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Sessions to GOP senators: Kagan is ‘dangerous’ (access required)

As a fourth GOP senator expressed an intent to vote for Supreme Court nominee Elena Kagan when her nomination reaches the Senate floor next week, the Judiciary Committee’s top Republican is stepping up his criticism of Kagan – calling her a “dangerous” nominee and warning lawmakers that voters may punish them if they support her.

“I’m afraid that we have a dangerous, progressive, political type nominee that’s going to be before us,” Alabama Sen. Jeff Sessions said on the Senate floor yesterday.

His remarks came on the same day Maine Republican Sen. Olympia Snowe announced her support for Kagan.

Snowe said she came to her decision based on Kagan’s “strong intellect, respect for the rule of law, and understanding of the important but limited role of the Supreme Court that I believe is required of any justice.”

Snowe joins GOP Sens. Lindsey Graham, Richard Lugar and Susan Collins in supporting the nominee.

But Sessions said backing Kagan could have negative political ramifications for senators seeking reelection.

“I don’t think the American people are going to hold harmless those who vote to impose a legal progressive, activist legislator from the bench upon them,” Sessions said. “So I’m asking my colleagues to look at this nomination carefully. Do not be a rubber stamp for the president.”

His comments weren’t reserved only for Republicans.

“I’m talking to my Democratic colleagues now,” Sessions said. “It’s your vote. It’s your responsibility to make sure your constituents don’t wake up next year, next year, next year, and find some judge redefining the Constitution to make it say something it was never intended to say. So don’t be a lemming. Review this nomination.”

More from Sessions:

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What happens if Obama gets to replace a conservative justice?

Ok, so the nomination of Elena Kagan to replace retired Justice John Paul Stevens hasn’t exactly made for sensational headlines. That’s because the replacement of a Supreme Court justice by another with similar ideological views and judicial philosophies doesn’t really make for a sexy story.

But what if a conservative justice (or even the more moderate so-called swing voter, Justice Anthony Kennedy) were to be replaced by President Barack Obama? Particularly if Republicans earn more seats in the Senate at the midterm elections?

Now, that’d be a barn burner!

That is the scenario posed by CBS News’ Jeff Greenfield.

Greenfield notes that most of the Court’s most recent controversial rulings – such as those on gun rights, late-term abortions, corporate campaign spending – were decided by ideologically-split 5-4 votes. So if a Democratic president named a replacement for a conservative justice, he could create a dramatic shift in power on the Court.

“And that means that the confirmation struggle is likely to go ‘nuclear,’” Greenfield writes.

Not only will such a nomination produce heated arguments in the Senate over ideological differences and the use of the filibuster to block a nominee, Greenfield writes, Senate Republicans might even suggest calling the whole thing off.

“We may even hear conservative academics argue, as one prominent liberal law school professor did after the disputed 2000 election, that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices,” Greenfield writes. “Indeed, the closer we are to the 2012 election when and if a conservative justice retires, the more intense the political fight will be.”

Now, considering most of the justices in Court’s so-called conservative bloc are pretty young, seemingly healthy, and admittedly very happy with their jobs, this scenario is probably not terribly likely.

For the record, Chief Justice John G. Roberts, Jr. is 55, Justices Antonin Scalia and Kennedy are 74, Justice Clarence Thomas is 62 and Justice Samuel Alito, Jr. is 60.

Walter Dellinger, ‘Mad Men’ guru

Walter Dellinger wears many hats: head of the Supreme Court and Appellate Practice Clinic at O’Melveny & Myers’ Washington office, professor at Duke University School of Law, and former acting solicitor general, to name a few. Now, he’s added a new one – a fedora, if you will: he’s the expert online discussion leader for the Wall Street Journal. And the topic of the weekly digital chat? The AMC television show “Mad Men.”

Dellinger got the gig after his reader comment was spotted on an online discussion of the show on Slate Magazine‘s website. Now Dellinger heads up his own discussion each week after the show, which just began its fourth season, each Sunday night.

So what made Dellinger such a big fan? He explains in this week’s introduction:

“For me, the fascination is with the historical period in which it is set,” Dellinger wrote. “The time from 1960 when the first season began and to 1968 was a period of extraordinary transition in gender, race, politics and social culture. ‘Mad Men’ has thus far sought to capture both the literal reality and the ‘feel’ of that time from the vantage point of a group – New York advertising executives – whose very job it was to understand what is happening in the culture. That they so often fail to appreciate what is happening all around them is very much a part of that reality.”

He also noted that many of the show’s themes reflect his own experiences in the New York of the 1960s.

“I spent the summer of ’65 on Madison Avenue as a law clerk at Paul, Weiss, Rifkind, Wharton and Garrison,” Dellinger wrote. “I went to Paul, Weiss because I was troubled by the fact that almost all of the major Wall Street firms still refused even to interview Jewish law students. As a poor white kid from North Carolina who had almost never been to a really fancy restaurant, I was astounded by the lavish lunchtime drinking in the world of Manhattan law and business. My new bride, Anne (Maxwell) Dellinger was a technical writer and editor at a life insurance company about two blocks from the Time-Life building. She was one of the few (if any) women at her office who were not secretaries or cleaners. We have marveled at how accurately Mad Men recreates that period’s changing world of women’s roles. The treatment of what it was like to be gay seems to be extremely sensitive, and the shadow of Antisemitism is also deftly handled. It is not yet clear whether the show will have the same sensitivity to issues of race.”

Monday status conference: Conservative estimate

“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades – sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Friday morning docket: Heat on House member

Lawmakers have just one more week of work before heading out for summer recess, but one congressman might be feeling the heat a little more than others.

New York Rep. Charlie Rangel has been hit with charges of ethics violations by investigators for the House Committee on Standards and Official Conduct. The move means the 20-term Democrat – who is also running for reelection – will face a trial-like proceeding with House counsel acting as prosecutors and Rangel being defended by his own lawyers. The investigation into alleged ethical lapses by Rangel caused him to relinquish the chairmanship of the powerful House Ways and Means committee earlier this year.

Although the panel has not specified what charges Rangel will face, the lawmaker has been under fire for allegedly failing to pay taxes on a Caribbean home, failing to fully disclose assets, and using a New York rent-controlled apartment for political purposes. Rangel has denied any wrongdoing, and yesterday said the upcoming hearing is “what I’ve been waiting for.”

“It gives me an opportunity to respond to my friends and constituents who have supported me for 40 years,” Rangel said. “All I’ve been able to give them is ‘trust me.’ ”

The House ethics trial process hasn’t been used since 2002 when Ohio Rep. James Traficant faced the ethics panel. He was later convicted of racketeering.

Meanwhile, Supreme Court junkies looking for a reason to have a piece of cake today can celebrate the fact that Justice Anthony Kennedy turns 74 today. Happy birthday, Justice!

In other news:

Jobless benefits bill passed: The House of Representatives voted 272-152 Thursday to pass a bill that restores unemployment benefits for 2.5 million Americans. (Courthouse News Service)

Crushing animal cruelty, take two: After their first attempt was struck down by the Supreme Court as overbroad, the House has passed new, narrower legislation to outlaw video depictions of animal torture. (Detroit Free Press)

Longer arm for lawsuits: Legislation that would make it easier for victims of defective foreign-made products to file suit against foreign manufacturers has been advanced by a House committee. (Lawyers USA)

Arbitration curbs: The sweeping financial overhaul legislation signed into law Wednesday by President Barack Obama contains a provision that allows federal regulators to limit the use of pre-dispute mandatory arbitration clauses in financial contracts. (Lawyers USA)

No criminal charges against former AG Gonzales over U.S. attorney firings

A special prosecutor announced yesterday that although Former Attorney General Alberto Gonzales made “inaccurate and misleading” statements regarding the firing of nine U.S. attorneys during his tenure, he will not face criminal charges.

Nora Dannehy, the special prosecutor charged with the investigation into the alleged politically-motivated firings of the federal prosecutors, ended her probe by recommending that Gonzales and his former chief of staff Kyle Sampson not by charged criminally.

“Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to [the Office of the Inspector General, the Office of Professional Responsibility] or Congress or corruptly endeavored to obstruct justice,” according to a letter sent by the Justice Department to Congress yesterday [care of the BLT Blog].

That is not to say that all was fine at Main Justice during that time, the letter stated. The Department pointed out that Dannehy was only tasked to find out whether there was criminal wrongdoing, not just ethical violations.

“The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated,” the letter states.

Members of FDA Avandia panel paid by drugmaker, rival

A member of the FDA advisory panel who cast a vote in favor of keeping the diabetes drug Avandia on the market with no restrictions was paid more than $15,000 by the maker of the drug as an adviser. Meanwhile, another panelist who voted to pull the drug from the market has worked as a consultant for the company that makes a rival diabetes drug.

David Capuzzi was paid $14,750 by GlaxoSmithKline to promote the company’s heart drug Lovaza, according to a report by the Wall Street Journal. He was also paid $750 by the company to serve as a consultant on an advisory board on Avandia, the Journal reports. Capuzzi said that he disclosed his relationship with the company to the FDA.

Capuzzi was part of a 33-member advisory panel which ultimately voted last week in favor of urging the FDA to impose stronger warnings on Avandia labeling and possible restrictions to its sale based on medical reports linking the drug to increased risk of heart attack and other health problems.

A significant number of panelists voted in favor of removing the controversial diabetes drug Avandia from the market altogether. According to another Journal report, one panelist voting in favor if recalling the drug – Abraham Thomas – disclosed yesterday that he has served as a paid speaker for the maker of a rival diabetes drug Actos. Thomas said he also disclose the payments to the FDA.

The FDA issued a statement saying they would examine any relationship between panel members and drug companies internally. “If any member of the advisory committee is found to have a conflict of interest, FDA can consider that information as we make our final decision on the status of the drug,” the statement said.

Judiciary Committee gives nod to Kagan

In a vote divided largely along party lines, the Senate Judiciary Committee advanced the nomination of U.S. Supreme Court nominee Elena Kagan to the full Senate.

The 13-6 vote – with South Carolina Sen. Lindsey Graham casting the only GOP vote in Kagan’s favor – was identical to the committee’s vote last year on the nomination of Justice Sonia Sotomayor, with all Democrats voting for Kagan.

Graham said that although he disagrees with Kagan on key issues, he believes that Kagan is a qualified candidate and that is the standard by which the Senate should vote.

More here from Lawyers USA.

But Grahams vote was enough for President Obama hail the support of his candidate by both parties.

“Today’s vote by the Senate Judiciary Committee is a bipartisan affirmation of her strong performance during her confirmation hearings,” Obama said in a written statement.

Patent office extinguishes reefer category

If you created a new blend of a certain medicinal herb, and you wanted to trademark a name like “Jack and Jackie’s Wacky Tobacky” or “McDuff’s Puff Stuff,” you may have thought you were in luck.

After all, in April the U.S. Patent and Trademark Office quietly created a brand new trademark category: “Processed plant matter for medicinal purposes, namely medical marijuana.” In other words, marijuana growers could get government protection for their herbal product!

That is, until last week. After a Wall Street Journal reporter began asking the patent office about the new trademark category, federal officials said the new designation was about to go up in smoke – per the advice of the office’s lawyers.

“It raises examination issues,” PTO spokesman Peter Pappas told the Journal. “It was a mistake and we have removed it.”

Removing the federal approval of pot products was probably a wise move, considering that selling marijuana – even for medicinal purposes – remains a federal crime, even though some states allow it. Although Attorney General Eric Holder signaled a change in federal policy back in March by announcing the Justice Department will no longer go after producers of medical marijuana, there has been no law change yet.

Pot producers can still file applications for trademarks without the special chronic category. But, patent officials said a pot trademark has never been granted, and the chances of one being granted in the future are bleak. So don’t hold your breath. Well, at least not over this.

Monday status conference: Thomas thinks justices should get out more

The U.S. Supreme Court’s summer recess gives the justices a chance to get out and see the country. And that is a good thing, according to Justice Clarence Thomas, who complains that the justices have become too isolated at the Court – a place he calls an “marble palace.”

“(The Supreme Court) truly is a marble palace (because) we’re isolated,” Thomas said during remarks at Utah State Bar’s summer convention Saturday morning in Sun Valley, Idaho reports the Deseret News. “We’re isolated from the politics, we’re isolated from the city and in a lot of ways we’re isolated from the country. These trips allow me to come out and see the people who really matter in our government, and that is you all.”

According to the Salt Lake Tribune, Thomas also gave another reason why he does not participate in oral argument questioning: He’s not a big fan of TV game shows.

“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like ‘Family Feud’ than oral argument.”

He remembered a time where justices would actually listen to the attorneys making their case. “We have ceased doing that,” Thomas explained. “Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”

Thomas did show his sense of humor during the talk, the Deseret News reports. He made the crowd laugh multiple times during his talk – (perhaps he would be one of the funniest justices if he spoke during oral argument!) – and poked fun at the fact that he’s the Court’s only black justice.

“Things might happen when (I’m not at the court),” he said. “You all may not remember that Eddie Murphy skit where he’s on the bus and he’s the only black guy on the bus and nobody talks – it’s sort of like being on an elevator. As soon as Eddie Murphy leaves the bus, all the whites who are left on the bus throw off their outer garments and they’re in party outfits. So things may be going on at the court (when I’m not there) – they may just be waiting and saying, ‘Oh, the black guy’s gone!’ ”

In other news:

Chief Dissenter Breyer? Now that Justice John Paul Stevens has retired, will Justice Stephen Breyer become the Court’s most vocal dissenter? (The Daily Journal via How Appealing Extra)

Widening divide: President Obama’s Supreme Court picks have done little to bridge the ideological divisions on the Court. (Bloomberg)

Knowing it when you see it: The National Law Journal‘s Tony Mauro examines the papers of Justice Steward Potter, which were recently released by the Yale University Library. (NLJ)

HIPAA, HIPAA, hooray! Lawyers can expect to be busy in the coming year reviewing and revising contracts of health care entities and related businesses in light of new proposed HIPAA rules. (Lawyers USA)

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