It is neither unethical nor extortionary on the part of the Hampton's lawyer to try to settle before filing the suit. Naturally, the Ensign folks are spinning it as though it were some attempt at blackmail.

Everyone should realize that having sex with a subordinate co-worker is a merciless trap. Senator Ensign is now suffering the foreseeable consequences of his own stupidity. His poor judgment in getting himself into this is just as damning as the moral failure of cheating on his wife. tks rich

Part of it though is just prudent lawyering on the part of DOJ. I have worked as an agency counsel within the federal government for about 30 years, and I speak from long experience in defending habeas, mandamus and Administrative Procedures Act cases in federal district court.

From a tactical or strategic point of view, the main problem with dramatic reversals of litigation posture is that in effect one abandons the contention that the Gov't's original hard line position was "substantially justified." That opens the Government to liability to the other side for attorney's fees under the Equal Access to Justice Act (EAJA).

No prudent attorney would advocate this sort of wholesale concession of the Government's position without being very certain that the Treasury does not end up shelling out thousands of bucks in EAJA fees to attorneys in 50 or a 100 different cases. It would be like a federal bailout of the plaintiff bar. I strongly suspect that they would prefer to settle each of the cases on the basis of "each party to bear its own costs and fees."

I think it is very premature to assume that the new crew is just the same as the old crew. Just as it takes time to reverse the direction on a moving train, it is equally difficult to change a litigating posture.
tks rich

Also galling would be the statement that Senator Wyden had been informed by the transition team. This has led some people to conclude that the slight was intentional. I suspect that Biden and the transition team are being truthful in acknowledging a mistake.

I understand the the idea is that the story broke in the NYT before they could give Senator F. the word in advance.

It is also possible that they broached the subject initially with Wyden to get the "lay of the land" b/c they knew Sens Feinstein and Rockefeller supporting the other guy.

The Obama team has seemed pretty straightforward in their dealings, at least so far. tks rich

If that were the case, Secretary White might justifiably (and lawfully) refuse to countersign the certificate on ethical grounds based on the manifest impropriety of Blago's action. It is important that part of the criminality of which Gov. Blagojevich is accused relates to the very Senate seat involved here.

Mandamus exists to compel a public official to perform a duty which he/she is required by law to perform--in this case countersigning the appointment certificate.

If, by making this appointment, the governor has violated some ethical prohibition regarding conflicts of interest for elected officials in Illinois, Sec. White would have no "duty" to validate the improper act by countersigning the appointment.

Failing that, it is also possible that Burris would have no legal standing in mandamus to compel White to countersign the appointment certificate; because the duty to do so--if it really is a ministerial duty--is not owed to Burris himself, but to Blago as the Governor or to the Clerk of the Senate rather than the appointee.

It was a cool November day, and I recall walking home alone in a light drizzle. Rich