Tuesday Round-up

By Jay Willis
on Oct 13, 2009 at 8:39 am

Adam Liptak at NYT previews Black v. United States and Weyhrauch v. United States, the “honest services” cases that the Court will hear this term.  The “honest services” law is intended to ensure that officeholders and employees act solely in the best interests of their constituents and employers, but prosecutors have invoked it to address public policy problems that are not necessarily illegal – for example, a system that distributes jobs based on nepotism.  The government contends that such laws are critical to protecting intangible qualities, such as candor or loyalty; opponents believe it allows prosecutors too much discretion to pursue those whom they simply don’t like or with whom they disagree.

After Justice O’Connor’s call for the elimination of judicial elections in recent weeks, two Pennsylvania Supreme Court justices made the case for the other side on Friday, BLT reports.  Justice Seamus McCaffery, a former Marine and Philadelphia police officer, asserted that the selection of federal justices is too often “based on some political deal or connections involving a state’s senators, or result from contributions to political candidates.”  McCaffery pointed to accountability and diversity of the bench as other benefits of holding judicial elections.  Justice Debra Todd also pointed out that judicial elections prevent the long vacancies that sometimes result from contentious appointment processes.

Sentencing Law previews the three sentencing cases that the Court will hear this week.  As with any case, it notes, the magnitude of the decision will hinge on whether the Court rules based on the facts in question or decides to “resolve them in ‘big’ ways.”  The Penn Current has an article on the contributions of its students in the Penn Supreme Court clinic to the upcoming arguments in Padilla v. Kentucky.  And WaPo features this short editorial on Padilla, arguing that deportation is sufficiently significant that defendants facing it should be able to trust that they are receiving accurate information about how sentencing might affect their immigration status.

Carl Tobias at the National Law Journal reviews President Obama’s progress on his pledge to increase diversity in federal government as it applies to the federal bench.  Though eighty-four percent of federal judges nationwide are white and eighty percent are male, Tobias looks at the demographics of Obama’s nominees to the courts of appeals and district courts and praises the President for having “meticulously sought out, designated, and nominated quite a few minority and female lawyers.”  He attributes much of this success to the administration’s willingness to reach out to minority political action groups to solicit recommendations for the bench.  Sentencing Law, in its review of Tobias’s article, notes that the nominees are diverse only in their ethnic composition; “nearly all of Obama’s federal judicial nominees have involved persons who are already judges.”  The author expresses hope that the President will consider nominating those who are not already judges as his term progresses.

The San Jose Mercury-News reports on the continuing battle over the recently approved Proposition 8 in California, where its supporters are attempting to scrap the planned January trial.  Among several legal arguments, its proponents assert that the Supreme Court’s Baker v. Nelson decision, in which it rejected without comment a legal challenge to Minnesota’s law that marriage is between only a man and a woman, eliminates the need for a trial.  Opponents argue that the Supreme Court has shifted considerably on the topic of gay marriage since the 1972 ruling.  In chambers, Judge Walker indicates a willingness to go to trial to create a full record for an eventual Supreme Court review.

The New York Times features this editorial on the fallout from Gross v. FBL Financial Services.  The piece opines that requiring employees to prove that they were fired because of their age is “an unfairly difficult standard[] and . . . an unreasonable interpretation of the law,” and it calls on Congress to amend relevant legislation, as it did in response to the Court’s 2007 decision in Ledbetter v. Goodyear Tire Co., to “put the teeth back into the law.”

Finally, Tony Mauro at the National Law Journal posts a piece related to this week’s candid CSPAN Supreme Court features.  It features some fascinating anecdotes about day-to-day interactions between members of the Court and includes a winning quip from Justice Stevens.