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Friday morning docket: Secretary’s privilege

Who knew that White House party crashers would create a constitutional issue between the White House and Congress? You can’t make this stuff up, folks.

Yesterday, the House Homeland Security Committee held a hearing to examine the “system failure” that allowed unauthorized people to get up close and personal with President Obama at a White House state dinner last week. But the only witness who testified was Secret Service Director Mark Sullivan.

Tareq and Michaele Salahi, who started this whole thing by showing up at the White House with no formal invitation, had been called to testify but declined. The committee is now prepared to issue the couple a formal invitation to appear before lawmakers, in the form of a subpoena.

Republican members also wanted White House social secretary Desiree Rogers to testify, since her office too dropped the ball by failing to have staff checking arrivals against the guest list. But the White House nixed that idea, citing separation of powers.

That didn’t sit well with New York Rep. Peter King, who wanted Rogers to explain the gaffe.

While legal scholars ponder the extent of executive privilege enjoyed by a White House party planner, let’s take a look at the news:

House votes for death tax freeze: Yesterday the House passed a bill that would hold the estate tax at 2009 levels rather than allow it to be repealed next year before resetting to the highest levels in a decade. (Lawyers USA)

Leahy blasts SCOTUS, Iqbal: Note to Chief Justice John G. Roberts, Jr.: Senate Judiciary Committee Chairman Patrick Leahy doesn’t like the job your Court is doing in several areas. In his fifth hearing called to complain about the Court’s rulings, Leahy blasted the recent decisions setting tougher civil pleading standards in federal court. (Lawyers USA)

Battle of opinions: In a rare move after a summary disposition, Justices John Paul Stevens and Clarence Thomas issued dueling opinions in a death penalty case. (Newsweek)

Ogden to exit: The Justice Department’s No. 2 is leaving early next year and heading to the private sector. (BLT Blog)

Hoyer: No estate tax quick fix

With time running out for Congress to enact some sort of estate tax reform before the scheduled 2010 repeal, lawmakers are pondering a one-year quick fix measure that buys them more time to put together a permanent reform package.

But the House majority leader isn’t happy with that solution.

In a meeting yesterday, Rep.  Steny Hoyer pushed fellow Democrats on the Ways and Means Committee to adopt a permanent fix this year, Bloomberg reports.

“He made a convincing argument for a permanent fix,” Connecticut Representative John Larson said after the meeting with Hoyer.

More from Bloomberg here, and more on the state of the estate tax here from Lawyers USA.

Monday status conference: Stevens says he’s no spring chicken

Ever since news broke that Justice John Paul Stevens had only hired one clerk so for the October 2010 Supreme Court term, speculation has swirled over whether the justice – who is now the second oldest to hold a seat on the bench, and the fifth longest-serving justice ever – would retire.

USA Today‘s Joan Biskupic put the question right to him. And while he declined to discuss his retirement plans, he answered the question of whether retirement was a possibility with a resounding: Duh!

“That can’t be news,” Stevens, 89, said. “I’m not exactly a kid.”

Biskupic’s very interesting profile of Stevens can be found here.

Meanwhile, let’s open the week with stuff that actually is news:

Sticking to the script: Justice Sonia Sotomayor said her confirmation process was so carefully scripted, here her clothes were picked out for her. (The New Haven Register)

Strange allies: Might medical device manufacturers, who have refused to offer direct financial concessions to help pay for health-care reform, have an ally in their home state lawmaker – Minnesota Democrat Sen. Al Franken? (The Washington Post)

New pot policy: Federal prosecutors will no longer go after medical marijuana users and suppliers as long as they conform to state laws, under new Obama administration policy. (Associated Press)

HELP for NLRB nominee: Despite calls from the U.S. Chamber of Commerce to hold a hearing on NLRB nominee Craig Becker, the Senate Committee on Health, Education, Labor and Pensions is scheduled to vote on his confirmation Wednesday. (WSJ’s Washington Wire)

Cruisin’ for Congress: Federal legislation navigating its way through Congress is aimed at improving safety measures and the reporting of crimes on passenger cruise ships. But lawyers who represent injured passengers and crew members say the legislation doesn’t do enough to address legal loopholes in litigating injury cases against cruise lines. (Lawyers USA)

Another firefighter suit: A black New Haven, Conn., firefighter has filed a federal lawsuit against the city over a promotion exam that was the subject of the U.S. Supreme Court’s landmark ruling in Ricci v. DeStefano in June. (Lawyers USA)

Friday morning docket: Ginsburg hospitalized

Supreme Court Justice Ruth Bader Ginsburg was hospitalized Thursday after feeling faint while working in her chambers. She is expected to be released today.

Ginsburg, 76, was taken to the Washington Hospital Center a few hours after after she fell ill, according to a statement from the Court. The justice felt faint just before 5 p.m., about an hour after receiving an iron sucrose infusion to treat anemia – a condition she was diagnosed with in July. That diagnosis came after a comprehensive health assessment that found she was otherwise in good health.

“One hour following the completion of this infusion, she felt faint, developed light headedness and fatigue,” the Court’s statement said. “Medical assistance was summoned from the Office of the Attending Physician, and medical evaluation disclosed a slightly low blood pressure, which can occur following this treatment. She was monitored at the Court, blood tests were performed and she was found to be in stable health. Fluids were administered and her symptoms improved, but she was taken as a precaution for evaluation at the Washington Hospital Center at approximately 7:45 p.m.”

In January, Ginsburg was diagnosed with early stage pancreatic cancer, and underwent surgery in February. Just 18 days later, she returned to the Court’s next regularly scheduled oral arguments. Although the illness stirred speculation that Ginsburg may soon step down from the Court due to will health, she has given no indication of any plan to retire. She has not missed an appearance at the Court, and she has maintained a busy schedule, including a two-day stint last week as a visiting scholar at Northwestern University School.

In other news,

Lawyers’ exemption: Attorneys, merchants, retailers, accountants and other non-financial professionals would be exempt from regulations and oversight under the proposed Consumer Financial Protection Agency, according to a memorandum issued by the office of Rep. Barney Frank, D-Mass. (Lawyers USA)

This little device went to market: The Food and Drug Administration has commissioned the Institute of Medicine to study the process by which certain medical devices and are cleared to be marketed in the United States – a process that has been the subject of criticism. (Lawyers USA)

Looking for fast flag resolution: The American Bar Association filed a motion for summary judgment Wednesday in its case that seeks to prevent the Federal Trade Commission from applying a new anti-identity theft regulation to attorneys. (Lawyers USA)

Seat filler: Massachusetts Gov. Deval Patrick today named Paul G. Kirk Jr., a former aide and longtime confidant of the late Senator Edward M. Kennedy, to temporarily fill the late senator’s seat. (NYT)

Friday morning docket: Busy short week

It doesn’t feel like it’s been only a four-day week with everything that has been going on: pomp, circumstance and then campaign finance oral arguments at the Supreme Court, and President Obama and Congress taking on health care, including the issue of tort reform.

But wait, there’s more!

Devil in the details: Not much is known yet about Obama’s proposal to give state grants for medical malpractice reform test programs, but lawyers’ groups, medical associations and consumer advocates said the still-unknown details will make all the difference. (Lawyers USA)

Portrait of an AG: Former Attorney General Michael Mukasey was back at the Justice Department yesterday for his official portrait ceremony. (BLT Blog)

SEC in hot seat: Members of the Senate Banking Committee are furious over the failure of the Securities Exchange Commission to catch Bernie Madoff’s $50 million fraud scheme. (CNN)

Roberts is ready for some football! What’s the best way to get the Chief Justice of the United States to come speak at your university? Flattery? Nah. A generous honorarium? Nope. Football tickets? That’s it! (WSJ Law Blog)

District vote to push federal gay marriage debate? The District of Columbia’s City Council is taking on the issue of legalizing same-sex marriage, a move that could force Congress and White House to take sides in the debate. (WaPo)

Friday morning docket: New justice tops off busy week

After a marathon week, members of the Senate are finally packing their bags to head out of town for August break, while Sonia Sotomayor prepares to officially start her new job tomorrow. And although the biggest news of the week involved the Supreme Court’s newest justice designate, plenty other legal news was being made:

Crying foul: The American Association for Justice is pushing back against what it calls “inaccurate and purposefully misleading” reporting in a newswire story about a bill that would allow attorneys to deduct certain expenses and costs in contingency fee cases up front. (Lawyers USA)

Don’t text and drive: Texting while driving would become a federal offense under a bill introduced in the Senate. (Lawyers USA)

Not set in Stoneridge: Sen. Arlen Specter, D-Penn., has introduced legislation that would allow civil suits to broaden the number of actors that may be sued for securities law violations. (Lawyers USA)

Reversing Riegel? A Senate committee heard testimony this week on the potential effect of a bill that would overturn a Supreme Court ruling banning state law tort suits against the makers of certain medical devices. (Lawyers USA)

Trying to Gitmo attention: Two Kansas senators have put the brakes on 10 President Obama’s nominees for key Pentagon and Justice Department posts to protest his plan to house Guantanamo detainees at the Fort Leavenworth prison. (AP)

Immigration transformation: The White House announced a plan to overhaul the nation’s immigration detention system to house civil detainees in one centralized location instead of in a scattered network of local jails and private prisons. (LAT)

Friday morning docket: And then there were 10

With just days left now before the Supreme Court wraps up its terms for the summer – and one justice wraps up his high court career – there are only 10 cases left to be decided. Yesterday the Court released four opinions, but it was the ruling that a prisoner does not have a constitutional right to access DNA evidence post-conviction that set the blogosphere and the Twitter world afire.  More from Lawyers USA on yesterday’s Supreme Court decision in Osborne here. Also we have a report on Gross here, the case that makes age discrimination decisions tougher to prove in some cases. The AP has a report on the Court’s Travelers opinion here, and Bloomberg News has more on the Yeager decision here. More opinions from the Court are expected Monday.


Partnership benefit: Same-sex partners of federal employees will get some new benefits, such as long-term care insurance and recognition for purposes of family and medical leave, under a memorandum signed by President Obama. (Lawyers USA)

New disability rules: The U.S. Equal Employment Opportunity Commission has voted to adopt revisions to its regulations to conform with the ADA Amendments Act of 2008. (Lawyers USA)

Secret discoveries: Lawmakers and members of various interest groups debated a bill earlier this month that would bar courts from keeping corporations’ information secret during discovery. (Lawyers USA)

Going way back: It seems there is not a stone in Judge Sonia Sotomayor’s life that hasn’t been unturned. The New York Times takes a look at her tenure as a board member of the State of New York Mortgage Agency where, they said, she focused on the interests of the poor. (NYT)

Four-letter evidence. Jurors in the trial of former Rep. William Jefferson got an earful yesterday. A profanity-laced call made by the embattled lawmaker was played. (BLT)

When Obama talks med-mal reform, Dems and AAJ don’t listen

For at least the second time since taking office, President Barack Obama has medical malpractice litigation reform could be a part of his overall plan for reforming the nation’s health system.

In March, Obama told members of the business community that reducing med-mal lawsuits is something that has to be considered. “Medical liability issues – I think all those things have to be on the table,” Obama said then.

Now, after meeting with members of the American Medical Association who pressed the idea last month, Obama is again receptive to the idea – so respective that he has begun making the case to lawmakers, although few Democrats are biting, according to The New York Times. The president hopes that including medical lawsuit reform in the mix would keep GOP lawmakers and doctors groups at the table, which is necessary to build a broad consensus on health care reform.

But trial attorneys don’t seem to like the idea one bit.

“According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention,” said American Association for Justice President Les Weisbrod. “By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously.”

Weisbrod said the president’s focus should be on insuring Americans and implementing empirically-based practice guidelines to raise the standard of care and better protect patients.

“Limiting the legal rights of injured patients will do nothing to lower health care costs or aid the uninsured,” Weisbrod. “We will work over the coming weeks and months to educate members of Congress and the administration on how to best protect victims of medical negligence.”

Supremes: You can’t hurry transcripts

Justices Stephen Breyer and Clarence Thomas appeared before House lawmakers Thursday to talk about the Court’s budget. But during that conversation, the justices were asked if they were satisfied with the way information about Supreme Court oral arguments was released to the press, and ultimately to the public.

Generally, audio recordings of oral arguments are archived and made available only after the term has ended. In recent years, audio recordings have been released immediately after oral arguments in only 19 cases. Only once – during arguments in Bush v. Gore – were oral arguments were broadcast simultaneously.

As for written oral argument transcripts, for the past few years they have been posted on the Court’s website within hours of oral arguments. But this change was still slow in coming compared with the information provided by other courts across the country, or even by other branches of the federal government.

The justices said they understand the media’s desire to get information quickly. But Breyer explained that to protect the integrity of the high court, any decision to change the speed with which audio recordings or other information is released must be made slowly and deliberately.

“You have to get the justices comfortable with the notion of allowing either that or other access, and the reason simply is we are a conservative institution – and we should be,” Breyer told lawmakers. “The nine of us didn’t invent this institution. We’re trustees, and we’re trustees of a process that’s worked very well in the past, in terms of building up the confidence of the public in the rule of law. So if we are going to change that process – and any of these things is a change – we have to be made comfortable by understanding that it isn’t going to hurt the institution where we temporarily find ourselves. That’s why it goes slowly.”

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Monday status conference: Rainy days and Mondays…

It’s a stormy day in the nation’s capital as members of Congress and the justices of the Supreme Court head back to work after a break.

Today the Supreme Court kicks off the last round of oral arguments this term with Iraq v. Beaty, which considers whether a lawsuit against the Republic of Iraq brought by plaintiffs who were taken hostage during the Gulf War claiming intentional infliction of emotional distress is barred by the Foreign Sovereign Immunities Act.

Later, the Court will hear arguments in the closely-watched Horne v. Flores, where Pepperdine School of Law Dean Kenneth W. Starr – yes, that Ken Starr – will argue that federal does not require Arizona state lawmakers to fund new programs to teach English in the public schools to foreign-born students.

Department of Justice attorneys will have 10 minutes of oral arguments in each cases today, and expect to see much more of them: the Solicitor General’s office is either a party or amici in nine of the remaining 10 cases up for oral argument this term.

Across the street, members of Congress will begin crunching the details of the budget that was passed before their break. And President Barack Obama is home from a trip to Latin America and the Caribbean. Today he will hold his first White House Cabinet meeting.


Trimming the White House fat: Obama will tell members of his cabinet to cut their budgets to the tune of a collective $100 million in the next three months. (WaPo)

Delays, delays: For a third time, the federal government has delayed the implementation of a rule requiring all companies working on federal contracts to electronically check the legal working status of their employees through the Department of Homeland Security’s E-Verify system. (Lawyers USA)

Red light on greenhouse gases: In a policy sift, the Environmental Protection Agency has officially adopted the position that carbon dioxide and other greenhouse gas emissions pose a danger to the public’s health and welfare. (WaPo)

Praising Reno: Attorney General Eric Holder heaped praise on his former boss, former Attorney General Janet Reno, as she received the American Judicature Society’s “Justice Award.” (CNN Political Ticker)