Larry Wallace famously recused from filing the SG's Bob Jones brief even though he was Acting SG for the case.
On Wed, Sep 9, 2015 at 1:47 PM, Brian Landsberg <blandsb...@pacific.edu> wrote: > Yes, the policy, though unstated, dates back at least to the early > 1970’s. I was excused from processing Vietnam war protestors, at a time > when most of the Department’s lawyers were needed because of the large > number detained at RFK Stadium. In addition to various briefs that I was > excused from signing, I recall that even Solicitor General Griswold refused > to sign a Supreme Court paper in a busing case; only Attorney General > Kleindienst’s name appeared, a strong signal that the Court should pay > little attention to the filing. [Of course, Griswold was fired as part of > a general house-cleaning after Pres. Nixon was re-elected]. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sisk, Gregory C. > *Sent:* Wednesday, September 09, 2015 10:31 AM > *To:* 'Law & Religion issues for Law Academics' > *Cc:* 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman' > *Subject:* RE: Davis doubles down > > > > The Department of Justice long had (and I hope still has) a policy of > accommodating the religious and civil consciences of its lower-level > lawyers as well when possible in terms of assignments. During my time at > DOJ many years ago, a lawyer who objected to the “don’t-ask-don’t-tell” > policy of the military was respected in asking not to be assigned those > cases. I exercised the option to request reassignment once in an appeal > where the government was insisting that a Jewish seminary reinstate an > individual who had taken leave for military service, which I thought (on > religious and moral, beyond legal grounds) was an improper intrusion of the > state into the operation of a theological institution. > > > > Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of > this accommodation: > > With changes in administrations, many government counsel understand that, > at least in DOJ, lawyers are not required, at the peril of ending their > careers, to represent government policy that collides with their most > fundamental beliefs. . . . This kind of leeway is wise policy for an > agency; given that the government is a vast enterprise required to take on > a multitude of subjects, the possibilities of both conflict and > substitution are greater. It is also wise for government counsel to take > their employer up on the offer: Their discomfort is often discernible to > the court, and no government counsel should be asked to ignore deeply felt > convictions (so long as he does not have too many). > > Patricia M. Wald, *“For the United States”: Government Lawyers in Court*, 61 > Law & Contemp. Probs. 107, 121 (Winter 1998). > > > > > > > > Gregory Sisk > > Laghi Distinguished Chair in Law > > University of St. Thomas School of Law (Minnesota) > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2005 > > 651-962-4923 > > gcs...@stthomas.edu > > http://personal.stthomas.edu/GCSISK/sisk.html > <http://personal2.stthomas.edu/GCSISK/sisk.html> > > Publications: http://ssrn.com/author=44545 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Doug Laycock > *Sent:* Wednesday, September 09, 2015 10:05 AM > *To:* 'Law & Religion issues for Law Academics' < > religionlaw@lists.ucla.edu> > *Cc:* 'Michael Dorf' <miked...@gmail.com>; 'Dellinger, Walter' < > wdellin...@omm.com>; 'Howard Wasserman' <wasse...@fiu.edu> > *Subject:* RE: Davis doubles down > > > > I don’t know that the Attorney General analogy is particularly helpful one > way or the other. But for what it’s worth, it very occasionally happens > that high ranking lawyers in the Justice Department refuse to sign a brief > because of principled disagreement with the position asserted. These are > generally, probably always, legal objections, not religious objections. The > others file the brief. > > > > Not only has the absence of the dissenter’s name been thought to > sufficiently disassociate him, but if it’s a name that would normally be in > the brief, it’s absence makes a powerful statement to a Court accustomed to > seeing that name on every government brief. > > > > Similarly, the absence of Kim Davis’s name in a place where it would > normally appear makes a powerful statement of her refusal to participate to > anyone familiar with the forms. On the other hand, it may go entirely > unnoticed by a couple unfamiliar with the forms. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *James Oleske > *Sent:* Wednesday, September 09, 2015 12:12 AM > *To:* Law & Religion issues for Law Academics > *Cc:* Michael Dorf; Dellinger, Walter; Howard Wasserman > *Subject:* Re: Davis doubles down > > > > Kevin writes: "It would have been odd, for example, if Kentucky's Attorney > General had said that he would not be defending Kentucky's marriage law, > but that his office would continue to do so through his deputy. It made > sense that the state hired private counsel instead." > > > > I'm not sure this analogy works. It's one thing for an AG to refuse to > have their office defend a law based on the AG's conclusion that a district > judge correctly found the law to be unconstitutional and that the Supreme > Court is likely to agree. It is quite another for an AG to refuse to have > their office defend a law based solely on the AG's religious objection to > the law. The idea that we wouldn't have state lawyers defend state laws > based on state AGs' religious objections to those laws strikes me as > extremely odd. > > > > Back to Davis, my point was not that she hasn't preserved the "on her > authority" argument for objecting to the issuance of "Rowan County Clerk's > Office" licenses. It appears that she has preserved that argument. But > given Marty's comparison of that argument to the complicity arguments in > the contraception case, I thought it was worth noting that her lawyers > specifically argued in their latest filing that her claim should be viewed > as more modest than the claims in the contraception cases and they framed > that argument by emphasizing (their emphasis, not mine) the phrase "devoid > of her name." > > > > Finally, in judging the burden a claimed accommodation imposes on the > government, I'm inclined to think that we need to look at more than the > logistical issue of whether "the government could easily substitute another > official." It seems to me that requiring the government to modify the use > of government office names to satisfy the religious beliefs of government > employees imposes a burden (and raises concerns) beyond logistics. > (Alternatively, perhaps this is all best approached not by focusing on the > burden on government, but instead, the lack of a cognizable burden on > plaintiff per Roy and Lyng). > > > > - Jim > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
