And the winner is…

We finally know who is arguing Carcieri v. Kempthorne before the Supreme Court Monday: Ted Olson.

Although 53 percent of DC Dicta readers thought that Joseph S. Larisa Jr., the attorney who has argued the case in the lower court, should argue the Indian land case according to our extremely unscientific poll, the Supreme Court veteran won out.

The squabble over who would argue the case, explained here in an earlier post, literally came down to the final hour. Supreme Court Clerk William K. Suter called the lawyers at 11 a.m. today and gave them a choice: either decide who is arguing or forfeit oral argument, SCOTUSBlog reports. Larisa agreed to allow Olson the honors in exchange for being seated as co-counsel at the table with Olson. And hus ended what The Wall Street Journal’s Law Blog dubbed “The Great High Court Showdown of 2008.”

Friday morning docket: Boo!

As you stock up on candy are prepare to dress your little ghouls for tricks or treats tonight, here’s a look at the legal news:

W’s preemption priorities: Just days before the U.S. Supreme Court takes up a highly-anticipated case on FDA- preemption of state court actions, a congressional report shows that scientists and career staffers at the agency objected to the preemption policies implemented under President George W. Bush. More here from Lawyers USA.

What timing: But a former FDA chief counsel is criticizing the timing of the report, saying it was purposely released now “to sway the Court in Wyeth v. Levine.” On Monday the Court hears oral arguments in the Wyeth case.  More here from The American Lawyer.

Oh, #@&%! On Tuesday, will the language during oral arguments at the Court include enough swear words to make a middle-schooler giggle? And will those words be included in a audio recording made available to the media? The Chief Justice will decide. More here from SCOTUSBlog.

What a concept: In a decision that could reshape the way banks and high-tech firms protect their intellectual property, a federal appeals court ruled Thursday that a man’s business concept was too vague for patent protection. More here from AP via The New York Times.

Last one out, turn off the regulations: The White House is working on a host of deregulation plans before President Bush leaves office. The rules weaken government rules aimed at protecting consumers and the environment, and would be hard for his predecessor to undo. More here from The Washington Post.

Painful tendon-cies: So far, more than 40 suits have been filed nationwide against Johnson & Johnson and a subsidiary, Ortho-McNeil Pharmaceutical, blaming their popular antibiotic Levaquin for tendon ruptures. The suits are the first of what plaintiffs’ lawyers in court documents say could be between 200 to 500 tendon rupture cases. More here from Lawyers USA.

NYT prints correction after misspelling justice’s name for 28 years

In one of the most interesting corrections DC Dicta has seen in quite some time, The New York Times today published a note acknowledging that a story in yesterday’s paper misspelled the name of Supreme Court Justice Ruth Bader Ginsburg. The item notes that the justice’s name is Ginsburg, not Ginsberg.

But the correction goes on to give a startling admission: this has happened before. Many times. But only today has it become news that’s fit to print.

“The Times has misspelled her name at least two dozen times since 1980; this is the first correction the paper has published,” the note states.

Better late than never!

[HT to How Appealing]

Chamber: trial lawyers’ weeds choke Congress

There is little love lost between the U.S. Chamber of Commerce and plaintiffs’ attorneys, and that was evidenced yesterday at the annual summit of the Chamber’s Institute for Legal Reform.

Attendees of the summit’s received a handout depicting the Capitol building being strangled by the vines of what the Chamber called “trial lawyer earmarks.”

During one panel discussion, ILR’s president Lisa Rickard said the trial plaintiffs bar has launched a “stealth campaign,” inserting language in host of bills with an aim of expanding causes of action, fighting mandatory arbitration laws, and seeking tax breaks for lawsuits.

To illustrate the point, the group launched a website featuring an interactive version of the handout given to attendees.

Rickard said the measures are called earmarks because they are not stand-alone bills, but rather amendments tacked on to other measures. “Our problem here is that this isn’t just a fight in the Judiciary Committee,” Rickard said. “It is in everything.”

Meanwhile, trial lawyer group the American Association for Justice was launching its own offensive against the Chamber. AAJ CEO Jon Haber blasted Chamber President and CEO Tom Donohue for bragging to summit attendees about the number of lawsuits the Chamber files each year on its own behalf while condemning other lawsuits as “frivolous.”

“U.S. Chamber obviously believes big corporations should have access to the legal system, but leave everyone else out to dry,” Haber said.  “For U.S. Chamber and big corporations, it’s one rule for us and one rule for the rest of America.”

A positive moment at a beleaguered department

It’s been a tough couple of years at the Department of Justice. It has seen a seemingly endless stream of news headlines about politicized hiring and firing practices, congressional probes, even the resignation of the last attorney general amid scandal.

Yesterday, Attorney General Michael Mukasey used the occasion of honoring the extraordinary work of some DOJ staffers to make a point: the department’s controversies belie the true nature of the place and its employees.

“Over the last few years, this Department has endured its share of critical attention,” Mukasey said yesterday on the stage of DAR Constitution Hall, where he kicked off the Attorney General’s Awards Ceremony. “As a result, I have been asked many times about morale at the Department and about how we were going to restore the public’s confidence in DOJ. My answer has never wavered: to a person, the men and women who were here when I arrived have worked hard to help me succeed and have kept doing their jobs on behalf of the American people.”

Mukasey praised the people in his department, saying “the dedication and excellence of the people of this Department have not wavered in the face of public controversy is a powerful testament to how seriously you take the oath of office you have sworn.”

Mukasey added that the workers’ dedication is often overlooked by lawmakers and the press. “I wish I could simply hand today’s program to the press or to the Congress and ask them to read it,” he said. “I wish the newspapers would reprint it so that the American people could read about the extraordinary work we do on their behalf. … If the American people could see today’s program, I am certain that we would no longer have to field questions about our morale or whether people can have confidence in what we do.”

Supreme reconsideration

Remember how the Supreme Court justices limited the question presented in a case about how to split up pension benefits in a divorce, only to completely second-guess themselves during oral argument?

Lawyers USA wrote about oral arguments in Kennedy v. DuPont Savings Plan Administrator earlier this month (sub. req’d). During arguments, the justices openly questioned whether they should change their minds about limiting the question in the case to whether a qualified domestic relations order is required to divest a spouse of pension benefits. And they spent a lot of time asking questions about what rule should govern the decision about who gets the benefits if the QDRO is not required.

“I’m sorry we limited” the question, said Justice Stephen Breyer one point. “I’m tempted to try to decide it.”

Well, the Court is going to do just that. Yesterday the Court ordered the parties in the case the brief the issue of whether the the “plan documents rule” should govern the determination. In that case, the beneficiary card of the pension would dictate where the funds go. If not, the divorce decree, in which the ex-spouse in the case divested her rights to the pension fund, would govern.

Parties and amici have until Nov. 10 to file the supplemental briefs. More here from SCOTUSBlog and here from Lawyers USA.

The hand that rocks the voting booths rules the courts

As DC Dicta has noted, President George W. Bush is very proud of the federal judges he’s appointed over the last eight years, and hopes those jurists help to shape his legacy.

Right now, conservative justices hold a majority in 10 of the 13 federal circuits, “while judges appointed by Democrats have a dwindling majority on just one circuit,” notes a piece in today’s New York Times.

What’s more, even though Bush appointed 61 judges to President Bill Clinton’s 65, Bush’s nominees are so young that they will affect the shape of the judiciary for many years to come. Even the nation’s Chief Justice was the youngest appointed in more than 200 years.

So what does all that mean for the election? It raises a new stake: A McCain victory will give that administration a chance to shore up conservative control of federal courts, even ensuring a majority in all 13 circuits. An Obama win would allow Democrats to try to roll back the GOP advantage in the courts. Obama could could even appoint enough judges to regain a majority by the end of his first term, the story says.

Breyer award brews controversy

As college award recipient choices go, Supreme Court justices are generally pretty uncontroversial. But at a New York school, the selection of Justice Stephen Breyer to receive an award tomorrow night has courted protests from some students, alumni and even the leader of the Catholic Church in New York.

Tomorrow night Breyer is scheduled to be at Fordham University to accept the Fordham-Stein Ethics Prize. But more than 1,000 members of the Fordham community have signed a petition circulated by the Cardinal Newman Society, a Manassas, Va.-based conservative Catholic group, calling for the award to be revoked.

The group has led a nationwide effort to stop Catholic colleges from selecting awardees who support abortion rights. Its beef with Breyer stems from his role in the 5-4 decision in the 2000 case Stenberg v. Carhart, in which the Court held that a Nebraska statute, criminalizing the performance of “partial birth abortions,” was unconstitutional. Breyer, who is not Catholic, wrote the majority decision in the case.

Breyer will be the seventh Supreme Court justice to receive the award from Fordham’s law school. Five of the past awardees from the high court voted in support of abortion rights. Their selection drew no protest.

Stevens vows to appeal, campaign

Sen. Ted Stevens vows to appeal his conviction yesterday after a jury returned a guilty verdict in his corruption trial. The Alaska Republican senator also vowed to push on with his reelection bid. Stevens is one of several GOP lawmakers fighting tough battles to hold onto their seats on the Hill as Democrats vie for a filibuster-proof 60-seat majority in the Senate. More here from The Washington Post.

McCain’s legal thoughts

As his presidential campaign enters the home stretch, John McCain is giving his thoughts on the rule of law, federal courts and the Department of Justice in an essay in The National Law Journal. (The legal publication invited remarks from all the major presidential and vice presidential candidates. McCain is the only to respond so far.)

In the piece, McCain said his three top priorities in this area would be taking the politics out of the DOJ, boosting enforcement programs – particularly those focused on terrorists and white collar criminals in the financial sector, and appointing conservative judges.

Much of what McCain says in the piece is stuff we’ve heard before: he wants to appoint judges who will “strictly interpret our Constitution” and who won’t “legislate from the bench,” he vows to focus on preventing terrorist attacks, and he charges that opponent Barack Obama will appoint criminal-coddling judges who create laws instead of interpreting them

But McCain also focused on an issue which has otherwise been a bit of a pink elephant during the campaign season: the troubles that have scourged the DOJ for more than a year.

First, in an apparent acknowledgment of the damage the “waterboarding” scandal has done to the department, McCain said:

“As we use aggressively all lawful means to combat threats, we must also ensure that our counterterror programs enjoy bipartisan support and widespread public acceptance. The terrorists win if we fight them using tactics that undermine our strategic goals. As long as I am president, I will ensure that the world never again sees America as a country that tortures. We must always act within the bounds of the law. I will help forge a bipartisan consensus as to where those boundaries are.”

McCain also touched on the controversy over politicized hirings and firings within the department, saying:

“Much responsibility for the effective administration of justice is entrusted to the dedicated men and women who toil day in and day out at the Department of Justice. My first objective would be to ensure that the department is, and remains, above the political fray. The department must function with integrity and effectiveness above all else.”

So far McCain has gotten at least one tepid review. While The Wall Street Journal’s Law Blog gives McCain big props for bringing up the issue of a politicized DOJ, they don’t think he said nearly enough about it.

“Frankly, we’re a little disappointed,” said a Law Blog post by Dan Slater. The post goes on to say that McCain “writes that we, the voters, ‘deserve more than platitudes,’ but then goes on to propose a litany of vague policies for the legal system.”