A New York Bloc on the Supreme Court

Clockwise from top left, Ruth Fremson/The New York Times; bottom left, Nicole Bengiveno/The New York Times - Clockwise from top left, childhood homes of Antonin Scalia, in Queens; Ruth Bader Ginsburg, in Brooklyn; Elena Kagan, in Manhattan; and Sonia Sotomayor, in the Bronx.

There will, perhaps, be little that the 4 native New Yorkers will agree on, but they do have their provenance in common. And, curiously, they are each from a different borough.


The Supreme Court has some justices who are liberals and some who are conservatives. It has some who see themselves as strict constructionists and some who probably do not. And then it has the justices who grew up riding the subway and the ones who grew up turning right on red. It has the justice who was the treasurer of the Go-Getters Club at James Madison High School in Brooklyn. It has the justice who watched “Perry Mason” on television in a housing project in the Bronx and decided that the star defense lawyer was less important than the judge. It has the justice who took part in a junior military training program at Xavier High School in Manhattan and carried his rifle home on the train to Queens. If the nomination of Elena Kagan to the Supreme Court is confirmed, she would join three others in a distinct bloc. For the first time in the court’s history, said William Treanor, the dean of Fordham Law School, it would have four justices who grew up in New York City.

Two Jews, an Italian and a Puerto Rican: that expresses well what New York is, and has been.

Other notable justices spent all or part of their youth in the city, including Felix Frankfurter and Benjamin N. Cardozo. But if Ms. Kagan takes the seat being vacated by Justice John Paul Stevens, a Chicagoan, it will be an unusual moment for a city whose political influence has been slowly shrinking since the nation outgrew the original 13 colonies.

It has been a long time since New York's political power declined. Political not just as in elected representatives, but governmental.

Justice Scalia grew up in Elmhurst, in what he once called “a really mishmash sort of a New York,” with Germans, Irish and Puerto Ricans. He went to Public School 13, where he got straight A’s, and Xavier, the Jesuit school in Manhattan, where he was first in his class and was in the military program.


Elmhurst is now Indian, Latino, but more Colombians that Puerto Ricans.

He said he realized that New Yorkers were assertive when his high school band went to march in a parade in Washington “These people just stood there and looked at us, you know?” he told the CBS News program “60 Minutes” in 2008. “In New York, people say, ‘Hey, play something for us, you know? You bums, why don’t you play something?’ They were — they were alive, they were confrontational.”

So is he, assertive, and acerbic (which I think is a very common adjective used when describing his style of questioning in the Court).

Three of the four New Yorkers — Justices Ginsburg and Sotomayor and Ms. Kagan, if she is confirmed — would form the court’s liberal wing with Justice Stephen G. Breyer. Professor Bonventre of Albany Law School said that the “ethnic-gender-religious composition of the liberals on the court” would underscore their differences with the conservative majority. “For most New Yorkers, they will look at the liberal minority and say, ‘That’s us, that’s our America,’ ” Professor Bonventre said, “and so when the court renders liberal decisions and you have all of those four, the three women and the Jewish guy, it will make complete sense to New Yorkers, whereas for the South and the Bible Belt, people are going to say, ‘They don’t understand the rest of America.’ ”


But Martin Flaherty, a professor at Fordham Law School who knew Ms. Kagan when they were undergraduates at Princeton, said that being a judge from New York did not mean “everyone is going to be a liberal or a conservative. “Witness Scalia,” Mr. Flaherty said. “But there’s a certain toughness, mental toughness, to spending time in New York. That is true of all four New Yorkers. None of them is a pushover.”

Judge Keeps His Word

Todd Heisler/The New York Times - From left, Mr. Wu’s mother, Floren Wu-Li; his sister Jenny Gong; and his fiancée, Anna Ng. Mr. Wu, 29, an executive who came here at age 5, faces deportation for muggings when he was 15.

The judge and the juvenile had grown up on the same mean streets, 40 years apart. And in fall 1996, they faced each other in a New York court where children are prosecuted as adults, but sentenced like candidates for redemption. The teenager, a gifted student, was pleading guilty to a string of muggings committed at 15 with an eclectic crew in Manhattan’s Chinatown. The judge, who remembered the pitfalls of Little Italy in the 1950s, urged him to use his sentence — three to nine years in a reformatory — as a chance to turn his life around.

“If you do that, I am here to stand behind you,” the judge, Michael A. Corriero, promised. The youth, Qing Hong Wu, vowed to change.

Mr. Wu kept his word. He was a model inmate, earning release after three years. He became the main support of his immigrant mother, studying and working his way up from data entry clerk to vice president for Internet technology at a national company.

But almost 15 years after his crimes, by applying for citizenship, Mr. Wu, 29, came to the attention of immigration authorities in a parallel law enforcement system that makes no allowances for rehabilitation. He was abruptly locked up in November as a “criminal alien,” subject to mandatory deportation to China — the nation he left at 5, when his family immigrated legally to the United States.

Mr. Wu with his fiancée. When he was jailed last fall, he reminded Judge Corriero of his old promise to stand by him.

Now Judge Corriero, 67, retired from the bench, is trying to keep his side of the bargain. “The law is so inflexible,” said Judge Corriero, now executive director of Big Brothers Big Sisters of New York City and the author of “Judging Children as Children: A Proposal for a Juvenile Justice System.” The 2006 book calls for a justice system that reduces future crime rates by nurturing those who can learn from their mistakes, instead of turning them into career criminals.

That was his aim, he said, when he presided over the special court known as the Manhattan Youth Part, his views shaped by his own childhood. The son of a longshoreman and a factory seamstress, he grew up in a tenement across the street from the Tombs — the Manhattan House of Detention — and was schooled by both Roman Catholic missionaries in Chinatown and the Mulberry Street Boys. While he avoided serious trouble, he saw how easily a careless choice could lead to culpability instead of accomplishment.

Politics and the Law

With Populist Stance, Obama Takes On Banks: A call for new limits on bank size and risk-taking reflects a shift in the administration’s focus and in the political climate.

It looks like a diversion, to change the subject from the failure of health care reform and the results of the Massachusetts election. Populism isn't Obama's schtick.


Obama’s Move to Limit ‘Reckless Risks’ Has Skeptics: The president on Thursday proposed legislation to limit the scope and size of large financial institutions.

President Obama, with many of his top economic advisers, speaking on banking issues Thursday at the White House.


Lobbyists Get Potent Weapon in Campaign Finance Ruling: The Supreme Court decision will increase the power of lobbyists and interest groups at the expense of candidates and political parties.

Justices, 5-4, Reject Corporate Spending Limit: Overruling two precedents, a divided Supreme Court ruled that the government may not ban political spending by corporations in candidate elections.

Signs of Polarization

December 22, 2009 - Sidebar

In Supreme Court Clerks’ Careers, Signs of Polarization

By ADAM LIPTAK

WASHINGTON

A Supreme Court clerkship really brightens the legal résumé, and former clerks have their pick of the best jobs at law firms, in the academy and in government.

The career choices they make also say something important about the state of the Supreme Court. A new study has found that former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.

“It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court,” said William E. Nelson, a law professor at New York University and one of the authors of the study.

I am no longer so sure that the claims and beliefs that our times are more polarized than others is true or accurate.

Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives.

Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.

Does that say anything about academia being a liberal bastion?

Earlier studies have shown the rise of ideological hiring of clerks by the justices. In recent years, the more conservative justices have overwhelmingly hired clerks who had worked for appeals court judges appointed by Republicans. The more liberal justices did the opposite, but a little less consistently.

The new study, published last month in The Vanderbilt Law Review and summarized in the autumn issue of The Green Bag, collected data from 1882 through 2006, which means it did not consider information about clerks for the most recent additions to the court, Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor.

Before the 1990s, the study found, all sorts of former clerks served in the government under all sorts of administrations. That seemed to change in the Clinton years. The Clinton administration hired 96 former clerks, but only 16 percent of them came from the chambers of the four most conservative justices — Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy.

Of the 89 former clerks hired by the administration of George W. Bush, on the other hand, 68 percent came from those four chambers.

“The only other justice who provided five or more clerks for President Bush was the fifth justice who cast a vote in his favor in Bush v. Gore,” the study said, referring to former Justice Sandra Day O’Connor, whose chambers provided eight additional clerks.

From about 1940 to 1990, the study found, about a third of all clerks became law professors. There was variation among the chambers, but it was not correlated to the justices’ ideological leanings.

The rise of the organized conservative legal movement, including notably the Federalist Society, seems to have changed that, perhaps as a result of the sense among conservatives that law school faculties are overwhelmingly liberal.

“Certain kids coming out of the conservative movement were not feeling comfortable with traditional law schools,” said Harvey Rishikof, another author of the study and a law professor at the National War College. (I. Scott Messinger and Michael Jo also worked on the study.)

Or perhaps colleges, law schools, were not seen as the appropriate forum to fight the conservative battle.

Only 19 percent of clerks from the four most conservative justices in recent decades joined the legal academy and only 7 percent went to one of the top 10 law schools in the annual survey published by U.S. News & World Report. A significant minority joined the faculties of religious or conservative law schools.

Clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools. The study also showed polarized hiring at the law firms with significant Supreme Court practices.

Kirkland & Ellis, for instance, hired 22 former clerks from 1990 to 2006, all from the four most conservative chambers, according to the study. (A Kirkland spokesman added that the firm also hired two former clerks to Justice Byron R. White.) The firm is home to Kenneth W. Starr, the former Whitewater prosecutor who was solicitor general in the administration of the first President George Bush.

And President Clinton shadow. No surprise here.

Wilmer Cutler Pickering Hale & Dorr, on the other hand, hired 35 clerks from the five more liberal justices and only 5 from the other four. Seth P. Waxman, a solicitor general in the Clinton administration, leads the firm’s Supreme Court practice.

The emergence of “politically oriented practice groups,” the study said, reinforces the idea that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.”

Is that more partisan, or more realistic?

In his 2006 book on Supreme Court clerks, “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk,” Todd C. Peppers wrote that “no other internship program in the history of the United States has produced as impressive and diverse a collection of individuals as the U.S. Supreme Court law clerk corps.”

Professor Peppers, who teaches public affairs at Roanoke College, said he was fascinated by the new study’s findings. But he added that the recent trends were in a way unsurprising. “Do justices select like-minded clerks?” he asked. “Of course.”

Exactly.

“And do these clerks go into private practice, government work and the legal academy and use their legal skills to promote ideological views that are compatible with their justices? Of course.”

That may be obvious, but it is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.

Dream

Who is a Jew?

David Lightman with his daughter, who was denied admission to the Jews' Free School because her mother's conversion was not recognized. But a court ruling has voided the admissions policy.





LONDON — The questions before the judges in Courtroom No. 1 of Britain’s Supreme Court were as ancient and as complex as Judaism itself. Who is a Jew? And who gets to decide?

A judge?

The case began when a 12-year-old boy, an observant Jew whose father is Jewish and whose mother is a Jewish convert, applied to the school, JFS. Founded in 1732 as the Jews’ Free School, it is a centerpiece of North London’s Jewish community. It has around 1,900 students, but it gets far more applicants than it accepts.

Britain has nearly 7,000 publicly financed religious schools, representing Judaism as well as the Church of England, Catholicism and Islam, among others. Under a 2006 law, the schools can in busy years give preference to applicants within their own faiths, using criteria laid down by a designated religious authority.

Publicly financed schools; imagine that happening in the US?

By many standards, the JFS applicant, identified in court papers as “M,” is Jewish. But not in the eyes of the school, which defines Judaism under the Orthodox definition set out by Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the Commonwealth. Because M’s mother converted in a progressive, not an Orthodox, synagogue, the school said, she was not a Jew — nor was her son. It turned down his application. That would have been the end of it. But M’s family sued, saying that the school had discriminated against him. They lost, but the ruling was overturned by the Court of Appeal this summer.

In an explosive decision, the court concluded that basing school admissions on a classic test of Judaism — whether one’s mother is Jewish — was by definition discriminatory. Whether the rationale was “benign or malignant, theological or supremacist,” the court wrote, “makes it no less and no more unlawful.”

The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.

Interesting distinction.

The case’s importance was driven home by the sheer number of lawyers in the courtroom last week, representing not just M’s family and the school, but also the British government, the Equalities and Human Rights Commission, the United Synagogue, the British Humanist Association and the Board of Deputies of British Jews.

Lot of lawyers.

The case has stirred up long-simmering resentments among the leaders of different Jewish denominations, who, for starters, disagree vehemently on the definition of Jewishness. They also disagree on the issue of whether an Orthodox leader is entitled to speak for the entire community.

No one does. Jews have no Pope.

“Whatever happens in this case, there must be some resolution sorted out between different denominations,” Mr. Benjamin said in an interview. “That the community has failed to grasp this has had the very unfortunate result of having a judgment foisted on it by a civil court.”

Exactly.

Orthodox Jews, of course, sympathize with the school, saying that observance is no test of Jewishness, and that all that matters is whether one’s mother is Jewish. So little does observance matter, in fact, that “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish,” Rabbi Yitzchak Schochet, chairman of the Rabbinical Council of the United Synagogue, said recently.

Really? So what is the sense of, or use for, rules of orthodoxy? Why bother, if your mother is Jewish?

“How dare they question our beliefs and our Jewishness?” David Lightman, an observant Jewish father whose daughter was also denied a place at the school because it did not recognize her mother’s conversion, told reporters recently. “I find it offensive and very upsetting.”

Rabbi Danny Rich, chief executive of Liberal Judaism here, said the lower court’s ruling, if upheld, would help make Judaism more inclusive.

“JFS is a state-funded school where my grandfather taught, and it’s selecting applicants on the basis of religious politics,” he said in an interview. “The Orthodox definition of Jewish excludes 40 percent of the Jewish community in this country.”

Oaxaca 2006 violence

This first article appeared in the Mexican website W Radio.


Ulises Ruiz no garantizó la paz social en Oaxaca: Sánchez Cordero; Queremos juicio político y que renuncie: Flavio SosaW Radio | Octubre 15 de 2009

México.- En la Primera Emisión de Hoy por Hoy con Carlos Piug, la ministra de la Suprema Corte de Justicia de la Nación, Olga Sánchez Cordero, explicó los motivos por los que el máximo tribunal determinó responsabilizar al gobernador de Oaxaca, Ulises Ruiz, de las violaciones a los derechos humanos que se cometieron durante el conflicto social de 2006.

Explicó que en la cronología de los hechos, en primer lugar se desarrolla una “garantía del mínimo vital”, la cual está a cargo del gobierno local, es decir, debe proporcionar un clima de paz y orden social. En este sentido, la ministra Sánchez Cordero dijo que el gobierno de Ulises Ruiz “no propició este ambiente de paz y por lo tanto se violaron todas las garantías individuales, desde el derecho a la vida hasta el libre tránsito de personas, el acceso a la educación, se cerraron negocios, en fin, una serie de omisiones… Se perdieron muchas vidas y se cometieron varias violaciones a partir del mínimo vital”, aseveró.

Sobre un posible juicio político contra el gobernador oaxaqueño, la ministra explicó que la SCJN sólo establece si se violaron las garantías individuales y quiénes son los responsables; por lo que el informe será entregado a la Cámara de Diputados y a la Procuraduría General de la República.

En este mismo espacio informativo, el líder social, Flavio Social, ex dirigente de la Asamblea Popular de Pueblos de Oxaca (APPO), exigió un juicio político contra Ulises Ruiz al tiempo que demandó su renuncia, por la ingobernabilidad generada en el estado, a fin de reconstruir la confianza entre gobernantes y gobernadores.

Afirmó que la resolución de la SCJN es un buen precedente en la justicia del país y es importante. Finalmente señaló que ahora corresponde a los diputados y a la PGR asumir la responsabilidad, “porque no pueden quedar impunes la muerte de nuestros compañeros”, dijo.


This second article is from the Associated Press

Court blames Mexican governor for protest abuses

(AP) – 10 hours ago

OAXACA, Mexico — The Supreme Court ruled Wednesday that the governor of a southern Mexican state is responsible for rights abuses during 2006 protests that paralyzed a colonial city and left least a dozen people dead.

The ruling has no binding consequences for Oaxaca Gov. Ulises Ruiz but carries moral weight. A similar ruling in 1996 prompted the resignation of the governor of western Guerrero state over the massacre of 17 farm workers.

Leftist groups battled with authorities in the Oaxaca state capital of the same name for five months in 2006. The conflict started as a teachers' strike and quickly ballooned into a broader movement to demand Ruiz's resignation over allegations that he rigged his electoral victory. Demonstrators hijacked and burned buses to create roadblocks and chased police out of the picturesque city.

The Supreme Court ruled that Ruiz bore "plain responsibility" for the conflict.

Ruiz, who has remained in office and denies he stole the election, issued a statement saying he had no immediate comment on the Supreme Court ruling.

The movement behind the protests — the People's Assembly of Oaxaca, or APPO — applauded the ruling and said Ruiz should immediately resign.

"He should be criminally prosecuted," said APPO leader Flavio Sosa.

In its ruling, the Supreme Court absolved the government of then-President Vincente Fox of any responsibility for the deaths and other abuses. it was federal security forces that finally moved in and cleared out the demonstrators.

A dozen people were killed in the conflict, mostly protesters shot by gunmen, including Bradley Roland Will, a 36-year-old journalist-activist from New York. Will was killed while filming a clash between demonstrators and gunmen.

House Votes to Expand Hate Crimes Definition

The measure was named in part for Matthew Shepard, a gay Wyoming college student murdered in 1998.


The House voted Thursday to expand the definition of violent federal hate crimes to those committed because of a victim’s sexual orientation, a step that would extend new protection to lesbian, gay and transgender people.

Democrats hailed the vote of 281 to 146, which brought the measure to the brink of becoming law, as the culmination of a long push to curb violent expressions of bias like the 1998 murder of Matthew Shepard, a gay Wyoming college student.






Representative John A. Boehner, the House Republican leader, voiced opposition to the measure.





Republicans criticized the legislation, saying violent attacks were already illegal regardless of motive. They said the measure was an effort to create a class of “thought crimes” whose prosecution would require ascribing motivation to the attacker.

Thought? Aren't all crimes that are outlawed as hate crimes the same? How does anybody know that a crime was perpetrated against a black person because the person is black and not another reason? Because the victim was black and the crime seems to have been committed precisely for that reason. Same with gays. Republicans, most, anyway, do not want to vote for anything connected with gay, to stay on the good side of the extreme right-wingers who demand such behavior.

Representative John A. Boehner of Ohio, the House Republican leader, called the legislation radical social policy. “The idea that we’re going to pass a law that’s going to add further charges to someone based on what they may have been thinking, I think is wrong,” Mr. Boehner said.

Another enlightened view of Mr. Suntan.

Republicans were also furious that the measure was attached to an essential $681 billion military policy bill, and accused Democrats of legislative blackmail. Even some Republican members of the usually collegial House Armed Services Committee who helped write the broader legislation, which authorizes military pay, weapons programs and other necessities for the armed forces, opposed the bill in the end, solely because of the hate crimes provision.

“We believe this is a poison pill, poisonous enough that we refuse to be blackmailed into voting for a piece of social agenda that has no place in this bill,” said Representative Todd Akin of Missouri, a senior Republican member of the committee.

The military bill has yet to be approved by the Senate. But the hate crimes provision has solid support there, and Senator John McCain of Arizona, the senior Republican on the Senate Armed Services Committee, said the overall bill outweighed his own objections to including the hate crimes measure.

Mr. Obama supports the hate crimes provision, though the White House has raised objections to elements of the bill related to military acquisitions. If signed into law, the hate crimes legislation would reflect the ability of Democrats to enact difficult measures with their increased majorities in Congress and a Democrat in the White House.

“Elections have consequences,” Mr. McCain said.

McCain can speak clearly.

Representative Mike Pence of Indiana, the No. 3 House Republican, said the measure could inhibit freedom of speech and deter religious leaders from discussing their views on homosexuality for fear that those publicly expressed views might be linked to later assaults.

“It is just simply wrong,” Mr. Pence said, “to use a bill designed to support our troops to reverse the very freedoms for which they fight.”

Democrats, however, noted that the bill would specifically bar prosecution based on an individual’s expression of “racial, religious, political or other beliefs.” It also states that nothing in the measure should be “construed to diminish any rights under the First Amendment to the Constitution.”

Amazing how two sides can see the same thing so differently.

Sandra Day O'Connor says rulings are being 'dismantled'


Sandra Day O'Connor






By Joan Biskupic, USA TODAY
WILLIAMSBURG, Va. — Retired Supreme Court justice Sandra Day O'Connor says she regrets that some of her decisions "are being dismantled" by the current Supreme Court.

O'Connor, who generally has avoided questions on the substance of the court under Chief Justice John Roberts, made the observation during a wide-ranging and unusually candid panel discussion over the weekend.

Asked how she felt about the fact that the current court had undone some of her rulings, the nation's first woman justice responded, "What would you feel? I'd be a little bit disappointed. If you think you've been helpful, and then it's dismantled, you think, 'Oh, dear.' But life goes on. It's not always positive."

O'Connor, appointed by Ronald Reagan in 1981, was a moderate conservative who often brokered compromises among justices and across ideological lines.

Since she retired in 2006, the court has become more conservative and retreated from some rulings in which she crafted consensus, including on abortion rights, campaign finance and government race-based policies.

GINSBERG'S TAKE: Says Supreme Court needs diversity

During the Saturday panel sponsored by the William and Mary Law School, O'Connor emphasized the value of diversity on the bench — in sex, professional experience, geography and religion.

She said she was glad another woman was on the court. Justice Sonia Sotomayor, the third woman justice in history and the first Latina, succeeded David Souter in August. Justice Ruth Bader Ginsburg is the other woman on the court. "It's not enough," O'Connor declared.

3 of 9 is 33%, and women make up +50% of population. In the above link to Justice Ginsburg's comments, she says another woman is needed on the Court. I agree.

O'Connor, a former legislator in Arizona, said it was important for a president to pick justices from a variety of backgrounds. All nine of the current justices were elevated from U.S. appeals courts. "I don't think we should have nine clones up there," O'Connor said.

Second.

Asked about regional diversity, she said, "I don't think they should all be of one faith, and I don't think they should all be from one state." On the court are now a record six Catholics; two are Jewish; one, Protestant.

O'Connor, 79, lapsed into levity during the discussion when asked what it was like to appear on The Daily Show with Jon Stewart last March. In a mock whisper she said, "I didn't know what to think. I had never seen it."

Whither digital evidence

For decades, investigators have known that if they enter a suspect's home with a search warrant to look for illegal guns and find sacks of cocaine lying on the coffee table, they can seize the drugs even though the warrant only gave them permission to look for the guns. That is because courts have said authorities can act on evidence of a second crime that was in their "plain view."

But how does the concept of plain view apply to the modern technology of a computer, which might have thousands of files that are easily scrolled, or a cellphone, which can contain all manner of incriminating pictures?

A recent ruling by the federal Ninth Circuit Court of Appeals addressed this question, and the decision could reshape what government investigators can -- and can't -- do when searching digital devices for evidence of crime.

The case involved the Justice Department's high-profile probe of a Northern California company suspected of supplying illegal steroids to professional athletes, including some baseball players.

Federal investigators obtained a warrant to search the computer records of a laboratory that in 2003 had tested hundreds of Major League Baseball players for steroid use. The warrant authorized obtaining the records of 10 players, whose identities haven't been disclosed.

But in the course of searching computer records for the 10 players, government investigators came across evidence of illegal drug use by others and argued they had a right to seize those records as well. The government said this evidence was in plain view once investigators started searching through the computer files.

That argument was "too clever by half," the Ninth Circuit ruled in August, in a 9-2 vote.

If every file on the computer has to be opened to find the specific evidence being sought under the search warrant, then every file would at some point be in "plain view," wrote Chief Judge Alex Kozinski, in the majority opinion.

Chief Judge Alex Kozinski, pictured in 2003, wrote the Ninth Circuit opinion that sets out guidelines on searching for digital evidence.


But unlike walking into a room, searching a computer requires specific action -- opening directories and files. To allow investigators to search through every file, and act on any evidence of illegality they find there, "creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant," the court said.

The Fourth Amendment requires that to obtain a search warrant, government investigators must show a judge probable cause of a crime and "particularly" describe the place to be searched and the items to be sought. Legal scholars say this "particularity" requirement was aimed to prevent the wide-ranging, general searches of personal property that British authorities had power to conduct during the colonial period.

The Ninth Circuit, in its opinion, set out guidelines on how the government and lower courts should proceed. Magistrate judges, when issuing a search warrant, should insist that prosecutors waive the plain-view doctrine in cases of digital evidence. Sorting through digital evidence should be done by parties other than the case agents, who should only be given material covered by the search warrant. Any evidence not covered by the search warrant would have to be returned to the owner or -- if it was illegal material, such as files of child pornography -- destroyed.

The Circuit Court makes policy. Didn't a recent Supreme Court nomineee have something to say about that?

A human creature?

In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law. During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

This should be interesting: this is an issue that conservatives, especially, though not exclusively, feel very strongly about.

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

Confirmation hearings revel nothing of substance about a nominee, other than her or his ability to dance around a question without answering it (and the efficacy of the coaching afforded the nominated by the nominating). In an article in the current issue of The New York Review of Books, Ronald Dworkin writes precisely about this topic.

It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. Her hearings could ... have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

In order to get confirmed with as little controversy and nose as possible, nominees say next to nothing of substance, if that much. Roberts did it, Alito did it, and so did Sotomayor.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center. [The organization has what might be called a determined, or presumptuous, mission: Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. Its URL is equally so: http://www.theusconstitution.org]

Progressive is the term now dear to those who are otherwise known as liberals,

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

He doesn't want to infer too much, but asserts that she's wrong.

Her long judicial and extrajudicial record suggests that she is markedly less driven by ideology and more respectful of technical legal argument than Chief Justice John Roberts and Justice Samuel Alito seemed before their nominations and have shown themselves to be once on the Court. [Dworkin]

Fess Up or Stay Quiet?

UBS agreed to release the identities of thousands of clients to the U.S. Above, its New York offices.




One post to the discussion site for this article captures my opinion as strongly as I feel it: “I am sick of people who willfully try to duck their tax responsibilities. They believe it's okay so long as they don't get caught and that's just plain wrong."

Some people do not make a distinction between right and wrong, but between selfishness and gullibility: if I can get away with it, and it's in my favor, then it's fine. Except it isn't.


The Internal Revenue Service is staging a massive poker game. It has invited 52,000 UBS AG account holders to the table.

Now that the U.S. and Swiss governments have resolved a longstanding dispute about disclosing the identities of secret Swiss bank accounts, the holders face an acute dilemma: Do they confess their tax-evasion sins and possibly give up a large portion of their offshore accounts? Or do they stay quiet, hoping to avoid detection, but risk far greater penalties or even criminal prosecution if exposed to authorities?

Their decision is made harder because the IRS is doing its best to keep account holders in the dark about both the timing and reasons for which names are disclosed. That is because the IRS hopes to use the threat of disclosure as leverage, coaxing offshore tax evaders to come clean on their own.

While holders of secretive Swiss accounts are reluctant to talk to the media, their lawyers say many are still undecided. One factor in play: The IRS only has resources to prosecute about 1,000 criminal tax cases each year. "I'm surprised at how many are willing to gamble," said Kevin Packman of Holland & Knight in Miami.

Left concerned

Neither liberals nor Republicans have yet figured out President Obama. Each expected him to be the president each imagined he'd be, as defined by each, and he has turned out different. Both are rankled.

A Supreme Court filing from the Obama administration last month has set off alarm bells on the left. The filing was a friend-of-the-court brief, and it mostly dealt with an excruciatingly technical question about the attorney-client privilege. But its last five pages were about the state secrets privilege, which was not at issue in the case. That privilege, a favorite tool of the Bush administration, allows the government to shut down lawsuits by invoking national security.

The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution.

No socialist, as Republicans warned and continue to repeat, he is also turning out to be less liberal than the liberals expected.

On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.

The Administration has been playing it very cautiously.

A federal judge in San Francisco, for instance, last year rejected a version of the constitutional argument in a case brought by Mr. Eisenberg’s client, Al-Haramain Islamic Foundation. The foundation said it had been subjected to illegal surveillance in the Bush years. Both the Bush and Obama administrations have argued that the charity’s suit must be dismissed under the state secrets privilege.

This is where the issue of the pedigree of the privilege really matters. If the privilege is an ordinary common-law rule of evidence, Congress is probably free to alter it. If it is required by the Constitution, things get more complicated.

The judge in San Francisco, Vaughn R. Walker, ruled that Congress had indeed overridden the state secrets privilege when it enacted the Foreign Intelligence Surveillance Act of 1978. The judge said that by setting up a secret court to consider requests for intelligence surveillance, and by setting up other domestic regulations of foreign intelligence surveillance, “Congress intended for the executive branch to relinquish its near-total control over whether the fact of unlawful surveillance could be protected as a secret.”

The government’s recent brief cited the leading Supreme Court decision on state secrets, United States v. Reynolds in 1953, but it said nothing about Judge Walker’s reading of it.

This last case is an interesting one: It concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.

And?

When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.

Nixon also claimed national security, often.

Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.

The recent brief from the Obama administration cited just one decision directly invoking the Constitution as the basis for the state secrets privilege. Other courts have said the state secrets privilege is rooted in the common law.

Gates' Appalling Entitlement

Yet one more take on the imbroglio. This is a different view than most that I've seen. It appeared in The Daily Beast.


Gates' Appalling Entitlement
by Edward Hayes
July 26, 2009

This controversy shouldn’t be about race. It’s about class, and it’s Henry Louis Gates Jr. who is in the wrong.

Read other takes on Gates' arrest from Daily Beast writers.

Sergeant Crowley works in Cambridge, Massachusetts. It appears his area of patrol includes the residences of a lot of Harvard faculty and employees. I bet that the Cambridge PD spends an awful lot of time making sure Harvard and its workers are treated with the dignity they think they deserve. Let me put it differently—the sense of class entitlement in this case runs entirely the other way. It’s Gates down to Sgt. Crowley and they both know it.

Policemen take abuse and walk away. However, almost none of them will take abuse from someone who follows them into the street in front of others. At this point, everyone on that sidewalk has been interviewed and the consensus, I bet, is that Gates is a loudmouth who behaved badly. Just look at the picture of him yelling when the cops bring him out of the house. By the way, it’s not Crowley who is bringing him out; it’s a bunch of cops. At least one is African American. I promise you that there was someone there with a higher rank than Crowley who made the decision to arrest Gates and hold him for four hours.

Crowley, by the way, looks fit and tough. Gates, who does not, probably resented that as well, because Crowley was not afraid when Gates said, in effect, “I’m a big shot.”

There are a couple of reasons why policemen don't like to be followed:

1) It is wrong; nobody is supposed to be abused. Every place makes it a petty crime to follow other people and yell at them. Otherwise, how would you stop them from doing it? You ask them to stop, they keep doing it, you put handcuffs on them.
2) It creates a lack of respect for the police.
3) It is a bad lesson for children who see it or hear about it.

Gates did a lot more abusing than Crowley. Crowley, by the way, looks fit and tough. Gates, who does not, probably resented that as well, because Crowley was not afraid when Gates said, in effect, “I’m a big shot.”

In any case, cops are supposed to ask why you are in a house when they get a call that you pushed your way in—99 out of a 100 people will say: "Officer, I forgot my keys, thanks for making sure everything was all right." If, heaven forbid, somebody does break into Gates’ house while he is there, he'd be very glad to have Crowley come through the door. Gates should have no beef about anything. He is a very privileged man, knows it, and throws his weight around.

Edward Hates is a trial lawyer in New York City who has represented the chiefs of the New York, Los Angeles, and Miami police departments. He is author of the book Mouthpiece.

I took the book off the shelf and began to read it. Hayes grew up poor in Jackson Heights. The jacket blurbs and Tom Wolfe's introduction make clear Hayes became a very successful lawyer; pictures in the middle of the book also show his strong ego and significant wealth. Interesting.

Decision Reflects Court's Deep Division

Sonia Sotomayor, the New York appellate judge President Barack Obama has nominated to the Supreme Court, has credited her success in part to postwar America's efforts to correct centuries of racial discrimination.

If, as expected, her nomination is confirmed, the self-described "affirmative-action baby" will join a court divided on that very topic.

Chief Justice John Roberts came to the court with a deep-seated skepticism of race-conscious policies. In a number of cases his court has ruled, often 5-4, in favor of limiting the scope of civil-rights laws and practices devised to address racial discrimination.

"It is a sordid business, this divvying us up by race," Justice Roberts wrote in a 2006 concurring opinion rejecting a Voting Rights Act challenge to Texas' congressional redistricting.

No more sordid than racism.

"This is an area where there are sharply divergent intuitions about the role of race in American society, and sharply divergent views about what should be done about it," says Goodwin Liu, co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley.

Will she, as expected and predicted by so many pundits, be predictably liberal?

It also is possible that she could seek to hammer out a middle ground. Still, sometimes justices' views change, if subtly, over time. The chief justice himself has displayed a more moderate streak this term. Earlier this month, he wrote an opinion joined by seven other justices that left alive a bedrock provision of the Voting Rights Act of 1965.

Roberts moderating? What an interesting comment.

The Supreme Court's decision Monday in the New Haven firefighters' case highlights the justices' split. The four liberals would have upheld the city's decision to toss out test results that it worried were discriminatory. Justice Kennedy wrote the opinion.


A concurring opinion from Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, effectively accused New Haven's leadership of pandering to a local black political leader in throwing out the test results. Notably, Chief Justice Roberts didn't join that toughly worded opinion.

Well, it is all relative.

’98 Sotomayor hints on Death Penalty

Judge Sonia Sotomayor in 1998. That year she handled a death penalty matter, her only such case on the federal bench.













As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty. But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

And now Judge Sotomayor has been nominated for a seat on the Supreme Court.

Tilt to Right of Souter

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice.

Maybe they are beginning to realize they rushed to judge her without knowing anything much about the Judge.

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

Not every Democrat, not every Hispanic, not every woman is "soft" on crime, nor fits into the expected pigeonhole.

"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney.

If Nest had bothered to review her record before spewing his nonsense ...

Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006. On the trial bench, he says, "she was not viewed as a pro-defense judge."

Still, there are reservations, aren't there?

To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter. The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.

Aha!

Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.

Oh, geez: empathy.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance.

What would Newt say?

Jeffrey Fisher, a Stanford Law School professor who was on the losing side of the January Supreme Court decision, says Judge Sotomayor's ruling demonstrates a "willingness to give police the benefit of the doubt."

Sympathy? Sí. Empathy? No.

WireImage -Judge Sonia Sotomayor ruled for the producers of the 'Seinfeld' TV show in a 1997 case. Comedian Jerry Seinfeld is seen here performing in April.



Judge Sotomayor's private-sector experience suggests she would bring a certain sympathy for protecting the rights of copyright and patent holders. As a young commercial lawyer, she helped LVMH Moët Hennessy Louis Vuitton SA challenge knockoffs of luxury products, occasionally strapping on a bulletproof Kevlar vest to accompany police as they searched for counterfeit handbags and shoes.

Ah, sympathy: it's okay to have sympathy for business, but not empathy for people.

But her rulings as a judge have been more mixed, split between companies seeking to protect intellectual property and those looking for more freedom to use materials.

Judge Sotomayor appears to be the first Supreme Court nominee with significant experience in the area of so-called cyberlaw. By contrast, Justice David Souter, whom she would succeed, is famously low-tech. He writes his opinions in longhand, and his New Hampshire farmhouse lacks many electronic conveniences.

Does the term antediluvian ring a bell?

"She has what none of them [have] -- she's had an actual practice in intellectual property as a lawyer," said Patricia Millett, co-head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld LLP. "I think that'll be very informative to have that close-up perspective and familiarity with this area of law, [one that's] very important for them going forward."

Popcorn Sutton

Marvin "Popcorn" Sutton, shown in 2007 with a small liquor still in back of an old Ford truck, had been scheduled to report to prison on Friday.

A scrawny, long-bearded mountain man with a foul mouth and a passing acquaintance with copper tubing and kettles, Marvin "Popcorn" Sutton seemed the embodiment of moonshiners of yore.

Brought up in rural Cocke County, Tenn., identified as one of four "moonshine capitals of the world" in the corn-whiskey history "Mountain Spirits ," Mr. Sutton learned the family trade from his father. The practice goes back to the Scots-Irish, who brought it to the New World, and it wasn't illegal until after the Civil War, says Dan Pierce, chairman of the history department at the University of North Carolina at Asheville.

Dabney, Joseph Earl. (1974). Mountain spirits; a chronicle of corn whiskey from King James' Ulster plantation to America's Appalachians and the moonshine life. New York: Scribner.

TARP Cop

Recession Job Losses Top 4 Million is today's headline. The government has poured trillions of dollars into stabilizing the financial system, trying to stave off an economic calamity. Part of that is attempting to steady banks by giving them capital. It is essential that credit markets work again. The Troubled Assets Relief Program, a bumbling piece of legislation that Bush and Paulson left the nation saddled with, is a 700 billion dollar rescue package. 700 billion is a lot of money, a lot of taxpayer money, and the government has a right, and an obligation, to make sure it is spent prudently and wisely. The first part of $350 billion disappeared into a banking black hole.

Neil Barofsky, the man overseeing the $700 billion bailout, is armed with broad authority, including the right to carry a handgun and the power to subpoena. As special inspector general for the Troubled Asset Relief Program, he is charged with tracking the bailout funds. In the process, Mr. Barofsky is ruffling feathers on Wall Street and in Washington, demanding access and information some aren't eager to provide.

The mentality that got us inot this mess has not changed much.

Lawyers at institutions that have received government aid are trying to figure out how much leeway they have to push back against Mr. Barofsky, say people familiar with the matter. Some government officials say they are concerned about Mr. Barofsky's aggressive approach.

Instead of being open and forthcoming, institutions that have received TARP funds are using lawyers to finesse it, to hide, to conceal.

Mr. Barofsky ... is a former prosecutor who has tackled white-collar crime and international drug traffickers. He keeps a wooden knife from Colombia as a reminder of just how violent crime can become. Now he can roam the halls of Wall Street almost unfettered. His powers, granted by Congress last fall, give him the right to investigate and audit "the purchase, management and sale of assets under TARP."

His mission is clear, unequivocal: investigate and audit TARP funds.

He takes his mission seriously and views his mandate broadly. In an interview, Mr. Barofsky says his office has "the right to investigate and audit any TARP dollar, anywhere it goes" and to go after any type of TARP-related fraud.

It is good, for a change, that the government is the party with the hard-charging, focused, aggressive lawyer.

The position carries greater reach and independence than the other two "special" inspector generals overseeing the Iraq and Afghanistan reconstructions. Those officials answer to the secretaries of state and defense, while Mr. Barofsky answers directly to Congress.

Good charter. Intention seems quite clear.

Some within the government worry Mr. Barofsky's approach is scaring away participation in the government's rescue programs, rendering them less effective. Government officials say they saw a spike in banks withdrawing TARP applications after Mr. Barofsky said he would require documentation on how they are using the funds. Some of that spike could be due to congressional rumblings about stricter oversight.

Want the money? Answer questions, and be (o, that word) transparent.

Some hedge funds are leery about the Fed's lending facility because of the heightened scrutiny that would result, a condition included at the behest of Mr. Barofsky.

Lack of accountability and clarity are exactly the reasons why we are in this mess.

Mr. Barofsky says his purpose is to make sure taxpayer money is spent the way Congress intended, and to go after anyone, inside or outside government, who misuses the funds. "Members of Congress told me repeatedly that they want me to be the person who goes after the people who want to steal," he says.

Amen.

Congress is moving to head off any challenges to his authority. Legislation passed by the Senate, soon to be considered by the House, would codify Mr. Barofsky's authority to peer into any firm benefiting from TARP dollars.

As if it were not already crystal clear.

An Interpreter Speaking Up for Migrants

In 23 years as a certified Spanish interpreter for federal courts, Erik Camayd-Freixas has spoken up in criminal trials many times, but the words he uttered were rarely his own. Then he was summoned here by court officials to translate in the hearings for nearly 400 illegal immigrant workers arrested in a raid on May 12 at a meatpacking plant. Since then, Mr. Camayd-Freixas, a professor of Spanish at Florida International University, has taken the unusual step of breaking the code of confidentiality among legal interpreters about their work.

His conscience made him break out from the shell of impartiality.

He said defense lawyers had little time or privacy to meet with their court-assigned clients in the first hectic days after the raid. Most of the Guatemalans could not read or write, he said. Most did not understand that they were in criminal court.

And the legal system seems in a hurry to criminalize these people. Illegal? Undocumented, yes. Yet all they want to do is work, and will take jobs no one else will take.