The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]

Goddess of the Market

Ayn Rand and the American Right

By Jennifer Burns

[Available Here]

Of all the second acts in American lives, perhaps none is more remarkable than the recent conservative embrace of Ayn Rand, the long-dead doyenne of American capitalism. During the market nosedive of 2008 it seemed her version of free market capitalism had been discredited altogether; even former acolyte Alan Greenspan had his doubts, famously telling Congress he had found "a flaw" in his Rand-inspired ideology. Yet in 2009 sales of her books began a ferocious climb, with Atlas Shrugged alone selling more than 300,000 copies. Signs referencing her hero John Galt dotted the tea party protests, and she's been a staple of right wing talk radio and a new favorite of rising stars like Glen Beck. On the campaign trail, candidate Obama would sometimes criticize the virtue of selfishness, making a veiled allusion to Rand's ideas. Now President Obama has wrestled firsthand with the virtue of selfishness, for it is Rand's ideas that have undergirded conservative response to his economic proposals from the auto bailout to health care reform. Nor is she likely to fade away anytime soon; the Washington Post just declared Randroids "in" for 2010.

Though Rand's newfound popularity may have caught liberals and progressives by surprise, my book Goddess of the Market: Ayn Rand and the American Right, shows that Rand has always been a staple of political thought on the right. As I describe in the book, her ideas become especially prominent in eras of liberal dominance. She first caught the eye of business conservatives when she worked as a volunteer for Wendell Willkie's 1940 presidential run against Franklin Roosevelt, and she inspired legions of young volunteers who campaigned for Republican contender Barry Goldwater in 1964. The same cycle continues today, as the presidency of Barack Obama has energized and outraged his conservative opposition.

Ayn Rand was born Alissa Rosenbaum in 1905 in St. Petersburg, Russia. When she was twelve, Bolshevik revolutionaries seized her father's chemistry shop, an experience that left young Alissa with a bitter hatred of government and an abiding suspicion of any collective action justified in the name of social good. In 1926 she left Russia for America, where she changed her name and embarked on a remarkable career as a screenwriter, playwright, novelist, and political activist. She developed a Nietzschian-style philosophy of ethical selfishness, holding that traditional values like altruism lay at the root of totalitarian systems such as communism, socialism, and fascism. Rand called her mature philosophy "Objectivism," and it proved wildly popular among college students in the 1960s. Objectivism helped inspire the Libertarian Party, the Cato Institute, and Reason magazine.

Today, Rand's best known work is her politically charged 1957 novel Atlas Shrugged. The 1,084 page book is set in a future dystopian America, where overbearing government regulation and taxation have strangled the economy. In response, the country's top capitalists have gone "on strike," heroically refusing to work for an exploitative system that redistributes their wealth to the needy. Ever since it was published more than 50 years ago, readers have hailed the work as prophecy, seeing in Rand's villains the dim outline of liberal presidents from Lyndon Baines Johnson to Jimmy Carter.

This understanding of Rand as prophetess is widespread on the right today. "Read Atlas Shrugged before it happens" warned a sign at last spring's tea parties. Or as Rush Limbaugh put it: "Ayn Rand, she wrote ‘Atlas Shrugged.' The sequel: ‘Atlas Puked.' We're in the middle of it."

What's different now is that for the first time, conservatives are willing to overlook Rand's once-controversial atheism. Rand's materialistic philosophy is pivotal to her attack upon government, as both she and an earlier generation of conservatives understood. William F. Buckley, Jr., the founder of National Review and himself an avid fan of capitalism, tried to run Rand out of the conservative movement because she was an atheist. He rightly perceived her work as not just as a defense of capitalism, but an attack upon Christianity itself. For Buckley and other traditional conservatives, government charity might be wrong, but charity itself was to be applauded. That Rand criticized Christian morality made her anathema to believers like Whittaker Chambers, who wrote the message of Atlas Shrugged was "to a gas chamber - go!"

What matters most to Rand's latter day conservative followers, however, is how vividly Rand makes the case that government intervention in the economy and social welfare programs are morally wrong. In a clever sleight of hand, Rand's ideas have helped conservatives shift the terms of debate from the causes of the economic crisis to the Obama administration's proposed solutions. She offers a secular version of saints and sinners, for in Rand's world, there are two types of people: producers and looters, or those who work for themselves, and those who work for the government. It's the original version of Richard Nixon's "silent majority" or Sarah Palin's "real Americans."

Rand's acceptance into the pantheon of conservative thinkers is a sign that the libertarian wing of the movement is gaining strength as economic issues move to the fore of American politics. And though liberals expected that the market crash would discredit libertarian economics altogether, Rand's prominence signifies that the ideal of unregulated capitalism itself is becoming more firmly welded to the conservative world view. Whether Rand's popularity lasts into the new decade remains to be seen. But if the history I describe in Goddess of the Market is any guide, Rand and her ideas will be with us for many political cycles to come.

This fall's Supreme Court calendar features only one environmental law case - a bit of a relief compared with last term, when the Court heard five environmental appeals and the "green" side lost all five. Yet that case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, is a sleeper with the potential to reshape both the Court's Fifth Amendment takings jurisprudence and its traditional deference to state courts' interpretation of state common law.

What's wrong with "beach renourishment," the innocuous-sounding practice of replenishing sand along storm-eroded coastline, as authorized by Florida statute and carried out at great public expense? According to petitioners, it deprived their property of its "oceanfront" character, by widening the public side of the beach and replacing the traditional dynamic boundary that tracked the mean high water mark with a new, fixed line. They sued in state court - first to enjoin the renourishment program, then for monetary compensation, claiming a taking of their property rights.

The Florida Supreme Court disagreed. In a lengthy opinion that cites Florida case law and authorities dating back to Blackstone, it held that "under Florida common law, there is no independent right of contact with the water"; and that the statute adequately preserves the owners' other rights, including their right of access to the beach and the water. Absent an identifiable lost property right, there could be no taking and no compensation owed. Two Florida justices dissented, and petitioners appealed to the U.S. Supreme Court.

The fine points of Florida property law are now being debated in 25 merits and amicus briefs before the Court, with oral argument set for December 2. But two broader points make this a case to watch. First, the landowners' claims don't fit neatly into federal takings law; indeed, the Florida majority relied on neither the U.S. Constitution nor federal case law. Second, given this absence of a federal claim below, the appeal employed an unusual procedural twist to reach the Court: a new argument that the Florida high court's decision itself effected an unconstitutional "judicial taking."

Supreme Court precedents distinguish between a government's physical occupation of property, as in eminent domain, and regulations that limit a landowners' use of property. The former is a per se taking that must be compensated, whether the physical occupation is total or partial. The latter, "regulatory" taking also requires compensation if it meets the Lucas test of depriving a landowner of "all economically viable use of his land." Less-intrusive regulations are subject to a Penn Central balancing of public and private interests, which is harder for the landowner to defeat.

Here, the metes and bounds of petitioners' land remain the same; their chief grievance is that their parcels aren't expanding along with the widened beach. So the physical takings analysis seems inapt. As for regulatory taking, petitioners claim their use and enjoyment has been diminished by increased distance from the water and public presence on the beach. But they produced no evidence of lost market value, and Florida argues that property values may actually have gone up as a result of protecting the beach from erosion. It is hard to see how the Court can shoehorn the case into either takings category on the record before it, but the four or more justices who granted certiorari have shown some interest.

More troublesome is the notion of a "judicial" taking, which (like Bush v. Gore) runs counter to the presumption that a state's high court is the final arbiter of state law. Petitioners cobbled this argument together from two prior opinions: a concurrence by Justice Potter Stewart in Washington v. Hughes (1967), and a dissent from denial of certiorari by Justices Scalia and O'Connor in Stevens v. City of Cannon Beach (1994). These fragments suggest that if a state court deliberately manipulates common-law doctrine to enable a taking, Supreme Court review might be warranted.

This is the hardest issue in the case: how do we know when a state court is doing what common-law judges do - hearing cases of first impression and filling gaps in the law - and when it is acting in bad faith? The outcome will turn on the Court's willingness, and ability, to articulate a federal standard for telling the difference. Even if it does, the task remains daunting, as any future disagreement with state courts' rulings likewise could only be resolved by direct appeal to the U.S. Supreme Court.

In this light, it's telling that petitioners rely on Justice Stewart, whose best-known contribution to Supreme Court jurisprudence was "I know it when I see it." Like obscenity, a judicial taking is probably in the eye of the beholder. The justices ultimately may balk at the practical implications, and prove no more interested in refereeing the property law of 50 states than in screening pornographic films.

[Image via Nate the Mate.]

"God bless America!" That's all I could think to say when I heard the story of Pennsylvania State Representative Daryl Metcalfe, a veteran of the U.S. Army who last week branded as traitors anyone with the temerity to disagree with him on policy. I sought God's blessings as a plea for divine intervention to save us from our worst-selves.

The email from Representative Metcalfe has been circling the Internet since he sent it. It is breathtaking. At once he dismisses climate change as nothing more than "leftist propaganda." Then he asserts that any veteran advocating action on climate change is "a traitor. . . . " He then goes on to remind readers that Benedict Arnold-the Revolutionary War general who sought to betray West Point to the British-was a veteran too.

I'm assuming that Mr. Metcalf is talking about the kind of treachery obvious in quotes like this:

By increasing our American energy supply and decreasing the long term demand for oil, we will be well positioned to address the challenge of climate change and continue our longstanding responsibility for stewardship over the environment.

Or maybe it's this:

The same human economic activity that has brought freedom and opportunity
to billions has also increased the amount of carbon in the atmosphere.

Or maybe it's this:

. . . Common sense dictates that the United States should take measured and reasonable steps today to reduce any impact on the environment. Those steps, if consistent with our global competitiveness will also be good for our national security, our energy independence, and our economy.

I can understand why Mr. Metcalf would want to expose the purveyors of this kind of "leftist propaganda." So let's expose them right here-on this blog. The propagandists who cobbled together the above are none other than the Republican National Committee. (See page 35 to be precise.)

So let's take this head-on. Climate change or global warming is real. Mankind is contributing to it significantly. The consensus of the scientific community is overwhelming in this regard. Even Mr. Metcalfe's fellow Republicans concede the reality of climate change.

Furthermore, the impacts of climate change will be felt around the world and in the United States as well. Lives, property, economies, and the stability of governments are at stake making this worthy of consideration as a national security issue. (For more on the national security consequences of climate change, please visit Secure American Future.)

My heart breaks, and my concern for the republic grows, however, every time a Representative Daryl Metcalf demonizes someone for disagreeing with him about a policy. The veterans he maligned and insulted are not traitors. They are patriots whose love of country led them to serve America in harm's way. They happen to disagree with him on a major issue. That's fine. But our democracy works not because we all agree-but because throughout our history we have confronted epic challenges with resilience and a spirit that we are all in this together.

Frankly, when I read the 2008 Republican Party Platform, I see that same spirit on the issue of climate change. Apparently Mr. Metcalf sees something treasonous.

I run a think-tank -- the American Security Project -- that tries to forge a bipartisan consensus on complex issues. A year ago, we did just that on climate change in a report titled, A New American Arsenal. Our board concluded:

Changes to the Earth's climate pose a threat to humanity on an epic scale. Climate change, unabated, has the potential to alter the Earth's topography; turn currently productive farmland into arid wastelands; expand the areas of the globe affected by tropical diseases; and displace hundreds of millions of people globally due to rising sea levels or extreme water shortages. It is difficult to overestimate the potential impact of climate change on this country's national security posture.

This was not a one-and-done kind of exercise. Republicans, Democrats, and retired military officers met and, in good faith, negotiated a document that reflected their concerns-both over the threat posed by climate change and the appropriate response.

I don't believe anyone got exactly what they wanted out of that exercise-but I am confident that the document they drafted will stand the test of time because it avoided excesses, because it avoided insults, and because it rested on reason and science.

I've never met Representative Metcalfe. I don't know if he simply seeks attention, has a tough political fight in front of him, or was simply having a bad day. But I do know that when he stoops to calling people with a different point of view "traitors" and "Benedict Arnolds," then he weakens our democracy and cheapens the debate.

The issues we face are serious. They require serious debate. And people of good-will will disagree. That is the genius of our system. But let's make sure the debate remains full of good-will, not name calling. There's simply too much at stake.

In his ACS Issue Brief on the state of federal law regarding worker safety, Professor David M. Uhlmann maintains that Congress should bolster the penalties for violations. In Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act, Uhlmann, a University of Michigan Law School professor, writes:

The criminal provisions of our worker safety laws are so weak that they do little to protect America's workers. Misdemeanor violations provide little deterrence and minimal incentive for prosecutors and law enforcement personnel, who reserve their limited resources for the crimes Congress has deemed most egregious by making them felonies (with significant maximum penalties). Focusing exclusively on violations involving worker deaths ignores the pain and anguish that results from serious injuries, which also may warrant criminal remedies. Limiting prosecution to willful violations may make ignorance of the law a defense, contrary to the time-honored maxim of American jurisprudence that ignorance of the law is not a defense. Finally, only ‘employers' can be prosecuted for criminal violations of the OSH Act [Occupational Safety and Health], which means that the mid-level managers who have the greatest day-to-day responsibility for unsafe working conditions often are immune from criminal prosecution under the Act.

Uhlmann, in part, argues that the criminal provisions of OSHA must be bolstered "to reflect the Act's emphasis on public health and safety, to provide the credible criminal deterrent that is needed to ensure greater compliance with worker safety laws, and to provide consistency with other federal regulatory crimes."

Uhlmann's article is available in the new issue of Advance: The Journal of the ACS Issue Groups. All the new issues articles are available here.

Georgetown University law professor Lisa Heinzerling has been selected as the Associate Administrator for the Office of Policy, Economics, and Innovation (OPEI). Heinzerling, who served on the Obama-Biden EPA transition team and also recently as a climate adviser in the Environmental Protection Agency, wrote about some of the issues she will likely now be dealing with in a symposium for the Harvard Law & Policy Review, the official journal of ACS. The symposium, called "Progressive Law & Economics," includes a dialogue with Harvard Law Professor Cass Sunstein, who has been nominated to head the Obama administration's Office of Information and Regulatory Affairs Administration (OIRA). Sunstein's nomination to the post has recently been held up by Sen. John Cornyn.

H/T: The Volokh Conspiracy.

The 2009 ACS National Convention included the panel "Environmental Protection in the Federal Courts," featuring Deborah Goldberg, Managing Attorney, Earthjustice; Jim Hecker, Environmental Enforcement Project Director, Public Justice; Jean V. MacHarg, Patton Boggs LLP; and Stephen D. Susman, Susman Godfrey LLP. The panel was moderated by Stephen P. Berzon, Altshuler Berzon LLP.

"[U]ntil the enactment of the major federal environmental laws of the early 1970's, most courts would recognize the right to challenge ... agency actions affecting natural resources only if the plaintiff was asserting a property right or an economic right of some kind," Goldberg said. "The citizen-suit provisions that were included in those statutes were revolutionary at that time, and they have proven to be among the most important and most influential innovations of modern environmental law ....

"The story I want to tell today is about a 20-year campaign led by Justice Scalia to slam that door shut on environmental advocates."

Last year, as the Mississippi swamped the heartland (again) and Hurricane Ike ravaged a surprised Midwest, insurance companies ramped up investment in climate modeling and the Senate debated comprehensive climate legislation. In fact, the concern about climate has been developing for years. The Senate has held more than 40 days of hearings with more than 300 witnesses during the past two Congresses. Change is upon us, and has been for some time.

Change is nothing new to the Steel Belt, where producers of widgets and gadgets evolve into information system architects, and where coal miners retrain to become nurses. Our economic history has forced us to seek opportunity. This is a competitive advantage.

Federal climate legislation under consideration in the House of Representatives offers the kind of opportunity we need to build on this competitive advantage. H.R. 2454, The American Clean Energy and Security Act of 2009, would raise revenues from pollution to invest in energy efficiency and drive demand for components to produce wind and solar energy and fuel-efficient vehicles. Manufacturers in the Steel Belt and across the nation are poised to capture that demand.

The proposed climate legislation includes a system of carbon cap and trade to reduce carbon dioxide and other pollutants that cause global warming. A limit is set on emissions (cap), and the market decides the price of ‘allowances' for emissions (trade). The number of allowances sold declines each year. This drives demand for cleaner energy and for greater energy efficiency. The demand ranges from weather stripping and insulation to industrial controls and software to plastics, steel, glass and aluminum for wind farms, solar fields and transmission lines. Trading of carbon allowances under the cap and trade system raises revenues, which should be invested in the retooling and retrofit needed to meet new demand and to reduce energy usage.

Carbon cap and trade systems are already in place in parts of the United States (e.g., the Midwest Climate Exchange and the Regional Greenhouse Gas Initiative of New England) and in the European Union. Following the model of Germany, Spain and Denmark, which jump-started their economies with investment in green energy, America can invest revenues raised under the cap and trade to revitalize the domestic economy and mitigate the cost of transition. Household budgets of low- and moderate-income families must be protected as we transform from a high polluting, high-carbon economy to a low-carbon, clean, green economy. Existing manufacturing jobs in energy-intensive industries must be protected from transitional spikes in energy costs. Clean coal and coal sequestration technologies must be developed, since much of the Midwestern electric generation relies on coal plants.

Our elected officials must negotiate for provisions in the climate change legislation to create jobs and facilitate recovery. Such polices should include:

• Direct federal funding for manufacturers to retool their facilities to develop, produce and commercialize clean energy technologies;
• Funding to allow manufacturers to become more energy efficient, reducing the cost of energy on their balance sheet;
• Domestic content and labor standards associated with direct federal support for retooling and energy efficiency, to ensure that firms receiving federal support create good jobs in America; 
• Increased funding for the Manufacturing Extension Partnership to expand its role in strengthening the clean energy supply chain;
• Increased funding for the Green Jobs Act to retrain workers for new green jobs; and 
• A presidential task force should be created on clean energy manufacturing make production of clean energy systems and components a national priority.

In 2005, the Renewable Energy Policy Project looked at 20 of the top states in terms of potential for green job growth. My home state, Ohio, ranked fourth in the nation because of the structure of its industrial base, with dense networks of upstream and downstream suppliers in close proximity to R&D facilities, supporting logistics, financiers with a history in new market development, a well trained work force and strong post-secondary training facilities. Ohio has lost a lot of factories and jobs in the last 30 years, but still has an industrial base upon which a new energy economy can be built. So do other manufacturing states and regions.

With the right set of policies, climate legislation can be shaped to be the green Marshall Plan for American Manufacturing. It's ours to lose. We can't afford to look the other way.

Next week's recess is prompting a flurry of action on the Hill today. One issue not anticipated to go anywhere soon, though, is the closure of the Guantanamo Bay detention facility, which has been stalled by legislators leary of allocating funds that would pay for relocation of detainees.

IN the HOUSE

In other detainee news, Speaker Nancy Pelosi (D-Calif.) added fuel to the torture accountability debate by renewing her call for Truth Commissions to invesitgate the issue. While questions linger about whether there is sufficient political traction for Truth Commissions, Pelosi's strong stance on the issue may ease the Speaker's burden to explain what she knew and when as torture policies were being formulated and implemented by the Bush administration.

The House Energy and Commerce Committee is expected to move forward on climate change bill. But, if it happens, it will be over challenges from those opposed to addressing the challenge.

And anyone suffering from campaign withdrawal can enjoy The Fix's first look at vulnerable House seats in the 2010 elections.

IN the SENATE

Opponents of any nomination to the Supreme Court are already writing their talking points for each name rumored as being considered, and President Obama is preparing his team's push. While many old debates are likely to be replayed, a new issue may rise the forefront in the nomination battles this year: marriage equality. However,with a Democrat majority approaching two-thirds in both the Judiciary Committee and the full Senate, it is being admitted that efforts to obstruct the nomination may prove fruitless despite the spin applied to a nominee's credentials and character.

As for the Employee Free Choice Act -- previously considered stalled -- it may move forward in compromised form thanks to a second look by Sen. Arlen Specter (D-Pa.)

With the five-year anniversary having just passed since 60 Minutes aired photos of detainee abuse at Abu Ghraib, some are still wringing their hands about what to do with those who tortured in the name of America. Other observers, however, have argued that the rule of law requires one result: investigation and prosecution of any torture supported by credible evidence.

Congress may have other priorities, though, such as healthcare reform. Headlines on Swine Flu, or H1N1, coincided with the confirmation of former-Gov. Kathleen Sebelius (D-Kan.) for Human Health and Services Secretary. Last week also saw the passage of President Obama's budget with language permitting for "reconciliation" on healthcare legislation. With these developments, some see the prospect for healthcare reform brighter than ever.

IN the HOUSE

After healthcare reform, many place climate change as a top congressional priority. But the debate over how much priority climate change legislation should receive is producing heated exchanges between representatives approaching the issue from different perspectives.

Vast differences were also revealed during debate leading to the House's passage of the Federal Local Law Enforcement Hate Crimes Prevention Act. That bill, now before the Senate, would extend federal jurisdiction to crimes motivated by gender identity and sexuality.

Meanwhile, Rep. Jane Harman (D-Calif.) continues to take a defiant stance regarding her recorded phone calls. After news broke of Harman's alleged quid pro quo with lobbyists being recorded by a warranted NSA wiretap, Harman has insisted that the Justice Department release the full transcripts of her taped conversations to clear her name. Harman was formerly a top advocate of the NSA being extended domestic wiretapping powers.

IN the SENATE

With the 2010 elections approximately 18 months away, a handful of sitting senators may face tough odds at retaining their seats. Noteworthy is the decreased likelihood that voters will retire Sen. Arlen Specter (D-Penn.) after his recent shift in loyalties. That shift put the Democrats one vote away from a filibuster-proof majority - a vote which may bear the name of Al Franken (D-Minn.) depending on the outcome of the yet-to-be resolved race still undergoing litigation.

Specter's replacement as the minority-party leader on the Senate Judiciary Committee is likely to be Sen. Jeff Sessions (R-Ala.) According to Salon, "He's a staunch conservative who was, for that reason, the favorite of conservative activists to take over the job." Longtime Judiciary Committee watchers will remember that, in 1986, Sessions was rejected for suspect racial views by the same committee when President Reagan nominated him to the federal bench. While moving Sessions into the top spot on the Committee is only temporary - until the more senior Sen. Charles Grassley (R-Iowa) is available for the job under Senate rules in 2011 - Politico reports that it is just part of the brewing battle over replacing Justice Souter and other legal nominees.