January 21, 2010

President renominates previously blocked judicial candidates

From a White House news release dated Jan. 20 announcing presidential nominations:

• Louis B. Butler, Jr., of Wisconsin, to be United Stated District Judge for the Western District of Wisconsin, vice John C. Shabaz, retired.
• Edward Milton Chen, of California, to be United States District Judge for the Northern District of California, vice Martin J. Jenkins, resigned.

These two controversial judicial nominees were voted out by the Senate Judiciary Committee, but Republicans prevented their nominations from being held over after the first session of Congress adjourned on Dec. 24.

Both must go through the committee process again, but new confirmation hearings are unlikely.

We've followed Butler because of his history as a Wisconsin Supreme Court Justice ruling against medical liability caps and his defense of "collective liability" for manufacturers of lead paint. (Previous post.) Wisconsin Senators Herb Kohl and Russ Feingold vigorously back his nomination; both serve on Judiciary. (See Nov. 4 hearing.)

UPDATE (12:58 p.m.): Butler was appointed to the Wisconsin Supreme Court by Gov. Jim Doyle, a Democrat. In 2008, he was defeated for election to a full, 10-year term by Michael Gableman, a Burnett County Circuit Court judge and former prosecutor. Gableman's victory, aided by business support, has made him a bete noire to the state's activist left. The latest development is lawyers seeking to force Gableman to recuse himself from criminal appeals. See Milwaukee Journal-Sentinel, "Gableman isn't biased against criminal defendants, he says."

January 15, 2010

On the Scruggs scandals, "Kings of Tort"

In the mail: the new book by Alan Lange (YallPolitics) and prosecutor Tom Dawson telling "The true story of Dickie Scruggs, Paul Minor, and two decades of political and legal manipulation in Mississippi" (earlier).

January 11, 2010

Around the web, January 11

• Congressional Budget Office revises med-mal reform savings upward [National Underwriter, David Freddoso/D.C. Examiner, Andrew Biggs/The American]
• Medical device decision displays Judge Posner in typically Posnerian vein [Beck]
• Does ABA accreditation result in too free an entry of new law graduates into the marketplace? [Mark Greenbaum, L.A. Times] Reactions: Ilya Somin/Volokh, Above the Law, Legal Blog Watch;
• Supreme Court to decide campaign finance case: Is It Corrupt To Be Grateful? [Jonathan Rauch, National Journal] Why Gov. Paterson's "clean up Albany" bill probably won't clean up much [Bradley Smith, City Journal]
• St. Louis mass workplace shooter was class action plaintiff [Courthouse News, ABA Journal]
• Criticizing lawyers' fees raises familiar hackles in Pennsylvania [Paul Carpenter, Allentown Morning Call]
• Recusals: "What the Cap Times Did Not Tell Us About the Wisconsin Supreme Court" [Rick Esenberg, Marquette Law Faculty Blog]
• "Civil Rights Division Lawyers Slapped with Sanctions" [Hans von Spakovsky/NRO]

December 30, 2009

On the blocked judicial, Department of Justice nominations

The media report on the Senate sending back nominations to the White House on Christmas Eve, including two controversial nominees to the U.S. District Court bench, Louis Butler of Wisconsin and Edward Chen of California. (Highlighted first, blogwise, at Point of Law here.)

• Milwaukee Journal-Sentinel, "Butler's judicial nomination sent back to Obama"
• Wisconsin State Journal, "Kohl to keep pushing Butler as U.S. judge after nomination turned back"
• San Francisco Chronicle, "Senate GOP opposes S.F. judicial nominee"

The absence of a White House defense of the nominees in these stories is interesting. One would have expected at least a perfunctory restatement of their candidates' qualifications, but either inexperience or holiday vacation meant no one was available to say, "These are great nominees and the Senate should confirm them." The silence invited such posts as from lefty blogs like FireDogLake, "Will Obama Fold (yet again) on Judicial Appointments due to GOP Opposition?"

UPDATE: And The Indianpolis Star on the returned nomination of Dawn Johnsen to head Justice's Department of Legal Counsel, "IU law professor's federal nomination is on hold."

December 27, 2009

Senate sends Justice, judicial nominees back to White House

In a flurry of mostly overlooked action, the Senate on December 24 confirmed a slew of President Obama's nominees on a single "en bloc" vote. Included in the list (starting here in The Congressional Record's Daily Digest) was David Strickland, the former trial lawyer lobbyist named administrator of the National Highway Traffic Safety Administration. (See this Dec. 9 post on the nomination of Strickland, who has a Senate Commerce staffer bears great responsibility for the excesses of the Consumer Product Safety Improvement Act.)

Notable was the Senate's decision to return six nominees to the White House, a sign of major political opposition to their confirmation. The Washington Post's Federal Eye blog reported the high-profile nominees to the Justice Department the Senate decided against approving: "Dawn E. Johnsen, nominated to oversee the Office of Legal Counsel; Mary L. Smith, tapped to head the Tax Division; and Christopher H. Schroeder, nominated as assistant attorney general for legal policy."

The most controversial rejected nominee -- at least in civil justice reform circles -- was Louis Butler, put forward by President Obama to be U.S. District Court Judge for the Western District of Wisconsin. As a justice on the Supreme Court of Wisconsin, Butler offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and "collective liability" for lead paint manufacturers. Appointed by Democratic Gov. Jim Doyle to the court, Butler lost a 2008 election seeking to win a full term on the court. Conservative activist groups organized against his confirmation, and The Wall Street Journal prominently editorialized against him.

The Senate Judiciary Committee voted 12-7 to confirm Butler in early December over strenous objection by Republican committee members, Sen. Jeff Sessions of Alabama and John Cornyn of Texas. (See Point of Law post.)

Also returned to the White House was the nomination of Edward Chen, a federal magistrate in San Francisco, to serve as U.S. District Court Judge for the Northern District of California. A formal opposition did not get organized, but some conservatives have criticized him for reactive hostility to U.S. society. (See Washington Times, "Another judicial radical; Sean Hannity, "Another Radical Surfaces in White House.") The Senate Judiciary Committee reported out his nomination 12-7 in October.

President Obama could withdraw the nominations or return them to the Senate. Butler was certainly vigorously supported by his two home-state Senators who serve on the Judiciary Committee, Sens. Feingold and Kohl. The President could also make recess appointments, but that rarely makes sense for judicial nominees with otherwise lifetime appointments; they could only serve until the end of the current Congress. (See CRS report, "Recess Appointments: Frequently Asked Questions.")

UPDATE The Senate action occurred under Rule XXXI, paragraph 6, of the Standing Rules of the Senate. We've put the language in the extended entry:

Continue reading   Senate sends Justice, judicial nominees back to White House

December 18, 2009

"Kings of Tort" reviewed

Sid Salter of the Jackson Clarion-Ledger reviews the new book by Alan Lange and Tom Dawson on the Scruggs and Minor scandals in Mississippi: "a cautionary tale about greed, hubris and how money greases the wheels of state politics."

November 23, 2009

USDC: Corrupt PA Judges Have Civil Immunity

A federal district court judge has just ruled that two disgraced Pennsylvania state court judges, Michael T. Conahan and Mark A. Ciavarella Jr., are protected by immunity from facing legal action for courtroom acts that consisted of over 6000 corrupt decisions, including shipping children to "reform schools" that had paid off the judges. [There is still potential civil liability for administrative acts accomplished outside the courtroom.] The decision is considered interlocutory from the plaintiffs' perspective, so it is not clear that any appeal lies for them immediately.

The Supreme Court has held that the sacrosanct Double Jeopardy rule (that a defendant may not be charged a second time for a crime for which he has been acquitted) does not apply when the acquittal was obtained through corruption (jury tampering, etc.), since in effect the defendant was never in jeopardy of being convicted. There had been hopes that, analogously, it might be decided that judicial immunity could not apply when there was no judicial discretion (that is, when the judge's decision had been purchased in advance, leaving no room for reasoned application of the law to the facts).

U.S. District Judge A. Richard Caputo rejected that argument, citing the U.S. Supreme Court's 1988 decision in Forrester v. White. In that case, the U.S. Supreme Court wrote that a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive." Caputo added the U.S. Supreme Court's 1978 decision in Stump v. Sparkman held that the question concerning judicial immunity is not related to the intent of a judge or the extent of the judge's error.

Forrester involved an administrative act by a judge (firing someone because of her sex), so anything written about immunity for judicial acts was arguably obiter dictum. In Stump, the egregious action by the judge was committed without corruption. [He had granted a mother's petition to have a tubal ligation performed on her 15-year-old daughter, whom the mother alleged was "somewhat retarded," the same day that the petition was filed, and without a hearing to receive evidence or appoint a lawyer to protect the daughter's interests. The daughter underwent the surgery a week later, having been told that she was to have her appendix removed.] Justice White, speaking for the court, wrote, "A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors." White's decision did not explicitly hold that corrupt, purchased rulings were "judicial acts." I, along with other professors of Legal Ethics, anxiously await an ultimate appeal on these grounds to the Third Circuit.

November 20, 2009

Around the web, November 20

• Moving beyond judicial elections? Chamber's Institute for Legal Reform has a new report out (PDF) on the subject of "Best Practices in Judicial Merit Selection" More: Gavel Grab. Earlier: here, here, etc.
• Latest from the Jury Verdict Research people: employers winning less, paying more [Toth, Manpower Blawg]
• Critique of new Cass Sunstein book on constitutional interpretation [Steven Menashi, Policy Review]
• Judge refuses to dismiss medical monitoring claim in West Virginia DuPont Teflon pollution suit [Jackson]
• Alien Tort Statute discussed by Kenneth Anderson at Volokh [first, second, third, fourth posts]
• Liability is said to add $7.96/visit at one D.C. gastroenterologist's office, and one lawyer-blogger thinks patients oughta be grateful to get off so cheap [Day]

November 17, 2009

Obama judicial nominations and the NYT

Paul Horwitz at Prawfsblawg has some observations about liberal complaints that Obama judicial nominations are proceeding at a slow pace. He notes that a piece in Sunday's New York Times on the subject "reads very much like many such articles -- as serving primarily as a device for one faction in the Democratic Party to send a message to another faction, and an attempt to define the agenda to their advantage." Related: Adler/Volokh, WSJ Law Blog.

November 13, 2009

A Lot Happens in 15 Years

Take the case of former prosecutor and judge Bobby DeLaughter. Fifteen years ago, he successfully prosecuted Byron de la Beckwith in what is arguably one of the most important criminal cases in Mississippi history. Today, he was sentenced to 18 months for lying to the FBI in one the seemingly endless corruption investigations involving Dickie Scruggs. (see prior coverage here and here).