The BLT: The Blog of Legal Times

Kmiec Chosen for Ambassador to Malta

Douglas Kmiec, the conservative Pepperdine University law professor and prominent supporter of President Barack Obama, is likely headed to the Mediterranean.

The White House said today that Obama has chosen Kmiec as the new ambassador to Malta, the archipelago nation south of Italy. Though originally a supporter of Republican presidential hopeful Mitt Romney, Kmiec has been a high-profile defender of the Obama administration and its personnel choices. He recently has come to the defense of Dawn Johnsen, nominated to head the Justice Department’s Office of Legal Counsel, even as Republicans have held up Johnsen’s nomination because of her views on abortion and national security.

Kmiec was a deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration. At the end of his second term, Reagan appointed Kmiec to lead the office, which advises the executive branch on the legality of a wide variety of policies. Kmiec was dean of Catholic University’s law school from 2001 to 2003, and he was a longtime professor at the University of Notre Dame’s law school.

The White House notes that he has some experience working abroad: Kmiec was a Fulbright Fellow in Asia in 1987, lecturing in Hong Kong and Kuala Lumpur.

Ambassadorships require Senate confirmation.

DOJ Wins Rehearing in Suit Alleging Unlawful Wiretap, Surveillance

Scott Tooley narrowly won an appellate court victory earlier this year in his suit against top government officials, accusing them of invading his privacy through purported wiretaps, clandestine surveillance and “terrorist watch lists.” Now he may lose again.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-to-1 in February that as “thin” as Tooley’s claims appear, he has standing to sue. (The trial judge had tossed Tooley’s suit.) Justice Department lawyers challenged the split decision, saying that it conflicts with other circuits’ views.

The D.C. Circuit on Wednesday granted a rehearing, a win for the government. The case will be argued again in October.

“Although the panel majority suggests that the government could deal with this problem by invoking the state secrets privilege, that privilege cannot be lightly invoked,” a Justice appellate lawyer, Teal Luthy Miller, wrote in the government’s petition for rehearing.

Miller, who argued the case in the D.C. Circuit, said in the brief: “Allowing this and other fanciful suits to go forward can subject the government to burdensome and ultimately pointless discovery in a sensitive area of national security, with perhaps an ultimate need to assert the state secrets privilege, even when the complaint offers no plausible basis for believing that the government had any connection with purported surveillance of the plaintiff.” To read the DOJ petition, click here.

Tooley’s suit, filed in the U.S. District Court for the District of Columbia, alleges that he has experienced intermittent clicking on his phone line as well as frequent detention and searches at airports. He is suing the attorney general and the Homeland Security secretary, among others, on the ground that the government has violated his privacy.

In the appeals court, Senior Judge Stephen Williams and Judge David Tatel voted to remand Tooley’s case to the trial court for further proceedings. “Under our system’s undemanding pleading rules, the district court was required to accept Tooley’s factual allegations as true,” Williams wrote. Click here for the opinion.

Chief Judge David Sentelle wrote in dissent that Tooley doesn’t have a case with his “fanciful beliefs.” Just because Tooley has been detained at airports doesn’t mean his name is on any watch list, the judge wrote.

“Stripped of his conclusory adjectives and adverbs, his allegations say that he has been searched or detained at airports,” Sentelle wrote. “It is unlikely that anyone who flies with any frequency has not. If his allegations concerning airport searches were sufficient, I venture to say that many members of this court could file a similarly sufficient complaint.”

Sentelle also dismissed Tooley’s conclusion that his phones are tapped. There’s no reason to believe that wiretaps cause bad connections, the judge said, because if that were true, phone taps would not be a useful tool for law enforcement.

Sentelle, Tatel and Williams all share one concern: the ultimate plausibility of Tooley’s claims.

Patton Boggs Helps Free Lawyer Detained in Belarus

Earlier this year, Patton Boggs partner Joseph Brand compared the plight of client Emanuel Zeltser to a James Bond movie or something written by Kafka. But the twisted tale, it seems, is finally over.

Zeltser, a New York-based lawyer, had been thrown into a Belarusian prison in March 2008 on charges of economic espionage and using false documents-- crimes he and his lawyers say he did not commit. Earlier this week, Belarusian president Alexander Lukashenka pardoned Zeltser and released him back to the United States. 

Brand and Patton Boggs name partner Thomas Boggs Jr. worked with the State Department and members of Congress to secure Zeltser's freedom. For Patton Boggs, the work included bringing Zeltser's case to the United Nations Human Rights Committee last December and recruiting congressmen to sign a letter urging that he be freed.

Zelter's release is "a shining moment for international diplomacy and simply doing the right thing," said Boggs in a statement. "The Government of Belarus has restored the freedom of a man who was wrongly convicted."

The lawyers at Patton Boggs had also been keeping tabs on Zeltser's deteriorating health. They had said Belarusian authorities had deprived him of diabetes, heart, and other medications critical to his survival. At the time of his release, Zeltser was staying in a prison hospital. 

Upon his release, he told the Associated Press, "I am glad about my freedom. ... I have problems with my health, I plan to get better."

Zeltser was born in Siberia, and was general counsel of the American Russian Law Institute before his imprisonment. He had appeared as a commentator on money laundering and organized crime in the U.S. media. Supporters say his detention was politically motivated.

New Push for Court-Appointed Counsel in Immigration Cases

By Marcia Coyle

 Five immigrant rights organizations have filed a petition asking the Department of Justice to begin an official rulemaking to permit immigration judges to appoint counsel in certain cases.

"The massive increase in the number of immigration detainees, the increased complexity of the immigration law, and the inability of most immigrants to navigate the legal system without counsel all suggest the reconsideration of the appointment of counsel," the petition, filed June 29, states.

With pro bono help from Jones Day, the petition for rulemaking was submitted by the Catholic Legal Immigration Network Inc.; the National Immigration Forum; the National Immigrant Justice Center; the Northwest Immigrant Rights Project, and the Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College.

The groups call for appointment of counsel only where the immigration judge finds it is necessary for the proceedings to be "fundamentally fair." They say the judge should be required to consider eight factors, including the alien's ability to read, write, and comprehend the English language; the complexity of the case; and whether the alien is detained.

The groups contend there is no express bar to an immigration judge appointing counsel, either in the Immigration and Nationality Act or regulations. But the regulations require that an individual be informed of his "right to representation, at no expense to the Government, by counsel of his or her own choice." This regulation, particularly the "at no expense to the Government" statement, is often interpreted as being inconsistent with appointment of counsel by the Immigration court, they note.

The five groups, however, argue in their petition that there is nothing inconsistent with the broad rule allowing those in immigration courts to have a lawyer at their own expense and a narrow rule permitting the court to appoint lawyers in certain circumstances. The payment restriction in the broad rule, they contend, would not apply. "There are some contexts in which courts appoint counsel without payment," they noted, adding the Supreme Court has upheld those situations. But they called such appointment schemes "ill-advised," particularly in complex cases.

The groups also argue that appointing lawyers would generally save the government money and time by increasing the efficient functioning of the immigration courts and preventing undue delay while immigrants are detained at government expense. The petition notes that represented immigrants are consistently granted relief at a higher rate than unrepresented immigrants.

Charles Roth, director of litigation at the National Immigration Justice Center, said, "We find our argument convincing and we would hope it has traction both from the standpoint of justice and the standpoint of efficiency for the government. When someone is in immigrant detention, it costs the government $70 to $100 a day. We see this as having some benefits to the government."

Ninth Circuit's Kozinski is Admonished, and He Apologizes

The judicial council of the U.S. Court of Appeals for the 3rd Circuit, assigned to look into allegations against 9th Circuit chief judge Alex Kozinski, issued its memorandum opinion this morning, admonishing him but concluding that no further action or punishment was warranted. By maintaining sexually explicit material on a personal web site and inadequately safeguarding against public access to it, Kozinski's actions were "judicially imprudent" in the view of the council, and amounted to "disregard of a serious risk of public embarrassment."

The opinion contained these excerpts from Kozinski's apology:

"I have caused embarrassment to the federal judiciary. I put myself in a position where my private conduct became the subject of public controversy. While this was painful for me personally, my greatest regret is that I was identified as a federal judge, indeed, as a Chief Judge of the nation’s largest federal circuit. And thus whatever shame was cast on me personally, it reflected on my colleagues and our system of justice as well. * * * My unfortunate carelessness with certain files on my computer has embarrassed the federal courts. And for this, I am deeply sorry."

The Kozinski investigation was launched in 2008 after the Los Angeles Times reported that Kozinski's site contained explicit material, at a time when he was about to preside over an obscenity trial (under special designation as a trial judge.) Kozinski declared a mistrial and requested that the 9th Circuit's judicial council look into his conduct. Under special rules for such an investigation, the council asked Chief Justice John Roberts Jr. to transfer the probe to a different circuit. Roberts assigned it to the 3rd Circuit, which created a special committee for the probe. 

That's How Much Lawyers in the White House Make

Lawyers who work in the White House don't talk much, but they can't avoid having their salaries reported to Congress.

The Obama administration, complying with an annual congressional requirement, has released salary information for all those working in the White House, including more than 40 lawyers in the White House Counsel’s Office and other legal jobs. Click here for the full report and here (pdf) for a list with just legal staff.

White House Counsel Gregory Craig tops the list, naturally, at $172,200. By comparison, the former partner at Williams & Connolly made $1.7 million last year, according to a disclosure report released in April.

Below Craig, three people with the title of deputy White House counsel come in at $158,500: Daniel Meltzer, a longtime Harvard Law professor who is principal deputy; Cassandra Butts, a former vice president at the liberal Center for American Progress; and Mary DeRosa, deputy counsel for national security who previously worked on the Senate Judiciary Committee.

The list includes 12 people with the title of associate White House counsel, at a salary of $130,500. It also includes several detailees from other federal agencies. Virginia Canter, for example, detailed from the Treasury Department, is listed at $163,940.

Most of the salaries are the same as those paid to Bush administration lawyers a year ago. In January, President Barack Obama announced a pay freeze for those in the White House making more than $100,000 a year.

Morning Wrap

Franken ready to grill Sotomayor: Senate Democrats have been saving a seat on the Judiciary Committee for new senator Al Franken, according to several reports, and he already knows what he'll be asking Supreme Court nominee Sonia Sotomayor about at her confirmation hearing starting July 13: campaign finance, according to this report.

Pro bono survives recession: Law firms are cutting back in a myriad of ways, but American Lawyer reports that at top firms, commitment to pro bono work is stronger than ever. The institutionalization of pro bono programs, as well as the expectations of a new generation of lawyers may be factors.

Ton of debt, but no law license: Robert Bowman has aspired to be a lawyer almost all his life, and finally it seemed about to happen, after he passed the New York bar exam on his fourth try. But a panel of judges this spring denied him a New York law license, the New York Times reports, because of the $400,000 in debt he amassed along the way as he dealt with health and other issues.

Prop 8 hearing today: Former solicitor general Ted Olson will be in federal court in San Francisco this morning for a preliminary hearing in the challenge to the state's Proposition 8 ban on same-sex marriage. Olson and Bush v. Gore opponent David Boies have teamed up to pursue the challenge, but Boies is staying back in New York today, as reported by our AmLaw colleague Andrew Longstreth. 

Arnold & Porter Adds Lobbyist in D.C.

Arnold & Porter’s Washington office has picked up David Pore as a senior policy and legislative adviser.

Prior to joining the Am Law 100 firm, Pore was a lawyer with Hance Scarborough in Austin, Texas, a firm co-founded by former Rep. Kent Hance (R-Texas). Pore’s practice focused on representing trade associations, businesses, local governments, and economic development groups in state and federal legislative and regulatory matters.

Pore is currently registered to lobby on behalf of Amarillo Biosciences and Boyd Gaming Corp.

“David’s background as a practicing attorney and his years of experience on the Hill will be of tremendous value to our clients,” said Jim Turner, head of Arnold & Porter’s legislative and public policy group. “His skills in lobbying, legislative, and regulatory matters, as well as congressional investigations, will strengthen our capabilities in this area."

New Leadership in DOJ Office of Legislative Affairs Announced

Mark Agrast and Judith Appelbaum were named deputy assistant attorneys general in the Justice Department's Office of Legislative Affairs today.

Appelbaum, who joins the department from the American Constitution Society for Law and Policy, where she was the director of programs, will manage federal judicial and DOJ nominations in addition to civil and civil rights issues, the department said. Agrast, a former senior fellow at the Center for American Progress, will handle criminal and national security matters.

“Their deep policy and congressional experience will prove invaluable as we work with Congress to advance the Department of Justice’s legislative initiatives,” Assistant Attorney General Ronald Weich, who heads the legislative affairs office, said in a statement.

For more background on Agrast and Appelbaum, click here. Neither were immediately reached for comment.

Holder Appoints Chief Immigration Judge

Judge Brian O'Leary of the federal immigration court in Arlington, Va., has been named chief immigration judge in the Executive Office for Immigration Review, the Justice Department announced today. O'Leary has served as an immigration judge in Arlington since May 2007.

He is a former temporary member of the Board of Immigration Appeals and was the deputy chief immigration judge in the Office of the Chief Immigration Judge from March 2003 to May 2006. O’Leary, a member of the Massachusetts and Florida bars, spent five years working in the general counsel’s office of what was then called the Immigration and Naturalization Service.

The chief immigration judge sets priorities for the more than 200 immigration judges across the country in addition to providing program direction, policy and procedure, according to the Justice Department. Immigration judges preside over removal disputes involving foreign-born individuals charged with violating immigration law. They are civil service employees who work under the umbrella of the Justice Department.

A message left with O’Leary’s office was not immediately returned this afternoon.

Appointments to the immigration court came under fire in 2007 and 2008 following revelations that the Justice Department during the tenure of attorneys general John Ashcroft and Alberto Gonzales was using political factors in reviewing candidates for immigration judges. The Legal Times in May 2007 examined the politicization of immigration judgeships.

A hiring freeze was in place between December 2006 and April 2007 due to a discrimination suit filed by an immigration law prosecutor in El Paso, Texas.The DOJ Office of Professional Responsibility and the Office of the Inspector General explored the politics of immigration judge appointments in a report published in July 2008. A copy of the report is here.

Morning Wrap

Senator Franken:  After the Minnesota Supreme Court unanimously rejected Sen. Norm Coleman's challenges to the 2008 election results in that state, Coleman conceded and cleared the way, at long last, for former comedian Al Franken to join the Senate and give Democrats a potentially filibuster-proof 60 votes, the New York Times reports in its lead story.

no txting in va, pls: The Washington Post reports that a new law takes effect today in Virginia banning the sending or reading of text messages or emails while driving. A similar ban with stiffer fines takes effect Oct. 1 in Maryland, and D.C. already has a law on the books.

Huge IP Verdict in Texas: A jury in Texas hit Abbott Labs with a $1.67 billion damages verdict in a dispute with Johnson & Johnson over Abbott's drug Humira. In a story here, our sibling publication The Recorder analyzes why it happened.

Supreme Court Wrap: With the Supreme Court in recess for the summer, the Washington Post and New York Times offer their verdicts on the term, here and  here.

Federal Judge Questions Prosecution Conduct in Ye Gon Case

Reading slowly and deliberately from a prepared statement, Judge Emmet Sullivan of the federal trial court in Washington questioned whether prosecutors in a high-profile drug trafficking case violated the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.

A little background: prosecutors last week moved to dismiss the conspiracy case against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme with roots in Mexico and China. Last week in court, Sullivan had a lot of questions about the sudden decision to dump the case. Sullivan said today he will grant the government’s request.

But the judge also wants prosecutors to tell him why he should not be skeptical about their position that Justice Department lawyers did not violate their obligation to turn over favorable information to Ye Gon’s attorneys.

Sullivan is no stranger to disputes about Brady material. He presided over the Ted Stevens prosecution, which ended with the Justice Department seeking to reverse the jury verdict and dismiss the indictment based on the revelation that prosecutors withheld key evidence from defense lawyers. Sullivan obliged the department in April—and he launched a criminal investigation into the Stevens prosecution team.

“This is the second time in less than three months in a high profile case where the Department of Justice has come before this court and asked it to dismiss an indictment after allegations that Brady-Giglio information was not timely produced to the defense,” Sullivan said today.

At one point during his remarks Sullivan quoted from the U.S. Attorney’s Office manual when he spoke about the prosecution’s obligation to err on the side of disclosing exculpatory material. “All of this raises legitimate questions about whether the government ever intended to abide by its constitutional obligation to provide this information to the defendant,” Sullivan said.

The judge suggested the prosecution’s conduct may not have comported with the U.S. attorneys manual and with Attorney General Eric Holder Jr.’s oft-repeated statement that the job of the prosecutor is not to win cases but to do justice.

He also questioned whether prosecutors in the Ye Gon case violated the D.C. Rules of Professional Conduct with respect to “candor to tribunal”—that is, whether certain statements made to the court and in pleadings were false. But the judge said he was not making any formal finding of wrongdoing.

Paul O’Brien, chief of the Justice Department’s Narcotic and Dangerous Drug Section, said the government will respond in writing to Sullivan’s concerns “to educate the court better” about the timing of events in the Ye Gon case.

O’Brien maintained that the government did not violate its obligations to provide favorable material to Ye Gon’s lawyers.

D.C. Superior Court Rules Against Same-Sex Marriage Referendum

D.C. Superior Court Judge Judith Retchin ruled today that there will not be a voter referendum held on legislation recently passed by the D.C. Council recognizing gay marriages performed in other jurisdictions.

A group of ministers who oppose the legislation had asked the court to overrule the D.C. Board of Elections and Ethics and force a referendum on the bill. The leader of the group, Bishop Harry Jackson of Hope Christian Church in Beltsville, Md., told radio station WTOP that the ministers will now try to get a voter initiative on the 2010 ballot that would define marriage in the nation's capital as between a man and a woman.

The legislation, passed by the D.C. Council May 5, was introduced by Councilmember Phil Mendelson (D-at large). But fellow councilmember, lawyer David Catania (I-at large), is credited with taking the measure a step further. The original legislation would've recognized same-sex couples married elsewhere as domestic partners in the District. Catania convinced the council to change the bill so that those couples would be recognized as married.

Both Mendelson and Catania were recognized for their efforts in a special issue of The National Law Journal. 

FCC Chairman Picks His Staff

Federal Communications Commission Chairman Julius Genachowski has announced his staff. Not surprisingly, the list includes quite a few lawyers.  

Genachowski has tapped Edward Lazarus, a partner in Akin Gump Strauss Hauer & Feld's Los Angeles office, to serve as his chief of staff. Lazarus is a former prosecutor, having served as an assistant U.S. attorney for the Central District of California. Lazarus started his legal career as a law clerk to Justice Harry Blackmun.

Priya Aiyar will serve as a legal advisor, with particular responsibility for wireline competition and international issues. She joins the FCC from Kellogg, Huber, Hansen, Todd, Evans & Figel, where she was a partner in the firm’s litigation and telecommunications practices.

Colin Crowell will serve as senior counselor to the chairman and will focus on the communications, legislative, intergovernmental affairs, and public liaison functions of the agency. Crowell previously worked for Rep. Edward Markey (D-MA).

Bruce Gottlieb will serve as Genachowski’s chief counsel and senior legal advisor. Gottlieb will manage the commission’s overall agenda and have responsibility for policy coordination with the bureaus.

Ruth Milkman will lead the transition effort in Genachowski’s office. Milkman served at the FCC between 1986 and 1998 in a variety of roles, including deputy chief of the International and Common Carrier bureaus. Milkman also was a founding partner of Washington’s Lawler, Metzger, Milkman & Keeney.

Mary Beth Richards will serve as Genachowski’s special counsel for FCC Reform, and will head a program to provide openness and transparency at the agency. Most recently, Richards worked as the FCC’s deputy general counsel, and has been serving as acting managing director. 

Sherrese Smith will serve as a legal advisor, focusing on media, consumer and enforcement issues. She was most recently vice president and general counsel of Washington Post Digital. Prior to that, Smith was a member of the intellectual property group at Arnold & Porter.

Campaign Finance Case and the Vote on Sotomayor

The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for re-argument Sept. 9 may introduce more pressure on the Senate to confirm Supreme Court nominee Sonia Sotomayor and have her on the bench by then.  

Here's how it works: the Court, for whatever reasons -- and theories abound -- ordered new arguments and wants the parties to file additional briefs on whether the Court  should overturn its 1990 decision Austin v. Michigan Chamber of Commerce and part of the 2003 ruling in McConnell v. FEC. Both decisions upheld bans on independent expenditures in connection with campaigns from corporations and unions. The only way corporations and unions can participate in campaigns now is through regulated political action committees.

The Court's action sounded alarms among campaign reform organizations, who see those key precedents in jeopardy at the hands of the Roberts Court, which has shown general hostility toward several provisions of the 2001 McCain-Feingold law upheld in McConnell. Fred Wertheimer of Democracy 21 said that if the precedents the Court wants to review in September are overturned, companies would be "free to spend hundreds of millions of dollars of their corporate wealth" on campaigns, and such an action by the Supreme Court would be  "the height of judicial activism and an abandonment of the principles of judicial restraint."  

Justice David Souter, who retired as of midnight last night, was a reliable vote in favor of campaign finance regulations, so would have been almost certain to uphold Austin. If Sotomayor is seated in time to hear the arguments, her record suggests she would be a likely supporter too. Without her, the outcome on an eight-member Court would be uncertain. Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas have already criticized Austin.

In this post on Election Law Blog, Rick Hasen even wonders aloud whether Souter knew about the Court's plan to reargue the case when he decided on May 1 to retire as of the start of the summer recess, rather than when his successor is seated. If he had done the latter, he might have sat for the argument but been off the Court by the time a decision was announced -- an awkwardness he might have wanted to avoid.

Womble, Carlyle, Sandridge & Rice Faces Malpractice Suit

Womble, Carlyle, Sandridge & Rice is facing a legal malpractice suit from a Catholic radio broadcaster and education group that alleges mistakes by the firm cost it millions of dollars.

The North American Catholic Educational Programming Foundation alleges that Womble missed crucial deadlines and made other mistakes that caused the foundation to lose its bids for several telecommunications channels and new broadcast licenses. The bids were made in small markets, such as Eureka, Calif., as well as larger cities such as Las Vegas and Toledo, Ohio.

The foundation’s complaint, filed last week at the U.S. District Court for the District of Columbia by a legal team from Zuckerman Spaeder—including Mark Foster, Thomas Mason and Andrew Goldfarb—names Womble as well as former Womble attorney Howard Barr as defendants. Womble’s general counsel declined to comment on the suit, but a secretary at its Washington office said Barr had not worked at the firm in more than a year. No new contact details for Barr could immediately be found.

The foundation’s allegations stretch back to an application it filed in 1994 to acquire four new telecommunications channels in Henderson, Nev., just outside Las Vegas. When the Federal Communications Commission rejected the application in 2004, handing the channels to a competitor instead, the foundation instructed Womble to file an appeal with the U.S. Court of Appeals for the D.C. Circuit. The firm allegedly filed after 32 days — two days past the deadline. The appeals court dismissed the filing as untimely.

“But for Defendants’ errors, the Court of Appeals would have considered the substance of NACEPF’s appeal and would have vacated the FCC’s decision,” the complaint states. “Defendants’ errors in connection with the license application for the Las Vegas market injured NACEPF and caused it to suffer millions of dollars in damages.”

The complaint goes on to list a series of alleged missed deadlines and botched applications between 2004 and 2007. Its counts include legal malpractice, breach of contract, breach of implied duty and breach of fiduciary duty, and it asks for unspecified damages.

Quinn Gillespie Goes to Dinner in the Caymans

Quinn Gillespie lobbyists Jack Quinn and Manuel Ortiz will update their client, the Cayman Islands Financial Services Association, on their Capitol Hill efforts - over dinner in the Caymans. 

The firm confirms that Quinn and Ortiz will speak at a dinner sponsored by the association on July 7. The subject is strategies to combat the islands' reputation as a haven for American tax evaders, something the association and Quinn Gillespie dispute. 

"We’re going to be reporting to a group in the Cayman Islands on our ongoing efforts to get the truth out," Quinn said, in a statement relayed through a spokesperson. The Cayman Islands, he says, are "a vital element of the global financial marketplace, not a place to practice tax evasion."

The National Law Journal published a story about lobbying over tax haven legislation here. 

Former Morgan, Lewis Chairman Dies at 90

Francis Milone, chairman of Morgan, Lewis & Bockius sent the following e-mail to all personnel today, announcing the death of one of the firm's former chairmen, Thomas Lefevre, at the age of 90:   

A number of you may have heard that former firm chair Thomas V. Lefevre – one of the legendary “Gang of Four” partners critical to Morgan Lewis’s evolution from a Philadelphia practice into a national firm in the 1970s – has passed away. Tom would have been 91 in December. Our sympathies go out to Tom’s family as we remember this venerable partner’s many significant, lasting contributions to the firm and its success. 

Tom’s history at Morgan Lewis began in 1955, when he joined the firm as a tax law associate. He made partner a year later, gaining a reputation as an outstanding lawyer with not only a steel-trap mind for the complex intricacies of tax law, but a gift for making the subject matter understandable to others. In addition, Tom developed a segment of tax practice focused on leveraged lease transactions – the success of which ultimately spawned the opening of our New York office. 

Over the course of several years, Tom also emerged as a bold and enthusiastic agent of progress and change at the firm. He co-authored an unsolicited report to firm leadership in 1962, critiquing Morgan Lewis’s high partner-to-associate ratio, its lack of retirement policy and the absence of partnership selection criteria. The report was rejected by many initially but gained respect over time. Quoting an American Lawyer article on the ascent in 1971 of Tom and partners Park Dilks, Robert Young and William Curtin, the firm was “turn[ed] over to a Gang of Four … who proceeded to implement” then-firm chair W. James MacIntosh’s “vision of expansion.” 

Born in Dallas on December 5, 1918, Tom graduated from high school at age 16, and earned his B.A. and law degrees from the University of Florida in 1939 and 1942, respectively. He enlisted in the Marines, survived heavy combat in World War II and rose to the rank of major before retiring from the service in 1945 and obtaining his L.L.M. from Harvard the following year. 

Before joining Morgan Lewis, Tom practiced as a litigation associate at Sullivan & Cromwell; as a trial lawyer at the IRS; at a Washington, D.C. firm launched by former Sen. Claude Pepper; at Paul, Weiss, Rifkind Wharton & Garrison; and finally at Chapman, Bryson, Walsh & O’Connell, where he met Brady Bryson, then a former Morgan Lewis associate who was planning a return to the firm as partner and convinced Tom to join him. 

Tom left Morgan Lewis in 1979 to become VP of corporate development for longtime firm client UGI Corp. A year later, he became UGI’s president, and, ultimately, its chairman and CEO – a position he held until his retirement in 1989. 

Once again, please join me in offering Tom’s family condolences during this sad time, and in acknowledging the important chapter Tom represents in this firm’s history. 

F.M.M.

Franken's Court Ruling a Victory for D.C. Lawyer

The unanimous ruling by the Minnesota Supreme Court in favor of Democratic Senate candidate Al Franken is also a win for D.C. lawyer Marc Elias.

Elias, a partner with Perkins Coie, has represented Franken through much of the legal battle since the November election. A specialist in elections law and campaign finance who was general counsel to the Kerry-Edwards campaign in 2004, Elias argued Franken’s case before the Minnesota Supreme Court a month ago.

The court ruled 5-0 today that Franken, a satirist-turned-politician, won the election and should be certified as the winner, the Minneapolis Star Tribune reports. The decision could have far-reaching implications for the Senate, where Franken would be the 60th vote controlled by or allied with the Democrats (58 Democratic and two Independent senators). Among other things, it would be easier to advance nominees for the U.S. Supreme Court, the lower federal courts and the Department of Justice.

The case is now in the hands of Republican Gov. Tim Pawlenty, who has the authority to issue a certificate of election to Franken. If former Sen. Norm Coleman, the Republican candidate whose incumbency ended in January, chooses to appeal to the U.S. Supreme Court, then any emergency request would go to Justice Samuel Alito Jr. Alito hears all emergency appeals from the 8th Circuit, which includes Minnesota.

Minneapolis lawyer Joseph Friedberg represents Coleman.

UPDATE: Alito's services will not be needed. Coleman has conceded.

Sizing Up the Supreme Court Term

Please forgive a brief interruption from the editor.

On Monday, we will be gathering four lawyers who argued some of the biggest cases of the Supreme Court term for a roundtable discussion with our Supreme Court correspondent Tony Mauro.

The panel includes David Frederick, a partner at 
Kellogg, Huber, Hansen, Todd, Evans & Figel, who argued three cases this term; Neal Katyal, deputy solicitor general; Gregory Coleman, a partner at Yetter, Warden & Coleman, who argued two of the highest-profile cases of the term Ricci v. DeStefano and Northwest Austin Municipal Utility District Number One v. Holder; and Pamela Harris, of counsel at O’Melveny & Myers, who argued Pleasant Grove v. Summum, a major First Amendment case.

This panel is aimed directly at practicioners and law students — and is a great event for summer associates: Mauro focuses on lawyers who appeared before the court during the previous term and asks them to walk through their cases, their strategies before argument, and how they reacted to questioning from the bench.

The discussion is being held at Georgetown University Law Center’s Hart Auditorium, 600 New Jersey Ave., NW, in Washington. Tickets are $35, which covers the costs of the panel discussion and a wine-and-cheese networking reception following the panel. Registration begins at 3 p.m., and the panel discussion begins at 3:30. You can find more details or purchase tickets here.

Defense Lawyers Want Charges Dismissed with Prejudice in Ye Gon Case

Earlier this month, Judge Emmet Sullivan took the bench in a hearing in the prosecution of Zhenli Ye Gon, a businessman at the center of an international drug trafficking conspiracy, and the judge put the government on notice.

If government prosecutors don't abide by their obligations to turn over favorable information to Ye Gon’s defense lawyers, the judge said at the hearing June 2 in U.S. District Court for the District of Columbia, “the sanctions will be severe,” according to a transcript released Monday.

“I don’t want to spend a lot of time on Brady because if no one knew about Brady before [the ex-Sen. Ted] Stevens [case], everyone does now, and I’ve crafted a standing order I’m going to issue,” Sullivan said at the hearing. “Everyone’s fairly aware of everyone’s—of the government’s Brady obligations and that’s just not an issue that’s open for debate."

Last week, Justice Department prosecutors moved to dismiss the conspiracy charge against Ye Gon, citing “evidentiary concerns” and the importance of prosecuting the case in Mexico. Authorities in Mexico, according to Justice filings, consider the Ye Gon case one of high public interest. Prosecutors moved to dismiss the case without prejudice. A hearing is scheduled for this afternoon in Sullivan’s court.

Following the government’s motion, Sullivan ordered all the lawyers into court for an emergency status conference. The judge lashed the prosecution team and questioned the motive for the sudden twist in the case. Ye Gon has been jailed since his arrest in the summer of 2007.

Mexican authorities have for some time sought Ye Gon’s return to Mexico for prosecution there on charges that include organized crime and drug manufacturing, the judge noted in court. Sullivan grilled prosecutors about why the “evidentiary concerns” were not passed along to Ye Gon’s lawyers sooner.

Lawyers for Ye Gon, including Manuel Retureta and A. Eduardo Balarezo, said in a filing (.pdf) Monday evening that the conspiracy charge should be dismissed with prejudice because the government knew about “evidentiary concerns”—the fact a key witness recanted—for more than a year before the information was disclosed to the defense.

“The fact that the government knew that a witness recanted months ago and didn’t disclose that information to the defense is, indeed, sanctionable in itself,” Sullivan said in court June 2.

At the hearing, Justice Department trial attorney Paul Laymon noted how “things have a habit of turning quickly” in the Ye Gon case.

Laymon noted that the government hit “stumbling blocks” trying to arrange depositions in China. The Chinese government sought to impose certain restrictions on the depositions, Laymon said. Ultimately, the government abandoned the depos.

“Is this case due for a change real quickly?” Sullivan asked at the June 2 hearing. Indeed, it was.

Paul O’Brien, chief of the Justice Department’s Narcotic and Dangerous Drug Section, made an official appearance in the Ye Gon case this week. O’Brien was among the prosecutors tapped to replace the trial prosecution team in the Ted Stevens case after allegations of prosecution misconduct surfaced.

Morning Wrap

Supreme Finale: The Supreme Court recessed for the summer on Monday, with dramatic decisions on civil rights and financial regulation, and a fond farewell for retiring Justice David Souter, as we reported here and here. On Slate, election law blogger Rick Hasen also analyzes the Court's surprise action ordering reargument in a key campaign finance case.

Madoff Finale: Crooked financier Bernard Madoff will have 150 years in prison to contemplate his "evil" acts, as a New York federal judge described them Monday. Madoff faced his victims and apologized. New York Law Journal's report is here via law.com.

Jackson Legal Legacy: The grandmother of Michael Jackson's children moved quickly and successfully to take custody Monday. But the whereabouts and intentions of the mother are uncertain. USA TODAY reports.

Davis Case Still Pending: The Supreme Court recessed without acting on an appeal from Georgia death row inmate Troy Davis's appeal. His claims of innocence have gotten international attention, reports Bill Mears of CNN here.

Judge Dismisses Bagram Habeas Case

A federal judge today dismissed the habeas case of a detainee held at a U.S. military base in Afghanistan, finding that Congress had not acted unconstitutionally by stripping the court's ability to hear such cases.

The ruling comes three months after the same judge found that other prisoners at the Bagram Theater Internment Facility did have the right to challenge their status as enemy combatants. In those cases, the three men were non-Afghans who had been captured in other countries and brought to the prison, located just outside Kabul.

Judge John Bates of the U.S. District Court for the District of Columbia found that the men’s special circumstances entitled them to access American courts. He ruled that a fourth man, Haji Wazir, an Afghan citizen, did not have that right however, because his release could cause undue tension with Afghanistan’s government. The judge nonetheless held off on a final decision in the case in order to look at a separate set of constitutional issues.

That ruling came today. Wazir’s lawyers had argued that the Military Commissions Act of 2006, which banned federal courts from hearing habeas cases brought by detainees, violated the constitutional separation of powers by essentially telling judges how to decide cases that were already pending before them.

Bates found differently. Citing U.S. v. Klein, the judge ruled that Congress is allowed to pass statutes that affect the underlying law involved in a case, so long as they do not dictate specific factual findings or results to a court.

Shouting Fire: First Amendment Documentary Airs Tonight

Some of the First Amendment's many faces will be on display tonight on HBO (at 9 p.m., repeated through the week) in a must-see documentary that also features noted First Amendment lawyer Martin Garbus, partner at the New York firm Eaton & Van Winkle. It's called Shouting Fire: Stories from the Edge of Free Speech, and is directed and produced by his daughter Liz Garbus.

It's a dynamic look at the history of free speech in the last century, including the McCarthy era, Vietnam protests, and post-9/11 paranoia. But that history is interspersed with in-depth portraits of three controversial speakers of recent years: Ward Churchill, who was drummed out of his job as a professor at University of Colorado-Boulder after suggesting that the 9/11 attack on the World Trade Center was not a senseless act; Debbie Almontaser, forced to resign as principal of a New York City school after the New York Post twisted remarks she had made about the meaning of "intifada"; and California high school student Chase Harper, who was suspended for wearing a t-shirt with the message, "Homosexuality is shameful."

The portraits were sympathetic but thought-provoking. During a panel discussion following a preview of the documentary at the Newseum earlier this month, Paul Smith of Jenner & Block offered an alternate view of the Chase Harper episode as possibly part of a hostile environment for gay students. An audience member also noted that in the Almontaser case, the New York Post was a First Amendment actor too. 

The father-daughter connection makes for an interesting dynamic, seen in intermittent commentary by the elder Garbus during the documentary. The fearless Martin Garbus, who has represented the likes of Lenny Bruce, Daniel Ellsberg, and Don Imus, mellows in front of a camera wielded by his daughter.

When she asks him why Almontaser, the banished New York City principal, can't sue the New York Post for libel for its misleading stories that led her to resign, Garbus says he looked into it and found Almontaser had no legal remedy, given the strong protections afforded the news media. "Is that OK?" she asks incredulously. With resignation, the father says, "Under the law, it's OK."

In a final poignant moment, Liz Garbus asks her father on camera what lessons about freedom of speech he wanted to teach her as a child. "If you don't fight for it every day, you're going to lose it," Garbus said without hesitation. "And don't let the fucking guys win." 

Sessions: Ricci Case Strengthens Civil Rights

The top Republican on the Senate Judiciary Committee is praising the Supreme Court's decision today in Ricci v. DeStefano, echoing the majority's opinion that the City of New Haven acted illegally.

"The Court's opinion is important because it recognizes that our civil rights law's prohibition on racial discrimination must be applied evenhandedly," Sen. Jeff Sessions (R-Ala.) said in a statement. "The City’s action to deny promotion to these 18 firefighters after they had taken and passed an objective exam, fairly created and administered, amounted to reverse discrimination against the firefighters, in violation of federal law."

Earlier, Judiciary Committee Chairman Patrick Leahy (D-Vt.) said that the ruling will weaken attempts to fight workplace discrimination. In a conference call with reporters, Sen. Chuck Schumer (D-N.Y.), a member of the Judiciary Committee, said it was too early to say if Congress should try to amend Title VII of the Civil Rights Act to counteract the Court's ruling in Ricci.

Sessions, in his statement, added that the Ricci ruling "will only raise more questions" about Supreme Court nominee Sonia Sotomayor, who was part of the three-judge panel that considered the case in the U.S. Court of Appeals for the 2nd Circuit.

"Every citizen has a right to have his or her case heard by a judge who will rule on the laws, the facts, and the Constitution — and not play favorites," Sessions said. "This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and political views should influence a judge’s decision. That theory is a breathtaking departure from the proper role of the American judge and will clearly be the subject of questioning at the upcoming hearing.”

Supreme Court Shuffles Circuit Assignments

On its busy final day before recessing for the summer, the Supreme Court has just issued orders including new circuit assignments for the justices. The new lineup was needed because Justice David Souter's retirement leaves, as of tomorrow, an eight-member court until his replacement is seated. Each justice is assigned one or more circuits to receive and handle emergency applications and other matters from those areas.

As we predicted here recently (second item,) Justice Souter's 1st and 3rd circuits will be given, at least temporarily, to justices who once sat on those circuits -- Stephen Breyer gets the 1st, and Samuel Alito Jr. will handle the 3rd. Alito also will continue to handle matters from the 8th, and Breyer will retain the 10th as well.  Justices usually don't get their "home circuit" when they first join the Court, but after a few years into their tenure, they often gravitate there (for example Anthony Kennedy now handles the 9th, where he sat, and Clarence Thomas has the 11th, where he grew up.) If that trend continues, Breyer may keep the 1st and Alito the 3rd even after a new justice is seated. Nominee Sonia Sotomayor, if confirmed, then would probably get the 8th or 10th -- or another circuit if other justices want a change of venue.

The new assignments can be found at page four of this document.

Group Targets Bar Licenses for Lawyers Involved in 'Torture Memos'

A group calling itself Velvet Revolution in May filed a dozen bar complaints against former and current government lawyers who had some role in signing off on detainee interrogation tactics that critics say amount to torture.

Velvet Revolution didn’t use a press release to announce the filing of three more ethics complaints, including one against CIA Acting General Counsel John Rizzo. In front of TV cameras and a room full of journalists, Velvet Revolution made its pitch at the National Press Club.

Civil rights lawyer, singer and poet Shahid Buttar, one of three speakers today, said the “court of public opinion” is the target audience considering the inactivity on the part of the Obama administration and Congress to punish government lawyers who reviewed harsh interrogation tactics.

Bruce Fein, a former Justice Department lawyer under the Reagan administration, urged Congress to “step up to the plate” and pursue full and open hearings regarding the so-called torture memos. The Justice Department Office of Professional Responsibility is preparing to release its own report on the memos. Fein, a former associate deputy attorney general, said the executive branch should not be allowed to investigate itself and have that be the final word.

Velvet Revolution filed ethics complaints with the D.C. Bar against Rizzo and Jonathan Fredman, former associate general counsel at the Central Intelligence Agency who has been assigned to the Office of the Director of National Intelligence. Click here for the complaints. A third complaint, against former CIA General Counsel Scott Muller, is expected to be filed Tuesday. Muller is now a partner in the New York offices of Davis Polk & Wardwell, where he practices in the litigation and global compliance groups.

The complaints allege Rizzo, Fredman and Muller advocated “immoral and unethical ‘extended’ or ‘enhanced’ interrogation techniques … that resulted in clear violations of U.S. and international law. “ Rizzo, admitted to the D.C. Bar in 1973, has no record of disciplinary history. Rizzo was not immediately reached for comment today. Fredman, a member of the D.C. Bar since 1988, declined to comment. Fredman has no prior record of disciplinary action.

Madoff Gets 150 Years

The Am Law Daily reports that Bernie Madoff has been sentenced to 150 years in prison. For some of the counts, Judge Denny Chin gave the convicted financier 20 years, the maximum amount allowable under the law.

Chin deferred the question of restitution for 90 days.

Chin said from the bench that he didn't agree with the position of Madoff's lead counsel, Ira Sorkin, that victims were seeking "mob justice." Chin called Madoff's fraud "unprecedented" by any monetary measure.

The Am Law Daily has more here.

Supreme Court's Odd Not-so-Final Day

UPDATE: For detailed coverage of today's action including the firefighter decision and the national bank case, check The National Law Journal site here. 

--

A feeling of finality blended  with a sense of unfinished business this morning at the Supreme Court's final sitting of the current term. The Court issued two of its three remaining decisions -- Ricci v. DeStefano, the New Haven firefighter case, and Cuomo v. Clearing House Association, on the regulation of national banks. And It bade a poignant farewell to Justice David Souter on the occasion of his retirement from the Court after 19 years.

But in the rarest of moves, the Court also scheduled its third remaining case for re-argument Sept. 9. The case is Citizens United v. Federal Election Commission, on whether the so-called "Hillary movie," a movie critique of then-candidate Hillary Clinton, violated campaign finance laws. Ordinarily when the Court can't resolve one of its cases, it will reschedule it for argument in the fall, meaning after the first Monday in October, when it resumes hearing oral argument for the new term. Today's action puts the case on the docket in an odd limbo period during the Court's usual summer recess. One possible explanation has to to with the Court's strong tradition of completing all of one term's work before the next term begins. Perhaps the justices hope that by scheduling new arguments for Sept. 9, they can issue a decision by the time the current term ends just before Oct. 5.

The big news from the morning was of course the Ricci decision, in which a 5-4 majority, led by swing justice Anthony Kennedy, found that New Haven's decision to discard the results of a firefighters' promotion exam violated Title VII of the Civil Rights Act because it amounts to discrimination on the basis of race. No African-American applicants had passed the test, and the city argued that it tossed out the exam, ironically enough, out of fear that it would be sued by the African-American applicants for violating Title VII on a "disparate impact" theory.

More Reaction to Ricci Decision

Barbara Arnwine, executive director of the liberal Lawyers’ Committee for Civil Rights Under Law: "We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964. Like Justice Ginsburg, we anticipate that the decision 'will not have staying power.'"

Ed Whelan, on the conservative National Review Online: "Judge Sotomayor thought it appropriate to use an unpublished summary order to dispose of the claims of the New Haven firefighters in Ricci v. DeStefano. Today the Supreme Court issued 93 pages of opinions in the case that Sotomayor acted to bury. Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven."

Nan Aron, president of the liberal Alliance for Justice: “Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination. The majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”

Jay Sekulow, chief counsel of the conservative American Center for Law and Justice: "This Supreme Court decision - which overturns Judge Sotomayor's legal position - puts the nominee's views on judicial activism front and center at the upcoming confirmation hearings. How does Judge Sotomayor view the Constitution, the rule of law? What's the proper role of the judiciary when it comes to issues like race - is it to set public policy, or uphold the rule of law that is gender and racially neutral? These are important questions that now become even more significant in light of today's decision by the Supreme Court. We look forward to hearing from Judge Sotomayor on this issue and others in the days ahead."

The liberal Center for American Progress: "Although today's decision rolls back 25 years of lower court precedent, the Supreme Court's unique position as the nation's highest Court empowers it to strike down well-established precedents that lower court judges are required to follow. Unfortunately, some on the right will undoubtedly use today's decision as an opportunity to score political points against President Barack Obama and his nominee to the Supreme Court, Judge Sonia Sotomayor. These attacks have no merit. Unlike the Supreme Court, Judge Sotomayor was bound by Second Circuit precedent when she voted to reject Frank Ricci's discrimination claim."

Leahy: Ricci Decision Weakens Civil Rights Protections

The chairman of the Senate Judiciary Committee, which often has jurisdiction over civil rights issues, is warning that today's Ricci decision could have a negative impact on attempts to fight workplace discrimination.

Sen. Patrick Leahy (D-Vt.) released a statement saying that the majority's decision "interprets the critical protections of Title VII in a way never intended by Congress when it passed this landmark law to prevent workplace discrimination more than 40 years ago."

In his opinion for the Court, Justice Anthony Kennedy wrote that the City of New Haven failed to "demonstrate a strong basis in evidence" that it would have lost a suit that minority firefighters could have brought if the city had not thrown out the results of a promotions exam.

Leahy added: "It is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces."

Rep. Lamar Smith (R-Texas), the top Republican on the House Judiciary Committee, praised the decision, calling New Haven's actions discriminatory.

“No individual should be denied a promotion simply based on the color of their skin," Smith said in a statement. "The Second Circuit wrongly upheld a decision that supports discrimination by the government. The Supreme Court today reminded all courts and governments that equal justice under the law means refusing to tip the scale in favor of one race over another."

Live Blogging the Madoff Sentencing

The Am Law Daily is live blogging the sentencing hearing of convicted Ponzi schemer Bernie Madoff from inside the courtroom.

So far, a parade of victims have called upon Judge Chin to give Madoff the maximum allowable sentence, with one saying, "Everytime [Madoff] cashed a check, he killed dreams."

Read about the action here.

Early Reactions to the Ruling in Ricci

The reactions so far to the Supreme Court's 5-4 ruling in Ricci v. DeStefano are as polarized as the justices' opinions. And much of the commentary is focusing on Supreme Court nominee Sonia Sotomayor.

Wendy Long, counsel to the conservative Judicial Confirmation Network, released a statement saying the outcome reflects poorly on Sotomayor, who participated in the case as part of a three-judge panel on the U.S. Court of Appeals for the 2nd Circuit. She also voted against the appeals court rehearing the case en banc.

"Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error," Long said. "Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession. What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One."

Over at SCOTUSblog, Thomas Goldstein of Akin Gump Strauss Hauer & Feld initially wrote this morning that justices stayed away from how the 2nd Circuit handled the case. The opinions today, he wrote, "have almost no discussion of the court of appeals' ruling. Justice Ginsburg has a short discussion of how the ruling reflected prior Second Circuit precedent." But he then quotes Justice Samuel Alito Jr., who wrote that lower courts had denied petitioners the "evenhanded enforcement of the law."

Even before the ruling came down, the liberal advocacy group People for the American Way released a statement from Marge Baker, its executive vice president. The "Supreme Court’s ruling, whatever it may be, will not reflect upon Sotomayor’s jurisprudence," Baker said. "Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism."

Supreme Court Rules In Favor of White Firefighters

The Supreme Court ruled in favor of the white firefighters in the reverse discrimination case out of New Haven, Conn., overturning a decision joined by Judge Sonia Sotomayor when it was heard at the 2nd Circuit.

The 5-4 decision in Ricci v. DeStefano, available here, split along ideological lines. Justice Anthony Kennedy delivered the opinion and was joined by Chief Justice John Roberts Jr., and justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Justice Ruth Bader Ginsburg wrote the dissent which was joined by justices John Paul Stevens, David Souter, and Stephen Breyer.

Stay tuned to the National Law Journal for more coverage of the Supreme Court.

Chief Justice Roberts Speaks on Too-Long Briefs, Too Many Questions

Speaking at the conference of the U.S. Court of Appeals for the 4th Circuit on Saturday, Chief Justice John Roberts Jr. said briefs before the high court are running too long, while the justices themselves are asking too many questions at oral argument.  Roberts made the remarks during a conversation with Judge J. Harvie Wilkinson III at the Greenbrier at White Sulphur Springs, West Virginia, remarks that are transcribed here.

Wilkinson asked Roberts how he would change Supreme Court practice. After joking that the chief justice should be given two votes, Roberts talked about briefs filed by parties that run 50 pages or more. The word limits were set, he said, when it was not common for allies of the parties to file as many as 40 amicus briefs. But with amicus filings growing, Roberts said there's no reason why a party's brief could not shed some of the subisidary points that can be handled by amicus groups.

"There's no reason that a party's brief couldn't be even more effective at 35 pages, certainly at 40 pages," Roberts said. "It would force the lawyers to do a better job of hitting the main points that they have to argue." Roberts readily acknowledged that as a former practitioner who wrote lengthy briefs, "there will be some sense of hyporcisy here."

On the subject of oral arguments, Roberts said, "I think we're getting carried away" with questioning. "It is a little too much domination by the bench." There too, he said, "I'm as guilty as anyone." He said justices talk about the problem from time to time. "It would be good if we were a little more restrained." Roberts even suggested giving justices timers as in speed chess, so they can see how much time they are eating up with their questions. Roberts did not mention the possibility of lengthening oral argument time beyond the current half-hour for each side, a perennial suggestion over the years.

Wilkinson asked Roberts how he handles all the various duties of chief justice, including being chancellor of the Smithsonian Institution, as well as being the father of two young children. Roberts said he'd be getting some down time as of Tuesday, with a lot less to do during the summer recess. "Our work really ramps up to the end of the term, and then it just drops off. I mean, you come in there the day after the term is over and just kind of twiddle your thumbs." Roberts said he has able help from administrators and from the Judicial Conference in his other duties. As for the Smithsonian, Roberts called that role "an interesting distraction."

An audience member asked Roberts what guidance school administrators should draw from the 2007 "Bong Hits for Jesus case" (Morse v. Frederick) which gave school officials wide discretion in restricting student activities, in contrast to last week's ruling in Safford Unified School District v. Redding which seemed to limit school officials' discretion in searching students.  "If you're going to get all your guidance on issues of that type from the Supreme Court, you're going to have a lot of difficulties," Roberts said. "You can't expect to get a whole list of regulations from the Supreme Court. That would be bad, and we wouldn't do a good job at it." School boards set policy, and in other areas the Court handles, Roberts said administrative agencies have the task of giving specific guidance.

This Week in The National Law Journal

Environmentalists Shut Out: The Supreme Court ends its term today, but its environmental docket was completed last week, and environmental groups went 0 for 5, Marcia Coyle reports. One possible explanation: those opposing the environmentalist position hired Supreme Court specialists to make their cases, rather than environmental law experts.

Can Voting Rights Act Act Survive its Victory? The Supreme Court's surprising 8-1 decision last week stepping back from deciding the constitutionality of a key part of the Voting Rights Act contained the seeds of a future challenge that might succeed, a story by Tony Mauro indicates in assessing the aftermath of the landmark case.

Extra Step for Recruits: It may not be what law school grads had in mind, but more law firms are unveiling apprenticeship programs for new recruits, according to this story by Jeff Jeffrey. 

Stem Cell Disappointment: The Obama administration's approach to stem cell research is not as different from the Bush policy as many had hoped, says columnist Russell Korobkin in an opinion piece.

Morning Wrap

Jackson's Legal Legacy: Not surprisingly, the death of Michael Jackson leaves unresolved a range of legal matters involving lawyers nationwide, as discussed in this story via law.com. "Michael got sued a lot," said one lawyer. 

Detainees' Rights: The New York Times has this report on new advice offered  by the Justice Department's Office of Legal Counsel on the constitutional rights of Guantanamo detainees, part of the Obama administration's re-examination of the military commission procedures devised by the Bush administration.

Jenny Sanford, Heroine: If the scorned wife of South Carolina Gov. Mark Sanford had any political ambitions herself, she'd probably be able to run and win election as governor, a Washington Post story suggests. Jenny Sanford's handling of her husband's affair and its impact on their family has won praise in the state. 

Scalia Dishes: At the State Bar of Texas annual meeting, Supreme Court Justice Antonin Scalia offered some sharply worded advice for appellate advocates, based on the book he co-authored with Bryan Garner, Making Your Case: The Art of Persuading Judges published last year.  According to this report in Texas Lawyer via law.com, Scalia told lawyers not to play "fast and loose" with citations, or else the judge "is not going to believe the rest of your brief." And when, in response to a judge's hypothetical, a lawyer says "that's not this case," Scalia confessed that what goes through his mind is, "I know it's not this case, you idiot."