Washington Briefs

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2009-02-24T16:15:00.001-05:00

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SG Nominee Kagan Changes Tune On Confirmation Process

2009-02-10T14:53:00.007-05:00

Solicitor General nominee Elena Kagan appears to have changed her mind about how forthcoming judicial nominees should be when appearing before the Senate Judiciary Committee.
It's probably nothing to do with the fact that she would be a leading contender to replace Justice Ruth Bader Ginsburg on the Supreme Court if the ailing jurist fails to recover from pancreatic cancer, but you never know.
At her confirmation hearing today, Kagan backtracked on remarks she made in a 1995 University of Chicago Law Review article called "Confirmation Messes."
She wrote then that nominees should have the chance to elaborate on their legal theories when they testify.
"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public," she wrote.
Now, she's not so sure.
“I’m not sure if, sitting here now, I would agree with that statement,” she said in response to a question from Sen. Orrin Hatch, R-Utah, this morning.
That could make things a little easier for her if she ever appears before the committee again.

Rock Band Frontman Lays Into Washington Lobbyist Father

2009-01-26T17:05:00.005-05:00

News that obscure band Silver Jews has split up may not mean much to most, but frontman David Berman used the moment to launch an outspoken attack on his father.
The man in question is Washington lawyer/lobbyist Richard Berman (pictured), who is known for his work on behalf of various business interests.
That's something Berman Jr. isn't so happy about, according to the tirade he posted on a Silver Jews messageboard and reported by the likes of Billboard.
Son gives it to father with both barrels, describing him as "a despicable man," "an exploiter," and "a scoundrel," among other things.
He suggested that his reason for splitting the band was because he feels a need to counter-balance the work of the elder Berman.
"This winter I decided that the SJs were too small of a force to ever come close to undoing a millionth of all the harm he has caused," David Berman wrote.
His views on his father seem to mirror those of groups like Citizens for Responsibility and Ethics in Washington, which even has a site devoted to the subject.
The two men have apparently been estranged for a while.
Richard Berman was not immediately available for comment.

Inauguration Infatuation

2009-01-21T10:54:00.003-05:00

The above picture, taken by your correspondent, catches the moment when the incoming president, Barack Obama, and Chief Justice John G. Roberts Jr. managed to mangle the oath of office.
Maybe Roberts holds a grudge for Obama voting against his confirmation.
This could at leas be the basis for a new joke: How many Harvard Law School graduates does it take to correctly recite the oath of office?
More pics here.

Obama Gets Warm Reception At Supreme Court

2009-01-14T16:52:00.004-05:00

Details of President-elect Barack Obama's meeting with the justices today haven't yet been released, but the court staff were certainly happy to see him.
As he walked back downstairs to the basement parking garage following the hour-long private meeting, a group of staff waiting to catch a glimpse gave a hearty cheer.
Obama turned, gave a quick presidential wave, and was on his way.
UPDATE: The above photo showing Obama and Joe Biden with the justices was released by the president-elect's team this evening.

Obama, Biden Pay Visit To SCOTUS

2009-01-14T09:36:00.002-05:00

President-elect Barack Obama and Vice President-elect Joe Biden are to visit the Supreme Court today for a private meeting with the justices.
No photo opps or press interviews, the court's press corps were disappointed to hear.
It's the third time in recent history that the president-elect has paid such a visit, according to the court's public information office.
Bill Clinton and Ronald Reagan were the others.

Justice Breyer's "Worst Pollutant"

2009-01-12T17:07:00.003-05:00

At today's oral argument in an environmental case, Justice Stephen Breyer revealed that the worst pollutant he can think of is "saturated fat in potato chips."
His comment, as part of a hypothetical question, probably disappointed environmentalists, who could think of a few other things that qualify as pollutants.
But lawyer Ted Olson, representing a mining company defending its right to dump waste into an Alaskan lake, was clearly thinking along the same lines as Breyer.
He helpfully suggested that the worst pollutant he could think of was cholesterol.
Meanwhile, Chief Justice John G. Roberts Jr. downplayed the harm the mining waste would do to the lake.
Yes, it would kill all the fish, but there's no shortage of them, he noted.
"There are millions of them somewhere else, right?” Roberts said, in what may or not be a joke.
Strictly speaking, of course, the proverbial "plenty more fish in the sea" wouldn't apply here as the lake in question is of the fresh water variety.
However, that problem could be resolved if some salt was added, should Justice Breyer have any potato chips handy.
The case is Coeur Alaska v. Southeast Alaska Conservation Council, 07-984 and Alaska v. Southeast Alaska Conservation Council, 07-990.

Vandalism At The Supreme Court

2009-01-08T10:57:00.007-05:00

I'm not entirely sure why anyone would want to steal letters from the nice sign on the men's room door on the ground floor of the U.S. Supreme Court, but they did.
As you can see from this picture, what used to be the men's room is now the n's room.
Perhaps Chief Justice John G. Roberts Jr., who appears to fancy himself as something of a crack detective, could look into the case.

SF City Attorney Herrera Joins American Constitution Society Board

2008-12-11T16:32:00.007-05:00

San Francisco City Attorney Dennis Herrera said Thursday that his recent elevation to the board of the American Constitution Society doesn't mean he's angling for a job in the Obama administration.
"I'm very happy as city attorney," he said in an interview.
Herrera said that he subscribes to the view that, in many instances, "you can affect the greatest change working at the state and local level."
ACS is all set be to President-elect Obama what the conservative Federalist Society was to President Bush.
The president-elect has already tapped a current board member, Eric Holder, to be attorney general.
He also hired the group’s executive director, Lisa Brown, for a White House position.

Obama's Awkward Moment

2008-11-20T10:40:00.002-05:00

In today's print edition of the Daily Journal (subscribers only), I report on an interesting point of trivia: Barack Obama will be the first president to be sworn in by a chief justice whose Senate confirmation he voted against.
The U.S. Senate Historical Office and several Supreme Court historians confirmed the little-known fact Wednesday.
Obama, of course, voted against the confirmation of Chief Justice John G. Roberts Jr. in September 2005.
As I note in the story:
Despite Obama's vote, it's unlikely to sour the occasion for either man, according to David J. Garrow, an expert on Supreme Court history who teaches at the University of Cambridge.
"We've got two gentlemen who are both smoother than silk in their style of personal interaction," he said. "I don't think it's going to loom large in any way."

Sonar Vote Not Easy To Decipher

2008-11-13T13:11:00.004-05:00

Although the outcome of Wednesday’s decision by the Supreme Court to side with the U.S. Navy in its dispute against environmentalists was obvious, it wasn't so easy to definitively count the votes.

What we do know is that the court voted to lift a preliminary injunction imposed by a federal judge in Los Angeles. We also know that the 9th Circuit's modified order was vacated. But who voted for what? The case is Winter v. Natural Resources Defense Council, 07-1239.

In Summary: Chief Justice John G. Roberts Jr., delivered the opinion of the court, in which Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito joined. Justice Stephen Breyer wrote an opinion concurring in part and dissenting in part. Justice John Paul Stevens joined part one of Breyer’s opinion, in which Breyer agreed that the district court’s injunction should be vacated. In the second part of Breyer’s opinion, he said that the 9th U.S. Circuit Court of Appeals’ modified injunction should be kept in place until the Navy completed an environmental review. Finally, Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which she was joined by Justice David H. Souter.

The confusing vote here is Breyer’s, because although he agreed with the majority in terms of lifting the lower court restrictions, he ultimately became a dissenter by saying the 9th Circuit restrictions should remain in place. Therefore, the vote was 6-3 to remove all restrictions on the Navy, but 7-2 to vacate the lower court's preliminary injunction.

Court Sticks To A Family Friendly Script For Obscenity Argument

2008-11-04T11:21:00.002-05:00

No-one dropped the f-bomb at the Supreme Court today.
That normally wouldn't be a surprise, but the argument in question was a high profile obscenity case.
Much to the disappointment of some court-watchers, the entire one-hour argument passed by without anyone uttering an expletive.
In FCC v. Fox, the broadcast networks are appealing a new Federal Communications Commission policy that would allow broadcasters to be punished for so-called "fleeting expletives," usually uttered by pop stars at awards shows.
In discussing in what context the words "fuck" or "shit" could be used on network TV, the justices and counsel referred to them simply as "the f-word" and "the s-word."
The late George Carlin, whose famous "Seven Dirty Words" routine led to the Supreme Court's most prominent ruling on the issue in FCC v. Pacifica, would no doubt be disappointed.

WTF? Court Gears Up For Obscenity Case

2008-10-31T11:34:00.003-04:00

Next Tuesday, the Supreme Court hears the oral argument in FCC v. Fox, a case concerning to what extent network broadcasters can be punished when tipsy celebrities swear on live TV.
Lyle Denniston, of SCOTUSblog, has this post on how news organizations are preparing for what could be a very blue Election Day at the court.

Waxman Pounces as Wyeth v. Levine Argument Looms

2008-10-29T13:57:00.007-04:00

Not that Democrats and trial lawyers would ever work in unison or anything, but Rep. Henry Waxman, D-Calif., issued a report today detailing how Food and Drug Administration career staff objected to a policy change that could affect the ability of plaintiffs to file drug liability suits in state court.
Under the new rules, the FDA maintains that federal labeling laws preempt any state liability laws.
The publication of the report comes just days before the Supreme Court hears arguments in a key case on that very issue, Wyeth v. Levine.
In the report, prepared by the House Oversight and Government Reform Committee that Waxman chairs, his staff argue that regulatory changes in recent years were "made by FDA over the objections of key career officials."
According to agency documents, "high-ranking career officials repeatedly warned that the central factual justifications for the agency's new positions were false," the report states. "They also expressed concern that the changes in the labeling rules would harm patients by significantly delaying the addition of important safety information to drug labels."
It remains to be seen if Chief Justice John G. Roberts, Jr. and his colleagues - who have endorsed an expansion of federal preemption of state law in recent years - pay much attention.

Has The Chief Justice Been Watching The Wire?

2008-10-14T11:43:00.004-04:00

Chief Justice John G. Roberts Jr. channeled his inner crime writer in an opinion issued this morning that hinted at a keen understanding of the drug corner.
The case, Pennsylvania v. Dunlap, was out of Philadelphia but it could just as easily have been from Baltimore, where HBO show The Wire was based.
Roberts, joined by Justice Anthony Kennedy, dissented from the denial of certiorari in a case involving a convicted drug dealer.
Nathan Dunlap got off the hook because the Pennsylvania Supreme Court decided that the arresting cop didn't have probable cause.
Put simply, Officer Sean Devlin - or should that be Officer Jimmy McNulty? (pictured) - saw an exchange on the corner and arrested the purchaser, who was found to have three bags of crack.
But the court said the transaction witnessed by Devlin was not enough to establish probable cause.
Roberts sought to show that perhaps there was by fictionalising the episode in the opening paragraphs of his opinion:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotic Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the strike force. He's made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

David Simon would be impressed.

Scalia Takes Up The People v. Thomas Jefferson

2008-10-07T15:22:00.009-04:00

This morning, the Supreme Court evaluated whether the militia violated Thomas Jefferson's Fourth Amendment rights when they searched his carriage.
Well, Justice Antonin Scalia did anyway.
During this morning's argument in Arizona v. Gant, which concerns when police officers can search the vehicle of someone they've just arrested, Scalia sought to track case history right back to the good old days of the early Republic.
"What was the situation when the Fourth Amendment was adopted?" Scalia asked an attorney for the state of Arizona. "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?"
The lawyer, Assistant Attorney General Joseph T. Maziarz, didn't see that one coming.
"Your honor, there is not much on searches incidents prior to 1914," he said weakly.
Scalia brought the issue up again during the opposing side's argument.
"The court raises a good point," responded Thomas Jacobs, the lawyer for defendant Rodney Gant.
All of this seemed to confuse Justice Stephen Breyer, who then referred anachronistically to "Jefferson's automobile" during one of his questions.
Jefferson, who died in 1826, could not be reached for comment.

O'Connor On The Economy And Rule of Law

2008-10-02T12:47:00.006-04:00

Retired Supreme Court Justice Sandra Day O'Connor spoke today of the importance of the rule of law during the current credit crunch crisis.
At a conference she organized on the courts and corporate citizenship, O'Connor said that "corporations stand to lose large amounts and judicial independence wavers if we have methods of resolving disputes that are not fair and effective.”
She said it's vital now "to know what will help make our system recover quickly" and noted that businesses are "in a special position by virtue of their economic importance to our country -- and we're surely focused on that these days."
O'Connor conceded that more needs to be done to improve the perception among some industries that courts are not fair.
"Some see runaway juries creating unpredictability, some see litigation delay and expensive discovery processes that greatly increases the cost and time of litigation," she said.
The number of judges who "lack experience with complex business issues" is also a problem, she said.
O'Connor was joined at the conference by former Federal Reserve Chairman Alan Greenspan, who echoed her sentiments.
"Critical to economic growth is a rule of law, particularly protection of the rights of individuals and property," he said.

Palin Stumbles On Supreme Court Cases

2008-10-01T20:55:00.004-04:00

CBS News' Katie Couric asked vice presidential nominee Sarah Palin which Supreme Court cases she disagreed with, apart from Roe v. Wade:

Who Is Alaska AG Talis Colberg?

2008-09-15T13:59:00.008-04:00

Over the weekend, the New York Times reported that the legal community in Alaska was shocked when Gov. Sarah Palin appointed Talis Colberg as attorney general soon after she won election in 2006.
As the article states: "Mr. Colberg ... moved from a one-room building in the valley to one of the most powerful offices in the state, supervising some 500 people."
So what else can we learn about Attorney General Colberg?
According to his official state biography, Colberg obtained his law degree at Pepperdine University but has otherwise spent his entire life in Alaska.
Although he was a solo practitioner from 1992 up until Palin's election, he appears to have been active in other areas.
In addition to serving on the Matanuska-Susitna Borough Assembly, he also taught history at Matanuska-Susitna College.
He recently completed a Ph.D in northern Political history & culture at the University of Alaska.
Prior to going solo, Colberg was a staff counsel for Travelers Insurance.
His high velocity rise to prominence could continue if his boss becomes vice-president.
As others have reported, Colberg could end up taking Palin's spot as governor if current Lt. Gov. Sean Parnell wins election to the House of Representatives.

Leahy Moves To Re-Up Supreme Court Police Powers

2008-09-11T15:44:00.002-04:00

The Senate Judiciary Committee moved today to re-authorize the power of the Supreme Court police to protect justices and other court officials when they are outside the court’s grounds.
The authority expires at the end of the year if Congress doesn’t act.
“If Congress fails to pass this legislation before it adjourns, the lives of the Supreme Court justices could be threatened,” committee chairman Sen. Patrick Leahy, D-Vt. (pictured), said in a statement. “This is a bill that should pass by unanimous consent.”
The bill would extend the police's authority for another five years.

Leahy Grills SG Nominee over Ledbetter

2008-09-09T13:19:00.008-04:00

The man who will argue the Bush administration’s position before the Supreme Court this fall had the equally daunting task Tuesday of facing Senate Democrats.
In June, President Bush nominated Gregory G. Garre (pictured) to replace Paul Clement as solicitor general for the remainder of his term.
Whether or not the Senate Judiciary Committee and full Senate will go ahead and vote on his confirmation is unknown, but Tuesday’s confirmation hearing was a necessary first step.
Furthermore, Garre will continue in his acting capacity even if he isn’t confirmed.
Tuesday’s hearing provided an opportunity for Sen. Patrick Leahy, D-Vt., the committee chairman, to press Garre on one of the Democrats’ favorite issues in recent months: the Supreme Court’s decision to side with the employer in a prominent 2007 equal pay case. Ledbetter v. Goodyear.
The plaintiff, Lilly Ledbetter, even spoke at the Democratic convention in Denver last month.
The court held in the 5-4 ruling, that woman and minorities cannot sue their employers for long-ago discrimination under Title VII of the 1964 Civil Rights Act.
Ledbetter won a jury trial against the Goodyear Tire and Rubber Co. after she found out that she was paid 20 percent less than the lowest paid of her male colleagues.
But the conservative bloc of the Supreme Court, in an opinion by Justice Samuel Alito, ruled that Ledbetter had no grounds to sue because she had filed her claim years after the 180-day statute of limitations had expired.
On this occasion, Leahy chose to take issue with the fact that the Bush administration sided with the employer when it sought to intervene in the case.
This was despite the fact that the Equal Employment Opportunity Commission had traditionally sided with the employee in such suits.
"I still don't understand why it was so necessary to weigh in on behalf of the employer," Leahy said.
In response, Garre stressed that the government had not "condoned discriminatory practices" by participating in the case.
Rather, the administration was focused on the narrow issue of when the statute of limitations for making such claims is triggered, he added.
Leahy then noted that there was no reason why the solicitor general even had to intervene in the case.
"That is always an option," Garre conceded.

Video: Obama and McCain Camps Spar Over IP Issues

2008-09-03T14:17:00.004-04:00

At the Democratic convention last week, lawyers representing the Obama and McCain campaigns debated each other over intellectual property issues, including patent reform.
A video of the event, hosted by the Colorado Bar Association, is posted here.
Law360 has a report on the debate (subscribers only).

Advisor Says Obama Would Consider Changes To Judicial Nominations Process

2008-08-13T11:34:00.004-04:00

Senior Barack Obama advisor and former Senate Majority Leader Tom Daschle said today the presumptive Democratic nominee would “consider a lot of options” for addressing the partisan nature of judicial nominations in recent years if he is elected president.
Daschle, who famously lost his South Dakota seat in 2004 in part due to his role in obstructing President Bush’s judicial nominees, stressed that the problems that have arisen during the current administration has been caused largely by the lack of “good communication and consultation” on the part of the White House.
He noted that President Bill Clinton regularly consulted with senior Republican senators, such as then Minority Leader Sen. Bob Dole, of Kansas, and senior judiciary committee member Sen. Orrin Hatch, of Utah, when choosing nominees.
“When Bill Clinton was president he did a lot of outreach and communicating,” Daschle, a co-chair of Obama's campaign, said at a briefing for reporters this morning in Washington.
He added that the Bush administration “rarely consulted – they just demanded.”
Daschle conceded, however, that improvements could be made in the nomination process in general.
He noted, for example, that in the past many more nominees, both for the judiciary and executive branch positions, were not considered political at all.
Daschle declined to comment on whether Obama would endorse suggestions that each state should have a bipartisan commission that would make recommendations to the president.
It’s a proposal that the American Bar Association endorsed at its annual meeting earlier this week.

AG Pledges That Professionalism Is Back at DOJ

2008-08-12T10:15:00.003-04:00

Speaking at the ABA annual meeting in New York this morning, Attorney General Michael Mukasey outlined in detail his response to the two recent inspector general reports into allegations of selecting hiring and firing before he took office.
He admitted that the department's reputation had been harmed by the scandals under previous Attorney General Alberto Gonzales but insisted that under his leadership there has been a return to impartiality in hiring decisions.
"Professionalism is alive and well at the Justice Department today,” he said to applause from ABA members.
The department has new policies for hiring, and Mukasey insisted that employees would be encouraged in future to raise concerns if they feared that political considerations were being taken into account.
“The good news is that much has changed," Mukasey said. "It’s neither permissible or acceptable to consider political affiliation in the hiring and firing of employees."
He also revealed that candidates that had been rejected under the previous regime, possibly because of their political leanings, would be contacted and given another chance to apply to department positions.
Although Mukasey admitted that some department critics were keen for former officials, such as former White House liaison Monica Goodling, to face possible criminal prosecution for their acts, he believed they had already been sufficiently punished.
“Their misconduct has been laid bear by the Justice Department for all to see," Mukasey said. "I doubt if anyone in this room would want to trade places with those people.”

Congress Approves Loan Assistance Program For Lawyers In Public Service

2008-08-04T15:05:00.004-04:00

Aspiring attorneys who would like to become public defenders or local prosecutors but are put off by low pay and crushing law school debt are in for some respite.
Last week, before rushing off for their summer vacations, lawmakers approved legislation that includes a payment assistance program for young lawyers seeking to work in the public sector.
Eligible candidates would have up to $30,000 of debt wiped out if they stay in their jobs for three years, and a further $30,000 if they stay for another three years.
The American Bar Association is very pleased, as is Sen. Richard Durbin, D-Ill.(pictured), one of the key sponsors.
The legislation was included in the reauthorization of the Higher Education Act, which President Bush is expected to sign into law.

State Bars May Be Ones To Discipline Disgraced DOJ Lawyers, IG Says

2008-07-30T12:42:00.006-04:00

Former DOJ lawyers involved in the recent politicized hiring scandal are unlikely to face criminal prosecution but could face bar sanctions, the Justice Department's inspector general said today.
At this morning's hearing before the Senate Judiciary Committee about his report into the hiring practices, Inspector General Glenn A. Fine said there isn't sufficient evidence to prosecute former officials for making false statements.
There are no criminal sanctions for breaking civil service laws, he added.
But Fine noted that the department's Office of Professional Responsibility is due to make recommendations to relevant bar authorities about the conduct of their members.
The chief architects of the political hirings, Kyle Sampson (pictured) and Monica Goodling, are both attorneys.
Fine was responding to Democratic senators outraged that the alleged perpetrators of the unlawful hirings would face no further punishment aside from losing their jobs.
"It looks like they are getting away with it scot-free," said Sen. Sheldon Whitehouse, D-R.I.
In addition to facing possible bar sanctions, Fine stressed that neither Goodling nor Sampson would be allowed to work for the Justice Department again and would be unlikely to be considered for any federal government position.
Sampson currently practices law as a partner in the Washington office of Hunton & Williams.
According to the firm's website, he is only admitted to practice in Utah.

Goodling More Than "Crossed The Line," DOJ Inspector General Finds

2008-07-28T14:07:00.004-04:00

Last year, former DOJ official Monica Goodling conceded that she may have "crossed the line" in taking into account political affiliations when making recommendations for non-political positions.
Today, the Justice Department's Inspector General concluded that she not only broke department rules, she also broke the law.
Her former colleagues, Kyle Sampson and Jan Williams, committed similar offenses, Inspector General Glenn A. Fine found.
If that wasn't enough, Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, said Goodling, Sampson and their former boss, ex-Attorney General Alberto Gonzales, may have committed perjury when they testified before his committee last year.
"I have directed my staff to closely review this matter and to consider whether a criminal referral for perjury is needed," Conyers said.

UPDATE: DOJ Reaction To Senate IP Enforcement Bill

2008-07-25T11:16:00.003-04:00

The Justice Department didn't get back to me with a comment about the new Senate IP enforcement bill until after the deadline for the print Daily Journal last night.
Here's what spokesman Evan Peterson had to say:
"We are pleased that the Senate continues to share the Department's commitment to protecting intellectual property rights. We are supportive of many of the provisions in The Enforcement of Intellectual Property Rights Act of 2008, inluding those that the Department included in our own legislative proposal last year. We do anticipate having revisions to propose. In particular, we are looking closely at provisions similar to those that posed concerns for us in earlier bills, such as the provision that would establish, within the Executive Office of the President, an Intellectual Property Enforcement Coordinator."

Leahy/Specter Drop New IP Enforcement Bill

2008-07-24T15:28:00.003-04:00

At a press conference today, Sen Patrick Leahy, D-Vt., and Sen. Arlen Specter, R-Pa., introduced a new IP enforcement bill.
The legislation includes language from several other IP-related bills that have been floating around the Senate in recent years.
It has some similarities with the House's PRO-IP Act, although one House staffer working on the issue noted that there are a fair few differences.
For example: although both bills would create a new IP enforcement coordinator in the executive branch, the House version would give that person greater powers, the staffer noted.
Unlike the House bill, the Senate version would give the Justice Department the right to bring civil enforcement actions against infringers.
Details on the new bill are available here.
*See Friday's print edition of the Daily Journal for more.

Senators Take Another Shot At SCOTUS

2008-07-23T14:49:00.005-04:00

For the second time in a month, Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, held a hearing today to condemn a series of recent Supreme Court decisions.
On the previous occasion, the focus was on equal pay case Ledbetter v. Goodyear and Riegel v. Medtronic, a medical device liability case.
This time Leahy had Exxon v. Baker in his sights.
That's the case in which the court last month ruled that punitive damages for the Exxon Valdez oil spill could not exceed the $500 million the jury awarded in compensatory damages.
The jury originally awarded $5 billion in punitive damages.
Leahy said the justices had provided ExxonMobil "the reward it was seeking" over the last 15 years of litigation.
"The Supreme Court did so by relying on its cases that read into the Constitution a protection for corporations that simply does not exist," he added.
But Leahy's attempt to portray the court as pro-business was somewhat undercut by testimony from Patricia Ann Millet, who co-chairs Akin Gump's Supreme Court practice.
She noted that the business community lost about half the cases it had before the court last term.
"There has not been a seismic shift in the court's decision-making," she said.

Mukasey Surprises With Call For Congressional Action On Detainee Trials

2008-07-21T13:40:00.003-04:00

Attorney General Michael Mukasey unexpectedly asked Congress to take a new look at detainee trials in the light of a recent Supreme Court decision.
In a speech today, Mukasey said that the court's decision in Boumediene v. Bush left a lot of questions unresolved.
"Unless Congress acts, the lower federal courts will determine the exact procedural rules that will govern the more than 200 cases that are now pending," the attorney general said.
His comments come as the Guantanamo Bay trial of Ossama bin Laden driver Salim Hamdan is about to begin.
This is all news to Sen. Patrick Leahy, D-Vt., who - as chairman of the Senate Judiciary Committee - would have a major role in passing any new legislation.
"Given the judiciary committee’s long interest in this subject, it is regrettable that the attorney general neither consulted with nor informed the committee about this request before his speech," Leahy said in a statement.
He said Congress is unlikely to get to the issue until next year when, he noted, there will be a new president in office.

After Yoo ... Ashcroft

2008-07-17T15:59:00.001-04:00

Former Justice Department lawyer John Yoo (pictured), now a professor at UC Berkeley Law, was the focus of attention once again at a House Judiciary Committee hearing today into the Bush administration’s interrogation procedures.
Yoo himself testified last month, but this time it was the turn of his former boss, John Ashcroft.
But even the presence of the former attorney general wasn’t enough to stop Democrats taking a pop at Yoo’s role in writing two infamous memos that included broad interpretations of executive power.
“I don’t question Mr. Yoo’s patriotism or love of country, but I do question his legal analysis,” said Rep. Zoe Lofgren, D-San Jose.
Prominent Washington lawyer Walter Dellinger, who heads the Supreme Court practice at O’Melveny & Myers, also laid it on thick.
He described a “deeply flawed process” that produced a “disastrous legal opinion” that “was, I think, a virtually shocking assertion of presidential authority.”
Even Ashcroft conceded that Yoo’s work contained analysis of “arguable appropriateness.”
But before throwing Yoo under the bus, Ashcroft did have some kind words for the embattled professor.
“John Yoo is a noted expert in national security, he is a person of incredible intelligence, and he’s an outstanding person who wanted to serve America,” Ashcroft said.

False Claims Act Revisions Put U.S. Chamber On Defensive ... Again

2008-07-16T15:51:00.003-04:00

The U.S. Chamber of Commerce's Institute for Legal Reform is getting increasingly used to playing defense now that Democrats have controlled Congress for almost two years.
For the second time in two days the pro-business, anti-trial lawyer group had its eyes on the House Judiciary Committee today and wasn't pleased with what it saw.
Yesterday, it was a subcommittee vote to approve three anti-mandatory arbitration bills that was the cause of concern.
Today, it was a full committee vote on revisions to the False Claims Act, the law that allows whistleblowers to make fraud claims against government contractors (and share some of the proceeds).
The legislation, known as the False Claims Act Correction Act, is aimed at encouraging more whistleblowers to come forward.
Democrats think that the $20 billion recouped by the government since 1986 thanks to the law is peanuts considering that, as Sen. Patrick Leahy, D-Vt., noted at a hearing earlier this year, the U.S. has spent $500 billion in Iraq and Afghanistan in recent years.
But as far as the Institute for Legal Reform is concerned, the problem here is that the bill has the fingerprints of the trial lawyer bar all over it.
"The far-reaching expansion of the FCA [False Claims Act] sought by the trial lawyer lobby would have a disproportionate affect on small companies," said the institute's president, Lisa Rickard.
These companies would "hesitate to compete for government contracts out of fear that one minor mistake could trip a lawsuit that costs them their business" if the law was to pass, she added.

Arbitration Bills Take First Step

2008-07-15T16:50:00.002-04:00

Today the House Judiciary Subcommittee on Commercial and Administrative Law passed out three anti-mandatory arbitration bills.
The subcommittee approved the Arbitration Fairness Act, which would pretty much ban mandatory arbitration agreements, and two related bills that would ban the practice in nursing home and autmobile contracts.
The bills will now go forward to the full judiciary committee.
The move was welcomed by one of mandatory arbitration's biggest critics, consumer advocacy group Public Citizen.
"The three bills passed by the subcommittee will level the playing field between consumers and big business by ensuring that all arbitrations are truly voluntary, said David Arkush, the director of Public Citizen's Congress Watch section.
The Senate Judiciary Committee is scheduled to vote on its version of the nursing home bill at its business meeting Thursday.

Alternatives To Prison On Sentencing Commission's Agenda

2008-07-14T13:05:00.006-04:00

In a somewhat gloomy conference room in Washington, D.C. today, the U.S. Sentencing Commission kicked off its two day forum on alternatives to incarceration.
Before reformers maddened by the fact that the U.S. has the highest rate of incarceration in the world get too excited, it's not at all clear what will come out of the event, if anything.
The commission stresses that it's merely a fact-finding exercise that consists mostly of finding out what individual states are doing to tackle the twin problems of overcrowded prisons and lack of cash to pay for more prisons.
Ryan King, an analyst at the pro-reform Sentencing Project, began proceedings with a call to arms, making it clear to his audience of Capitol Hill staffers and other Washington policy types where he thinks the blame lies.
"It doesn't have to be this way," he said. "Policy-makers made this mess and policy-makers can clean it up."

Bush Signs Wiretapping Law; ACLU Files Suit

2008-07-10T15:41:00.006-04:00

An hour or so after President Bush signed into law the FISA Amendments Act, the ACLU filed a lawsuit challenging its constitutionality.
Plaintiffs include journalists who report oveseas, nonprofit groups that work abroad, and human rights organizations.
They all say the new law gives a green light to the government to wiretap their phone calls overseas without any judicial oversight.
"The new law allows the government to conduct dragnet surveillance that has no connection to terrorism," said ACLU lawyer Jameel Jaffer.
This is not likely to be the only complaint generated by passage of the law.
The Electronic Frontier Foundation, which represents plaintiffs that sued phone companies that were involved in the administration's previously secret wiretapping program, is planning its own suit.
They will challenge the provision of the bill that grants immunity to the phone companies.

BREAKING: DOJ Announces Proposed Changes to McNulty Memo

2008-07-09T18:33:00.003-04:00

The Justice Department announced this evening proposed changes to its policy of seeking attorney-client privilege waivers in corporate investigations.
Most notably, whether or not a corporation waives privilege will not be taken into account when making charging decisions.
In future, in order to be eligible for cooperation credit, corporations “need not disclose, and the government may not demand” attorney work product and attorney-client privileged communications, Deputy Attorney General Mark Filip said in a letter to lawmakers.
Prosecutors are also barred from considering whether corporations advance attorneys’ fees to employees or whether corporations enter into joint defensive agreements.
Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee welcomed the development.
“The department appears poised to make substantive changes to its policy,” he said. “I have emphasized for years the importance of the attorney-client privilege and have said the department must take all necessary steps to correct the abuses documented earlier in this Administration and to address lingering concerns."
*See Thursday's print edition of the Daily Journal for more on this.

As Senate Considers Immunity For Telcos, Plaintiffs Vow To Fight On

2008-07-08T09:04:00.002-04:00

As I report in today's Daily Journal (subscribers only), lawyers for the plaintiffs who sued the telcos for their role in allegedly spying on Americans are considering what to do if, as expected, Congress authorizes retroactive immunity for the defendants this week.
The Senate is due to take up the bill again today.
Clearly, it's an uphill battle, but the San Francisco-based Electronic Frontier Foundation is vowing to fight on.
They will challenge the constitutionality and application of the law and could also file a new suit against the government.
Legal experts think that EFF's evidence from an AT&T whistleblower could come in handy in such a case because it could show that the plaintiffs have standing under the Foreign Intelligence Surveillance Act.

Leahy Reveals Discussions With DOJ Over McNulty Memo

2008-06-26T15:34:00.004-04:00

At this morning's Senate Judiciary Committee markup, Chairman Patrick Leahy, D-Vt., said he has met with Deputy Attorney General Mark Filip (pictured) to address concerns about the Justice Department's policy of seeking attorney-client privilege waivers in corporate investigations.
Sen. Arlen Specter, R-Pa., has legislation pending that would ban the practice, but Leahy has so far been reluctant to proceed with the bill on the grounds that he would rather negotiate with the Justice Department.
The House has already passed its version of the legislation.
The current DOJ policy is enshrined in the so-called McNulty Memo, named after former Deputy Attorney General Paul McNulty.
The question now is: will there be a Filip Memo?
Here's what Leahy had to say this morning:

"Just as I have consulted extensively with Senator Specter about nominations, I want to work with him regarding his recent request that we consider a bill controlling how Federal prosecutors should act and superseding Department of Justice guidelines with a statute for assertions of corporate attorney-client privilege and possible abuses of that privilege.

"I recently met with the new Deputy Attorney General Mark Filip. He says that he has reviewed the past policy and is working on improvements. I believe that he has also met recently with the Senator from Pennsylvania. If there are not further developments when we return after the July 4 recess, the Committee may well have to turn its attention to legislative options."

Phone Companies Off The Hook

2008-06-20T14:40:00.003-04:00

The House of Representatives has approved the latest version of the wiretapping bill.
That means the telcos have effectively got the legal immunity they wanted so badly.
The Senate still has to vote on the bill, but a majority of members have already come out in support of an immunity provision, so it would appear to be a done deal.
The vote is a major loss for the plaintiffs in various cases consolidated before a federal judge in San Francisco.
More on the vote here.

A Note On Judge Kozinski's Web Site

2008-06-18T10:28:00.002-04:00

This is not a story I've been covering (see elsewhere for the full details) but I do have one observation about the nature of Judge Alex Kozinski's site.
One of the issues under debate is whether Kozinski's site was or was not public (Prof. Lawrence Lessig talks about it here).
I would just note that, a few months ago, while researching a story on the 9th U.S. Circuit Court of Appeals, I googled Kozinski's name and his personal site was quite clearly available for public perusal.
There was no home page as such, but what I came upon was a list of all Kozinski's published journalism, including a piece he wrote for the New Yorker and various book reviews.
I didn't come across anything else, I might add. But based on my own experience, it did seem like it was pretty easy to access the site using just Google.

Judgeships Hearing Called Off Due to Republican Objections

2008-06-17T15:16:00.004-04:00

For the third time in a week, a Senate Judiciary Committee hearing has met with objections from Republicans.
This afternoon, the committee was due to hear testimony on the Federal Judgeship Act, a bill the committee passed last month, but only on the condition that the hearing was held to address some Republican concerns.
But, citing the slow rate of judicial confirmations this year, Senate Republicans decided to pull the plug on it, as they did with recent hearings on detainee interrogation procedures and alleged pro-business Supreme Court decisions.
It's an interesting one because the judgeships bill is actually broadly bipartisan, with the likes of Jon Kyl, R-Ariz., whose state will benefit, fully supportive.
Sen. Dianne Feinstein, D-Calif., will probably be most frustrated by the delay as her state is set to gain the most judges if the legislation passes.

Quick Change Of Tune From Dems On SCOTUS After Habeas Ruling

2008-06-12T12:29:00.004-04:00

As I reported yesterday, Democrats - including Sen. Patrick Leahy (pictured) - piled in on the Supreme Court for some of its recent rulings, which they criticised for ignoring congressional intentions.
Today, the justices are heroic defenders of the Constitution, according to Leahy and his party colleagues.
That's because the Supreme Court upheld the habeas corpus rights of Guantanamo Bay detainees in its Boumediene v. Bush ruling today.
Yesterday, Leahy condemned the Supreme Court as being full of activist judges.
“I can’t think of more activist judges than the Supreme Court, who have overturned congressional actions intended to protect consumers," he said.
Today, after the court overturned a section of the Military Commissions Act (which was, of course, passed by Congress), Leahy was singing a different tune.
"Today’s Supreme Court decision in Boumediene v. Bush is a stinging rebuke of the Bush administration’s flawed detention policies, and a vindication for those who have also argued from the beginning that it was unwise as well as unconstitutional," Leahy said.

Republican Senator Objects To Democrat SCOTUS-Bashing

2008-06-11T13:17:00.002-04:00

An anonymous Republican senator cut short a Senate Judiciary Committee hearing on recent Supreme Court rulings this morning.
The hearing, featuring a panel of legal experts and two frustrated consumers, was largely a forum for Democrats to attack some recent court decisions they deem to be damaging to average Americans.
Although Sen. Arlen Specter, R-Pa., the ranking member of the committee, said he agreed with some of the criticism the court faces, especially on its broad reading of federal preemption of state law, one of his colleagues obviously didn't.
Chairman Patrick Leahy, D-Vt., (pictured) who had left the hearing by the time the objection was made, wasn't too happy about it.
"This behavior is a disgrace to the Senate," he said in a statement.
Recent cases under the microscope included equal pay case Ledbetter v. Goodyear and medical device case Riegel v. Medtronic.

UPDATE: More On DOJ Deferred Prosecution Agreements

2008-05-22T13:13:00.002-04:00

Today the House Judiciary Committee released a bunch of documents supplied by the Justice Department concerning the increased use of deferred prosecution agreements in recent years.
Democrats have been pushing the issue since it emerged that former Attorney General John Ashcroft was set to earn up to $52 million for monitoring an orthopedics firm subject to such an agreement.
Concerned that monitorships are a cushy deal for former DOJ officials, they want to learn more about how monitors are appointed and are considering legislation that would require judicial oversight.
The DOJ documents are available here.

Cisco's General Counsel In Senate Firing Line

2008-05-20T13:05:00.006-04:00

Mark Chandler, the general counsel of Cisco Systems Inc., hasn't had much luck with senators from Illinois this year.
First, the presidential candidate he raised money for, Hillary Clinton, was bested by Barack Obama.
Then today, the senior senator from Illinois, Richard Durbin, hauled Chandler before his Senate Judiciary Subcommittee on Human Rights and the Law.
Along with Nicole Wong, deputy general counsel of Google, Inc., and Michael Samway, deputy general counsel of Yahoo, Inc., Chandler had some explaining to do about his firm's dealings with the Chinese government.
It was Chandler, though, who faced the bulk of questions following the recent publication of an internal Cisco document from 2002 that contained information about the Chinese government's IT needs, including its desire to censor the Internet.
The document included a reference to the government's desire to limit access to information about Falun Gong, a religious group that the Chinese government has repressed.
At this morning's hearing, Chandler maintained that Cisco sells the same products globally and does not alter their properties depending on the needs of customers.
He also noted that the document was prepared by a low-level Chinese employee and did not reflect the views of the company.
"We disavow the implication that this reflects in any way Cisco's views or objectives," Chandler said.
Cisco's involvement was limited to providing routing and switching equipment worth a total of $10 million, he added.
"There was nothing there that had anything to do with censorship," he said.
Human rights groups aren't convinced.
Dr. Shiyu Zhou, deputy director of the Global Internet Freedom Consortium, testified that there is a "strong indication that companies in free societies, such as Cisco, may have been involved in assisting the Chinese security services to monitor and censor the Internet."
*See tomorrow's print edition of the Daily Journal for more on this story.

Senate Panel Approves Judgeships Bill

2008-05-15T15:13:00.005-04:00

This morning the Senate Judiciary Committee voted 14-5 to approve a bill that would create dozens of new federal judgeships for the first time since 1990.
The bill would add 38 district court judgeships and 12 circuit court judgeships.
A full breakdown of where the judgeships would go is here.
Not surprisingly, California will get the most.
The committee's chairman, Sen. Patrick Leahy, D-Vt., didn't get it all his own way, however.
He had to agree to hold a hearing on the issue before bringing up the bill on the Senate floor due to concerns raised by several members, including Sen. Jeff Session, R-Ala., and Sen. Ben Cardin, D-Md.
"I just don't think this is something the committee should be doing," Cardin said of the hasty vote. "I don't feel comfortable at all."
Neither of them is convinced that adding new judgeships is the best use of resources.
*The committee also passed out an IP bill this morning.
The Orphan Works Act would reduce the potential damages for using copyrighted material when the copyright owner cannot be located.

Dennis Quaid: Expert on Federal Preemption

2008-05-14T16:07:00.004-04:00

Hollywood actor Dennis Quaid, best known for starring in some movies I can't quite recall, took on a new role today as an expert witness on federal preemption.
He appeared before the House Oversight and Government Reform Committeee to testify about the overdose of blood thinner his twin babies received last year due to a labeling problem.
Quaid (pictured) was presumably there to put a human face on an otherwise dry hearing about whether the Federal and Drug Administration can invoke preemption to stop lawsuits like the one the actor has filed against the drug manufacturer, Baxter Healthcare Corp.
Obviously well briefed by his attorneys, Quaid did a decent job of explaining the issue.
He mentioned the forthcoming Supreme Court case on a related issue (Wyeth v. Levine) and highlighted the understaffing problems the FDA cases.
But his real concern was what he and his congressman in L.A., committee chairman Henry Waxman, see as a sneaky attempt at tort reform through the back door.
"A federal ban on lawsuits against drug companies would not just deny victims compensation for the harm they experience," Quaid said. "It would also relieve drug companies of their responsiblity to make products as safe as possible."

A Timely Note On "Anatomy Of A Murder"

2008-05-13T13:58:00.007-04:00

There's been plenty of discussion today about the issue of prosecutors getting involved in fictionalized accounts of pending cases.
This came in the aftermath of two California rulings Monday in which a couple of prosecutors were let off the hook for helping out with a movie and writing a novel respectively (See Adam Liptak's NY Times article here).
The episode brings to mind perhaps the mother of all fictionalized legal proceedings, the classic 1959 drama Anatomy of a Murder.
Directed by Otto Preminger and starring Jimmy Stewart (during his mature, Hitchcock phase), the movie told the story of how a defense attorney (Stewart) helps get a murder suspect (Ben Gazzara) off the hook.
The defendant, an army lieutenant, maintains that that the victim had just raped his wife.
Stewart's character wins the case by asserting an "irresistible impulse" defense and unleashing a series of quirky courtroom tricks to win over the jury.
It wasn't a pending case, but what's really interesting is that the book upon which it was based was written by a sitting judge at the time, John D. Voelker, of the Michigan Supreme Court.
Even better: The Jimmy Stewart character was apparently based upon Voelker himself, who won the real life case upon which his novel was based.
After the success of the novel and movie, Voelker stepped down from the bench to become a full-time writer.
"While other lawyers may write my opinions, they can scarcely write my books," he quipped.
Incidentally, the actor playing the judge in the movie was real-life lawyer Joseph N. Welch, who rose to fame for his role during the Army-McCarthy hearings in the 1950s, in which he represented the army.

Scalia's Got Some Advice For You

2008-05-12T11:24:00.005-04:00

Today's Daily Journal (subscribers only) features an interview with Supreme Court Justice Antonin Scalia conducted by my colleague in the Washington bureau, Brent Kendall.
Scalia talks about his new book, Making Your Case: The Art of Persuading Judges, which he wrote with Bryan Garner.
Among his words of advice for lawyers: briefs should read like magazine articles, oral arguments are more important than some might think, and advocates should be as succinct as possible.
Oh, and always answer a judge's question. They can always tell when you're trying to change the subject, apparently.
"In a way, I'm feathering my own nest," Scalia admitted in the interview. "To the extent you can get the lawyers to do a better job, the judge's job is easier."

UPDATE: House Passes IP Enforcement Bill

2008-05-08T14:09:00.005-04:00

The House today passed a major IP enforcement bill on a 410-11 vote.
Known as the Pro-IP Act, the legislation would increase damages in counterfeiting cases and toughen up criminal penalties for copyright infringement.
It would also set up a new Office of the United States Intellectual Property Enforcement Representative, which would oversee enforcement at the national level.
Now it's on to the Senate, which has several IP enforcement bills of its own, none of which have made it out of the judiciary committee.
*In other IP-related matters, the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property voted out the Orphan Works Act this week.
The Senate version of the bill was on the agenda of this morning's judiciary committee meeting but has been held over until next week.

McCain Wants It Both Ways Over Judicial Nominations

2008-05-06T13:01:00.005-04:00

In a speech today, Republican presidential nominee John McCain (pictured) appeared keen to placate the conservative base when it comes to what kind of judges he would appoint.
But, perhaps with an eye on the general election, he also sought to play up his role as a member of the Gang of 14 senators who helped prevent a constitutional meltdown over nominations back in 2005.
First the red meat: McCain made it clear that his preferred nominees would be pretty similar to President Bush's.
"I have my own standards of judicial ability, experience, philosophy, and temperament," he said. "Chief Justice [John] Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me."
Then the caveat: McCain attempted to portray himself as a serious-minded moderate when it comes to confirming judges in the Senate.
The Gang of 14 "showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger," he said.
McCain also noted that he voted to confirm Clinton Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer.
"Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise," he added. "Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make."
In seeking to highlight his willingness to doff his cap to the president, McCain compared his own actions with those of and Barack Obama, who voted against Roberts' confirmation.
"Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done," McCain said. "But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd."

Rep. Lofgren: RIAA Lawsuits "Extortion"

2008-04-30T12:25:00.005-04:00

Rep. Zoe Lofgren, D-Calif., today joined those who describe as extortion the lawsuits the Recording Industry Association of America has filed against students for file-sharing.
The lawmaker from Silicon Valley (pictured) was talking about the so-called PRO-IP Act, an intellectual property enforcement measure passed by the House Judiciary Committee today, when she raised the issue.
She said the RIAA has "made a business out of extorting money from the students."
That's because, to most people facing the lawsuits, "it makes sense to lose a few thousand dollars as compared to hiring a counsel to defend yourself," she added.
Rep. Howard Berman, D-Calif., whose district includes Hollywood, couldn't let that dig at his entertainment industry friends slide, although responded in a roundabout way.
He said he did not plan on arguing with Lofgren about her characterization but wanted to make sure that everyone knew that his decision "does not mean, at least for this particular member, [that] we accept the notion that they are extortion."
Rep. John Conyers, D-Mich, the chairman of the committee, seemed confused.
“Right. Whatever that means,” he said.

Another SCOTUS Justice Has His Say

2008-04-25T15:43:00.003-04:00

There's been plenty of talk recently of Supreme Court Justices getting out and about, whether it be Justice Clarence Thomas promoting his book or Justice Antonin Scalia ... promoting his book.
Now Thurgood Marshall is taking his turn.
The late justice doesn't have a new book out, obviously, but he is the subject of a one-man play by George Stevens Jr. featuring acclaimed actor Laurence Fisburne.
Thurgood, the play, is on Broadway from next week until July, according to Broadway.com.
Stevens appears to have something of a Marshall fixation.
He previously won an Emmy for Separate But Equal, a 1991 TV miniseries, starring Sidney Poitier as Marshall.
Fishburne spoke to the Wall Street Journal about his new role in today's paper (scroll down to second segment).
Perhaps he'll appeal if the reviews are negative.

State Secrets Bill Makes Progress

2008-04-24T14:53:00.007-04:00

Earlier today the Senate Judiciary Committee approved legislation that would scale back the state secrets privilege.
The privilege is a favorite of the Bush administration, which has invoked it in various cases, including challenges to its wiretapping and extraordinary rendition programs.
Known as the State Secrets Protection Act, the bill sets up a set of procedures for federal courts to follow when handling claims of privilege.
Judges are required to look at the evidence the government claims is privileged and not simply rely on affadavits supplied by the government.
The legislation also prevents judges from dismissing cases before the discovery process is complete.
"It's long past time for Congress to address the state secrets privilege," said main sponsor Sen. Edward Kennedy, D-Mass. (pictured). "Congress needs to ensure ... that the courts are adjudicating the privilege properly and not just giving the executive a free pass."
The committee vote was also welcomed by the Electronic Frontier Foundation, which represents the plaintiffs in a lawsuit against the government's wiretapping program.
One of the organization's attorneys, Kurt Opsahl, said he hoped Congress will rein in what he described as the Bush administration's "abuse of the state secret privilege."
A House bill has not yet progressed beyond the judiciary committee.

Do Associates Feel Pressure To Give Political Donations To Candidates Supported By Senior Partners?

2008-04-22T08:57:00.007-04:00

In today's Daily Journal (subscribers only, unfortunately), I have a story chronicling California-based lawyer contributions to the two Democratic presidential candidates.
There are several key fundraisers for both Obama and Clinton at law firms there, including one of each at Palo Alto-based Wilson Sonsini Goodrich & Rosati.
John Roos, the firm's chief executive, is Obama's California finance committee co-chairman, while partner Steven M. Schatz is a national co-chair of Lawyers For Hillary.
What I was wondering while I was writing the story is how much pressure associates feel to contribute to campaigns supported by their bosses (not necessarily at Wilson Sonsini, but anywhere).
Obviously, all the firms claim that it's up to individual lawyers to make the decision, but I would imagine that other considerations might play into this.
Feel free to comment below.

Movement On Judicial Nominations

2008-04-16T10:46:00.008-04:00

A dispute between Republicans and Democrats that dates back to the Clinton administration over who gets to be a judge on the 6th U.S. Circuit Court of Appeals has finally been resolved.
The White House has nominated Helene N. White (pictured), a judge on the Michigan Court of Appeals, and withdrawn the nomination of Stephen Joseph Murphy III for that position.
He now has to settle for a place on the U.S. district court.
White was first nominated by President Clinton in 1997 but was blocked by Republicans.
In retaliation, the two Democratic senators for Michigan, Carl Levin and Debbie Stabenow, blocked a series of Bush nominees to the appellate court.
As part of the deal announced Tuesday, Levin and Stabenow have withdrawn their opposition for another 6th Circuit nominee, Raymond M. Kethledge.
White, incidentally, is married to Levin's cousin, Charles Levin, who himself served as a judge in Michigan.
Democrats are no doubt hoping the deal will help ratchet down the drumbeat of criticism from Senate Republicans over the low number of judges confirmed so far this year.
In a related development, Sen. Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., revealed Tuesday that they have reached a tentative agreement that the Senate will hold confirmation votes on three pending circuit court nominees before Memorial Day.

Sen. Specter and Chief Judge Michel On The Same Page Over Patent Reform

2008-04-11T10:17:00.005-04:00

It's perhaps no surprise that Sen. Arlen Specter, R-Pa., and Paul Michel, the chief judge of the U.S. Court of Appeals for the Federal Circuit, share similar views on patent reform.
Both have been especially critical of proposed changes to the way damages are calculated.
They go way back.
Michel was an Assistant District Attorney in Philadelphia when Specter was the District Attorney in the late 1960’s.
He later served as Specter’s chief of staff in the Senate before being nominated to the bench in 1988.
The two again seemed to be joined at the hip this week, as I report in today's Daily Journal (suscribers only).
On Wednesday Specter revealed that he is withdrawing his support for the Patent Reform Act over the damages issue.
Then on Thursday, Michel, speaking at the American Bar Association's annual Intellectual Property Law Conference, also stuck the boot into the legislation.
Michel effectively told Congress to stay out of the damages issue.
If there is a problem, the courts will address it, he said.
"Congress ought to wait and see if ultimately the adjustments are good enough,” Michel added. “I would not say that Congress should never act on courthouse problems, but it could wait.”
It's now looking increasingly unlikely that the Patent Reform Act will pass the Senate without major changes.

U.S. Chamber Questions San Francisco Arbitration Lawsuit

2008-04-09T09:53:00.008-04:00

The U.S. Chamber of Commerce and other business groups appear to be suspicious about the motives behind a lawsuit filed by the San Francisco City Attorney against a private arbitration company.
As I report in the Daily Journal today (subscribers only), The lawsuit comes at a time when Congress is considering legislation - the Arbitration Fairness Act - that would ban pre-dispute mandatory arbitration agreements like the ones defendant National Arbitration Forum Inc. oversees.
What riles Lisa Rickard, president of the Chamber's Institute for Legal Reform, is how much the San Francisco lawsuit mirrors a report last year by consumer group Public Citizen.
The institute recently held a press conference attacking the report's findings.
"It's clear the San Francisco city attorney cut and pasted the trial lawyer-backed Public Citizen study, with all of its misleading information, directly into his lawsuit," Rickard told the Daily Journal.
In response, spokesmen for both Public Citizen and the San Francisco City Attorney's Office say there was no coordination, although the lawyers who filed suit did make use of the report.
For more on the lawsuit, see this Wall Street Journal story from earlier this week.

Poor Quality of Legal Representation In Death Penalty Cases Gets An Airing In Senate

2008-04-08T15:18:00.005-04:00

Sen. Russ Feingold, D-Wis., held a little-heralded hearing on the quality of representation in capital cases earlier today.
In his opening statement, he described the standard of lawyering as "uneven at best."
Feingold (pictured), opposes the death penalty, but he noted that "as long as we have a death penalty, we owe it to those who are charged with capital crimes ... to make sure they have good lawyers who have the resources they need to mount an effective defense."
Among the witnesses was Michael S. Greco, a former president of the American Bar Association and a partner at Kilpatrick & Lockhart Preston Gates Ellis.
He reported that an ABA study focusing on eight states found that each one "has grave problems that call into question its fairness and whether justice is being done."
The biggest problem, he added, "is the quality and availability of competent legal representation."
Feingold's solution would be to ban the death penalty altogether.
But his Death Penalty Abolition Act has so far failed to attract any support from fellow senators.

Specter Issues Another Judicial Confirmation Warning

2008-04-02T13:47:00.006-04:00

The ranking Republican on the Senate Judiciary Committee, Arlen Specter, R-Pa., has ratcheted up his complaint that Democrats are obstructing judicial nominations.
Having already raised the issue earlier this year, Specter (pictured) opened up a new front this week by threatening that Republicans could effectively shut down the Senate in retaliation.
Only six circuit court nominees have been confirmed since January 2007, meaning that democrats will be hard-pressed to get anywhere near the 15 that Republicans confirmed in the last two years of President Clinton's final term.
"There is consideration being given to a variety of responses to this kind of conduct by the majority, and we all know any one senator can tie up this body unilaterally," Specter warned today.
He has at least one enthusiastic cheerleader in the form of the Wall Street Journal's editorial page.
"Democrats figure they'll retake the White House in November, and they don't mind leaving the courts short-handed for another year or two as they stall for liberal nominees," sniffed an editorial in today's paper .

IP Enforcement Joke Of The Day

2008-04-01T16:58:00.006-04:00

Those jokers over at Public Knowledge, the digital rights public interest group, had their own bit of April Fool's Day fun earlier today.
They issued a press release slamming a piece of fictional legislation that would, among other things, set up a Department of Intellectual Property Security and extend copyright protections.
As the group's president, Gigi Sohn, noted in a statement that perhaps gave the game away: "This bill is a tragedy wrapped in a travesty. It is also a travesty wrapped in a tragedy."
But Public Knowledge wasn't just having a laugh, apparently.
As Sherwin Siy, an attorney with the group (pictured), explains in a follow-up post on his blog, "a lot of the provisions we included in the fake bill were modeled after real proposals made either by legislators, content industry lobbyist, or other policymakers."

UPDATE: Last Call For Patent Reform?

2008-03-31T12:31:00.005-04:00

Congress returns from its Easter recess this week with the Senate still yet to take up the Patent Reform Act.
But a spokesman for Senate Majority Leader Harry Reid, D-Nev., said Friday the bill is on the agenda for the forthcoming work period.
The bill, which the House passed last year, has been pending for months while supporters attempt to resolve differences between interested parties.

Rep. Schiff Staying Out Of Rogan Nomination Fight

2008-03-18T15:18:00.004-04:00

When Rep Adam Schiff, D-Calif., was beginning his political career, one major obstacle stood in his way: James E. Rogan.
Currently serving as a Superior Court judge in Orange County, Rogan – a conservative Republican - beat Schiff when they both ran for the California Assembly in 1994.
Rogan then won election to the House of Representatives in 1996, the same year that Schiff (pictured) went to Sacramento as a state senator.
But their paths were to cross again in 2000 when Schiff ran against Rogan, who had aroused the ire of liberals for his key role in the impeachment proceedings against President Clinton.
This time, Schiff won in what became the most expensive race in House history.
More recently, President Bush nominated Rogan to the federal bench, a move that didn’t please Senator Barbara Boxer, D-Calif., who has blocked his confirmation.
Asked about Rogan’s suitability for the bench during a recent interview, Schiff was reluctant to give his opinion.
“I’m going to let the Senate decide that,” he said. “I’m probably too close to the situation to be a good, objective source on that.”
But he does add, jokingly, that when he heard that Rogan was considering a run for Congress in Orange County, a neighboring southern Californian district, he told the local paper he was willing to help out.
“Frankly, if I knew he was interested in Orange County, I would have helped him buy a house,” he said.
Rogan could not be reached for comment.

Senators Introduce Legislation To Add Judgeships Nationwide

2008-03-14T10:25:00.004-04:00

The federal judiciary may finally get its way if Congress passes new legislation adding new judgeships across the country.
Judges have been asking for years for Congress to add judgeships. The last major overhaul was in 1990.
Sen. Patrick Leahy, D-Vt., and other members of the Senate Judiciary Committee believe an election year is a good time to win approval of the legislation, known as the Federal Judgeships Act.
It would come into effect after the inauguration next year, meaning that lawmakers can, in theory, put aside concerns about who will get to nominate the new judge.
The bill would add 12 new permanent circuit court judgeships and 38 permanent district court judgeships.
It would also add two temporary judgeships for the overburdened 9th U.S. Circuit Court of Appeals and a further 14 district court judgeships across the country.
California would be the biggest beneficiary.
Leahy's statement upon introduction of the bill can be seen here.

Patent Reform Back On Agenda

2008-03-13T10:20:00.002-04:00

The Senate could finally get around to debating the patent reform bill in April, its sponsors are saying.
The bill, which the House passed last year, has been pending for some time.
The Senate Judiciary Committee approved it as far back as July.
Leading sponsors Sen. Patrick Leahy, D-Vt., Sen. Orrin Hatch, R-Utah, and Sen. Arlen Specter, R-Pa., issued a release Wednesday in which they announced preparations for the debate.
They have prepared 15 amendments to the legislation, dealing with such issues as post-grant review, interlocutory appeals, and severability.
All the amendments are available from the judiciary committee here.
"We are looking forward to a to a thorough debate in the Senate after recess," Leahy said.

Ashcroft Tussles With Democrats At Hearing

2008-03-11T14:16:00.009-04:00

Former Attorney General John Ashcroft (pictured) jetted into Washington for an ill-tempered session before a House Judiciary subcommittee today.
At issue? His firm's no-bid contract - worth up to $52 million - to act as a monitor in a deferred prosecution agreement involving Zimmer Inc.
Ashcroft clearly thought he had little to answer for, particular because the purpose of the hearing was to explore the way such contracts are awarded.
"I don't know what kind of discussions they had," he insisted.
He and Rep. Linda Sanchez, D-Calif., then spent the next several minutes talking over each other as she attempted to ask questions.
Ashcroft ended the exchange by noting that, unlike monitors, which are paid for by the defendant companies, taxpayers have to pay for House Judiciary Committee hearings.
"This hearing costs far more in tax dollars than my monitorship," he said.
Ashcroft soon announced his desire to leave in order to catch a flight to Florida and he abruptly left the room.

Did Gov. Spitzer Violate the Mann Act?

2008-03-10T16:00:00.005-04:00

New York Gov. Eliot Spitzer's alleged involvement with a prostitution ring could have dire legal ramifications for him.
That's because if he did, indeed, help arrange for a high-end hooker to travel down to Washington from New York, he may have violated the Mann Act, according to Citizens for Responsibility and Ethics in Washington (CREW).
The 1910 law "prohibited interstate transportation of women for immoral purposes,” according to the Encyclopaedia Britannica.
CREW was quick to issue a release this afternoon noting how Spitzer's conduct may land him in trouble with the Feds.
"Given the reports that New York Governor Eliot Spitzer was heard on a wiretap arranging for a prostitute to travel from New York to Washington to meet in his hotel room, it appears that he has violated the Mann Act," the statement said. "This federal law carries a penalty of up to 20 years imprisonment for knowingly persuading or inducing any individual to cross state lines for the purposes of prostitution."
The group's executive director, Melanie Sloan, added for good measure: "It is completely unacceptable for any government official – much less one who has held himself up as a paragon of virtue – to engage in criminal conduct. Governor Spitzer’s behavior is reprehensible. The citizens of New York deserve better."

House Judiciary Committee Files Suit Against Miers, Bolten

2008-03-10T13:47:00.009-04:00

In an attempt to get the federal courts to enforce two congressional contempt citations, the House Judiciary Committee today filed suit against former White House Counsel Harriet Miers and current chief-of-staff Joshua Bolten.
The 36-page complaint can be viewed here.
Committee chairman John Conyers, D-Mich., (pictured) probably shouldn't hold his breath.
As I wrote in the Daily Journal last month, the courts are very reluctant to get involved in disputes between the legislative and executive branches.
In my story, I took a look at what happened in 1982, when the judiciary committee filed suit against the Anne Gorsuch, the director of the EPA, for withholding documents.

An excerpt:

In the resulting court case, the U.S. District Court in the District of Columbia expressly stated that the judiciary would only exercise jurisdiction over such disputes if absolutely necessary. United States v. House of Representatives, 556 F. Supp. 150.
“The difficulties apparent in prosecuting Administrator Gorsuch for contempt of Congress should encourage the two branches to settle their differences without further judicial involvement,” wrote Judge John Lewis Smith Jr. “Compromise and cooperation, rather than confrontation, should be the aim of the parties.”

Whatever happens, experts say it's likely the Bush administration will be long gone by the time this is resolved.

UPDATE: Consumer Protection Bill Passes Senate

2008-03-06T17:56:00.004-05:00

In the print edition of today's Daily Journal (subscribers only), I reported on a provision in the Consumer Product Safety Commission Reform Act that would increase the power of state attorneys general to intervene in product safety cases.
Today, the legislation - sponsored by Sen. Mark Pryor, D-Ark. - passed the Senate.
It would allow state attorneys general to seek injunctive relief against manufacturers if the commission deems a product to be unsafe.
The tort reform lobby is not happy about that provision, which is not part of the House bill that passed last year.

Cameras In The Courtroom Bill Approved By Senate Panel

2008-03-06T12:42:00.004-05:00

The Senate Judiciary Committee today passed out a bill that would allow TV coverage of all federal courts.
The comittee has approved similar bills on several occasions in recent years but the legislation, known as the Sunshine in the Courtroom Act, has never been close to becoming law.
Sen. Ben Cardin, D-Md., (pictured) narrowly failed in his attempt to exempt district courts.
His amendment failed on a 9-9 tie.
Cardin had argued that while there is a need to show the inner workings of the appellate process, especially the Supreme Court, trials in district court are more problematic.
That's because the media would not cover trials from gavel to gavel, he said.
But the bill's sponsors fought back, noting that the latest version of the legislation allows trial judges to exclude the cameras in certain instances, such as to protect witnesses and minors.
Sen. John Cornyn, D-Texas, added that coverage of trials would help the American people understand that trials are a lot more complex - and less entertaining - than legal TV dramas make them appear.
"I think it's important for them to see what happens," Cornyn said of the public.
A House version of the bill has already been approved by the judiciary committee.
*At this morning's meeting, the committee also approved the Sunshine in Litigation Act, a bill that place limits on secret settlements when public safety is an issue.

Republicans Slam Democrats Over Judicial Confirmation Rate

2008-03-03T15:46:00.006-05:00

Republican senators are attempting to increase the political pressure on Democrats over the slow pace of judicial confirmations in President Bush's final year in office.
Sen. Arlen Specter, R-Pa., (pictured) the ranking member of the judiciary committee, took to the Senate floor today to raise the issue once again.
He reported that the Senate confirmed 15 circuit court nominees and 57 district court nominees in the final two years of President Clinton's second term,
The Senate will struggle to reach that target in President Bush's final year, he added.
Since the beginning of 2007, the Senate has confirmed just six circuit court nominees and 34 district court nominees, Specter said.
"It's not really just a matter of statistics," he said after reciting several other statistics. "It's a matter with a very substantial impact on the public and a very substantial impact on the courts."
Senate Minority Leader Mitch McConnell, R-Ky., also took a few potshots at Democrats, observing that there have been no judicial confirmations so far this year.
"Progress has all but ground to a halt," he said.
Specter, meanwhile, is trying once again to change Senate rules so that judicial nominees are guaranteed a hearing after 30 days, a committee vote after another 30 days, and an up-or-down vote on the Senate floor after a further 90 days.
Sen. Patrick Leahy, D-Vt., the chairman of the judiciary committee, has frequently defended his record of shepherding Republican nominees through the committee.

Subscribe To Washington Briefs Now!

2008-02-28T14:02:00.005-05:00

If you look at the top right of the page, you'll see the little RSS-feed widget that I just added. Sign up now! (Thanks to Mark Obbie for the suggestion).

Leahy Lashes Out At Bush Over FISA

2008-02-28T10:52:00.003-05:00

Sen. Patrick Leahy, D-Vt., today compared White House officials to "little children playing with matches" over their refusal to compromise over wiretapping legislation.
He also accused Republicans of using the debate over revisions to the Foreign Intelligence Surveillance Act to attack Democrats on national security issues, even though Democrats support most of the substantive changes to the current law.
Leahy warned that the White House should know that the consequences of playing with fire "can be very severe."
The real stumbling block continues to be the Bush administration's insistence that the phone companies that participated in a secret wiretapping program receive legal immunity, something House Democrats have consistently rejected.
"The President once again is misusing his bully pulpit," Leahy said at this morning's Senate Judiciary Committee meeting. "Once again his purpose is not to help the Congress and the country reach consensus on a sensible law, but to tell Congress to set aside its legislative process and to merely take the administration's dictation."
Leahy was responding to comments made by President Bush at a press conference this morning, in which Bush called once again for Congress to grant immunity to the phone companies.

Rep. Waxman Memo Outlines The Case Against Clemens

2008-02-27T15:53:00.005-05:00

Rep. Henry Waxman (pictured) has wasted no time in making the case that baseball player Roger Clemens committed perjury when he testified before Congress earlier this month.
Earlier today, the Democrat from California, chair of the House Committee on Oversight and Government Reform, asked the Justice Department to investigate the issue.
Waxman then backed up his allegations by issuing an 18-page memo detailing the basis for the allegation.
Clemens claimed that he never used performance-enhancing drugs, which contradicts sworn statements of others, who say he did, Waxman alleges.
The memo, prepared by Waxman's staff, raises seven main points, starting with Clemens's testimony that he never took steroids or HGH (human growth hormone).
Waxman's staff say there are three pieces of evidence that "call Mr. Clemens's testimony into question," namely the testimony of former coach Brian McNamee, the testimony of Clemens' former teammate, Andrew Pettitte and Pettitte's wife, and Clemens's own medical records.
The other points in the memo raise discrepancies in other areas of Clemens's testimony, such as his claim of taking many vitamin B-12 injections and his assertion that he never discussed HGH with McNamee.

Rep. Berman Set To Keep Hold Of IP Subcommittee - For Now - Despite Taking Foreign Affairs Chairmanship

2008-02-26T15:29:00.005-05:00

Hollywood's man in Washington is not about to give up his chairmanship of the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property.
Rep. Howard Berman, D-Calif., is intending to carry on chairing the subcommittee for the time being even though he is in line to replace the late Tom Lantos, D-Calif., as chair of the Foreign Affairs Committee.
Normally, members can only hold one chairmanship at a time.
But a spokeswoman for Berman revealed that there is a provision within the Democratic Caucus rules that allows for a member to chair a full committee and a subcommittee if he is elected to lead the full committee towards the end of a particular Congress.
She noted, however, that Berman would have to step down from his chairmanship of the subcommittee at the end of the current Congress.
In the meantime, despite the heavy workload, Berman will "continue working on his patent reform bill and IP enforcement bill and performance royalty, not to mention orphan works," the spokeswoman said.
Hollywood will be pleased.

Fifth Circuit Nominee Holds Her Own

2008-02-21T12:47:00.004-05:00

A federal appellate court nominee criticized by liberal activists stood her ground when she appeared before the Senate Judiciary Committee today.
Catharina Haynes, of Texas, (pictured) who President Bush has nominated for a seat on the 5th U.S. Circuit Court of Appeals, stressed her commitment to diversity and equal access to the courts during the specially arranged hearing, held during a Senate recess.
Committee chairman Sen. Patrick Leahy, D-Vt. said that the 5th Circuit has "historically been at the vanguard of protecting civil rights" and asked Haynes if she could "demonstrate sensitivity to people of different backgrounds."
Haynes, a state trial court judge in Texas for eight years, responded by noting that both her parents are immigrants and that she has "bought that understanding of different backgrounds to my work as a lawyer and a judge."
She also described her role in an effort to improve legal services for the poor in the Vickery Meadow area of Dallas.
Some liberal groups, such as the Alliance For Justice, oppose Haynes’ nomination.
"A nominee for this position must have a record of excellence in the law, impeccable integrity, and a deep commitment to equal justice for all," the group said in a statement. "Ms. Haynes does not satisfy this standard."
But Haynes has the support of both her Republican home state senators, one of which, John Cornyn, is a member of the judiciary committee and has lobbied Leahy on her behalf.

House Members Weigh In On Bradbury Nomination

2008-02-14T17:20:00.007-05:00

Earlier today, Steven Bradbury, acting head of the Justice Department's Office of Legal Counsel, testified before the House.
He defended his legal opinions on waterboarding, which has been reported elsewhere.
What the House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties didn't address during the hearing is the status of Bradbury's nomination before the Senate.
Democrats are so reluctant to confirm him - and the White House equally reluctant to withdraw his name - that his nomination is in danger of holding up a whole slew of other nominations, including judgeships.
After today's hearing, I asked the subcommittee chairman, Rep. Jerrold Nadler, D-New York, whether Bradbury (pictured) should be confirmed.
"No," he said. "I don't think anybody should be confirmed who cannot say that waterboarding is torture."
Bradbury has also failed to provide Congress with copies of his opinions on the issue, Nadler added.
The ranking member of the committee, Rep. Trent Franks, R-Ariz., sees things a little differently.
Asked the same question, he responded that Bradbury has had a "distinguished career", and is "absolutely brilliant."
Warming to his theme, he suggested that "only those rooted in twisted partisanship" would not want to confirmation Bradbury.
Furthermore, if the Senate opts to hold up other nominees because of the dispute, that wouldn't help matters either, Franks said.
"I believe that the Senate not giving the president an up-and-down vote on these judicial nominees is proof that the liberal hierarchy in the Senate is more interested in politicizing the courts than protecting the constitution," he added.

Telecom Immunity Debate Moves to House

2008-02-12T18:12:00.000-05:00

Republicans have wasted no time in increasing the political heat on the House leadership now that the Senate has voted to grant immunity to phone companies that participated in the Bush administration's surveillance program.
Last year, the House passed the RESTORE Act, its attempt at reforming the Foreign Intelligence Surveillance Act.
But that bill doesn't include an immunity provision.
The Senate and House now have until February 16, when the current law expires, to work out a deal.
Roy Blunt, R-Mo., the Republican whip, had a statement out within minutes of the Senate vote.
"Delaying passing the Senate bill – a responsible bipartisan compromise – would be tantamount to putting the national security of our nation on hold," he said.
House Speaker Nancy Pelosi, D-Calif., can expect more of that in the coming days.

GOP Congressman Seizes On Lerach Sentencing To Highlight Securities Bill

2008-02-12T09:55:00.000-05:00

Rep. Jeb Hensarling, R-Texas, intends to re-introduce legislation today that would reform class securities legislation.
His timing, just a day after William Lerach, formerly of securities class action firm Milberg Weiss, was sentenced to two years in prison (subscribers can see the Daily Journal's print edition for the full story), is not coincidental.
The firm imploded after allegations that it gave kickback payments to some of its clients.
Lerach is the latest former partner to plead guilty in relation to the investigation.
It's not likely that Hensarling's bill, the Securities Litigation Attorney Accountability and Transparency Act, will make much of a dent in a Democratic-controlled Congress.
Former Rep. Richard Baker, R-La., who recently resigned from Congress, had championed a version of the bill in the 109th Congress and failed to make any progress, even when Republicans were in charge.
He also introduced the bill in the current Congress before he resigned.
But Hensarling, pictured right, backed by the U.S. Chamber of Commerce, obviously saw the Lerach sentencing as a good opportunity to highlight the issue.
The bill would require plaintiffs attorneys working on securities cases to disclose payments, fees, and political contributions, among other things.
"Recent, well-documented, cases of abuse in this arena have underscored the necessity of such legislation, and it is my hope that the provisions contained in this bill will restore shareholders’ faith that the days of jackpot justice fraud are over," Hensarling said.
Incidentally, the reason Baker left Congress was to to take up a lucrative post at the Managed Funds Association.

US Attorney Investigation Going Nowhere

2008-02-07T16:06:00.000-05:00

Attorney General Michael B. Mukasey made it clear today, if it wasn't clear enough already, that he would not enforce a congressional subpoena against White House Chief-of-Staff Joshua Bolten.
The House Judiciary Committee has approved a contempt citation against Bolten for his failure to produce documents relating to the U.S. attorney firing investigation, but the House has not yet voted on it.
Under questioning from Rep. Robert Wexler, D-Fl., at today's judiciary committee oversight hearing, Mukasey said that Bolten's refusal to testify about why the White House wouldn't disclose documents was protected by executive privilege.
"Will you enforce it?" Wexler asked, in reference to a subpoena.
"The answer is no," Mukasey replied.
Overall, the stand-off between Congress and the White House over the U.S. attorney investigation, which was big news last year, has been mentioned infrequently at Mukasey's two recent appearances before Congress (he testified before the Senate Judiciary Committee last week).
Members of both the House and Senate committees appear to have moved onto other issues, with the debate over waterboarding dominating both oversight hearings.
However, Rep. Linda Sanchez, D-Calif., who helped lead the House investigation into the firings, insisted today in an interview that she is still keen on learning more about what happened.
"It's still definitely a priority," she said.

Obama Keeps His Teaching Options Open

2008-02-05T13:39:00.000-05:00

Applicants to the University of Chicago Law School may be pleased to see that the man who could be the next president of the United States is still listed as a member of the faculty.
An even more youthful looking than usual Barack Obama (pictured) is shown on the faculty website along with a profile describing the Democratic presidential contender as a senior lecturer in law.
The law school helpfully notes that Obama is "on leave of absence."
His office phone number and personal AOL email address are also provided for eager students.
For those who weren't aware, the erstwhile lecturer is "currently a candidate for the office of President of the United States," the profile concludes.

Senate Panel Approves Judicial Pay Raise And Junkets Ban

2008-01-31T18:25:00.000-05:00

This afternoon the Senate Judiciary Committee voted 10-7 to approve a bill that would grant federal judges a 29 percent pay raise.
The amount is roughly in line with a House bill passed last year.
But the Senate panel also adopted along party lines an amendment offered by Sen. Russ Feingold that will limit what kind of educational trips and events judges can attend.
The provision would ban judges from attending programs that are hosted by any organization other than the federal government or relevant judicial and bar association groups.
The latest version of Feingold's proposal also puts a limit on renumeration judges can accept, including travel expenses and accommodation, which exceed $2,000 for a single trip of $20,000 over the course of a year.
This would apply to any events organized by private or public universities, Feingold told senators, to the consternation of some Republicans.
The bill is likely to be subject to further amendment when it reaches the Senate floor.

UPDATE: Judicial Pay Raise Vote Delayed

2008-01-31T13:19:00.000-05:00

The judicial pay raise bill that I've previously reported on here is on the agenda for today's Senate Judiciary Commmittee markup.
Sen. Russ Feingold, D-Wis. plans to submit an amendment that would ban educational judicial "junkets."
The meeting was due to start at 10am this morning, but has now been pushed back to 4pm.
More later...

DOJ Still Standing Firm On Attorney-Client Privilege

2008-01-30T16:02:00.000-05:00

Despite suggestions from some in Congress that the Department of Justice should ban its practice of seeking attorney-client privilege waivers in corporate investigations, Attorney General Michael Mukasey is standing firm.
He said before the Senate today that he believes the department's current policy, known as the McNulty memo after former Deputy Attorney General Paul McNulty, is working.
He assured Sen. Arlen Specter, R-Pa., the main critic of the policy, that prosecutors are not seeking to innappropriately force companies to grant waivers.
"I don't justify or reconcile or encourage or condone any coercion of anyone," Mukasey said.
He revealed that since the McNulty memo was introduced in December 2006, there have been no requests for waivers.
This seemed to surprise Specter, who said he would like to discuss the matter further with the attorney general.
"Perhaps we can come to an accord," Specter added.

Mukasey Elaborates On Opposition To Government Substitution In Wiretapping Cases

2008-01-30T14:22:00.000-05:00

In testimony before the Senate Judiciary Committee today, Attorney General Michael Mukasey explained why he opposes a bipartisan effort to substitute the government for the defendant phone companies in the ongoing litigation about the Bush administation's surveillance program.
Sen. Arlen Specter, R-Pa. and Sen. Sheldon Whitehouse, D-R.I., have a proposal that would allow the lawsuits against the phone companies to proceed by letting the government take the place of the defendants.
It falls short of the retroactive immunity for the phone companies that the Bush administration is pushing for as the Senate continues to debate updating the nation's surveillance laws.
Under questioning from Specter at today's oversight hearing, Mukasey said the problem with substitution is that it would have a chilling effect on future efforts to seek help from telephone companies.
"These companies know how technology will develop," Mukasey told senators. "We need their willing cooperation."
By allowing the lawsuits to proceed, "we are going to sacrifice that," he added.
Mukasey also suggested that it is problematic that the conduct of the companies is "front and center" because they were acting in good faith at the request of the government.

Democratic Presidential Candidates Cast FISA Votes

2008-01-28T18:11:00.000-05:00

The debate over whether to grant immunity to the phone companies that cooperated with the Bush administration's secret surveillance program continues to be fodder for Democrats on the presidential campaign trail.
Sen. Hillary Clinton (pictured) and Sen. Barack Obama both made rare appearances in the Senate today to vote against a Republican attempt to limit debate on the surveillance bill.
The Republican effort to failed to muster the 60 votes needed.
Backed by the White House, Senate Republicans have been pushing hard for the bill, which includes a provision that would grant immunity to the phone companies.
A number of Democrats are opposed to immunity, including both Clinton and Obama.
Clinton said in a statement that she believes that "a grant of retroactive immunity is wrong".
As such, she is cosponsoring an attempt by erstwhile presidential candidate Sen. Chris Dodd, D-Conn., who wants to strike the immunity section.
"The Bush Administration has blatantly disregarded Americans' civil liberties over the past seven years, and I simply will not trust them to protect Americans' privacy rights," Clinton said.
The only Republican presidential candidate in the Senate, John McCain, did not vote.

Democrats Scramble For Trial Lawyer Dollars

2008-01-28T11:54:00.000-05:00

It would seem that there were plenty of Democratic operatives at the trial lawyers' winter meeting in Puerto Rico, the Washington Post reports.
With John Edwards (pictured) failing to make much progress against Barack Obama and Hillary Clinton in the Democratic presidential nomination race, his trial lawyer donors are looking attractive to his rivals.
A trial lawyer himself, Edwards has long relied on the support of his former colleagues.
The Washington Post story today reports that both Clinton and Obama have people working hard to persuade Edwards supporters within the trial bar to switch if and when Edwards leaves the race.
As the story notes:

"Trial lawyers have proved to be the financial mainstay for Edwards's two presidential bids, as well as for the Democratic Party in general. An analysis by the Center for Responsive Politics found that nearly a third of the $30 million Edwards raised during the first nine months of 2007 came from lawyers, many of whom were attracted by his success as a plaintiff's attorney. And of the $82 million lawyers have donated to federal candidates so far during the 2008 cycle, 77 percent of it went to Democrats."

FISA UPDATE: First Defeat For Telecom Immunity Opponents

2008-01-24T14:17:00.000-05:00

The Senate just voted 60-34 to reject replacing the underlying wiretapping bill it is currently debating with the bill that was voted out of the judiciary committee.
That's significant because the judiciary committee bill did not contain a provision granting immunity to the phone companies that cooperated with the Bush administration's secret surveillance program.
The Senate will now continue its debate on the bill that the intelligence committee approved.
That does contain an immunity provision.
Sen. Russ Feingold, D-Wis., and Chris Dodd, D-Conn., are expected to offer an amendment that would strip that section but experts don't believe they will succeed.
The debate, which is being carried live on C-SPAN, continues.

Economy Trumps Contempt

2008-01-23T12:38:00.000-05:00

Late last year, Democrats in the House were suggesting that there might be a vote soon on the contempt charges against former White House Counsel Harriet Miers and current chief-of-staff Joshua Bolten.
The Judiciary Commmittee has already endorsed the charges, which relate the the refusal of the White House to allow Miers (pictured right with President Bush) to testify about the U.S. attorney firing scandal or to disclose documents about the matter.
But, with the economy taking a dive, it looks like the Democrats are going to forget about that particular partisan squabble for a while, perhaps in the interests of passing a bipartisan stimulus package.
Politico reports today that senior Democrats concluded that now is not the right time, although a vote sometime later in the year hasn't been discounted.

Senate Takes Up Surveillance Again

2008-01-23T11:36:00.000-05:00

The Senate is due to take up the controversial wiretapping legislation tomorrow, with the focus again on whether to grant immunity to the phone companies that cooperated with the Bush administration's secret program.
Sen. Chris Dodd, D-Conn., and Sen. Russ Feingold, D-Wis., are expected to introduce an amendment striking the immunity provision, but most believe that effort will fail.
Meanwhile, Sen. Arlen Specter, R-Pa. and Sen. Sheldon Whitehouse, D-R.I., favor substituting the government for the phone companies.
But that effort may also struggle to win support.
Finally, Sen. Dianne Feinstein, D-Calif., has an amendment that would require the FISA court in Washington to review whether the phone companies acted in "good faith" when they agreed to the government's request.
If so, the lawsuits pending in San Francisco will be dismissed; If not, they will proceed.
For civil liberties advocates keen to prevent immunity being granted, it could be an uphill battle.
Caroline Fredrickson, the American Civil Liberties Union's top lobbyist, admitted as much Tuesday.
With the clock ticking on the current legislation, which expires next month, Democrats are "backed into a corner," she said.
The silver lining, however, is that House leaders are still opposed to immunity, Fredrickson added.

Amendment To Judicial Pay Raise Bill Could Ban Junkets

2008-01-16T10:32:00.001-05:00

In today's Daily Journal (subscribers only), I report on a new twist on the debate over giving federal judges a hefty pay raise.
The Federal Judiciary Salary Restoration Act will be pending before the Senate Judiciary Committee when the Senate returns next week from its holiday recess.
But Sen. Russ Feingold, D-Wis. (pictured), and Sen. Jon Kyl, R-Ariz., have been discussing a possible amendment to the bill that would insert a provision banning judges from attended privately-funded seminars.
Congress has been critical of judges attending the so-called junkets, in particular because some are funded by industry groups with business before the courts.
The bill could come up for debate in the committee as early as next Thursday.

Court Security Bill Becomes Law

2008-01-04T14:49:00.000-05:00

Recently passed legislation introducing new security protections for federal judges becomes law today.
Congress passed the bill before Christmas and the White House made no attempt to veto it, meaning it becomes law automatically.
The legislation increases penalties for threatening or harming judges and provides new resources for court security at federal and state level.
"Threats to judges and to other participants in the judicial system are threats to us all," said Sen. Patrick Leahy, D-Vt., one of the bill's main supporters. "Congress passed this crucial bill to protect our court officials and their families from those who would try to harm or intimidate them, and I am glad these reforms can now be put in place."

A Message To Readers

2007-12-20T12:22:00.000-05:00

As most readers will be aware, Congress is now heading out of town until the New Year. Although your blogger is remaining in Washington for the duration, he's predicting with some certainty a series of slow news days. With that in mind, he's anticipating fewer posts in the next couple of weeks, but he hopes readers will bear with him and return in the New Year.

Happy Holidays to all.

Senators Probe DAG Nominee on CIA Tapes

2007-12-19T14:57:00.000-05:00

Democratic senators sought assurances today from Deputy Attorney General nominee Mark R. Filip that he would ensure that the Justice Department aggressively investigates the CIA's destruction of interrogation tapes.
Filip (pictured), currently a federal district judge in Chicago, pledged that he would do so during his confirmation hearing before the Senate Judiciary Committee.
He even conceded under pressure from Sen. Edward Kennedy, D-Mass., that he would consider pushing for a special prosecutor.
"If that's what I thought the law and justice required then, yes," Filip responded.
Kennedy said a special prosecutor may be needed because the Justice Department may not be sufficiently independent.
Like Attorney General Michael Mukasey when he appeared before the Senate earlier this year, Filip refused to say whether waterboarding constitutes torture.
Filip described it as "repugnant" to him personally but declined to speculate further, citing the fact that Mukasey is currently conducting a review of the issue.
Although some Democrats were not best pleased with Filip's responses, Sen. Patrick J. Leahy, D-Vt., the chair of the committee, made it clear that he expects Filip to be confirmed swiftly.
He even suggested that Filip could serve in an acting capacity in anticipation of confirmation.

Court Security Legislation Heading For Passage

2007-12-18T11:58:00.000-05:00

Last night the Senate finally passed a bill that will improve security for federal judges.
As the House as already passed its own version of the bill - which is largely the same - sponsors are expecting a smooth transition to President Bush's desk.
The bill in question, the Court Security Improvement Act, increases penalties for threatening or harming judges.
The issue of judicial safety has gained momentum in recent years after the murder in 2005 of the mother and husband of Chicago U.S. District Judge Joan Humphrey Lefkow.
The bill also increases sentences for witness tampering.
Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, said today he was glad to have fulfilled his promise to pass the bill before the end of the year.
"The Senate has waited far too long to enact this legislation to protect those who guard justice in our court system," he added.

Dodd Talks It Out

2007-12-17T17:28:00.000-05:00

Sen. Chris Dodd, D-Conn., is currently holding forth on the Senate floor in what most seem to think will be a doomed attempt at filibustering the surveillance overhaul bill.
His beef is with the provision that would grant legal immunity to the telecom companies that cooperated with the Bush administration's secret surveillance program.
The long-shot presidential candidate (pictured) doesn't appear to have enough support from his colleagues to stop the surveillance bill from progressing.
Earlier today, Dodd suggested that his main motivation is to put a check on presidential power.
"Is this about our security or his [President Bush's] power?" he said. "It's the key to understanding why this administration is pushing so hard for telecom immunity."
Judging by Dodd's campaign website, he is hoping his stand on the issue will help him in the polls.

UPDATE: More Judicial Salaries Feedback

2007-12-17T10:48:00.000-05:00

See today's Daily Journal (subscription only) for more on the judicial salaries legislation, including some reaction from former federal judges Dickran Tevrizian, of California, and Paul Cassell, of Utah.

Federal Judiciary Salary Bill Progresses - With Caveats

2007-12-12T14:27:00.001-05:00

The House Judiciary Committee approved a salary increase for the federal judiciary today, but in a last minute change, the amount of the pay raise was reduced.
A district court judge would now earn $218,000 if the bill passes Congress, an increase of 31 percent on the current salary.
Judges would also receive a cost-of-living adjustment each year, which they haven't had in the past.
The original bill called for a $233,000 salary; judges currently earn just over $160,000, about the same as a first year associate at a big law firm.
Republicans on the committee also pushed for language that would deter judges from leaving the bench for high-paying jobs in the private sector.
Under a provision suggested by Rep. Lamar Smith, R-Texas, judges would lose a dollar of their pension for every two dollars they earn above their old salary, down to baseline of 33 percent of their judicial pay.
This proposal won the backing of Democrats, including Rep. Howard Berman, D-Calif. (pictured), a leading sponsor of the bill.
"The federal judiciary is not a stepping stone to a high paying career," he said. "It's supposed to be a capstone. So we have created a disincentive."
Not everyone supported the change, including Rep. F. James Sensenbrenner, R-Wis., who said the pension change could be unconstitutional.
"There will be a lawsuit," he predicted.
The Senate version of the legislation, which is on the judiciary committee's agenda for tomorrow's markup, would bump salaries up to almost $248,000.

Democrats Seize On Allegations That Bush Admin Is Playing Politics With Gitmo Prosecutions

2007-12-11T12:40:00.000-05:00

While the Supreme Court considers the rights of Guantanamo Bay detainees in Boumediene v. Bush, the Democrats today sought to keep the issue in the spotlight.
The forum was a Senate Judiciary Commmittee hearing chaired by Sen. Dianne Feinstein, D-Calif.
Feinstein wanted to know more about the current procedures being used at Guantanamo in the wake of critical comments made by Colonel Morris Davis, until recently the Department of Defense's chief prosecutor there.
Morris said, for example, that the administration was playing politics with the trial process in the hope it could achieve some high profile convictions in time for the 2008 elections.
The administration stopped Davis from testifying today.
"I have to conclude that by prohibiting Col. Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees," Feinstein said.
Speaking on behalf of the administration, Brigadier General Thomas W. Hartmann, the top legal adviser in the Office of Military Commissions (pictured above), denied that there had been any inappropriate political interference.
He added that detainees currently held at Guantanamo get more rights than any other prisoners-of-war in history.
"The rights provided under the Military Commissions Act are absolutely unprecedented," Hartmann said.