The BLT: The Blog of Legal Times

Bush Sending Consensus Nominees to Senate

Reality is setting in. With time dwindling for President George W. Bush to get his nominees through, he’s looking for compromise. Glen Conrad is just the latest example.

Last Thursday, Bush tapped Conrad, a U.S. district judge in Virginia’s Western District, to fill one of the remaining Virginia vacancies on the U.S. Court of Appeals for the 4th Circuit. Conrad is the fifth appellate nominee this year and follows several others announced in breakthrough deals between the White House and the Senate.

Even Curt Levey of the conservative Committee for Justice acknowledges that tapping Conrad from a bipartisan list drawn up by Virginia Sens. Jim Webb (D) and John Warner (R) made sense. “It’s so little time left that you really needed to get someone from the Webb-Warner list,” Levey says.

Also last week, two consensus candidates for the 6th Circuit -- Michigan Court of Appeals Judge Helene White and Raymond Kethledge, a corporate defense lawyer at Bush Seyferth Kethledge & Paige in Troy, Mich. -- had their confirmation hearings. Virginia Supreme Court Justice G. Steven Agee, another nominee for the 4th Circuit, had his hearing May 1. And Catharina Haynes, a former Baker Botts partner in Dallas, was confirmed April 10 for a 5th Circuit seat.

“The White House is being realistic knowing that it’s the end of the [presidential] term, and they are not going to get their people,” says Carl Tobias, a University of Richmond Law School professor. “Maybe it’s better to get somebody than nobody.”

Republicans, however, are still miffed that their preferred nominees are not getting hearings. Specifically, they point to Chief Judge Robert Conrad of the Western District of North Carolina and Steven Matthews of the Columbia, S.C., firm of Haynesworth Sinkler Boyd — both nominees for the 4th Circuit -- and Sidley Austin partner Peter Keisler — a nominee for the D.C. Circuit.

They have kept up the pressure on Democrats by threatening to stall legislation. One of those standoffs led Majority Leader Harry Reid (D-Nev.) to announce on April 15 that the Senate would approve three more circuit court nominees by Memorial Day.

But despite what seems like a thaw in the cold war over nominees, Levey predicts more fights after the Memorial Day recess. “There’s still a lot of tension there,” he says.

This Week in Legal Times

In between the mudslinging from both sides of the aisle and the seemingly interminable race for the Democratic nominee, Pedro Ruz Gutierrez offers insight into what each candidate’s Justice Department might look like. Ruz Gutierrez lays out what their key issues are, who their attorney general might be, and what problems they may face in the general election.

Joe Palazzolo reports that even Federal Circuit judges have trouble wading through the complexities of a burgeoning area of patent law that deals with methods of doing business. The 12-judge court, sitting en banc, hoped to clarify its own standard for a business method patent – that the method produce a “useful, concrete and tangible result" –  but the judges sounded none the wiser by the end of oral argument.

Despite a slowing economy, Atlanta-based Kilpatrick Stockton is betting that by acquiring the D.C. corporate and financial transactions boutique Muldoon Murphy & Aguggia it can reinvigorate its small Washington office, Marisa McQuilken reports. The move by Kilpatrick Stockton will bring its Washington presence from 37 lawyers to 59.

Burma or Myanmar? Either Way, It's Embarrassing

It's no longer newsworthy that Sen. John McCain's presidential campaign is being run by a group of lobbyists. Now the question seems to have become just how embarrassing their client list will be.

In the case of Doug Goodyear, the answer seems to be fatally so. Goodyear's DCI Group, which lobbies for corporate entities like Exxon Mobil and General Motors, also served as the representative of the Burmese military junta that refused to hand over power to the democratically elected Aung San Suu Kyi in 1990. Under the junta, Burma has been one of the most disastrously run countries in the world — a heroin capital governed by atrocity-committing pariah authoritarians.

But just because the junta's leaders may be superstitious enough to abruptly relocate their country's capital on an astrologer's advice doesn't mean their checks don't clear. DCI represented them in 2002 for $348,000, Michael Isikoff reported in Newsweek on Friday. The timing of that news report was extraordinarily bad for Goodyear — that same day, the junta was living up to its internationally reviled reputation by blocking humanitarian relief workers' access to the Irrawaddy Delta, where recent hurricanes may have killed as many as 100,000.

Evidently, Goodyear and McCain saw that history as problematic. By early evening, Goodyear had resigned from the campaign, and by Sunday another former lobbyist for DCI, Doug Davenport, was also packing his bags.

Apartheid Case Will Proceed

For want of a quorum, the Supreme Court today allowed a controversial lawsuit brought by South African citizens to proceed against more than 50 American and foreign corporations for their role in perpetuating apartheid.

The companies, backed by the Bush administration and the South African government, had asked the high court to reverse a ruling by the U.S. Court of Appeals for the 2nd Circuit that said the suit could proceed under the Alien Tort Statute. The name of the case is American Isuzu Motors v. Ntsebeza.

But in the order released this morning, Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito Jr. indicated they had recused in the case, depriving the Court of the required six-justice quorum. Under law, when the Court lacks a quorum, the lower court rulling is effectively affirmed.

As usual, none of the justices stated his reason for recusing. For Roberts, Breyer and Alito, the reason almost certainly is stock ownership in companies that are named defendants. For Kennedy, the reason may be that his son Gregory is a managing partner of Credit Suisse, another defendant. In some recent cases Roberts has sold stock to remain in a case, but that did not occur here. Last month the Los Angeles Daily Journal reported here on the potential recusals in the case.

Stock-based recusals have been a long-simmering ethical issue for justices, prompting occasional calls for them to minimize or eliminate such holdings to guarantee a full Court whenever possible. Because today's action will have such a dramatic effect on a major case that the Bush administration has already said is causing the U.S. diplomatic embarrassment, those calls are likely to grow louder.

We'll have more details later. For a running account of recusals by justices in the last two terms, see our Recusal Report here.

Morning Wrap

Court Fires Off: The U.S. Court of Appeals for the 9th Circuit blasted a Las Vegas prosecutor for withholding 650 pages of potentially helpful evidence in a stock fraud case against two lawyers. The court dismissed all 64 charges and refused to allow a retrial, calling the actions of Assistant U.S. Attorney J. Greg Damm “prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.” The National Law Journal reported via Law.com that five men, including attorneys Daniel Chapman and Sean Flanagan, were charged in 2003 in connection with a complex securities trading scheme that allegedly netted them $12 million.

Denying Layoffs: Paul, Hastings, Janofsky & Walker denied reports that the firm was laying off attorneys, The American Lawyer reported Monday via Law.com. Shinyung Oh, a commercial litigation lawyer who was fired April 30, sent an e-mail to the firm’s associates that said she was let go six days after a miscarriage and a few months after a poor performance review and warned of impending layoffs. The firm’s spokesperson Eileen King told The Am Law Daily that while the firm had fired some associates based on performance reviews, the numbers were in line with last year’s numbers.

Open Access: Harvard Law School’s faculty voted unanimously last week to allow each faculty member’s scholarly articles available on the Internet for free. The move is designed to disseminate the school’s academic research as broadly as possible and makes Harvard the nation’s first law school to support a mandatory open access policy. Harvard Law School reported the decision via The Wall Street Journal’s legal blog.

Scalia and Garner: First A Book, Now Performance Art

Even though Supreme Court Justice Antonin Scalia's book publicity tour has pretty much run its course, you haven't seen the last of him in unusual public settings. We've just learned that Scalia and co-author Bryan Garner will be appearing at the Kennedy Center July 25 to perform their book in what could be the first CLE course ever at that august location. From 10:30 to 5 that day, they'll be reading from their new book Making Your Case: The Art of Persuading Judges.

Adding some dramatic tension, after a fashion, they'll even debate some of the points on which they disagree in the book, such as whether to include lengthy case citations in the text of a brief or in footnotes. On his LawProse Web site, Garner offers details about the CLE seminar, including the promise that it will be "enlivened with their well-known trenchant humor." And oh yes, the tuition: $600 per person, which also gets you a copy of the book.

In a phone interview Saturday, Garner said the event will be not unlike the seminars he routinely teaches based on his books on legal writing. "We'll trade tips and walk people through the book." Though it won't be entirely scripted, he says, "we'll rehearse a little" before the performance. Garner says the Kennedy Center event was his idea, and Scalia agreed to do it "as a favor to me and a favor to the profession." Scalia will not take any fee, Garner says, and with the high cost of the venue, he himself expects to barely break even.

Garner says he has been gratified by the positive reaction to the book, which is listed at number 29 on the Amazon bestseller list today. "We've heard nothing but praise," he says, adding that he has been amused by speculation in the blogosphere about which sections of the book were written by which co-author. "He and I can't agree on who wrote what any more."

Asked if Broadway is next after the Kennedy Center, Garner says no. "This is a CLE for the ages."

UPDATE: In an e-mail on Sunday, Garner said that if the event turns a profit after expenses, the proceeds will go to Legal Aid. "Justice Scalia is delighted at the prospect of whatever charitable gift we're able to generate," Garner wrote.

Morning Wrap

Secret Memo: A New York federal judge next week will review a classified Justice Department memo from 2002 that details CIA interrogation methods as part of a Freedom of Information Act suit brought by the American Civil Liberties Union, reports The Washington Post. U.S. District Judge Alvin Hellerstein of the Southern District of New York on Thursday ordered the CIA to turn over the Office of Legal Counsel document. Hellerstein will decide whether it has been properly withheld.

Bingham Responds: Bingham McCutchen says a complaint from a former associate that a male lawyer drugged female colleagues at holiday parties in Boston has no merit, but the firm has provided personal-safety training to its employees, The American Lawyer reports via Law.com.

Lawyers in Trouble: New York Attorney General Andrew M. Cuomo on Thursday said that hundreds of attorneys have been granted illegal state pension fund benefits, according to The New York Law Journal via Law.com. The problem arose when politically-connected attorneys working as independent contractors showed up on public pension rolls.

Sunken Treasure: The legal fight by the Spanish government against Florida-based Odyssey Marine Exploration, Inc. over a salvaged shipwreck worth $500 million is heating up, The Times of London reports in a dispatch from Madrid. The Spanish, represented by James Goold, of counsel at Covington & Burling in the District, sued Odyssey last year and the Tampa, Fla. company has fought hard to keep details of its haul secret. Goold says the mystery is over. The Spanish have identified it as the galleon Nuestra Señora de las Mercedes, which was sunk by the British off the coast of Portugal in 1804.

Playing Their Part

So maybe the Washington Shakespeare Company's "A Comedy of Capitol Errors" wasn't the smoothest production the theatrical organization has ever staged: Much of the cast arrived late because they had to stay on the Hill for a Congressional vote.

Then again, it offered the chance to see D.C.'s congressional delegate Eleanor Holmes Norton, discussing her theatrical romance with Natwar Gahndi, the District's Chief Financial Officer. The same goes for Sen. Pat Leahy pretending to Thomas Jefferson's ghost. The event raised $250,000 for the Washington Shakespeare Theatre.

More photos, and a summary of the event earlier this week, are at the BLT's sister blog, Influence.

Matt Morley Joins Kirkpatrick & Lockhart Preston Gates Ellis

Matt Morley has joined Kirkpatrick & Lockhart Preston Gates Ellis as a partner in the firm’s securities enforcement practice group.

Morley, who spent the past 25 years at Fried, Frank, Harris, Shriver & Jacobson where he left as a co-managing partner, says joining K&L Gates will allow him to broaden his potential client base and to take advantage of the firm’s presence in cities all over the country and the world. Morley works primarily on issues pertaining to the Foreign Corrupt Practices Act.

“There has not been a lot of attention at a lot of companies regarding FCPA issues, and many companies may not be aware that they need to worry about these issues when doing international trading,” Morley says. “Larger companies tend to have more sophisticated systems in place to keep them from, say, being asked by officials outside the country for bribes to make deals occur. But these systems are uncommon outside of larger companies.”

Morley says the Department of Justice and the Securities and Exchange Commission have stepped up their enforcement of FCPA violations. The reason, he says, is that many other countries have begin to implement similar laws, and the agencies want to “make a good faith showing” that they are going to take the act seriously and that other countries should take their own laws seriously as well.

Morley says he had been considering moving from Fried Frank for the past six months and he felt that K&L Gates offered a great and exciting opportunity. He joined the firm full time on April 28.

Panelists Say Congress Has Not Done Enough to Preserve Constitutional Powers

Congress must do more to fight for its constitutional responsibilities and maintain the balance of power, panelists said at a conference on national security reform on Thursday.

The conference, hosted by the Project on National Security Reform and the Reserve Officers Association, featured a panel discussion of the constitutional implications of national security reform with former Assistant Attorney General Randolph Moss, now a partner at Wilmer Cutler Pickering Hale and Dorr, and Louis Fisher, a constitutional scholar at the Library of Congress.

The discussion between Moss and Fisher focused primarily on where each branch of government can draw the line regarding their constitutional powers when national security issues result in a clash between the legislature and the president.

“The framers very much expected and designed into the system a tug of war between the branches of government,” Moss said. “They intended the branches to be jealous of each other’s powers and attempt to debate where those powers lie. Congress, as well as the president and the judiciary, has a responsibility to stick up for its branch.”

Fisher contended that of course there is going to be tension between the branches, but Congress has not done enough in the past 50 years to preserve the legislature’s constitutional powers. Fisher pointed to Congress’ failure to push for a greater role in authorizing the National Security Agency to conduct surveillance and pursue warrants under the Foreign Intelligence Surveillance Act. Fisher also argued that it makes little sense that presidents’ national security advisers can decline to testify to Congress about matters of policy.

Remembering Williams & Connolly's Raymond Bergan

Williams & Connolly lost one of its leaders and forefathers with the death of Raymond Bergan, 77, on May 2.

In 1958, Bergan became one of the first lawyers to join the Law Offices of Edward Bennett Williams, which would, of course, become the litigation firm Williams & Connolly. Bergan was part of the core group of partners that got Williams & Connolly up and running. That original partnership, recalls current Williams & Connolly partner Robert Barnett, “set the tone of preparation and the tone of willingness to undertake the hard battles, and the tone of teaching young people.”

Bergan was of counsel at the firm at the time of his death and was actively working on cases until a month ago, when he was diagnosed with stomach cancer.

Williams & Connolly partner Daniel Katz remembers Bergan as “a great lawyer, a great mentor, and an iconic partner.”

Katz says that when he joined the firm in 1984, Bergan immediately took him under his wing, teaching him the basics of working up a case, from analyzing the legal issues to coming up with a courtroom strategy. Katz tried more than half a dozen cases with Bergan, and he says Bergan’s presence in the courtroom was “transfixing.”

“He was a large man, and was imposing physically,” says Katz, “but he had this great and engaging demeanor, so I could see how juries would bond with him, and sort of hang on every word that he said.”

Early in his career, Bergan represented several Teamster officials, including Jimmy Hoffa. In addition to criminal defense, Bergan focused on antitrust, class actions, and labor-related matters. He also argued twice before the U.S. Supreme Court.

Beyond his mastery of the courtroom, Katz remembers Bergan as a kind and patient man. As a teacher, Katz says Bergan was “never condescending…He let me develop as a lawyer and take the things that he could teach me, but also develop my own style.”

A traditional Catholic service was held for Bergan Tuesday at St. John the Beloved in McLean, Va. Bergan is survived by his wife, four children, a brother, and six grandchildren.

“It’s going to be a big change for me because having the great big man around was a blessing,” says Katz.

Morning Wrap

Withdrawn: The FBI this week agreed to drop demands that a California online library turn over subscriber information while lifting a gag order it had issued as part of a national security letter sent in November, reports The Recorder via Law.com. The Internet Archive successfully fought the FBI with representation by the Electronic Frontier Foundation's counsel.

Obstacles: The number of suits related to the subprime mortgage crisis continues to rise, but there's no guarantee investors and shareholders will win in court, The New York Times reports today. Because of higher standards set by recent Supreme Court rulings for proving wrongdoing, plaintiffs often have fewer recourses to recover than in the past.

Party Drugs: A former associate at Boston-based Bingham McCutchen has filed a discrimination complaint against the firm, alleging the firm failed to properly investigate claims of date-rape drugs being used at holiday parties, The Boston Globe reports. Michelle Moor, who left Bingham in February for the Boston law firm of Kotin, Crabtree & Strong, alleges that she was drugged at the firm's annual holiday party and that at least one other Bingham female employee had reported a similar experience the year before. The matter is before the Massachusetts Commission Against Discrimination.

Deal: Eight of 14 oil companies sued by public water utilities around the country have settled a suit for $423 million that alleged they polluted groundwater through the use of a gasoline additive, according to The New York Times. The oil industry stopped using it in 2006, but Exxon Mobil and five other companies refused the deal, which must be approved by a judge in the Southern District of New York.

Nasty Forecast: Former Weather Channel co-anchors Bob Stokes and Hillary Andrews had a storm of their own brewing inside their news station, The Atlanta Journal-Constitution reports. Andrews, who won an arbitration award in a sexual harassment suit against Stokes last fall, now has filed a federal suit in Atlanta against her former employer that seeks to include the confidential arbitrator's report in her ongoing case.

Federal Raid Only Latest Controversy for Special Counsel Scott Bloch

The raid by federal agents on U.S. Special Counsel Scott Bloch’s home and office Tuesday is just the latest twist in an ongoing series of controversial events involving Bloch since he took over the office in 2004.

The raid, which involved more than 20 federal agents, comes as a result of an Office of Personnel Management investigation that began in 2005. The case concerns a group of current and former Office of Special Counsel workers who accused Bloch of improperly retaliating against employees who disagreed with his policies and dismissing whistleblower cases without proper investigation.

The Office of Special Counsel is responsible for protecting government whistleblowers and enforcing a ban on federal employees engaging in partisan politics.

Law enforcement officials told The Associated Press that Tuesday’s raid was to search for criminal evidence of Bloch allegedly obstructing justice and potentially lying to Congress.

Debra Katz, an employment-discrimination name partner at Katz, Marshall & Banks who is representing OSC employees, says President George W. Bush should remove Bloch from office.

"Our view is that Bloch is engaged in misconduct, and I'm glad that the Office of Personnel Management referred this to the Department of Justice," Katz says. "I'm hoping that this will be the end of Scott Bloch's tenure at the Office of Special Counsel."

Last year, the OPM unsuccessfully tried to obtain access to Bloch's personal e-mail accounts through another subpoena.

According to a Wall Street Journal report, in December 2006, Bloch hired an outside tech company to scrub the hard drive of his government computer. Bloch told House Oversight and Government Reform Committee investigators that he had his computer wiped to protect government information, not to destroy it.

In 2004, Legal Times reported that Bloch removed references to sexual orientation discrimination from the office's Web site and complaint forms, effectively blocking any legal recourse for gay federal employees who suffer discrimination on the job.

Bloch, who previously served as deputy director and counsel to the Task Force for Faith-based and Community Initiatives at the Department of Justice, has routinely denied any involvement with illegal activities.

Two Partners Join Miller & Chevalier From Baker & McKenzie

Miller & Chevalier has added two attorneys to its employee benefits practice who both formerly worked for Baker & McKenzie. Anne Batter and Thomas Cryan both join the firm as partners.

After working for almost eight years with Baker & McKenzie’s executive compensation and fringe benefits group, Batter, who was a partner, and Cryan, who was of counsel, say they wanted to pursue an opportunity to work with a smaller firm that makes tax and employee benefits law a center of its focus. Batter and Cryan join 15 other attorneys in Miller & Chevalier’s employee benefits practice.

“For us, this move was about having the ability to focus on tax and benefits in a small firm context,” Batter says. “I have everything I need in one office. I now have the ability to grab whatever I need whenever I need it.”

Marianna Dyson, chair of Miller & Chevalier and a partner in the firm’s employee benefits practice, says the addition of Batter and Cryan will better enable the firm to provide tax services to their clients and to continue to “do what we do so well.”

Justice Scalia, Out of the Closet

C-SPAN has posted the transcript here of Brian Lamb's recent interview with Supreme Court Justice Antonin Scalia, the latest event in Scalia's tour to publicize the book he has co-written with Bryan Garner.

Among the remarkable aspects of the interview is Scalia's explanation, finally, for why he has decided to abandon his often-stated view that common-law judges should hide in the tall grass and not seek publicity.

After Lamb asks Scalia about the popular Green Bag bobblehead of Scalia, and the various T-shirts on sale that use his name, Scalia says, with an air of resignation: "Well, frankly, Brian, that’s one reason I’ve sort of come out of the closet and — in recent months done more interviews and allowed my talks to be televised more than I did formerly. I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not. So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know."

That swipe at Lamb, by the way, was in jest. The two have been friends since they worked together in the Nixon administration in the early 1970s, and Scalia joshingly told Lamb he doesn't need to address him as "Justice." But Lamb, correct to a fault, would not give in to excess familiarity.

Another notable Scalia comment from the interview had to do with the Supreme Court bar — or its non-existence, in his view. Lamb showed Scalia a clip from an interview he gave in 1986, before he joined the Supreme Court. Then a judge on the U.S. Court of Appeals for the D.C. Circuit, Scalia praised the quality of the specialized lawyers who argued before him on energy, labor, or communications issues.

After the clip was over, Lamb asked Scalia about the lawyering he sees on the U.S. Supreme Court. Scalia opined, "This court, the Supreme Court, does not have a very specialized bar. A vast majority of cases are argued by lawyers from all around the country who have never appeared before the Supreme Court before, some of whom have probably never appeared before a federal appellate court before, and so I cannot — overall, I think the quality is probably better on the D.C. Circuit, but even so, I am all in all more impressed by the quality of the lawyers that appear before us than I am discouraged by their lack of competence."

Vast majority? Georgetown University Law Center prof Richard Lazarus in his important study of the Supreme Court bar, first reported here, found that last term 58 percent of the advocates (excluding those from the solicitor general's office) who argued before the Court were veterans — lawyers with five or more arguments under their belt. He also found that a whopping 44 percent of the cases the Court heard last term were brought by Supreme Court veterans.

Morning Wrap

Lawyers Tapped? Attorneys for Guantanamo Bay detainees say they believe the government has monitored their phone calls and conversations, The New York Times reports today. The Center for Constitutional Rights in New York last year filed a Freedom of Information Act lawsuit seeking records to learn whether attorneys have been targets of surveillance. They include D.C.-based Thomas Wilner of Shearman & Sterling; John Chandler of Sutherland Asbill & Brennan in Atlanta; solo practitioner H. Candace Gorman of Chicago; and Jonathan Hafetz of the Brennan Center for Justice at New York University. 

Citizenship Suits. Legal immigrants, who sometimes wait years for the government to grant them naturalization, are increasingly filing lawsuits against immigration officials to speed up the process, according to The Washington Post. Delays are caused in part by more extensive FBI background checks after the Sept. 11, 2001 attacks.

Questionable. Overturned death-row convictions in North Carolina are casting doubt on the quality of prosecutions and defense alike, notes The New York Times in a front-page story. In three cases, state appeals courts found authorities withheld exculpatory evidence from the defense. In two of the cases, lawyers for the accused failed to mount an adequate defense.

Big Win. Late Monday, Adidas -- represented by Atlanta-based Kilpatrick Stockton --scored a $304 million judgment in its favor in a trademark infringement suit against shoe retailer Payless ShoeSource Inc. The American Lawyer via Law.com says German shoemaker sued Payless in 2001, alleging Payless was selling knock-offs using Adidas' three stripes.

Abu Ghraib Suit. Former prisoner Emad al-Janabi has sued two U.S. military contractors, including Arlington, Va.-based CACI International Inc., alleging he was repeatedly tortured at the Iraqi prison in 2003, The Associated Press reports. Also named as defendant in the suit -- filed in Los Angeles federal court -- is CACI interrogator Steven Stefanowitz, known as "Big Steve," and New York-based L-3 Communications Holdings Inc.