Federal Courts and Nominations

Election Looms as Supreme Court Starts Term As Barack Obama and John McCain Race to the White House, the Justices Prepare to Hear Cases on Navy Sonar, Drug Labels and ‘Fleeting Expletives’

The Supreme Court begins its new term Monday with important cases in business, environmental and First Amendment law — but those issues might be overshadowed by a presidential election that could shift the ideological balance of the court.

Both candidates, John McCain and Barack Obama, have signaled that because of the advanced age of a majority of the justices, the next president could be faced with one or more retirements.

On the campaign trail, McCain and Obama have commented on controversial decisions and their outlook for the future of the court. 
“I want my judges to understand that part of the role of the court is to look out for the people who don’t have political power, the people who are on the outside, the people who aren’t represented, the people who don’t have a lot of money,” Obama said in March. “And yes, I want a woman on the court absolutely.”

McCain has said, “I have my own standards of judicial ability, experience, philosophy and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.”

With Associate Justices John Paul Stevens celebrating his 88th year and Ruth Bader Ginsburg her 75th, conservative grass-roots activists have begun a campaign to remind voters that if McCain won, he could replace a liberal justice with a conservative.

“Americans do not get to choose Supreme Court justices. In their wisdom, the framers of the Constitution provided that the president chooses them for all of us,” said Wendy Long of the Judicial Confirmation Network. “The next president will exercise that most important judgment, probably at least several times.”

Long’s group has launched a nationwide grass-roots campaign to raise awareness and recruit activists on the issue of the Supreme Court.

That there have been no signs that any justice is slowing down or contemplating retirement has not stopped speculation that a retirement could come this term.

If Obama were to win the presidency, he could name a much younger justice who might not, at least initially, change the outcome of some of the more closely divided cases on controversial social issues, but would theoretically serve for many years to come. 

But liberal groups warn that while McCain has said on the campaign trail that he intends to name justices with a similar ideology to Roberts and Alito, President Bush’s nominees, a Democratic-controlled Congress could prove difficult to convince.

“A President McCain will likely face a Senate with 55 or more Democrats,” said Doug Kendall of the progressive Constitutional Accountability Center. “And with liberal justices retiring and the possibility of a sharp change in ideology at the Court, the Senate will demand a ‘consensus nominee.'”

“The skirmishes we saw over John Roberts and Sam Alito will look like child’s play in comparison to the battles like to accompany McCain Supreme Court nominees,” Kendall added.

President Bush is scheduled to give a speech Monday in Ohio discussing what his supporters claim is his lasting legacy — judicial appointments.

2008 Term: Fleeing Whales to ‘Fleeting Expletives’

The returning court’s docket includes the effect of sonar on whales and whether that sonar is essential to national security; one woman’s claims that a poorly written drug label caused her to lose an arm to gangrene; and broadcast networks’ fears that the Federal Communications Commission has gone too far in its efforts to control celebrities’ on-air use of so-called “fleeting expletives.”

Justices also will add new cases throughout the first part of the term and might choose to hear some important national security cases regarding the legal war on terror.

Drug Label Debate

A day before the presidential election, the court will tee up a debate on whether federal drug regulations can override state laws, an issue vital to consumers and large drug manufacturers.

The case involves musician Diane Levine, who lost an arm to gangrene after receiving a shot to treat a migraine headache in 2000. She sued the drug maker Wyeth in Vermont under a “fail to warn” law and won $6.8 million.

The jury found that Wyeth hadn’t sufficiently warned the public and doctors about the harm the drug Phenergan could cause if it were improperly injected.

In Levine’s case, a physician’s assistant inadvertently injected the drug into an artery instead of a vein, which caused the onset of gangrene and led to the amputation.

Levine argues the drug label should not indicate that it can be administered through intravenous injection when other, less-risky methods such as intramuscular injection are available.

“I do feel like a crusader for justice at this point,” said Levine, who is no longer able to earn a living as a musician. “It didn’t have to happen to me. It didn’t have to happen to the people that it’s happened to since.”

But lawyers for Wyeth argue that federal law protects the company from such state lawsuits. They say that the Food and Drug Administration approved the drug’s label and was aware of the known risk associated with some forms of intravenous injection, which cause the drug to begin working more quickly. In court papers, Wyeth argues that the FDA chose to “manage this known risk by requiring Wyeth to include carefully tailored warnings and instructions on the drug’s labeling.”

Wyeth lawyer Bert Rein said the company was unable to modify the label without FDA authorization.

“If [Wyeth] had used anything else, it would have been committing a federal felony crime,” said Rein. “A state should not be able to tell Wyeth to go ahead and violate federal law.”

Rein warned a loss in the case would be “undermining the professional judgment of the FDA and substituting judgments made in the context of injuries by juries who don’t have the skills, don’t have the training, and don’t have the overall perspective of the experts at the FDA.”

The business community, aware that the outcome could affect other cases against big drug makers like Eli Lilly and Co., GlaxoSmithKline and Pfizer Inc., is watching carefully how the case will be handled. The decision could affect regulators in other industries such as food, highway safety and homeland security.

‘Light’ Cigarettes?

A similar case will be argued regarding so-called “light cigarettes.” The court will review whether cigarette giant Phillip Morris misled the public in labeling its supposedly low-tar and -nicotine cigarettes as “light.”

Whales vs. National Security

The court also will examine a lower court decision limiting the U.S. Navy’s ability to conduct training exercises using sonar out of fear of harming marine animals.

Environmentalists argue that the Navy’s training exercises held off the shores of Southern California are dangerous for marine life including the endangered blue whales.

“Sonar has numerous impacts on marine mammals,” said Jessica Lass of the Natural Resources Defense Council.

But government lawyers, arguing on behalf of the Navy, disagree on the impact of sonar on mammals and say that the training is essential to national security.

“Training in real-world conditions designed to replicate real-world scenarios with a live, subsurface adversary whose tactics will exploit the ocean’s ever-changing complexity, is essential,” they argue in court briefs.

Lass said that the council is not against the use of sonar, “We just want it to be used more safely.”

‘Fleeting Expletives’

After celebrities such as Cher and Bono swore on national television, the Federal Communications Commission altered its policy disciplining broadcasts for the airing of indecent language. 
In the past, the agency allowed broadcasters some isolated incidents of “fleeting expletives,” but after celebrity slip-ups, it changed its policy.

Lawyers for the broadcast networks, which include ABC Inc., fearful of large potential fines, have filed a brief blasting the FCC for changing its policy and urging the court to uphold a lower court ruling that found the change of policy by the FCC “arbitrary and capricious.”

“For 30 years — literally as long as it had sought to police broadcast indecency — the commission recognized that fleeting utterances of expletives generally fell outside its definition of indecent material,” the networks’ lawyers argue in briefs.

They argue that the new policy is confusing and will chill broadcasters’ protected speech.

The government, repeatedly referring to expletives as the “f-word” and the “s-word” in its briefs, argues that just because a specific word is not repeated or sustained on the broadcast medium it doesn’t mean it’s not indecent.

The Parents Television Council praised the justices’ decision to hear the case.

“Millions of families are grateful that the Supreme Court has decided to review this indecency case,” the organization’s president, Tim Winter, said in a statement. “Such harsh, unedited profanity is unacceptable for broadcast over the publicly owned airwaves when children are likely to be watching.”

The case marks the first time in 30 years the court will decide what constitutes indecency. 


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