The BLT: The Blog of Legal Times

Mauro on the Morning Session

As the Judiciary Committee broke for lunch, David Brown, The National Law Journal's editor in chief, chatted with Tony Mauro, Incisive Media's Supreme Court correspondent, about the action so far on Day 2 of the Sotomayor confirmation hearings.

Brown: Tony, thanks once again for taking the time to chat. How would you describe the tone of this morning's hearing, particularly compared to past give-and-take sessions between senators and nominees?

Mauro: I think Judge Sotomayor captured the morning with a calm, painstaking manner that took most of the sting and energy out of the Republicans' attacks. Senator Sessions in particular tried to rattle her, and she did not rattle.

I don't mean to overstate the importance of tone and manner, but it really does matter. Robert Bork is exhibit A for that proposition; his manner was off-putting in the extreme. Exhibit B: John Roberts Jr., whose telegenic style calmed the waters and made him seem reasonable no matter how much liberals tried to portray him as out of the mainstream.

Brown: As a veteran high court watcher, did her demeanor this morning give you any clues about how she might behave as a justice?

Mauro: She seemed very deferential, and more than once spoke of the importance of collegiality, which is something her future colleagues value highly. And she seemed to be aware that, as much as the justices themselves deny it, some of them probably tuned in on the hearings. When Sen. Kohl asked her to name her favorite justices, Sotomayor demurred dramatically, out of concern that by singling out a favorite, she’d be impliedly criticizing the others. Those features bode well.

And one other: she said that she’d being a “new voice” to the court’s discussion of cameras in the Supreme Court. She said she’d be collegial and listen to their views, but made it clear she’s no shrinking violet and will let her views (seemingly in favor of cameras) be known when the time is right. I think that approach will go over well.

Brown: You actually got right to my next question: Do you think, given Sotomayor’s response, that there’s now a realistic chance for cameras — or is this still just a fantasy?

Mauro: I think her well-timed and well-mannered advocacy will improve the chances for cameras more than any development in recent years. But it will still be a very hard sell. Too many of the other justices seem set against it, for a variety of reasons ranging form security concerns to the fear of cheapening the institution by over-exposure. But to have a new justice in their midst who has experience with cameras (they are allowed in the Second Circuit) will re-launch the discussion in a healthy way.

Brown: What will you be looking for in the afternoon session?

Mauro: I think we will see some Republican pushback to Sotomayor’s answers from the morning session. In spite of her calming tone, I think the Republican members of the committee will find her answers unsatisfying, especially her explanations of her controversial “wise Latina” remark and others that have made it sound like she will bring her background and personal views to her decision-making. She and Democratic allies won’t fold under the attacks, but it may be a contentious afternoon.

Brown: Should be interesting to watch when they come back at 2. Thanks again Tony.

Sotomayor on Cameras and Collegiality

Ninety minutes into the questioning of Supreme Court nominee Sonia Sotomayor, a senator has asked her the inevitable question whether she would like to see cameras in the Supreme Court. The court on which she now sits, the U.S. Court of Appeals for the 2nd Circuit, allows cameras to record its proceedings, but the Supreme Court has resisted the idea for decades. Sotomayor answered the question from Sen. Herb Kohl (D-Wisc.) diplomatically, with seeming support for the idea but a nod toward the collegiality of the Court on which she may soon sit.

"I have had positive experiences with cameras," Sotomayor said. "I have participated. I have volunteered." 

But then she said that whenever she enters a new work setting, she values collegiality highly and wants to "listen to the arguments of my colleagues" before urging changes in procedure or practice. "I try to share my experiences and my thoughts and be collegial."  But when Kohl persisted, Sotomayor said that as a former litigator, she knows how to be convincing. Perhaps, she hinted, as a "new voice in the discussion," she can be persuasive.

Public Citizen Litigation Group Names New Director

Public Citizen Litigation Group senior attorney Allison Zieve this month was named director of the Washington-based public interest advocacy organization, brining a background in administrative law and federal pre-emption to Public Citizen’s top post.

Zieve, who has argued four cases before the Supreme Court, replaces Brian Wolfman. Wolfman has joined the faculty of Georgetown University Law Center as co-director of the Institute for Public Representation. Zieve has spoken and written about topics that include tobacco regulation and the Freedom of Information Act. Public Citizen's announcement is here.

Zieve runs Public Citizen’s Alan Morrison Supreme Court Assistance Project, which offers assistance to attorneys litigating public interest issues in the Supreme Court. Zieve argued for the petitioners in two recent federal pre-emption cases that were decided in the 2008 termRiegel v. Medtronic and Warner-Lambert v. Kent. The Court in Riegel ruled for federal pre-emption in a suit seeking damages for a faulty medical device. In Warner-Lambert, the Supreme Court rejected the drug industry's immunity claim for suits in Michigan, a win for for the injured patients in the case.

Zieve says she’s excited to “put her stamp” on Public Citizen. “I’m looking forward to both continuing and expanding our vibrant practice on issues of importance to consumers across the country,” Zieve says.

Our Plans for Sotomayor Hearing

We'll be reporting today and through the week from inside and outside the Senate Judiciary Committee hearing on the nomination of Sonia Sotomayor to the Supreme Court. Hill reporter David Ingram is already inside the hearing room and will be providing minute-by-minute tweets here and at our Twitter site @Legal_Times. Supreme Court correspondent Tony Mauro will be blogging periodically here, and will wrap up the day's proceedings in a story later today at nlj.com. We also plan a video recap for the site at the end of each day of hearings through the week. So please check back early and often!

Olson Promises Battle Over Campaign Finance Laws

Former Solicitor General Theodore Olson launched a broad critique today of Congress' attempts to regulate the role of money in political campaigns, two months before Olson is scheduled to argue what is shaping up as a major campaign finance case in the U.S. Supreme Court.

Olson, speaking to a luncheon of the D.C. chapter of the conservative Federalist Society, said that the federal government has gone too far with laws designed to reduce the influence of corporations and unions.

“The most important freedom we have, to speak about our government and its leaders, is being restricted — indeed, strangled — by a vast government regulatory bureaucracy created by federal campaign finance laws,” Olson said. “The freedom to run for office or to talk about candidates for office is being smothered with requirements to hire armies of lawyers and accountants.”

Olson, a partner at Gibson, Dunn & Crutcher, represents Citizens United, a conservative non-profit group that was thwarted in its attempt to air a documentary called “Hillary: The Movie.” The documentary presented the then-candidate for president Hillary Clinton in a negative light. Citizens United sued, and the Supreme Court heard arguments in March in the case, Citizens United v. FEC.

In an unusual move last month, the justices scheduled (pdf) a second round of oral argument for Sept. 9 and asked for briefs on whether the Court should overrule two significant precedents that restrict the use of money from corporations and unions. Anticipation over the future of campaign finance laws has been growing ever since.

Olson showed no sign in his comments today that he intends to shy away from the high stakes.

“Why is it easier,” he asked, “to dance naked, burn a flag, or wear a shirt saying ‘Fuck the Draft’ in a courthouse — these are all Supreme Court decisions — than it is to advocate the election or defeat of a president? That cannot be right.” David Bossie, president of Citizens United, was in the audience at the Capital Hilton to hear Olson’s remarks.

One of the precedents that the Court asked for new briefs on, McConnell v. FEC, upheld significant portions of the McCain-Feingold campaign finance law. Olson, then arguing as solicitor general on behalf of the federal government, pushed for upholding the act but has since switched to arguing the other side. Quipped Douglas Fox, a partner at Gibson, Dunn & Crutcher who introduced Olson today: “Does the constitutionality of McCain-Feingold depend solely on which side Ted Olson argues on?”

Former AG Gonzales Looking Forward to 'Adventure' in Academia

Former Attorney General Alberto Gonzales said today he's looking forward to teaching at Texas Tech University as a visiting professor even as he continues to explore other professional opportunities.

Gonzales, who resigned from his government post in August 2007 amid controversy over the firings of nine U.S. attorneys, said the university in Lubbock, Texas, offered him an opportunity to teach about topics of “great interest to me.” Gonzales is also expected to promote diversity outreach at the university.

He plans to move to the city with his family and find an apartment, taking either a month-to-month or six-month lease. Moving and setting up at Texas Tech, he said, will be an “adventure.” Gonzales added he expects to feel “comfortable” in the conservative atmosphere in Lubbock in west Texas.

Gonzales, who currently participates on the lecture circuit and has a mediation practice, said there has been “too much fixation” on his not landing a job in private practice.

“Lawyers do all kinds of things other than working in private firms,” said Gonzales, a former partner in the Houston office with Vinson & Elkins. “To the extent I ever consider private practice, it would only be if it provided me the flexibility to write, give speeches and serve on boards in the community.”

Texas Tech University, and not the law school there, was a better fit in term of flexibility, Gonzales said.

This fall, Gonzales will teach a course on contemporary issues in the executive branch. In the spring, he said he may instruct about how Congress, the courts and the president have dealt with national security issues since the terrorist attacks of Sept. 11, 2001.

“There were some extraordinary decisions and events that occurred during the previous administration,” Gonzales said. “I have the advantage of having been in the Oval Office when those decisions were made.”

Gonzales declined to offer up a performance review of Attorney General Eric Holder Jr., saying that he respects Holder and that the job—no matter who has the post—is not immune from controversy.

On the president’s nomination of Sonia Sotomayor to replace retired Supreme Court Justice David Souter, Gonzales called Sotomayor well-qualified to serve on the high court. Republican and Democratic lawmakers, he said, have an obligation to ask Sotomayor to explain and clarify what Gonzales called “troubling” public remarks.

Critics on the right say some of Sotomayor’s public remarks show she has allowed race and ethnicity to play into judicial decision-making. Gonzales, whose name was floated for the Supreme Court under President George W. Bush, said he plans to watch the confirmation hearing. Or at least part of it, he said.

It's Still Kennedy's Court, Say Supreme Court Practitioners

For all the talk of Chief Justice John Roberts Jr. slowly guiding it rightward, the Supreme Court still belongs to Justice Anthony Kennedy.

That was the consensus this afternoon among a panel of the country's top Supreme Court advocates, hosted at the Georgetown University Law Center by Legal Times and The National Law Journal.

The panel, moderated by the NLJ's own Tony Mauro, touched on topics ranging from life at the Solicitor General’s Office, where panel member Neal Katyal recently became deputy solicitor general, to the departure of Justice David Souter.

When it came to the topic of which justice dominated the court this term, the group was totally in concert.

Roberts and his fellow conservatives are "going just as far to the right, and just as fast, as Justice Kennedy will let them," said Pamela Harris, executive director of Georgetown’s Supreme Court Institute, who while of counsel at O'Melveny & Myers this year argued the First Amendment case Pleasant Grove City v. Summum.

Gregory Coleman, partner at Austin, Texas’ Yetter, Warden & Coleman, noted that the justices were still catering to Kennedy’s vote, sometimes blatantly. Once during oral arguments, he said he has noticed Justice Stephen Breyer asking hypothetical questions lifted straight from an earlier opinion by Kennedy. .

Panel members also commented on the evolving relationship between Kennedy and Justice Samuel Alito Jr. The two have joined their opinions in cases including District Attorney’s Office v. Osborne, where the Court ruled that criminal defendants did not have the right to DNA testing, and Arizona v. Gant, in which it found that police had unconstitutionally searched a suspect’s car.

“There seems to me to be something going on there that’s very interesting to watch,” said Kellogg, Huber, Hansen, Todd, Evans & Figel partner David Frederick, who won major pre-emption cases in Altria Group Inc. v. Good and Wyeth v. Levine.

Alito also seems to be coming into his own as a force in the realm of criminal procedure cases, Harris said. She said the former U.S. Attorney turned judge has a greater depth of knowledge and interest in the subject than many of his colleagues.

Katyal, who argued against Coleman in the Voting Rights Act Case, prefaced his remarks by commenting that, as a government lawyer, it was his job “to make as little news as possible.” He said the transition from Georgetown, where as a professor he argued the landmark Guantanamo Detainee case Hamdan v. Rumsfeld, to the SG’s office was “frankly pretty rough.”

He said he has gone from having months to prepare for a case, to first seeing briefs a week beforehand. But he added that the “quality of work product is literally breathtaking,” especially given that the office operates on a little more than $10 million a year.

The full panel also paid tribute to Justice David Souter, who they described as an "incisive" questioner, whose unfailingly polite tone could often land lawyers into trouble.

“One of the problems advocates had is that his questions sounded so nice that they wanted to agree,” Coleman said, earning laughs from the crowd.

The panel members also listed off a number of cases they were keeping their eye on for the coming term. Frederick highlighted two cases in which he is involved, Jones v. Harris Associates and Merck & Co. v. Reynolds, which involve the rules governing of mutual funds and the way companies are alerted when they violate Securities and Exchange Commission rules. Katyal pointed to U.S. v. Stevens, a case which deals with the sale of videos depicting animal cruelty. Cases involving Miranda rights and material support of terrorism also came up.

Sizing Up the 2008-2009 Supreme Court Term

Legal Times and The National Law Journal will be hosting a panel this afternoon of distinguished Supreme Court practitioners, each of whom argued one or more cases in the 2008-2009 Supreme Court term. The panel will analyze the changes in the Court this term, the strategies of the lawyers who won and lost, and the outlook for the 2009-2010 term.

Click here for details of the event, which begins at 3:30 p.m. EDT at the Georgetown University Law Center.

We'll have a blog post later about the panel. In the meantime, click here to read posts from our Twitter feed.

UPDATE: Via C-SPAN, click here for video of the panel.

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.

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.