The BLT: The Blog of Legal Times

Supreme Court Upholds Voter ID Law

As expected, the Supreme Court this morning upheld Indiana's strict Voter ID law, by a 6-3 vote in the case Crawford v. Marion County Election Board. The law requires voters to present current, government-issued photo IDs, and for those without such IDs, establishes what critics said was an onerous procedure for validating their ballot. Democrats have attacked the law vociferously as a measure to discourage the poor, elderly and minorities, who tend to skew Democratic, from voting.

Justice John Paul Stevens, joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy said the evidence presented was not sufficient to support a so-called "facial" challenge to the law. Even if the law burdens a few voters, they agreed, that is not enough to invalidate the law. Three other justices — Antonin Scalia, Clarence Thomas and Samuel Alito Jr. — wrote separately to stress that the burden was minimal and justified. The three dissenters were Justices Davis Souter, Ruth Bader Ginsburg and Stephen Breyer. They agreed the burden is substantial and affects certain groups of voters disproportionately.

Reaction is already coming in. At the Election Law Blog, Rick Hasen (who filed an amicus brief supporting the challengers to the law) is predicting that "this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections." More on the ruling later at LegalTimes.com.

This Week in Legal Times

Poring through recent court documents and congressional investigations, reporters Joe Palazzolo and Pedro Ruz Gutierrez paint a portrait of deep connections between jailed lobbyist Jack Abramoff and Justice Department officials.

Coal and other energy producers are warming, so to speak, to the task of working with Congress to produce legislation to deal with climate change, reports Jeff Horwitz. A new coalition of industry groups has emerged, and a cap on carbon emissions, once off the table, may be part of a compromise.

In After Hours, we review 701, a Penn Quarter restaurant that has been revitalized by the arrival of a new chef. And we profile Will Hopkins, a D.C. insurance lawyer who has made it to the finals of the "American Idol" songwriters contest.

Morning Wrap

Scalia's Debut: Supreme Court Justice Antonin Scalia went on the CBS News show "60 Minutes" Sunday night, offering a rare view of his charming side as well as his rigid views on interpreting the Constitution. "I can be charming and combative at the same time," he said at one point. "I love to argue." More on the segment, posted on this blog last night, can be viewed here. We also took a look at the book he co-authored, which was the occasion for his appearance, here.

Patently Unconstitutional? Via law.com, the National Law Journal reports that a petition now before the Supreme Court raises a potentially major question about how patent appeals judges have been appointed since a 2000 change in the law. The constitutional flaw could jeopardize hundreds of patent appeals decisions.

Are You Listening? The New York Times reports today that lawyers representing terrorism-related defendants are going to great lengths to avoid government interception of their communications with clients. The lawyers assume that the government is listening, though administration officials insist they are abiding by legal ethics rules.

Blowing the Whistle: A Washington Post story looks into complaints that whistleblowers who report wrongdoing in D.C. government often get the pink slip rather than being protected from retaliation.

White House comedy comity: If you weren't there in person and did not spend your Saturday night watching it on television, check out the archived video of the White House Correspondents Association dinner Saturday night here (scroll down to Recent Programs.) It was President George W. Bush's last.

Delving Into Scalia's New Book

So, now that the "60 Minutes" Scalia segment is over, what about the book that triggered the publicity? It's already climbing up the Amazon bestseller ranking to 522 in the last hour, and it won't officially be published until Monday.

We've been able to peruse the book Making Your Case: The Art of Persuading Judges, coauthored by legal writing expert Bryan Garner. We were under an embargo that prohibited writing about the book until after the CBS News broadcast. Some quick observations, now that the embargo is lifted:

• It is indeed a must-read for any lawyer whose job entails arguing, in writing or in person, before a judge. Even though some of its admonitions are beyond obvious (such as, "Know Your Case,") it is a nuanced "how to" book that will offer page after page of useful advice for advocates.
• One example: Don't use the kitchen sink strategy of throwing at the judge every conceivable argument your legal team can think up. Pick your best three, at most, the book advises. "Arm-wrestle, if necessary, to see whose brainchild gets cut."
• Another tip: research the judge's background and idiosyncrasies before you argue. "At the very least, these details will humanize the judge before you, so that you will be arguing to a human being instead of a chair."
• Some of the advice is a bit stuffy. It tells male lawyers with ponytails, "We don't recommend this coiffure if advocacy before elderly judges is your day job."
• As you might expect with Scalia as one of the authors, the book is laced with humor. The book advises, "Never — never — patronize a judge by volunteering, 'That's a very good question.' Of course it is! All judges' questions are ex officio brilliant."
• The co-authors disagree at times, producing interesting debate. Garner, for example, could not recruit Scalia for his longrunning crusade against including case citations in the text of briefs. Garner views it as a distracting interruption of the flow of the prose, but Scalia says that putting the citation details in a footnote "would force the eyes to bounce repeatedly from text to footnote."
• The organization of the small, 206-page book is simple and straightforward: 115 numbered pieces of advice, organized by subject matter, with inset quotes by authorities ranging from Cicero to Alex Kozinski to E. Barrett Prettyman Jr.

UPDATE: The ABA Journal has posted excerpts from the book here.

Scalia Speaks Out

In his remarkable appearance on "60 Minutes" just ended, Supreme Court Justice Antonin Scalia acknowledged he has had "down times" on the bench, periods when he felt he was repeating himself in dissents and unable to move Court doctrine. It was Scalia's first extended broadcast interview in his 22 years on the Court

In one of the more dramatic moments during the segment, CBS correspondent Lesley Stahl read from Scalia's 1996 letter written to the late Justice Harry Blackmun in which he voiced his melancholy about the preceding term — a term that had produced Romer v. Evans, a victory for gay rights advocates, and United States v. Virginia, which said the state-run Virginia Military Institute could not admit only males.

Scalia said he "hadn't remembered" writing the letter, which is included in the Blackmun papers at the Library of Congress. But he did say that the final months of a Supreme Court term are "usually a disappointment." He also said the situation, from his point of view, was "less dire in more recent years."

When he first joined the Court in 1986, Scalia said he planned to leave the Court "as soon as I could," when he turned 65 and could retire at full pay. But now at 72 and "working for free," Scalia says he is not thinking about retiring any longer. "I can't think what I would do for an encore."

Scalia's tenor during the lengthy segment was, by turns, wary, gently combative, and downright gleeful, as Stahl asked him about his originalism, his religion, and his upbringing in Elmhurst, Queen, in New York City. When Stahl pointed out Scalia was an only child, "Scalia said, "Come on, lay off. Yes, I was spoiled." The two visited his neighborhood and even P.S. 13, his elementary school, where he was shown his perfect report cards. His wife Maureen, whom he married in 1960, also appears briefly. If she had married anyone else, she said, "I would have been bored." Justice Scalia added, "Whatever my faults are, I'm not wishy-washy."

It was an overall positive piece, with Scalia's charming side in full display. The segment also spent some time on the book he coauthored, titled, Making Your Case: The Art of Persuading Judges, which was the occasion for the interview. Co-author Bryan Garner recounted how suprisingly deferential Scalia was during the writing.

Our earlier story on the Scalia-Garner book project appears here and our report that Scalia would go on "60 Minutes" appears here. We will post shortly on the substance of the book.

Lawsuit Claims Whistleblowers Were Unlawfully Fired

Two former employees of a private security company filed a wrongful termination lawsuit yesterday in the U.S. District Court of the District of Columbia. The pair alleges they were fired after they blew the whistle on the firm's capability to protect a U.S. Embassy in Afghanistan.

James Sauer and Peter Martino are suing London-based ArmorGroup International and its U.S. arm, ArmorGroup North America. Their complaint says they were fired after telling the U.S. State Department that the firm was unable to satisfy a $187 million government contract to provide security to an embassy in Kabul, Afghanistan. They are seeking $66 million in damages.

Debra Katz and Lisa Banks of Katz, Marshall & Banks and Richard Condit of the Government Accountability Project filed the suit on behalf of Sauer and Martino. The complaint says the company deliberately understaffed and underpaid workers at the embassy. It says the companies made the decision to do this, despite numerous documented warnings made by Sauer and Martino. The complaint also claims the firm had misrepresented itself when seeking the contract, saying ArmorGroup knew it could not fulfill the agreement when it made the bid.

Senior vice president James Schmitt of ArmorGroup North America, which is based in McLean, Va., did not answer questions, but issued a statement refuting the claims. In it, he says Sauer and Martino were dismissed because they could not, or would not, perform the essential functions of their positions. He also says they "embarked on a smear campaign to achieve an undeserved multi-million dollar settlement from ArmorGroup by making wild allegations of wrongdoing and threatening to bring issues they created to the attention of the Inspector General for the U.S. State Department, Congress, the media and potential investors unless their financial demands were met."

Katz confirms her clients approached the firm for a settlement before filing the lawsuit. She said Sauer and Martino, both U.S. Marines for about 30 years, are now unemployed and have been "blackballed" from the private security industry as a result of the ordeal.

Katz's co-counsel in the case, Condit, says they asked the State Department to release any information about the contract. They filed under the Freedom of Information Act on Nov. 20, 2007. They also want to see what, if any, actions were taken because of Sauer and Martino's concerns. He says the information has yet to be released.

Scalia's Old Material

By Tony Mauro

Excerpts from Justice Antonin Scalia's upcoming appearance on "60 Minutes" are beginning to dribble out. CBS News' own story on it, at cbsnews.com, starts with his admonition to "Get Over It," when asked about Bush v. Gore. Not to rain on anyone's parade, but Scalia has been using that line in numerous public appearances since at least 2006, according to a Westlaw search. Of course, saying it on the most-watched news show on television is noteworthy.

Asked how he can maintain friendships with the likes of Justice Ruth Bader Ginsburg, whom he has criticized in opinions, Scalia says, "I attack ideas, I don't attack people."

We suspect CBS is holding back some good stuff for the actual broadcast Sunday night. Check back here after the broadcast for an update on the segment, as well as other related new Scalia information.

Morning Wrap

Trouble: New York law firm Bivona & Cohen has filed a pre-emptive suit against a secretary who it claims is demanding $9 million to drop rape and sexual harassment charges against one of the firm’s partners, reports the New York Law Journal via Law.com. The firm says the secretary’s claims are false.

Genentech Ruling: In a long-awaited, unanimous ruling, the California Supreme Court threw out $200 million in punitive damages yesterday in the contractual dispute between Genentech Inc. and the City of Hope National Medical Center, reports The Recorder via Law.com.

Rumors: The Securities and Exchange Commission has sued a trader for spreading false rumors about the buyout of Alliance Data Systems, reports the NYT’s DealBook.

Microsoft: Microsoft reported an 11 percent decline in its third-quarter net income, and remarks from the company’s chief financial officer downplayed prospects of completing the Yahoo takeover, reports the WSJ.

Ex-AOL Attorney and Former Exec at PurchasePro Acquitted

In a mixed verdict, jurors today acquitted a former America Online Inc. executive and a former official at PurchasePro.com of securities fraud violations in a civil case brought by the Securities and Exchange Commission.

A second former PurchasePro executive was found liable on one count of violating securities laws after a six-week trial before Senior Judge Gladys Kessler of the U.S. District Court for the District of Columbia.

The civil case is the second redemption for ex-AOL attorney Kent Wakeford and Michael Kennedy, a former chief technology officer at PurchasePro. Both were also absolved of criminal wrongdoing in a related case tried by federal prosecutors in the Eastern District of Virginia. Christopher Benyo, a former senior vice president of marketing at PurchasePro, was found liable of aiding and abetting violations of the Securities Exchange Act related to a $3.7 million transaction in 2001.

At the time, SEC attorneys argued at trial, PurchasePro falsely included a $3.7 million contract to boost its first-quarter revenues on the eve of the collapse of the dot com era. Benyo and others were accused of backdating the contract in order to deceive investors and auditors.

Kessler must now decide whether to assess fines and if Benyo should be permanently barred from holding office in a publicly-held company.

Henry Asbill, a Dewey & LeBoeuf partner who represents Wakeford, said: “Today, a second federal jury in Washington has studied the facts of this case, and like the first jury, unanimously concluded that Kent Wakeford was wrongly accused.”

The seven-week civil trial involved several top-tier white-collar criminal practices.

“This is a wonderful vindication for Michael Kennedy in a case that never should have been brought against him by the SEC,” said David Schertler, one of the attorneys for Kennedy at Schertler & Onorato. Schertler said the verdict was a “resounding defeat for the SEC, which spent hundreds of thousands of dollars pursuing and litigating the claims.”

In addition to Asbill, Wakeford also was represented by Kerri Ruttenberg of Dewey & LeBoeuf and Paul Hugel of Clayman & Rosenberg. Terrance Reed and William Coffield of Lankford, Coffield & Reed, represented Benyo.

Steptoe & Johnson partner Mark Hulkower and associate Marc Levin represent John Tuli, a fourth co-defendant who will be tried separately later this year.

Williams & Connolly Partner Suffers Setback in Olympic Medals Appeal

Washington attorney Mark Levinstein suffered a frustrating setback Wednesday in his effort to keep seven of the eight women who ran with admitted steroid user Marion Jones from losing their Olympic medals. On April 23, the U.S. Olympic Committee declined to fund their appeal because a letter Levinstein sent the committee used “threatening” language.

According to a Los Angeles Times article Thursday, the language in the letter, sent to the USOC in December, spurred them to decline funding for the appeal. The USOC paid for a similar appeal also argued by Levinstein, in 2004 involving U.S. men who ran on the 4-by-400-meter relay during the 2000 Olympics with Jerome Young, who should have been ineligible.

Levinstein, a partner in Williams & Connolly’s Washington office, convinced the USOC in 2005 that the men in the Young case should keep their medals.

The female athletes have kicked off a fund-raising campaign to cover the cost of their appeal. The USOC paid approximately $200,000 to finance the men’s appeal.

The USOC offered to provide the women with another attorney from a list of three other lawyers, but they have decided to stay with Levinstein.

They must file their appeal by May 1.

— by Jeff Jeffrey