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GOP solons shows willingness to fight Obama’s court picks

Republicans members of the Senate Judiciary Committee have united in opposition to 9th Circuit nominee Goodwin Liu, whose Senate confirmation bid has been seen by some as a prelude to the battle awaiting the next Supreme Court nominee.

In a letter sent to Senate Judiciary Committee Chairman Patrick Leahy, and signed by every GOP committee member, ranking member Sen. Jeff Sessions said Liu’s confirmation was “in jeopardy.” Sessions called for another postponement of Liu’s confirmation hearing, saying the nominee failed do disclose more than 100 items from his record in response to the committee’s questionnaire.

“At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee,” Sessions said yesterday. “Professor Liu’s unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying and has placed his nomination in jeopardy.”

Republicans postponed Liu’s first scheduled confirmation hearing last month. Another is currently scheduled for April 16 – which would be 51 days after President Obama’s nomination of Liu. Sessions said that schedule just won’t do.

“This expedited schedule is unacceptable given that we have no confidence in the completeness and accuracy of his record before the Committee,” Sessions wrote in the letter. “Accordingly, we request that you postpone the Committee’s consideration of this nomination. We believe that maintaining the integrity of the Committee’s constitutional advise and consent responsibilities more than justifies such a request.”

Monday status conference: Breaking news – again

Washington and national news organizations were all atwitter this past weekend over news that – wait for it – Justice John Paul Stevens may or may not retire this term.

Stevens, who turns 90 in a few weeks, told the New York Times‘s Adam Liptak that he will surely retire while President Barack Obama is in office. That essentially restates what he told the New Yorker‘s Jeffrey Toobin that retirement was in the cards at some point within the next few years. Whether this term will be his last remains a mystery.

Stevens did acknowledge that he needs to make a decision one way or another, and reiterated that it will come soon.

“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he told Liptak. “The president and the Senate need plenty of time to fill a vacancy.”

The Wall Street Journal lists the top three contenders for Stevens seat (the same three that Lawyers USA noted): Solicitor General Elena Kagan and federal judges Diane Wood and Merrick Garland.

Meanwhile, if it seems like the Supreme Court justices are seen and heard more outside the courtroom, that’s because they are, according to this report from the Washington Post‘s Robert Barnes.

In other headlines:

It could be ugly: Sen. Arlen Specter predicts a Republican filibuster of Obama’s Supreme Court pick, should Stevens retire. (Politico)

Constitutional duty: Criminal defense lawyers are weighing in on Wednesday’s Supreme Court decision, which held that they must inform non-citizen clients about the risk of deportation when taking a plea deal. (Lawyers USA)

Cause for concern: The Environmental Protection Agency has added bisphenol A – a chemical linked to some health problems and the subject of several lawsuits – to its list of “chemicals of concern.” (Lawyers USA)

International justice: Justice Stephen Breyer said he can read foreign law if he wants to, and calls the debate over whether justices ought to consult the law of other lands “irrelevant.” (AP)

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)

Preview of a Supreme confirmation battle?

UPDATE: The hearing has been postponed. This is the note on the committee’s web page: “The hearing on ‘Nominations’ scheduled before the Senate Committee on the Judiciary for Wednesday, March 24, 2010 at 2:30 pm has been postponed due to Republican objection and will be rescheduled at the earliest possible time.”

A Senate confirmation hearing set for this afternoon could provide a preview of the contentious fight President Obama may face should he get the chance to nominate another Supreme Court justice soon.

Goodwin Liu, who was nominated by Obama for the 9th Circuit Court of Appeals, faces the Senate Judiciary Committee today. And the committee’s top Republican, Sen. Jeff Sessions, has already made it clear that a battle awaits Liu.

Speaking about the nomination of 39-year-old Liu, a University of California at Berkeley law professor known his intellectual heft as well as his left-leaning views, Sessions told the Washington Post: “Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence.”

Sessions told the Los Angeles Times: “I think most senators would say he’s beyond the mainstream.”

Justice John Paul Stevens recently said he’d decide whether or not he would retire from the Supreme Court within the next month. Meanwhile, White House officials say the president stands ready to nominate a successor should Stevens choose to step down, and experts say Solicitor General Elena Kagan is the likely candidate for the job.

But the fight over Liu may demonstrate not only the Republicans’ willingness to push back against any Obama judicial nominee – last year Sonia Sotomayor was originally thought of as a moderate, safe choice, but her confirmation vote was ultimately split down party lines – Liu himself is seen as a potential future high court pick.

Today’s hearing may serve “as an initial referendum on Goodwin Liu as a Supreme Court nominee,” Michael Gerhardt, a University of North Carolina law professor who advised committee Chairman Patrick J. Leahy (D-Vt.) during the Sotomayor hearings, told the Post.

Health care foes ready to sue

As President Barack Obama stands ready to sign the health care reform bill into law today, a number of states stand ready to file lawsuits challenging the constitutionality of the legislation.

Attorneys general in Alabama, Florida, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington have vowed to sue, claiming the soon-to-be law unconstitutionally overextends federal power and commandeers states’ rights.

The attorneys general also cite concerns that a lack of federal support will leave states with the burden of providing citizens health care.

“To protect all Texans’ constitutional rights, preserve the constitutional framework intended by our nation’s founders, and defend our state from further infringement by the federal government, the State of Texas and other states will legally challenge the federal health care legislation,” said Texas Attorney General Greg Abbott, in a statement issued Sunday night after the bill was passed.

“The continued intrusion of this Congress into the free enterprise system, and the placing of new mandates on states, is shocking to the American system of federalism,” said Virginia Gov. Bob McDonnell in a statement yesterday.

Reid fires back at Chief Justice Roberts

Oh, it’s on now.

The jabs keep on flying between Congress and members of the Supreme Court in the wake of its ruling in the campaign finance case Citizens United v. FEC, which lifted a limit on corporate campaign spending.

Yesterday Senate Majority Leader Harry Reid jabbed at Chief Justice John G. Roberts, Jr., who was part of the Court’s 5-4 majority in the case.

Reid said the chief justice has no understanding of the impact of its ruling. “Do you think John Roberts knows or cares how people get elected?” the Reid said at a meeting of liberal bloggers, the Wall Street Journal reports.

Reid’s comments are just the latest evidence of the tensions between Congress, the Court and the White House in the aftermath of the Citizens United ruling. President Obama openly criticized the ruling during his State of the Union address, drawing an immediate reaction from Justice Samuel Alito – one of six Supreme Curt justices who attended the address – who grimaced, shook his head and said “not true.”

Tuesday Chief Justice John G. Roberts, Jr. criticized the politicized atmosphere of the State of the Union address, saying the event has devolved into a “political pep rally.” Roberts said it was “troubling” to sit through the address expressionless as members of Congress were “cheering and hollering” all around him.

In February Justice Clarence Thomas said the rancorous atmosphere at the annual speech before Congress caused him to stop attending years ago.

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)

Justice Alito’s head shake heard ’round the Union

Within minutes of the conclusion of President Barack Obama’s first State of the Union address Wednesday night, the internet was already abuzz over what Justice Samuel Alito did as the president criticized last week’s Supreme Court campaign finance ruling.

Before the packed House chamber – which included six of the nine justices of the nation’s highest court – Obama, blasted the Citizens United v. FEC decision and urged Congress to move to reverse it.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections,” Obama said, as Chief Justice John G. Roberts, Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Alito and Sonia Sotomayor sat in the front two rows, just feet away from the president. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

Normal protocol calls for Supreme Court justices in attendance at State of the Union addresses to remain silent, even when members of Congress erupt in cheers, boos or other reactions.

But as soon as Obama uttered the words “special interests,” Alito – who joined the opinion’s 5-4 majority – seemed to break that tradition. The justice furrowed his brow, shook his head, and seemed to mouth the words: “not true.”

That gesture wasn’t exactly a Rep. Joe Wilson-esque “You lie!” moment, but the reaction by bloggers, tweeters and online news and commentary sites was almost immediate. (“Oh, snap! Did Alito just heckle Obama?!” chirped one comment that popped up on my computer screen as I watched the address.)

UPDATE: And TPM has the video:

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Monday status conference: Opinion day

The U.S. Supreme Court is expected to release one or more opinions today, the last major activity expected from the Court until the justices conference again Feb. 19. Among the issues yet to be decided this term is whether judges can enhance an attorney fee award based on “the superb quality” of the lawyers’ performance, whether prosecutors can be shielded from immunity after allegedly fabricating evidence and then introducing it at trial, and whether sentences of life without parole for juveniles is unconstitutionally cruel and unusual. We’ll keep you posted on any newsworthy rulings on this blog and on Lawyers USA online.

In other legal news:

Lead a little too far? The Consumer Product Safety Commission is concerned that the recently-enacted law banning lead paint in children’s products extends to a number of products that were not intended to be covered, according to a report the agency sent to Congress on the enforcement of the law. (Lawyers USA)

Gitmo flip flop? In an apparent reversal of policy, the government will continue to hold almost 50 Guantanamo Bay prisoners without trial. (Courthouse News Service)

Article of impeachment: A House task force has recommended that Congress impeach Louisiana federal Judge G. Thomas Porteous for corruption. (AP via Washington Post)

Change 2.0: President Barack Obama is reconstituting the team that helped him win the White House to counter Republican challenges in the midterm elections. (New York Times)

GOP seeks seats: Meanwhile analysts say the number of Congressional seats up for grabs in November appears to be growing as the GOP taps more candidates. (New York Times)

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)