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Where Are They Now – The Promise and Peril of Being SG
FORMER STATE SOLICITOR GENERALS WHO ARE NOW JUDGES
Federal Courts of Appeals
Jeffrey Sutton – Sixth Circuit (Ohio State Solicitor) Timothy Tymkovich – Tenth Circuit (Colorado SG) Kevin Newsom – Eleventh Circuit (Alabama SG) Allison Eid – Tenth Circuit (Colorado SG)
James Ho – Fifth Circuit (Texas SG)
Kyle Duncan – Fifth Circuit (Louisiana SG) Andy Oldham – Fifth Circuit (Texas Deputy SG) Britt Grant – Eleventh Circuit (Georgia SG)
Eric Murphy – Sixth Circuit (Ohio SG)
State High Courts
Scott Bales – Arizona Supreme Court (retired) Rebecca Berch – Arizona Supreme Court (retired)
Victoria Graffeo – New York Court of Appeals (retired) Virginia Linder – Oregon Supreme Court (retired) Stephen McCullough – Virginia Supreme Court
Patrick Wyrick – Oklahoma Supreme Court
Nels Peterson – Georgia Supreme Court [nominated to U.S. District Court] Gregory D’Auria – Connecticut Supreme Court
John Lopez – Arizona Supreme Court Sarah Warren – Georgia Supreme Court
State Intermediate Appellate Courts
Patrick Irvine – Arizona Court of Appeals (retired) Kent Cattani – Arizona Court of Appeals
Karen King Mitchell – Missouri Court of Appeals Scott Makar – Florida Court of Appeals
Timothy Osterhaus – Florida Court of Appeals Peter Sacks – Massachusetts Court of Appeals
Federal district court
Gary Feinerman – Northern District of Illinois (Illinois SG) Brian Morris – District of Montana (Montana SG)
Dan Domenico – District of Colorado (Colorado SG)
Cam Barker – Eastern District of Texas (Texas Deputy SG) Andrew Brasher – Western District of Alabama (Alabama SG) Allen Winsor – Northern District of Florida (Florida SG) Corey Maze –Northern District of Alabama (Alabama SG)
Doug Cole – Ohio (Ohio SG) [nominated]
Lee Rudofsky – Arkansas (Arkansas SG) [nominated]
OTHER FORMER AGO MEMBERS WHO ARE NOW JUDGES
Federal Courts of Appeals
Edward Carnes – Eleventh Circuit (Chief of Post-Litigation Division, Alabama AGO)
Karen LeCraft Henderson – DC Circuit (Director of the Criminal Division, South Carolina AGO) Diana Gribbon Motz – Fourth Circuit (Chief of Litigation, and de facto SG, in Maryland AGO) Mike Fisher – Third Circuit (Pennsylvania AG)
Jeffrey Howard – First Circuit (New Hampshire AG) William Pryor – Eleventh Circuit (Alabama AG) Judith Rogers – DC Circuit (DC Corporation Counsel) Kathleen O’Malley – Federal Circuit (Ohio AGO)
Don Willett – Fifth Circuit (Texas Deputy AG – Legal Counsel) Mark Bennett – Ninth Circuit (Hawaii AG)
Federal District Courts
Jack Tunheim – D. Minn. (Minnesota Chief Deputy)
Laura Smith Camp – D. Neb. (Chief Deputy for Criminal Matter, Nebraska AGO) Allison Nathan – S.D.N.Y. (Special AAG, New York AGO)
State High Courts
Leigh Saufley – Maine Supreme Court (Maine Deputy AG) Donald Alexander – Maine Supreme Court (Maine Deputy AG)
Mary Fairhurst – Washington Supreme Court (Division Chief of the Revenue, Bankruptcy and Collections Division, Washington AGO)
Mary Ellen Barbera – Maryland Court of Appeals (Deputy Chief, Criminal Appeals, Maryland) Mike McGrath – Montana Supreme Court (Montana AG)
Bill Mims – Virginia Supreme Court (Virginia AG and Chief Deputy) Vanessa Ruiz – DC Court of Appeals (DC Corporation Counsel)
Don Willett – Texas Supreme Court (Texas Chief Deputy)
Monica Marquez – Colorado Supreme Court (Colorado Deputy SG) Margaret Chutich – Minnesota Supreme Court (Minnesota Deputy AG) Geoffrey Slaughter – Indiana Supreme Court (Special Counsel to AG) Robert McDonald – Maryland Court of Appeals (Principal Counsel)
State Intermediate Courts
Kathryn Graeff – Maryland Court of Special Appeals (Chief, Criminal Division, Maryland AGO) Fred Voros – Utah Court of Appeals (Chief, Criminal Appeals, Utah AGO)
Randolph Beales – Virginia Court of Appeals (Virginia AG and Chief Deputy) Peter Siggins – California Court of Appeal (California Chief Deputy)
Joseph Yannotti – New Jersey Superior Court, Appellate Division (member of NJ AGO) Natalie Hudson – Minnesota Court of Appeals (member of Minnesota AGO 1994-2002) Clayton Roberts – Florida Court of Appeals (Florida Executive Deputy AG)
Joseph Lewis – Florida Court of Appeals (Bureau Chief, Employment Litigation/Civil Litigation Section, Florida AGO)
Kent Wetherell – Florida Court of Appeals (Florida Deputy SG)
Lori Rowe – Florida Court of Appeals (Florida Deputy Chief of Staff) Thomas Winokur – Florida Court of Appeals (Florida AAG, criminal appeals) Mary Tabor – Iowa Court of Appeals (AAG in criminal unit in Iowa)
Andy Bennett – Tennessee Court of Appeals (Chief Deputy, Tennessee AGO)
Jim Humes – California Court of Appeal (California Chief Deputy; former Fellow) Fred Voros – Utah Court of Appeals (Chief of Criminal Appeals, Utah AGO) Randy Howe – Arizona Court of Appeals (Chief, Criminal Division, Arizona AGO) Doug Kossler – Alaska Court of Appeals (Chief, Criminal Appeals, Alaska AGO)
Kathryn Graeff – Maryland Court of Special Appeals (Chief, Criminal Appeals, Maryland AGO) Matthew Fader – Maryland Court of Special Appeals (Chief, Civil Litigations, Maryland AGO) Sookyoung Shin – Massachusetts Court of Appeals (Massachusetts AAG)
James Milkey – Massachusetts Court of Appeals (Chief, Environmental Protection Division) Jessica Lorello – Idaho Court of Appeals (Idaho Deputy AG)
Marla Graff Decker – Virginia Court of Appeals (Virginia Deputy AG) Wesley Russell – Virginia Court of Appeals (Virginia Deputy AG) Mary Windon – Alabama Court of Criminal Appeals (Deputy SG) Paul McMurdie – Arizona Court of Appeal (Chief, Criminal Appeals) Jennifer Perkins – Arizona Court of Appeal (Assistant SG)
Michael Toth – Texas 3rd Court of Appeals (Special Counsel)
Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
By JONATHAN MAHLER
MARCH 4, 2016
AUSTIN, Tex. — From its start in 1999, the office of the solicitor general of Texas was run by a plain-spoken Mormon, a by-the-books lawyer known for mentoring young attorneys and defending the state, whatever the political consequences.
The young lawyers loved him. The state’s legal community hailed him as a man of dignity and integrity. And the office seldom showed up in the headlines.
But everything changed in January 2003, when Ted Cruz took over.
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
Within months of his appointment to the job, Mr. Cruz, then 31, set about transforming this under-the-radar, apolitical office into an aggressively ideological, attention-grabbing one. From a nondescript government building in the shadow of the Capitol, he inserted himself into scores of politically charged cases around the country, bombarding the United States Supreme Court with amicus briefs on hot- button issues like abortion and gun control.
His focus on gaining attention clashed with the sensibilities of many of the lawyers who worked for him and were accustomed to a more scrupulous and less publicity- minded approach. Before the end of his first year, half of the eight attorneys working in the office had left, raising concern inside the attorney general’s office about whether Mr. Cruz was the right choice for the job.
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But he had the personal backing of the Texas attorney general at the time, Greg Abbott, who is now the state’s governor. Mr. Abbott shared Mr. Cruz’s new, activist vision for the office and gave him a broad mandate, encouraging him not only to defend Texas, but also to look across the country for opportunities to champion conservative causes.
The solicitor’s role became Mr. Cruz’s springboard, elevating him almost directly into the world of Texas politics. The conservative legal record he amassed and the connections he made in Austin helped carry him into the United States Senate in 2012 and are now helping to propel his presidential candidacy. One of his biggest donors has said that he was inspired entirely by Mr. Cruz’s history as Texas’ in- house legal scholar.
“He turned a little post in Austin into a nationally significant position,” said James
C. Ho, who succeeded Mr. Cruz as solicitor general.
The office also became an instrument of Mr. Cruz’s ambitions. In 2006, The Austin-American Statesman published a front-page profile of him, with the headline, “In State Politics, His Star Is Rising.”
“In the fullness of time, my plan for Ted would be for him to be the governor of Texas,” said a quote in the article by Charles J. Cooper, the former head of the Justice Department’s Office of Legal Counsel in the Reagan administration, and one of Mr. Cruz’s political mentors.
The small team of lawyers in Mr. Cruz’s office figured his sights were set higher: They joked, even back then, about whether his Canadian birth certificate might one
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
day impede his drive to be president.
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Mr. Cruz declined to be interviewed for this article, but a spokeswoman for his campaign, Catherine Frazier, noted that he was “the longest serving solicitor general in Texas history, which would not be the case if he wasn’t effective, successful and well-regarded.” Ms. Frazier attributed any criticism of his tenure to disgruntled former employees and said that staff turnover is typical with any change of administration.
It was in the fall of 2002 when Mr. Cruz, then living in Washington, heard about the opening for solicitor general. At the time, his political career was stalled. After being part of the legal team that helped hand George W. Bush his victory in the recount in 2000, he had failed to land a senior position in the White House and had been relegated to the Federal Trade Commission.
In his memoir, “Ted Cruz: A Time for Truth,” Mr. Cruz writes that he never thought he would get the solicitor general’s job, which handles all appellate litigation on behalf of the Office of the Attorney General. While his credentials were unimpeachable — he had graduated from Harvard Law School before serving as a clerk for Chief Justice William H. Rehnquist — he had very little practical legal experience. He had argued just two cases, neither one at the Supreme Court. And he had never really held an executive position.
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
But Mr. Abbott decided to take a risk and hire him.
Mr. Cruz was not only young and untested, he was arriving on the heels of the deeply respected Gregory S. Coleman, who had set the tone for the office before being succeeded briefly by his deputy, Julie Parsley.
A former clerk for Justice Clarence Thomas, Mr. Coleman collaborated closely with his small staff, most of whom had left much higher-paying jobs in the private
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
sector to work alongside him. They divvied up the cases and shared the responsibilities of writing briefs and preparing oral arguments, often working weekends and even pulling all-nighters in the office when deadlines were approaching. Mr. Coleman was also personally beloved; he and his wife were known for sending monogrammed baby blankets to the young lawyers when they had children.
Mr. Cruz struck a starkly different posture, telegraphing a new set of priorities to his staff. Not long after Mr. Cruz started, he had a television installed in his office that was tuned to cable news throughout the day, the workers in the office recalled. He spent very little time discussing legal strategies with his team of lawyers. When he did visit his attorneys, he had a habit of hoisting a cowboy boot onto their desks. Mr. Cruz decorated his own office with a large portrait of himself arguing before the Supreme Court.
Hierarchy seemed important to Mr. Cruz. He instructed his secretary to refer to him on the telephone not as Ted, but as Mr. Cruz.
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Mr. Cruz’s predecessors filed only occasional friend-of-the-court briefs at the Supreme Court, perhaps three a year. Mr. Cruz filed more than 70 in his five-and- a-half-year tenure, from supporting Nebraska’s right to ban a late-term abortion procedure to opposing an effort to restrict the ownership of handguns in Washington.
The focus on Supreme Court cases that did not directly involve Texas dismayed some of the lawyers on the staff, who felt the office was losing its legal and ethical rigor in favor of politics and seeking headlines.
One incident that a couple of Mr. Cruz’s lawyers found especially troubling arose during Medellín v. Texas, which he has described as the biggest case of his tenure. In a sense, it was a relatively minor issue — one including a cartoon character — but it was memorable to those who worked in the office.
The case involved two teenage girls in Houston who were raped and murdered. One of the victims was wearing a watch featuring Goofy, the Disney character. According to two lawyers who worked in the office at the time, Mr. Cruz wanted to describe it as a Mickey Mouse watch in his brief to the Supreme Court because he thought it would make for a more powerful image for the justices. The two lawyers requested anonymity because they remain active in the Texas legal community, where Mr. Cruz has great influence.
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
“People were really shocked,” said one of the lawyers. “He wanted to misrepresent the record — to lie — for rhetorical or dramatic effect.”
The office’s first brief before the Supreme Court, filed in 2005, describes the grisly scene of José Medellín and his fellow gang members dividing up the money and jewelry taken from the two dead girls: “Medellín’s brother kept one of the girls’ Mickey Mouse watch.”
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When the case returned to the court two years later, Mr. Cruz apparently had a change of heart. The reference in his brief was now to a “Disney-brand Goofy watch.”
Mr. Cruz said through his spokeswoman that he had no recollection of the episode.
While Mr. Cruz devoted little time to winning over the lawyers on his staff, he devoted himself to deepening his relationship with Mr. Abbott.
When he first took the job, the offices of the solicitor general were a few blocks from that of the attorney general. Eager to be closer to the center of power, Mr. Cruz lobbied successfully to have his offices moved into the same building. He kept a corner office on the seventh floor with his team of lawyers, but took a second office one floor up, down the hall from the attorney general, displacing its occupant.
Mr. Cruz’s spokeswoman said that Mr. Abbott had requested that Mr. Cruz move closer to him.
Over time, Mr. Cruz became one of Mr. Abbott’s most trusted advisers. “Politically, they were very much aligned,” said Edward D. Burbach, a deputy attorney general during those years.
After the Supreme Court agreed to hear a lawsuit over whether the state could display the Ten Commandments on a monument at the Capitol, Mr. Cruz urged Mr. Abbott to argue the case, and helped him prepare for it.
“He really was a very senior and trusted adviser,” said Daniel Hodge, who worked
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
for Mr. Abbott at the time and is now his chief of staff.
Mr. Abbott has since endorsed Mr. Cruz’s presidential bid.
As his profile in Austin rose, Mr. Cruz made no secret of his intention to run for office. He had grown up in Texas, but he had not lived there since leaving for college at Princeton. He asked Mr. Burbach and others to introduce him to deep- pocketed conservative Texans, and he spent a lot of his time away from the office speaking at conservative legal and political events around the state.
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He was defining himself not simply as a conservative, but as a thorn in the side of the Republican establishment, most notably suing the George W. Bush administration in the Medellín v. Texas case.
The suit challenged an order issued to Texas by the president to review the conviction of Mr. Medellín, the Mexican citizen who had been accused of raping and killing the two teenage girls in Houston, because he had not been granted his right to contact the Mexican Consulate as guaranteed by the Vienna Conventions.
It would have been easy enough for Texas to comply with the president’s ruling, which merely required that Mr. Medellín be given a hearing to try to prove that his case had been hurt by this omission. But for Mr. Cruz, the case provided an opportunity to take the federal government to court on behalf of Texas’ sovereignty. He won, 6 to 3.
When Mr. Cruz left the solicitor general’s office in the spring of 2008 to join a law firm in Houston, just about everyone who knew him figured it was only a matter of time before he ran for office. As it happened, it was a matter of months. Mr. Cruz began campaigning at the start of 2009 to replace Mr. Abbott, who was planning to run for lieutenant governor, as Texas’ attorney general.
Mr. Cruz’s timing initially seemed ideal. Texas was moving sharply to the right. What is more, his campaign coincided with the emergence of the Tea Party, whose raucous, antigovernment crowds provided a natural constituency for a politician who could cast himself as a crusader for liberty against an overreaching government.
“The most fundamental ethos in the state of Texas is, ‘Give me a horse and a gun and an open plain, and I can conquer the world,’ ” Mr. Cruz told people at a Tea Party rally in East Texas on July 4, 2009. “That’s the spirit that’s under assault
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Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicito... https://mobile.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-hi...
right now today in Washington.”
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That summer, Mr. Cruz flew to Maine in search of the support of at least one establishment Republican, former President George Bush. In his memoir, Mr. Cruz writes that Mr. Bush, who was 85 at the time, enthusiastically agreed to endorse him, but that when he returned to Texas, he received an angry phone call from Karl Rove, the Republican political consultant. According to Mr. Cruz, some major donors to the George W. Bush Presidential Library in Dallas were supporting one of Mr. Cruz’s opponents for attorney general and were furious at Mr. Rove for allowing the 41st president to support Mr. Cruz.
Mr. Rove disputes this account. He said Mr. Cruz deliberately misled Mr. Bush, failing to mention that he would probably face Republican opponents in the primary who were close friends of the Bush family.
“He didn’t shoot straight with the former president,” Mr. Rove said in an interview.
Mr. Cruz abandoned his bid for attorney general in late 2009, when Mr. Abbott decided to run for re-election. But he had jump-started his political career, raising more than $1.5 million in less than a year. Many of these same contributors are now donating large sums to his presidential campaign.
“In the end, it worked out for the best,” said John Drogin, who worked on Mr. Cruz’s campaign for attorney general. “Just about a year later, we filed to run for the Senate.”
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Republicans Block Judicial Nominee's Confirmation for a Second Time
By Ashley Parker
March 6, 2013
WASHINGTON - Senate Republicans on Wednesday blocked the confirmation of Caitlin J. Halligan, a prominent New York lawyer, to become a federal appeals court judge in the District of Columbia, the second time in two years Republicans have filibustered her nomination.
The Senate, in a 51-to-41 vote, fell well short of the 60-vote threshold needed to cut off debate and bring Ms. Halligan's nomination to a vote. The largely party-line vote, with only Senator Lisa Murkowski, Republican of Alaska, joining with Democrats in favor of ending debate, was reminiscent of the previous filibuster of Ms. Halligan - another largely party line vote of 54 to 45.
Many Republicans said they oppose Ms. Halligan's nomination to the United States Court of Appeals for the District of Columbia Circuit because of what they say is her history of legal activism; most specifically, they say that as the solicitor general of New York State, she worked to advance the "dubious legal theory," in the words of Senator Mitch McConnell of Kentucky, that gun manufacturers could be held legally responsible for criminal acts committed with their guns.
"In short, Ms. Halligan's record of advocacy and her activist view of the judiciary lead me to conclude that she would bring that activism to the court," Mr. McConnell, the Republican leader, said on the Senate floor. "Because of her record of activism, giving Ms. Halligan a lifetime appointment on the
D.C. Circuit is a bridge too far."
Democrats said that Republicans were interested mainly in stalling any appointments by President Obama to the influential court, which reviews many critical cases on government powers. They said that Republicans could not point to a single case of judicial activism on Ms. Halligan's part, and that during her time as solicitor general, she was simply doing her job and acting in the interests of the State of New York.
"I challenge the other side to give me one instance where they disagree with something that Ms. Halligan stated as her own views as opposed to representing someone as a lawyer should," Senator Charles E. Schumer of New York, the No. 3 Democrat, said on the Senate floor. "What's going on is our colleagues want to keep the second-most important court in the land, the D.C. Circuit, vacant, because right now there are four vacancies and the majority of those on the court have been appointees of Republican presidents and, in fact, are very conservative."
Ms. Halligan's nomination was the latest test of the "Gang of 14 deal" reached in 2005 under President George W. Bush, in which seven Democrats and seven Republicans joined together to allow up-or down votes on certain high-level judicial nominees except in the case of "extraordinary circumstances."
Only five members of the original Gang of 14 remain in the Senate - three Republicans, Susan Collins of Maine, Lindsey Graham of South Carolina and John McCain of Arizona, and two Democrats, Mary
L. Landrieu of Louisiana and Mark Pryor of Arkansas - and the three Republicans all voted against allowing a vote on Ms. Halligan.
When asked if their vote was in the spirit of the 2005 agreement or a filibuster reform deal reached this year, several Republicans said Ms. Halligan's nomination met the "extraordinary circumstances" threshold.
"I think it meets the extraordinary circumstances, because of her extraordinary egregious record;' Mr. McCain said. "This is an extraordinary circumstance."
Senator Johnny Isakson, Republican of Georgia, similarly said he was looking to the Bush-era agreement in voting against Ms. Halligan's nomination.
Democrats and the White House were expected to regroup and discuss strategy for trying to fill the vacancies on the district appeals court.
A version of this article appears in print on March 7, 2013, Section A, Page 12 of the New York edition with the headline: Republicans Block Judicial Nominee's Confirmation for a Second Time
Judge sharply questions defense of Indiana's Syrian refugee ban
(Photo: Adriane Jaecklel lndyStar 2005 file photo)
INDIANAPOLIS - "Wait, wait," Judge Frank H. Easterbrook said, taking a tone of dry incredulity. "The governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?"
On Wednesday, a panel of three judges of the U.S. Court of Appeals for the Seventh Circuit ashed into
ndiana Gov. Mike Pence's attempted ban of Syrian refugees (http://indy .st/2cqEC1S) resettling in the state.
Indiana Solicitor General Thomas Fisher explained that Pence was concerned that the U.S. cannot properly screen Syrian refugees for potential terrorist threats, based on a statement from the Federal Bureau of Investigation. That's why the Pence administration said he tried to cut off resettlement agencies from state
grants, which flow through the federal refugee program, for refugees coming to the state from Syria.
White House says refugee resettlements will go on, even if governors object
(https://www.usatod ay.com/story/news /politics/2016/09/15/white-house-s ays- refugee-resettlement s-go-even-if-governor s-object/90424904/)
The state was challenging an injunction by federal judge Tanya Walton Pratt, which blocked Pence's order and deemed it unconstitutional discrimination. The state is being sued by Exodus Refugee Immigration , which has resettled more than 130 Syrian refugees in Indiana this year despite Pence's directive.
Judges' repeated and pointed questioning Wednesday seemed to center on how Pence justifies the singling out of Syrians and whether he has the authority over the federal government to do so.
When the state argues that the policy does not discriminate based on national origin, Easterbrook said, "all it produces is a broad smile."
Gov. Mike Pence (Photo: Reno (Nev.) Gazette-Journal)
Pence's office and the attorney general's office declined to respond to questions on the court hearing.
The American Civil Liberties Union of Indiana, which represented Exodus in court, said in a statement: "The judges were highly critical of the State's reasoning and defense of the Governor's actions. It is next to impossible to determine how a Court may decide based upon its interaction with lawyers during arguments."
The court will rule at a later date.
Here are some of the most heated exchanges. Listen to the court audio here. (http://media.ca7.uscourts.gov/sound/external/rs.16-1509.16- 1509 09 14 2016 mp3)
'Why have you singled out Syrians?'
"Are Syrians the only Muslims that Indiana fears?" Judge Richard A. Posner asked.
"Well, this has nothing to do with religion," Fisher replied. "This has to do with what's going on in Syria." "Oh, of course it does," Posner said.
"Oh, I object to that, your honor," Fisher said.
"Look," Posner said. "If you look at the attacks, the terrorist attacks on the United States - 9/11, the attacks in New York, Boston, San Bernardino - they're all by Muslims. ISIS is Muslim. Al Qaeda was Muslim. Right? You understand that, don't you?"
"I do," Fisher said. "I don't-"
"Do you understand that?" Posner said. "Now, my question is-"
"Isaid I did," Fisher said, "and the governor's directive doesn't go into religion."
Why Americans should care about war-torn Syria
(https: //www.usatoday.com/story/news /world /2016/09/ l 2/americans-syria-cease fire-civi l- war/90259128/)
"Don't interrupt me," Posner said.
Easterbrook stepped in: "Attempting to argue over a judge is not a productive method of argument."
"So," Posner continued. "Is it your view that Syrians are the only potential terrorists in the United States?"
"People from Syria are the ones where we lack the intelligence," Fisher said. "That's what the FBI director and the assistant FBI director have said."
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"So we have perfect intelligence about all other potential terrorists?" Posner asked. "ISIS, and all those people?" "Of course not," Fisher said.
"Well, why have you singled out Syrians?" Posner asked.
Fisher reiterated that the governor's concerns arose from the FBI director's comments.
"In other words, we have enough information to prevent terrorist attacks by anybody who is not from Syria? Is that what you're saying? Is that what the FBI says? We're perfectly secure" - Posner chuckled - "against everyone except Syrians?"
"No," Fisher said.
"That's preposterous, right?" Posner said. "Yes," Fisher said.
They went back and forth on other potential Islamic terrorist threats from other countries.
"What about people from France, or Germany, where they've had terrorist attacks?" Posner asked.
"I'm not sure how else to say it," Fisher said. "This is what the governor has said in response to what has been said about Syria and what's going on on the ground in Syria. This is what governors are elected to do. They make judgments on these kinds of things."
'You are so out of it.'
With Fisher returning to FBI comments on Syria, Posner seemed to become exasperated.
"Oh, honestly," Posner said. "You are so out of it. You don't think there are dangers from people from Libya, from Egypt, from Saudi Arabia, from Yemen, from Greece and France and Germany, which have had terrorist attacks?"
"We don't have statements before Congress by the director of the FB and the counter-terrorism assistant director sing ing out those countries for ack of information and lack of footprint," Fisher said.
"You seem to think only Syrians are dangers," Posner said.
A big sigh
Easterbrook pointed to an amicus brief from the United States, in which the federal government said it thinks Indiana exceeded its authority in suspending its support of Syrian refugees.
That's when he asked: "The governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?"
"No," Fisher said, "what he's saying is that based on testimony before Congress..."
Easterbrook sighed loudly.
"... it appears that we don't know enough about these refugees and we need to find out," Fisher finished.
"Yeah, well," Easterbrook said. "That sounds like a ground for disagreeing with the State Department. It sounds like a ground for asking the president to overrule the State Department. It doesn't sound like a ground for distinguishing (among) refugees under a program that categorically forbids such distinctions."
'You play by the government's rules•
The judges asked what part of the law allows Indiana to partially back out of the refugee grant program. They asked why Indiana could "pick and choose" when it participates.
"So you want Indiana to be safe, and you want these people to go to other states," Posner said. "... Well, why should Indiana be safer than, say, Illinois?" Before Fisher could answer fully, Posner added: "Do you want all the states to do this? And then there's no more Syrian refugees?"
Fisher said two governors have withdrawn entirely from the grant program in question.
"And that's fine," Easterbrook said. "That is the state's right to withdraw from the grant program. But Indiana hasn't done it....... It's like the Medicaid Act.
You can choose to be in, you can choose to be out, but if you're in, you play by the government's rules." As Fisher responded, Easterbrook let out another deep sigh.
'The president's decision•
"The president of the United States has determined that the United States knows enough to admit 10,000 Syrian refugees," Easterbrook said. "That's the president's decision. It may be right; it may be wrong. I don't see how a governor can disagree with the president by saying, well, the FBI director may have given him contrary advice."
Follow Stephanie Wang on Twitter: @stephaniewang
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Vice President Mike Pence's private political considerations cost the administration a chance to elevate a fresh conservative to the federal bench. I Chip Somodevilla/Getty Images
WHITE HOUSE
Why Pence spiked a Trump judge
The rare split between the president and his loyal sidekick offers a window into the vice president's independent political ambitions.
By ELIANA JOHNSON I 07/ 12/ 2019 05:03 AM EDT
In January 2018, Judge Michael Kanne received an unexpected call from the White House. Kanne, an Indiana native who sits on the 7th Circuit Court of Appeals, was then 79 years old.
Under leadership of Don McGahn, the White House counsel's office was focused almost singularly on filling the federal bench with conservative judges, and in Kanne, Trump 's lawyers had spotted an opportunity to nudge out an old-timer and lock in a conservative who could serve on the federal bench for decades to come. Rob Luther, a McGahn deputy responsible for nominations, had phoned Kanne to suggest he retire. Luth er told the judge the White House had a successor in mind: Tom Fisher, Indiana's solicitor general and a former clerk for Kanne.
"I had not intended to take senior status because that wasn 't my plan, but if I had a former clerk who had the chance to do it, then I would," Kanne said in an interview. "On the consideration that he would be named, I sent in my senior status indication to the president."
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As solicitor general of Indiana, Fisher had defended Gov. Mike Pence's policies in court, and aides to the now-vice president feared his nomination would dredge up events and information politically damaging to Pence.
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In a series of tense conversations with the White House counsel's office, Pence's lawyers, Matt Morgan and Mark Paoletta, and his then chief of staff, Nick Ayers, objected to Fisher's nomination, which died before it ever became a reality. Pence himself was kept apprised of the conversations.
The clash provides a rare glimpse into the vice president's political calculations and ambitions, which he has been excruciatingly careful to conceal since signing on to the Trump ticket in the summer of 2016.
Inthis case, Pence's private political considerations cost the administration a chance to elevate a fresh conservative to the federal bench when Kanne , who was nominated by President Ronald Reagan in 1987, revoked his senior status upon learning that Fisher wouldn't be nominated to replace him.
"A number of weeks later, I got a phone call from [Fisher] saying, 'It's off, I'm not going to be named,"' Kanne said. "And I said, 'If you're not going to be named, then I'm not going to take senior status."'
The virtually unprecedented move turned heads in legal circles at the time, but the backstory went unreported.
Pence almost never airs any disagreements with the president, even in private, and lavishes him with praise in public. Since Trump's inauguration, he has worked to position himself as the president's natural heir.
Like most vice presidents, he has packed his calendar with political events, but Trump's disinterest in some of the routine aspects of coalition building have provided an opening for Pence to build his own base of support.
Pence has regularly hosted dinners at the Naval Observatory for conservative movement leaders and played a central role in convening White House gatherings focused on religious liberty and opposition to abortion.
He also has embraced the role of sweet-talking deep-pocketed GOP benefactors, serving as the chief conduit between the administration and Republican donors the president has shown little interest in cultivating.
Pence has remained heavily involved with judicial nominations in his home state, and neither McGahn nor his deputies had consulted with the vice president's office before striking the tentative deal with Kanne, a breach of protocol that rankled Pence and his aides, particularly Paoletta, who had a fraught relationship with McGahn.
Of particular concern to the vice president's team was Fisher's involvement in the litigation surrounding Pence's attempt to stop Syrian refugees from settling in Indiana after the November 2015 terrorist attacks in Paris - a move that ultimately was knocked down in court.
A three-judge panel on the 7th Circuit ripped into Fisher's defense of the Pence policy in an unusually vicious manner when he attempted to convince the court that the state had a legitimate concern about the federal government's ability to vet Syrian refugees - and that they should instead be sent to other states.
"Hones tly, you are so out ofit," Judge Richard Posner, who has since retired from the bench, told Fisher during the proceeding. "You don't think there are dangers from other countries?" The Pence administration was handed a stinging legal defeat in September 2016, while the then-governor was on the campaign trail with Trump.
Pence had been elected governor of Indiana in November 2012, following stints as a radio talk show host and a member of Congress. His tenure in Indianapolis was tumultuous and hit a low point in the spring of 2015 when he signed the Religious Freedom and Restoration Act, a move cheered by religious conservatives but slammed by liberals and many businesses. A fix to the law passed by the Indiana Legislature left both groups unsatisfied, and Pence was in the midst of a difficult reelection battle when Trump tapped him as his running mate in July 2016.
Fisher, who became Indiana 's first solicitor general in 2005 under the state's previous Republican governor, Mitch Daniels, continued on under Pence.
"The political issues that had been very controversial in Indiana while Pence was governor Fisher had also been very involved in because he was solicitor general, and that nomination would reignite those battles - and they could potentially embarrass the vice president," said a former administration official involved in the conversations surrounding Fisher's potential nomination.
Fisher did not respond to a request for comment.
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Where Are They Now – The Promise and Peril of Being SG (Links to an external site.)
This book, and all H2O books, are Creative Commons licensed for sharing and re-use with the exception of certain excerpts. Any excerpts from the Restatements of the Law, Principles of the Law, and the Model Penal Code are copyright by The American Law Institute. Excerpts are reproduced with permission, not as part of a Creative Commons license.