President Bush bowed this week to opposition from Lindsey Graham and other senators, declining to renominate the Pentagon’s top lawyer to the federal appellate court that oversees South Carolina.

Bush’s decision not to send the Senate the nomination of William Haynes to the 4th U.S. Circuit Court of Appeals acknowledges new political realities with a Democratic-controlled Congress.

The decision also is a victory for Graham, R-SC, a military lawyer who opposed Haynes’ appointment because of Haynes’ role as Defense Department general counsel in formulating tough interrogation techniques for accused terrorist detainees.

In a Dec. 19 letter to Bush, obtained Tuesday by McClatchy Newspapers, Haynes asked the president to withdraw his name from consideration.

Haynes was one of four controversial judicial nominees Bush chose not to renominate. The others were Terrence Boyle, William Myers and Michael Wallace.

PELOSI BANS SMOKING IN SPEAKER’S LOBBY

Smokers may be one minority in Congress with even fewer rights than newly demoted Republicans. Now they’re losing one of their last, cherished prerogatives — a smoke break in the ornate Speaker’s Lobby just off the House floor.

New House Speaker Nancy Pelosi, D-Calif., announced a ban Wednesday.

“The days of smoke-filled rooms in the United States Capitol are over,” Pelosi said. “Medical science has unquestionably established the dangerous effects of secondhand smoke, including an increased risk of cancer and respiratory diseases. I am a firm believer that Congress should lead by example.”

Lawmakers will still be free to light up in their own offices.

HIGH COURT WEIGHS UNION DISPUTE

Supreme Court justices indicated Wednesday they are inclined to uphold a Washington state law restricting unions from using workers’ fees for political activities.

The case involves a few thousand teachers and other education employees who are in the bargaining unit of the more than 70,000-member Washington Education Association — but who have chosen not to join the union.

The Washington Supreme Court struck down the law, but several justices said Wednesday that the law did not strike them as burdensome.

Previous legal interpretations have said that active licensing contracts between companies essentially act as a "covenant not to sue," according to the American Bar Association. As such, the "actual controversy" required to have a case under the U.S. Constitution doesn't exist.

But in an 8-1 opinion yesterday - with Justice Clarence Thomas dissenting - the court struck down that idea as "mistaken."

"Promising to pay royalties on patents that have not been held invalid does not amount to a promise not to seek a holding of their invalidity," Justice Antonin Scalia wrote on behalf of the majority. (Thomas contended the courts had no jurisdiction over the case because no controversy existed.)

Those who license access to patented technology may now decide it's more in their interests to try to have a suspect patent legally overturned. And patent holders may likely scrutinize potential partners more closely or charge higher fees to cover the risk of a lawsuit.

"Clearly, this will have some impact on how people look at licensing their technology," said Lawrence M. Sung, a professor and director of the Intellectual Property Law Program at University of Maryland School of Law.

"The difficult question is knowing how much of an impact there will be," Sung said.

For MedImmune, the opinion means a lower court will have to consider the company's original 2003 claim filed in California U.S. District Court. The case contends that a patent held by California competitor Genentech Inc. was obtained through improper collusion with a British biotechnology company and amounts to an illegal 12-year extension of an earlier patent.

Texas-based SCCI Health Services Corporation (SCCI) and its subsidiary, SCCI Hospital Ventures Inc., have paid the United States $7.5 million to settle allegations that the companies violated the Stark self-referral statute and the False Claims Act, the Justice Department announced today. SCCI, which was purchased by Triumph Hospital in 2005, operates long term acute care facilities across the United States.

The government complaint alleged that from November 1996 through at least 1999, SCCI entered into prohibited financial relationships with three physicians and paid these physicians illegal payments in violation of the Stark statute. The government further alleged that from November 1996 through at least 1999, SCCI either submitted or caused false claims to be submitted to the Medicare program, as a result of these prohibited financial relationships, in violation of the False Claims Act.

“The Justice Department is committed to investigating cases that threaten the integrity of the Medicare program, especially when providers fail to abide by federal laws prohibiting the referral of Medicare patients in exchange for a fee,” said Assistant Attorney General Peter D. Keisler.

The settlement resolves a civil case filed on behalf of the government on April 1, 1999 by former employees and an independent contractor who worked for SCCI Houston. Daryl Kaczymarczyk, Patricia Rocha, Michelle Pate, Michael Brigle and Theresa Taylor filed the case under the qui tam or whistleblower provisions of the False Claims Act, which authorize private parties to file lawsuits on behalf of the United States. On Oct. 2, 2002, the government intervened in the Stark Act claims as to the three physicians. The United States filed its complaint in the case on March 10, 2003. Of the total settlement amount, $1 million resolves additional allegations as to which the government did not intervene. As a result of the settlement, the five whistleblowers shared $1.7 million.

“The Justice Department and the United States Attorney’s Office are committed to preventing and punishing improper financial relationships between physicians and hospitals. Such relationships have great potential to adversely impact the physician’s judgment and result in Medicare funds being spent on unnecessary and expensive hospital stays,” said Donald J. DeGabrielle Jr., United States Attorney for the Southern District of Texas.

The case was handled by the Justice Department’s Civil Division and the U.S. Attorney’s Office for the Southern District of Texas, with the assistance of the Federal Bureau of Investigation.

JOSHUA TREE, Calif. A sheriff's spokesman says an attorney and another man who were shot repeatedly at a Joshua Tree law firm yesterday remain in critical condition.

Attorney Bill Weir and Rocky Favorite were shot multiple times at the J-T Law firm. A San Bernardino County sheriff's spokeswoman says a third victim, 25-year-old Dawn Croom, was hospitalized with a wounded leg but later released.

Bernard Steppe was arrested shortly after the shooting for investigation of attempted murder. He's being held at Morongo Basin Jail on 500-thousand dollars bail.

Sheriff's spokeswoman Jodi Miller says Steppe lived on the same property as the law firm and may have worked for Weir in the past.

In 1994, the Court held 6-3 in C & A Carbone, Inc. v. Town of Clarkstown that a similar ordinance unconstitutionally restricted interstate commerce; in that instance, the mandated facility was privately owned. The issue now before the court will turn on whether a government-owned facility can be seen as analogous to a profit-seeking private company and thus would be in violation of the Commerce Clause. Five of the six justices who signed the 1994 majority opinion remain on the bench; of the three dissenters, only Justice David Souter remains.