FedSoc Blog

Join us for the Federalist Society's Fifth Annual Western Conference on January 29 at the Ronald Reagan Presidential Library. The theme of the Conference is "After the 2010 Election: What's Next for Campaigns and California?" You can click here to RSVP.

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Over at the Wall Street Journal Law Blog, Ashby Jones brings together the legal issues raised by the media in the wake of the shooting rampage in Tucson, Arizona last Saturday. Three issues considered in the aftermath of the shootings: whether Arizona could have legally detained the shooter Jared Loughner, whether Congress would produce new gun laws in response to the events, and who will preside as judge at Loughner's criminal trial.

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The Blog of Legal Times reports that Judge Ricardo Urbina of the federal district court in D.C. has agreed with the Department of Homeland Security that it may refuse to produce 2,000 body scan images of air travelers in response to a request for the images under the Freedom of Information Act.

DHS received the request from the Electronic Privacy Information Center, which wishes to examine the images to determine how they may affect the civil rights of the passengers scanned. When DHS refused to comply with the request, the Center sued to force the government to turn over the images, which were created for the purpose of determining whether the scanners met the government's detecting standards.

Attorneys for the Center argued that the public had an important interest in disclosure of the images:

The body scanner is presently the subject of substantial debate in Congress, between international delegations, and in the media. Central to the dispute is whether the TSA can store and record detailed images of naked air travelers at US airports without any privacy filters. The TSA contends that it would not do this, but the agency possesses 2,000 relevant images and refuses to release any.

The Justice Department argued that releasing these images would threaten transportation security by revealing potential vulnerabilities in the body scanners. In his decision, Judge Urbina agreed that the Center had not sufficiently refuted the government's "reasonable conclusion that disclosure of the images may provide terrorists and others with increased abilities to circumvent detection by TSA and carrying threatening contraband onboard an [airplane]."

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SCOTUSblog reports that Justice Elena Kagan has delivered her first opinion on the U.S. Supreme Court in the case Ransom v. FIA Card Services. Justice Kagan's opinion for the Court holds, in the words of SCOTUSblog, that "(a) debtor in bankruptcy who does not make loan or lease payments may not take the deduction that is otherwise available for ownership of an auto."

The opinion is available here.

Only Justice Scalia dissented from the decision, arguing that "a debtor who owns a car free and clear is entitled to the car-ownership allowance."

The Federalist Society has published the remarks of Judge Dennis Jacobs on "Lawyers at War" from the 10th Annual Barbara K. Olson Lecture on November 19, 2010 at the National Lawyers Convention. The remarks are forthcoming in the Stanford Law & Policy Review. Click at the bottom of the page for the pdf version of the speech.

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The Blog of Legal Times reports that while President Obama has re-nominated almost all of his judicial picks that the Senate did not confirm by the end of 2010, he did not re-nominate Judge Robert Chatigny for the U.S. Court of Appeals for the Second Circuit. Judge Chatigny thus becomes the first Obama judicial nominee to fail to receive confirmation.

Many Republicans opposed Judge Chatigny's confirmation because of his actions in a state capital case as a federal district judge in Connecticut. During a conference call, he warned a defense lawyer that he would have the lawyer's license if he did not work harder to delay his client's execution.

An ethics inquiry followed, but a panel of three other federal judges cleared Judge Chatigny of wrongdoing.

Among the judges who have experienced Republican opposition but whom the President decided to re-nominate were Goodwin Liu from the University of California, Berkeley; former state supreme court justice Louis Butler Jr.; federal magistrate Edward Chen; and Motley Price partner John McConnell Jr.

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Marc Lacey from The New York Times has a story on a looming immigration battle: the policy of granting offspring of illegal immigrants automatic U.S. citizenship.

This policy, which some argue is mandated by the 14th Amendment of the U.S. Constitution, reportedly has incentivized illegal immigrants to cross the border and have children in order to make it easier to legally live in the United States themselves.

State legislators from several states, including some in Arizona, are forming a coalition to pass legislation to discourage this practice. One possibility these legislators have mentioned is to pass a law creating two types of birth certificates in their states, one for children of citizens and the other for children of illegal immigrants.

Some scholars argue that these laws would violate the 14th Amendment, which grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." Others, including Kris Kobach, the incoming Kansas Secretary of State and law professor at the University of Missouri-Kansas City, argued that such laws would withstand a constitutional challenge.

Such laws may be drawn in a way that will invite challenges in which the courts will determine the meaning of the citizenship language in the 14th Amendment.

Click here to read a question-and-answer session between John C. Eastman, former Dean of the Chapman University School of Law, and Margaret D. Stock, an adjunct faculty member in the Department of Political Science at the University of Alaska-Anchorage, on issues related to immigration enforcement, including birthright citizenship.

Philip Rucker at the Washington Post writes today that new House GOP chairmen will use their committees' investigative powers to probe the Obama Administration's actions on a number of issues, including the leak of classified cables to Wikileaks, Fannie Mae and Freddie Mac's actions in the foreclosure crisis, regulations and corruption in Afghanistan, and the enforcement of voter rights laws by the Justice Department's Civil Rights Division.

Rep. Darrell Issa of California will become chairman of the House Oversight and Government Reform Committee and says that he will oversee six major investigations within his first few months in the position. Rep. Issa said Monday:

I've always been fond of the saying that when it comes to oversight and reform, the federal government does two things well: nothing and overreact. Too often, a problem is allowed to fester until it reaches a crisis point . . . and the American people are left asking the question: what went wrong and why?

The investigations will include asking national security advisor Tom Donilon to testify regarding how to end the release of classified information by organizations like Wikileaks. It remains to be seen whether the Obama Administration will push back on such requests by asserting executive privilege to prevent top officials from being required to testify.

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The Blog of Legal Times reports that Chief Justice John Roberts Jr. wrote in his annual report on the state of the federal judiciary Friday that Congress and the President should come together to solve the "persistent problem" of confirming federal judges. Though he was "heartened" by the numerous confirmations that occurred the week before, Chief Justice Roberts wrote that "Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes."

The Senate in the 111th Congress confirmed judges for sixty appellate and district court vacancies and did not give a yes-or-no vote to nineteen nominees. You can read the report here.

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