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Tuesday, January 31, 2006 In news from Hawaii: The Honolulu Star-Bulletin today contains an article headlined "Public-jobs law disturbs judge; A suit claims the law barring nonresidents from government jobs is discriminatory" that begins, "A federal judge said he is troubled by a state law that prohibits out-of-state residents from applying for public employment, suggesting that the state Legislature review it." And The Honolulu Advertiser reports today that "Hiring law troubling, judge in lawsuit says." "Months later, the Al-Arian verdict opens new wounds; An Israeli family who wanted the jury to hear how they lost a daughter in a Palestinian terror attack never got the chance": This article appears today in The St. Petersburg Times. Posted at 11:40 PM by Howard Bashman In Wednesday's edition of The Washington Post: A front page article will report that "Alito Is Sworn In On High Court; Senators Confirm Conservative Judge Largely on Party Lines." And Dana Milbank's "Washington Sketch" column will bear the headline "New Justice's First Challenge: Clap On or Clap Off?." On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Alito Confirmed as Newest Supreme Court Justice"; "Alito to Change High Court's Configuration" (featuring Nina Totenberg); and "Prosecutors Lay Out Case in Enron Fraud Trial." RealPlayer is required to launch these audio segments. Posted at 10:33 PM by Howard Bashman Available online from law.com: T.R. Goldman reports that "Alito Sworn In After 58-42 Vote." An article reports that "Prosecutor Says Lay-Skilling Case Is All About Lies." And in other news, "Stop Ga. Death Penalty Until Problems Solved, Report Says; ABA study cites habeas issues, jury confusion." "Appeals Courts Declare Limits on Partial Birth Abortion Unconstitutional": Henry Weinstein of The Los Angeles Times provides this news update. Posted at 10:15 PM by Howard Bashman In Wednesday's edition of The New York Times: Adam Liptak will have a news analysis headlined "Alito Vote May Be Decisive in Marquee Cases This Term." And in related coverage, "Alito Sworn In as Justice After Senate Gives Approval." In attendance at tonight's State of the Union address: From the Supreme Court of the United States, Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito, Jr. Posted at 10:04 PM by Howard Bashman "Patriot Act provision could limit inmate appeals": James Kuhnhenn of Knight Ridder Newspapers provides this report. Posted at 08:54 PM by Howard Bashman "Alito lends touch of drama to State of the Union; If new justice attends Tuesday night's address, he'll make history": Tom Curry, national affairs writer for MSNBC, provides this report. The Chicago Tribune on Wednesday will report that "Alito confirmed, sworn in for high court." The Hill on Wednesday will report that "Senate confirms Alito to the Supreme Court." And Patti Waldmeir of Financial Times provides a news update headlined "Boost for Bush as Alito is confirmed." "Supreme Court Blocks Florida Execution": The Associated Press provides a report that begins, "The Supreme Court on Tuesday blocked the execution of a man who killed a woman in her bathtub a decade ago, granting a stay to a Florida death row inmate for the second time in a week." Posted at 08:30 PM by Howard Bashman Role reversal: Rarely do plaintiffs argue that their cases aren't worth that much, but one well-established exception is after a case is removed from state to federal court based on diversity jurisdiction and then dismissed on the merits in federal court. Today, Circuit Judge Frank H. Easterbrook, on behalf of a unanimous three-judge Seventh Circuit panel, issued an opinion rejecting the plaintiff's argument that a dismissed slip-and-fall lawsuit against Red Roof Inns arising from an icy sidewalk in Indiana didn't assert a claim worth more than $75,000. Today's decision contains an interesting discussion of how a settlement demand of less than $75,000 can establish that the true value of a claim is in excess of $75,000. Posted at 05:28 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Appeals Courts Uphold Abortion Finding" and "Chafee Takes GOP Maverick Role, Again." Posted at 05:22 PM by Howard Bashman Bring on the asterisk: In response to this earlier post, a reader emails: Clearly there should be two records, just as the baseball record books still list Babe Ruth as the record holder for most HR's in a 154 game season.Baseball fans may find some information of interest here. Posted at 04:58 PM by Howard Bashman "President Congratulates Judge Alito on Senate Confirmation": The White House issued this press release today. Posted at 04:08 PM by Howard Bashman On today's broadcast of NPR's "Day to Day": Today's broadcast contained segments entitled "Slate's Jurisprudence: Alito Confirmed, Enron Trial" (featuring Dahlia Lithwick) and "Enron Trader Tapes Available on the Internet" (the tapes and transcripts can be accessed via this link). RealPlayer is required to launch these audio segments. Posted at 04:05 PM by Howard Bashman "Tap Dancing -- Bush's wiretapping program: yes or no?" Here at The New Republic Online, Harvard Law Professor Philip B. Heymann debates Seventh Circuit Judge Richard A. Posner. Posted at 03:50 PM by Howard Bashman "Senate Confirms Alito to the Supreme Court; Nation's 110th Justice Sworn in by Chief Justice Roberts": law.com provides this news update. Posted at 03:45 PM by Howard Bashman Lyle Denniston is reporting: At "SCOTUSblog," he has posts titled "First decision to apply Ayotte ruling" and "Alito takes oath, now a Justice." Posted at 03:40 PM by Howard Bashman "We remand this case to the district court with the recognition that it may apply the principles of traditional salvage law to the wreck of the Titanic in a manner that serves either the owner or, absent an owner, the public interest and at the same time provides an appropriate award to the salvor." If today's two federal appellate partial-birth abortion rulings haven't provided enough excitement (see my earlier posts here and here), the Fourth Circuit today has issued an opinion involving an actual (as opposed to merely jurisprudential) shipwreck. To learn how the battle over who owns what's left of the R.M.S. Titanic will be resolved, you can access today's Fourth Circuit ruling at this link. Posted at 03:28 PM by Howard Bashman BREAKING NEWS -- U.S. Court of Appeals for the Second Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional but requests additional briefing on the question of remedy: Today's ruling by a three-judge Second Circuit panel, in which each judge on the panel has issued a separate opinion, can be accessed here. Senior Circuit Judge Jon O. Newman delivered the opinion of the court. Chief Judge John M. Walker, Jr. issued a concurring opinion expressing dissatisfaction with the U.S. Supreme Court's current abortion jurisprudence. Chief Judge Walker's concurrence states, "I write separately, however, to express certain concerns with the Supreme Court's abortion jurisprudence generally and with Stenberg in particular." Circuit Judge Chester J. Straub dissented from today's ruling and would have held constitutional the ban on so-called "partial birth" abortion. In the dissenting opinion, he writes, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable." For those who care about such things, Judge Straub was nominated to the Second Circuit by President William J. Clinton. "The Failed Alito Filibuster": Rick Hasen has this post today at the "Election Law" blog. And at "PrawfsBlawg" -- in a post titled "Poor Justice Breyer..." -- Steve Vladeck reminds us that Justice Stephen G. Breyer missed being the longest-serving "junior" Associate Justice on the U.S. Supreme Court by "that much." The record holder remains Justice Joseph Story. A question for statisticians and other mathletes in the audience is whether it's fair to compare without any adjustment Justice Story's tenure as junior Associate Justice with Justice Breyer's given that, when Story established his record, the Court consisted of merely seven Justices (see also here). In other words, wouldn't a vacancy among the Associate Justice ranks be actuarially more likely to occur on a Court of nine than a Court of seven? If so, then maybe Justice Breyer has an arguable claim to the record even now. "Court Upholds Challenge to Abortion Limit": The Associated Press provides this report. My earlier coverage is here. Posted at 02:35 PM by Howard Bashman Don't close the book quite yet on Third Circuit Judge Samuel A. Alito, Jr.: Demonstrating a belief in finishing what he started, Circuit Judge Alito today issued three opinions for the Third Circuit and also an order amending opinion. None of today's opinions appear particularly filibuster-worthy, although in one Judge Alito cast the deciding vote. Another involved an airport search that went bad from the perspective of the traveler. And in the third, Judge Alito on behalf of a unanimous three-judge panel reinstates a female letter carrier's claims for retaliation and sex discrimination pursuant to Title VII of the Civil Rights Act of 1964. Today could be the final day in which Alito officially participates in disposing of cases on behalf of the Third Circuit, although, as Chief Justice John G. Roberts, Jr. recently demonstrated, anything is possible. BREAKING NEWS -- U.S. Court of Appeals for the Ninth Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional: You can access today's ruling, written by Circuit Judge Stephen Reinhardt on behalf of a unanimous three-judge panel, at this link. Today's opinion begins: This appeal presents a challenge to the constitutionality of the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531). We, like every other federal court that has considered the question, conclude that both the Constitution and the law as established by the Supreme Court require us to hold the Act unconstitutional. Unlike the other courts, however, we do so after fully considering the Supreme Court's recent decision in Ayotte v. Planned Parenthood of N. New England, No. 04-1144 (U.S. Jan. 18, 2006). In light of Ayotte, we conclude that the only appropriate remedy is to enjoin enforcement of the Act and we now affirm the district court's grant of a permanent injunction.The U.S. Court of Appeals for the Eighth Circuit, back in July 2005, likewise held this law unconstitutional. My report on that ruling can be accessed here. The federal government has filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Eighth Circuit's decision. The cert. petition is fully briefed and awaits action from the Court. I'll leave it to conspiracy theorists to ponder over whether more than mere coincidence explains Judge Reinhardt's issuance of today's ruling in typescript form on the same day that the U.S. Senate confirmed Samuel A. Alito, Jr. to the U.S. Supreme Court. "Alito Is Sworn in for Supreme Court": Jesse J. Holland of The Associated Press provides this report. Posted at 01:24 PM by Howard Bashman "Senate approves Alito, 58-42": Lyle Denniston has this post at "SCOTUSblog." Posted at 12:24 PM by Howard Bashman BREAKING NEWS: It's official -- more than 50 U.S. Senators have voted to confirm Samuel A. Alito, Jr. to serve on the Supreme Court of the United States. And Jesse J. Holland of The Associated Press reports that "Senate Confirms Alito to Supreme Court." The final vote tally was 58-42. A first for the Third: When the U.S. Senate moments from now votes to confirm Samuel A. Alito, Jr. to serve on the Supreme Court of the United States, he will become the first judge from the U.S. Court of Appeals for the Third Circuit to join the U.S. Supreme Court. By my calculation, this leaves only the Fourth, Fifth, Tenth, Eleventh, and Federal Circuits as the U.S. Courts of Appeals that haven't yet had one of their judges promoted to the U.S. Supreme Court. Update: To clarify one issue, the starting point for my inquiry is in 1891, when Congress passed the Evarts Act, which created the U.S. Courts of Appeals as we currently have them today. As a result, Justice William Burnham Woods, who served on the U.S. Circuit Courts for the Fifth Circuit before joining the U.S. Supreme Court, doesn't count. Wishing Justice Sandra Day O'Connor all the best for the future: In her letter to President Bush, Justice O'Connor stated that she would retire from the Supreme Court of the United States "effective upon the nomination and confirmation of my successor." Justice O'Connor's retirement is thus scheduled to take effect within the next hour and a half when the U.S. Senate's vote to confirm Samuel A. Alito, Jr. is announced. As noted here, Justice O'Connor was nominated by President Ronald Reagan on July 7, 1981 and was sworn in on September 25, 1981. She was the first woman appointed to the Supreme Court of the United States. She has been referred to as the most powerful woman in the United States. Slate's conversation about Justice O'Connor's legacy can be accessed here. Upon Justice O'Connor's retirement, every case that has been argued thus far this Term but not yet decided will either be decided by the other eight current Justices (or fewer, if there are other recusals) or will be reargued before the Court with Justice Alito on the bench. A list showing the status of cases the Court has agreed to hear on the merits this Term can be viewed at this link. Meanwhile, Justice O'Connor bobblehead dolls remain up for auction at eBay, as described in this earlier post. "Ebbers's Prosecutors Questioned on Tactics": The Washington Post today contains an article that begins, "Federal judges hearing former WorldCom Inc. chief executive Bernard J. Ebbers's appeal of his fraud conviction sharply questioned prosecutors Monday about whether the government used the immunity process to take an unfair tactical advantage." Posted at 10:25 AM by Howard Bashman "Enron Jury Is Selected in One Day as Judge Sets Brisk Pace; Lawyers for defendants Lay and Skilling say they are pleased with the members of the panel": This article appears today in The Los Angeles Times. The Chicago Tribune reports today that "Enron drama begins in Houston; 1st arguments set in trial of 2 top execs." USA Today reports that "Enron jury gets seated in 8 hours flat." The Houston Chronicle today contains articles headlined "'You will be the judges of the facts,' jurors told"; "Less flash, more value in openings"; and "Scores of reporters -- and a rapper; Media flock here for trial, but find little in the way of news on Day 1." The Dallas Morning News reports that "Jury is seated in Enron trial; Defense pleased with panel, which judge had pledged to pick in a day." The Associated Press reports that "Opening Statements Next Step in Enron Case." Today's broadcast of NPR's "Morning Edition" contained a segment entitled "Opening Statements to Begin in Enron Trial." And CBS News legal analyst Andrew Cohen has an essay entitled "Enron: Where The Market Met The Law." The Houston Chronicle's "Enron: TrialWatch" blog provides updated coverage throughout the day. "Justices get rolling on injured skateboarder's case; They will decide whether parents can waive their children's rights to sue": The Newark (N.J.) Star-Ledger today contains an article that begins, "In a case involving a 12-year-old skateboarder's broken leg, the state Supreme Court has been asked to decide whether parents can sign away their children's rights to sue. The boy is suing the commercial skateboarding park where he was hurt, even though his mother had signed a form giving up that right." Posted at 10:00 AM by Howard Bashman The up-or-down vote in the U.S. Senate on whether to confirm Samuel A. Alito, Jr. to the Supreme Court of the United States will occur today at 11 a.m.: Final debate on the matter begins at 9:45 a.m., when the Senate starts work for the day. You can view the debate and vote live, online via C-SPAN2 (RealPlayer required). The Newark (N.J.) Star-Ledger reports today that "Democrats lose last bid to block Alito nomination." The Sacramento Bee reports today that "Smooth sailing ahead for Alito; Full Senate is expected to approve high court nominee this morning." CNN.com reports that "Alito confirmation expected today; Democratic attempt to block his nomination defeated." Jesse J. Holland of The Associated Press reports that "Alito on His Way to Confirmation." Thomas Ferraro of Reuters reports that "Senate set to confirm Alito to Supreme Court." And yesterday's broadcast of NPR's "All Things Considered" contained a segment entitled "Senate Ends Debate on Alito Nomination; Vote Nears." "Alito Seen as Carrying the Torch of Reagan": David G. Savage has this article today in The Los Angeles Times, which also reports that "Attempt to Filibuster Alito Goes Nowhere; Nearly half of the Senate's Democrats vote to end debate over the high court nominee, who is expected to be confirmed today." The Chicago Tribune reports today that "Senate paves way for Alito's confirmation; 72-25 vote defeats Democratic filibuster." And in related coverage, "Obama packs 'em in, riffs on Iraq, Alito." In The New York Sun, Josh Gerstein reports that "Senate Is Set To Confirm Judge Alito." And an editorial is entitled "Out of the Mainstream." USA Today reports that "Democrats clear way for Alito vote." Newsday reports that "Dems' filibuster fizzles." In The Pittsburgh Post-Gazette, Michael McGough reports that "Alito moves toward confirmation vote today after filibuster dies." In The Boston Globe, Charlie Savage reports that "Alito filibuster effort falls short; Kennedy, Kerry divide Democrats." The San Francisco Chronicle reports that "Dems fail to prevent Alito vote; Nominee expected to win confirmation to Supreme Court." The Washington Times contains articles headlined "Senate rejects filibuster of Alito" and "Opposing Alito may dog Chafee re-election bid." The New York Daily News reports that "No filibuster Alito on way to top court." The Rocky Mountain News reports that "Salazar votes to end debate." The Providence Journal contains articles headlined "Chafee won't support Alito" and "In R.I, abortion could become primary issue." And columnist M. Charles Bakst has an op-ed entitled "Chafee-Alito: Must this be so difficult?" The Pawtucket Times reports that "Chafee against Alito." The Indianapolis Star reports that "Alito filibuster fails; Bayh, Lugar split." The Arkansas Democrat-Gazette reports that "Lincoln, Pryor vote against Alito filibuster." The Arkansas News Bureau reports that "Pryor meets with Gang of 14 on Alito." The Arizona Republic contains an editorial entitled "Alito ready, able to replace O'Connor." The Pueblo Chieftain contains an editorial entitled "Cruel irony." And in The Wisconsin State Journal, columnist Bill Wineke has an op-ed entitled "Alito's effect will be on new issues of the future." "Weighing a Justice: Antonin Scalia's judicial philosophy is not just a cover for conservative ideology." Today in The Wall Street Journal, Law Professor John O. McGinnis has this review of Ralph A. Rossum's new book, "Antonin Scalia's Jurisprudence." Posted at 07:00 AM by Howard Bashman "Trial Opens in Challenge to Law Over Teenage Sex": The New York Times today contains an article that begins, "A federal trial opened here Monday over whether a Kansas law prohibiting virtually all sexual activity by people under age 16 means health care professionals and educators must report such behavior to state authorities, which some say would stop many teenagers from seeking contraception or treatment for sexually transmitted diseases." The Wichita Eagle reports today that "Teen sex reports a bad idea, 2 testify." The Associated Press reports that "Judge Hears Case on Kan. Juvenile Sex Law." And in The Chicago Tribune, Dennis Byrne has an op-ed entitled "Linking statutory rape and abortion." "Open courtroom urged in Hamas case": The Chicago Tribune today contains an article that begins, "The Chicago Tribune and more than 20 advocacy groups representing civil rights activists, the Arab-American community and others urged a federal judge Monday not to close her courtroom when Israeli security agents testify at a hearing in March." Posted at 06:50 AM by Howard Bashman "Angels' name prompts devil of a lawsuit; City of Anaheim, Calif., seeking more than $100M in damages from baseball team": USA Today contains this article today. Posted at 06:44 AM by Howard Bashman  
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