Super Lawyers Pro Bono Award
Published in: Northern California Super Lawyers 2009 — August 2009

Q&A with Jon B. Eisenberg

By Steve Kaplan

Appellate specialist Jon Eisenberg quite literally wrote the book on the subject: he's the co-author of the widely used Rutter Group treatise California Practice Guide: Civil Appeals and Writs. Eisenberg, of Eisenberg and Hancock, is not afraid of controversy. He was one of the attorneys representing Terri Schiavo's husband, Michael, and more recently he's sued the Bush administration for its warrantless surveillance policies. And, below, he braves our questions.

 

You have written "effectively ... President George W. Bush is a felon." Why, and do you ever think he'll be brought to justice?

President Bush has freely admitted that his administration committed warrantless electronic surveillance, violating the Foreign Intelligence Surveillance Act of 1978. That's a felony, according to title 50, section 1809 of the United States Code. So President Bush is a felon. It's that simple.

Will he ever be brought to justice? Evidently not by a criminal prosecution, in which the Obama administration seems to have little interest. I'm doing my best to see that he's held to account under FISA's civil liability provision, section 1810 of title 50.

 

You were involved in a surreal battle with the Bush justice department in a legal challenge to Bush's warrantless surveillance. The case turned on a top-secret document that was accidentally released by the government. Has that document been made public yet and is it likely to become public?

The document has not yet been made public, although there's been much speculation in the news media and the blogosphere (some of it educated, some not) about the document's contents. I'm confident that a redacted version of the document can be made public without putting national security at risk, but whether and how that happens is entirely up to the federal judiciary.

 

During the Al-Haramain case you wrote a response to a government brief that you were not allowed to see. How does one go about doing that?

It was quite a challenge. It wasn't just that we had to speculate as to what might be in the secret DOJ brief; the conditions under which we wrote our secret response were onerous, approaching the bizarre: We were required to write the brief under guard in the U.S. Attorney's office in San Francisco; we were forbidden from preparing any notes for the brief-writing session; the DOJ retained sole possession of the brief we produced; and the DOJ has refused to allow us to review the brief since we wrote it. Litigation doesn't get any weirder than that.

 

Thomas Bondy, the DOJ attorney in the Al-Haramain case, said: "When plaintiffs explain what they mean ... when they say they know, what they mean by that, on their own terms, is that they don't know." Has Mr. Bondy been studying Orwell? When you say you know does that mean you don't know?

That's what Mr. Bondy told the 9th Circuit judges during oral argument in 2007. He was responding to our assertion that, because of the secret document's accidental disclosure, we know that our clients were subjected to warrantless electronic surveillance. I could have sworn that, when we said that we know, we really did mean that we know, but evidently Mr. Bondy thought otherwise. Or maybe he truly does know otherwise and I just don't know it. Of course, when he says that we don't know, what he means by that, on his own terms, is that we really do know.

 

As regards the Al-Haramain case, the Obama administration has taken precisely the same line toward secrecy and defending the government's right to warrantless wiretap as the Bush administration had. Can you explain this?

I'll say the same thing Chou En-Lai is purported to have said to Henry Kissinger in 1972 when Kissinger asked Chou about the impact of the French Revolution of 1789: "It is too soon to tell." Perhaps the new folks at the DOJ just haven't had enough time yet to get up to speed on the Al-Haramain case and start doing the right thing. Or perhaps the Obama folks are afraid of looking "soft on terror" and have decided to leave it to the judiciary to do the right thing. Or perhaps President Obama has decided he would like to have the expansive executive power staked out by the Bush folks. It is too soon to tell.

 

You were deeply involved in defending Terri Schiavo's husband's right to let her die. Why do you think the government—including President George W. Bush and the leaders of Congress at that time—tried to make such a personal issue a national legal issue?

It had a lot to do with abortion politics. Reproductive choice and the right to die have the same constitutional underpinning: the constitutional right of personal autonomy. The "pro-life" folks saw the Schiavo case as an opportunity to chip away at personal autonomy, within the context of the right to die. They had willing accomplices in President Bush, his brother Jeb and Senator Bill Frist. Unfortunately, the Democrats in the Senate, led (or, more accurately, misled) by Senator Harry Reid, miscalculated, decided they couldn't win that battle, and stood on the sidelines. How wrong they were.

 

Has the right to die issue been solved, legally, at least, and has a national consensus on the issue seemed to have been arrived at?

The right to die was firmly embedded in America's constitutional, statutory and case law before the Schiavo case, and so it remains. The Schiavo case is notable not for any changes it made in the law (it made none at all), but for popularizing the right to die in the national consciousness. Polls taken since Terri Schiavo's death have shown a doubling in the number of Americans who have prepared living wills.

 

You were responsible for Bela Lugosi's heirs being able to control—and earn money from—his image and, by extension, the same for all famous people and their families.

You're giving me far more credit than I deserve. All I did was publish a law review article in the Hastings Law Journal in 1978, during my second year of law school, about the nascent "right of publicity"—the right of celebrities and their heirs to control the commercial exploitation of their names and likenesses. The credit goes to the courts and the California Legislature, which has codified that right in Civil Code section 3344.

 

Can you name five Republicans, past or present, that you respect?

Five Republicans I respect:

Senator Arlen Specter. (Note: Specter was a Republican at the time of this interview.)

California Supreme Court Chief Justice Ronald George.

California Court of Appeal Justice Paul Haerle.

United States Supreme Court Chief Justice Earl Warren.

United States District Judge Vaughn Walker.

(And a number of personal friends.)

Have I ever voted for a Republican? Yes. Three times.

 

Do you have any heroes and who might they be?

On the professional level: Justice Roger J. Traynor of the mid-20th-century California Supreme Court. He was a great appellate judge, a great thinker and a brilliant writer; a thoroughly wise man.

On the personal level: My father's brother, Bernard Eisenberg, who was killed in action during World War II while serving as a forward observer with a field artillery unit in Southern France. He died helping to save the world from fascism. That's heroic. Also my father, Harold Eisenberg: the most tenacious man I have ever known.

 

What's your proudest legal moment?

The 1989 publication of my treatise on appellate procedure, California Practice Guide: Civil Appeals and Writs, which I update yearly. It ain't War and Peace, but it's longer.

 

What drew you to appellate law?

I had a one-year judicial clerkship after law school, and knew immediately that appellate law is the best fit for me. I'm a thinker, but I also want to do my thinking in the world of real people and events. Appellate practice allows me to do that. It's somewhere between the ivory tower of the academy and the street fighting of trial practice.

 

You are a big backer of appellate mediation, though many people consider the phrase to be an oxymoron. Why does appellate mediation work in today's world, and what advantages does it hold?

Appellate litigation, just like a jury trial, is unpredictable—rather like Forrest Gump's box of chocolates. It's also very expensive. Putting your fate in the hands of three or seven or nine appellate judges is a crapshoot, best left to gamblers. Mediation at the appellate level, as at any other time, affords the parties the opportunity to control the resolution of their disputes. It works because the alternative is so uncertain.

 

Where did you grow up? What did your father do? Your mother?

I grew up in North Hollywood, California. My father worked in the garment industry, initially as a small manufacturer and subsequently as a salesman. Later in life he was a security guard, which I think he enjoyed more. My mother was a secretary. They're both still alive, living in a senior facility in Hollywood. Hi, Dad; hi, Mom.

 

You wrote a piece once with a nod to the prose poems of Baudelaire. Besides him, what writers do you most admire and enjoy reading?

That's a difficult question, because I enjoy all sorts of writing on many different subjects. As a teenager I devoured Jack Kerouac, Thomas Wolfe, Jerzy Kosinski and the Beat poets. My wife and I have done a lot of traveling, and when we travel I like to read as much as I can about the places and people I'm seeing. In the 1980s I went through a lengthy Japan phase (Ruth Benedict, Yukio Mishima). I enjoy studying the world's religions (Karen Armstrong, Elaine Pagels), although I'm not religious. I read a lot of periodicals—The New Yorker, Harper's, The Nation, The Atlantic. My favorite novel, ever, is Joseph Heller's Catch-22. Stephen King is fun. I enjoy novels about dysfunctional families (Wally Lamb, Jonathan Franzen, Thomas Mann). I can relate.

 

What might you have done if you hadn't become a lawyer?

I cannot imagine having become anything other than a lawyer. Isn't that strange? As a teenager, I wanted to be a symphony musician (I played clarinet), but I gradually came to realize that my talents didn't lie in music. I was mediocre at best.

 

Do you have kids? Are they lawyers (or planning to be)?

No kids. One cat, named Sumiko. She's too lazy for law school.

 

What's the best advice you were ever given?

When I was an 18-year-old sophomore at UC Irvine, I was very unhappy and wanted to drop out of school and go to Israel to work on a kibbutz. My uncle, James Moxom, gave me this advice: "You must try to resolve your personal problems instead of running away from them, because running away doesn't work; you'll take your unresolved problems with you wherever you go." Instead of dropping out, I started working on improving my social life. Within a few weeks I began dating the woman who later became my wife. I decided to stick around.

That advice has served me very well throughout my life, in various contexts.

 

What question do you wish we had asked you, but didn't?

You might have asked about my wife, Linda Hillel. We've been married 34 years. She's had five successful careers to my one: English-Japanese interpreter, graphic designer, cookbook illustrator, cooking instructor and, most recently, Pilates instructor. She has taught me some Japanese and some cooking (and even Japanese cooking) and is now teaching me Pilates. She is Superwoman.

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Jon B. Eisenberg

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