As several of the justices of the Supreme Court spent the off week attending events around the country, members of the media asked them obligatory questions about the pending challenge to the federal health care law, which was heard last week.

Justices usually demur when faced with such requests, refusing to make out-of-court statements on pending cases and sticking to other subjects, like antelope hunting.

But Justice Antonin Scalia took an interesting approach to not answering a question about President Barack Obama’s much discussed “judicial activism” comment, according to the AP (via the WSJ’s Law Blog):

“We don’t respond to criticism,” Scalia said in comments to students at the University of Southern Mississippi. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.”

What is a “rope-a-dope,” you ask? Law Blog explains that it’s a boxing move used by Muhammad Ali, whereby a boxer leans against the ropes as his opponent pummels away. The shots that are not blocked are absorbed by the rope’s elasticity. Once the opponent is tired, the boxer has conserved enough energy to make a knockout punch.

So did Scalia suggest that he’d take Obama’s shots for now, only to come back with a ruling that knocks out the health care law? Only nine people know for sure – the justices took their initial vote on the case during a closed-door session last Friday.

When retired Justice Sandra Day O’Connor cracks political jokes, people laugh.

That was the case last weekend at an exclusive black-tie gathering of Washington’s elite when O’Connor drew the biggest laugh of the night, according to attendees.

At the Alfalfa Club dinner, which drew President Barack Obama, Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy among others, O’Connor quipped about GOP presidential candidates Mitt Romney and Newt Gingrich, noting: “one is a practicing polygamist, and he’s not even the Mormon,” the Huffington Post reports.

We already knew the pending Supreme Court showdown between Arizona Gov. Jan Brewer and the Obama administration over the controversial Arizona immigration law SB 1070 would be explosive. But yesterday we got a glimpse of the bubbling animosity between the parties.

As the Court prepares to hear the debate over whether the state statute directing police to check the immigration status of detainees believed to be in the country illegally is preempted by federal immigration law, Brewer and President Obama had a heated exchange yesterday.

After Brewer greeted Obama as he stepped off Air Force One outside of Phoenix, she handed him a letter and then the two engaged in a heated discussion. According to the Associated Press, both Brewer and Obama appeared to be smiling, but speaking over each other for several moments. At one point, Brewer waved her finger in the president’s face.

Asked about the exchange afterward, Brewer said: “He was a little disturbed about my book.”

In her recent book “Scorpions for Breakfast,” Brewer described a meeting she had with Obama at the White House to discuss immigration. “I felt a little bit like I was being lectured to, and I was a little kid in a classroom, if you will, and he was this wise professor and I was this little kid, and this little kid knows what the problem is and I felt minimized to say the least,” Brewer said.

According to Brewer, Obama objected to the book’s implication that she was mistreated at the White House

“I said to him, you know, I have always respected the office of the president and that the book is what the book is,” Brewer said. “I said that I was sorry that he felt that way. Anyway, we’re glad he’s here, and we’ll regroup.”

Brewer said the letter she handed Obama was an invitation to have lunch and visit the border.

Here’s hoping oral arguments at the Supreme Court in April are as exciting.

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

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.”

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.’”

HT: ABA Journal

In a strange twist in the ongoing court battles over the Obama administration’s health care law, the 4^th Circuit today threw out a challenge to the law’s constitutionality, ruling that the law’s individual mandate is essentially a tax, and tax provisions cannot be challenged before they go into effect.

In the 2-1 ruling, the court held that the Anti-Injunction Act strips the court of jurisdiction to consider a challenge to the Patient Protection and Affordable Care Act. Because taxes cannot be challenged before they go into effect, and the individual mandate does not go into effect until 2014, the court vacated a lower court ruling upholding the law with instructions to dismiss the case for lack of jurisdiction.

In a separate ruling, the court also held that the state of Virginia lacked jurisdiction to challenge the law.

This is the second federal appellate court to consider the challenge to the law. In July the 6^th Circuit upheld the law’s constitutionality. Challengers in that case filed a petition for certiorari, and the U.S. Supreme Court could take the case up during its next term, which begins next month.

More on these rulings as well as ongoing coverage of the challenge to the health care law to come on Lawyers USA online.

After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.

Unlike last year, Tuesday’s State of the Union address contained no Supreme Court-related drama.

Leading up to the event, speculation swirled as to which Supreme Court justices may skip President Barack Obama’s second annual address altogether, given last year’s controversy over Justice Samuel Alito’s reaction to the president’s criticism of the Citizens United case, and the recent rise in tensions between the Court some members of the other branches of government.

But hours before the event, it was announced that Chief Justice John G. Roberts, Jr. along with Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would be in attendance. Though Roberts has in the past indicated his discomfort with attending the annual event – calling it a “political pep rally” – it was reported that Roberts wanted to show a sense of unity after the slayings of federal Judge Roll and five others in the assassination attempt on Rep. Gabrielle Giffords in Tucson.

Obama greeted each of the six justices in attendance warmly before beginning his address.

He went on the deliver an address that steered clear of any direct mention of the Court or its decisions.

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 4^th 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)