FIRST ONE @ ONE FIRST

The Pragmatics of Informational Privacy

Posted in Case Reports by Mike Sacks on October 5, 2010

The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.

The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.

In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction.  Problem was, they clashed over strategy.

Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.

“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired.  When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”

Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in.  Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.

“The only thing that’s in contention there is the question about treatment or counseling.  Nothing else.  So why are we talking about the universe of questions that might be asked?”  It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.

But the conservatives weren’t interested in narrowness or broadness.  Not yet.  They wanted to know a little more about this right of “informational privacy” thing.

Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”

Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.

So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch.  With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee.  Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism.  Big mistake.

“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.

And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.

If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.

Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.

But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals.  When Stormer conceded that the government should know that information, Alito shot back.  If open-ended questions are forbidden, he asked, then how does the government get at that information?

“Do you have to have a specific question on the form?” wondered Alito.  One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”

Alito’s point was as funny as it was devastating.

Quick Prognostication

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 13, 2010

Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General.  I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.

Now here comes my march of the “ifs”:

The said seat will not be open for quite some time.  Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years.  Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.

Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal.  Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.

If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick.  By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016.  Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.

Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024.  Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.

So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer.  This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption.  That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.

Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:

Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration.  In the Clinton Administration, he served as National Security Advisor in the Department of Justice.  He then was a very well known academic (focusing on national security questions) who also practiced before the Court.  He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign.  Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld.  (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.)  Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]

Katyal has broad support in the Republican legal establishment that should smooth the confirmation process.  My intuition when I decided to write this piece was actually the opposite:  that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation.  (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions.  He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page).  For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.

Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.

Of course, a lot happens between election years and Supreme Court vacancies.  Nominations themselves are entirely dependent upon political timing.  But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.

Two Vacancies this Summer?

Posted in Clairvoyance by Mike Sacks on February 4, 2010

ABC’s Ariane de Vogue writes:

Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.

I do believe Stevens will retire and that Judge Diane Wood will be his nominated successor.  But I deeply question that Ginsburg intends to step down.  As National Law Journal’s Tony Mauro reported a little over a year ago (and, due to a paywall, as conveyed by the WSJ Law Blog):

Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.

However, Ginsburg’s health scares since then, including pancreatic cancer and a spill on an airplane, may have changed her mind.  If so, I submit the following prospects:

After Obama’s firefight with the GOP over the very liberal and quite white Judge Wood, he will send up a moderate/center-left nominee of color. Hence Ward, Katyal, and Koh.

Because Breyer will remain on the bench if Ginsburg retires, there will be no need to fill the “Jewish seat.”  That puts Kagan, Sunstein, and Waxman on the back burner for the third vacancy.  And only Kagan will be young enough to be nominated by then, given the present robustness of the other justices in the over-70 club (Scalia, Kennedy, Breyer).

Patrick is at the bottom because he is running for reelection this year and I believe Obama will choose a black woman before he puts another black man on the Court.  After all, I think Obama himself may be the Court’s third male African-American justice after he leaves office.

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UPDATE: Since this writing, I’ve been somewhat disabused of my Harold Koh suggestion.  Let me offer Denny Chin and Goodwin Liu as two other possible Asian-American nominees for when Ginsburg steps down NOT this summer.

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