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BUSH TAKES NO BREAK ON RECESS APPOINTEES Deborah Majoras, the new chair of the Federal Trade Commission, didn’t get her job the old-fashioned way � by being confirmed by the Senate. Instead, the Jones Day partner was part of a raft of White House appointments made July 30 during the congressional recess. The appointments President George W. Bush made that day are just the latest of an estimated 100 recess appointments the president has made since taking office in 2001, a review of presidential appointments shows. Administration observers say Bush turns to recess appointments sooner and more often than his predecessors, bypassing the Senate confirmation process on positions ranging from agency heads to federal judges. Majoras, for example, was just one of 20 recess appointments on July 30. The list also included Jon Dudas to head the U.S. Patent and Trademark Office, and Ricardo Hinojosa to chair the U.S. Sentencing Commission. Paul Light, a professor of public service at New York University and a fellow at the Brookings Institution, argues that the administration could be creating a class of high-level bureaucrats, such as Majoras, who pack decreased political clout. “They might as well be wearing an armband that says ‘recess,’ ” Light says. “ You don’t get your phone calls returned as quickly. You don’t have the same political authority in your actions.” Majoras couldn’t be reached for comment, but White House spokesman Allen Abney says, “Individuals who are recess-appointed have the same duties and responsibilities as individuals who have been confirmed. Other than the limitation on their term of office, there is no distinction between them.” Majoras’ nomination was held up by Sen. Ron Wyden (D-Ore.), who complained that the 41-year-old antitrust lawyer didn’t answer concerns about oil industry mergers and gas prices. Bill Clinton made 66 recess appointments, most of them in his second term, while George H.W. Bush and Ronald Reagan made 77 and 240, respectively. James Miller III, head of the Office of Management and Budget from 1985 to 1988, and who was a recess appointment to the U.S. Postal Service Board of Governors in 2002, says of the increase in recess appointments: “The whole system is broken down.” Miller’s nomination to head the OMB was blocked, he says, because then-Sen. William Cohen (R-Maine) wanted to know, among other things, Miller’s point of view on Marbury v. Madison, the 1803 case that made the high court the final arbiter of the Constitution. Nominations have been delayed for less. On Aug. 5, 1789, the Senate rejected its first nominee: Benjamin Fishbourn of Georgia to be naval officer for the Port of Savannah. His failing? Earlier in his career, he had offended Georgia Sen. James Gunn. And according to the Senate Historical Office, until the 1930s, senators could derail nominees by pronouncing them “personally obnoxious.” No further explanation was required. � Lily Henning and Jonathan Groner SUPREME ADVOCACY Two firms have made recent hires that signal aggressive new moves to capture more of the increasingly rare � but highly sought-after � work of arguing before the Supreme Court. Gregory Garre, who left the solicitor general’s office in July after arguing nine cases, has returned to Hogan & Hartson to head its Supreme Court and appellate practice. “It’s great work, a great practice, and great for recruiting lawyers, too,” says Garre. At Baker Botts, partner Jeffrey Lamken, another recent alumnus of the solicitor general’s office, has snagged a large share of last term’s crop of Supreme Court law clerks as new associates: Robert Kry, who clerked for Justice Antonin Scalia, as well as Courtney Gilligan and Aaron Streett from Chief Justice William Rehnquist’s chambers. A fourth clerk may soon follow, says Lamken, who heads the firm’s Supreme Court and appellate practice. Lamken won’t say if his firm paid the new hires the jaw-dropping bonus of $150,000 that many firms say is the going rate for last term’s clerks. � Tony Mauro SURVEY SAYS Corporations want to hear from their outside lawyers more often as well as contain the unpredictable costs of litigation, according to a survey of corporate counsel released last week. “I think there’s room for improvement for the services that outside counsel can provide,” says Layne Kruse, a partner in the Houston office of Fulbright & Jaworski, the firm that commissioned the mail and telephone survey. It drew responses from about 300 in-house counsel at corporations across multiple industries. James Jones, a consultant for Hildebrandt International, says lawyers tend to call clients when they have something specific to report, but the notion of checking in with clients periodically “is something that never occurs to them.” Yet he says some firms are beginning to establish formal client relationship programs, and others have been pressured to provide budgets for their services to help control litigation costs. � Christine Hines DEMANDING ANSWERS More than 100 prominent attorneys, judges, and law professors accused top Bush administration lawyers last week of failing to defend the U.S. Constitution. In a statement, the group, mostly Democrats, called for a full inquiry into the preparation of legal memos that seemed to condone torture, stating, “The most senior lawyers in the Department of Justice, the White House, the Department of Defense, and the vice president’s office have sought to justify actions that violate the most basic rights of all human beings.” Among those backing the statement: former Bill Clinton White House Counsel Abner Mikva, former New York Gov. Mario Cuomo, former FBI Director William Sessions, and Barry Scheck, president of the National Association of Criminal Defense Lawyers. The statement was released Aug. 4 by the Alliance for Justice, a liberal interest group. Also last week, the Democratic Senatorial Campaign Committee urged voters to sign a petition opposing federal judicial nominations for administration lawyers involved in drafting the controversial memos. The petition targets White House Counsel Alberto Gonzales, Defense Department General Counsel William Haynes III, and former Office of Legal Counsel lawyer John Yoo. � Vanessa Blum TRACING TERROR Last month, a U.S. District Court in Providence, R.I., found the Palestinian Authority and the Palestine Liberation Organization liable for the actions of the independent terrorist group Hamas and ordered them to pay more than $200 million in damages. Now, a group of D.C. lawyers are looking for similar results. Richard Heideman of Heideman Lezell Nudelman & Kalik, has filed a suit that relies on the Anti-Terrorism Act of 1991, the same statute used in the Hamas case, in the hope of establishing a direct chain of command linking PLOChairman Yasser Arafat and his government entities to the murder of American Esther Kleiman. The 23-year-old teacher was shot in the heart when members of the Aqsa Martyrs Brigade opened fire on an Israeli bus near Jerusalem inMarch 2002. Heideman argues that Arafat, the PLO, the Palestinian Authority, and others are directly responsible for Kleiman’s death because they provided financial and material support to the group that killed Kleiman. “This act was committed by people who were acting on their line of authority,” says Heideman, who is seeking $180 million in damages on behalf of Klieman’s estate. � Bethany Broida UNPRECEDENTED Judging Thomas, the new biography of U.S. Supreme Court Justice Clarence Thomas by Ken Foskett, contains one surprising revelation about how Thomas views his role as a jurist. According to the book, which is published by William Morrow and was released last week, Justice Antonin Scalia, whom critics have suggested is Thomas’ ideological guide on the high court, says Thomas “doesn’t believe in stare decisis, period.” Scalia goes on in the book to say, “If a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.” The author also unearthed a few curious facts about Thomas. His favorite movie is “The Fountainhead,” based on the Ayn Rand novel about a fiercely independent architect; each year, Thomas screens the movie for his law clerks. � Jonathan Ringel, Fulton County Daily Report A REMATCH Barry Richard and David Boies, two of the courtroom stars of the 2000 presidential ballot recount fight in Florida, are set to do battle again if voting problems arise in the presidential contest in November. Richard, 62, a partner at Greenberg Traurig in Tallahassee, Fla., says he agreed last week to represent the Bush/Cheney campaign, but only in matters arising after the election. Boies, 63, a partner of Armonk, N.Y.-based Boies, Schiller & Flexner, says he will similarly represent the Kerry/Edwards campaign. Boies predicts there will be post-election litigation in Florida over problems with the touch-screen voting systems used in 15 Florida counties. � Julie Kay, Miami Daily Business Review

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