The BLT: The Blog of Legal Times

Kennedy's Skepticism and Scalia's Odd Comment at Supreme Court Today

It was a tough morning at the Supreme Court for civil rights advocates, who are hoping the justices will uphold the pre-clearance provision of the Voting Rights Act. During oral arguments in Northwest Austin Municipal Utility District Number One v. Holder, the Court's conservatives, including Justice Anthony Kennedy, seemed very skeptical of the need for covered jurisdictions, mainly in the South, to seek approval of the Justice Department before they can change voting laws or procedures -- while other states in the North and West don't have to. While the election of the nation's first African-American president last fall was not mentioned specifically, it loomed large over the hour-long argument.

Kennedy, in particular, voiced deep dissatisfaction with the notion that Congress, in renewing the act in 2006, "has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. ... And the governments in one state are to be trusted less than the governments in the others."  While at another point Kennedy said, "No one questions the validity, the urgency, the essentiality of the Voting Rights Act," Kennedy added, "The question is whether or not it should be continued with this differentiation between the states." That concern for sovereignty may make Kennedy's crucial vote unavailable to supporters of the act.

Both Deputy Solicitor General Neal Katyal and NAACP Legal Defense and Educational Fund lawyer Debo Adegbile were forceful in countering the criticism by asserting that Congress had made extensive findings about the continued need for pre-clearance in certain jurisdictions, and that support for the renewal was widespread both in Congress and in the states -- including states covered by the law.

That point about congressional support led to an unusual comment from Justice Antonin Scalia. Noting that the Senate had approved the Voting Rights Act extension by 98 to 0 in 2006, Scalia mused that the Israeli Supreme Court used to have a rule that "if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." Scalia posited that members of Congress like the Voting Rights Act because they were elected under a system that included the act.

Scalia's invocation of the Israeli ruling to question the wisdom of unanimity was notable for two reasons. First, Scalia is a leader of the camp that thinks the Court should not look to foreign court rulings to guide its constitutional interpretation. Second, it may have slipped Scalia's mind, but on Sept. 17, 1986, the Senate cast exactly the same unanimous vote, 98 to 0, on another matter before it: confirming Scalia's nomination to the Supreme Court. More on the arguments later at legaltimes.com

Footnote: The Court has released the audio of today's argument to the media, and it is beginning to be broadcast at c-span.org and elsewhere. At the Election Law Blog, Rick Hasen of Loyola Law School in Los Angeles is live-blogging his analysis of the argument as it airs.

UPDATE: In response to reader comments, it should be noted that while Justice Scalia referred to the "Israeli Supreme Court" in his comment mentioned above, he then referred to it also as the Sanhedrin, the ancient Jewish court system that issued its last ruling more than 1,600 years ago.

FDA Sued Over Electronic Cigarette Embargo

A Florida company that imports and distributes so-called electronic cigarettes filed suit yesterday against the Food and Drug Administration, claiming the agency is illegally blocking imports of its product into the United States.

The suit, filed by Smoking Everywhere in the U.S. District Court for the District of Columbia, argues that the FDA has overstepped its regulatory authority by banning shipments of the devices and insisting they need to go through the drug approval process.

Electronic cigarettes — often marketed as “e-cigarettes” — are a tobacco-free version of traditional smokes. Users inhale vaporized nicotine from a small, plastic tube that heats up with the help of a tiny battery. The whole contraption is designed to look and feel like a normal cigarette, minus the flame and smoke, and their makers market them as a risk-free way to get a nicotine buzz.

Smoking Everywhere’s lawyers from Thompson Hine point out that in 2000, the Supreme Court ruled that the FDA did not have the power to regulate ordinary cigarettes. Therefore, it shouldn’t be allowed to clamp down on their high tech counterparts, the lawyers argue.

“There are a series of laws and regulations pertaining to the advertising and distribution of regular cigarettes that we believe are more appropriate for this particular product, and those laws and regulations are largely administered by the Federal Trade Commission,” says Walt Linscott, an Atlanta-based partner at Thompson Hine.

Congress is currently considering the Family Smoking Prevention and Control Act, which would give the FDA explicit power to regulate cigarettes. Linscott notes that the law would probably give it the right to oversee e-cigarettes as well.

The case is being heard by Judge Richard Leon. The FDA did not return requests for comment.

Justice Department Supports Crack Sentencing Reform

The movement to reform federal cocaine sentencing laws got a big boost from the Obama administration today, as a top Justice Department official testified before Congress in support of reducing the difference between punishments for crack and powdered cocaine.

Lanny Breuer, the new assistant attorney general for the Criminal Division, argued that laws requiring the same punishment for selling 1 gram of crack as for selling 100 grams of powdered cocaine are outdated and have unfairly penalized African-Americans, who make up 82 percent of federal crack defendants.

Breuer read his remarks from a prepared statement later distributed to the press.

Federal law imposes a five-year mandatory minimum sentence for selling five grams of crack or 500 grams of powdered cocaine. Selling 50 grams of crack or 5,000 grams of powdered cocaine earns a 10-year minimum sentence.

Breuer said science has found little scientific basis for the laws. “We cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine,” he said. “We know of no other controlled substance where the penalty structure differs so dramatically because of the drug’s form."

Breuer also pointed to data showing that most crack prosecutions target low-level distributors. Fifty-five percent of federal crack offenders were street dealers, versus 7 percent of those convicted of selling powdered cocaine.

"The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine," Breuer said.

UPDATE 4:48 p.m.

The Morning Wrap

Specter’s Switch: Just a few minutes ago, Sen. Arlen Specter (D-Pa.) wrapped up a visit to the White House. He attended a news conference with President Barack Obama and Vice President Joe Biden, who is getting much of the credit and/or blame for Specter’s party switch. Specter reiterated that he will “not be an automatic 60th vote,” though he has not yet said what his standard will be for voting for cloture. Obama said he will give Specter his full support in the Democratic primary. The BLT reported last night on the effect on nominees for the judiciary and the Justice Department. The Washington Post has a look at how Obama found out.

State Secrets: The U.S. Court of Appeals for the 9th Circuit reinstated a lawsuit Tuesday by five former detainees who accuse Boeing subsidiary Jeppesen DataPlan Inc. of flying them to countries where they’d be tortured. The court’s ruling is a setback for the argument, made by the Bush and Obama administrations, that such a lawsuit would necessarily compromise state secrets. The Recorder has the story via Law.com.

Shocking Scenes: The Wall Street Journal goes a step further in its coverage of Tuesday’s Supreme Court ruling on expletives. The newspaper reports on the caseload of indecency complaints at the Federal Communications Commission — 820,000 since 2006, though the number of unique complaints is likely far lower — and gives some examples. The last FCC indecency fine was for a combined $1.2 million in January 2008 for ABC stations’ airing of an “NYPD Blue” episode that “showed scenes of a woman’s bare bottom,” the Journal says.

Settlement Scrutiny: The Justice Department’s Antitrust Division has begun an inquiry into the implications of Google’s settlement with authors and publishers over its Google Book Search service, The New York Times reports, citing two people briefed on the matter. The inquiry does not necessarily mean that Justice will oppose the settlement, the newspaper says, but it suggests that some of the concerns raised by critics, who say the settlement would unfairly give Google an exclusive license to profit from millions of books, have resonated with the Justice Department.

Specter’s Switch Creates Little Clarity for Nominees

Sen. Arlen Specter’s switch to the Democratic Party brings his new colleagues a little closer to controlling 60 seats in the Senate, but it’s not clear that the switch will have much of an effect on the fate of nominees for the federal bench and the Justice Department.

Lawyers and lobbyists who follow the Senate Judiciary Committee have long said that it’s difficult to predict how Specter will vote on nominees — even when he asks critical questions of them in confirmation hearings. Today the Pennsylvanian vowed not to change his approach.

“I will not be changing my own personal independence or my own approach to individual issues. I will not be an automatic 60th vote,” Specter told reporters, referring to the votes needed to invoke cloture and cut off Senate debate. He added later, “I have always agreed with John Kennedy that sometimes parties ask too much. And if the Democratic Party asks too much, I will not hesitate to disagree and vote my independent thinking.”

In fact, Specter provided a fresh example of that independence today, saying for the first time that he is “opposed” to the nomination of Dawn Johnsen to be assistant attorney general in charge of the Office of Legal Counsel. Her confirmation is a priority for the Democratic Party’s base, in part because the office has been at the center of the battle over interrogation policies. Specter did not elaborate on his reasons for opposing her or make clear whether he would vote for cloture. (Only one Republican, Sen. Richard Lugar of Indiana, has said he will support Johnsen. Johnsen is a law professor at Indiana University at Bloomington.)

Specter is expected to keep his committee assignments. Senate Majority Leader Harry Reid (D-Nev.) said that, on questions of seniority, the Democratic caucus would treat Specter as if he had always been a Democrat. That would make him the second-ranking Democrat on the Judiciary Committee. He has six years less seniority than Chairman Patrick Leahy (D-Vt.) and eight years more seniority than Sen. Herb Kohl (D-Wis.), who has been second to Leahy.

Asked whether he would change his approach to potential judges in particular, Specter said he would not. “I am willing to listen to any judicial nominee,” Specter said. He then alluded to the Republicans’ boycott of the April 1 confirmation hearing for David Hamilton, nominated for the U.S. Court of Appeals for the 7th Circuit, and he said his only concern had been inadequate time to prepare for the hearing. “I will counsel the chairman to have adequate time to prepare,” he said.

Specter has so far voted for all but one of President Barack Obama’s nominees for the Justice Department. He opposed Solicitor General Elena Kagan, whom he criticized for refusing to answer specific questions about her constitutional views.

The party switch would make a difference for an Obama nominee if Specter, as a member of the president’s party, were to feel a greater obligation to help end debate and bring a nomination to a vote. He did not indicate today whether he would be more likely to do so.

The switch will likely lead to a change in tenor on the Judiciary Committee, where Specter, as the top Republican since 2005, has worked closely with Leahy. Though no decision has been announced, Sen. Jeff Sessions (R-Ala.) is in line to succeed Specter as ranking member, unless Sen. Chuck Grassley (R-Iowa) gives up his leadership post on the Finance Committee or Sen. Jon Kyl (R-Ariz.) steps down as Republican whip. Sessions was the 16th most conservative senator last Congress, putting him well to the right of Specter, according to one ranking. Sessions spent 12 years as the U.S. attorney for the Southern District of Alabama.

UPDATE: Nate Silver of FiveThirtyEight.com writes that every party-switcher in Congress since 1980 has changed his voting pattern, post-switch, to be more like his new party. Specter would be unique if his votes did not become more liberal.

Morrison & Foerster Picks Up Top DOJ Official

Morrison & Foerster has added David Meyer, former principal deputy assistant attorney general in the Justice Department’s Antitrust Division, to its Washington office. Meyer joins the firm as a partner and co-chair of the global antitrust and competition law practice group.

At the Antitrust Division, Meyer (Yale Law) was responsible for civil investigations and merger reviews in a wide range of industries. Among other matters, he oversaw the division’s investigations of the XM-Sirius merger, Monsanto’s acquisition of Delta and Pine Land Co., Google's proposed advertising agreement with Yahoo!, Mittal Steel’s acquisition of Arcelor, and Thomson’s acquisition of Reuters.

“The people at the division are tremendous lawyers,” Meyer says. “I learned a lot from them.”

Before going into government in 2006, Meyer was a partner at Covington & Burling for 12 years, ultimately serving as vice chair of the firm’s antitrust and consumer protection group. He says that when he left the DOJ, he spoke to Covington, and “we expressed interest in each other,” but ultimately he decided to join Morrison & Foerster because it was a better fit.

Local Lawyer Dies in Attempt to Save Drowning Children

Longtime Washington lawyer Charles Schulze collapsed and died this weekend in Florida after diving into the ocean to save two drowning children.

When news of the 73-year-old’s death reached colleagues at his firm, Schulze & Pederson, they were dismayed, but not shocked. Somehow, the doomed act of heroism was exactly the sort of thing they expected from their boss, says one co-worker, Sherri Lahay Lasover.

According to the South Florida Sun-Sentinel, the fatal incident occurred while Schulze was on vacation in Pompano Beach, Fla., with Helen Smith, his partner of 20 years. The two were walking along the shore when Schulze noticed two brothers, 9 and 12, struggling in the surf. He dashed into the water and grabbed the younger boy, before swimming out more than 40 yards to fetch the older child as well.

Schulze collapsed as he brought the older boy to shore. By the time paramedics arrived on the scene, he had no pulse.

According to Lasover, Schulze had always felt compelled to lend a hand to those who were struggling. She describes him as the kind of man who would regularly stop his car to help strangers on the side of the road. He had also worked for the Bethesda-Chevy Chase Rescue Squad and had once delivered a baby while on duty. And during a storm in Ocean City, Md., he and a friend hopped into a boat to look for people who were stranded.

“He worked by the golden rule more than anybody I’ve ever met in my life,” Lasover says. “Anybody who was down on their luck, they could come to Charlie, and he would help them.”

Schulze, a D.C. native who graduated from law school at American University, co-founded the firm that would become Schulze & Pederson in 1972 after a brief stint with the D.C. Corporation Counsel. His practice focused largely on personal injury law, though he did some criminal defense work.

He leaves behind two brothers, four children, and five grandchildren.

No Expletives, Fleeting or Otherwise, Uttered by Scalia

As we reported last year, Supreme Court Justice Antonin Scalia once had a chance encounter in New York City with actress Sarah Jessica Parker. Other than that, we're guessing the justice rarely has occasion to bandy about the names of Hollywood celebs like Nicole Richie, Paris Hilton, and Cher. But he mentioned all three this morning from the bench as he announced the Court's 5-4 ruling in FCC v. Fox Television Stations Inc. 

With more detail and seeming relish than was required, Scalia quoted their off-color comments made during live Fox award shows in 2002 and 2003, and he used euphemisms where they did not. During one of the shows Scalia said, Cher told critics, "So f*** 'em." He also cited Richie's comment about her former reality TV show called The Simple Life. "Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple," Scalia quoted Richie as saying. Spectators laughed a little awkwardly.

Scalia did the honors because he wrote the majority in the long-awaited "fleeting expletives" case, in which Fox challenged the decision by the FCC to put Fox on notice for Cher and Richie's one-time use of what Scalia said "we will call the F-word and the S-word."  The majority found that the FCC had acted reasonably in tightening up its policy on indecent language over the airwaves to cover fleeting expletives, which had previously not been viewed as a serious violation if a violation at all. 

The Court explicitly did not rule on Fox's argument that the FCC's new policy violated the First Amendment. The case now goes back to the U.S. Court of Appeals for the 2nd Circuit, which could take up the First Amendment issue. That court has already expressed doubt about the policy's constitutionality. More on the ruling and on other Court action later at legaltimes.com.

Specter Leaves the GOP

UPDATE: (2:18 p.m.) The following are remarks by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) at news conference today on the passage of the Fraud Enforcement and Recovery Act: “Senator Specter called me this morning. He and I have been friends for 40 years. We first met when we were both young prosecutors. We have a particular friendship, and he wanted me to know before it became in the press. “In talking with him, I had the impression that he went through much the same that Jim Jeffords of Vermont did. I had the impression that Senator Specter had a feeling that the Republican Party, a great party in this country, had left him -- not the other way around. I know how hard he has agonized. I believe he's going to be happier.”

Sen. Arlen Specter is switching to the Democratic Party, he announced today -- a move that will give the Democrats a filibuster-proof majority assuming Al Franken is sworn in as Minnesota’s junior senator.

The longtime Republican senator from Pennsylvania is up for re-election in 2010. He was expected to face a grinding primary challenge from former Rep. Pat Toomey. Joe Torsella, the former CEO of the National Constitution Center, is the only Democrat to announce so far. According to the pa2020 blog, Specter raised about $1.2 million in the first quarter of this year, while Torsella raised about $596,000.

It’s unclear what effect Specter’s switch will have on his membership to the Senate Judiciary Committee, where he is (was?) ranking member. Democrats hold a three-seat majority.

Read Specter’s statement below the jump.

Wiretap Applications Drop for First Time in Eight Years

The number of wiretaps used by federal and state law enforcement dropped 14 percent in 2008, declining for the first time in eight years, according to a report released this week by the Administrative Office of the U.S. Courts.

Judges approved 1,891 wiretaps last year, down from 2,208 the year before. The number of intercept applications had been steadily climbing since 2001, when there were 1,491. No applications were rejected.

State agencies accounted for 1,505 of the applications, while federal law enforcement asked for 386.

Like every other year for the past decade, the vast majority of the wiretaps in 2008 were used in narcotics cases. Those investigations also accounted for much of the drop. Last year, there were 1,593 wiretaps in drug cases, down from 1,792 the year before. In the next largest category, homicide and assault investigations, law enforcement officials asked for just 92 wiretaps.

The report found that wiretaps contributed to 4,133 arrests and 810 convictions.

The average cost of executing each wiretap also continued to drop, down to about $47,000 from the decade high of $63,000 in 2004. The average cost of a federal wiretap was $70,536.

The report compiles statistics on the surveillance methods used in domestic investigations. Wiretaps used in terrorism-related cases