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Ginsburg says TV makes for long confirmation hearings (access required)

If it seems like Supreme Court confirmation hearings drag on for longer they they should, there is a reason, according to Justice Ruth Bader Ginsburg: the presence of television cameras.

Because the process Senators have for vetting and approving high court nominees is televised, they can’t fight the temptation to play to the cameras, she said.

“The people on the Senate Judiciary Committee have all that free time” to make their case on television, Ginsburg told the audience gathered at the 10th Circuit Judicial Conference Friday in Colorado Springs, according to the AP.

But Ginsburg stopped short of saying how she felt about allowing cameras in the Supreme Court. Instead, she said, her stance would be guided largely by how comfortable her fellow justices are with the idea.

“When you’re sitting on a collegial bench, if there is any of you who would be extremely discomforted … you would defer to that colleague,” she said.

Ginsburg’s audience included Justice Sonia Sotomayor, who was at the conference to give a private address to judges the next day.

Ginsburg’s late husband Martin Ginsburg had been scheduled to address the conference. The justice delivered remarks her husband prepared before he died of cancer in June.

Sotomayor said she was bolstered by opponents (access required)

If it weren’t for her opponents, Justice Sonia Sotomayor may have never become a federal appellate judge – let alone a Supreme Court justice.

Sotomayor, speaking yesterday at Sturm College of Law in Denver, said she was happy as a trial judge when President Bill Clinton tapped her for a post on the 2nd Circuit. But when opponents resisted at her nomination, it made her want it more.

“If they hadn’t fought so hard, I would have given up earlier,” she said, according to the Denver Post. “I didn’t want to let them beat me.”

When asked if her Puerto Rican ethnicity caused her to face bias, Sotomayor suggested it was the reason some critics questioned her intelligence during her Supreme Court confirmation hearings.

“People kept accusing me of not being smart enough,” Sotomayor said. “Can anyone explain other than I am Hispanic why that would be?”

Wal-Mart asks Supreme Court to rollback gender bias class action (access required)

Retail giant Wal-Mart has asked the U.S. Supreme Court to halt what could be the mother of all employment gender bias class action lawsuits.

Yesterday the retailer petitioned the Court to reverse a 9th Circuit ruling that would allow more than 1.5 million women employees to join a lawsuit alleging the company paid women less than men and passed women over for promotions, reports the Christian Science Monitor. The closely split, 6-5 ruling allows women who worked in any Wal-Mart store since 1998 to join the suit.

The dissenting judges in the case noted that the women may not share the same circumstances, and they may not have suffered a common injury. One dissenter, Judge Alex Kosinski, wrote: “They have little in common but their sex and this lawsuit.”

Wal-Mart claims that a class action so large would be almost impossible to defend.

“The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined - making it the largest employment class action in history by several orders of magnitude,” wrote Theodore Boutrous in the brief filed with the Supreme Court.

Lawmakers wants to end Supreme Court’s closed door policy (access required)

When the Supreme Court closed its front doors to the public, ending the practice of having visitors ascend the great marble staircase in front of the building and pass through the massive, bronze doors under the words “Equal Justice Under Law” (visitors now enter through side doors), not everyone was happy about it. Even two Supreme Court justices objected.

Now, a lawmaker is floating a resolution to try to get the court to reverse itself.

When the decision to close off the front entrance to visitors was announced back in May, the Court cited security reasons. But California Democrat Rep. Anna Eshoo thinks more is at stake. “I think we can address risk without giving up our ideals, our national ideals in terms of justice, openness and access,” she told the Washington Post.

Eshoo introduced a resolution last month blasting the Court’s decision to close the doors, and now has 30 co-sponsors. While little action is expected on the move this session, she said she will reintroduce it next year if necessary.

The decision to close the doors drew a dissent of sorts from Justice Stephen Breyer, who wrote in a statement: “I think the change is unfortunate, and I write in the hope that the public will one day in the future be able to enter the Court’s Great Hall after passing under the famous words ‘Equal Justice Under Law.”

“Each of these elements does its part to encourage contemplation of the Court’s central purpose, the administration of justice to all who seek it,” Breyer wrote. The statement was also signed by Justice Ruth Bader Ginsburg.

Court begins taking note of cases Kagan will sit out (access required)

Yesterday, in addition to ending the bid by birther lawyer Orly Taitz to toss $20,000 in court-imposed sanctions, the U.S. Supreme Court dealt with some housekeeping matters- inducing noting some cases in which Justice Elena Kagan will not take part.

The Court made notations in three pending cases from which Kagan will recuse herself, reports SCOTUSblog:

One case, Staub v. Proctor Hospital, asks when an employer can be held liable under a “cat’s paw” theory of employment discrimination, where the unlawful intent came not from the ultimate decisionmaker but from a non-decisionmaker who influenced the decision.

In Michigan v. Bryant the remaining Court will decide whether a shooting victim’s statements to police shortly before his death constituted inadmissible testimonial statements under the Sixth Amendment. The state court ruled the statements were inadmissible under Crawford v. Washington.

And in Henderson v. Shinseki, the court will decide whether the 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran’s claim for disability benefits constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine.

During her confirmation hearings, Kagan indicated about a dozen cases from which that she would be recused, and that number can grow depending on what other cases the Court agrees to hear next term. In all, experts expect the total number of recusals to be around 20. More on the potential impact of those recusals here from Lawyers USA.

Monday status conference: Supremes’ summer break activities (access required)

So, what do the justices of the U.S Supreme Court do during these summertime months when the Court is not in regular session?

Some head to their hometowns, like Justice Sonia Sotomayor. Speaking at an event Saturday at Lehman College in her native Bronx, Sotomayor told a group of children that, in a way, she is really just “Sonia from the Block.” Like her friend Jennifer Lopez, Sotomayor explained, she too can be called “J.Lo.”

“I’m the justice of law and order from the Bronx,” Sotomayor joked to the group of children participating in the Bronx Children’s Museum’s Dream Big Initiative, according to the New York Daily News.

Justice Antonin Scalia, on the other hand, spent part of the summer at a more distant locale: Italy. There he taught a course as part of the overseas program of Loyola University’s Law School. And according to one student, he was a hit – despite his reputation for being tough.

“We didn’t know if he would be mean,” student Lauren Anderson, told the Illinois-based Southtown Star. “He’s really funny and sarcastic. He definitely keeps you interested in the class.”

The Court’s newest member, Justice Elena Kagan, wasted no time preparing for next term. She has already hired her law clerks, The National Law Journal reports.

Justice Samuel Alito did a little work as well – and it raised a few eyebrows in the blogosphere. But just because Alito referred a request for a stay by Orly Taitz – a persistent litigant in the so-called “birther” movement who is fighting a $20,000 court fine – to the full Court doesn’t mean Alito is questioning President Obama’s citizenship.

“The Justices have a policy of referring these second requests to the full Court so that applicants don’t succeed in cherry-picking who will hear their stay requests,” Tom Goldstein, a lawyer and publisher of SCOTUSblog, told TPMmuckraker.

And while we don’t know where Justice Stephen Breyer was yesterday, but we do know that he turned 72. Happy Birthday, Justice!

In other news:

Background checks backfiring? The Equal Employment Opportunity Commission is stepping up scrutiny of hiring policies – including the use of criminal background and credit checks – that can have a negative impact on members of minority groups. (AP via Lawyers USA)

Small biz bankruptcy bill filed: When Congress returns from summer recess, the Senate Judiciary Committee is set to consider a measure that would change the way small businesses reorganize in bankruptcy. (Lawyers USA)

Tougher drug device rules? The Food and Drug Administration is considering measures to strengthen and clarify a premarket review process for medical devices that do not need to undergo a full premarket approval review. (Lawyers USA)

Putting the brakes on Toyota claim: An initial federal investigation shows no signs of problems with Toyota’s electronic throttle system. (Lawyers USA)

Is substitute SCOTUS plan too ‘left field’ for GOP? (access required)

The retirement of Justice John Paul Stevens created something we haven’t had in quite some time: the existence of three living former Supreme Court justices.

And it was Stevens himself who reportedly gave Senate Judiciary Committee Chairman Patrick Leahy an idea: allow retired justices to sit in on cases when a current justice recuses himself or herself.

Leahy talked about floating legislation that would allow that to happen in the past, and again more recently.

“This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality,” Leahy told the Washington Post about the plan.

But is that a plan Republicans can get behind?

Although all three retired justices – Stevens and Justices Sandra Day O’Connor and David Souter – were appointed to the bench by Republicans, they were ultimately known for taking a moderate-to-liberal stance in their high court jurisprudence. If one of the more conservative justices – or even Justice Anthony Kennedy, the so-called “swing voter” – has to sit a case out, might adding Stevens, O’Connor, or Souter to the mix create an instant leftward swing?

TPMDC put that question Judiciary Committee’s ranking member Sen. Jeff Sessions as well as the White House. Neither was available for comment.

Ginsburg wishes confirmations were less partisan (access required)

There was a time where Supreme Court nominees were overwhelmingly supported by the Senate. But the last three Supreme Court justices were confirmed with votes that largely fell long partisan lines, save a few exceptions. Justice Ruth Bader Ginsburg likes the old way better.

“With ABA encouragement, may the U.S. Senate some day return to the collegial, bipartisan spirit that Justice [Stephen] Breyer and I had the good fortune to experience,” Ginsburg told an applauding audience during an address to the American Bar Association House of Delegates yesterday.

Ginsburg, who received the ABA Medal – the association’s highest honor – at the event in San Francisco, said she was concerned about partisan opposition when she was first nominated to the D.C. Circuit in 1980.

“It was late the [President Jimmy] Carter’s term, and not clear that any more of his judicial nominees would get through,” Ginsburg explained. “And there was more than a little concern that opposition might be spurred by my affiliation with the American Civil Liberties Union as one of the union’s general counsel and co-founder of its Women’s Rights Project.”

But she received the ABA’s highest rating – “well qualified” – buoying her nomination, she said.

“And that rating made me invulnerable to attack as unfit for the appointment,” Ginsburg said.

When she was nominated by President Clinton to the Supreme Court 13 years later, “no senator so much as mentioned my ACLU connection” during the confirmation hearings, Ginsburg said.

Ginsburg was confirmed with a Senate vote of 96-3. Breyer was confirmed by a vote of 87-9.

By contrast, Justice Elena Kagan was confirmed last week with a 63-37 vote with only five GOP senators backing her, Justice Sonia Sotomayor was confirmed last year by a vote of 68-31 with eight Republican backers, and Justice Samuel Alito’s 2006 Senate confirmation vote was 58-42, with four Democrats voting in his favor. Each received a “well qualified” rating from the ABA.

See Ginsburg’s remarks here, courtesy of ABA Journal.

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