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Court returns to hear preemption, ineffective assistance cases (access required)

After observing the Columbus Day holiday yesterday, the U.S. Supreme Court is back in action today to hear oral arguments in three cases – including one involving an issue of great interest to trial lawyers and business groups alike: preemption.

This afternoon the Court will hear arguments in Bruesewitz v. Wyeth, which considers whether the National Childhood Vaccine Injury Act expressly preempts state tort claims based on injuries suffered as a result of a polio vaccine. The case could have a major impact on hundreds of product liability lawsuits against vaccine makers claiming a causal connection to autism.

But first, the Court will hear two cases that consider just when a convicted criminal defendant can claim ineffective assistance of counsel on appeal.

In Harington v. Richter the Court will decide whether a criminal defendant is denied the effective assistance of counsel when his lawyer chooses methods other than expert testimony to create a reasonable doubt of guilt. And in Premo v. Moore, the Court will decide if an attorney’s failure to suppress a defendant’s alleged coerced confession warrants post-conviction relief.

Meanwhile, in other Supreme Court-related news:

TV talk: While Justice Stephen Breyer believes its important for Americans to see robed Supreme Court Justices at the president’s State of the Union address, he’s not so sure it’s a good idea for cameras to be in the courtroom – in part because it could lead to “television in every criminal trial in the United States and witnesses [becoming] afraid to appear.” (AP)

The popular crowd:  The Supreme Court has a 51 percent approval rating – making it far more popular than the president (44 percent) or Congress (18 percent). (Gallup)

The trouble with specialists? While there are more Supreme Court practice specialists than ever, there is a growing tension between that group and the public interest lawyers who sometimes question if clients’ interests are always being put first. (The New York Times).

Supreme fashion police: And here is he obligatory story about Justice Elena Kagan’s decision not to don frilly white neckwear with her black robe, care of The Washington Post‘s Robin Givhan. At least she also scrutinized what the male justices wore in the Court’s official photo session. (Washington Post)

More SCOTUS decisions from O’Connor, Souter and Stevens?

Senate Judiciary Committee Chairman Patrick Leahy has an interesting idea: why not allow retired Supreme Court justices to hear cases when a sitting justice has recused?

“That would make a lot of sense,” Leahy told The National Law Journal‘s David Ingram, “because if you’ve got an eight-member Court, you could easily have 4-to-4 decisions.”

Leahy, who is considering introducing legislation that would allow this to happen, said he got the idea from the justice soon to join the ranks of the retired.

“I talked with Justice [John Paul] Stevens, and he raised the question, ‘Could we not have a provision in the law for some mechanism that retired Supreme Court justices could be asked to sit on the Court when there is a recusal?'” Leahy said.

Currently, both retried Justices Sandra Day O’Connor and David Souter frequently sit on the bench of courts of appeal – and Stevens’ suggestion seems to indicate he too would be willing. Leahy said such a law change would avert the danger of recusals ending in 4-4 ties, preventing the Court from rendering a decision on the merits.

But when told of the idea, Republican committee member Sen. Orrin Hatch didn’t seem as enthusiastic. He said he’s inclined to oppose it. “A tie vote is still a result,” Hatch said.

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)

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

Friday morning docket: Won battle, lost war

The winning party in the landmark U.S. Supreme Court case that established new recusal standards for state court judges was not a winner in the end.

Yesterday the West Virginia Supreme Court declined to reconsider a ruling overturning a $50 million verdict against Massey Energy in the case Caperton v. A.T. Massey Coal Co. The plaintiff in the case originally won the verdict on a claim that the company fraudulently usurped business contracts from its smaller competitor.

After the verdict, Massey’s CEO gave $3 million in direct and indirect contributions to the election campaign of an appellate judge hopeful. That amount was more than half the total spent in the campaign. That judge won, assumed a seat on the bench, and was ultimately the deciding vote overturning the $50 million verdict.

But in a 5-4 decision last year, the Supreme Court held that the judge’s failure to recuse himself violated the Due Process Clause.

Yesterday the plaintiff’s attorney Bruce Stanley told the Charleston Gazette that he wasn’t expecting to win the battle in the end, despite the high court victory. “We certainly are not surprised at the outcome, but rather only by the amount of time it took the Supreme Court to reach it,” Stanley said.

Here are more headlines to take you into the weekend:

I’m a what? Bankruptcy lawyers disagree on the impact of this week’s Supreme Court ruling that they are “debt relief agencies.” (Lawyers USA)

Help for women, or for trial lawyers? At a Senate hearing on legislation aimed at closing the gender pay gap, lawmakers, federal agents and experts spent much of the time discussing whether the bill would result in a flood of litigation if passed. (Lawyers USA)

Putting the ‘men’ in ‘harassment’: The number of sexual harassment claims filed by men has doubled in the past two decades, the Equal Employment Opportunity Commission reports. (Lawyers USA)

Dangerous slings: The head of the Consumer Product Safety Commission warned that baby slings – the soft carriers used by parents to carry infants against their chests – are a suffocation risk, and several babies have already died. (Lawyers USA)

Big Mac attack: Want to know Supreme Court justices’ favorite McDonald’s food? (WSJ’s Law Blog)

Lawyer for ‘D.C. Madam’ suspended: Montgomery Blair Sibley had his law license suspended for three years by the D.C. Court of Appeals. (BLT Blog)

Impeached: The House of Representatives Thursday unanimously approved the four articles of impeachment against New Orleans Federal Judge Thomas Porteous. (New Orleans Times-Picayune)

Friday morning docket: Tale of two SCOTUS retirements?

Speculation over whether the U.S. Supreme Court will start its next term with or without Justice John Paul Stevens has been swirling ever since it was reported that he hired only one clerk for next term instead of the usual four. Now, ABC News is reporting that the Obama administration is preparing for not one, but two possible vacancies on the nation’s highest court.

White House officials are reportedly also preparing for the possible departure of Justice Ruth Bader Ginsburg, 76, who last year had her second cancer surgery since taking her seat on the High Court. Despite not missing a single day of oral arguments during treatment for pancreatic cancer, speculation about Ginsburg’s health has continued, spurred by a pair of recent hospitalizations and reports that she dozed off during the State of the Union address last week.

Stevens, 89, less than a year shy of overtaking Justice Oliver Wendell Holmes record to become the oldest justice to serve on the Court, has – like Ginsburg – remained vocal and sharp during oral arguments. But CBS News’ Jan Crawford recently reported that the justice seemed to stumble on his words while summarizing his dissent in the controversial case Citizens United v. FEC from the bench last month, causing more speculation about his future on the Court.

Sources close to Ginsburg threw water on the idea of the justice stepping down, pointing out, among other things, her active participation during oral arguments.

Obama’s short list of potential nominees include Solicitor General Elena Kagan, 7th Circuit Judge Diane Wood, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, and Leah Ward Sears, former chief of the Georgia Supreme Court, ABC reports.

Meanwhile, while the city braces for yet another winter snowstorm, here is a wrap of the other legal news:

Some boosts in the budget: Despite President Barack Obama’s call for a freeze in discretionary spending, his fiscal 2011 budget calls for a boost in spending for a number of federal agencies and programs that, if adopted by Congress, will have an impact on the work of the nation’s attorneys. (Lawyers USA) (Sub req’d)

Defending the handgun ban: A D.C.-based attorney will argue the Chicago Second Amendment case before the Supreme Court, urging the justices to uphold the city’s strict gun ban. (The National Law Journal) (Sub req’d)

Black history and SCOTUS: In honor of Black History Month, SCOTUSblog is running a series of essays examining race and the Supreme Court. (SCOTUSblog)

Toyota in hot seat: Members of Congress are demanding more answers from Toyota officials concerning problems in 5.6 million of its vehicles which spurred a massive recall operation.(Detroit Free Press)

Sunday chatter: Drama for the Justice Department

The era of discord between the branches of government continues. Last week President Barack Obama took open aim at the U.S. Supreme Court for its campaign finance ruling – and Justice Samuel Alito returned fire with a grimace, a head shake and a “not true.” Now members of the executive and legislative branches spent Sunday morning taking aim at each other.

Members of Senate blasted the Justice Department over decisions the department has made in two high-profile terrorism trials.

Sen. Lamar Alexander

Sen. Lamar Alexander took to the Sunday morning talk show airwaves to call for the resignation of Attorney General Eric Holder for allowing suspected underwear bomber Umar Farouk Abdulmutallab to be given a Miranda warning.

Abdulmutallab after speaking for almost an hour, was sedated to receive medical treatment. When he awoke, he no longer wanted to talk, and was then Mirandized. The Los Angeles Times reports that a number of other agencies – the FBI, State Department and CIA – authorized the Miranda warning.

Alexander said Holder needs to explain himself to lawmakers/

“(Holder’s) doing a better job of interrogating CIA employees than he is of interrogating terrorists, and he’s not making a distinction between enemy combatants and terrorists flying into Detroit trying to blow up planes and American citizens who are committing a crime,” Alexander said on “Fox News Sunday,” reports The Hill. “He needs to go to Congress and say I made that decision, and here’s why. And based on that perhaps he should step down.”

White House advisor Davd Axelrod

Meanwhile, the Justice Department is still facing head from Republicans on the Hill for the decision to hold the Sept. 11 terror attack trial in a lower Manhattan civilian court – and now the Obama administration is considering changing the venue after New York City Mayor Michael Bloomberg expressed concern about the costs and security issues of holding Khalid Sheikh Mohammed’s trial in lower Manhattan. Bloomberg had initially supported the decision.

No decision has been made on where the trial may be held, but White House officials shot back at GOP lawmakers who criticized the administration for not trying the case in a military tribunal. David Axelrod, the senior adviser to President Obama, pointed out on “Meet the Press” that suspects including “shoe bomber” Richard Reid were tried in civilian courts under President George W. Bush.

“Now we have a Democratic president and suddenly we hear these protests,” Axelrod said. “What has changed between now and then that would cause people to reverse positions?”

Lawmaker wants military trial for plane bomber

Today a the ranking GOP member of the House Homeland Security Committee said he wants the man who tried to ignite a bomb aboard a U.S.-bound plane on Christmas Day to be tried in a military tribunal instead of a civilian court.

Rep. Peter King, speaking on NBC’s “Today” show this morning, and said the military trial would allow investigators to obtain more useful information out of the suspect, Umar Farouk Abdulmutallab. If the suspect is tried in civil court, rights afforded him – such as the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination – it will be more difficult for authorities to get such information, the New York lawmaker said.

Last month, the decision by the Obama administration to hold the trials for accused Sept. 11 attacks mastermind Khalid Sheik Mohammed and three alleged co-conspirators in a New York federal court instead of a military commission drew wide criticism from some lawmakers, victims’ families and even former Vice President Dick Cheney.

Monday status conference: Not a creature is stirring…

As Washington continues to dig out from the weekend’s big snow storm, federal agencies and courts are closed today. On Capitol Hill, lawmakers on House side had already wrapped up for the holiday season, but the Senate is still in session.

Senators were at it until the wee hours last night, eventually ending debate on the controversial health care bill. The bill is now primed for a final vote before the end of this holiday-shortened week. As for today, the decision of whether each individual senator’s office will be open or closed today will rest with the lawmaker.

As you thaw out, here is some legal news:

Privilege protections: A bill that would bar attorneys in any government department from requesting a waiver of the attorney-client privilege in exchange for consideration in criminal or civil investigations has been filed by a bipartisan group of House lawmakers. (Lawyers USA)

Judiciary budget boost: Although the final amount was less than requested, judicial officials praised Congress’s approval of $6.9 billion in appropriations for the federal judiciary in fiscal year 2010. (Lawyers USA)

Good news cert denial? The Supreme Court’s decision Monday not to review Chrysler’s bankruptcy may turn out to help GM product liability claimants who were left in the lurch. (Lawyers USA)

SCOTUS consequences: The Supreme Court’s ruling in the case Maryland v. Shatzer could fundamentally affect the case against the man accused of killing Chandra Levy. (McClatchy)

Cranky senators: All work and no play makes the Senate an grumpy place. (Politico)

Monday status conference: A matter of opinion

This week the U.S. Supreme Court is expected to issue its first full opinion(s) of the October 2009 term. Those opinions are expected to come tomorrow.

So far, the Court has only released a handful of per curiam rulings, but tomorrow’s opinions will come in one or more of the cases that have been argued before the bench. As always, the Court gives no indication of which opinions it will issue beforehand, but we’ll catch you up on what the Court does tomorrow. It’s also oral argument week at the Court, which takes up cases involving Sarbanes-Oxley Act and the right to counsel today.

Meanwhile, it was a busy weekend here in Washington, where members of the Senate worked all weekend in hopes of coming to agreement on a health care package to send to a final vote before the holiday break. President Obama even dropped by Capitol Hill Sunday to give lawmakers an extra pep talk as they continue to work to negotiate the language of the bill. The Senate continues debate today, tackling on the thorny issue of abortion.

In other news:

IP VIP: The Senate has confirmed Victoria Espinel, President Obama’s choice to be the nation’s first-ever intellectual property czar. (ABA Journal)

Girlfriend defense: Senate Finance Committee Chairman Max Baucus defended recommending his girlfriend for appointment as Montana’s U.S. attorney, which we eventually withdrew. (AP)

Votes on gay rights bills near: The House is poised to pass bills to provide health coverage for the same-sex partners of gay federal workers and to protect all gay and transgender employees from job discrimination, lawmakers say. (AP)

Legal aid waning: Just when it is needed most, funding for legal aid plummets. (Washington Post)

No longer President Popular: Obama’s popularity numbers fall as some criticize him for taking on too much at once. (New York Times)