Civil Attorneys

The collapse of his second successive nomination to the Supreme Court tells us much about Ronald Reagan. It shows us the price we pay for having a President who in even his most solemn appointing function is driven by narrow interests of politics and ideology.

The collapse of his second successive nomination to the Supreme Court tells us much about Ronald Reagan. It shows us the price we pay for having a President who in even his most solemn appointing function is driven by narrow interests of politics and ideology.

How could a President who talks about the need for law and order pick as a Supreme Court nominee someone who illegally used marijuana when he was a law professor? How could a President who has proclaimed the war against drug abuse fail to be informed of that easily discoverable fact about his nominee?

The questions are not hard to answer. President Reagan was interested in only one thing when he made his choice for the Court: stuffing a conservative down the throats of the Senators who had defeated Robert Bork. In the rush to revenge there was no time for care in scrutiny.

The partisan, ideological motivation was clear from the start in Mr. Reagan’s nomination of Judge Douglas Ginsburg. The choice was urged on him by Attorney General Meese and other zealots. The White House Chief of Staff, Howard Baker, counseled selection of a conservative whose qualifications would assure easy confirmation. But the President did not want a Justice. He wanted a fight.

More : query.nytimes.com

For the fourth time in a row, Stanford University has chosen a constitutional law scholar as its dean of the law school.

Larry Kramer, a professor and associate dean at New York University School of Law, will take over from Kathleen Sullivan, the university said Wednesday. Sullivan had announced in October that she would step down on Sept. 1, 2004.

Kramer, 45, taught at law schools at the University of Chicago and the University of Michigan before joining NYU in 1994.

“In a sense, Larry’s been training for this job since he entered law school teaching,” said Michael Klausner, a professor of law at Stanford and a member of the search committee. “He’s worked at three top law schools under four fabulous deans. … In each of those schools, he has played a central role in building the school, particularly at NYU.”

Klausner said one of Kramer’s strengths is recruiting top faculty and creating an intellectually engaging environment. “He knows people,” Klausner said. “He knows subject areas, he knows people of substance, and he can engage people of substance and say, ‘If you come and join me and my colleagues, this is what your intellectual life will be like,’ which is very attractive.”

Stanford’s law school, with 40 faculty members, is ranked third in the nation, behind Harvard and Yale, by U.S. News and World Report. Kramer said he was excited by the opportunity to work with top-flight people, both at the law school and across the university.

“Stanford is one of the great law schools in the country, at one of the great universities in the world,” Kramer said. “The sky’s the limit.”

One area he said was ripe for growth is international and comparative law because of rapid globalization. At the same time, he said, the school could also become more involved in interdisciplinary ventures, working with other scholars in fields like history, science, medicine and economics.

“I see this as an opportunity to work with the faculty to figure out what we might want to do in adapting Stanford to a changing world,” he said.

More : sfgate.com

An ancient writ that courts issue telling jailkeepers: “We have reason to believe you have the body of a prisoner, so produce it and we’ll see whether the detention is lawful.”

Senator Joseph Biden, speaking at a White House lawn party for a crime bill that does not yet exist, offered a new description: “Something the American public does not have that much interest in but has divided us. And we settled it.”

Habeas corpus is the principal way Federal courts review the constitutionality of state criminal convictions. It has indeed divided Congress and the legal community. The issue was a main reason Congress could not pass a crime bill in the closing days of the Bush Administration. Now Senator Biden is so certain that the issue is “settled” that when he introduces his new crime bill after Labor Day he wants to take it right to the Senate floor, bypassing his own Judiciary Committee.

Not so fast. For six months Mr. Biden and Attorney General Janet Reno have negotiated often with district attorneys while giving defense lawyers only selective peeks at proposed legislative language. Their habeas corpus proposals, part of a huge crime bill that is still being drafted, have now been unveiled. They are wordy, complicated, novel and still controversial.

The core problem is that the Supreme Court has chiseled away prisoners’ and accused felons’ constitutional rights under habeas corpus. Mr. Biden said he would mend this problem, but in fact parts of this legislation would institutionalize a diminution of basic rights. Rather than being rushed to the floor, this problematic legislation must be aired the old-fashioned way: in hearings.

Several Supreme Court decisions have mangled the law that allows Federal courts to issue habeas corpus writs for state prisoners whose direct appeals to the high court have failed. Justices appointed by Presidents Reagan and Bush, supposedly because they would “interpret law, not make it,” have grossly misinterpreted this law, inventing new rules depriving inmates of its benefits.

Perhaps the worst invention came in decisions forbidding lower courts to hear prisoner petitions if their rulings would result in a “new rule” of constitutional law. That loophole is broad enough to let the Federal courts shirk significant petitions.

More : query.nytimes.com

Having announced that they will consider reopening the case of the Bronx police officer who was acquitted this week of the choking death of an asthmatic, Federal prosecutors will probably turn to the same civil rights statute that was used to convict two Los Angeles police officers for the beating of Rodney King.

But the King case, in 1993, was more straightforward than the Bronx case, and the decision by Mary Jo White, the United States Attorney, about whether to indict Police Officer Francis X. Livoti is not as predictable.

Certainly, Federal prosecutors are not bound by the way the Bronx prosecutors handled the case. Indeed, they could choose to indict more officers if the prosecutors believe that Anthony Baez died on a wintry night nearly two years ago because several men, not just Officer Livoti, roughed him up.

And they are not constrained by double jeopardy, that is, charging Officer Livoti twice with the same crime. According to Federal constitutional law, the state and the Federal government are distinct ‘’sovereign” jurisdictions that can each bring charges in a case. (Under the New York State Constitution, if a case fails in Federal court, state prosecutors cannot retry it.)

And they would be viewing the case with a fresh legal theory. In state court, Officer Livoti was charged with homicide because Bronx prosecutors argued that Mr. Baez died as a result of the officer placing him in a forbidden choke hold while trying to arrest him. But in Federal court, prosecutors could argue that Officer Livoti, as a government agent, intentionally used excessive force to violate a citizen’s civil rights against unlawful seizure and the taking of life and liberty without due process.

Even so, the notion of Federal prosecutors taking over a state case that has already been prosecuted strikes many as paternalistic and disrespectful to the integrity of a verdict pronounced by a judge or jury. It is an extreme measure, and indeed, the Federal statute that would probably be used in the Livoti case was developed to correct for Jim Crow-era lapses of civil rights enforcement in the South, when Federal intrusion seemed a last-resort way to render justice.

More : query.nytimes.com

My friend Mr. Louis Marshall is justly esteemed for his high character, his ability and his legal learning, and especially as an expert upon the subject of constitutional law. Indeed, in this last particular his latest achievement stirred the people of the State to reaction, for by an overwhelming vote they adopted the constitutional amendment overruling his successful argument in the Ives case.

Source : query.nytimes.com

Harvard’s Professor Tribe courts both issues and publicity

It is hard to imagine a more unpopular cause than defending the Rev. Sun Myung Moon. Attorneys for the Korean evangelist carried out a survey in 1982 and found that more than 75% of those questioned reacted negatively to Moon’s name. He is widely thought of as a brainwasher and exploiter of American young people. Given this prejudice, officials of the Unification Church knew that they would need a lawyer with impeccable credentials to represent the self-proclaimed “Prophet of God” in an appeal of his 1982 conviction for filing false federal income tax returns. The advocate they eventually landed was Laurence H. Tribe, 42, a Harvard professor of constitutional law with a national reputation as a defender of civil rights and feminist causes.

Next week Tribe will file a petition before the U.S. Supreme Court asking for a review of the Moon case. At first glance it might seem curious that a lawyer who sees himself as a champion of the poor should be coming to the defense of the powerful evangelist, who will have to serve 18 months in prison unless his conviction is overturned. Tribe has agreed to take the Moon case because he sees a basic constitutional issue at stake. The religious leader, he argues, was unfairly prosecuted for financial practices that are common among some larger, established churches; moreover, says Tribe, the prosecution is an unwarranted intrusion by the Government and a jury into church affairs. “It is exactly the people who are hated who ought to have the protection of the courts against mass hysteria,” he says. “The issue in this case is not religion alone but rather how to protect minorities against oppression.”

That comment typifies the rigorous intellectual style of Tribe, who was appointed to the Harvard Law School faculty at the ripe young age of 26. His 1978 treatise American Constitutional Law has become a primary reference work for scholars, lawyers and judges across the country and has been cited in more than 400 court cases. Jesse Choper, dean of the law school at the University of California at Berkeley, places Tribe at “the very top of his field” as one of the law’s most brilliant scholars. In recent years. Tribe has also become a fearsome presence in the courtroom, where he generally takes the liberal side of legal and social issues. “I have enormous respect for his ability, his intelligence and his analytical skills,” says U.S. Solicitor General Rex Lee, who represents the Government in cases before the Supreme Court. The conservative Lee says that he and Tribe disagree on nine out often issues, but adds, “I don’t know that I have ever had a more skillful opponent.”

Tribe’s batting average is remarkable. Since 1980, he has taken seven cases to the Supreme Court and has won five. Those winning presentations have involved such disparate issues as California’s right to stop the construction of new nuclear power plants within the state and the right of a Cambridge, Mass., restaurant to have a liquor license. In the latter case, he persuaded the court to strike down a state law that gave churches the right to block the issuance of liquor licenses to nearby businesses.

Source : time.com

With a legal mind far sharper than the crease in his often-rumpled pants, Gordon Baldwin became the go-to person for questions on constitutional law.

That was true with everyone from state officials to reporters.

“I met him when I was in the Legislature,” said Tommy G. Thompson, speaking of the days before he served as governor. “When a question came up on the constitution - Wisconsin or the country’s - my first information source was always Professor Baldwin. He was like a walking encyclopedia.”

Baldwin, who had cancer, died in his sleep Saturday while in Italy. He was 77. He and his wife had attended an opera the evening before.

In a University of Wisconsin - Madison news release, law professor Stewart Macaulay recalled that Baldwin didn’t want to talk much about his cancer.

“He did say that he might have to have chemotherapy,” Macaulay said. “Then he said, ‘And you know, I’ve heard it might make your hair fall out.’

“Pure Gordon,” Macaulay said of his balding friend.

A native of Binghamton, N.Y., Baldwin later grew up in Penfield, N.Y. He graduated from high school at 16, then from Haverford College as a history and government major.

In his dry and self-deprecating way, Baldwin once explained his choice of career. He planned to continue studying history and political science but switched after he discovered that a doctorate in history required further study of French and German.

“Law was sort of a compromise,” he said.

He went to Cornell Law School, specializing in international affairs.

More : jsonline.com

Americans are disposed to sneer at rather than to respect family pride. They attach little importance to ancestral virtues, capacity, or genius. This is natural, and, to some extent, pardonable where the want of a genealogical tree and the lack of “armorial signs of race and birth” are no hindrance

Source : query.nytimes.com

The principal speaker at the meeting of the section on Constitutional Law of the Congress of Arts and Science to-day was Senor Attillio Brunialti, Councillor of State, Rome, Italy. He said in part

Source : query.nytimes.com

John Yoo , a professor at the University of California at Berkeley School of Law and former counsel to the Senate Judiciary Committee, was online Monday, Sept. 12, at 11 a.m. ET to discuss the start of confirmation hearings for Supreme Court nominee John Roberts .

The transcript follows.

John Yoo: Good morning. It is a pleasure to join you from Berkeley, CA to talk about Judge Roberts, the Supreme Court, and the confirmation process. I have had the opportunity to view the process from the perspective of all three branches of the government, as a law clerk on the Supreme Court, an aide on the Judiciary Committee, and a political appointee in the Bush Justice Department. I hope that my experiences from this and from writing and teaching about the Supreme Court can help in understanding the confirmation process that is beginning in an hour.

John Yoo: That is a very tough question, and one that is at the heart of the political and constitutional struggle between nominees and Senators over the last two decades. A member of the Senate can choose to vote for or against a nominee for whatever reason he or she chooses, and can ask any question they want. Senators have a duty to uphold the Constitution, just as other members of the federal government do. They should not vote to confirm nominees to the courts whom they believe will not properly interpret and enforce the Constitution. At the very least, then, they should read a nominee’s previous writings to determine their judicial philosophy.

At the same time, nominees have a duty not to judge cases before they are argued and submitted to them for decision. We would think it wrong, for example, for a nominee to announce during confirmation hearings that he or she will always vote for or against the police in a search or seizure case. That limits their ability to answer.

One last point. This is not an issue that is subject to judicial review — it would almost certainly be a political question that the courts would stay out of. Any consistent norm of behavior would be settled by the Senators themselves.

More : washingtonpost.com

We have already given by telegraph an abstract of the opinion of Attorney-General BATES on the question submitted by the Treasury Department, whether colored men may be citizens, and thus competent to command American vessels. That opinion, very

Source : query.nytimes.com

The Columbia University Council, at a meeting held yesterday, made award of the various fellowships of the institution. The first fellowship ever granted by Columbia to a Chinaman was awarded to Chin Yung Yen of Tien-Tsin. Mr. Yen’s specialty is constitutional law. He was a student at the Imperial Tien-tsin University from 1893-1901, and received a bachelor’s degree from the Government in 1901.

Source : query.nytimes.com

It was well said by a wise political philoso pher that “a good government, like a good coat, is that which fits the body for which it was designed.” It is as absurd to decide upon a measure of government by abstract principles, as it would be for a tailor to cut his garments after an ideal pattern, or meas ure the Belvidere Apollo for the clothes of allhis customers.

Source : query.nytimes.com

One popular constitutional law textbook, after reviewing the Supreme Court’s dramatic shift in the 1930’s toward an expansive view of Congress’ authority to regulate interstate commerce, has this to say: “The Supreme Court today interprets the commerce clause as a complete grant of power.”

No longer. “It was right when we wrote it,” one of the authors, Professor Ronald D. Rotunda of the University of Illinois, said ruefully last week. But, he said, a new edition of “Constitutional Law” (West Publishing) is now at the publisher and, with luck, there will still be time to excise the obsolete sentence.

The Court did a dramatic about-face on the issue last week, in a 5-to-4 decision that declared unconstitutional a law that made it a Federal crime to possess a gun within 1,000 feet of a school. Writing for the majority in United States v. Lopez, Chief Justice William H. Rehnquist said the presence of guns in schools was not closely enough related to interstate commerce to justify Federal intervention.

The decision struck a tone that had not been heard from the Court in many years. The last time it invalidated a Federal law on commerce clause grounds was 1936.

The question that remains is how far the decision extends beyond the Gun-Free School Zones Act. With the renewed interest in federalism in the new Congress, the ruling could become a rallying cry for states’ rights that the states, on closer examination, may or may not want. LINDA GREENHOUSE

Source : query.nytimes.com

Haiti poses many difficult questions for President Clinton. None is more prickly — or more important to the integrity of his Presidency — than whether to ask Congress for authority to launch an invasion.

Mr. Clinton told a press conference last month that he did not have to ask. “Like my predecessors of both parties,” he said, “I have not agreed that I was constitutionally mandated” to have Congressional approval.

It is easy to understand why this President, like others, would prefer to act on his own. Going to Congress would lead to a trying debate, with the outcome uncertain.

But a unilateral Presidential decision to invade would offend the Constitution in a most profound sense. It would deprive the military operation of essential public legitimacy.

The Framers of the Constitution well knew that giving Congress power over the decision to make war would produce messy debates. But they feared the danger of leaving so grave a decision to one person. As in other aspects of the Constitution, they thought efficiency was less important than safety.

Even Alexander Hamilton, the most executive-minded of the Framers, agreed to the provision assigning to Congress the power to declare war. So did other leading figures at the Constitutional Convention, such as James Madison and James Wilson. Wilson said of war-making:

“It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

The delegates left it open to the President to use the armed forces to, as they put it, repel sudden attacks on the United States. But a deliberate choice of war was to be for Congress.

A dramatic recent example of a deliberate choice of war was the Persian Gulf conflict. Over a period of months President Bush sent hundreds of thousands of troops to Saudi Arabia. The United Nations Security Council authorized an attack on Iraq. There could be no Presidential claim of a need for secrecy or surprise as a reason to bypass Congress.

More : query.nytimes.com

In a case that had drawn intense national attention from supporters and opponents of gun control measures, a federal appeals court in New Orleans ruled yesterday that the Constitution guarantees individuals a right to have firearms.

But the court, in wading into one of the most contentious issues of constitutional law, disappointed pro-gun groups by declaring that the right was subject to some regulations, leaving open the door for gun control provisions.

Ever since an unusual pro-gun ruling from a Texas federal judge in 1999, the case had become the central legal battleground over the Second Amendment guarantee of a right ”to keep and bear arms,” which has been a political rallying cry for the National Rifle Association and other groups. They say there is a constitutional right for individuals to bear arms, contrary to most court decisions, which have said the amendment gives only a collective right, such as for state militia units.

The ruling yesterday by the United States Court of Appeals for the Fifth Circuit involved the case of a Texas doctor charged with illegal gun possession. Although the court said there was a Second Amendment right, it sent the case back to federal court for the doctor to face trial.

In the decision released late yesterday, two judges of a three-judge panel wrote that ”the Second Amendment does protect individual rights.” But the majority opinion quickly added, ”That does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions.”

More : query.nytimes.com

After three days of impeachment arguments from the House managers, constitutional and impeachment experts said the presentations last week gave the strongest legal arguments yet against President Clinton.

But in interviews over the weekend, the experts — professors at law schools around the country — generally agreed that if the Republican managers had made legal headway in their case against the President, it was in subtly shifting the emphasis.

”What the Republicans want the question to be is: Did the President do what is alleged in the articles of impeachment?” said Cass R. Sunstein, a professor of constitutional law at the University of Chicago Law School. ”If that is the question, they’re in better shape than if the question is: Should the President be removed from office? I think in the last few days the ball was moved a little bit in the direction of what the Republicans want the question to be.”

The legal specialists also said the managers’ arguments could be neutralized when Mr. Clinton’s lawyers made their case, and noted that the Senate’s decision is likely to be as much political as legal.

”The bottom line is, nothing was new here, but it was packaged better,” said Susan Low Bloch, a professor of constitutional law at Georgetown University Law Center in Washington. She added, ”It was rhetorically polished. But I suppose after the President has had his three days, we’ll be back to where we were before.”

Though the experts generally agreed that the managers’ statements were more effective than previous arguments in favor of impeachment, several said the presentations were far from the dramatic break the Republicans needed to change the momentum in the impeachment battle.

”A good opening statement in a trial is when you say, ‘My God! These people deserve to win,’ ” said Eric M. Freedman, a law professor and expert on impeachment at Hofstra University School of Law. ”That certainly didn’t happen here.”

More : query.nytimes.com

Added to the crass ignorance of constitutional law displayed by Congress there are now the energetic efforts of the National Guard lobby for Federal pay and to prevent the United States from having any volunteer force. The head and front of this movement is Adjt. Gen. J. Clifford R. Foster of Florida, whose letter appeared in THE TIMES today.

Source : query.nytimes.com

The Berlin correspondent of the London Daily News writes to that journal, under date March 5: The presentation of the bill to abolish State support of the Catholic Church was a splendid coup de theatre. It had not been hinted to the public

Source : query.nytimes.com

JOHN KASICH, GUEST HOST: In the “Unresolved Problem” segment tonight: more action in the case of Dr. George Tiller . He’s an abortion provider in Kansas, who’s been under investigation for allegedly performing illegal late term abortions and failing to report them accurately.

Kansas Attorney General Phil Kline was given another chance today to convince a judge to reinstate charges against Dr. Tiller. But no dice. The judge threw out the case. But there may one last chance Kline, who leaves office in two weeks, plans to appoint a special prosecutor in the case. — This is a huge battle in the culture war.

Joining us now from Kansas City, Missouri, is constitutional law professor Kris Kobach. All right, Chris, this ruling today, tell us about it. Why did the judge go in this direction?

KRIS KOBACH, CONSTITUTIONAL LAW PROFESSOR: Well, I think it’s important to recognize that the judge wasn’t looking at the underlying complaint, wasn’t looking at the criminal charges. Any lawyer in his right mindlooking at this can realize that there’s probable cause that crimes were committed by Dr. Tiller’s abortion clinic.

KASICH: Right. But the problem — the deal today is — the deal today is does the attorney general have the ability to bring charges? And when the district attorney from the county that they were operating in says no, you have no right. Isn’t that what it got down to? Why does he rule this way?

KOBACH: It’s baffling. Because Kansas law is perfectly clear that says the attorney, if he finds probable cause, can bring a criminal complaint of this nature. The judge completely ignored that Kansas statute and just essentially said, without any support, said, Well, the D.A. is the King of the courts in this county, and if the D.A. doesn’t want to bring the case, the attorney general, who is the chief law enforcement officer in the state, can’t bring the case, which is just absolutely contrary to the statutes of Kansas.

KASICH: So Kris, what we’re saying is this judge is saying that, if in a county there is illicit, illegal activity going on and the district attorney is part of it — and I’m not saying in this case, but you know, theoretically is part of it — the attorney general has no power to go after the criminals?

More : foxnews.com