|
|
|
Tuesday, July 30, 2002
Some kind words from a fellow blogger: Thanks to Rory Perry for his kind words today about "How Appealing" over on his blog. He wrote: "Your blog not only has timely and powerful substance, it goes a long way toward making appellate litigation less inscrutable, thereby promoting open access to the courts through knowledge sharing. Keep up the good work!" When he's not working on his blog, Rory serves as Clerk of the Supreme Court of Appeals of West Virginia, that State's highest court. Thanks, Rory, for those very kind remarks!
Posted at 23:00 by Howard Bashman
Tomorrow morning the Senate will confirm D. Brooks Smith to the Third Circuit: According to this report from The Associated Press, the Senate tomorrow morning will vote to confirm D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. Because I will then be en route to Phoenix, Arizona, let me offer my congratulations now both to Judge Smith and to the Third Circuit, which could well use an additional active judge at this time. Upon joining the Third Circuit, Judge Smith will displace Circuit Judge Samuel A. Alito, Jr. as the youngest judge currently serving on that Philadelphia-based federal appellate court. Although the Third Circuit is not accustomed to having its nominees undergo contentious confirmation battles, I have no doubt that Judge Smith will serve with distinction on the federal appellate bench. Posted at 22:49 by Howard Bashman Yaser Esam Hamdi's lawyer files papers today seeking his client's release from prison: The Associated Press offers this report on today's court filing by counsel for the so-called second American Taliban. Posted at 22:38 by Howard Bashman Some two years and seven months after oral argument, the Fourth Circuit rejects these criminal defendants' appeals: Today the U.S. Court of Appeals for the Fourth Circuit decided a criminal appeal argued on December 3, 1999. You can access the court's twenty-two page ruling here. Posted at 22:32 by Howard Bashman Second Circuit employs a non-en banc five-judge panel to decide two related appeals: Today the U.S. Court of Appeals for the Second Circuit took the very unusual step of issuing a single opinion in two cases presenting the same issue that had been argued before two different three-judge panels. Second Circuit Chief Judge John M. Walker, Jr. had presided over both panels, one of which included a federal district judge sitting by designation. Chief Judge Walker wrote today's unanimous five-judge ruling on behalf of two consolidated panels that included three other Second Circuit Judges and the aforementioned federal district judge. I have never seen this happen before -- normally, one of the two panels would rule first, and its decision would create precedent that would then bind the panel that ruled second. Please send me an email if you have ever previously seen a U.S. Court of Appeals merge two separate three-judge panels to decide a common question pending before both panels, and be sure to set forth the circuit involved and the name of and/or citation to the decision. Posted at 22:21 by Howard Bashman Audacious use of the Americans with Disabilities Act rejected: Today the Commonwealth Court of Pennsylvania, in a ruling you can access here, rejected the argument of a double amputee convicted of driving under the influence that the Americans with Disabilities Act prohibited Pennsylvania from suspending his driving privileges for one year even though non-disabled drivers with a DUI conviction would also receive the identical suspension. Posted at 22:09 by Howard Bashman Large Philadelphia law firm loses appeal in suit brought by retired partners: The law firm of Schnader, Harrison, Segal & Lewis probably did not get the result it was hoping for today when the Superior Court of Pennsylvania issued this ruling in favor of two retired Schnader partners. The docket indicates that Schnader used its own lawyers to represent itself in the appeal. The retired partners were represented by possible Third Circuit nominee Alfred W. Putnam, Jr. of Drinker, Biddle & Reath. Posted at 22:01 by Howard Bashman Priscilla R. Owen update: On law.com, Jonathan Groner reports that the outcome of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit may turn on her ruling in a case that went before the Supreme Court of Texas involving a minor's right to an abortion. Attempting to prove that point, Jason Zengerle, associate editor at The New Republic, strenuously argues that the Senate should reject Owen's nomination because, in Zengerle's view, she "is an anti-abortion zealot." Posted at 13:36 by Howard Bashman 50,000! Who would have thought that a Web log principally devoted to appellate litigation would have received 50,000 page visits so quickly. Thank you to all of the thousands who now visit each day. Posted at 12:58 by Howard Bashman Maybe accomplished appellate lawyers are all powerful? New York City Mayor Michael R. Bloomberg announced yesterday that accomplished appellate lawyer Joel I. Klein will become chancellor of that city's school system. In today's New York Times, reporter Adam Liptak offers this profile of the new chancellor. Posted at 10:02 by Howard Bashman Monday, July 29, 2002
How respectful is your dissent? Remember back in Bush v. Gore when some amateur Court-watchers tried to exploit the fact that Justice Ginsburg's dissent ended with the words "I dissent" rather than "I respectfully dissent"? It didn't mean anything; rather, it was just a matter of style, we were told. Well, the level of respect with which dissents actually treat majority opinions is a subject that I find interesting from time to time. Take, for example, today's en banc ruling of the U.S. Court of Appeals for the Fifth Circuit in a death penalty case.
In today's decision, a rather lopsided majority of the en banc court disagreed with the panel's ruling, which had granted the defendant's petition for writ of habeas corpus based on a Fifth Amendment issue. In dissent today was the author of the panel's original opinion, Circuit Judge Harold R. DeMoss, Jr. His dissent closed with the following paragraph: I know the record in this case as well as any other Judge who has ever addressed it and better than most of the Judges on this Court. I wrote the panel opinion, see 237 F.3d 411, to provide a comprehensive overview of the history of this case because I was convinced that this is one of those special, unique and peculiar cases which demands a consideration of the totality of the circumstances in order to reach a just result. I have laid awake nights agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record. However, my colleagues in the en banc majority have shut their eyes to the big picture and have persuaded themselves that piecemeal justice is sufficient in this case. That is, of course, their privilege but I am glad I will not be standing in their shoes, if and when Soffar is executed solely because of the third statement he signed in this case.Wow! That's quite harsh. But, if any case merits such remarks, you'd have to think it would be one in which a defendant's life or death is on the line. Posted at 23:52 by Howard Bashman Redundantly repetitive: Call me old school, but I continue to cling to the belief that "electrocution" is, by definition, fatal. Indeed, even if I were completely surrounded by people who thought they could totally destroy my view of electrocution's meaning, I would view it as nothing more than an occasional irregularity. Now, while I don't begrudge Glenn his complaints about Dell (everyone can't be a satisfied customer like me), at least he didn't purchase the same Maytag range that Venessa and Kyle Chapman acquired. As the Seventh Circuit explained today in this opinion, "Mr. Chapman was in the crawl space under the home when he came in contact with the energized metal surface of a heating duct and was fatally electrocuted. It was ultimately determined that the Maytag range was the source of the electrical current." (emphasis added). What makes the opinion more interesting than the typical person-killed-by-a-Maytag-range case is that (according to the opinion) not only was the range defective but so was the outlet that the Chapmans used as the range's power source. And, to make the case especially difficult, Mr. Chapman -- according to the opinion -- installed the outlet to which the range was connected, but failed to use any grounding wire in the outlet. Of course, Maytag had plastered warning labels all over the range instructing that it should only be connected to a properly grounded outlet. The long and the short of it is that because the appellate court concluded that plaintiff's expert's opinion that the range (rather than the faulty outlet) was to blame for Mr. Chapman's death was too unreliable to be admitted into evidence, Maytag has won itself a new trial and Mrs. Chapman has lost a substantial verdict in her favor. Posted at 23:40 by Howard Bashman Maryland's prohibition on barratry remains alive and well: So holds the U.S. Court of Appeals for the Fourth Circuit in a 2-1 ruling issued today. Some forms of maintenance and champerty, however, are apparently no longer objectionable there. Posted at 23:17 by Howard Bashman Be killed: That's how the Supreme Court of California, in a 6-1 ruling, today answered the ever vexing question, "Kill or be killed?" As the start of the court's opinion explains: Over two centuries ago, William Blackstone, the great commentator on the common law, said that duress is no excuse for killing an innocent person: "And, therefore, though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent." (2 Jones's Blackstone (1916) p. 2197.)Of course, the person who kills another to avoid being killed himself is still alive. So, which is worse -- being dead or being alive but convicted of murder? I leave that up to you to decide. Posted at 23:05 by Howard Bashman Sixth Circuit finally gets a new circuit judge! As predicted here, the U.S. Senate this evening confirmed, by a vote of 95-0, U.S. District Judge Julia Smith Gibbons to serve on the U.S. Court of Appeals for the Sixth Circuit. Two federal district judges from Pennsylvania also were confirmed this evening (including one who is, at least for a short while longer, one of my partners at my law firm). The nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit will reach the Senate floor tomorrow, and he is expected to be confirmed, although not by a unanimous vote. Posted at 22:57 by Howard Bashman The latest case to go en banc in the Ninth Circuit: On July 24, 2002, the U.S. Court of Appeals for the Ninth Circuit issued an order taking a very interesting case en banc. (No, not the Pledge of Allegiance case; just be patient!) Although I saw the order on the day of its issuance, I wanted to wait until the court updated its quite helpful list of pending en banc cases to see what question or questions went en banc before mentioning the case here. As it turns out, both of the main issues in the case have gone en banc: (1) whether an indigent defendant in a criminal case can sue his public defender and the appointing locality under the federal civil rights act?; and (2) is it unconstitutional for a locality to base its allocation of defense resources on the results of a criminal defendant's polygraph test? A three-judge panel, in a unanimous opinion by Circuit Judge Stephen S. Trott (ahem, he would now be the Chief Judge of the Twelfth Circuit, contrary to my post from earlier today), answered both questions in the negative. To me, the first question clearly seems to have been decided correctly by the panel; the second question is a bit of a closer call, and I'm hoping that's the issue that caused the case to go en banc. Posted at 22:39 by Howard Bashman Ninth Circuit issues press release in honor of its newest judge: The U.S. Court of Appeals for the Ninth Circuit has issued a very nice press release in honor of its newest judge, Richard R. Clifton of Hawaii (so what if much of the same information was available some seven days earlier here on this blog). You can access the press release at this link. Word on the street is that very high law school grades, law review membership, and top notch surfing skills will be required to have any chance of landing this judicial clerkship. Posted at 22:20 by Howard Bashman An extra day of blogging: My work-related trip into the Ninth Circuit has been postponed for (and shortened by) one day, so now I'll only be gone only Wednesday and most of Thursday. Thus, I'll be around tomorrow to commemorate this blog's 50,000th page visit and the expected confirmation of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. Yes, that too is scheduled to occur tomorrow, and now you've heard it here first. Posted at 22:12 by Howard Bashman All of Judge O'Scannlain's prepared testimony on splitting the Ninth Circuit: Courtesy of The Federalist Society's Web site, you can now access all of Ninth Circuit Judge Diarmuid F. O'Scannlain's prepared testimony on splitting the Ninth Circuit. In listening live on July 23, 2002 to that testimony before a subcommittee of the House Judiciary Committee, I found Judge O'Scannlain's presentation to be very persuasive. One thing I didn't appreciate until now -- O'Scannlian would be Chief Judge of the Twelfth Circuit if Congress today split the Ninth Circuit in two. Update: Someone apparently privy to Judge O'Scannlain's date of birth has emailed to say that I'm wrong -- because Judge O'Scannlain has already celebrated his 65th birthday (see here for proof that Judge O'Scannlain will turn 65 sometime in 2002), he's ineligible to serve as Chief Judge under 28 U.S.C. sec. 45(a)(1)(A). Oh well! I had no doubt that Judge O'Scannlain would have made an excellent Chief Judge. On the other hand, the position of Chief Judge of a U.S. Court of Appeals might be a bit overrated (except, perhaps, on the Ninth Circuit, where only the Chief Judge is guaranteed participation on every en banc panel). But those are subjects for another day. Posted at 15:06 by Howard Bashman Card carrying member of that "evil cabal": Senator Orrin G. Hatch took the Senate floor on Friday, July 26, 2002 to speak in favor of The Federalist Society. You can access his remarks by clicking on the 21st item at this link. Me? I joined for the subscription to the Harvard Journal of Law and Public Policy. Posted at 14:57 by Howard Bashman An Amtrak train from Chicago to Washington, D.C. has derailed in Maryland: You can access live news radio coverage online from WTOP. Posted at 14:49 by Howard Bashman The State of California's petition for rehearing en banc in the Pledge of Allegiance case is now available online, and you can access it here, courtesy of the Web site of California's Attorney General. In addition, you can access my original views on the Pledge ruling at this link. Posted at 11:32 by Howard Bashman Sunday, July 28, 2002
PRESS ALERT -- Synagogue vs. State in the U.S. Court of Appeals for the Third Circuit: The U.S. Court of Appeals for the Third Circuit is scheduled to hear oral argument in Philadelphia at 2 p.m. tomorrow, Monday, July 29, 2002, in a quite interesting dispute involving the Religious Land Use and Institutionalized Persons Act of 2000. In 1999, Congregation Kol Ami purchased a property owned by the Sisters of the Holy Family of Nazareth, a Catholic order of nuns. The congregation bought the property -- located in the Philadelphia suburb of Abington Township, Pennsylvania -- intending to convert it into a synagogue. In March, 2001, the Abington Township Zoning Hearing Board refused to allow the congregation to use the facility for religious purposes, denying permission to continue "the prior nonconforming religious use of the Sisters' property" despite the fact that the township had granted similar permission just five years earlier to a different religious group based on indistinguishable facts. As a result, the congregation sued Abington township in federal district court in Philadelphia.
In July 2001, the U.S. District Court for the Eastern District of Pennsylvania granted the congregation's motion for partial summary judgment, ruling that the Abington Township zoning ordinance that prevented the congregation from occupying and using the former Catholic convent as a place of worship was unconstitutional as applied to Kol Ami. You can access a detailed account of the dispute at this link. You can access the appellate brief filed on behalf of the congregation at this link. The three-judge Third Circuit panel assigned to hear argument and decide this appeal consists of Chief Judge Edward R. Becker and Circuit Judges Jane R. Roth and Marjorie O. Rendell. Interestingly, Abington Township is being represented by Law Professor Marci A. Hamilton, a former law clerk for Judge Becker and Justice Sandra Day O'Connor. Kol Ami also has a former law clerk to Judge Becker on its team, Jerome M. Marcus. Although my personal to-do list for tomorrow is already quite lengthy -- because I'll be out of the office in Phoenix, Arizona from Tuesday through Thursday of this week, and I have two appellate briefs due next week -- I hope to be able to make time to attend this oral argument tomorrow afternoon. Posted at 22:08 by Howard Bashman Expect some federal judicial nominees to be confirmed tomorrow: Look for the full Senate to elevate Julia Smith Gibbons from the federal district court to the U.S. Court of Appeals for the Sixth Circuit tomorrow. Two federal district court nominees from Pennsylvania may also be confirmed by the Senate tomorrow. One is a law partner of mine, and the other currently practices law in the same small town where my judicial clerkship for a Judge serving on the U.S. Court of Appeals for the Third Circuit was based. And, as this article reports, if you ever find yourself in the vicinity of Pottsville, Pennsylvania on a summer night, you don't want to miss a trip to Heisler's Cloverleaf Dairy, where you can enjoy some wonderful homemade ice cream, including a delicious Teaberry ice cream. Posted at 21:38 by Howard Bashman Stuart Taylor Jr. on the preventative detention system for enemy combatants: Stuart Taylor Jr. argued last week that the Bush administration's preventive detention system for enemy combatants has been implemented with little regard for the law. Taylor then proceeded to offer a few proposals of his own. Posted at 21:22 by Howard Bashman In Sunday's newspapers: The New York Times runs an editorial which contends that the Senate should not confirm to a federal appellate court any federal district judge who fails to turn over for inspection copies of all of his or her district court rulings, whether published or unpublished, written or oral. This proposal is likely to prove quite controversial, although it is facially non-partisan. Also in Sunday's Times, reporter Adam Liptak (apparently back from his recent visit to Hawaii) reports on this past week's Third Circuit decision considering whether federal prisoners should have the right to view R and NC-17 rated movies. You can access my prior post on that ruling here. Sunday's edition of The Washington Post contains an editorial addressing the government's recent statement of its reasons for continuing to detain Yaser Esam Hamdi, the so-called second American Taliban. And, if you hear the sound of an axe grinding, it may be emanating from the Book World section of today's Post. That section contains Edward Lazarus' review of the book "STARR: A Reassessment" by Benjamin Wittes. The book takes another look at Independent Counsel Ken Starr's investigation of President Bill Clinton, his spouse and others. That Starr is something of a hero among conservatives, while Lazarus is attempting to establish himself as something of a hero among liberals, may help to place in context what Lazarus has to say about this book. Posted at 00:27 by Howard Bashman Saturday, July 27, 2002
The readers of "How Appealing" speak out: A few days back, I set forth here my random musings on federal judicial nominations and asked for your views. So many of you answered my call for comments that I have decided to set forth, at length, the best comments that I received. Because so many of you have asked for anonymity, I will refrain from specifically identifying anyone who has responded.
To recap, my initial commentary posed two questions: (1) individually speaking, aren't federal district (trial court) judges more powerful than federal appellate judges?; and (2) why do judges who serve on the highest court of a State so often abandon that post to become federal court of appeals or trial court judges? Before turning to your submissions, let me add two more thoughts. First, of course I realize that federal appellate courts exercise greater power than federal trial courts. My question was simply whether a single federal trial court judge has more power than a single federal appellate court judge. Second, I recognize that different people might prefer being a trial court judge over being an appellate court judge for individual reasons. Trial court judges interact to a much greater degree than appellate court judges with lawyers and the parties in the lawsuit. Trial court judges also can exercise substantially greater control over their own calendar. Appellate judging, by contrast, tends to be a much lonelier and more intellectualized endeavor. So, judges who enjoy human interaction and having complete control over the cases pending before them might prefer serving on a trial court, while judges who enjoy examining difficult problems in depth, writing detailed and lengthy opinions, and who don't care to preside over trials or interact regularly with lawyers or regular people might prefer an appellate judgeship. I know that if someone offered both to me, I'd pick the appellate judgeship without hesitation. And now, without further ado, on to your comments. A lawyer based in the midwest who works for a government entity writes: The main difference between the two is that the trial judge is more powerful in deciding a given case -- thus changing life for those parties -- but the appellate judges are far more powerful in deciding the broader legal and ideological issues that change society. Generally, there is a spectrum between "power to change the world" and "power to have the de facto last word on the parties before me," and the players in the confirmation battles care about changing the world.A lawyer in private practice writes: If I were a state court judge, I'd take a seat on the federal bench for two reasons: (1) life tenure and (2) the retirement pay. If you meet the "rule of 60" (50 years of age plus 10 years of service), when you retire you continue to be paid the annual salary you were paid on the date of your retirement every year for the rest of your life. Think about it, what other retirement plan will continue to pay you $133K every year for the rest of your life after 10 years of service? (I would highly suggest checking my numbers with the Admin Office of the US Courts, as I'm typing this from my not always reliable or up-to-date memory.)An attorney in private practice in Louisiana writes: As for my views, which are the views of one who clerked for a well-respected local federal district court judge for 2 years, I am never surprised to see State Supreme Court Justices yearn for the federal bench. I know of at least 2 State Supreme Court Justices from Louisiana who have pushed hard to get on the US 5th Cir. One of them, Judge James Dennis, made it. The allure (at least for the Louisiana folk) seems to be that it removes the need to campaign, even though the term of a Justice is 10 years. Also, the legacy of John Minor Wisdom (and Skelly Wright, who left for the D.C. Circuit) is palpable. So I think a lot of state court Justices view the wider impact of federal law as more interesting, and perhaps they see allure in a strong reputation on the federal appellate bench crosses state boundaries.A lawyer based in Washington, DC who recently clerked for a federal appellate judge writes: In response to your query about why a state supreme court justice would accept an appointment to the federal bench, you cited the greater apparent prestige of the federal courts and the life tenure. I believe that both are factors. Life tenure and the freedom of avoiding retention elections and the attendant fund raising would seem pretty attractive to me.A lawyer who works in the northeast writes: I agree with you concerning the power of a district court judge. I represent the state in federal habeas corpus litigation. A federal District Court Judge wields enormous power in review of state court decisions. A single District Judge can discern a constitutional violation and order a prisoner be set free, after a jury has convicted him, and a state trial judge, intermediate appellate panel and the highest court of a state have found the conviction to be fair and valid.An attorney who works in the midwest writes: Having clerked for a federal district judge here in Detroit, I completely agree with your observation that it is the district judge, sitting as one man or woman, that wields the most power in the federal system.A lawyer practicing in the northeast writes: My federal practice is overwhelmingly devoted to the defense of state convictions from collateral attack through petitions for federal habeas corpus relief and over the years I have come to recognize the enormous power that individual federal district judges have in this context -- a federal trial judge, sitting alone, is empowered to review and overturn a state conviction even when that has been reviewed by the judges of the highest state court and has been affirmed.An experienced appellate lawyer practicing in Washington, DC, who many years ago served a federal appellate judicial clerkship, writes: The reason why state judges accept nominally lower federal judgeships is prestige and a sense that the job is better. A number of factors have combined to make this true.Another lawyer based in the midwest who also works for a government entity writes: A few years ago, I interned for one of the U.S. Attorney's offices in North Carolina. At that time, several of the attorneys in the office were fond of joking about how they ought to start campaigning to elevate a certain problematic federal district judge to the Fourth Circuit. The attorneys' thinking: the judge (1) already seemed to think he was a circuit judge anyway, and (2) he would do less damage in a group of three.Finally, a Kentucky-based lawyer writes: Regarding judges switching from State Supreme Courts to "Club Fed," I suspect that the shift in the last couple of generations is due to the increasing power of the Federal courts. It is my impression that up until WWII, the Federal courts had moderately limited roles and, thus, were not as powerful as the states Supreme Courts, especially for larger states like PA.Thanks again to everyone who took the time to share thoughts on these very important issues! Posted at 15:26 by Howard Bashman C-SPAN replays parts of the Ninth Circuit Judicial Conference: Tonight on C-SPAN's fine program "America and the Courts," you can watch the speeches that Supreme Court Justice John Paul Stevens and Solicitor General Theodore Olson delivered at the recent Ninth Circuit Judicial Conference in San Diego. Or, if -- like me -- you aren't able to be glued to the TV today at 7 p.m. eastern time, you can view the program online next week via this link. Posted at 12:20 by Howard Bashman WaPo tackles the Moussaoui mess: Today's edition of The Washington Post contains an editorial about the Moussaoui case. Posted at 12:16 by Howard Bashman Update on some random musings about federal judicial nominations: Thanks to everyone who responded to my call for comments on my recent random musings about federal judicial nominations. I had hoped to post a summary of your responses tonight, but the number and length of those responses, combined with the other fun stuff happening this evening, thwarted my intentions. I now expect to complete the posting sometime Saturday afternoon. Posted at 00:03 by Howard Bashman Friday, July 26, 2002
Way too funny: Scott Graham, editor in chief of California's local version of law.com, has a hilarious essay that is now available online. A sampling of Scott's essay:News: 9th Circuit Judge Alex Kozinski rules against Mattel Inc. in a nasty trademark action that he characterizes as "SpeechZilla meets Trademark Kong." At one point in the opinion Kozinski writes, "The parties are advised to chill."Posted at 23:38 by Howard Bashman The poster child for rehearing en banc: The U.S. Court of Appeals for the Third Circuit today decided a case that it had taken en banc before the three-judge panel originally assigned to the case had issued a decision. (The case in question is the second-to-last case that I summarized in my monthly appellate column published October 8, 2001, which you can access here. And, once again, my prediction proved correct.) The case in question, decided today by a vote of 10-2, turns out to be a prime example of why rehearings en banc are necessary. The two judges in dissent -- one senior and one active Third Circuit judge -- were both on the original panel. The third judge on the original panel -- who then would have been the lone dissenting judge -- wrote the majority opinion for the en banc court, in which the remaining nine other active Third Circuit judges joined. Posted at 23:30 by Howard Bashman Mo' money: According to this report from The Associated Press, Bill and Hillary "have asked a court to have taxpayers reimburse them for legal costs related to the Whitewater investigation, their lawyer said in a statement late Friday." Fellow taxpayers, we could be talking about $8 million here. Posted at 23:23 by Howard Bashman From behind bars, Unabomber becomes Unaauthor: The front page of tomorrow's Washington Post contains this report, which includes links to the recent writings. Posted at 23:18 by Howard Bashman The difficulty with Hamdi: On law.com, Marcia Coyle takes a look at "Terrorism's Hard Cases." Posted at 23:10 by Howard Bashman People of size become people of litigation: You can access the complaint here. Still hungry for more? See here and here for additional commentary. Posted at 23:06 by Howard Bashman Safire on blog: In his "On Language" column in this upcoming Sunday's New York Times Magazine, William Safire explains to the masses what "blog" means and even how create one -- although, humorously, he doesn't plan to do that himself "because I don't want anyone to know what I think." Could he be among those at The Times who read "How Appealing"? Perhaps time will tell. Posted at 22:29 by Howard Bashman A whole lot of work for almost no precedential value: The U.S. Court of Appeals for the Tenth Circuit today issued a seventy-eight page non-precedential opinion affirming in part and reversing in part a district court ruling. This may qualify as the lengthiest non-precedential federal appellate court ruling that I have ever seen. Posted at 22:13 by Howard Bashman The Hite of embarrassment? According to this report from The Associated Press, a woman has filed suit in Florida against Delta Air Lines due to what she claims was Delta's public humiliation of her. The article states that the woman was seated on a Delta flight scheduled to depart from Dallas when a voice on the loudspeaker system called her name and asked her to report to the front of the plane. There, the woman was met by a security agent who reported that a piece of her checked luggage contained something that was vibrating. The article continues: "She said she explained it was an adult toy that she and her husband had just bought on a trip to Las Vegas. She said the agent took her to the bag on the tarmac and made her remove the toy and hold it up, according to the lawsuit filed Wednesday. Some passengers on the plane saw everything, and three male Delta employees 'began laughing hysterically' and made 'obnoxious and sexually harassing comments.'" Instead of simply making a mental note to remove the adult toy's power source the next time she places it into checked luggage, the woman sued Delta alleging negligence, intentional infliction of distress, and gender discrimination. While it is easy to understand how the incident described in the AP article may have humiliated the plaintiff, the fact that the plaintiff has now filed suit based on the incident -- which has ensured that her name, Renee Koutsouradis, and age, 36, are reported world-wide by the AP -- causes me to question the sincerity of her claim of humiliation. Yes, a plane full of people may have heard her name over the loudspeaker and some on board may have observed what unfolded on tarmac. But now everyone knows what happened and who she is. Again, I'm not intending to suggest that people should be ashamed of their adult toys, or novelty items, or [insert your favorite euphemism here]. But when a person who does claim that she was embarrassed initiates suit and thereby brings the supposedly embarrassing details to the attention of a much, much larger audience, I start to wonder whether that someone is better viewed as embarrassed or just out to strike it rich. Posted at 19:49 by Howard Bashman How controversial are you? Federal judicial nominees who have been approved by the Senate Judiciary Committee and thus are now awaiting approval by the full Senate will soon learn the answer to that question. Senate Majority Leader Tom Daschle moments ago stated on the floor of the Senate that he saw no reason why all noncontroversial federal judicial nominees who have made it through the Judiciary Committee could not have confirmation votes before the full Senate by the end of next week. Posted at 16:05 by Howard Bashman Let the confirmation of judicial nominees begin: It appears that several federal judicial nominees could be confirmed by the Senate today, including Sixth Circuit nominee Julia Smith Gibbons. As I have previously explained, the Sixth Circuit is authorized to have sixteen active judges, but it currently has only eight active judges and eight vacancies. If confirmed today, Gibbons will be the first judge to join the Sixth Circuit since Ronald Lee Gilman joined that court in November 1997. Update: This being a Friday in late July (although it's not too summery today in Philadelphia; just 70 degrees at 2 p.m.), it now appears that the Senate will not vote to transform District Judge Gibbons into Sixth Circuit Judge Gibbons until Monday. The Senate did today confirm at least one brand new federal district judge. Posted at 11:25 by Howard Bashman Thursday, July 25, 2002
Senator McCain agrees to stop blocking federal judicial nominees: The Associated Press is reporting tonight that Senator John McCain has agreed to stop blocking the confirmation of federal judicial nominees. The article says that this development may allow for prompt confirmation of D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit.
Posted at 23:18 by Howard Bashman
California files for rehearing en banc in Pledge of Allegiance case: Jason Hoppin is reporting on law.com that California today filed a petition for rehearing en banc in the Pledge of Allegiance case pending before the U.S. Court of Appeals for the Ninth Circuit. Posted at 23:10 by Howard Bashman Thanks for taking the time: Thanks to all of the readers of "How Appealing" who have already taken the time to share their views with me regarding my musings of this morning about the federal judicial confirmation process. I hope to post a summary of the most thoughtful views that I have received sometime tomorrow night. If you wish to comment but have not yet done so, you'll have until 6 p.m. eastern time on Friday, July 26, 2002 to provide me with your thoughts. Posted at 22:57 by Howard Bashman Fourth Circuit denies Moussaoui mandamus: Today an appellate development occurred in the Zacarias Moussaoui case, and it is notable simply because the Fourth Circuit's order contained a partial dissent by Circuit Judge Roger L. Gregory. Judge Gregory is noteworthy because he served on the Fourth Circuit between December 27, 2000 and July 25, 2001 based on a recess appointment to that court from President Clinton. President George W. Bush, upon taking office, renominated Gregory to serve on the Fourth Circuit, and, following Senate confirmation, Judge Gregory became a regular Article III judge with life tenure effective on July 25, 2001. In my monthly appellate column published on March 12, 2001, I questioned the constitutionality of recess appointments to the federal judiciary. For those unfamiliar with, or otherwise interested in, this quite fascinating subject, you can access my column here. Posted at 22:45 by Howard Bashman Some prepared statements and a bio: Thanks to Denise Howell for noting this morning on her blog that the House Judiciary Committee has posted on its Web site the prepared statements of the witnesses who recently testified before a subcommittee about whether the Ninth Circuit should be split in two. You can access one of my earlier posts on this topic here. In an apparent error, clicking on the name of Ninth Circuit Judge Diarmuid F. O'Scannlain fails to bring up his testimony; instead, it brings up what appears to be the text of an introduction of Judge O'Scannlain that someone else intended to deliver. So, rather than seeing Judge O'Scannlain's prepared testimony (which sounded quite good to me when I was listening live to the hearing online), you can instead review his biography and a guide to pronouncing his name. Update: One risk in reporting on errors such as this is that they will get corrected, as this one has. The good news is that you can now actually see Judge O'Scannlain's prepared testimony by clicking here. Posted at 22:30 by Howard Bashman Forever and a day: The AP reports that the federal government has today filed its answer to the question how long it believes it can hold Yaser Esam Hamdi, the so-called second American Taliban. If the article indeed provides a fair summary of the government's response, the response may not be to the liking of the federal district judge who is considering a habeas corpus petition filed by Hamdi's father. Posted at 22:15 by Howard Bashman The AP's Supreme Court round-up: AP reporter Gina Holland today offers this round-up of recent news involving the U.S. Supreme Court. Posted at 22:11 by Howard Bashman Not quite the behavior we'd expect to see: According to this article from The Associated Press, "Yale University complained to the FBI on Thursday that admissions officials at Princeton hacked into a Yale Web site that was set up for prospective students." See also this article from today's edition of The Yale Daily News. Posted at 22:04 by Howard Bashman More Moussaoui material: The Washington Post has now placed online the transcript of today's proceedings. And, on Slate, Dahlia Lithwick offers her take on today's events. The transcript reveals that Moussaoui met with Professor Sadiq Reza of the New York Law School before today's hearing. Posted at 19:39 by Howard Bashman Church vs. World Church: Today the Seventh Circuit decided a trademark dispute between the "Church of the Creator" and the "World Church of the Creator." The Church of the Creator, according to the opinion, is a religious organization that believes in universal love and respect. By contrast, the World Church of the Creator, according to the opinion, "does not worship God but instead depicts the 'white race' as the 'Creator' and calls for the elimination of Jews, blacks, and what it labels 'mud races.'" Who wins this dispute? Judge Frank H. Easterbrook provides the answer here. Update: The World Church says it won't change its name, The Associated Press reports. Posted at 15:38 by Howard Bashman Sotheby's former chair to sit in jail: Today the U.S. Court of Appeals for the Second Circuit, in a short per curiam opinion, affirmed the conviction of former Sotheby's Chairman A. Alfred Taubman. The appellate court also rejected Taubman's request to be excused from reporting to prison on August 1, 2002 to begin serving his one year sentence. Posted at 15:30 by Howard Bashman As I had been predicting, Zacarias Moussaoui today failed to complete successfully his guilty plea, and the hearing has now been indefinitely recessed without any plea of guilty in place. See this report from the Associated Press. Posted at 14:46 by Howard Bashman The Moussaoui hearing is now underway: According to this report from the Associated Press, Moussaoui now only intends to plead guilty to some, rather than all, of the charges against him. The judge has refused the request of standby defense counsel for a postponement and has reaffirmed that Moussaoui is competent to decide his own fate. Whether he will successfully plead guilty, however, remains to be seen. Posted at 13:46 by Howard Bashman ACLU sues to challenge DMCA: Today the American Civil Liberties Union has filed suit in the U.S. District Court for the District of Massachusetts to challenge provisions of the Digital Millennium Copyright Act of 1998. According to the ACLU's press release, the organization is asking the court "to rule that a computer researcher has First Amendment and 'fair use' rights to examine the full list of sites contained in an Internet blocking program and to share his research tools and results with others." You can access the ACLU's complaint here; you can access additional information about this lawsuit here. The plaintiff is a graduate of Harvard College and will begin study toward a law degree at Harvard Law School this fall. Posted at 11:54 by Howard Bashman Some additional court filings have just become available online in the Moussaoui case: Click here to access standby defense counsel's reply brief on the constitutionality of the federal death penalty. Click here to access standby defense counsel's arguments and suggestions regarding today's possible guilty plea proceeding. Click here to access standby defense counsel's "addendum to evaluation of [Moussaoui's] adjudicative competence." Posted at 11:27 by Howard Bashman Some random musings on Priscilla R. Owen and the federal judicial confirmation process in general. Two questions have been occupying my thoughts for several days now: one, what member of the federal judiciary -- other than Justice Sandra Day O'Connor -- has the most power?; and, two, why do jurists who serve on the highest court of a State accept nominations to become federal trial or court of appeals judges? In her current position as Justice on the Supreme Court of Texas, Ms. Owen is one of nine jurists who collectively have the final say on what is the law of Texas. That court also has some discretion to decide what cases it will agree to review. By contrast, while the U.S. Court of Appeals for the Fifth Circuit may functionally have the last word in the vast majority of cases that it decides, in actuality it lacks the power to be the dispositive arbiter of either federal or state law. This is because the Supreme Court of the United States has the final word on questions of federal law, and the ruling of a State's highest court on the meaning of that State's laws takes precedent over conflicting federal court rulings. So why would Ms. Owen agree to depart the Texas Supreme Court for the Fifth Circuit, or why did Ronnie L. White agree to accept a federal trial court judgeship even while serving as a Justice on the Supreme Court of Missouri? There is no sure answer. Maybe the added prestige of a federal court judgeship; maybe the life tenure; maybe to avoid having to stand before the voters to face reelection or retention. The federal appellate judge for whom I clerked had departed his job as a Justice on the Supreme Court of Pennsylvania to join the U.S. Court of Appeals for the Third Circuit. As I explained in a speech that I recently delivered before a ceremonial en banc Third Circuit session, my Judge was only the second to serve on both the Pa. Supreme Court and the Third Circuit. The only other jurist to do that left the Third Circuit in 1944 to become a Justice of the Supreme Court of Pennsylvania. (Oh how times have changed!) In my view, the most powerful member of the federal judiciary (non-Justice O'Connor category) is the federal district judge. He or she is the sole decisionmaker at the federal trial court level, and as the sole decisionmaker a district judge wields power that federal appellate judges seldom if ever possess. If Ms. Owen joins the Fifth Circuit, she has no power to "make law" unless at least one other judge on a three-judge panel agrees with her. And, in cases where her vote is dispositive because another judge has dissented, the chances of en banc or U.S. Supreme Court review grow much larger. Generally, however, federal appellate court nominations receive much closer scrutiny from the Senate, the public, and the press than do nominations to serve on the federal district court. Does the perception that a seat on a federal appellate court is more important than a seat on a federal trial court make sense? Maybe not. What are your views on these topics? This blog is fortunate to have so many very smart people among its readers, including many federal and state judges and law clerks. If you would like to share your views on these subjects, send me an email. I will reproduce on this blog the most thoughtful responses that I receive, and I will be happy to honor any requests for anonymity from judges or law clerks who respond. Posted at 08:43 by Howard Bashman Moussaoui is due back in the spotlight today: Zacarias Moussaoui is due back in federal court today and is expected to try to plead guilty to the criminal charges against him. Today's edition of The Washington Post offers two related news reports. This article says that Judge Leonie M. Brinkema "has taken the unusual step of asking lawyers on both sides for suggestions on how she should question Moussaoui -- and even asked Moussaoui himself what today's hearing should include." And reporter Philip Kennicott has taken a close look at Moussaoui's raft of pro se filings. The title of the article might strike some who remember the name of a certain restaurant that sat atop a certain very tall building formerly located downtown in a certain very large east coast city as insensitive. Will today's hearing be postponed, as Moussaoui's standby counsel is requesting? Probably not; lawyers don't call the U.S. District Court for the Eastern District of Virginia the "rocket docket" for nothing. Posted at 08:30 by Howard Bashman Know your Fifth Circuit: Over on FindLaw, columnist Edward Lazarus offers his thoughts on the confirmation process for Fifth Circuit nominee Priscilla R. Owen. Lazarus writes that the Fifth Circuit "handles federal appeals coming from district courts in Alabama, Louisiana, and Texas." Not quite right, but perhaps this provides a preview of the validity of his other thoughts on the topic. Posted at 08:23 by Howard Bashman Wednesday, July 24, 2002
Getting up close and personal with the Ninth Circuit: It now appears that work will require me to set foot within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit sometime next week. Where precisely, you ask? Somewhere really, really hot, but it's a dry heat, of course. Still not sure where? I'll be visiting the city that the Ninth Circuit's current Chief Judge calls home; the city whose baseball team won the World Series last year. And, when I'm not working or blogging during my visit, I'll try to set aside some time to visit with fans of "How Appealing."
Posted at 23:01 by Howard Bashman
Don't hate the player, hate the game: Today the Commonwealth Court of Pennsylvania rejected the appeal of a former tight end for the Pittsburgh Steelers who sustained a career-ending injury in a December 1999 football game against the Kansas City Chiefs. The athlete argued that Pennsylvania's workers' compensation statute denied equal protection of the law by greatly limiting the payments available to certain professional athletes who made far in excess of the State's average wage. The court, in a decision you can access here, rejected the athlete's constitutional challenge. As Ice-T has aptly observed, "If you out for mega cheddar, you got to go high risk." Posted at 22:50 by Howard Bashman Duly noted: Thanks to the blogger in residence at Doxagora for describing "How Appealing" as "today's most interesting blog." Watchful Babbler goes on to say, "Bashman's blog is brilliant but casual, kind of like a really good graduate seminar." You're simply too kind. Posted at 22:25 by Howard Bashman Newsracks and the Hartsfield Atlanta International Airport: Three major newspapers -- The New York Times, USA Today, and The Atlanta Journal-Constitution -- sued in federal court to enjoin the City of Atlanta's plan to regulate newsracks at the Hartsfield Atlanta International Airport. A federal trial court declared the plan unconstitutional in violation of the First Amendment, and a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit unanimously affirmed that ruling in early January of this year. Today, the Eleventh Circuit entered an order granting rehearing en banc in this case. The Eleventh Circuit's prior affirmance is thus rendered a nullity, and the entire appellate court will now reconsider the case. You can access a news report on the Eleventh Circuit's original ruling at this link. You can access the appellate brief previously filed on behalf of The New York Times and the Atlanta Journal-Constitution at this link. Posted at 19:34 by Howard Bashman Connecticut appellate court says it can't dissolve civil union of two homosexuals: The Appellate Court of Connecticut -- that State's intermediate appellate court -- ruled today that Connecticut trial courts can't rely on the divorce laws of Connecticut to dissolve the civil union that a homosexual couple entered into in the State of Vermont. You can access the court's ruling here. According to this news report from The Associated Press, the couple may have no other viable option, because Vermont will only grant a dissolution if one of the individuals seeking the dissolution resides there. Of course, the parties still can seek further appellate review from the Supreme Court of Connecticut. Posted at 18:53 by Howard Bashman Not standing by: The Associated Press is reporting that Zacarias Moussaoui's standby counsel has filed a motion to postpone the hearing tomorrow at which Moussaoui supposedly intends to plead guilty to the charges now pending against him. You can access the AP's report here. Posted at 16:16 by Howard Bashman Prison is so boring without the R and NC-17 movies: Today the U.S. Court of Appeals for the Third Circuit reversed a federal trial court's dismissal of a class action brought by federal prisoners who claimed that a Federal Bureau of Prisons policy that prohibited the showing to inmates of movies rated R and NC-17 violated the prisoners' First Amendment rights. The Third Circuit's ruling holds that the trial court should have conducted a more detailed examination of the prisoners' claims before deciding that they were devoid of merit. The Third Circuit did not strike down the policy as unconstitutional, although the trial court could choose to do that on remand. You can access this ruling here. Posted at 16:11 by Howard Bashman Freedom of the press for a state university newspaper? The Associated Press today has a report on an appeal pending in the U.S. Court of Appeals for the Seventh Circuit that may resolve the amount of supervision college administrators can exercise over the content of a student newspaper at a state university. The appeal is not fully briefed (you can access the Seventh Circuit's docket sheet at this link), but the Brief for Appellant filed by the Attorney General of Illinois is available online here. Posted at 15:03 by Howard Bashman First the Pledge of Allegiance, now Barbie: Fresh from its tangle with the Pledge of Allegiance, today the U.S. Court of Appeals for the Ninth Circuit resolves a case involving another cultural icon -- Barbie. Judge Alex Kozinski is the author of the unanimous opinion for a three-judge panel, so you can be sure it is worth a read. And indeed it is: KOZINSKI, Circuit Judge:And, in typically fine Judge Kozinski style, the final sentence of the opinion states: "The parties are advised to chill." You can access the complete opinion here. Posted at 14:29 by Howard Bashman Byron York on Priscilla R. Owen's chances for a favorable Senate Judiciary Committee vote: Byron York, who reports on the White House for National Review Online, predicts this morning that unless Priscilla R. Owen receives a "yes" vote from either Senator Dianne Feinstein or Senator Joseph F. Biden, her nomination to serve on the U.S. Court of Appeals for the Fifth Circuit will fail to receive the approval of the Senate Judiciary Committee. Posted at 08:59 by Howard Bashman In today's newspapers: On the subject of Fifth Circuit nominee Priscilla R. Owen's hearing yesterday before the Senate Judiciary Committee, you can access additional coverage from: The Los Angeles Times; The Austin (Tex.) American Statesman; The Dallas Morning News; and The Houston Chronicle. The outcome of the Judiciary Committee's vote on her nomination appears to remain too close to call. On the subject of splitting the Ninth Circuit, both The Los Angeles Times and The San Francisco Chronicle report on yesterday's hearing before the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property. Posted at 08:43 by Howard Bashman In Wednesday's Washington Post: An editorial in Wednesday's edition of The Washington Post calls on the U.S. Senate to confirm Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. In addition, Charles Lane has this news report on the confirmation hearing that the Senate Judiciary Committee held yesterday to consider the Owen nomination. Posted at 00:36 by Howard Bashman Tuesday, July 23, 2002
For nine months, he could only read blogs -- but now he can write one. This morning Stuart Buck offered his conclusions about the state of blogging today. In the course of doing so, he happens to say some very nice things about "How Appealing" -- that this blog is to appellate law what Joanne Jacobs's blog is to education or Amy Welborn's blog is to coverage of the Catholic scandal.
Posted at 22:49 by Howard Bashman
Don't even attempt to violate these federal criminal laws: The Associated Press reported today, in an article you can access here, that "Legislation passed by the House last week to get tough on corporate wrongdoers contains a little-noticed provision that would make any attempt to break a federal law a punishable act." In a second article that the AP issued later today, it was reported that "Defense attorneys and police, often at odds on criminal justice matters, have a surprisingly unified message for Congress: back off a plan to create thousands of new crimes." If the AP is correctly describing the scope of this proposed amendment to federal criminal law, the amendment would appear to raise some very troubling issues. For example, most federal appellate courts have refused to allow the criminalization of attempted inchoate crimes -- refusing to recognize "crimes" such as "attempted conspiracy" -- and if this new legislation proposes to cross that line, it will be interesting to see whether (if adopted) the amendment will survive judicial review. Posted at 22:30 by |