by John Weaver, Editor-At-Large

Last month, Margaret Spellings, the Secretary of Education, released a “Dear Colleague” letter on the topic of college loans. In it, she asks colleges and universities to protect the borrower’s choice of lenders and base lists of preferred or recommended lenders solely on the best interests of the borrowers. This has been necessitated by a college loan scandal that hit news wires earlier this year, in which a number of school financial aid officers accepted gifts or favors from college loan providers in return for preferential business treatment.

She also references pending changes to 20 C.F.R. 682 et al. that will take effect on July 1, 2008. In theory, these new regulations – in conjunction with pending legislation like H.R. 890 and the S. 486 – will curtail the practices of some lenders and schools regarding prohibited inducements. Where the current code and regulations state generally that lenders and guarantors may not offer inducements to schools to secure loans, the pending code and regulations specifically state actions that are prohibited or that will be considered prohibited inducements. Additionally, H.R. 890 requires that every school participating in federal student loan programs have a code of conduct that prohibits school employees from engaging in activities with lenders and guarantors that constitute a conflict of interest or the appearance of a conflict of interest. This attempts to make law many of the requests Spellings has made in her “Dear Colleague” letter from last month.

The greater question, though, is how needed are these changes?

In Unfinished Business, his new book and the latest in the Inalienable Rights series by Oxford University Press, University of Virginia law professor Michael Klarman examines the history of the civil rights movement and the work that remains to fully achieve its vision. Assessing the ultimate effectiveness of seminal Supreme Court cases such as Brown vs. Board in light of subsequent events, he suggests a potential empirical basis for the constitutional minimalism suggested elsewhere by, for instance, University of Chicago law professor Cass Sunstein.

Today, ACS released an issue brief entitled "Reinventing the President's Pardon Power" by former United States Pardon Attorney Margaret Colgate Love. She asks:

How is it tolerable, in a democracy, for the president to be able to reach into the machinery of criminal justice to pluck out one of his close associates, particularly if ordinary people have no hope of similar favor? The answer is, it isn't. The president's constitutional pardon power was never supported to be used the way it was in the Libby case, and in our country's history it rarely has been.

by Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums

Editor's Note: Kimbrough was argued before the Supreme Court yesterday. A transcript of the argument and video from ACS' Supreme Court Preview on the sentencing guidelines is available here.

There is heightened anticipation among those interested in criminal justice that the United States Supreme Court, in Kimbrough v United States, will allow judges to disregard the federal sentencing guidelines that can punish low-level crack cocaine offenders far more seriously than their high-level powder cocaine suppliers, so long as the judge determines the resulting sentence is greater than necessary to achieve the goals of sentencing. Judges may so conclude because the guidelines equate 1 gram of crack cocaine with 100 grams of powder cocaine even though the two drugs are virtually indistinguishable. While the Court decision holds critical implications for judicial independence and may even shorten prison time for some offenders, the outcome will not substantively address the incredibly inequitable crack cocaine mandatory minimum set by Congress. Only Congress can fix the mandatory minimum crack cocaine penalty structure.

In 2005, Derrick Kimbrough pled guilty to distributing 50 or more grams of crack cocaine, distributing cocaine, conspiring to distribute 50 grams of crack cocaine, and possession of a firearm in connection with a drug-trafficking crime. If sentenced according to federal sentencing guidelines, Kimbrough would have received between 228 and 270 months for his crimes. Judge Raymond Jackson of the United State District Court for the Eastern District of Virginia found that the sentence mandated by the guideline was too harsh after weighing other factors, including Kimbrough’s honorable discharge from the armed forces and his limited criminal record only marked by misdemeanors. (Petitioner’s Brief) Instead, Judge Jackson sentenced Kimbrough to 180 months in prison, the mandatory minimum sentence he was required to impose. The prosecution successfully appealed the ruling because the sentence fell below the minimum prescribed by the Federal Sentencing Guidelines.

Yesterday, the U.S. Supreme Court heard arguments to determine to what extent district courts can take into account disagreement with the 100:1 ratio when sentencing defendants under the guidelines for crack cocaine offenses. What the Court cannot and did not consider is if a judge must abide by mandatory minimums. They must, until Congress reforms the law.

This morning, the Supreme Court will hear arguments on the election law case Lopez-Torres. Earlier this week, it heard arguments on another election law case, Washington State Grange v. Washington State Republican Party, regarding which Bob Bauer wrote this guest blog entry.  (Transcript of the argument available here).

Paul Smith, a partner with Jenner & Block LLP, examined Lopez-Torres and the other election law cases the Supreme Court will hear this term at ACS' Supreme Court Preview. 

Smith discusses Lopez-Torres in this video excerpt.

This morning the Supreme Court heard arguments in Gall v. U.S. and Kimbrough v. U.S., two cases regarding federal sentencing guidelines. (Transcripts of arguments here and here.)

Carol Steiker, professor of law at Harvard University, evaluated these cases at ACS' Supreme Court Preview on Wednesday.

Professor Steiker discusses how judges from across the ideological spectrum reject the sentencing guidelines' harshness.

Charlie Savage, author of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, appeared on the Colbert Report last night. Savage recently won a Pulitzer prize for his reporting on presidential signing statements and has addressed several ACS chapters around the country.

Today's Progress Report argues that the conservative voting bloc on the Supreme Court are carrying forward a predetermined agenda outlined by Ronald Reagan's Attorney General, Ed Meese, in two documents released the 1980s. According to the report on "The Roberts Four:"

The Guidelines on Constitutional Litigation, ordered Justice Department litigators to advance a particular view of the Constitution, listing decisions it viewed as “consistent” and “inconsistent” with the Reagan administration’s interpretation of the nation’s founding document.

In The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, the Attorney General’s advisors predicted what constitutional questions would be controversial during the 1990s and subtly suggested the administration’s preferred answers to these questions itself. This document also made clear that the way to achieve the desired changes in the law was through judicial appointments, saying, “There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government – the federal judiciary.”

These two documents together formed a roadmap for moving the law in the service of an agenda. Under the leadership of Chief Justice Rehnquist, the Court made considerable headway down the charted path, most notably in the area of “federalism”—restricting the power of Congress to protect the public interest. But with O’Connor on the Court, the conservatives sometimes lacked the necessary five votes.

Now, Roberts and Alito share the driver’s seat, are following the predetermined route, and have already approached several of the desired destinations. There are four areas in particular where the Roberts bloc on the Court has already furthered, or sought to further, the very agenda laid out in the Meese documents: access to the justice, abortion rights, voluntary school desegregation, and the exclusionary rule barring the use of unlawfully seized evidence against a criminal defendant.

The report concludes:

Other important areas covered in the Meese documents, such as federalism, takings, the executive power of the president, and the substance of the Establishment Clause, have not yet come before the Roberts Court. It will, however, have ample opportunities to address these issues in the future. This Court is young, with many years ahead to complete the job. Those who might wonder what the future holds need only consult the roadmap of the 1980s, and then look at the long list of Supreme Court cases decided by 5-4 votes, with O’Connor providing the margin of difference.

Below the fold is a selected list of Congressional hearings scheduled for the upcoming week. A complete list is available here.

Tomorrow, the U.S. Supreme Court will consider Gall and Kimbrough, two cases regarding federal sentencing. Denver University Law Review just released a survey on federal sentencing in time for the arguments before the Court.

Articles after the jump.

by Robert F. Bauer, partner and Chair of the Political Law Group at Perkins Coie

Editor's Note: This is the first article in a series that analyzes cases argued before the U.S. Supreme Court this term. Washington State Grange v. Washington State Republican Party will be argued before the Court this morning.

Political parties are having a hard time, and as the Supreme Court meets this week, it will hear their most recent complaint. It is not the complaint most in the news, as each national party grasps for control over its own Presidential nominating schedule. The Court will hear from parties that one state, Washington State, has approved what is called a “modified blanket primary” system, the effect of which is to deprive them of their right to choose their own candidates for partisan political office.  Washington State Grange v. Washington State Republican Party, 460 F.3d. 1108 (2006).

Under the Washington arrangement, approved in 2004 by initiative, all voters of all parties participate in a primary, voting for any candidate they choose. The top vote-getters face each other. But any candidate can express her party preference, at her option, and this preference is reflected on the ballot. Hence the candidate who emerges may be associated with a party, by self-selection, but without the party’s consent, and perhaps over its active opposition. In fact, this system could produce two candidates identifying themselves as, say, Republicans, and they will face each other: but neither may be truly a Republican, and neither may have any support within their own party, or the backing or endorsement of any formal party process such as a convention.

The Republican party, challenging this arrangement, has won both rounds in court, leading to the case now before the Supreme Court. The State of Washington believes that the Republicans have it wrong in imagining that their associational rights are infringed by the blanket primary. 

The Supreme Court Term opens today. ACSBlog will feature expert commentary and analysis, video from ACS events that examine issues before the Court, and news updates.

The Court will hear arguments in the following cases this week:

Monday, Oct. 1
(1) Washington State Grange v. Washington State Republican Party (consolidated) (election law -- primaries)
(2) Bd. Of Ed. Of City of N.Y. v. Tom F (Individuals with Disabilities Education Act and tuition reimbursement)

Tuesday, Oct. 2
(1) Gall v. U.S. (sentencing guidelines deviation)
(2) Kimbrough v. U.S. (sentencing guidelines/ crack-cocaine sentencing disparity)

Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Questions Presented are below the fold.

The following three reports were issued last week:

• "The Arbitration Trap: How Credit Card Companies Ensnare Consumers" was released by Public Citizen
• "Medical Injustice: The Case Against Health Courts" was released by the American Association for Justice
• "Federal Student Loan Repayment Assistance for Public Interest Lawyers and Other Employees of Governments and Nonprofit Organizations" was released by Professor Schrag of Georgetown University Law Center.
  

Microdrones is selling a 2-foot wide unmanned aerial vehicle equipped with a high-resolution video surveillance equipment and infrared night vision capability. This mini-spy helicopter is already being used by police overseas.

The latest model, costing $60,000, can fly for 20 minutes at a time, follow instructions linked to GPS coordinates, and transmits a color image to its operator who can operate the craft in real-time. It can also fly high enough to remain unseen and unheard.

Video of the MicroDrone UAV is action is available at GizmoWatch.

Luke Debevec writes in the Legal Intelligencer that Attorney General nominee Michael Mukasey, were he confirmed, would

Step into the Justice Department at perhaps its most controversial moment, with significant concerns still being raised about inappropriate politicization of U.S. attorney investigations and the Justice Department as a whole, stalled congressional inquiries, unfulfilled document requests, and embarrassingly strained arguments from government lawyers defending torture, indefinite detention of U.S. citizens, and illegal wiretapping and electronic surveillance.

Debevec concludes that "any strategy intended to keep Mukasey from forthrightly answering the most important questions that he will face does a disservice to the country."

This week was the 50th anniversary of the desegregation of Little Rock Arkansas' Central High School. Michael Klarman writes on Huffington Post about why Little Rock was an "epic event" in the modern civil rights movement.

First, the president's willingness to use troops demonstrated that southern school districts could no longer ignore desegregation orders issued by federal courts. . . .

Second, Little Rock was the first in a series of dramatic public confrontations over civil rights that ultimately shifted national opinion in favor of progressive racial change. . . .

Third, although Little Rock should have discouraged extremism by demonstrating the futility of massive resistance to Brown, its immediate effect was to further radicalize southern opinion and to empower politicians who promised to defy "federal tyranny."

Ultimately, "it was the violence inspired by confrontations like the one in Little Rock that made [civil rights] legislation possible. Ironically, the harder southern whites fought to maintain white supremacy, the more they seemed to accelerate its demise."

Klarman has just published a new book, Brown v. Board of Education and the Civil Rights Movement, which provides an in-depth discussion of the effects of the Brown decision.

Yesterday, the Senate Judiciary Committee held a hearing on the Free Flow of Information Act of 2007 (S. 2035), which would grant journalists limited protection from efforts to force them to reveal their sources in federal courts, the New York Times reported. The legislation is weaker than Department of Justice's guidelines on issuing subpoenas to reports as well as most state's journalist shield laws, says the New York Times, and would apply only to information obtained from confidential sources.

With regard to confidential sources, the bill carves out an exception for when "the information sought would help prevent a specific case of terrorism or 'significant harm to national security that would outweigh the public interest in news-gathering and maintaining a free flow of information to the public.'" It would allow subpoenas in other instances once criminal defense lawyers and civil litigants demonstrate they have "exhausted alternative ways to obtain the requested information, that the information sought was essential to the case, and that the public interest in disclosure outweigh that in the maintaining the free flow of information."

The legislation defines a journalist as "anyone who collects and disseminates information of public interest, including bloggers, with the requirement that the activity be conducted on a regular basis."

Immigration officials have unveiled a new test for immigrants to become citizens, the New York Times reports.

Here is the government document that describes how an immigrant becomes a citizen. There are two major components to the test: a civic test and an English test. For the civics test, an applicant will be asked 10 questions, 6 of which must be answered correctly. The questions are drawn from American government, civics, and American history. Here is a list of the possible questions.

The English test has three components: an oral test, a reading test, and a writing test. The oral test is comprised of the questions normally asked during the naturalization interview. In the reading vocabulary test, applicants will be given three chances to read a sentence in English. A vocabulary list is available here. In the writing test, applicants will have three chances to correctly write a sentence dictated by the adjudications officer. A list of vocabulary words for this test is available here.

This document compares the old and new civics test. Some questions from the new civics test are after the jump.

A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit took the unusual step of granting summary judgment against Experian Information Solutions, holding that the credit reporting agency violated a federal law that requires credit agencies to take reasonable steps to verify the accuracy of credit reports and review reports that have been challenged, and directed the district court to calculate damages and attorney's fees, the Los Angeles Times and San Francisco Chronicle reported. The company had placed an erroneous filing on Jason Dennis' credit report and refused to change it.

In his opinion, Judge Kozinski wrote "This case illustrates how important it is for Experian, a company that traffics in the reputations of ordinary people, to train its employees to understand the legal significance of the documents they rely on." The court additionally held that Dennis is entitled to a trial on the claim that Experian failed to adopt reasonable procedures to ensure accuracy.

Yesterday, The Wall Street Journal reported on a dispute between the chief military prosecutor at Guantanamo Bay and the Pentagon official serving as legal adviser to the trial's administrator, former military judge Susan Crawford. The prosecutor, Air Force Colonel Morris Davis, has reportedly filed a formal complaint against Brigadier General Thomas Hartmann, alleging that Hartmann has exceeded his authority in attempting to influence prosecutorial decisions despite his role of providing impartial legal advice to Crawford. 

While Col. Davis recovered from recent surgery, Gen. Hartmann reportedly commandeered the prosecution office, directing increased focus on high-profile cases calculated to build public support for the tribunal system despite involving closed proceedings. In contrast, Davis has focused on cases relying on unclassified evidence in order to address criticism of secret proceedings by opening tribunals to the press. According to Morris, who has led the prosecutor's office since 2005, "If someone above me tries to intimidate me in determining who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution then I will resign."

Today, The Hill reports that Defense Secretary Robert Gates has been frustrated in his attempts to gain a consensus within the Administration about how to close the detention facilities at Guantanamo Bay, but reiterated his aim to do so to Senator Tom Harkin (D-IA) at a recent Senate hearing.

Federal District Court Judge Ann Aiken struck down two provisions in the USA PATRIOT Act that permit "the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment," and thereby "in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any meaning."

The FBI had erroneously linked attorney Brandon Mayfield to a terrorist attack in Spain, and secretly searched his "house and law office, cop[ied] computer files and photos, tape[d] his telephone conversations, and place[d] surveillance bugs in his office using warrants issued by the [FISA] Court," the Washington Post reported. The amendments to FISA under the USA PATRIOT Act permit surveillance and searches so long as the government declares "a significant purpose" of that activity to be the gathering of foreign intelligence, replacing the previous requirement that gathering foreign intelligence be "the purpose" of that activity.

Judge Aiken wrote that "in place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate." She added, "A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised."

Today, the Senate added the Local Law Enforcement Hate Crimes Prevention Act, H.R. 1592, to the 2008 Department of Defense Appropriations Bill. The bill, co-sponsored by Senators Edward Kennedy (D-MA) and Gordon Smith (R-OR), would “extend the hate crimes category to include sexual orientation, gender, gender identity or disability and give federal authorities greater leeway to participate in hate crime investigations.”

Today, ACS hosted a panel discussion that previewed the upcoming Supreme Court Term. The panel was moderated by Thomas Goldstein, founder of SCOTUSBlog (and head of Akin Gump's Supreme Court practice), and featured:

• Neal Katyal, Professor of Law at Georgetown University Law Center and Supreme Court advocate in Hamdan v. Rumsfeld.
• Christopher Landau, head of the appellate litigation practice at Kirkland & Ellis LLP and Supreme Court advocate.
• Virginia Seitz, a partner with Sidley Austin LLP  and Supreme Court advocate.
• Paul Smith, co-chair of the appellate and Supreme Court practice at Jenner & Block LLP and leading Supreme Court advocate
• Carol Steiker, Professor of Law at Harvard Law School and author of Criminal Law and Its Processes.

The panelists perspectives ranged across the ideological spectrum and the discussion focused on the key cases for the upcoming term. Video of the panel is available here.

ACSBlog will run excerpts from this discussion in the upcoming days and will continue to publish analysis and commentary on the Supreme Court over the upcoming term.

In a recent Slate article published yesterday, Dahlia Lithwick argues that the Senate Rules Committee should not approve Hans A. von Spakovsky to a full term on the Federal Elections Commission. Why?

Von Spakovsky was one of the people who helped melt down and then reshape the Justice Department into an instrument aimed at diminishing voter participation for partisan ends. . . . [E]ven a brief poke at his résumé shows a man who has dedicated his professional career to a single objective: turning a partisan myth about voters who cast multiple ballots under fake names . . . into a national snipe hunt for vote fraud.

 

The hearing is today.

Today the Senate Judiciary Committee held a hearing on the nomination of Judge John Daniel Tinder to the United States Court of Appeals for the Seventh Circuit.

In his prepared remarks, Senator Leahy pointed out that:

This session of Congress, the Committee has reported out 34 lifetime appointments to the federal courts and the Senate has already confirmed 29 of them. That is eight more confirmed by the middle of September this year than were confirmed in all of 2005 when the Senate . . . was considering the nominees of this . . . President. It is 12 more confirmations than were achieved during the entire 1996 session . . . .