Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

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As reported yesterday on Ya'll Politics and other sites, it appears that Gray Tollison will be the next U.S. Attorney for the Northern District of Mississippi. Tollison is a great choice. But why hasn't he emerged as a candidate sooner?

I have not called around looking for U.S. Attorney rumors in a while, so Tollison's name caught me by surprise. The last I heard was that Felicia Adams was likely to be the U.S. Attorney for the Northern District. Perhaps she is now in the mix for the Southern District post. I've also heard that Jackson attorney Greg Davis is a possibility for the nomination. But that was not a rumor with much conviction, so I am not making a prediction there.

No matter how you cut it, President Obama and the Justice Department have totally botched the two U.S. Attorney nominations in Mississippi. We are a year and a half into what may be a one term presidency and we are still waiting on both nominations. Alan Lange nailed it on this issue in April and I'm just going to quote from his take:

 Whether you are a D or R, this is a big deal. Given our lack of ability to police our own in Mississippi, we have historically disproportionately depended on US Attorneys to help deal with matters like public corruption. Steady hands with a quality backgrounds are needed to fill those seats. There is certainly no shortage of quality lawyers in Mississippi who could handle these jobs, and it's a bit of an affront to the legal community that this hasn't gotten done. With confirmation usually a few months down the road from nomination, it may legitimately be year end before Mississippi can get someone confirmed even if nominees were settled on pretty quickly. We are now running up to the point where good people may not consider taking an appointment for what would effectively be only a two year term (as one would not think that a second Obama term would be a guarantee). That's a big ask of someone to give up their entire law practice for just two years and assume all of the restrictions that a US Attorney takes on after stepping down.

That was in April. The further that we go without nominations, the more this applies.

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Mississippi Republican Senators Thad Cochran and Roger Wicker endorsed Jackson attorney Carlton Reeves at Reeves' Senate Judiciary confirmation hearing on Thursday in Washington. President Obama nominated Reeves to be a U.S. District Court Judge for the Southern District of Mississippi. The position is a lifetime appointment.

A webcast of the hearing can be viewed here. Honestly, it's about like watching paint dry and lacked the grand standing by Senators seen in Supreme Court nominee hearings.

The hearing agenda included four other nominees to the federal bench. I did not watch the entire hearing. By my count there were two Senate Judiciary Committee members at the hearing. Questioning of nominees started at about minute 77 on the webcast.

Senator Kyl of Arizona questioned Reeves about a letter that he wrote in 2007 opposing the nomination of Judge Leslie Southwick to the Fifth Circuit. Reeves handled the questioning well, pointing out that he wrote the letter on behalf of the Magnolia Bar Association. He also pointed out that as of 2007, the Fifth Circuit had only had two African-American judges in its history. In all fairness, Senator Kyl was very polite during the questioning. 

In my opinion, the endorsements by Senators Cochran and Wicker guarantee that Reeves will be confirmed in a landslide vote. The Senate vote is not expected to take place for another several months.

Despite pre-hearing speculation, Reeves did not wear his Mississippi Litigation Review and Commentary baseball cap during the hearing.

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On Monday the Senate Committee on the Judiciary scheduled Jackson attorney Carlton Reeves' confirmation hearing for Thursday of this week. In April President Obama nominated Reeves to be a United States District Judge for the Southern District of Mississippi. The hearing will be at 3:00 central time in Room 226 of the Senate Dirksen Office Building in Washington.

The hearing is open to the public and can be viewed on the internet at this link: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=4687.

Typically, the confirmation hearings for district court nominees are a mere formality. The hearing should not be confused with a full Senate vote, which probably will not take place for at least a couple of months. This is not unusual and in all likelihood, the Senate will approve Reeves' nomination by a wide margin. 

Once the Senate approves Reeves' nomination, he will probably be sworn in as a judge within a matter of a few days. Reeves' formal investiture ceremony will likely be scheduled for a few months after he actually takes the oath and begins serving as a judge. My guess is that Reeves' investiture will be sometime after the new federal courthouse in Jackson opens this Fall. 

For earlier posts on Reeves' nomination see here  and here.

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The A.P. reported Saturday on a three judge panel in U.S. District Court for the Northern District of Mississippi granting the defendant's motion for summary judgment in the lawsuit attempting to force the expansion of Congress. Here is the Court's opinion authored by Fifth Circuit Judge Leslie Southwick.

I previously discussed the case here and here.

The A.P. reported:

Plaintiffs argued that adding House seats would make it easier to create districts roughly balanced by the number of residents. The lawsuit suggested expanding the House to either 1,761 seats or 932 - an expensive, time-consuming and politically contentious proposal.

Americans currently have a negative view of Congress and probably prefer to get rid of many of the current Senators and Representatives instead of adding a bunch more to keep them company.

The plaintiffs refuse to quit and immediately filed this notice of direct appeal to the U.S. Supreme Court.

I expect the Supreme Court to affirm the rejection of the case and I expect the opinion to be unanimous.

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USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

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On Thursday President Obama finally nominated Mississippi Supreme Court Justice James Graves to serve on the Fifth Circuit Court of Appeals. Here is the Clarion-Ledger's article. Here is Graves' bio on the Supreme Court's web site.

Graves has been the front runner since Judge Barksdale took senior status in the Fall. My prior posts on the vacancy are here, here, and here.

Justice Graves is very deserving and will do a fine job on the Fifth Circuit. He was a great Circuit Court judge who earned the respect of lawyers on the plaintiff and defense side. Watching hearings before Judge Graves was entertaining. He told many lawyers that they were winning based on their brief—but were losing the lead in oral argument. It was always interesting to see who had the sense to sit down and shut up. He had little tolerance for bad cases and unprepared attorneys.

Graves was also extremely effective and under rated in getting cases settled. He could scare both sides into settling. Judge Charles Pickering was the only judge that I have encountered who was as effective at pressuring the parties into settlement.

Some may disagree, but I view Justice Graves as a moderate in civil cases on the Mississippi Supreme Court. Sometimes he votes for the plaintiff, sometimes for the defense. I expect that to continue on the Fifth Circuit.

On Monday I will look to how Justice Graves' appointment may impact the dynamics on the Mississippi Supreme Court and speculate on possible appointments for the seat by Governor Barbour.

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In nominating Solicitor General Elena Kagan to the Supreme Court this week, President Obama made a safe choice. Kagan has almost no paper trail because she has never been a judge. There is little evidence to suggest that Kagan is liberal and little about her that can be subjected to legitimate criticism. Attacks from the right will be motivated by the fact that she is an Obama nominee and little else. Barring an Anita Hill type bombshell, Kagan will be confirmed as only the fourth woman to serve on the Court.

Obama also made a safe choice in appointing Justice Sonia Sotomayor last year. Although Sotomayor was a judge who leaned to the left, she was a Hispanic woman. Republicans could not ruthlessly attack her for fear of alienating Hispanic voters.

Two Supreme Court Appointments. Two safe picks. Maybe that helps explain the delays in filling Mississippi vacancies on the 5^th Circuit Court of Appeals, District Courts and U.S. Attorneys.

It takes time to make sure that picks are safe. A lot of digging into their background must be done. And if a candidate turns out to be unsafe, then its back to the drawing board. My personal opinion is that Obama is being overly cautious. Otherwise, his administration is inept in filling vacancies.    

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There is a lot of attention today on Carlton Reeves’ nomination to be a U.S. Dist. Judge in Mississippi. Here are some:

• Clarion-Ledger article (a good article with quotes from Reeves, Rep. Bennie Thompson and Reeves’ law partner Cliff Johnson)
• Main Justice
• Ipse Blogit
• NMC
• Will Bardwell
• Y’all Politics
• Minority Defense Litigator

The nomination is getting widespread praise in these outlets and among members of the Mississippi Bar.

Meanwhile, on North Congress Street speculation now turns to whether Senate confirmation will force the frugal Reeves to upgrade his vehicle, which he has been driving since the 90’s.  [Note to soon-to-be Judge Reeves: your ride is awesome. You’re the greatest, (insert your own compliment here)].

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It took a year and a half, but President Obama finally nominated Jackson attorney Carlton Reeves to be a U.S. District Judge for the Southern District of Mississippi. The nomination has been expected from the day that Obama won the 2008 presidential election.

Here is Reeves’ profile at his firm’s web site.

Reeves is a Yazoo City native and is a graduate of Jackson State and the University of Virginia School of Law. He clerked on the Mississippi Supreme Court for Judge Rueben Anderson, was the Chief of the Civil Division of the Southern District U.S. Attorney’s Office and has been in private practice with Phelps Dunbar and his current firm of Pigott Reeves Johnson.

Here are my prior posts on Reeves.

Reeves is very popular in the Jackson Bar and the expectation among lawyers is that he will be a fair and popular judge. Reeves will join Bush appointees Judge Dan Jordan and Judge Sul Ozerden as young Southern District judges who will likely be on the bench for thirty or more years.

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In a comment to this NMC post about the Tea Party movement, Anderson gives the best definition that I've seen to date of the Tea Party:

people who sat through unprovoked war, massive deficits, and NKVD torture methods, only to flip out when a black man might raise taxes so more people can see a doctor.

I have tried to write a post on the Tea Party, but have not published it because I haven't been able to articulate what bothers me about it. The above definition captures it nicely.

Where was the Tea Party during the Bush administration? How does returning a Republican to the White House address massive deficits and government spending? Is the Tea Party intellectually honest? Is it angry white people who aren't even honest with themselves about what they are unhappy about?

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Ya'll Politics has a post about President Obama still not appointing U.S. Attorneys in Mississippi. The analysis is dead on:

Whether you are a D or R, this is a big deal. Given our lack of ability to police our own in Mississippi, we have historically disproportionately depended on US Attorneys to help deal with matters like public corruption. Steady hands with a quality backgrounds are needed to fill those seats. There is certainly no shortage of quality lawyers in Mississippi who could handle these jobs, and it's a bit of an affront to the legal community that this hasn't gotten done. With confirmation usually a few months down the road from nomination, it may legitimately be year end before Mississippi can get someone confirmed even if nominees were settled on pretty quickly. We are now running up to the point where good people may not consider taking an appointment for what would effectively be only a two year term (as one would not think that a second Obama term would be a guarantee). That's a big ask of someone to give up their entire law practice for just two years and assume all of the restrictions that a US Attorney takes on after stepping down.

I don't think the problem can be explained better than that.

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Governor Haley Barbour plans to sue to bolster his presidential aspirations challenge the constitutionality of the new health-care reform. He’s going to have to take a number and get in line.

As reported by the Clarion-Ledger, State Senator and attorney Chris McDaniel (R) and Hattiesburg attorney Doug Lee beat Barbour to the punch on Friday by filing this Class Action Complaint in federal court in Hattiesburg seeking to have the bill declared unconstitutional. Plaintiff Richard Conrad and McDaniel explained the action to the C-L:

"To be an American citizen and be forced to do anything is kind of contrary to our nature," Conrad said. "If I understand the constitution correctly, we've never been made to purchase or buy a product or service from a private entity."

The plaintiffs say they oppose a mandate, effective in 2014, that would require citizens to purchase health-care insurance or pay a fine.

"Basically, the petitioners are seeking a declaration that the Health Care Act's individual mandate requiring them to purchase health insurance from an insurance company is a violation of congressional authority under the Commerce Clause of the United States Constitution," McDaniel said.

McDaniel said the Commerce Clause gives Congress the authority to regulate commerce but does not give it unlimited power.

I don’t know about you Gregg, but I’m not going to sit here while they bad-mouth the United States of America. Gentlemen.

McDaniel’s Complaint is a hefty twenty-eight pages in length and cites a lot of cases. It’s kind of dry, so you might want to start it with a full cup of coffee. Drafting a twenty-eight page complaint is not easy, so someone put some work into it or one similar.

I am not really getting why Mississippi needs to file a lawsuit over the bill. Fourteen states already filed a lawsuit and McDaniel and Lee are taking a shot at the bill for Mississippians. I’m not sure what there is to be gained from a Barbour led action, other than political capital and attorney’s fees for the outside counsel lucky enough to get hired by Barbour. 

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In September I wrote about the federal court lawsuit to expand Congress that was filed in Oxford. Here is the Complaint in the case and a New York Times article about it. I recently checked on the status of the case, and it is still in active litigation.

 The government responded to the allegations with this motion to dismiss.  In February the plaintiffs filed this response to the motion to dismiss and plaintiff’s own motion for summary judgment. The government’s response to the plaintiff’s motion is due in May.

I stick by my earlier assessment that the lawsuit is a long-shot to succeed—at best. But the plaintiff’s briefs are well-written, which suggests that someone is taking the case seriously.

The case will be decided by the three judge panel of District Court Judges Mills and Pepper and 5^th Circuit Court of Appeals Judge Southwick. With the government's response to the plaintiff’s motion not due for over a month, it probably will be at least five months until the court rules on the motions.

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To be honest, I did not closely follow the debate over health care reform. It seemed to me like most articles and broadcast media stories focused on all the name calling by politicians and their supporters rather than the content of the legislation. But now that its passed and newspapers have been printing the actual new provisions, it looks pretty good to me.

But I hate the current state of politics in the United States. It’s so divisive and there is so little respect shown between Democrats and Republicans. Our nation’s leaders should be setting a good example of how our government works, not screaming “liar” and “baby killer” from the floor of the House of Representatives. 

And it seems that the current slate of partisan “news” shows are part of the problem. When the Rush Limbaughs, Glenn Becks and Keith Olbermanns (to a lesser extent) of the media get so worked up at people who disagree with their view, it sends the message to Americans that they should also attack people who disagree with their view.

Reasonable people can disagree about health care and other political issues. The fact that someone disagrees with me does not mean that they are a socialist, fascist, idiot, etc…. But that seems to be how many Americans think. And they are being led there by the politicians and the news media that covers them.

The whole scene makes me want to tune out of political debates altogether. I suspect that many other people feel the same way.

As soon as the health care reform passed, Governor Barbour and politicians in many other states announced plans to sue the federal government to try to have the new law held unconstitutional. At least least they didn’t announce plans to secede from the Union.

Will Bardwell and Tom Freeland have commented on the prospects of these lawsuits. I don’t understand how Congress can enact social security, Medicare and a national income tax, but not health care legislation. But I don’t have a problem with the filing of lawsuits. Sure they appear designed to ingratiate certain politicians with potential voters, as opposed to legitimate legal disputes. And why aren’t the same politicians suing to do away with social security and Medicare? I mean, can we really afford them? Of course, it would be political suicide to challenge them.  

The judicial system is in place to resolve disputes and if anyone wants to challenge a law, that is the place to do it. So good luck with the lawsuits. The suits will probably lose and the American people could turn on those who file them if they decide that they actually like green eggs and ham, but I’m sure that they have thought about that. 

But in the meantime, as Rodney King said: “can’t we all just get along?”   

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Main Justice has this story reporting that Southern District Assistant U.S. Attorney Felicia Adams is being considered for the U.S. Attorney in the Northern District. Adams was once thought to be a candidate for the open Fifth Circuit judgeship, but it’s now pretty clear that Justice James Graves will be appointed to the Fifth Circuit unless unexpected opposition emerges. Graves is deep into the vetting process with his name already having been passed on to the A.B.A.

It appears that Adams being in the running for the Fifth Circuit helped her with the U.S. Attorney post, since she was not previously known to be a candidate for the position. Adams is not well known in the Jackson legal community, but is well thought of by those who do know her.

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Today Ya’ll Politics linked to a Washington Examiner Op-ed story that attempted to link Mississippi’s judicial bribery scandal to the current health care debate. I have seen some dumb things written about the legal system. This may be the dumbest.

Try to make sense out of this quote:

There’s no reason why this situation should persist, except that the nation’s top trial lawyers continue to grease the skids in Washington, D.C., and state capitals, piling up money for Democratic politicians who in turn hinder the cause of lawsuit reform. A recent Examiner analysis of contributions from employees of the top 15 plaintiffs’ firms found that less than 2 percent of nearly $1.3 million they donated went to Republicans.

That’s why President Barack Obama and Democrats seek to prevent state-level legal reforms in their health care bill. It’s not just that the bill lacks tort reform provisions, it punishes states that adopt them by withholding federal money.

But those legal reforms are necessary. Otherwise, the natural conclusion is the world portrayed in “Kings of Tort,” the recent book by Alan Lange and former federal prosecutor Tom Dawson. The book describes how former tort baron and current federal prisoner Dickie Scruggs sued his way into a fortune and then began purchasing an entire state’s judiciary. Years before he was caught bribing two Mississippi judges, Scruggs had described as “magic jurisdictions” those places where verdict money was used to stack benches and juries.

This is another straw man argument for tort reform. But this one is worse than the norm.

Scruggs purchased “an entire state’s judiciary”? Really? Because I’ve read Kings of Tort, and that is not what the book says. According to the book, Scruggs tried to bribe two judges, one of who reported it to the feds and the other of whom is now in jail.

And frankly, the statement is a slap in the face of Mississippi’s "entire judiciary". Is the author really claiming that Scruggs purchased all the judges in Mississippi? Is he really that stupid?   

I do not believe that we have a corrupt judiciary in Mississippi. But even if we did, the solution to corruption in an elected judiciary would be:

1. prosecute corrupt judges; and/ or
2. have an appointed judiciary.

Not caps.

Politics in the U.S. is rife with corruption. My guess is that there is less corruption among elected judges than other elected politicians. But regardless, lawsuit caps do not even address judicial corruption, much less solve it.

Why would someone make this argument? According to some, the author of the article (David Freddoso) is a shill of the political right (aka Big Business). Here is an excerpt from a review of Freddoso’s book that attacked President Obama:

David Freddoso's new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate is a badly written hatchet job, full of errors and distortions and smears. The author, who works for the right-wing National Review and published his book with Regnery (which printed Unfit for Command, one of the Swiftboating attacks on John Kerry in 2004), simply fails to prove his key assertions, preferring to rely upon a bunch of false attacks, McCarthyist-style denunciations of Obama's associations, and extreme conservative attacks on abortion rights, all of it padded with lengthy digressions on topics unrelated to Obama and his record.

Freddoso's embarrassing excuse for a critique has received virtually no critical attention, thanks to the right-wing press promoting it and the compliant mainstream outlets. A fawning story in the Politico called Freddoso's book "serious" and "a fact-based critique." According to the Politico, it occupies "a small island in the often-shrill sea of criticism of Obama." In reality, Freddoso's book is one more example of that polluted sea of criticism, filled with numerous factual errors, unproven innuendo, guilt by association attacks, and lunatic conspiracy theories that would be laughable if not for the seriousness of these false accusations.

Freddoso’s latest straw man hatchet job that implicates the Mississippi judiciary is both out of line and dumb.

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It has been five months since 5^th Circuit Judge Rhesa Barksdale announced that he was taking senior status, giving President Obama a slot to fill on the 5^th Circuit Court of Appeals. After initial speculation that the position would be filled by someone from Texas or Louisiana, word leaked that the President would fill the position with an African-American Mississippian.

Mississippi Supreme Court Justice James Graves immediately emerged as the favorite for the nomination, as discussed in this post. Other names mentioned for the nomination at one time or another in legal circles include:  

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams,  
6. Circuit Court Judge Margaret Carey-McRae,
7. Jackson attorney Walter Johnson, and
8. Jackson attorney and presumptive District Court nominee Carlton Reeves.

I believe that the White House has interviewed at least several people on this list.

Speculation continues to center on Justice Graves as the front-runner for the nomination. He is the only person on  the list with appellate court experience, in addition to previously serving as a trial judge in Hinds County Circuit Court. Justice Graves is rumored to have the support of individual(s) with close ties to the White House Counsel’s Office.

Although Justice Graves may not have universal support in conservative circles, he is rumored to have the tacit approval of Governor Haley Barbour, who would like to appoint an African-American to the Mississippi Supreme Court to strengthen his 2012 presidential bid. Governor Barbour is effectively running for President now, which should be kept in mind when viewing his political moves.

One thing the Governor needs to do before the official campaign starts is to repair his glaring deficiency in appointing minorities to judge positions, as discussed here and here. Since criticism of Barbour ‘s minority appointment record became public last year he quietly appointed several African-American judges, including appointing Macolm Harrison to fill the seat of Bobby DeLaughter. If Justice Graves is confirmed for the 5^th Circuit, Governor Barbour will get to name his replacement on the Mississippi Supreme Court. Appointing an African-American to the Supreme Court would go a long way to blunt the criticism of Barbour’s record on minority appointments.

One thing that appears certain is that the White House better get moving if it intends to fill Judge Barksdale’s seat. There is less than two years until the Iowa caucuses. But the 2012 presidential race will kick off a year before that—meaning that we are less than a year from formal announcements from Republican presidential candidates. Doesn’t that sound like fun? Presidential election campaigning less than a year away?

Once the presidential election cycle begins confirmation of judicial nominees in the Senate takes a back-seat to campaigning and political gamesmanship. At some point, the Republicans will stall votes on all nominees in hopes of regaining the White House. Look for that point to be at least a year before the election in 2012. 

This means that the clock is ticking for President Obama to fill federal court vacancies. And with Supreme Court Justices Stephens and Ginsberg expected to step down this year or next year at the latest, the White House will focus on filling those vacancies. 

President Obama needs to nominate someone for the 5^th Circuit soon and press for a Senate vote this year. Failure to do so could result in a lost opportunity to add diversity to the Court and would be a black-eye for the Obama administration. It has been known for close to a year that Judge Barksdale would be taking senior status and he made his formal announcement in September. It's inexcusable that it has taken the White House this long to name a replacement--and we're still waiting.

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Main Justice is reporting today that Sen. Richard Shelby of Alabama withdrew most of his holds on presidential nominees late last night:

Shelby’s office announced late last night that the senator would drop his “blanket hold” on more than 70 nominees pending on the Senate Executive Calendar. A hold is when a senator — often anonymously — lets it be known he would oppose a unanimous consent request to bring a particular bill or nomination to the Senate floor.

Main Justice confirms that the reason for Shelby’s holds was pork projects:

The Alabama senator had held up the more than 70 nominees since Thursday over concerns he has about a tanker contract that could bring 1,500 jobs to Mobile, Ala., and over funds he is requesting to build an FBI counterterrorism center in his state. Northrop Grumman is vying to win the tanker contract, and if successful, would assemble the planes in Mobile.

Shelby's tactics remind me of something other than pork that is found in barnyards.

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According to this Washington Post article, Sen. Richard Shelby of Alabama is blocking all presidential nominees from Senate votes in an attempt to secure federal funding for two pork projects for Alabama. The block apparently applies to everything from Court of Appeals judges to more mundane positions within federal departments. According to the article:

Shelby is seeking funds for the KC-135 Air Force tanker fleet, a project that could generate thousands of jobs in Alabama. He is also demanding that the administration restore funding cut from the budget for the FBI's Terrorist Explosive Device Analytical Center, a facility to test defenses against the improvised bombs used in Iraq and Afghanistan.

Shelby placed the hold because of "unaddressed national security concerns," according to a statement released by his office. He "has made the administration aware of these concerns and is willing to discuss them at any time." The statement said Shelby was holding up "several" nominees, but the White House and Reid's office placed the number at more than 70.

Shelby’s tactic is an example of the partisanship that it significantly damaging our county. This type of partisanship is the reason that many Americans have such a negative opinion about Congress. Perhaps the most frustrating aspect of the partisanship is that it continues despite the American people disliking it.

Republicans have made it clear that they are not going to work with the President under any circumstances. In doing so, Republicans are putting partisan politics over the American people. Republicans no doubt believe that this strategy will return the party to power in Washington (if they ever lost it). It will be sickening if they are right, since it will encourage more of the same in the future. 

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Wednesday’s Wall Street Journal contains this article about pay-to-play political donations by law firms that specialize in shareholder actions. WSJ’s analysis revealed that leading plaintiff shareholder lawsuit firms donate massive amounts of cash to state officials, apparently leading to the firms getting hired to represent states in shareholder actions against companies whose shares are owned by state pension funds.

Mississippi was not mentioned in the article and none of the law firms mentioned are located in Mississippi.

The WSJ investigation:

found that 25 leading firms, their lawyers and family members contributed a total of more than $21 million in the past decade to state-level candidates and party funds, as well as to national-party groups that work to elect state officials. Less than 40% went to candidates within the law firms' home states.

Some plaintiffs firms defend the donations as legitimate:

Asked why its lawyers gave to a county treasurer in a state not its own, Labaton Sucharow said its "members and their families make perfectly legal political contributions to elected officials and candidates who support shareholder rights."

But other plaintiff lawyers admit that there are places where you have to pay-to-play:

"There are certain places where, to be in the game, you have to donate," said Steven Toll, a partner at Cohen Milstein Sellers & Toll PLLC in Washington. It has contributed only modestly—$62,000 to out-of-state candidates—and Mr. Toll says he is sure its low level of giving has cost the firm business. But "we want to be chosen on merit, not because we contributed money," he said.

Other plaintiff lawyers are afraid to not donate:

Some lawyers say they aren't sure whether contributing helps them get government business, but are afraid not to. Some track how much rivals donate so they don't fall too far behind.

Critics of the pay-to-play culture include some plaintiff lawyers:

Some lawyers say widespread political giving by plaintiffs' law firms, especially outside their home states and near the time when counsel are chosen, is evidence of a corrosive pay-to-play culture in the securities-litigation industry.

"Plaintiffs' lawyers donate because they think it buys them access to people who make decisions over how pension funds select counsel," says Fred Isquith, a partner at Wolf Haldenstein Adler Freeman & Herz LLP, a plaintiffs' firm in New York. Such giving "creates an appearance of complete impropriety," he says, and "should be outlawed."

The American bar Association also does not approve:

The ABA, in giving guidance on ethics, says lawyers shouldn't accept a "government assignment" if they made a political contribution "for the purpose of obtaining or being considered for" such a job.

The incentive to get shareholder cases is high:

In the biggest cases, legal fees can run in the [tens of] millions.

In Mississippi there have been pay-to-play allegations involving lawsuits where the attorney general hires outside counsel to assert claims on behalf of the State.

Do not look for pay-to-play to end anytime soon despite media attention and criticism from the public and bar. As long as any firms can legally make political contributions and then get hired in a big lawsuit, they will do it. Even firms that despise the system will make the donations because they fear that they have to in order to get the cases.  

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As Jeffrey Toobin asks where the judges are, this Houston Chronicle article from last week confirms that President Obama is dragging his feet at filling judicial vacancies and nominating U.S. Attorneys.

The stats tell the story. By this point in their administrations Presidents Clinton and W. Bush had nominated 75 and 66 U.S. Attorneys respectively. Obama has nominated only 42.Of the 42 that have been nominated, 31 have been confirmed.

The article notes that the failure to fill the slots has negative consequences:

“There's no real boss. It means what will be done is the routine. You need a guy who can move the team, and he has to be on the president's team,”

In Mississippi there have been no rumblings of political fights with respect to the vacant U.S. Attorney positions or the vacant U.S. District Court position and 5^th Circuit Court of Appeals position. Blaming Republicans for the slow pace at filling slots rings hallow when the administrations is going so slowly at making nominations and 75% of those nominated have been confirmed.

Like Mississippi, Texas has all its U.S. Attorney slots still open. The Chronicle article suggests that political fighting is the cause:

A classic political stalemate pitting Texas' Democratic congressional delegation and Obama's administration against Texas' pair of Republican senators is partly to blame for the slowed process here. Similar fights in other states, as well as an especially cautious presidential nominating process, have left most of the nation without freshly appointed lead federal prosecutors, who direct law enforcement priorities and approve work on the big projects.

People understand that the administration has been busy with the health care bill, the wars, the terrorist attack, etc.. But the White House has to be able to multi-task and get things done. If President Obama continues to delay in making nominations, then there will be a growing risk that Republicans can stall long enough to prevent Obama from filling all the vacancies that he inherited or came open in his first year. To Democrats, that would be unconscionable.

Adding to the frustration level for Democrats is that the President could fix the problem on his end in a matter of weeks. He could set a meeting date a few weeks out when Obama and his advisors would review the candidates for each vacancy and the President would make a decision. If the President does not have people working for him who can meet such a deadline, particularly after this long already, then he needs a better staff.

Democrats are frustrated. Republicans are giggling behind the President’s back and the President is starting to look like the Cowardly Lion and a possible one term president. That all needs to change in a hurry. 

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On Monday Supreme Court Justice Antonin Scalia spoke to a group of 600 people in Jackson. Scalia made an interesting comment about the trend of all Supreme Court Justice appointments coming from the bench of lower courts:

Scalia said there were three justices with no prior judicial experience when he was nominated to the court by President Ronald Reagan. Today there are none.

"Every aspect of your career broadens your outlook and gives insights that you wouldn't have in some other aspect of the legal practice," Scalia said. "That's why I think it's good for the court to have people of varying backgrounds."

I think that is a valid point, but I do not see the trend changing anytime soon.

An avid outdoorsman, I’m sure that it was just a coincidence that Justice Scalia spoke in Mississippi during the height of duck season. Scalia is rumored to he hunting in the Delta with a group that includes several Mississippi attorneys and judges.

Below are some of the quotes that I envision coming from Scalia’s duck blind:

• “Great shot, Justice.”
• “I think you were the one who got him Justice”
• “You got another one Justice”
• “I couldn't have, I didn’t even shoot at that one.”
• “You’re right Justice. You’re always right.”
• “I think you were too far to the right on that shot Justice.”
• “Thank you for not inviting Dick Cheney—I didn't want to get shot this week.”

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It's only been a week and a half since my last post on the glacial pace of President Obama's judicial and U.S. Attorney appointments, but coverage is growing in the national media.

The process reminds me of the photo to the right.

On Monday I saw this Slate article tilted "The Bench in Purgatory." The Slate article blames Senate Republicans for the delays:

It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama's agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so.

This afternoon the WSJ Law Blog had this article titled: "Blame Game: On Obama's Judicial and U.S. Attorney Nominees." The article cites the Slate article and comments:

But for now, what we can say from our own little corner of the world is that the process for replacing vacancies on the federal bench and among federal prosecutors hasn’t exactly been a quick one.

Last week I said this about the President's appointments and Republicans:

If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better.

My personal opinion is that if Senate Republicans are sandbagging votes on Obama's nominations, then it is a political mistake and symptomatic of a party that has lost its moorings. But regardless of that, I don't see how the White House can blame Republicans for the fact that the Obama is not making appointments. It's not the Republicans' fault that Obama has not nominated 57 of 90 U.S. Attorney slots or most of the 90-plus vacancies on the federal bench.  The fact that the Republicans are playing hard ball should make it easier to decide on nominees--not harder. If the Republicans are going to oppose everyone, then why spend time looking for someone who Republicans might agree to? To borrow a football analogy, it's time for the White House to make some half-time adjustments. They need to forget about the Republicans and make the nominations for these positions.

If the anniversary of Obama's inauguration arrives and there are still massive vacancies, look for Republicans to use it as evidence of the President's ineptness. It's time for the President to head the Republicans off at the pass and name appointees/ nominees for all vacant judicial and U.S. Attorney positions. Once that is done, then the President and Democrats can blame confirmation delays on Republicans.    

Finally, last night Mississippi blogger Will Bardwell had this post citing statistics that President Bush was slower filling appointments than Obama. Is that what we're already down to with Obama? Comparing his presidency to perhaps the worst president EVER?  I was hoping for a presidency that compared favorably with administrations that were significantly better than Bush's. 

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Today's Washington Post has this article about President Obama's tortoise-like pace for making appointments to the federal bench. Key points include:

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

The White House predicts that nominations and confirmations will pick up soon.

But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.

I agree that the President is moving too slowly. I'm not seeing any caution. Even if there is caution, it is misplaced. If the President thinks that Senate Republicans will give his nominations a pass because he appoints people his administration perceives as moderates, then he is kidding himself. Republicans play politics for keeps and are going to oppose the President's nominees for political reasons, regardless of who they are. 

It is going to take a long time for Obama to get his appointees through the Senate. The quicker the process starts the better. Nine months have already been wasted. Obama does not have three more years to get his appointments through. He has about two, since Senate Republicans will go into the four-corners during the election year in hopes of winning the election and gaining the appointments.

 I read somewhere that President Bush took little interest in his judicial appointments. That makes it even more galling that his administration was more efficient at making appointments than Obama's. The President taught Constitutional law. You would have thought that he would make naming his appointments and getting them confirmed a priority.  

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In August I posted about a Clarion-Ledger article discussing Governor Barbour's failure to appoint a single African-American judge to the state court judiciary since taking office in 2004. According to this new article in the Jackson Advocate, Barbour's record in minority appointments to the state judiciary is now 0-24. To put it in perspective, if Barbour's next appointment is African-American it will raise his batting average for minority appointments from 0% to 4%.

The African-American population in Mississippi is 37%. In order for Barbour to raise his appointment batting average to over 37%, he will need to appoint fifteen African-Americans in a row without a single white. Needles to say, that is not going to happen.

There are currently two open positions in Mississippi where Barbour will make an appointment: Judge DeLaughter's seat in Hinds County Circuit Court and the late Judge Middleton's seat in the Chancery Court for the Seventeenth District (Claiborne, Jefferson, Adams and Wilkinson counties). Appoint two African-Americans here and Barbour can raise his average to 7.6%. While 2 out of 26 is still ridiculously low, it would not have the same ring as zero. 

It does not take a rocket scientist to see that Barbour is positioning himself for a presidential run. But his record on minority judicial appointments will be fodder for those voices, many from within conservative circles, who say that a white Mississippian cannot be elected president. While I disagree with that general statement, I do agree that a white Mississippian who can be portrayed as stuck in the 1960's cannot be elected president. 

I'm not a big Haley Barbour fan, but it would be pretty cool to see a Mississippian president. Governor Barbour has some work to do on his minority appointments if it's going to be President Barbour.  

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This post at Ya'll Politics raises this Washington Times article about the $6.2 million budget shortfall for the American Association of Justice (AAJ), which is the organization of the plaintiffs bar. The article states:

The trial lawyers lobby has been awash in debt and bleeding members - just as it embarks on a national campaign to block any clampdown on medical malpractice lawsuits as part of President Obama's health care overhaul.......

The most striking evidence of its financial woes is a swift decline in income, which resulted in a more than $6.2 million deficit in its operating budget for the fiscal year ending July 31, 2008, the most recent year for which data are available.

The biggest hit to its books was in membership dues, which dropped from $28.6 million in 2005 to $19.2 million in 2008, according to the annual AAJ financial report for that fiscal year filed with the Internal Revenue Service.

The article also quotes former president of the Mississippi Association of Justice Joey Diaz:

"That is our number-one priority: to strengthen our membership," said Joey Diaz, a member of the AAJ executive committee, speaking by phone from his law office in Madison, Miss. "We have a number of people working on membership and we have reversed that [downward] trend and are starting to move forward again."

The fact that AAJ is hurting due to decreased memberships and donations is not surprising. Plaintiff lawyers are not making as much money as they were five to ten years ago. Some aren't making any money, at least not on contingency cases. A decade ago there were many mass tort-like cases where lawyers on both sides made a ton of money: asbestos, fen phen, tobacco, life insurance sales practice litigation, etc... Juries and appellate courts were also considered more plaintiff friendly. This meant that there were more plaintiff lawyers willing to file cases, including medical malpractice and products liability cases against auto manufacturers and other corporations. For whatever reason, cases during that era often settled for large amounts or were tried with a large jury verdict. Now, you hardly ever hear of a big settlement. And the big verdicts, at least in Mississippi, are in the seven figures rather than eight or nine. I suspect it's similar in most states.

With juries and judges becoming more conservative, many plaintiff lawyers have gone out of business or returned to their divorce or criminal defense practices. Those lawyers probably no longer feel that supporting AAJ matters to their practice. Most of the plaintiff lawyers who survived the downturn find themselves working harder, taking bigger risks and making less money. Some of these lawyers probably also no longer feel like supporting AAJ matters. 

Ultimately though, a demise in the AAJ is bad for all Americans. The Chamber and other public relations and lobbying efforts funded by corporate America dwarf the efforts of the AAJ. Who do you think can spend more on lobbying: (1) "rich" plaintiff lawyers; or (2) GE, Citi, Exxon, Ford, Microsoft, etc? Look at what the executives of those corporations are making in compensation and ask yourself, are there any plaintiff lawyers making that kind of money? In fact, look at this link to the insider transactions at Exxon in just the last few months.

Just in a few month period Exxon executives were steadily selling millions in stock. Stock that they apparently were able to buy in the form of exercised stock options at $40 a share and immediately sell at $70 a share. I know, I know. They gotta pay to keep their talent. I'm sure highly paid corporate executives are just itching to start their own small business. So if the corporations can pay that kind of money to executives, imagine what they can pay to fund efforts to shut down lawsuits that cost money and interfere with the corporation's ability to pay executives, errr, reward shareholders. And I'm not picking on Exxon. Look at insider transactions of other big corporations and you will see the same thing as far as compensation and stock sales. While GE owned CNBC and other mass media talk Americans back into the stock market, corporate insiders are net sellers at unprecedented levels. But back to the AAJ.

The AAJ, despite being clearly over-matched, provides balance to the huge influence of big business. I believe that the vast majority of Americans want there to be balance. Except for the fringe nuts on both ends of the political spectrum, most Americans believe that opposition helps keep things honest. Or as Haley Barbour described in a recent speech, on the up and up. Hopefully, lawyers who are pulling out of AAJ will keep this in mind and contribute to the cause.    

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Back in July I agreed with Alan Lange that, contrary to published reports, Christi McCoy will not be appointed U.S. Attorney for the Northern District of Mississippi. This week Patsy Brumfiled with the Northeast Daily Journal again predicted that McCoy will get the nod:

Informed sources say the U.S. Department of Justice has begun its work on President Obama's nomination of a new U.S. Attorney for North Mississippi.

Reports continue to say the choice will be Booneville native Christi R. McCoy, 40, who practices in Oxford.

I have not heard anything to change my July prediction that McCoy is not going to get the appointment. It might not matter anyway. At the rate that President Obama is making appointments it might be President Huckabee who gets to fill this slot.

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Point of Law has this post about Governor Barbour speaking about the judicial bribery scandal in Mississippi. The original question appeared to be about tort reform, but Barbour worked in the scandal:

BARBOUR: I don't think it was related to the tort reform, but as you know, some of the more prominent plaintiffs' lawyers in my state got into trouble. ...

I hate it. It's bad for the court system, it's bad for everybody. One of the things I really believe is, the public has to think the legal system is on the up and up. I mean, that's just really, really important.

Once in my career, I was the deputy chairman of the International Democrat Union, which despite its name - Democrat and Union - is the organization of conservative parties of the world that President Reagan started with Mrs. Thatcher and Chancellor Kohl. And I was struck by how much people in other parts of the world realized the importance of the rule of law in America. And it is not that way everywhere. There are advanced countries that are very prosperous that don't have nearly the confidence, faith and commitment to the rule of law that we do.

And for us, an advantage for us is the little guy generally believes that the court system is on the up and up.

All of sudden we get judges getting convicted of taking bribes and lawyers, good lawyers - they may have been plaintiffs' lawyers and they may be on the other side from me, and politically and everything else - but they're good lawyers. To me it's sad, 'cause it's bad for what we all ultimately want in America, and we do want the rule of law, and we want a system that let's us progress. 

But the tort reform battle and the actual enactment of tort reform I don't think had any role in that. It was other stuff. Most of the litigation had actually started before.

MEESE: I understand that. I have always felt that, to some extent at least, the tremendous amount of money that came to be involved, and the way that the trial lawyers were holding their seminars and dealing themselves, led to the arrogance that led to people like Dickie Scruggs and Bill Lerach to have the bribes and so on...that the money in effect was so great for these trial lawyers that it almost corrupted the system and that's what led to some of these things that we've talked about.

BARBOUR: It's maybe a monetary takeoff on "Power corrupts and absolute power corrupts absolutely."

I don't always agree with Barbour, but he is dead on with his comments that it is important that the public believe in the integrity of the judicial system. The same applies for the bar. As a litigator, I realize that my client will not always win. But it is imperative that we be able to trust the process. Of course, according to DOJ there is no public interest in the judicial bribery scandal.

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The Clarion-Ledger ran an article today on the lawsuit filed in Oxford seeking to expand the House of Representatives from the current 435 members to either 932 or 1,761 members. I've got to go with Representative Gregg Harper on this one:

Some, including 3rd District Republican Rep. Gregg Harper of Pearl, think the restructuring would cost too much money.

With rank-and-file members earning $174,000 per year, taxpayers pay more than $75 million per year total in salaries. If there were 932 congressmen, the overall amount would increase to more than $162 million. If there were 1,761 representatives, the total taxpayer cost could be more than $300 million.

"Clearly, this concept would greatly increase the size and cost of our federal government at a time when we should be reducing spending," Harper said.

My law school constitutional law professor George Cochran also commented on the suit. Below are his comments and my take:

Ole Miss constitutional law professor George Cochran calls the suit "innovative," but questions how successful it will be.

Translation: It's a wing nut lawsuit and they are going to lose. Oxford is where innovative lawsuits go to die. They should have filed in San Francisco or Manhattan.

"I'm not sure the right defendants are being sued," Cochran said. "There are a lot of procedural hurdles that could lead to a dismissal."

Translation: This one will be over quick.

Cochran said he wasn't sure who the right defendant would be until he did more research. He said, however, the federal courts may not want to make a ruling on this case because typically the judicial branch cannot tell the legislative what to do and vice-versa.

It would be like a federal judge ruling the war in Iraq is unconstitutional, Cochran said. "That's just not going to happen," he said.

Translation: If this case were an animal, it would be a squirrel.

Cochran also believes the court would take into consideration the cost, as well as how difficult the restructuring would be if the lawsuit were successful.

Translation: Just what Americans don't want--more Washington bureaucrats.

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A few weeks ago in this post I speculated that 5th Circuit Court of Appeals Judge Rhesa Barksdale would soon take senior status. The Clarion-Ledger confirmed the news in this article today. Judge Barksdale will continue to work, but will hear a reduced case load.

This creates an opening on the 5th Circuit. Currently on the 5th Circuit from Mississippi are Barksdale, Judge Grady Jolly and Judge Leslie Southwick. Since all three are conservative, the vacancy gives President Obama the chance to appoint the only non-conservative Mississippian on the 5th Circuit. But I am hearing that a Mississippian may not get the slot at all with it instead going to someone from Louisiana. I hope that is not the case.

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The WSJ Law Blog has this story about Bank of America deciding to no longer enforce arbitration clauses contained in customer agreements. The article states:

Bank of America, based in Charlotte, N.C., is the first major bank to announce that it is withdrawing from all mandatory arbitrations in consumer-related businesses. Other banks previously have said they are studying their policies.

“We think arbitration is a very fair way to resolve the issue. A lot of our customers did not feel the same way, so we decided to make a change,” said a Bank of America spokeswoman.

In July, JPMorgan Chase, one of the nation’s largest credit-card issuers, announced it would no longer submit disputes to arbitration and was reevaluating the inclusion of arbitration provisions in its consumer contracts.

All the news comes in the wake of congressional testimony on arbitration as well as a Minnesota Attorney General’s agreement in which the National Arbitration Forum decided to stop hearing consumer arbitration cases.

It's like French generals have taken over the defense of arbitration agreements. We surrender!! We surrender!!

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The U.S Census Bureau web site states that thirty-seven percent of Mississippians are black. According to this article in Sunday's Clarion-Ledger, Governor Barbour has appointed twenty state court judges in his tenure with all twenty being white. That's a really bad statistic for a man positioning himself for a presidential run. The Republican Party's Southern Strategy appears dead after the last presidential election. Getting most of the white votes in the South isn't enough anymore. Anyone who wants to be president is going to need to pick up minority votes somewhere. With a stat like this, blacks are out as potential Barbour supporters. And are Hispanics going to think that Barbour will be a good president for them with a stat like this? Probably not. This is the type of statistic that will get major national media attention should Barbour run for president. I am on record as stating that Barbour has a legitimate shot in 2012, but stuff like this could kill him.

With disgraced Judge Bobby DeLaughter's seat now open Barbour could begin to rectify this horrible record by appointing a black lawyer to fill DeLaughter's seat. But the leading candidates rumored to be on Barbour's list are all white. Given the importance of the seat it would be shocking if Barbour appointed a black to the position and would be the clearest signal yet that Barbour is positioning himself for a 2012 presidential bid.

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Main Justice has an article today about the Northern District U.S. Attorney position that once appeared certain to be going to Christi McCoy. Here is the article. The article does not really shed much light on the situation other than suggesting that McCoy is still a possibility for the job, which I am hearing is not the case. The article does mention that Patsy Brumfield, who originally disputed Ya'll Politics' report that McCoy would not be nominated, now admits that there are problems:

But even Brumfield, who originally refuted reports that McCoy’s candidacy had run off the rails, has concluded that “something” is amiss. But what?

The article states that Curtis Ivy is campaigning for the position and that it could still go to McCoy. It's my understanding that McCoy ran into fatal problems unrelated to Joey Langston in the screening process and is out. I also understand that Ivy is trying to get the position, but is no shoe-in at this point even though other names have not emerged.

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It's been six months since the inauguration of President Obama and he has nominated only three of seventy-nine open federal judge positions. This website lists each open position and its status. I heard that Obama would be more interested in federal judge positions than President Bush, because President and Mrs. Obama are both lawyers. But this supposed interest has not translated into speed in filling vacancies.

Judge Barbour took senior status three years ago and we are still waiting on the confirmation of a replacement. At the end of Bush's term he nominated a Meridian lawyer, but the Senate never confirmed him. All indications are that Obama will nominate Jackson lawyer Carlton Reeves for the position, but no one seems to know when the nomination will occur.

On a related topic, by all accounts Judge Barksdale will take senior status with the 5th Circuit Court of Appeals in the near future. While it's natural to conclude that his replacement will be from Mississippi, I am hearing that there is a likelihood that the nomination will go to a Louisiana lawyer or judge recommended by Senator Mary Landrieu (D). This would be a real blow to Mississippi and much less likely to occur if one of Mississippi's senators was a Democrat.   

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This is my first update in a week due to an ongoing trial in federal court in Jackson. I have another busy week ahead and will return to more regular blogging next week. Usually July is very slow in the legal world, but this year has been a notable exception. A huge story this week was the NAF completely pulling out of consumer arbitrations and the AAA pulling out of credit card consumer arbitrations. There is a clear indication that mandatory consumer arbitration will be dead soon. Other commentators who say that it's too early to tell are wrong. They remind me of people who go to the beach when a hurricane is about to hit to make sure it's for real. I saw the arbitration backlash coming several years ago, but it is arriving years before I expected. It appears that the NAF, and perhaps AAA, fear criminal investigations regarding the administration of arbitration claims. I expect there to be a lot more to come out about crooked arbitrations and people to go to jaiI. 

I give mandatory arbitration less than a year before Congress shuts it down. Mandatory arbitration is not popular with judges--even judges who enforce arbitration clauses. So don't expect the judiciary to rule that a Congressional ban on arbitration is unconstitutional. Any plaintiff lawyers with unfiled cases with arbitration clauses should sit on the cases as long as possible in order to allow arbitration's final demise.

On another subject, despite my trial I stayed up late one night this week reading Tim Balducci's deposition taken in Eaton v. Frisby. Balducci's deposition was fascinating. Chase Bryan at Forman Perry took the deposition and I do not think that was a coincidence. Bryan has been described as local counsel on the case for a Philadelphia firm and is below Alan Perry at Forman Perry in the defense pecking order. But Bryan and Balducci were law school classmates at Ole Miss in the early 90's and I could sense their familiarity in the deposition. One example is that Balducci repeatedly referred to Bryan as "Chase", but referred to Eaton lawyer Mike Wallace as "Mr. Wallace." It is rare for local counsel to receive such a marquee assignment and the move was a smart one. Bryan did a good job taking the deposition.

As for the deposition itself, I believe that Balducci was literally crying when he described his conduct as the biggest moral and ethical failure of his life. Two things lead to this conclusion: (1) the clearly emotional testimony and  (2) the fact that Bryan immediately said "lets take a break." It is customary in depositions to take a break to let a witness in tears compose themselves.

Balducci basically described himself as the brains of the operation in the Wilson v. Scruggs case. He made Joey Langston sound somewhat buffoonish. I don't completely buy the image of Balducci that he seems to have for himself. I get the impression that Balducci believes that he fell off the tracks morally when he got involved in the Wilson case. But I can't understand what he was doing working as an associate for Joey Langston at the time. Before going to Langston's firm Balducci had his own practice with Kent Smith for years. The two had been joined at the hip since law school and I've never heard an explanation for what led to their separation. Balducci apparently went back to work for Langston thinking that it would lead to a full partnership. If that was the case, Balducci should have known better.

Wealthy lawyers like Langston rarely ever cut someone in with a large piece of their practice. The state is littered with plaintiff lawyers who started working for a prominent plaintiff lawyer only to eventually go out on their own when partnership promises never materialized. Unlike in defense firms, it's extremely rare to see the same core group of lawyers at a plaintiff firm for years. Merkel and Cocke in Clarksdale is a notable exception.  

Balducci testified that he was the source of the $50,000 in cash that Langston first paid to Peters. What in the world was Balducci doing with $50,000 in cash sitting around the house? Keeping that much cash around is a bad idea for many reasons and wreaks of tax fraud.

As to the impact of Balducci's testimony on Eaton v. Frisby and the DeLaughter trial, it's hard to say. The vast majority of Balducci's testimony was based on hearsay that would not be admissible at trial. Mike Wallace skillfully established this point near the end of the deposition. But if Balducci's testimony is corroborated by Ed Peters, then I do not see how DeLaughter can be acquitted. And even if DeLaughter somehow escapes conviction, I don't see any path for his to return to the bench. It looks like the best case scenario for him is that he exercised terrible judgment in communicating with Ed Peters and was unwittingly used as a pawn by Peters, who he fawned over in his book It's Never Too Late.

As for Frisby,  Balducci didn't know anything about it or the lawyers in the case who he was asked about: Mike Allred, Rueben Anderson and Fred Banks. It's unclear what Judge Yerger is going to do in the case, but the longer he goes without dismissing the case for attorney misconduct the less likely that it will be dismissed.

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The Leisha Pickering alienation of affection lawsuit is bringing attention to this little used cause of action. The theory is without question alive and well in Mississippi. In August 2008 the Mississippi Supreme Court issued its opinion in Pierce v. Cook, a case that involved claims for alienation of affection and intentional infliction of emotional distress. A Rankin County jury rendered a $1.5 million verdict for the plaintiff and the Supreme Court affirmed. The Court listed the elements of an alienation of affection claim as:

1. wrongful conduct of the Defendant;

2. loss of affection or consortium and

3. causal connection between the conduct and loss.

The plaintiff's burden of proof is preponderance of the evidence--not a higher standard such as clear and convincing evidence.

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Earlier this week Alan Lange at Ya'll Politics reported that Christi McCoy is no longer in the running for the appointment for U.S. Attorney for the Northern District. As mentioned in this earlier post, Patsy Brumfield at the N.E. Daily Journal disagreed. I did not opine on the issue in my earlier post, but I am now going on the record saying that Lange is right and that McCoy will not be appointed. I have two sources who both told me that McCoy's nomination hit an insurmountable snag. My sources are less certain that Curtis Ivy will be appointed for the slot, but he does appear to be in the running.  

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As reported by the Clarion-Ledger and at Ipse Blogit, Leisha Pickering, otherwise known as Mrs. Chip Pickering, is suing Elizabeth Creekmore Byrd for alienation of affection. This is a cause of action where you sue the person your spouse had an affair with for busting up your marriage. The action is not recognized in many states, but is in Mississippi. The Mississippi Supreme Court recently affirmed a large jury verdict against a lawyer in one of these cases. You can read the Complaint at this Ipse Blogit post and read Matt Eichelberger's comments on the Complaint at this post.

Leisha Pickering is represented by former Mississippi Supreme Court Justices Chuck McRae and Oliver Diaz. The case is pending in Hinds County Circuit Court before Judge William Coleman, who is presiding over the cases that would have otherwise been assigned to Judge DeLaughter. The Defendant's family owns Cellular South, so she apparently has the money to satisfy a judgment. Alienation of affection lawsuits are typically only filed against wealthy individuals, since liability insurance policies do not provide coverage. You see a lot of doctors and lawyers getting sued under the theory. There have been rumors over the years of prominent attorneys and executives settling alienation claims, including a former CEO who is now in jail.

You would expect this case to be settled quietly. But divorces and the related fall out are messy, so if Leisha Pickering is out for blood rather than money, then this will be one of the most watched trials in the history of the State of Mississippi. Cameras are allowed in the courtroom in state court so the whole proceeding will probably be televised. Mississippi media is largely ignoring major litigation such as Eaton v. Frisby and the Colson Litigation. But you can bet that they will cover this case, since scandal sells.

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Ya'll Politics has this post this morning stating that Christi McCoy is out as the U.S. Attorney appointment for the Northern District and that the Curtis Ivy of Oxford is in. According to Ya'll: 

Today a source with insider knowledge tells YallPolitics McCoy's "deep" ties with Joey Langston, and other issues, stalled her possible nomination. The source then went on to say Curtis Ivy, who has been a contender since the beginning, is highly regarded by many involved.

YP could not independently confirm Ivy's chances, or whether McCoy's ties actually prevented her from becoming the U.S. Attorney, however the source has been spot on with many other issues, and finds him credible enough to worthy this post.
 

Ivy is an African-American assistant U.S. Attorney in the Northern District who has a good reputation. In June, it was widely reported that McCoy's name was already submitted to the White House. I discussed it in this post. If McCoy is out, it is a recent development that apparently was based on a decision made by the White House. Of course, the White House could make such a decision based on anticipated Republican opposition after floating the name to Republican Congressional leaders.

It has long been presumed that one of Mississippi's U.S. Attorney seats would go to a white and the other to an African-American. With McCoy being white, speculation in the Southern District focused on Natchez attorney Deborah McDonald. One question now is that if Ivy is in in the North, does it open the door in the South for someone like Cliff Johnson. There will be a lot of speculation on these issues in the coming days. 

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The Clarion-Ledger has a story today on former Mississippi Supreme Court Justice Oliver Diaz's defamation lawsuit against former U.S. attorney Dunn Lampton. The case focuses on the government's investigation and prosecution of Diaz and his wife Jennifer while Lampton was U.S. Attorney for the southern district of Mississippi.

Oliver Diaz was acquitted of all charges in two trials and there was pretty much universal agreement in the legal community that the charges were extremely weak. In fact, many people believe that Paul Minor was not convicted in his first trial because he was tried with Diaz and the charges against Diaz were so weak. The fact that Diaz was charged also made the charges against Minor look more politically motivated than they otherwise would have.

The story was better covered yesterday on local blogs, including NMSCommentor.  Mr. and Mrs. Diaz are represented by former Supreme Court Justice Chuck McRae. You have to figure that the lawsuit, which was technically initiated by Lampton's cousin, is about more than money.

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This article in the Northeast Mississippi Daily Journal confirms that Rep. Bennie Thompson submitted to President Obama Christi McCoy as the next U.S. Attorney for the Northern District of Mississippi. McCoy is originally from Booneville and practices in Oxford.

The article mentions Forest attorney Constance Slaughter-Harvey as the potential nominee in the Southern District. That would be interesting, since Slaughter-Harvey is rumored to have removed her name from consideration. More recently, Deborah McDonald of Natchez is rumored to be the leading candidate.

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Several recent newspaper articles and columns speculate on a possible Haley Barbour presidential run in 2012. Here are links to an A.P. article, a short Washington Post article, and a David Hampton column in the Sunday edition of the Clarion-Ledger. The Washington Post story contains the following quote:

As one GOP operative who forwarded today's invitation to the Sleuth put it, "Here's Haley Barbour making some 2012 moves. When you start going to Iowa and New Hampshire, the writing's on the wall."

Speculation is growing about whether Barbour could win the Republican nomination in 2012 and, if so, whether he could win the general election. While I am not laying the odds on either happening, he looks like a viable candidate for several reasons. First, look at history. Jimmy Carter, Bill Clinton and Barack Obama all arguably came more out of nowhere to win the presidency than Barbour would. Barbour looks more plugged in with his party than Carter or Clinton and faces less competition than Obama in getting the nomination.

My second point is Barbour himself. People criticize his heavy southern drawl, but unlike our last two term president, no one ever says that he sounds or is stupid. He is smart and interviews well. He looked and acted like a leader in the days following Katrina--unlike Louisiana and federal leadership.  

Third, look at the competition. Palin? Gingrich? Romney? You can make just as good a case against everyone else as against Barbour. 

Finally, look at how the parties select their nominees. It's a crap shoot. Win Iowa and New Hampshire and everyone else winds up broke and goes home. McCain looked dead as the nominee for months and then he wiped out the field. Most states don't even have a real say in the nomination. Last year the democratic primary was the first time I can remember it not being over by the time Mississippians got to vote.

The nomination process is like a football game decided mid-way through the first quarter. Arkansas State might score an early touchdown and take the lead over Florida, but the game isn't called with Arkansas State declared the winner. But that's basically how the nomination process works. If Haley Barbour--or anyone else--is winning early, then they can win the nomination. And while it's true that not anyone can be in the lead early, Barbour is among the people who can be. So I don't see how you can discount Barbour as a real possibility.  

Win the nomination and Barbour can win the presidency. The 2012 general election will likely be about the nation's feelings about the Obama presidency. The Republican nominee will not matter nearly as much as how the nation feels about Obama.   

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According to an article in today's Sun Herald:

U.S. Rep. Bennie Thompson’s office has made nominations for U.S. attorney positions in Mississippi and awaits action from President Barack Obama, who must fill a large number of open slots.

Thompson’s office wouldn’t provide any details of who was recommended. The recommendations were made to the president between January and March. For now, they wait on word from Washington, where those recommendations are being vetted.

The story referred to speculation on blogs regarding the candidates for the southern district nomination, citing Jackson attorney Kathy Nester, Natchez attorney Deborah McDonald and Jackson attorney Dorsey Carson as the potential nominees for the southern district slot. A Thompson staffer confirmed that the process is still in the early phase.

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After the 2004 presidential election it appeared that the Democratic Party was dead as a national force. If they could not beat Bush in 2004, they simply could not win on the national scale. Regardless of your political views, it was obvious that the Republicans played the political game much better than the Democrats. But what a difference four years and Barack Obama makes. Now people are saying the same things about the Republican Party. Simply put, President Obama and his team do not get out politicked by the the Republicans.    

With the appointment to the Supreme Court Monday of Sonia Sotomayor, Obama made a political maneuver that a few years ago Democrats appeared incapable of making. Here are two articles discussing the politics of the appointment: 1, 2. The beauty of the appointment was that it both played to Democratic base and threatened to further drive a wedge between Republicans and swing voters. One article noted that: 

He played smart base politics with the historic selection of a Hispanic (a first) and a woman.

The other article noted:

By nominating Circuit Judge Sonia Sotomayor to be the first Hispanic justice on the U.S. Supreme Court, President Barack Obama all but dared Senate Republicans to risk alienating Latinos by trying to block her confirmation.

It was a foregone conclusion that Obama would appoint someone who Republicans viewed as a "liberal." By appointing a Hispanic woman ,Obama should strengthen Democratic popularity with Hispanic and women voters. The more Republicans attack Sotomayor, the more they risk alienating Hispanic voters, a group who Republicans are surely not ready to give up on.

While Senate Republicans will be under pressure from their base to attack Sotomayor, that would be politically foolish. Baring an unforeseen scandal, Sotomayor will be confirmed by the Senate. It makes little sense for the Republicans to alienate swing voters in order to pander to a base who they cannot lose. What is the Rush Limbaugh wing of the party going to do, start supporting Obama? The President will likely get to fill at least two more seats on the Court, so the Republicans should save their attacks for the next "liberal" appointment.

Of course, the fractured Republican Party may cave to its base and attack Sotamayor. If so, look for the attack dogs to be senators from red states like Mississippi that are locked up for the Republicans and have a low Hispanic population. Republicans should instead focus on regaining the party's identity and determining who will lead the party going forward.    

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It has now been over four months since President Obama's inauguration. But the President has yet to make his appointments in Mississippi for U.S. Attorneys, U.S. marshals and the vacant federal district judge position. Here is a link to a National Law Journal Article that discusses the appointment process for U.S. Attorneys.

There are a total of ninety-three U.S. Attorney positions in the nation. According to the article, state Democrat leaders have made forty recommendations for U.S. Attorneys to the White House with only six appointments so far. Of the forty recommended, the Justice Department has conducted required screening interviews of only twenty. A former Bush administration official explained that the process takes a long time to complete:

Fulbright & Jaworski partner Michael Battle, former director of EOUSA during the Bush administration, said the speed of the process depends on the layers of local-level vetting, as well as the mechanism for identifying potential candidates, which varies by state. "It takes the better part of six, eight, 10 months, as the White House gets more comfortable with doing this," said Battle. "It just takes time."

Based on this statement, it could be this fall before the appointments of Mississippi's two U.S. Attorney and marshal slots.

As for the district judgeship position that is presumably going to Jackson attorney Carlton Reeves, the article sheds indirect light on the process. The article states that the White House rejected Republican pleas to be included in the appointment process in states like Mississippi that have two Republican senators. This suggests that Senators Cochran and Wicker will not be involved in the process and, therefore, unable to block the appointment of a Democrat such as Carlton Reeves. It seems likely that Democrat leaders have already recommended Reeves and that the vetting process is underway. With a summer recess looming for Congress, however, Reeves will probably not take the bench until sometime this fall at the earliest. 

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The Shreveport Times has an article about a local man's lobbying efforts in support of the Arbitration Fairness Act of 2009. Forced to arbitrate a claim against the builder of a bad home, the man was awarded less than the actual cost to repair the home. The arbitrator then destroyed the evidence so that the man could not appeal. Referencing the battle in Congress over arbitration, the article states:

Supporters of the act claim mandatory arbitration clauses force people into unfair situations where the cards are severely stacked against them.

Opponents say getting rid of arbitration would clog the justice system and open the door to countless frivolous lawsuits.

The opponents' argument is a boilerplate argument trotted out every time big business wants to limit public access to the judicial system. The public is wising up, however, as more instances of unfair arbitration proceedings emerge. I am waiting for the Chamber to explain how a consumer can afford to arbitrate a claim over a $10,000 automobile purchase when the consumer has to pay the arbitrator an hourly fee that is typically $200- $400 per hour to hear the case, in addition to his attorney's fees.

Congressional limitations on mandatory consumer arbitration has bipartisan support and appears sure to pass in some form.

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The Saturday edition of the Wall Street Journal contained an article on the rise and fall of silica litigation. WSJ writer Kimberly Strassel credits U.S. Silica CEO (and former attorney) John Ulizio with single-handedly exposing silica litigation as a fraud. The truth is more complicated and a lot different.

Plaintiffs began filing silica cases in Mississippi in approximately late 2001. By 2003, there were hundreds of cases on file in Mississippi involving thousands of plaintiffs. Mississippi's jackpot justice era was dying by this time, but mass tort plaintiff lawyers did not yet know it.

In the typical silica cases many plaintiffs sued many defendants under Mississippi's formerly liberal joinder rules. At its height, there were in the neighborhood of fifty defendants sued in most silica cases, from national manufacturers to local paint and hardware stores. Many depositions were held where there were thirty or more defense lawyers appearing, all representing a different client. Even more lawyers attended MDL hearings in Corpus Christi, Texas, where the courtroom was packed with lawyers. Most of the lawyers were from Mississippi, since it was where the majority of the cases were filed.

Keeping the numerous clients and attorneys on the same page was like herding cats. The law firms that appeared to take the lead in this difficult task were (in no particular order): Forman Perry, Brunini, Bradley Arant and Dogan and Wilkinson. There was a defense steering committee with five attorneys on it. I can't recall who they all were, but they all made significant contributions. The one lawyer who I saw doing the most to organize defense meetings where cooperation and coordination was discussed was Cheri Green at Brunini.

U.S. Silica's Mississippi counsel was Watkins Eager. I never saw them organizing or presiding over joint defense meetings, boisterously urging joint defense positions, or otherwise trying to keep all the defendants on the same page. I've never heard of John Ulizio. When I bounced his name off a lawyer who was more involved in silica litigation than me, he hadn't either. 

To be fair, Mr. Ulizio deflected credit in the article, but Strasell inferred that he was being modest. Unfortunately, Strasell either confused honesty with modesty or the entire piece was a disguised promotional piece. Here are some of the story's hilights, along with my response:

 Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.

Response: Sorry Ms. Strassel, Ulizio is being honest--not modest. While it might be an over-simplification to equally credit all defendants, the defense success would not have been possible without most of the defendants mostly agreeing on major defense issues. U.S. Silica was not the driving force behind these decisions. There was no one driving force, and whatever role that U.S. Silica played, it was not the lead role in the litigation.

Another of Mr. Ulizio's rules was "to treat cases like real cases," a tactic that would prove important in the later Texas litigation. "There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence," he says.

 Response: This passage infers that Ulizio and U.S. Silica took the lead in deposing the doctors who diagnosed the plaintiffs with silicosis. I don't believe that is true. I did not attend those depositions, but it's my understanding that Fred Krutz and Danny Mulholland at Forman Perry took the lead in the depositions. I don't believe those guys would have let another firm's client tell them what to do. I also note that Ulizio admited that U.S. Silica settled some cases. Many defendants never paid a penny, including my clients.

He didn't settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers' tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.

Response: I'm not sure where Ulizio "went public." I didn't see U.S. Silica pushing other defendants behind the scenes and I do not believe that they were. Nothing U.S. Silica did emboldened other defendants. Everything that happened in the litigation would have happened if U.S. Silica was never a party.

Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. "The real advantage was simply that asbestos had preceded us, and the plaintiffs' side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."

Response: Luck didn't have that much to do with it. It was hundreds of weak cases, good lawyering on the defense side and many defendants having a back bone at the same time. The insurance companies that I represented decided to reject the plaintiffs' mass nuisance value settlement demand. Other corporate defendants and insurance companies reached similar decisions on their own. No one from U.S. Silica called us and encouraged our decision. A few defendants settled and some (or at least their lawyers) appeared to be cooperating with the plaintiffs' attorneys.  

The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. "It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge," he says.

Response: Filing the motion to create the MDL was initially controversial and second guessed. Some attorneys hoped that the MDL would would be assigned to a Mississippi judge, since that is where the most cases were pending. I'm not sure how the case came to be assigned to Judge Jack, but it was a big surprise and she was an unknown commodity. Defendants were not initially thrilled with the assignment and probably initially regretted the MDL. The Jackson lawyer who I heard pushed the idea hardest at the beginning was at Forman Perry and I'm pretty sure he did not represent U.S. Silica. As the litigation progressed, Judge Jack grew on the Defendants. Judge Jack was smart, quick witted and had a sharp tongue in hearings that often evoked laugher at the expense of an unlucky attorney. Fred Krutz was often on the receiving end, but he took it with humor and that appeared to make Judge Jack like him. 

Even with all that, Mr. Ulizio feared they'd lose. "There was no reason to believe Judge Jack would be as good as she was before she was as good as she was," he says. "One of the dirty little secrets of this litigation is that it didn't have to turn out the way it did. All's well that end's well is the cliché, right? First it's got to end well."

Response: Ulizio is on the money here. Early in the MDL defense lawyers didn't like Judge Jack and the plaintiff lawyers did. That changed in a big way, but the defendants were scared of her for a while. 

Conclusion: Lawyers have a tendecy to over emphasize their role in determining the outcome of a case, but here a reporter did it. Don't get me wrong, lawyers can and do win and lose cases. But lawyers are playing the hand (case facts) that they are dealt. The facts of the case almost always have more to do with the outcome than the lawyers. Silica litigation failed because a small fraction of the thousands of silica plaintiffs actually suffered from silicosis. There was great lawyering on the defense side by counsel representing many courageous clients. But to the extent that there was a hero in the litigation, it was clearly Judge Jack.  

Judge Jack took an active roll in the litigation to the point of ordering depositions to take place in her courtroom with her presiding. This is an unusual approach for a United States District Judge. Judge Jack issued a 250 page opinion that exposed the litigation. It was Judge Jack who wrote:

But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.

It is Judge Jack's story that should be told in the Wall Street Journal.

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Rather than try to reinvent the wheel on Justice Souter's retirement and speculation on possible replacements, I am providing links to articles discussing these issues:

Wall Street Journal Law Blog

SCOTUS Blog  (a blog dedicated to the U.S. Supreme Court).

Associated Press speculation on possible replacements

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How would you feel if you were sentenced to two years in prison for speeding because murder has gotten out of hand? Chances are you wouldn't like it, since a petty offense like speeding doesn't have anything to do with serious crimes. But the U.S. Chamber of Commerce and tort reform supporters commit a similar bait-and-switch when pushing the tort reform agenda.

An April 28 Bloomberg article discusses the Chamber's renewed push for tort reform and cites shocking statistics about the unfairness of arbitration proceedings for employees and consumers. The Chamber's tort reform advertisements are pure propaganda. The Chamber cites lawsuits that sound frivolous. But the Chamber does not seek remedies that hold filers of frivolous lawsuits accountable. Instead, it seeks to put caps on recoveries in all cases, including for victims in legitimate cases with large damages. It's like arguing that you should be put in jail for speeding because there is a murder problem. The public does not understand this distinction, which is how the Chamber wants it.

Tort reform passed in Mississippi years ago. The public does not understand what legislation passed or what it means. I have yet to meet a client or potential client who understood that tort reform caps damages for meritorious cases. Everyone just assumes that it only affects frivolous lawsuits, since that's what the Chamber and other tort reformers talk about. Unfortunately, there has been no organization with the funding or marketing acumen to educate the public on the Chamber's propaganda. 

The Bloomberg article also cites a study that found what many lawyers have long suspected, that arbitrators favor business interests in the hopes of getting hired in future cases:

Alexander Colvin, a labor professor at Cornell University, published a study in January that examined employment dispute statistics from the American Arbitration Association. Employees won 31.6 percent of the time if the employer had no other case with AAA; 16.9 percent of the time if the employer had more than one case with AAA; and 12 percent of cases where an employer and a particular arbitrator were involved in cases more than once.

Colvin worries that “repeat player bias” is at work, with arbitrators favoring employers in hopes of being selected for future hearings

Of course, the Chamber argues for arbitration with claims that it is quicker, cheaper and just as fair as a court proceeding. In a previous post I criticized the costs of arbitration, but now there is solid evidence that arbitration is unfair in addition to being expensive. There is currently an arbitration fairness act pending in Congress that would ban pre-dispute arbitration agreements in some consumer agreements, such as nursing home admission agreements. Look for the Chamber's propaganda push to fight this legislation. You can bank on the fact that the Chamber's ads will be based on its frivolous lawsuit bait and switch tactics. 

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According to an article in today's Washington Post, the Obama administration will intentionally proceed slowly in appointing new U.S. attorneys.

Advisers to Obama say they have learned from past mistakes, including Clinton's decision to require all U.S. attorneys to submit their resignations.

Critics said that move threw law enforcement efforts into disarray.

The issue is different in Mississippi than in some places. In Mississippi, both U.S. attorneys resigned and the positions are being held on an interim basis. In some places the U.S. attorney has not resigned and the Obama administration must decide whether to ask for their resignation. In any event, the U.S. attorney positions are not like open judicial seats where there is no one in the position until it is filled.

The acting U.S. attorneys in Mississippi are experienced and capable of competently holding the position indefinitely. So while there is intrigue and speculation in Mississippi, the issue may not be high on the administration's priority list.

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On Thursday the Northeast Mississippi Daily Journal had a story about the two vacant U.S. attorney positions in Mississippi. The story named only two potential appointees: Forest attorney Costance Slaughter-Harvey and Oxford attorney Christi McCoy. Booneville attorney Ron Michael has removed his name from consideration.

I thought that Slaughter-Harvey had also removed her name from consideration. Natchez attorney Deborah McDonald is said to be a candidate, as is Jackson attorney Cliff Johnson. It is believed that at least one (and perhaps both) of the appointments will go to a minority attorney. Johnson and McCoy are white. McDonald and Slaughter-Harvey are African-American.   

It is unknown when President Obama will make the appointments.

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According to the Neshoba Democrat , Mississippi Democratic Party Chair Jamie Franks identified Jackson attorney Carlton Reeves as the likely appointee for the United States District Judge position formerly held by Judge William Barbour. Judge Barbour still serves on the bench, but has taken senior status. Franks was speaking at a Federalist Society luncheon.

According to Franks, a committee consisting of himself, Rep. Bennie Thompson, Rep. Gene Taylor, Rep. Travis Childers, Attorney General Hood and Speaker Billy McCoy would or already have made recommendations to President Obama for judicial appointments.

Franks said Republicans should remember that the Democrats won, and any federal judge nominees are not going to look like Northern District Court Judges Mike Mills or Sharion Aycock, but more like attorney Carlton Reeves. When asked if Reeves was just a random example, Franks only laughed.

Reeves has been the front runner for the open district judge seat since election day. A graduate of Jackson State and the University of Virginia School of Law, Reeves has experience in the Justice Department and private practice. He is a longtime supporter of Bennie Thompson and is highly respected within the Mississippi Bar, even by individuals who do not agree with his politics. If nominated and confirmed, Reeves would join Bush appointees Dan Jordan and Sul Ozerden as Southern District judges in their early to mid-40's who could easily serve on the bench for the next twenty-five or thirty years.     

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The indictment of Gulfport mayor Brent Warr and his wife, Laura, brings widespread attention to questionable criminal prosecutions of Gulf Coast homeowners for allegedly making fraudulent claims for government benefits to repair homes destroyed by Hurricane Katrina. The government alleges that the Warrs' claim was fraudulent because it was not made on their primary residence. The Warrs bought the house in 2004, renovated it, and were in the process of moving in when Katrina hit in 2005.

As reported in the February 8, 2009 edition of the Sun Herald, the outcome could be decided by a determination of which home was the Warrs' "primary residence." The problem with having a criminal case decided on this question is that, according to the Sun Herald, there is no accepted definition of "primary residence." For instance: 

Court testimony in a previous case indicates neither MDA nor FEMA regulations define what constitutes a “primary residence.”

Gerald Bordelon, a special agent who investigates Katrina fraud for the State Auditor’s Office, testified in another federal court case about homeowner-grant qualifications.

Bordelon said “primary residence” was a “fluid” term. He added, “It is based on a totality of the circumstances.”

The Warrs have the highest profile of many Coast residents subject to federal prosecution based on the justice department's questionable interpretation of a fluid term with no set definition. Making matters worse, some people now claim that FEMA and other government agencies encouraged Coast residents to apply for benefits if there was any doubt as to whether they were eligible. DOJ is now taking the opposite approach, however, and prosecuting all close cases. 

Attorney General Holder and the Justice Department leadership under President Obama should re-evaluate all homeowner Katrina-fraud cases. In cases such as the Warrs where the question is close, all charges should be dismissed. The department should also concentrate its investigations on fraud claims involving government contractors who fraudulently bilked millions, if not billions, from the government.  Doesn't that make more sense than going after homeowners whose lives were destroyed by Katrina?