The 9th Circuit today denied a Justice Department motion to stay a district judge's order in a lawsuit challenging the legality of President George W. Bush's warrantless electronic surveillance program.

U.S. District Judge Vaughn R. Walker last month ordered the government to turn over to him a secret document that the plaintiffs in the case say helps prove they were unconstitutionally targeted by the surveillance. Walker also ordered the government to provide top-secret clearances for as many as three of the plaintiffs' attorneys, so they could read and respond to orders Walker might issue subsequently.

The appellate order is a further setback for the administration's efforts to shield controversial Bush administration policies from judicial review. The administration, worried that Walker is going to show classified information to the plaintiffs' attorneys, today filed a sharply worded defense of executive authority over classified information.

The House Judiciary Committee's chairman and top Republican spoke out Friday about the prospect of Judge Samuel Kent continuing to collect a paycheck even after pleading guilty this week to obstruction of justice.

"We are concerned about reports that Judge Samuel Kent may be attempting to retain his pension," Chairman John Conyers Jr. and Ranking Republican Lamar Smith said in a joint statement. "Judge Kent has pled guilty to serious crimes and the idea that he would receive taxpayer money in retirement is something the Committee may well need to review in conjunction with our authority under the Constitution in the areas of judicial misconduct."

Conyers and Smith stopped short of threatening impeachment of Kent, who has admitted that he lied to investigators looking into a sexual complaint against him and that he had non-consensual sexual contact with two female court employees. Kent is seeking a disability exception that would allow him to continue collecting his salary while in prison.

The Justice Department is asking the Supreme Court to dismiss a case challenging the legality of an enemy combatant's detention.

Yesterday, a federal grand jury in Peoria, Ill. charged Ali Saleh Kahleh Al-Marri with two counts of material support for terrorism. Acting Solicitor General Edwin S. Kneedler filed a motion in Al-Marri v. Spagone urging the high court to drop the case in light of the criminal charges. Kneedler also filed an application for Supreme Court approval of a transfer of al-Marri from military custody to criminal custody.

Civil libertarians applaud the administration's move to put al-Marri in the criminal justice system. But they want President Obama to go further, and renounce his predecessor's view that the president is empowered to arrest and imprison people inside the United States indefinitely without charge or trial.

"The Obama administration has not yet renounced its power to do this again in the future, and it's imperative that the Supreme Court make clear that the president does not have the legal authority to imprison legal residents or American citizens in this country without trial," said ACLU attorney Jonathan Hafetz, who is representing al-Marri before the high court.

Connecticut Sen. Joseph I. Lieberman wants to know why federal courts are still charging the public for electronic copies of court records.

Lieberman wrote today to U.S. District Judge Lee H. Rosenthal, who chairs the Judicial Conference's Committee on Rules of Practice and Procedure. Lieberman noted that under a provision of a 2002 law, the federal courts were supposed to move away from charging money for electronic access to court filings. The charge for documents through the Public Access to Court Electronic Records (PACER) system is eight cents per page.

"Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available -- with PACER charging a higher rate than 2002," wrote Lieberman, who is the chairman of the Senate Homeland Security and Governmental Affairs Committee.

Rep. F. James Sensenbrenner wrote the U.S. Court of Appeals for the Fifth Circuit's chief judge Thursday asking her to deny a disability request by a district court judge who pled guilty this week to obstruction of justice.

As we reported yesterday, Sensenbrenner intends to try to impeach Samuel B. Kent, a judge in the Southern District of Texas, if he doesn't resign. Kent has admitted that he lied to investigators looking into a sexual complaint against him and that he had non-consensual sexual contact with two female court employees.

Sensenbrenner, a Wisconsin Republican and former House Judiciary Committee chairman, is particularly incensed that Kent is seeking a disability exception that would allow him to continue collecting his salary while in prison.

"I trust you will examine all of these issues carefully before considering Judge Kent's disability request," Sensenbrenner wrote in his letter to Judge Edith H. Jones.

President Obama will almost immediately have a chance to remake the face of the federal bench in at least one state.

District Court Judge Lawrence Piersol's recent announcement that he intends to take senior status means two of South Dakota's three judgeships will soon be vacant. Charles Kornmann took senior status last July.

On Thursday, the state's Democratic Sen. Tim Johnson announced he has made two recommendations to President Obama. One of them is likely to be particularly well received among liberals who have called on President Obama to nominate judges with diverse work experience.

Tom Geoghegan, a Democratic candidate for the U.S. House seat vacated by White House chief of staff Rahm Emanuel, is part of a lawsuit against Illinois Democratic Gov. Pat Quinn trying to force a special election to fill President Obama's old U.S. Senate seat.

Of course, the Senate seat isn't empty -- it's occupied by Roland W. Burris, whom former Illinois Democratic Gov. Rod Blagojevich appointed a short time before being removed from office -- in large part because of federal allegations that Blagojevich tried to sell the seat. Burris now is embroiled in a scandal of his own because of inconsistent statements he made under oath about the circumstances surrounding his appointment.

"The 17th Amendment is very clear. It states in the case of a vacated Senate seat, the governor 'shall issue writs of elections to fill such vacancies.' This has not been done," said Geoghegan, who is a plaintiffs' counsel in the case. "We want (the) state of Illinois to call a special election as required by the U.S. Constitution,"

The Justice Department is defending a provision in a 2008 surveillance law that provides legal immunity to telecommunications companies that cooperated with the Bush administration's warrantless surveillance program.

The department was expected to defend the provision. But its stance in a brief filed today in a California federal court underscores the surprising degree to which the Obama administration -- at least in court -- is determined to shield President Bush's controversial counter-terrorism policies from legal challenge or even public scrutiny.

The Obama administration is seeking to have a raft of consolidated lawsuits challenging the legality of the warrantless surveillance dismissed. U.S. District Judge Vaughn R. Walker, who is overseeing the consolidated lawsuits in the Northern District of California, asked the Justice Department for its views on the immunity provision in the law.

Under the provision, judges are required to dismiss such lawsuits against a telecommunications company if the Attorney General privately certifies that the company was cooperating with the government.

Utah Republican Sen. Orrin G. Hatch hailed today's unanimous Supreme Court ruling that religious monuments in a public park are a form of government speech, and thus not entitled to First Amendment protection against government regulation the way private speech is.

"While I am an avid supporter of free speech, I think it is simply absurd to argue that, when a city posts a monument or a message in a public place, the First Amendment requires them to accept any and all monuments offered for display," Hatch said.

The high court ruled in Pleasant Grove City, Utah, v. Summum that the city could not be forced to erect a religious monument in its 2.5-acre Pioneer Park. A monument to the Ten Commandments, donated by the Fraternal Order of Eagles, already stands in the park. A Utah-based Gnostic Christian sect, Summum, wanted to put a monument to the "Seven Aphorisms of Summum" in the park.

"While I don't doubt the sincerity of the members of the Summum church, I think the reason this case has received such national attention is because there are some people who have made it their life's ambition to remove any and all religious speech and symbols from the public sphere," Hatch said.

Texas Republicans John Cornyn sounded an uncharacteristically bipartisan note as he headed to the White House Wednesday to talk about judicial nominations.

Cornyn said he had to leave a Judiciary Committee confirmation hearing for two assistant attorneys general in order to make his appointment with White House Counsel Greg Craig.

Joined by his fellow Texan Kay Bailey Hutchison, Cornyn said he planned to talk about ways to reconstitute the committee that makes recommendations for Texas' U.S. attorneys and federal judges in a bipartisan way.

That might not exactly be the tone conservative activists are hoping to hear from Cornyn, who they hope will lead the charge against President Obama's judicial nominees.

Mark Gitenstein will not be nominated as head of the Justice Department's Office of Legal Policy as expected, an administration official confirmed Wednesday.

The possible nomination of Gitenstein, a former aide and close adviser to Vice President Joseph R. Biden Jr., was undone by his work as a lobbyist. The decision not to nominate Gitenstein was first reported Wednesday by Roll Call.

Gitenstein's work as a partner at Mayer Brown LLP for a variety of corporate clients in recent years including the U.S. Chamber of Commerce and AT&T put him at odds with President Obama's executive order barring lobbyists from serving in the new administration.

Rep. F. James Sensenbrenner Jr., R-Wis., intends to introduce an impeachment resolution against a Texas federal judge who pled guilty Monday to obstruction of justice.

Samuel B. Kent, a judge in the Southern District of Texas since 1990, has admitted that he lied to investigators looking into a sexual complaint against him and that he had non-consensual sexual contact with two female court employees.

As first reported by the Houston Chronicle, Sensenbrenner, a former House Judiciary Committee chairman, is angry that Kent is trying to claim a disability that would allow him to retire with full pay.

"For him to go on senior status early because of a disability which is sexually harassing employees is outrageous," Sensenbrenner told CQ on Wednesday. Sensenbrenner says the decision whether to grant Kent's disability request is in the hands of Edith Jones, the chief judge of the U.S. Cort of Appeals for the Fifth Circuit.

Sonia Sotomayor, the Second Circuit judge and potential Supreme Court nominee, will be appearing as a moderator of a panel this weekend at the Federalist Society's annual student symposium this weekend at Yale Law School.

During the panel entitled "Confirmation Battles & Judicial Nominations," Sotomayor could pick up some pointers from another attendee, Rachel Brand, who headed the Office of Legal Policy in the George W. Bush administration. In that role, Brand helped shepherd the last female nominee to the Court, Harriet Miers.

As is typical at Federalist Society events, the panel includes a token liberal participant, in this case, Nan Aron, president of Alliance for Justice.

The event is at 11 a.m. Saturday, but sadly for those of us who can't make it to New Haven, the campus Federalist Society chapter says the event will not be webcast.

Most of the members of the Supreme Court showed up to the House chamber for President Obama's speech Tuesday night -- but one in particular drew the applause of the assembled lawmakers.

Ruth Bader Ginsburg, who is battling pancreatic cancer, smiled at the warm reception she received when she entered the chamber with her colleagues before the speech.

Obama paused on his way to the House podium to embrace Ginsburg and speak to her briefly.

After undergoing surgery and hospitalization for her illness, Ginsburg returned to the bench this week to participate in oral arguments. She wrote one of the opinions the court handed down earlier today.

Federal judges would receive a 2.8 percent cost-of-living pay increase under the fiscal 2009 spending bill introduced Monday.

The provision providing for the pay increase is buried within the 171-page Financial Services portion of the bill. Judges would receive the same cost of living allowance as members of Congress.

Many federal judges were outraged last December when their cost-of-living increase got stripped from the auto bailout. One senior District Court judge in Connecticut said it helped spur his decision to retire.

The Supreme Court ruled 7-2 on Tuesday that, under a 1996 law barring gun possession for people convicted of misdemeanor offenses involving domestic violence, the underlying offense did not have to include proof of a domestic relationship between the perpetrator and the victim.

"Congress' less than meticulous drafting...hardly shows that the legislators meant to exclude from (the law's) firearm possession prohibition domestic abusers convicted under generic assault or battery provisions," Justice Ruth Bader Ginsburg wrote for the majority.

At issue was a law written by New Jersey Democratic Sen. Frank Lautenberg that expanded a 1968 federal gun control law to include a possession ban for misdemeanants involved in domestic violence. Lautenberg and two other Democratic senators, Dianne Feinstein of California and Patty Murray of Washington, had filed a friend-of-the-court brief in the case.

The Senate Judiciary Committee's top Republican, Arlen Specter, has rehashed Justice Ruth Bader Ginsburg's 1993 confirmation with a written question to Solicitor General nominee Elena Kagan.

Specter said Ginsburg had written prior to her confirmation that "the age of consent for women should be 12, that prisons should house men and women together in order to have gender equality, that Mother's and Father's Day should be abolished because they stereotype men and women, and that there is a constitutional right to prostitution."

Then Specter pivoted to a 1995 book review in which Kagan called Ginsburg a "moderate," and asked Kagan whether she thought those are moderate positions. Specter also wanted to know whether Kagan agreed with Ginsburg's purported view that there should be federal funding for abortions, and whether Ginsburg has built a "moderate" record on the high court.

The D.C. Circuit has granted a Justice Department request to delay, for another week, the deadline for the opening brief in a lawsuit pitting the House Judiciary Committee against two senior Bush White House aides.

Former White House counsel Harriet Miers and former White House chief of staff Joshua B. Bolten originally had until Feb. 18 to file their initial brief in their appeal of a district judge's ruling that they are not immune from committee subpoenas. The Justice Department asked for a two-week delay to give more time to negotiations between the House, the administration and former President George W. Bush on an out-of-court settlement.

The D.C. Circuit initially granted a one-week delay, to Feb. 25, but pushed that to March 4 today.

Sen. Jim Bunning issued a statement Monday apologizing to Justice Ruth Bader Ginsburg for his prediction that she was likely to succumb to pancreatic cancer within the next nine months.

"I apologize if my comments offended Justice Ginsberg," said the Kentucky Republican, a former Major League Baseball player with no medical training. "That certainly was not my intent. It is great to see her back at the Supreme Court today and I hope she recovers quickly. My thoughts and prayers are with her and her family."

Bunning might actually owe her another apology -- for misspelling her name. Senator, it's a "u," not an "e," in the second syllable.

The Louisville Courier Journal carried an account of Bunning's speech to the Hardin County, Ky., Republican Party's Lincoln Day Dinner where he suggested she has "Bad cancer. The kind that you don't get better from."

As we reported earlier, Ginsburg participated actively Monday at the Court's first oral argument since she underwent treatment last month.

Justice Ruth Bader Ginsburg didn't waste any time Monday making herself heard at the Supreme Court's first oral argument since she underwent treatment for pancreatic cancer.

Ginsburg jumped in with the second question when the argument over a case involving Native American tribal mineral assets began. And she asked the first question when Carter Phillips, a frequent oral advocate before the Court, started speaking on behalf of the tribe. In all, Ginsburg asked five questions during the hour-long argument.

Ginsburg had good reason to take an interest in the case. She wrote the majority opinion in a related 2003 case involving the same issue.

The Supreme Court announced today that it would hear oral arguments in a closely watched detainee case on April 27.

Al-Marri v. Spagone began as a test of President Bush's position that the authorization for the use of force Congress passed in the wake of the Sept. 11, 2001, terrorist attacks authorized him to arrest and indefinitely detain people within the United States who are suspected of being involved in terrorism.

Now the case is a bellwether for President Obama's detention policies. After Obama took office last month, the Justice Department asked the court for a delay in filing its opening brief in the case until March 23, which the court granted.

The Justice Department has filed an emergency stay motion at the 9th Circuit, asking it to freeze a district judge's order in a lawsuit challenging the legality of President Bush's warrantless surveillance program.

It is the second move in the 9th Circuit by Obama's Justice Department this month to continue shielding controversial Bush counterterrorism policies in such lawsuits. And it is likely to give a fresh push to Democratic legislation pending in Congress to circumscribe Obama's use of the "state secrets privilege" to withold government information.

"Disclosure of the material at issue here would cause exceptionally grave harm to the national security and result in irreparable injury to the United States," Justice Department lawyers wrote in their brief. The Obama administration's stance is all the more striking because the immediate question is whether the plaintiffs in the case can have access to classified material they have already seen.

More reporters than usual are likely to appear Monday when the Supreme Court hears the first oral arguments of the month and it's not any case that's the draw.

Justice Ruth Bader Ginsburg is scheduled to return to the bench for the first time since undergoing treatment for pancreatic cancer.

Ginsburg has already started working again, though not necessarily at the Court.

SCOTUSblog reports that she was working at home Thursday when, as Circuit Justice for the Second Circuit, she denied a stay application in a pending case.

Karl Rove is ready to submit to questioning by the House Judiciary Committee. Just not about the Bush administration's firings of nine U.S. attorneys in 2006.

That's not good enough for Michigan Democrat John Conyers Jr., who issued a fresh subpoena to Rove last Friday to appear at a Feb. 23 deposition. Conyers wants to ask Rove about allegations that the Bush administration politicized the Justice Department in several ways. Rove's attorney, Robert D. Luskin, responded with a letter to Conyers the same day saying that if Conyers was not going to let Rove set boundaries around his testimony, then Rove would not appear.

Conyers also subpoenaed Rove in the 110th Congress. Rove refused to comply after President Bush invoked executive privilege. On Jan. 16, a few days before he left office, Bush instructed Rove not to comply with any new subpoenas on the subject of the attorney firings. As of Feb. 13, Luskin had not heard from White House counsel Gregory B. Craig about President Obama's position in the affair.

The D.C. Circuit has ordered two former Bush White House aides to file their opening brief on Feb. 25 in their appeal of a House Judiciary Committee lawsuit seeking enforcement of committee subpoenas.

Former White House counsel Harriet Miers and chief of staff Joshua B. Bolten were originally supposed to file that brief yesterday. But the Justice Department asked the court for a two-week delay to give all sides time to strike a deal to settle the case out of court.

Bolten and Miers are defying committee subpoenas seeking documents and, in Miers' case, testimony related to the firings of nine U.S. attorneys in 2006. The committee subpoenaed Bolten and Miers in 2007, but they did not comply after President George W. Bush made a blanket claim of executive privilege.

Conservative activists are hoping that the Senate Republicans' mild treatment of some of President Obama's executive branch nominees isn't a sign of how they'll handle the president's picks for the federal bench.

Conservatives will be watching the Senate Judiciary Committee confirmation hearing next Wednesday for Obama's nomination of Dawn Johnsen to head the Justice Department's Office of Legal Counsel for more clues.

"The real test is going to be coming up with Dawn Johnsen," said Manuel Miranda, chairman of the Third Branch Conference.

Loyola Law School, Los Angeles law professor Richard L. Hasen reports a large amount of election-related litigation last year, continuing a trend Hasen has observed of increased court battles over elections since 2000.

Civil rights advocates are hopeful that Congress will pass legislation to try to help solve a myriad of voting problems across the country. But there is little appetite among lawmakers to address the issue, which has become increasingly partisan in recent years.

According to Hasen, an election law expert, there were 297 election challenge cases in state and federal courts in 2008, not as many as the 361 cases that Hasen found for 2004, but more than the 197 cases in 2000.

Alabama Congressman Artur Davis, who recently announced plans to run for governor in 2010, has pitted himself in an unusual face-off with his own state Democratic party.

Davis and the state party have set up dueling committees to nominate candidates for U.S. attorney and District Court judgeships. Davis told CQ that the seven-member committee he set up in December is designed to make sure these jobs aren't treated like "patronage positions."

On Wednesday, Davis' office announced his committee has suggested two nominees for a District Court vacancy in his home state. As the Birmingham News reported, Davis' committee has suggested two Birmingham lawyers. The first-ranked choice is Abdul Kallon and the runner up is, Herman "Rusty" Johnson.

A group of House Republicans filed a brief Wednesday challenging a federal District Court's ruling that a 30-year mandatory minimum prison sentence was a cruel and unusual punishment for a man convicted of crossing state lines to have sex with a minor.

That automatic mandatory minimum prison sentence was included in the Adam Walsh Act passed by Congress to combat child sex abuse. But in September 2008, Judge Beverly B. Martin of the Northern District of Georgia ruled that penalty was unconstitutional as applied to Kelly Farley, a 39-year-old Texas man convicted of making plans to molest a 10-year-old girl.

In the brief filed with the U.S. Court of Appeals for the 11th Circuit, the GOP lawmakers say they "are particularly concerned with the lack of respect and improper deference afforded to Congress by the district court in the case" and suggest the lower court's ruling "threatens to abridge Congress' authority to impose punishment that it deems appropriate to the corresponding offense."

The U.S. Court of Appeals for the District of Columbia Circuit ruled Wednesday that a federal judge could not order the administration to release Guantanamo Bay detainees into the United States.

A three-judge panel ruled in Kiyemba v. Obama that a district court judge was wrong to order the release of 17 Uighurs into the United States last October.

Wednesday's ruling demonstrates the complex legal situation the Obama administration is trying to untangle regarding the Guantanamo Bay prison. Attorney General Eric H. Holder Jr., who is leading an administration task force on Guantanamo, told reporters that he will visit the prison on Feb. 23, saying "we need to have our feet on the ground" to grapple with the problem.

As New York Times Supreme Court reporter Adam Liptak noted  yesterday, all nine current Supreme Court justices are former federal appeals court judges. That homogeny could factor into President Obama's thinking, one way or another, as he tailors his list of possible high court nominees.

Liptak wrote about a Feb. 4 speech by Chief Justice John G. Roberts Jr. at the University of Arizona in which Roberts discussed the phenomenon.

Key senators are likely to want Obama to nominate someone other than an appellate judge.

In a Feb. 9 appearance at Georgetown University, Senate Judiciary Chairman Patrick J. Leahy said, "I'd like to see more people from outside what I call the judicial monastery, some who've had other experiences. I remember when I was a student at Georgetown having lunch with Hugo Black. Great advocate for the First Amendment. He came from outside the judicial monastery."

Asian American legal groups are hoping President Obama adds some of their own to the Circuit Courts of Appeals, which haven't had a single active Asian American judge for five years.

That's been the case since A. Wallace "Wally" Tashima, a judge on the Ninth Circuit, took senior status in 2004, according to the National Asian Pacific American Bar Association. Eight District Court judges are Asian American, including the first-ever south Asian, Amul Thapar, who was confirmed to a seat in the Eastern District of Kentucky in 2007.

"It is very important to make sure the federal judiciary reflects the communities that it serves and that it has the perspectives of Asian Americans," says Karen Narasaki, the president of the Asian American Justice Center.

Don't expect to see much of Ralph Neas the next time there's a vacancy on the Supreme Court.

Neas, one of the Left's leading judicial nomination warriors, has taken a new job as chief executive of the National Coalition on Health Care.

Granted, it's been more than a year since Neas wrapped up his eight-year tenure battling President Bush's judicial nominees as PFAW's president and handed the reins to Kathryn Kolbert. Before that, he helped lead the fight against Robert H. Bork and Clarence Thomas as executive director of the Leadership Conference on Civil Rights.

Justice Department lawyers have asked the D.C. Circuit for more time for defendants in a House Judiciary Committee lawsuit to file their opening brief in the appellate case.

The defendants' opening brief was due Feb. 18, but they've asked the D.C. Circuit for an extension to March 4 -- in part to give negotiations toward an out-of-court settlement a chance to bear fruit.

"Negotiations are now ongoing," Justice Department lawyers wrote in the motion, adding that "these tripartite discussions have been complicated and time-consuming," but that "the requested 14-day extension is appropriate to permit these negotiations an opportunity to succeed, potentially obviating the need for this Court to address the sensitive separation-of-powers questions presented in this appeal."

It's not enough for Pennsylvania Republican Sen. Arlen Specter that he can gaze upon the Supreme Court from his Capitol Hill office. He once again is trying to spur the famously secretive court to televise its proceedings.

Specter -- who rails against Supreme Court decisions that he sees as sometimes confusing or contradictory -- reintroduced legislation on Friday that would require the court to allow television coverage of its open sessions, unless a majority of justices vote that allowing such coverage of a particular case would violate the due process rights of one of the parties.

The bipartisan legislation isn't likely to pass any time soon. That's mainly because at least some of the justices, particularly David H. Souter, are opposed to being filmed on the bench.

And we'll never know how Specter would feel about the issue if he were a Supreme Court justice himself. According to Specter's 2000 memoir, "Passion for Truth," President Nixon and one of his top advisers, H.R. Haldeman, discussed the possiblity in a June 4,1971 Oval Office conversation.

A group of seven federal judges were angry enough over not getting cost-of-living wage increases that they've gone to court themselves.

In a suit (judges-suit.pdf) filed last month in the U.S. Court of Federal Claims alleges that failing to provide a COLA wage bump violates Article III of the Constitution, which bars diminishing judges' compensation while they're in office, by reneging on COLA adjustments.

The question is whether reneging on a promised pay raise is the equivalent of an actual pay cut. A panel of Federal Circuit Court judges said they weren't the same in 1999 when several federal judges filed a similar challenge, ruling judges must actually receive the salary increase before they can complain about it being taken away. The full Federal Circuit rejected a request to hear the case en banc and the Supreme Court denied cert in the case in 2002

The Supreme Court has issued a brief statement on Justice Ruth Bader Ginsburg's condition. The court said Ginsburg was released from New York's Memorial Sloan-Kettering Cancer Center today and is now recuperating at home following her Feb. 5 surgery for pancreatic cancer.

The court said that Ginsburg's surgeon removed Ginsburg's spleen and part of her pancreas.

The court said that Ginsburg's lymph nodes proved negative for cancer, there was no metastasis, and the one-centimeter lesion discovered in her pancreas last month was benign.

Talk about the impossible dream. As reported by The National Law Journal, a group of law professors sent the House and Senate Judiciary committees a letter this week urging them to consider four ambitious changes to the way the Supreme Court does business.

In a nutshell, the group would ensure an infusion of fresh blood by appointing a new justice every two years. Only the nine most junior would hear appeals. The Chief Justice would be required to advise a justice when he or she is no longer fit to serve.

"Congress ought to be thinking about this interminable occupation of the office by people who may not be in touch with the world they're living in," says Paul Carrington, a Duke Law School professor who helped organize the effort.

Senate Republicans have been grumbling about the rapid pace Democrats have set for processing President Obama's executive branch nominations.

On Thursday, GOP leader Mitch McConnell of Kentucky sent a shot across the Democrats' bow. In a letter to Majority Leader Harry Reid of Nevada, McConnell listed eight "standards" that the GOP expects Democrats to meet before Republicans will agree to a finite floor debate.

Among the GOP prerequisites: the FBI background check that all nominees undergo is submitted to the relevant committee before a confirmation hearing is even announced; a "reasonable opportunity" for follow-up questioning after confirmation hearings; and cooperation with top Republicans on the relevant committee "on requests for information and transparency."

Then, almost as an afterthought, McConnell wrote "there will be additional requirements, honoring the traditions of the Senate, for judicial nominees."

Rhode Island Democrat Sheldon Whitehouse is the new chairman of the Senate Judiciary Administrative Oversight and the Courts subcommittee for the 111th Congress.

The subcommittee has jurisdiction over court administration and management; judicial rules and procedures, and creation of new courts and judgeships, among other issues. In practice, the vast majority of bills that go through Senate Judiciary are handled at the full committee level. But Whitehouse's assignment positions him to be one of the point people on the committee on issues affecting the federal judiciary.

Whitehouse, who served as a U.S. attorney and Rhode Island Attorney General before being elected to the Senate in 2006, said he wanted to talk with Alabama Republican Jeff Sessions, the ranking member of the subcommittee, before publicly discussing his plans for the panel.

Democrats in the House and Senate have reintroduced legislation designed to curb the president's use of the state secrets privilege.

The move comes two days after the Obama administration stunned civil libertarians by maintaining the Bush administration's stance in a closely watched case, Mohamed et al. v Jeppesen DataPlan, Inc., involving five men allegedly captured by the CIA and sent to other countries to be tortured.

The ACLU sued Jeppesen DataPlan, a Boeing subsidiary, in California federal court in 2007 on behalf of the men. T

he case was dismissed last year after the Bush administration intervened on the company's behalf, citing the state secrets privilege.

The federal judiciary is watching to see whether Congress will appropriate enough money in fiscal 2009 to build a new federal courthouse in San Diego.

The House and Senate versions of the fiscal 2009 appropriations bill that funds General Services Administration both would allot $110 million to the project. According to the GSA, Congress has already appropriated $302 million for the project, some of which has been spent preparing for construction, and a further $110 million would be enough to build the courthouse. Congress is expected to send President Obama an omnibus fiscal 2009 spending bill sometime in the next few weeks.

But it's a different story a little further north, in Los Angeles, where the projected cost of a new courthouse there has tripled since 2000, according to the Government Accountability Office.

If Supreme Court clerks need any reminder that what they write their bosses can come back to haunt them later, they should stop by the Senate Judiciary Committee.

Nominees to senior Justice Department posts are fielding questions at their confirmation hearings mined from memos they wrote during long-ago clerkships. Last week, David W. Ogden, nominee for deputy attorney general, faced questions about a memo he wrote as a clerk to Justice Harry Blackmun.

On Tuesday, Arlen Specter, R-Pa., quizzed Solicitor General nominee Elena Kagan about a memo she wrote to Thurgood Marshall during her clerkship in the court's October 1987 term. At issue was a case involving the question of whether religious organizations qualified under a statute that funded programs aimed to discourage teen pregnancy.

There was nothing but love between the branches when Senate Judiciary Chairman Patrick J. Leahy delivered a speech Monday at Georgetown University laying out his agenda for the new Congress.

Leahy was introduced by Robert Katzmann, a judge on the U.S. Court of Appeals for the Second Circuit, who previously taught at Georgetown and made Congressional-Court relations a focus of his scholarship.

Judge Katzmann called Leahy "a wonderful man" and Leahy repaid the compliments with some of his own.

In the fishbowl world that is the federal government, it is not unusual for senior executive branch nominees to have pre-existing relationships to the Senate committees handling their confirmations.

Attorney General Eric H. Holder Jr. was well known to the Senate Judiciary Committee because of the four years he spent as Deputy Attorney General in the second Clinton administration, for example.

Still, it's hard to beat Thomas Perrelli's tie to that committee, which will hold a confirmation hearing on his nomination to be Associate Attorney General next Tuesday.

There isn't even a Supreme Court vacancy yet but one enterprising Rhode Island man has already snapped up the domain names for two leading contenders.

The domain names www.SoniaSotomayor.com and www.ElenaKagan.com were registered by Damien Baldino of Providence, R.I., only 13 days after President Obama's election last November, according to domain name registrar GoDaddy.com.

The two bare-bones sites are currently filled by just a few links to law-related ads, though that might change should President Obama tap either Sotomayor, a judge on the U.S. Court of Appeals for the 2nd Circuit, or Kagan, Harvard Law School's dean and nominee for Solicitor General.

Next Tuesday's Senate Judiciary confirmation hearing for Elena Kagan to be Solicitor General promises to turn in to a dress rehearsal for another job: Supreme Court justice. Kagan, who is now dean of the Harvard Law School, has been on everyone's short list for a nomination to the high court since Obama was elected. That possibility has only grown since the court announced yesterday that Ruth Bader Ginsburg, the only female justice, is stricken with pancreatic cancer.

To be sure, if Ginsburg retires, President Obama might decide to nominate someone else for that seat. That would give Kagan more time to serve as Solicitor General first and thus burnish her already accomplished resume. But in any event, conservative Senate Republicans can be expected to use Tuesday's hearing to fire some warning shots.

The Supreme Court's announcement Thursday that Ruth Bader Ginsburg is undergoing treatment for pancreatic cancer is a reminder how often justices don't get to choose when they leave the court.

They're often forced to give up their lifetime appointment when their health gives out on them. That was the case with at least eight of the 22 justices who left the court in the last half century.
 
One justice (William Rehnquist) died in office in 2005. At least seven others departed during this time period because their health had given out.

Mark Gitenstein, who is rumored to be President Barack Obama's choice for a top Justice Department post, is drawing fire from the consumer advocacy group Public Citizen because of his private sector lobbying work on behalf of the U.S. Chamber of Commerce, AT&T and other companies.

In a letter Monday to Obama, the group said Gitenstein should not be nominated to be Assistant Attorney General for the department's Office of Legal Policy, which plays a key role in vetting judicial nominees.

Gitenstein, an attorney at Mayer Brown LLP, has lobbied on behalf of the accounting firms KPMG and Ernst & Young, Lockheed Martin and General Electric. Gitenstein also lobbied on behalf of legislation overhauling class action lawsuits for the Chamber of Commerce. Gitenstein formerly served as a top Senate Judiciary committee aide to then-chairman Joseph R. Biden Jr.

The most telling evidence so far that President Obama will abandon some of George W. Bush's more audacious claims of presidential authority wasn't Obama's ballyhooed Jan. 22 executive order closing the Guantanamo Bay detainee prison. It was the little-noticed appointment of Georgetown Law professor Neal Katyal as Principal Deputy Solicitor General at the Justice Department.

Katyal is best known for arguing -- and winning -- Hamdan v. Rumsfeld, a landmark 2006 Supreme Court case on the scope of executive power. In Hamdan, the high court voided military commissions for detainees that Bush unilaterally established as commander-in-chief of the military.

In an earlier detainee case that Bush also ended up losing, Al Odah v. United States, Katyal wrote a friend-of-the-court brief that compared the plaintiff detainees' grievance against Bush to the Declaration of Independence's list of particulars against British King George III.

Senate Judiciary Committee Chairman Patrick J. Leahy is being coy about whether he will keep honoring an informal committee tradition that would allow Republican senators to block some of President Obama's judicial nominees quietly, without resorting to a filibuster. At issue is the committee's "blue slip" policy, whereby nominees for appellate and district courts do not advance without the approval of both home state senators. The practice, named for the color of the paper that senators use to signal their approval or disapproval of nominees dates back to at least 1917.

But it is up to the committee chairman to decide whether and how to observe the practice, and different chairmen have done it differently. Leahy honored the tradition during the last Congress, when a Republican was in the White House. But he might be having a change of heart now. "I intend to look very carefully at it," Leahy said in an interview Tuesday.

Sen. Patrick J. Leahy, D-Vt. sounded unenthusiastic Tuesday about recycling any of the last administration's judicial nominees.

"President Bush was taken very good care of," said Leahy, the chairman of the Senate Judiciary Committee.

That's not how conservatives see it. They blame Leahy for slow-walking many Bush nominees who never got confirmed and have suggested President Obama should resubmit a couple of President Bush's nominees as a gesture of bipartisanship.

Judges across the country are closely watching a Supreme Court case that promises to have a dramatic impact on state judicial elections.

Federal judges receive lifetime appointments, but at least 39 states elect at least some of their judges. It used to be that those elections were relatively sleepy affairs. But state judicial campaign spending has mushroomed in recent years, and the contests have become increasingly politicized.

In Caperton v. Massey, the justices will have to decide whether West Virginia Supreme Court justice Brent Benjamin violated the due process clause of the 14th Amendment when he did not recuse himself from the appeal of a fraud case, even though Don L. Blankenship, CEO of the defendant, A.T. Massey Coal Company, engineered massive financial support for Benjamin's 2004 election

Prominent legal organizations, such as the American Bar Association and the Conference of Chief Justices, are hoping that the Supreme Court will use the case to establish some more formal recusal guidelines for cases that have some connection to election expenditures.**

A senior federal court judge in Connecticut who quit the bench last week is blaming members of Congress for failing to raise judicial pay even as they boosted their own salaries.

"Congress voted themselves a raise this year, but they continue to treat federal judges as if they were second-class citizens," Alan H. Nevas told the Connecticut Post.

Nevas took particular exception to Sen. Claire McCaskill, D-Mo., who suggested in December that it was the "wrong time" and "wrong place" for an increase in judicial pay.