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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)

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)

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)

Friday morning docket: Shakeup over ‘shakedown’ comment

All eyes were on Capitol Hill yesterday as lawmakers grilled BP CEO Tony Hayward over the company’s handling of the ongoing oil spill in the Gulf.

But one lawmaker’s apology to Hayward has sparked a firestorm. Texas Republican Rep. Joe Barton criticized the White House meeting with BP execs that culminated with the company setting up a $20 billion escrow account in order to pay claims relating to the spill.

“I’m ashamed of what happened in the White House yesterday,” Barton told Hayward. “I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown. In this case a $20 billion shakedown.”

“I do not want to live in a country where any time a citizen or a corporation does something that is legitimately wrong, (they are) subject to some sort of political pressure that … amounts to a shakedown,” Barton continued. “So I apologize.”

The comments drew almost immediate ire from Democrats as well as Barton’s fellow Republicans. House Republican leaders John Boehner, Eric Cantor and Mike Pence issued a joint statement asserting: “Congressman Barton’s statements this morning were wrong. BP itself has acknowledged that responsibility for the economic damages lies with them and has offered an initial pledge of $20 billion dollars for that purpose.”

Vice President Joe Biden called Barton’s remarks “incredibly insensitive, incredibly out of touch.”

Barton quickly backtracked.

“I think BP is responsible for this accident, should be held responsible, and should, in every way, do everything possible to make good on the consequences that have resulted from this accident,” Barton said. “And if anything I said this morning has been misconstrued to the opposite effect, I want to apologize for that misconstruction.”

Meanwhile, today the Clinton presidential library will release another batch from the 160,000 pages of documents it has identified on Elena Kagan’s tenure in Clinton’s White House. About 80,000 pages of e-mails – about 11,000 of them written by Kagan – will be sent to senate lawmakers vetting her Supreme Court nomination today.

In other news,

Too much time for the crime? Most federal trial judges believe mandatory sentences are too long, according to survey results released by the U.S. Sentencing Commission. (Lawyers USA)

Safety first: The Food and Drug Administration has announced that it will begin posting safety data on recently approved drugs and biologics on its website in an effort to better educate patients and health care professionals. (Lawyers USA)

Suing mad: The Obama administration has decided to sue Arizona over the state’s controversial immigration law, according to Secretary of State Hillary Rodham Clinton. (Washington Post)

Gay marriage trial wraps: The federal trial over California’s gay-marriage ban wrapped up with closing arguments from both sides this week. (WSJ’s Law Blog)

Friday morning docket: Kagan’s paper trail gets longer

Here’s hoping lawmakers have had enough time to mine through the first batch of documents on Supreme Court nominee Elena Kagan released last week by the Clinton Presidential Library – all 46,000 pages of them. Because today 40,000 more pages are on their way to Capitol Hill.

The first two batches of documents amount to about half the amount of documents amassed by the library relating to Kagan’s work in the Clinton White House.

Meanwhile, Republican Sens. Jon Kyl and Jeff Sessions are giving more hints about the questions they will post to Kagan during her confirmation hearings, which begin later this month. Today they are taking aim at memo’s Kagan wrote as a clerk for Justice Thurgood Marshall. The lawmakers said that these early writings of Kagan show that she was seeking results based on politics and not the law.

“It indicates a developing lawyer who has a political bent to their legal work – pretty significantly so,” said Sessions, according to the AP.

Meanwhile, President Barack Obama met with families of the 11 workers killed in the oil rig explosion that led to the massive spill in the coast. The families are urging lawmakers to reverse a law that limits the amount of compensation they can receive, per this post on the New York Times’ Caucus blog.

In other news,

Speak, or hold her peace? Will Supreme Court nominee Elena Kagan talk about her views on issues from gay rights to abortion to affirmative action to allowing military recruiters on campus at her confirmation hearings? Should she? (Lawyers USA)

Plaintiff’s peril: Plaintiffs bringing employment discrimination claims often receive modest settlements, if anything at all, according to a new report by the American Bar Foundation. (Lawyers USA)

FDA’s S.O.S.? The Food and Drug Administration’s abilities to protect the public from outbreaks of foodborne illness are hampered by inefficiencies, limited resources and a piecemeal approach to gathering and using information on potential risks, according to a new report by the Institute of Medicine and National Research Council. (Lawyer’s USA)

Military surprise: Tucked into the same Pentagon policy bill as the repeal of “don’t ask, don’t tell” is a little-noticed amendment that takes on making abortion easier for military women in war zones. (NYT)

Friday morning docket: The Kagan papers

Today the Clinton Library is set to deliver the first batch of documents from Supreme Court nominee Elena Kagan’s tenure in the White House, where she served as counsel and as a domestic policy adviser in the Clinton administration.

The papers will be the first of more than 160,000 pages amassed by the library at he request of Senate lawmakers vetting Kagan’s nomination. The documents could also provide some insight into Kagan’s views on some of the issues the administration faced at the time, including gun control and abortion rights.

Meanwhile, Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, wants even more documents on Kagan. He has asked the Pentagon for information relating to its military recruitment efforts at Harvard University during the time Kagan was dean of the law school. The request indicates that Sessions plans to make an issue of Kagan’s objection to military recruiters on campus, which she said violated the school’s anti-discrimination policy since the military barred gays from openly serving.

And if Kagan is going to face some tough questions during her confirmation hearings, which begin later this month, you can’t say she didn’t ask for it. In a 1995 law review article, Kagan lamented the fact that Supreme Court confirmation hearings lacked substantive inquiry. “The practice of substantive inquiry has suffered a precipitous fall since the Bork hearings, so much so that today it hardly deserves the title ‘practice’ at all,” Kagan wrote.

Lawmakers on both sides of the aisle have taken note of Kagan’s comments.

“I talked to her about that essay,” said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, according to the Associated Press. “She said, ‘I think I’m probably going to hear that quoted back to me a few times during the hearing.’

“I said, ‘Starting with me.’”

In other news,

Safety bill advances: A bill that would impose a host of new safety requirements on automobile manufacturers and boost federal authorities’ enforcement capabilities over them has advanced in the House. (Lawyers USA)

Punitive measures: As oil from the massive spill in the Gulf of Mexico continues to spread, lawmakers have introduced legislation that would lift the cap on punitive damages that can be assessed against those responsible for such disasters under maritime law. (Lawyers USA)

Night at the theatre: Justices and other luminaries turned out for yesterday’s opening night of the play “Thurgood” at the Kennedy Center last night. (The BLT)

Immigration chat: Arizona Gov. Jan Brewer and President Obama met to discuss the state’s controversial immigration law. (New York Times)

Friday status conference: Memorial recess edition

Lawmakers are set to begin their Memorial Day holiday recess. But the Supreme Court will be back on Tuesday to issue more orders and opinions.

Meanwhile, here are some headlines:

Hit or misstatements: An annual government audit has found material misstatements in 22 percent of bankruptcy cases. (Lawyers USA)

Freeing the fee: A ruling from the U.S. Supreme Court earlier this week might make it easier for ERISA claimants to recover attorney fees and costs. (Lawyers USA)

Catch-22? Some employment attorneys say the Supreme Court’s Lewis v. Chicago opinion makes it even harder for employers to know how to test job applicants without opening themselves up to employment discrimination liability. (Lawyers USA)

Kick in the pants: The “pants suit” administrative law judge – yes the same one who unsuccessfully sued his dry cleaners for $54 million over a lost pair of pants – is having no better luck in the courts with his wrongful termination suit. (BLT blog)

You be the judge: “I am happy to see that this latest nominee is not a federal judge — and not a judge at all,” said Justice Antonin Scalia. (Washington Post)

Friday morning docket: Next week will be Supreme

All will be quiet next week at the U.S. Supreme Court as the justices continue their post-argument season recess.

But we do expect some Court-related activity at the White House early next week, when President Barack Obama is expected to name his pick to replace retiring justice John Paul Stevens. All oddsmakers are saying it’ll be Solicitor General Elena Kagan who gets the nod, although Obama has also interviewed federal appellate Judges Sidney Thomas, Merrick Garland and Diane Wood.

Meanwhile, lawmakers are focused squarely on financial reform. But the Supreme Court is creeping into that discussion too. Take, for example, Sen. Arlen’s Specter’s bid to add an amendment to the bill witch would allow for third-party liability in securities fraud cases by overturning the U.S. Supreme Court’s ruling in Stoneridge Investment Partners v. Scientific-Atlanta Inc.

In other news,

Putting on the brakes: Lawmakers are working on a bill that would impose far-reaching safety standards on the auto industry. (New York Times)

Out of the park: Justice John Paul Stevens really did see Babe Ruth’s famed called shot. He doubted his memory briefly, but then put one of his law clerks on the case to verify. (Chicago Sun-Times)

Judge delayed? The Senate judiciary Committee’s GOP members delayed action on 9th Circuit nominee Goodwin Liu for at least a week. (The Hill)

‘Honest’ waiting game: Solicitor General Elena Kagan said the Supreme Court’s upcoming rulings on the “honest services” fraud cases will effect  the Justice Department’s approach to a wide range of criminal prosecutions. (Wall Street Journal)

Friday morning docket: ‘Epic battle’ awaits SCOTUS nominee

The next Supreme Court nominee will face an “epic battle” to get to the high court, no matter who the nominee is.

That is what the White House is expecting, according to U.S. News & World Report. White House officials have been talking with members of the Senate and also having small informal meetings with progressive groups to discuss candidates, reports CNN.

The three candidates still reportedly at the top of President Obama’s list are Solicitor General Elena Kagan, 7th Circuit Judge Diane Wood and D.C. Circuit Judge Merrick Garland. Kagan is reportedly the frontrunner.

Her potential nomination has already drawn criticism from some conservatives, who have taken aim at an email she sent as Dean of Harvard Law School blasting the military’s policy prohibiting open gay people from serving. In the email, Kagan criticized the university’s decision to allow military recruiters on campus despite the rule, which she said violated the university’s anti-discrimination policy.

But her nomination may draw criticism from progressives as well, based on part on her defense of the administration anti-terror policies as solicitor general.

“There’s a real concern about Solicitor General Kagan with respect to national security issues,” Vincent Warren, executive director of the Center for Constitutional Rights, told CNN. “I certainly can’t see anything that would lead me to believe that she would have a less expansive version of what executive power is than, certainly, the current form, and certainly with respect to how George Bush viewed it. So I think there’s a real concern for human rights groups, if Elena Kagan is on the court, how that Supreme Court would know expansive and illegal executive power when they see it, and what they would be able to do about it.”

Meanwhile, President Obama and Vice President Biden interviewed 9th Circuit Judge Sidney Thomas of Montana for the job, the Associated Press reports. The hour-long meeting at the White House yesterday is the first known formal interview of a Supreme Court candidate.

In other headlines:

Black pick unlikely: Lawmakers briefed on the nomination process said it is unlikely that Obama will advance a black nominee to the high court (The Hill)

‘We like judges!’:More than two-thirds of those surveyed in a new Washington Post-ABC News poll said judicial experience is a positive quality for a Supreme Court nominee. But only 35 percent view experience outside the legal world as a positive. (Washington Post)

Business bankruptcies soar: The number of bankruptcies involving primarily business debts soared last year, according to figures released by the federal judiciary. (Lawyers USA)

New FDA device review policy: In an effort to streamline the premarket expert panel review process for medical devices, the Food and Drug Administration has announced changes in the way data and information is discussed during public hearings on devices under review. (Lawyers USA)

Friday morning docket: a public (and incorrect) outing

White House officials were incensed yesterday by a CBS News online column asserting that Solicitor General Elena Kagan, who is reportedly at the top of President Obama’s Supreme Court nominee list, is a lesbian.

According to the Washington Post‘s Howard Kurtz, White House officials immediately assailed the column, written by former Bush aide Ben Domenech, which a asserted that the choice to put the first “openly gay justice” on the bench would please Obama’s base. White House officials said Kagan is not gay.

At first CBS officials refused to pull the online post. Instead, Domenech added an update saying Kagan was apparently “still closeted.”

But by the end of the day yesterday, executives at CBS pulled the column, saying it “just got through our filters” and that such an allegation should not have been published without “more evidence of its accuracy.”

Domenech later apologized, saying the information was based on rumor. “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post,” he said.

Anita Dunn, a former White House communications director who is helping White House officials with the Supreme Court nomination process, blasted the news organization for giving such a long leash to a writer who has faced plagiarism charges in the past.

“The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010,” Dunn told the Post, adding that such stories “appl(y) old stereotypes to single women with successful careers.”

Meanwhile, in other headlines:

The genteel justice: Retiring Justice John Paul Stevens’ oral argument questions are as tough as any other justice, but they come in a much more polite form. Supreme Court practitioners reflect on being asked: “May I ask you this question?” (Lawyers USA)

No fast audio: For the seventh time this term, the Supreme Court has declined a request to release same-day audio of oral arguments to broadcast stations. This is the first term in four years where no same-day audio was released, despite several high-profile cases on the docket dealing with campaign finance rules, gun rights, and Monday’s First Amendment school case. (ABA Journal)

Med-mal debate rages: A letter to AAJ’s membership about the health care law was quickly assailed by tort reform groups, demonstrating that the debate over medical malpractice reform will live long after lawmakers’ wrangling over the legislation’s language. (Lawyers USA)

Same-sex visitation rights: The Obama Administration will issue new rules aimed at granting hospital visiting rights to same-sex partners. (New York Times)

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