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Monthly Archives: May 2009

Obama begins interviewing Supremes hopefuls

President Barack Obama has begun the process of sitting down with the candidates he is considering for appointment to the U.S. Supreme Court.

Yesterday White House officials said 7th Circuit Judge Diane Wood has been interviewed by the president. Wood as in Washington for a conference at Georgetown University. Other participants in the Gerogetown event included Justice Stephen Breyer, retired Justice Sandra Day O’Connor, and retiring Justice David Souter, who holds the seat for which Wood is being considered.

When asked at the event if a trip to the White House was on the agenda, Wood said: “No, no, I’m not answering any questions on that.”

Meanwhile the guessing game over when the president will announce his choice continues. Iowa Sen. Chuck Grassley said Obama told him a decision would not come before next week.

Complaint alleges pro-business Nat’l Arbitration Forum bias

Some lawmakers, in debating bills that would ban mandatory pre-dispute binding arbitration clauses in credit card agreements and other contracts, have accused the National Arbitration Forum of being biased in favor of businesses and against consumers.

Because companies steer lots of business to the companies through the binding clauses, some lawmakers argue, the NAF returns the favor with decisions in the companies’ favor.

“They tend to be predisposed to serve the ones that pay them,” said Rep. Henry Johnson, D-Ga., sponsor of the Arbitration Fairness Act of 2009, at a hearing earlier this month. “That’s only human nature.”

Now, a new lawsuit is buffering that claim. Deanna Richert, a former NAF arbitrator, alleges in the age and gender bias suit that the forum does indeed favor business clients, referring to the companies internally as “famous parties.”

Richert claims that the NAF stopped giving cases to arbitrators who ruled against companies, threw lavish parties for arbitrators during which the arbitrators would be lobbied to rule in favor of businesses, and called and asked arbitrators to change rulings adverse to businesses before they were released. The Wall Street Journal‘s Law Blog has the complaint and the NAF’s answer.

The forum responded to Law Blog denying all claims. “The National Arbitration Forum categorically denies all of the claims made by Deanna Richert in her lawsuit, which is a classic case of a disgruntled terminated employee attempting to capitalize on recent negative PR and force a large settlement,” the statement reads.

In the complaint Richert seeks, among other things, a declaratory ruling of her right to sue, since her employment contract with NAF contained – you guessed it – a mandatory pre-dispute binding arbitration clause.

Conservative group launches SCOTUS offensive

Conservative groups have vowed not to sit quietly during the confirmation process of President Barack Obama’s Supreme Court nominee, whomever it may be. But one group isn’t even waiting for the official nomination to start a media campaign against the nominee.

The Judicial Confirmation Network has launched a series of internet ads taking aim at three potential nominees on Obama’s short list: Solicitor General Elena Kagan and Circuit Court Judges Sonia Sotomayor and Diane Wood. And the group pulls no punches, hitting on hot-button confirmation issues such as abortion rights, religious expression, racial bias and the military.

The video of Wood criticizes her rulings involving abortion protesters and a Christian student group seeking to hold a prayer meeting at a law school: “The First Amendment allows Nazis to march in Skokie, Ill., but apparently in Diane Wood’s court opponents of abortion and students who share religious faith get less protection for their expression.”

The video on Sotomayor cites her ruling in a racial discrimination case involving results of a New Haven civil service test for firefighters by saying: “Every American understands the sacrifices firefighters make. But in Sotomayor’s court, the content of your character is not as important as the color of your skin.”

Here is the Kagan video. All the videos can be seen on the group’s website.

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Court rules in pregnancy bias case, takes up SOX Act constitutional challenge

In one of the last opinions to be authored by Justice David Souter, the Supreme Court held today that an employer does not violate the federal Pregnancy Discrimination Act when, in calculating retirement benefits, it fails to award full credit for pregnancy leave taken before the effective date of the Act. The ruling came in the case AT&T Corp. v. Hulteen.

Also the Court ruled today in Ashcroft v. Iqbal that a complaint filed by a post-Sept. 11 detainee alleging Bush administration detention policies violated his First and Fifth Amendment rights did not plead sufficient facts to state a claim under the Rule 8 standard set in Bell Atlantic Corp. v. Twombly.

The Court also added four cases to next term’s docket, including Free Enterprise Fund v. PCAOBI, which will test the constitutionality of the Sarbanes-Oxley Act, and Black v. U.S., a review of the mail fraud conviction of former newspaper magnate Conrad Black. The Court will consider whether his conviction should be reversed because the jury was not instructed that they had to find that Black’s fraudulent scheme “reasonably contemplated identifiable economic harm” to the company.

Monday status conference: Decisions, decisions

Today the U.S. Supreme Court is set to release some of the many decisions that are still pending this term, as well as orders that could include cert grants for next term. And over about two miles west of the Court, President Barack Obama continues to work out his choice to replace outgoing Justice David Souter – and has already tapped a seasoned political operative to guide the ultimate nominee through the confirmation process. White House officials say they expect Obama’s decision to be announced the end of the month.

Meanwhile,

Supreme battle cry: While GOP members of the Senate know they don’t have the votes to derail Obama’s Supreme Court nominee, conservative groups are preparing a game plan aimed at raising ire – and money – by dissecting the eventual nominee’s record on the issues of abortion, same-sex marriage and judicial activism. (NYT)

High cost of doing time: The cost of imprisoning a federal defendant awaiting trial far exceeds the cost of supervision by federal probation and pretrial services officers, according to figures recently released by the Judicial Conference of the United States. (Lawyers USA)

Republicans Gitmo support: At least one Democrat – Virginia Sen. Jim Webb – is joining Republicans in questioning Obama’s plan to shut down the Guant√°namo Bay detention center. (NYT’s The Caucus)

Groups want former AGs disbarred: Today two groups will file complaints seeking the disbarment of Bush administration Justice Department lawyers linked to memos on harsh interrogation techniques – including former attorneys general Alberto Gonzales and John Ashcroft. (AP)

1 in 4 Dems want Supreme Court Justice Oprah Winfrey

According to a new poll, nearly one in four registered Democrats would like to see Oprah Winfrey appointed to the U.S. Supreme Court.

We are pretty sure that Winfrey is not on President Barack Obama’s nominee short list, considering the job requires a law degree, something Winfrey does not have. No word on whether those polled earlier this month in the Fox News survey were asked if Star Jones would be an appealing choice.

Winfrey was not the top vote getter in the poll, however. Sen. Hillary Rodham Clinton and former Vice President Al Gore fared better.

To be or not to be: That is Breyer’s question

Supreme court Justice Stephen Breyer’s animated style of questioning could easily be described, at times, as theatrical. So it’s not that surprising that he would spend a day off from the Court trying out his acting chops. And with Shakespeare, no less!

Today Justice Stephen Breyer will take to the stage at the University of Chicago Law School to play the part of the ghost of Hamlet’s father. The performance is part of the conference “Shakespeare and the Law” conference at the school.

Breyer will show off his acting skills in a number of scenes from the play tonight and tomorrow. This out in Chicago wanting to catch a glimpse of his ghostly performance are in luck: it’s free and open to the public. But get there early, because we hear the venue is small.

Another high-profile jurist will be participating in the conference as well. Confirmed Supreme Court short-lister Diane Wood, a judge on the 7th Circuit and senior lecturer at the University, will deliver a paper on Law, Disobedience, Justification and Mercy, which draw’s from the bard’s plays Measure for Measure and The Merchant of Venice to explore the writer’s Shakespeare’s treatment of laws that are not followed.

Friday morning docket: Rove in the hot seat

Today federal prosecutors will interview former White House advisor Karl Rove as part of an investigation into the firings of nine U.S. attorneys during the Bush administration. The criminal probe is aimed at determining if the firings were politically motivated.

The interview may shed light on the role Rove actually played in the firings, which occurred during former Attorney General Alberto Gonzales’ tenure, and was a factor leading to his resignation. Next month Rove is also scheduled to testify before lawmakers on Capitol Hill on the matter. More here from The Washington Post.

Meanwhile,

Big Supreme rulings ahead: Although lately the retirement and upcoming replacement of Justice David Souter has dominated Supreme Court chatter, there are still more than a few newsworthy cases that have yet to be decided. (Lawyers USA)

Eye on Obama tax: In a tough economy, owners of small businesses – including law firms and solo practices – are keeping a close eye on their bottom lines. And now they are paying extra attention to the potential impact a tax increase in President Barack Obama’s budget plan could have on their ability to grow their firms. (Lawyers USA)

Talking medical devices: At a hearing on a bill that would overturn a Supreme Court ruling that allows patients to sue the makers of certain medical devices, lawmakers heard testimony from patients, professors and medical professionals. And the House committee members took aim at each other. (Lawyers USA)

Nominee central: The obligatory roundup of on the latest chatter on who will replace Souter. (ABA Journal)

Defense is pricey: New financial disclosures show that former Alaska Sen. Ted Stevens spent at least $1 million on legal bills defending himself against charges that he failed to report gifts as required. (AP)

The Supreme Six

President Barack Obama may not have named names during his meeting with senators yesterday, but “officials familiar with” Obama’s Supreme Court nominee deliberations are. According to the Associated Press, there are six confirmed names on the list - and even more people under consideration, some of whom have flown under the public rumor radar.

Sources say those definitely on the list are: Solicitor General Elena Kagan; Michigan Gov. Jennifer Granholm; Homeland Security Secretary Janet Napolitano; 2nd Circuit Judge Sonia Sotomayor; 7th Circuit Judge Diane Wood; and California Supreme Court Justice Carlos Moreno.

The list is not necessarily complete, the sources say. Obama may add other names during his weekend deliberations on the matter. And while a nominee announcement could come as soon as next week, sources say a pick will almost surely come by the end of the month.

Obama to mull Court pick over the weekend

Tasked with picking his first Supreme Court nominee, President Barack Obama is making a list and checking it twice this weekend – leading some to believe that an announcement could come as early as next week.

During yesterday’s White House sit down between Obama and top ranking Senate members, Obama didn’t discuss any potential nominees by name. He did, however, stress to Senate Democratic leader Harry Reid, Republican leader Mitch McConnell, Judiciary Committee Chairman Patrick Leahy and ranking member Sen. Jeff Sessions the importance of a swift confirmation process, The Washington Post reports.

The ultimate goal, Reid said according to senate aides, is to get the nominee confirmed before the Senate adjourns for summer recess.

And although Obama didn’t divulge his short list to the lawmakers, White House spokesman Robert Gibbs said later that the president told them he “would choose a nominee who respects the Constitution and judicial precedent and also has the good judgment and common sense to reach fair decisions.”

Meanwhile departing Supreme Court Justice David Souter and the other justices of the Court are scheduled to conference this morning after a 10-day recess. We’ll bring you any newsworthy developments on this blog and on LawyersUSAOnline.com.

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