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Friday morning docket: ‘Epic battle’ awaits SCOTUS nominee

The next Supreme Court nominee will face an “epic battle” to get to the high court, no matter who the nominee is.

That is what the White House is expecting, according to U.S. News & World Report. White House officials have been talking with members of the Senate and also having small informal meetings with progressive groups to discuss candidates, reports CNN.

The three candidates still reportedly at the top of President Obama’s list are Solicitor General Elena Kagan, 7th Circuit Judge Diane Wood and D.C. Circuit Judge Merrick Garland. Kagan is reportedly the frontrunner.

Her potential nomination has already drawn criticism from some conservatives, who have taken aim at an email she sent as Dean of Harvard Law School blasting the military’s policy prohibiting open gay people from serving. In the email, Kagan criticized the university’s decision to allow military recruiters on campus despite the rule, which she said violated the university’s anti-discrimination policy.

But her nomination may draw criticism from progressives as well, based on part on her defense of the administration anti-terror policies as solicitor general.

“There’s a real concern about Solicitor General Kagan with respect to national security issues,” Vincent Warren, executive director of the Center for Constitutional Rights, told CNN. “I certainly can’t see anything that would lead me to believe that she would have a less expansive version of what executive power is than, certainly, the current form, and certainly with respect to how George Bush viewed it. So I think there’s a real concern for human rights groups, if Elena Kagan is on the court, how that Supreme Court would know expansive and illegal executive power when they see it, and what they would be able to do about it.”

Meanwhile, President Obama and Vice President Biden interviewed 9th Circuit Judge Sidney Thomas of Montana for the job, the Associated Press reports. The hour-long meeting at the White House yesterday is the first known formal interview of a Supreme Court candidate.

In other headlines:

Black pick unlikely: Lawmakers briefed on the nomination process said it is unlikely that Obama will advance a black nominee to the high court (The Hill)

‘We like judges!’:More than two-thirds of those surveyed in a new Washington Post-ABC News poll said judicial experience is a positive quality for a Supreme Court nominee. But only 35 percent view experience outside the legal world as a positive. (Washington Post)

Business bankruptcies soar: The number of bankruptcies involving primarily business debts soared last year, according to figures released by the federal judiciary. (Lawyers USA)

New FDA device review policy: In an effort to streamline the premarket expert panel review process for medical devices, the Food and Drug Administration has announced changes in the way data and information is discussed during public hearings on devices under review. (Lawyers USA)

And the Funniest Justice is…

The Supreme Court oral argument season for October Term 2009 has ended. That means it’s time to name this term’s Funniest Justice – the jurist who earned the most laughs this term.

And, as those of you who have been following the tally all year know, there is no need for a drum roll. This one was a blowout:

Earning 77 laughs during the oral argument season – nearly half the total number of laughs earned by the justices – Justice Antonin Scalia is the winner and three-peat champion. (It may be more than a three-peat, but DC Dicta has only been around for three years to count).

Scalia demonstrated why he dominated this contest during yesterday’s oral arguments in Doe v. Reed, a case considering whether the release of petition signers’ identities is constitutional.

“What about just wanting to know their names so you can criticize them?” Scalia asked petitioners’ attorney James Bopp, earning the first of his four laughs that day. “Is that such a bad thing for democracy?”

“Well, what is bad is not the criticism, it’s the government requiring you to disclose your identity and belief,” Bopp replied.

“But part of the reason is so you can be out there and be responsible for the positions you have taken (so) people can criticize you for the position you have taken,” Scalia said.

“Then why don’t they require both sides if that was the purpose?” Bopp asked.

“What do you mean, ‘both sides’? The other side hasn’t signed anything,” Scalia said, drawing more laughter. “When they sign something, they will be out there for public criticism as well.”

“Okay,” Bopp said. “But this is a one-way street.”

“Oh, this is (so) touchy-feely,” Scalia said to more laughs. “Oh, so sensitive.”

Note that Justice Clarence Thomas has reached a milestone as well – he has completed his fourth full Supreme Court term without offering a single question or comment during oral arguments.

Here is the final tally:

Justice Antonin Scalia: 77

Justice Stephen Breyer: 44

Chief Justice John G. Roberts, Jr.: 26

Justice Anthony Kennedy: 8

Justice Samuel Alito: 6

Justice John Paul Stevens: 3

Justice Ruth Bader Ginsburg: 1

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (Thomas has maintained oral argument silence since Feb. 22, 2006)

Supreme Court: Mojave cross can stay

In a divided plurality ruling issued this morning, the U.S. Supreme Court has allowed a cross erected on the Mojave National Preserve as a memorial to war veterans to stay put.

The cross has been the subject of much controversy and litigation. After Establishment Clause challenges to the cross’s placement on federal land resulted in an injunction, Congress passed a land-swap statute that would convey the cross and the land upon which it sits to the VFW in exchange for the government obtaining land elsewhere. A federal court blocked implementation of that law, ruling that it was simply an attempt by the government to skirt the injunction.

Today the Supreme Court reversed the lower court.

“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context,” Kennedy wrote in the plurality decision joined by Chief Justice John G. Roberts, Jr. and Justice Samuel Alito. “But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

Justice Antonin Scalia filed a concurrence joined by Justice Clarence Thomas.

Justice John Paul Stevens, in his dissent, wrote: “I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.”

The complex ruling, which focused on the case at hand and avoided a broader ruling on the First Amendment implications of crosses on public land, touched on a host of legal issues from standing to the appropriateness of in injunctive relief.  The full text of the opinion in Salazar v. Buono can be foun here.

Breyer recuses self in Monsanto; Critics ask: why didn’t Thomas?

During oral arguments at the Supreme Court yesterday in the case Monsanto Co. v. Geertson Seed Farm, involving a court-imposed ban on the sale of genetically-altered alfalfa plants, Justice Stephen Breyer was not present.

That’s because the justice recused himself from hearing the case. His brother, U.S. District Court Judge Charles R. Breyer, was the trial judge in the case, so there was a conflict.

Breyer wasn’t the only justice with ties to the case. Justice Clarence Thomas once served as corporate counsel for the petitioner company Monsanto Co. And that has some environmentalists wondering why he too did not excuse himself from the case’s consideration.

This isn’t the first time Thomas’s stint at Monsanto has raised questions from critics. In the film “Food, Inc.,” which is critical of the genetically-modified food industry, Thomas’s connection to Monsanto is highlighted – particularly a 2001 Court opinion authored by Thomas that allowed companies like Monsanto to patent hybrid seeds.

After the film’s release, Monsanto issued a statement about Thomas’ connection to the company.

“Clarence Thomas worked for Monsanto for a few years but has not been employed by Monsanto since the 1970s, long before the company was involved in biotechnology or owned a seed business,” the statement read. “While Justice Thomas indeed wrote the majority opinion, this was a 6-2 decision. Justice Thomas was joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, Souter and Ginsberg – none of whom have or had any association with Monsanto.”

Court rules Vioxx suit timely; reverses arbitration ruling

Today the U.S. Supreme Court ruled that a claim by investors that Merck & Co. misrepresented the risks of heart attacks posed by the drug Vioxx did not violate the two-year statute of limitations because it was filed within two years of the plaintiffs’ discovery of the violation, and Merck did not show that a reasonably diligent plaintiff would have discovered it sooner.

That unanimous ruling in Merck & Co. v. Reynolds was one of two decisions handed down by the Court today.

In Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., the Court reversed a 2nd Circuit ruling allowing class arbitration, despite silence on the issue in the arbitration agreement, in an antitrust action. The Court held 5-3 (Justice Sonia Sotomayor recused) that imposing class arbitration on parties who have not agreed to it is inconsistent with the Federal Arbitration Act.

More on these cases to come on this blog and on Lawyers USA Online.

Profs offer cure for fame-drunk Supreme Court justices

Are the justices of the Supreme Court drunk on fame? Have they become “celebrities in robes?” Do they need a cure for their “unnecessary and unhealthy flamboyance?”

That is what two George Mason University School of Law professors believe. And they have a cure, they say.

In a paper set to be published in the George Washington Law Review, Profs. Craig S. Lerner and Nelson Lund lament the fact that the justices write self-indulgent opinions and dissents while on the job, then hobnob with celebrities like J.Lo and mambo in public (you listening, Justice Sotomayor?) or serve as Grand Marshall of Manhattan’s Columbus Day Parade and then light a cigarette for Sarah Jessica Parker (hear that, Justice Scalia?).

To put a stop to all this attention seeking, the professors propose, among other things, that the Court issue unsigned opinions.

“Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work,” the professors write. That would mean no more crime novel-themed opinions. (Sorry Mr. Chief Justice!)

Other suggestions the professors have for keeping a check on the bigness of the justices’ britches include barring law clerks from drafting opinions and requiring justices to ride the circuits on the lower courts.

HT: ABA Journal

Monday Status Conference: Closing arguments

This week the U.S. Supreme Court hears the last oral arguments of October Term 2009. The justices will hear cases concerning employment arbitration contracts, ERISA attorney fees, genetically engineered crops and the privacy of names on ballot petitions.

Meanwhile as the White House and members of Congress focus on financial industry reform, a new law in Arizona is refueling the debate over immigration – an issue that may soon get pushed top of the Obama administration‘s agenda.


Risky business? The risk of abuses in arbitration of consumer debt collection that led to the downfall of the National Arbitration Forum and an agreement by four major banks to cease enforcement of mandatory arbitration provisions in debt collection has not gone away, according to a report issued by the National Consumer Law Center. (Lawyers USA)

Counsel contempt: Former Bush special counsel Scott Block has been charged with contempt for withholding information from Congress. (Reuters)

Sensitive Supreme: The White House is looking for a Supreme Court nominee who is sensitive to “ordinary Americans.” (Washington Post)

SCOTUS point man: You want to learn more about the man at the White House in charge of the search for the next justice? (AP)

Friday morning docket: Shortlist buzz

Time for an end-of-the-week look at the latest buzz about the next Supreme Court justice.

The short of it: According to reports, Solicitor General Elena Kagan is still at the top of the White House’s shortlist to replace retiring Justice John Paul Stevens, although that list has grown in 10 people.

This week CBS News’s Jan Crawford named the people on that shortlist – although, she notes, “chances are slim that an elected official – someone who’s been through the rough-and-tumble world of politics – will get the nod.”

Meanwhile, there is a small but vocal contingent lining up against one member of that list – U.S. Court of Appeals Judge Merrick Garland, reports the Washington Post. Yet unlike other nominees, it’s not conservatives who are complaining about Garland, but rather activists on the left.

Meanwhile, liberal supporters of 7th Circuit Judge Diane Wood are pushing back against conservatives who have voiced opposition to her being named to the High Court, reports the Atlantic.

And Yesterday President Obama wrapped up discussions about the confirmation process with all 12 Democrats and all 7 Republicans on the Senate Judiciary Committee, the New York Times reports. White House officials said the president will meet with more members of the Senate in the coming days.

In other news:

Praying to a higher court: The Obama administration plans to appeal a ruling declaring the National Day of Prayer constitutional. (AP)

Eight is enough? Do we even need nine justices? We’ve gotten by with fewer in the past. (Christian Science Monitor)

‘Reality’ High Court? What would a “reality” Supreme Court justice look like? The Boston Herald’s Lauren Beckham Falcone imagines: “‘Crush videos? Even I’m not that mean,’ sniffs ‘American Idol’s’ Simon Cowell as he downs another flute of champagne.” (Boston Herald)

The Funniest Justice, week 13: Take Breyer’s wife…

During Wednesday’s oral arguments in the Supreme Court case Krupski v. Costa Crociere – a civil procedure case asking whether a plaintiff who named the wrong defendant, but should have known the right defendant, can amend the complaint to correct the “mistake” – Justice Stephen Breyer put a hypo to the defendant’s attorney, Robert Glazier.

“Have you ever driven a car where your wife has said turn left and you have turned right?” Justice Stephen Breyer asked, causing audience members to laugh. “Has that ever happened to you?”

“Yes,” said Glazier.

“Was there anything you didn’t know?” Breyer asked.

“There is nothing that you did not know,” Glazier responded.

“Correct,” Breyer continued. “Did you do it by mistake? Yes, of course, you did. It’s happened to every human being. There are millions of instances in which people do things by mistake where, in fact-”

Justice Antonin Scalia interrupted Breyer, saying: “I think your wife made a mistake. I don’t think you made a mistake.”

“No, my wife does not make mistakes,” Breyer said, drawing more laughs.

Those were two of a whopping six laughs Breyer drew this week – quite a feat considering there were only four cases argued before the Court – making him The Funniest Justice of the week. He beat out the ever funny Scalia, who scored four laughs. Chief Justice John G. Roberts, Jr. drew two chuckles while Samuel Alito drew one.

There is only one week of oral arguments left this term. Stay tuned to see if Justice Clarence Thomas breaks his silence in order to crack a joke and make it on the board.

Here are the laugh standings going into the last week of OT09:

Justice Antonin Scalia: 70

Justice Stephen Breyer: 42

Chief Justice John G. Roberts, Jr.: 25

Justice Anthony Kennedy: 8

Justice Samuel Alito: 5

Justice John Paul Stevens: 3

Justice Ruth Bader Ginsburg: 1

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (Oral argument silence since Feb. 22, 2006)

Obama meets with senators about SCOTUS pick

After meeting with Senate leaders at the White House about the next Supreme Court nominee, President Barack Obama told reporters this morning that he will select someone to replace retiring Justice John Paul Stevens some time next month.

Speaking to the press as he sat with Vice President Joe Biden, Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell, Judiciary Committee Chairman Patrick Leahy and ranking Republican Jeff Sessions, Obama called Stevens “one of the finest Supreme Court justices that we’ve seen.”

“Those are going to be some tough shoes to fill,” Obama said. “This is somebody who operated with extraordinary integrity and fidelity to the law. But I’m confident that we can come up with a nominee who will gain the confidence of the Senate and the confidence of the country, and the confidence of individuals who look to the Court to provide even handed justice to all Americans.”

Obama said he hoped for the confirmation process to go as smoothly as it did last year.

“Last time when I nominated Sonia Sotomayor, I have to say that all the individuals who are sitting here … worked very cooperatively on what I considered to be a very smooth, civil, thoughtful nomination process and confirmation process. [M]y hope is that we can do the same thing this time.”

He said last year the nomination of Sonia Sotomayor came at the end of May, and he hoped to make or beat that timeline this year.

When asked what bearing the issue of abortion would have on his selection, Obama said he firmly believes in a woman’s right to bodily autonomy, but said that he had no litmus test.

“This has been a hugely contentions issue in our country for a very long time,” Obama said. “I have said the same thing that every president has said since this issue case up, which is I don’t have a litmus test.”

But he said he would select “somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights. And that is going to be something very important to me. … Individuals are protected in their privacy, their bodily integrity, and women are not exempt from that.”

UPDATE: After the meeting, Sessions and McConnell issued a joint statement:

“When the President selects a nominee, Senate Republicans will review that nominee’s record diligently and respectfully with the goal of ensuring that the American people can be confident that the nominee will be able to fulfill the judicial oath, which is to ‘faithfully and impartially’ administer justice ‘without respect to persons,'” the statement read.

“Judges must apply the Constitution and laws even-handedly. They should not enter the courtroom with preconceived outcomes in mind, or work to arrive at the preferred result of any President or political party. A Supreme Court justice must not be a rubberstamp or policy arm for any Administration.

“As we did with Justice Sotomayor, we will treat the President’s nominee fairly. But a lifetime position on the nation’s highest court requires a thorough process, not a rush to judgment.”