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McCain’s legal thoughts

As his presidential campaign enters the home stretch, John McCain is giving his thoughts on the rule of law, federal courts and the Department of Justice in an essay in The National Law Journal. (The legal publication invited remarks from all the major presidential and vice presidential candidates. McCain is the only to respond so far.)

In the piece, McCain said his three top priorities in this area would be taking the politics out of the DOJ, boosting enforcement programs – particularly those focused on terrorists and white collar criminals in the financial sector, and appointing conservative judges.

Much of what McCain says in the piece is stuff we’ve heard before: he wants to appoint judges who will “strictly interpret our Constitution” and who won’t “legislate from the bench,” he vows to focus on preventing terrorist attacks, and he charges that opponent Barack Obama will appoint criminal-coddling judges who create laws instead of interpreting them

But McCain also focused on an issue which has otherwise been a bit of a pink elephant during the campaign season: the troubles that have scourged the DOJ for more than a year.

First, in an apparent acknowledgment of the damage the “waterboarding” scandal has done to the department, McCain said:

“As we use aggressively all lawful means to combat threats, we must also ensure that our counterterror programs enjoy bipartisan support and widespread public acceptance. The terrorists win if we fight them using tactics that undermine our strategic goals. As long as I am president, I will ensure that the world never again sees America as a country that tortures. We must always act within the bounds of the law. I will help forge a bipartisan consensus as to where those boundaries are.”

McCain also touched on the controversy over politicized hirings and firings within the department, saying:

“Much responsibility for the effective administration of justice is entrusted to the dedicated men and women who toil day in and day out at the Department of Justice. My first objective would be to ensure that the department is, and remains, above the political fray. The department must function with integrity and effectiveness above all else.”

So far McCain has gotten at least one tepid review. While The Wall Street Journal‘s Law Blog gives McCain big props for bringing up the issue of a politicized DOJ, they don’t think he said nearly enough about it.

“Frankly, we’re a little disappointed,” said a Law Blog post by Dan Slater. The post goes on to say that McCain “writes that we, the voters, ‘deserve more than platitudes,’ but then goes on to propose a litany of vague policies for the legal system.”

McCain’s legal thoughts

As his presidential campaign enters the home stretch, John McCain is giving his thoughts on the rule of law, federal courts and the Department of Justice in an essay in The National Law Journal. (The legal publication invited remarks from all the major presidential and vice presidential candidates. McCain is the only to respond so far.)

In the piece, McCain said his three top priorities in this area would be taking the politics out of the DOJ, boosting enforcement programs – particularly those focused on terrorists and white collar criminals in the financial sector, and appointing conservative judges.

Much of what McCain says in the piece is stuff we’ve heard before: he wants to appoint judges who will “strictly interpret our Constitution” and who won’t “legislate from the bench,” he vows to focus on preventing terrorist attacks, and he charges that opponent Barack Obama will appoint criminal-coddling judges who create laws instead of interpreting them

But McCain also focused on an issue which has otherwise been a bit of a pink elephant during the campaign season: the troubles that have scourged the DOJ for more than a year.

First, in an apparent acknowledgment of the damage the “waterboarding” scandal has done to the department, McCain said:

“As we use aggressively all lawful means to combat threats, we must also ensure that our counterterror programs enjoy bipartisan support and widespread public acceptance. The terrorists win if we fight them using tactics that undermine our strategic goals. As long as I am president, I will ensure that the world never again sees America as a country that tortures. We must always act within the bounds of the law. I will help forge a bipartisan consensus as to where those boundaries are.”

McCain also touched on the controversy over politicized hirings and firings within the department, saying:

“Much responsibility for the effective administration of justice is entrusted to the dedicated men and women who toil day in and day out at the Department of Justice. My first objective would be to ensure that the department is, and remains, above the political fray. The department must function with integrity and effectiveness above all else.”

So far McCain has gotten at least one tepid review. While The Wall Street Journal‘s Law Blog gives McCain big props for bringing up the issue of a politicized DOJ, they don’t think he said nearly enough about it.

“Frankly, we’re a little disappointed,” said a Law Blog post by Dan Slater. The post goes on to say that McCain “writes that we, the voters, ‘deserve more than platitudes,’ but then goes on to propose a litany of vague policies for the legal system.”

Monday status conference: Elections, deliberations, retaliation and more

Can you believe that Election Day is only eight days away? (Or can you believe we have to live through eight more days of this election season?  It’s all in how you look at it!) The election is on the minds of everyone on the Hill this week. In addition to stumping for their preferred presidential candidate, lawmakers are trying to gain some seats for their respective parties under the dome. Meanwhile, the justices of the Supreme Court will consider more cert petitions on Friday.

In other news:

One’s out, one’s in: A juror was dismissed Sunday from the panel deliberating in the corruption trial of in Sen. Ted Stevens. An alternate juror was appointed by the judge and the jury will continue deliberating this morning. (Politico via CBS News)

When Justice Stevens talks, defense attorneys listen: If Supreme Court Justice John Paul Stevens was inviting legal challenges to the way the Georgia Supreme Court reviews death-penalty cases, he has got them. Lawyers defending capital cases are mounting new appeals, challenge the state Supreme Court’s proportionality review, which compares a death sentence with punishments in similar cases. (Atlanta Journal-Constitution)

The enforcers: The SEC brought the second-highest number of enforcement actions ever for a one year period in fiscal 2008. (National Law Journal)

Fear of retaliation: Jobs are down, and retaliation claims are up. But employer-side lawyers are pushing back. (NLJ)

Making a list, checking it twice: In the last days of the election, the candidates are already in cabinet-building mode. And Sen. Barack Obama has put many more nails to the wood in that area than his opponent, Sen. John McCain. Does Obama already know who we will appoint to key positions if he is elected? (New York Times).

Slow DNA pace: Criminal cases are still being stymied by a backlog in processing DNA analyses, according to reports filed with the National Institute of Justice. (NYT)

Raise your hand if you’re insured: Malpractice, premises liability, business interruption, disability and key employee insurance: When it comes to insurance, what policies should a solo or small-firm lawyer have? (Lawyers USA)

Cake bakes and sing-alongs at the Supreme Court

Imagine it:

Justice Ruth Bader Ginsburg walks into a room in the Supreme Court building, where the other justices are waiting to have lunch together. She brings in a birthday cake – baked from scratch by her husband, Georgetown Law professor Martin Ginsburg.

Chief Justice John G. Roberts, Jr. lifts a glass and gives a toast in honor of the birthday boy, Justice Stephen Breyer.

And who does the honor of singing Happy Birthday? None other than Justice Antonin Scalia, who is known not only for his strict constructionist legal philosophy and hit and humor on the bench, but also his tenor pipes.

That’s a peek at the personal side of being on the Supreme Court – brought to you courtesy of Justice Ginsburg.

Speaking at Princeton University about the more human side of the Court yesterday, Ginsburg reiterated that even justices who battle on the bench, come together when the cases are put away. For example, she and Justice Scalia – who often disagree on the bench – not only have dinner and go to the opera together. They also check up on each other.

During the time in 2000 when the Court was deliberating the Bush v Gore case, Ginsburg recalled:

“You can imagine how tense things were. … Everyone was exhausted.” One night at 9 p.m. she got a call from Scalia. “He said, ‘Ruth, what are you doing still at the court? Go home and take a bath.’ I treasure the relationship we have, though we disagree on many issues.”

Ginsburg also gave her thoughts on Roe v Wade. Although she is a staunch supporter of abortion rights, she said Roe may have gone too far by instantly broadening abortion law in all 50 states than allowing state law on the issue to develop more organically. That more has served to galvanize pro life advocates and hamstring state legislatures.

“It would have been easy for the Supreme Court to say that the extreme cases are unconstitutional” without such a broad ruling, Ginsburg said, as quoted in The Daily Princetonian. “I never questioned the judgment that it has to be a woman’s choice, but the court should not have done it all.”

Photo: Princeton University, Office of Communications, Brian Wilson

Friday morning docket: Of trials and trails

The Supreme Court is out and most Hill lawmakers are on campaign trail, one is on trial, and there is still of other news to stay on top of, too:

During tough times, stay collected: In the current economic crisis, it’s more important than ever for lawyers to stay on top of billings and collections. Experts give their ideas on how to handle the issue with cleints. Click here for the Lawyers USA story. Related story: Credit crunch squeezes trial lawyers.

DHS’s ‘No match’ point: A federal “no-match” employment rule handed down last year, but later blocked by a federal court, was re-issued by the Department of Homeland Security. The rule, intended to reduce the number of people working illegally in the U.S., requires employers to reconcile discrepancies between employee records and data from the Social Security Administration. More from Lawyers USA.

Jury drama in Stevens trial: If you thought closing arguments brought an end to the drama in the trial of Sen. Ted Stevens, you were wrong. First the jury sought to eject what they called a “rude, disrespectful” juror making “violent outbursts.” Then another juror may have to leave to see an ailing relative in another state. More from AP.

In the hot seat: Credit agency officials were grilled by lawmakers on Capitol Hill over why subprime mortgage-backed securities were rated so high if they were so risky. More from The New York Times.

Union bill back in spotlight: The upcoming election is causing renewed debate over legislation that would allow workers to unionize when a majority signs cards of support. The so-called “card check” bill has pitted unions and Democrats including Barack Obama against business groups and GOP lawmakers including John McCain. More from The Washington Post.

DC Dicta asks: Who should argue – the Supreme Court pro or the case veteran?

When the Supreme Court agrees to hear a dispute who should argue the case: the lawyer who has argued it before lower courts or a Supreme Court pro who is well-known by the high court’s justices?

That is the question behind a behind-the-scenes standoff in the case Carcieri v. Kempthorne, which is scheduled to be argued before the Court on Nov. 3.

Ted Olson, former U.S. solicitor general turned Supreme Court veteran, has filed his appearance with the court to argue on behalf of the petitioner in the Indian land case. But so has Joseph S. Larisa Jr., the attorney who has argued the case in the lower courts. (Lawyers USA‘s sister publication, Rhode Island Lawyers Weekly, named Larisa one of the 2006 “Lawyers of the Year,” so he’s apparently no slouch.)

The Supreme Court clerk told the two that they’d better work it out, and gave the attorneys an Oct. 30 deadline to do so.

Officials in Charlestown, R.I. – where the land dispute is based – are backing Larisa. The governor and the state attorney general, however, are behind Olson. Larisa has proposed several times that the standoff be settled by a coin toss. Olsen, the governor and attorney general didn’t think so. “They have not suggested any other option other than ‘Ted wins,’” Larisa told Legal Times. “Less than 13 days to go until oral argument and we cannot agree on a simple coin toss. It is the town’s position that the AG and governor are now affirmatively hurting preparation for oral argument.”

So who do you think should argue the case? Vote now!

[polldaddy poll=1033582]

Former judge still hot under collar about missing ‘$54 million’ pants

If you thought the case of the $54 million missing pants was done, you were wrong.

The former administrative judge who lost his lawsuit against a dry cleaner claiming $54 million in damages for a lost pair of pants despite the cleaners’ “satisfaction guaranteed” sign is, er, pressing on. He’s apparently still pretty steamed. (Sorry).

Yesterday, Roy L. Pearson argued before the D.C. Circuit Court of Appeals in an attempt to revive the suit. “This is not a case about a pair of suit pants,” Pearson argued. “There is an unconditional guarantee”

But the judges on the panel seemed less than eager to accept the argument that an unconditional guarantee, even if breached, should lead to unlimited damages.

“You’ve got to help us figure out what it means,” Judge Phyllis Thompson said. “You haven’t pointed me to a case which reaches a conclusion you would have us reach.”

In another twist, an attorney for the owner of the cleaners said the lost pants have apparently been found. “My clients have his pants, and they’re ready to be picked up by Mr. Pearson,” said attorney Christopher Manning. No word on whether that offer satisfies Pearson.

Former judge still hot under collar about missing ‘$54 million’ pants

If you thought the case of the $54 million missing pants was done, you were wrong.

The former administrative judge who lost his lawsuit against a dry cleaner claiming $54 million in damages for a lost pair of pants despite the cleaners’ “satisfaction guaranteed” sign is, er, pressing on. He’s apparently still pretty steamed. (Sorry).

Yesterday, Roy L. Pearson argued before the D.C. Circuit Court of Appeals in an attempt to revive the suit. “This is not a case about a pair of suit pants,” Pearson argued. “There is an unconditional guarantee”

But the judges on the panel seemed less than eager to accept the argument that an unconditional guarantee, even if breached, should lead to unlimited damages.

“You’ve got to help us figure out what it means,” Judge Phyllis Thompson said. “You haven’t pointed me to a case which reaches a conclusion you would have us reach.”

In another twist, an attorney for the owner of the cleaners said the lost pants have apparently been found. “My clients have his pants, and they’re ready to be picked up by Mr. Pearson,” said attorney Christopher Manning. No word on whether that offer satisfies Pearson.

Rehnquist’s notes on Roe, other cases to be made public

Notes from the late Chief Justice William Rehnquist – including his notes on the landmark case Roe v. Wade – will be made public soon, according to Legal Times blog the BLT.

In an arrangement between Rehnquist’s family and the Hoover Institution Archives at Stanford University, the papers from Rehnquist’s 33-year tenure on the Supreme Court will be donated to the institution, the blog reports.

 The documents will become public, but not during the lifetime of any member of the Court at the time the note were written. The first batch of documents will be from the year 1972, when Rehnquist was named to the Court, to 1975, when current Justice John Paul Stevens was seated at the bench. Upon Stevens’ death, documents from 1975 to 1981, when retired Justice Sandra Day O’Connor joined the Court, will be released, and so on.

Notes on Roe, handed down in 1973, will be included in the first publicly available documents.

Rehnquist’s family chose to donate the papers to Hoover, rather than to the Library of Congress, because of Rehnquist’s long ties with the institution. More here.

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