Court considers another death penalty stay

January 31, 2008

UPDATE 2: Just before he was to be executed, the U.S. Supreme Court granted Callahan’s stay.

UPDATE: As of the close of business for DC Dicta (about 5:30 p.m.) no order has come down from the Supreme Court.

Today Alabama death row inmate James Harvey Callahan could be executed by lethal injection. That is, unless the U.S. Supreme Court steps in and grants his request to stay the execution pending the court’s decision in Baze v. Rees, which challenges whether the current three-drug combination used in lethal injection executions amounts to cruel and unusual punishment (Lawyers USA subscribers can read the archive story on oral arguments in the case here).

On Dec. 14, U.S. District Judge Keith Watkins stayed the execution of Callahan, who was convicted of kidnapping, raping and killing a college student in 1982, until the high court ruled in Baze. But yesterday the 11th Circuit Court of Appeals lifted the stay, clearing the way for Callahan to be executed today. Yesterday, Callahan petitioned the U.S. Supreme Court to stay the execution, and the Court could rule at any moment.

More updates to come.


Mukasey in the hot seat – again

January 30, 2008

It was like déjà vu all over again.

Just like they did during Attorney General Michael Mukasey’s Senate confirmation hearings, today lawmakers again pushed the federal government’s top lawyer to say, once and for all, whether waterboarding – the interrogation technique where subjects are strapped down and doused with water so that they feel like they are drowning – is illegal.

But the monotonic Justice Department chief suck to his guns, refusing to give an opinion on the legality of the interrogation procedure because, he said, it is not currently used by the CIA.

“Given that waterboarding is not part of the current program, and may never be added to the program, I do not think it would be appropriate for me to pass definitive judgment on the technique’s legality,” Mukasey said.

That answer did not sit well with some committee Democrats.

“It’s like you’re opposed to stealing but not quite sure that bank robbery would qualify,” said Sen. Edward Kennedy, who has been very vocal on this matter.

“I think failure to say something probably puts some of our people in more danger than not,” said Sen. Patrick Leahy, the committee’s chairman.

Source: AP

DC Dicta asks: Where will Edwards’ trial lawyer backers go?

January 30, 2008

Former Sen. John Edwards has ended his bid for the Democratic nomination today after failing to win a single early primary race (ABC News). 

Edwards, a former trial attorney, had strong financial support among lawyers nationwide.

So DC Dicta poses this question to you: which remaining Democratic candidate do you think will become the new trial attorneys’ darling: Illinois Sen. Barack Obama or New York Sen. Hillary Clinton?
Give us your two cents in the comments section below.

Meanwhile, the WSJ’s Law Blog has been keeping track of the JDs remaining in the presidential race.

There were eight to start. But then Sens. Chris Dodd (Louisville Law) and Joe Biden (Syracuse Law) dropped out early. Then former Sen. Fred Thompson (Vanderbilt Law) threw in the towel, and former New York Mayor Rudy Giuliani (NYU Law) and Edwards (UNC Law) will reportedly do the same today.

So now three remain: Sens. Obama (Harvard Law) and Clinton (Yale Law), and former Massachusetts Gov. Mitt Romney (Harvard Law).

Perfect attendance

January 30, 2008

Here’s a trivia question for you this morning: Which U.S. Supreme Court justice has attended every one of President George W. Bush’s ‘State of the Union’ addresses?

The answer may surprise you.

Here’s a hint: It’s not Justice Antonin Scalia, the justice most praised by conservatives and cited by GOP presidential candidates as their model for judicial selections. Scalia, not a fan of the partisan nature of the annual address, hasn’t been in close to a decade.

It’s neither Chief Justice John G. Roberts nor Justice Samuel Alito – Bush’s appointees – because they haven’t been on the bench that long. They have attended each year since they have been on the Court, though.

It’s not even the bench’s other noted conservative, Justice Clarence Thomas. We don’t know why Thomas doesn’t attend the events, although DC Dicta doubts being in a room full of senators is Thomas’s idea of fun.

Give up?

The answer: Justice Stephen Breyer. Breyer, a Clinton appointee, has seen every one of Bush’s annual addresses, and at times has been the only justice to attend. He was the sole justice at Bush’s 2001 speech to congress, even though Breyer voted against halting Florida’s election recount in the infamous Bush v. Gore decision. 

A clear fan of the speeches, Breyer also attended all but one of Clinton’s addresses during his tenure. He missed the last one due to a bout of the flu.

Source: AP

Judge taps his inner Letterman

January 29, 2008

Look out Justice Antonin Scalia – there is another judge who knows how to get some laughs from Supreme Court cases.

Nebraska U.S. District Judge Richard G. Kopf, clearly not a fan of some the high court’s recent decisions on criminal sentencing, made a David Letterman-style “Top 10” list jabbing at the Courts’ rulings and posted it on the blog of the Ohio State Journal of Criminal Law.

“As a district judge, I read with interest, and even tried to follow, the Supreme Court’s sentencing opinions in Apprendi, Blakely, Booker, Rita, Kimbrough and Gall,” Kopf wrote on the blog*.  “With tongue partly in cheek, here, in descending order, are the top ten things I learned from those missives:”

[DC Dicta would insert drum roll here]

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.

8. Footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) is the biggest practical joke in the history of American law. See lesson One below.

7. The “merits” and “remedial” opinions in Booker satisfy George Orwell’s definition of “Doublethink.” That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it “just right” or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just “reasonable.”

5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.

4. In an Ivy League sort of way, it makes sense to address the “crack” question fifteen years after everyone else knew something was terribly wrong. See lesson One below.

3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.

2. Sentencing judges can be divided into two groups-those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

*Despite the fact he posted the list to a blog, being a federal judge, he still listed his preferred law journal-style citation for the funny list, and we will comply: Richard G. Kopf, The Top Ten Things I learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall, OSJCL AMICI: VIEWS FROM THE FIELD (January 2008), at

HT: Legal Times, BLT

Debate over bill broadening ADA coverage

January 29, 2008

Today the House committee on Education and Labor is holding a hearing on the “ADA Restoration Act of 2007,” which would bring the biggest changes to the Americans with Disabilities Act since the law was passed in 1990.

Groups including the National Council on Disability have urged congress to pass the measure, introduced in July, which aims to establish clearer standards for what constitutes a disability and what accommodations employers must make for qualified applicants. (Lawyers USA subscribers can read more here. Also more here from

But some business groups have opposed the measure, saying that the bill would essentially eliminate that requirement that a disability affect “a major life function,” expanding the definition so broadly as to include minor or temporary impairments. The Heritage Foundation, for example, said the law would expand the definition of disability to the point that it would cover “virtually every American.”

UPDATE: The U.S. Chamber of Commerce also opposes the measure, and posted about today’s hearing here on its blog, ChamberPost.

Among those scheduled to testify at today’s hearing are: University of District of Columbia law professor Robert Burgdorf; David Fram from the National Employment Law Institute; Andrew Imparato, president and CEO of the American Association of People with Disabilities; and Carey McClure, an electrician who suffers from muscular dystrophy who said her job offer was revoked by General Motors because of her disability.

Bush announces NLRB nominees

January 28, 2008

President George W. Bush has submitted his nominees to fill the three vacancies on the National Labor Relations Board – and two of them may face a less-than-easy road to confirmation coming off a rocky year for the agency.

After recent term expirations left the Board operating with only two members, on Friday, the president announced his intention to renominate former Board Chairman Robert Batista, a Republican, to return to the agency’s chief post. Bush is also renominating Democrat Dennis P. Walsh to the Board.

The third nominee will be Republican Gerard Morales, a labor, construction and employment partner at Phoenix firm Snell & Wilmer. He is a former adjunct professor at the University of Arizona College of Law and a former NLRB field attorney.

Sen. Edward M. Kennedy, chairman of the Senate Health, Education, Labor and Pensions Committee which recently called NLRB members to testify before congress to explain some of their decisions, wasted no time in giving his opinion of the two Republican nominees.

“It’s unbelievable that President Bush would renominate Mr. Battista to the Board, after he led the most anti-worker, anti-labor, anti-union Board in its history,” Kennedy said in a statement Friday after Bush made the nomination announcement. “America’s hard-working men and women deserve a Board that will uphold their rights, not undermine them. With these nominations, the Administration has again demonstrated its hostility to fairness and justice in the workplace.”