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Barwatch Bulletin from August 11, 2007

August 11, 2007
August 17, 2007

ABA Opening Assembly

Justice Stephen Breyer offered remarks at the ABA Opening Assembly. He opened by declaring, "I love the ABA," and acknowledging that he was a part of the Association through his membership in the ABA Judicial Division.
Justice Breyer focused his remarks on judicial independence, and he reflected that most non-lawyers rarely consider what the concept means. He knows that many judges, particularly those who face elections (like his friend Tom Phillips, former chief justice of the Texas Supreme Court) are concerned about the concept. Justice Breyer noted that increasing percentages of Americans think judges rule based on what they like, as opposed to the rule of law.

Justice Breyer contended, "Our judiciary, including the U.S. Supreme Court, floats on the sea of public opinion." He suggested that even the Supreme Court keeps its eyes on the polls when deciding cases.
He framed his speech around three questions and his answers. First, he attempted to define what judicial independence entails. Some contend its qualities are life tenure or a particular compensation. He thought that it was a "state of mind [that] judges remain free from those pressures that are not generally relevant to the case." Judges should "be true to the record," particularly on the appellate level. Honesty, truth, and weighing the arguments are important qualities.

Second, he attempted to describe how to explain the concept. He suggested the theory of economics, via Alan Greenspan's definition. One needs the rule of law and an independent judiciary if you want investments. Furthermore, one needed a system in which disputes could be fairly considered for the free markets to flourish.
Finally, he attempted to offer advice on how lawyers could explain the concept. He discussed cases that would be particularly useful in demonstrating the gradual acceptance of judicial independence by both the public and the executive branch. First, he cited Worcester v. Georgia. President Andrew Jackson responded to the court's decision to return land seized by the state of Georgia to the Cherokees with the statement: "John Marshall has made his decision, now let him enforce it." Second, in Cooper v. Aaron, paratroopers were called to enforce the U.S. Supreme Court decision to integrate Central High School, despite attempts by Arkansas Governor Orval Faubus to prevent such enforcement. Third, he suggested any other recent case-including Bush v. Gore-could demonstrate even further progress in how "people have accepted the rule of law."

Justice Stephen Breyer wrapped up his remarks by admitting the last Supreme Court term was "difficult." He declared, "I was in dissent quite a lot, and I wasn't happy." Yet despite his many dissents, including one 77 pages long in Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County, he still affirmed his faith in the system. Justice Breyer reflected, "When I look at it objectively, I think how I wish I'd won, but I also think, not a bad system. I'm not going to be in the majority all the time. How I wish I were, but that's the system. That's called the rule of law."

Guantanamo

The ABA's Section of Litigation sponsored a program entitled "Guantanamo and the Rule of Law in Time of War." The panelists were asked to address the following topics: what is involved in actually representing the detainees at Guantanamo, the legal landscape in the legal challenges to detention, and underlying policy issues.

Thomas P. Sullivan, a partner at Jenner & Block, spoke about his experience representing detainees at Guantanamo Bay. The difficulties associated with representing detainees, Sullivan noted, are "virtually impossible to explain...to a non-lawyer" and even "difficult to explain...to a lawyer." Sullivan related the anecdote of a Saudi Arabian man who had taken a leave of absence to build schools in Afghanistan. After the U.S. invasion, he had fled to Pakistan and was picked up and handed over to American forces. According to Sullivan, this detainee had not engaged in terrorist activities and has illegally been separated from his wife and daughter for over four years. He has no lawyer and does not speak English. Sullivan asserted that there was not enough evidence, included some that had been "obtained by torture," to justify the detention of his clients. Sullivan derided the tribunal hearings as "sham proceedings" and charged that the Guantanamo detainees were being held in "preventative detention;" that is, they would never be charged and would be held until they were deemed to no longer be threats. He called the military commissions "a ridiculous, dumb, inadequate system."

Sullivan maintained that the detainees were being held in deplorable conditions. He said the prisoners were shackled to the floor and were kept in "small cages." The food and medical attention were "lousy." He asked the audience to imagine sitting in a bathroom with no reading material. Sullivan then emphasized that this was the life of these detainees, and that many of them had been there for "five bleep years." Sullivan added that the only thing that keeps them going is a strong belief in Allah, and they have little or no faith in the American judicial system.

"If this is a joke, we just don't get it," Sullivan retorted. When asked about the terrorist threat, he recalled "Joe McCarthy warning us about the Communist threat" and that "this fear tactic is childish...dangerous to our basic principles." Sullivan contended the Iraq war spurred terrorism and has "caused much more danger to this country than Saddam Hussein ever would have." He quoted Nietzsche: "Whoever fights monsters should see to it that in the process he does not become a monster." Sullivan's article, entitled "You Have the Bodies," was the only CLE reading associated with this panel.

The second panelist, Gitanjali S. Gutierrez, is a staff attorney for the Center for Constitutional Rights (CRC). She has represented 10 Guantanamo detainees, and CRC is active in organizing the pro bono effort on behalf of the detainees.

Gutierrez concurred with Sullivan's analysis and laid out the legal background for Guantanamo. She described how CRC and others have litigated a number of cases seeking greater rights for the detainees. For example, cases such as Rasul, Hamdi, and Hamdan have defined or modified the Bush Administration's polices towards the prison.

While one of the main goals was seeking habeas corpus for the prisoners at CRC, she joked, "We are not normally citing the Magna Carta and the Founding Fathers." Legislation such as the Detainee Treatment Act and the Military Commissions Act, however, has "derailed and delayed" CRC's efforts.

Gutierrez went further to criticize the use of "aggressive interrogation tactics," the stripping of habeas corpus, the strengthening of executive privilege, the prison's secrecy, and the use of the term "enemy combatant." She continued, "Our reaction to what's happening" is a greater threat to the U.S. constitutional system and to the country than any threat posed by Al Qaeda. The use of military commissions is just a way to increase presidential power.

The third speaker was Glenn Sulmasy, a professor at the United States Coast Guard Academy. In his opening remarks, Sulmasy acknowledged, "I'm basically the only conservative on the panel." He warned that the country must not "fall asleep' in the face of Islamic terrorism, as "This threat is real and it's continuing."

Sulmasy explained that the Guantanamo tribunals were modeled after the Geneva Conventions and that in some ways they granted rights POWs did not normally receive. Guantanamo itself as a prison system for detainees "is not an unfair system." He cited a West Point study that found that about 95% of Guantanamo detainees had engaged in terrorist activities and were being legally held. Sulmasy did admit that the prison "has become a lightening rod, so we should look for other ways" of handling the detainees.

Sulmasy outlined three ideas "to move us forward as lawyers in the war on terror." First, we should change the name from a "war on terror" to a "war on Al Qaeda." Second, the U.S. should set up homeland security courts, which would be a hybrid between criminal and military courts. Finally, the U.S. should call for an international conference to review the Geneva Conventions, either to update them or create new rules of war.

Review of the Supreme Court Term

A Saturday afternoon panel entitled "On the Docket 2007: The New Supreme Court" was sponsored by the Standing Committee on Public Education. This panel analyzed several of the Supreme Court cases from last term.

David Savage, a legal reporter for the Los Angeles Times, served as the moderator. In his opening remarks, he began with a discussion of the "Reagan judicial philosophy" which had dominated the President's administration in the 1980's. He described this philosophy as generally being hostile to abortion rights, against affirmative action, supportive of property rights over the environment, and supportive of executive power. Then he discussed how five of the justices-Alito, Scalia, Thomas, Roberts, and Kennedy-had either worked in the Reagan administration or had been appointed by President Reagan. Savage next remarked, "We now have what looks like a Reagan Court." He qualified his statement, however, by saying that Justice Kennedy was "the least committed of the Reaganites." He explained this by describing how Kennedy knew Justice Warren and certain decisions, such as Lawrence v. Texas, made Kennedy sound "Warren-like." Kennedy, however, still had a "strongly pro-life opinion" this year.

The first panelist, Pamela Karlan, a professor at Stanford Law School, addressed the Carhart case. She explained how this was the first statute to not include a health exception for women. Karlan was highly critical of Justice Kennedy's opinion, especially his word choice, as he consistently used the words "mother," "unborn baby," and "abortion doctor." She disparaged Kennedy's claim to protect women from post-abortion guilt, claiming it was a "clear paternalistic judgment about women." She joked that "maybe we should ban marriage" as marriages can also be something that people regret. Karlan dismissed the notion that Carhart was merely symbolic, saying that "some people may be prosecuted."

Professor Vikram Amar of the Hastings College of Law focused on the two cases regarding schools. First, the Supreme Court ruled that the plans in Seattle and Louisville to assign students by race were impermissible, with the "Reagan justices" in the majority. The same majority ruled in the Morse case, showing that the trend of 5-4 decisions leans "in the conservative direction." Justice Kennedy, however, drew many fine lines checking conservative tendencies of the Court. Amar claimed that the Court's "use of Originalism" was inconsistent, as the "Reagan justices" did not use Originalist arguments in these school cases.

Robert H. "Bo" Abrams, a professor at Florida A&M University, College of Law, addressed the four cases dealing with environmental issues. In his description, he charged that the Court "is very inconsistent in statutory interpretation." When Abrams came to Massachusetts v. EPA, which dealt with the EPA's ability to regulate greenhouse gases, he claimed to enjoy arriving at "the good case." Abrams admitted that this characterization would let the audience know "where my biases are." He stated that the Court had definitively said that global warming did exist and that this decision should spur legislation to "address the problem."

Professor John Hennigan of St. John's University School of Law discussed the business cases of the term, such as Leegin and Marrama. Hennigan argued that these cases questioned the usual labels for the justices, as often "the so-called liberal justices" and "the so-called conservative justices" did not rule as one would have expected them to.

Rights of Same-Sex Couples
The ABA Section of Litigation sponsored a program on Saturday morning called "Same Sex, Same Rights?" The program featured three speakers who answered in the affirmative to the question posed in the description: "Is achieving equality for all families the civil rights issue of our generation?"
Detroit News columnist Deb Price detailed changes in the social and political landscape for gay rights in the past few decades. She thought the turning point was the election of Bill Clinton. Despite a mixed record on the issue, his "don't ask/don't tell policy" for gays in the military ultimately benefited the homosexual community, as it made their civil rights issues very visible. She noted the irony of the "right-wing's efforts to demonize gay people," as gays sought traditional rights to marry, to serve their country, and to protect their children. Price identified three moments that could affect the future of gay rights. First, the election of a Democrat in 2008 to the presidency could lead to overturning the Defense of Marriage Act (DOMA). Second, the legalization of gay marriage in California would open up the right to marriage for many more Americans, due to the state's large populace. Third, it would be a "very bad thing" if President Bush were to have another Supreme Court appointment.

Jon Davidson of Lambda Legal offered a recent history of litigation for same-sex rights. As developments accelerated, he identified tradition and the will of the people as two potential roadblocks. Bobbie Wilson, who is active in California efforts to legalize same-sex marriage, detailed the current state of litigation. She described her brief in the case that will be argued before the California Supreme Court that could legalize same-sex marriage. Wilson argued the California constitution liberty clause does not deny the fundamental right to marry, that the right to personal autonomy permits the right to marry, and that California domestic partnerships do not cure constitutional defects of creating a separate status for gays in California. She thought the state's briefs were "clever," and she worried that the Supreme Court would fall prey to their logic.

In Other News
--Supreme Court Justice Stephen Breyer received the ABA's Rule of Law Award at a luncheon Saturday. He related how he was in India on 9/11 with then-colleague Sandra Day O'Connor. After the attack, Justice Breyer stated, "I began to see that the true division of importance in the world is not between different countries. The important division is between those who are committed to reason, to working out things, to understanding other people, to peaceful resolution of their differences...and those who don't think that."
With respect to the role of international law, which garnered a lot of attention after several U.S. Supreme Court decisions considered it a few terms ago, Justice Breyer maintained that there was no controversial role for international law in other cases, such as an antitrust case involving Ecuador. He specifically exempted the Guantanamo cases in making this statement. In 2003, the citation of foreign and international law attracted controversy in cases not mentioned by Breyer, such as Lawrence v. Texas and Atkins v. Virginia.

--Recommendation 119, submitted by the Commission on Effective Criminal Sanctions and the Criminal Justice Section, will be withdrawn from consideration by the ABA House of Delegates. The recommendation would have urged governments to limit access and use of criminal history records for non-law enforcement purposes to the extent permitted by the First Amendment. The proposal attracted scrutiny from the media, who feared the proposal would seal off public records that could shed light on possible misconduct by law enforcement. These records are also often used to determine trends in the criminal justice system. Business groups were also concerned, as they often seek these records in housing and employment background checks.

--San Francisco Mayor Gavin Newsom greeted attendees at the ABA Opening Assembly. He alluded to his attempts to legalize same-sex marriage when he mentioned he needed a lawyer at times when he engaged in actions that "challenged the status quo."