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 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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.**