The BLT: The Blog of Legal Times

Leahy Names Witnesses for Truth Commission Hearing

Three men who have been critical of the Bush administration’s approach to preventing terrorism or have supported the idea of a “truth commission” to investigate possible Bush-era wrongdoing are scheduled to testify March 4 about creating a commission.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) released the witness list today, a day after announcing he would hold a hearing to examine his proposal for such a commission. The three witnesses will be:

John Farmer, former senior counsel to the 9/11 Commission and attorney general of New Jersey. He is a partner with Arseneault, Whipple, Farmer, Fassett & Azzarello in New Jersey.

Lee Gunn, retired vice admiral and former inspector general of the Navy. He is president of the Institute of Public Research at the non-profit CNA in Alexandria, Va.

Thomas Pickering, former under secretary of state for political affairs and ambassador to the United Nations. He is vice chairman of the consulting firm Hills & Company.

Republicans have not announced their witnesses.

Judges Might Get Pay Bump This Year, But Not Next

The prospects have improved for a small increase in federal judges’ paychecks — in the near term, at least.

House members voted Wednesday for a $410 billion spending plan to keep the federal government running through September, and the plan includes a cost-of-living adjustment for the federal judiciary for the 2009 calendar year. According to the Administrative Office of the U.S. Courts, the proposal would give judges a 2.8 percent increase retroactive to January.

Though it wouldn’t bring judges close to the salaries of their friends in private practice or in deanships at top law schools, it would end their status as the only federal employees who did not get a cost-of-living adjustment this year. They have gone without such an increase in seven of the last 14 years, and Chief Justice John Roberts Jr. has made the issue a priority.

The spending plan now heads to the Senate, which has been less receptive for arguments for higher judicial pay and could amend the plan. In October, senators removed plans for the judiciary’s 2009 cost-of-living adjustment from auto-bailout legislation passed by the House.

Whatever the outcome for this year, judges probably shouldn’t expect much next year. Citing the recession and increasing unemployment, House members voted Wednesday in the same legislation to turn down their own cost-of-living adjustment scheduled for January 2010. Because judicial pay is linked to congressional pay, the chances for a judicial adjustment are looking grim.

President Barack Obama’s proposed budget for the federal government’s 2010 fiscal year, which the White House released this morning, does not include a cost of living adjustment or pay raise for the federal judiciary.

That doesn’t mean the judiciary will give up.

“We remain hopeful that Congress will give judges a cost of living adjustment for 2010, even though they have denied themselves one,” says Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts.

Top Lawyer at EPA Rejoins Kirkland & Ellis

The former assistant administrator of the Office of Enforcement and Compliance Assurance with the U.S. Environmental Protection Agency rejoined Kirkland & Ellis this morning as a partner in the firm’s D.C. office. Granta Nakayama, who was with Kirkland from 1994 until 2005, will lead the firm’s environmental practice.

"I'm excited to return to work with friends and colleagues. It was the right move and it's fun coming back," Nakayama says.

With Kirkland, Nakayama says his work will focus on environmental compliance work, which he expects to be busier than in his first go-around with Kirkland.

"Environmental law is much more visible now than it was 20 years ago. Companies are now more focused on the environment than they've been in the past," says Nakayama, who does not yet know which clients he will work with at the firm.

When Nakayama accepted President Bush’s nomination in 2005 for the top lawyer post in the EPA’s Office of Enforcement and Compliance Assurance, he finally brought some stability to the position, which had seen four other assistant administrators come and go since 2001. Legal Times sat down with Nakayama last October to discuss the assistant administrator's record at the EPA.

"I would urge everybody to take advantage of the opportunity to serve their country. Public service is always something we should keep in mind," Nakayama says.

Bush appointees appear to be keen on rejoining their former private firms. Among others, former solicitor general Paul Clement returned to King & Spalding and former Justice Department Antitrust Division head Thomas Barnett returned to Covington & Burling.

Guantanamo Lawyers Appeal to Obama

With their clients still in captivity at Guantanamo months after a judge declared they were not enemy combatants, a group of detainee lawyers made a direct appeal to President Barack Obama today asking for the men’s release.

Susan Manning of Bingham McCutchen, Stephen Olesky of Wilmer Cutler Pickering Hale and Dorr, and Cori Crider of Reprieve submitted a letter this afternoon claiming that their clients are still subjected to regular degradation and abuse by the staff at Gitmo.

Lakhdar Boumediene, the lead plaintiff in Boumediene v. Bush, has suffered through painful force feedings while on a hunger strike, it says, and “for ten days this month he was taken to an isolated cell and forced to sleep and pray on a mat reeking from excrement.”

Mohammed el Gharani, who was 14 when he was captured and handed over to the U.S., “still bears wounds from ongoing mistreatment,” it says. It adds that Gharani is still imprisoned even though Chad’s government asked for his return in January.

The letter also makes a plea on behalf of the 17 Chinese Uighurs, who have presented a particularly thorny problem for the U.S. Though the government acknowledges they are not enemy combatants, no country has been willing to accept them, largely due to pressure from the Chinese. Earlier this month, a federal appeals court reversed a lower court decision that ordered the men released into the U.S.

“Mr. President, our clients recognize the challenges you face. But we respectfully submit that finding a home now for 20 innocents is a drop in the ocean,” the letter says.

Read the whole letter here.

DOJ: A Budget Breakdown

The Justice Department today released a blueprint for its 2010 budget. President Barack Obama has set aside $26.5 billion for the agency, a 3.5 percent ($927.5 million) increase over the FY 2009 budget. Click here for a pdf of the DOJ budget document from the Office of Management and Budget, and have a look at the breakdown -- from a DOJ handout (thanks, DCLawyer) -- after the jump.

A DOJ spokeswoman says the actual proposed budget, in nitty gritty detail, will be released in April.

DAG Nominee Ogden Wins Committee Vote, 14-5

The Senate Judiciary Committee has sent David Ogden's nomination for deputy attorney general to the full Senate for a vote.

The committee voted 14-5 this morning to endorse Ogden for the No. 2 position at the Department of Justice. The vote came three weeks after Ogden, a partner at Wilmer Cutler Pickering Hale and Dorr, went before the committee for his confirmation hearing.

Republicans exercised their option to delay, by one week, votes on two other nominations: Elena Kagan for solicitor general and Thomas Perrelli for associate attorney general. Chairman Patrick Leahy (D-Vt.) could have forced votes on those nominations by scheduling them for an earlier meeting, but he chose not to. As a result of today's delay, Leahy said he'll be giving Republicans less time to consider committee action in the future.

All Democrats voted in favor of Ogden's nomination. Those opposing Ogden were Sens. Tom Coburn (R-Okla.), John Cornyn (R-Texas), Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), and Jeff Sessions (R-Ala.).

Does the Supreme Court Tweet? Not Yet

The U.S. Supreme Court Twitter site looks official enough.

The home Web site it lists is the same as the Court's, and it seems to sent out tweets only when the justices hand down opinions. So is it an official Court site, yet another sign of the Court venturing into the modern era?

Bob Ambrogi spotted it and reported on it on his LawSites blog last month, and he was doubtful. The links to Court opinions that it tweets about out send you to a non-Court site, and it just doesn't look right. And as we noted here last week, a Twitter site that appeared to belong to Attorney General Eric Holder Jr. turned out to be a fake. So is the Court Twitter account also an impostor?

In response to an inquiry, Supreme Court spokeswoman Kathy Arberg confirmed that the Twitter site is not connected to the Court in any way. So any thoughts you might have had of Justice David Souter fast-forwarding himself into the BlackBerry Age will have to wait.

But other federal courts are not waiting to open the door to Twitter -- which if you haven't yet partaken, is a networking site that allows you to send quick micro-blog posts of 140 character or less to people who know where to find them. More and more judges are allowing journalists to use Twitter to cover proceedings in their courtrooms. 

Ron Sylvester, veteran courts reporter for the Wichita Eagle, reports on his blog that he'll be allowed to use Twitter to report on a forthcoming gang trial from inside U.S. District Court judge J. Thomas Marten's Wichita courtroom. Sylvester has covered numerous state court trials via Twitter -- and proven its value -- but this is his first time in federal court. 

As his blog post indicates, though, the idea is beginning to catch on. (Legal Times has also used Twitter as one way to cover Senate confirmation hearings and the like, but with all electronic devices barred from the Supreme Court chamber, tweeting is not possible there.) Sylvester says readers tell him that the kind of running account that Twitter facilitates gives them more information about a trial than a typically brief account in the next day's newspaper would.

The Morning Wrap

Tracking the Gun Trade: With a headline that calls the United States an “arms bazaar” for Mexican drug cartels, The New York Times reports on the cross-border trade in firearms. The two countries have very different approaches to gun control, the Times reports, with Mexico requiring that citizens get approval from the military to buy guns and prohibiting them from owning large-caliber rifles or high-powered pistols, which are considered military weapons. Coincidentally, Attorney General Eric Holder Jr. reiterated the Obama administration’s support Wednesday for a new ban on “assault weapons.”

Who Must Disclose?: The Los Angeles Times reports that a recent ruling on Montana campaign finance disclosure requirements from the U.S. Court of Appeals for the 9th Circuit could have implications for the heated legal debate in California over donors to the Proposition 8 ban on same-sex marriage. “The cavalry just came over the hillside,” one lawyer for pro-Proposition 8 donors tells The Recorder.

In the Dog House, Literally: The late Leona Helmsley’s dogs might not become so wealthy after all, The Wall Street Journal reports. A New York judge has ruled that trustees managing the deceased hotel mogul’s fortune can distribute the funds to charitable causes they deem appropriate, despite Helmsley’s instructions that money go toward “purposes related to the provision of care for dogs.”

In the Dog House, Figuratively: Speaking of New York judges, a family judge there is facing discipline for repeatedly requiring her secretary to perform personal chores. The New York Law Journal reports via Law.com that Judge Dandrea Ruhlmann required her secretary, who was also a longtime friend, to babysit her children and type documents for her husband. The secretary-friend later secretly recorded a conversation in which the judge told her it was her job to do the work given.

More FDA Troubles: The Food and Drug Administration did not inspect a North Carolina syringe factory for almost two years despite complaints that its needles were dirty or filled with particles, The Associated Press reports. Now, those syringes have been linked to hundreds of illnesses and five deaths. The News & Observer of Raleigh reports that the company’s chief executive, who has been indicted, is the subject of an international manhunt.

Former Staff Attorney Files Racial Discrimination Suit Against Covington

A former staff attorney at Covington & Burling has filed suit in D.C. Superior Court against the firm alleging that in 2006 she was subjected to months of ethnic and racial slurs by white staff attorneys, The AmLaw Daily reports.

Yolanda Young, an African-American lawyer who wrote a controversial column for The Huffington Post on racial segregation at big law firms, says that after months of performance reviews in which she was lauded for her work performance, she was not given access to training that her white counterparts received. Young also says that her annual bonus in 2007 was $4,000 less than the $9,000 one she had received the previous year and less than the one given to her white colleague Sarah Wittig, who is also a former staff attorney at the firm. Along with Wittig, Young’s complaint names as defendants litigation partners Patrick Davies and Stephen Anthony, former associate Caroline Reynolds, who is now with Zuckerman Spaeder, and former staff attorney Vanessa Natale.

Young’s complaint goes on to accuse the firm of refusing to rehire her after she was terminated in August 2007, despite the firm rehiring several staff attorneys with "less seniority and lower billable hours" than herself.

In a statement given to The AmLaw Daily, the firm’s outside counsel Michele Roberts, a partner at Akin Gump Strauss Hauer & Feld, says, “While saddened that Ms. Young has chosen to make these false allegations, Covington & Burling intends to vigorously defend against them. Ms. Young's assertions overlook fundamental differences between the work of staff attorneys and other firm lawyers. Ms. Young's allegations also fail to account for the important roles played by African American lawyers at [Covington] . . . [her] assertions unfairly demean all of these attorneys."

Senators Question OLC Nominee on National Security

The nominee to lead the Office of Legal Counsel faced questions today about the same set of issues that occupied the office under the Bush administration: the legal limits of the executive branch in preventing terrorism.

Senators asked Dawn Johnsen (above), a law professor at Indiana University at Bloomington, to explain her views on detaining potentially dangerous combatants, on interrogation techniques, and on the confidentiality of OLC opinions related to national security. She has been a vocal critic of the office's work during the last eight years.

Johnsen said it would not be her job if confirmed to determine the fate of the approximately 245 remaining detainees at the Guantánamo Bay military prison, though she would advise the Obama administration on the legality of various options.

Asked by Sen. Lindsey Graham (R-S.C.) whether the United States is at war, Johnsen initially hesitated. "I generally do, but I'm reluctant to give a no or yes," she said. She then clarified that she thinks the nation is at war with members of al-Qaeda.

Johnsen did not hesitate when Sen. Dianne Feinstein (D-Calif.) asked whether she thinks torture could ever be justified under the law — "No, senator, I do not," Johnsen said — or whether she thinks waterboarding is torture — "Yes, senator," she said. The answers echoed those given by Attorney General Eric Holder Jr. at his confirmation hearing.

She said that the Office of Legal Counsel should have a general presumption to publish its opinions, which have the effect of court opinions for the executive branch, especially if such opinions would "surprise Congress" on a matter of statutory interpretation. But, she added, she would make such decisions case-by-case.

Senators spent much more time questioning Johnsen than they did David Kris (below), nominee for assistant attorney general for the National Security Division and senior vice president and deputy general counsel at Time Warner. Kris, who has been widely praised for his expertise on national security investigations, told senators that he thinks the government does have the authority to hold enemy combatants for the duration of a conflict.

With a few exceptions, the hearing did not focus on Johnsen's time as legal director for the abortion-rights group NARAL Pro-Choice America from 1988 to 1993, work that has energized conservative opposition to her nomination. The most pointed questions on abortion came from Sen. Arlen Specter (R-Pa.), who favors abortion rights but asked Johnsen about a footnote she wrote in a brief two decades ago.

See the Legal Times feed on Twitter for more details.

Photos by Diego M. Radzinschi.