Anthrax and the Bruce Ivins suicide story had long faded by Labor Day. But we must reach even deeper into the news dustbin to recall the showdown between Dr. Steven Hatfill — the former army scientist whom the government called a “person of interest” in the 2001 anthrax attacks but then officially excluded from the investigation — and Toni Locy, the former USA Today reporter whom D.C. District Court Judge Reggie Walton held in contempt for refusing to name her sources for a story she wrote about Hatfill’s possible role in the attacks.

Now that the DOJ has settled with Hatfill for $5.8 million and excluded him from the investigation, what happens to Locy’s contempt order? At the time of the DOJ’s June settlement with Hatfill, Locy told the AP, “I hope this means that this ordeal is over and that I can get on with my life. . . but I don’t know if my appeal is moot or if the contempt order against me will be lifted because I don’t have anything at this point from the Court of Appeals or Judge Walton that says I’m in the clear.”

Locy may be in the clear vis-a-vis the contempt order, but a big lawyers’ bill may still be coming her way. The Legal Times’ Tony Mauro reports that lawyers for Hatfill returned to the U.S. Court of Appeals for the D.C. Circuit last week to seeking dismissal of Locy’s appeal of the contempt citation. In Hatfill’s motion, his lawyer, Christopher Wright reportedly says that once the district court regains jurisdiction, Hatfill will seek attorney fees from Locy. No amount was mentioned, but Locy told Legal Times she anticipates that the lawyer bills will be “far greater than the fines I faced under Judge Walton’s contempt finding.” She adds, “A multimillion dollar settlement with the government apparently is not enough for them.”

Wright’s partner, Mark Grannis told Legal Times: “In response to hysterical complaints about a constitutional crisis, I would just say that it is quite often the case that the party who goes to the extra trouble gets attorney fees.” Grannis also said that, unlike with the fines for contempt, “if other persons want to chip in” to help Locy pay for the attorney fees, “I can’t imagine that we would oppose that.”

Heller Ehrman LLP seems to be in its proverbial 11th hour The firm’s merger talks with Mayer Brown, which we reported here, have broken down, according to a statement from Mayer Brown.

“A merger with [Heller] would have offered potential benefits for both firms,” Mayer’s statement said.* “In the end, however, various issues, including client and practice conflicts, could not be resolved, and we have ended our discussions.”

As if that wasn’t bad enough, it also surfaced today that some influential intellectual-property lawyers at Heller are leaving for Covington & Burling. The group includes shareholders Robert Haslam, Robert Fram, and perhaps a dozen other senior lawyers, according to a high-ranking Heller attorney. Neither Haslam, Fram nor Covington could be reached for comment.

After a string of partner defections and failed merger talks, Heller faces the grim possibility that it might have to dissolve the firm, according to lawyers and recruiters with knowledge of the matter, some of whom predict that judgment day could come in as soon as a week’s time. “There has been no decision by our governing body and no vote by our shareholders” to dissolve, firm chairman Matthew Larrabee told the Law Blog. He says the firm is “actively considering a number of strategic options” but declined to elaborate.

So what has happened to Heller, which has long ranked as one of the top firms in San Francisco and one of the top litigation shops in the country? For starters, the firm had many huge litigation matters settle in rapid succession last year, including its representation of Ernst & Young in securities fraud suits against AOL and Cendant. About one-fourth of its litigation business settled last year–a huge blow given that litigation makes up about 60% of the firm’s revenue, according to a Heller attorney. And that revenue has been hard to make up in a soft litigation market.

As Heller’s profits have lagged, competitors have increasingly been able to pick off their top talent by offering them fatter paychecks. Defections by partners–called shareholders at Heller — have begat more defections, creating almost a run-on-the-bank type scenario.

If Heller cannot pull out of the swoon, there may be a lot of pain in the Bay Area. This is a very tough market to be out of a job, especially for a partner who does not have a big book of business.

J.K. Rowling speaks during a press conference, in New York, Aug. 1, 2006. (AP Photo/Seth Wenig)

It’s been one week since the SDNY’s Judge Robert Patterson ruled that Steven Vander Ark’s book version of the “Harry Potter Lexicon” failed to qualify for fair use protection and therefore violated J.K. Rowling’s copyright in the Potter series.

We’re happy to note two pieces of news demonstrating that the court loss hasn’t stifled the intensity of Vander Ark’s abiding Potter passion.

First, a blog at the Detroit Free Press reports that Roger Rapoport, the owner of Michigan-based RDR, which planned to publish the “H.P. Lexicon,” expects his attorneys to file a notice of appeal preserving his and Vander Ark’s right to edit the book in order to pass muster with Judge Patterson.

“I’ve always been very much willing to work with” Rowling and Warner Bros “and try to see what can be done,” Vander Ark told the Freep. Representatives for Rowling could not be reached for comment.

But even assuming that effort fails, and the H.P. Lexicon is forever relegated to Web site status, Vander Ark says he has plans to publish a travel memoir detailing visits to British locations he claims inspired the Harry Potter series. Here’s a report from the Times of London.

Rowling’s agents have reportedly asked to see a copy of “In Search of Harry Potter” before it’s published next month. The book apparently recounts Vander Ark’s travels to King’s Cross station, where Potter and the other wizards board the Hogwarts Express, London’s Charing Cross Road, the site of the Leaky Cauldron pub, and Surrey, where Harry lived in the fictitious town of Little Whinging. He also claims to have discovered the location of Hogwarts school on Rannoch Moor in the Highlands.

“This is my own writing about my own experiences and I can’t imagine there will be any problem with this book,” he told the Times.

My goodness. I’ve been in the business 35 years, and these are the most extraordinary events I’ve ever seen. — Peter G. Peterson, co-founder of private equity firm Blackstone, former head of Lehman Brothers and secretary of commerce in Nixon administration, speaking to the New York Times

As our Deals Journal colleagues tell us, Wall Street’s Judgment Day remains yonder. Though it seems certain that Monday, September 15, will be remembered as Armageddon for at least two of Wall Street’s most venerable institutions. Here’s what we know: Late last night, 94 year-old Merrill Lynch agreed to sell itself to Bank of America for $50 billion. Lehman Brothers, facing a refusal by the federal government to bail it out, announced this morning that it intends to file for Chapter 11 bankruptcy in the Southern District of New York for its holding company only, while its investment bank and asset management operation will continue doing business as usual. Meanwhile, insurance giant AIG, whose role in global finance, writes the WSJ, is in many ways as critical as investments banks such as Lehman, is scrambling to raise cash, which include selling off some of its most valuable assets and going to the Federal Reserve for help.



Legal firepower on BofA/Merrill: The banking deal of the century calls for some serious legal heavies. Handling this $50 billion all-stock deal for Merrill’s independent directors were Cravath’s Robert D. Joffe, Susan Webster and Sarkis Jebejian. Shearman & Sterling’s John Madden — the former head of M&A and former co-managing partner of the firm — John Marzulli and Scott Pettepiece repped Merrill, while a team from Wachtell advised Bank of America.



Lehman turns to Weil: A squad from Weil, Gotshal & Manges is handling Lehman’s Chapter 11. As the WSJ notes, Weil advised Drexel Burnham Lambert on its 1990 bankruptcy filing.



Dinallo’s time to shine: When Eric Dinallo, who made his name as the head of investor protection Eliot Spitzer’s New York attorney general’s office, was named New York’s superintendent of insurance, some said, huh? If that position sounds lame to you, think again. With AIG gasping for air, these days are Dinallo’s Stanley Cup, so to speak. According to the WSJ, Dinallo (Vassar, NYU Law) “took a significant role” in AIG’s survival talks over the weekend.

Based on Dinallo’s recent record — earlier this year he helped bail out bond insurers Ambac and MBIA — he could take a hard line with AIG. Amid the Ambac and MBIA bailouts, Dinallo called a meeting with more than 30 top Wall Street execs, where he left no doubt who he thought was responsible for the mortgage meltdown. “You people created this mess,” Dinallo told senior officials of Wall Street’s top firms, including Citigroup, Goldman, Merrill and Morgan Stanley. “And the headline on this is going to be: ‘How Wall Street Ate Main Street.’”

For the foreseeable future, New Orleans federal judge G. Thomas Porteous Jr. will have a much lighter load. The Judicial Council of the Fifth Circuit issued a reprimand on Wednesday suspending the judge for two years for alleged infractions, including failing to report gifts from lawyers who appeared before him and concealing debts while in personal bankruptcy. The judge may next have to face impeachment proceedings in Congress.

Lewis Unglesby, counsel to Porteous, a 62-year-old Clinton appointee, says the suspension is unwarranted. “I don’t think you’ll find a single person who says judge Porteous wasn’t fair in any single case he tried,” he says.

Suspension of any length is rare for a federal judge. “This is probably the most severe punishment ever imposed by the federal bench against a fellow judge,” says professor Arthur Hellman, of the University of Pittsburgh School of Law.

The Porteous reprimand comes at a time when the federal bench has been taking its lumps, including the recent indictment of Houston Judge Samuel Kent for allegedly sexually abusing a court employee. (He has denied the charges.) Along with its reprimand, the Fifth Circuit unsealed investigative reports that detailed a host of alleged transgressions by Porteous. For instance, after incurring gambling debts, in 2001 the judge filed for bankruptcy, but did so under a fictitious name, so as to save himself embarrassment, according to a 2007 report by a Fifth Circuit investigative committee. The judge was warned not to incur more debt while in bankruptcy, the report stated, but he still ran up thousands of dollars in undisclosed gambling debt at casinos in Louisiana and Mississippi.

In a June report, the Judicial Conference concluded that Porteous had also solicited and received gifts from lawyers, including, “cash payments, numerous lunches, payments for travel, meals, and hotel rooms in Las Vegas.” The judge failed to disclose the gifts, according to the report, and he used methods of payment that left no paper trail, including once dispatching his secretary to pick up an envelope of cash.

“There’s no prohibition in law or practice, which prevents judges from socializing with their friends,” said Unglesby, Porteous’ lawyer. “Big deal. I pay today; you pay tomorrow.”

In a move that some believe defies Constitutional law — if not enforceability — a state judge in Texas has ordered a woman, as a condition of probation, to stop having children.

The woman is 20-year-old Felicia Salazar, who admitted to failing to provide protection and medical care to her then-19-month-old daughter, who suffered broken bones and other injuries when she was beaten by her father. Both Salazar and the father relinquished their parental rights, and the daughter was placed in foster care.

Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment, Baird told Salazar not to have any more children. Here’s a report from the Statesman.

In an interview, Judge Baird told the Statesman that Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.

Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird’s order. “Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition,” he said.

Douglas Laycock, a Michigan law prof, said the condition of probation is “probably unconstitutional.” Said Laycock: “The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that. But undoubtedly there is a constitutional right to have children . . . and I doubt that one conviction for injury to a child is enough to forfeit that right.”

But Laycock says there is some chance the order will stick. He said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition. “So there’s room for argument here,” Laycock said. “But I would think that if she challenges this order, it will be struck down.”

Photo: iStockPhoto

San Diego’s Poway Unified School District has become a hotbed of free speech controversy.

First, it was sexual orientation that divided students at Poway High School. The battle culminated in a lawsuit after Tyler Chase Harper, a student, was prohibited from wearing a t-shirt to school that read, “Be Ashamed, Our School Embraced What God Has Condemned” on the front, and “Homosexuality is Shameful” on the back. Harper lost that case last year when a district judge, citing an earlier opinion, ruled that the t-shirt collided “with the rights of other students in the most fundamental way.” (Click here for LB coverage of a similar case in which the Sixth Circuit ruled in favor a Tennessee school that prohibited students from wearing “Rebel flags or symbols of [the] Rebel flag? on their clothes.)

Now another federal court has been asked to step into Poway’s free speech fray, ruling that school officials should not have made Brad Johnson, a math teacher at Westview High School, take down classroom banners with such phrases as “In God We Trust” and “God Bless America.” Here’s a report from the San Diego Union-Tribune.

In his decision, U.S. District Judge Roger Benitez denied a motion by the Poway Unified School District to dismiss the case, but he didn’t order it to do anything about Johnson or the banners. Benitez noted that, according to Johnson and his lawyers, the school district allows other teachers to choose what they display on their walls, including Tibetan prayer flags and posters with Buddhist and Islamic messages.

“By squelching only Johnson’s patriotic expression, the school district does a disservice to the students of Westview High School, and the federal and state constitutions do not permit such one-sided censorship,” he wrote.

The school district’s lawyer, Jack Sleeth, said the issue isn’t as simple as Benitez made it sound. “I was surprised by the tone,” he said. “This is a really complicated issue over which reasonable minds may differ.” He asked: “How much deference should the taxpayers give to the teachers they hire to assert their own political opinions?”

Chalk one up for Manuel Real. The Los Angeles federal judge and Law Blog staple (see here and here) has been repeatedly criticized for favoring one side over the other, for failing to adequately articulate the reasons behind his opinions, and for generally being difficult to deal with. Is there a more prolific newsmaker on the federal bench?

The judge yesterday won a victory in the 9th Circuit, reports the Daily Journal in Los Angeles (link unavailable, but click here for a blog post from the ABA Journal.) The court rejected a claim that Real should be replaced in a criminal case because defense lawyers were allegedly afraid of the judge.

The defendant’s lawyer, Ronald Richard of Beverly Hills, claimed that there’s “a generalized pattern of cowering by attorneys who appear in this district court.” But the 9th Circuit said the allegation was not supported by the record. “We note that neither [the defendant’s] attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings,” the court held.

“I’m very timid in front of him, and my clients don’t get my best efforts,” Richards told the Daily Journal. “Part of being an experienced lawyer is knowing when to back off. He’ll be short with you. He won’t look at you. He’ll be cantankerous, and it’s not for the weak-kneed.”

But it wasn’t a total victory yesterday for Real. The 9th Circuit held that Real erred in sentencing the defendant and remanded it back to the judge for further sentencing.

Loyal Law Blog Readers know we’ve got a minor fascination with courtroom attire, whether we’re talking about patent litigators, Supreme Court advocates or even the sartorial styles of the judges themselves.

Today, thanks to Florida Judge Daniel Perry, we get to address the topic as it relates to inmates who appear in court. According to this report in the St. Petersburg Times, Judge Perry, tired of seeing inmates’ underwear sticking out above their low-slung orange pants, delayed court for 1-1/2 hours yesterday and ordered all 61 inmates on his docket back to jail so that those wearing loose bottoms could change into pants that fit.

“I do not want to see these people in here again with their rear ends hanging out of their pants,” said Perry, according to a transcript. “We’re done.”

Perry’s displeasure reportedly drew a quick response from the Hillsborough County Sheriff’s Office. Deputies were reminded of proper sizing methods for inmates, and a selection of spare pants was delivered to the courthouse.

“Walking into court with your pants behind your knees is about the most unfavorable impression you can make,” said defense attorney Rick Terrana to the Times. “It’s like a slap in the face of the court.”

Sen. Larry Craig, R-Idaho, takes the oath of office during a mock swearing in ceremony in the Old Senate Chamber on Capitol Hill in Washington, Jan. 7, 2003. (AP/Evan Vucci)

Last time we delved into the story of U.S. Senator Larry Craig, a Minnesota judge had rejected Craig’s bid to withdraw his guilty plea stemming from a sex sting arrest in a Minneapolis airport bathroom. Judge Charles Porter, a member of the Law Blog Moustache Society, found Craig had entered the guilty plea “accurately, voluntarily and intelligently” and that it was too late to withdraw his admission.

Lawyers for the Idaho Republican gave it another shot at the state Court of Appeals.

According to a report in the Star Tribune, his lawyer, Billy Martin, argued to a three-judge panel that the case against Craig fails to show he participated in criminal conduct.

First, a Larry Craig Refresher: Craig was caught in June, 2007, by Sgt. Dave Karsnia in a sting operation at the airport. Karsnia was in a stall and said Craig peered in for more than two minutes from three feet away. When the next stall opened, Craig went in and then tapped his foot and waved his hand under the stall - behavior indicative of an interest in a sexual encounter, the complaint said.

Today, the panel reportedly gave Martin some push-back. When Martin talked about how Craig used a mail-in plea form rather than appear in person and lost a chance for an on-the-record discussion before the court about the charge against him, one of the judges asked, “didn’t [Craig] waive the right to a colloquy when he signed the form?”

Martin said he did but he did not waive the legal right that the complaint against him be adequate. He also argued that Craig’s behavior didn’t meet the standard for disorderly conduct because the law requires behavior to affect “others.”

Martin said Craig was responding to Karsnia’s hand swiping and the senator’s behavior “was invited conduct.” Also, he was merely standing in front of a door waiting for a stall to open and that behavior “has not tipped the balance to guilt beyond a reasonable doubt.” Martin said the judges “shouldn’t have to guess” what was happening from an inadequate record.

In response, prosecutor Chris Renz said the plea should be allowed to stand because Craig failed to show a “lack of adequate judicial review.” He argued that by using the mail-in plea, Craig waived his rights to appear and question the evidence.

Earlier today, as expected, the jet-setting, Anne-Hathaway-dating Raffaello Follieri pleaded guilty to conspiracy, eight counts of wire fraud and five counts of money laundering in connection with a real-estate investment scheme designed to fund his lavish lifestyle. Here’s the DJ Newswire story, and here’s the plea agreement, which contains an enviable list of fine timepieces that Folieri must forfeit.

“I did not have investor authorization to use the money that way,” Follieri said. “I knew what I was doing was wrong.”

Follieri, an Italian citizen, will likely be deported after he serves his time. He faces 51 months to 63 months under a stipulated sentencing guidelines range as part of his plea agreement. Sentencing is set for Oct. 3. As part of his plea, Follieri agreed to forfeit more than $2 million.

Click here and here for past LB coverage of the Follieri affair.

The wacky Texas death penalty case we blogged on last week has taken an unexpected turn. A judge and a prosecutor who handled the murder trial of Charles Dean Hood, who was convicted and scheduled to be put to death tonight, have admitted under oath that they carried on a secret affair for years.

Yet, when the highest criminal court in Texas decided yesterday to postpone Hood’s execution, it wasn’t because of the affair, but rather to reconsider whether the jury instructions were flawed.

Here are reports from the NYT and the L.A. Times. Here’s LB background.

“Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret,” Mr. Hood’s lawyer, Gregory W. Wiercioch, reportedly wrote to the governor. “She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.” He added: “Similarly, Mr. O’Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland.”

Hood, 39, is a former club bouncer who was 20 when he was arrested in Indiana for the fatal shootings of two individuals in Plano, Texas in 1989. Late Tuesday, the Texas Court of Criminal Appeals granted Hood a stay, saying it would reconsider its previous dismissal of Hood’s appeal challenging jury instructions. At the same time, the court dismissed claims that Hood had been denied a fair trial because of the alleged affair, the Associated Press reported.

Photo: AP

When the Spanish synchronized swimmers were banned from wearing suits embedded with waterproof lights at the Olympic Games in Beijing last month, the team quickly regrouped, ultimately taking to the pool in suits with a huge cartoon character emblazoned across front and back.

But one spectator wasn’t laughing, the German graffiti artist who goes by the name “Cantwo.” When an American friend sent him photos from Beijing the day after the games closed, Cantwo didn’t believe his eyes. “The piece on the suits looked very familiar,” Cantwo told the Law Blog. “Despite some color changes: To my mind the cartoon-style character was clearly taken from an artwork I sprayed on a wall in Muenster in 2001.”

Cantwo says neither the maker of the suits nor the Spanish Olympic Committee had asked him for authorization or had paid any licensing fees. “I have absolutely no idea how this Graffiti made its way to the Olympic stage, but I know: I can’t accept that somebody is copying my work, the work I have to live on.” These days, the work of the 38-year-old graffiti sprayer is more likely to be seen in international exhibitions than on buses or walls, though his paintings evoke the style and subject matter of the street.

Last week, the artist, who just opened an art exhibition in The Hague, Netherlands, engaged Leipzig based attorney Tilo Dinter to take legal action against the Spanish team. “In a first step, we will send a catalogue of questions to Spain in the next days”, Dinter says.

The attorney wants to find out who’s responsible for using the artwork, but he knows that will be tough. “It won’t be easy to identify the one person across the borders who caused the copyright infringement,” he says. “We’ll try to reach an extrajudicial agreement with the Spanish swimmers and the producer of the suits. But we won’t hesitate to take court action if necessary”, Dinter says.

The Spanish Olympic Committee did not respond to a request for comment.

For the graffiti artists, copyright cases are a common problem. “It is very disappointing that copyrights of our work are often not respected”, Cantwo says who received damages from a music label using one of his pieces illegally some years ago. “Strangely enough, but people think that because our work is public and it is sometimes illegally painted, they could use it any way they want.”

Photo: Getty Images

Lawyers for Duke University were recently forced into making an odd argument: As a matter of law, the Duke football team couldn’t be any worse.

Here’s the story from the Georgia Bankruptcy Blog, and here’s what happened: The University of Louisville (Go Cards!) filed suit against Duke in Kentucky state court because Duke backed out of a contract to play a four-game series against Louisville. Duke defended the decision based on a provision in the contract which stated that it had to pay a fee of $150,000 per game only if Louisville was unable to find a replacement opponent of “similar stature” to Duke.

What does similar stature mean? In discovery, Duke clarified that “any and all college varsity teams in the Football Bowl Subdivision (formerly Division I-A) are teams of a ’similar stature’ to Duke,” though it conceded that “junior varsity programs of any of the aforementioned teams would not be teams of a ’similar stature’ to Duke’s varsity college football team.”

At oral argument, a Duke lawyer said:

I think the Court can absolutely positively take judicial notice that Duke is probably the worst football team in Division I football. Everybody knows that. That’s no secret. The longest losing streak, the inability to ever win games. . .We certainly don’t have to go out and take six months of discovery to establish that for you. . .So the bottom line is how much discovery, if any, should anyone have to take, want to take or need to take to make the simple analysis of whether or not that was a team of similar stature? It’s judicial notice that they got beat by Utah. Maybe that’s part of the dispute -- that they wish they’d played somebody weaker, like Duke which would have been an automatic W.

On summary judgment, the court agreed:

The term ‘team of similar stature’ simply means any team that competes at the same level of athletic performance as the Duke football team. At oral argument, Duke . . . persuasively asserted that this is a threshold that could not be any lower. . .Duke won only one football game, and lost eleven, during the 2007 football season.

In the 1994 movie “Shawshank Redemption,” Morgan Freeman’s character, Red, tells Andy Dufresne, played by Timothy Robbins, “I’m known to locate certain things from time to time. They seem to fall into my hands. Maybe it’s ’cause I’m Irish.”

Bill Lerach — the plaintiffs lawyer who’s serving out a two-year sentence at a minimum-security prison camp after pleading guilty to participating in a scheme to pay kickbacks to lead plaintiffs — seems to have taken a page out of Red’s book. The Recorder’s Dan Levine reports that, earlier this summer, Lerach was placed in administrative segregation — locked down for 23 hours a day — after he allegedly offered a corrections officer the use of his San Diego Chargers season tickets.

The Recorder notes that, should a formal administrative proceeding go against him, Lerach would likely be forbidden from returning to the camp, and would instead be placed in a higher-security facility. He could also lose any “good time” he had accumulated toward early release.

Apparently, a little more than a month after Lerach checked into Lompoc, he was chatting with a corrections officer when the conversation turned to sports. The guard indicated he was a San Diego Chargers fan, and Lerach said he could use the season tickets if he wanted. The guard reported the conversation to Lompoc authorities, which kicked off a disciplinary investigation against Lerach.

A Bureau of Prisons spokeswoman declined to comment. Lerach’s lawyer, John Keker of Keker & Van Nest, was not available to speak on Monday afternoon.

“You take it on faith, you take it to the heart, the waiting is the hardest part.”



Was Tom Petty thinking of federal judicial nominees when he wrote those famous lyrics?

We presume not, but his words still apply to those long-suffering, would-be jurists who have to wait out the Senate confirmation process. Today, the Journal’s editorial page takes the Senate to task for a confirmation rate if calls one of the slowest in modern times.

Since the beginning of the year, the Senate has confirmed only four nominees, with 4th Circuit nominee Duncan Getchell (pictured) withdrawing his name out of “frustration at the interminable wait,” the WSJ’s opinionistas write.

What kind of wait are we talking about? According to the Committee for Justice, Bush’s picks have waited 348 days, on average,from nomination to confirmation, as compared to 238 days for Clinton’s nominees.

Political gamesmanship, of course, is endemic to the nominating process. And Democrats, for their part, claim delays are due to the fact that Bush has proffered more extreme judicial candidates.

LB Readers, what do you think? Has nominating gridlock really gotten worse?

Photo: Associated Press

By now you know. Yesterday, Treasury Secretary Hank Paulson announced a formal rescue plan to take control of troubled mortgage giants Fannie Mae and Freddie Mac and replace the companies’ chief executives.

Here’s the WSJ report, and here’s how the plan will go down: The Treasury will acquire $1 billion of preferred shares in each company without providing immediate cash, and has pledged to provide as much as $200 billion to the companies as they cope with heavy losses on mortgage defaults. The Treasury’s plan puts the two companies under a conservatorship, giving management control to their regulator, the Federal Housing Finance Agency, or FHFA. (The WSJ editorial board isn’t thrilled about it.)

As you might imagine, legions of lawyers helped cook up the deal. On Fannie’s side were Sullivan & Cromwell’s Rodgin Cohen and Mark Welshimer, who were assisted by lawyers from Latham & Watkins. Advising Fannie’s independent directors were Cravath’s Robert Joffe, Philip Gelston and Susan Webster.

Repping Freddie were Davis Polk’s New York-based partners Jeffrey Small, Randall Guynn, John Brandow, Phillip Mills, Nick Kronfeld and Luigi De Ghenghi, along with Covington & Burling’s D.C.-based Stuart Stock.

Wachtell’s Marty Lipton, Ed Herlihy, Harold Novikoff and Lawrence Makow repped the Treasury, while Cleary Gottlieb’s Ken Bachman, Alan Beller, Linda Soldo, Seth Grosshandler, Michael Mazzuchi and Derek Bush advised Morgan Stanley, which in turn provided financial advice to the Treasury.

On Saturday, the NYT had a piece entitled, “Behind the Gavel, a Sense of Style.” Of course we would never dispute the claim that judges can have a certain kind of style. But fashion?

Meet New York Criminal Court judge ShawnDya L. Simpson, whose name alone suggests strong originality. Apparently, when Judge Simpson dons her black robe she rarely fastens all the buttons and often accents it with a scarf or necklace. And on one recent day, reports the Times, she spiced things up with a lime-green suit.

“It’s a different era,” said Judge Simpson, 42. “I think some judges, you just kind of bring your personality to the bench.” On any given day in New York City’s courthouses, reports the Times, it is common to see judges on the bench with unzipped or unbuttoned robes; accessories like scarves, jewelry or collars hanging outside of a robe; and, in some cases, no robe at all.

Judge Simpson — a former model, TV legal commentator and fashionista — told the Times that being young and black already set her apart among judges, but that the robe can help her earn respect. Without it, she says, she’s been mistaken for a secretary, and men have flirted with her.

Still, Judge Simpson says she won’t compromise her style to look more judicial. “I don’t need a robe to define who I am,” she said.

LB Readers, any good tales of judges out there who have pushed things, style-wise?

To wrap up the week, let’s stay down in the Lone Star state and get you up to speed on one of the odder death-penalty cases we’ve ever read about.

It’s almost too nutty to be true: Lawyers for Charles Dean Hood (pictured), a convicted murderer set to die Wednesday, want retired state District Judge Verla Sue Holland and former Collin County District Attorney Tom O’Connell to be deposed about claims they had a secret affair during Hood’s trial. A hearing in civil court on whether to depose the two is slated for Monday. Here are stories from Reuters, the AP, and the Dallas Morning-News.

Holland, a former judge on the state’s highest criminal court, and O’Connell, now in private practice, have refused to address the allegations. The claim was first raised in an affidavit from a former assistant district attorney in O’Connell’s office.

In a move that surprised many, Texas Attorney General Greg Abbott on Thursday notified the court he would file a friend-of-the-court brief favoring a review of the allegations “to ensure that justice is certain and beyond question . . . as well as to preserve the integrity of Texas’ criminal justice system.”

Hood, 39, is a former club bouncer who was 20 when he was arrested in Indiana for the fatal shootings of two individuals in Plano, Texas in 1989. He was scheduled to die June 17 but his execution was halted because state prison officials said they didn’t have enough time to follow proper procedures before the execution warrant expired at midnight.

Photo: AP

We’ve written here and here about the battle between the Department of Labor and prominent immigration firm Fragomen, Del Rey, Bernsen & Loewy. The dispute involves whether the firm improperly advised some clients seeking permanent resident status for foreign workers. And now, thanks to a filing made by the DOL last week, we know a little bit more about the alleged Fragomen conduct that the DOL claims possibly stepped over the line.

But first, a quick recap. At issue are federal rules that require a company, as a condition for sponsoring a foreign worker for a green card, to certify to the Labor Department that the company has not been able to find a “minimally qualified” U.S. worker to fill the job.

Lawyers are limited in the extent to which they can assist companies in determining whether an American worker can be deemed qualified, according to Labor Department regulations that are aimed at preventing lawyers from helping find reasons not to hire qualified Americans. The department’s concern is heightened by the fact that companies usually seek green cards for foreign workers who are already on staff, so the companies have little interest in trying to find an alternate American worker for a job already filled.

In June, the Labor Department announced it was auditing all of the green-card applications filed by Fragomen, because of a concern the firm might have improperly helped companies review the qualifications of American workers. Fragomen has denied wrongdoing. And last month, it filed suit, claiming the Labor regulations violate clients’ First Amendment and due process rights. The firm seeks to enjoin the department from squelching attorney-client consultations on any aspect of the green-card process.

Last week, the department fired back, claiming in this filing that the injunction request is moot because the department issued a statement Aug. 29 clarifying that lawyers may in fact consult employers throughout the green-card process. (The department, however, continues to places limits on lawyers, including barring them from interviewing U.S. workers unless the lawyers routinely perform that function.)

The department also provided additional details about why it is auditing Fragomen. According to this declaration by a department employee, Fragomen stationed paralegals in some of its clients’ offices to possibly screen and assess applications by U.S. workers, which, the filings suggests, could be a violation of labor regulations. On Aug 12, according to the declaration, Fragomen admitted in a letter to the department that it has stationed employees with at least 11 clients and that at least one of these employees has pre-screened the resumes of U.S. workers and sorted them on the basis of their qualifications.

“As DOL now admits, legal advice can be given at any time throughout the [green-card] process,” says Thomas Williamson, a Covington & Burling partner representing the firm. “However, DOL continues to unlawfully restrict attorney-client consultation regarding the prescreening of resumes, which involves giving legal advice on a candidate’s qualifications under the complicated DOL rules.”