This article suggests that President Obama will "drastically reshape" the Fourth Circuit when, in the near future, he nominates judges to fill circuit vacancies. It's about time.

In recent years, the Fourth Circuit had become the most assertively conservative court in the nation. Its judges have taken the lead in trying to reduce federal power in several areas, even once trying to lead the way in undoing the Miranda rule that criminal suspects must be apprised of their rights before they answer questions. The court’s conservative majority also tried to roll back affirmative action policies and was reliably supportive of Bush administration efforts to widen presidential authority in detaining terrorism suspects without trial or charges without Congressional input.

An essential mission of the Obama administration should be to restore balance to the federal judiciary, not just in the Fourth Circuit. [more ...]

I was wrong when I predicted that "the Roberts Court will disagree with the Vermont Supreme Court on the deference due the Bush FDA's pronouncements on conflict preemption and declare that, adhering to Chevron, it will reverse the Vermont Supreme Court in Levine. It's the Legal Realist in me." Today, the Supreme Court, by a 6-3 vote, ruled that FDA's labelling regulations do not preempt (PDF) state law tort claims:

The Supreme Court heard oral arguments today in the William Osborne case. Osborne was convicted of rape in Alaska and alleges new DNA technology would prove he is factually innocent.

Alaska is one of several states that refuses to allow inmates to obtain DNA testing to prove innocence.

The Obama administration has taken Alaska’s side in arguing that Osborne has no right to access the biological evidence obtained in 1994, even if he pays for it. Today’s advanced tests could establish a match with a certainty of one in a billion. Former FBI Director William Sessions explains why Obama is wrong on this one. [More...]

The Supreme Court will be in session this week. Justice Ruth Ginsburg is expected to be present.

Scotus Blog has a summary of the week's cases.

Via ScotusBlog:

The pancreatic cancer for which Justice Ruth Bader Ginsburg had surgery on February 5 has been determined as TNM Stage 1 by doctors at Memorial Sloan-Kettering Cancer Center in New York City. All lymph nodes proved negative for cancer and no metastasis was found. In the procedure Dr. Murray Brennan, the attending pancreatic surgeon, removed the Justice’s spleen along with a portion of her pancreas.

Extraordinarily, the approximately 1 cm lesion revealed on a late January CAT scan, the discovery of which led to the February 5 surgery, proved benign. But in searching the entire pancreas Dr. Brennan identified a previously undetected single, even smaller, tumor which upon examination was found malignant.

Justice Ginsberg was released from the hospital today and is recuperating at home. Our best wishes for a speedy recovery.

Our best wishes go to Justice Ruth Bader Ginsburg who underwent surgery for pancreatic cancer today. According to the Supreme Court press release, a small tumor was discovered in the center of Justice Ginsburg's pancreas during a check-up late last month.

Justice Ginsburg, the only woman on the Supreme Court, is 75. While there is reason to hope that she will recover quickly and remain a vital part of the Court, her age and medical condition raise the possibility that President Obama may be nominating a Supreme Court Justice sooner than he expected. Until that bridge needs to be crossed, however, we send our positive thoughts to Justice Ginsburg for a prompt return to the Court she has so honorably served.

The Supreme Court issued opinions and orders today. Among them:

• Ruled that a man wrongly convicted and sent to prison for 24 years cannot sue the former Los Angeles district attorney and his chief deputy for violating his civil rights. The court said unanimously that decisions of supervising prosecutors, like the actions of prosecutors at trial, are shielded from civil lawsuits.

• Ruled that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.

Among the cases it agreed to hear: [More...]

Discussing the SCOTUS' 5-4 decision that state law fraud claims are not preempted by federal labelling statutes, Ann Althouse notes:

This is one of those cases where state law is preserved, yet no one extols the values of federalism. No one even says the word "federalism," as the liberal Justices decide in favor state power, and the conservative Justices worry about "non-uniformity." The tort plaintiffs will be able to go forward with their case, and the cigarette companies must take their lumps.

Sounds like Prof. Althouse thinks some results oriented votes were cast in that case. I imagine they were. It reminds me of my dispute with Prof. Althouse over Bush v. Gore.

Speaking for me only

Good for Harry Reid:

If the $14 billion bailout plan for U.S. automakers passes, it will help more than just Ford, Chrysler and General Motors. Federal judges would get a pay raise, as well. The raise — an annual cost of living adjustment, or COLA — would bring U.S. District court judges up to par with members of Congress, who will receive an almost $5,000 boost on Jan. 1. District judges and lawmakers now earn $169,300 a year but are expected to be awarded a 2.8 percent raise next year, said Dick Carelli, a spokesman for the Administrative Office of the United States Courts.

Senate Majority Leader Harry Reid, D-Nev., insisted that the judicial pay raise go into the automaker loan measure, which is the only item of business on Congress' lame-duck agenda.

Federal judges are underpaid as it is. This COLA is only fair.

Speaking for me only

The chief judge of New York's highest court, Judith Kaye, is retiring at the end of the month. The commission charged with nominating candidates to replace her deserves the criticism it has received from Gov. David Paterson, who makes the final selection from the nominees, and Attorney General Andrew Cuomo.

The seven candidates offered by the Commission on Judicial Nomination include no women and only one minority.

Did the Commission really believe that white males make the best chief judges -- to the exclusion of all females?

"I've really got to wonder how this group would feel comfortable sending a list forward and not one of them represents half of the human race," Paterson said.

[more ...]

Via Scotus Blog, the Supreme Court will hear oral arguments in three criminal cases today:

• Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.

• United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”

• Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

I was exchanging e-mails with Ed Whelan the other day (yes NRO's Ed Whelan) and I told him him that I would certainly defend the GOP Senate caucus' right to filibuster judges even though I would likely disagree with their criteria for doing so. Ed responded that he would criticize such GOP tactics. I'll do my part here. Via Steve Benen, GOP Senator Jon Kyl says:

Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal. . . . Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

That is absolutely the right of the GOP minority. This is their exercise of the Constitutional advise and consent role. While I disagree with their views on judges, they are Senators and have the right, even the duty, to exercise their Constitutional powers. Now what I want to know is what the Gang of 14 has to say aout this? And I expect to hear no objections to the Nuclear Option, (excuse me, I mean the I mean Constitutional Option from any Republicans now. I certainly will object to it. They can not without exposing their base hypocrisy.

By Big Tent Democrat, speaking for me only