May 2009

  • May 12, 2009

    Attorney Keenan Kmiec, a former clerk to Chief Justice John Roberts, recently wrote a column decrying the "[c]omplaints about judicial activism [that] have plagued Supreme Court confirmation hearings for decades." As were co-authors Goodwin Liu and Pamela Karlan at this month's release of Keeping Faith with the Constitution, Kmiec is most concerned with understanding judicial philosophy of President Obama's judicial nominees. However, according to Kmiec, "Empty or ambiguous charges of 'judicial activism' only make things harder."

    Understanding a nominee's judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of 'judicial activism' score cheap political points, but they have no place in a serious confirmation debate. Let's banish the term or at least use it carefully.

  • May 11, 2009

    The nation's capital is still recovering from this year's White House Correspondents' Dinner, which was no less raucous than in previous years, leaving White House Press Secretary Robert Gibbs to explain the White House's position on the finer points of comedy

    The administration is also taking to the airwaves on healthcare, today, with a major policy announcement by the President. Backed by a coalition of vested interests who previously opposed reform, President Obama indicated that the health care industry and Congress have compatible incentives to cut costs, preserve consumer choice and extend coverage to the uninsured.

    Also, the White House is reportedly on the verge of declassifying 2004 CIA memos that demonstrate torture to be ineffective. Anonymous congressional staffers have called these documents the "holy grail" in the persistent debate about what to do with those who tortured in America's name.

    IN the HOUSE

  • May 11, 2009
    The Los Angeles Times joins a growing number of newspapers to endorse President Obama's choice to head the Justice Department's Office of Legal Counsel (OLC). In a May 11 editorial, the newspaper states:

    The irony is overwhelming, Republicans in the Senate are opposing - and may try to filibuster - President Obama's choice to head the Justice Department agency that during the Bush administration provided legal cover for the torture of suspected terrorists. Their argument: Indiana University law professor Dawn Johnsen is a partisan activist who would politicize the Office of Legal Counsel, which is charged with providing the executive branch with an objective analysis of existing law.

    Johnsen's nomination has also drawn the support of a group of former OLC directors. During a Senate Judiciary Committee hearing last week, Attorney General Eric Holder voiced renewed support for Johnsen, saying that securing her confirmation was a top priority. 

  • May 9, 2009
    Guest Post

    By Barbara Ann Radnofsky, wife, mother, teacher, mediator and lawyer, practicing on both sides of the docket before retiring from Vinson & Elkins, LLP in 2006. She has been listed in each of the past 16 years in "The Best Lawyers in America"

    Our Texas Governor recently made an outrageously incorrect statement: "When we came into the union in 1845, one of the issues was that we would be able to leave if we decided to do that." Texas schoolchildren could tell you that no such deal was made; the real deal permitted Texas to self-divide into as many as five states. (The contemplated effect would have been that four new slave states were created if the northern territories turned free.)

    Why have we heard this line from our Governor, last elected with a 39 percent plurality? Why would he expose himself to ridicule from all but the most extreme in a state where only 41 percent of recently Gallup-surveyed voters are willing to self-identify as members of his party? The reason is the most extreme slice of Texas will determine whether Perry wins his party's nomination for Governor next March in a hotly contested primary. He must get through the primary in order to stand a chance in a general election in what is now a "majority-minority" state. He must somehow rouse his dwindling base, and has apparently determined that inflammatory, unpatriotic language will suffice.

  • May 8, 2009

    Under a little-known provision of a 2004 D.C. District Court opinion, the government may destroy all records related to the case of Guantanamo detainees, including documents produced by the detainees or their lawyers.

    ProPublica reports: 

    For four years, records in the prisoners' habeas corpus lawsuits challenging the legality of their detentions have been piling up in a secure federal facility in the Crystal City neighborhood of Arlington, Va. Because much of the information is classified, the 750 or so attorneys representing the prisoners are required to do and store all their work on-site.


    Case files already fill 40 to 50 locked file cabinets, and restricted computer drives hold still more. Documents include captives' letters, drawings and poems, their attorneys' notes from meetings with them, and reports of their interrogations, according to several lawyers who routinely access the files. In some cases they describe the capture, transfer and investigation of prisoners, the identities of their accusers, and the government's reasons for holding them. The lawyers estimate that a quarter to a third of the records have been marked classified.