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Obama to Senate: Got any bright (judicial nomination) ideas?

The Obama administration has been struggling to get judicial nominations confirmed by Congress in a timely manner. So White House officials are reportedly taking a new approach: asking the confirmers for suggestions.

White House officials are approaching Senate Democrats, asking them to suggest judicial nominees who they would get behind – and who they could persuade Senate Republicans to back as well, according to Roll Call.

The move is designed to stop the logjam of judicial confirmations. So far Obama has had only four federal district judge picks confirmed, and today David Hamilton, nominee for the 7th Circuit, is expected to become only the third Obama federal appellate judge nominee confirmed. Meanwhile, more than a dozen judicial and executive nominations remain tied up in the Senate Judiciary Committee.

Part of the holdup, of course, was the fact that the White House and Judiciary Committee spent much of the spring ad summer focused on filling a Supreme Court vacancy.

But GOP lawmakers say they are not to blame for the slow pace, denying they are blocking Obama’s nominees. “I am telling you, this is a myth. This is not obstruction,” Judiciary ranking member Sen. Jeff Sessions said.

Friday morning docket: 9/11 trial will be in federal court

The Obama administration will announce today that accused Sept. 11 attacks mastermind Khalid Sheik Mohammed and three alleged co-conspirators will be tried in federal court in New York instead of a military commission.

Attorney General Eric Holder is expected to make a formal announcement at a press conference later today.

President Obama, speaking to reporters in Japan, said the federal trial will come with the same accountability standards as a military trial. “I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice,” Obama said. “The American people insist on it, and my administration will insist on it.”

More on the developing story from The Washington Post and The New York Times.

In other legal news,

Preemption problems: “Mess,” “Muddle” and “chaos” were words used do describe the state of the doctrine preemption after the Wyeth v. Levine decision – by people on both sides of the issue – at the Federalist Society’s National Lawyers Convention. (The BLT)

Med-mal HIPAA change: Medical malpractice defense lawyers may not know that they are likely covered by new HIPAA rules on privacy breaches of health data. (Lawyers USA)

Massey overturned again: For a third time, the West Virginia Supreme Court has overturned a $50 million judgment against Massey Energy – the case that went all the way to the Supreme Court, which ordered a rehearing of the case without the judge who received campaign contributions made by Massey’s CEO. (Charleston Gazette)

Gitmo casualty: Sources tell The Washington Post that White House Counsel Gregory Craig will resign as early as today, ending a tenure marred by the struggle to close the Guantanamo Bay detention center. (WaPo)

Fate of hundreds of NLRB rulings rests with Supreme Court

For nearly two years, the normally five-member National Labor Relations Board has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.

Since then the Board has issued more than 400 opinions.

But yesterday the U.S. Supreme Court agreed to consider whether the two-member Board had the authority to continue to operate, throwing the validity of all those opinions in doubt. The split in the circuits on this issue has created a conundrum for labor lawyers.

President Obama sent three nominations to the Senate to fill the empty seats in July, and last month the Senate HELP committee advanced the nominees for full Senate consideration.

Judges slowly selected, quickly heard under Obama

Much has been said about the slow pace of federal judicial nominations under President Obama, and a new report by the Brookings Institute takes a harder look.

Comparing judicial nominations during Obama’s first nine months in office to those made during the same time period under President Bush, the report found that Obama is making far fewer nominations, but those nominees are getting much faster hearings.

While Bush made 60 judicial picks in his first nine months – representing about 73 percent of judicial vacancies, Obama has made 22 nominations, covering 41 percent of the vacancies.

“Had the Obama administration nominated judges at the same rate as the Bush administration, it would have filled all the vacancies it inherited,” the report states.

The slow pace of nominations could be caused by a number of factors, according to the study, including the fact that Obama had a Supreme Court vacancy occur during his first nine months, while Bush did not.

“Obviously, filling the vacancy created by Justice David Souter’s May 1 retirement announcement consumed energy that might otherwise have gone toward searching for lower court nominees (not to mention dealing with two wars, an economic meltdown, and an ambitious legislative agenda),” the report says.

While Obama is slower to nominate, there is good news for those who are chosen. Obama’s federal trial judge picks wait an average of 54 days to get hearing compared with 70 days for Bush nominees. For Circuit Court nominees, Obama’s picks went before the Senate in 43 days on average, compared with 116 days for Bush picks.

But the quick hearings don’t ensure a quick road to confirmation. Only 9 percent of Obama’s picks have been confirmed, compared to 13 percent of Bush’s picks.

The full report, Judicial Nominations in the Bush and Obama Administrations’ First Nine Months, can be found on the Brookings Institute’s website.

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)

Monday status conference: Columbus Day Edition

All is mostly quiet in Washington, DC on this Columbus Day – Congress and the Supreme Court are closed in observance. But we know many lawyers are working on this Monday holiday, and so is DC Dicta, bringing you the latest legal news:

Med-mal reform costs debated: As lawmakers continue to wrangle with health care reform legislation, a new report reignited the issue of tort reform in the debate. An analysis issued Friday by the Congressional Budget Office found that medical malpractice reform efforts such as punitive damages caps and limiting pain and suffering jury awards could save as much as $41 billion over ten years. (Lawyers USA)

Bringing ‘mixed-motive’ back? Lawmakers have filed legislation that would reverse a Supreme Court decision last term that eliminated “mixed-motive” claims under the Age Discrimination in Employment Act. (Lawyers USA)

What a relief it is…: The Obama administration’s mortgage relief effort has helped 500,000 homeowners and officials maintain that the program is on track despite its disappointing launch, the administration said Thursday. (Lawyers USA)

…Or not: But the next day, an oversight panel sharply criticized the program and declared it would leave millions of Americans vulnerable to losing their homes. (The New York Times)

Lopez and Anthony Washington’s new ‘It’ couple

Have Jennifer Lopez and her husband Marc Anthony become part of Washington’s elite?

It sure seems that way, the way they’ve been rubbing elbows with the powerful people from the nation’s capital recently.

We knew that the couple hosted a party at their New York home for Supreme Court Justice Sonia Sotomayor. Now comes word that Anthony received a Lifetime Achievement Award at the Congressional Hispanic Institute’s 32nd Annual Gala this week.

And who was on hand to fete the Latin singer at the event held at the Walter E. Washington Convention Center Wednesday night? None other than President Barack Obama, who made a little joke about Rep. Nydia Velasquez, the Institute’s chairwoman. “Nydia has a crush on you!” the president told Anthony as the crowd, including his wife, laughed. “I’m telling you, J.Lo, watch out!”

Sotomayor, who appears to be the couple’s new BFF, was seated next to them at the event.

Later that night the couple hit the rooftop lounge of the new W Hotel Washington to celebrate Anthony’s birthday with guests including Rep. Linda Sanchez.

Earlier in the week Lopez and Anthony had the ear of House Speaker Nancy Pelosi on Capitol Hill, discussing issues like education affordability.

The couple also paid a visit to the White House, bringing their toddler twins Max and Emme to meet the first family. “Max was tearing up the White House,” Anthony said.

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: 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.”