The Justice Department filed a motion in the 2nd Circuit Court of Appeals today asking the court to recall its mandate that the administration hand over dozens of photographs of detainees held in Iraq and Afghanistan.

The ACLU sought the pictures, which allegedly depict detainee abuse, in a Freedom of Information Act lawsuit. The administration initially agreed to comply with a 2nd Circuit order to turn over the photographs. But earlier this month, President Obama decided not to do so. On May 21, the Senate adopted an amendment to a fiscal 2009 supplemental spending measure that would exempt the photos from the FOIA law.

The government told the 2nd Circuit -- whose members include Supreme Court nominee Sonia Sotomayor -- that Solicitor General Elena Kagan has decided if that legislation is not enacted by June 9, the government will petition the Supreme Court to decide the case

Turns out that President Obama wasn't done touting his Supreme Court pick after his White House announcement today.

The Democratic National Committee posted a video of Obama discussing his choice of 2nd Circuit judge Sonia Sotomayor. Obama made several of the same points about Sotomayor's background and credentials that he did in his East Room speech this morning. An email from Obama touting the video went out to supporters tonight.

"We America, need her on the Supreme Court," Obama said.

Most liberal groups issued very favorable reactions today to President Obama's choice of Sonia Sotomayor for the Supreme Court.

But the Center for Reproductive Rights says the Senate Judiciary Committee needs to press Sotomayor about her views on abortion. Sotomayor, a 2nd Circuit appeals court judge and a former federal district court judge, has not ruled on the constitutionality of abortion rights.

"Please take the next step with us and send a letter to Senate Judiciary Committee chairman Patrick J. Leahy to demand full disclosure from Judge Sotomayor on her commitment to the principles of Roe v. Wade," the group said in an e-mail this evening.

Newly minted Democrat Arlen Specter of Pennsylvania issued a statement Tuesday praising President Obama's choice of Sonia Sotomayor for the Supreme Court.

Specter, who now is wooing Pennsylvania Democrats in his bid for a sixth term, was more complimentary of Sotomayor than he probably would have been in his previous role as the top Republican on the Senate Judiciary Committee.

"I applaud the nomination of Judge Sotomayor to the Supreme Court. Her confirmation would add needed diversity in two ways: the first Hispanic and the third woman to serve on the high court," Specter said. "While her record suggests excellent educational and professional qualifications, now it is up to the Senate to discharge its constitutional duty for a full and fair confirmation process."

Alabama Republican Jeff Sessions, the ranking member of the Senate Judiciary Committee, today announced that he has hired Elisebeth Cook to be his "Chief Counsel for Supreme Court Nominations."

Cook is a former Assistant Attorney General at the Justice Department's Office of Legal Policy in the George W. Bush administration, where her duties included shepherding judicial nominations. She was Deputy Assistant Attorney General in the OLP from 2005 to 2008, a period that included the John G. Roberts Jr. and Samuel A. Alito Jr. nominations to the high court.

"I will benefit greatly from her insight and legal skills, and I look forward to working with Elisebeth as we conduct a substantive examination of the nominee's record," Sessions said.

White House press secretary Robert Gibbs today refused to rule out the possibility that President Obama will name his pick for the Supreme Court next week.

After a reporter asked Gibbs whether he would rule out next week, Gibbs said he was "not going to get into scheduling announcements." But earlier this month, Gibbs had told reporters, more than once, that Obama would not announce the nominee during a particular week.

Gibbs said Obama is spending the Memorial Day weekend with his family at Camp David, and "I don't doubt that he'll take some reading along with him and work on his selection."

The Justice Department announced early today that Ahmed Khalfan Ghailani, a Tanzanian held at the Guantanamo Bay prison since 2006, would be tried in a New York federal court. Ghailiani faces charges related to the 1998 bombings of the U.S. embassies in Tanzania and Kenya, and other alleged crimes.

"By prosecuting Ahmed Ghailani in federal court, we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya," said Attorney General Eric H. Holder Jr. "This administration is committed to keeping the American people safe and upholding the rule of law, and by closing Guantanamo and bringing terrorists housed there to justice we will make our nation stronger and safer."

The administration leaked its decision to the press yesterday. The department's formal announcement came just hours before President Obama was scheduled to deliver a speech on Guantanamo Bay detainees, in a bid to reframe what has become a thorny political issue.

Retired Supreme Court Justice Sandra Day O'Connor today decried the current system of state judicial elections as too politicized.

Speaking at a Georgetown Law School conference on judicial independence that she helped organize, O'Connor said that the elections, which have turned into well-funded partisan battles in recent years, can produce "some unfortunate results."

"You want people to have trust and respect for the courts and they don't get it with that kind of system," O'Connor said.

The Supreme Court on Monday announced it would not hear a challenge by former Louisiana Democratic Rep. William J. Jefferson to his indictment on public corruption charges.

Jefferson is scheduled to stand trial on June 2 on 16 counts of wire fraud, money laundering, soliciting bribes and other charges. He had challenged the bribery-related counts, on the grounds that the grand jury heard evidence that was covered by the constitutional "Speech and Debate" clause that immunizes lawmakers from criminal or civil actions launched because of their legislative duties.

Jefferson's argument previously had been rejected by a federal district court and the U.S. Court of Appeals for the 4th Circuit. The Supreme Court denied Jefferson's petition that it review the case without comment.

The conservative Judicial Confirmation Network has told The New York Times that it has lined up millions of dollars in pledges to pay for television, radio and Internet ads against President Obama's first Supreme Court pick.

But judging by a Web site the JCN has launched against three rumored contenders for the vacancy, it is doing a good job of husbanding its resources.

The barebones site features short YouTube videos attacking Solicitor General Elena Kagan, 2nd Circuit judge Sonia Sotomayor and 7th Circuit judge Diane Wood. Visitors are asked to vote for the "worst liberal judicial activist" in the trio -- and to donate to the Judicial Confirmation Network.

We don't know whether she's on President Obama's short list, but nearly one in four Democrats thinks television personality Oprah Winfrey would make a good Supreme Court justice.

So says Fox News, which surveyed 900 registered voters on May 12-13 on a variety of subjects, including the Supreme Court vacancy. Overall, 16 percent of respondents thought Winfrey would do well on the high court -- and 23 percent of Democrats and 10 percent of Republicans.

Secretary of State Hillary Rodham Clinton did better among both groups, as did former Vice President Al Gore. But could either of those two get a book club going inside the reclusive court? Or shower the audiences at oral arguments with new cars?

The survey was silent on whether Obama should nominate Dr. Phil McGraw, whose expertise in clinical psychology could come in handy in rounding up five-justice majorities in close cases.

Alabama Republican Sen. Jeff Sessions today unveiled his new senior team of aides for the Senate Judiciary Committee, as the panel prepares for President Obama to announce his first Supreme Court pick.

Sessions, who became the top Republican on the panel this month after Arlen Specter defected to the Democratic party, has installed his own roster of Republican aides for the panel.

Sessions announced that Brian Benczkowski, formerly chief of staff to Attorney General Michael B. Mukasey, will be GOP committee staff director. Matt Miner, who already served as a committee aide to Sessions, has been named as the deputy staff director. Joe Matal, currently a committee aide to Arizona Republican Jon Kyl, will be the Republicans' general counsel. William Smith, who was a committee aide to Sessions from 2001 to 2006, will return to serve as the GOP chief counsel.

President Obama has decided to reverse course on releasing dozens of photographs of detainees held in Iraq and Afghanistan.

Obama's decision, which runs counter to his pledges of openness and transparency, was applauded by Republicans and decried by liberal activists. The move is the latest in a series of steps Obama has taken to shield his predecessor's counterterrorism policies from public scrutiny.

A pair of senators is planning to offer an amendment to the fiscal 2009 supplemental spending measure to bar the release of the photographs.

Ninth Circuit Judge Jay S. Bybee has declined an invitation from Senate Judiciary Chairman Patrick J. Leahy to testify about his role in writing controversial Justice Department memoranda providing legal rationales for harsh detainee interrogation techinques.

Liberal activists have called on the House of Representatives to impeach Bybee, who previously served as Assistant Attorney General for the Justice Department's Office of Legal Counsel, for the part he played in buttressing the use of techniques that critics say amounted to torture.

"Two weeks ago, I invited Judge Jay Bybee to testify before the Senate Judiciary Committee. I did so after reading accounts in The Washington Post suggesting he has expressed regrets regarding his work at the OLC, and then, in comments he sent a couple days later to The New York Times, he turned around and defended the same legal opinions, incidentally legal opinions that have now been withdrawn," Leahy said. "I invited him to come forward and tell the truth and the complete truth before the committee. Which -- which Jay Bybee do we rely upon -- the one that is in the press Monday or the one who's in the press the next day?"

 

The best way for President Obama to engineer a Senate confirmation vote on his pick for the Supreme Court before the August recess would be to reveal his choice sooner rather than later.

The average length of time between the nomination announcement and Senate floor vote for Supreme Court nominees since Sandra Day O'Connor's 1981 candidacy is 83 days. (That statistic doesn't include the spectacularly brief and ill-fated 2005 candidacy of Bush White House counsel Harriet Miers to replace O'Connor.)

There are 90 days remaining until the scheduled start of the Senate's August recess, but the White House has said Obama won't reveal his choice this week. As of next Monday, there will be 84 days left until the August recess.

Our CQ colleague Kathleen Hunter reports that California Democratic Sen. Dianne Feinstein has suggested two names to the White House to fill the Supreme Court vacancy: California Supreme Court Justice Carlos R. Moreno and 9th Circuit Judge Kim M. Wardlaw.

Feinstein, who sits on the Senate Judiciary Committee, told reporters that she called the White House this morning to discuss the issue and said she wanted President Obama to consider Moreno and Wardlaw.

Wardlaw is "an excellent judge," Feinstein said adding, "I've done some vetting myself, and she stands tall."

Georgia Republicans Saxby Chambliss and Johnny Isakson both have nothing but nice things to say about Georgia Supreme Court Chief Justice Leah Ward Sears. But when it comes to Sears as a U.S. Supreme Court nominee to replace Justice David H. Souter -- as has been rumored to be a possibility -- both men are reserving judgment.

Chambliss said Sears is a friend of his and has been "very effective" on the state supreme court. Isakson said "I know her personally and she is a fine lady."

But that good will won't automatically translate into crucial GOP support for Sears, should President Obama decide to tap her for the high court. Chambliss and Isakson both said they would need to review Sears' long judicial record before deciding whether to back her for the high court.

Sears is also friends with another Georgian, Justice Clarence Thomas, who also has praised Sears in the past. If Obama were to nominate Sears, expect Thomas to lend only behind-the-scenes support, if any, though.

President Obama recently voiced support for narrowing the state secrets privilege, a legal defense that his predecessor often invoked to shield controversial counterterrorism policies against lawsuits.

Obama has invoked the privilege three times in such lawsuits in order to keep details about President George W. Bush's surveillance and detention policies secret. Legislation is pending in both the House and Senate to limit the president's use of the privilege. But Attorney General Eric H. Holder Jr. sounded far from enthusiastic about the legislation when asked about it by Senate bill sponsor Patrick J. Leahy, D-Vt., at a Senate appropriations subcommittee hearing on Thursday.

"Well, the concern we -- I think our administration shares your -- your concern about the use of that doctrine. In fact, I've asked that a review be conducted of all the cases in which the state secrets doctrine has been invoked. We have about 20 cases or so where it has been -- has been used. The report is just about complete. It is my hope to share that report, make it publicly available," Holder said, adding "With regard to the -- the piece of legislation that you indicated, I want to look at that in light of the report that I get from the task force that we created and see if there are ways in which we can work together to deal with the issue that we -- I -- I -- we do share that -- that concern that you have."

Two leading conservative legal activists participated in a luncheon with several Senate Republicans in a room near the Senate floor this afternoon.

Leonard Leo, executive vice president of the Federalist Society for Law & Public Policy Studies, and M. Edward Whelan III, the president of the Ethics and Public Policy Center, spent a while with GOP lawmakers behind closed doors. Leo and Whelan would not talk about what they discussed. But several GOP senators said the pair was briefing them on Yale Law School dean Harold Hongju Koh, whom Obama has nominated to be the top lawyer at the State Department.

It's hard to believe that the Supreme Court vacancy didn't come up, but it apparently wasn't the main topic of the discussion.

National Public Radio roiled Washington on the night of April 30 by reporting that Justice David H. Souter intended to retire from the Supreme Court. But that wasn't news to Senate Judiciary Chairman Patrick J. Leahy.

Leahy, D-Vt., said Souter informed him, over lunch at the Supreme Court in March, that he planned to retire. He added that Souter, a fellow New Englander, had talked about the subject of retirement several times in recent years.

President Obama called Leahy about the retirement on May 1, while Leahy was driving up to Vermont with his wife. Souter and Leahy also talked that day, and Leahy said Souter sent him "a beautiful hand-written note."

Leahy said he told Obama that he should consult with Republicans as well as Democrats on his choice to replace Souter.

It's a good bet that if Leahy knew in March, Souter told the White House at least that early, as well.

Alabama Republican Jeff Sessions made it clear Tuesday that his own experience before the Senate Judiciary Committee as a judicial nominee in 1986 will help shape how he handles his duties as the ranking GOP member of the committee in the upcoming Supreme Court confirmation hearing.

Ronald Reagan nominated Sessions, then a U.S. attorney, for a federal district judgeship. Critics charged that Sessions was not qualified to sit on the bench and that several remarks he had made showed a "gross insensitivity" about racial issues. The Judiciary Committee voted to kill his nomination.

Sessions said that during judicial confirmation hearings "charges come flying in from right and left that are unsupported and false." He added that "it's very difficult for a nominee to push back" but that it's a little easier for a Supreme Court nominee to do so.

White House press secretary Robert Gibbs told reporters today that President Obama has called at least a couple of senators to sound them out about the next Supreme Court nominee.

"I know he's made some calls today to -- I don't have readouts on these yet, but I will get them -- in discussing the upcoming pick with Senator Hatch and Senator Specter," Gibbs said.

In an interview Sunday on ABC's "This Week," Senate Judiciary Chairman Patrick J. Leahy said he spoke to Obama on May 1, the same day Obama announced Justice David H. Souter's retirement.

In an essay on judicial selection for the next edition of the Harvard Journal of Law & Public Policy, Utah Republican Orrin G. Hatch argues that judges should stick to interpreting the law, rather than making it.

Originally delivered as a speech in Boston last month, the essay serves as an early warning shot to President Obama that conservative Republicans do not put much stock in the notion that judges should be empathetic on the bench.

"I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires," wrote Hatch, a senior Republican on the Senate Judiciary Committee. "The debate should be about whether judges decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions."

Senate Judiciary Chairman Patrick J. Leahy declared on ABC's "This Week" that the Senate is not in the habit of filibustering Supreme Court nominees.

"It takes 51 votes to confirm" a nominee, Leahy said Sunday.

Leahy doesn't count the Democratic attempt to filibuster Samuel A. Alito Jr.'s nomination in 2006. Democrats, led by John Kerry of Massachusetts, forced a procedural vote to limit debate on the Alito nomination. The Senate voted 72-25 to limit debate, with 19 Democrats joining 53 Republicans to thwart the filibuster.

President Obama made a surprise appearance in the White House press briefing room on Friday to announce that Justice David H. Souter will retire from the Supreme Court.

"I am incredibly grateful for his dedicated service," Obama said. He wished Souter, 69, "safe travels on his journey home" to New Hampshire.

Minutes after Obama left the podium, the court released Souter's notification letter to Obama, dated today. Souter wrote that he will retire from the court when it starts its summer recess.

Obama said he hoped that the Senate will confirm a replacement for Souter before the court's next term begins in October.

"I will seek somebody with a sharp, independent mind and a record of excellence and integrity," Obama said. The president said he would consult Republican and Democratic lawmakers. .