Archive for the ‘Judiciary’ Category

"Sotomayor & Associates" Under Senate Investigation ( A preview of 6 potential issues)

I was called yesterday by a member of the Senate Judiciary Committee’s minority’s legal staff regarding my postings on “Sotomayor & Associates” and potential ethics issues, and the subsequent New York Times article regarding the firm.

It probably comes as no surprise that Judge Sonia Sotomayor’s small, solo practice is being investigated. The committee is not, after all, a potted plant. And this little law firm that Judge Sotomayor ran out of her Brooklyn home from 1983-1986 was unknown to the world until she submitted answers to an extensive questionnaire on June 4th.

What follows are the five issues that I believe they are exploring, based upon my conversation (plus one more from TaxProf), as well as some thoughts on why these items may well be the focus of some questions despite other matters being significantly more important:

1. Was she permitted by the District Attorney’s office to have a side practice while still an ADA? In the Times article, long-time New York DA Robert Morgenthau said yes, though others have said no.

2. Did her new firm Pavia & Harcourt permit its lawyers to have an outside practice? As per the Times:

“It is news to me,” Mr. Pavia said. He said she likely cleared the outside work with her direct supervisor, who is now dead.

3. Did Judge Sotomayor run her private clients’ matters through the conflicts department of the new firm (or of the DA’s office, while she was still there)? Even a simple house closing with a mortgage could conceivably be an issue if the DA or the firm had matters regarding the lending institution. A conflict check might be needed. While her direct supervisor at Pavia may have passed on, one would assume there would be a record of potential conflicts submissions if the firm was of any great size at the time.

4. Sotomayor & Associates was a clearly misleading name since there were no associates. Will this matter? If she never had stationery, and simply put the name on her tax returns as the NYT article suggests, it is likely moot. But if she did have stationary of any kind, it is an issue of minor interest. It’s a minor interest, of course, only if she admits to having screwed up. But she’ll get kicked around but good if she had letterhead and tries to claim (as the White House has suggested) that the ethics opinion forbidding such conduct was only “advisory.”

5. Was Sotomayor & Associates registered with New York’s Office of Court Administration? This is a mandatory periodic filing for all attorneys in the state. The Times wrote the following on the subject, but I believe they were wrong on the requirement:

She never incorporated Sotomayor & Associates or registered it as a business in Manhattan or Brooklyn, where she then lived, according to public records, though she was not required to do so.

In fact, it appears that attorneys were required to register with the Office of Court Administration, unless there was a rule change during those years. The registration form used today requires the name and addresses (plural on the form) of the law offices be given to our court administrators every two years. It reads as follows:

(e) The registration statement shall be on a form provided by the Chief Administrator and shall include the following information, attested to by affirmation:

(1) name of attorney; (2) date of birth; (3) name when admitted to the bar; (4) law school from which degree granted; (5) year admitted to the bar; (6) judicial department of admission to the bar; (7) office addresses (including department); (8) home address; (9) business telephone number; and (10) social security number.

Is there a difference between the forms used today and those used back then? Yes. Now there is more information required. But the requirement for all addresses is apparently the same.

How do I know what the mid-80′s rule was? Because I pulled out my own registration form, which has an effective date of January 1, 1986. I saved everything regarding my admission because my bar exam results from the summer of 1985 had been infamously lost, making me a tad neurotic on the subject.

So unless there was a change in that particular rule from 1983 to 1986 — and this is possible since my form was dated 1/86 indicating that something changed; you can see the back of the form here: /OCA-Reg-Form1986.pdf — Judge Sotomayor messed up her registration requirements. What does that mean? Here you go:

Failure by any attorney to comply with the provisions of this section shall result in referral for disciplinary action by the Appellate Division of the Supreme Court pursuant to section 90 of the Judiciary Law.

It therefore seems possible, unless there was a change in the rules from 1983-1986, that Judge Sotomayor was practicing law out of her home without being properly registered there. While that would be wrong, it isn’t a particularly big deal if she was registered elsewhere and her registration fee paid, as was no doubt the case. You need to do a helluva lot more than that to get in trouble.

But Judge Sotomayor should nevertheless be prepared to answer that question about the lack of proper registration. This is especially true since the Times article appears to have made an error regarding the necessity of registration. I suspect that error was based on information that came from the White House or the expert they retained to review the whole Sotomayor & Associates thing. (Alternatively, I’m wrong and there was a change in that narrow window of time.)

We have, therefore, a smattering of small issues. But small errors can become bigger ones when people try to fight them instead of simply acknowledging obvious mistakes. Given the lousy defense previously offered from the White House’s designated expert on the subject of “& Associates,” there is reason to be concerned.

So why is her moonlighting solo practice important? Because her extensive legal background is, from the standpoint of most of the Senators’ constituents, a morass of legal nuances that lawyers love to debate but which the rest of the public is generally ill-equipped to quickly digest (summary here). But easy ethical issues like those mentioned above work well in a televised setting. And that makes it fodder for high-profile hearings where camera-hungry politicians hope to poke and prod and score the best quotes for the evening news.

In sum, Judge Sotomayor should be prepared to use the phrase, “I messed up,” instead of “There was no controlling legal authority” to avoid these issues. And if she is as “wise” as she says she is, that is what she will do.
————————–
Elsewhere is item #6: At Paul Caron‘s TaxProf, guest blogger Linda Galler speculates that the law practice might have simply existed so that a home office could be written off on the tax returns.

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

why eric turkewitz still matters
with regard to the issue of giving credit for discovering the “sotomeyor & associates” issue, eric turkewitz comments: something might be in the public domain, but it if is buried in a box of other documents, someone still has to go
posted by Mark Draughn @ July 09, 2009 11:48 AM

Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name


It’s been bugging me since I saw it in the New York Times this morning: Sonia Sotomayor gave a lousy defense to an ethics charge over the name of her solo law practice, “Sotomayor & Associates.”

To backtrack a bit, she had a home office that overlapped her tenures at the District Attorney’s office and her stint at Pavin & Harcourt back in 1983-1986. Despite it being a solo practice, she called it “Sotomayor & Associates,” which is misleading since the Times has now confirmed what I had guessed at a month ago: That there were no actual associates.

Here is the defense, as laid out by an expert that the White House apparently retained after my posting appeared: The authority for prohibiting the misleading firm name was merely “advisory.”

That defense is — as defenses go when you are awaiting confirmation to the highest court in the land — just awful. I mean not just a little bit bad, but truly wretched to the point of embarrassing. From the Times article:

White House officials disagreed that the use of the name was a misstep, and they offered a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York.

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications,” he wrote in an e-mail message. “In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

After I wrote my initial post just hours after Judge Sotomayor released her questionnaire responses to the Senate Judiciary Committee, I dug a little further. I found an ethics advisory opinion from 1973 from the New York State Bar Association that was directly on point. It’s in the comments part of that post, but it is worth reprinting here since this has now become an issue:

Opinion 286 — 3/16/73 (1-73)
New York State Bar Association Committee on Professional Ethics
March 16, 1973

QUESTION

May an attorney who employs two or more “associates” use firm name “John Smith and Associates”?

OPINION

While not the usual form, there is nothing improper in the use of the firm name “John Smith and Associates”, provided that the lawyer or the firm has in fact two or more lawyer employees so that the name is not misleading. EC 2-10; EC 2-13; ABA 318 (1967); cf. EC 2-11; N.Y. State 45 (1967). However, where there are other partners in addition to those indicated in the firm name, it could be considered misleading to add, after the firm name the words “and Associates”, unless on the letterhead the names of all the partners and, separately, the names of the associates are shown. (ABA 310 (1963).)

So what should Sotomayor have done back in 1983 when she had her own small firm operating out of her home? She had these choices, as I see it:

OK, what is past is past.What should she do now? While I hesitate from my tiny little perch in cyberspace to give advice to a Supreme Court nominee, I’m going to do it anyway in the event this comes up in the confirmation hearings or in other news articles.

  1. Forget that crap from Hal Lieberman about there being no rule and the ethics opinion being merely advisory. You are not before a court of law but the court of public opinion. The rules said you can’t mislead. You said you had associates and you didn’t. End of story. You screwed that up.
  2. Admit that you screwed it up. Don’t try to lawyer your way out of it. Offer up the simple explanation: You were still in the D.A.’s office at the time and this was a small law practice that only a few relatives and friends even knew about, and you never even gave the name any thought. Yes, it was wrong. But it was done out of inadvertence.

The mistake was minor in the big scheme of things. If the ethics committee found out about it at the time they would have wagged their finger and said no-no, that’s misleading, please change it. That’s it.

Americans don’t expect saints on the bench. Humans are fallible. It’s OK to screw up once in awhile.

But don’t trot out lame excuses. Don’t try to lawyer your way out of this with being “advisory.” That is something that people won’t tolerate.

[Sotomayor tag now added for all Sotomayor posts]

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

Tax ‘Issues’ For Sotomayor?
There is some question as to if Sotomayor may have some tax ‘issue’ about to bubble to the surface. Sotomayor had a private law office she named “Sotomayor & Associates”, but there were no associates. There is nothing illegal about

posted by Andrew Berman @ July 08, 2009 6:15 PM

Two New Strikes against Judge Sotomayor
As a blog says, Sotomayor’s defense give for using the name “Sotomayor and Associates” for her solo practice is weak. It’s legalistic (that is, it evades the ethics question and makes it a question of rules) and it’s wrong.

posted by Eric Rasmusen @ July 08, 2009 4:24 PM

And it rolls in further, a tide of hypocrisy and
dumbass rising. Obama in Moscow: Along the way, you gave us a pretty good deal on Alaska. Thank you. D’OH!!! The man is a Laff Riot!!! That’s the way to “hit the Reset button”, Mr. President. Remind the Russians of perhaps the stupidest

posted by Firehand @ July 08, 2009 3:31 PM

taxprof: does judge sotomayor have a tax problem? update: related
taxprof: does judge sotomayor have a tax problem? update: related item here.

posted by Glenn Reynolds @ July 08, 2009 1:55 PM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

sotomayor & associates
[guest post by drj]. the new york times addresses sonia sotomayor’s legal practice in the 1980′s: “in her questionnaire, judge sotomayor says she was the “owner” of sotomayor & associates, which she described as a consulting business
posted by DRJ @ July 08, 2009 12:08 AM

NYT: "Sotomayor & Associates" Becomes an Issue For Nominee and White House


On June 4th Sonia Sotomayor released an extensive, completed questionnaire about her past to the Senate, and I picked up on the fact that her solo law firm “Sotomayor & Associates” didn’t have any actual associates. This raised an ethical issue, albeit a small one, because it was misleading to the public. The private firm overlapped both her time in the District Attorney’s office and her time with her next gig, Pavia & Harcourt.

And there my little post sat, relatively ignored. Until the Washington Times picked up on it in an editorial on June 20th. While I don’t agree with their premise that it was indicative of larger issues, it was nice that they at least gave attribution to me for finding the item.

And now today the ethical issue of “Sotomayor & Associates” lands in the New York Times (Little Information Given About Solo Law Practice Run by Sotomayor in ’80s.) The Times treats the story as original material to the paper, without giving attribution to others.

The Times has now expanded on the quick treatment that I gave it, and checked with the White House to get more details on the law firm. They found that:

The White House has described Ms. Sotomayor’s outside legal work as an informal practice, one that never required her to file legal documents or appear in court. She never incorporated Sotomayor & Associates or registered it as a business in Manhattan or Brooklyn, where she then lived, according to public records, though she was not required to do so.

The Times goes on to quote old-reliable ethics commentator and NYU law prof Stephen Gillers (are there no other ethics attorneys to quote in New York?) as agreeing with me that this was a violation of the ethical rules in effect at the time:

Stephen Gillers, professor of legal ethics at New York University Law School, said Judge Sotomayor’s use of the larger-sounding title was “inadvisable because it is inaccurate.” He noted that bar associations frown on the use of the term “and associates” by single practitioners. “She could have just said, ‘Law Offices of Sonia Sotomayor,’ ” he said.

[Note to Gillers: If Sotomayor wrote "Law Offices of Sonia Sotomayor" it would also be inaccurate. It would need to be singular, not plural.]

The White House, however, claims that no ethical violation occurred with the use of “& Associates” at a time when there were no actual associates. They responded:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Why did I bother with this minor issue to begin with? Because I sometimes write about the practice of law for small practitioners, about legal marketing and its problems, because the nominee fell into that zone of commentary, and because massive layoffs in the legal field were sending folks out on their own. It was meant as little more than a cautionary tale for those starting up their own practices to be careful about over-promoting themselves and running into trouble.

Now if we could turn to the ethics of the New York Times in using the stories of others without giving credit….

Update: I’ve added more regarding this at: Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given

posted by loce@his.com (Carolyn Elefant) @ July 13, 2009 12:59 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

“Sotomayor & Associates” … meh, who cares?
Nothing has happened since May 26 to make me change my initial take on Pres. Obama’s nomination of US Circuit Judge Sonia Sotomayor to fill Justice Souter’s seat on the Supreme Court. (That take, in short, was this: Obama would never

posted by Beldar @ July 07, 2009 11:01 PM

sonia sotomayor “and associates”
[i've edited to make this tighter.] story here and here. eric turkewitz, a new york lawyer/blawger, broke the story. [then professor alberto bernabe, of the john marshall school of law, blogged about it.]

posted by John Steele @ July 07, 2009 2:48 PM

legal ethics — and journalistic ethics….
legal ethics — and journalistic ethics.
posted by Glenn Reynolds @ July 07, 2009 8:54 AM

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

I was skimming the questionnaire of SCOTUS nominee Sandra Sotomayor to look back at her life in private practice. And I found this starting on page 143 of the Committee Questionnaire:

ii. whether you practiced alone, and if so, the addresses and dates;

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New York 11231, from 1983 to 1986, but this work was as a consultant to family and friends in their real estate, business, and estate planning decisions. If their circumstances required more substantial legal representation, I referred the
matter to my firm, Pavia & Harcourt, or to others with appropriate expertise.

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor’s position and her associate’s position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it “Sotomayor & Associates“?

Did she have any associates when she was advertising herself in that manner? My guess is no, given that this was a side business that she says was devoted to consulting for family and friends. And if she had no associates, then it is a no-no to tell the world that you do. That’s misleading.

From the American Bar Association comes this all-inclusive statement that such conduct is prohibited in every state:

Are there any Associates (or “Law Groups”) in the House?

There are several state bar opinions that address a lawyer’s use of terms in a firm name that carry with them the implication that there is more than one lawyer in the firm. Examples of such terms include “X and associates” or “The X law group”. Citations to these opinions, along with digests of them as they appear in the ABA/BNA Lawyers’ Manual on Professional Conduct follow.

All State bar opinions are in agreement that a lawyer may not use the term, “and Associates” if there are in fact no associates in the firm. See, South Carolina Opinion 05-19 (2005) (A lawyer seeking to open a governmental affairs and lobbying firm consisting of the lawyer and two nonlawyer employees may not name the firm “John Doe and Associates, P.A.” The name violates Rules 7.1 and 7.5(a) because it misleadingly implies that the firm has more than one lawyer.), Ohio Opinion 95-1 (1995) (A lawyer who is in solo practice may not use the phrase “and Associates” in the firm name to indicate that the lawyer shares space with other lawyers, acts as co-counsel with other lawyers, or has non-lawyer employees. A lawyer who is the sole shareholder in a professional corporation may not use the phrase “and Associates” in the firm name when the lawyer in fact has no employees.)

In New York, the conduct would fall under DR 2-102, which bars misleading advertising on a letterhead. [See Comment 2] If in fact Sotomayor had no associates at her firm, it would appear she overstepped the bounds of self-promotion by making her firm seem bigger than it was.

Now I am well aware that there are a whole lot more serious ethical violations that take place. But I do my fair share of writing on the subject of advertising and self-promotion when it comes to practicing lawyers, and it wouldn’t be fair to others to give Sotomayor a free pass on the subject.

Previous Sotomayor posts here:

Update: I Googled the law firm name with this query: “Sotomayor & Associates” Sonia. I did not find any discussion of Judge Sotomayor’s private practice under that firm name.

Update 2:

Links to this post:

busting judge sotomayor
judge sotomayor has the enviable advantage of being the nominee of a democratic president, and an overwhelmingly democrat congress. as such, her success has been a foregone conclusion. but simply arguendo, let me outline reasons why

posted by PoliticalChic @ July 16, 2009 10:49 AM

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given

posted by loce@his.com (Carolyn Elefant) @ July 13, 2009 12:59 AM

why eric turkewitz still matters
with regard to the issue of giving credit for discovering the “sotomeyor & associates” issue, eric turkewitz comments: something might be in the public domain, but it if is buried in a box of other documents, someone still has to go

posted by Mark Draughn @ July 09, 2009 11:48 AM

on the ethics of sourcing for bloggers and journalists
radley balko used to piss me off. back in my early days in the blogosphere, i sent him a few links to stories i thought might interest him. he then mentioned those stories in his agitator blog, but didn’t credit me for sending him the

posted by Mark Draughn @ July 08, 2009 11:24 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

sotomayor & associates
[guest post by drj]. the new york times addresses sonia sotomayor’s legal practice in the 1980′s: “in her questionnaire, judge sotomayor says she was the “owner” of sotomayor & associates, which she described as a consulting business

posted by DRJ @ July 08, 2009 12:08 AM

post-hiatus supreme court stuff…
it’s been a long time, i shouldn’t have left you… (anyone who can finish that sentence wins a prize!) i have been on a bit of a hiatus while i concentrated on completing my fellowship at the drum major institute for public policy.

posted by Kia Franklin @ June 12, 2009 6:08 PM

blawg review #215
it’s 2:30 am on the morning of world oceans day, as i sit here drowning in a sea of submissions for blawg review #215. buoy, i’m in trouble, with a sinking feeling about all i have yet to do. but before i sail into the heart of this
posted by loce@his.com (Carolyn Elefant) @ June 08, 2009 3:25 AM

Sotomayor is Most Like Which Baseball Figure? (Yes! It’s a real question!)

Sure, I know what you’re thinking. That my question in the headline is silly, while everyone is probing every legal angle they can find on Supreme Court nominee Sonia Sotomayor. Every word she has uttered or written is being discussed and debated — while being cogitated, contemplated, ruminated and regurgitated in various hashings and re-hashings — all in the hopes of finding something controversial to be meaningfully exciting. And we haven’t even had hearings. But you should know that my question isn’t simply about whether this particular Yankee fan “saved baseball,” or not. No, this is a question that must get asked because it will be asked whether we like it or not.

It will get asked, you see, because Oyez.org, which runs a super-serious Supreme Court website, understands as I do that there is a passionate interest in baseball at the Supreme Court. If you don’t know about Oyez’s multi-media Supreme Court web site and its baseball quiz, here is an intro:

The Oyez Project began in the friendly confines of Wrigley Field in the late 1980s as the Chicago Cubs continued to break the hearts of its many diehard fans. It was during one such game that the idea of creating a multimedia-based Supreme Court experience took root. The first iteration was a series of complex HyperCard stacks built on a baseball-card metaphor. The “Hitchhiker’s Guide to the U.S. Supreme Court” demonstrated the power of multimedia integration with serious academic content. Many students worked on various versions before the development of a web-based application. The development of a web-based version of the project stems from the foresight of Richard Barone and Joe Germuska of Northwestern’s then nascent Learning Technologies Group…

Oyez has a biography of every Supreme Court justice, and at the end of each bio they have a quiz, asking the reader to choose which baseball figure a particular justice is most like. For example, John Jay, the first Chief Justice, is compared with Kenesaw Mountain Landis, the first commissioner of baseball. Philly fan, and former fantasy camp player Sam Alito’s bio is here and you can take your own peek to see how well you do with a modern day jurist.

Oyez gives this brief explanation of its quiz:

“The Law-Baseball Quiz” debuted in the New York Times on April 4, 1979. Created by law professor Robert M. Cover, it compared baseball players and Supreme Court Justices. Unlike Eddie Gaedel, the midget in baseball’s most publicized stunt, the Quiz has delighted and stumped enthusiasts on many occasions since it first appeared…

So, given that SCOTUSblog guru Tom Goldstein opined that Sotomayor is a shoo-in, and that the only glimmer of controversy is whether she ever made judgments based on race, and this turns out to be a non-issue when her record is examined, we must turn to the burning question of the day: Which baseball figure will Sotomayor be compared with from the world of baseball?

And if you thought you would just Google “First Hispanic Baseball Player” and be done with it (Esteban Bellan, 1871, Troy Haymakers) don’t be so quick on the trigger. For color barrier-breaker Thurgood Marshall was not compared with Jackie Robinson, but with Emmet Ashford, the first black umpire. Oyez makes you think. (Sandra Day O’Connor picked up the Robinson connection.) And there is also that background issue of whether Sotomayor even qualifies as the first Hispanic justice, given Benjamin Cardozo’s Portuguese roots.

Which brings us to the penultimate Sotomayor question — since the dead horse beating rule has not yet been invoked on all things Sotomayor nor has anyone successfully jumped the shark here — will she be compared with an Hispanic player? A Puerto Rican player? A woman umpire? Or someone that isn’t nearly so obvious? Let the guessing begin…

Sotomayor-Yankee photo find: Underneath Their Robes

Advice and Consent on SCOTUS Pick – First Time in Decades?

The comments were buried deep in an article in today’s New York Times on the process by which President Obama nominated Judge Sonia Sotomayor for the Supreme Court. Obama, it seems, did the unheard of practice of calling every member of the Senate Judiciary Committee seeking their input.

While the Constitution requires (Article II, Section 2, paragraph 2) the advice and consent of the Senate for Supreme Court justices, stating that the President:

…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…

the reality is that Presidents, at least in recent memory, ignore the advice part and simply ask for consent. Presidents are funny that way.

According to Republican Senator Charles Grassley, however, in his 29 years on the Judiciary Committee Obama is the first President to call and actually seek that advice. From the article, with my emphasis:

As he narrowed his choices, aides said, Mr. Obama kept asking for more original writings by the candidates, and he called every member of the Judiciary Committee, something few if any presidents have done.

In his conversations with senators, Mr. Obama did not let on whom he was thinking about, but described what kind of nominee he was looking for and asked for names. “I don’t think he saw the process as him saying, ‘Which of these five people would you oppose or support,’ ” said Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman.

“He asked if I had any suggestions for nominees,” said Senator Charles E. Grassley, Republican of Iowa, a member of the committee for 29 years. “This is the first time I’ve ever been called by a president on a Supreme Court nomination, be it a Republican or a Democrat.

A President that actually cares about the Constitution. What a concept.

Links to this post:

blawg review #214
had enough of the credit-crunch? this is an edition of blawg review for those who say… “when the credit-crunch gets tough… the credit-crunched get crunched with smokedo… and blog.” it is not x rated, it is office safe; the geeklawyer
posted by charonqc @ May 31, 2009 2:03 PM

Judge Sotomayor and the First Amendment (And the Pending Case)

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals is on the short list for Justice David Souter’s soon-to-be-vacant Supreme Court seat. At SCOTUSblog, Tom Goldstein reviews some of her civil appellate opinions, and notes that “Sotomayor has considered First Amendment issues relatively infrequently.”

It’s worth noting then, that she currently has a First Amendment case before her that I’ve discussed with some frequency on this blog, and one that may ultimately affect all attorneys: The issue of New York’s new attorney advertising rules in Alexander & Catalano v. Cahill.

The case, argued January 22nd before a three judge panel comprised of Sotomayor, Guido Calabresi and John M. Walker Jr., deals with a number of attorney advertising and anti-solicitation ethics rules that went into effect in 2007 (see, New Attorney Advertising Rules (Is This Blog an Advertisement?), which includes a 30-day moratorium on attorney advertising after a mass disaster. That particular rule was upheld in the court below. The problem with that regulation, as I’ve discussed, is not so much the 30-day time period, but the difficulty in defining advertising in the context of the web. Just trying to figure out who must comply is often difficult.

Subsequent to oral argument, the real-world effects of the regulation were seen when Continental Flight #347 went down in Buffalo, and I followed the myriad ways that advertising/solicitation could take place that might violate the rule. And that the very ambiguity of trying to figure out where the bright line of solicitation exists raised First Amendment issues. Some of the those posts are here:

It is now almost five months since argument was made. Whether a decision comes out while the SCOTUS nominating waiting game goes on, or after it is over, remains to be seen.

(My comments on one of the qualities the nominee should have are here: The SCOTUS Nominee and The Tissue Box Test)

Links to this post:

“Judge Sotomayor and the First Amendment (And the Pending Case)”
“Judge Sotomayor and the First Amendment (And the Pending Case)”: Eric Turkewitz has this post today at his “New York Personal Injury Law Blog.”
posted by Howard Bashman @ May 18, 2009 12:42 PM

The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court. He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
———————–

More:

Links to this post:

sotomayor–the perfect choice
barack obama needed four important qualities in his first supreme court nomination: first he needed to nominate a woman and/or a person of color; second, he needed to nominate someone who would not face confirmation problems, third,

posted by liberalamerican @ May 29, 2009 12:58 PM

the case for tissue-box lawyers
for reasons that should be fairly obvious, there’s quite a bit i disagree with in eric turkewitz’s impassioned defense (in the context of selecting potential judicial nominees) of injury and criminal-defense lawyers.
posted by Walter Olson @ May 12, 2009 7:53 PM

Chief Judge Kaye Keeps Door Open On Hillary’s Senate Seat


Dan Slater from the WSJ Law Blog interviewed New York’s chief Judge Judith Kaye today on what she will do next now that she is retiring.

Two weeks ago I said she should be considered for Hillary’s Senate seat, with Caroline Kennedy being a particularly bad choice. (See, Chief Judge Judith Kaye — For U.S. Senate)

And the last question Slater asked was on that point. And the Chief Judge kept the door open with this non-answer:

We’ve heard rumors that you might replace Hillary Clinton in the senate.

I’m not thinking yet about my chapter three. You’re still talking to the chief judge, Dan. Have some respect. [Laughter]

Chief Judge Judith Kaye, for US Senate, Gets A Bit of Attention


The accolades for retiring New York Chief Judge Judith Kaye continue, with a story in today’s New York Times. There is also a humble tribute to Kaye by Lawrence Cunningham at Concurring Opinions, calling her “One of the country’s greatest contemporary judges.” She leaves the bench January 15, 2009, having won admiration from people from across the political spectrum.

What will she do now? Two weeks ago I advocated that she be considered for the U.S. Senate seat being vacated by Hillary Clinton. Now Daily News columnist Bill Hammond makes the same suggestion.

The idea of Caroline Kennedy getting the seat because of her breeding makes me deeply uncomfortable. That is the worst possible reason to hand someone a Senate seat on a silver platter.

Anyone else think Kaye should be considered?

« Older Entries Newer Entries »