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Monthly Archives: November 2011

Pleasantries in the Chief Justice’s absence

Yesterday was an unusual day at the U.S. Supreme Court. During yesterday’s oral arguments in the case Credit Suisse Securities v. Simmonds, Chief Justice John G. Roberts did not participate. That left Justice Antonin Scalia, the Court’s most senior associate, in charge of things.

Jeffrey B. Wall, assistant to the solicitor general, had the unusual task of arguing as amicus in support of neither party – instead offering an alternative approach to the Court in the securities case. At the end of Wall’s argument, he also offered an atypical coda on the government’s behalf:

“We’ve occupied the reasonable middle ground. Hope you like it.”

As the audience and the justices laughed, Scalia replied: “Thank you, Mr. Wall. That’s a nice note on which to end.”

Bah, humbug! AG nixes DOJ holiday party

The justices of the U.S. Supreme Court and other Washington bigwigs will have to find alternative ways to be festive this year after Attorney General Eric Holder called off the Justice Department’s annual holiday party for budgetary reasons.

The Justice Department affair usually drew hundreds of Washington officials, from agency heads to Supreme Court jurists, reports the Washington Post’s In the Loop. The fete featured top-shelf drinks and fancy food – “we’re not talking munchies here,” the Post’s Al Kamen observed – as well as a chance for Washington’s powerful to rub elbows.

But Holder is not the only one mindful of the current tough economic situation. The FBI has also canceled its holiday party, and the Defense Department and other agencies are opting for scaled-down holiday celebrations this year.

Happy Turkey Day

The president has pardoned turkeys Liberty and Peace at the White House, which means it’s time to wish our readers a happy and safe Thanksgiving.

DC Dicta will return Monday, when oral arguments resume at the U.S. Supreme Court.

ABA panel nixed Obama’s judge candidates

UPDATED AND CORRECTED: Because sometimes this blogger writes a little too early in the morning before her eyes are fully working properly, this blog post erroneously stated that more than 90 percent of suggested federal judge nominees received the poorest rating from the ABA vetting panel. It was actually the reverse – more than 90 percent did not receive that rating. DC Dicta regrets the error.

The vast majority of the Obama administration’s potential judicial nominees were rejected before they reached the nomination stage – all due to poor ratings by the American Bar Association.

The New York Times reports that the ABA’s judicial vetting committee gave more than 90 percent of the president’s proposed federal judgeship candidates ratings of “not qualified.” Correction: the committee gave 14 or 185 judge candidates the rating of “not qualified.”

In three years, the committee has already given the lowest rating to more potential Obama nominees than it gave to potential nominees during the eight-year administrations of President Bill Clinton or President George W. Bush, according to the Times report.

The identities of the particular nominees who were rejected has not been disclosed, but according to the sources cited in the Times report, most were women or members of minority groups. The Obama administration has expressed a policy goal to diversify the benches of the nation’s federal courts.

Obama’s White House counsel, Kathryn Ruemmler, said in a statement: “Although we may not agree with all of their ratings, we respect and value their historical role in evaluating judicial candidates. The president remains committed to addressing the judicial vacancy crisis with urgency and with qualified candidates who bring a diverse range of experience to the bench.”

Lawmakers turn up pressure on Thomas, Kagan over health care conflict questions

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

20-year-old video of law student Barack Obama hits YouTube

A 20-year-old public service announcement that hit YouTube yesterday is drawing a lot of attention because of the speaker: then Harvard Law Review editor Barack Obama.

The young Obama narrated a “Black History Minutes” PSA which aired on television back in 1991. In the minute-long video, Obama recognizes the life of lawyer Charles Hamilton Houston who, Obama says, “masterminded the strategy that eventually lead to the historic decision of Brown v. Board of Education, which reversed the Supreme Court’s decision on ‘separate but equal.’”

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HT: ABA Journal

Lawmakers want Supreme Court health care arguments televised

Lawmakers from both parties are urging the U.S. Supreme Court to allow video coverage of oral arguments in the cases challenging the constitutionality of the federal health care overhaul next spring.

Tuesday, Sen. Chuck Grassley, R-Iowa, sent a letter to Chief Justice John G. Roberts and the associate justices urging them to make an exception to the rule barring cameras in the courtroom for the health care case.

“The decision in this case has the potential to reach every American,” Grassley said in the letter.  “The law is massive in size and scope.  The effect of the law, and the Court’s decision, will reverberate throughout the American economy. …A minimal number of cameras in the courtroom, which could be placed to be barely noticeable to all participants, would provide live coverage of what may be one of the most historic and important arguments of our time.  Letting the world watch would bolster public confidence in our judicial system and in the decisions of the Court.”

Yesterday, House Democratic Leader Nancy Pelosi, D-Calif., echoed Grassley’s call.

“When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Pelosi said in a statement. “Openness and transparency are essential to the success of our democracy, and in this historic debate, we must ensure the ability of our citizens to take part.”

Earlier this year Grassley, ranking member on the Senate Judiciary Committee, introduced legislation that would give chief judges in federal trial and appellate courts the right to decide whether cameras would be allowed in court proceedings. The committee advanced the bill in April.

In email, SG Kagan called health care bill support ‘simply amazing’

Emails recently obtained by conservative government watchdog Judicial Watch reveal that in 2010, then-U.S. Solicitor General  Elena Kagan was in a celebratory mood when she learned there was enough Senate support to pass the Obama administration’s health care overhaul.

“I hear they have the votes Larry!!” Kagan wrote in a March 21, 2010 email exchange with Laurence Tribe,  who was then a White House senior advisor. “Simply amazing…”

Some Republican lawmakers have called for an investigation to determine if Kagan had any role in the implementation or defense of the health care law when she was solicitor general.

Neither Kagan nor Clarence Thomas – who is also the object of calls by some to recuse from the case based on his wife’s connections to groups urging that the law be struck down – indicated that they would recuse themselves from the case when the Court granted certiorari Monday.

“These new emails are bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare,” said Judicial Watch President Tom Fitton in a statement. “Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate.”

Health care stakeholders fete Scalia, Thomas

Hours after the justices of the U.S. Supreme Court conferenced to consider the challenge to the federal health care overhaul Thursday, two justices were the featured guests at an event co-sponsored by a number of stakeholders in the case.

According to the Los Angeles Times, among the sponsors of Thursday night’s Federalist Society annual dinner, which honored Justices Antonin Scalia and Clarence Thomas, was the law firm Bancroft. Bancroft partner and former Solicitor General Paul Clement is the lead attorney in one of the three health care cases the Court agreed to take up.

Another sponsor of the event was Jones Day, which represents one of the trade associations that also challenged the law.

And a third sponsor was pharmaceutical company Pfizer, which obviously has a financial stake in the cases’ outcome.

Of course, those were among a dozen sponsors of the event, and at the time the parties had no way of knowing that the Court had voted to take the cases up earlier that day. The Court didn’t announce its certiorari grant until Monday morning. Also, as the Times pointed out, the justices have attended Federalist Society events for years, and their attendance breaks no ethics rules.

Health care case gets full Court – Kagan and Thomas included

When the U.S. Supreme Court granted certiorari to decide the constitutionality of the federal health care law’s individual mandate, as well as several other jurisdictional and substantive issues, there was a notable omission: no mention was made about recusal of any justice from the decision.

Despite calls from advocates on both sides of the political spectrum for Justices Clarence Thomas and Elena Kagan to remove themselves from any consideration of the health care case, all indications suggest both will be present during the 5 ½ hours of oral arguments slated for the spring. Normally a justice who recuses from a particular case will indicate it in the cert order. But no such indication was made yesterday by Thomas or Kagan.

Critics of Thomas cite the work of the justice’s wife, Virginia “Ginni” Thomas, founded a Tea Party-affiliated group that has called the health care law unconstitutional and worked for the Heritage Foundation, which also opposes the health care law.

Meanwhile some Republican lawmakers have called for an investigation into the role Kagan played in preparing the legal defense to challenges to the health care law during her tenure as solicitor general.

Justices decide for themselves whether to sit out any given cases due to some potential conflict.

“Presumably, they made whatever judgments they were going to make,” said Greg Katsas, a Jones Day partner representing one of the petitioners in the case, told The Hill.

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