Editor’s Note: The Journal’s Nathan Koppel is blogging this week from the Senate confirmation hearings for Sonia Sotomayor, giving quick impressions in some posts and longer legal analysis in others. This is his first post.

Despite about 1,000 moving parts in a crowded Senate committee room, the Sotomayor confirmation hearing began promptly on time this morning.

Here are a few quick impressions:

Sotomayor–pictured with Sens. Leahy and Sessions (right)–spoke for only about a minute, but she quickly showed flashes of charm when asked to introduce her family. “We’d be here all morning if I introduced all my family members,” she said. When she turned to her mom, brother and immediately family, seated behind her, even some of her Republican detractors smiled warmly.

Senate Judiciary Chairman Leahy, in his introductory comments, came out swinging, almost suggesting that aggressive questioning of the nominee might border on racism. He talked about the hostile questioning Thurgood Marshall received, at his confirmation hearing, including: “Are you prejudiced against the white people of the South?” And Louis Brandeis, he added, got questions about the “Jewish mind” and how “its operations are complicated by altruism.” To bring the point home, Leahy said: “I trust that all members of this committee here today will reject the efforts . . .to create a caricature of Judge Sotomayor.”

Jeff Sessions, the ranking Republican on the judiciary committee, took all of about a minute to say the “E” word, as in empathy, as a part of a treatise on the evils of activist, expansive judging. “I fear this empathy standard is another step down the road to a liberal activist, results-oriented world,” Sessions said.

Republican Orrin Hatch invoked the failed confirmation hearing of Miguel Estrada for a circuit court post. Hatch said that Estrada is a respected appellate litigator with a compelling life story, but he was fiercely opposed. Hatch’s message: it’s okay to aggressively challenge attractive Hispanic candidates.

And while Democrat Dianne Feinstein was speaking, an abortion protester started screaming: “Abortion is murder.” He was quickly grabbed by security and dragged out of the room.

Photo: AP

The piece points out that Gaines, a black man, sued the state of Missouri in 1936 for the right to attend the law school of its flagship university, the University of Missouri. The suit came during a time when the school, along with most other state schools there, largely denied blacks the opportunity to study law.

Mr. Gaines won the case, 6-2, when it reached the U.S. Supreme Court in 1938. Known as Gaines v. Canada, the ruling is seen as the groundwork for the famous Brown v. Board decision in 1954.

He won the case in part because the court deemed there were no other schools for blacks only that could offer a comparable education. This, then-Chief Justice Charles Evans Hughes wrote, made the “separate but equal” doctrine a moot point. “The basic consideration here is … what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color,” he wrote.

After the historic win, though, Mr. Gaines’s story quickly turned tragic. The NYT’s David Stout explains that Mr. Gaines felt a great deal of unwanted pressure following the ruling.

Despite his victory, Mr. Gaines was troubled. He had told relatives and friends he was having trouble finding steady work to earn money for school (apparently one reason he went to Chicago), and he was ambivalent about being in the spotlight. … “Sometimes I wish I were just a plain, ordinary man whose name no one recognized.”

Days after writing those words to his mother in a letter, Mr. Gaines went missing and no one ever determined what exactly happened to him.

In 2007, the NAACP asked the FBI to reopen the Gaines case to conclude exactly how Gaines went missing.

Gaines was recognized at this weekend’s NAACP centennial convention in New York City. In 2006, he was awarded a posthumous, honorary law degree from the University of Missouri. Gaines was also named an honorary member of the state bar association that year.

The LAT says the ruling could now affect hundreds of similar claims by plaintiffs from Nicaragua, Panama, Guatemala, Honduras, Costa Rica, and Ivory Coast now pending in U.S. courts. Chaney’s ruling has already become a focal point in a federal case in Florida, where a judge is considering whether Dole and for other companies must pay $97 million awarded to 151 plaintiffs by a court in Nicaragua in 2005.

“Chaney’s ruling could lead to the end of the workers’ litigation against Dole entirely or, at a minimum, severely cloud plaintiffs’ cases. The cases in Los Angeles Superior Court, spearheaded by Juan Dominguez, a personal-injury lawyer best known for his ads on Los Angeles buses, consumed months of court time and millions of dollars. Dominguez is now being investigated by the California state bar, under an order from Chaney,” the story says.

Also be sure to check out the LAT’s story on the Constitutional crisis in Honduras that led to the coup that toppled President Manuel Zalaya. It’s the best blow by blow account LB has found, with great dollops of narrative including the following:

Up this this point the coup plotters might have been able to justify their actions to the international community by arguing the military was fulfilling a legitimate court order to arrest the president. What happened next, however, deprived them of that luxury. The military bundled Zelaya away to a military aircraft. Still in his pajamas, the president was flown to Costa Rica. Even among some who supported the removal of Zelaya, the decision to expel him went beyond the pale, and the army’s chief juridical advisory now acknowledges that the expulsion was illegal.

Photo: AFP/Getty Images

The stage was set for a bench trial starting this morning in Miami’s federal district court between DOJ, repping the Internal Revenue Service, and Swiss bank UBS AG, repped by Frank Barron of Cravath and Wachtell’s John Savarese.

The prize: the names of 52,000 U.S. clients whom the U.S. wants to investigate for tax evasion. (Previous LB coverage here and here.)

Then, the inevitable: settlement talks, and a mutual request for a stay of the planned trial until early August, if a settlement isn’t reached first. Presiding Judge Alan Gold agreed to the joint request this morning reset the trial opening for Aug. 3. Here’s the story from WSJ and NYT.

It all started a couple of years ago, when a former UBS executive began spilling his beans to the U.S. government about how UBS helped clients evade taxes. UBS in February of this year agreed to settle a criminal case by paying $780 million and turning over names of about 250 clients, some of whom have since been prosecuted.

But the U.S. wanted more. It continued a parallel civil inquiry that led to what was going to be a riveting court showdown today. Meanwhile, the Swiss government last week insisted that if DOJ won, it wouldn’t allow UBS to violate Swiss secrecy law by handing over the names.

WSJ now reports that a possible settlement might involve UBS handing over some, but not all of the names. The compromise could see the names of only those clients who violated Swiss fraud laws get handed over to the Americans.

Everyone will carefully study Sotomayor’s statements and answers for clues as to how she might vote on the Court. In all likelihood, this is a futile exercise. Recent nominees rarely have said anything illuminating about how they will decide cases. In fact, often the confirmation process gives a quite misleading impression of how the individual will behave as a justice. John Roberts presented himself as a likely moderate justice, but he has been everything conservatives could have hoped for and liberals could have feared.

Assessing Sotomayor’s impact on the Court tends to focus on whether she is likely to vote the same way or differently from Souter, especially on the most deeply divisive constitutional issues. Although this is interesting, it may obscure more important ways in which Sotomayor can make a huge difference.

In the short-term, the key question is whether there will be cases where Sotomayor might be more effective than Souter in persuading Kennedy to come to a more liberal result. The reality is, especially in cases defined by ideology, it is the Anthony Kennedy Court. In the just-completed term, there were 23 5-4 decisions (out of 75 cases decided after briefing and oral argument). Kennedy was in the majority in 18, more than any other Justice. Even more revealing in 16 of the 23 cases, the Court split with Roberts and Scalia, Thomas, and Alito on one side, and Stevens, Souter, Ginsburg, and Breyer on the other. Kennedy sided with the conservatives in 11 of 16 cases. Are there some cases where by virtue of her life experiences, her personality, her persuasiveness that Sotomayor could persuade Kennedy to come to a different result?

In the longer term, it must be remembered that Sotomayor is only 54 years old and likely will be on the Court for several decades. Although her immediate impact is in replacing Souter, it will be important during the confirmation hearings to remember that her role on the Court will be far greater and longer lasting than that. If she remains on the Court until she is 89 years old – John Paul Stevens current age, she will be a justice until the year 2044.

Monday’s scheduled sentencing of disgraced attorney Marc Dreier for defrauding clients and investors of more than $400 million raises interesting questions regarding how much the amount of the loss should be factored into the punishment of a white collar criminal. The multi-billion dollar Ponzi scheme of Bernie Madoff resulted in a 150-year prison term, and in Dreier’s case the government is asking for nearly the same sentence, 145 years. (Click here for a previous LB post on the government’s filing.)

While the Federal Sentencing Guidelines call for life in prison for Dreier based largely on the amount of the loss, it is doubtful Dreier will receive anything close to that much prison time. The judge sentencing him is Jed Rakoff, who has been highly critical of the length of sentences under the guidelines, particularly in white collar crime cases. He wrote in United States v. Adelson about “the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” With words like that, Dreier has to be excited about who he drew for his case.

Under the guidelines, the amount of the loss plays the dominant role in calculating the recommended sentence in corporate fraud cases. For a loss of over $400 million, the guidelines put the sentence well above 20 years, and when other factors are added in the recommendation can easily reach life in prison. “Loss” is a typically slippery term that includes both “actual loss” and “intended loss,” and the judge is only required to make a rough estimate.

In a sentencing memorandum, Dreier’s defense counsel, Gerald Shargel, focused on the significant impact of loss on the sentencing calculation by pointing out that the loss enhancement is twice as high as any other in the guidelines, even for conduct related to terrorism. Shargel argues that because of the disproportionate impact loss has, Judge Rakoff should readjust the guidelines in a way that will lead to a sentence of 121-151 months.

Shargel’s requested sentence would put Dreier at the low end for similar frauds, such as Samuel Israel of Bayou Management (16 years), Steven Hoffenberg of Towers Financial (20 years), and Patrick Bennett of Bennett Funding Group (22 years). Even a 151-month sentence could result in Dreier serving less than 10 years if he participates in a substance abuse program while incarcerated, which knocks 12 months off the sentence, and receives the standard 15% credit for good time that takes another 23 months off. If he serves the final months in a half-way hour or home confinement, it’s not so bad for a multi-million dollar fraud.

The focus on loss in a corporate fraud case, like Enron or Worldcom, certainly magnifies the effect of the crime so that a defendant like Jeff Skilling or Bernie Ebbers gets saddled with every penny of the market drop in the company’s stock. Dreier’s crime, though, was much different from those cases. He perpetrated a fraud directly on his victims through falsified documents and face-to-face lies. While the harm caused to a company’s investors and employees from a CEO’s fraud is diffuse, Dreier’s crimes took money right out of the pockets of people who trusted him, including clients of his law firm. Judge Rakoff’s concern about “abstract arithmetic” may not work as well when actual victims will stand up in court.

As Dreier said in his letter to Judge Rakoff, “I expect and deserve a significant prison sentence.” It is unlikely he’ll receive Madoff time, despite the government’s request, but a sentence of at least 20 years would not be a surprise, even from a judge who does not trust the sentencing guidelines.

But we couldn’t really resist pointing out that the Mansion that Tort Built could be yours for a mere $39.5 million. LB’s Journal colleague Sara Lin reports that Melvin Belli’s former home in the Pacific Heights neighborhood of San Francisco has gone on the block. OK, Belli didn’t actually build it. He bought it in 1992–four years before his death–for about $6.5 million. In case you’re interested, it has six bedrooms, five baths and two powder rooms. (Maybe those were for his client, Zsa Zsa Gabor, who always looks like she uses copious amounts of powder.)

Of course, this listing is merely an excuse to recount our favorite tales of Belli, named “The King of Torts” by Time Magazine. Whether this was compliment or insult is yours to decide. According to this superb obituary upon his death at age 88 in the San Francisco Examiner, Belli believed he had to make a jury picture his client’s suffering. He once hoisted an injured, 680-pound man through the courthouse window. And he boasted of shocking a courtroom in the 1940s by having a client bare her chest to show scars from an injury. She then shed tears that landed right on the scars.

F. Lee Bailey told the Examiner: “Because of him, the price of a leg went up 300%.”

His divorces–there were many–were nearly as legendary. The court once fined him $1,000 for referring to his soon-to-be ex as “El Trampo.”

Photos: Vince Valdez; AP

Andy Pincus, a partner in Mayer Brown’s Supreme Court practice, who has argued 19 cases before the high court, says Sotomayor may draw some friendly fire from Democratic senators:

Pre-hearing speculation has focused on the tough questioning that will come from Republicans on a variety of hot-button issues—the Ricci case, gun control, and abortion, for example. But the Democrats won’t restrict themselves to softballs (although with David Cone listed as a witness, there certainly will be some about baseball). The topics on which Democrats pressed Chief Justice Roberts and Justice Alito during their confirmation hearings haven’t gone away, and Judge Sotomayor is likely to face attempts to elicit her views.

Take terrorism-related issues, for example. Senator Leahy and other Democrats asked the two prior nominees about constitutional limits on indefinite detention of suspected terrorists, the application of due process to military tribunals, and the President’s ability to override generally-applicable legal limitations, such as the prohibition of torture and limits on interception of Americans’ communications. We don’t know much about how Judge Sotomayor would approach these issues, many of which remain in the headlines as the Obama Administration finds itself unable to devise quick solutions to detainee and intelligence issues.

Another topic certain to come up is the death penalty. The Court has not been receptive to claims by death row defendants: just last month it rejected an inmate’s attempt to gain access to evidence for DNA testing, holding in a 5-4 decision that due process did not require States to provide such access. And the Court has not been clear about the extent to which the Constitution permits an execution to go forward in the face of a legitimate claim of actual innocence.

How will Judge Sotomayor respond to these inquiries? Chief Justice Roberts and Justice Alito provided little insight into their views, explaining that they could not prejudge issues that might come before the Court. It would be ironic if Democrats sought to impose a higher standard on Judge Sotomayor.

Our first guest perspective comes from Heather Gerken, a constitutional law professor at Yale who clerked on the Ninth Circuit and later for David Souter:

It’s easy to predict the questions Senators will ask of Judge Sotomayor. They will grill her on issues like race and nationality security. They will ask her whether she would overturn this or that decision. The problem with these questions is that they focus on the cases that make headlines, where a nominee will simply spit out a canned answer vetted in advance.

If you really want to know what a judge is like, don’t ask about highly visible decisions; ask about the invisible work habits that produce them. Ask Judge Sotomayor simple, even mundane questions about daily life on the bench. Ask her how she prepares for a case.

How much time a judge spends on preparation is a pretty good proxy for identifying judges who care only about outcomes. A judge who spends a lot of time reading the briefs and reviewing the case law is the kind of judge who decides one case at a time.

A judge’s work habits may also signal whether she will be unduly influenced by her law clerks. Even a seemingly trivial fact – whether the judge begins or ends her case preparation with her law clerk’s memorandum – can be revealing. While many fine judges start with the memo, it’s not a good habit. The clerk’s evaluation of the case may color the judge’s assessment, perhaps even tempt a busy judge to rely on the law clerk’s work rather than her own. A judge that works through the materials herself, using the law clerk’s views only as a check on her own, is sure to be a judge willing to do the nitty-gritty, behind-the-scenes work that makes for good judging.

Finally, a judge who knows her own mind should demand vigorous disagreement from her law clerks. Supreme Court Justices are powerful people, and the temptation for clerks to say what they want to hear is profound. A great Justice will demand that her clerks serve as sounding boards, not echo chambers.

Prosecutors accused the former Mayer Brown partner of having knowledge of the Refco scam that cost investors $2.4 billion. (For previous LB coverage of Collins click here, here, and here.) Collins was found guilty of conspiracy, two counts of securities fraud and two counts of wire fraud. A mistrial was declared on nine other counts.

Prosecutors from the U.S. Attorney’s office in Manhattan had alleged that Collins was a key player in helping former Refco Chief Executive Phillip R. Bennett and others hide the commodity broker’s dismal financial picture, including hundreds of millions of dollars of undisclosed debt, according to reporting just in by Dow Jones Newswire’s Chad Bray. Bennett pleaded guilty to securities fraud and other charges last year.

The government had alleged that Collins helped Bennett and others engage in transactions that transferred losses and certain expenses off Refco’s books to Refco Group Holdings Inc., a company controlled by Bennett and others. The government said Collins made $40 million for his law firm as Refco’s outside lawyer and that gave him incentive to lie, starting in 1997.

However, Collins’ lawyer, William Schwartz of Cooley Godward Kronish LLP, has said Collins believed he was doing honest legal work and was kept in the dark by Bennett and others at the company. “We are deeply saddened by the verdict and will appeal,” Schwartz said.

Mayer Brown has previously said it was cooperating fully with prosecutors.

Deliberations appeared to have become heated earlier this week when a male juror sent a note to the court indicating a female juror had threatened to cut off his finger and told him her husband would “take care of you.”

Afterwards, jurors said the acrimony was between the two jurors, as one was annoyed by the other pointing his finger at people when he talked. For the most part, deliberations were uneventful, they said.

“Nobody got hurt. There was no bloodshed,” said one juror who refused to give
her name. “It’s not easy to decide someone’s fate.” They said the jury was deadlocked 11-1 on the remaining nine counts, and the juror who complained to the court was the holdout.