The BLT: The Blog of Legal Times

Justice Ginsburg: 'Optimistic' About Women in the Courts

As a new judge on the U.S. Court of Appeals for the D.C. Circuit in the early 1980s, U.S. Supreme Court Justice Ruth Bader Ginsburg recalled asking a question during oral arguments early in her tenure. The lawyer replied, "Well, Judge Wald...," confusing her with the only other woman on the court at the time, now-retired Judge Patricia Wald.

"The idea of two was too much to contemplate," Ginsburg said, earning laughs as she told the story during a panel discussion yesterday on women and the District of Columbia's federal courts. She added she was also referred to as "Justice O'Connor" after joining the Supreme Court in 1993, mixing her up with now-retired Justice Sandra Day O'Connor.

Ginsburg said the growing number of women judges in courts across the country today, notably her fellow Supreme Court Justices Elena Kagan and Sonia Sotomayor, made her "tremendously optimistic" about the future. "We are no longer one-at-a-time curiosities," she said, adding that having multiple women on the Supreme Court was "exhilarating" and offered "the right picture for the children who troop in and out."

Former DOJ, Congressional Lawyer Joins Wilmer

The lawyer who led the U.S. Justice Department's policy shop at the end of the George W. Bush administration and advised Republicans on Justice Sonia Sotomayor's nomination is back in Washington.

Elisebeth Cook is working as a counsel at Wilmer Cutler Pickering Hale and Dorr, focusing on civil litigation and legal policy, among other areas. She was previously a partner at Freeborn & Peters in Chicago, where she moved two years ago after working on Sotomayor’s nomination for the Supreme Court.

Cook said she came back to Washington after her husband got a promotion. She’s planning to work on an array of matters at Wilmer. “That’s one of things I’m really looking forward to here — they’ve got folks who are great at everything, so it allows me to have a broad-based practice again,” she said.

She started at Wilmer in late June. The move was reported today by Main Justice.

In 2009, she went to work for Republicans on the Senate Judiciary Committee just as President Barack Obama nominated Sotomayor for the seat then held by Justice David Souter. She served as the Republican staff’s chief counsel on the nomination.

Cook joined DOJ’s Office of Legal Policy in 2005, and three years later, the Senate confirmed her as the assistant attorney general in charge of the office, which advises on legislation, vets judicial nominees and works on other policy matters. She’s a former associate at the Washington litigation boutique Cooper & Kirk and a former clerk to Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit.

In December, Obama nominated her for a vacancy on the Privacy and Civil Liberties Oversight Board, which advises the administration on privacy issues. Her nomination is pending.

White House Counsel Brings in New Staff

The office of the White House counsel has undergone a rapid changeover during the weeks since Kathryn Ruemmler took over as President Barack Obama's top lawyer.

The latest hire is Leslie Kiernan, who started on Monday as a deputy counsel to the president. Kiernan was a longtime partner at Zuckerman Spaeder who focused on white-collar defense and congressional investigations, including representing Rep. Charles Rangel (D-N.Y.) during most of a lengthy House ethics probe. In 2009, she did some outside work for Obama by interviewing Justice Sonia Sotomayor prior to her Supreme Court nomination.

Kiernan is one of three deputy counsel reporting to Ruemmler. The other two are Kimberley Harris, a former Davis Polk & Wardwell partner who most recently was an associate counsel to the president, and Avril Haines, who first joined the White House counsel and National Security Council staffs last year.

Also recently added to the office’s senior staff are Steven Croley, who joins from Obama’s domestic policy office, and Chris Kang, who was on Obama’s legislative affairs staff and will now be in charge of judicial nominations. Both have the title of senior counsel.

The president’s legal shop has been in transition since June, when Robert Bauer said he would step down as White House counsel so he could return to Perkins Coie and advise Obama’s reelection campaign. Ruemmler was Bauer’s top deputy.

Ruemmler said she looked for a broad array of experiences while assembling her new staff — lawyers who have spent time working in international law, criminal matters, ethics and administrative law.

“What you can’t do in this job is you can’t really anticipate what’s going to come at you, so we have to be prepared for a variety of scenarios, and I feel terrific about how prepared we are,” Ruemmler said in a brief telephone interview today.

The White House Counsel’s Office has been pulled recently into several highly visible debates. Ruemmler has traded letters with House Republicans over the rules for using the White House for campaign activities, and her office advised Obama on the possible use of the 14th Amendment to bypass the statutory debt limit. Before he left, Bauer advised Obama on the legality of continued operations in Libya without congressional authorization.

White House Counsel Returns to Private Practice

Updated at 1:33 p.m.

Robert Bauer is stepping down as President Barack Obama's counsel, returning to his old job at Perkins Coie and opening the door for Obama's third counsel in three years.

Kathryn Ruemmler, who has served as Bauer's principal deputy, will take over the top job, according to a White House news release announcing the change today. The switch will take effect at the end of the month.

The White House counsel is typically one of a president’s top advisers. The office runs the process for selecting judicial nominees, leads the response to congressional investigations, drafts potential executive orders and defends the presidency’s constitutional powers. It touches on subjects as varied as where to try the suspected Sept. 11 plotter Khalid Sheikh Mohammed to liability for last year’s Gulf of Mexico oil spill.

Bauer’s departure coincides with the ramping up of Obama’s reelection campaign. As the head of the election law practice at Perkins Coie, Bauer was the president’s chief campaign lawyer in 2008 and he has been general counsel to the Democratic National Committee. He will return to those roles, the news release said.

“I think Bob Bauer has wanted to leave for a long time. The job is exhausting and relentless,” said Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr who was deputy attorney general during the Clinton administration. Gorelick said a change might have come sooner, but “it has taken awhile for the president to decide on his successor and to make plans for Bob’s transition back to the private sector and to the campaign.”

Bauer kept a low profile, as others in his position have. In one of his only public appearances, he spoke to the liberal American Constitution Society in February about ways to speed up the confirmation process for judicial nominees.

2nd Circuit Is Back in Democrats' Hands

Though President Barack Obama lags behind his predecessor, George W. Bush, in nominating judges and getting them confirmed, he may take consolation in solidifying Democratic holds on a handful of appellate courts.

The U.S. Court of Appeals for the 2nd Circuit again has a majority of active judges appointed by Democratic presidents, after the Senate confirmed Raymond Lohier Jr. on Sunday. The New York-based court has often had a Democratic majority, but recent retirements had created a 5-5 split. Lohier, an assistant U.S. attorney who worked on the Ponzi scheme cases of Marc Dreier and Bernard Madoff, will take the seat previously held by Justice Sonia Sotomayor.

Another weekend confirmation increased the Democratic margin on the 4th Circuit. The Richmond-based court, which for decades had a conservative reputation, will have a 9-5 Democratic majority with the confirmation of Albert Diaz, a North Carolina state judge and former U.S. military judge.

The partisan margin on appellate courts can be especially important for cases that go en banc, allowing a majority of a court’s active judges to reverse a panel decision. There can also be an impact on the make-up of panels, but that’s less clear because many judges on senior status still hear cases.

The Senate confirmed Lohier on a 92-0 vote and Diaz on a voice vote. There are 26 other Obama judicial nominees awaiting final votes, and senators may confirm some of them this week.

Two years into Bush's presidency, the Senate had confirmed 83 of his nominees for district courts and 17 for circuit courts, according to Federal Judicial Center records. Obama stands at 40 for district courts and 13 for circuit courts.

Federal Circuit Pick Discloses Finances

Jimmie Reyna, who's been nominated to the U.S. Court of Appeals for the Federal Circuit, took home about $340,000 last year as head of the international trade group at Williams Mullen.

Like other federal judicial nominees, Reyna (pictured at right) was required to disclose his recent income and other finances as part of the U.S. Senate confirmation process. President Barack Obama nominated Reyna last month to one of three vacancies on the Washington-based Federal Circuit.

Reyna, who works in Williams Mullen's Washington office, specializes in international trade, customs and trade regulation related to Latin America. According to his 38-page answer to a Senate questionnaire, he’s frequently appeared before the U.S. Court of International Trade, which falls within the Federal Circuit’s jurisdiction.

His partnership distribution last year was $340,220, according to his financial disclosure report. In 2008, it was $331,703. He also reported at least $15,000 in rental income from a property in Montgomery County, Md., during the period from Jan. 1, 2009, through Aug. 31, 2010.

Reyna reported a household net worth of $1.9 million, with assets including a $750,000 vacation home.

His answer to one Senate question says that his nomination started with a recommendation from the Hispanic National Bar Association, which sent a letter to Obama and Attorney General Eric Holder Jr. The association frequently recommends people for judicial vacancies, and Reyna was its national president in 2006-2007. He’s continued to be involved with the group, signing a statement (PDF) last year with other past presidents in support of the confirmation of Justice Sonia Sotomayor.

Obama Appoints Lawyer Once Caught Up in Spying Flap

President Barack Obama took advantage of the congressional break Thursday and made four recess appointments, including sending a Washington lawyer off as an ambassador 12 years after she was first nominated to go overseas.

Mari Carmen Aponte was nominated for ambassador to the Dominican Republic in 1998, but she withdrew amid accusations that Cuban intelligence officials had tried to recruit her as a spy. The late Sen. Jesse Helms (R-N.C.), then chairman of the Senate Foreign Relations Committee, had planned to question her about the matter, according to reports at the time. Later, the FBI cleared Aponte for government service, The Miami Herald reported in 1999.

In December 2009, Obama nominated her again, this time for ambassador to El Salvador, and she won the backing of the Senate Foreign Relations Committee four months later. But she continued to draw criticism from conservatives. They cited the earlier controversy and her work for Hispanic organizations such as the National Council of La Raza.

In appointing Aponte and three others while the Senate is away, Obama said in a statement that senators should “stop playing politics with our highly qualified nominees, and fulfill their responsibilities of advice and consent.”

Aponte is a former member of the D.C. Judicial Nomination Commission, which recommends nominees for D.C. Superior Court and for U.S. attorney, and she is a former name partner at what was one of the area’s most successful minority-run law firms, Alexander, Aponte & Marks. She left the firm in 1996 to raise money for President Bill Clinton and to work in the Hispanic community. The law firm filed for bankruptcy in April 1997 and dissolved.

From 2001 to 2004, Aponte was executive director of the Puerto Rican Federal Affairs Administration, an agency of the Puerto Rican government, according to her White House biography. She is now a solo practitioner and consultant. A woman who answered the phone at Aponte’s law office in Washington said Aponte was not available for comment.

Aponte contributed $2,300 to Obama’s campaign in November 2008, after having given $1,000 to Hillary Clinton’s presidential campaign in February 2008, according to the Center for Responsive Politics. She is not listed among Obama’s 2008 major fundraisers.

She has served on the boards of the National Council of La Raza, the Puerto Rican Legal Defense and Education Fund, and the University of the District of Columbia. U.S. Supreme Court Justice Sonia Sotomayor also served on the board of the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF, prompting some criticism from Republicans during her confirmation process in 2009.

White House Pessimistic on GOP Support for Kagan

President Barack Obama's top political strategist acknowledged today the administration is facing an uphill battle in its effort to win Republican votes for Supreme Court nominee Elena Kagan, but he said that doesn't mean Kagan will stop trying.

David Axelrod, who advised Obama’s presidential campaign before becoming a White House senior adviser, spoke with reporters on a conference call. He cited the hyper-partisanship in Congress and the upcoming midterm elections as among the reasons that Republican votes to confirm Kagan will be hard to come by.

“There’s going to be enormous political pressure to line up on a partisan basis,” Axelrod said, adding that he hopes senators of both parties will ignore that pressure.

He noted that several prominent Republican lawyers, including former solicitors general Paul Clement and Theodore Olson, have endorsed Kagan. He also said Kagan is getting ready for her confirmation hearing as if there are votes up for grabs. The hearing begins Monday before the Senate Judiciary Committee.

“On the merits, we think that this should be an easy decision for the committee and for the Senate. We also live in an extraordinarily polarized political climate, and therefore we are preparing to make a vigorous case,” he said.

The Judiciary Committee has 12 Democrats and seven Republicans, one of whom, Sen. Lindsey Graham (R-S.C.), voted in favor of Justice Sonia Sotomayor. In the full Senate, eight Republicans voted to confirm Sotomayor. Seven Republicans voted last year to confirm Kagan as solicitor general.

One analysis by political scientists of Senate roll call votes shows that the Senate is more polarized by party than it has been since the 19th Century. The increase has been steady and steep since the 1970s.

Axelrod and White House Counsel Robert Bauer, who was also on the call, declined to provide details about Kagan’s preparation except to say she has spent multiple hours a day on it. “We have been going about the business you’d expect of getting ready for the hearings,” Bauer said. “I would describe it as appropriate for the occasion.”

Dellinger: Kagan is no Souter

Former acting solicitor general Walter Dellinger said today that Elena Kagan's work for civil rights and Democratic icons should alleviate any concerns about her among liberals.

Dellinger, speaking at a panel sponsored by the liberal American Constitution Society, was asked by moderator Amanda Frost about the criticism that Kagan’s views are largely unknown. Dellinger, chair of the appellate practice at O’Melveny & Myers, said that Kagan’s no stealth candidate, as the largely unknown David Souter was in 1990.

Kagan has some big names among her former bosses, Dellinger noted. She clerked for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit and for Justice Thurgood Marshall. From 1995 to 1999, she worked in President Bill Clinton’s White House.

“That certainly tells you a lot about what her instincts are about social and political issues,” Dellinger said, after rattling off Kagan’s résumé.

Souter, by contrast, had spent his entire legal career in New Hampshire prior to his Supreme Court nomination. He was confirmed to the 1st Circuit shortly before his elevation.

Wilmer Cutler Pickering Hale and Dorr counsel Rachel Brand, another panelist, warned against reading too much into Kagan’s employers. “I actually don’t agree that whom one clerked for has any bearing on what one’s views are,” said Brand, a former clerk to Justice Anthony Kennedy who helped shepherd Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. to confirmation.

Brand predicted that, when Kagan goes before the Senate Judiciary Committee for her hearing in three weeks, she will disavow President Barack Obama’s view about the role of empathy in judging. Justice Sonia Sotomayor disavowed Obama’s view during her hearing last year.

“Politically speaking, it will be hard for her not to reject it because, if she doesn’t, then she’ll look more liberal than Sotomayor,” Brand said.

Senate Sets Aside $300K for Kagan Hearing

The Senate Judiciary Committee has a little extra money to spend for Supreme Court nominee Elena Kagan's confirmation hearing.

A committee aide said today that $300,000 in additional funding has been approved to cover the costs of the hearing and anything else that comes up during the confirmation process. The amount will be split between the committee’s Democratic and Republican staffs to cover expenses like transcription, sign-language interpreters, stationary, TV rentals, and temporary staff to guide crowds of tourists.

The budge is half what was allocated a year ago for Justice Sonia Sotomayor’s confirmation hearing. The aide said some of last year’s budget went unspent.