The BLT: The Blog of Legal Times

Showdown on Judicial Nominee Set for Next Week

Senate Majority Leader Harry Reid (D-Nev.) is following through on a plan to cut off debate on President Barack Obama's most contentious circuit court nominee so far.

Late Tuesday, Reid filed a so-called cloture motion seeking to end debate on the nomination of Judge David Hamilton for the U.S. Court of Appeals for the 7th Circuit. Hamilton, now a district court judge in the Southern District of Indiana, has been awaiting confirmation since March.

Reid needs 60 votes to end debate, and his motion is a sign that he believes he has enough. At least one Republican, Indiana Sen. Richard Lugar, has said he supports Hamilton. If the motion succeeds, which could happen as soon as Tuesday, a vote to confirm Hamilton could occur immediately or later in the week.

Democrats have portrayed Hamilton as a moderate, noting the support he’s received from the Indiana legal community and his well-qualified rating from the American Bar Association. He has drawn criticism from religious conservatives for his rulings on abortion and in an establishment clause case about prayer in Indiana’s legislature.

Obama’s first circuit court nominee, Hamilton also did pro bono work for the Indiana chapter of the American Civil Liberties Union in the 1980s, and he served as chief counsel to Indiana’s then-Gov. Evan Bayh, now a Democratic senator.

The vote will be a measure of how much Republicans plan to resist Obama’s other judicial nominees. The two Obama circuit nominees who have received votes were confirmed 94-3 and 72-16 — in the latter case, with GOP senators splitting 16-16.

DOJ: Computer Hackers Stole $9 million from ATMs in Just Hours

Updated Nov. 11

A group of international hackers is charged with invading the computers of Atlanta-based credit card processing company RBS WorldPay and stealing more than $9 million in just hours from ATMs across the globe, the Justice Department announced today.

A grand jury in the U.S. District Court for the Northern District of Georgia has indicted four individuals on charges that include wire fraud, computer fraud and aggravated identity theft. It was not immediately known whether any of the defendants, who are detained overseas, have retained counsel in the United States. Four other defendants, each from Estonia, are charged with access device fraud.

The indictment alleges that the group breached a security system that protected data on payroll debit cards, which allow employees to withdraw salaries from ATMs, according to the Justice Department. RBS WorldPay, represented by Hunton & Williams partners John Delionado and John Woods, is a part of the Royal Bank of Scotland.

Prosecutors said in a statement that the alleged hackers stole millions of dollars from more than 2,100 ATMs in at least 280 cities in the United States, Canada, Japan and other countries. Justice officials said international cooperation was a “significant factor” in bringing charges. Government lawyers and investigators have worked with counterparts in Estonia, Hong Kong and in the Netherlands.

“Last November, in just one day, an American credit card processor was hacked in perhaps the most sophisticated and organized computer fraud attack ever conducted. Today, almost exactly one year later, the leaders of this attack have been charged,” Acting U.S. Attorney Sally Quillian Yates of the Northern District of Georgia said in a statement.

Kimberly Kiefer Peretti of the Justice Department’s Computer Crime and Intellectual Property Section is assigned the prosecution with assistant U.S. attorneys Lawrence Sommerfeld and Gerald Sachs in Atlanta.

Senate Confirms 4th Circuit Nominee Davis

Updated from earlier today

The Senate voted 72-16 today to confirm the nomination of Judge Andre Davis to the U.S. Court of Appeals for the 4th Circuit, breaking a longstanding deadlock on nominees for a Maryland-based seat.

Davis, who has been on the federal district court for Maryland, won confirmation by a comfortable margin after getting the backing of the Senate Judiciary Committee 16-3 on June 4.

The seat that Davis will fill has been vacant since 2000, when Judge Francis Murnaghan Jr. of Baltimore died. President Bill Clinton nominated Davis for the seat, but the choice came near the end of Clinton’s second term and it languished in the Senate. Then, Senate Democrats blocked President George W. Bush’s attempts to fill the seat, most recently with Maryland’s U.S. Attorney Rod Rosenstein.

“We have had a number of battles over the failure to fill some of the vacancies on that court. President Bush submitted a number of nominations and couldn't get them up for a vote,” said Sen. Jeff Sessions (R-Ala.), the top Republican on the Judiciary Committee, in a speech last month.

With Rosenstein’s nomination, Democrats countered that he did not have strong enough ties to Maryland. Though he had been an assistant U.S. attorney in Maryland from 1997 to 2001, he worked most of his career in Washington for the U.S. Justice Department and is a native Pennsylvanian.

Another Bush nominee for the Maryland seat, Claude Allen, had never practiced law in the state. A former chief domestic policy adviser to Bush, Allen saw his nomination lapse in December 2005. (He resigned from the White House in February 2006, shortly before he was charged with defrauding department stores by allegedly returning items he hadn’t bought and asking for a refund.)

Sessions focused his criticism on six criminal cases in which Davis disallowed government evidence and was reversed on appeal. Sen. Ben Cardin (D-Md.) said in June that the number of reversals was not unusual given that Davis has been a federal trial judge since 1995.

Even after Davis’ confirmation, there are four vacancies remaining on the 15-seat, Richmond-based circuit. Obama has announced three other nominees for it. Davis is the second Obama nominee confirmed to any circuit court, after Judge Gerard Lynch for the U.S. Court of Appeals for the 2nd Circuit.

Footnote: Davis clerked for Murnaghan in 1979-80.

U.S. Supreme Court Denies Execution Stay in D.C. Sniper Case

The planned Tuesday night execution of John Allen Muhammad remains set following the U.S. Supreme Court's refusal to stay the death sentence.

Justices John Paul Stevens, Sonia Sotomayor and Ruth Bader Ginsburg filed a two-page statement, saying: “This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."

The three justices said that Muhammad’s petition for certiorari, which was timely filed, would have been reviewed at the Court’s conference Nov. 24. Stevens, Sotomayor and Ginsburg, however, did not disagree with the Court’s decision to deny certiorari.

“By denying Muhammad’s stay application, we have allowed Virginia to truncate our deliberative process on a matter—involving a death row inmate—that demands the most careful attention,” Stevens wrote in the statement, joined by Sotomayor and Ginsburg. “This result is particularly unfortunate in light of the limited time Muhammad was given to make his case in the District Court.”

Stevens said in the statement that he believes “that the Court would be wise to adopt a practice of staying all executions scheduled in advance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus.” Such a practice, he said, would preserve “basic fairness in ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive.

Muhammad was convicted in 2003 in state court in Virginia for his role in the 2002 Beltway sniper attacks that killed 10 people. His execution, by lethal injection, is scheduled for Tuesday at 9 p.m.

Chief Judge in D.C. Urged To Keep State Secrets Rulings in Place

A group of litigants who are suing the government are urging Chief Judge Royce Lamberth of the federal district court in Washington to keep in place a series of rulings in a high-profile state secrets case that recently settled for $3 million.

The litigants, including the Al-Haramain Islamic Foundation, said in court papers filed Friday in the U.S. District Court for the District of Columbia that Lamberth's rulings are important for application in other cases. Justice Department attorneys want Lamberth to vacate the rulings, saying that they have no precedential value.

Lamberth’s rulings deal with whether a federal district judge may decline, in a state secrets case, to give a high degree of deference to the government’s assertion of the privilege when the government is accused of making misrepresentations to the court; and whether a judge can determine that lawyers in a state secrets case have a “need to know” certain confidential information. (Justice Department lawyers say the judiciary cannot make that determination, only the executive branch.)

In the underlying case, former drug enforcement agent Richard Horn in 1994 sued a CIA officer and a State Department official in a complaint that alleged the defendants unlawfully intercepted Horn’s communication while he was serving in Burma. The case has dragged on amid a dispute about the state secrets privilege.

A settlement in the case, where the government has agreed to pay $3 million to Horn, was announced last week. Government lawyers said the settlement, which was reached while Justice appealed Lamberth’s rulings to the U.S. Court of Appeals for the D.C. Circuit, was not an admission of liability.

Alan Kabat of Washington’s Bernabei & Wachtel, joined by Jon Eisenberg of Oakland’s Eisenberg and Hancock, filed an amicus brief this month in the case that urges Lamberth not to vacate opinions in July and in August that went against the government.

Kabat and Eisenberg, on behalf of three interested parties, including the Al-Haramain Islamic Foundation, said the rulings deal with novel legal issues and should be left in place. “The opinions will be a valuable resource for litigants and courts as these issues arise in other cases,” the lawyers said in court papers.

Deputy White House Counsel to Leave for Anti-Poverty Job

Cassandra Butts is leaving her job as a deputy in the White House Counsel's Office to become a senior adviser to a federal agency fighting global poverty.

It's among the most high-level departures this year from the office that provides legal advice to President Barack Obama, and it comes a month after Butts' boss, White House Counsel Gregory Craig, tamped down media rumors that he was about to leave.

Butts, a classmate of Obama’s from Harvard Law School, will become a senior adviser at the Millennium Challenge Corporation. Congress and President George W. Bush created the corporation in 2003 to help countries reduce poverty and grow their economies.

In a statement, Obama called Butts a “dear friend and trusted colleague.”

“Cassandra brings a depth of experience and true passion for justice that will be invaluable to [the corporation’s] success in the future,” Obama said. “I am grateful for Cassandra’s tireless service in this administration and look forward to continuing to work with her in the years ahead.”

Pressed on the reasons for her move, a White House spokesman said it reflects the priority Obama is placing on the global fight against poverty. He declined to make Butts available for an interview.

Butts was general counsel to the presidential transition that began a year ago. Previously, she was a senior vice president at the liberal Center for American Progress and a top aide to then-presidential candidate and House Majority Leader Dick Gephardt (D-Mo.). She has also been an assistant counsel to the NAACP Legal Defense & Educational Fund.

Gephardt, in a brief interview today, praised Butts’ experience and intelligence. He said her new position, while not in the White House, likely has its own advantages. “I’m sure there are a lot of important things that go on there,” he said, referring to the White House Counsel’s Office, “but this gives her kind of a portfolio of her own.”

DOJ Pushes 'Comprehensive Approach' to Discovery Reform

Judge Paul Friedman of the U.S. District Court for the District of Columbia says he's "radicalized" when it comes to prosecution disclosure obligations. He is a proponent of a federal rule that clearly spells out the government's obligation to turn over favorable evidence to defense lawyers.

"We are preaching the gospel. We are hoping, some of us, there will be a change in the federal rules," Friedman said Thursday evening during a panel discussion among defense lawyers, prosecutors and academics who addressed discovery obligations at the American Bar Association’s office in downtown Washington.

Friedman, long a proponent of a rule change, was the lone judge on the panel last night. His call for an amendment to the federal rules of criminal procedure was backed up by several defense lawyers, including Williams & Connolly partner Robert Cary and Zuckerman Spaeder partner Morris "Sandy" Weinberg Jr., who moderated the 90-minute discussion.

Friedman called himself a “frustrated judge”--one among others in the judiciary who are no longer playing largely silent, inactive roles in stressing prosecution obligations. Judge Emmet Sullivan, a colleague of Friedman's, earlier this year recommended a Judicial Conference committee take up debate once more on amending Rule 16 of criminal procedure. (Click here for a National Law Journal article about the discussion at a committee meeting last month in Seattle.)

To address the concern in the judiciary, the Justice Department is implementing a mandatory annual training program for prosecutors to ensure government lawyers follow their obligations, said the Justice Department’s Gary Grindler, the deputy assistant attorney general for the Criminal Division. The department is also creating a position at Main Justice to oversee discovery reform. But the department is not willing to accept an overhaul to the criminal rules that would put a greater burden on prosecutors to turn over favorable information to defense lawyers.

Senate Confirms Two DOJ Nominees

The Senate late Thursday signed off on two pending nominees for top positions in the U.S. Justice Department.

Ignacia Moreno, a former environmental counsel at General Electric, was confirmed 93-0 as assistant attorney general for the Environment and Natural Resources Division. She was principal counsel in the division during the Clinton administration and won the backing of the Senate Judiciary Committee on Sept. 24.

Laurie Robinson was confirmed without a formal vote as assistant attorney general for the Office of Justice Programs, which provides grants to states and localities. She held the same position during the Clinton administration and has since been in the Criminology Department at the University of Pennsylvania. The Judiciary Committee endorsed her Oct. 22.

That leaves three high-level Justice Department nominees awaiting votes by the full Senate: Dawn Johnsen for the Office of Legal Counsel, Mary Smith for the Tax Division, and Christopher Schroeder for the Office of Legal Policy.

Also winning confirmation Thursday without opposition were two D.C. labor lawyers nominated for seats on the Merit Systems Protection Board, which rules on employment disputes for much of the federal workforce. Susan Grundmann, general counsel since 2002 to the National Federal of Federal Employees, will be chairwoman. Anne Wagner, general counsel of the Personnel Appeals Board of the Government Accountability Office, will be vice chairwoman.

UPDATE (11:16 a.m.): A statement from Attorney General Eric Holder Jr. on Moreno's confirmation: "Reinvigorating the traditional missions of the Justice Department, including protecting our nation’s environment, has been one of my top priorities since taking office. Ignacia is a talented and experienced attorney who will bring strong leadership to this important division. I hope for rapid consideration of the other Justice Department nominees pending before the Senate."

Note to Justices: Specter Saw You on TV

Sen. Arlen Specter (D-Pa.) has been a longtime advocate of televising sessions of the U.S. Supreme Court, a quest that has repeatedly fallen on deaf ears across First Street NE.

But Specter noted today that the justices haven't exactly been camera-shy.

In a speech on the Senate floor, he said that Chief Justice John Roberts Jr. and Justice John Paul Stevens have appeared in interviews on ABC’s “Primetime,” Justice Ruth Bader Ginsburg on CBS News, Justice Stephen Breyer on “Fox News Sunday,” and Justices Antonin Scalia and Clarence Thomas on CBS’s “60 Minutes.” All the justices, he added, were recently interviewed on C-SPAN.

“We cannot accept the justices’ plea for anonymity when they so regularly appear before the camera,” Specter said in his prepared remarks.

The former chairman of the Senate Judiciary Committee is hoping to line up his colleagues behind a resolution he introduced today that would get the “sense of the Senate” on cameras in the Court. He so far has seven co-sponsors, including Sen. Dick Durbin (D-Ill.), who is the Senate’s No. 2 Democrat, and Sen. John Cornyn (R-Texas), a former state Supreme Court justice. No vote on the resolution has been scheduled.

Specter pointed to several reasons why he thinks the tide is turning: camera opponent David Souter has retired from the Court, several sitting justices said during their confirmation hearings that they would be open to televising sessions, and the new high court of the United Kingdom allows cameras.

Previously, Specter has pushed legislation that would require the Supreme Court to allow television coverage, but the legislation never won Senate approval. The new resolution, he said, is a more “restrained and modest approach.”

Click here (PDF) for a copy of Specter’s prepared speech, which doubles as a critique of some of the Court’s recent rulings and of its reduced workload.

DOJ: Employment Discrimination Bill a Top Priority

The Obama administration renewed its push today for legislation that would prohibit employment discrimination against gays and lesbians.

Thomas Perez, the U.S. Justice Department's assistant attorney general for civil rights, testified before a Senate panel that the legislation is a "top legislative priority" for the administration, even as the White House focuses on health care and global warming. The legislation was first introduced at least 15 years ago, but advocates for gays and lesbians are optimistic that it will pass in 2010.

Perez, giving his first testimony on Capitol Hill since his confirmation a month ago, said the federal government is at a loss now to fight discrimination based on sexual orientation or gender identity. Twenty-one states explicitly prohibit employment discrimination based on sexual orientation, he said.

“There’s nothing more frustrating for a law enforcement officer than to hear a horrific tale and to tell that person, ‘You have been wronged, and there’s nothing I can do for you.’ That is a horrible feeling,” Perez said. “This bill is going to enable us to correct that.”

The “Employment Non-Discrimination Act” would make it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity.”

As with other forms of discrimination, the Justice Department’s Civil Rights Division, which Perez leads, would enforce the law against municipalities and other public employers. The Equal Employment Opportunity Commission would do so against private employers.

Sen. Tom Harkin (D-Iowa), chairman of the Senate Committee on Health, Education, Labor, and Pensions, promised action on the bill once lawmakers finish their work on healthcare and other higher priorities. “We’re going to move this bill next year,” Harkin said.

Other witnesses before the committee included Camille Olson, a partner in the Chicago office of Seyfarth Shaw who said that some of the legislation’s language is too vague, and Illinois Attorney General Lisa Madigan, who said that a similar state law has not led to a predicted avalanche of litigation against employers.