Hypothesis About D.C. Circuit Vacancies

I have a hypothesis (not tested by research yet) that one of the reasons the D.C. Circuit vacancies have ballooned to four, and three of them have dragged on for years, is that D.C. does not have voting Senators.

Other circuits have Senators for the states within them. Voters and others can question those Senators about what they are doing to move the process along. The Federal Circuit is also Senator-less. But its nominees face less opposition, since it is a specialized court and not typically viewed as a farm team for the Supreme Court, as the D.C. Circuit is.

D.C. Circuit Will Post Audio to the Internet

Chief Judge Merrick B. Garland kindly responded today to my letter of yesterday.

The D.C. Circuit has voted unanimously to begin posting audio to its website. The court actually voted last week to make the change, so I can't take any credit. But I do get to announce it!

Here are some of the details:

     *The new policy goes into effect on September 9, the start of the D.C. Circuit's 2013-2014 Term.

     *Audio will be available by 3:00pm on the same day as the oral argument, on the D.C. Circuit website.

     *An archive going back to the 2007-2008 Term will also be available.

This is a great development for public access to one of the nation's most important courts.

Letter to D.C. Circuit Re: Audio Access Policy

This letter was sent today to Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Dear Chief Judge Garland:

After reading the D.C. Circuit’s new media policy, which welcomes media coverage of cases to inform the public, I am writing to ask for your consideration of a related matter: access to argument audio.  My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and eight federal appellate circuits make argument audio available in pending cases, via their websites, free of charge.  Five circuits, including the D.C. Circuit, do not.

Of those five circuits, the D.C. Circuit’s policy is the most restrictive, granting no public access until a case is closed.  The Second, Sixth, and Eleventh Circuits make audio available in pending cases, via CD purchase.  The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed.  Per a call to the Tenth Circuit clerk’s office this morning, those motions are routinely granted.

The D.C. Circuit hears cases that affect citizens throughout the country; as a current example, the recess-appointments matter.  Members of the media who do not happen to be in D.C. are not able to listen to and report on D.C. Circuit arguments.  There are also interested members of the public and the legal community in other parts of the country who would like to listen to and inform themselves directly of these crucial, public proceedings, but are unable to do so.  The courtroom cannot always accommodate all interested persons in D.C., either.

This gap of public access is particularly notable since the Supreme Court, famously cautious on access, has been posting its audio to the web since 2010.  The nearby Federal and Fourth Circuits both post audio to the web.

It would be a meaningful step forward for public information, if the D.C. Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering free access to argument audio online.

Thank you for your consideration.

Victoria Nourse: D.C. Circuit Nominee?

A few weeks ago, Senator Harry Reid said that he expected President Obama to nominate three more people to the U.S. Court of Appeals for the D.C. Circuit soon.

That hasn't happened yet, but it got me thinking about the people he might nominate.

Could Victoria Nourse be in that group?

In July 2010, Obama nominated Nourse to a Seventh Circuit seat in Wisconsin. She was then a law professor at the University of Wisconsin, as well as former counsel to the Senate Judiciary Committee and its chair, then-Senator Joe Biden.

After one of the home state senators blocked her nomination by not returning his blue slip, she withdrew in January 2012.

Subsequently, Nourse left Wisconsin Law, where she had been a professor since 1993, and became a professor at Georgetown Law in Washington, D.C. (She had also been a visiting professor at Georgetown previously.)

See where I am going with this?

Info
*Nourse's current bio is here.
*A 2011 letter from a bipartisan group of scholars supporting her Seventh Circuit nomination is here.

Circuit Split Watch: Will the Court Bury Casket Cases?

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

The Big Week at SCOTUS: What Stands Out Most

I did one final guest post about the historic U.S. Supreme Court arguments on same-sex marriage over at Above the Law, linked here.

DOMA Arguments at SCOTUS: Five Money Quotes

I did another guest post for Above the Law, linked here. This one is a short piece with some quotes from the Defense of Marriage Act arguments today at the U.S. Supreme Court.

Prop. 8 Argument

I have a guest post at Above the Law about the Proposition 8 argument today at the U.S. Supreme Court, linked here. Quite a day.

Update: Pictures from the Court, linked here.

Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

D.C. Circuit Presentation: Deleted Scenes

The only problem with covering a recent panel presentation by three judges from the U.S. Court of Appeals for the D.C. Circuit was narrowing down the material. The original report, which told what the judges had to say about the sequester and the recess appointments case, ran at Above the Law, linked here.

Below are some "deleted scenes" from the excellent presentation by Chief Judge Merrick Garland, Judge Thomas Griffith, and Senior Judge Laurence Silberman, as part of the J. Reuben Clark Law Society's annual conference held last week at Georgetown Law.

*Silberman sees the decline in law school applications as a "healthy shakeout." There are too many good people going into law, he said.

*Griffith's advice for life is to "be nice," because it is the right thing to do. If you do not care about doing the right thing and just want to get ahead, his advice is the same. You never know when your paths will cross with someone again.

*Garland fielded a question about work-life balance. He does not want to hold himself up as an example; he works very hard. But one thing he did do when his kids were growing up was drive them to school. They always had that half hour together at the beginning of the day. Sometimes it was just "a bunch of sarcasm" or listening to the radio. But other times, his kids would tell him what they were "thinking and worrying about," and he values those times.

*When Garland was giving the last comment, he explained, "I don't leave at five and come in at ten....It's not my way." Silberman, the senior judge on the panel, jumped in with, "It's my way."

*Garland likes to do his own writing. "Don't feel 'dissed' if I don't use your language," he tells his clerks, "in the current vernacular."

*Silberman seemed to commit a cardinal sin of the D.C. Circuit and fall into his own personal pet peeve. Acronyms are disfavored at the circuit, and court rules require an acronym glossary in briefs.

When Silberman mentioned FERC during the presentation, Garland spelled out "Federal Energy Regulatory Commission" and added, with a hint of tongue in cheek, "We don't like acronyms in our court." (In Silberman's defense, FERC is one of the acronyms approved in the D.C. Circuit's practice handbook.)

*Griffith quoted James McPherson, who wrote that Abraham Lincoln "was not a quick study but a thorough one." You do not need to be the most brilliant person, Griffith posited, if you are thorough.

*Silberman remarked that with administrative decisions, one person should make the calls. From his law firm days, he remembers an extended debate over which floor the library would be on.