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Monthly Archives: June 2010

The quick, the chatty and the silent

DC Dicta may have tracked the justice who got the most laughs at oral arguments, but other Supreme Court experts also kept some stats this term.

During an end-of-term media briefing yesterday hosted by the National Chamber Litigation Center, the legal arm of the U.S. Chamber of Commerce, Supreme Court veteran litigator Sri Srinivasan said he kept a count – albeit an unofficial and unscientific one – of which justices were the most and least active during oral arguments. And here are some of the results:

Quickest draw: Justice Ruth Bader Ginsburg

“Ginsburg asked the first question [during oral arguments] the most times,” said Srinivasan, a partner in the Washington office of O’Melveny & Myers.

He said the second most frequent first-question-asker was Justice Sonia Sotomayor, which was interesting, he noted, since new justices sometimes take a while to get their legs during oral arguments. “Sotomayor asks questions early,” Srinivasan said.

The Chattiest jurist: Justice Stephen Breyer

Anyone who has attended an oral argument at the Supreme Court knows that Breyer, a former law professor, likes to pose elaborate hypothetical questions to counsel. And it can often take some time to set up.

“Justice Breyer took up the most lines” in oral argument transcripts, Srinivasan said.

Most to the point: Justice John Paul Stevens

Of the justices who pose questions or comments during oral arguments (see below), the one who took the least amount of words to do so was Justice John Paul Stevens, who clearly prefers to keep things short and sweet (despite his usual added words of “May I ask you this question?”)

Stevens also tends to listen before he speaks. “Justice Stevens asked the first question the fewest number of times,” Srinivasan said.

Silent Bob: Justice Clarence Thomas

And of course, there is Clarence Thomas, who hasn’t said anything during oral arguments for four terms.

Silent birthday

DC Dicta did not forget that today is Justice Clarence Thomas’ 62nd birthday.

We were just paying homage to his oral argument style by not making any comment on it – until now.

Happy Birthday, Justice!

NLRB back to full staff, but with one member snub

Just days after a U.S, Supreme Court’s ruling demonstrated the danger of having an understaffed National Labor Relations Board, Tuesday the Senate confirmed two of President Barack Obama’s nominees to the Board: Democrat Mark Pearce and Republican Brian Hayes. That brings the Board to a full five operating members for the first time since 2007.

But the Senate did not confirm Obama’s third nominee to the board, former labor union lawyer Craig Becker, whose nomination sparked heated opposition from some Republicans and business groups who expressed fear that Becker would use Board rulings to usher in a “card check” union voting rule on an administrative level. Such a rule would allow employees to organize by a show of card instead of a secret balloting process. Legislation that would have authorized the change stalled in Congress last year.

Becker was installed on the Board in March as a recess appointment.

Yesterday the Senate confirmed Obama’s nominees for more than 60 posts ranging from judgeships to U.S. attorneys to agency positions.

Bork to urge lawmakers to ‘Bork’ Kagan

In 1995, Elena Kagan praised paid former Supreme Court nominee Robert Bork a compliment.

“Not since Bork has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy,” Kagan said in a law review article, adding that Bork’s hearing should be a “model” for all others because the Senate and the nominee were allowed to engage on controversial issues and educate the public.

Despite the fact that Kagan’s and Bork’s politics are opposed, and that Bork’s nomination failed amid such contentious partisan rancor as to turn his last name into a verb synonymous with political rejection, Kagan said his hearings were good for democracy.

Tomorrow, Bork will speak about Kagan – but it won’t be complimentary.

Bork will hold a news conference tomorrow to publically oppose Kagan’s nomination to the Court. In an event organized by pro-life group Americans United for Life, Bork will urge the Senate to reject Kagan – whose confirmation hearings begin Monday – based on what he calls her pro-abortion activist views.

Court allows employer to compel arbitration; rules against Breyer’s brother

When an arbitration clause in an employment contract includes an agreement that the arbitrator will determine the enforceability of the agreement, a party challenging specifically the enforceability of that particular clause may go to court. But if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator to decide, the U.S. Supreme Court ruled today.

That ruling in Rent-A-Center, West v. Jackson was one of four decisions handed down by the Court today. That case involved an employment discrimination suit, where the employee challenged the agreement as unconscionable. The court held the claim must be arbitrated and that the district court was correct in granting the employer’s motion to compel arbitration. Justice Antonin Scalia wrote for the 5-4 majority, and the dissenters joined Justice John Paul Stevens.

In Monsanto v. Geertson Seed Farms, the Court held that U.S. District Court Judge Charles R. Breyer – Justice Stephen Breyer’s brother – committed an abuse of discretion in granting an injunction prohibiting genetically altered alfalfa from being sold or planted without the USDA preparing an Environmental Impact Statement. Justice Breyer did not take part in the case, which was decided 7-1.

The Court also held that a provision of the Patriot Act which allows the government to bring charges of “knowingly providing material support or resources to a foreign terrorist organization” is constitutional in Holder v. Humanitarian Law Project.

And finally in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. the Court held that the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading.

The Court also granted certiorari in three cases, to be decided next term.

More on today’s Court action to come on this blog, and on Lawyers USA online.

Monday status conference: Clinton on Kagan

Picture it: the White House, 1995.

A cadre of economic advisors had advised President Bill Clinton against vetoing a bill aimed at stopping frivolous securities fraud lawsuits. Clinton asked the advice of his new legal adviser, Elena Kagan.

She analyzed the legislation and came to the conclusion that the bill would not only halt frivolous suits, but also meritorious securities fraud actions by shareholders. Bucking the economic team, she recommended that the president veto the measure.

“There she was, in her mid-30s starting out in her career, with the entire economic team, all of them against her position, and she knew it,” Clinton told The New York Times last week, recalling Kagan’s first White House presentation. “She stood there and defended her conclusion. It was very impressive. She was composed, direct and totally unfazed that all those guys wanted a different outcome.”

Clinton’s comments came as lawmakers and the media pored over emails from Kagan’s White House tenure released by Clinton’s presidential library on Friday. Now most of the 160,000 pages of documents identified by the library on the Supreme Court nominee have been released. And Kagan has emerged, for the most part, unscathed from the scrutiny one week before her confirmation hearings are set to begin.

And that, according to the Associated Press, was by design. Obama administration officials, working with Clinton, have worked to ensure that Kagan’s involvement with more controversial issues that could provide fodder for critics of her nomination remain shaded from public view. Those sensitive subjects include the Paula Jones sexual harassment lawsuit that led to Clinton’s impeachment.

Meanwhile, the current justices of the Supreme Court are set to release more opinions this morning. Among the issues yet to be decided this term is whether public and private officials can face criminal action for depriving their “honest services” to the public or to their employers. We’ll update newsworthy developments here later this morning.

In other news,

Emanuel out? The London Daily Telegraph reports that White House Chief of Staff Rahm Emanuel is expected to leave his job after the midterm elections because he is fed up with the “idealism” of President Barack Obama’s closest advisers. (Fox News)

Too soon to say the f-word: Senate Republican Leader Mitch McConnell said it’s still too soon to say whether Republicans might try to filibuster Kagan’s nomination. (AP)

Slow claims process: BP has paid less than 12 percent of claims submitted by individuals and businesses for damage caused the Gulf oil spill, according to the House Judiciary Committee. (AP)

K Street help for BP: Meanwhile, the company is enlisting the help of a high-priced lobbyists and consultants to help weather the firestorm over the massive spill. (Washington Post)

Friday morning docket: Shakeup over ‘shakedown’ comment

All eyes were on Capitol Hill yesterday as lawmakers grilled BP CEO Tony Hayward over the company’s handling of the ongoing oil spill in the Gulf.

But one lawmaker’s apology to Hayward has sparked a firestorm. Texas Republican Rep. Joe Barton criticized the White House meeting with BP execs that culminated with the company setting up a $20 billion escrow account in order to pay claims relating to the spill.

“I’m ashamed of what happened in the White House yesterday,” Barton told Hayward. “I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown. In this case a $20 billion shakedown.”

“I do not want to live in a country where any time a citizen or a corporation does something that is legitimately wrong, (they are) subject to some sort of political pressure that … amounts to a shakedown,” Barton continued. “So I apologize.”

The comments drew almost immediate ire from Democrats as well as Barton’s fellow Republicans. House Republican leaders John Boehner, Eric Cantor and Mike Pence issued a joint statement asserting: “Congressman Barton’s statements this morning were wrong. BP itself has acknowledged that responsibility for the economic damages lies with them and has offered an initial pledge of $20 billion dollars for that purpose.”

Vice President Joe Biden called Barton’s remarks “incredibly insensitive, incredibly out of touch.”

Barton quickly backtracked.

“I think BP is responsible for this accident, should be held responsible, and should, in every way, do everything possible to make good on the consequences that have resulted from this accident,” Barton said. “And if anything I said this morning has been misconstrued to the opposite effect, I want to apologize for that misconstruction.”

Meanwhile, today the Clinton presidential library will release another batch from the 160,000 pages of documents it has identified on Elena Kagan’s tenure in Clinton’s White House. About 80,000 pages of e-mails – about 11,000 of them written by Kagan – will be sent to senate lawmakers vetting her Supreme Court nomination today.

In other news,

Too much time for the crime? Most federal trial judges believe mandatory sentences are too long, according to survey results released by the U.S. Sentencing Commission. (Lawyers USA)

Safety first: The Food and Drug Administration has announced that it will begin posting safety data on recently approved drugs and biologics on its website in an effort to better educate patients and health care professionals. (Lawyers USA)

Suing mad: The Obama administration has decided to sue Arizona over the state’s controversial immigration law, according to Secretary of State Hillary Rodham Clinton. (Washington Post)

Gay marriage trial wraps: The federal trial over California’s gay-marriage ban wrapped up with closing arguments from both sides this week. (WSJ’s Law Blog)

NLRB chair reacts to Supreme Court decision

National Labor Relations Board Chairman Wilma B. Liebman has issued a statement in response to today’s Supreme Court ruling in New Process Steel v. NLRB that the Board lacked authority to act with only two members, as it did for more than two years.

“When the Board went to two members in January 2008, Member [Peter C.] Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated.  We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Court rules in NLRB, sexting, crack sentencing cases and more

In a ruling that could lead to the invalidation of hundreds of National Labor Relations Board rulings over a two-year period, U.S. Supreme Court ruled this morning that the Board requires at least three members in order to exercise its authority.

From January 2008 until March 2010, the Board operated with only two members, issuing hundreds of rulings despite the National Labor Relations Act’s three-member quorum requirement. Before the Board’s membership fell to just two – due in part to the inability of nominees to get confirmed by Congress – the Board delegated authority to a two-member quorum in order to continue operating. The Board operated that way until March, when President Barack Obama made recess appointments to several agencies including the NLRB.

But the Court, in a closely-split ruling in New Process Steel, L. P. v. NLRB authored by Justice John Paul Stevens, said two is not enough.

That ruling was one of five cases handed down by the Court today.

The Court also held that a city’s search of the contents of text messages sent by police officers on city-issued mobile devices was reasonable. In the highly anticipated case City of Ontario v. Quon, the Court held that the city’s search of sexually explicit text messages sent between a SWAT team member and the woman with which he is having an affair did not violate the Fourth Amendment, reversing a 9th Circuit ruling to the contrary.

In Dillon v. U.S., the Court ruled that its holding in U.S. v. Booker does not give courts the authority to depart downward beyond already reduced federal sentencing guidelines for a crack cocaine offense.

In the bankruptcy case Schwab v. Reilly the Court held that an estate may retain value in the equipment beyond the value of the exempt interest if the exemptions were properly listed on Schedule C and they fell within the range the bankruptcy code allows.

And in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court upheld a beach anti-erosion program that allowed sand to be added to a shoreline and creating strips of public beach over the objection of private beach land owners.

Much, much more on to come on this very busy day at the Court. Stay tuned to this blog and on Lawyers USA online.

More SCOTUS decisions from O’Connor, Souter and Stevens?

Senate Judiciary Committee Chairman Patrick Leahy has an interesting idea: why not allow retired Supreme Court justices to hear cases when a sitting justice has recused?

“That would make a lot of sense,” Leahy told The National Law Journal‘s David Ingram, “because if you’ve got an eight-member Court, you could easily have 4-to-4 decisions.”

Leahy, who is considering introducing legislation that would allow this to happen, said he got the idea from the justice soon to join the ranks of the retired.

“I talked with Justice [John Paul] Stevens, and he raised the question, ‘Could we not have a provision in the law for some mechanism that retired Supreme Court justices could be asked to sit on the Court when there is a recusal?’” Leahy said.

Currently, both retried Justices Sandra Day O’Connor and David Souter frequently sit on the bench of courts of appeal – and Stevens’ suggestion seems to indicate he too would be willing. Leahy said such a law change would avert the danger of recusals ending in 4-4 ties, preventing the Court from rendering a decision on the merits.

But when told of the idea, Republican committee member Sen. Orrin Hatch didn’t seem as enthusiastic. He said he’s inclined to oppose it. “A tie vote is still a result,” Hatch said.

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