FedSoc Blog

Snowden: What’s the Harm?

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by Publius
Posted January 30, 2014, 1:58 PM

Joel Brenner comments at Lawfare:

What harm has Edward Snowden done to his country?

When Snowden asserts that the National Security Agency listens to encrypted Russian diplomatic traffic, it takes the Russians about twenty minutes to shut it down.  An operation like that can take many years to put in place.  When he explains exactly how NSA can implant devices that make it possible to extract information even from isolated networks of hostile governments, those operations will die on the vine.  When he identifies specific networks of adversaries that we have penetrated and the exact locations from which we have done it, he effectively shuts those operations down.  When he and his backers assert that NSA penetrates Google and Yahoo and Facebook servers overseas—when the truth is that NSA may target the foreign terrorist-linked users of those services—he wounds the businesses of creative, successful American companies.  When he identifies legitimate, and legitimately secret, arrangements by which foreign governments cooperate with the United States in pooling resources to track foreign terrorists, he sows pandemonium among Western allies.  When you educate terrorists day after day with these and other revelations, they learn their lessons, and indeed collection against terrorist networks has fallen off sharply.  These are the hostile actions of a self-righteous megalomaniac—hostile to the United States, hostile to liberal democracy, hostile to the West—and it is impossible to avoid the conclusion that their results were intended.

That Snowden also started an overdue public discussion of a metadata collection program authorized by Congress and more than a dozen federal judges—but not understood by many Americans—cannot be denied.  But those disclosures comprise only a fraction of his program of stealing and broadcasting classified information that otherwise has nothing to do with the privacy and civil liberties of citizens of the United States and allied nations. . . .

In November 2013, at FedSoc's National Lawyers Convention, Brenner participated in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society

You can watch a video of the discussion here.

FedSoc Faculty Conference Hosts Panel on “Is IP Property or Government-Conferred Monopoly?”

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by Publius
Posted January 28, 2014, 5:39 PM

On Friday January 3, 2014, the Federalist Society opened its 16th Annual Faculty Conference with a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, served as the moderator.

The first panelist was David S. Olson, Associate Professor of Law at Boston College Law School, who began by noting that we have property rights for very good reasons, whether utilitarian or Natural Law: the world works best with such laws. Intellectual property (IP) is something different, however. True property has the property of rivalrousness: you can’t eat an apple that someone else is eating. It is a statement about physical reality. IP, by contrast, is not rivalrous. “If I come up with a new way to plough my crops, someone else can copy that on their land at the same time,” he said.

Defenders of IP, whether regarding patent or copyright law, claim that we will get fewer inventions if inventors do not have rights to exclude others from their inventions. Likewise for authors and their writings. There is a moral component to that argument, he claimed. It is not a matter of placing a tax on other users. There is a different mindset, however, if one takes a utilitarian perspective, as opposed to an argument from inherent rightness. In the former case, there would be an optimum level of IP protection, but the reality is that people create many positive externalities they can never reclaim. Typically we have not given IP protection to fashion and to natural phenomena (for example, discovering that a tree bark has an aspirin-like property). The question should always be: do we need to assign this particular right? If not, we should stop doing so.

Irina Manta, associate professor at Hofstra Law School, spoke next. She explained that she does not ground property rights in natural rights: Supporters of natural rights argue that the government must grant property rights yet she said the government does not own the right it is supposed to give. Rather, she said she sees property rules as maximizing social welfare. She stressed, however, that rhetoric does matter. When we liken IP to property in Congress or courts, more rights tend to be accorded. This is unfortunate since it contains an inaccurate understanding of non-IP property law. For instance, the doctrine that a man’s home is his castle has been modified over the years. We all agree there is a middle ground when it comes to property rights, she claimed. Nothing is achieved by making IP law more like property law or less like it. In her conclusion, she denied the claim that IP is nonrivalrous by offering the counterexample of trademarks in status goods: the value of owing a genuine Louis Vuitton bag is diminished if knockoffs are permitted.

Following Manta was Adam Mossoff, professor at George Mason University School of Law. He said his view was that IP is in fact a kind of property right. And it is so for both conceptual and normative reasons. As a preliminary matter he explained it is important to recognize that law can protect what people possess based on what those rights refer to: new values were secured as property rights as new kinds of things of value were created over the eons. For instance, the notion that property is not land per se but the disposition to use that land to the exclusion of other people. Other examples of new values are air rights, a water well (which is built), corporate forms of property (which we take for granted), and patents and inventions. IP is thus a legitimate example of the protection of values that have been created by individuals.

The final speaker was Gregory Dolin, Co-director of the Center for Medicine and Law at the University of Baltimore School of Law. He explained that his position falls between that of Manta and Mossoff but he disagrees with both. Beginning where Manta left off, he said he agreed that nomenclature matters in a visceral sense but what we should ultimately care about are the rules.  Courts assume foxes and whales can become property and thus apply certain sets of rules. Yet property is not a thing but a relation between individuals via legal rules. Calling it government privilege or property versus calling it IP does not matter.

He said that there do exist certain moral claims if IP is property. The classic assumption is that an owner of property has obtained the ownership by his labor at some point in the chain of possession. Suppose, for instance, that someone steals someone else’s Ph.D. dissertation. We think such copying is wrong even if there was no trespassing. There is no such moral implication, however, if we view IP as a matter government-conferred monopoly.

FedSoc Junior Faculty Workshops: Request for Proposals

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by Publius
Posted January 28, 2014, 11:10 AM

The Federalist Society's Faculty Division is pleased to announce its sponsorship of a new round of Junior Faculty Workshops.  These workshops are intended to provide a structured—but relatively informal—environment in which six or so faculty members from different law schools can gather to spend a day workshopping each others’ papers, followed by a group meal.  The workshops can focus on a particular subject area or cover a broad range of interests, depending on the organizer’s preference.

We envision workshop participants consisting primarily of junior tenure track faculty (defined as people who have been in tenure track positions less than seven years), but also encompassing fellowship recipients or doctoral candidates in appropriate cases.  A junior faculty member will be responsible for organizing and directing the workshop, and will receive a budget for the event.  Wherethe participants are in relatively close geographical proximity, the maximum budget will generally be $1,000.  Where some degree of air/rail travel and lodging will be necessary, we may increase the budget to as much as $3,000 to help defray travel costs. Organizers should plan to hold the workshop sometime in 2014.

We invite interested junior faculty members to submit a workshop proposal setting forth a topic, date, location, schedule, list of potential participants, and description of anticipated expenditures. Proposals should be sent via email to anthony.deardurff@fed-soc.org no later than Friday, March 7, 2014.

 

Journal Publishes Remarks from FedSoc Conference on Intellectual Diversity in Legal Academy

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by Publius
Posted January 27, 2014, 6:24 PM

Nicholas Rosenkranz, professor at Georgetown University Law Center, writes at the Volokh Conspiracy:

Back in April, I posted about an excellent conference hosted by the Harvard Federalist Society about intellectual diversity in the legal academy.  I am pleased to report that the Harvard Journal of Law & Public Policy has just published the remarks of several participants, including Michael Stokes Paulsen, George W. Dent Jr., Paul Campos and Sherif Girgis, all of which can be found here.  In my own remarks at the conference, I argued that, “because elite American faculties are so far to the left of the American judiciary, these faculties can be startlingly poor at analyzing the actual practice of American law.”  My brief remarks can be downloaded here.

Sen. Cruz Publishes Harvard Law Review Article on the Limits on the Treaty Power

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by Publius
Posted January 08, 2014, 5:15 PM

The latest edition of the Harvard Law Review features an article by Senator Ted Cruz (R-TX) on the limits of the treaty power. The article begins:

During Justice Sotomayor's Senate Judiciary Committee confirmation hearing, she rightly stated that "American law does not permit the use of foreign law or international law to interpret the Constitution." But she also correctly recognized that some U.S. laws rely upon certain international law sources. For instance, the Alien Tort Statute "allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law."

Treaties are probably the most prevalent mechanism by which domestic law adopts international law. A treaty is "primarily a compact between independent nations." Article II, Section 2 of the Constitution gives the President the power "to make Treaties, provided two thirds of the Senators present concur." And the Supremacy Clause provides that "treaties," like statutes, count as "the supreme law of the land." Some treaties "automatically have effect as domestic law" — these are called self-executing treaties. Other treaties "constitute international law commitments," but they "do not by themselves function as binding federal law" — these are called non-self-executing treaties.

Because treaties are the supreme law of the land, they could potentially become a vehicle for the federal government either to give away power to international actors or to accumulate power otherwise reserved for the states or individuals. Either possibility can be prevented if sufficient limits are placed on the federal government's authority to make and implement treaties. Some treaties, like the Arms Trade Treaty, the United Nations Convention on the Law of the Sea, and the Convention on the Rights of Persons with Disabilities, purport to let international actors set policy in areas already regulated by the federal government. These and other treaties could be used to infringe on state sovereignty. Many commentators are chomping at the bit for the federal government to make or implement treaties as a way of enacting laws that the Supreme Court has otherwise held as exceeding the federal government's powers. As Professor Nicholas Rosenkranz noted, scholars have even suggested that the International Covenant on Civil and Political Rights could resuscitate the Religious Freedom Restoration Act partially invalidated in City of Boerne v. Flores or the Violence Against Women Act partially invalidated in United States v. Morrison.

With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us.

At the same time, our courts must scrutinize the federal government's powers to make and implement treaties. Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal government's authority.

Luckily, the Roberts Court has signaled that it will recognize the limits on the federal government's treaty power. As Solicitor General of Texas, I had the privilege of arguing Medellín v. Texas, which recognized critical limits on the federal government's power to use a non-self-executing treaty to supersede state law. . . .

Senator Cruz delivered an address in November 2013 at the Federalist Society's Annual National Lawyers Convention. You can watch a video of his remarks here.

Tech Industry Watches Whether SCOTUS Will Take Up Limelight Patent Case

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by Publius
Posted January 07, 2014, 12:24 PM

The technology industry is watching to see whether, at its January 10th conference, the Supreme Court decides to hear Limelight Networks v. Akamai Technologies, a patent dispute that could fundamentally alter the law governing patents of methods. In early December, responding to the Court’s request, the Solicitor General recommended granting Limelight’s petition and denying a conditional cross-petition filed by Akamai.

Limelight started out as a typical fight between competitors. Akamai charged Limelight with infringement of its patent on a method for delivering video content to consumers via the Internet.

Two lower courts ruled for Limelight, which in its own process performed some but not all of Akamai’s steps. Its customers performed the other steps, a decoupling that courts had historically agreed did not constitute infringement.  But in en banc review, a one-vote majority of the Federal Circuit overturned the lower courts in what the Solicitor General later warned could lead to “a significant expansion of the scope of inducement liability (and a corresponding increase in burdensome litigation)….”

The case has drawn three amicus briefs, all primarily from the tech world.  All urged the Court to hear the case:

  • Google, Cisco Systems, Oracle, Red Hat, SAP America, Symantec, and Xilinx: If the Federal Circuit’s decision is allowed to stand, it would “exacerbate the growing problem of high-cost and abusive patent litigation.”
  • Altera Corporation, HTC Corporation, HTC America, Smugmug, and Weatherford International: The new precedent has “substantially impacted” the ability “to make reasoned business decisions.” Businesses “are left to speculate at their peril about how their products or services might be used by multiple third parties outside of an agency relationship.”
  • CTIA—The Wireless Association, Consumer Electronics Association, and MetroPCS Wireless:  Wireless service providers and makers of wireless devices “are now vulnerable to a host of potential patent infringement charges and lawsuits arising out of the combination of their own non-infringing—simply interconnecting—conduct with the non-infringing conduct of multiple third parties over which they exercise neither control nor authority. Indeed, in just the few short months since the Federal Circuit's decision, numerous district courts have permitted plaintiffs to amend their complaints to add inducement claims.”

Two newspaper editorial boards have also weighed in, both backing Limelight:

  • The Washington Times: The Federal Circuit’s ruling was “an example of how the patent system has lost sight of the constitutional principle that patents exist ‘to promote the Progress of Science and useful Arts.’” 
  • Investors Business Daily: “The inventors and innovators of the digital age, who routinely put together the software and hardware inventions of others for creative new uses, will be discouraged and deterred, knowing their work will end up unprotected….  Akamai's patented method itself, in fact, is composed of techniques invented by other firms.” ()

The Supreme Court will release its decision on Monday, January 13th.

Categories: Federalist Society

John McGinnins: Why the Federalist Society Matters

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by Publius
Posted January 06, 2014, 10:34 AM

John McGinnins, George C. Dix Professor in Constitutional Law at Northwestern University School of Law, comments at the Liberty Law blog:

I had the pleasure of attending the Federalist Society’s faculty convention in New York last weekend. I learned, as always, a great deal about issues, including those outside my field, like intellectual property. But it was also an occasion to recall why the Federalist Society is so important to the cause of law and liberty in the United States.

Lawyers, as Alexis de Tocqueville noted almost two centuries ago, play a crucial role in the political order of the United States. He observed that United States lacked an aristocracy, and lawyers filled that void, because they were experts in the democracy’s mode of governance.

When society reflects the spontaneous ordering of private law and a limited role for government, lawyers tend to be a force for property and legal stability. Under those circumstances, it is private law, after all, that provides much of their living. Thus, lawyers by and large at the beginning of our republic protected the constitutional structures that both promoted commerce and sustained the rights of property.

But since the rise of the modern regulatory state and social democracy, the role of lawyers has changed. They often act as technocrats and enablers of regulation and redistribution. The more a nation intervenes in economic affairs, the greater the slice of compliance costs and transfer payments lawyers can expect to receive. As a result, as a group lawyers no longer support property rights or even a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty it brings.

Of course, as individuals many lawyers hold ideals that are distinct from the general financial interests of their profession. But trade associations, like the ABA, will not provide a network to nurture these sentiments and harness these lawyers into a force for a stable rule of law and limited government. The Federalist Society performs this essential function, creating an organization that acts as a counterbalance to the natural ideological tendencies of the most important social class in our contemporary democratic society.

But the world is always changing with new issues that need analysis under the prism of well tested principles. The Federalist Society thus constantly offers forums, like the one I attended, for lawyers and law students to discuss the issues of the day both among themselves and with lawyers of opposing views. With its combination of organizational acumen and openness to debate, the Society has proved the most important voluntary association begun in the last quarter of the last century.

 

The Snowden Affair and Control of the Internet

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by Publius
Posted December 18, 2013, 4:17 PM

Vincent J. Vitkowsky, Chairman of FedSoc's International & National Security Law Practice Group, published a detailed commentary for Advisen on the Snowden affair's relation to control of the internet. It begins:

There is a serious conflict over future control of the Internet, as nations seek to influence its delivery mechanisms, protocols, economics, security, content, and governance. Until now, key functions have been managed through a multi-stakeholder approach, using technical organizations such as the Internet Corporation for Assigned Names and Numbers (ICANN), with oversight conducted by the US. But the last several years have seen a growing challenge to this system and the US role. Now a tipping point may have been reached. The public disclosures of the scope of the NSA surveillance programs have led to widespread international criticism, focusing and catalyzing the call for changes in Internet governance. The Internet is the most dynamic engine for economic growth in the world today, as well as the vital mechanism for dissemination of ideas. So the outcome of the conflict for control will have profoundly important commercial and political consequences. . . .

In November 2013, at FedSoc's National Lawyers Convention, Vitkowsky moderated a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Mr. Joel F. Brenner, Principal, Joel Brenner LLC and former National Counterintelligence Executive, former Inspector General and Senior Counsel, National Security Agency
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law

You can watch a video of the discussion here.

Online UChicago Law Review Symposium: Judge Robert H. Bork (1927-2012)

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by Publius
Posted December 18, 2013, 10:25 AM

The University of Chicago Law Review announces:

In recognition of the one-year anniversary of his passing on December 19, 2012, The University of Chicago Law Review Dialogue is proud to present an online symposium commemorating the Honorable Robert H. Bork. Judge Bork served as an Associate Editor for Volume 20 of The University of Chicago Law Review. The symposium features eight essays that discuss some of the judge's many contributions to the legal field over his distinguished career.

In 2007, as part of its 25th anniversary, the Federalist Society presented a full-day conference honoring Judge Bork and his contributions to the law. The conference featured a live conversation with Judge Bork, conducted by Judge Raymond Randolph, panel discussions on International Law, Law and Culture, Judicial Philosophy, and Antitrust Law. You can watch videos of the panels here.

Chief Judge Wood Dismisses Ethics Accusations Re Judge Diane Sykes’ Appearance at FedSoc Dinner

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by Publius
Posted December 11, 2013, 1:43 PM

Carrie Severino comments at Bench Memos:

Last month, liberal attack dogs Common Cause and Alliance for Justice convinced Representative Slaughter to join them in a baseless attack on Justice Thomas’s and Seventh Circuit Judge Diane Sykes’ ethics. The effort was a blatant hack job, so frivolous that it was recently rejected by the chief judge of the Seventh Circuit as just that. Chief Judge Diane Wood (a short-lister for each of President Obama’s Supreme Court nominations), dismissed the complaint as either “lack[ing] any factual foundation or . . . conclusively refuted by objective evidence.”

As Chief Judge Wood’s two-page dismissal indicates, the allegations were easily refuted. Representative Slaughter’s press release cited a provision in the federal judges’ code of conduct that forbids judges serving as “a speaker, a guest of honor, or featured on the program” of a fundraising event. But Justice Thomas and Judge Sykes could not possibly violate this provision by speaking at the Federalist Society dinner [see above video] because it is not a fundraising event. The event is not designed to raise money, has never been advertised as a fundraiser, and in fact costs more to put on than it brings in in ticket prices. 

These baseless accusations are all the more absurd when viewed in contrast to the American Constitution Society, a liberal group that aspires to replicate the Federalist Society’s success but from the opposite philosophical perspective. That organization also regularly has Supreme Court Justices speak at its conferences. Last year retired Justice John Paul Stevens spoke. The previous year it was (active) Justice Ruth Bader Ginsburg. The speaker list includes a host of other federal judges. And their sponsor list includes corporations and law firms, many of which are the same ones who have sponsored the Federalist Society’s conference. If speaking at an event with corporate or law-firm sponsors actually did violate ethical rules, it would implicate judges across the spectrum, not only Justice Thomas and Judge Sykes.

This crude personal attack is disappointing, both for its partisan nature and its reckless disregard of the absence of any factual basis for its harmful allegations against two federal judges. Unfortunately, at least one respectable media outlet parroted these accusations, lending them credibility. I trust they will put forth equal effort in rehabilitating the maligned judges.

Tom Goldstein and Charles Fried Survey the Court’s Docket at Harvard Law FedSoc Event

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by Publius
Posted November 27, 2013, 6:13 PM

According to Harvard Law School:

The cases being decided this term by the Supreme Court may not be "super-duper" ones, said SCOTUS Blog co-founder Tom Goldstein, but they nonetheless yield significant insight into the direction of the Court.

Goldstein, who is also one of the nation's leading Supreme Court litigants and teaches at HLS, joined Professor Charles Fried last week in discussing the Court's current docket. At the event, which was co-sponsored by the progressive American Constitution Society (ACS) and the conservative Federalist Society, Goldstein foresaw the slow, but steady march of Court conservatives towards the erosion of affirmative action and campaign finance laws, while Fried worried that the Court is dangerously close to adopting an impractical and anachronistic approach towards criminal justice and public safety issues.

"I think those of you who are conservative members of the Federalist Society should be really pleased with the way the law is going, and those of you who are members of the ACS should be the opposite," Goldstein said as an overview. . . .

1993 Religious Freedom Act Is at Heart of Contraception Case

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by Publius
Posted November 25, 2013, 3:31 PM

According to the Los Angeles Times:

When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution's protection for the "free exercise" of religion. It "would be courting anarchy" to permit "religious objectors" to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not "substantially burden a person's exercise of religion" unless it had a "compelling" reason to do so.

Now, that little-known law is at the center of a major "religious liberty" challenge to President Obama's health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees.

Christian employers have gone to court, citing the 1993 law and saying they have a sincere religious objection to providing "abortion causing" drugs such as the "morning after" pill. And they have won before the U.S. appeals courts in Denver and Chicago.

The appeals court judges relied on the Supreme Court's much-disputed Citizens United decision that said corporations have the same right as people to make political contributions; they concluded that "for-profit corporations" can be considered "persons" with religious beliefs.

"We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression," the 10th Circuit said in ruling for Hobby Lobby Inc., a nationwide chain of more than 500 crafts stores with 13,000 full-time employees. The company is owned by the Green family of Oklahoma City.

Obama administration lawyers appealed the Hobby Lobby case to the Supreme Court, calling the decision incorrect and unwise. The justices are likely to hear the case and may announce their decision to do so as soon as Tuesday.

"We are at a scary moment in our history if they say there is a constitutional right to shape benefits based on the religious beliefs of the owners," said Marci Hamilton, a Benjamin N. Cardozo School of Law professor and a critic of the religious freedom law. "Why isn't this discrimination against women based on gender and religion?"

If so, it will put a new spotlight on an old and recurring question: When and under what circumstances can people cite their religious beliefs to avoid complying with the law? And thanks to the 1993 law, it will give the court's conservatives, including Scalia, a chance to deal a blow to Obama's healthcare law. . . .

In November 2013, at the Federalist Society's National Lawyers Convention, Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit moderated a panel on Religious Liberties: Religious Liberty & Conflicting Moral Visions. Participating were:

  • Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
  • Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
  • Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
  • Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law

You can watch a video of the event here.

 

WSJ: Next GOP Pres. Should Line Up FedSoc Alumni for Judicial Nominations Like Planes for Takeoff

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by Publius
Posted November 22, 2013, 9:15 AM

The Wall Street Journal editorial board writes:

Today's Democrats have grown up in the Saul Alinsky tradition, and on Thursday they proved it with a partisan vote to break the Senate filibuster rule for confirming judges and executive-branch nominees. The new rules will empower the party's liberals for as long as they control the White House and Senate, but they will also set a precedent for conservatives to exploit in the future.

Majority Leader Harry Reid broke a GOP filibuster of a judicial nominee on a 52-48 vote. He was prodded by the Democratic Senate classes of 2006-2012, younger liberals in a hurry like Al Franken (Minnesota), Jeff Merkley (Oregon) and Jeanne Shaheen (New Hampshire). These are the same liberals who enjoyed a rare 60-vote supermajority in 2009-2010 when they rammed through ObamaCare without a single Republican vote. They view the minority as an inconvenience to be rolled.

It's true that Senators of both parties have misused the advice and consent power to make it harder for the executive branch to govern. But the great irony is that Democrats voted to end the practice of judicial filibusters that they pioneered when George W. Bush was President. As the minority from 2003-2005, Democrats demanded 60 votes to confirm executive-branch nominees like John Bolton for U.N. Ambassador.

For the first time they also insisted on 60 votes for judicial nominees Miguel Estrada, Janice Rogers Brown, Priscilla Owen, Carolyn Kuhl, Henry Saad, William Pryor, David McKeague, Richard Griffin, Charles Pickering and William Gerry Myers.

Only when Republicans threatened to break the filibuster themselves in 2005 did Democrats agree to allow a vote on some judges. But Mr. Bolton was still blocked, and when Democrats regained the majority in 2007 they began a new filibuster jag to block nominees of all sorts through the end of Mr. Bush's term. Yet now that Republicans are returning the favor, Democrats are up in arms.

The move shows how foolish Republicans like John McCain, Lindsey Graham and Orrin Hatch were to worry that if they broke the filibuster, Democrats would then do it too. Democrats did it anyway. The only way to deter bloody-minded Democratic behavior is to treat Democrats as they treat Republicans. Democrats sicced special prosecutors on GOP Presidents for years, but they gave up the independent-counsel statute only after Ken Starr investigated Bill Clinton.

The immediate result of Harry Reid's power play will be that President Obama has a freer hand to pursue his agenda through regulation and the courts. Democrats will now rush to pack the D.C. Circuit Court of Appeals in particular, adding three new judges over GOP objection to a court that is already underworked.

They will also confirm Mel Watt as the chief regulator for Fannie Mae and Freddie Mac.  Mr. Watt, who will have almost unlimited power as government conservator, will proceed to allow principal writedowns on underwater mortgages before the 2014 election. And he will begin to finance an "affordable housing trust fund" for liberal groups that dole out subsidies to Democratic voters and harass businesses with lawsuits.

Mr. Obama also hopes to limit successful legal challenges to his rule-by-regulation. The D.C. Circuit will now have more liberal judges to hear challenges to his unilateral climate-change power grab or his rewrite by fiat of the Affordable Care Act.

The silver lining is that the end of the nominee filibuster will work for conservatives too. The next time they hold the Senate and White House, Republicans should employ the same weapon. Democrats are pretending that they are only breaking the filibuster for lower-court nominees, not for the Supreme Court. They can dream on.

The next GOP President should line up Federalist Society alumni for judicial nominations like planes waiting to take off at O'Hare International Airport. Imagine two or three more Clarence Thomases on the High Court confirmed with 51 Senate votes. Planned Parenthood can send its regrets to Harry Reid. . . .

Wisconsin Gov. Scott Walker Jokes About Appointing Judge Diane Sykes to U.S. Supreme Court

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by Publius
Posted November 21, 2013, 6:01 PM

Daniel Bice reports for the Milwaukee Journal-Sentinel:

Gov. Scott Walker has spent the bulk of his book tour outlining a platform for a possible presidential bid in 2016 -- all the while gently dismissing any suggestion he is planning to run.

But Walker didn't mind joking about the possibility.

Speaking before the Federalist Society's 2013 National Lawyers Convention in Washington, D.C., Walker noted the presence of U.S. Court of Appeals Judge Diane Sykes at the event.

The first-term Republican governor pointed out that as a state lawmaker, he had supported Sykes' appointment to the state Supreme Court in 1999. Sykes garnered national attention for tossing softballs to U.S. Supreme Court Justice Clarence Thomas during an interview at the group's gala dinner last Thursday.

"Diane Sykes is here as well -- one of our favorite jurists," Walker said Friday at the Mayflower Hotel.

"If I ever got the chance to appoint you to something in the future, I'd be inclined to do that," he joked before being interrupted with laughter and then applause. "The rest of my staff just wilted with that comment."

Among others attending Walker's speech at the conservative legal group's convention were Milwaukee County Circuit Judge Rebecca Bradley; his chief legal counsel, Brian Hagedorn; and Andrew Hitt, assistant deputy secretary at the state Department of Administration.

Walker talks about Sykes at the six-minute mark of the video.

Recapping the Federalist Society’s 2013 National Lawyers Convention

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by Publius
Posted November 21, 2013, 3:02 PM

Asheesh Agarwal comments at Liberty Fund's Liberty Law blog:

This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.

One of the first prominent speakers, Senator Ted Cruz, discussed the Administration’s track record in the Supreme Court on the scope of executive power. A former law clerk to Chief Justice William Rehnquist and longtime member of the Federalist Society, Cruz highlighted nine cases in which the Administration unsuccessfully sought to expand the scope of executive power. In those nine cases, the Administration’s position lost unanimously, failing even to garner the votes of either of President Obama’s own nominees, Justices Kagan and Sotomayor. For instance, in United States v. Jones, the Administration sought to place a GPS tracking device on a suspected drug dealer’s car — without a warrant. In Sackett v. EPA, the Administration sought to deprive landowners of the right to challenge potential government fines as high as $75,000 per day. According to Cruz, these unanimous losses demonstrate that the Obama Administration has taken an overly aggressive view of executive and federal power. Cruz, who received a standing ovation, interspersed history and humor throughout his speech, sharing anecdotes about his time at the Supreme Court.

Another prospective presidential candidate, Wisconsin Governor Scott Walker, also received a warm reception. Coyly alluding to his presidential prospects, Walker praised current Seventh Circuit Judge Diana Sykes (who formerly sat on Wisconsin’s Supreme Court), and stated that he “would welcome the opportunity to appoint her to something else.” After describing Wisconsin’s many recount battles and legislative dramas, Walker devoted much of his talk to the judiciary. He explained both the process and criteria he used to select judges in Wisconsin. Walker tasked a panel of experts, headed by a prominent member of the Federalist Society, to create a list of judicial candidates who would satisfy three criteria: integrity, exceptional ability, and perhaps most importantly, an understanding of the proper role of the judiciary. Walker noted that, unlike some of his predecessors, he did not place the highest value on a prospective judge’s electability.

Justice Clarence Thomas provided the highlight of the convention. Speaking with Judge Sykes during an informal interview, Justice Thomas described his life and career in personal, sometimes moving terms. He discussed his early life in Savannah and initial desire to enter the seminary, his battles with racism, and struggles finding work after graduating law school from Yale. He heaped praise on his many friends and mentors, particularly Senator Danforth and Justice Scalia, while sadly stating that he felt like his alma mater had abandoned him. He touched only briefly on his judicial philosophy. He noted that his colleagues encourage him to write what he thinks, even if they disagree with him. He stated that he respects the principle of stare decisis, but “not enough to keep me from going to the Constitution” (this line received standing applause). Mostly, Thomas described his happiness with his job and his colleagues. If he harbors any bitterness from his contentious confirmation fight, or anything else, he showed no signs of it.

Tenth Circuit Judge Neil Gorsuch delivered the Barbara Olson memorial lecture. In a thoughtful, amusing address, Gorsuch analyzed the state of the legal profession and the practice of law. Quoting Bleak House, he expressed concern for the time and expense involved in discovery, especially e-discovery. He worried that the trend toward private mediation may deprive businesses of valuable precedents, and more generally, that the trend may show that the court system no longer works efficiently.

In addition to the big speeches, the convention also featured panel discussions on a range of interesting topics. . . .

You can videos of the entire convention here.

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