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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 administration urges Court to strike down Prop 8

The federal government, in addition to waging its own battle against the federal Defense of Marriage Act, has officially waded into the Supreme Court challenge to California’s same-sex marriage ban, asking the justices last night to strick down the law, though stopping short of asking the Court to set a nationwide rule.

The Justice Departments amicus brief in Hollingsworth v. Perry asks the Court to strike the marriage and civil union laws in California and eight other states that limit or prevent same-sex couples from enjoying the same rights and benefits as opposite-sex couples. The Court can do this, the Obama Administration argues, without declaring a national constitutional right to marry – an issue that can wait until another day, the brief said.

Attorney General Eric H. Holder Jr. explained in a statement released yesterday, “the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.”

“Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination,” Holder’s statement said. “The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

Roberts and Sotomayor deliver, Obama flubs slightly

Chief Justice John G. Roberts Jr. administered the oath of office to President Barack Obama this past inaugural weekend – twice – before a national audience. And this time, unlike in 2009, he did it without incident.

The Supreme Court chief, known for his memorization skills as an appellate advocate, famously flubbed the oath the first time he swore in Obama four years ago. This weekend – both in the private official swearing in ceremony at the White House on Sunday and then again on the steps of the Capitol building on Monday – Roberts played it safe by reading the 35-word oath from a cue card.

Still, the pressure got to Obama: he stumbled over the word “States.” But he’s still the president.

Sonia Sotomayor administered the much longer oath of office to President Biden twice – once in a private ceremony at the Naval Observatory, then again at Monday’s Capitol affair – over  the long weekend as well, making her first Hispanic justice to do so.

Learn more about the justices – including the reason why Sotomayor’s robe looks different than those of her eight colleagues – on our Supreme Court Report.

Roberts gives the oath again – and again and again…

By Monday afternoon, Chief Justice John G. Roberts Jr. should know the presidential oath of office by heart; he will have recited it enough.

Four times, to be exact – although he famously twisted some words the first time he swore President Barack Obama into office, prompting a redo the next day. Roberts officially swears in Obama for his second term in a private ceremony on Sunday, and will repeat the process the next day during the public inauguration ceremony at the Capitol building.

No Supreme Court fete for Obama

There will be plenty of hubbub during the upcoming inauguration season that will kick off President Barack Obama’s second term. But don’t expect a reception at the U.S. Supreme Court; there will be none.

Unlike in 2008, when Chief Justice John G. Roberts Jr. and the other justices welcomed Obama and Vice President Joe Biden at reception at the Court, no such event will be held in January, the Wall Street Journal’s Law Blog reports.

Not every election results in a Supreme Court fete. Reelected presidents like Obama don’t usually get a second Court welcome. But not all newly-elected president’s do either – just ask former President George W. Bush, who didn’t get one at all (perhaps the justices were wary to do so for appearances sake after the Bush v. Gore decision).

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.

On same-sex marriage issue, questions remain on administration’s stance

Despite all the headlines that were made when President Barack Obama voiced his support for same-sex marriage, the views the president expressed were personal and did not reflect the views of the administration. But as major cases involving the rights of same-sex couples to marry and receive federal benefits head to the U.S. Supreme Court, the administration may have to make a more affirmative statement about its official stance on the issue.

Obama, in his comments to ABC News last week, was careful to clarify that he believed that issues involving the legality of same-sex marriage should be worked out state-by-state. A careful parsing of Obama’s words revealed, according to SCOTUSblog’s Lyle Denniston, “suggests strongly that he is not committed to making same-sex marriage a right protected by the Constitution.”

Meanwhile, the Wall Street Journal’s Jess Bravin notes, high profile cases – including the challenge to California’s Proposition 8 – are expected to be taken up by the Supreme Court as soon as later this year. In that case, as well as a case by legally married Massachusetts residents suing to receive federal benefits, could result in increased pressure on the White House.

Should the Court take up the cases, Obama “will surely be asked by advocates for LGBT [lesbian, gay, bisexual and transgender] rights to support a decision upholding a federal constitutional right to same-sex marriage, which would take it out of the hands of the states,” Theodore Olson, one of the attorneys leading the challenge to Prop 8, told the WSJ.

First Lady impacts the fashion of law

First Lady Michelle Obama has become a style icon, impacting the fashion industry in ways not seen since Jacqueline Kennedy occupied the same residence.

But Obama, who is also a lawyer, is also impacting the fashions of high powered women in law firms across the country.

No longer are female power lawyers bound to the uniform of boxy suits and drab colors like black or brown or navy. Now high powered women sport attire full of color, prints and textures – whether they come from Barney’s or Old Navy.

As the Wall Street Journal observes:

“A pedigreed lawyer, Ms. Obama mixes high fashion with low—as do many working women these days. Her ease in baring her shoulders at state functions and her willingness to wear vivid prints, curvy shapes and fashion-forward designs has freed other women to do the same. ‘I think she is allowing women to be more brave and trust themselves more,’ says [fashion designer Rachel] Roy.”

Court will be Supreme presidential campaign issue

As President Barack Obama prepares to formally launch his reelection campaign and presumptive Republican presidential nominee Mitt Romney continues to stump, expect the Supreme Court to be a major campaign issue.

Two very high profile cases – the challenge to the federal health care law and the challenge to the Arizona immigration law authorizing local and state police with immigration enforcement powers – will be decided before the election, reminding voters of how important the Court is. And equally headline-grabbing cases – dealing with affirmative action in colleges and perhaps California’s same-sex marriage ban and the Defense of Marriage Act – lie on the horizon for the justices to take up next term.

All this comes at a time when the Court is nearly equally divided ideologically. And four of the nine justices are over the age of 70: Justices Ruth Bader Ginsburg (79), Antonin Scalia (76), Anthony Kennedy (75), and Steven Breyer (73).

This week Obama indicated that he is fully aware of the major role the Court will play in the campaign.

“There are going to be some Supreme Court appointments probably if you look actuarially for the next president,” Obama said at a fundraiser with former President Clinton, according to the Washington Examiner. “There’s so much at stake here.”

Romney has already spoken about the importance of Supreme Court appointment power, and pledged to nominate judges with ideologies in line with the Court’s most conservative jurists.

(Romney photo by Gage Skidmore)

Senate Republicans jump into recess appointment challenge

Republican lawmakers are officially jumping into the legal fight over President Barack Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. And leading the GOP senators’ fight is a man who was blocked from a judicial appointment by Senate Democrats years ago.

Senate Republicans said yesterday they plan to file an amicus brief in the case challenging Obama’s authority to make the controversial appointments, according to the Washington Post. The White House has defended the validity of the recess appointments, and said they were necessary to keep the agencies operating as GOP lawmakers stalled nominees’ confirmation votes.

The Republican lawmakers brief will be authored by Miguel Estrada, a partner in the Washington office of Gibson, Dunn & Crutcher whose own judicial nomination to the D.C. Circuit was filibustered by Senate Democrats in 2001. (The news came, interestingly enough, the same day Estrada argued a case before the U.S. Supreme Court.)

“We think it’s the appropriate case,” said Senate Minority Leader Mitch McConnell, R-Ky., according to the Post. “And I thought that Miguel’s own experience with the confirmation process, that it might make particularly good sense for him to represent us in this particular undertaking.”