On the Record

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.

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

As if Caryn Tamber’s article weren’t compelling enough, our sister paper in Richmond points out another reason to study Gomis v. Holder.

“If the 4th Circuit’s current configuration leaves it in equipoise and publishing even fewer opinions than usual, it is at least going on the record with some of its disputes,” Deborah Elkins writes on the Virginia Lawyers Weekly blog: 

In recent days, the court has published two orders in cases in which it has denied rehearing en banc, with judges at each end of the spectrum publishing concurrences and dissents from those denials.

True, the judges don’t always fall into predictable patterns.  But their airing of views on classic issues such as the degree of deference to agency decisions and the “sanctity of the home” may be a preview of coming attractions, after some of the court’s five vacant slots are filled.

The agency-deference case Elkins refers to is Gomis, in which the court voted 5-5 not to rehear an asylum case. July’s panel decision deferred, 2-1, to the BIA’s finding that an adult woman’s father was unlikely to make good on his vow to have her circumcised because, among other things, the practice was outlawed in Senegal in 1999 and the State Department reports it is on the wane there. 

The “sanctity of the home” case is Hunsberger v. Wood, decided Sept. 14 by a 5-4 vote with one abstention. The decision let stand a finding of qualified immunity for a police officer who made a warrantless entry to a home at night, accompanied by a civilian who was looking for his missing stepdaughter.

A vote on U.S. District Judge Andre M. Davis’ nomination to the 4th Circuit could be scheduled as soon as next week, according to The Baltimore Sun’s Maryland Politics blog.

Since taking office, President Obama has made 17 Article III appointments to the federal judiciary. So far the full Senate has approved just one: Justice Sonia Sotomayor, who heard her first case on Wednesday.

Sorry, still no word on when DLLR Secretary Tom Perez might be able to follow his staff to the Justice Department.

They didn’t set out to hang out their shingles — at least, not yet — but the economy made it the most attractive option for these new solo practitioners. Read The Accidental Solo, this related story on setting up shop, and these tips on running your own practice.

The University of Maryland law school’s Appellate and Post-Conviction Advocacy Clinic highlights its summer wins and is taking a setback in stride, as one of its recent clients got arrested on a charge similar to the one the clinic helped get expunged.

Topping the news are stories about the firing of Public Defender Nancy Forster and a citation against a Charles County judge for letting the air out of a court worker’s tire. In Legal Briefs, Chief Judge Bell sends another letter – this time, seeking Social Security numbers for the Client Protection Fund.

In Verdicts & Settlements, a Baltimore jury awards more than $1 million to the children of a young woman who died after surgery to resolve her blood clots. And, in Unbillable Hours, meet a Montgomery County lawyer who coaches high school football players in more ways than one.

PLUS: On the Move; columns by Legal Aid’s Joe Surkiewicz and Dolan Media’s Justin Rebello; and our weekly Law Digest, featuring eight opinions by the 4th Circuit.

It used to be a running joke among the Supreme Court bar that the scariest sentence a high-court advocate could write in a petitioner’s brief was “the decision of the 4th U.S. Circuit Court of Appeals should be overturned.” Such was the rarity of disagreement between the conservative high court and the like-minded appellate panel.

But this accord between the courts has been decreasing gradually during the past few terms. The justices, in their October Term 2006, disagreed with the 4th Circuit in one of the two appeals they heard; in the October Term 2007, the number was two out of three.

And during this Supreme Court session, October Term 2008, the justices rejected the 4th Circuit’s decision in all five written opinions they issued in appeals from the Richmond, Va.-based court. The high court reinstated a firearms conviction (United States v. Hayes); overturned an order for arbitration (Vaden v. Discover Bank); reversed a felony drug conviction (Abuelhawa v. United States); vacated the denial of an asylum seeker from Cameroon’s motion to stay a federal removal order (Nken v. Holder); and vacated the sentence in a drug conviction (Nelson v. United States).

In a sixth case, the justices issued an order vacating the 4th Circuit’s decision upholding the continued detention of a suspected Al-Qaida agent without trial in the United States and dismissing the case as moot. The high court took the step at the request of the Obama administration, which told the justices that the suspect, Ali Al-Marri, will face trial on federal charges of conspiracy and providing support to terrorists.

Anyone who delights in predicting how the Supreme Court will rule should take heed.

Hat tip: SCOTUSBlog.

It’s a little late, but here’s your Monday round-up:

• John Bratt at Miller & Zois* comments on Baltimore City officials’ $5 million lawsuit against an Ocean City Domino’s for refusing to serve them and then not letting them leave: “Assuming the facts in the complaint are true, they are seeking $500,000.00 (5 million divided by ten) in damages for every minute they were stuck in the store. I’d think that was excessive if they were trapped in the Guantanamo Bay Domino’s, much less Ocean City. That ten minutes must have been hell on earth.” [* Ed. Note: We previously attributed Bratt's post to M&Z partner Ron Miller.]
• The Supreme Court will hear a 4th Circuit case about whether the government can civilly confine a sex offender after his sentence is up. HT: How Appealing.
• Did a debt collector violate the Fair Debt Collection Practices Act by placing a “WWJD?” sticker on collection notices? (A commenter says, “Scourge moneylenders in the Temple, that’s what. I don’t see why a collection agency would do this in light of the Gospel statements of money and lending.”) HT: A Stitch in Haste.
• Are associates too casual with partners, or does this hiring partner just have a big ol’ superiority complex?
• Sonia Sotomayor wouldn’t make it as a newspaper reporter.

With the Senate Judiciary Committee poised to vote Thursday on Judge Andre Davis’ nomination to fill “the Murnaghan seat” on the 4th Circuit, Virginia’s senators have floated a name to fill “the Widener seat.”

Our sister paper in Richmond, Virginia Lawyers’ Weekly, says Senators Jim Webb and Mark Warner have recommended to President Obama that he nominate Justice Barbara Milano Keenan, currently on the commonwealth’s high court.

Plenty of empty spots to go around…

Evan Stolove’s memories of his 1995-1996 clerkship for Andre M. Davis extend beyond the courtroom and the U.S. district judge’s Baltimore chambers.

Stolove, then a new father and fledgling lawyer, remembers the times he drove his boss to work and the advice Davis gave him on those trips regarding fatherhood and the practice of law.

Stolove, who then lived about a half-mile from Davis in Ellicott City, also recalls that the tall jurist would take his seat in the 1990 Honda Civic hatchback without grunting or griping.

“He never complained,” Stolove siad. “He just climbed right in. His head was scraping the roof.”

Stolove, now an associate general counsel at Fannie Mae, said he was in the room with Davis last month as he appeared before the U.S. Senate Judiciary Committee at his confirmation hearing to become a judge on the 4th U.S. Circuit Court of Appeals.

The committee is scheduled to vote Thursday on whether to recommend that the full Senate vote to confirm Davis to the appellate court.

If Davis wins confirmation, as expected, he might be in the market for an experienced attorney and law clerk to help guide him in is his first year on the 4th Circuit. Would Stolove, a husband and now father of two boys, want to clerk for Davis again?

“If [my family] could find a way to do it financially, of course,” Stolove said. “I would do it in a heartbeat.”

Which raises the question of whether any other ex-law clerks would return if asked by their former boss…

– Steve Lash

I couldn’t make it to the confirmation hearings in the Senate Judiciary Committee, so I’ve been reading the reviews with great interest.

Baltimore federal judge and 4th Circuit nominee Andre M. Davis drew high praise from Sen. Barbara Mikulski, who said she’d been waiting eight years for someone worthy of filling the Murnaghan seat. He drew opposition from groups who think he’s too conservative when it comes to the Americans with Disabilities Act, at least as it relates to employment cases.

But according the Associated Press, Wednesday’s toughest questioning came from Sen. Russ Feingold. The Wisconsin Democrat grilled Davis about a blind spot the nominee had, and cured, some five years ago.

In 2004, Davis was invited to join the board of the Foundation for Research on Economics and the Environment — that’s FREE, as in free-trips-for-judges to their seminars. Davis accepted the invitation but resigned in 2005 after asking the judiciary’s Codes of Conduct committee to weigh in.

Davis assured Feingold he had seen the error of his ways. However, he refused to be drawn on the question of why other judges remain on FREE’s board — essentially telling Feingold he was not his brethren’s keeper. An age-old issue, that one, but I don’t imagine it will keep him off the appellate court.

Anybody know yet how Tom Perez fared?