Inadmissible

In the June 30 issue of The New Republic, Justin Driver , an assistant professor at the University of Texas School of Law , criticizes what he calls the Obama administration’s “lethargic rate” of judicial nominations and paucity of judicial nominees “who seem inclined to engage in the hard work of combating the conservative constitutional agenda.” In an interview, Driver says he wrote the article, titled “Obama’s Law,” because enough time has passed to evaluate President Barack Obama ‘s judicial appointment record and it’s not impressive. “I didn’t think it would be fair to write the article without having a decent number of data points,” says Driver. In the article, Driver notes that, during the administration’s first two years, Obama nominated 103 federal district and circuit court of appeals judges, 26 fewer than former President George W. Bush and 37 fewer than former President Bill Clinton during their first two years. Driver is not optimistic about what Obama may accomplish with judicial appointments for the rest of his term. “The time to do it is within the first two years of an administration,” he says. Has Driver heard any feedback from the White House? “Not directly,” he says.

The Call

Baker Botts associate Evan Young of Austin was surprised when he got a call on June 13 from an old boss. That boss was U.S. Supreme Court Justice Antonin Scalia , and instead of a social call, Scalia telephoned his former clerk to see if he would argue for the U.S. Department of Justice in an appeal set for the court’s next term. Young says Scalia called him just minutes after the Supreme Court agreed to hear the appeal in Setser v. United States , in which the federal government no longer supports a 5th U.S. Circuit Court of Appeals decision. According to Young, Scalia said, “ ’We just granted a case, Setser v. U.S. The government agrees with the other side, so we need somebody to argue’ ” the government’s position. Young, who clerked for Scalia in 2005 and 2006, says he notified Scalia he could take the assignment after he determined there were no conflicts at Baker Botts. In Setser , the court will decide if a district court has authority to order a federal sentence to run consecutively with an anticipated, but not yet imposed, state sentence. The 5th Circuit ruled on May 11, 2010, that the court could do so. Young, who joined Baker Botts after his U.S. Supreme Court clerkship and a stint at the U.S. Attorney General’s Office, says he dreamed of the opportunity to argue before the nation’s highest court, but wasn’t expecting it so early in his career. As to why Scalia selected him, Young says it’s a “great mystery” to him. Setser’s lawyer, Jason Hawkins , who works at the Federal Public Defender’s Office for the Northern District of Texas, did not return a telephone call seeking comment.

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