Elena Kagan is appearing before the Senate Judiciary committee today for the first of many hearings supposedly designed to assess her suitability for the Supreme Court. I'm covering the action on Twitter. For a primer on what to expect from Kagan's GOP inquisitors, see my preview here.

On Monday, the Supreme Court affirmed a lower court ruling that struck down Bernard Bilski and Rand Warsaw's "business method" patent for hedging energy prices against the weather. Some observers had hoped that the court would issue a broad ruling rejecting many "business method" patents—such as Amazon.com's "one-click" purchasing—entirely. (Critics of business method patents argue that you shouldn't be able to get patent protection for something as supposedly "obvious" and vague as one-click ordering.) Instead, the court ruled narrowly, rejecting Bilski and Warsaw's patent but holding open the possibility that other, similar patents might be granted in the future—even if they, like Bilski and Warsaw's patent, didn't meet the generally accepted test of involving a "machine or transformation." Justice Anthony Kennedy, writing for the court, explains:

[I]n a series of cases that extend back over a century, the Court has stated that "[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines." Application of this test, the so-called "machine-or-transformation test," has thus repeatedly helped the Court to determine what is "a patentable 'process.'" 


[But] while the machine-or-transformation test has always been a "useful and important clue," it has never been the "sole test" for determining patentability.... The machine-or-transformation test is thus an important example of how a court can determine patentability..., but the Federal Circuit erred in this case by treating it as the exclusive test.

The Bilski/Warsaw patent failed because it involved an "abstract idea," not necessarily because it failed the "machine or transformation" test. That leaves the door open for the Patent Office to continue granting recognition to things like Amazon's one-click. The full decision is here (PDF).

Early this morning, Sen. Robert Byrd (D-WV), a longtime veteran of Congress who fought hard to combat poverty in his home state, died at the age of 92. The longest serving Senator before his death, Byrd's legacy is a mixed one, and his personal and political views has undergone a startling evolution over his 67 years in the House and Senate.

For his former Senate colleagues, Byrd's passing significantly complicates the political calculus on the biggest legislative item now in play: financial reform. Indeed, this morning's news possibly imperils the Senate's passage of the bill agreed to by House and Senate lawmakers last week. When the Senate passed its own version of Wall Street reform in late May, Byrd didn't vote and didn't need to; with four Republicans—Sens. Scott Brown (R-Mass.), Charles Grassley (R-Iowa), and the Maine senators Olympia Snowe and Susan Collins—joining the Democratic majority, the bill passed, 59-39. (Pennysylvania Democrat Arlen Specter also didn't vote.)

Now, however, Scott Brown is threatening (again) to defect and switch his vote to "no," which he's been doing for weeks. During the conference process, Democrats slipped in a loophole to keep Brown happy, allowing big banks to invest a small percentage of their money in risky hedge funds and private equity funds. (The bill had previously called for banning these kind of investments.) But now Brown is crying foul about a $19 billion tax on banks to pay for the implementation of the bill—and he's mulling whether to vote against the bill when a vote occurs as early as this week.

That's trouble for Democrats. If the other three Republicans vote "yes" again, Democrats still need another vote to make up for Brown's loss. Before this morning, Byrd could've cast that deciding vote, and it's unclear how soon someone will replace Byrd in the Senate. That means Reid, Durbin, and the Dems must either win back Scott Brown, bring Arlen Specter into the fold and get him to vote "yes," or, in the unlikeliest of scenarios, convince some other GOPer to switch his or her vote. And this presumes that all three GOPers who supported the bill in May stick with the Dems—far from a given.

The bill's passage is far from assured. It's going to be a nailbiting week or two for the Democrats.

Call it Starbucksgate. 

On Friday, the New York Times reported that Obama administration officials use their personal email accounts and hold "off-campus" coffee shop meetings with lobbyists in an apparent attempt to skirt disclosure rules. Now Citizens for Responsibility and Ethics in Washington (CREW), a DC watchdog group, has penned a letter (PDF) to the House Oversight and Government Reform committee requesting a hearing and pointing to apparent "wilful violations" of federal law. 

The allegations suggest that the Obama administration may be flouting the same recordkeeping laws that the Bush administration did: the federal and presidential records acts (FRA and PRA). Both laws require that White House staff retain records—including emails—related to their daily work. By using private email accounts to schedule coffee shop meetings with lobbyists (an apparent attempt to prevent these sessions from appearing in White House visitor logs), Obama officials can bypass normal email archiving procedures and "avoid the creation of any record that would memorialize those meetings." Since emails scheduling meetings with lobbyists would almost certainly be the type of emails that the FRA and PRA require White House officials to preserve, the Obama team is "in violation" of the FRA and the PRA, CREW writes.

During the Bush years, Democrats often criticized Republicans, including White House political director Karl Rove, for similar conduct—and CREW waged a years-long campaign to recover Bush emails that went missing or were never properly archived. In the early years of the Bush administration, for example, many White House officials used Republican National Committee email addresses to conduct official business. The RNC email archives were later lost; most of Rove's emails from his first few years in the White House will probably never be recovered.

The Obama administration's avowed commitment to a cleaner and less lobbyist-influenced Washington make the Times article and the CREW letter particularly embarrassing for the White House. By continuing to meet with lobbyists in coffee shops and other "off-campus" locations and email them from personal accounts, "the White House is attempting reap the benefits of conversations and interactions with knowledgeable lobbyists while publicly promoting the belief that the White House maintains a discreet distance from those very same lobbyists," CREW argues.  

CREW's letter should give a boost to California Republican Darrell Issa, the ranking member of the oversight committee. Issa has been relentlessly pursuing any hint of possible Obama administration wrongdoing. (I profiled Issa last year and predicted that he would cause major headaches for the Obama administration.) In its letter, CREW specifically endorses Issa's June 9 letter requesting further information on the use of social media and outside email accounts by White House staffers. More significantly, the watchdog calls for a congressional hearing on the matter.

Issa can't subpoena information from the White House without the votes of at least some of the Democrats on the committee—and, as a practical matter, he would probably need the support of committee chairman Ed Towns (D-N.Y.) before he could issue a subpoena. But like Rep. Henry Waxman (D-Calif.) did when he was the ranking minority member on the oversight committee, Issa is proving that he can cause plenty of problems for the White House without subpoena power. If CREW's letter leads to a hearing on Starbucksgate, what started as a mini-scandal could snowball quickly. There's nothing like a cache of administration documents to kick-start a minority inquiry into White House conduct.

On the last day of the term Monday, the Supreme Court issued a flurry of hotly contested 5-4 decisions, including the much awaited ruling in McDonald v. Chicago, which basically extends to the states the court's holding in the Heller case two years ago that the 2nd Amendment provides an individual right to bear arms. The ruling, long expected, may all but obliterate what's left of the country's gun control laws, a ramification that may explain why Justice Stephen Breyer read his dissent from the bench. Justice Alito, who wrote the majority opinion, noted that the decision was binding on state and local governments, but still seemed to believe that his jurisprudence was not going to produce much bloodshed. He wrote that the decision "limits (but by no means eliminates) [cities'] ability to devise solutions to social problems that suit local needs and values."

In other court news, former Whitewater special prosecutor Ken Starr wins a major victory in a ruling that will help corporate America get rid of the Public Company Accounting Oversight Board (PCAOB)--jokingly referred to as the "peek-a-boo" case. The board, created by the Sarbanes-Oxley Act in the wake of Enron, Arthur Anderson and other corporate accounting scandals of the early 2000, was set up as a private entity that is supposed to keep corporate auditors honest. Its members are appointed by the Securities and Exchange Commission. Starr sued the board on behalf of a business group called the Free Enterprise Fund, arguing that because it's got some executive functions, the PCAOB was unconstitutional because its members are appointed by the SEC and not the president. In a complex ruling, the court sort of agreed in a decision that will make it easier for businesses to defang the board. The case was pending last year when Starr publicly endorsed Justice Sonia Sotomayor shortly before her confirmation hearings. Cynics suggested that he endorsed her to hedge his bet in the case, but as it turns out, Sotomayor didn't see fit to return the favor. She was in the liberal minority on this one.

The most remarkable news from this morning's end of the term opinion dump is that it was attended by Justice Ruth Bader Ginsburg, who even read an opinion from the bench. Her husband of 56 years, Martin Ginsburg, died yesterday, at the age of 78. Chief Justice Roberts opened the session with a tribute to Ginsburg, who was a well-known Georgetown University tax law professor.



Sen. Robert Byrd, RIP

Senator Robert Byrd (D-WV) died early Monday morning. No one has served as many years in the US Senate as he did: 51. And perhaps no other senator has quoted as many Greek and Roman statesmen as did Byrd. He leaves behind a long and storied legacy. He was once a member of the KKK and voted against the Civil Rights Act of 1964—a move he later said he regretted. But he did back the Civil RIghts Act of 1968. He brought the bacon home to West Virginia in truckloads.

One of the finer moments in his historic legislative career came on March 19, 2003, when he delivered an impassioned address opposing George W. Bush's imminent invasion of Iraq. A fitting way to remember Byrd is to watch it: 

And here's Byrd in October 2002, as the Senate debated a resolution authorizing the use of military force against Iraq. (He was among 23 senators who voted against it.)

Byrd never let up with his protestations against the war. Mother Jones compiled a list of his admonishments during that first year of war, including the following:

February 12, 2003:

"This is no small conflagration we contemplate. This is no simple attempt to defang a villain. No. This coming battle, if it materializes, represents a turning point in U.S. foreign policy and possibly a turning point in the recent history of the world.… The doctrine of pre-emption…is a radical new twist on the traditional idea of self-defense. It appears to be in contravention of international law and the U.N. Charter. And it is being tested at a time of worldwide terrorism, making many countries around the globe wonder if they will soon be on our—or some other nation's—hit list....

"To engage in war is always to pick a wild card. And war must always be a last resort, not a first choice. I truly must question the judgment of any president who can say that a massive unprovoked military attack on a nation which is over 50 percent children is 'in the highest moral traditions of our country.'" 

February 26, 2003:

"We cannot treat the citizens of this nation as if they are children who must be fed a fairy tale about fighting a glorious war of 'liberation' which will be cheap, short, and bloodless." 

March 19, 2003:

"Today I weep for my country…. No more is the image of America one of strong, yet benevolent, peacekeeper.… We flaunt our superpower status with arrogance. We treat U.N. Security Council members like ingrates who offend our princely dignity by lifting their heads from the carpet…. This administration has directed all of the anger, fear, and grief which emerged from the ashes of the twin towers and the twisted metal of the Pentagon towards a tangible villain, one we can see and hate and attack. And villain he is. But, he is the wrong villain. And this is the wrong war."

May 6, 2003:

"This is not some made-for-TV backdrop for a campaign commercial. This is real life, and real lives have been lost. To me, it is an affront to the Americans killed or injured in Iraq for the president to exploit the trappings of war for the momentary spectacle of a speech. I do not begrudge his salute to America's warriors aboard the carrier Lincoln, for they have performed bravely and skillfully…but I do question the motives of a desk-bound president who assumes the garb of a warrior for the purposes of a speech." 

June 5, 2003:

"What amazes me is that the president himself is not clamoring for an investigation. It is his integrity that is on the line.… And yet he has raised no questions…expressed no anger at the possibility that he might have been misled." 

September 10, 2003:

"The president has now stated that the war in Iraq is the central front on the war against terrorism. But it was our invasion of Iraq which has turned that nation into a staging ground for daily terrorist attacks against our occupation forces. If we are serious about protecting our country from terrorism, shouldn't the central front be the war on Al Qaeda? But at the White House…the president waves the bloody shirt of 9/11 and then subtly shifts the conversation to Iraq." 


Twenty pallets of supplies float down over Forward Operating Base Baylough, Afghanistan for Red Tank, 1st Platoon, Delta Company, 1st Battalion 4th Infantry Regiment on June 13, 2010. Photo via the US Army by Staff Sgt. William Tremblay.

On Thursday afternoon, despite eight weeks of haggling and dealbrokering, the Senate rejected extending unemployment benefits amidst rising deficits but at a time when one in 10 people are jobless. The 57-41 vote against the tax extender bill, which would've also given tax breaks to small and large businesses, was the third time Democrats failed break a GOP filibuster, and the bill's failure leaves upwards of 1.2 million unemployed Americans still without help. "They have taken the filibuster and made the Senate dysfunctional," Sen. Dick Durbin, the majority whip, told Politico, referring to Senate Republicans.

Those GOPers who opposed the bill typically cited fears about the country's spiraling deficits, railing on the fact that the jobs bill would've cost $100 billion and added $33 billion to the deficit. Despite the obvious need for the extended unemployment insurance, it's not hard to see why GOPers, however wrongheaded or hypocritical, would vote against this.

"Rory's Education Plan." "Rory2010.com." "Paid for by Rory 2010."

If you didn't know better, you might think the Nevada gubernatorial candidate named Rory was a Brazilian soccer player, one of those guys with just one name on the back of his jersey. (Hey, it's World Cup season!) Well, not quite. "Rory 2010," if you don't already know, is the campaign for Democrat Rory Reid, the son of Nevada's most recognizable—and, for many, most loathed—politician: Senate Majority Leader Harry Reid.

Today, Reid officially launched his run for the Silver State's governor's office with an ad that's notable for, well, completely omitting his last name. The ad—which features a cast of cute little kids talking education reform, a major issue of Reid's, ahem, Rory's—just goes to show how toxic the Reid name has become amongst large swaths of Nevada voters. In a recent Rasmussen poll gauging the elder Reid's standing in his US Senate race, fringe conservative Sharron Angle leads Harry Reid by 7 percentage points. Even on Rory Reid's website, his ties to his father are completely scrubbed; Rory's bio page, for instance, reads like this:

As Chairman of the Clark County Commission Rory has managed a budget bigger than the state’s general fund for seven years, balanced it every year, and never raised taxes.

Rory, 47, grew up in Nevada attending public schools, as do his three great kids. He attended Brigham Young University, graduating with a dual degree in international relations and Spanish, and continued his studies there through law school. He and his wife, Cindy, have been married for 22 years.

Here's Rory's ad:


Sgt. Tyler Clausing, a truck driver with Company E, 1st Battalion, 504th Parachute Infantry Regiment, 1st Advise and Assist Brigade, 82nd Airborne Division, hooks up a trailer to a Palletized Load System truck after dark, on June 11, 2010, at Camp Khalid, Iraq. Photo via the US Army photo by Spc. Michael J. MacLeod.