The BLT: The Blog of Legal Times

Coming to Bookstores: Dexter Mitchell, the Fictional Joe Biden

Art imitates life, and sometimes it forecasts it. As reported in our story today, Christopher Buckley's latest satirical novel Supreme Courtship is due out this week, and it tackles the absurdity of the Supreme Court nomination and confirmation process. One of the main characters is one Sen. Dexter Mitchell of Connecticut, who chairs the Judiciary Committee. In an interview last week, before any real-life vice-presidential candidates were picked, author Buckley confirmed that his model for the character was Sen. Joe Biden, (D-Del.) who served the same role during the confirmation hearings of Robert Bork and Clarence Thomas, among others. Throughout the book, Buckley riffs on Biden's... make that Mitchell's... gift for gab and not insignificant ego.

Early in the book Buckley writes, "For all his qualifications, Dexter somehow added up to less than the sum of his considerable parts. His epic loquacity was not an asset. Successive campaign advisers had tried without success to get him to give briefer answers, but nothing had stemmed the logorrheic tide, the tsunami of subordinate clauses and parenthetical asides, the inexorable mudslide of anecdotage. His campaign 'listening tours' were occasions of mirth among political reporters, since it was the people he met who did the listening." We won't spoil it for you, but yes, in the book Mitchell also has presidential ambitions, and he does some amazing things to get to the White House. And yes, he commutes to and from home by rail, just like Biden. Buckley even gives him a dog named Amtrak.

This Week in Legal Times

David Remes, a former partner with Covington & Burling, has left the world of corporate law to defend terrorism suspects, reports Joe Palazzolo. While at Covington, his clients included Exxon Mobil and IBM. Now, he will raise a human rights practice, Appeal for Justice, around his work representing Guantánamo Bay detainees.

Mike Scarcella reports C-SPAN is asking the U.S. Court of Appeals for the D.C. Circuit to strike down a one-year-old Federal Communications Commission rule that mandates cable companies to continue to carry both analog and digital version of broadcast channels after broadcasters switch to a digital signal in February.

In Inadmissible, Jeff Jeffrey reports the D.C. Superior Court has its new chief judge. A seven-member commission selected Judge Lee Satterfield over Judge Anita Josey-Herring.

Morning Wrap

DNC to Kick Off Today: According to the New York Times, speakers at this year’s Democratic National Convention will address important differences between Sen. Barack Obama and Sen. John McCain. The approach will be different from 2004 when Sen. John Kerry's aides discouraged convention speakers from going after President Bush.

SEC Struggling in Court: The SEC has alleged in about a dozen cases that hedge funds, or their managers, have used private sales of unregistered stock in public companies to hedge short sales of those same companies. John F. Mangan Jr., a former hedge fund salesman, is involved in one of these cases but both a ruling in October and a summary judgment on Wednesday said none of Mangan’s actions were illegal, according to The National Law Journal, via Law.com.

More Traffic, More Money: Drivers who elect to use the new high-occupancy toll (HOT) lanes on the Capital Beltway could pay up to $40 a day. The cost of to use the lanes will be based on the amount of traffic — heavier traffic would mean more expensive tolls, according to The Washington Post. Construction on 14 miles of HOT lanes started last month and span between the Springfield interchange and just north of the Dulles Toll Road.

Uninsured to Pay Heavily: A new study conducted by researchers at George Mason University and the Urban Institute says that Americans who are uninsured will spend about $30 billion on healthcare out of pocket this year. The study will be published in the health policy journal Health Affairs online, according to The Wall Street Journal.

2008 Associate Salary Survey Released

Associate salaries rose last year — by an overall median increase of 6.2 percent for first-year associates.

According to a 2008 salary survey released last week, the largest firms — those with more than 701 lawyers — reported a median first-year associate salary of $160,000, which was a $15,000 increase from last year’s median salary for similar-sized firms.

Among the firms surveyed, smaller firms with 700 lawyers or less saw at least a $5,000 increase for first-year associate salaries but were paid noticeably less. A first-year associate working at a firm with between two and 25 lawyers had a median salary of $73,000. At a firm with between 251 and 700 lawyers, that same level associate had a median salary of $125,000.

The median starting salary for all responding firms was $120,000 — a 6.2 percent increase from the 2007 median of $113,000.

By the eighth year, associates had a median salary between $96,500 at the smallest firms and $230,000 at the biggest.

The survey, conducted by NALP, formerly the National Association for Law Placement, sent out salary information requests to all of its member law offices and to any group or office that has ever done business with the organization, according to Judith Collins, NALP’s director of research. Collins said that about 10,000 requests were sent out, but cautioned the actual data represents “much less than 10,000” law offices and groups because some requests are sent more than once to the same group if it is both a member and does business with NALP. According to NALP, 715 offices had provided salary information as of April 1.

Separation of Powers Case Divides Appeals Court

A federal appeals court today upheld the constitutionality of an accounting oversight board established by the Sarbanes-Oxley Act of 2002 after the Enron and Worldcom scandals. The U.S. Court of Appeals for the D.C. Circuit voted 2-1 in rejecting a constitutional challenge to the Public Company Accounting Oversight Board.

The challenge was brought by the Free Enterprise Fund, a non-profit public interest group based in the District, and the Nevada-based accounting firm Beckstead and Watts, which is under an ongoing PCAOB investigation.

PCAOB’s five-member board is supervised by the Securities and Exchange Commission and not President George W. Bush. Michael Carvin, a partner at Jones Day who argued for the Free Enterprise Fund, said the PCAOB violates separation of powers and the Constitution’s appointments clause because it does not allow adequate presidential control over the board. But the appeals court disagreed and affirmed summary judgment for the PCAOB.

Carvin, who represented George W. Bush in litigation over the disputed Florida recount in the 2000 election, could not be reached for comment. Joining Carvin on the briefs were Viet Dinh, Kenneth Starr, Sam Kazman, Hans Bader, and Christian Vergonis. Vergonis, a Jones Day partner, said Free Enterprise Fund was disappointed with the ruling and planned to appeal.

The PCAOB issued a statement saying the board is “gratified by the Court of Appeals’ decision today, upholding the District Court’s decision in the PCAOB’s favor.” A Baker Botts partner, Jeffrey Lamken, who heads the firm’s Supreme Court and appellate practice, argued for the PCAOB. SEC Chairman Christopher Cox said in a statement that the PCAOB is a “highly effective organization whose continued existence is vital to protecting investors and furthering the public interest in the preparation of accurate and informative audit reports.”

The appeals court said the Enron and WorldCom scandals exposed “serious weaknesses” in self-regulatory reporting requirements for certain publicly-held companies. The PCAOB, the centerpiece of the Sarbanes-Oxley Act passed after these scandals, registers public accounting firms, establishes auditing and ethics standards, conducts inspections and investigations, and imposes sanctions.

Writing for the majority, Judge Judith Rogers, joined by Judge Janice Rogers Brown, found PCAOB members “inferior” to and controlled by SEC commissioners, who are nominated by the president and confirmed by the Senate. “The Supreme Court has long recognized that some types of restrictions on Presidential authority within the Executive Branch are permissible, especially in the case of independent agencies,” Judge Rogers wrote. The board is considered independent and its members can be removed only for good cause, not at will. The question of whether the president is unconstitutionally removed from control of the PCAOB members is one of first impression.

Judge Brett Kavanaugh dissented in a 58-page opinion—nearly twice as long as the majority opinion. “Never before in American history,” Judge Kavanaugh wrote, has there been an independent agency whose members are appointed and removed by another independent agency rather than by the president. “Moreover ... the very purpose of this statute was precisely to create an accounting board that would operate with some substantive independence from the SEC, not one that would be ‘directed and supervised’ by the SEC.” Kavanaugh called the case the most important separation-of-powers litigation to reach the courts in the past 20 years.

Millionaire's Amendment Costs Lautenberg Seven Figures

In New Jersey's Democratic primary this year, Sen. Frank Lautenberg easily defeated his challenger, state representative Rob Andrews. But the victory came at a personal cost — specifically, $1.4 million.

In a 6-0 decision yesterday, the Federal Election Commission ruled that a provision of the "Millionaire's Amendment," a 2002 federal law intended to even the playing field for political candidates facing wealthy opponents, prevented Lautenberg from repaying himself more than $250,000 of the $1.65 million he loaned to his primary campaign.

Lautenberg's lawyer, Perkins Coie's Marc Elias, argued that the restriction was unfair to Lautenberg and was invalidated when the Supreme Court struck down other provisions of the Millionaire's Amendment in June. (In that opinion, the Court found that allowing candidates facing wealthy, self-financed opponents to collect greater amounts from individual donors was unconstitutional.)

The FEC, however, found otherwise. The provisions of the law were severable, the commission ruled, leaving Lautenberg on the hook.

Newark's Star-Ledger has the rest of the story, including some sniping from Lautenberg's general election opponent, Dick Zimmer.

Negotiations Underway in Subpoena Case

The parties in the landmark subpoena fight between the House of Representatives and the White House are trying to make nice outside the courtroom, according to a status report filed today.

Last month, Judge John Bates of the U.S. District Court for the District of Columbia ruled that President George W. Bush's top aides are not immune from congressional subpoenas. Bates said that Bush’s former legal counsel, Harriet Miers, must appear before Congress to give testimony related to the U.S. attorney firings. If she wants to assert executive privilege, she must do so in person, Bates ruled.

The Bush administration has asked Bates to stay his decision pending an appeal to the U.S. Court of Appeals for the D.C. Circuit. The House has demanded that the White House comply with the ruling immediately.

Today, Justice Department lawyers told Bates that “the parties have recommenced discussions to determine whether a negotiated resolution may obviate the need for continued litigation.” The parties have met twice since Bates’ July 31 ruling, the report says.

The Justice Department argues that a stay would give the House incentive to come to the negotiating table, and it warned Bates that if the motion weren’t decided by next week, “defendants will face the choice of either running the risk of being in violation of the Court’s Order of July 31 by declining the Committee’s demands, or complying with those demands and likely losing their ability to pursue a meaningful appeal.”

DOJ Says AP Story on New Rules Misleads

The Justice Department has just issued this release entitled, “Setting the Record Straight: AP's Misleading Article on the Proposed Changes to the Attorney General's Guidelines.”

The story in question, linked in our Morning Wrap, explains how the Justice Department has agreed to delay new rules that would augment the FBI’s intelligence-gathering activities, acknowledging concerns raised by lawmakers that innocent Americans might be targeted.

The Associated Press, the first to report on the proposed rules last month, describes the rules as giving the “FBI greater leeway in investigations of suspected terrorists.” According to the AP:

The rules are intended to update policies governing investigations as the FBI shifts from a traditional crime-fighting agency to one whose top priority is protecting the United States from terrorist attacks.

Currently, the FBI must have evidence or allegations of wrongdoing before opening an investigation of U.S. citizens or legal residents from other countries. The new policy could let agents start investigating after building a profile of traits that, taken together, were deemed suspicious.

Factors that could trigger an inquiry could include travel to regions of the world known for terrorist activity and access to weapons or military training, along with the person's race or ethnicity.

On Wednesday, The New York Times had this story about the new rules, as described by four Democratic senators who were briefed on the details. It largely agrees with the AP’s account:

The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.”

And later in the story:

The Democratic senators said the draft plan appeared to allow the F.B.I. to go even further in collecting information on Americans connected to “foreign intelligence” without any factual predicate. They also said there appeared to be few constraints on how the information would be shared with other agencies.

The Justice Department, in the release, accuses the AP of overstating the case. The rules’ standard for opening a preliminary investigation dates back to at least 2003, the release says. Here are a few excerpts:

• Since 2003, the FBI has had the ability to conduct a threat assessment, which allows agents to proactively consider a threat or risk prior to opening a preliminary investigation. Similarly, the general crimes guidelines in place since 2002 have allowed agents to use a range of techniques prior to opening a preliminary investigation.

• The draft consolidated guidelines currently under consideration by the Justice Department maintain this category of activity – now simply called assessments. Thus, the standard in these guidelines for opening a preliminary investigation of a U.S. citizen has not changed. The changes made have been to ensure that the same types of tools are available at the assessment level regardless of whether the assessment is of criminal activity, a threat to the national security, or collection of foreign intelligence. The attorney general's guidance on the use of race, as well as our traditional respect for the exercise of First Amendment and other legal rights, will apply in full force to assessments and predicated investigations.

• The Department of Justice has long been concerned about the use of race or ethnicity in investigations. But it is simply not responsible to say that race may never be taken into account when conducting an investigation. The reality is that a number of criminal and terror groups have very strong ethnic associations (e.g., the IRA was Irish, La Cosa Nostra is Italian; Hizbollah is largely Lebanese). If the FBI is charged with knowing whether there are elements of such groups present and operating within the United States, it cannot ignore those ethnic connections, any more than it would ignore the identification of a bank robber as a short white male when trying to solve the bank robbery.

Lee Satterfield Tapped to be Chief Judge of Superior Court

The Judicial Nomination Commission has officially announced that Judge Lee Satterfield will serve as the next chief judge of the D.C. Superior Court.

The commission met with Satterfield and Judge Josey-Herring, who was also a candidate, today. Satterfield will assume the role of chief judge when Chief Judge Rufus King III retires on Sept. 30.

Satterfield, who was appointed to the Superior Court in 1992, was the presiding judge of D.C. Family Court from 2001 to 2005, where he led the complete overhaul of the court. He has served in the Criminal, Civil, and Family Divisions and the Domestic Violence Unit. In 1994, while serving in the Criminal Division, Satterfield was one of the court’s first Drug Court judges. He was reappointed to the bench for another 15-year term in 2007.

Wilmer Enlists Recruiting Help From Bloggers

Wilmer Cutler Pickering Hale and Dorr wants its recruits to know that Wilmer lawyers are real people, too.

This month, the firm launched a series of associate blogs, written by four associates, each from a different office. D.C.-based securities associate Kevin Chambers writes of his “Big Sky Adventure” on a family vacation in Montana. Litigation associate Anne McLaughlin writes from the Boston office that she’s hoping to improve her French. New York-based Ross Firsenbaum blogs from Rome, where he’s taking a vacation from Wilmer’s litigation department. Transactional associate Julie Smolinski tells of the beautiful beaches just an hour’s drive from her office in Palo Alto, Calif.

Wilmer debuted the associate blogs internally earlier this summer, but took them public this month. The firm plans to continue them through the end of the fall recruiting season. They are meant to provide a glimpse into each associate’s life both inside and outside of work. Heather Hayes, Wilmer’s legal personnel and recruiting communications manager, says recruits “want to have a good sense of what might their life be like were they to join us.” She says summer associates and other entry-level recruits often complain that it’s tough to distinguish one big firm from another. Hayes says the new blogs will hopefully help “personalize” Wilmer.

Hayes asks each associate to blog at least one 200- to 500-word entry a week. She says feedback within the firm is so far positive.