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Confirmation battles loom over D.C. Circuit

Setting the stage for what could be the biggest judicial confirmation battles since his Supreme Court picks went before the Senate, President Barack Obama made three nominations to the U.S. Circuit Court of Appeals in D.C. – considered by most to be the second most powerful court in the country.

And with his nominations of attorney Patricia Ann Millett, U. S. District Court Judge Robert Leon Wilkins and Georgetown law professor Cornelia Pillard, Obama warned members of the Senate not to use stalling tactics or block the nominees.

“Chief Justice John Roberts, the Chief Justice of the highest court in the land, and former member of the D.C. Circuit Court says they need 11 judges,” Obama said yesterday in announcing the nominees.  “So it’s important we don’t play games here, and it’s important that we cut through the verbiage.”

The president also blasted a GOP proposal to reduce the number of judges on the court, which has long been one of the most fertile source of Supreme Court justices. Four of the nine current justices are former D.C. Circuit judges.

“When a Republican was President, 11 judges on the D.C. Circuit Court made complete sense.  Now that a Democrat is President, it apparently doesn’t.  Eight is suddenly enough,” Obama said, drawing chuckles from the crowd gathered in the White House lawn.  “People are laughing because it’s obviously a blatant political move.”

Sen. Chuck Grassley, R-Iowa, blasted what he called an attempt by the president to pack the appellate court for political gain. “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda,” said Grassley.  “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.”


Obama wanted to try bin Laden in civilian court

If Osama bin Laden has been captured alive, President Barack Obama’s preference would have been to for him to have been tried in civilian court, according to author Mark Bowden.

In a Vanity Fair piece [HT: Law Blog] adapted from Bowden’s book “The Finish,” Obama is quoted:

“We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantanamo, and to not try him, and Article III. I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

They may not have been an easy task, given the opposition Attorney General Eric Holder faced in his failed attempt to try accused terrorist Khalid Sheikh Mohammed in a federal criminal court in New York.

Supreme Court could take up smoky First Amendment issue

Could the battle over a federal rule requiring prominent warnings on cigarette boxes and other tobacco product packaging be headed for the U.S. Supreme Court?

Last year, the Food and Drug Administration unveiled a series of graphic labels – featuring images such as a man exhaling cigarette smoke through a tracheotomy hole, cancerous mouth sores and a post-autopsy cadaver – that tobacco companies would be required to place prominently on its products under the Family Smoking Prevention and Tobacco Control Act.

But the companies sued in federal court, claiming the labeling requirement violated their First Amendment rights. Friday, the D.C. Circuit created an appellate split by ruling in the tobacco companies’ favor – a decision at odds with a 6th Circuit ruling in March holding that there was no violation. The split makes the issue ripe for Supreme Court consideration.

More on the regulations and appellate decisions from Lawyers USA.

Kennedy defends judicial gathering, blasts the confirmation process

(Photo: 9th Circuit)

At the 9th Circuit’s judicial conference in Maui – which drew the ire of some lawmakers due to its $1 million taxpayer-funded tab – Justice Anthony M. Kennedy defended the gathering, saying it was important for members of the judiciary and the bar to gather to continue to educate themselves and advance the rule of law.

“The circuit conference is a prudent and a proper exercise of the judicial function,” Kennedy said in his remarks at the conference on Monday. “If the American public knows, and they should know, of what we do at this conference, they would be and should be immensely proud, not only the judiciary and the members of the academy and of the bar who are here, but of the idea of law in itself.”

Kennedy also criticized the judicial confirmation process, which he said has been damaged by partisan politics. “This is bad for the legal system,” Kennedy said. “It makes the judiciary look politicized when it is not, and it has to stop.”

Million-dollar judicial getaway irks solons

Despite facing criticism from GOP lawmakers, a pricey Hawaiian judicial conference attended by lawyers, judges and two Supreme Court justices took place this past weekend.

The 9th Circuit conference, held in Maui (which is, indeed, in the 9th Circuit, after all) drew the ire of Sens. Charles Grassley, R-Iowa, and Jeff Sessions, R-Ala., who balked at the meeting’s $1 million price tab and urged Chief Judge Alex Kozinski to call the whole thing off, the Washington Examiner reports.

But in a letter to the lawmakers last week, Kozinski said that it was too late to cancel the event without facing pricey penalties, and because many of the event’s attendees – which included Justice Anthony M. Kennedy and Justice Samuel A. Alito, Jr. – had already purchased nonrefundable tickets.

“In hindsight, had we foreseen the nation’s current fiscal problems, we may have chosen a different site for this year’s conference,” Kozinski wrote to the senators, adding that future conferences will be held in California, closer to where most judges live. More on this weekend’s program from the Atlanta Journal-Constitution.

O’Connor praises former clerk’s judicial nod

President Barack Obama announced new federal judicial nominations yesterday, and one candidate for Washington’s federal court of appeals has a high-profile advocate on his side.

“It’s a wonderful choice,” retired Justice Sandra Day O’Connor told The New Yorker’s Jeffrey Toobin about the nomination of Sri Srinivasan to the D.C. Circuit. “I’m sure he would be a good appellate court judge.”

Srinivasan clerked for O’Connor during the Court’s October 1997 term, and went on to work on the solicitor general’s office as well as the Washington office of O’Melveny and Myers. He’s now back at the Justice Department serving as Principal Deputy Solicitor General.

O’Connor told Toobin that there should be no roadblock to his confirmation.

“He’s not anybody who’s been politically active, he’s been very serious in his work habits, and people have had an ample opportunity to see his work,” she said. “I think he’s been steady and impressive.”

Holder backs Obama’s statements, says Courts must presume federal laws’ constitutionality

When the 5th Circuit speaks, the Justice Department listens – and responds.

In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, Attorney General Eric Holder backed comments made earlier in the week by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

Earlier this week, Obama suggested at a news conference that overturning the health care law would amount to “judicial activism.”

For more on Holder’s memo, see the full story on Lawyers USA online.

Meanwhile, Senate Minority Leader Mitch McConnell has chimed in on the matter.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” McConnell said during a speech on Thursday, according to CNN. “Respectfully, I would suggest the president back off.”

Reid tries to make a deal to end judicial nominee backlog

Yesterday, Senate Majority Leader Harry Reid had an offer he hoped Senate Republicans would not refuse: a quick vote on the GOP-backed Jobs Act in exchange for bringing 17 judicial nominations to a vote.

But according to NBC’s Libby Leist (via The Wall Street Journal’s Law Blog) Republicans rebuffed the move, accusing Reid of holding up the jobs bill to force a vote in nominated federal judges. Republicans have been blocking judicial nominees in protest of President Barack Obama’s recent recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau.

In making the offer for a swift vote on the JOBS bill, Reid said on the floor: “The only thing preventing the Senate from moving quickly to tackle [the JOBS Act] is what we’ve had this whole Congress: obstructionism by my friends, the Republicans.”

But Senate Minority Leader Mitch McConnell fired back. “I think most Senators would rather be working on things that the American people believe would actually help create jobs than to see the Senate embroiled in another controversy which I fear my good friend, the majority leader, is seeking to precipitate,” McConnell said.

Santorum outlines judicial plan, calls Gingrich’s ‘a step too far’

Newt Gingrich isn’t the only GOP presidential candidate with plans to revamp the judiciary.

Former Sen. Rick Santorum talked about his plans for federal courts last week. Among his ideas: abolishing some federal courts and taking other measures to rein in the judiciary.

“The third branch of government is in fact too powerful in the structure of government today with respect to checks and balances,” Santorum told a New Hampshire crowd, according to the National Journal. “They have become a super legislature. They have become in effect most powerful of the three [branches of government], and they should be the least.”

Although Santorum said his ideas fall to the right of that of most Republicans – he would, among other things, do away with the 9th Circuit entirely – he said he believed Gingrich’s plan to subpoena and arrest judges and bring them before Congress to explain rulings adverse to the White House  goes a “step too far.”

In defending colleagues, did chief justice insult federal judges?

As critics of Justices Clarence Thomas and Elena Kagan amplify their calls for the justices to recuse themselves from the health care case, Chief Justice John G. Roberts used his annual year-end report on the judiciary to defend his colleagues.

But in doing so, did the chief justice take a swipe at federal judges on the nation’s lower courts? At least one thinks so, according to The Atlantic’s Andrew Cohen.

In explaining why Supreme Court justices need not be bound by the exact same judicial codes as lower court judges, Roberts pointed out what he saw as some differences between justices and judges.

“The Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the Court must sit without its full membership,” unlike federal courts where recused judges are replaced, Roberts wrote. “A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

Those words angered one veteran federal judge, who wrote to Cohen in response, saying Roberts’ statement was “gratuitously insulting all judges and justices who adhere to the law.”

“The duty to sit is just as obligatory as the duty to recuse when the facts require or justify recusal. I don’t suggest that some judges may withdraw ‘as a matter of convenience or simply to avoid controversy,’ but if they do, they are beneath contempt,” commented the judge, whom Cohen did not name.

The judge added: “For ‘convenience or simply to avoid controversy,’ I have about 35 class actions, a death penalty habeas corpus case requiring my personal examination of over 10,000 pages of transcripts, briefs and opinions – to say nothing of the idiotic Fair Debt Collection Practices Act cases plaguing my docket that have all the sophistication of traffic violations – it would be a relief to withdraw from, if I had not taken an oath. I think it’s the same oath the chief justice took.”