By Sam Singer
President Obama has developed a curious habit of taking one legal position in his public statements and an altogether contrary position in the courtroom. To be fair, it is his Justice Department doing the talking in court, but that’s a bureaucratic formality, right?
It depends on who you ask. The White House has stressed that with rare exceptions, the Justice Department must defend all validly enacted laws, not just the ones favored by the sitting administration. As a result, Justice Department legal opinions won’t always represent those of the President.
Civil rights advocates see things differently. They take issue not with the president’s statement of the Justice Department policy but with his understatement of its exceptions. Some insist the president is selling himself short, that he’s got more say at Justice than he allows for. Less charitable dissenters believe the president is trying to convince the public that his hands are tied when in reality they’re just a bit full.

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Posted on July 8, 2009

By Sam Singer
As a law student you’re taught that legal writing is technical writing. You’re taught to distrust the fine phrase and the elegant word. Strong legal writing, you’re told, resounds less in art than in science. This is only partly true, of course, and it’s not until you leave law school that you discover that the most celebrated legal writers are often the most artful ones. Like the best artists, exemplary legal writers have mastered their medium, but they’re also inclined to transcend it from time to time. So we nod approvingly when Justice Scalia, in the course of a caustic dissent in a high-profile anti-discrimination case, finds room for a Kurt Vonnegut reference; we’re charmed by Justice Rehnquist’s use of “bare minimum” to describe an Indiana law governing appropriate attire at strip clubs; and we marvel when a prominent federal judge wraps up a forcefully argued intellectual property opinion by advising the parties “to chill.”
In this permissive setting, it’s hard to fault Judge Scott Stucky of the U.S. Court of Appeals for the Armed Forces for channeling his inner crime novelist in an opinion he handed down last week. The opening sequence of U.S. v Weston may as well have been lifted from a Raymond Chandler novel. “There was something odd about the electric razor in the bathroom,” Stucky wrote.

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Posted on June 23, 2009

By Steve Rhodes
Three aldermen appeared on Chicago Tonight last night to discuss the mayor’s announced commitment this week of a blanket guarantee by the city to cover with taxpayer money any financial losses that might be suffered if the 2016 Olympics are held here. Memo to George Cardenas: If you don’t know which of you sitting at the table is the tool, it’s you.
Edited for clarity. Quote accuracy estimated at 97 percent. Rhodes commentary did not appear on-air, but could be heard within shouting distance of Beachwood HQ.
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CARDENAS: It was not a surprise to me . . . When you take a flight you buy insurance. Not because the plane’s gonna crash, but just in case.
RHODES: I wish someone would have asked Cardenas if he’s ever bought flight insurance, because I don’t know anyone who has.

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Posted on June 19, 2009

By Sam Singer
What strikes me as extraordinary about the gay rights movement, particularly its subsidiary cause in the campaign for marriage equality, is the discipline with which its scattered membership marches in lockstep. Everyone seems to appreciate the thrust of the operation, which is at bottom a state-by-state voter drive. On the less common occasion when the movement spills into the courtroom, litigants are advised to scrub their complaints of anything that could be mistaken for a federal claim. In this way, the movement localizes the effect of unfavorable court decisions. What happens in California stays in California, and so forth. At least that was the idea.
It turns out the movement hadn’t spent enough time surveying its own backyard. Late last month, hours after California’s high court dismissed a last-ditch challenge to Proposition 8, the American Foundation for Equal Rights (AFER) announced it would challenge the constitutional amendment in federal court. This normally wouldn’t be cause for alarm. Most litigants proceeding without the support of the major stakeholders would not have pockets deep enough to make much noise. But AFER isn’t your garden variety litigant. AFER cropped up solely for the purpose of bringing this challenge. Comprising its board is a group of Hollywood’s most well-heeled and outspoken gay rights advocates. And if there was any question as to the organization’s resolve, the board dispelled it when it retained Ted Olson and David Boies as co-counsel. Apparently, AFER wasn’t content with just one of the nation’s top constitutional lawyers.

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Posted on June 15, 2009

By The Illinois Campaign for Political Reform
Today in a 5-4 ruling in Caperton v. Massey, the U.S. Supreme Court acknowledged the harmful effects large campaign contributions have in the judicial system, when it ruled Monday that elected judges must recuse themselves from cases where outsized contributions they received can create the appearance of bias.
This decision shows that the U.S. Supreme Court recognizes that outsized campaign contributions and special interest money can create the appearance of bias in the judicial system.

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Posted on June 8, 2009

By Sam Singer
For Second Amendment advocates, Christmas came in June last year with the Supreme Court’s delivery of a historic gun rights victory in the form of District of Columbia v. Heller. Not only did the Court strike down Washington’s ban on handguns, but it did so by reading into the Second Amendment an individual right to possess firearms for private use. After the decision came down, rejuvenated NRA lawyers fanned out in search of municipalities with similar firearm bans. They found one in Chicago, which mirrored Washington in its prohibition of handguns and automatic weapons within city limits.
The NRA would soon learn that where the Second Amendment is concerned, Chicago has one critical advantage over the District of Columbia: It’s a city. Because Washington is a federal enclave, the Supreme Court could apply its new and robust interpretation of the Second Amendment without passing upon the more controversial matter of the doctrine’s applicability to state and municipal law. As the Seventh Circuit observed this week when it dismissed a similar challenge to Chicago’s handgun ban, the Second Amendment’s scope doesn’t extend beyond federal action. Writing for the Court, Judge Easterbrook held that until the Supreme Court provides otherwise, the scope of the Second Amendment is plain, and lower courts have no business subjecting local gun laws to constitutional scrutiny.

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Posted on June 5, 2009

By The Beachwood Illinois Reform Commission Affairs Desk
Editor’s Note: This is the fifth and final part of a series excerpting the final report from the Illinois Reform Commission. The legislative session has ended with your elected officials making a mockery of their work.
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Over the past one hundred days, the Illinois Reform Commission traveled across the state to learn about and promote government reform. Throughout our short tenure, we have been humbled and awed by the number of Illinoisans who have dedicated their time and energy to reform efforts.
Many people have asked why previous reform efforts have failed. One common answer is that those in power fight to maintain the status quo. But this is only part of the answer. The truth is, past reform efforts have met with forces just as destructive as self-interest or corruption: apathy, inertia, and cynicism. Despite the Commission’s best efforts to bring attention to areas in dire need of reform, we can only be as effective as the people of Illinois allow us to be. Yet, we would be remiss not to acknowledge the critical role the media have played throughout our journey, which they must continue to play, to keep this discussion before the public.

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Posted on June 2, 2009

By Sam Singer
As a political contest, the fight over the Sotomayor nomination was over before it began. President Obama knew he had the numbers in the Senate. He knew Sotomayor was a thorny target for her predominantly white and male opponents, who would have to challenge her fitness for the bench while holding back tactless remarks about her ethnicity. This while mining a relatively uncontroversial judicial record for controversy, and all during the fleeting moment after a nomination in which the public is actually paying attention. This nomination may go down in judicial history as the Two Day War; the indispensable SCOTUSblog says “It’s Over.”
But if the political fight is a foregone conclusion, the debate in the legal community is just getting under way. More than most nominees in recent memory, Sotomayor’s background lends itself to a close examination of prior case law. Her tenure on the Second Circuit produced a paper trail long enough to occupy legal journalists for months. As scholars sort it out, they’ll add new dimensions to the public’s understanding of Sotomayor’s judicial inclinations. The deeper they dig, the better sense we’ll have of her place on the Court.
What follows is a list of writers who, when not steering this discussion, are regularly weighing in with meaningful contributions. I provide it not as an exhaustive list but as a representative sample, with confidence the writers themselves will point you toward other worthwhile contributors.

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Posted on June 1, 2009

By The Illinois Campaign for Political Reform
Over the objections of reform advocates throughout the state, the Illinois Senate on Thursday approved a bill (HOUSE BILL 7) to establish contribution limits but with so many loopholes that the legislation is “limits” in name only.
Cynthia Canary, Director of the Illinois Campaign for Political Reform (ICPR), issued the following statement:
“The disappointing Senate action should not be rubberstamped by the House,” said Cynthia Canary, Director of the Illinois Campaign for Political Reform (ICPR). “This phony reform should be blocked, and reform-minded legislators should insist on filling the loopholes created by the Senate.”

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Posted on May 29, 2009

In which I insert myself into the just-released conversation between Roland Burris and Robert Blagojevich.
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ROLAND BURRIS: (Clears throat.) Burris speaking.
ROB BLAGOJEVICH: Hello Roland, this is Rob Blagojevich again. How are you?
STEVE RHODES: Um, guys, I’m on the line too . . .
BURRIS: I’m doing fine, I’m doing fine. What’s . . . (chuckles) what’s going on? I was just discussing you yesterday.
BLAGOJEVICH: (Chuckles.) Oh, were you. Now this is the governor’s brother, not . . .
BURRIS: Alright.
BLAGOJEVICH: . . . not the governor.

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Posted on May 27, 2009