once wrote that the Second Amendment only applied in the militia context, Karlan argued that the modern day Court had been swayed by cultural movements regarding gun rights. She claimed that all of the justices looked to both originalism and its alternatives in deciding the case. In deciding that the right to bear arms was not absolute, the Court's Heller opinion was both "a major case and a bit of a fizzle."

Next, Karlan turned her attention to Boumediene v. Bush, claiming that the Court left many questions unanswered when it came to the detainees' entitlement to habeas relief. Karlan found Scalia's concern with consequences interesting, given his usual method of concerning himself solely with the text. Quoting Scalia's concern that more Americans would die as a result of Boumediene, Karlan retorted, "If he thought that, you wonder why he didn't think that letting guns into the streets of DC would have that effect."

Karlan went on to criticize the voter ID case, Crawford v. Marion County, arguing that "millions and millions of Americans" without proper identification would be disfranchised as a result of the decision. She argued that requiring people to show identification in order to vote is burdensome and that the regulation is "equivalent to a poll tax."

She also argued that people would be deterred from voting because the effort to get identification would not be worth it and that people would "probably be more likely to be killed on the way to the polls than cast the deciding vote." Calling the policy "partisan," Karlan hypothesized that Justice Stevens wrote the majority opinion because, "He's from Chicago and he's a Republican from Chicago. In Chicago dead people vote twice...they don't have anything else to do that day." She also said that Steven's concern with fraud or the appearance of fraud was unmerited as there has been no proven record of voter fraud in Indiana. Quoting Justice Brandeis, Karlan said, "People fear witches and burn women."

Barkett asked the panelists about the detainee cases and, according to Days, the former U.S. Solicitor General under President Clinton, "Kennedy had a spectacular term." In the habeas cases, Days imagined Kennedy to be saying to the government, "What part of no don't you understand? These are people who have been determined not to be enemy combatants. You have left out important parts of understanding habeas corpus. We're not chopped liver, you can't just declare a war on terror and expect us to ignore important parts of the Constitution." Days also referred to the voter ID case and debate as "very partisan."

Days made reference to two Sixth Amendment cases, Rothgery v. Gillespie County and Indiana v. Edwards, offering them as evidence that the Court is concerned with protecting defendants in criminal proceedings. Days praised Justice Kennedy's opinion in the child rape death penalty case, Kennedy v. Louisiana, claiming that Kennedy had based his opinion on "objective indicators of society's standards and controlling precedents of the Court."

In opposition to Karlan and Days, Dean Starr, who was the Solicitor General under George H.W. Bush, argued that the voter ID case was "very pragmatic." He also touted the importance of originalism and pointed out that "Originalism was used by all nine justices" in the Heller case. Starr also discussed how the Court believes it can avoid civil litigation, giving the example of the Washington State Grange case. Starr also called the Medellin v. Texas case one of the "richest cases of the term" and proof of "federalism's triumph."

Barkett lamented that many of the justices did not have extensive trial experience, calling them "out of touch." He asked the panelists to comment on Davis v. FEC, "Speaking of out of touch, let's talk about the Millionaire's Amendment case." Both Karlan and Days bemoaned the fact that the justices had failed to distinguish between campaign contributions and expenditures in ruling on campaign finance laws.

The panel concluded with Karlan, Days, and Starrs' comments on the Exxon Valdez case. Days expressed that he was uncertain that the Court's holding limiting punitive damages could be applied outside a maritime law context. Karlan criticized the Court's creation of a mathematical ratio. Starr, however, called the opinion "elegant," and pointed out that the Court had "embraced rigorous analysis" in creating the mathematical ratio to weigh punitive damage claims. Starr called the Court "weavers of common law."

The American Press in Times of War: From the Pentagon Papers to Iraq

The Litigation Section sponsored a panel entitled "The American Press in Times of War: From the Pentagon Papers to Iraq." Panelists--Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times; Dean Baquet of the New York Times;  Robert L. Deitz of the Central Intelligence Agency; Floyd Abrams of Cahill Gordon & Reindel LLP; and senior editor of Commentary Gabriel Schoenfeld--discussed whether the "American press in times of war should be--under the relevant statutes, the Constitution, historical traditions, and good public policy--susceptible to criminal charges for reporting classified information." George Freeman of the legal department of the New York Times moderated.

Ellsberg started off the discussion claiming that "it is not to this day clearly illegal" to have leaked the Pentagon Papers. However, he conceded that he expected the government could leverage charges against him and was not surprised when it chose to do so. Ellsberg then stated that the "law wasn't fair" and that there were very few cases that bore light on this issue at the time, and even now. Ellsberg did not worry about whether or not the Pentagon Papers would compromise national security, but stated that his motive to leak was to deter "President Nixon from blaming the Democrats" for the Vietnam War.

He also published the Papers because "[The Administration] was lying in that war and when the Papers were secret, more people were dying." Ellsberg also criticized today's NSA Eavesdropping Program saying that the administration and Congress has clandestinely operated and "refused to answer questions under oath," and that "we should know the facts."

Baquet, who was the former national editor of the New York Times, pointed out that the Times was worried about publishing the Pentagon Papers--editors worried about criticizing the Administration, publishing falsities, or compromising the safety of American citizens. However, ultimately, the Times published the Papers, and Baquet defended their decision: "The primary role is to publish and arguments have to be mighty strong not to publish." Baquet said the staff at the time was convinced that the Papers would "come out anyway" and they would have had to explain to their readers why they chose not to publish.

In regards to NSA, Baquet defended the Times' decision to publish information on wiretapping: "The Administration has mislead us on a very crucial point--we were given the impression that everyone in government supported this program. But instead there was a ferocious debate about this program--our job is to publish. We have to publish. Convince us not to. If there was a fierce enough of a debate in the government then that debate should happen in public."

Deitz, who has been involved in various leaks in his capacity at the CIA, maintained that "facts matter enormously," and that newspapers should be careful to do their research. Speaking about the War on Terror, he said, "Intelligence programs are very fragile. What matters now is intelligence." According to Deitz, the vast majority of lawyers, under both the Clinton and Bush administration, believed that NSA was and continues to be legal. Deitz points out that the President has the authority and knowledge to classify documents and that newspapers do not have the background to engage in a balancing test between liberty and safety: "I knew the facts of the case in the way that the New York Times did not, and the critics of the program did not."

Schoenfeld suggested that releasing the Pentagon Papers did not necessarily compromise national security, claiming that "there was not a single secret in that document that was newer than three years." On Ellsberg leaking the documents, Schoenfeld said, "We live in a democracy, we elect a representatives who are bound to the law-- [Ellsberg was an] unelected official choosing on his own to publish those documents." Schoenfeld differentiated the Pentagon Papers case from the NSA case, calling the wiretapping program "an intelligence program that is especially protected because it's a communications intelligence program." Schoenfeld said he believes that the government has the legal authority to prosecute the Times in the NSA Program controversy and should do so.

In juxtaposition to Schoenfeld, Abrams claimed he was unpersuaded by the legality of NSA, and that he would have "taken into account the debate that took place amongst the legal members of the Administration regarding the legality of the NSA Program." The debate's existence would "push [me] to publish rather than stay silent."


The Fourteenth Amendment

On Saturday afternoon the Litigation Section sponsored a panel discussion examining the meaning of the 14th Amendment entitled "The Fourteenth Amendment on Trial." The session was structured as a "mock trial," whereby attorneys were able to argue for their own views on the Amendment.  Sharon Browne, of the Pacific Legal Foundation argued that the 14th Amendment is "colorblind," and confers equality under the law regardless of race.  Alternatively, Victor Bolden, who serves as General Counsel to the NAACP argued that the 14th Amendment specifically had racial differences in mind, and that it is legitimate for the government to use race as a deciding factor in education and employment.

The two sides of the "case" were each given their expert to question in order to make their argument.  The session was overseen by Hon. Mark Kravitz, who sits on the United States District Court for the District of Connecticut.  Bolden, questioned Prof. Robert Kaczorowski of Fordham Universtiy School of Law about the details of the 14th Amendment.  Kaczorowski argued that the framers of the 14th Amendment absolutely had race in mind when writing the Amendment.  Kaczorowski mentioned the legislative history of the text and also referenced comments made by politicians from the time the amendment was passed.  He also relied on the Civil Rights Act of 1866 and the establishment of the Freedmen's Bureau as evidence that the framers of the 14th Amendment had the status of blacks in mind when the Amendment was drafted.

Browne on the other hand, questioned Ward Connerly, who played a major role in the drafting of Proposition 209, which outlawed racial and gender based preferences in California.  Connerly testified that the 14th Amendment confers equality to all individuals regardless of their race, and that racial labels themselves are contrary to the American system of government.  "Race doesn't define us in any way as an individual" said Connerly.  He also testified to his disfavor with the "numbers game" that has been used by employers and universities in the name of diversity.

When asked by Browne why he has decided to push for Proposition 209 nationwide, Connerly responded "if we are going to be the nation we profess to be then we need it to be this way."  He showed concern that minorities will carry a "cloud" with them throughout their life because others will think they were given an advantage.  "When you pay your taxes, you are a member of the government club, and the government has a duty to treat you as an equal."

Each side was given their chance for final remarks before opening the session to questions from the audience.  One audience member brought up the use of social science, asking the panel to consider briefs submitted in cases that argue diversity contributes to improved student performance.  Browne responded by saying that she was skeptical of social science, and didn't think that at this point it had a strong place in the law.  Browne cited comments from Chief Justice John Roberts and various studies undertaken by researchers to support her contention.  Bolden responded to the question by saying that social scientists can often determine factors that are closer to the situation at hand and can be valuable in legal decisions.

ABA Commemorates the 60th Anniversary of the Declaration of Human Rights

On Saturday morning the ABA's Section on International Law, and the Center for Human Rights sponsored a session entitled "Advancing Human Rights in a Dangerous World."  The session focused on human rights initiatives that are being undertaken by the United Nations, and celebrated the 60th Anniversary of the Universal Declaration on Human Rights.  The panel was moderated by former ABA President Jerome Shestack and also featured a guest address by current ABA president William Neukom.  Neukom's speech focused on the World Justice Project, "a multinational, multidisciplinary initiative to strengthen the rule of law worldwide."  The ABA serves as one of the founding sponsors of the project.

Presiding Canadian Supreme Court Justice Rosie Abella gave the keynote address.  Abella, whose family fled Nazi persecution during WWII, praised the establishment of the Universal Declaration on Human Rights, and commended members of the ABA for pursuing its ideals.  She also thanked Linda Greenhouse, who covered the Supreme Court for the New York Times, calling her a "window for us on the legal system."  Abella commended the "majestic idealism" of the United Nations and their efforts to push for democratic ideals worldwide.

Abella also praised American political philosophy, mentioning Hobbes, Locke, and Mill saying that the individualism of the Constitution is "America's best export."  Abella said that although she praises the West for its efforts, the western world has seemed to "stall" on human rights recently.  Abella dismissed the charge by some that "reverse discrimination violates the merit principle," saying we have "allowed those who have enough to say enough is enough."

Abella also mentioned her admiration of American ideals, referring to her father's experience with Americans rehabilitating Europe after WWII; the "gift of American justice is the gift that keeps on giving."

 

Sunday

Climate Change

Sunday featured a panel discussion entitled "Climate Change: The Growing Legal Storm," which discussed the rapid increase in legal issues surrounding climate change in recent years.  The panel was sponsored by the Section of Environment, Energy, and Resources.  The panel was moderated by Michael B. Gerrard, who heads the environmental practice in the New York office of Arnold & Porter.  The panelists included Laura H. Kosloff, of Eco-Securities; Kenneth Rivlin of Allen & Overy; and Leslie Lowe representing the Interfaith Center on Corporate Responsibility.

Kosloff began the panel by giving a presentation on the current trend in regulations as a result of climate change concerns.  Kosloff gave the audience a history of various pieces of legislation that have affected environmental policy ranging from the Kyoto Protocol to several bills pending in the United States Congress.  Kosloff pointed out that most of the climate change regulations and initiatives that are in the works have varying reduction goals and baseline estimations, making it difficult for corporations to navigate when concerns about carbon emissions arise.

Kosloff warned that corporations and energy providers must make themselves aware of these regulations in order to thrive.  Although the regulations are difficult to navigate, Kosloff urged corporations to "make some decisions under uncertainty."

Leslie Lowe, of the Interfaith Center on Corporate Responsibility, spoke about the risks climate change regulations now pose to corporations.  She mentioned the dramatic increase in U.S. shareholder resolutions concerning climate change.  Shareholders are increasingly becoming concerned with climate change regulations said Lowe; "Carbon is now a liability."  Lowe mentioned United Kingdom consulting firms that are now demanding full disclosure of carbon emissions.  If the information is not provided, the corporation is given a public "carbon footprint" rating.

Michael Gerrard, of Arnold & Porter, discussed the increase in litigation that has arisen out of climate change measures.  Gerrard noted that climate change litigation has expanded into nearly all areas of law.  Statutory, common law, and international law claims are all being used to pursue climate change litigation.  Most of the litigation is targeted at forcing or restricting government action according to Gerrard.

Kenneth Rivlin, expanded on Gerrard's comments, noting that the diversity of the litigation will likely force attorneys to seek out experts in other areas of law or broaden their own legal knowledge base.  Rivlin said that attorneys must be able to provide "internal knowhow," to corporations in order to put them in a "position to move" in an ever changing regulatory scheme.
 
Women of Achievemnt

The 18th Annual Margaret Brent Awards Luncheon took place on Sunday, sponsored by the commission on Women in the Profession.  The commission was founded in 1987 "to assess the status of women in the legal profession and to identify barriers to their advancement" and was first chaired by Senator Hillary Rodham Clinton.  The ceremony began with opening remarks from commission chair Pamela Roberts.  William H. Nuekom, president of the ABA, and Thomas Wells, ABA president elect, both also gave remarks praising the commission for its continued commitment to advance women in the legal profession.   The following reciepients were honored at the luncheon

  • Hon. Ruth Cooper Berg, the first woman appointed as an administrative judge on the Armed Services Board of Contracts Appeals.
  • Roberta S Karmel, the first female commissioner of the SEC, currently serving as a law professor at the Brooklyn Law School.
  • Linda Strite Murnane, one of only two women to serve on the Air Force trial bench as a military judge.
  • Mary Jo White, served as Chief United States Attorney for the Eastern District of New York and was later appointed by President Clinton as United States Attorney for the Southern District of New York.
  • Anne Claire Williams,  was appointed in 1985 by President Reagan as a United States District Judge in the Northern District of Illinois, and was later appointed to by President Clinton to the United States Court of Appeals for the Seventh Circuit.

The luncheon also featured a special award given to Sarah Weddington, who argued and won Roe v. Wade, and was later appointed General Counsel of the United States Department of Agriculture by President Carter.  Weddington also went on to serve as Assistant to the President of the United States in the Carter administration.  Wellington thanked the other panelists for their achievements and praised her family for their support.  Weddington said she was "proud when she won Roe" because she was able to give women "more options."  She continues to be active in the American Bar Association, serving on the council of the ABA's section of Individual Rights and Responsibilities.

Immigration & the Courts

Sunday morning featured a panel sponsored by the Commission on Immigration and the Standing Committee on Federal Judicial Improvements Section entitled "The Immigration Crisis, the Courts and the Rule of Law." Panelists included Judge Robert A. Katzmann, U.S. Court of Appeals for the Second Circuit; Judge M. Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit; and Juan P. Osuna, Acting Chair, Board of Immigration Appeals. Panelists argued that "adjudication of immigration cases at both the administrative and federal judicial levels has reached crisis proportions in recent years. Immigration enforcement and detention have escalated sharply, overwhelming the courts."

The panelists also explored "the urgent need for a redoubled commitment by all segments of the bar to pro bono representation in immigration cases until systematic reforms are in place." The program explored the "adjudication crisis from the perspectives of judges, immigration advocates and leading experts in the field." Linda Greenhouse, the Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow at Yale Law School and former New York Times Supreme Court reporter, moderated.

Greenhouse began by describing the state of immigration enforcement and detention. She claimed that judges have "trepidation" in hearing immigration cases because many immigrants do not have sufficient representation. Greenhouse referred to immigration cases as constituting a "huge and growing gap in the rule of law." Greenhouse pointed out that the ABA is planning to make pro bono work for immigrants a main priority of the bar. She also called President's Bush "politicization" in the appointment process of immigration judges an "appalling lack of judgement" and lamented the Homeland Security Department's "aggressive enforcement" of immigration laws.

Osuna mentioned that the immigration courts are overburdened with cases and do not have many resources that other courts have, such as personal law clerks. Osuna also discussed former Attorney General John Ashcroft's streamlining process to deal with immigration cases, resulting in a "sea change" and the depletion of the back log of immigration cases, but also promoting more cases to be heard in federal courts of appeals.  Osuna mentioned that the current Administration is implementing certain reforms which will make the process more individualized.

McKeown criticized Ashcroft's plan, claiming that "the Attorney General has a clean plate and a clean desk" but now the Ninth Circuit cases have gone from a few hundred cases per term to 6,000 cases per term. Overburdened courts mean that defendants "can't get significant careful review," said McKeown. McKeown also bemoaned the lack of adequate representation for immigrants: "The good news is that you have a lawyer--the bad news is you have a lawyer." She also said that immigrants face a lot of "agony" and that she doesn't "want to add a new layer of agony."

Katzmann also noted that the Second Circuit handles over twenty percent of appeals from the Board of Immigration Appeals (BIA) and that that number was growing every term, and called it a "persistent problem." Katzmann also claimed that immigrants do not have "adequate lawyering," and that it was "hard to get a good night's sleep when you feel that lawyering in these cases is not good."

The panelists seemed to reach the consensus that it might be better for some of the defendants to litigate pro se, in other words, to represent themselves in order to better ensure an appeal. Greenhouse called this a "horrible reflection on our legal system."

Both judges discussed some possible solutions. McKeown noted that the Ninth Circuit often hears oral arguments, employs specialized attorneys, and talks to "major players in the immigration process" including district court judges and BIA lawyers. McKeown said these initiatives "humanized the whole process for us quite a bit." However, she said that the "frustration in the appellate opinions" expresses a "frustration at the political system." McKeown urged lawyers to get involved in pro bono work at the trial level. Katzmann agreed and stated that the Second Circuit works with law school clinics and nonprofit partners in order to better ensure representation for immigrants. He also mentioned that the Second Circuit works with state courts in order to "root out incompetent counsel." "Justice shouldn't depend on the income level of an immigrant," Katzmann claimed. He further argued that lawyers and judges have an "obligation to serve those who need our help. This is not an act of charity but an act of professional responsibility. If we can help a family stay in this country we should do whatever we can as lawyers to ensure justice is served."

Greenhouse closed out the panel, urging lawyers to fill out ABA volunteer forms for pro bono representation of immigrants.


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