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Wednesday, September 14, 2005 In Thursday's edition of The Los Angeles Times: An article will report that "Roberts Offers Fuller Accounting of Views." And David G. Savage will report that "Roberts Distances Himself From Court Originalists." In Thursday's edition of The New York Times: Adam Liptak and Robin Toner will have an article headlined "Roberts Parries Queries on Death and Roe v. Wade." A transcript of today's proceedings can be accessed here. And in other news, "Judge Rules Reciting Pledge in Schools Is Unconstitutional." In Thursday's edition of The Washington Post: The newspaper will contain a front page article headlined "Roberts Frustrates Committee Democrats; GOP Optimistic On Confirmation." Charles Lane will have a news analysis headlined "A Conservative, Yes, but Not a Scalia." In other coverage, "Democrats Dissect Memos From 1980s; Nominee Attempts to Create Distance" and "'Advise and Consent,' Anyone?" And in other news, "Judge Rules Pledge of Allegiance in Calif. Schools Unconstitutional." Available online from law.com: An article reports that "Feds' Search Moves Trouble 9th Circuit." And in other news, "Georgia Chief Justice Attempts to Cut Red Tape for Evacuee Lawyers." In today's edition of The Daily Journal of California: Lawrence Hurley has an article headlined "Roberts Steps Past Queries on Abortion; Nominee Supports Precedent to Avoid 'Jolt' to Legal System." And today's newspaper also contains "Two Scholars View the Hearing" consisting of an essay by Law Professor Erwin Chemerinsky entitled "Testimony Misleads Judiciary Panel, People" and an essay by Law Professor Douglas Kmiec entitled "Adjourn Hearing--Approve Him Immediately." "The Philosopher-Justice: Stephen Breyer's new book is a direct challenge to Antonin Scalia from within the Court; It's about time." Law Professor Cass R. Sunstein has this book review (pass-through link) in the September 19, 2005 issue of The New Republic. Knopf's web page devoted to the book refers to its author, Justice Stephen G. Breyer, as "a judge often regarded as one of the court's most brilliant members." The web page also explains that the book is "based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004" A preliminary draft of Justice Breyer's lectures can be freely accessed here. "Specter's Questioning Reflects Recent Battle as Justices Move to Curb Lawmakers' Powers": Linda Greenhouse will have this news analysis Thursday in The New York Times. Posted at 10:13 PM by Howard Bashman In Thursday's edition of The Hill: Tomorrow's newspaper will contain articles headlined "Nominee sails through second day of questions" and "Now right demanding Dem memos." Posted at 10:10 PM by Howard Bashman In coverage of the Senate Judiciary Committee hearing from PBS's "The NewsHour with Jim Lehrer": Yesterday's broadcast contained two segments (here and here, transcripts with links to video) while a transcript from one of today's two segments is available online here (with link to audio). Posted at 10:01 PM by Howard Bashman "Roberts Says He's Been More Expansive Than Confirmed Justices; GOP committee members stress Roberts has answered more questions than any other nominee": T.R. Goldman and Tony Mauro have this report online at law.com. Posted at 09:05 PM by Howard Bashman Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained a segment featuring Nina Totenberg entitled "Roberts Reticent on Previous Court Rulings." And today's broadcast of "Talk of the Nation" included a segment featuring David G. Savage entitled "Roberts' Confirmation Hearings Continue." RealPlayer is required to launch these audio segments. "Pledge recital: invalid once more." Lyle Denniston has this post online at "SCOTUSblog." Posted at 08:50 PM by Howard Bashman Knight Ridder Newspapers are reporting: Stephen Henderson and James Kuhnhenn report that "Roberts stresses restraint, refuses to be pinned down." And James Kuhnhenn also has an article headlined "Sometimes personal, political blur when senators question Roberts." "Judge: School pledge 'unconstitutionally coercive.'" The Sacramento Bee provides this news update. Posted at 08:44 PM by Howard Bashman In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today's ruling is really, really wrong: The U.S. Supreme Court ruled in June 2004 that because plaintiff Michael A. Newdow lacked "prudential standing," the judgment of the U.S. Court of Appeals for the Ninth Circuit had to be reversed. A five-Justice majority on the Supreme Court therefore saw no need to consider on the merits whether the recitation of the Pledge in public schools was unconstitutional. The remaining three Justices (remember, Justice Antonin Scalia was recused) concurred in the judgment, concluding that Newdow possessed standing but that recitation of the Pledge in public schools was not unconstitutional. Today's federal district court opinion treats the U.S. Supreme Court's ruling as though it reversed the Ninth Circuit in part. In other words, the Supreme Court disagreed only with the Ninth Circuit's conclusion that Newdow possessed standing to receive a ruling on the merits but did not disagree (or agree) with the Ninth Circuit's resolution on the merits. I disagree with the district court's view for two reasons. First, the Supreme Court's reversal of the Ninth Circuit's judgment was not a reversal in part, because otherwise the three Justices who disagreed with the majority's prudential standing decision could not have concurred in the judgment based on their view that recitation of the Pledge was not unconstitutional. In other words, the remaining three Justices could not have concurred in the judgment unless the judgment had the effect of erasing the Ninth Circuit's resolution of the merits. And second, the Supreme Court's majority's ruling was not a reversal in part. A typical reversal in part comes in a case where the court of appeals has issued two unrelated holdings: the color blue is more pleasant than the color red, and the number two is greater than the number four. If the Supreme Court grants certiorari to review the mathematical holding and thereafter reverses, holding that four is greater than two, the court of appeals' holding concerning which color is more pleasing survives undisturbed. In Newdow's earlier case, however, the Ninth Circuit's ability to reach the merits depended on Newdow's satisfaction of both Article III and prudential standing requirements. Because Newdow couldn't satisfy the prudential standing requirement, the Ninth Circuit should not have resolved the merits, and the Ninth Circuit's resolution of the merits was rendered a nullity. Today's federal district court ruling cites precedents for the proposition that a court may reach the merits where the existence of prudential standing is especially difficult to resolve. But the district court's decision severely misapplies these precedents. A more accurate statement of these holdings is that where the question whether a plaintiff satisfies prudential standing requirements is especially difficult to decide, and on the merits a ruling against the plaintiff is relatively easy, the court may resolve the case against the plaintiff on the merits. I am unfamiliar with any precedent, prior to today's ruling, holding that where the plaintiff's ability to satisfy prudential standing requirements is too difficult to decide, the court can sidestep the standing question and rule against the defendant on the merits. Yet by allowing the Ninth Circuit's earlier merits ruling to stand in a case where the plaintiff lacked prudential standing, that is the effect of today's ruling. "Court says flag pledge violates U.S. Constitution": Reuters provides this report. Posted at 06:00 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Roberts Heads Toward Likely Confirmation"; "Senators Push Roberts, the Man, Only So Far"; and "Roberts Reveals His Favorite Movies." Posted at 05:55 PM by Howard Bashman "Precedential Effect of Reversed Decisions": Law Professor Eugene Volokh offers these thoughts on today's Pledge of Allegiance ruling. I agree with his prediction concerning how the Ninth Circuit will rule on appeal from today's ruling. Posted at 05:50 PM by Howard Bashman "Judge OKs Everett's Ten Commandments; Lawsuit challenging monolith is rejected": This article appears today in The Seattle Post-Intelligencer. The Seattle Times today reports that "Religious monument may stay, judge rules." And The Herald of Everett, Washington reports that "Judge allows Everett monument; A marker with the Ten Commandments can remain outside the police station." The newspaper also offers this photograph of the monument. You can access a copy of yesterday's ruling of the U.S. District Court for the Western District of Washington at this link. "Pledge of Allegiance in Public Schools Ruled Unconstitutional": Maura Dolan of The Los Angeles Times provides this news update. Posted at 05:02 PM by Howard Bashman "News Flash: Republicans Like Roberts; Senators' Rhetoric Leaves Little Time for Nominee to Get a Word In." Dana Milbank provides this update online at The Washington Post. Posted at 05:00 PM by Howard Bashman "Caron on Judicial Humility": Paul L. Caron of "TaxProf Blog" offers this post. Posted at 04:55 PM by Howard Bashman On today's broadcast of NPR's "Day to Day": The broadcast contained segments entitled "Senate Continues Probe of Roberts' Legal Thinking"; "Slate's Jurisprudence: Roberts and Privacy Rights" (featuring Dahlia Lithwick); and "Throwing Baseball Analogies from the Hot Seat." RealPlayer is required to launch these audio segments. Posted at 04:23 PM by Howard Bashman "The Unjust Detention of Jose Padilla": FindLaw commentator Joanne Mariner has this essay today. Posted at 04:15 PM by Howard Bashman "Judge rules Pledge of Allegiance unconstitutional; 'Under God' reference not appropriate for public schools, he says": The San Francisco Chronicle provides this news update. Posted at 04:00 PM by Howard Bashman "For Roberts, path to high court splits candor, caution; Democratic senators have struggled to glean Chief Justice nominee John Roberts's personal views": Warren Richey will have this article in Thursday's edition of The Christian Science Monitor. Posted at 03:54 PM by Howard Bashman "Roberts Gingerly Backs Voting Rights Law": The Los Angeles Times provides this news update. Posted at 03:50 PM by Howard Bashman The wire services are reporting: Thomas Ferraro of Reuters reports that "Roberts vows to seek consensus on U.S. high court." And Jesse J. Holland of The Associated Press provides a report headlined "Roberts: Law Will Guide Right-To-Die Cases." "Third Day of Hearings on the Nomination of Judge Roberts": Via The New York Times, you can access here a continually-updated transcript of today's proceedings. Already, today's Pledge of Allegiance ruling has been mentioned. Posted at 03:33 PM by Howard Bashman A prediction: I predict that the U.S. Court of Appeals for the Ninth Circuit will disagree with U.S. District Judge Lawrence K. Karlton's decision issued today in Newdow v. U.S. Congress, insofar as Judge Karlton held that the Ninth Circuit's earlier ruling in Newdow's earlier case that recitation in public school of the Pledge of Allegiance is unconstitutional remained binding law in the Ninth Circuit even after having been reversed by the U.S. Supreme Court. Of course, if I am incorrect, then public schools within the nine States and two Territories located within the Ninth Circuit should no longer be reciting the Pledge of Allegiance. Coincidentally, on Monday of this week the Ninth Circuit's Circuit Executive Office issued a news release entitled "Dispelling the Notion of Judicial Activism." BREAKING NEWS -- Here we go again: David Kravets of The Associated Press provides a report headlined "Judge: School Pledge Is Unconstitutional" that begins, "Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court." I have posted online at this link a copy of today's ruling of the U.S. District Court for the Eastern District of California. Earlier pleadings filed in this case can be accessed via this link. It appears that the basis for today's federal district court ruling is the conclusion that the U.S. Court of Appeals for the Ninth Circuit's earlier ruling, in Michael A. Newdow's earlier case, remains binding law in the Ninth Circuit, despite having later been reversed by the U.S. Supreme Court in a ruling that you can access here. I considered the effect of the Supreme Court's reversal on the precedential value of the Ninth Circuit's ruling back in June 2004, after the Supreme Court's ruling issued, in posts that can be accessed here, here, and here. "No Comment: John Roberts possesses Washington's most prized skill -- the ability to say nothing at great length." T.A. Frank has this essay (pass-through link) online today at The New Republic. Posted at 02:22 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Roberts Says He'll Decide Cases by Law" and "At Hearing, Roberts Addresses Media Access." Posted at 12:50 PM by Howard Bashman "State high court hears Columbine records case; Debate focuses on personal privacy, public's right to know": This article appears today in The Rocky Mountain News. And The Denver Post today reports that "Columbine dispute heard; Families of the killers and the Jeffco sheriff oppose releasing material seized from kids' homes; The Post's lawyer cites a public need to know." "Court Play: Aggressive Patent Litigants Pose Growing Threat to Big Business; Unlikely Phoenix Duo Push A Rival Near Bankruptcy In Prepaid-Cellphone Case; A Deposition on Car Thievery." Today's edition of The Wall Street Journal contains this front page article (pass-through link). Posted at 12:20 PM by Howard Bashman "Microsoft Asks Supreme Court to Hear $500 Million Eolas Appeal": This post appears today at "Patently-O: Patent Law Blog." Posted at 12:05 PM by Howard Bashman "Bush Nominates First-Trimester Fetus To Supreme Court": Today's edition of The Onion contains this article. According to the article: If confirmed by Congress, the bean-sized vertebrate would be the nation's first prenatal Supreme Court justice.The article goes on to report that the nominee has served as a columnist for The Legal Intelligencer. Today's issue of The Onion also contains a newsbrief headlined "Souter Hopes Roberts Is Into Birds." "Roberts Supports Privacy, Precedent in Hearings": Nina Totenberg had this report (RealPlayer required) on today's broadcast of NPR's "Morning Edition." Posted at 11:15 AM by Howard Bashman A press briefing will follow the meeting of the Judicial Conference of the United States on Tuesday, September 20, 2005: The Administrative Office of the U.S. Courts has today circulated an announcement advising that "The Judicial Conference of the United States will hold its biannual meeting Tuesday, September 20, 2005." Among other things, the Judicial Conference is scheduled to consider whether to transmit to the Supreme Court of the United States proposed Federal Rule of Appellate Procedure 32.1, which would allow non-precedential rulings to be cited in briefs filed in all U.S. Courts of Appeals. The Supreme Court would then have until May 1, 2006 to transmit the proposed rule to the U.S. Congress, and the rule would take effect on December 1, 2006 unless Congress enacts legislation to reject, modify, or defer the rule. Details on the federal courts' rulemaking process can be accessed here. I most recently touched on this issue in a post titled "Who will ask Chief Justice nominee John G. Roberts, Jr. for his views on splitting the Ninth Circuit?" Weekend at Boerne's: A reader emails: I am listening to the Roberts hearing on the radio. Judge Roberts just pronounced "crabbed" as crab-bed. I always assumed it was pronounced crabd. Have you ever heard someone use Roberts' pronunciation? I could be wrong--after listening to an appellate argument at the Minnesota Court of Appeals, I was surprised to learn that "primer" is correctly pronounced prim-er rather than prime-er.(This post's title is inspired by a movie title.) Posted at 10:10 AM by Howard Bashman "Confirmation Report: OK, John, you're humble; We get the point." Dahlia Lithwick has this jurisprudence essay online at Slate. Posted at 10:05 AM by Howard Bashman Available today at National Review Online: Byron York has an essay entitled "Roberts Threads the Needle: Just what did he say about Roe? The Democrats didn't ask." Hadley Arkes has an essay entitled "Reversing the Tables: Still time for Republicans to seize the hearing moment." Vincent Phillip Munoz has an essay entitled "Holy Rights: Church and state and the Bush justices." And Horace Cooper has an essay entitled "Two's No Crowd: The Senate has rapidly confirmed two justices before." Round two of questioning in the Senate Judiciary Committee is now underway: U.S. Senator Tom Coburn (R-OK), the final Judiciary Committee member to ask questions in round one, didn't even use his entire allotted time. Posted at 09:54 AM by Howard Bashman The Hill is reporting: Today's newspaper contains articles headlined "Liberal groups focus on 'flipping' centrists" and "'Go ahead ... continue not to answer.'" Posted at 09:52 AM by Howard Bashman "Roberts: Congress Can Trump Court Decision." Jesse J. Holland of The Associated Press provides this report. Posted at 09:50 AM by Howard Bashman "Battle Lost, Eviction Starts; Defiance Persists In Fort Trumbull": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Residents of New London's Fort Trumbull peninsula have been served with orders to move out by mid-December, signaling the end of the line for the diehards who narrowly lost their eminent domain battle before the U.S. Supreme Court." And The Day of New London, Connecticut reports today that "Eviction Notices Sent Out By NLDC; Remaining Fort Trumbull residents are told to leave, pay occupancy fee." Day three of the confirmation hearing for John G. Roberts, Jr. to be Chief Justice of the United States is underway: U.S. Senators Sam Brownback (R-KS) and Tom Coburn (R-OK) will be asking their first round of questions this morning. And then on to the second round, likely to be followed by a dispute between Democrats and Republicans on the Senate Judiciary Committee over whether additional rounds of questioning are needed. In addition to viewing online via C-SPAN3 (using RealPlayer or Windows Media Player), the Judiciary Committee offers a live audio feed, as does National Public Radio (RealPlayer required). Tom Goldstein of "SCOTUSblog" is live-blogging the hearing, as are Tom Curry of MSNBC and Marc Ambinder of National Journal. "Chertoff delayed federal response, memo shows": Jonathan S. Landay, Alison Young and Shannon McCaffrey of Knight Ridder Newspapers provide this report. Before becoming Secretary of the Department of Homeland Security, Michael Chertoff served as a judge on the U.S. Court of Appeals for the Third Circuit. In somewhat related news, The Clarion-Ledger of Jackson, Mississippi reports today that "Courts returning to routine business; Only jury trials being delayed; many potential jurors now displaced." "Roberts Fields Questions on Privacy and Precedents": This article appears today in The New York Times. Linda Greenhouse has a news analysis headlined "By Invoking a Former Justice, the Nominee Says Much but Gives Away Little." Adam Liptak has an article headlined "Explicit Endorsements of Some Decisions." And in related coverage, "With Goal Clear, Nominee Is Profile in Caution" and "In Complex Dance, Roberts Pays Tribute to Years of Precedent Behind Roe v. Wade." The Washington Post today contains front page articles headlined "Roberts Avoids Specifics on Abortion Issue; Nominee Distances Himself From Reagan-Era Writings" and "As Questioning Begins, Euphemisms Abound." Charles Lane has a news analysis headlined "Sounding Less Conservative but Still Noncommittal." And in related coverage, "Unclear on Abortion, Critics Say." The Los Angeles Times reports that "Roberts Is Confronted on Abortion; The chief justice nominee tells a Senate panel he is committed to legal precedent, but doesn't say how that applies to Roe vs. Wade." A news analysis is headlined "Roberts Stays Solid Favorite Without Firm Answers; Some may criticize the nominee as evasive, but his remarks aren't likely to stir more opposition." And David G. Savage has articles headlined "Roberts Sticks to Script on Abortion Questions; Like other Republican nominees, he declines to say whether he would uphold Roe vs. Wade" and "Roe Ruling: More Than Its Author Intended." In The Wall Street Journal, Jeanne Cummings and Jess Bravin report that "Roberts Leaves Fate of Roe Open; Nominee for Chief Justice Embraces Right to Privacy Underlying Abortion Ruling" (pass-through link). In USA Today, Kathy Kiely and Joan Biskupic have a front page article headlined "Roberts avoids specifics on abortion; Says 'Roe v. Wade' is 'settled as precedent.'" And Joan Biskupic and Toni Locy report that "Roberts proves to be a cool, savvy witness; Keeps composure as Democrats fire away." In The Chicago Tribune, Jan Crawford Greenburg reports that "Roberts sidesteps abortion debate; Judge says right to privacy found in Constitution." And in related coverage, "At hearing, abortion a frustrating issue." In The San Francisco Chronicle, Bob Egelko reports that "Roberts parries Democrats' questions; Nominee acknowledges right to privacy, refuses to reveal his views on abortion." The Baltimore Sun contains articles headlined "Roberts: Roe 'settled as precedent'; But judge resists attempts to elicit personal opinion about prior abortion rulings; Nominee spars with Democrats" and "On abortion issue, Roberts leaves both sides with doubts; Chief justice nominee avoids getting specific about Roe v. Wade." And a news analysis is headlined "A cool nominee easily sidesteps the hot issues." Stephen Henderson and James Kuhnhenn of Knight Ridder Newspapers report that "Abortion a 'settled precedent,' Roberts says." The Boston Globe reports that "Pressed on Roe, Roberts cites respect for precedent; Avoids firm stance, backs right of privacy" and "Nominee exhibits several deft moves." And Charlie Savage has an article headlined "Aggrieved, senators probe limits of their power." The Washington Times contains articles headlined "Roberts minimizes his role"; "Roberts defends Roe as 'a precedent'"; "Roberts criticizes foreign law used as precedent"; and "Roberts probed on overturning past rulings." Online at law.com, T.R. Goldman and Tony Mauro report that "Roberts Challenged by Democratic Senators." In The Pittsburgh Post-Gazette, Michael McGough and Maeve Reston report that "Roberts fends off abortion questions." And in related coverage, "Democrats take turns grilling on abortion, other tough issues." The Sacramento Bee contains articles headlined "Roberts backs privacy, avoids abortion debate" and "No fireworks displays as Feinstein homes in." Newsday reports that "Senators use old memos for questioning." The Philadelphia Inquirer reports that "Specter cuts to the case - 'Roe'; That was his first line of questioning for Roberts." The Houston Chronicle reports that "Roberts stays cool as exchanges sizzle; Irked Democrats accuse nominee of skating around abortion questions." The St. Petersburg Times reports that "Roberts says that he supports a right to privacy and that the president should follow laws on torture; But Democrats complain there's plenty he doesn't say." The Dallas Morning News reports that "Roberts dodges specifics; Democrats grill judge on abortion, civil rights." The Hartford Courant reports that "Abortion Is Focus As Both Sides Spin Nominee's Words." The St. Louis Post-Dispatch reports that "Roberts rebuffs efforts to pin down his views." The Milwaukee Journal Sentinel reports that "Roberts sees privacy right; But Supreme Court pick remains vague on abortion stance." The Atlanta Journal-Constitution reports that "Roberts deflects pointed queries." The Toronto Globe and Mail reports that "Roe v. Wade 'settled as a precedent,' Roberts says; U.S. nominee for chief justice remains cool under tough questioning from senators." The San Jose Mercury News reports that "Roberts deflects abortion inquiries." The Deseret Morning News reports that "Hatch easy on Roberts: Nominee describes philosophy." The New York Sun reports that "Schumer 'Surprised' by Judge Roberts." The State of Columbia, South Carolina reports that "Graham focuses on character; 'Greater issue,' S.C. senator says, is 'about who you are.'" The Newark Star-Ledger reports that "Democrats fail to pin down Roberts; Chief justice nominee declines to offer his personal views on volatile issues." The Cleveland Plain Dealer reports that "Roberts quizzed on E. Cleveland zoning case." The Dayton Daily News reports that "DeWine wants chief justice to take modest role on bench." The Harrisburg Patriot-News reports that "Specter avoids direct hit on abortion." The Des Moines Register reports that "Grassley asks about perceived role of being justice; The Republican senator from Iowa says the nominee for chief justice is 'intellectually honest.'" The Times Argus of Barre, Vermont reports that "Leahy growing frustrated with Roberts." The Lawrence (Kan.) Journal-World reports that "Area judges weigh in on confirmation hearings." The Harvard Crimson reports that "Senate Committee Questions Roberts." BusinessWeek offers a news analysis headlined "Roberts Robes Himself in Pragmatism; The Chief Justice nominee has rejected strict interpretations of the Constitution; That should hearten the Left and Corporate America alike." And at "SCOTUSblog," Lyle Denniston has a post titled "Analysis: Some revelations on Day Two."  
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