Legal Beat

The Senate confirmed President's Obama's first circuit court nominee to the bench today, voting 94-3 to send Gerard Lynch of New York to the U.S. Court of Appeals for the 2nd Circuit.

Voting no were Republicans Jim Bunning of Kentucky and Oklahomans Tom Coburn and James M. Inhofe.

As was the case last week when the Senate Judiciary Committee approved two judicial nominees on the first try, Chairman Patrick J. Leahy, D-Vt., could not resist castigating Republicans for delaying judicial nominations.

Senate Democrats are are trying to get a unanimous consent agreement for the Senate to debate and vote on the nomination of Gerard Lynch to the U.S. Court of Appeals for the 2nd Circuit.

Lynch's nomination is relatively non-contentious. The Senate Judiciary Committee approved the nomination by voice vote on June 11.

There are four appellate court nominations, including Lynch's, and one district court nomination pending on the Senate's executive calendar.

The need for more federal judges was the topic at a news conference Tuesday with Anthony J. Scirica, executive committee chairman of the Judicial Conference.

Scirica, who serves on the 3rd Circuit appeals court, said that since 1990 -- the last time Congress enacted a major judgeship bill -- appellate court caseloads have gone up by 45 percent, and district court caseloads have gone up 27 percent. Scirica said there has been a "huge influx" of immigration appeals to circuit courts, and that "border courts," such as the Southern and Western districts of Texas have seen a big jump in cases.

Senate Judiciary Chairman Patrick J. Leahy has introduced a bill that would create dozens of new appellate and district court judgeships.

The U.S. Postal Service plans to issue a panel of four stamps honoring former Supreme Court justices Joseph Story, Louis D. Brandeis, Felix Frankfurter and William J. Brennan Jr.

The Postal Service and the Supreme Court will commemorate the first day of issue on Sept. 22, with an event at the Supreme Court featuring Chief Justice John G. Roberts Jr. and Postmaster General John E. Potter.

President Obama has nominated Virginia Supreme Court Justice Barbara Milano Keenan for a seat on the 4th Circuit appeals court.

"Justice Keenan has a long and distinguished record of service on the bench," Obama said. "She was the first female judge elected in the state of Virginia and the only woman appointed to the Virginia Court of Appeals upon its creation. Her commitment to fairness and judicial integrity has been unwavering throughout her career, and I am honored to nominate her today to serve on the United States Court of Appeals."

There are five vacancies on the 15-member 4th Circuit, which has a reputation for being the most conservative appellate bench in the country. Obama has nominated one other 4th Circuit candidate, Andre M. Davis. The full Senate has not yet taken up Davis' nomination.

Denny Chin, a federal District Court judge in Manhattan, is expected to be nominated to the U.S. Court of Appeals for the 2nd Circuit, The New York Times reported Thursday.

Chin would be the only Asian American judge on any Circuit Court, which has been the case since A. Wallace "Wally" Tashima, a judge on the Ninth Circuit, took senior status in 2004. As we noted in February, Asian American legal groups have been pressing the Obama administration to change that.

Obama has nominated three Asian Americans to seats on California District Courts: Edward Milton Chen, Dolly Gee and Jacqueline Nguyen.

In an uncharacteristic display of goodwill, two judicial nominees advanced out of the Senate Judiciary Committee Thursday on the first day on which they appeared on the agenda.

The committee approved the nominations of Beverly B. Martin of Georgia to the U.S. Court of Appeals for the 11th Circuit and Jeffrey L. Viken to be a district judge for the District of South Dakota. Viken is the first of President Obama's District Court nominees to advance out of the Judiciary Committee. As Jeff Sessions of Alabama, the panel's ranking Republican, noted, nominations are almost always held over for a week rather than being approved on the first try.

Martin, a district Judge in Georgia nominated by President Clinton in 2000, was previously an assistant U.S. attorney and the U.S. attorney for the Middle District of Georgia. Viken is currently the federal public defender for North Dakota and South Dakota.

In her first oral argument session since joining the Supreme Court, Justice Sonia Sotomayor signaled today that she does not agree that corporations should be allowed a freer hand to spend money to influence elections.

The case, Citizens United v. Federal Election Commission, started as a non-profit corporation's challenge to restrictions in the 2002 McCain-Feingold campaign law to "electioneering conmunications" paid for out of corporate or union general treasury funds within 30 days before a primary or 60 days before a general election. Before Sotomayor joined the court, it broadened the case to consider whether to overturn two major campaign finance precedents.

Sotomayor sat quietly through almost a third of the session, before asking former Solicitor General Theodore B. Olson whether the plaintiff's side was "giving up on your earlier arguments" that the court could rule for the plaintiff without overturning the precedents.

Sotomayor said that a "difficulty" she had was that "we don't have any record developed below" on the question of voiding the precedents.

Senate Judiciary Chairman Patrick J. Leahy dropped a bill today that would create dozens of new appellate and district court judgeships.

"After years of debate and federal courts struggling to adjudicate cases despite the overwhelming burden of heavy caseloads, the time to enact a comprehensive federal judgeship bill is long overdue," Leahy said.

The legislation would establish four new judgeships on the 9th Circuit; two on the 2nd Circuit; and one judgeship each in the 1st, 3rd and 6th Circuit courts. It would create one temporary slot on the 3rd, 8th and 9th Circuit benches. The bill also would establish 38 permanent new district court seats across the country.

CQ's White House reporter, Adriel Bettelheim, who did pool duty today for the press corps covering President Obama, filed this report on Justice Sonia Sotomayor's investiture ceremony at the Supreme Court:

In the courtroom, Obama and Vice President Joseph R. Biden Jr. sat next to each other in two black chairs in the first row, to the right of center as one faces the bench. These chairs are normally used by court officers and retired justices during oral arguments. Recently retired Associate Justice David H. Souter could be seen in the same row.

Your pool reporter's view during the eight-minute ceremony was almost entirely obscured by maroon and gold curtains and large security personnel. Relying on glimpses and an account by the court's public information office, Sotomayor was escorted by the clerk of the court to the well of the courtroom, where she sat in the chair occupied by Chief Justice John Marshall during the early 19th century. Attorney General Eric H. Holder Jr. and Solicitor General Elena Kagan were seated at counsel's tables in front of the bench. The AG moved to have Sotomayor's commission read by the clerk.

After spending June and July on Sonia Sotomayor's successful nomination to the Supreme Court, the Senate Judiciary Committee will resume processing lower court nominations in earnest this week.

On Wednesday, the committee plans to hold a confirmation hearing for 3rd Circuit nominee Joseph A. Greenaway Jr., of New Jersey; and district court nominees Roberto A. Lange of South Dakota, Irene Cornelia Berger of West Virginia and Charlene Edwards Honeywell of Florida.

The next day, the committee is scheduled to vote on the nominations of Beverly Baldwin Martin of Georgia for the 11th Circuit, and Jeffrey L. Viken to be a South Dakota district judge. The committee held a confirmation hearing for Martin and Viken on July 29, the day after it voted to approve Sotomayor's nomination. Georgia Republicans Saxby Chambliss and Johnny Isakson both testified in favor of Martin's nomination.

Nevertheless, committee Republicans are expected to postpone consideration of the Martin and Viken nominations for a week, as provided for under committee rules.

The Supreme Court will conduct a formal investiture ceremony for Justice Sonia Sotomayor this afternoon in its courtroom.

President Obama and Vice President Joseph R. Biden Jr. are scheduled to attend. Sotomayor and Chief Justice John G. Roberts Jr. will walk down the front steps of the Supreme Court building at about 2:15 p.m., and pose briefly for photographs, along with members of Sotomayor's family.

The newest justice has already been on the job for a month, since getting sworn in on Aug. 8 in a private ceremony at the court. She will be on the bench for Wednesday's oral argument in a high-stakes campaign finance case.

The Supreme Court announced Friday that it would rush the release of an audio recording of its unusual Sept. 9 session, in which the court will hear a second round of argument in a high-stakes campaign finance case.

As it has gotten in the habit of doing in major cases, the court will release the recording soon after the session concludes. The case is Citizens United v. Federal Election Commission.

The justices -- including the court's newest member, Sonia Sotomayor -- are trying to decide whether to overturn of two of its campaign finance precedents, which would loosen restrictions on corporate political spending.

Justice John Paul Stevens has only hired one clerk for the Supreme Court term starting in October 2010, generating new speculation that he might be planning to retire next year.

The Associated Press reported Wednesday that the 89-year-old justice has hired one clerk for the October 2010 term rather than the full contingent of four.

Since justices give few public indications of their future plans, clerk hiring, which is done well in advance, is one of the only tea leaves to read. Retired justices are only entitled to one clerk.

The CIA told a federal court on Monday that it would not turn over a slew of documents related to the George W. Bush administration's controversial detainee interrogation program.

Last week, the Justice Department released a redacted CIA report from 2004, and hundreds of pages of other records, that had been sought by the American Civil Liberties Union in Freedom of Information Act (FOIA) litigation. That material fueled calls by Democrats and liberal activists for a full investigation of the interrogation program. 

But the administration on Monday told New York district judge Alvin K. Hellerstein that it would not hand over other records related to the interrogation program, which critics say amounted to torture.

Since leaving the Supreme Court in 2006, Justice Sandra Day O'Connor has devoted herself to increasing public understanding of the judiciary in general and the Supreme Court in particular.

To that end, she has launched a Web site that includes two interactive games. In one of them, "Supreme Decision," the player is a clerk to the fictional Justice Irene Waters, helping her decide her position on a First Amendment case.

The animated game includes a mock oral argument before a Supreme Court that appears to be composed of five women and four men.

That's nearly twice as many female justices as there have been in the court's entire history. O'Connor was the first, in 1981. Ruth Bader Ginsburg joined the court in 1993. Justice Sonia Sotomayor just recently become the third.

Senate Minority Leader Mitch McConnell has filed a friend-of-the-court brief urging the Supreme Court to overturn two of its decisions on campaign finance law.

The Kentucky Republican filed his brief in a pending -- and closely watched -- case, Citizens United v. Federal Election Commission.

The case originated as a challenge to federal restrictions on the video-on-demand distribution, during the 2008 presidential primary season, of a 90-minute documentary that was very critical of Hillary Rodham Clinton. The court on June 29 took the unusal step of ordering a rehearing of the case in September, specifically on two questions.

The parents of a 13-year-old boy accidentally shot and killed by a friend have asked the Supreme Court to review the constitutionality of a 2005 gun liability law.

Congress passed the law in 2005 to limit the legal liability of firearms makers and dealers. The Illinois Supreme Court ruled that the law barred the boy's parents from suing the gun manufacturer, Beretta U.S.A. Corp., for not equipping the gun not to fire when its magazine was removed.

The petitioners, represented by the Center for Constitutional Litigation and the Brady Center to Prevent Gun Violence, are arguing that the Illinois court construed the federal law too narrowly, as well as the Tenth Amendment's reservation of powers to the states or the people.

Rep. Adam B. Schiff is getting plenty of use lately out of the skills he picked up during six years as a federal prosecutor.

The California Democrat led the House Judiciary Committee's questioning of two top Bush administration officials regarding the firing of nine U.S. attorneys. On Tuesday, the Judiciary Committee released the transcripts of those interviews conducted earlier this summer with Karl Rove, the former White House political director, and Harriet Miers, former White House Counsel.

Schiff is also leading the House Judiciary task force charged with investigating federal judges facing possible impeachment. In that role, Schiff read aloud four articles of impeachment against former U.S. District Judge Samuel B. Kent on the Senate floor during a live quorum call in June.

Florida Republican Sen. Mel Martinez did not mention Republican criticism of confirmed Supreme Court nominee Sonia Sotomayor during a brief press conference in Orlando.

"There's no impending reason, it's only my desire to move on and to get on with the rest of my life," Martinez said, referring to his surprise announcement Friday that he will resign his Senate seat probably before the end of August.

Florida Republican Sen. Mel Martinez surprised the Senate Friday, announcing he is going to resign his seat in the coming weeks.

Martinez had announced last December he would not run for re-election in next year's midterm elections, but he was expected to serve out the rest of his term. He is expected to step down before the end of August.

His decision comes on the heels of weeks of criticisms by many Senate Republicans at Sonia Sotomayor, the first Hispanic Supreme Court nominee. In a floor speech on Wednesday, Martinez -- one of just nine Republicans to vote for Sotomayor -- lashed out at the GOP attacks, particularly an accusation that had been leveled by Alabama Republican Jeff Sessions.

President Obama has announced a fresh batch of judicial nominations to the Senate, just one day after the Senate confirmed Sonia Sotomayor to the Supreme Court.

The White House announced that Obama has tapped Jane Stranch, a Nashville lawyer, for a seat on the 6th Circuit. And a Pennsylvania federal judge, Thomas Vanaskie, is Obama's choice for a 3rd Circuit seat.

Obama also has selected federal magistrate judges Edward Milton Chen and Richard Seeborg for seats on the Northern California district court, and Los Angeles lawyer Dolly Gee for a Central California district court seat.

Sen, James Inhofe, R-Okla., used the word "racist" to describe Sonia Sotomayor's speeches in which she suggested a wise woman or wise Latina might make a better decision than a white male judge.

"To me, I consider that racist," Inhofe said tonight during Senate floor debate on Sotomayor's nomination.

Senate Republicans have shied away from that term when critiquing Sotomayor's speeches. She testified at her Senate Judiciary confirmation hearing last month that she believed she had chosen her words poorly during a series of speeches intended to inspire student audiences.

The GOP's 2008 presidential nominee, John McCain, announced Monday that he will vote against Sonia Sotomayor's nomination to the Supreme Court.

McCain, who wanted to be the one doing the nominating, said he could not support "activist judges" in outlining his opposition in a Senate floor speech.

"I cannot support activist judges that seek to legislate from the bench," McCain said. "I have not supported such nominees in the past, and I cannot support such a nominee to the highest court in the land."

Democratic Senators say their decision about whether to support Sonia Sotomayor's nomination to the Supreme Court is not being swayed by the National Rifle Association's decision to use the vote to evaluate lawmakers.

"I think the fact the NRA is scoring that vote is dumb," said Claire McCaskill, D-Mo., who predicted it will have no effect on how Democrats' vote.

"I'll be surprised if she doesn't get everybody's support," McCaskill said.

Lamar Alexander of Tennessee on Thursday became the sixth Senate Republican -- and only member of the GOP leadership -- to announce support for Sonia Sotomayor's nomination to the Supreme Court.

Alexander is chairman of the Republican Conference, the No. 3 leadership position for the party in the Senate.

He is the third Southern Republican to support Sotomayor, joining Lindsey Graham of South Carolina and Mel Martinez of Florida.

After setting aside the impeachment of Samuel B. Kent, Congress can now move onto to the investigation of another federal judge.

The House Judiciary Committee voted 30-0 on Wednesday to grant immunity to eight witnesses in the impeachment inquiry of Judge G. Thomas Porteous, alleged to have lied on bankruptcy financial disclosure forms.

Committee members said the immunity orders for eight witnesses were necessary since some of them had invoked their Fifth Amendment right against self-incrimination.

As expected, the Senate Judiciary Committee voted, 13-6, today to send the Supreme Court nomination of Sonia Sotomayor to the full Senate with a favorable recommendation.

South Carolina Republican Lindsey Graham joined all 12 Democrats on the panel to support Sotomayor's nomination. The full Senate is expected to take up the nomination the week of Aug. 3, and confirm Sotomayor before its August recess.

Oklahoma Republican Sen. Tom Coburn has announced he will oppose Supreme Court nominee Sonia Sotomayor, making it likely that the Judiciary Committee will approve the nomination on a 13-6 vote.

Coburn was the last of seven Judiciary Committee Republicans to declare his position. The panel, which has 12 Democrats, is scheduled to vote on the nomination Tuesday morning. Only one panel Republican, Lindsey Graham of South Carolina, plans to vote in favor of the nomination. All of the Democrats are expected to vote for it as well.

According to The Oklahoman newspaper Coburn opposes Sotomayor because of her views on gun rights and foreign law. Excerpts from her past speeches also demonstrate that Sotomayor will be unable to exercise impartiality, Coburn contends.

Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, has announced he will vote against the nomination of Sonia Sotomayor to the Supreme Court, in an op-ed in USA Today.

"I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism," Sessions wrote.

The Judiciary committee is scheduled to vote on the nomination on Tuesday. The panel, composed of 12 Democrats and seven Republicans, is expected to approve the nomination. The Senate is expected to confirm Sotomayor during the week of Aug. 3.

So far, Lindsey Graham of South Carolina is the only committee Republican to announce a yes vote on the nomination. Charles E. Grassley of Iowa and Tom Couburn of Oklahoma are the only Republicans on the panel who have not announced a position.