News

Senate to Consider Additional Judicial Nominees

Lawmakers negotiated Tuesday over a final batch of President Barack Obama’s judicial nominees with Democrats hoping to win Senate confirmation for up to a dozen of them, the Associated Press reports. The Senate has approved 76 federal court of appeals and district court judges so far this year. Confirmation of 12 more would bring the total to 88 – the highest annual figure in 20 years. Senate leaders are hoping to end this year’s session as soon as tonight. WRCB-TV has the AP story.

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Circuits Split on Definition of ‘Applicant’

In her Journal column this month, Kathryn Reed Edge makes a prediction: "As the financial crisis wanes and fewer banks are plagued by their borrowers’ credit problems, we in the business are seeing the federal banking agencies gear up for an energetic assault on consumer compliance violations." And adding to the confusion that many bank compliance officers have in interpreting the Equal Credit Opportunity Act, she writes that two judicial circuits, the 6th and the 8th, "have split on a seemingly simple issue of the definition of 'applicant' under the ECOA." She explains the important differences and advises readers of her column "Bank On It" to watch the U.S. Supreme Court for an answer.

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Confirmations Up, Judicial Openings Down

The number of empty federal judgeships is now at its lowest level since President Obama’s first year in office, the Brennan Center reports from The Bulletin. As of Nov. 28, there were 56 federal court vacancies, of which 19 were considered judicial emergencies. The Senate is poised to conclude its most productive two-year period of judicial confirmations since the Clinton administration when it confirmed 128 judges during 1993-1994. The current Senate has confirmed 122 since January 2013, with more confirmations likely upcoming.

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The Obama Brief

CNN legal analyst and New Yorker staff writer Jeffrey Toobin analyzes the judicial legacy President Barack Obama is leaving on the D.C circuit and federal courts around the country. Obama has had 280 judges confirmed, which represents about a third of the federal judiciary. Two of his choices, Sonia Sotomayor and Elena Kagan, were nominated to the Supreme Court; 53 were named to the circuit courts of appeals, 223 to the district courts, and two to the Court of International Trade. Obama’s judicial nominees look different from their predecessors, as well. Forty-two per cent of his judgeships have gone to women, compared to 22 per cent of George W. Bush’s judges and 29 per cent of Bill Clinton’s. Thirty-six per cent of President Obama’s judges have been minorities, compared with 18 cent for Bush and 24 percent for Clinton. Additionally, Obama has increased the number of openly gay judges to 10.

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Court: No New Cases Granted Cert

On Monday, the U.S. Supreme Court issued additional orders from its Nov. 25 conference but did not grant review to any new cases. It denied review to several appeals including an Arizona case testing whether an inmate was entitled to a federal court hearing on whether the judge who presided at his trial was biased against him; a case seeking to clarify whether police can make a brief stop and engage in limited questioning of a person seen leaving a home about to be searched; and one of two cases looking at whether a company accused of inducing a patent infringement claim can use as a defense a belief that the patent was not valid. SCOTUSblog has more on those decisions. Monday also was the first day of the court’s December sitting. The hearing list for the month is available here.

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Ginsburg Back on Bench for Monday Arguments

U.S. Supreme Court Justice Ruth Bader Ginsburg was back on the bench today, five days after she had a stent implanted to clear a blocked artery. The Associated Press reports that she questioned lawyers in “in her usual exacting fashion.” Ginsburg was hospitalized last Tuesday after experiencing discomfort during an exercise session. The 81-year-old Ginsburg is the oldest justice. She has been on the court since 1993 and has not missed a day, despite two earlier bouts with cancer in 1999 and 2009, and the death of her husband in 2010.

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Court Considers Online Threats

From the violent lyrics of rap music to the crude comments of teenagers in video-game chat rooms, the U.S. Supreme Court struggled today over where to draw the line between free speech and illegal threats in the digital age. The debate came in the case of a Pennsylvania man convicted of posting violent threats on Facebook about killing his estranged wife, shooting up a school and slitting the throat of an FBI agent. Defense lawyers said the man was merely "venting" and did not mean to threaten anyone, while the government argued the standard should be whether his words would make a reasonable person feel threatened not what he intended. The Citizen Tribune has the story from the Associated Press.

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DOJ Collects Nearly $25B in 2014

The Justice Department says it collected $24.7 billion in settlements and penalties in the fiscal year that ended Sept. 30, WRCB reports from the Associated Press. Attorney General Eric Holder said Wednesday that the amount includes both criminal penalties and civil settlements and is more than three times the $8 billion collected in the previous year, fiscal 2013. The total includes proceeds that were actually recovered in fiscal year 2014, even if the cases that yielded the money had been legally settled in prior years. It also includes civil debts collected on behalf of other federal agencies.

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Supreme Court Allows Kansas Same-Sex Marriage to Proceed

The U.S. Supreme Court has lifted a temporary stay and is allowing same-sex marriages to proceed in Kansas, the ABA Journal reports. The order vacates a stay issued Monday evening by Justice Sonia Sotomayor, who handles emergency appeals from the Denver-based 10th U.S. Circuit Court of Appeals. The Kansas Supreme Court had stayed same-sex marriage in the state pending proceedings before the court, but a federal judge later ordered the state to begin issuing marriage licenses, a decision that was “a de facto circumvention” of the state litigation, the state argued in its emergency stay application. Justices Antonin Scalia and Clarence Thomas would have granted the stay application, according to the order.

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Obama to Nominate New York Prosecutor for AG

President Barack Obama will nomninate Brooklyn prosecutor Loretta Lynch for attorney general tomorrow, White House spokesperson Josh Earnest said. Lynch, who would be the second woman to serve as attorney general and the second African-American to hold the position, is in her second stint as U.S. attorney in the Eastern District of New York. She was appointed by President Obama in 2010 and served in the same post from 1999 to 2001 under President Bill Clinton. CNN has the story

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Summary of Court Actions This Week

During the first week of the U.S. Supreme Court’s November sitting, justices granted one new case dealing with water rights between Florida and Georgia and heard arguments in four. Yesterday, the court waded into the international dispute of whether a U.S. citizen born in Jerusalem can list “Israel” as his place of birth on a passport and heard arguments in a securities law case. Today, the court heard arguments in a case testing whether whistleblowers are barred from making disclosures when prohibited by agency regulation, and a case questioning the timing of suits under the Truth in Lending Act. The court will hear two cases tomorrow – one testing the sweep of a law that seeks to protect criminal evidence from being destroyed and another looking at whether possession of a short-barreled shotgun should be treated as a violent felony. On Friday, the justices will consider additional petitions. SCOTUSblog has the ones to watch.

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2nd Law Firm Drops GOP’s Obama Suit

House Speaker John Boehner’s still-unfiled lawsuit against President Barack Obama is in more trouble, Politico reports. For the second time in two months, a major law firm has ceased work on the lawsuit, sources say. Attorney Bill Burck and the Quinn Emanuel firm halted preparations for the proposed suit in recent weeks, according to two sources familiar with the situation. Last month, the lawyer originally hired to pursue the case alleging that the President exceeded his constitutional power, David Rivkin of Baker Hostetler, made a similar exit. A spokesman for Boehner declined to discuss the relationship with Burck and Quinn Emanuel, but did say that GOP leaders are considering having the lawsuit filed by lawyers already on the House payroll.

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Former Solicitor General Shares Insights with UT Law Students

Former U.S. Solicitor General Paul Clement, who argued many notable cases in front of the Supreme Court, spoke Friday to law students at the University of Tennessee. Clement talked about the challenges faced during his legal career and admitted that regardless of experience he "absolutely" gets nervous every time he goes before the Supreme Court. But nerves, he said, keep him from becoming complacent and force him to continue preparing right up until the day he appears before the justices. Wayne Dillingham, a 1983 graduate of the College of Law and former lawyer for the FBI, who also was at the lecture, said he hopes students came away with a more human perspective of what it is like to practice law at the highest level. The UT Daily Beacon has more.

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Special Opportunity for Supreme Court Admission

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 31st Annual TBA Academy, Dec. 2-3, in Washington, D.C. A select group of Tennessee attorneys will be able to take part in a private ceremony before the court and enjoy other events in the nation's capital. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, located across from the White House. Interested candidates should complete the required forms by Oct. 27. For information and a step-by-step guide on how to sign up, visit the TBA website.

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Obama: AG Nomination Will Come After Election

President Barack Obama does not plan to announce his choice for attorney general before the November elections, the Associated Press reported today, possibly setting up a showdown for a lame duck session. The decision allegedly was made so that Senate Democrats could avoid taking potentially controversial positions on a specific nominee. Some Senate Republicans have called on the president to wait until the new Senate is seated in January before taking action. A White House official told the AP that the president has not yet decided who he wants to name to the post being vacated by Eric Holder. Those frequently mentioned include Solicitor General Don Verrilli, former White House counsel Kathy Ruemmler and Labor Secretary Tom Perez.

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U.S. Supreme Court Lets Gay Marriage Rulings Stand

The U.S. Supreme Court today unexpectedly cleared the way for a dramatic expansion of gay marriage in the United States, the Associated Press reports. In declining to hear appeals from five states seeking to preserve bans on gay marriage, the court effectively made those marriages legal in Wisconsin, Indiana, Oklahoma, Utah and Virginia. Couples in six other states should be able to get married in short order as well since those states are covered by the same appellate rulings. Though today’s decision certainly was a boost to the gay marriage movement, the issue is far from settled. Challenges are still pending in 20 states and one appeals court may be poised to rule in favor of state bans, which would set up the first split among the circuits. Nashville lawyer Bill Harbison, who represents plaintiffs in a case from Tennessee pending in the Sixth Circuit, said he expects the Supreme Court to take up the case if the appeals court becomes the first to uphold a state ban. “Obviously we don’t know how the [Sixth] Circuit will rule, but indicators are that the Supreme Court would take a case if it went the other way,” Harbison said in an interview with Knoxnews.

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Paper: AG Confirmation Fractious Even Before It Begins

President Barack Obama has yet to reveal his choice to succeed Attorney General Eric Holder, but the Senate confirmation process already has become contentiousness, the Washington Post reports. With the midterm elections potentially shifting the balance of power in the chamber, some Republicans are arguing that hearings and votes on a new attorney general should be delayed until January. Democrats counter that Republicans should allow Obama to select his own cabinet. Holder’s decision to leave on the eve of a midterm election has no precedent in recent history, the paper reports – a fact that further complicates a confirmation process that has been a partisan flashpoint in recent years.

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Register by Oct. 27 for 2014 TBA Academy

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 31st Annual TBA Academy, Dec. 2-3, in Washington, D.C. A select group of Tennessee attorneys will be able to take part in a private ceremony before the court and enjoy other events in the nation's capital. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, located across from the White House. Interested candidates should complete the required forms by Oct. 27. For information and a step-by-step guide on how to sign up, visit the TBA website.

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AG Eric Holder to Leave Post

Eric H. Holder Jr., who made history as the nation’s first African American attorney general, plans to leave his post as soon as a successor is confirmed, the Washington Post reports today. His departure was not unexpected. Holder drew tributes from Democrats and others, who called him an influential proponent of civil rights and criminal justice reform, but also criticism from Republicans, who have blasted him as a liberal activist focused more on pursuing his own agenda than enforcing the law.

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Roberts Warns Against Partisanship in Confirmations

U.S. Supreme Court Chief Justice John Roberts expressed concern Friday about growing partisanship in the judicial confirmation process and a public perception that politics factor into the court’s rulings, the Associated Press reports. Roberts told an audience at the University of Nebraska-Lincoln College of Law that the partisan atmosphere in Washington would make it unlikely for justices such as Antonin Scalia or Ruth Bader Ginsburg to win confirmation today. He also suggested that politics displayed through the confirmation process feeds the public’s belief that the court is a political body akin to Congress and the White House. “That's not the way we do business," he said. "We’re not Republicans or Democrats.”

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Lawmakers Call on Federal Judge to Resign

Four members of the U.S. Congress are calling for the resignation of U.S. District Court Judge Mark Fuller, who was arrested on domestic violence charges last month. Republican Sens. Richard Shelby and Jeff Sessions and Democrat Rep. Terri Sewell of Alabama, and Democratic Sen. Claire McCaskill of Missouri say the Alabama judge should step down after allegedly throwing his wife to the floor, pulling her hair and kicking her at an Atlanta hotel. Fuller has accepted a plea deal to have the arrest removed if he undergoes domestic violence counseling. Politico has more on the story.

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Ohio Judge Named Chief of 6th Circuit Appeals Court

Ohio-based Judge R. Guy Cole Jr. has been tapped as the new chief judge of the U.S. 6th Circuit Court of Appeals. In his new position Cole will oversee the administrative responsibilities of the Cincinnati-based court. Prior to his nomination to the court, Cole worked as a litigator at the U.S. Department of Justice, as a law firm partner and as a bankruptcy judge. For years, he also taught courses on habeas and the 14th amendment at Ohio State University’s Moritz College of Law. WDEF News 12 has the story.

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East Tennessee AUSAs Recognized by DOJ

Assistant U.S. Attorneys (AUSAs) A. William Mackie, Perry H. Piper, Gregg L. Sullivan and Jeffrey E. Theodore of the U.S. Attorney’s Office in the Eastern District of Tennessee were four of the 243 Department of Justice employees recognized by Attorney General Eric Holder at the 30th annual Director’s Awards Ceremony in Washington D.C. U.S. Attorney Bill Killian, who oversees the four, praised them saying, “The awards given to these particular AUSAs highlight their accomplishments and achievements in cases involving national security concerns, the highest priority for the Department of Justice. It is gratifying that these AUSAs are recognized nationally for their exceptional work.” The Chattanoogan has more.

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Kagan Provides Peek into Court’s Everyday Workings

In an entertaining talk at Harvard Law School last week, U.S. Supreme Court Justice Elena Kagan “pulled back the curtain a little on the nation’s highest court,” Harvard Law Today reports. Among the secrets she revealed is that it is her job, as the most junior justice, to answer the conference room door when clerks drop off items for another justice. “They will knock on the outer door, and then I have to hop up and open the inner door,” Kagan said. “If I don’t do it, nobody will.” Kagan also delved into topics that ranged from her most difficult court decision, to which justice gets the most laughs during oral arguments, to how she prepares for a case. She credits her previous job as solicitor general as a great training ground for the court and says she tries to remember what it was like on the firing line and “to at least be polite” when asking questions.

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Did Obama Drop Supreme Court Hint?

President Barack Obama thinks he will have the chance to nominate at least one more Supreme Court justice before his term is up, according to comments made to Democratic supporters at a fundraiser Monday in Martha's Vineyard, CNN reports. Obama used the potential appointment to elicit support for Democratic candidates, who he said are needed to maintain control of the U.S. Senate so his picks would be confirmed. “That's why I need a Democratic Senate,” Obama said. “Not to mention the fact that we’re going to have Supreme Court appointments …” A White House official later said Obama “meant to convey the important role the Senate would play in the event of a Supreme Court vacancy” not about “a specific vacancy.”

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