Throw Stevens under the bus. On Mon, Oct 6, 2008 at 6:57 AM, Cold Water <[EMAIL PROTECTED]> wrote:
> *For the Supreme Court, a Term of Change Ahead * > Tony Mauro > 10-06-2008 > > The Supreme Court begins its fall term today on the verge of significant > change -- in its caseload and among the lawyers who argue before it, and > possibly even in its membership. > > By the end of the term in June, the Court could have decided more cases > than it has in a decade<http://www.law.com/jsp/article.jsp?id=1202422731447>. > More of those cases than ever will be handled by lawyers or professors > affiliated with law school > clinics<http://www.law.com/jsp/article.jsp?id=1173261798498>-- unheard of > just four years ago. And a new wave of lawyers and law firms > will be joining Supreme Court veterans in jockeying for the increased > caseload. > > Finally, while predicting high court retirements is one of Washington's > trickiest parlor games, three members of the Court -- Justices John Paul > Stevens, David Souter and Ruth Bader Ginsburg -- are seen as the most likely > candidates to step down. At a William & Mary Marshall-Wythe School of Law > conference on the Court Sept. 26, former acting Solicitor General Walter > Dellinger III flat-out predicted all three will go if Sen. Barack Obama is > elected, and "no one will voluntarily step down" if Sen. John McCain is > elected. > > "The Court is at a tipping point," says Thomas Goldstein, head of > litigation at Akin Gump Strauss Hauer & Feld, who launched the first Supreme > Court legal clinic at Stanford Law School in 2004. > > The Court's docket for the new term is dominated by business cases and more > environmental disputes than usual, along with a quirky case that will have > obscenities ringing throughout its majestic > courtroom<http://www.law.com/jsp/article.jsp?id=1205775587652> > . > > On Nov. 4, when the rest of the nation will be focused on the presidential > election, the Court will hear arguments in *FCC v. Fox Television Stations > * over the fleeting use of the "s-word" and "f-word" in television > broadcasts by the likes of Nicole Richie, Cher, and Bono. Carter Phillips of > Sidley Austin, representing Fox, says he won't use euphemisms for those > words at argument. > > The fact that the Court does not close for presidential elections also > symbolizes its aloofness from the business of the other branches. But the > election will no doubt have a major effect on the Court. > > After nearly three years of stability since Chief Justice John Roberts Jr. > and Justice Samuel Alito Jr. joined the Court, vacancies could bring > significant change to the Court. Factors of health, age, and who is elected > president next month will all play a role, though historians generally agree > that most justices stay on the Court as long as they can, no matter who gets > to nominate their replacement. > > One possible sign that the justices are readying themselves for change came > last week when it was confirmed that Alito has decided to take himself out > of the "cert pool," <http://www.law.com/jsp/article.jsp?id=1202424833766>the > controversial pooling arrangement whereby each incoming petition is > screened by a single law clerk for all the justices who participate. > > The only other justice who has stood apart from the pool is Stevens, who, > at 88, is talked about most often as the likeliest to leave the Court soon. > The other justices appear to like it that at least one justice remains > outside the pool as a check on the system. > > Artemus Ward, co-author of a 2006 book on the power of Supreme Court law > clerks, says Alito might have made the move now "at least partly due to the > fact that Justice Stevens will likely soon depart, which could have left the > Court in a bind." Ward adds, "By making this decision while Stevens is still > on the bench, Alito and his clerks will be able to gain experience in > checking the pool without having to go it alone." > > The change in administration will also affect the Supreme Court bar, if > indirectly, by putting some veterans of the solicitor general's office back > on the job market. > > "No matter how the election turns out, there will be a great deal of change > in the Supreme Court bar in the coming months," says Kannon Shanmugam, a > rising star and former clerk for Justice Antonin Scalia who jumped from the > solicitor general's office to a partnership at Williams & Connolly last > week. > > By the end of the Bush administration, three other top lawyers in the > solicitor general's office are expected to snag top-tier private firm jobs: > former SG Paul Clement, former deputy Thomas Hungar, and current SG Gregory > Garre. Only four of the 21 attorneys who were in the office five years ago > -- deputies Edwin Kneedler, Michael Dreeben and Malcolm Stewart and > associate Lisa Blatt -- are still there today. Most have left for firms that > are adding Supreme Court practices, in spite of the fact that until this > term, the Court has heard a record low number of cases. > > The allure of the Supreme Court practice is updating the veteran Supreme > Court bar, bringing new firms and new lawyers, many of them former Supreme > Court clerks, into competition for cases. > > Last week, in addition to Shanmugam's move, another newcomer to the Supreme > Court field, Morgan, Lewis & Bockius, beefed up its high court practice by > hiring Allyson Ho, a former clerk for retired Justice Sandra Day O'Connor. > Ho joins R. Ted Cruz, the former Texas solicitor general, who came aboard > Morgan, Lewis in May. > > Also last week, Stephen Kinnaird, a former clerk for Justice Anthony > Kennedy, left Sidley Austin to take Paul Hastings' appellate practice up a > notch -- and into the Supreme Court more often. > > "A startling percentage of the cases this term are being handled by the > firms with the Supreme Court practices," Kinnaird says. By his count, 73 > percent of the nongovernment briefs on the merits filed in granted cases so > far this term had participation from either major corporate law firms or > Supreme Court veterans. "Being at the Supreme Court establishes your > presence as a leading appellate firm." > > Law schools are also getting in on the Supreme Court action more than ever. > Of the 53 cases already granted review for the fall term, parties in at > least 14 cases are represented by lawyers or law professors affiliated with > Supreme Court clinics -- three in October alone. Students in the clinics > help prepare the briefs and arguments, as well as participating in dozens > more petitions and oppositions to certiorari. > > After Goldstein started Stanford's clinic in 2004, five other schools > followed suit <http://www.law.com/jsp/article.jsp?id=1153299926437>: > Northwestern, working with Sidley Austin; Yale, paired with Mayer Brown; the > University of Virginia, aided by Robbins, Russell, Englert, Orseck, > Untereiner & Sauber; the University of Texas, working with Kellogg, Huber, > Hansen, Todd, Evans & Figel; and New York University, with Jones Day. > > "There's no question that the clinics have established themselves as a > strong presence at the Court, not just as ad hoc visitors," says Steven > Goldblatt, co-director of the Supreme Court Institute at Georgetown > University Law Center. The clinics have helped especially with criminal > cases, in which defendants have often been represented by less-experienced > advocates before the Court. > > The growth of the clinics working with veteran firms and the competition by > new firms to recruit Court cognoscenti to add luster to their practices is > understandable, in Goldblatt's view. "The Supreme Court is the ultimate > venue," he says. "For a lot of firms, Supreme Court litigation is the jewel > of the crown. All the cases, ultimately, are about something interesting." > > That includes the new term -- though at one briefing on it, sponsored by > the Washington Legal Foundation, former Attorney General Richard Thornburgh > said the term is "a little light on blockbuster cases." He made that > assessment even though he has signed on to a brief in a potentially major > case: *Ashcroft v. Iqbal*. This case, which will be argued Dec. 10, was > brought by Javaid Iqbal, a Pakistani citizen who was held in federal prison > as a "high-interest" individual after the Sept. 11, 2001, terrorist attacks. > Iqbal seeks to hold former Attorney General John Ashcroft personally liable > for mistreatment in prison. Thornburgh, now of counsel at K&L Gates, and > other former attorneys general are asking the Court for immunity from such > suits. > > Today, the first day of the term, the Court will hear *Altria Group v. > Good*, one of two major pre-emption > cases<http://www.law.com/jsp/article.jsp?id=1202424836966> > . > > "For most businesses, pre-emption is the hot-button issue of the term," > says Robin Conrad, executive vice president of the National Chamber > Litigation Center. > > Former Solicitor General Theodore Olson, arguing his 50th > case<http://www.law.com/jsp/article.jsp?id=1202424704372>, > will represent Altria against David Frederick of Kellogg, Huber, who > represents a group of Maine smokers claiming that advertisements for "light" > cigarettes amount to fraud. Olson will argue that state tort actions are > pre-empted by federal law. > > Frederick also represents the plaintiff in the other major pre-emption case > of the term, set for argument Nov. 3: *Wyeth v. Levine*, asking whether > the Food and Drug Administration's drug labeling requirements preclude suits > in state court for harm caused by a drug manufactured by Wyeth. Arguing for > Wyeth: former SG Seth Waxman. The Bush administration is siding with the > plaintiffs in the cigarette case, but favors Wyeth in the drug case. > > The best-known of several environmental cases is *Winter v. Natural > Resources Defense Council*, in which the 9th U.S. Circuit Court of Appeals > said the government had not proven an emergency need to suspend the National > Environmental Policy Act when the environmental group sought to halt Navy > sonar tests that injured whales. But Georgetown law professor Lisa > Heinzerling notes that environmental plaintiffs invoking NEPA "are zero for > 15 in the Supreme Court" since the law was passed in 1969. "It's not looking > good" for the resources council. > > In the view of Akin Gump's Goldstein, two cases not yet granted review > could become the Court's blockbusters this term. *Northwest Austin > Municipal Utility District v. Mukasey*, filed Sept. 8, is a direct > challenge to the Voting Rights Act, which Congress renewed in 2006. Also > pending is *Al-Marri v. Puciarelli*, filed Sept. 28, which Goldstein calls > "the fourth generation" of challenges to Bush administration detainee > policies. > > Says Georgetown professor Marty Lederman, "If the Court grants cert, it > will be the most important case of the term." And if it is granted, it will > be handled by the next administration, toward the end of this term of > transition for the Supreme Court. > > http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202425027610 > > > > -- *~@):~{> --~--~---------~--~----~------------~-------~--~----~ Thanks for being part of "PoliticalForum" at Google Groups. 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