The BLT: The Blog of Legal Times

Morning Wrap

Supreme Finale: The Supreme Court recessed for the summer on Monday, with dramatic decisions on civil rights and financial regulation, and a fond farewell for retiring Justice David Souter, as we reported here and here. On Slate, election law blogger Rick Hasen also analyzes the Court's surprise action ordering reargument in a key campaign finance case.

Madoff Finale: Crooked financier Bernard Madoff will have 150 years in prison to contemplate his "evil" acts, as a New York federal judge described them Monday. Madoff faced his victims and apologized. New York Law Journal's report is here via law.com.

Jackson Legal Legacy: The grandmother of Michael Jackson's children moved quickly and successfully to take custody Monday. But the whereabouts and intentions of the mother are uncertain. USA TODAY reports.

Davis Case Still Pending: The Supreme Court recessed without acting on an appeal from Georgia death row inmate Troy Davis's appeal. His claims of innocence have gotten international attention, reports Bill Mears of CNN here.

Judge Dismisses Bagram Habeas Case

A federal judge today dismissed the habeas case of a detainee held at a U.S. military base in Afghanistan, finding that Congress had not acted unconstitutionally by stripping the court's ability to hear such cases.

The ruling comes three months after the same judge found that other prisoners at the Bagram Theater Internment Facility did have the right to challenge their status as enemy combatants. In those cases, the three men were non-Afghans who had been captured in other countries and brought to the prison, located just outside Kabul.

Judge John Bates of the U.S. District Court for the District of Columbia found that the men’s special circumstances entitled them to access American courts. He ruled that a fourth man, Haji Wazir, an Afghan citizen, did not have that right however, because his release could cause undue tension with Afghanistan’s government. The judge nonetheless held off on a final decision in the case in order to look at a separate set of constitutional issues.

That ruling came today. Wazir’s lawyers had argued that the Military Commissions Act of 2006, which banned federal courts from hearing habeas cases brought by detainees, violated the constitutional separation of powers by essentially telling judges how to decide cases that were already pending before them.

Bates found differently. Citing U.S. v. Klein, the judge ruled that Congress is allowed to pass statutes that affect the underlying law involved in a case, so long as they do not dictate specific factual findings or results to a court.

Shouting Fire: First Amendment Documentary Airs Tonight

Some of the First Amendment's many faces will be on display tonight on HBO (at 9 p.m., repeated through the week) in a must-see documentary that also features noted First Amendment lawyer Martin Garbus, partner at the New York firm Eaton & Van Winkle. It's called Shouting Fire: Stories from the Edge of Free Speech, and is directed and produced by his daughter Liz Garbus.

It's a dynamic look at the history of free speech in the last century, including the McCarthy era, Vietnam protests, and post-9/11 paranoia. But that history is interspersed with in-depth portraits of three controversial speakers of recent years: Ward Churchill, who was drummed out of his job as a professor at University of Colorado-Boulder after suggesting that the 9/11 attack on the World Trade Center was not a senseless act; Debbie Almontaser, forced to resign as principal of a New York City school after the New York Post twisted remarks she had made about the meaning of "intifada"; and California high school student Chase Harper, who was suspended for wearing a t-shirt with the message, "Homosexuality is shameful."

The portraits were sympathetic but thought-provoking. During a panel discussion following a preview of the documentary at the Newseum earlier this month, Paul Smith of Jenner & Block offered an alternate view of the Chase Harper episode as possibly part of a hostile environment for gay students. An audience member also noted that in the Almontaser case, the New York Post was a First Amendment actor too. 

The father-daughter connection makes for an interesting dynamic, seen in intermittent commentary by the elder Garbus during the documentary. The fearless Martin Garbus, who has represented the likes of Lenny Bruce, Daniel Ellsberg, and Don Imus, mellows in front of a camera wielded by his daughter.

When she asks him why Almontaser, the banished New York City principal, can't sue the New York Post for libel for its misleading stories that led her to resign, Garbus says he looked into it and found Almontaser had no legal remedy, given the strong protections afforded the news media. "Is that OK?" she asks incredulously. With resignation, the father says, "Under the law, it's OK."

In a final poignant moment, Liz Garbus asks her father on camera what lessons about freedom of speech he wanted to teach her as a child. "If you don't fight for it every day, you're going to lose it," Garbus said without hesitation. "And don't let the fucking guys win." 

Sessions: Ricci Case Strengthens Civil Rights

The top Republican on the Senate Judiciary Committee is praising the Supreme Court's decision today in Ricci v. DeStefano, echoing the majority's opinion that the City of New Haven acted illegally.

"The Court's opinion is important because it recognizes that our civil rights law's prohibition on racial discrimination must be applied evenhandedly," Sen. Jeff Sessions (R-Ala.) said in a statement. "The City’s action to deny promotion to these 18 firefighters after they had taken and passed an objective exam, fairly created and administered, amounted to reverse discrimination against the firefighters, in violation of federal law."

Earlier, Judiciary Committee Chairman Patrick Leahy (D-Vt.) said that the ruling will weaken attempts to fight workplace discrimination. In a conference call with reporters, Sen. Chuck Schumer (D-N.Y.), a member of the Judiciary Committee, said it was too early to say if Congress should try to amend Title VII of the Civil Rights Act to counteract the Court's ruling in Ricci.

Sessions, in his statement, added that the Ricci ruling "will only raise more questions" about Supreme Court nominee Sonia Sotomayor, who was part of the three-judge panel that considered the case in the U.S. Court of Appeals for the 2nd Circuit.

"Every citizen has a right to have his or her case heard by a judge who will rule on the laws, the facts, and the Constitution — and not play favorites," Sessions said. "This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and political views should influence a judge’s decision. That theory is a breathtaking departure from the proper role of the American judge and will clearly be the subject of questioning at the upcoming hearing.”

Supreme Court Shuffles Circuit Assignments

On its busy final day before recessing for the summer, the Supreme Court has just issued orders including new circuit assignments for the justices. The new lineup was needed because Justice David Souter's retirement leaves, as of tomorrow, an eight-member court until his replacement is seated. Each justice is assigned one or more circuits to receive and handle emergency applications and other matters from those areas.

As we predicted here recently (second item,) Justice Souter's 1st and 3rd circuits will be given, at least temporarily, to justices who once sat on those circuits -- Stephen Breyer gets the 1st, and Samuel Alito Jr. will handle the 3rd. Alito also will continue to handle matters from the 8th, and Breyer will retain the 10th as well.  Justices usually don't get their "home circuit" when they first join the Court, but after a few years into their tenure, they often gravitate there (for example Anthony Kennedy now handles the 9th, where he sat, and Clarence Thomas has the 11th, where he grew up.) If that trend continues, Breyer may keep the 1st and Alito the 3rd even after a new justice is seated. Nominee Sonia Sotomayor, if confirmed, then would probably get the 8th or 10th -- or another circuit if other justices want a change of venue.

The new assignments can be found at page four of this document.

Group Targets Bar Licenses for Lawyers Involved in 'Torture Memos'

A group calling itself Velvet Revolution in May filed a dozen bar complaints against former and current government lawyers who had some role in signing off on detainee interrogation tactics that critics say amount to torture.

Velvet Revolution didn’t use a press release to announce the filing of three more ethics complaints, including one against CIA Acting General Counsel John Rizzo. In front of TV cameras and a room full of journalists, Velvet Revolution made its pitch at the National Press Club.

Civil rights lawyer, singer and poet Shahid Buttar, one of three speakers today, said the “court of public opinion” is the target audience considering the inactivity on the part of the Obama administration and Congress to punish government lawyers who reviewed harsh interrogation tactics.

Bruce Fein, a former Justice Department lawyer under the Reagan administration, urged Congress to “step up to the plate” and pursue full and open hearings regarding the so-called torture memos. The Justice Department Office of Professional Responsibility is preparing to release its own report on the memos. Fein, a former associate deputy attorney general, said the executive branch should not be allowed to investigate itself and have that be the final word.

Velvet Revolution filed ethics complaints with the D.C. Bar against Rizzo and Jonathan Fredman, former associate general counsel at the Central Intelligence Agency who has been assigned to the Office of the Director of National Intelligence. Click here for the complaints. A third complaint, against former CIA General Counsel Scott Muller, is expected to be filed Tuesday. Muller is now a partner in the New York offices of Davis Polk & Wardwell, where he practices in the litigation and global compliance groups.

The complaints allege Rizzo, Fredman and Muller advocated “immoral and unethical ‘extended’ or ‘enhanced’ interrogation techniques … that resulted in clear violations of U.S. and international law. “ Rizzo, admitted to the D.C. Bar in 1973, has no record of disciplinary history. Rizzo was not immediately reached for comment today. Fredman, a member of the D.C. Bar since 1988, declined to comment. Fredman has no prior record of disciplinary action.

Madoff Gets 150 Years

The Am Law Daily reports that Bernie Madoff has been sentenced to 150 years in prison. For some of the counts, Judge Denny Chin gave the convicted financier 20 years, the maximum amount allowable under the law.

Chin deferred the question of restitution for 90 days.

Chin said from the bench that he didn't agree with the position of Madoff's lead counsel, Ira Sorkin, that victims were seeking "mob justice." Chin called Madoff's fraud "unprecedented" by any monetary measure.

The Am Law Daily has more here.

Supreme Court's Odd Not-so-Final Day

UPDATE: For detailed coverage of today's action including the firefighter decision and the national bank case, check The National Law Journal site here. 

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A feeling of finality blended  with a sense of unfinished business this morning at the Supreme Court's final sitting of the current term. The Court issued two of its three remaining decisions -- Ricci v. DeStefano, the New Haven firefighter case, and Cuomo v. Clearing House Association, on the regulation of national banks. And It bade a poignant farewell to Justice David Souter on the occasion of his retirement from the Court after 19 years.

But in the rarest of moves, the Court also scheduled its third remaining case for re-argument Sept. 9. The case is Citizens United v. Federal Election Commission, on whether the so-called "Hillary movie," a movie critique of then-candidate Hillary Clinton, violated campaign finance laws. Ordinarily when the Court can't resolve one of its cases, it will reschedule it for argument in the fall, meaning after the first Monday in October, when it resumes hearing oral argument for the new term. Today's action puts the case on the docket in an odd limbo period during the Court's usual summer recess. One possible explanation has to to with the Court's strong tradition of completing all of one term's work before the next term begins. Perhaps the justices hope that by scheduling new arguments for Sept. 9, they can issue a decision by the time the current term ends just before Oct. 5.

The big news from the morning was of course the Ricci decision, in which a 5-4 majority, led by swing justice Anthony Kennedy, found that New Haven's decision to discard the results of a firefighters' promotion exam violated Title VII of the Civil Rights Act because it amounts to discrimination on the basis of race. No African-American applicants had passed the test, and the city argued that it tossed out the exam, ironically enough, out of fear that it would be sued by the African-American applicants for violating Title VII on a "disparate impact" theory.

More Reaction to Ricci Decision

Barbara Arnwine, executive director of the liberal Lawyers’ Committee for Civil Rights Under Law: "We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964. Like Justice Ginsburg, we anticipate that the decision 'will not have staying power.'"

Ed Whelan, on the conservative National Review Online: "Judge Sotomayor thought it appropriate to use an unpublished summary order to dispose of the claims of the New Haven firefighters in Ricci v. DeStefano. Today the Supreme Court issued 93 pages of opinions in the case that Sotomayor acted to bury. Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven."

Nan Aron, president of the liberal Alliance for Justice: “Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination. The majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”

Jay Sekulow, chief counsel of the conservative American Center for Law and Justice: "This Supreme Court decision - which overturns Judge Sotomayor's legal position - puts the nominee's views on judicial activism front and center at the upcoming confirmation hearings. How does Judge Sotomayor view the Constitution, the rule of law? What's the proper role of the judiciary when it comes to issues like race - is it to set public policy, or uphold the rule of law that is gender and racially neutral? These are important questions that now become even more significant in light of today's decision by the Supreme Court. We look forward to hearing from Judge Sotomayor on this issue and others in the days ahead."

The liberal Center for American Progress: "Although today's decision rolls back 25 years of lower court precedent, the Supreme Court's unique position as the nation's highest Court empowers it to strike down well-established precedents that lower court judges are required to follow. Unfortunately, some on the right will undoubtedly use today's decision as an opportunity to score political points against President Barack Obama and his nominee to the Supreme Court, Judge Sonia Sotomayor. These attacks have no merit. Unlike the Supreme Court, Judge Sotomayor was bound by Second Circuit precedent when she voted to reject Frank Ricci's discrimination claim."

Leahy: Ricci Decision Weakens Civil Rights Protections

The chairman of the Senate Judiciary Committee, which often has jurisdiction over civil rights issues, is warning that today's Ricci decision could have a negative impact on attempts to fight workplace discrimination.

Sen. Patrick Leahy (D-Vt.) released a statement saying that the majority's decision "interprets the critical protections of Title VII in a way never intended by Congress when it passed this landmark law to prevent workplace discrimination more than 40 years ago."

In his opinion for the Court, Justice Anthony Kennedy wrote that the City of New Haven failed to "demonstrate a strong basis in evidence" that it would have lost a suit that minority firefighters could have brought if the city had not thrown out the results of a promotions exam.

Leahy added: "It is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces."

Rep. Lamar Smith (R-Texas), the top Republican on the House Judiciary Committee, praised the decision, calling New Haven's actions discriminatory.

“No individual should be denied a promotion simply based on the color of their skin," Smith said in a statement. "The Second Circuit wrongly upheld a decision that supports discrimination by the government. The Supreme Court today reminded all courts and governments that equal justice under the law means refusing to tip the scale in favor of one race over another."