The BLT: The Blog of Legal Times

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.

The Morning Wrap

The Fed: The Federal Reserve may have improperly cut in front of other creditors owed money in Lehman Brothers Holdings Inc.'s $613 million bankruptcy case. A court-appointed examiner—Anton Valukas, chairman of Jenner & Block—is looking into whether the Fed and the New York Fed, which lent Lehman Brothers $46 million in September, were paid back promptly while other debts were left to be sorted out in court, the Wall Street Journal reports.

Burma Trial: A court in Myanmar ruled today to uphold a guilty verdict against opposition leader Aung San Suu Kyi, which could keep the Nobel laureate in prison until after next year’s election. According to Reuters, Suu Kyi was found guilty in August of breaking a law protecting the state from "subversive elements" when, while under house arrest, she allowed an American intruder to stay at her lakeside home for two nights.

Letterman Blackmail: David Letterman admitted during a monologue in front of millions of viewers on the Late Show last night that he had been the victim of extortion attempts by a fellow CBS employee who was trying to blackmail the late-night host. Letterman admitted he had affairs with women who worked for him, which was the subject of the extortion attempts, the New York Times reports. Letterman, who in March married his longtime girlfriend, said he reached out to the Manhattan district attorneys office and had already testified in front of a grand jury about the blackmail. The CBS employee has been arrested. The district attorney’s office is expected to hold a news conference today.

Elizabeth Smart: The Utah girl who was kidnapped seven years ago and held captive for nine months took the stand in a Salt Lake City federal court yesterday in the competency hearing of her captor, Brian David Mitchell. Elizabeth Smart, 14 at the time but now 21, said she was raped on a daily basis and given drugs and alcohol to wear down her defenses, according to a National Public Radio story. Mitchell also told her that if she tried to escape or yelled for help, she would be killed, Smart testified.

Poll Tests Public Attitudes About Supreme Court

Nine years after the U.S. Supreme Court stopped the counting of ballots in Florida, its decision in Bush v. Gore appears to have had some lasting impact on how the public views the justices.

A new poll from C-SPAN asked voters whether the ruling affected their view of the Court. A substantial minority, 29 percent, said that the ruling did. And not surprisingly, those who said so saw the ruling as incorrect, as a sham, or as an area the justices should have avoided altogether.

C-SPAN released the poll results today, as it prepares to air a series of interviews with the justices next month. Click here (pdf) for the poll results and here for more on the interviews.

About 21 percent of the 801 voters polled said they have visited the Supreme Court, and 88 percent said that the Court has an impact on their “everyday life as a citizen.”

Knowledge about the Court is mixed, the poll suggests. Seventy-nine percent correctly answered that there is no mandatory retirement age for justices, but only 52 percent — little better than a coin flip — correctly said that there is no requirement that the chief justice be a lawyer. Thirty-seven percent correctly said that there have been three female justices, while 39 percent correctly said that there have been two African-American justices.

Asked about the operations of the Court, a majority opposed lifetime appointments for justices and supported televising oral arguments. (C-SPAN has been a vocal proponent of the latter.)

This Week in The National Law Journal

Supreme Court correspondent Tony Mauro explores the "three faces" of Supreme Court nominee Sonia Sotomayor following the conclusion of her testimony last week before the Senate Judiciary Committee. There was the shackled Sotomayor, who as an appeals court judge bent on following precedent could not advance a personal agenda even if she had one. Republicans portrayed Sotomayor as an activist judge who puts empathy before the rule of law. And in Mauro's words: "Finally, and for Republicans the scariest of all, was the soon-to-be-unleashed Sonia Sotomayor who will reveal her long-hidden liberal stripes once she joins a Supreme Court that can do absolutely anything it wants."

Sen. Al Franken (D-Minn.), who sits on the Senate Judiciary Committee, has spent much of his career as an author, radio personality, and writer and performer for "Saturday Night Live." Franken is not a lawyer. He is not alone. Not everyone on the judiciary committee holds a law degree. David Ingram examines how the non-attorney members of the committee prepared for last week's Supreme Court confirmation hearing. "Where we come up short is the language of lawyers," said Sen. Chuck Grassley (R-Iowa), a farmer by profession.

Bingham McCutchen is back at it again, targeting a struggling firm for acquisition, Jeff Jeffrey reports. The Boston-based firm snapped up midsized Swidler Berlin in 2006, and now McKee Nelson, with its stalled profits, has agreed to become a part of Bingham. Bingham chairman Jay Zimmerman anticipates the McKee addition to bring annual firmwide gross revenue to more than $900 million.

The Federal Judges Association is bolstering its presence on Capitol Hill with a new set of lobbyists with strong Democratic ties, Carrie Levine reports. A lobbying disclosure form shows the judges association has hired Patton Boggs partner Jonathan Yarowsky, a former general counsel to the House Judiciary Committee. And the group also brought on Steve Elmendorf of Elmendorf Strategies, a one-time aide to then-House Democratic Leader Dick Gephardt.

Wiley Joins With Judicial Watch on Fairness Doctrine

Richard Wiley says the Supreme Court might be much less receptive to a broadcasting regulation like the Fairness Doctrine than it was four decades ago when it upheld the rule.

The name partner at Wiley Rein and former chairman of the Federal Communications Commission spoke today at a panel on the Fairness Doctrine sponsored by the conservative advocacy group Judicial Watch. Wiley said that the Court’s decision in 1969 in Red Lion Broadcasting v. FCC depended on circumstances — such as the threat of media consolidation — that the Internet and other technological advances have made less compelling.

“It seems to me that the concerns expressed by the High Court in Red Lion are no longer even remotely realistic,” Wiley said.

Wiley led the FCC from 1974 to 1977. He said the commission would receive thousands of complaints a year under the Fairness Doctrine, which was designed to ensure balance in the presentation of public issues and which the FCC repealed in 1987. Some complaints were politically motivated, Wiley said, while others overwhelmed small broadcasters. He called the doctrine a “colossal waste of time.”

Conservatives say they fear the FCC will revisit the Fairness Doctrine under the Obama administration, though President Barack Obama has said he opposes it. Obama has nominated a Harvard Law classmate, Julius Genachowski, to chair the FCC, and the nomination is pending.

The FCC wouldn’t have to bring back the original regulations to be a burden on speech, said Jerald Fritz, senior vice president and general counsel at Allbritton Communications. Allbritton owns WJLA-TV and NewsChannel 8 in Washington, as well as The Politico, and Fritz, speaking to about 25 people at today’s panel, said that proposed rules to favor local programming would have similar effects as the Fairness Doctrine.

“The government gets to judge the public interest qualifications of the broadcaster to retain its license,” Fritz said. He added, “I think it will fall on the sword of the First Amendment.”

Tom Fitton, president of Judicial Watch, went further. “This localism proposal is a product of the left. This is ACORN, RainbowPUSH,” he said.