By Carlyn Kolker

SOTU reaction fact-check

1/25/12

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 judicial nomination."

Wow, really?

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 senator.

"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

1/25/12

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 made.

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

1/25/12

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 emissions standards.

The story, which contains sharp detail on Sorrell, doesn't say how his record stacks up against other long-serving state AGs.

A view of SOTU, from the bench

1/25/12

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

1/25/12

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 issue.

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 violation.

A spokesman for the U.S. Attorney in Colorado said the office is pleased with the ruling, and declined to comment further.

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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