May 2011

  • May 18, 2011

    Following Senate Majority Leader Harry Reid’s filing of a petition to force a vote on long-delayed judicial nominee Goodwin Liu, commentators from across the political spectrum have escalated their calls for an end to obstruction of Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit.

    University of Minnesota law professor Richard Painter, the former White House Chief Ethics Lawyer for President George W. Bush, suggests that a vote against cloture would be contrary to the publicly stated positions of many Republican senators.

    “A few right wing bloggers at National Review Online and elsewhere have suggested a filibuster, but it is inconceivable that this could happen unless Republican senators ignore what they have been saying about filibusters for a long time,” Painter writes in Legal Ethics Forum, citing prior written and verbal statements by Sens. John Cornyn, Lamar Alexander, Orrin Hatch and others, all of whom have said that judicial nominees deserve an up-or-down vote.

    Senate Majority Leader Harry Reid made a similar point in a statement following his motion to invoke cloture, saying:

  • May 17, 2011

    After more than than a year of a grueling confirmation process, the Senate is finally taking some action on the nomination of UC Berkeley Law School Professor and former ACS Board Chair Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.

    Tonight Senate Majority Leader Harry Reid filed a cloture petition on the nomination of Liu, and if the motion passes with 60 votes, this would finally allow an up-or-down vote on the nomination.

    As numerous experts and commentators across the political spectrum have noted, Liu is eminently qualified to serve on the federal bench and deserves an up or down vote. The New York Times hailed him as an “exceptional nominee.” Former Whitewater prosecutor Kenneth Starr called Liu “a person of great intellect, accomplishment, and integrity.” Liu’s academic and professional qualifications are outstanding, including a Rhodes scholarship and a Supreme Court clerkship. He is a nationally recognized constitutional scholar and received the highest possible rating from the American Bar Association.

    But Liu has faced a confirmation process riddled with delays and filled with outlandish distortions of his work. President George W. Bush nominated to the federal appeals court a legal scholar, Michael McConnell, with a sterling academic record and writings touching on controversial issues such as reproductive rights, race issues, and voting rights, but his nomination was unanimously approved by the Senate. Liu has been subjected to a far different approach.

    In an April editorial, the Los Angeles Times blasted Republicans in the Senate for obstructing Liu’s nomination. The editorial said Liu’s nomination was being unjustly hampered by Republicans who called him “outside the mainstream." The Times said the situation “over the Liu nomination is emblematic of the politicization of appointments to lower federal courts, a recent phenomenon.”

    To follow the status of Liu’s nomination and other updates regarding the effort to fill vacancies on the federal bench, visit JudicialNominations.org

  • May 17, 2011

    The Senate today confirmed Yale University Deputy General Counsel Susan Carney to the U.S. Court of Appeals for the Second Circuit by a vote of 71-28.

    Carney has waited almost a year for an up-or-down vote by the Senate, and had been recommended by the Senate Judiciary Committee twice with bipartisan support. She will fill a federal appeals court seat deemed a judicial emergency by the Administrative Office of the U.S. Courts.

    “This is one of several judicial nominations that the minority refused to consider, despite being favorably reported by the Judiciary Committee last year,” Senate Judiciary Committee Chairman Patrick Leahy said in a statement. “Hers will be the sixteenth nomination confirmed this year that could, and in my view should, have been considered last year.”

     Today’s vote followed two hours of debate, during which some senators expressed concern about Carney’s lack of litigation experience, The Blog of Legal Times reports.

    Leahy responded by pointing out that those with too much trial experience have also been criticized for taking sides in litigation.

    Republicans opposed Judge McConnell of Rhode Island because he was an excellent trial lawyers. They opposed Judge Chen of California despite his 10 years as a fair and impartial Federal Judge Magistrate and disregarded his judicial record. The Republican opposition to President Obama’s judicial nominees has been anything but consistent. Now some will turn around and oppose Ms. Carney, a nominee with more than 30 years of legal experience, by saying she has not had sufficient experience as a trial advocate.

    This reminds me of the story of the mother who sent her son two neckties as gifts.  When she visited, the son picked her up at the airport dutifully wearing one of the ties only to hear his mother complain:  ‘What’s the matter? Don’t you like the other tie?’

     Today’s vote to confirm another long-delayed judicial nominee comes following two other recent votes on long-pending district court nominees. Last week, the Senate confirmed Edward Chen to the U.S. District Court for the Northern District of California, and two weeks ago, the Senate confirmed John “Jack” McConnell Jr.  to the U.S. District Court for the District of Rhode Island.

    During an ACS phone briefing for bloggers on judicial nominations last week, ACS Executive Director Caroline Fredrickson cautioned that recent confirmations on long-delayed nominees belie “the truth that there has been a systematic delay of judicial nominees by Republicans in the Senate; people have gotten bottled up after having a unanimous vote out of the Senate Judiciary Committee, completely uncontroversial nominees who are held up because people can simply hold them up.”

    Listen to audio of the call here and visit JudicialNominations.org to learn more about the judicial vacancy crisis and follow developments.

  • May 16, 2011
    Guest Post

    By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which the U.S. Supreme Court today issued an opinion. Mr. Guttman is also a Senior Fellow and Adjunct Professor at the Emory Law School Center for Advocacy and Dispute Resolution.


    With the heightened pleading standard established by the Supreme Court in Twombly and Iqbal, it must follow that Plaintiffs are entitled to some accommodation in the manner and methods used to muster the facts now required to properly plead a case. Apparently this is not so.

    In issuing its 5-3 decision (Justice Kagan did not take part in the decision) in Schindler Elevator Corp. v United States, No. 10-188 (May 16, 2011), the Court held that a whistleblower litigating under the Federal False Claims Act (FCA) does not have standing if his or her claims are based on information secured from a Freedom of Information Act (FOIA) request. The FCA precludes whistleblowers from basing claims on government "reports" and in Schindler, the Court had to decide whether the Government’s response to a FOIA request constituted a government report. Justice Thomas opined that because a response to a FOIA request provides information, it must therefore be a "report" within the meaning of the statute. While this may be good news for college students seeking support for the proposition that a one page document suffices as a term paper or report, it is indeed a blow to whistleblowers seeking redress from private contractors that cheat the government.    

    The whistleblower in Schindler, Daniel Kirk, a Vietnam Veteran, claimed that his employer, a government contractor, failed to honor a veterans job preference, which in turn violated a government contract.  In support of efforts to prove his claims, Schindler's wife secured information from the Department of Labor (DOL) through a FOIA request. Mrs. Kirk’s efforts, according to the Court's opinion, proved fatal to the complaint.

    The False Claims Act's public disclosure bar is designed to preclude the filing of parasitic lawsuits or lawsuits based on public information readily known to the government. Specifically, the statute bars suits based on government audits and reports. If a government agency issues a report documenting fraudulent conduct by a contractor, it would make sense that a private citizen should not be able to use that report, file a lawsuit, and claim a bounty for bringing attention to that which is already known. But a response to a FOIA request is different. First, as a document generated at the behest of a private citizen, it would never be revealed if the private citizen did not know to ask for it. Second, the document may only provide raw data or information absent any analysis and its relevance may only be understood by the individual seeking the information. As Justice Ginsburg noted in her dissent, quoting the Opinion of the Second Circuit which was reversed, the Department of Labor's responses "did not synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . It necessarily would in conducting a 'hearing" or 'audit.' "

    The truth is that Daniel Kirk, the relator in Schindler, was doing exactly what the Court in Iqbal and Twombly required of him; he was mustering very precise facts in order to plead a case. And though he may have filled his complaint with some facts secured from the government itself, there is no evidence that the government was able to put the pieces together absent his aide. 

    With so much public money being injected into the private sector these days and with insufficient oversight of contractors, does this case -- like other recent Supreme Court decisions -- merit corrective legislation? As Justice Ginsburg noted in her dissent: "[a]fter today's decision, which severely limits whistleblower's ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention."

  • May 16, 2011

    The effort by proponents of California’s anti-gay marriage law, Proposition 8, to invalidate last year’s federal court opinion finding it unconstitutional because the judge who issued the opinion is gay reveals the wobbly arguments against marriage equality, writes UCLA law professor Adam Winkler.

    In this piece for The Huffington Post, Winkler says “ironies abound” over the marriage equality opponents’ arguments that the opinion should be invalidated because Judge Vaughn R. Walker (pictured), now retired, “stood to gain personally from ruling in favor of same-sex marriage.” That is, Winkler notes, if California were to recognize same-sex marriage, Walker might be “able to take advantage of that opportunity and secure any and all of the benefits that accrue from marriage.”

    Winkler continues:

    Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a "valuable legal right." That is correct -- and exactly why states shouldn't be able to deny gays and lesbians the ability to marry. It's a violation of the Constitution's command that all people be afforded "equal protection of the laws" to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.

    Implicit in Proposition 8 supporters' effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.