By Carlyn Kolker
SOTU reaction fact-check
Summary Judgments admits she spent a chunk of the morning
poring over reactions to the State of the Union address,
including a critique from the Manhattan Institute's Ted Frank on
the Point of Law blog. Frank labeled Obama's plea to have simple
"up or down" votes on judicial nominees within 90 days of their
nominations "ironic" because Obama "is the only sitting
president in American history who has voted to filibuster a
Summary Judgments, who began her journalism career as a
fact-checker, back when journalism budgets permitted such modes
of employment, did a little fact-checking.
Here's what she discovered:
It is true, as Frank notes, that as a senator from Illinois,
Obama was one of just 25 lawmakers to vote to filibuster the
nomination of Samuel Alito to Supreme Court Justice. But Obama,
according to U.S. Senate history, is only the 16th president to
have also served in the Senate; the last time president who also
served in the Senate was Richard Nixon. (Further trivia: While
Nixon, elected to the presidency in 1968, had not served in the
Senate since 1953, his predecessor, Lyndon B. Johnson, had
actually served more recently in the upper chamber, ending his
tenure in 1961).
But it seems that the filibuster as a tool to vote against
judicial nominees did not really emerge until the 1960s.
National Public Radio, in a 2005 piece penned during the
confirmation battles of George W. Bush, noted that while the
Senate often used the filibuster to block legislation, its
origin in the context of judicial nominees is "unknown." The
story pointed to the successful 1968 filibuster of Abe Fortas,
who was at the time an associate justice whom LBJ was trying to
elevate to Chief Justice. The defeat -- Fortas was opposed by
Republicans as well as southern Democrats -- is cited as a
watershed event in filibuster history. In a Huffington Post essay last May, University of Chicago law professor Geoffrey Stone says with even more confidence that "the filibuster was
not used to block a judicial nomination until 1968."
In other words, the filibuster against judicial nominees
didn't really emerge until the 1960s and there have been no
presidents who served during the senate since the 1960s except
our current president. So Frank's statement about Obama being
the "only sitting president" to try to filibuster a nominee is,
in our opinion, a bit disingenuous. Of course he is the only
one, because the data set of available presidents in this
category is precisely one.
When we caught up by phone, Frank, who describes his
political orientation as "center right," acknowledged Summary
Judgments' points above.
That said, Frank's original idea -- and he reiterated it to
Summary Judgments when we spoke -- still stands. Obama, he says,
is hypocritical to complain about a tactic he employed as a
"Obama the senator was very critical of the executive branch
shenanigans that Obama the president engages in," says Frank.
"There's still the question: how dare you, Senate do what I did
when I was a senator?"
Frank gives Obama low marks for consistency.
"His position on constitutional issues has very consistently
coincided with what he wants to do as matter of naked political
power," says Frank.
On the other hand, the liberal-leaning American Constitution
Society has praised Obama's plan for up-or-down votes.
The subject of judicial nominations is guaranteed to
polarize an already-polarized Washington, and we have a feeling
we'll be seeing more about Obama's proposal -- from Frank, from
the ACS, and others.
Garth Brooks wins over a jury
Well, that was fast. On Monday we told you about country music star Garth Brooks' teary testimony before an Oklahoma jury
in a case Brooks brought against a hospital chain. In the
lawsuit, Brooks claimed Integris Canadian Valley Regional
hospital breached its promise to build a women's health center
in honor of his mother in exchange for a $500,000 donation he
It looks like Brooks was convincing on the stand as he is on
the stage: the jury on Tuesday rewarded Brooks $500,000 for the
donation, plus another $500,000 in punitive damages, according
to CBS News and AP. Now that the trial has concluded, Brooks is
off to give concerts in Las Vegas. And maybe spend his winnings?
Vermont AG's wobbly record
Does Vermont's attorney general have bad luck or has he made
some bad legal decisions?
The tenure of the state's longtime-Democratic attorney
general William Sorrell is notable for, among other things, some
pretty high-profile legal losses, the Associated Press reports.
Last week, the state lost a federal trial over Vermont's bid to
close a nuclear power plant operated by Entergy. That comes on
top of a 2011 decision by the U.S. Supreme Court blocking a
state law that restricts drug companies from collecting data on
doctors' prescription practices. In 2006, the high court also
struck down Vermont's campaign finance law.
"The state now has sort of a reputation in the 2nd Circuit
and the Supreme Court of not getting their act together," the AP
quotes University of Vermont law professor Patrick Parenteau as
saying. Moreover, Sorrell and his deputies have been out-gunned
in the courtroom, the AP maintains, sometimes faltering while
their adversaries shined.
Sorrell defends himself as the victim of bad luck, saying he
pursued progressive laws before a conservative federal
judiciary. He notes the state has had some big wins, too,
including a 2007 federal court ruling upholding Vermont's tight
The story, which contains sharp detail on Sorrell, doesn't
say how his record stacks up against other long-serving state
A view of SOTU, from the bench
The judiciary didn't get much of a shout-out Tuesday night
in President Obama's state of the union address, which was
attended by five of the nine justices -- Roberts, Kennedy,
Ginsburg, Breyer and Kagan -- as Tony Mauro reports at the Blog of Legal Times. In Summary Judgments view, the camera was
rarely, if ever, trained on the justices and Obama didn't
mention any recent Supreme Court rulings -- though there were
some biggies last term, including the landmark Wal-Mart v.
Dukes, which put the brakes on employment class actions. (The
last SOTU where Obama discussed a decision was in 2010, when he
brought up Citizens United, the controversial election-funding
ruling). Obama brought up the judiciary just once, noting that
judicial vacancies are high and suggesting that judicial and
public service nominees get treated to an up-or-down vote within
90 days of their nominations. Some judicial nominations have
dragged on for months - or even years, Mauro notes.
Fifth amendment defense falters in fraud case
Earlier this month Summary Judgments wrote about an
interesting mortgage-fraud case unfolding in federal court in
Colorado. The case dates back to a 2010 mortgage fraud
investigation where federal authorities, as part of their
investigation, seized a number of computers. One of the machines
turned out to be encrypted and the government is trying to force
Ramona Fricosu, one of the defendants in the case, to reveal her
password so that the feds can de-encrypt Fricosu's computer.
Fricosu fought back, arguing that she was protected by the
Fifth Amendment right against self-incrimination from handing
over the password. The crux of her argument was that the
password constitutes "testimonial" evidence - evidence that
flows from a defendant's state of mind - that is protected by
the Fifth Amendment.
On Monday U.S. District Judge Robert Blackburn ruled in
favor of the government. In his ten-page decision, Blackburn
didn't seem to buy Fricosu's argument. While he did not launch
into a very full discussion of the testimonial evidence issue,
Blackburn relied on precedent created in a federal case in
Vermont called Boucher to suggest that no Fifth Amendment
defense applies. But as Blackburn acknowledged in his opinion,
there are just a "small universe" of cases dealing with this
Writing in the well-respected legal blog Volokh Conspiracy,
law professor Orin Kerr notes that Blackburn's ruling is "not a
model of clarity" (could have been our words exactly). But, like
the Boucher ruling, Kerr says, "the Court is not saying that
there is no Fifth Amendment privilege against being forced to
divulge a password." Rather, says Kerr, Blackburn's ruling is a
narrow one, suggesting that in this specific case, where the
suspect has control over the computer and the government already
knew the information would be incriminating, the court
determined that a Fifth Amendment privilege can't be asserted.
I caught up with Fricosu's defense lawyer, Philip Dubois,
who said he "respectfully disagree(s)" with the ruling and
intends to ask Blackburn to stay the decision and then seek an
appeal with the Tenth Circuit Court of Appeals. He also said
Blackburn didn't address other constitutional issues that he
sees looming in the case: a violation of Fricosu's Fourth
Amendment right against search and seizure, and a 14th Amendment
A spokesman for the U.S. Attorney in Colorado said the
office is pleased with the ruling, and declined to comment
Summary Judgments will keep you posted on developments in
this tech-meets-Constitution case.
Summary Judgments for Jan. 24
Summary Judgments for Jan. 23
Summary Judgments for Jan. 20
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