Steven Calabresi can't believe readers will take this Wall Street Journal opinion piece seriously ... can he?

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

If only. Did Democrats block the nomination of William Pryor or Priscilla Owen or Janice Rogers Brown? Spare me.

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As predicted last week, Colorado's Chief U.S. District Court Judge Edward Nottingham has tendered his resignation, effective October 29. The news is on the Tenth Circuit Court of Appeals' website.

In response to complaints of judicial misconduct lodged in August 2007, the Tenth Circuit Judicial Council initiated misconduct proceedings against Judge Edward Nottingham. As additional allegations developed and subsequent misconduct complaints were filed, the Judicial Council expanded the initial misconduct proceedings.

The Bush administration's recent "get tough" philosophy with regard to undocumented workers (as opposed to its more lenient attitude toward the employers who hire them) might soon require revision. In the past, undocumented workers were deported but usually were not aggressively prosecuted, at least if they had not reentered the country after an earlier deportation. The most recent approach is to charge or threaten to charge identity theft if the worker obtained employment by using another person's name and social security number.

The workers who acquire false documents do not necessarily know whether they are using a real or a fictitious identity. The government insists that it need not prove the worker's knowledge that he or she has misappropriated a real identity. Some courts have agreed with the government while others have held that identity theft requires proof that the worker knew the fraudulent documents contained a real person's information.

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Breaking news: U.S. Chief District Court Judge Edward Nottingham is expected to resign, reportedly due to new allegations of misconduct involving a sex worker who claims he asked her to lie about their relationship.

Judge Nottingham is in the midst of a federal criminal trial and called in sick yesterday and today. It was announced in court that Judge Wiley Daniel will take over the case.

Nottingham presided over the trial of Qwest CEO Joseph Nacchio. The full Tenth Circuit is considering whether to uphold a three judge panel's reversal of his conviction due to Nottingham's refusal to allow his expert witness to testify.[More...]

The Supreme Court granted certiorari in ten cases today. Among the seven criminal cases, via Scotus Blog:

Among the new criminal cases is a test of the scope of the right to a speedy trial for a poor individual who is being represented by a public defender (Vermont v. Brillon, 08-88), a plea for the Court to clarify how federal appeals courts are to handle prosecutors’ violations of plea bargains when the violation was not challenged at the trial (the Court limited the grant in Puckett v. U.S., 07-9712, to one of two issues raised), and a claim that a voluntary confession made after a suspect’s arrest on federal charges but before he appears before a magistrate must be suppressed when there was a delay before that appearance occurs (Corley v. U.S., 07-10441).

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Earlier I wrote about the Levine/Wyeth preemption case and it was discussed today among many other cases, in the PFAW/SCOTUSBlog conference call on the upcoming Supreme Court term.

Tom Goldstein of SCOTUSBlog and a Partner at Akin, Gump, stated that he believes this case could have far reaching implications. Goldstein stated that while the SCOTUS has read a broad concept of preemption in FDA approval of medical devices (as it did in Reigel, where the legislation at issue included an express preemption clause. By contrast, it has not in the pharmaceutical drugs area. In the Levine case, the legislation in question does not contain an express preemption clause (indeed it seems to contain an express disavowal of preemption.) In fact, Wyeth is arguing conflict preemption (as opposed to implied preemption) - that it can not comply with federal regulation while avoiding potential state law liability. The twist in this case is that the FDA issued an agency comment that supported Wyeth's position, thus bringing the Chevron deference issue into play.

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This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

-Article VI, Clause 2 of the US Constitution

Of all the articles, clauses and sections of the Constitution, it can be argued that the Supremacy Clause is the most direct and unambiguous. "Shall be the Supreme Law of the Land" is pretty conclusive. And yet one of the most confusing and disputed areas of the law is the preemption doctrine - particularly the concept of implied preemption. Today, Adam Liptak writes about an important case on preemption to be heard in the Supreme Court:

Retired Oregon Supreme Court Justice Betty Roberts recounts a career filled with obstacles and achievement in her memoir, “With Grit and By Grace.” Karen McCowan reviews the book.

“I stacked up in my mind the many times a man had told me, ‘You can’t,’ ” she writes. “Just in the previous seven years: I’d been told by a male registrar that I couldn’t major in physical education; by my husband that I couldn’t teach; by a male minister that I should never have gone to college; and by a male academic adviser that I should be happy being a housewife. Twice I’d been forced to shift jobs to another school district — once to be able to teach rather than be a dean according to a superintendent’s decree. Once I’d been fired when I ran for public office, just because another male superintendent had disliked the idea.”

But Roberts, then 39, refused to be defeated.

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The Supreme Court gets all the press, but the real action is in the lower courts. The Republican business community has made it a priority since the Reagan years to fill the federal courts with business-friendly judges. Many of those judges are hostile to employment cases, and they have come to populate the district and appellate courts. One reason to vote Obama/Biden that receives too little attention is the desperate need to balance the courts with judges who take a less biased view of employment discrimination cases.

The American Constitution Society released a study (pdf) to be published in its official journal, the Harvard Law and Policy Review, which (according to an ACS email) "shows that the federal courts are increasingly hostile to plaintiffs in employment discrimination cases." This is obvious to those of us who follow (with intense frustration) federal employment cases.[More ...]

Immigration Judges appointed during the Bush years have been justly criticized by federal judges and TalkLeft for writing opinions that, to put it nicely, don't make much sense. Monica Goodling and Kyle Sampson chose IJ's for their loyalty to George Bush and Jesus, not for their understanding of immigration law or due process.

Federal appellate courts must be getting fed up with decisions from IJ's that ignore evidence, that fail to apply or even acknowledge the controlling legal standard, that are absent of legal reasoning. Reversals of immigation decisions are common, particularly when IJ's reject requests for political asylum.

According to an analysis by The New York Times, IJ's who were vetted by the Justice Department during the Goodling/Sampson years disproportionately reject asylum applications. [more ...]

Digby points out that Linda Greenhouse, the NYTimes Supreme Court reporter for many many years, is hanging up her pen. Her last column recalls the importance of defeating Robert Bork's nomination to the Supreme Court:

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

Very true. It reminds us that the Senate should not be a rubber stamp for ANY President. While I really enjoyed Jeff Toobin's book on the Supreme Court, titled "The Nine," I was annoyed by his acceptance that the Senate has no actual say in who is seated on the Court:

At this point, unless a judicial nominee is completely uncontroversial, there's no reason for the Senate Judiciary Committee even to consider a potential judge chosen by President Bush. Michael O’Neill, who is proud to have helped some of the president's more contentious nominees achieve confirmation, would be controversial even in the absence of questions about his ethics as a scholar:

Last year, a peer-reviewed legal journal, the Supreme Court Economic Review, issued a retraction of an article by Mr. O’Neill in 2004. “Substantial portions” of the article, the editors wrote, were “appropriated without attribution” from a book review by another law professor. In addition, at least four articles by Mr. O’Neill in other publications contain passages that appear to have been lifted from other scholars’ works without quotation marks or attribution.

Long passages in the 2004 article are virtually identical to the book review, which was published in 2000 in the Virginia Law Review and was written by Anne C. Dailey, a law professor at the University of Connecticut. [emphasis added]

Accusations of plagarism do not trouble the president. Nor do they bother Sen. Arlen Specter, who argues that "a mistake ... ought not negate an extraordinary record of public service." Putting aside the senator's definition of "extraordinary," it's hard to believe that five separate instances of lifting another writer's work without attribution can reasonably be characterized as a mere "mistake." [more ...]