The Senate Judiciary Committee has unanimously approved the nomination of Virginia Supreme Court Justice Barbara Keenan for the 4th U.S. Circuit Court of Appeals. Keenan must still be approved by the full Senate — just like U.S. District Judge Andre M. Davis, who was approved by the committee for a 4th Circuit seat back on June 4.

Sen. Ben Cardin’s frustration over the delay in getting a vote on Davis surfaced on Tuesday, when the Senate approved West Virginia’s Irene C. Berger as a federal judge in that state.

According to the Charleston (W.Va.) Gazette, Cardin complained that some Republican senators had placed anonymous holds on nominees.

“This is a deliberate effort to try to slow the pace,” he said. “I really think this is wrong, and people should know about this.”

The ranking Republican on the committee, Sen. Jeff Sessions, R-Ala., denied that Senate Republicans were “slow walking” Obama’s nominees.

“I’m not going to remain silent while the record is distorted,” Sessions said.

Fifty-five years of marriage is darned impressive.

So if Ed and Harriet Neufeld of Aspen Hill have found a fun date activity that gets them out of the house together, more power to them.

That said, their hobby is a little… weird.

As the Gazette tells us, the Neufelds, who are retired, go to the Montgomery County Circuit Court weekly to watch cases. “It’s better than television, I’ll tell you that much,” Ed Neufeld told the newspaper.

Really?

The Neufelds must either a) have a really low threshold for what’s entertaining or b) be particularly adept at picking exciting cases to watch. Newspaper reporters tend to cover only the most high-profile court cases, and even those are sometimes incredibly dull. (I imagine that the proceedings at which the sketch above was made, on the other hand, were fascinating.)

HT: ABA Journal.

Legendary comedian Soupy Sales died last week at the age of 83. Sales is perhaps best known as the master of the pie-in-the-face and estimated he had been hit more than 19,000 times, according to his obituary in The Washington Post.

You might say Sales could be considered an authority on pie throwing with all of his experience. And he almost was, according to this nugget from The Post’s obit:

He became something of an expert on the messy staple of slapstick comedy and once testified at a Navy court-martial on behalf of a sailor accused of throwing a pie in an officer’s face. The military court was not amused, and the sailor was convicted.

No word if the sailor turned to the pie-throwing experts from Dewey, Cheatum & Howe on appeal.

If your kid’s teacher makes disparaging comments about religion, is it a First Amendment Establishment Clause violation?

The 9th Circuit will consider that question. The WSJ Law Blog writes:

The teacher, James Corbett of Capistrano Valley High School in Mission Viejo (which graduated former Los Angeles Raider Todd Marinovich) referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.

In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click here for the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not. Both sides appealed to the Ninth Circuit.

What do you think? Was the teacher out of line? Constitutionally? Professionally?

On Saturday, I spent a rejuvenating morning serving as a judge for the semi-final round of a moot-court competition hosted by American University’s Washington College of Law.

My service to the Burton D. Wechsler First Amendment Moot Court Competition stirred me in three ways:

1. It made me feel 20 years younger, when I nervously stood as a law student waiting to be grilled by “judges” at the same school;

2. It enabled me to step out of the role of spectator (I have reported on oral arguments for two decades) and participate in the enterprise; and

3. As a husband — and father of a teen and a tween — it was refreshing to have people listen to me and answer my questions.

It also didn’t hurt that the fact pattern and issue were right up my alley.

The head of research and development at a major high-tech company was suing for libel a blogger who had accused him online of running a Mumbaian sweatshop where child laborers built computer components.

The issue before the moot court was whether the company executive qualified as a “public figure” or “private person” under the Supreme Court’s First Amendment jurisprudence, a critical distinction that largely determines who wins the case.

Public figures, to prove libel, have the heavy burden of showing that the reporter wrote an erroneous story either knowing it was false or with a reckless disregard for the truth.  Private individuals need only show that the journalist was negligent in reporting a story that was  untrue.

The three-judge panel on which I served — as “chief” no less — ruled for the reporter. Imagine that.

Former Secretary of State Madeleine Albright wrapped up her 20-minute speech Thursday at the University of Maryland School of Law by joking she was about to do something she never could while a government official – directly answer questions.

Albright did just that for another 20 minutes, touching on a wide range of foreign policy issues in addition to the ones she addressed in her speech. Among the highlights:

• She praised President Obama for working with Russia to deemphasize nuclear weapons and exand the nuclear non-proliferation treaty. “Diplomacy has the greatest value when conducted between people who do not agree,” said Albright, a Confucius-like statement that I had to ponder for several minutes before it made sense.
• She called climate change a national security issue, noting how countries bordering the Arctic have been staking claims on territory previously covered by ice.  But she expressed skepticism about any breakthroughs at the upcoming Copenhagen conference because it might be coming too early in the Obama administration. “Unless we get energy legislation, we can’t push others,” Albright said, adding the Kyoto Protocol probably came too late in the Clinton administration.
• She agreed with a questioner who asked about the changing role of the nation-state in diplomacy. Many of today’s global problems involve internal or territorial issues (think Darfur), or terrorist groups operating among various nations (think al-Qaeda). “What we’re finding is sovereignty is a moving target,” she said. Compounding the problem for the U.S., she added, is that Americans try to defend individual liberties in global hotspots but are the first people to protect the rights of a nation-state.

Albright covered a lot of serious issues, but she was also very funny. Her best lines came when talking about her 2000 meeting with Kim Jong Il in North Korea, “a country so backward it doesn’t even have a multinational law firm.” Albright also mentioned the “puffy-haired” Kim’s stature.

“I wear high heels to be taller,” she said. ”So does Kim Jong Il.” 

Slate has an interesting article today on research showing that about one-tenth of criminal defendants in Maryland may have been given the wrong sentences. The article is based on a University of Maryland economics student’s dissertation.

Writer Ray Fisman explains that before sentencing a defendant, a judge gets a recommendation, which is based on factors like the nature of the offense. The Ph.D. student, Emily Owens, discovered that errors in the sentencing worksheets filled out by prosecutors and signed off on by defense attorneys were leading to judges getting incorrect recommendations. Fisman writes:

With the stakes so high—months and years of freedom gained or lost—how could Maryland’s Sentencing Policy Commission have been so sloppy? For academic research—a matter trivial by comparison—it’s common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren’t to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland’s legal profession.

Owens discovered that judges, who don’t have to follow sentencing recommendations, were definitely influenced by them. They gave longer sentences to those whose recommended sentences were mistakenly inflated and short sentences to those who wrongly got too-short recommendations. When she looked at how much time the offenders actually spent in jail, she found that the parole board managed to more or less normalize the sentences of those who had been incorrectly sentenced to too little time, but not the sentences of those who got too much time.

It turns out the attempt by lawyers for a capital murder defendant in Anne Arundel County to subpoena all 24 top prosecutors in Maryland was not a first.

Ocean City lawyer Skip Townsend tells me that back in the 1980s, he and his co-counsel in a capital case in Montgomery County called all of the state’s attorneys to testify about how they decided when to seek the death penalty. The argument, then as now, was that the death penalty is applied differently in different counties.

Unlike the Anne Arundel case, where the judge yesterday quashed the subpoenas as irrelevant, in Townsend’s case he was allowed to bring in the top prosecutors. All but three attended. “It was fascinating and it was fun,” Townsend said.

The defendant, James Calhoun, got the death penalty anyway for the killing of a police officer and an alarm system technician during a robbery. The Court of Appeals gave him a new sentencing hearing, and the second time, he was sentenced to life without parole.

I wrote a story for today’s paper on a Court of Appeals opinion concerning a medical malpractice case. The main issue was whether the expert witness spent too much of his professional life as, well, an expert witness. (The Court of Appeals said that yes, he did, and was therefore properly disqualified from testifying in the case.)

In the course of writing the story, I rediscovered this gem from 2007, when the case went to trial. It’s a story from The (Erstwhile) Examiner, and it deals with the clash between two high-profile, ego-rific “titan”  litigators: Steve Snyder and Billy Murphy. Snyder represented the plaintiffs (on appeal, the case was handled by Snyder’s one-time partner Andy Slutkin) and Murphy was one of the lawyers for the doctor and the hospital.

The article’s worth a look in case you missed it the first time around, and even if you caught it then but want to relive the magic. This thing got ugly. Some highlights:

“After Mr. Snyder found out, for the first time today, that I was being retained by the University of Maryland to be in this case, frankly he lost his cool,” Murphy told Baltimore City Circuit Court Judge Lynn Stewart, according to a transcript of the proceedings. “What he said to me was, in a voice loud enough for the defendant to hear … he said, ‘I’m going to tear him apart.’ And then he turned around and literally screamed at Dr. Zoarski, ‘I’m coming after you! I’m going to get you!’ And he said it several times.”

At one point, Snyder told Murphy in open court that he didn’t like him anymore. Eventually, the judge got beyond frustrated:

Finally, Judge Stewart had had enough.

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

Oooh, and let’s not forget what happened when the race card was played:

Snyder took particular offense to Murphy’s late appearance in the case, because Murphy and several members of his team are African-American, as was the judge and several jurors.

“I think it’s racially motivated,” he told the judge.

After hearing that, Murphy replied sarcastically to Snyder’s comment in court: “We’re just some colored lawyers. We’re not trying to hurt nobody.”

I wish I’d been there. Sounds like a journalist’s dream trial. But here’s the best part: After the trial ended in a defense summary judgment, Snyder told the Examiner reporter:

“Billy Murphy can take no comfort in the victory,” he says. “It will be very short-lived. I have no doubt that it will be reversed. In fact, I will quit law if it doesn’t get reversed.”

I’ve put a call in to Snyder to see if he wants to make good on that threat. No word yet.

Law school — at least evidence class — hasn’t changed much since I last stepped into a classroom as a student during Bush’s presidency (the father’s, not the son’s).

Hearsay is still generally inadmissible at trial because it is “an out-of-court statement introduced for the truth of the matter asserted.” And a bunch of exceptions to the hearsay rule remain, including, but not limited to, “past-recollection recorded,” “present-sense impression,” “business documents” and “excited utterances.”

So, much of what I learned 18 years ago came flowing back to me as I sat in on Professor Paul Rice’s evidence class Monday afternoon at American University’s Washington College of Law (pictured), from which I graduated in December 1991.

But some things have definitely changed: For example, each student had a laptop computer and Internet access, made possible by Wi-Fi and electrical outlets by each seat.

Back in the Dark Ages (the late 1980s and early 1990s), we students had to get by with pens, highlighters and notebooks (the paper variety).

Just as I was feeling like Cro Magnon man, the good professor came to my rescue as he tried to illustrate for the students that just because a document has a date doesn’t mean that an event occurred on that date.

Rice, who has been teaching at the school for 35 years , asked the class if anyone knew what it meant to “kite” a check.

The students, born into an era when deposited checks are recorded automatically, stared blankly.

Meanwhile, the professor and I shared knowing smiles.