By Carlyn Kolker

Who decides if legislation is legal

1/5/12

How very Gingrich-esque.

Yesterday we posted on the presidential candidate's views on the judiciary -- he's said he would ignore Supreme Court opinions he disagrees with. Today we report, via the National Center for State Courts blog, on a bill before the New Hampshire legislature that would allow the legislature, rather than the courts, to be the final arbiter of legislative acts. Similar bills failed in 2003, 2005, and 2007, NCSC says, but this one has a better chance, citing an October resolution by the New Hampshire House that repudiated a state Supreme Court advisory opinion about the health care law.

Password protected?

1/5/12

Is a computer password protected by the Fifth Amendment? That is the question that a federal district court in Colorado may decide, according to ABC News. This tech-meets-Constitution conundrum is unfolding in a bank fraud case involving a mortgage scam and defendant Ramona Fricosu. The government, as part of its investigation, seized Fricosu's computer. The problem is, the computer is encrypted, so government investigators can't search the machine for evidence of alleged wrong-doing. Prosecutors argue Fricosu should be forced to turn over her password, while Fricosu argues she's protected against such a demand by the Fifth Amendment. According to Fricosu's lawyers, the password constitutes "testimonial" evidence -- evidence that flows from a defendant's state of mind -- and is therefore protected by the right against self-incrimination. Not so, say prosecutors, who fear that allowing Fricosu to keep the password to herself would create a dangerous precedent.

Polite, but pointed

1/5/12

Earlier this week we drew attention to Chief Justice John Roberts' defense of recusal practices at the Supreme Court. Now, the reaction (we might say polite, but hard-hitting criticism) is rolling in:

-In the Concurring Opinion blog, University of Maryland law professor Sherrilyn Ifill takes Roberts to task for an "unsatisfying" explanation of the Supreme Court recusal practices, especially his explanation of why the justices don't have to adhere to the same codes as lower court judges. "The key issues at the center of the controversy are those of transparency and consistency," Ifill writes. The justices' practices are shrouded in secrecy, Ifill writes, and the lack of transparency about them compromises the legitimacy of the courts, she says.

-Andrew Cohen, writing in The Atlantic, says Roberts missed an opportunity to "decry" the judicial vacancies plaguing the country. There are 86 judicial vacancies, according to the Administrative Office of the U.S. Courts, and 32 of those have been labeled "judicial emergencies" because of the dire nature of the vacancy.

Putting the brakes on spending for judicial elections?

1/5/12

When it comes to spending on judicial elections , Alabama has often been a stunner. For the decade spanning 2000-2009, Alabama took the cake nationally for amounts shelled out on judicial elections, as non-profit group Justice at Stake has reported. The AP, which has been keeping tabs on the Republican primary for Alabama Supreme Court's chief justice, says that pace may be slowing. In that competitive three-way race, candidate Charles Graddick has raised $346,515; Chuck Malone, the current chief justice, has raised $269,515; and Roy Moore, the third contender and a former chief justice, has raised $78,000, the AP reports. Do these latest numbers show that the fundraising is slowing, as the AP suggests? In the 2010 cycle, according to Justice at Stake, Supreme Court candidates in Alabama raised $3.16 million. So perhaps the pace looks slower for now -- but there is still plenty of time for money to pour in: the Republican primary election is March 13, and fundraising typically heats up on the eve of a race.

Let the finger pointing begin

1/5/12

And you thought you'd never hear the name "Raj Rajaratnam" another time. Think again. The convicted hedge fund executive is being invoked early and often in the pre-trial phase of former McKinsey director Rajat Gupta's criminal case. Gupta, you may recall, was charged last year with passing along secret tips to Rajaratnam, after Rajaratnam himself was convicted. Recent court documents provide an insight into Gupta's defense strategy, as Bloomberg analyzes in this story. Gupta's defense is likely to point the finger at Rajaratnam, questioning his truthfulness, Bloomberg writes. Prosecutors are likely to argue at trial that Rajaratnam bragged to a third party that he received tips from Gupta; Gupta, Bloomberg says, is asking prosecutors to surrender information that could cast doubt on Rajaratnam's truthfulness, such as information that may contradict an interview Rajaratnam gave with Newsweek. The request suggests Gupta's defense will try to paint Rajaratnam as a liar, Bloomberg notes. Gupta's trial is scheduled to begin in April.

Mulling over the legal angles to the Cordray appointment

1/5/12

In the wake of President Obama's announcement that he would bypass the Senate and give a recess appointment to Richard Cordray to head the new Consumer Financial Protection Bureau, Summary Judgments has gathered some fodder on the bizarre and byzantine process of recess appointments - the politics and history behind them, and their (possible) legality:

-Reuters' Jeremy Pelofsky details the legal challenges, possibly from the U.S. Chamber of Commerce, that may ensue, in this article.

-For the wonky at heart, here is a 13-page paper from the Congressional Research Service detailing the history and technicalities of recess appointments; among the questions it poses -- Summary Judgments still isn't sure what the answer is - is whether Congress can prevent the President from making recess appointments.

-John Elwood, an appellate lawyer at Vinson & Elkins, writes in The Volokh Conspiracy blog as to whether a pro forma session, in which the Senate stays nominally in session by convening every few days, can legally allow for recess appointments. (The Senate is currently in a pro forma session, rather than in a recess). Elwood's position is that such recess appointments are legal, although, he says "I recognize this is a novel and difficult question of constitutional law." Legislative history suggests a "practical interpretation" of the Constitution's Recess Appointments Clause, Elwood writes, implying that pro forma sessions aren't meaningful, and therefore, that Congress is essentially in recess, with the president free to make recess appointments. All the same, Elwood calls the Cordray appointment a "high roller" move, and expects legal challenges.

-Joel Gehrke, writing in a brief commentary piece in the Washington Examiner, takes the opposite tack, accusing the Obama administration of hypocrisy and noting that in the Supreme Court case New Process Steel v. National Labor Relations Board, the administration previously argued to the high court that Congress has to be in a recess for more than three days in order for the President to make a recess appointment. Gehrke quotes a transcript from Supreme Court oral arguments, originally posted on House Speaker John Boehner's blog, and concludes that Obama's lawyers at the Justice Department will have to argue against the administration's own position during any future legal challenges.

Summary Judgments for Jan. 4

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