De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

Yesterday afternoon, the General Assembly unanimously elected William C. Mims to the Supreme Court of Virginia, effective April 1. The VLW Blog has the story, as does WaPo's Virginia Politics Blog. The Richmond Times-Dispatch has a blurb, and carried a short editorial about Mims a few days ago. That editorial read, in part:

Mims has earned the commonwealth's trust. He has served ably not only in the attorney general's office, but in the legislature. An individual with principles, Mims possesses a judicial temperament. We cannot think of a more fitting choice for the state's highest court.

High praise, indeed. Congratulations, Justice Mims.

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Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don't pretend to know this stuff) shows that Mims is a Republican who's served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell's Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell's term. Mims did not run for a full term as Attorney General. 

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In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

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Virginia Lawyer's Weekly reports that the U.S. Senate has unanmiously confirmed Justice Keenan for a seat on the Fourth Circuit. The Senate voted for cloture on her nomination this afternoon, then confirmed her by a 99-0 vote. Great news, and congratulations to the new Judge.

Now, about those other three vacancies . . .

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There hasn't been much news on Justice Keenan's nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia's two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.

According to the VLW Blog, Sens. Webb and Warner note that Justice Keenan has been a trailblazer for female jurists. She passed the Judiciary Committee by a unanimous voice vote in October. And, as further evidence of her bipartisan support, Webb and Warner point out that McDonnell had requested that she swear him in as governor.

That's an interesting point. There was some commentary on the interwebs to the effect that Justice Keenan was a "relative moderate" without a real track record on LGBT issues. To the author's way of thinking, she's ruled the correct way in two LGBT cases on the SCV, but only for procedural reasons.

Leaving aside the merits of that position, at least it sounds like there's general agreement that Justice Keenan calls balls and strikes. Isn't there something about "being an umpire" in her job description? Yes, I'm certain I remember reading that somewhere once.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

That's right. Thank you, Mr. Chief Justice.

All true. And to that I would add that Justice Keenan an excellent judge. It may be only marginally relevant to the political process, but she does a terrific job on the SCV and will do equally well on the Fourth Circuit. So let's get on with it.

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The Supreme Court of Virginia is in session this week. Here's the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.

Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert's website on Thursday.) Friday will be devoted to hearing writ arguments rescheduled from the most recent snowpocalypse. Those writ arguments had originally been pushed back to March 31, so this is a positive development.

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Steve Emmert reports that today's writ arguments before the Supreme Court of Virginia have been postponed. The Chief Staff Attorney's office advises that appellants are being given the choice of arguing by telephone tomorrow, waiving oral argument, or arguing in person at a later date. (As a fairly obvious practice point, it's never a good idea to waive a writ argument and I have trouble imagining a situation in which doing one by phone makes sense.)

The next writ panel is scheduled for March 31.

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On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

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Here's the merits argument lineup for next week in the Supreme Court of Virginia. Civil cases follow after the jump.

We'll be in Richmond on Friday. Give me a shout if you will be in town and would like to grab lunch.

Criminal Cases

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Stunning news from Yorba Linda Washington, DC: appellate superstar and SCOTUSblog mastermind Tom Goldstein has issued a shocking public apology: 

It's hard not to like the guy, but I am reserving judgment until I see the text messages.

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All productive work at the Firm on the Move (TM) instantly ground to a halt today when the VLW reported the finalists in the William & Mary mascot search. The W&M website has pictures of the finalists. I'd post them, but I'm not sure about the trademark implications and I think that I'm still bound by the honor code.

Here are the finalists and our thoughts:

• The Griffin. What's that, a nod to our Quidditch team? No D&D mascots, thanks. Nerds.
• King and Queen. Wow, that's creative. We'd definitely be the first school in the Old Dominion to use Monarchs as a mascot. On the other hand, the transgender queen is a nice touch.
• The Phoenix. Crap.
• The Pug. Dogcrap.
• The Wren.  I guess this one has potential. We'd get our Tribe with Feathers after all, that late unpleasantness with the NCAA notwitshtanding. And the Wren actually has a connection to the school. (Ahem, Griffin.)  It looks like we have a winner by default--although it really is a shame that not everyone can lose.

And now back to our regularly scheduled programming.

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Obviously aware that my birthday is coming up, James Markels over at the Virginia Business Law Blog forwarded a link to FantastySCOTUS.net. Billed as the premier Supreme Court fantasy league, it's basically fantasy football, except that you win points by picking the outcomes of decisions, the split, and how the individual justices will vote. Hilarious. Josh Blackman seems to be the mastermind behind the site. Well played, sir.

Looks like Green Bag will have to step it up this year.

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On Thursday, the Supreme Court of Virginia released a batch of opinions. I know that I'm late to the party--I've been out sick--but here is a quick run down of the results:

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The VLW Blog reports that the Senate Judiciary Committee has unanimously approved Justice Keenan's nomination to the Fourth Circuit. Justice Keenan is President Obama's second nominee for one of the five open spots on that court. The National Review Online states that ranking minority member Jeff Sessions called Justice Keenan a "fine nominee." 

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The Supreme Court has posted its November argument docket. The court will hear argument in 27 cases over five days. The 27 cases include

• 16 criminal cases;
• 11 civil cases;
• 2 cases in which Roanoke lawyers (not us) represent the appellee; and
• 1 case, Shapiro v. Younkin, argued pro se on both sides. Zoinks.

I'd originally had a civil case scheduled to be argued in November, but it was bumped. Any thoughts on the cases to watch now that I have a free week?

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Sorry for the lack of substantive posts recently. I have a four-day jury trial this week.

I will return to the blogosphere as soon as possible.

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Careful readers will notice that the right side of the blog looks slightly different. That's because the geniuses at lexBlog have built in some cool new social media tools.

If you scroll down slightly, you will see Facebook and LinkedIn badges on the right side of the website. You can click on them to access my profile and friend me or add me to your network. Also handy for some light internet stalking, but I don't think that you're going to find anything too juicy on me.

The real gem is a the Twitter module just below the badges, which shows my most recent Twitter posts. You've gotta check this thing out. If you're not on Twitter, you are missing out. It's a tremendous information-sharing tool.

I was skeptical at first, too. As much as 140 characters about what THE_REAL_SHAQ ate for lunch might interest some people, it didn't seem like my cup of tea. But I sucked it up and gave it a shot, and it turns out Twitter is a tremendous way to gather and disseminate information. Look at the posts in my module. As I'm writing this, they include:

• a link to Dahlia Lithwick's hilarious write-up of the oral argument in U.S. v. Stevens;
• a note about Hollins soccer's game tonight (longtime readers know that my wife, Carrie, coaches the team);
• a link to a video of the Federalist Society's OT SCOTUS preview;
• a link to ATL's interview with Justice O'Connor; and
• a link to SCOTUSblog's preview of Salazar v. Buono.

If you're reading this blog in the first place, at least four of those are worth your time. None would merit a whole blog post.

Twitter lets me get that information out efficiently to the people who are following me. They're basically a self-selected group who share my interests. If they like the stuff I've posted, they can retweet it to their followers, and disseminate the information further. If they don't, they can ignore it. And if you're on Twitter, you get the benefit of dozens of people with similar interests culling and transmitting relevant information. What a simple but amazing tool.

I strongly encourage you to sign up for Twitter if you're not using it already. If you're on the fence, use this blog as a trial run. Check out what pops up on the Twitter module and see if it interests you.

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Justice Keenan, who has been nominated for a seat on the 4th Circuit, will appear before the Senate Judiciary Committee on Wednesday at 4:00 p.m. Our friends at The VLW Blog report that the entire nomination hearing will be webcast.

Yesterday, Virginia Lawyer's Weekly reported that eight candidates have alerted the Virginia State Bar that they would like to be considered for the vacancy that Justice Keenan's appointment to the 4th Circuit would create. They candidates interested in the potential opening are:

• Virginia Court of Appeals Judge Robert J. Humphreys;
• State Sen. John S. Edwards of Roanoke;
• Petersburg Circuit Judge Pamela S. Baskervill;
• Loudoun County Circuit Judge Thomas D. Horne;
• Alexandria Circuit Judge Lisa B. Kemler;
• Fairfax Circuit Judge Jane M. Roush;
• Stuart A. Raphael, a partner in the McLean and Washington offices of Hunton & Williams; and 
• Elwood E. Sanders Jr., an attorney with Lantagne Legal Printing in Richmond.

The VSB's judicial nominating committee recently vetted Senator Edwards and Judges Humphreys and Horne, so it will not reinterview them. It will meet with the remaining candidates on October 12.

Of course, the candidates may be in for a long wait. As an editorial in this morning's Baltimore Sun notes, President Obama nominated Judge Andre Davis for another opening on the 4th Circuit. The Senate Judiciary Committee approved Judge Davis 16-3 in June, but he is still awaiting a vote on his nomination.

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Tony Mauro at the National Law Journal reports that Justice Ginsburg was hospitalized yesterday after feeling faint in her chambers. She had just received an iron sucrose infusion to treat an iron deficiency anemia. A medical evaluation revealed that she had low blood pressure, which can occur during this treatment. Justice Ginsburg was treated at the Court, then taken to the hospital as a precaution at about 7:45 p.m.

In February, Justice Ginsburg was diagnosed with pancreatic cancer. It was treated successfully with surgery and chemo. Readers of this blog know that, while we may not always agree with Justice Ginsburg's opinions, we have enormous respect for her accomplishments. The 76-year-old justice makes Rambo look soft. We wish her a speedy recovery.

Update: Justice Ginsburg has been released from the hospital and plans to be back at work this afternoon.

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The Supreme Court of Virginia released 15 published opinions today. For the true appellate geeks/scorekeepers out there, the Court also makes available a list of counsel in cases decided.

Our friends at VLW have promised a special Supreme Court edition of their daily alert later this afternoon. We'll keep you posted.

Finally, one of the highlights of opinion day is Steve Emmert's take on the opinions, which he usually manages to crank out the same day. Keep an eye on his page.

Update: The VLW Blog has numerous write-ups of the decisions on its website; it's easire to link to their site than each individual post. As always, Mr. Emmert has done a fine (and funny) job of summarizing the opinions.

And as an unexpected bonus, the Virginia Business Law Blog has a nice discussion of our favorite decision of the bunch, Dunn Construction v. Cloney.

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The esteemed Chancellor of the College of William & Mary made her first trip to the Roanoke Valley today, picking up an honorary doctorate from Roanoke College and giving a rousing Constitution Day speech. As stately, funny, and fearless as ever, Justice O'Connor garnered four standing ovations while speaking on a holiday that, by her own admission, falls somewhere in the national conscious between Groundhog Day and Talk-Like-A-Pirate Day.

Part of Justice O'Connor's mission was to fix that. But more on that later.

The Justice started off her speech by reiterating some points that she's been making recently about the importance of an independent judiciary and the danger of elected judges. If only there were a recent SCOTUS decision to help her make that point . . . 

Justice O'Connor did get to Caperton eventually, but she set the stage by explaining that the majority of state court judges in our country are popularly elected--a concept that is foreign to much of the world, and which she characterized as unfortunate and dangerous. Justice O'Connor stressed the need for judges to be free to apply the law without prejudice, and without regard to popularity or fear of retaliation.

By way of example, she offered Loving v. Virginia, and explained that, when the Lovings were married, 96% of the white population favored anti-miscegenation statutes. That number was lower by the time the case made it to the Supreme Court, but at the time of of the decision, 72% of Southern whites still favored such laws--which, as it turns out, violate the equal protection and due process clauses of the 14th Amendment. She challenged the audience to imagine the popular pressure to uphold those laws. An elected justice who sought to overturn them would only be replaced by someone more in line with the popular consensus.

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As the Roanoke Times reported yesterday, longtime federal prosecutor Tom Bondurant will be joining our firm in October. We are very excited to start working with Tom, who has spent 30 years as a federal prosecutor, the last nine as the Criminal Chief Prosecutor in the U.S. Attorney's Office here in town. He was also involved in Operation Big Coon Dog, perhaps the most felicitously named public corruption investigation of all time. Take that, Teapot Dome!

This development is exciting for another reason: toys. The Roanoke Times has this description of some of the things one might find in Tom's office:

There's a patch-covered jacket of a slain member of the Pagans motorcycle gang, mounted in a frame and covered in glass. There's a pipe bomb, safely labeled with an "Inert" sticker but with a timer that ticks ominously when the bomb is lifted.

There's a drawing of Bondurant questioning a witness and another of his favorite bar in Abingdon. There's a cartoon of him tallying convictions.

In my office, I have a letter opener shaped like a duck and a free paperweight from Thompson Reuters. Advantage: Bondurant.

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On Monday, President Obama nominated Supreme Court of Virginia Justice Barbara Milano Keenan to fill one of the vacancies on the Fourth Circuit. The White House press release is here. Our friends at the VLW Blog have the story, as does WaPo and, by now, everybody with Google Reader.

Not much to add. It's hard to talk about Justice Keenan without using the word "trailblazer." She has served on each of the four levels of Virginia's court system (General District Court, Circuit Court, Court of Appeals, and Supreme Court). She was the first woman to sit on three of those benches; by the time she made it to the Supreme Court in 1991, Justice Keenan was just the second woman to sit on the Court. She's scary smart and, as readers of this blog know, a class act. We wish her the best of luck with her confirmation.

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As a follow-up to our earlier post, the audio from today's historic oral argument in Citizens United v. Federal Election Commission is now available on C-Span. Here's the link.

Further update: And here is the transcript, courtesy of PBS via our friends at SCOTUSblog. Dahlia Lithwick has a neat discussion of the argument at Slate.

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The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court's senior justices will likely sit in for him during his absence.

We wish the Chief a speedy recovery, and are glad to read that he is feeling better.

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Here's some exciting news: the Supreme Court will release the audio from Wednesday's argument in Citizens United v. Federal Election Commission "shortly after the conclusion of the argument." SCOTUSblog has the scoop, as well as an argument preview.

Citizens United is a major campaign-finance case with potentially serious constitution implications. You might remember it as the case about Hilary: The Movie--apparently either a feature-length documentary about Secretary Clinton's run for the presidency or the world's longest attack ad, depending on your point of view.

Here's the trailer. It works better if you say "From the producers of South Park" just before you hit play:

Did I hear "venal" in there? That's a little harsh.

Somehow along the way, Citizens United has morphed into a case about the extent to which corporations enjoy the free-speech protections that the constitution offers to individuals in the context of modern campaigns.

In addition to fine cinema and free speech issues, Citizens United offers many enticements to the appellate geek. Wednesday's argument will mark the high court debuts of Associate Justice Sonia Sotomayor and Solictor General Elena Kagan. The Court's Day Call boasts an all-star lineup for the oral argument:

• Ted Olson, arguing for 30 minutes on behalf of Citizens United;
• Floyd Abrams, arguing for 10 minutes in support of Senator Mitch McConnell, as an amicus in support of Citizens United;
• General Kagan, arguing for 30 minutes on behalf of the FEC; and
• Seth Waxman, arguing for 10 minutes on behald of Senator McCain and others as amici in support of the FEC.

 This could be one for the case books, if not the history books. We'll keep you posted.

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A little something to tide you over until the Supreme Court of Virginia hands down its next set of opinons on September 18th: on Friday, the Court unpublished orders in two cases. One, D.R. Horton, Inc. v. Zambrana, deals with prejudgment interest. The other, Higgs v. Director, Dep’t of Corrections, is a habeas case.

Credit to Steve Emmert, who has the write-up here.

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The Supreme Court of Virginia has posted its September 2009 argument docket. The Court will hear argument in 31 cases. Here's the quick break down:

• 15 criminal cases;
• 9 civil cases;
• 5 State Corporation Commission cases;
• 1 original jurisdiction case; and
• 1 Judicial Inquiry and Review Commission case.

What are the arguments to watch this September? Let me know what you think.

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