SALT In This Issue Judicial Nominations: The White House Proposes, Solomon Amendment Litigation the Senate Opposes Update, page 4 Bob Dinerstein, American University, Washington College of Law UND Law Clinic Lawsuit, As I sit down to write this column, the Democratic Convention is about to start, launched by page6 another knockdown-drag out fight between two longtime rivals- no, not the Democrats and Republicans, but the Yankees and the Red Sox! But as important as baseball may be, the October Bar Exam Conference, consequence for the Republic of the different visions of the federal judiciary that animate the page6 two parties is of incomparably greater moment. Once again, those differences have come into sharp relief in recent weeks, and SALT has been an active participant in the ongoing debate. SALT Teaching Conference, page 7 After a somewhat long hiatus, the Senate Judiciary Committee and the full Senate Reports from the SALT Board Retreat, recently have been very active on the judicial nominations front. Last week, the Senate failed pages8-9 to vote for cloture on several problematic Court of Appeals nominees: Henry Saad, David McKeague, and Richard Griffin (Sixth Circuit) and William Myers II (Ninth Circuit). Saad's Save the Date! SALT Mentoring and Myers's nominations had been pending for awhile, while McKeague and Griffin only Program, page 10 received Judiciary Committee approval on straight-line party votes of 10-9 on July 20. The cloture vote for Myers was also on July 20, with the votes for the other nominees on July 22, About SALT, page 11 Nominations continued on page 2 SALT Membership Form, page 11 Co-Presidents' Column Holly Maguigan, New York University School of Law Beto Juarez, St. Mary's University School of Law Greetings! The fall semester begins with all of the promises of a new SALT EQUALIZER academic year. We write this in late July, all too aware of the The SALT Equalizer is a publication of the Society of quick passage of the last few days of the summer. We hope that American Law Teachers and is published quarterly. each of you has had a productive summer, with generous Raleigh Hannah Levine Editor provision for recreation as well! Jose Roberto (Beto) Juarez, Jr. Co-President SALT has been extraordinarily active over the summer Holly Maguigan Co-President months. 1\venty-nine members of the Board of Directors met in retreat at Northern Illinois Norm Stein Treasurer Joyce Saltalamachia Historian University College of Law in May 2004. The retreat provided the Board with an opportunity to Mary Grant Layout consider infrastructure issues first discussed at a retreat of SALT former presidents and co- To contact the SALT Equalizer write the editor at presidents in October 2003. Dean LeRoy Pernell, the faculty, and the staff of NIU warmly William Mitchell College of Law; 875 SumrnitAve., St. welcomed the SALT Board and allowed us to work productively throughout the retreat. SALT Paul, MN 55105-3076; call (651) 290-7503 ore-mail Board member Elvia Arriola and NIU Public Events Coordinator Melody Mitchell went above [email protected]. Visit the SALT Web site at www.saltlaw.org. and beyond the call of duty in handling the logistics of the retreat. We thank NIU for its hospitality. Co-Presidents continued on page 2 www.saltlaw.org Co-Presidents: Solomon Amendment. We are grateful for Nominations: the superb representation provided to SALT continued from page 1 in this lawsuit by Heller Ehrman, Jenner & continued from page 1 Block, and O'Melveny & Myers. In June, SALT, together with the The other major area of activity this 2004. The close timing of the McKeague Mexican American Legal Defense & summer has been the preparatory work for and Griffin committee and floor votes Educational Fund (MALDEF), the Equal SALT's Teaching Conference, to be held at strongly supports the view that the Justice Society, and Americans for a Fair the University ofNevada-Las Vegas on Republicans were looking more for a Chance issued a study of affirmative action October 15and16, 2004. The theme of the campaign issue (at least with their in Texas entitled "Blend It, Don't End It: conference is "Class in the Classroom." As political base) than presenting nominees Affirmative Action and the Texas Ten with prior teaching conferences, the whom they thought had a reasonable Percent Plan After Grutter and Gratz." organizing committee has lined up a chance of being confirmed. The report examines minority enrollment stellar roster of presenters. Bargain hotel Through the tireless efforts of SALT at institutions of higher education in the rates are available, and low air fares are Judicial Nominations Committee Co- state of Texas and urges Texas to reinstate available. We hope you will join us for Chair Florence Roisman (Indiana race-based affirmative action programs in what promises to be an exciting conference University School of Law-Indianapolis), admissions while retaining its program that will give you lots of ideas for your SALT wrote letters opposing Myers and providing for automatic admission to teaching. McKeague. We characterized Myers as students graduating in the top 10% of their SALT's Webmaster, Richard Chused extremely hostile to, inter alia, environ- high school class. SALT will continue to (Georgetown), responds immediately to our mental protection, workers' safety, and monitor affirmative action developments requests for posting materials on the SALT Native American rights. As Solicitor of the in Texas and in other states, and will soon web site (www.saltlaw.org), no matter how Department of the Interior under be releasing a brochure providing guidance unreasonable those requests are. You will President George WBush, Myers has taken to admissions offices seeking to retain or find more information regarding all of extreme positions in favor of development institute affirmative action plans. these SALT activities on the web site, of wetlands and ranch lands, and is a The Supreme Court's decisions in including copies of the reports on torture firm supporter of the anti-governmental Rasul v. Bush (permitting detainees at and on affirmative action in Texas. We "Sagebrush Revolution." We opposed Guantanamo Bay to challenge their encourage you to bookmark the site and to Judge McKeague because of his insensitiv- imprisonment) and in Hamdi v. visit it often. Richard will be a Fulbright ity to prisoners' rights issues (including Rumsfeld (permitting a U.S. citizen Scholar in Israel this fall; Nancy Ota the right of female prisoners not to be captured in Afghanistan to challenge his (Albany) has agreed to take over Richard's sexually assaulted by prison guards), and detention) were welcome affirmations of webmaster duties. Thank you, Richard and claims of religious indoctrination, and basic due process rights. Disclosures of the Nancy! because of his "irascible" judicial abuses in Iraqi prisons, however, and of the In our last column, we asked you to temperament. assertions by the executive branch of contact us if there is an issue you'd like to In addition to the above nominees, authority to torture persons in the custody work on, or an issue you think SALT should the nominations of such troubling of our government, remind us that be working on. We are delighted that some judicial candidates as William Haynes vigilance in the defense of basic human of you have done so; we will be reporting on (Fourth Circuit), Brett Kavanagh (D.C. rights is always necessary. Raquel Aldana- some of these initiatives in future issues of Circuit), and Thomas Griffith (D.C. Pindell (UNLV) and Ronald Slye (Seattle) the Equalizer. We are always eager to hear Circuit) are technically not dead yet. authored a report for SALT which conclu- from you. You can e-mail Holly at (Haynes was voted out of committee on sively rebuts the Department of Justice's [email protected] and Beto at March 11, 2004; Kavanagh had a assertions of authority to torture and [email protected]. We look forward to committee hearing on April 27, 2004, but details the dangers such assertions of hearing from you! there has been no committee vote; and authority present for members of the U.S. Warmest wishes, Griffith has not yet had a hearing.) military in the future. Holly and Beto Haynes, Department of Defense General The Third Circuit held oral arguments Counsel, has come under fire for his role in July in SALT's lawsuit challenging the in promulgating the Government's policies on the limited rights of enemy SALT Equalizer Page2 August2004 www.saltlaw.org combatants, policies that the Supreme by President Bush) has dominated the recess appointment. Only two nominees, Court rejected as violating due process in headlines, the reality is that, including Miguel Estrada, have with- Hamdi v. Rumsfeld. Kavanagh was unsurprisingly, the Senate has confirmed drawn. All but 11 nominees have had President Bush's principal "vetter" of the the vast majority of the Bush nominees, committee hearings, in marked contrast to many right-wing judicial nominations he including some very conservative and the Republican practice of denying has presented, and was associate counsel to problematic judges (the most recent of hearings to a number of President Ken Starr. Griffith, general counsel of whom was J. Leon Holmes for the U.S. Clinton's judicial nominees. The Demo- Brigham Young University, practiced law crats have defeated cloture votes on Kuhl, in Washington, D.C., and then in Utah Owen, Brown, Estrada (prior to his without being a member of the bar in "[MM] any conservative withdrawal), and Pryor (later appointed as those jurisdictions (he had let his D.C. Bar judges with strong a recess appointee), in addition to the membership lapse). For the reasons given flurry of failed cloture votes in late July below, these nominations may effectively connections to the described above.