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Monthly Archives: July 2010

Friday morning docket: Kagan’s tepid endorsement

One Senate Democrat has taken to the op-ed pages of USA Today to indicate his support for Supreme Court nominee Elena Kagan. But that endorsement is far from ringing.

“Kagan did little to move the nomination hearings from the stylized ‘farce’ (her own word) they have become into a discussion of substantive issues that reveal something of the nominee’s judicial philosophy and predilections,” wrote Pennsylvania lawmaker Sen. Arlen Specter. Specter, a member of the Senate Judiciary Committee, which will vote on Kagan’s nomination Tuesday, also wrote that Kagan did “little to undo the impression that nominating hearings are little more than a charade in which cautious non-answers take the place of substantive exchanges.”

He said he’d still vote for her, though.

So far no Republican lawmaker has indicated a willingness to vote for Kagan, while 12 have stated their intention to vote against her. She’s still expected to win confirmation handily.

In other news:

Not Kennedy’s Court: Linda Greenhouse’s reaction to news that Justice Anthony Kennedy will not retire anytime soon: Duh! But something else surprised her: “A plausible case can be made that it is no longer the ‘Kennedy court.'” (New York Times’s Opinionator blog)

Preemptive strike: Could the addition of Kagan to the court spell two big losses for plaintiffs in preemption cases? (Lawyers USA)

Gay marriage ruling upheld: In a split vote, an appellate court in the District of Columbia upheld a ruling by District officials rejecting a ballot referendum on gay marriage. (Lawyers USA)

Chamber, AAJ battle again over story on proposed tax break

There are a few things in life that one can always rely on  – like death, taxes, and the complete lack of love lost between the U.S. Chamber of Commerce and the trial lawyers group the American Association for Justice.

That lack of love was demonstrated again this week with a story on a Chamber-backed newswire accusing AAJ officials of boasting about a special trial lawyers’ tax break that would be issued by the Treasury Department.

The story in Legal Newsline, which is owned by the Chamber, quoted John Bowman, the Director of Federal Relations for the AAJ, speaking to a delegate at a meeting in Canada. Bowman reportedly said that an administrative order from the Treasury would amend tax law to allow attorneys to deduct certain expenses and costs in contingency fee cases in the year they were incurred. Current law requires lawyers to wait until the case is resolved, which could happen years later.

Legislation introduced by Sen. Arlen Specter that would have done the same thing after being introduced last year.

Last year, Legal Newslaine ran a story about that legislation, citing another AAJ official’s comment that the bill would fail unless it was “tucked into” another larger legislative package.

AAJ shot back, calling that story “inaccurate and purposefully misleading,” and adding that the bill was designed to “treat the trial attorney profession like every other small business in this country, allowing them to deduct their expenses in the year incurred.”

The latest proposed Treasury Department plan has now drawn the scorn the Wall Street Journal‘s editorial board, which ran a piece today citing the Legal Newsline and blasting the proposed tax change. “And Democrats wonder why their performance in office has inspired a tea party revolt,” the editorial says of the plan.

GOP uses Kagan as election fund-raiser

Last year, Senate Republicans took their time in revealing how they intended to vote on then-Supreme Court nominee Sonia Sotomayor.

But this year, GOP senators are coming out early with vocal opposition to the nomination of Elena Kagan to the nation’s top court. And the difference is less about the nominees and more about the calendar: it’s election time.

GOP lawmakers are making their case against Kagan in order to drum up campaign support and cash at a time when the president is suffering from low popularity numbers, according to this piece by the Associated Press’s Julie Hirschfeld Davis.

“What you’re seeing is where there are senators and candidates who are closest to the people – those senators and candidates who are in election races or up for election – they’re the ones that are coming out most strongly against Kagan,” said Gary Marx of the conservative Judicial Crisis Network, a group urging Republicans and Democrats from states with contested elections to oppose the candidate.

Kagan’s chances of confirmation are all but certain, but Senate Judiciary Committee Republicans yesterday delayed the vote on the candidate for one week, as committee rules allow.

2 Live Crew frontman: Kagan is ‘my homegirl’

Supreme Court nominee Elena Kagan has picked up a ringing endorsement – from the frontman of the hip hop group responsible for the popular 1989 song “Me So Horny.”

Former 2 Live Crew member Luther Campbell penned an opinion piece in the Miami New Times [HT: Politico’s Under the Radar blog] heralding Kagan as “the perfect person for the job” of Supreme Court justice.

Back in 1989, a federal district court judge upheld decision by a Florida municipality banning the sale of the 2 Live Crew album “As Nasty as They Wanna Be” after deeming its sexually explicit lyrics to be obscene.

The matter went before the 11th Circuit, and Kagan, then working as an associate at Williams & Connolly’s Washington, DC office, wrote an amicus brief on behalf of the Recording Industry Association of America urging the Court to find that the work did not meet the constitutional standard of obscenity.

“[Kagan] wrote a brief that argued the album ‘does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.’ In other words, my homegirl Kagan was saying people could not be aroused by the lyrics,” Campbell wrote, before giving examples of some of the more, er, colorful lyrics featured on the album.

“She is not going to let any person or group tell her what is right or wrong,” Campbell continued. “Kagan will judge each case based on the law of the land. She has demonstrated she can protect the Constitution by doing the fine work she did to protect 2 Live Crew’s freedom of speech.”

Politico notes that Kagan herself referenced the case in her questionnaire answers submitted to the Senate Judiciary Committee. “I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law,” she wrote.

Monday status conference: Lawmakers return

Lawmakers return from the Fourth of July Break today to a full agenda. Much remains to do before Congress breaks again in August, including the Senate Judiciary Committee vote on Supreme Court nominee Solicitor General Elena Kagan and the subsequent full Senate vote. The committee is scheduled to take up the Kagan nomination tomorrow, but GOP members could delay that vote.

Meanwhile other matters – from financial regulation, to jobless benefits, to a small business stimulus plan – all await action by lawmakers.

And although the Supreme Court’s term has wrapped – only orders in pending and emergency cases are expected over the summer – there is still much focus on what is to come from the Court next term. The Associated Press points out that the retirement of Justice John Paul Stevens gives Justice Anthony Kennedy new power. Although Chief Justice John G. Roberts, Jr. assigns opinions in cases where he votes with the majority, when he’s on the dissenting side the most senior justice in he majority holds the power of assignment. Kennedy, known as a swing voter in many close court votes, could wield that power often since the more senior associate justice, Justice Antonin Scalia, often votes with Roberts.


Justice’s nephew alleges stun gun attack: Relatives of Justice Clarence Thomas’ nephew, Derek Thomas, claim he was beaten and shocked by security at a New Orleans hospital while suffering an epileptic seizure. Family members said Justice Thomas plans to travel to New Orleans to check on his nephew. (Washington Post)

Unusual justice: Justice Sonia Sotomayor’s first year on the Court demonstrated not only her strong work ethic and enthusiastic participation during oral arguments, but also her love of dancing, dining, the New York Yankees and more. (Washington Post)

Brennan book coming: Want to know more about the late Supreme Court Justice William Brennan? You’re in luck! A new bio is on the way. (McClatchy)

Friday morning docket: No Roe reversal, Ginsburg says

Justice Ruth Bader Ginsburg said yesterday that, despite legal challenges being waged by those seeking to reverse Roe v. Wade, abortions will remain legal and available.

“Over a generation of young women have grown up, understanding they can control their own reproductive capacity, and in fact their life’s destiny,” Ginsburg said in a discussion at the Aspen Ideas Festival yesterday, according to Politico. “We will never go back to the way it once was.”

Ginsburg said restricting access to abortions would have a disproportionately negative effect on poor women. “If people realize that, maybe they will have a different attitude,” Ginsburg said.

Ginsburg also praised her late husband of 56 years, Martin Ginsburg as the “smartest man I knew” and “the first boy I met that cared that I had a brain.”

On her own health, Ginsburg – who has had two bouts with cancer – said: “I’m just fine.”

In other news:

ABA wants a cool COLA: The American Bar Association has filed an amicus brief urging the Supreme Court to rule in a case that would decide the constitutionality of Congress denying cost-of-living salary adjustments for federal judges. (Lawyers USA)

DOMA headed to the SCOTUS? A federal judge in Boston ruled that the federal Defense of Marriage Act – which prohibits certain federal recognition of same-sex marriages – is unconstitutional yesterday , spurring conservative activists to call for an appeal to the U.S. Supreme Court. (Boston Herald)

Matter of FACTA: New regulations from the Federal Trade Commission affecting businesses that furnish information to credit reporting agencies went into effect July 1. (Lawyers USA)

Oil health risks? In an effort to learn more about potential health risks to workers aiding in the Gulf Coast oil spill cleanup efforts, House lawmakers have asked Exxon Mobil executives for documents discussing health effects experienced by workers who responded to the Exxon Valdez oil spill. (Lawyers USA)

It’s a wrap: Another U.S. Supreme Court term is in the record books. And while some decisions – like the Second Amendment ruling that struck down Chicago’s handgun ban – dominated headlines, other cases decided during the term will have a much broader impact on civil and criminal litigators. (Lawyers USA)

Sotomayor is happy to chat about dumplings, but not Lohan

If you want to chat with Justice Sonia Sotomayor about Chinese food, fine. But don’t ask her about Lindsay Lohan.

That was the lesson for a New York Daily News reporter this week.

Spotted outside Joe’s Shanghai restaurant in New York City’s Chinatown this week, the Supreme Court jurist raved about the food.

“It’s my favorite Chinese restaurant in the city,” Sotomayor said of the eatery, where she dined on soup, dumplings, scallion pancakes, braised bean curd with spinach and other fare with a group of friends. The dumplings were a particular hit, Sotomayor said, because “that’s what they’re famous for.”

But when asked if she would have given Lohan, the troubled actress who was handed a 90-day jail sentence this week, Sotomayor demurred.

“You know I wouldn’t answer that question,” Sotomayor said with a grin. “But I really admire your chutzpah.”

Kagan’s Harvard fundraising a SCOTUS pitfall?

Could one of the traits that made Elena Kagan a successful law school dean create problems for her as a Supreme Court justice?

Fundraising is an essential duty of any law school dean. While at the helm of Harvard Law School, Kagan’s “Setting the Standard” fundraising program set records – not just for Harvard but for all schools. Kagan’s success was based largely on her ability to woo deep-pocketed alums to give back to their alma mater. The result: about $303 million pulled in during her tenure.

But what happens when those donors come before the Supreme Court as lawyers, plaintiffs or defendants?

Attorneys representing other clients before the Court probably won’t present and potential ethical problems, experts said according to this Associated Press report. But donors who end up before the Court as parties to a dispute just might pose a dilemma, experts say.

“You need two things” to raise ethical questions, Stephen Gillers, a New York University Law School professor and legal ethics expert, told the AP. “You need a contribution so large that we could say that Dean Kagan would feel a sense of great personal gratitude and then you need a case in which the donor had a significant personal or business interest before the court.”

And that may not be such a rare combination. For example, one hefty donor – Sumner Redstone – is chairman of the board of CBS Corp. and Viacom. Viacom is a party in a closely-watched $1 billion copyright infringement lawsuit against YouTube and Google that is heading up the appellate ladder, and could end up before the High Court. If Kagan is on the bench, she may have to recuse in that and other donors’ matters, experts said.

Report: Justice Kennedy says he’ll stay put

Any of you making bets on which Supreme Court justice will retire next may want to avoid putting any money on Justice Anthony Kennedy.

According to a report by The New York Daily News [hat tip to ABA Journal], the justice recently told friends that he is not going anywhere – at least not for the next three years or so.

Kennedy, who turns 74 later this month, reportedly told pals that he will still be on the bench after President Obama’s first term concludes. The story, which attributes Kennedy’s comments to anonymous sources, notes that a spokesperson for the Supreme Court said Kennedy could not be reached for official comment.

Known as the Court’s “swing” voter for often casting the deciding vote in crucial 5-4 rulings, Kennedy’s potential retirement next term could have wide implications for the Court. If Obama were to win a second term, Kennedy’s departure could give him the chance to change the political balance of the court with a more liberal-leaning jurist. If a Republican is seated in the White House, the addition of a conservative judge could tilt the largely divided Court to the right.

Justice Department to file suit over AZ immigration law today

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption – a doctrine that has been well-established and upheld by the Supreme Court – should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.