Ames Moot Court Final Round – November 14, 2017

Welcome to CR-CL’s Live Blog of the Ames Moot Court Finals!

Please scroll down for the live blog. We’ll start blogging shortly before 7:30 pm on November 14, 2017.

The Ames Competition is one of the most prestigious competitions for appellate brief writing and advocacy in the country. This year’s final round competition will be judged by Chief Justice John G. Roberts, Judge Debra Ann Livingston of the U.S. Court of Appeals for the Second Circuit, and Judge Carl E. Stewart of the U.S. Court of Appeals for the Fifth Circuit.

Dylan Bloom v. United States of America

Like all male U.S. citizens, petitioner Dylan Bloom was required to register with the Selective Service System when he turned 18 years old in June 2007.  But Bloom declined to register then or at any time before his 26th birthday in June 2015.  Bloom openly flouted the registration requirement, sending an annual letter to the Selective Service System stating that he had not registered for the draft and did not intend to do so.  Bloom also criticized the draft in postings on social media sites and counseled teenagers on a swim team he coached to decline to register.

The government indicted Bloom on one count of willfully failing to register with the Selective Service System, in violation of 50 U.S.C. §§ 3802(a) and 3811(a).  Bloom moved to dismiss the indictment on the ground that the statute impermissibly discriminates on the basis of gender in violation of equal protection by requiring men, but not women, to register for the draft.  The district court denied the motion because the Supreme Court rejected an equal protection challenge to the registration requirement in Rostker v. Goldberg, 453 U.S. 57 (1981).

Bloom then decided to enter a conditional guilty plea, and he consented to have a magistrate judge conduct the plea colloquy and accept his guilty plea.  But before sentencing, Bloom moved to withdraw his plea.  Bloom contended that he had an unqualified right to withdraw under Federal Rule of Criminal Procedure 11(d)(1), which applies “before the court accepts the plea.”  Bloom argued that the magistrate judge had lacked statutory and constitutional authority to accept the plea.  Bloom contended that the acceptance of guilty pleas in felony cases cannot qualify as an “additional duty” under Section 636(b)(3) of the Federal Magistrates Act.  And Bloom further argued that permitting magistrate judges to accept felony guilty pleas would usurp judicial power in violation of Article III’s structural guarantee.  The district court rejected those arguments and denied Bloom’s motion to withdraw.

The Ames Circuit affirmed.  On the equal protection issue, the Ames Circuit recognized that Rostker’s equal protection holding rested on the fact that men and women were not similarly situated for draft registration purposes because women were ineligible to serve in combat when Rostker was decided.  Although combat restrictions on women in the military were gradually removed and ultimately lifted in full by January 2016, the Ames Circuit concluded that it was the Supreme Court’s prerogative to determine whether Rostker was still good law and controlled the validity of Bloom’s conviction.  On the plea withdrawal issue, the Ames Circuit held that magistrate judges have statutory authority to accept felony guilty pleas and that such authority does not violate Article III.

The Supreme Court granted certiorari to consider:

(1) Whether it should overrule Rostker and hold that Bloom’s conviction must be vacated  because the Selective Service registration requirement unconstitutionally discriminates on the basis of gender; and

(2) Whether Bloom is entitled to withdraw his felony guilty plea as a matter of right because the magistrate judge lacked statutory or constitutional authority to accept the plea.

Finalist Teams:

The John Hart Ely Memorial Team
David Beylik
Jason Ethridge (Oralist)
Jenya Godina
Isaac Park
David Phillips (Oralist)
Derek Reinbold

The Fred T. Korematsu Memorial Team
Frederick Ding (Oralist)
Vivian Dong
Henry Druschel
Lydia Lichlyter (Oralist)
Raeesa Munshi
William Schmidt

The Liveblog:

Kaitlyn Gerber November 14, 20179:44 pm

Thanks everyone – have a great night!

Kaitlyn Gerber November 14, 20179:43 pm

And with that, we are adjourned!

Kaitlyn Gerber November 14, 20179:43 pm

Best Team Overall: The Respondents, Fred T. Korematsu Memorial Team!

Kaitlyn Gerber November 14, 20179:43 pm

Best Brief: Respondents – the Korematsu Memorial Team!

Kaitlyn Gerber November 14, 20179:42 pm

J. Roberts: We select the following winners:

Best Oralist – David Phillips!

Karin Drucker November 14, 20179:42 pm

J. Roberts: In real life, we’re not asked to pick the best oralist or the best brief, you’re asked to pick the correct answer per the law.

We don’t want to comment on the merits of the case. But now, we’re asked to announce the winners.

Kaitlyn Gerber November 14, 20179:41 pm

J. Livingston: I miss being a professor and getting to say “hi five” to the oralists – as a Judge, that’s considered a tad unseemly to do.

Karin Drucker November 14, 20179:40 pm

J. Livingston: One thing I didn’t like about becoming a judge and leaving being a law professor, you don’t get to commend the person doing it. When the oralist is on top of their game and is able to pivot back and make their points comfortably and conversationally, you’re performing a public service for the court.

Kaitlyn Gerber November 14, 20179:39 pm

J. Stewart: Impressive work on the details – you must all have nimble brains to handle all the statistics, especially with the nerves that I’m sure everyone had going.

Karin Drucker November 14, 20179:38 pm

J. Stewart: You all did a wonderful job of staying on point even though all the judges may focus on different aspects of them. You did a great job pivoting back to your points.

Karin Drucker November 14, 20179:37 pm

J. Stewart: I echo the chief. I’m glad I’m up here and not down there.

Kaitlyn Gerber November 14, 20179:37 pm

J. Roberts: Smooth pacing, everyone. Nice work. Everyone in the audience should appreciate how extraordinarily difficult this is to do.

Karin Drucker November 14, 20179:37 pm

J. Roberts: I was particularly impressed that nobody seemed to be particularly nervous…. we must not be particularly terrifying.

Kaitlyn Gerber November 14, 20179:36 pm

J. Roberts: This was a difficult job for you guys, because all of us ask for different questions and perspectives – you have to keep your eye on that ball. Sometimes, you have to deal with things you’d prefer not to. It’s stressful!

Karin Drucker November 14, 20179:36 pm

J. Roberts: I want to thank the teams that have prepared briefs and made arguments. The dedication and ability have shone through!

Karin Drucker November 14, 20179:35 pm

J. Roberts: As for the decision announcement. We’ll get there in a little bit.

Kaitlyn Gerber November 14, 20179:35 pm

And we’re back! Judges are re-entering from chambers.

Karin Drucker November 14, 20179:35 pm

All rise!

Kaitlyn Gerber November 14, 20179:07 pm

That’s all from the oralists! Judges head to chambers to deliberate.

Kaitlyn Gerber November 14, 20179:07 pm

J. Roberts: Plus, Morales Santana wasn’t a criminal case! It was a civil case.

Phillips: Only competent authority can have competent repeal of a statute. The Fifth Amendment has no savings clause. My Client has the right to challenge the facial constitutionality, like previous petitioners could challenge the Twenty First Amendment.

Karin Drucker November 14, 20179:07 pm

Phillips: This court also explained that when the court remedies an equal protection issue, a criminal case may be vacated.

J. Roberts: Dicta! You’re relying on dicta.

Kaitlyn Gerber November 14, 20179:06 pm

Phillips: The MSSA, as it stood in 2016, was unconstitutional. My client has the right to challenge that in a facial matter.

Kaitlyn Gerber November 14, 20179:05 pm

Phillips: As to the facial vs. as applied distinction – the government cannot prosecute or convict under a statute that has since lost its constitutional force, under Chambers.

Karin Drucker November 14, 20179:05 pm

Phillips for petitioner: District courts do hire and fire the magistrates but it’s of little help to individual defendants, as the court has pointed out.

Karin Drucker November 14, 20179:04 pm

The government’s time has expired.

Now the teams are back for rebuttals.

Kaitlyn Gerber November 14, 20179:03 pm

Ding: Yes, Your Honor.

J. Roberts: And further, you can’t waive the requirement of consent.

Karin Drucker November 14, 20179:03 pm

J. Stewart: This guy consented to the magistrate judge accepting his plea. This person stood in front of a judge and pled guilty. Why is that not the main part of your argument?

Kaitlyn Gerber November 14, 20179:02 pm

Ding: What we’re talking about here is a system of magistrates, and a system of the judiciary, in resolving disputes. Everybody in the courtroom agrees: the Defendant wants to plead guilty.

Kaitlyn Gerber November 14, 20179:00 pm

Ding: Your Honor, if the Defendant could find an error, he could advance the challenge and ask for de novo review. That is sufficient to advance the relevant interests. That is still sufficient to advance the Court’s interests in Wellness.

Karin Drucker November 14, 20179:00 pm

J. Roberts: Any idea of how often a District Judge takes de novo review of a magistrate’s acceptance of a guilty plea.

Ding: But they could if they wanted to…

J. Roberts: What else do you have?

Kaitlyn Gerber November 14, 20178:59 pm

Ding: Structural concerns are about the judicial power, and the role of judges, not individual defendants. District judges still decide whether the refer to a magistrate, and they can still undo the magistrate’s acceptance of the felony plea.

Karin Drucker November 14, 20178:59 pm

J. Roberts: The idea that you could fire a magistrate if they keep making mistakes is of little comfort to most defendants.

Karin Drucker November 14, 20178:58 pm

Ding: It’s not impermissible under statute for magistrates to do this duty.

Kaitlyn Gerber November 14, 20178:58 pm

J. Stewart: But shouldn’t the person who looks you in the eye with the plea be the same person who looks you in the eye at sentencing?

Kaitlyn Gerber November 14, 20178:57 pm

Ding: But at sentencing, the defendant will personally appear before the district judge – that is enough.

Karin Drucker November 14, 20178:57 pm

J. Livingston: Most District Judges experience a profound responsibility and you get precious little time with the defendant who decides to take the plea. The judges need to ask themselves, “Does he understand what I’m saying?” Should magistrates be doing this?

Kaitlyn Gerber November 14, 20178:56 pm

Ding: No, Your Honor. District Court judges still do the most important thing – sentencing. Second, to the extent that it’s a problem, we have a problem with the plea system, not the role of magistrates.

Karin Drucker November 14, 20178:56 pm

J. Livingston: Does it bother you that 97% of federal felony dispositions are through guilty pleas? So magistrates could dispose of 97% of those cases?

Kaitlyn Gerber November 14, 20178:55 pm

J. Livingston: But this is a little different than Peretz, right? The district court judge can always decide not to empanel a jury, but in a plea, there must be on the record a fair and just reason for withdrawing the plea.

Karin Drucker November 14, 20178:54 pm

Ding: The magistrates make very simple findings and district judges can always catch errors and defendants can point them out through R. 11(d)(2).

Kaitlyn Gerber November 14, 20178:54 pm

J. Roberts: It is part of basic Art. III responsibility to take guilty pleas, and I think it’s harmful to the judiciary to be able to shunt these concerns off to a magistrate.

Karin Drucker November 14, 20178:53 pm

Ding: I believe there are honest judges who would not delegate their duty to accept guilty pleas.

J. Stewart: You believe there are honest judges?

Kaitlyn Gerber November 14, 20178:53 pm

Ding: Your Honor, the heart of the issue is whether it would be permissible for district judges to choose to do so at all.

Karin Drucker November 14, 20178:52 pm

J. Stewart: All the circuits have their unique cultures… .to put it mildly.

Karin Drucker November 14, 20178:52 pm

J. Stewart is great with words.

J. Stewart: There is a circuit split on this issue. Has this question sufficiently percolated? Need it percolate further?

Karin Drucker November 14, 20178:51 pm

Ding: No, your honor. They say they would not recommend it, but it wasn’t a statement about statutory authority.

Kaitlyn Gerber November 14, 20178:50 pm

J. Livingston: hasn’t the judicial conference twice recommended against recommoneding magistrates accept guilty pleas?

Karin Drucker November 14, 20178:50 pm

Ding: Unenacted legislative history is not very helpful.

Kaitlyn Gerber November 14, 20178:50 pm

Ding: The importance analysis ensures that judges maintain sufficient review of actions magistrates do. The less revealable an action is, the more important it is that it be done correctly. The more complex it is, the more important that it is done by someone capable of handling it.

Kaitlyn Gerber November 14, 20178:49 pm

Ding: Only in a limited manner, Your Honor. Raditz and Gomez both recognize that Congress enumerated certain dispositive issues, but the relevant paragraph only applies to pretrial matters and habeas.

J. Roberts: what can be more important than being found guilty of a felony? The end result [of a trial] is the same – an individual is guilty of an offense.

Ding: Yes. Consequence is not the only aspect that we care about. Peretz, for instance, focused on guilty plea, and lower courts have looked at aspects such as complexity and consequence. Consequence alone doesn’t determine whether it is dispositive.

Karin Drucker November 14, 20178:48 pm

J. Livingston: In past cases Raditz and Gomez, didn’t we discuss the line between dispositive and non-dispositive to determine what should be given to magistrates to decide?

Karin Drucker November 14, 20178:47 pm

Ding: The magistrate was obliged to accept the plea.

Karin Drucker November 14, 20178:47 pm

Ding: Under Wellness, the performance of the magistrate’s duty to accept a guilty plea did not violate Art III b/c it was under supervision of district court.

Kaitlyn Gerber November 14, 20178:46 pm

Next, for the Government: Frederick Ding.

Karin Drucker November 14, 20178:46 pm

J. Roberts: Thank you, counsel!

Kaitlyn Gerber November 14, 20178:46 pm

Lichlyter: Congress has the Constitutional ability to not register a group it knows it doesn’t need to register. Congress has also chosen to do this with age groups – only registers men 18-26. We choose not to register 27 year olds because it is substantially related to Congress’s interest in protecting the country. Thank you.

Kaitlyn Gerber November 14, 20178:45 pm

Lichlyter: Your Honor, that’s fair. We don’t defer to military expertise on the question of how the MSSA is determined, we defer to Congress’s reasonable action to not register a group that it knew, with 100% accuracy, wouldn’t be eligible for the roles Congress was concerned with filling. What Congress stated was that the remaining 80,000 positions would be filled by volunteers – no need for a draft. Congress found in 1980, and continued to believe through 2015, that drafting women would serve no purpose.

Karin Drucker November 14, 20178:44 pm

J. Roberts: I think you’re trying to bootstrap an argument about military expertise. The military expertise isn’t required to tell you it’s ok or not to have a list of people of draft age.

Kaitlyn Gerber November 14, 20178:43 pm

Lichlyter: Begin equal treatment where it matters: in people being drafted. Petitioner has argued that the burden is that men are more likely to be drafted, and if that’s the case, what matters is whether the people being deployed to the battlefield are the right ones.

Kaitlyn Gerber November 14, 20178:42 pm

J. Roberts: registration, unlike the draft, simply provides more information to the military. I don’t think the MSSA adresses the question that you must address equal amounts of registration.

Karin Drucker November 14, 20178:42 pm

Lichyter: That is a judgment the military makes with its ground-level perspective. It had not chosen to lift the restrictions. They’re presumptively reasonable. Second even if the nature of war has changed, the nature of the draft has not.

Kaitlyn Gerber November 14, 20178:41 pm

J. Livingston: Petitioner says there had already been changes in the nature of warfare to make this distinction untrue.

Karin Drucker November 14, 20178:41 pm

Lichyter: Similar to Shelby County – stating that a law that had been permissible for a certain period was unconstitutional. Thus here the enforcement of that registration requirement is valid so long as the application of the registration requirement itself is valid.

Kaitlyn Gerber November 14, 20178:40 pm

Lichlyter: Further, in Chambers, there was a problem with the authority: the animating force was from the 18th Amendment. But here, the relevant amendment – 14 – hasn’t changed. The facts that apply in Petitioner’s case, which determine whether this is a permissible classification, are those that existed when he was required to register, not when he was convicted.

Karin Drucker November 14, 20178:39 pm

Lichlyter: The relevant change is between conduct and conviction, not conviction and appeal.

Kaitlyn Gerber November 14, 20178:38 pm

J. Livingston: But the Petitioner says we have to focus on the time of the arrest, not the conviction.

Karin Drucker November 14, 20178:38 pm

Lichlyter: The interest is protecting American lives in the case of a national emergency! Congress had significant reasons not to register women.

Kaitlyn Gerber November 14, 20178:37 pm

J. Roberts: well, the facts may or may not have changed, but the legal approach has changed. Rostker did not apply the same type of intermediate scrutiny as Santana, correct?

Lichlyter: Respectfully, they are the same test: whether the gender-based classification is substantially related to the government’s compelling interest. Even in VMI, the Court made no mention of the slightly changed language in Santana.

Karin Drucker November 14, 20178:36 pm

Lichlyter: This cannot be understood as a facial challenge. The facts hadn’t changed yet. So if that is the basis of his case, it cannot be a successful facial challenge.

Kaitlyn Gerber November 14, 20178:36 pm

J. Stewart: Is this an as applied challenge, or facial challenge?

Kaitlyn Gerber November 14, 20178:36 pm

Lichlyter: First, the government does not rely on stare decisis as the justifying principle – Rostker was correctly decided given the facts, and it’s correct today given the facts and circumstances. Whether that case would apply if they were arguing about a refusal to register after 2016 is a different issue.

Karin Drucker November 14, 20178:35 pm

J. Roberts: I take it you can see Rostker was wrongly decided as of today?

J. Stewart: Why are you clinging so tightly to this precedent, which is tenuous at best? What is this stringent clinging?

Kaitlyn Gerber November 14, 20178:34 pm

Lichlyter: Before the Vietnam War, the vast majority of people serving in ground combat were closed to women. There were 220,000 positions in which women could not serve before 2016.

Kaitlyn Gerber November 14, 20178:34 pm

J. Roberts: to follow up, at what point would it have been enough slots open to women that Rostker would have been undermined?

Karin Drucker November 14, 20178:33 pm

J. Roberts: Well we’d like to decide the case before us not one that might come down the road.

Kaitlyn Gerber November 14, 20178:33 pm

Lichlyter: Two reasons, your honor. The NSA requires that all individuals be drafted in a random manner, so if we began registering women, they’d have to be drafted 50/50 with men. Second, this would simply push the discrimination down the line. It’s hard to see why that problem would be solved by merely doing it at the draft level.

Karin Drucker November 14, 20178:32 pm

J. Roberts: We’re talking about registration. Regardless of how many women you can put to use on the ground, why not draft them?

Kaitlyn Gerber November 14, 20178:31 pm

Lichlyter: Rostker was rightly decided.

Karin Drucker November 14, 20178:31 pm

J. Livingston: Why shouldn’t we overturn Rostker?

Karin Drucker November 14, 20178:30 pm

Lichlyter: In a draft, ground combat is key.

Kaitlyn Gerber November 14, 20178:30 pm

Lichlyter: the reason that we look to the facts during the period of registration is because he’s alleging a discrete violation. Petitioner argues that Congress’s purpose was combat troops, not ground troops. But the ground combat roles were the focus of Congress’s inquiry, even in 1980, and Congress has continued to focus on this in intervening years – making it clear that this is the focus.

Karin Drucker November 14, 20178:29 pm

J. Roberts: To the extent that there was discrimination, this discrimination happened it ended in 2015. His conviction should not be vacated because we restrict ourselves to that period.

Kaitlyn Gerber November 14, 20178:29 pm

Now, for the Government: Lydia Lichlyter.

Kaitlyn Gerber November 14, 20178:29 pm

Phillips’s time has expired. They ask the Court reverse.

Karin Drucker November 14, 20178:28 pm

J. Roberts: It’s dispositive of the motion, but not of the case itself.

Phillips: The test for dispositive is rather capacious- is this category of thing have a reasonable likelihood of determining the case.

J. Roberts: So a mag. judge cannot grant a motion for extension of time because it will be dispositive?

Kaitlyn Gerber November 14, 20178:28 pm

Phillips: The test for dispositivity isn’t whether it ends litigation at that moment. The idea is whether this category of things has a reasonable likelihood of being determinative of the case.

Kaitlyn Gerber November 14, 20178:28 pm

Phillips: Both of these motions are dispositive. It’s true that the court in Raditz used the language, but it described it as dispositive, and the federal rules confirm this.

Karin Drucker November 14, 20178:27 pm

J. Livingston: Motions to suppress/preliminary injunctions are not dispositive either right?

Kaitlyn Gerber November 14, 20178:27 pm

Phillips: Slippery slope problem, Your Honor. Congress was clearly worried about the slippery slope here by collapsing the Art. III distinction.

Karin Drucker November 14, 20178:26 pm

J. Roberts: We are talking about an Art. III separation issue. Do we think that Art. III will collapse if magistrate judges accept guilty pleas?

Kaitlyn Gerber November 14, 20178:26 pm

Phillips: It’s fine to characterize it as supervision, but even in that analysis, the prior cases have concerned the district court which actually had the legal determination in the first instance.

Karin Drucker November 14, 20178:26 pm

J. Roberts: It sounded to me like you’re concerned about review. The court in Raditz was concerned about supervision, which is more general. Why concern yourself with the former not the more general supervision?

Kaitlyn Gerber November 14, 20178:25 pm

Phillips: we care about review when the thing being reviewed is already important for other reasons, but review turns on consequences first.

Karin Drucker November 14, 20178:25 pm

J. Livingston: Review might be different between the two cases, no?

Kaitlyn Gerber November 14, 20178:25 pm

Phillips: In Raditz, the final decision was reserved for the district judge, similar to Perez – the legal effect of empaneling was reserved for the District Court.

Kaitlyn Gerber November 14, 20178:23 pm

Phillips: if consent had been the whole inquiry in Wellness, that would be one thing. But I think there’s a difference in this case based on the Shore factors. The Court in Wellness comforted itself with a narrow sliver of Article III conduct, but in this case, there’s an entire category of Article III conduct.

Karin Drucker November 14, 20178:23 pm

*Wellness – brought to you by Chief Justice Roberts:

Karin Drucker November 14, 20178:22 pm

J. Roberts: The Wellness case is a really big hurdle for you.

Karin Drucker November 14, 20178:22 pm

J. Livingston: Does your argument hinge on accepting the line between dispositive and non-dispositive?

Kaitlyn Gerber November 14, 20178:21 pm

J. Livingston: Magistrate judges can accept jury verdicts, no?

Phillips: Yes, but generally in these cases it is purely ministerial acts, at simple moments when district court judges are unavailable. But here, the magistrate judge said she accepted the guilty plea. Acceptance of a guilty plea and acceptance of a ministerial act are different.

Karin Drucker November 14, 20178:20 pm

Phillips: It’s not about reviewability. The key factor is importance — our gloss is that the consequences of accepting a guilty plea are so serious that it is beyond that magistrate’s role.

Karin Drucker November 14, 20178:19 pm

J. Roberts: It doesn’t strike me as a very important thing. There are few errors when accepting a guilty plea. Why is that beyond the magistrate judge?

Kaitlyn Gerber November 14, 20178:19 pm

Phillips: district court doesn’t have to run the colloquy again, and there’s at least two circuits that agree with us.

Karin Drucker November 14, 20178:19 pm

*At issue here, details of the Federal Magistrate Act of 1979

Kaitlyn Gerber November 14, 20178:18 pm

J. Stewart: guilty pleas are an inherent part of the flow of the system. Why make this artificial distinction between dispositive or not, if the duty of accepting a guilty plea rests on the original congressional intent in enacting magistrate judges in the first place?

Karin Drucker November 14, 20178:17 pm

Phillips: ‘Non dispositive and dispositive’ is an important distinction.

Kaitlyn Gerber November 14, 20178:17 pm

J. Livingston: aren’t you over-reading a fundamental difference between “dispositive” and “non-dispositive”? Magistrate judges can do civil trials. What am i misunderstanding?

Karin Drucker November 14, 20178:17 pm

in response to J. Stewart who raised issue of client’s “cold feet”

Phillips: It’s every criminal defendant’s right to have a jury trial and we were allowed to withdraw.

Kaitlyn Gerber November 14, 20178:16 pm

J. Stewart: Even Circuits without a Constitutional problem have ruled because there was consent. Are you really asserting that your client didn’t consent? In other words, he pled guilty, then 30 days later he files to withdraw the guilty plea, and counsel notes that “my client got cold feet.” Are we here to decide this deep issue because your client got cold feet, even if consent could decide this case?

Karin Drucker November 14, 20178:15 pm

Phillips: De novo review is proper.

Kaitlyn Gerber November 14, 20178:15 pm

J. Stewart: Since you mentioned standard of review, the Court of Appeals took the position that plain error was the standard. Is that still an issue, or is de novo review?

Karin Drucker November 14, 20178:15 pm

Phillips: the issue here is that the magistrate judge heard the confession. Two questions arise:

What may a magistrate judge do? What will the standard of review be/

Kaitlyn Gerber November 14, 20178:13 pm

J. Roberts: the issue is a guilty plea! The person wants to accept responsibility. You do go through the normal knowing/intelligent dialogue, but it’s not terrible difficult.

Kaitlyn Gerber November 14, 20178:12 pm

David Phillips is next for the Petitioner:

Kaitlyn Gerber November 14, 20178:12 pm

Ethridge’s time has expired. He asks that the Court reverse.

Karin Drucker November 14, 20178:12 pm

Ethridge: Women just haven’t had a chance [to prove themselves capable in combat] yet.

Kaitlyn Gerber November 14, 20178:12 pm

Ethridge: more importantly, it’s a timeless role we’re asking for. Whatever role this is, it must serve the government’s interests today.

Kaitlyn Gerber November 14, 20178:11 pm

Ethridge: It doesn’t alter the substantive cases for legislation when something is re-enacted. We should still look to the intent of the Congress that wrote this bill.

Karin Drucker November 14, 20178:11 pm

Ethridge: No, we should look to the 1980’s Congress for this point.

Karin Drucker November 14, 20178:11 pm

J. Livingston: Doesn’t the military want women who WANT to be there? Doesn’t Congress’ reluctance to reopen that point mean something for us today?

Karin Drucker November 14, 20178:10 pm

Ethridge: The combat restrictions were the reason to exclude women from the draft. Women should be and will be valuable to the military and now should be included.

Kaitlyn Gerber November 14, 20178:10 pm

Ethridge: Do we need technical skills, or physical skills? Doesn’t make sense to exclude half the population from the draft pool since the nature of combat has changed.

Karin Drucker November 14, 20178:09 pm

Ethridge: The needs of the military should guide who they decide to exclude from the draft.

Kaitlyn Gerber November 14, 20178:08 pm

J. Roberts: if you have 100,000 combat roles, and 80% of the men who are drafted could fill them, would you have to have an 80/20 draft, or would you have to show a 50/50 draft?

Kaitlyn Gerber November 14, 20178:08 pm

Etheridge: it’s a facial challenge. Our position is that at all relevant times, it was unconstitutional as to everyone to whom it applied.

Karin Drucker November 14, 20178:07 pm

J. Stewart: [By refusing to register for the draft,] your client seems to have put a bullseye on his chest and basically baited the prosecution in this case, hasn’t he?

Kaitlyn Gerber November 14, 20178:07 pm

Etheridge: Not a reason not to put women in the pool. People are subject to prosecution, and men’s chances of being drafted are significantly higher.

Karin Drucker November 14, 20178:06 pm

J. Livingston: Is it a judgment for us to make at this time? Congress has not seen fit to revisit the combat requirements… could Congress not consider gender differences?

Kaitlyn Gerber November 14, 20178:06 pm

Etheridge – it wouldn’t have to necessarily be 50/50 to justify drafting women. The government doesn’t know what its needs are going to be in effect to future mobilization.

Karin Drucker November 14, 20178:05 pm

J. Roberts: Aren’t we slicing the baloney a little thin [with the tests you are proposing]?

Kaitlyn Gerber November 14, 20178:05 pm

J. Roberts: it’s still intermediate scrutiny in VMI and Roestker, correct?

Kaitlyn Gerber November 14, 20178:04 pm

Ethridge: wants to move to the rule in VMI, which was that if some women are capable of combat, then gender-based exclusions shouldn’t get in their way. Court has gone out of its way to say that overbroad generalizations (differences in strength) can’t serve as justification for discrimination.

Karin Drucker November 14, 20178:03 pm

Ethridge — We would like the court to focus on ability. If women are able to perform the duties, then they should not be excluded.

Kaitlyn Gerber November 14, 20178:02 pm

J. Livingston: women have been eligible for combat roles only since 2016. How many combat positions are they eligible to serve in?

Etheridge: all of the slots in the military.

J. Livingston: So even today, there’s no representation I can find about how many women would be eligible and capable to serve. How many women must be capable of service to render the registration provisions unconstitutional?

Karin Drucker November 14, 20178:01 pm

J. Livingston: I don’t see anything in the brief about how many women would be able to serve had they registered.

Kaitlyn Gerber November 14, 20178:00 pm

J. Roberts: what percentage of combat positions could be filled by women when Bloom failed to register?

Etheridge: it’s hard to get precise statistics, but by 2013, there were only 10% of roles that women couldn’t fill. By the end of the registration period, it was 5%.

Kaitlyn Gerber November 14, 20177:58 pm

Etheridge: the fact that military policy has changed, and women are allowed in combat, means Roestker is ripe for reconsideration.

Karin Drucker November 14, 20177:58 pm

Ethridge: Because of his gender, Bloom was required to register. Because of his refusal, he was convicted

J. Stewart: Are you arguing that a change in societal conditions and policy has implicitly overruled the underpinnings of precedent?

Kaitlyn Gerber November 14, 20177:56 pm

Justices have entered. The Petitioner, represented by Jason Etheridge, will begin first.

Karin Drucker November 14, 20177:56 pm

Notable facts about this evening’s notable bench:

Judge Stewart is the first African-American chief judge of the 5th Circuit.

Judge Livingston is a recipient of Columbia’s annual Wein Prize for Social Responsibility.

We have all heard of the Honorable Chief Justice John Roberts. Did you know he won 25 out of the 39 cases he argued before the Supreme Court?

Kaitlyn Gerber November 14, 20177:53 pm

On the bench tonight we have:

The Honorable John G. Roberts, Chief Justice of the United States

The Honorable Debra A. Livingston, United States Court of Appeals for the Second Circuit

The Honorable Carl E. Stewart, United States Court of Appeals for the Fifth Circuit

Kaitlyn Gerber November 14, 20177:47 pm

The two finalist teams are as follows:

The John Hart Ely Memorial Team
David Beylik
Jason Ethridge (Oralist)
Jenya Godina
Isaac Park
David Phillips (Oralist)
Derek Reinbold

The Fred T. Korematsu Memorial Team
Frederick Ding (Oralist)
Vivian Dong
Henry Druschel
Lydia Lichlyter (Oralist)
Raeesa Munshi
William Schmidt

Kaitlyn Gerber November 14, 20177:46 pm

Welcome to the CR-CL Ames Live Blog!

The competition has not started yet – it appears to be running a few minutes behind – but tonight’s case, Dylan Bloom v. United States, addresses two questions:

(1) Whether it should overrule Rostker and hold that Bloom’s conviction must be vacated because the Selective Service registration requirement unconstitutionally discriminates on the basis of gender; and

(2) Whether Bloom is entitled to withdraw his felony guilty plea as a matter of right because the magistrate judge lacked statutory or constitutional authority to accept the plea.

Written by

Lisa is a 3L at HLS. She’s from Boston, and lived in China, Indiana, Oregon, and Washington growing up. Before law school, she worked at M.I.T. and Kobre & Kim, a litigation boutique, in New York and Hong Kong. She received her A.B. in History & Literature from Harvard College.

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