54 search results for "Luttig"

“It’s the nature of the business”
by Tom Sullivan

And all this time I thought regulatory capture of the Supreme Court just had to do with the sitting justices. Reuters’ lengthy, 3-part series on the attorneys who appear most frequently before the Supreme Court is titled, “The Echo Chamber.” Really, though, these lawyers need their own “Lifestyles of” show. (An overwhelmingly white-male cast, of course.)

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

They represent less than 1 percent of lawyers who file appeals to the Supreme Court, yet appear in 43 percent of the cases the court heard from 2004 through 2012. Fifty-one of the 66 represent firms whose work is primarily for corporations. “It’s the nature of the business,” Ashley Parrish, a partner at King & Spalding told reporters. Which is why firms avoid individuals’ cases against current or prospective corporate clients. Pro bono First Amendment and criminal cases that don’t conflict with moneyed clients’ interests are the exception.

Michael Luttig is general counsel for Boeing Co.:

“It has become a guild, a narrow group of elite justices and elite counsel talking to each other,” Luttig said. The court and its bar have grown “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”

We’ve come a long way from first principles and our rustic notions of citizen legislators. Why should we expect any different for our courts? Specialization is the name of the game, and law firms that hope to play attract elite, former law clerks to their Supreme Court practices, attorneys who know sitting justices personally. Reuters explains that “Supreme Court clerks are so prized that the market-rate signing bonus is $300,000.”

Which is not to say that these attorneys are just mercenaries.

“It’s not that there aren’t lawyers at these large firms who aren’t public-spirit minded and don’t want to do these [individual] cases. It’s that their business model won’t allow it,” said Joseph Sellers, a lawyer for the mid-sized firm Cohen Milstein, who argued against Wal-Mart at the Supreme Court.

Nor is it to say that these elite law firms don’t have principles.

Law firms have different goals than advocacy groups – profit, for one – but their Supreme Court practices often share an ideological interest in shaping the law for clients. For firms that are most active before the high court, those clients are more often than not corporations.

[snip]

“We hired people with commitment, belief and purity of purpose,” said Claffee, who can quote by heart phrases from Powell’s 1971 memo. “It’s all part of strengthening our brand and our substance.”

That would be the memo from soon-to-be Justice Lewis F. Powell, Jr. to the U.S. Chamber of Commerce urging them (among other things) to exploit the judiciary to advance the interests of business.

In the wake of Citizens United v. Federal Election Commission (2010), corporate monies flooded electoral politics nationwide from city hall to state legislatures to congressional and presidential elections. And the Sunlight Foundation estimates (2012): “For every one member of Congress, the influence industry produces about $12.5 million in lobbying.” Meanwhile, the America Legislative Exchange Council (ALEC) crafts corporate-written bills that get filed verbatim in state capitals — the analogue of what lobbyists do in Washington. “The Echo Chamber” simply confirms the corporate capture of the judicial branch as well. As if we didn’t already see that in SCOTUS decisions.

Getting back to first principles, what vestigial meaning has the constitutional doctrine of separation of powers when it is all the same power?

Man’s Better Hells Angels

by digby

It appears that Judge Michael Luttig learned the hard way that believing certain men can be entrusted with extra-constitutional powers because they are “good” is foolish. You’d think that a member of the “Federalist Society” would have known better since the main author of The Federalist Papers made it pretty explicit that this was the reason for the three separate branches of government. Luttig got burned in the worst possible way; he put his reputation on the line and they used it like toilet paper and then threw it away. And predictably they are now busily smearing his character:

When the opinion was issued on Sept. 9, Judge Luttig delivered a coup: a unanimous opinion, written by himself, declaring that the president’s powers to detain those he considered enemy combatants apply anywhere in the world, including the U.S.

Judge Luttig, according to a person familiar with the court proceedings, put his own credibility on the line, drawing on his own experience in national-security law and confidence in Bush administration officials he knew. He argued to his colleagues that the government wouldn’t have sought such extraordinary powers unless absolutely necessary, this person says.

Then, in November, the administration suddenly announced that it didn’t consider Mr. Padilla an enemy combatant any more and would charge him in a regular federal court. The move came just two days before the government’s deadline to submit briefs to the Supreme Court, which was weighing an appeal of the Fourth Circuit’s September decision.

A person familiar with the judge’s thinking says it’s evident he felt the government had pulled “the carpet out from under him.” In an interview yesterday, Judge Luttig said, “I thought that it was appropriate that the Supreme Court would have the final review of the case.”

Attorney General Gonzales offered no explanation for the move, but critics accused the government of gaming the court system. By making the Supreme Court appeal moot, the government could avoid a possible reversal at the nation’s highest court while preserving the favorable Fourth Circuit ruling.

Instead of granting what the government considered a pro forma request to transfer Mr. Padilla to civilian custody, Judge Luttig ordered the parties to submit arguments over the question. On Dec. 21, Judge Luttig delivered a judicial bombshell: a carefully worded order refusing to move Mr. Padilla until the Supreme Court decided what to do. The order all but accused the Bush administration of misconduct.

“The government’s abrupt change in course” appeared designed “to avoid consideration of our decision by the Supreme Court,” Judge Luttig wrote. The government’s actions suggested that “Padilla may have been held for these years…by mistake” and, even worse, that the government’s legal positions “can, in the end, yield to expediency.” Such tactics, Judge Luttig warned, could exact a “substantial cost to the government’s credibility before the courts.”

A furious Bush administration asked the Supreme Court to overrule the Fourth Circuit. The ruling “second guesses and usurps both the president’s commander-in-chief authority and the Executive’s prosecutorial discretion in a manner inconsistent with bedrock principles of separation of powers,” Mr. Clement, the solicitor general, wrote.

The Supreme Court agreed to let Mr. Padilla move — he is now in a Miami jail — but the administration’s strategy of funneling war-powers cases to the Fourth Circuit was in tatters.

“Luttig’s parting shot as a judge may be the most defining opinion that he’s written,” says A.E. Dick Howard, who taught Judge Luttig at the University of Virginia School of Law and has been his friend since. Prof. Howard says the opinion reminds him of a line from Shakespeare’s “Macbeth”: “Nothing in his life/ Became him like the leaving it.”

People familiar with Judge Luttig’s thinking say he knew his condemnation of the administration would bring a personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary — and the view that judges are on “our team” or “their team.”

People close to the Bush administration see it differently. They dismiss Judge Luttig’s opinion as a judicial tantrum, noting that it came after he was passed over three times for a Supreme Court position. President Bush nominated Judge Roberts, Harriet Miers (who withdrew) and Judge Samuel Alito.

Welcome to our nightmare, Judge.

And then, of course, we find out just today that the government has been lying through its teeth about its illegal wiretapping when they said it was carefully targeting to only Al Qaeda suspects making calls to or from a foreign country. Basically they’ve been gathering information about every American’s telephone and email habits. What they’ve done with all that information we do not know.

This is the same government that Michael Luttig told his fellow judges on the fourth circuit could be trusted because they would never do such things unles they absolutely had to … the same government that turned around and punked Michael Luttig by doing an end run around the Supreme Court which precipitated him leaving the court.

This is not an abstract argument anymore. It’s not just about what might happen if we slide down the slippery slope and somebody really bad takes power and uses these powers to do bad things. The people in power right now are doing bad things and lying about it, as Michael Luttig, one of their own, found out personally. They are the reason the Bill of Rights were written in the first place.

Look for Karl Rove and his band of media sycophants to start agitating for the Democrats to lay off this issue again because it will make them look weak on terrorism. Everyone needs to start asking themselves why Karl would be warning Democrats not to do something that he believes will benefit him.

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He’s Gonna Hold His Breath Til He Turns Blue

Via Liberal Oasis, here’s the latest from rightwing land on the new supreme nomination:

“Shell shocked,” “confused,” “stumbling,” “full of doubt.” These are all words I have heard used to describe the current White House effort to find Sandra Day O’Connor’s replacement. Batchelder, Williams, and Owen have all been interviewed, but the process continues to sputter along.

Several have told me not to buy into the Miers trial balloon. It is, I’m told, just that — a trial balloon. Another tells me, “The President wants Gonzales. That’s what is dragging this thing out. They’re sending out people to say he is conservative as if by telling us that enough we will say, ’sure, he really is one of us.’ That is not going to happen.”

The process is still moving. Those I have talked to in the past twenty-four hours tell me we should expect a minority or woman. The odds are that it will be a woman. Sykes’s name has gotten little play in the past twenty-four hours and Luttig’s name has gotten none. Larry Thompson’s name continues to surface. One person disputes all my sources and tells me that Thompson, not Clement, was the almost pick last time.

The jury is still out on the nominee. Says one from a phone call this morning, “The White House has gone into second guess mode. They want another Roberts, an enigma who will slip through and turn out to be a conservative. They are second guessing their picks. That, I would think, increases the chances of a Thompson or a Gonzales — someone the President’s gut tells him is conservative. My gut tells me we have to keep the pressure on or we’re [screwed].”

They don’t want to put another woman on the court. Not really. The conservative Sandra Day O’Connor, who was personally distraught at the idea that Bush might not have won the 2000 election and made sure he was installed anyway, is now seen as some sort of left wing bra burner on the right. Clearly, women can’t be trusted.

This is not an accident. There is a serious movememnt afoot to denigrate women’s issues, and therefore, pressure Bush not to nominate another woman. Check out this story by Dahlia Lithwick on the “chick-baiting” that’s going on around this supreme court nomination:

A few weeks ago I suggested that race and gender should not be the only—or even the primary—filter through which we consider Supreme Court nominees. I rejected the arguments that minority candidates serve as proxies for minority views (whatever those might be), or that they create the appearance of a court that “looks like America.” I was wrong. We need another woman on the Supreme Court. And while we’re at it we need a few more women on the Senate judiciary committee.

[…]

I wonder why both Ginsburg and O’Connor—who differ on virtually everything—feel so strongly that there should be two women on the Supreme Court that they’d use their offices to publicly urge the president to appoint one.

And I can’t help but wonder if it has anything to do with the ways in which gender politics are starting to infect our discourse about the courts. Consider this commentary by Bruce Fein this week in the Washington Times: Fein lines up Hillary Clinton, Dianne Feinstein, and Ruth Bader Ginsburg, then levels potshots at them as believers in Supreme Court justices as “apostles over the law” because of their concern for John Roberts’ positions on women’s and civil rights. Oddly enough, Patrick Leahy, Joseph Biden, Chuck Schumer, Ted Kennedy, and the other male Senate Democrats who called for Roberts’ views in this area are never mentioned.

Mark Steyn is positively bilious about this feminization of the Democrats in the Washington Times on Monday. Again Feinstein (and only Feinstein) is blistered for wanting to hear Roberts “talking to me as a son, a husband and a father.” For which Steyn’s prescription is that she “get off the Judiciary Committee and go audition for ‘Return To Bridges Of Madison County,’ or ‘What Women Want 2’ (‘Mel Gibson is nominated to the Supreme Court but, despite being sensitive and a good listener, is accused of being a conservative theocrat’).”

And here’s George Will this week, also taking his nasty stick to Sen. Feinstein: “Dianne Feinstein’s thoughts on the nomination of John G. Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of ‘The Oprah Winfrey Show.’ Those thoughts are about pinning one’s heart on one’s sleeve, sharing one’s feelings and letting one’s inner Oprah come out for a stroll.” Will’s contempt for Senate efforts to know something about the next chief justice’s “temperament and values”—to understand his heart—is absolutely laser focused on the senator from California. Odd. Never a mention of Biden, Schumer, Mike DeWine, and Dick Durbin—each of whom similarly deployed the language of hearts and feelings in their questioning of Roberts.

Now, I am not come today to praise Sen. Feinstein. Her performance during those hearings probably set the women’s movement back a decade. From her ingenuous “Now, I’m not a lawyer …” questions to her tendency to turn even declarative sentences into halting questions, she hardly projected the air of mastery and confidence I’ve seen in her in the past. I’m not sure I can sign off on her self-appointed task of representing all 145 million American women at the hearings. I can’t even get behind her efforts to force a clearly private man into vomiting up mawkish personal revelations onto the hearing-room floor.

But I do wonder why it became so very easy to blast only the woman who wanted to cut through Roberts’ repeated claims to be a lean, mean law-making machine. I wonder why the woman who worried about his aloofness and disconnection from poverty or suffering was singled out for derision. Is it because the stereotype of the pathetic, whiny, “but how do you feel” nag fits so much better if the asker is wearing curlers and a housecoat? Is it a cynical effort to paint all women as hysterics or merely all Democrats as women? Or is it, in the end, the consequence of having only one woman on the committee?

I’m sure it’s just an accident that Fein, Steyn (weird name-coincidence or conspiracy?), and George Will each singled out only Feinstein as their judiciary committee poster-person for the strange quest-for-feeling that characterized the Roberts hearings. But it certainly evokes something Ginsburg mentioned in her remarks yesterday at Wake Forest. According to the report, she noted that “she started in law school in the 1950s—a time when law students and law practitioners were predominantly male. She said she felt pressure to excel, to break the stereotypes about women. … ‘You felt like all eyes were on you. If you gave a poor answer in class, you felt like it would be viewed as indicative of all female students.’ “

Imagine being judged and ridiculed as a lightweight, when—as sole representative of your gender—you feel you must defend the achievement of all women. The solution for both Ginsburg’s problem and Feinstein’s is simple: Give the critics more targets. Load up the courts and Congress with enough women, and then maybe blaming them for being women in the first place will stop sounding like a legitimate critique.

Is it a cynical effort to paint all women as hysterics or merely all Democrats as women?

It’s both. And one follows from the other. Lithwick says she’s sure it’s just a coincidence, but it isn’t. These things don’t come out of nowhere on the right.

One thing I hope that people think a little bit about is that this distaste for women’s issues is one that can easily be internalized on both sides of the political fence. Indeed, it already has in some ways. This, like race, is much simpler for the right to deride than it is for the left to defend. These are complicated issues. Nonetheless, we have no choice. It is the essence of what we stand for — liberty, equality. It doesn’t get much simpler than that.

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Right Makes Might

Gary Farber recommended this great article in TNR on Guantanamo by Spencer Ackerman and I’m passing on the recommendation.

Ackerman breaks down all the reasons why Guantanamo is counterproductive to our national security as well as why it is an immoral, legal and strategic mistake of epic proportions. He very clearly shows how the administration’s stubborn “my way or the highway” philosophy has put it at odds with virtually every other country and actually impeded the detention of dangerous people. It seems that the rest of the world isn’t willing to throw its constitutions out the window to accomodate us just because we’ve thrown out ours. And the administration refuses to change anything, including our ineffectual torture techniques and endless detention policies.

Ackerman believes that this is because the entire scheme is in service of one overriding concern:

The Bush administration has adopted this radical approach because it is defending the idea that the Constitution empowers the president to conduct war exclusively on his terms. A series of memos written by the Justice Department’s Office of Legal Counsel in 2002 effectively maintained that any law restricting the president’s commander-in-chief authority is presumptively unconstitutional. (When GOP Senator Lindsey Graham recently quoted to Pentagon lawyer Daniel Dell’Orto the inconvenient section of Article I, Section 8, granting Congress the authority to “make rules concerning captures on land and water,” he farcically replied, “I’d have to take a look at that particular constitutional provision.”) Last month, when some GOP senators tried to bar “cruel, inhuman, or degrading treatment” of detainees in an amendment to the 2006 defense bill, the White House sent them a letter threatening to veto any attempt to “restrict the President’s authority to protect Americans effectively from terrorist attack and bring terrorists to justice,” and Vice President Dick Cheney warned senators against usurping executive power. For good measure, the White House instructed the Senate leadership to pull the entire half-trillion-dollar bill from the floor, lest the offending language within it pass.

It would not be difficult to solve the indefinite-detention problem: Pass a law allowing for a circumscribed period in which officials interrogate the detainee and accumulate evidence before bringing charges against him. This is how it works in countries like Great Britain and Israel, both mature democracies that have fought terrorist threats militarily and legally for decades. But the administration has strongly resisted any move to introduce legal protections to Guantánamo Bay. When the Supreme Court ruled last year that Guantánamo inmates could bring habeas corpus challenges to their detentions in federal court–settling the question of whether detainees had recourse to the U.S. legal system–the Justice Department adopted the bewildering position that, once detainees file their claims, they possess no further procedural or substantive legal rights at all, an absurdity to which the administration is sticking.

That’s not all. Before a Senate panel last month, Dell’Orto argued that Congress shouldn’t create a statutory definition of the term “enemy combatant,” since the administration needs “flexibility in the terminology in order to … address the changing circumstances of the type of conflicts in which we are engaged and will be engaged.” The very next week, before an appellate court panel, Solicitor General Paul Clement, arguing for the continued detention without charge of American citizen and suspected Al Qaeda terrorist José Padilla, explained what the administration has in mind for its “flexible” definition. Federal appellate Judge J. Michael Luttig, a Bush appointee, noted that, since Padilla was arrested not on an Afghan battlefield but at a Chicago airport, the administration’s discretion to detain an American citizen ought to be fettered, “unless you’re prepared to boldly say the United States is a battlefield in the war on terror.” Clement immediately replied, “I can say that, and I can say it boldly.” In essence, the administration is claiming authority to detain anyone, captured anywhere, based not on any criteria enacted by law but rather at the discretion of policy, and to hold that individual indefinitely.

That position–that the war on terrorism requires executive latitude at odds with hundreds of years of law–has animated every single step of the administration’s approach to the war. It’s why Bush has kept nato allies at arm’s length while simultaneously trumpeting their absolute necessity to the defeat of Al Qaeda. It’s why he didn’t just oppose the creation of an independent 9/11 Commission to investigate the history of counterterrorism policy, he also argued it would be an unacceptable burden on his prosecution of the war. And it’s why he’s blasted any move by the courts to exercise oversight of the war as a dangerous judicial overreach: When a district court judge last year challenged the constitutionality of the administration’s military commissions for the trial of enemy combatants, the Justice Department “vigorously disagree[d],” as a spokesman put it, and contested the ruling until the commissions were reinstated on appeal last month. For the administration, its expansion of executive power is synonymous with victory in the war–regardless of the real-world costs to the war effort.

This pretty much says it all. President Bush having unchecked power is synomymous with victory. (There can be no doubt that this executive power would not apply to a Democratic president in similar circumstances.)

Once again, every loss becomes a win. Every mistake means that they must dig in all the more deeply, because to not do so would be to admit they were wrong. And if they were wrong, the terrorists will have won.

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