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Monthly Archives: March 2008

Mukasey’s high court argument

Justice Antonin Scalia is not one to go easy on the lawyers arguing before the Supreme Court – even when said lawyer heads the Justice Department.

When Attorney General Michael Mukasey stood at the podium today urging the Court to hold that, under a statute boosting the penalty for a felony when the perpetrator carries explosives, the explosive need not involve the underlying felony, Scalia did not disguise his skepticism.

“General,” Scalia said, addressing a sitting attorney general arguing in the Court for the first time in 12 years, “could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?”

Mukasey paused, and then answered: “A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you’ve added something enormously volatile.”

“Surely it depends on what the felony is,” Scalia said. “If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That’s what troubles me about this.”

Scalia pointed out that carrying explosives in itself could be a wholly legal activity, but add a felony like tax evasion, and it could earn a defendant an extra decade in prison.

“I guess [‘explosives'] would include having some cartridges, explosive cartridges?” Scalia asked

“It would,” Mukasey replied.

“That’s perfectly lawful, and you get another 10 years for it just because you’re mailing a letter to the IRS at the same time?” Scalia pressed.

“It is perfectly lawful,” Mukasey repeated, adding later: “We concede that it was a very broad statute. But that was Congress’s choice. And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.”

Mukasey told reporters earlier in the week that he jumped at the chance to argue before the Court, something no sitting attorney general has done since Janet Reno in 1996.

But the novelty perhaps wore off quickly today for Mukasey who, midway through his alloted time, asked the justices if they had more questions and then took a seat, using only 16 minutes of his half-hour allotment.

The case was U.S. v. Ressam, involving the so-called “millenium bomber.”

Texas over Bush, 6-3; Red Sox over A’s, 6-5

In a battle between President George W. Bush and his home state of Texas, waged before the Supreme Court, President Bush lost today.

In a 6-3 decision authored by Bush-appointed Chief Justice John G. Roberts, Jr., the Court ruled in Medellin v. Texas that the President did not have to power to unilaterally order a Texas court to comply with a ruling by the World Court. Bush had made the request in an effort to get a sentencing rehearing for a death row inmate, but Chief Justice Roberts said that the Executive Branch is not vested with the power to do so.

“The executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current presidential memorandum,” Roberts wrote in the opinion. The opinion is here, and more on the case can be found here on CNN.

The Court also ruled that parties cannot negotiate broader judicial review of arbitration agreements than provided under the Federal Arbitration Act in Hall Street Associates v. Mattel. That opinion is here.

In completely unrelated news, the Red Sox won the MLB season opener in Japan - a home crowd for pitcher Daisuke “Dice-K” Matsuzaka. (The start of baseball season is not legal news, but it makes DC Dicta immensely happy).

Texas over Bush, 6-3; Red Sox over A’s, 6-5

In a battle between President George W. Bush and his home state of Texas, waged before the Supreme Court, President Bush lost today.

In a 6-3 decision authored by Bush-appointed Chief Justice John G. Roberts, Jr., the Court ruled in Medellin v. Texas that the President did not have to power to unilaterally order a Texas court to comply with a ruling by the World Court. Bush had made the request in an effort to get a sentencing rehearing for a death row inmate, but Chief Justice Roberts said that the Executive Branch is not vested with the power to do so.

“The executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current presidential memorandum,” Roberts wrote in the opinion. The opinion is here, and more on the case can be found here on CNN.

The Court also ruled that parties cannot negotiate broader judicial review of arbitration agreements than provided under the Federal Arbitration Act in Hall Street Associates v. Mattel. That opinion is here.

In completely unrelated news, the Red Sox won the MLB season opener in Japan - a home crowd for pitcher Daisuke “Dice-K” Matsuzaka. (The start of baseball season is not legal news, but it makes DC Dicta immensely happy).

Stanford doubleheader

Today the Supreme Court heard arguments from two Stanford Law professors from the school’s Supreme Court Litigation Clinic.

In addition to Jeffrey Fisher’s appearance today in Burgess v. U.S., Pamela S. Karlan, founder of the clinic, argued in the case Riley v. Kennedy. (Transcripts of the arguments can be found here on the Court’s website).

That brings the total arguments by the clinic’s faculty this semester to six, a record for the school, and more than most other school clinics or private firm Supreme Court practices.

And there are more arguments on tap, including a much-anticipated argument over whether the implementing the death penalty in cases of child rape constitutes cruel and unusual punishment in Kennedy v. Lousiana.

“Most of the six cases we are arguing this semester, including Kennedy v. Louisiana, are ones where local lawyers came out and asked the clinic for help,” Fisher said.

Court says yes to gun case, no to anti-Clinton group

The Supreme Court granted two certs this morning, but made more news about a case it declined to take up: a petition by a conservative group that sought to air an anti-Hillary Clinton movie without the restrictions of campaign finance laws.

By declining to take up Citizens United v. FEC, the Court allowed to stand a Court of Appeals ruling that the group, Citizens United, must attach disclaimers and disclose donors before running the 90-minute “Hillary: The Movie.”

The Court also denied to hear an appeal brought by AARP challenging a federal policy that allows employers to reduce health care benefits for employees when they reach the age of Medicare eligibility in AARP v. EEOC.

The Court did agree to take up the case of U.S. v. Hayes, which considers whether a man with a prior battery conviction arising out of a domestic incident can be charged under a federal law banning possession of firearms following conviction of a domestic violence offense.

It also granted certiorari in Pearson v. Callahan, considering whether police may enter a home without a search warrant when an informant already is inside and sees evidence of a crime.

Silence speaks volumes

When it comes to arguing before the Supreme Court, the Justice Department seems to abide by the adage “quit while you’re ahead.”

Today Nicole Saharsky, assistant to the solicitor general who argued the government’s case in Burgess v. U.S. did just that when she used only about six minutes of her allotted half hour for oral argument.

That six minutes included a few silent pauses Saharsky took to allow the justices to jump in with questions. But the Court had few questions for Saharsky, who argued that the government properly applied a statute boosting the minimum sentence in federal drug cases where a defendant was previously convicted of a “felony drug offense.” The defendant in this case appealed the law’s application because his previous conviction was characterized by the state as a misdemeanor, even though it carried a sentence of up to two years’ imprisonment. The federal sentence-boosting statute defined a “felony drug offense” as an offense which carries a sentence of more than one year.

Although the brief for the defendant – who filed a pro se petition for certiorari – was co-authored by heavyweights like Harvard’s Lawrence Tribe, Supreme Court guru and SCOTUSBlog author Thomas C. Goldstein and leading Supreme Court litigator and Stanford Law professor Jeffrey L. Fisher, who argued today on Burgess’ behalf, the government seemed to be on the winning side of the argument, from the Court’s questioning.

Most vocal during the argument of Fisher – who used his full allotted time plus four minutes of rebuttal – were Chief Justice John G. Roberts and Justice Antonin Scalia, who often prefaced his questions with a disbelieving head shake and used words like “extraordinary” and “My goodness!”

More on arguments in the case tomorrow on the Lawyers USA website (which is newly revamped: check it out!)

Monday status conference: Post-Easter edition

Good morning. As you try to figure out some recipes for all those leftover hardboiled eggs (potato salad, anyone?) here’s a look of what’s going on:

Congress is still on a break designed to allow lawmakers to work in their home districts, although Sen. Arlen Specter thinks it’s time for them to come back to Washington. The Supreme Court hears more oral arguments this week (see this post for more). And it’s still Easter at the White House! The annual White House Easter Egg Roll is today!

Meanwhile,

Here’s a peek at what’s in this week’s issue of Lawyers USA (subscribers can click the links for the full stories):

With a full-fledged recession looming, lawyers should start thinking about how they can shield their practices from a sustained economic downturn. Although experts disagree on whether we are technically in a recession, there’s no doubt that lawyers are beginning to feel the economic pressures their clients have felt for months. More here.

Celebrity cases such as Heath Ledger’s recent death from mixing prescription drugs and Dennis Quaid’s newborn twins receiving an adult dose of a blood thinner only scratch the surface of a growing number of lawsuits over medication errors. More here.

The recent jump in the number of federal discrimination charges filed with the Equal Employment Opportunity Commission in the last fiscal year – the largest annual increase since the early 1990s – has employment lawyers urging companies to take a careful look at their workplaces. More here.

A recent case over the herbal supplement Airborne is just one example of the many false advertising class actions being filed across the country. More here.

Elsewhere in the news:

Lawmakers want the Justice Department to investigate the unauthorized searches of the passport files of Sens. Barack Obama, Hillary Clinton and John McCain. (NYT).

Sen. Obama has been working hard to woo elite Washington lawyers. (LT)

Friday morning docket: March Madness edition

Good morning. As you check your brackets (who picked Belmont?), here’s a look around Washington:

Congressional lawmakers are still in their home districts (with a few in more exotic locations, like India, in the case of House Speaker Nancy Pelosi). The Supreme Court is in the middle of March oral arguments.

Monday brings the first afternoon oral argument session of the term, with the Court hearing three cases:

In Burgess v. United States, the Court will consider when a federal law hiking the minimum mandatory sentence for a drug distribution charge is triggered.

In United States v. Clintwood Elkhorn Mining, the Court will hear arguments on whether taxpayer refund claims under the Tucker Act, which has a six-year statute of limitations, are preempted by the United States Tax Code, which has a three-year statute of limitations.

In the afternoon Monday, the Court considers whether the Voting Rights Act of 1965 requires Alabama to pre-clear two state court decisions invalidating state and local laws creating a special election for local officials in Riley v. Kennedy.

Tuesday, Attorney General Michael Mukasey will argue the government’s case to the justices in United States v. Ressam.

The Court will also hear whether U.S. courts have jurisdiction to hear habeas corpus petitions brought on behalf of U.S. citizens detained overseas by American military authorities in Munaf v. Geren.

Wednesday, the Court hears arguments in Indiana v. Edwards, asking whether a criminal defendant need only be “literate, competent, and understanding” to invoke his Sixth Amendment right to self-representation.

And in Florida Department of Revenue v. Piccadilly Cafeterias, the Court will hear whether the Bankruptcy Code prohibits states from imposing taxes on pre-confirmation asset sales that are essential to the completion of a reorganization plan.

(Summaries from the folks at the Oyez Project)

Meanwhile,

Scooter Libby got disbarred. (WaPo).

The chairman of the House Financial Services Committee said Wednesday he will push for stricter federal regulation of investment banks (AP).

The White House says the reason President Bush’s popularity rating is so low is because he’s doing a good job. (AP)

The Bush Administration has announced that up to 10 states will be able to use alternative standards under the federal No Child Left Behind law. The administration said the move is meant to help struggling students, but critics of the law said it is evidence that it is simply not working. (AP)

High court asked to decide sperm donor parental rights

Does a sperm donor have parental rights to the children ultimately conceived with his donation?

That is what a Kansas man wants to U.S. Supreme Court to decide.

He petitioned the Court to review a ruling by Kansas’ highest court that a law denying parental rights to sperm donors absent a written agreement with the child’s mother is constitutional.

“This is a very significant case, not only for the world of fathers’ rights, but also for the rights and fair treatment of children,” Jeffrey Leving, a Chicago attorney and national parents’ rights advocate representing donor Daryl Hendrix, told the Associated Press. “Many fathers are criticized for not being there. Here we have a father who wants to help, but he was cut off at the knees.”

Hendrix was not an anonymous donor – he was friends with the mother of the child or a number of years before agreeing to be a donor. The mother maintains that she intended to be a single mother. Most anonymous donors at sperm banks sign a waiver of parental rights, so the case would have no bearing on those situations, should the Court agree to take it up.

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