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Monthly Archives: July 2009

Breyer remembers confirmation stress

Even for the most uncontroversial candidate, Supreme Court confirmation hearings are not for the faint of heart – just ask Justice Stephen Breyer.

Breyer, whose nomination by President Clinton was not fiercely opposed, said the experience is still unnerving.

“There are 17 senators on one side of the table, and I’m on the other side. And people are watching me on television, and I’m not used to that,” Breyer said in an interview with TheAtlantic.com.

Breyer also spoke of retiring Justice David Souter, noting that during the 15 years they were bench mates, they were often confused for one another. “I don’t know [why] – maybe because we are both from New England.”

He also acknowledged that the Court splits 5-4 more often now than it used to – and more often than he wishes it did. “It was not so high if you go back three or four years,” he said of the number of 5-4 opinions, “and I would prefer it was not so high.”

See video of the whole TheAtlantic.com interview here.

The little SCOTUS decision that could…block civil claims

While most civil litigators were focused on Supreme Court rulings such as Wyeth v. Levine and Altria Group v. Good last term, another less-noticed ruling by the high court has become the bane of many plaintiffs’ attorneys.

More than 500 times in just the last two, trial courts have cited the case Ashcroft v. Iqbal, a Sept. 11-related opinion that quietly toughened civil pleading standards.

Earlier this month Supreme Court experts Tom Goldstein of Akin Gump and Stanford Law School Supreme Court Litigation Clinic’s Jeffrey Fisher told Lawyers USA that it was the most significant case of the term for trial attorneys. Now other experts, speaking to The New York Times, agree.

“It obviously licenses highly subjective judgments,” Stephen B. Burbank, a University of Pennsylvania Law School civil procedure authority told the Times. “This is a blank check for federal judges to get rid of cases they disfavor.”

Justice Ruth Bader Ginsburg, a dissenter in the case, recently told a group of judges: “In my view, the court’s majority messed up the federal rules” governing civil litigation.

Sotomayor vote to be delayed

This morning’s scheduled Senate Judiciary Committee vote on the nomination Judge Sonia Sotomayor to the Supreme Court will likely be delayed by GOP members seeking push the vote back to next week. But that doesn’t mean Republicans are going to try to block President Obama’s first pick for the nation’s highest court.

The committee is expected to vote in favor of the nominee next week, and Senate Republicans are continuing brush aside any notion of a possible filibuster of the candidate. Still, don’t expect a unanimous vote – Senate Republicans including Minority Leader Mitch McConnell – have announced their intention to vote against Sotomayor.

UPDATE: As expected, the committee recessed until next Tuesday, when members will take up the vote.

Monday Status Conference: Confirmation vote scheduling conflicts

The only topic on the minds of folks on Capitol Hill and in the White House besides health care seems to be Supreme Court nominee Sonia Sotomayor. And although she faces some opposition from Senate Republicans, the biggest question surrounding her confirmation seems to be when it will happen, not if it will happen. The Chairman of the Senate Judiciary Committee has set the vote on Supreme Court nominee Sonia Sotomayor for Tuesday, but Republicans want to wait until July 28.

Meanwhile, in other legal news from Washington:

GOP A-OK: Three Republican senators have already said they will vote for the nominee. (ABA Journal)

EEOC top pick: President Obama has made his selection to head the Equal Employment Opportunity Commission: Jacqueline Berrien. (Lawyers USA)

Clinton case dismissed: A federal judge on Thursday threw out a 13-year-old lawsuit against Hillary Rodham Clinton involving the White House’s handling of FBI background records. (AP)

Bad times for AG: Dealing with congressional clashes, angry judges and a cracked tooth, it hasn’t been a good month for Attorney General Eric Holder. (WaPo)

Sessions and Leahy ‘to do that crack cocaine thing’?

In the final hours of the Senate Judiciary Committee’s confirmation hearing for Supreme Court hopeful Sonia Sotomayor, the committee’s top Republican provided some much-needed comic relief.

Yesterday committee members questioned a panel of witnesses on the nominee, including Wade Henderson, the president and CEO of the Leadership Conference on Civil Rights. Sen. Jeff Sessions meant to say that he and Committee Chairman Patrick Leahy wanted to work with Henderson on reducing the powder/crack cocaine disparity in criminal sentencing.

What he actually said drew the biggest laugh of the hearing:

“Mr. Henderson, It’s good to work with you. Sen. Leahy and I were talking during these hearings, we’re going to do that crack cocaine thing that you and I have talked about before.”

As the crowd chuckled and another committee member pointed out the poor choice of words, Sessions said: “Let me correct the record.”

Friday morning docket: Supreme wrap

The confirmation hearing for Supreme Court nominee Sonia Sotomayor is in the history books. And even though some members of the Senate Judiciary Committee spent time during and after the hearing expressing frustration with Sotomayor’s answers – and refusals to answer some questions – she is expected to sail easily to confirmation. Republicans committee members have said they won’t block the vote on the nominee. The committee formally takes up her nomination starting Tuesday.

And though the hearing has been the primary focus of DC Dicta this week, there is other legal news:

Party of five? The three empty seats on the National Labor Relations Board may finally be filled now that the White House has sent three nominations to the Senate. (Lawyers USA)

Minimum justice: A member of the Judicial Conference testified earlier this week before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security and described mandatory minimum sentences as creating “untenable results. (Lawyers USA)

E-Verified: The Senate has voted to include an amendment to the Homeland Security budget that would make E-Verify permanent for employers with federal contractors. (Lawyers USA)

Hate crime vote: The Senate voted to expand protections for people attacked based on gender and sexual orientation under federal hate crimes law.  (AP)

Sotomayor hearing: Graham defends nominee to critics

Although Sen. Lindsey Graham had some of the toughest exchanges with Supreme Court nominee Sonia Sotomayor during her testimony, this afternoon he defended her to some of the witnesses who testified against her confirmation.

Linda Chavez, who chairs the Center for Equal Opportunity, had testified criticizing Sotomayor for a host of things including her comments that she used affirmative action to get into the prestigious schools she attended. Afterward, Graham asked Chavez: “Isn’t she a lot more than that?” pointing out that she graduated with honors from those schools, and has obtained the ABA’s highest ranking in addition to a number of other honors.

Graham praised the firefighters Frank Ricca and Ben Vargas, who testified earlier, for their work and achievements. But he also reminded them that although they said job decisions should be based only on merit tests, it was not long ago that tests and other means were used to keep minority members out of jobs and deny them promotions.

“Please don’t lose sight of the fact that not so long ago the test was rigged a different way,” Graham said to Ricci.

To Vargas, Graham said: “You are one generation removed from where your last name would have been it.”

The panel is still being questioned. Stay tuned for more coverage.

Sotomayor hearing: New Haven firefighters testify about Ricci ruling

Two New Haven firefighters testified this afternoon about the 2nd Circuit ruling that upheld the decision of city officials to throw out the results of a civil service exam after few minorities qualified for promotion.

Frank Ricci and Ben Vargas, plaintiffs in the case that ultimately went to the U.S. Supreme Court, which reversed the decision of the panel on which Sotomayor sat, gave deeply personal statements to lawmakers, saying they toiled hard to prepare for a test of skill, only to have their passing scores discarded based on race.

“Despite the important civil rights and constitutional claims we raised, [the panel] in an unsigned, unpublished summary order that consisted of a single paragraph that mentioned my dyslexia and thus led everybody to think that this case was abut me and a disability claim,” said Ricci, the named plaintiff. “The case had nothing to do with that. It had everything to do with ensuring our command officers were competent to answer the call and our right to advance in our profession based on the merit regardless of race.”

Vargas, who is Hispanic and one of only two minority members to pass the test, said he was shocked when the test results were not certified, and proud to join with other firefighters in filing the civil rights action. “I expected Lady Justice with the blindfolds on and a reasoned opinion from a federal court of appeals, telling me, my fellow plaintiffs and the public what that court’s view on the law was and do it in an open and transparent way,’ he said. “Instead, we were devastated to see a one-paragraph unpublished order summarily dismissing our case and indeed even the notion that we had presented important legal issues to that court of appeals.”

Sen. Jeff Sessions asked Vargas if more of the firefighters had studied as long as he did – Vargas said he even checked in to a hotel room for days away from his family to prepare – they would also have passed. Vargas answered: “Absolutely.”

A witness panel, which includes the firefighters, Mayor Michael Bloomberg, District Attorney Morgenthau and others, is being questioned by lawmakers now. More to come on this blog.

Sotomayor confirmation hearing liveblog – Day 4, Part 3

1:30pm – Supreme Court nominee Sonia Sotomayor’s testimony before the Senate Judiciary Committee has concluded. But wait, there’s more! The committee is scheduled to hear testimony from more than 30 witnesses, including New York Mayor Michael Bloomberg, New York District Attorney Robert Morganthau, and former MLB pitcher David Cone, Frank Ricci, plaintiff in the now infamous New Haven firefighters’ case, Peter Kirsanow, former NLRB board member and current member of the U.S. Commission on Civil Rights, and former NRA president Sandy Froman.

The liveblog will continue when the action does. Hit ‘refresh’ for the latest.

1:40pm – The first witnesses to testify will be the ABA’s Standing Committee Chair Kim Askew and the group’s primary reviewer Mary Boies. Sen. Whitehouse will chair the meeting when it resumes. Judge Sotomayor has left the hearing room.

1:41pm – The liveblog will continue, but it’ll undoubtedly slow down a bit for the witnesses. We’ll chime in with noteworthy stuff.  The committee has just gaveled back in.

1:44pm – Askew is explaining how the group came to give Sotomayor its highest ranking.

2:16pm – The next panel of witnesses is up. The full witness list can be found here. Two of the biggest names on the list – New York Mayor Michael Bloomberg and New York District Attorney Robert Morgenthau – are en route to the hearing, and are reportedly about 5 minutes away, according to Sen. Whitehouse. They will testify in support of Sotomayor. We’ll bring you the highlights when they do.

2:28pm – Sen. Schumer is introducing Mayor Bloomberg and DA Morgenthau now. Bloomberg is up first.

2:31pm - We’re going to wrap up the hearing liveblog, but will continue covering the hearing in blog posts throughout the rest of the hearing. Stay tuned to DC Dicta for the latest!

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Sotomayor confirmation hearing liveblog – Day 4, Part 2

11:23am – After the mid-morning break, the liveblog will continue below. Click ‘refresh’ for the latest.

11:38am – Sen. Tom Coburn is up. Sotomayor is again saying that she will not use foreign law as precedent.

11:39am – Coburn asks if she would ask senators to do a better job in expressing congressional intent. “Feel free to offend us.” She said that where congressional intent is more clearly stated, judges benefit.

11:44am – Coburn is pushing Sotomayor to discuss what criteria the Court would use to determine whether something – like gun ownership – is a fundamental right. She said she can’t. “If I can’t get you to go there, I’m gonna quit,” Coburn said. But he doesn’t. He says the issue is crucial to “my Oklahoma constituents.”

11:47am - Sotomayor: “I can assure your constituents that I have a completely open mind on this question.”

11:49am – Sotomayor, perhaps getting tired of repeating over and over again that she has an open mind on unsettled legal issues:”Senator, would you want a judge that came in here and said: ‘I agree with you, this unconstitutional’” without examining the record and facts of a particular case? “I don’t know that is the kind of judge I can be.”

11:51am – Coburn asks again about abortion. Notes that more than 80 percent of the world bans abortion after 12 weeks, but in the U.S. it is permitted “under the ‘health of the woman’ standard.”

11:55am – Sotomayor answers Coburn’s question as to whether the state of the law has ended the country’s debate over abortion after a long pause: “No.”

11:58am – Coburn closes by saying that he is still troubled by Sotomayor’s statements outside the Court, but thanks her for being “cordial” during the hearings.

12:00pm – Chairman Leahy says he doesn’t think Sotomayor’s confirmation would put the right to own guns in jeopardy; invites her to go target shooting in Vermont. Sen. Sessions interjects, saying the right would be in jeopardy. Leahy points out that Vermont does not have the restrictive gun laws that exist in Sessions’ home state of Alabama. Laughter. We don’t think Sessions is amused.

12:03pm – Sen. Franken is back up. Asks Sotomayor why she wants the SCOTUS job. “Given who I am, my love of the law, my sense if importance about the rule of law…have always created a passion in me…. I can’t think of any service that would be greater to the country.”

12:06pm – Sen. Franken: “I thought I was going to be the only thing between you and the door.” But he was wrong – the senators are beginning a third round of questions. 10 minutes each. We’re gonna be here all day, folks!  Sen Sessions is back up.

12:08pm – Sessions asks if she’ll be able to survive on the SCOTUS salary. Does he realize it will be a bump up from the salary of a Circuit judge? And that living in New York isn’t cheaper than living in DC? Diplomatically, she answers that she has lived on a judge’s salary for 17 years. Back to the race issue.

12:10pm – Sessions said he is happy the race issue was discussed, but doesn’t ask another question about it. He said he won’t support a filibuster of the nominee, and that every senator should think carefully and vote on the nominee. He returns to Ricci. Still not happy with how the 2nd Circuit panel handled it.

12:16pm – Sotomayor: “I did not show a lack of courage” In that ruling. Sessions disagrees and wraps up his question session.

12:19pm – Sen. Orrin Hatch asks again about the Puerto Rican Legal Defense and Education Fund. Sotomayor notes that she was not a lawyer for the group, she was a board member, and so she never reviewed the briefs or other legal filings of the group.

12:23pm – Hatch asks a constituent’s question: if Sotomayor thinks the role of the Supreme Court is to resolve societal inequities. She said it is not the role, even though rulings could have that effect. On to Heller. Sotomayor said she believes the justices exhibited fidelity to the law.

12:27pm – Sen. Chuck Grassley is up. Asks if she’s read Baker yet. On whether it constitutes the law of the land, Sotomayor said that issue is still unresolved and can go before her as a judge. “So at bottom, because the question is pending before a number of courts the ABA would not allow me to comment on the merits of that.”

12:33pm – Grassley asks if she thinks, as Souter said, the Supreme Court fills vacuums in the law. She said she wouldn’t use Souter’s words. Analogies can be dangerous, she said. Judges apply law, she said.

12:35pm – Sen. Kyl is up. Asking about standard of review.

12:42pm – Sotomayor has shown an adept ability to spot an abstract question. And she’s still not going to answer them.

12:46pm -  Sen. Graham was wrong last time – he does get to talk to Sotomayor again.  He notes that he agrees with Sen. Feingold on the issue of whether gun ownership is a fundamental right, and that doesn’t happen very often.

12:50pm – Graham asks about military detentions. He points out that the law has never required release based solely on the passage of time and “it would be crazy” to let go detainees who would go on to “try to kill us all.” Not really asking Sotomayor questions. Said that the process must be fair and transparent, but doesn’t require release of “an enemy who doesn’t wear a uniform.” Urges Sotomayor not to apply habeas to military detention cases.

12:56pm – Sen Cornyn is back up. More Heller questions. Asks the same question Hatch asked about fidelity to the law. Gets the same answer.

1:12pm – Sorry for the delay folks, it was due to a power-related technical difficulty. But we’re back up now. Sen. Coburn is up, but it looks like he’s almost done.

1:14pm – Leahy asks Sotomayor how she would approach a petition for staying an execution in advance of a certiorari petition. She said the certiorari petition would be a factor she would consider.

1:19pm – Sotomayor said she has received a fair hearing. Sessions asks for the admission of a number of articles and letters into the record. Leahy said the committee will hold the record open until 5pm tomorrow for additional records and statements.

1:22pm – Leahy thanks the nominee and members of their families’ for their “grace and patience.”

1:24pm – Leahy calls 10-minute recess. We’ll be back in a new post when the hearing continues.

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