Thursday, January 30, 2003

.Com Bust Kills Ailing Law Firm
Brobeck, Phleger & Harrison shutters after 77 years in business

Partners at the San Francisco law firm of Brobeck, Phleger & Harrison decided yesterday to wind down the firm, bringing to an end a 77-year-old Bay Area institution that rose flamboyantly and rapidly on the Internet boom.

The decision came after efforts to merge with Morgan Lewis & Bockius — a 1,100-lawyer firm whose largest offices are in Philadelphia, Washington and New York — failed on Wednesday, said William Sullivan, who is head of the national securities practice at Brobeck.
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"It is a stunning and incredible tragedy," said Barry S. Levin, chairman of Heller Ehrman White & McAuliffe, another San Francisco firm. "A lot of people are going to want to understand how a firm of the stature of Brobeck could end up dissolving. Whether it's the Internet boom or growing too fast for the volume of work or too much emphasis on one practice area, I don't know."

Brobeck employs just over 500 lawyers around the country, down from more than 900 in 2000; it lost nearly one-third of its lawyers last year. Although the firm was founded in 1926 — making it ancient in the San Francisco legal market — it became far more prominent in the late 1990's during the dot-com boom. It grew rapidly by hiring law school graduates eager to live in San Francisco and work on the fringes of the high-technology economy.

Its partners took home nearly $1.2 million each, on average, in 2000. The firm was also one of the first to offer lawyers fresh out of law school salaries on par with those paid by New York law firms — as much as $125,000.

But those hefty salaries left Brobeck with high costs, and as some of the firm's clients stopped selling their stock, merging or in some cases operating, the firm found itself in an increasingly difficult position. While Brobeck has as clients a number of big companies, including Cisco Systems, Compaq and Gap, it tried to diversify its customer base too late, lawyers at other firms said.
American Justice
-- Shoe bomber sentenced to life in prison

Judge William Young today presided over a contentious sentencing hearing for convicted Al Qaeda terrorist Richard Reid, who was too scared, too incompetent or too sweaty to ignite his explosive shoes on American Airlines Flight #63 over the North Atlantic. At the end of the hearing, Judge Young took the disheveled terrorist to task:

"You're a big fellow," the judge said. "But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders."

The judge then pointed to the American banner flying behind his bench and, his voice rising too, issued his own warning:

"See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will."

Following that comment, Reid stood up, shaking his fist and yelling at the judge as he was hauled out of the courtroom by 4 U.S. Marshals.

"That flag will be brought down on the day of judgment," Reid shouted, "and you will see in front of your Lord, my Lord, and then we will know."

Unmoved by this outburst, Judge Young sent Reid to prison with the following thought.

"We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before.
"You," he added, "are not an enemy combatant. You are a terrorist. And we do not negotiate with terrorists. We hunt them down one by one and bring them to justice."

: The news tip about Chief Justice Rehnquist was wrong, and my "publish" command to delete that post did not go through my Internet connection. Thus, I've had an absolutely wrong and boneheaded post online for the last 9 hours. Mea culpa, mea culpa, mea maxima culpa. Needless to say, I have taken my source to task.

Wednesday, January 29, 2003

Politics and Judicial Confirmation II

See also the comments by UCLA Professor Stuart Banner at the Volokh Conspiracy on Jeff Sutton's hearing today before the 6th Circuit. Among other things, Prof. Banner clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and recently published a book on capital punishment in America. He's one of the smartest law professors I've ever talked to, and his comments are quite insightful.
Politics and Judicial Confirmation

Chris Baker's comments at Half Baked on today's Senate Judiciary Committee deserve notice. He rightly points out the problem with holding lawyers accountable for every client they've ever represented, or every stand they've taken. After all, Chris reminds us, lawyers are paid to be advocates. They ought not be second-guessed by the Senate Judiciary Committee for strong advocacy or unpopular defenses -- even awful clients deserve to be represented by good counsel on their day in court.

Excerpt from AP Story:

Democratic senators criticized Sutton for attempts to limit federal civil rights protections and gut or weaken protections for state employees with disabilities and older workers. The Columbus, Ohio, lawyer argued successfully in a Supreme Court case in 2000 that Congress exceeded its authority by permitting state workers to sue their states under the Americans With Disabilities Act.

``How can we be sure you're not going to continue that agenda when you're on the court?'' asked Sen. Edward Kennedy, D-Mass.

Sutton said he has represented all types of people and organizations as a lawyer — including murderers — guaranteeing that some Judiciary Committee members will disagree with his clients. "I don't stand a chance in trying to become a judge if one looks at all of my clients and decides whether they agreed with their views," he said.

``I'm trying very hard to show you that I would be an objective judge and that the client I would have is ... the rule of law, not a former client,'' Sutton added.

Slate: Chance of war rises from 80 to 84 percent

Bush says 1) U.S. intelligence shows Saddam is hiding WMD, silencing scientists, and helping al-Qaida; and 2) Powell will present this intelligence to Security Council Feb. 5. Bush indicates Saddam has blown "his final chance." Britain agrees Iraq is in "material breach" of U.N. resolution. Blair will lobby European leaders to support war. Russia says it could end up supporting war but now sees no "grounds for the use of military force."

Again, William Saletan is my favorite of all the media tea-leaf readers. It's still an unexact science, especially considering that he does not have access to any of the classified information that official decisionmakers are working from. But so far, his notes have been on target.
"Amateurs talk tactics... professionals talk logistics"

So says a U.S. Marine Corps major working in the Kuwaiti desert, where the Marines are busy putting troops and equipment together into force packages for a possible war in Iraq. This is the nuts & bolts work of preparing for war. (See this Washington Post article) You draw your equipment, do Preventive Maintenance Checks & Services (PMCS), fix any deficiencies, and then start using the equipment to build familiarity and work out any problems out of the box. Leaders continue to do pre-combat checks and pre-combat inspections right up until the minute the troops cross the line-of-departure for combat. This is the unglamorous work of military professionals -- what soldier and Marines do before the shooting starts. But when you pull the trigger in combat, it is this detailed work that makes the difference between a click and a boom.

For the past week, about 500 Marine logistics specialists have worked around the clock, unloading, repairing and assembling enough equipment to supply a division of 17,000 for a month-long operation. This phase of the U.S. military buildup in Kuwait, although unglamorous, is among the most important should the troops be sent to war, Marines here said.
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Hundreds of Marines, many of whom arrived in Kuwait just three days ago, spent the day testing their gear and taking inventory to make sure everything they will need is in place. They are joining several thousand Marines already in Kuwait from the 1st Marine Expeditionary Force, based at Camp Pendleton, Calif.
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The Marines have staged thousands of tons of equipment in areas where it can be more quickly transported to deploying troops than if it were stored at bases in the United States. Civilian container ships loaded with such pre-positioned gear steamed into the Persian Gulf from the Mediterranean Sea and the Indian Ocean and arrived at a port near Kuwait City early last week. Marine logistics specialists met the ships and hauled away the cargo, which included: stuffed shipping containers and steel mesh "shark cages" for bundling in smaller equipment, Abrams tanks, Amtrak Amphibious Assault Vehicles, seven-ton trucks, M-198 howitzer artillery pieces and hundreds of Humvee four-wheel drive vehicles. They brought the equipment to this staging area, called the Arrival Assembly Operations Element, in the northern Kuwaiti desert.
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Maj. David Nathanson, 33, of Newark, a logistics officer for the 7th Marine Regiment, had this to say: "The work often falls outside the spotlight, but behind the scenes is a huge effort that can make all the difference. Without all the right parts, a tank is just 70 tons of steel."

KUSP Radio (Santa Cruz NPR Affiliate) - "Talk of the Bay"
- Wednesday, January 29th, 6:30 p.m.

Joe Hall, host of Talk of the Bay, has asked me to join Mark Eitelberg, a Professor at the Naval Post Graduate School, for a half-hour discussion of Rep. Charlie Rangel's proposal to institute a draft for America's military. Professor Eitelberg is one of the nation's leading authorities on America's All-Volunteer Force. Over the past 27 years, he has directed several dozen-research projects on the voluntary military; he's now a professor at the Naval Postgraduate School in Monterey. I'm still flattered by Mr. Hall's invitation, especially given Prof. Eitelberg's credentials. I think he invited me because of my December Washington Monthly article on women in combat, and my recent service in America's all-volunteer Army.

In any case, please tune in -- I think it will be a good program. KUSP has streaming audio capability on their website, so you should be able to listen from anywhere via the Internet.

Tuesday, January 28, 2003

Imminence, Iraq and Terrorism

I thought that President Bush did an excellent job tonight in laying out the arguments for why America must press the fight against Iraq and terrorists. (Speech text available here) Imminence of threat is not something you can gauge precisely; it's something that can only be precisely known in hindsight. When failure to perfectly judge imminence might mean thousands -- or millions -- of dead Americans, the President correctly errs on the side of caution. Pre-emption is the logical response to a threat which serves no notice of attack.
"Today, the gravest danger in the war on terror the gravest danger facing America and the world is outlaw regimes that seek and possess nuclear, chemical, and biological weapons. These regimes could use such weapons for blackmail, terror, and mass murder. They could also give or sell those weapons to their terrorist allies, who would use them without the least hesitation.

"This threat is new; America s duty is familiar. Throughout the 20th century, small groups of men seized control of great nations built armies and arsenals and set out to dominate the weak and intimidate the world. In each case, their ambitions of cruelty and murder had no limit. In each case, the ambitions of Hitlerism, militarism, and communism were defeated by the will of free peoples, by the strength of great alliances, and by the might of the United States of America. Now, in this century, the ideology of power and domination has appeared again, and seeks to gain the ultimate weapons of terror. Once again, this Nation and our friends are all that stand between a world at peace, and a world of chaos and constant alarm. Once again, we are called to defend the safety of our people, and the hopes of all mankind. And we accept this responsibility."
"Before September 11, 2001, many in the world believed that Saddam Hussein could be contained. But chemical agents and lethal viruses and shadowy terrorist networks are not easily contained. Imagine those 19 hijackers with other weapons, and other plans this time armed by Saddam Hussein. It would take just one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known. We will do everything in our power to make sure that day never comes.

"Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option."

President Bush punctuated this part of his speech with a message for America's men and women in uniform:

"Tonight I also have a message for the men and women who will keep the peace, members of the American Armed Forces: Many of you are assembling in and near the Middle East, and some crucial hours may lie ahead. In those hours, the success of our cause will depend on you. Your training has prepared you. Your honor will guide you. You believe in America, and America believes in you."

"Sending Americans into battle is the most profound decision a president can make. The technologies of war have changed. The risks and suffering of war have not. For the brave Americans who bear the risk, no victory is free from sorrow. This Nation fights reluctantly, because we know the cost, and we dread the days of mourning that always come."
Slate: Chances of War Jump to 80%

William Saletan, an experienced reporter who serves as Slate's chief political correspondent, rates daily the chances of a war with Iraq. His numbers have hovered between 50-70 percent for most of the last few months. Today, the rating jumped to 80%. Of all the tea-leaf readers, I think Mr. Saletan is one of the best. This jump makes me think some sort of action is imminent.

"Dispute sharpens and solidifies between Blix and Iraq. Blix: "Iraq appears not to have come to a genuine acceptance—not even today—of the disarmament which was demanded of it. ... [Iraq's Dec. 7 declaration] does not seem to contain any new evidence that would eliminate the questions." Iraq's U.N. ambassador: "Iraq has fully complied with all its obligations. ... All the remaining disarmament issues referred to in Mr. Blix's statement were actually explained in our declaration." U.S. says it will publicly disclose intelligence showing Iraq is hiding WMD from inspectors. Peace spin: Security Council skeptics still aren't budging. War spin: Iraq is eliminating the alternatives to war."
Norman Schwarzkopf: Give Peace a Chance

Tom Ricks reports in today's Washington Post that retired-General Norman Schwarzkopf, commander of U.S./Allied forces in Gulf War I, thinks America ought to wait before launching a new offensive on Iraq. Schwarzkopf has broken from the Army's official establishment before, both in publishing his detailed autobiography and in refusing to join a number of official think-tanks, forums and after-action reviews following the Gulf War. In retirement, he has often provided the voice of an iconoclastic and irascible senior officer who has seen a lot -- and who zealously guards his right to say what he thinks.

The general who commanded U.S. forces in the 1991 Gulf War says he hasn't seen enough evidence to convince him that his old comrades Dick Cheney, Colin Powell and Paul Wolfowitz are correct in moving toward a new war now. He thinks U.N. inspections are still the proper course to follow. He's worried about the cockiness of the U.S. war plan, and even more by the potential human and financial costs of occupying Iraq.
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In fact, the hero of the last Gulf War sounds surprisingly like the man on the street when he discusses his ambivalence about the Bush administration's hawkish stance on ousting Saddam Hussein. He worries about the Iraqi leader, but would like to see some persuasive evidence of Iraq's alleged weapons programs.

"The thought of Saddam Hussein with a sophisticated nuclear capability is a frightening thought, okay?" he says. "Now, having said that, I don't know what intelligence the U.S. government has. And before I can just stand up and say, 'Beyond a shadow of a doubt, we need to invade Iraq,' I guess I would like to have better information."

NYT: Service Academies Defend Use of Affirmative Action

Today's NY Times runs an article (that the Wall Street Journal ran last week) saying that the Bush Administration's brief in Grutter v. Bollinger may contradict its use of race in admissions to the four service academies. However, I don't think this is correct as a matter of law. First, the Solicitor General's Brief in Grutter allows for diversity per se as a compelling government interest. Second, the SG's brief does not say that all uses of race are impermissable -- only that Michigan's program is not narrowly tailored to achieve a compelling government interest. The programs at America's military academies will probably survive, for three reasons:

1) The government interest at stake (see below) is considerably more compelling than that in achieving diversity per se in higher education. Unit cohesion is the bedrock of military effectiveness, and a diverse officer corps contributes immeasurably to unit cohesion in a military which is more racially diverse than society at large.

2) The West Point, Naval Academy, Air Force Academy, and Coast Guard Academy admissions systems are arguably more narrowly tailored to achieve that compelling interest than the ones at Michigan. Admissions officers at each academy spend more time on each application and carefully screen the applications of all students who may be offered admission. Moreover, there's a clear nexus between the goal (diverse military officer corps) and the means used (selection for the academy), since one necessarily leads to the other. It's not like admitting minority students to law school and hoping they work in public-interest law (instead for Gibson Dunn). Students who graduate from the academy automatically go onto serve, thus fulfilling the government's interest in this situation.

3) The Constitution explicitly grants powers to Congress to make regulations for the military (Art. I, Sec. 8), and to the President to command the military (Art. II). The Supreme Court typically defers to the military on a wide range of issues because it recognizes the primacy of the other two branches in making military policy. It would probably do so here as well.
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At each academy, which the federal government operates, admissions officers cited two main reasons for racial diversity in admissions, one singular to the military and one widely heard in higher education.

The familiar argument, as expressed by Col. Michael L. Jones, dean of admissions at West Point, is: "We like to represent the society we come from in terms of the student body's undergraduate experiences. So having a diverse student body allows personal growth in areas where people may not have gotten it otherwise. We want people to understand the society they will defend."

The military argument is that with racial minorities making up from 28 percent of the enlisted personnel in the Air Force to 44 percent in the Army, almost all-white ranks of officers would hurt morale.

"We want to build an officer corps," said Dave Vetter, the Naval Academy dean of admissions, that "reflects the military services of which we are a part." Colonel Jones said, "Officers of color are important as role models in the Army."

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