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John Gibbons, a retired Republican appointee to the federal bench and name partner in a 175-lawyer corporate law firm, seems an unlikely advocate for the rights of detainees at Guantanamo Bay. But come April 20, the 79-year-old Gibbons will play that part before the U.S. Supreme Court. The case presents the justices with their first opportunity to consider whether federal courts have power to review the lengthy detentions of suspected al Qaeda members in the war on terror. Gibbons, former chief judge of the U.S. Court of Appeals for the 3rd Circuit, says he has no apprehension about walking into one of the term’s most contentious and closely watched cases. “I’ve been involved in many, many controversial and high-profile cases,” he says. Appointed to a seat on the 3rd Circuit by President Richard Nixon in 1970, Gibbons earned a reputation for being tough, fair, and insightful. Since retiring his robes in 1990, he has championed the causes of society’s underdogs and become a vocal opponent of capital punishment. In his only previous appearance before the Supreme Court, in the 2000 case Williams v. Taylor, Gibbons won the reversal of a Virginia state death sentence on the basis of ineffective assistance of counsel. At his Newark, N.J.-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Gibbons helps administer a firm-sponsored fellowship that routinely takes up the cases of death row inmates, welfare recipients, battered women, political asylum-seekers, and others in need of free legal assistance. “The breadth and depth of his knowledge is extraordinary,” says Lawrence Lustberg, a former federal public defender who joined Gibbons, Del Deo as the first “Gibbons fellow” in 1992. “A lot of lawyers and judges are very good at spotting issues. Judge Gibbons knows the law in a concrete, specific way. He knows the cases from the founding of our republic until yesterday.” Gibbons became involved in litigation challenging the indefinite detentions at Guantanamo Bay in 2003, signing on to an amicus curiae brief on behalf of several retired federal judges and government officials who urged the Supreme Court to accept the case. “What drew me to the case was that the court of appeals decision created a legal black hole, a no-law zone,” says Gibbons, a former constitutional law professor at Seton Hall University School of Law who testified in support of Clarence Thomas’ 1991 Supreme Court nomination. “I’m very uncomfortable with no-law zones anywhere in the world.” U.S. POSITION ‘FRIGHTENING’ More than 600 individuals picked up in the war on terrorism are currently held at the U.S. naval base at Guantanamo Bay, Cuba. The case before the Supreme Court arose out of two separate lawsuits — Rasul v. Bush and Al Odah v. United States — brought by family members of 16 Australian, British, and Kuwaiti detainees. At next week’s oral arguments, Gibbons will face off against Solicitor General Theodore Olson, who will argue that American courts have no authority to second-guess the status of foreign citizens held outside the borders of the United States. Gibbons calls the administration’s position “frightening.” “The only possible law that can apply in Guantanamo Bay is American law. Cuban law can’t apply,” Gibbons says. “There should not be a place where the executive branch can detain people with no access to any court in any country.” The Guantanamo case marks the first of three landmark cases in the war on terrorism that the Supreme Court will hear this month. Oral arguments in suits challenging the detentions of U.S. citizens Jose Padilla and Yaser Esam Hamdi as enemy combatants are scheduled for April 28. Deputy Solicitor General Paul Clement is expected to represent the government in both cases. Federal Public Defender Frank Dunham Jr. will argue for Hamdi. Meanwhile, lawyers working with the Padilla camp report jockeying between Padilla’s longtime lawyers Donna Newman and Andrew Patel over who should handle oral arguments. Newman says the pair plans to file a motion asking to split their 30-minute argument. Under Supreme Court rules, dividing an argument is not favored and permission is rarely granted. Patel says the issue is “still up for discussion.” Recruiting Gibbons to argue on behalf of the Guantanamo detainees helped to thwart similar tensions from developing between the legal teams in the two underlying cases. Minneapolis criminal defense lawyer Joseph Margulies, the lead lawyer in Rasul, and Shearman & Sterling D.C. partner Thomas Wilner, the lead lawyer in Al Odah, both acknowledge that when the two cases were consolidated neither wanted to step aside. The legal teams hoped to avoid conflict and boost their jurisdictional arguments by reaching out to a neutral party and a retired federal judge. “One of the things I’m most gratified about is that all the major decisions in this case have been amicable. It has always been a matter of what was in the best interest of our respective clients,” says Margulies. He adds, “We consider ourselves very lucky to get someone who can bring to the table what Judge Gibbons brings. He is extremely credible and knowledgeable about the role the judiciary plays in our society.” Wilner says Gibbons came highly recommended from colleagues and academics familiar with his reputation as a judge and as an advocate. The fact that Gibbons’ personal politics are hard to pin down made him an even more compelling choice. “His involvement demonstrates that this case is not about politics,” Wilner says. Michael Ratner, president of New York’s Center for Constitutional Rights and co-counsel on Rasul, says Gibbons is no “gun for hire.” “The fact is that he feels very firmly that every person detained by the government deserves to have some kind of review,” Ratner says. “Couple that with the fact he is a Republican and former chief judge of the 3rd Circuit, and it says this case is about fundamental justice.” A LIFE OF SERVICE A father of seven and grandfather of 13, Gibbons was born in Newark in 1924. In 1943, his studies at the College of the Holy Cross were interrupted by World War II. Gibbons enlisted in the Navy and was at one point stationed at Guantanamo Bay. After returning from service, Gibbons resumed his academic career, graduating from Harvard Law School in 1950 and then returning to Newark to start a private law practice. By 1970, when he was nominated by Nixon for a seat on the 3rd Circuit, Gibbons was well-established in the New Jersey Bar, having served as president of the local bar association, chairman of the New Jersey Board of Bar Examiners, a member of the Governor’s Select Committee on Civil Disorders, and a member of the New Jersey Council Against Crime. Gibbons held his judicial seat for 20 years, to the day, acting as chief judge from 1987 until his retirement three years later. Former D.C. Circuit Chief Judge Abner Mikva says fellow federal judges regarded Gibbons as “careful” and “thoughtful.” “He clearly understands a judge’s role in our society, and that as a judge you sometimes need to be able to swim upstream and to take positions that may be unpopular,” says Mikva, now a law professor at the University of Chicago. “He was that kind of judge. He took tough positions if necessary and stood with them.” Chester Keller, the No. 2 lawyer in New Jersey’s federal public defender’s office, says Gibbons was considered fair but not sympathetic to criminal defendants. “He was clearly one of the brightest and fairest individuals that you could ever hope to have hearing your appeal,” Keller says. “He knew the record and the applicable case law, and attorneys that appeared before him had to anticipate many probing questions.” Even Solicitor General Olson expresses admiration for Gibbons, calling him a “remarkable man, a wonderful lawyer, a great scholar.” After retiring from the bench, Gibbons rejoined his old law firm, which launched the Gibbons Fellowship in Public Interest and Constitutional Law in his honor. Since 1992, the program has funded 16 full-time attorneys who have worked exclusively on public interest litigation. Recent matters include a case challenging the conviction of a pregnant woman for manslaughter based on a suicide attempt that killed her unborn child; a case seeking enhanced special education services from Newark Public Schools; a case challenging New Jersey’s prohibition on same-sex marriage; and numerous death sentence appeals. Gibbons’ personal involvement in the cases varies, but former fellows say he provides advice and frequently participates in moot courts. (“Having the former chief justice of the 3rd Circuit help moot you is tremendously helpful,” notes one.) In conversation, Gibbons comes across as reserved, grandfatherly, even shy. Lustberg, the first Gibbons fellow, now serving as director of the program, says Gibbons leaves his retiring, scholarly persona outside the courtroom. “People who work with him are often surprised by the contrast between his personal way of thinking about legal issues and his courtroom advocacy,” Lustberg says. “In the courtroom, you will see a very vigorous advocate. He will be passionate and strenuous for his convictions.”

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