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Monday status conference: Obama blasts logjam on noms (access required)

Summer recess is over for members of Congress, who return to work today in Washington. And President Barack Obama has a message for some members of the Senate: give his judicial nominees and other picks a vote.

“I’ve got people who have been waiting for six months to get confirmed, who nobody has an official objection to and who were voted out of committee unanimously, and I can’t get a vote on them,” Obama said at a White House news conference Friday, according to the BLT Blog.

Obama bemoaned the fact that nominees for federal judgeships and other posts have been stalled by Senate Republicans using procedural speed bumps, if not filibusters.

“We’ve got judges who are pending. We’ve got people who are waiting to help us on critical issues like homeland security,” he said. “And it’s very hard when you’ve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person.”

Meanwhile, Supreme Court Justice Elena Kagan made her social debut as a member of the nation’s highest court. Kagan accompanied Justice Ruth Bader Ginsburg to opening night at the Washington National Opera‘s “Un Ballo in Maschera” Saturday.

In other news:

Sotomayor on the road: During a whirlwind trip where she met with law school students, lawyers, community leaders and the judges before addressing a crowd of 1,300 at the annual dinner of the Legal Aid Society of Cleveland, Justice Sonia Sotomayor said: “It feels like I met all of Cleveland. You rock.” (Cleveland Plain Dealer)

Immigration shift: Although the number of deportations has risen to record levels under the Obama administration, the White House has enacted new policies that will reduce the chances of deportation for millions. (AP’s The Upshot)

Eight-judge bench: The number of cases from which Kagan will recuse herself – based on her involvement as solicitor general and/or other reasons – stands today at 21. (BLT via ABA Journal)

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)

Monday status conference: the Empire Court (access required)

Now that Justice Elena Kagan has joined the U.S. Supreme Court, might the new theme song at One First St., NE be “Empire State of Mind” by Jay-Z and Alicia Keys?

Could be, since a majority of the justices on the high court can call themselves natives of New York State.

Chief Justice John G. Roberts, Jr. was born in Buffalo, N.Y. Although he moved with his family to Indiana when he was in grade school, he remains a Buffalo Bills fan.

Four other justices have strong ties to New York City. Justice Ruth Bader Ginsburg was born and raised in Brooklyn. Justice Antonin Scalia was born in Trenton, N.J., but he grew up in Queens. Justice Sonia Sotomayor hails from the Bronx, and is a avid Yankees fan.

Despite residing for some time in Massachusetts at the helm of Harvard Law School – at her confirmation hearings she was introduced by Massachusetts Sens. John Kerry and Scott Brown – Kagan hails form Manhattan and roots for the Mets.

To play on Jay and Alicia’s lyric: “The Supreme Court – marble palace where dreams are made of; There’s nothing you can’t do.”

In other news:

Important questions: Will Justice Kagan wear a frilly little neck piece with her robe? This and other pressing questions, answered! (Slate)

Busy schedule: In addition to having active Supreme Court practices and litigating the Proposition 8 case up the appellate system, Ted Olson and David Boies will also co-chair a new ABA Task Force on the Preservation of the Justice System. (ABA Journal)

Roberts v. Kagan? Will we see an ongoing Supreme Court battle between Kagan and Roberts? (WSJ’s Law Blog)

Monday status conference: While Kagan advances, other Obama picks lag (access required)

This week the full Senate will take up the nomination of Supreme Court nominee Elena Kagan. And although she is expected to easily win confirmation on a vote that will largely fall along partisan lines, a few lawmakers are expected to break party ranks – including Sen. Ben Nelson, the first Democrat to announce his intention to vote against Kagan.

“I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded,” Nelson said in a statement Friday.

Meanwhile, another GOP Senate member – Sen. Judd Gregg – announced that he would vote for Kagan, bringing the latest tally of Republicans supporting the candidate to five.

While Kagan’s nomination has proceeded without much delay, the same cannot be said for President Obama’s non-Supreme Court judicial picks.

Many of Obama’s nominees for federal trial and appellate courts have languished in the Senate, facing a bottleneck effect caused both by Obama’s slow start in naming nominees and Senate Republicans’ efforts to block votes on the nominees. And GOP lawmakers admit that they are paying Senate Democrats back for stalling former President Bush’s nominees.

“My perspective on the 4th Circuit covers a little longer period of time,” said Senate Republican Leader Mitch McConnell after blocking 4th Circuit nominee Judge James Wynn from getting a vote on the Senate floor two weeks ago.

In other legal news,

Candid Scalia: During a speech in Montana, Justice Antonin Scalia was in rare form, calling the Supreme Court confirmation process “absurd political theater,” the State of the Union address  a “silly spectacle,” requesting the removal of a crying baby from the auditorium and asking news photographers to stop taking his picture. During his remarks he also said: “Nothing that I learned in my courses at Harvard law school, none of the experience I acquired practicing law qualifies me to decide whether there ought to be, and hence is, a fundamental right to abortion or assisted suicide.” (Washington Post)

Ginsburg’s foreign view: In an equally candid address, Justice Ruth Bader Ginsburg chastised Senate Judiciary Committee members for suggesting that looking to foreign law is a no-no. “[It's] very wrong…to charge that citing foreign law is a recent heresy advanced by liberal activist judges in pursuit of their political preferences,” Ginsburg said. (SCOTUSblog)

Cracking the disparity: Congress has sent a bill to the desk of President Barack Obama that would cut the disparity between federal sentences for crack cocaine and powder cocaine offenses. (Lawyers USA)

‘Red flags’ in court: The Federal Trade Commission has urged the D.C. Circuit to reverse a district court ruling that held that regulations designed to combat identity theft don’t apply to attorneys. (Lawyers USA)

Monday status conference: Conservative estimate

“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades – sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Monday status conference: Thomas thinks justices should get out more

The U.S. Supreme Court’s summer recess gives the justices a chance to get out and see the country. And that is a good thing, according to Justice Clarence Thomas, who complains that the justices have become too isolated at the Court – a place he calls an “marble palace.”

“(The Supreme Court) truly is a marble palace (because) we’re isolated,” Thomas said during remarks at Utah State Bar’s summer convention Saturday morning in Sun Valley, Idaho reports the Deseret News. “We’re isolated from the politics, we’re isolated from the city and in a lot of ways we’re isolated from the country. These trips allow me to come out and see the people who really matter in our government, and that is you all.”

According to the Salt Lake Tribune, Thomas also gave another reason why he does not participate in oral argument questioning: He’s not a big fan of TV game shows.

“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like ‘Family Feud’ than oral argument.”

He remembered a time where justices would actually listen to the attorneys making their case. “We have ceased doing that,” Thomas explained. “Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”

Thomas did show his sense of humor during the talk, the Deseret News reports. He made the crowd laugh multiple times during his talk – (perhaps he would be one of the funniest justices if he spoke during oral argument!) – and poked fun at the fact that he’s the Court’s only black justice.

“Things might happen when (I’m not at the court),” he said. “You all may not remember that Eddie Murphy skit where he’s on the bus and he’s the only black guy on the bus and nobody talks – it’s sort of like being on an elevator. As soon as Eddie Murphy leaves the bus, all the whites who are left on the bus throw off their outer garments and they’re in party outfits. So things may be going on at the court (when I’m not there) – they may just be waiting and saying, ‘Oh, the black guy’s gone!’ ”

In other news:

Chief Dissenter Breyer? Now that Justice John Paul Stevens has retired, will Justice Stephen Breyer become the Court’s most vocal dissenter? (The Daily Journal via How Appealing Extra)

Widening divide: President Obama’s Supreme Court picks have done little to bridge the ideological divisions on the Court. (Bloomberg)

Knowing it when you see it: The National Law Journal‘s Tony Mauro examines the papers of Justice Steward Potter, which were recently released by the Yale University Library. (NLJ)

HIPAA, HIPAA, hooray! Lawyers can expect to be busy in the coming year reviewing and revising contracts of health care entities and related businesses in light of new proposed HIPAA rules. (Lawyers USA)

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.

Meanwhile,

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)

Monday status conference: Clinton on Kagan

Picture it: the White House, 1995.

A cadre of economic advisors had advised President Bill Clinton against vetoing a bill aimed at stopping frivolous securities fraud lawsuits. Clinton asked the advice of his new legal adviser, Elena Kagan.

She analyzed the legislation and came to the conclusion that the bill would not only halt frivolous suits, but also meritorious securities fraud actions by shareholders. Bucking the economic team, she recommended that the president veto the measure.

“There she was, in her mid-30s starting out in her career, with the entire economic team, all of them against her position, and she knew it,” Clinton told The New York Times last week, recalling Kagan’s first White House presentation. “She stood there and defended her conclusion. It was very impressive. She was composed, direct and totally unfazed that all those guys wanted a different outcome.”

Clinton’s comments came as lawmakers and the media pored over emails from Kagan’s White House tenure released by Clinton’s presidential library on Friday. Now most of the 160,000 pages of documents identified by the library on the Supreme Court nominee have been released. And Kagan has emerged, for the most part, unscathed from the scrutiny one week before her confirmation hearings are set to begin.

And that, according to the Associated Press, was by design. Obama administration officials, working with Clinton, have worked to ensure that Kagan’s involvement with more controversial issues that could provide fodder for critics of her nomination remain shaded from public view. Those sensitive subjects include the Paula Jones sexual harassment lawsuit that led to Clinton’s impeachment.

Meanwhile, the current justices of the Supreme Court are set to release more opinions this morning. Among the issues yet to be decided this term is whether public and private officials can face criminal action for depriving their “honest services” to the public or to their employers. We’ll update newsworthy developments here later this morning.

In other news,

Emanuel out? The London Daily Telegraph reports that White House Chief of Staff Rahm Emanuel is expected to leave his job after the midterm elections because he is fed up with the “idealism” of President Barack Obama’s closest advisers. (Fox News)

Too soon to say the f-word: Senate Republican Leader Mitch McConnell said it’s still too soon to say whether Republicans might try to filibuster Kagan’s nomination. (AP)

Slow claims process: BP has paid less than 12 percent of claims submitted by individuals and businesses for damage caused the Gulf oil spill, according to the House Judiciary Committee. (AP)

K Street help for BP: Meanwhile, the company is enlisting the help of a high-priced lobbyists and consultants to help weather the firestorm over the massive spill. (Washington Post)

Monday status conference: Matter of opinions

The U.S. Supreme Court will release more decisions this morning.  Cases yet to be decided by the Court this term include Rent-A-Center West v. Jackson, which asks whether a court can decide if an arbitration clause in an employment contract is unconscionable, or if even that issue must be arbitrated, the Chicago-based Second Amendment challenge in McDonald v. City of Chicago, and the employment privacy “sexting” case City of Ontario v. Quon.

The Court could also accept more cases to consider next term. We’ll update all the developments from the Court later this morning.

In other news to start your week:

Kagan backers: Nearly six in 10 Americans say the Senate should vote to confirm U.S. Solicitor General Elena Kagan’s nomination to the Supreme Court. (Washington Post)

It’s a privilege: Many of the documents demonstrating Kagan’s work related to the sexual harassment lawsuit brought by Paula Jones against President Clinton will not be released by Clinton’s presidential library. Those that have been released show Kagan monitoring and commenting on the case’s progression. (Wall Street Journal)

Alternative dispute not resolved: The issue of mandatory arbitration is still very much alive in Congress and the Supreme Court – and the two branches may be on a collision course. (National Law Journal)

Punishing the leakers: The Obama administration has already outdone every previous administration in pursuing prosecutions of those who leak classified information to the press. (New York Times)

Expanding violence act: The Justice Department plans to enforce criminal provisions in the Violence Against Women Act in cases involving gay and lesbian relationships. (NYT)

New employer rule in effect: E-Verify has changed its design to require employers to complete a tutorial before they are able to verify a new hire’s employment eligibility. (Lawyers USA)

Monday status conference: The Kagan papers

As lawmakers return from the Memorial Day recess today, members of the Senate Judiciary will continue to probe the record of Supreme Court nominee Elena Kagan, armed with documents released Friday from the Clinton library.

And those papers, the first batch of documents (about 46,000 of more than 160,000 pages identified by the library) related to her work in the Clinton administration, reveal Kagan’s legal and policy positions on issues ranging “from agriculture to Viagra,” as the Washington Post puts it.

Kagan is almost sure to get questions from senators about her role in advising President Clinton to veto a measure to ban late-term abortions. Documents show that Kagan played a role in helping Clinton “articulate his support for a narrow health exception to the late-term abortion ban,” according to the Associated Press.

When the administration considered sending Congress a bill that would make assisted suicide a federal crime, Kagan called it “a fairly terrible idea,” according to the New York Times‘ blog The Caucus.

She also called an administration argument urging the Supreme Court to uphold affirmative action policies “exactly the right position” both leally and politically, according to the AP.

The newly-released documents have already caught the attention of the Senate Judiciary Committee’s top Republican. “Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution,” said Sen. Jeff Sessions, according to a Reuters account.

Kagan’s confirmation hearing is set to begin June 28.

Meanwhile, this morning the U.S. Supreme Court will release opinions and orders. Cases yet to be decided from this term include the Chicago-based Second Amendment challenge in McDonald v. City of Chicago, and the employment privacy “sexting” case City of Ontario v. Quon. We’ll update newsworthy developments here on the blog.

In other news:

June Boon: Despite front-loading its calendar this term, as it has in recent years, the Supreme Court still faces a June crunch, with many cases yet to be decided even though the term unofficially ends a the end of the month. (USA Today)

I could write a book…Former Attorney General Alberto Gonzales said he’s written a memoir, but he’s having trouble finding a publisher. Also, his legal bills relating to the ongoing investigation into  him role in the firings of several U.S. attorneys are mounting, he said. (WSJ’s Law Blog)

You can go home again: Justice Sonia Sotomayor became emotional as she spoke at a ceremony renaming the Bronx housing development where she spent part of her childhood in her honor. (AP)

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