How Appealing

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.)

We granted review to decide whether these words apply in California. We conclude that, as in Blackstone's England, so today in California: fear for one's own life does not justify killing an innocent person. Duress is not a defense to murder. We also conclude that duress cannot reduce murder to manslaughter. Although one may debate whether a killing under duress should be manslaughter rather than murder, if a new form of manslaughter is to be created, the Legislature, not this court, should do it.
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.

Senators, activists, pundits, etc. (and gee, maybe ordinary citizens who don't read appellate law blogs) care about whether abortion is declared a constitutional right, if the death penalty is eliminated or whittled down, etc. Federal district judges can declare a law constitutional or unconstitutional, but so what? A district judge may make a media splash declaring vouchers or the death penalty unconstitutional, but it doesn't really change the world much, or for long. But if the appellate judges all uphold affirmative action, or all strike it down, then an issue might be "settled" for a long time, or forever, if no certworthy split develops, etc. Trial courts are rarely the last word on anything, while the circuits often are.

Even on non-constitutional issues that activists care about, the appellate judges have more power of the kind that most of us care about. A trial judge may, by taking a more broad or narrow view of summary judgment, let more or fewer sex-harassment plaintiffs reach a jury, but the circuit courts (and the Supremes in Meritor etc.) "make the law" in that field with far larger impact (as long as it's not YOUR case, of course).

Heck, to Jane Citizen, the most powerful judge on the planet is not any federal judge or any state appellate judge, but is the local domestic relations judge. That judge can take away her kids and let the other parent move 'em across the country so that she may never see them again. Chances of appeal are pretty slim on the factbound, zillion-factor "best interests of the child" test, and the rare appellate case like Troxell doesn't really change that much. I'd say someone facing that life-changing situation cares a lot more about the custody battle than about whether the kid ends up saying the Pledge (with the apparent exception of Mr. Newdow).

There are a zillion other angles, and probably flaws in the above reasoning, but I think there is something to the "types of power" notion, and hopefully someone will express it far better than I have.
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.)

Out here on the West Coast, one glance at the caseload stats tells you that our judges certainly earn it.
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.

Your point about the power of the district judge is very true. I have been a keen observer of the judiciary in the EDLA and (when I worked there) I found it amazing that virtually every one of the great judges on that court aspired to ascend to the 5th Circuit, even though most of them would sorely miss the broad discretionary powers that they held as a district judge. Nowadays, the good judges on the ELDA are, for some reason, less likely to have such inspirations (with one or two exceptions). Judge Clements recently ascended to the 5th, and that is an obvious exception.

Putting aside the "aspirations" aspect, I think it takes a certain temperament to be a good district judge or an appellate judge. And the temperament is not necessarily the same for those two positions. I have strong feelings about the district court level because that's where I predominately practice. A good district judge has to know how to control lawyers, and how to move the case along. It's nice to write lengthy, and well-thought out opinions. But not if it takes forever for them to come out. A quick, but clearly erroneous decision from a district court (on immediately appealable issue) is often better than a well thought out one, especially if an appeal by one side if likely no matter what the judge rules. So efficiency is good for a district judge. Manners, I don't really care about so much.

Many litigators don't like going in front of the tempestuous judge. I find that I do. The tempestuous judge usually has no trouble making up his or her mind. A trial judge who likes to ponder the vagaries of the law is better suited to the appellate bench where collegiality feeds that inclination, and yet also operates to create a decision within an acceptable time frame. Them's my thoughts.
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.

However, you didn't mention one large factor--money. While I couldn't find current salaries in a quick web search, in 1998, Texas Supreme Court justices were paid about $109,000. I doubt that there have been big changes since then. That means that a federal judgeship comes with a substantial raise.

This only serves to point out that state judges may be even more severely underpaid than their federal counterparts.
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.

Granted that in habeas cases the state has a right to automatic review, but overturning such a determination is still an uphill battle. Much deference is given to the findings of the District Court, whereas little or no deference will be given to the state courts by the Courts of Appeal. And you have to see to believe the legalistic gyrations both the District Courts and Courts of Appeal will perform to avoid carrying out the will of Congress or Supreme Court holdings that these Courts disagree with. I experienced this firsthand in 2d Circuit litigation after Congress amended federal habeas corpus.
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.

Even back when I was a clerk the life tenure and prestige of sitting on the federal bench seemed to most to be a greater attraction than the state supreme court where the tug of politics still holds significant distraction for the intellectual decision making process. Having said that, within the ten years after my clerkship, one federal district judge on our bench was appointed to a vacancy on the Michigan Supreme Court and a supreme court justice was appointed to the Sixth Circuit. So it was somewhat of a wash.

Yet, the idea that you are free from political influence in deciding many issues of national importance lends to the prestige factor. The decisions of the state supreme court, while challenging, are parochial by comparison. If you write a published opinion, itís likely to be picked-up and cited by other federal judges--one would hope for supporting purposes rather than criticism. So, the audience is wider and the impact, potentially, broader and itís all free from the fear of dis-election.
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.

It must be an intoxicating prospect -- a single judge with the authority to tell the highest court of a state that it got a federal constitutional question wrong.

In fact, it is precisely because federal district court judges, sitting alone, can make the decision to vacate a state judgment of conviction that they must be seen as the most powerful. Although it is not intended to be yet another level of appeal, the writ of habeas corpus is all too often viewed that way. Of course, in the normal course of a direct appeal of a judgment, a minimum of three judges sit to decide an appeal. And, using New York as an example, if an appeal is reviewed by our state Court of Appeals and affirmed, a panel of at least four intermediate appellate court judges have considered the claims, followed by the seven member Court of Appeals. In effect then, after a conviction has been reviewed by eleven judges, a single judge sitting at the federal trial level can overturn that decision. No other single judge in the federal judiciary, sitting alone, has that power.

Concededly, the assumption that had been implicit in providing federal district judges with this authority -- that only federal judges are capable of insuring that state courts have correctly ruled on federal constitutional questions -- has become less of an issue with the passage of the 1996 Antiterrorism and Effective Death Penalty Act which requires that a level of deference be given to state decisions. Nevertheless, though the federal trial bench may now be less able to vacate state judgments, that power still exists.

Thanks. Wanted to get some of this off my chest (to a non-prosecutor) for some time now.
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.

1. For a very long time -- probably since the New Deal -- people thought that the federal government was the answer to most problems and the states were relics. While the contrary view is strongly pressed these days, that is relatively new and even assuming arguendo that it is legitimate has not been around long enough to really work a bedrock change in how people think.

2. The limited nature of federal jurisdiction long supported the view that the federal courts tended to get important cases while the state courts were burdened with dinky ones.

3. The diversity jurisdiction exists because of concern that state courts will not supply evenhanded justice in many cases. This is a sort of Constitutionally approved way of saying that the federal courts can be counted on to be fairer than state courts in a large number of cases. The Constitution, you will admit, is a hell of an authority to have on your side of an argument like that. Moreover, people believe it, and to my observation it is true. While it is possible to get hometowned in both federal and state courts, the chance of it is much greater in state court. That's particularly so in the federal courts of appeals; because they cover at least several states, they at least create the impression that they ought to be immune to narrow and local pressures. In 1960, if you had important litigation against a big shot from a city anywhere in the Deep South, would you rather have been in that state's trial and appellate courts or in US District Court and the Fifth Circuit? And the situation still exists. What states' legal systems are well-known today? Primarily those that pander to plaintiffs' lawyers. Terrific -- you want to be known as someone complicit in that? I'd take a demotion to get away from it.

4. The New Deal itself, and the rise of the commerce power that accompanied it, (a) expanded the reach of the federal government, (b) suggested, consistently with the point made in paragraph 1 above, that it was supplying the answers that the country needed, and (c) in any event created a whole new layer of law that -- whether or not you liked it -- was clearly about the most important economic issues extant. It was the federal courts who dealt with this new law, not the states. The commercial center of gravity swung away from the states and such contract and tort issues as, say Justice Cardozo famously dealt with while on the New York Court of Appeals, and swung towards the area of federal regulation that could only be dealt with in federal court. As a result you couldn't make a name for yourself dealing with the issues that state courts dealt with.

5. The federal courts faced and were willing to deal with a challenge of previously unimaginable scope in the civil rights era. Moreover state law and state courts took the losing and palpably incorrect position in that struggle. I am not saying this had to be so, but I am saying that as a practical matter it was so. Civil rights was an amazing issue -- no sensible person thought that segregation was really defensible, and it was not defended on its merits at all, I don't believe, at least not publicly except by demagogues. It was defended on the ground that it was an issue that should be left to the states & their courts, which everyone knew would do nothing. For many decades, therefore, on one of the most central issues in the nation, the federal courts took the positive and forward role with state courts playing the role of the inhumane, small-minded, politically influenced, incompetent, and often corrupt losers. (Moreover the federal courts in so doing were in a reluctant, and therefore court-like role -- they acted only because the other two branches had failed to act.) Now, even if you were yourself in sympathy with the old-fashioned thinking to some degree, when you get a job do you want it to be one associated with smallmindedness, unfairness, political influence and so on, or do you want to be associated with the team better known for independence?

6. The modernity, simplicity, flexibility, and power of the procedure in federal courts is of great importance. A number of factors contributed to that. The federal courts are one system, which had to get it right only once and could afford the time and work necessary for a massive effort. The Federal Rules of Civil Procedure were a very great achievement, at a time when, and for many years afterward, state courts were known for archaic, incomprehensible, limited procedures, jealously maintained by local bar organizations, which gave them a very parochial, old-fashioned, limited feeling. Federal procedure was comprehensible, supposedly uniform nationwide, simple, and powerful. Here the federal courts got a massive assist from handling civil rights cases, which made them expert in equitable remedies and in the view that they must have the power to effect the relief that was necessary. The newspapers of the late 50's and the 60's were full of articles about federal judges who were insisting on giving relief that worked. That was seen as real, inventive, effective law, appropriate to a modern age -- not the limited and crabbed things a state court would do if you got one to pay attention. The fact that state procedures when modernized tended to be based on pre-existing federal procedure made this point powerfully and seemed consistent with a feeling that state courts were derivative, me-too followers rather than leaders.

Again I stress that regardless of one's political views, a person who's a judge wants to have a reputation for evenhandedness, independence, and rectitude; to be working on issues that are willy-nilly important issues of the day; and to be in an institution that has the power to get things done. It is much easier to claim that in the federal than in many state systems.
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.

Your question brought that memory to mind, and actually I think it pretty much summarizes both why people want to be federal circuit judges instead of federal district judges (there's more apparent if not real prestige in being in a more "selective" group (since there are fewer circuit than district judges)) and also why I would agree that district judges are more powerful than circuit judges--because a judge indeed can't do as much good or ill when bound in a group of three. I would go further than you actually, though, and declare that the average federal district judge is more powerful than even Sandra Day O'Connor--because she holds at most 90 cases a year in her hands, while the average district judge controls many, many more than that. Moreover, with the limited scope of review given appellate justices on any question relating to factual determinations, Justice O'Connor and her colleagues often find themselves bound by the decisions of both district judge and even elected state trial court judges. Just look at the way Justice O'Connor and her colleagues relied on the district court's record in their opinions in Zelman v. Simmons-Harris. It's interesting to discuss potential Supreme Court retirements and nominations--but whether Judge A or B gets assigned to a case at the courthouse next door is of far more importance to the average plaintiff or defendant.

Actually, I think state trial court judges in some ways have even more influence even than federal district judges--at least where they (unlike their federal counterparts) are not bound by strict criminal sentencing guidelines. The state judges may be subject to re-election campaigns, but how many incumbent judges are really thrown out? I suspect the number is very, very low. And state judges have far broader subject matter jurisdiction, and so hear just about everything. (Of course that's also a good reason not to be such a judge, based on some of the complaints I've seen in my short time as a lawyer, but that's another story).
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.

After FDR's appointments and the subsequent expansion by the Supreme Court of the permissible scope of federal power, Federal Courts of Appeal have become far more important. Perhaps one's individual power in specific cases is reduced by moving "up the ladder" from district to appellate court, but the potential to influence the broad scope of the law is much greater at the appellate level. Even a dissenting appellate court opinion can have fantastic long-term consequences (i.e., Justice Harlan's dissent in Poe v. Ullman which I think may well have turned out to be the most important dissent ever written).

That kind of legacy just isn't available to most trial court judges. And, sadly, with the increase in the importance of federal jurisprudence over how the States conduct their business, state Supreme Court judges don't have it, either.
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."

Comment: In the future, Kozinski plans to eliminate the concluding "AFFIRMED" or "REVERSED" and substitute "PEACE OUT, YO."

News: Allegedly outraged by the Pledge of Allegiance decision, Congress re-opens hearings on splitting the circuit. The leading proposal is create a new Twelfth Circuit for the Northwest while leaving California, Arizona and Nevada alone in the 9th.

Comment: Yep, put California liberals Stephen Reinhardt, Harry Pregerson, A. Wallace Tashima, Marsha Berzon and Richard Paez in a single, 12- to 15-judge circuit, and you'll never have to worry about the Pledge being struck down again.

News: The 9th Circuit judges themselves are divided on the proposal. Chief Judge Mary Schroeder tells Congress that the circuit works well as is, but Judge Diarmuid O'Scannlain testifies, "We are too big now and getting bigger every day."

Comment: Judge Kozinski believes that the proposal is "just so phat."
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:

If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.

Barbie was born in Germany in the 1950s as an adult collectorís item. Over the years, Mattel transformed her from a doll that resembled a "German street walker," as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). She remains a symbol of American girlhood, a public figure who graces the aisles of toy stores throughout the country and beyond. With Barbie, Mattel created not just a toy but a cultural icon.

With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to "go party." (The lyrics are in the Appendix.) Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts.

* * * * *

Mattel appeals the district courtís ruling that Barbie Girl is a parody of Barbie and a nominative fair use; that MCAís use of the term Barbie is not likely to confuse consumers as to Mattelís affiliation with Barbie Girl or dilute the Barbie mark; and that Mattel cannot assert an unfair competition claim under the Paris Convention for the Protection of Industrial Property. MCA cross-appeals the grant of summary judgment on its defamation claim as well as the district courtís jurisdictional holdings.
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 Howard Bashman



What case law will govern the Twelfth Circuit? This afternoon's hearing of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property considered legislation that would split the Ninth Circuit in two and create the Twelfth Circuit. Among the witnesses who testified at the hearing were three Ninth Circuit Judges: Chief Judge Mary M. Schroeder and Circuit Judges Diarmuid F. O'Scannlain and Sidney R. Thomas. Of those three judges, O'Scannlain was the only one to speak in favor of splitting the circuit, but he was an exceptionally effective advocate for the cause.

During the hearing, an interesting question arose -- what law will govern the Twelfth Circuit? When the U.S. Court of Appeals for the Eleventh Circuit came into being in 1981 after Congress split off the States of Alabama, Florida and Georgia from the former U.S. Court of Appeals for the Fifth Circuit, the en banc Eleventh Circuit faced an identical question in the very first case it decided. There, in Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit ruled that it would adopt as precedent the case law that then stood as precedent in the Fifth Circuit. Interestingly, one reason advanced in favor of splitting the Ninth Circuit is that today it is too difficult to determine what the governing law of that circuit is on any given issue. Thus, it is possible, but unlikely, that the new Twelfth Circuit could adopt as precedent the law of some other federal appellate circuit, or decide instead to start afresh with no body of binding precedent other than the rulings of the U.S. Supreme Court.
Posted at 22:23 by Howard Bashman



The Ninth Circuit and the Second Amendment: Anyone anticipating a spectacle when one of the nation's most controversial federal appellate courts addressed one of the U.S. Constitution's most controversial provisions will be disappointed by today's ruling. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today unanimously ruled, in a decision you can access here, that it could not hold that the Second Amendment protects an individual right to bear arms because the argument was foreclosed by a Ninth Circuit decision from 1996 holding that "the Second Amendment only confers upon states a collective right to bear arms." Only the en banc Ninth Circuit can overrule that decision from 1996, today's three-judge panel correctly noted. Today's Ninth Circuit opinion does observe that its result is in conflict with a recent Fifth Circuit decision on the individual/collective right issue, so U.S. Supreme Court review is a possibility.
Posted at 14:48 by Howard Bashman



Proving that neither side of the political spectrum has a monopoly on the absurd: Three University of North Carolina at Chapel-Hill students and a conservative Christian organization filed suit in federal court in North Carolina yesterday to challenge the university's requirement that new students read a book entitled "Approaching the Qur'an: The Early Revelations." According to a press release posted on the organization's Web site, the requirement "infring[es] upon the religious free exercise of its students and violat[es] the establishment clause of the United States Constitution by forcing incoming freshmen and transfer students to study Islam against their will." The organization's press release, below its main text, also provides links to other information about the dispute.
Posted at 13:04 by Howard Bashman



Priscilla Owen makes an impressive early showing: Although it's surely too soon to pronounce final judgment, in the early going of her confirmation hearing today, Fifth Circuit nominee Priscilla R. Owen seems to be quite an impressive candidate and most reasonable in her views. You can access live coverage of her confirmation hearing online from C-SPAN at this link.
Posted at 11:30 by Howard Bashman



National Review Online on Priscilla R. Owen: National Review Online this morning offers two essays in support of the nomination of Priscilla R. Owen to the U.S. Court of Appeals for the Fifth Circuit. Byron York offers his thoughts here. And John L. Hill Jr., who previously served as Chief Justice of the Texas Supreme Court and Attorney General of Texas, offers this passionate defense of his former judicial colleague.
Posted at 09:58 by Howard Bashman



Judicial nominations in the news: Today's edition of The Los Angeles Times contains a factually inaccurate editorial that criticizes the Bush Administration for supposedly ending the American Bar Association's role in providing input into the judicial nomination process. In fact, what occurred was that the Bush Administration revoked the ABA's prior, preferred status as perhaps the only outside organization that had been given advance veto-power over potential judicial nominees. Today the ABA continues to evaluate all federal judicial nominees (see this chart for proof), and the Democrats serving on the Senate Judiciary Committee (who hold a one Senator majority on the committee) have stated that the committee will refuse to move any nominee forward until the ABA has evaluated the nominee's qualifications. To my recollection, none of President Bush's nominees to the judiciary has been rated unqualified by the ABA. In actuality, the Bush Administration's approach is a bit more risky than the approach followed by prior administrations, because allowing the ABA to preview potential nominees would allow the administration to avoid officially nominating any candidate who would receive an unfavorable ABA rating.

In related news, from the other side of the political spectrum, today's edition of The Washington Times reports on the status of two federal appellate court nominees.
Posted at 09:12 by Howard Bashman



You can cut out the middleman: C-SPAN is promising to provide live coverage online of today's Senate Judiciary Committee hearing to consider the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. You can find a link to C-SPAN's coverage here on its homepage. The hearing is scheduled to start at 10 a.m. eastern time, although in Congress hearing start times tend to be a bit flexible.
Posted at 08:48 by Howard Bashman



U.S. Supreme Court should televise its opinion announcements, law professor says: In a commentary published today on FindLaw, University of Texas School of Law Professor Sanford V. Levinson calls on the Supreme Court of the United States to allow C-SPAN to televise the Court's announcements of its opinions. (When the Court issues an opinion, the author of the opinion makes a brief announcement from the bench of the facts and the result reached before the Court moves on to other business, such as hearing oral arguments.) You can access Professor Levinson's commentary here. In response, Justice David H. Souter is reputed to have said, "I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."
Posted at 08:36 by Howard Bashman



Hearing on whether to split the Ninth Circuit scheduled to occur today: Thanks to Denise Howell for noting on her blog that the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing today to consider legislation that would split the Ninth Circuit in two and create the Twelfth Circuit. (No word yet on whether the Thirteenth Circuit will be skipped as homage to older buildings that, to avoid bad luck, omitted a thirteenth floor.) The hearing is scheduled to get underway at 3 p.m. eastern time, 10 a.m. Hawaii time. Once the hearing is underway, you should be able to access an audio feed of the hearing using this link.
Posted at 08:22 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane previews today's Senate Judiciary Committee hearing for Fifth Circuit nominee Priscilla R. Owen. And the Post also runs this article reporting that several prominent Republicans have formed a committee to lobby in favor of President Bush's federal judicial nominees. In Tuesday's New York Times, Adam Liptak reports on defendants who are trying to use the Justice Department's recently announced view of the Second Amendment's meaning to defend against federal criminal charges. Next thing you know, younger employees will be trying to use the Age Discrimination in Employment Act to challenge preferential treatment received by older employees. (Oops, that actually happened yesterday.)
Posted at 00:18 by Howard Bashman



Monday, July 22, 2002
Appellate news from both coasts: The California Court of Appeal for the Third Appellate District, in Sacramento, today set aside an $88 million award of attorneys' fees that an arbitration panel had ordered the State of California to pay to various plaintiffs' lawyers. You can access this ruling here. Meanwhile, over in the Garden State, the Supreme Court of New Jersey last Thursday affirmed in relevant part, by a vote of 5-2, a trial court's order that had prevented news organizations from interviewing jurors who served on a jury that failed to reach a verdict in a quite noteworthy murder trial. You can access the court's decision here. I have not yet heard whether the press organizations will be seeking U.S. Supreme Court review.
Posted at 23:12 by Howard Bashman



From law.com: A profile of Frank Dunham Jr., the federal public defender who was assigned to represent Zacarias Moussaoui and who is now serving in the role of Moussaoui's standby counsel. And, an article reporting that legal service lawyers are nervous about a challenge to IOLTA funding that will be reviewed on the merits by the U.S. Supreme Court in the 2002 Term.
Posted at 23:02 by Howard Bashman



Federal death penalty not unconstitutional, government argues: The federal government today has filed its brief in opposition to the motion of Zacarias Moussaoui's standby counsel to have the federal death penalty declared unconstitutional in the aftermath of the U.S. Supreme Court's recent decision in Ring v. Arizona, No. 01-488 (U.S. June 24, 2002). You can access the federal government's brief here.
Posted at 22:23 by Howard Bashman



The Associated Press is reporting tonight: 1. That Ken Starr has filed a petition for writ of certiorari on behalf of an embattled South Carolina tattoo artist. No word on whether a tattoo will be part of the compensation that Judge Starr will receive for handling the matter. 2. That Judge Leonie M. Brinkema has today found Zacarias Moussaoui as mentally competent as he ever was. Quite a ringing endorsement of his sanity. 3. And, that tomorrow's confirmation hearing for Fifth Circuit nominee Priscilla R. Owen is likely to be contentious. But readers of this blog already knew that, right?
Posted at 22:09 by Howard Bashman



You know you're having a bad day when: "Carlos Reyes-Mata was injured when a beef carcass and shackle fell from a gravity rail conveyor system and struck him in the head. The injury occurred while Reyes-Mata was working at a beef processing facility in Amarillo, Texas. He sued his employer IBP, Inc. in federal district court for common-law negligence and statutory negligence. A jury awarded Reyes-Mata a total of $110,912 in damages and the district court entered judgment for Reyes-Mata and awarded pre-judgment interest on the entire verdict in the amount of $24,707.07." The foregoing passage begins this opinion that the U.S. Court of Appeals for the Fifth Circuit issued today. Anyone think that the Senate Judiciary Committee is likely to ask Fifth Circuit nominee Priscilla R. Owen, during her confirmation hearing tomorrow, where she stands on the question of injury-causing falling beef carcasses? Me neither.
Posted at 22:06 by Howard Bashman



The real first Monday in October: Thanks to a gimlet-eyed reader of "How Appealing" for advising me via email that the Supreme Court of the United States today posted online the list of cases being argued in the Court's first two-week argument session of the 2002 Term, which will begin on Monday, October 7, 2002.

Attention all copyright law enthusiasts: Eldred v. Ashcroft will be argued at 10 a.m. on Wednesday, October 9, 2002. And, those interested in how the amount in controversy is determined in a federal court diversity jurisdiction class action that seeks injunctive relief should stick around for the second case argued that day, Ford Motor Co. v. McCauley. Trust me, McCauley is much more interesting, and consequential, than it may seem.

Guns for convicted felons: One week later, on Wednesday, October 16, 2002, the second case to be argued will examine whether individuals convicted of felonies should, sometime after serving their sentences, be able to seek the restoration of their handgun rights in federal court. The Fifth Circuit has said yes, but every other court now says no. Congress is to blame for the existence of this case -- United States v. Bean -- because its laws say that the answer to the question is both yes and no. (That's a gross oversimplification of the Bean case, but it's only July, so I have plenty of time to share the nuances with you later.) Another sure bet -- the Supreme Court will deny certiorari in nearly a zillion cases on Monday, October 7, 2002.
Posted at 19:04 by Howard Bashman



From one former federal appellate law clerk to another: Welcome back Stuart Buck. During my clerkship, blogging wasn't an option either, although for quite different reasons (no widespread Internet access yet). I didn't have the pleasure to check out your blog during its short-lived original incarnation, but given the buzz you've recently managed to generate, you've got my attention now.
Posted at 16:33 by Howard Bashman



Attention lawyers: The Los Angeles Times is reporting that evidence is for sale on eBay.
Posted at 16:14 by Howard Bashman



Splitting the circuits to recognize a counterintuitive age discrimination claim: The federal Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age against any employee forty years of age or older. Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit considered whether that law would allow a group of employees aged 40 to 49 to sue because their employer had agreed to treat employees age 50 and over more favorably. While recognizing that two federal appellate courts had already rejected such claims (including the First Circuit in an opinion by then Circuit Judge Stephen G. Breyer), the Sixth Circuit today ruled 2-1 that the ADEA does permit this sort of reverse age discrimination claim. Senior Circuit Judge James L. Ryan wrote the majority opinion, in which Circuit Judge Judge R. Guy Cole, Jr. joined. Judge Cole also wrote a concurring opinion in which he concluded:
In short, the result we reach today strikes me as counterintuitive. But, the clarity with which Congress spoke convinces me that the ADEA permits younger workers in the protected class to sue their employers for age discrimination that favors older employees. Also, although a close call, I do not believe that our result violates Supreme Court precedent. For those reasons, I agree to reverse the district court's dismissal of plaintiffs' ADEA claims.
Senior District Judge Glen M. Williams of the U.S. District Court for the Western District of Virginia, sitting by designation, dissented from the Sixth Circuit's ruling, explaining:
Whether you call it "reverse discrimination" or not, no court in the nation has recognized a claim for age discrimination under the ADEA when brought by younger workers within the protected class arguing that they were discriminated against in favor of older workers. As the majority recognizes above, the ADEA was developed by Congress for the purpose of alleviating problems faced by older workers, not the problems of younger ones. In this case, workers who were between 40 years of age and 50 years of age have brought this action claiming that, because they are a part of the protected class -- all people older than 40 -- they are entitled to protection under the ADEA not only from workers who are younger than they are, but also from workers who are older than they are.
You can access the Sixth Circuit's ruling at this link.
Posted at 15:52 by Howard Bashman



20th annual Edward J. Devitt Distinguished Service to Justice Award: The Philadelphia Bar Reporter, a publication of The Philadelphia Bar Association, is reporting (see page 23 of this PDF file) that Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit will receive 20th annual Edward J. Devitt Distinguished Service to Justice Award. The American Judicature Society now administers the Devitt Award, which honors an Article III judge who, in an exemplary career, has made significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole. Chief Judge Becker unquestionably satisfies these criteria and is a most deserving recipient of this award. According to the Philadelphia Bar Reporter, Chief Judge Becker will officially receive the award on September 30, 2002 at a ceremony at the U.S. Supreme Court Building.
Posted at 11:48 by Howard Bashman



In defense of Priscilla R. Owen: Today's edition of The Dallas Morning News contains an op-ed by Terry Eastland, publisher of The Weekly Standard, in which he responds to charges that Fifth Circuit nominee Priscilla R. Owen is a judicial activist. You can access his op-ed both here and here. Update: And you can access here The Wall Street Journal's take on the Owen nomination.
Posted at 10:24 by Howard Bashman



At a newsstand near you: The New York Times today offers this preview of the confirmation battle that is expected over Fifth Circuit nominee Priscilla R. Owen. Confirmation hearings on that nomination are scheduled to get underway tomorrow in the Senate Judiciary Committee. The Times also reports today on Congress's efforts to regulate further tobacco advertising and the associated First Amendment concerns. In the July 29, 2002 issue of The New Yorker, Hendrik Hertzberg reviews a new book by Robert A. Dahl entitled "How Democratic Is the American Constitution?"
Posted at 08:17 by Howard Bashman



Sunday, July 21, 2002
Holding the key: Yesterday's edition of the San Francisco Chronicle reported that California Senator Dianne Feinstein holds the key to confirmation of Fifth Circuit nominee Priscilla R. Owen. You can access the report here.
Posted at 09:08 by Howard Bashman



In today's newspapers. The Los Angeles Times reports that the Texas death penalty case involving the sleeping defense attorney has taken another bizarre turn. The New York Times takes a look at what the shopaholic defense reveals and, in doing so, adds the term "aspendicitis" to our lexicon. You can access my prior post on this subject here. Over at the Washington Post, U.S. Supreme Court correspondent Charles Lane should beware: Miss Manners is elbowing in on his territory.
Posted at 08:51 by Howard Bashman



Mo' money: Last night's installment of the weekly C-SPAN program "America and the Courts" contained the testimony of Chief Justice William H. Rehnquist and Associate Justice Stephen G. Breyer before the National Commission on the Public Service. The purpose of the testimony was to illustrate the problem that low pay for federal judges has caused and will continue to cause in the absence of correction. Justice Breyer's presentation was particularly interesting and was accompanied by charts and graphs. You should be able to view the program online at this link as early as tomorrow.

Allow me to say here once again that the pay of federal judges at all levels should be raised immediately and significantly. Last night's program, however, made clear the political difficulty of any such move, because federal judicial salaries are closely linked to the salaries of the men and women who serve in Congress, and it is viewed as roughly equivalent to political suicide for the members of Congress to raise their salaries (although they deserve raises too). If the current judicial salary situation is allowed to persist, Justice Breyer explained, one day society will notice that the quality of the nation's federal judiciary is not what it once was. And that may be putting it mildly. You can access my prior posting on this topic here.
Posted at 08:29 by Howard Bashman



Friday, July 19, 2002
Now the Tenth Circuit is trying to get in on the fun that church vs. state cases can provide. The U.S. Court of Appeals for the Tenth Circuit posts its decisions each day to its Web site after 6 p.m. local time in Denver, Colorado, which of course translates into after 8 p.m. east coast time. So, you might not hear elsewhere for some time yet about the quite interesting ruling issued today that I shall now describe.

I've heard of my fair share of religions in my nearly thirty-eight years on this earth, but today (thanks to the Tenth Circuit) marks my first exposure to the faith known as Summum. Adherents of the Summum faith, at least according to the group's official Web site, are heavily into mummification after death and also take quite a liking to masturbation (CAUTION, the prior link contains some graphic illustrations) while still among the living. (No, I'm not making this stuff up; just check those links if you doubt me.) As today's Tenth Circuit ruling explains, "Summum is a religion formed, in 1975, and chartered in Utah."

The litigation giving rise to today's decision began when Summum sued the City of Ogden, Utah over that municipality's refusal to display, on the lawn outside the Cityís municipal building, a monument bearing the Seven Principles of the Summum religion. Because the City already displayed on that lawn a large, similarly sized monument containing the Ten Commandments and including two Stars of David; the Greek letter Chi and Greek letter Rho, each superimposed upon the other; an 'all-seeing eye'; a pyramid; an eagle; an American flag; and some Phoenician letters, Summum maintained that the City's refusal to add that religion's proposed monument violated both the establishment and free speech clauses of the First Amendment.

In a precedential ruling issued today that you can access here, the Tenth Circuit agreed that the City of Ogden violated Summum's free speech rights:
The Free Speech Clause of the First Amendment compels the City of Ogden to treat with equal dignity speech from divergent religious perspectives. On these facts, the City cannot display the Ten Commandments Monument while declining to display the Seven Principles Monument.
Although the Tenth Circuit separately rejected Summum's establishment clause claim, the ruling in the religion's favor on the free speech claim likely will now require the City of Ogden to display the Seven Principles of the Summum religion monument on the municipal grounds. So, if mummification begins to catch on in Ogden, or if residents there seem to be spending more time engaged in singular pursuits behind closed doors, today's Tenth Circuit ruling may provide a possible reason why.
Posted at 23:22 by Howard Bashman



law.com has just posted two articles that followers of federal appellate courts will likely find of interest. The first is entitled "Efforts to Split 9th Circuit Gain New Life." The second reports on next Tuesday's Senate Judiciary Committee hearing for Fifth Circuit nominee Priscilla R. Owen and is entitled "Abortion Returns to Nominations Stage."
Posted at 23:08 by Howard Bashman



Even really smart people don't always overlook the obvious. Today Alexander (Sasha) Volokh, who is now serving on the Board of Editors of the Harvard Law Review, reveals the derivation of my blog's title. (See the very end of this post at The Volokh Conspiracy.)
Posted at 22:40 by Howard Bashman



Additional background on the Pledge of Allegiance ruling. California-based attorney Peter Sean Bradley, over on his blog, reports on a conversation he says that he had with one of the attorneys for a defendant in the Pledge of Allegiance case. (P.S. to Peter Sean: It's Judge Reinhardt, not Judge "Rheinhardt." And jurists serving on the Ninth Circuit are Judges, not "Justices.")
Posted at 22:33 by Howard Bashman



Are airline ID requirements unconstitutional? While Zacarias Moussaoui has his hands full trying to plead guilty to being the twentieth hijacker (or whatever it is that the government's third indictment charges him with), Reuters is reporting that a prominent civil libertarian has filed suit in federal court in California alleging the unconstitutionality of security requirements that compel air travelers to show identification before boarding a commercial flight. You can access the plaintiff's complaint here. Any appeal from the trial court's ruling will, of course, be heard by the U.S. Court of Appeals for the Ninth Circuit.
Posted at 15:24 by Howard Bashman



Why should the California courts get all of the attention when it comes to marijuana and the law? Earlier this week, the Supreme Court of Pennsylvania addressed the appeal of a former nurse's aide who admitted to using marijuana every evening but who claimed that she never reported to work directly after using the drug. Her employer, a nursing home, learned of the aide's marijuana use after the aide discussed it with medical personnel who were treating a workplace injury that the aide sustained. The bill for treatment of the injury that the nursing home received included as an attachment the aide's medical history, which brought her marijuana use to the nursing home's attention.

The nursing home promptly fired the aide, and she then sought unemployment compensation. The nursing home argued that its firing was due to "willful misconduct," which if applicable allows an employer to deny paying unemployment compensation. Pennsylvania's intermediate appellate court ruled that the aide's application for unemployment benefits was properly denied. The Supreme Court of Pennsylvania granted review, framing the question as "[w]hether this off-duty illegal conduct, which is not shown by the evidence to have actually or potentially affected the employee's work, may be grounds for denying benefits under the statute." Pennsylvania's highest court unanimously ruled, in an opinion you can access here, that the aide's off-the-job illegal drug use did not constitute "willful misconduct" and thus the aide was entitled to receive unemployment benefits.
Posted at 14:17 by Howard Bashman



Congratulations to Richard R. Clifton, whom the U.S. Senate yesterday confirmed by a vote of 98-0 to fill a vacancy on the U.S. Court of Appeals for the Ninth Circuit. Clifton resides in Hawaii and will now be only the second resident of that State to have served on the Ninth Circuit (and, coincidentally, Clifton originally moved to Hawaii to serve as a law clerk to the first Ninth Circuit Judge based there, Herbert Y.C. Choy). Additional biographical material about soon-to-be Judge Clifton is available here and here. He fills a vacancy created on the Ninth Circuit on August 31, 1997 when Circuit Judge Cynthia Holcomb Hall took senior status.

The author of this blog had his federal appellate judicial clerkship in Pottsville, Pennsylvania, a town that once made a list published in USA Today of the worst places to live in the United States. (Trust me, though, it really wasn't that bad. Oh, and the list came out after I was hired, but before I moved there, best I can recall.) So, it's difficult for me to imagine having a clerkship in a vacation spot such as Hawaii, or whether it would be better to have more non-work-related distractions at hand than were present in Pottsville. What I can say, though, was that in 1989 my rent in Pottsville, including heat and hot water, for a fairly nice place was $210 per month. Try equaling that in Hawaii.
Posted at 12:48 by Howard Bashman



Two recent interesting appellate decisions from out west: The Supreme Court of California yesterday fired off its most recent round in the battle between California and the U.S. government over the medical use of marijuana in that State. The court ruled, in an opinion you can access here, that California law provides a defense to individuals facing state criminal charges of possessing or growing marijuana so long as the individuals are seriously ill and are using the drug at a doctor's request. Of course, such individuals still risk federal drug charges, to which this state law defense will not apply.

In the second case, a three-judge panel of the Court of Appeals Division III of the State of Washington unanimously ruled yesterday that a lesbian who claims that a public hospital fired her because of her sexual orientation can maintain a federal civil rights claim against the hospital. At the same time, however, the court ruled that the firing did not violate the public policy of Washington State. So, the plaintiff's federal law claim was allowed to proceed but her state law claim was not. You can access this decision here.
Posted at 11:40 by Howard Bashman



A few random observations on opinions available for viewing over the Third Circuit's Web site: A recent issue of the New Jersey Law Journal brought to my attention that the U.S. Court of Appeals for the Third Circuit last month issued its en banc decision in Thomas v. Commissioner of Social Security, No. 00-3506 (3d Cir. June 21, 2002). I have previously mentioned this case both here on my blog and here in the October 2001 installment of my monthly appellate column published in The Legal Intelligencer. Discovering the decision in this manner led me to feel remiss for overlooking the opinion's posting to the Third Circuit's Web site. You see, the Third Circuit says that it posts all of its precedential and nearly all non-precedential opinions to its Web site each day. And, of course, this en banc decision was a precedential opinion that I somehow must have overlooked on the Third Circuit's site.

Except, as it turns out, the en banc ruling in Thomas v. Commissioner of Social Security was never posted on the Third Circuit's Web site's list of new decisions. Yes, the decision is available on the Web site if you search for it by docket number, yet it should have appeared (but did not appear) in the list of new opinions. Are other precedential opinions failing to make that list? Your guess is as good as mine. I was at least pleased to learn that the decision reached the outcome that I had predicted.

I've also stumbled upon another issue that involves so-called non-precedential opinions. I accepted the Third Circuit's appointment to serve as pro bono counsel for an INS detainee in an appeal captioned Osuman v. Ashcroft, No. 01-2206 (3d Cir. June 19, 2002). As counsel for a party, I thus received from the Third Circuit a copy of its non-precedential opinion deciding the appeal. The copy of the opinion that the court sent to me in the mail contains a total of four footnotes. The copy of the opinion posted on the Third Circuit's Web site contains no footnotes. And, remarkably, the version of the opinion available on Westlaw also contains no footnotes. Does this indicate that the Third Circuit's posting of all non-precedential opinions on its Web site includes just the main text, but not the footnotes? I wish I had the time to figure that out.

With apologies to both Bryan A. Garner (and his so-called "method" of brief writing, which would have the writer put all citations to case law into the footnotes of a brief) and Fifth Circuit Judge Patrick E. Higginbotham (wow, 162 footnotes in one opinion!), I have managed to banish all footnotes from my appellate briefs. Yet, I think all would agree that whenever a court's opinion actually contains footnotes, whether they number in the single digits or in the hundreds, those footnotes should be reproduced with the rest of the opinion on the appellate court's Web site and on Westlaw. If, for some reason, that's not happening in some cases, the problem should be addressed promptly.
Posted at 09:30 by Howard Bashman



Your mileage may vary: There's no shortage of legal punditry on the Web, but not all of it is worth your time. You likely will find worthwhile Roger Clegg's essay, published yesterday at National Review Online, on whether the U.S. Supreme Court should allow disparate impact race discrimination claims under the Fair Housing Act.

By contrast, Barton Aronson's essay published yesterday on FindLaw proved to be a complete waste of my time. He attempts to explain why the U.S. Supreme Court's recent ruling that allowed non-party class members to appeal from the denial of their objections to a settlement was wrong and will lead to bad results in analogous cases. Not only was his argument unpersuasive, but his essay overlooked the main concern about class action settlements: that no one remains to represent the interests of non-party class members after the approval of the named plaintiff and her counsel have been purchased by the defendants.
Posted at 08:28 by Howard Bashman



Headline seen this morning while looking to the left, over SEPTA rail passenger's shoulder: Today's Philadelphia Inquirer reports "General Wayne Inn to close."
Posted at 08:15 by Howard Bashman



Thursday, July 18, 2002
Speaking on the final day of the Ninth Circuit Judicial Conference, today U.S. Supreme Court Justice John Paul Stevens explained that he sees eroding support for the death penalty in this country. You can access here a report on his remarks, courtesy of law.com.
Posted at 22:18 by Howard Bashman



California Justices say don't use jury instruction that requires jurors to rat out one another. The Supreme Court of California today ruled, in an opinion you can access here, that state trial courts should refrain from instructing jurors in criminal cases at the outset of jury deliberations that "should . . . any juror refuse[] to deliberate or express[] an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." Although the court unanimously affirmed the defendant's criminal conviction, the court ruled 4-3 that in the instruction in question should no longer be given in future cases.
Posted at 22:12 by Howard Bashman



Tonight's Zacarias Moussaoui round-up: Courtesy of The Washington Post, you can now access the transcript of today's arraignment at which Zacarias Moussaoui attempted to plead guilty to the charges against him. Over at Slate, Dahlia Lithwick provides her prompt analysis of today's events. And, the Associated Press tonight is carrying this report in which various criminal defense attorneys praise the trial judge's refusal to accept Moussaoui's guilty plea today.

And now, without further ado, let's step inside the Alexandria, Virginia federal district court this afternoon and spend a few moments, via the transcript, with Judge Leonie M. Brinkema (identified as "The Court" in the transcript) and Zacarias Moussaoui (identified as "The Defendant" in the transcript). At the outset of today's session, Moussaoui again expressed his dissatisfaction with his inability to plead no contest to the charges. Then he expressed his intent to enter what he called a "pure plea," which he explained would involve admitting to many of the allegations against him but also entailed his adding of additional facts as appropriate. At this point, Judge Brinkema said that she was again entering a plea of not guilty because the federal court system did not recognize a "pure plea."

Focus then shifted to whether Moussaoui would require more time to get ready for trial. Judge Brinkema offered him the opportunity to request more time, but she also made clear she was unlikely to grant any such request. Moussaoui then requested some time to think about whether he needed more time. Next on the agenda was the issue of providing Moussaoui with paper copies of the government's evidence against him. While Moussaoui has been given a jailhouse computer, it appears not to be a very good one. He thus is having great trouble, so it seems, accessing the government's evidence against him in electronic form. Judge Brinkema ordered the government to cull out from all the electronic evidence the evidence that appears most central to Moussaoui's defense and to give Moussaoui hard copies of that evidence. It was at the conclusion of this discussion that Moussaoui tried to enter a plea of guilty:
THE COURT: All right.
THE DEFENDANT: I want to address my plea.
THE COURT: I've accepted a plea of --
THE DEFENDANT: No --
THE COURT: -- not guilty, Mr. Moussaoui.
THE DEFENDANT: No, I didn't make this plea.
THE COURT: I know, but I've entered one for you.
THE DEFENDANT: I want to enter a plea, I want to enter a plea of guilty. I want to enter a plea today of guilty, because this will ensure to save my life, because this is conspiracy law. It's much more complicated than what you want to make people to believe, because even if I plead guilty, I will be able to prove that I have certain knowledge about September 11, and I know exactly who done it. I know which group, who participated, when it was decided. I have many information.
THE COURT: Wait a minute, Mr. Moussaoui.
THE DEFENDANT: But it will ensure me to save my life, because the jury will be, will be able to evaluate how much responsibility I have in this. But by carrying on with this farcical justice, I will be put aside soon, because already the standby counsel are speaking on my behalf in open court, where they are here only for protocol and procedure. You allow them to do this and to speak, and I will be soon, ah, removed from my defense, because you already put me on notice, okay, and what will happen to me, I will be certainly gagged during trial, ah, and you will carry on your so-called justice, and the jury will be inflamed, because September 11, it's a very serious affair, and they will, they pronounce my death. I, Moussaoui Zacarias, in the interests to preserve my life, enter with full conscience a plea of guilty, because I have knowledge and I participated in, in al Qaeda. I am member of al Qaeda.
THE COURT: Mr. Moussaoui, you have to stop, or I'll have the marshals remove you.
THE DEFENDANT: I pledge bayat to Osama bin Ladin.
THE COURT: Marshals. Mr. Moussaoui, all right, wait. Leave him one second. I'm going to advise you again that when you speak, the words you say can be used against you in the prosecution. If a defendant stands up in court and says, "I'm guilty of the offense," you may put yourself in a position where you cannot undo those words. When you -- you can put your hands down, Mr. Moussaoui. When you plead -- put them down.
THE DEFENDANT: Yeah, but I don't want them to jump on me.
THE COURT: No one's going to jump on you if you be quiet when I speak.
THE DEFENDANT: Yeah.
THE COURT: If you're pleading guilty, let me explain to you again what a guilty plea means in this system. It means you are admitting doing what the government claims you did. You cannot plead guilty and then say, "But I didn't do this and I didn't do that and somebody else did that." I also want you to understand this: It is normal in a criminal case that a defendant has the right to try to plea bargain with the government. Usually his attorneys would do that for him. It is not uncommon even in the most serious cases if a defendant has truly valuable information to the government, that the government considers the value of that information and makes a decision to compromise the case by offering a plea to either a lesser count, or, for example, in a capital case, the government could agree to drop the death penalty. The Court cannot get involved in that. That is something attorneys would do for you. I suppose you could try to negotiate a plea for yourself, and I don't know whether that has been attempted, but this is not the forum in which to do that. Now here's what I'm going to do: If you absolutely want to enter a guilty plea and admit your guilt for the offenses that are alleged in this indictment, I will give you the right to do that, but I want you to take a little time to think about whether that's really what you want to do. You know how to reach the Court. I'll give you at least a week to think about that.
THE DEFENDANT: I don't need it.
THE COURT: Well, I'm giving the time to you, because you have changed --
THE DEFENDANT: I've been thinking for months.
THE COURT: You have changed your mind so many times in this case.
THE DEFENDANT: No, I didn't change my mind. You have preventing me to enter the plea I wanted, and now because of my lack of knowledge and I'm not a lawyer, I was not able to, to know that I couldn't enter a pure plea. But anyway, the fact of the reality even now, you know perfectly that there is a guilt phase and there is a penalty phase, okay? And you know that on both, on both account, the government have to prove that I'm guilty to the extent that they pretend I'm guilty, okay? So now I'm saying that for the guilt phase, I'm guilty for the -- yes, the guilt phase. But for the death penalty, we will see. That's also -- I am guilty. I don't want you to have time to manipulate the system again against me, and that I'm sure that in a week time, I will be declare probably insane or, I don't know, some incident in jail. So today the world should know that Moussaoui Zacarias have entered formally a guilty plea fully and completely, and he want to have trial as soon as possible to be able to, to show the extent of his guilt. That's only what matter now. I am guilty. Now the question is how much.
THE COURT: All right. I'm going to reconvene this case at 1:00 next Thursday to see if the defendant wants to continue with a guilty plea to the offenses.
THE DEFENDANT: Bet on me I will.
THE COURT: And if he still does and he can properly answer the Rule 11 colloquy questions, I see no legal impediment to accepting a guilty plea. Mr. Spencer [the prosecuting attorney], do you want to be heard on that?
MR. SPENCER: No, Your Honor. I see no impediment, either.
THE COURT: All right. We'll recess court.
Based on the confused and contradictory statements that Moussaoui made at today's hearing, I for one am not willing to bet that Judge Brinkema will accept his guilty plea next Thursday. But, only time will tell.
Posted at 21:46 by Howard Bashman



Giving thanks. Thanks to the fine site Overlawyered.com for adding "How Appealing" to its short list of recommended Web logs. And thanks to William Quick of DailyPundit for his very kind mention tonight.
Posted at 21:09 by Howard Bashman



More breaking news from the courts in the war on terror: The Associated Press is reporting this afternoon that some very notable developments have occurred today in the Yaser Esam Hamdi case, which involves the so-called second American Taliban. You can access the AP's report here. This further confirms the observation that the party that has obtained reversal on appeal of a trial judge's ruling doesn't always receive the friendliest welcome from the trial judge on remand.
Posted at 15:37 by Howard Bashman



Don't quite know how the Ninth Circuit gets to decide a fascinating church vs. state case just about every other day. Nevertheless, today's installment of church vs. state in the U.S. Court of Appeals for the Ninth Circuit does involve a very interesting set of facts. As the majority's opinion explains at its outset:
This appeal challenges Washington law that denies a state-funded "Promise Scholarship" to students who are qualified for it by virtue of high school grades, family income, and attendance at an accredited college in the state, solely because the student decides to pursue a degree in theology.
By a vote of 2-1, the Ninth Circuit today held in Davey v. Locke, No. 00-35962 (9th Cir. Jul. 18, 2002), that the "policy denying a Promise Scholarship to a student otherwise qualified for it according to objective criteria solely because the student decides to pursue a degree in theology from a religious perspective infringes his right to the free exercise of his religion." Circuit Judge Pamela Ann Rymer wrote the majority opinion, in which Circuit Jugge Ronald M. Gould joined. Circuit Judge M. Margaret McKeown dissented. You can access the opinion here.
Posted at 14:16 by Howard Bashman



An appeal is likely to follow. The Associated Press reports today from Des Moines, Iowa that a "state judge upheld his decision that pregnancy test records aren't confidential and ordered Planned Parenthood to turn over records to help investigators find the mother of a newborn whose body was dumped in the trash." You can access the full report here.
Posted at 14:09 by Howard Bashman



Breaking news: According to the Associated Press, Zacarias Moussaoui is now actually, truly, really trying to plead guilty. The trial judge has given Moussaoui until one week from today to think it over some more, according to this report.
Posted at 14:04 by Howard Bashman



What plea will Zacarias Moussaoui try to enter today? He's due back in court this afternoon to enter a plea to the brand-new superseding indictment against him. Reuters offers this report. And, you can click here for my earlier posting about Moussaoui's previous attempt to plead "no contest" while still maintaining his innocence.
Posted at 09:40 by Howard Bashman



Welcome "greedy" judicial law clerks. Thanks to this anonymous (but very kind) post early this morning on Infirmation.com's "Greedy [Judicial Law] Clerks Board," this blog is getting some new visitors today. I've always found it oxyMauronic (sorry, Tony, but it's difficult to pass up a Scalia pun) to call judicial law clerks "greedy" -- heck, these top-notch recent law school graduates are giving up the really big bucks for a year or two in exchange for the chance at laboring anonymously under the tutelage of our nation's judiciary. They truly deserve our thanks -- the usefulness of a top-notch appellate judicial law clerk cannot be exaggerated -- and they'll have plenty of time to be greedy, and capitalize on the monetary value of their clerkships in private practice (often earning more from the very start than the judges for whom they clerked are now being paid (what a system!)), once their clerkships conclude.
Posted at 09:30 by Howard Bashman



Don't second that e-motion. Attorney Denise Howell, over at her blog, yesterday noted confusion (see here and here) among the mainstream press about the status of an appeal, pending in the U.S. Court of Appeals for the Third Circuit, involving royalty payments for radio broadcasts streamed over the Internet. Now, excluding for a moment the work of all of those news reporters who read "How Appealing" and who are, of course, especially intelligent and basically all-knowing, I'm often dismayed at how little so many mainstream reporters know about how the nation's appellate courts work. I'm sure my reaction isn't unique. No doubt experts in nuclear physics are disappointed in the press's understanding of that specialty. And, of course, appellate litigation isn't brain surgery or nuclear physics.

First comes love, then comes marriage, . . . . Here's a short primer. When, at the end of a case pending in a trial court, an appeal is taken, the appealing party typically files a notice of appeal in the trial court. The notice of appeal usually is a very short document that identifies the parties taking the appeal, the order(s) and/or judgment(s) appealed from, and the court to which the appeal is taken. In most instances, the notice of appeal doesn't contain any argument, nor does it even identify the arguments to be advanced on appeal. Once the notice of appeal is sent from the trial court to the appellate court, the appellate court dockets the appeal and, eventually, issues a briefing notice. When a party files its brief on appeal, that document should be referred to as the "brief on appeal"; it's not a "motion." The brief on appeal sets forth a party's arguments and usually is quite lengthy. To complicate matters further, motions can be filed in an appeal, but rarely would one confuse an appellate motion with a party's brief on appeal.

When in doubt, ask someone in the know. If you are a news reporter who is faced with having to figure out what's going on in an appeal, and if you aren't confident that you've come to the correct conclusion, you shouldn't hesitate to ask a local appellate lawyer for help. I get phone calls all the time from reporters covering appeals who aren't quite sure what's likely to happen next or what a particular court filing means. All that I ask is that you quote me accurately, don't make me sound more idiotic than I actually am, and spell my name right. But, again, I don't want every newspaper reporter covering an appeal to be calling me; instead, call an appellate lawyer based somewhere near the court in which the appeal is pending.

Lies, damn lies, and statistics. Sometimes even experienced appellate lawyers can jump to the wrong conclusion. Denise, in her post about the aforementioned Third Circuit appeal, cites to statistics showing that the Third Circuit only reverses in approximately ten percent of appeals. She then suggest that the Internet broadcasters face long odds on their appeal. I'm not at all convinced. The Third Circuit doesn't randomly pick only ten percent of appeals to reverse, nor does the Third Circuit arbitrarily limit its reversals to only ten percent of the appeals that are taken. Rather, this statistic -- which can and will vary over time -- depends on whether appeals are usually being taken in cases in which reversal is a significant possibility. So, a ten percent reversal rate in the past doesn't suggest much if anything about whether reversal in a given case is likely. The answer to that question depends on the facts, procedural posture, and law at issue in the appeal in question.
Posted at 08:39 by Howard Bashman



Wednesday, July 17, 2002
Can a confession at an Alcoholics Anonymous meeting be used to convict someone of a crime? That's the very interesting question a three-judge panel of the U.S. Court of Appeals for the Second Circuit had to grapple with in a ruling issued today. A New York-based federal trial court had set aside a defendant's conviction on state charges of first degree manslaughter after the federal trial court concluded that "New York State could not constitutionally construe its cleric-congregant privilege to exclude from its protection communications made during the course of unconventional forms of 'religious expression,' including 'the disclosure of wrongs to a fellow member [of A.A.] as ordained by the Twelve Steps.'"

Today the Second Circuit, in a lengthy but fascinating opinion that you can access here, reversed the trial court's ruling and reinstated the defendant's manslaughter conviction. The appellate court explained: "We conclude, however, that Cox failed to establish that his communications to other A.A. members would have been privileged, even were New York's cleric-congregant privilege required to be construed to protect communications made among members of A.A. The privilege only protects disclosures made 'in confidence and for the purpose of obtaining spiritual guidance.'" Because the defendant's confession was, in the appellate court's view, not for the purpose of seeking spiritual guidance, the trial court erred in holding that the defendant's communications were privileged.
Posted at 22:52 by Howard Bashman



'Pledge' judges face demonstrators, the Associated Press states in an article filed this evening from the Ninth Circuit Judicial Conference.
Posted at 22:39 by Howard Bashman



"No ABA conspiracy on judges' trips," writes Doug Kendall, Executive Director of Community Rights Counsel, in a letter to the editor published this week in Washington, DC's Legal Times. You can access the letter online here. My earlier posting on this controversy can be accessed here.
Posted at 22:29 by Howard Bashman



Thanks to OpinionJournal's Best of the Web Today for its link this day to "How Appealing."
Posted at 16:52 by Howard Bashman



Today's Los Angeles Times reports in a front page news story that the Pledge of Allegiance ruling has "liven[ed] up" the Ninth Circuit Judicial Conference. One example: it's probably not very often that the Ninth Circuit Judicial Conference makes front page news in the LA Times.
Posted at 06:57 by Howard Bashman



"Despite court's ruling, a dog is not like a table." So writes Lancaster County, Pennsylvania attorney, and "How Appealing" reader, Mitchell Sommers in an essay printed in today's edition of The Philadelphia Inquirer. He learned of the Pennsylvania Superior Court decision that provides the basis for his published essay via a posting that I made here.
Posted at 06:25 by Howard Bashman



Tuesday, July 16, 2002
According to her mother, the daughter in the Pledge of Allegiance case wants "under God" to remain in the Pledge. Today's installment of "Wolf Blitzer Reports" on CNN aired an interview with Sandy Banning, the mother of the girl whose father, Michael Newdow, prevailed in the Pledge of Allegiance case pending in the Ninth Circuit. You can access CNN.com's news story on the interview at this link. You can access the transcript of the program (scroll down more than three-quarters of the page to find the interview) at this link. (Note: At the time of this posting, CNN.com's news story incorrectly stated that "[a]n 11-member panel of the appeals court is now reconsidering the decision." In fact, the Ninth Circuit has not yet decided whether to grant rehearing en banc in this case.)
Posted at 23:49 by Howard Bashman



Care to explain? In two separate published opinions issued today, one Fifth Circuit judge has dissented without opinion, while another concurred only in the result without opinion. Federal appellate judges who disagree with the majority's result or reasoning almost never fail to take advantage of the opportunity to explain why. That two Fifth Circuit judges would fail to explain the basis for their disagreement with the majority's reasoning in two separate published opinions issued on the same day is quite puzzling.
Posted at 22:47 by Howard Bashman



The Senate Judiciary Committee's hearing on Fifth Circuit nominee Priscilla R. Owen has been postponed from this Thursday to Tuesday, July 23, 2002. Meanwhile, the Associated Press tonight offers this article on the battle that is expected to occur over her nomination.
Posted at 22:24 by Howard Bashman



"A rational result in the only rational terror trial we're going to see," writes Dahlia Lithwick of Slate.com in her essay posted this afternoon about the John Walker Lindh plea agreement.
Posted at 19:27 by Howard Bashman



Michael Newdow's latest appeal (yes, re's at it again) seeks to overturn the dismissal of his lawsuit alleging that President Bush's 2001 inauguration should not have included a prayer. The Associated Press offers this report, which suggests (but does not definitively state) that this appeal is likewise heading to the U.S. Court of Appeals for the Ninth Circuit. Update: Indeed, Newdow's second appeal is also pending before the Ninth Circuit, my electronic search of the Ninth Circuit's docket entries has confirmed.
Posted at 16:21 by Howard Bashman



Pledge of Allegiance recited at Ninth Circuit Judicial Conference by judge presiding over naturalization ceremony. No doubt this story from this morning's edition of the San Diego Union-Tribune will strike some as rather ironic.
Posted at 16:05 by Howard Bashman



Or, we could just impeach them. So says former House Speaker Newt Gingrich, in an UPI op-ed that you can access here, referring to the two Ninth Circuit judges who constituted the majority in the Pledge of Allegiance case. This qualifies as the most idiotic reaction to that ruling that I have yet heard seriously proposed.
Posted at 12:47 by Howard Bashman



Pledging creation of the U.S. Court of Appeals for the Twelfth Circuit. Thanks to Law Professor Arthur D. Hellman of the University of Pittsburgh School of Law for his email of this morning, in which he wrote:
Yesterday Sen. Murkowski announced that he will be offering his 9th Circuit split amendment "on every bill until we obtain a vote on this issue." Murkowski's statement extends over nearly two full pages of the Cong. Rec.

The statement proposes a realignment that is different from the one in the bill offered by Murkowski earlier in this session, which was also the alignment in the amendment offered last week. It appears that he would put only California and perhaps Nevada in a new 9th Circuit. This of course would leave Arizona unconnected to the rest of the proposed 12th Circuit.

I don't know what the odds are, but the legal community should know about this, and an item on your web site would bring it to the attention of many of those who would be most interested.
You can access the complete statement of Senator Frank Murkowski (R-Alaska) by clicking on the tenth item found at this link. Thanks, Professor Hellman, for sending along this information.
Posted at 12:25 by Howard Bashman



The U.S. Department of Justice is now seeking to indict Zacarias Moussaoui for a third time. This latest effort is in response to the U.S. Supreme Court's recent ruling in Ring v. Arizona, No. 01-488 (U.S. June 24, 2002) -- a ruling that can be understood to require that a grand jury's indictment specify the grounds on which imposition of the death penalty will be sought. You can read my prior postings on this issue, as it may affect Moussaoui, here and here. Moussaoui's stand-by defense attorneys argue, in a court filing that you can access here, that the Supreme Court ruling in Ring would continue to prohibit imposition of the death penalty even if the indictment is amended. In essence, Moussaoui's attorneys contend that the federal death penalty law is itself unconstitutional in Ring's aftermath, and thus amendment of Moussaoui's indictment cannot cure the problem. You can access the Associated Press's report on this development here.

Update: You can access this newest superseding indictment at this link, courtesy of FindLaw.
Posted at 12:15 by Howard Bashman



Congratulations to Lavenski R. Smith of Arkansas, whom the U.S. Senate last Thursday confirmed by a voice vote to fill a vacancy on the U.S. Court of Appeals for the Eighth Circuit. He is the first new federal appellate judge to be confirmed by the Senate in almost three months. Smith, born in Hope, Arkansas, previously served as an Associate Justice on the Supreme Court of Arkansas. You can access his biography here. Smith fills what had been the Eighth Circuit's only vacancy, created in April of 2001 when Circuit Judge Richard S. Arnold took senior status. No word on whether Smith shares Judge Arnold's views on the unconstitutionality of non-precedential appellate rulings.
Posted at 08:22 by Howard Bashman



The Ninth Circuit Judicial Conference is now underway, and here's an early report from Jason Hoppin courtesy of law.com. Already discussed at the conference -- getting more judges confirmed; and Congress's effort to inquire into the Sixth Circuit's handling of the en banc University of Michigan Law School race-based admission preferences case.
Posted at 00:25 by Howard Bashman



Monday, July 15, 2002
Ayn Rand would be proud. The Center for the Moral Defense of Capitalism has today posted online its review of the U.S. Supreme Court's 2001 Term. Based on its review of twenty-nine decisions deemed relevant, the Center concluded that Justice Clarence Thomas favored individual rights the most, while Justice Stephen Breyer favored individual rights the least. You can access the full report at this link. Non-lawyer Skip M. Oliva prepared the report and also has his own Web log, which you can access here.
Posted at 23:53 by Howard Bashman



It's time for a pay raise. That's what Chief Justice William H. Rehnquist and Associate Justice Stephen Breyer today told the National Commission on the Public Service about the salaries paid to federal judges. The Commission is examining a wide range of governmental issues and is expected to issue recommendations this fall. The Associated Press has this report.

Update: Writing in Tuesday's edition of The Washington Post, reporter David S. Broder has an article on this story that you can access here. And, in Wednesday's New York Times, Linda Greenhouse had this report on the pay raise issue.
Posted at 19:14 by Howard Bashman



The U.S. Court of Appeals for the Fifth Circuit today affirmed the criminal conviction of Cecil Brown, whom the Associated Press describes as "a Eunice cattleman accused of shaking down Texas businessmen by taking advantage of his long friendship with former [Louisiana] Gov. Edwin Edwards." The AP's report also notes that former Governor Edwards was named as an unindicted co-conspirator in this case. You can access the Fifth Circuit's opinion at this link.
Posted at 18:57 by Howard Bashman



John Walker Lindh's plea agreement and a short stipulated statement of facts in support thereof are now both available online, courtesy of FindLaw. And, The Washington Post offers this interesting account of the hearing at which Walker Lindh entered his plea of guilty and the negotiations that preceded it.
Posted at 15:17 by Howard Bashman



The U.S. Court of Appeals for the Ninth Circuit has issued two noteworthy decisions today.

First, the Ninth Circuit reversed a California-based federal trial court's preliminary injunction that prohibited enforcement of a California law known as The Holocaust Victim Insurance Relief Act of 1999. You can access the Ninth Circuit's opinion at this link.

In the second case, the Ninth Circuit grappled with a provision in Title VII which makes that federal law governing employers applicable only to employers that have fifteen or more employees at the relevant time. Today's case involved a California-based company that had only five employees. The company, however, was very closely affiliated with a separate corporation, based in Mexico and organized under Mexican law, and the Mexican company had many more than ten additional employees. Thus, if it was proper to count the total number of employees of both companies, the five U.S.-based employees would enjoy Title VII's protections. A three-judge Ninth Circuit panel divided 2-1 over the outcome of this case, with the majority concluding that the Mexican company's employees could be counted and thus Title VII applied to the U.S. company. Senior Circuit Judge James R. Browning wrote the majority opinion, in which Circuit Judge Raymond C. Fisher joined. Senior Circuit Judge Ferdinand F. Fernandez dissented, and I find his arguments to be more persuasive. You can access the court's decision in this case here.
Posted at 13:56 by Howard Bashman



Ever so slight progress on federal judicial nominations. Roll Call today offers this report, which contains word that more than fifteen judicial nominations approved by the Senate Judiciary Committee may now start coming one by one before the full Senate for a vote. The report also discusses in detail efforts to obtain movement toward confirmation on President Bush's nomination of Miguel A. Estrada to the U.S. Court of Appeals for the D.C. Circuit.
Posted at 11:44 by Howard Bashman



Breaking news: The original so-called American Taliban, John Walker Lindh, has decided to enter a guilty plea in the criminal case pending against him. And, unlike Zacarias Moussaoui, it appears that Lindh really means it. The Associated Press has this early report.
Posted at 10:37 by Howard Bashman



Atheists to demand recount? Yesterday's Palm Beach (Fla.) Post contained a report on the results of Palm Beach County's mock election to test the county's new touch-screen voting devices. As I mentioned early this morning, one of the questions posed to voters was whether "under God" should remain in the Pledge of Allegiance. You can access the Post's report on the vote's outcome at this link.
Posted at 10:20 by Howard Bashman



Brendan O'Neill observes over on his blog that too many Web logs are a complete waste of the reader's time. He then deftly manages to recommend his own as one that is worth reading, and indeed it is. My ten words of advice: If a Web log sucks, don't ever visit it again.
Posted at 00:57 by Howard Bashman



In Monday's news, Palm Beach County, Florida has successfully tested new touch-screen voting devices. Hmm, how does this story relate to appellate litigation? One of the sample ballot questions used to test the new machines asked whether "under God" should be stricken from the Pledge of Allegiance. (No, I'm not making that up.) An editorial in Monday's edition of The Washington Post calls on Congress to pass "the Innocence Protection Act, a bill designed to protect capital defendants from wrongful conviction and execution." You can access the editorial here. Over at The New Yorker, writer Malcolm Gladwell asks in that magazine's issue of July 22, 2002 whether smart people are overrated. If I were smart, I would have read his new article in its entirety before recommending it. However, based on my favorable memories of a similar earlier article of his (which also appeared in The New Yorker), I'm taking a leap of faith here and am suggesting that his latest piece may well be worth a look.
Posted at 00:36 by Howard Bashman



Sunday, July 14, 2002
WHAT'S LIKELY TO HAPPEN NEXT IN THE PLEDGE OF ALLEGIANCE CASE: So you want to know what's likely to happen next in the Pledge of Allegiance case, which remains pending before the U.S. Court of Appeals for the Ninth Circuit following a decision by a three-judge panel of that court on June 26, 2002?

1. Several parties to the appeal have already publicly expressed their intention to seek rehearing en banc. A party that desires rehearing en banc must file a new brief (formally known as a "petition") explaining both why the panel's ruling is incorrect and why the case is important enough that it deserves to be reconsidered by a larger group of Ninth Circuit judges. The petition for rehearing en banc is then forwarded to all Ninth Circuit judges in regular active service (a total of twenty-three active judges currently serve on the Ninth Circuit by my count; see this listing). A majority of the non-recused active judges must vote in favor of rehearing en banc in order for it to be granted. (In this earlier posting, I discussed what is likely to happen after rehearing en banc is granted.)

Because the Pledge of Allegiance case is a civil case in which the United States government is a party, the deadline for filing a petition for rehearing en banc is forty-five days after the date on which the Ninth Circuit entered judgment. Because the Ninth Circuit entered judgment on June 26, 2002, the deadline for filing a petition for rehearing en banc is Monday, August 12, 2002. (True, Saturday, August 10, 2002 is the date that is precisely forty-five days after June 26, 2002. Because federal courts aren't technically open to receive filings on weekends, the parties are given until the next business day that is not a federal holiday to make the filing. Thus the actual deadline of Monday, August 12, 2002.)

Ninth Circuit judges do have the power to grant rehearing en banc even in the absence of a party's formal petition. I don't see that happening in this case for one major reason -- it's not a particularly nice thing to do to throw out your colleagues' ruling without even awaiting a formal request from the losing parties. Given that various parties have expressed their definite intention to seek rehearing en banc, the Ninth Circuit judges will likely await that petition before deciding whether to take the case en banc. Ninth Circuit Judge Alex Kozinski recently explained in congressional testimony, which you can access here, how the Ninth Circuit handles a rehearing en banc petition in a case in which one or more Ninth Circuit judges believes that rehearing en banc should be granted:
Successful or not, an en banc call consumes substantial court resources. The judge making the call circulates one or more memos criticizing the opinion, and the panel must respond. Frequently, other judges circulate memoranda in support or opposition. Many of these memos are as complex and extensive as the opinion itself. Before the vote, every active judge must consider all of these memos, along with the panel's opinion, any separate opinions, the petition for rehearing and the response. The process can take months to complete.
Thus, we may not learn for quite some time whether the Ninth Circuit will take the Pledge of Allegiance case en banc.

2. Last week, press accounts emerged that called into question whether the plaintiff in the Pledge of Allegiance case has standing to pursue that lawsuit on his daughter's behalf. (You can access my original posting on this subject here.) If the record before the Ninth Circuit does not conclusively answer the question of the plaintiff's standing to pursue the suit, it likely will be necessary for the trial court to conduct proceedings on that question in the first instance. Federal appellate courts simply don't take testimony or find facts based on newly introduced evidence; rather, that is the role that federal district courts serve. It is conceivable that a disgruntled party could file a motion in the trial court to challenge the plaintiff's standing even while the appeal remains pending before the Ninth Circuit (such a motion is known to lawyers as a Federal Rule of Civil Procedure 60(b) motion), but the trial court could not grant that motion unless the Ninth Circuit sent the case back to the trial court for that purpose. The news stories discussing the facts that may determine whether the plaintiff has standing were somewhat contradictory, so only time will tell whether an objection to the plaintiff's standing will derail his case at this rather late stage of the proceedings.
Posted at 23:10 by Howard Bashman



AN INTERESTING COINCIDENCE REGARDING TWO SIXTH CIRCUIT NOMINEES: Thanks to a repeat "How Appealing" email correspondent from Michigan for bringing to my attention the fact that brand new Sixth Circuit nominee Richard A. Griffin is on the three-judge Michigan Court of Appeals panel that is now deliberating over whether that State's sexual harassment laws violate the First Amendment. In doing a bit of research on my own to confirm the tip, I learned that Judge Griffin is not the only Sixth Circuit nominee on that same three-judge panel. Judge Henry W. Saad is also assigned to that appeal, Detroit Free Press columnist Brian Dickerson reports. You can access my postings about that very interesting appeal here, here, and here. You can see the full list of all eight Sixth Circuit nominees at this link.
Posted at 22:57 by Howard Bashman



NOT AVAILABLE ONLINE, PART ONE: Because the contents of today's Los Angeles Times are not yet online (at least not as of the time I'm posting this), I can't yet point you in the direction of any items of interest that might appear there.

NOT AVAILABLE ONLINE, PART TWO: As someone who follows closely both state and federal appellate courts, I have found quite encouraging the extent to which so many of those courts have made available online their written opinions, internal rules, and docket entries for access by the general public. Indeed, during the past year I have devoted two separate installments of my monthly appellate column, published in The Legal Intelligencer, to this very subject.

At the forefront: Two federal appellate courts at the forefront of these developments are the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for the Eighth Circuit. Both courts' Web sites make available for public online access the parties' appellate briefs and audio feeds of appellate oral arguments. Indeed, one of these two courts has even evaded the unfortunate requirement that supposedly forces federal appellate courts to charge for docket access. Bringing up the rear: At the other end of the spectrum is the U.S. Court of Appeals for the Eleventh Circuit. While the Eleventh Circuit now has a quite lovely looking Web site, you need an advanced degree in computer science to figure out how to access that court's current rulings. And, unlike every other federal appellate court today, the Eleventh Circuit does not allow an Internet user easy access to that court's published opinions on the day of issuance. Indeed, I have found that the easiest way for me to access the Eleventh Circuit's rulings is not to visit the Eleventh Circuit's Web site, but rather to visit this page on FindLaw.
Posted at 16:37 by Howard Bashman



STUART TAYLOR JR. ON THE PLEDGE OF ALLEGIANCE CASE: You can access legal affairs correspondent Stuart Taylor Jr.'s take on the Pledge of Allegiance case at this link.
Posted at 12:11 by Howard Bashman



IN THE WASHINGTON POST: Yesterday's edition of The Washington Post contained an editorial that noted with approval the same portion of the Fourth Circuit's ruling in the Hamdi case that "How Appealing" highlighted yesterday.

Today's edition of the Post contains several interesting op-eds. Elliot Schrage discusses how the world's poor and exploited are "coming to our courthouses -- to seek justice from global corporations for exploitative business practices abroad." You can access his essay here. Vincent Schiraldi asks why courts are still allowing the execution of children as young as 16 now that the U.S. Supreme Court has prohibited the execution of the retarded. You can access his op-ed here. Finally, Christopher Edley Jr. suggests that the to-be-created Agency of Homeland Security should contain "an independent Office of Rights and Liberties, headed by a Senate-confirmed director." You can access his thoughts here.
Posted at 08:48 by Howard Bashman



Saturday, July 13, 2002
SOME SIXTH CIRCUIT JUDICIAL NOMINATION DEVELOPMENTS: Congress has authorized the U.S. Court of Appeals for the Sixth Circuit to have a total of sixteen active judges. Today the Sixth Circuit has only eight judges in regular active service -- and eight vacancies -- and these statistics are quite appalling. As far back as 1968 Congress determined that eight active judges was too few for the Sixth Circuit to function properly.

But some good news has recently occurred in the effort to put more judges onto the Sixth Circuit. Just two days ago, on July 11, 2002, the Senate Judiciary Committee approved the nomination of John M. Rogers by a voice vote. (I discussed his nomination previously in a post you can access here.)

And, on June 26, 2002, President Bush nominated Richard A. Griffin, who serves as an intermediate state appellate court judge in Michigan, to fill the Sixth Circuit's only remaining vacancy for which a nominee had yet to be proposed. You can learn more about Judge Griffin at this link, courtesy of the Web site of the Michigan Court of Appeals.
Posted at 23:58 by Howard Bashman



LAW PROFESSOR ARTHUR D. HELLMAN: Arthur D. Hellman serves as Professor of Law at the University of Pittsburgh School of Law. He is one of the nation's foremost experts on federal appellate courts and the U.S. Court of Appeals for the Ninth Circuit in particular.

A few weeks ago, Professor Hellman was part of a distinguished panel that addressed a subcommittee of the Judiciary Committee of the U.S. House of Representatives about the use, and possible abuse, of non-precedential federal appellate court rulings. I posted here about the hearing last week, and in that earlier post I provided links to three articles that I have written on the topic. I have now had a chance to read Professor Hellman's prepared testimony (which you can access here), and I am very pleased to say that he and I are in substantial agreement about the problems that currently exist. His proposed solution, while not precisely the same as mine, is quite worthy of consideration.

He and I traded emails this evening -- initiated by me, because my hit counter revealed someone at his computer terminal at the University of Pittsburgh School of Law was reading this blog (Oh the information a hit counter sometimes reveals!) -- and he had the following exceptionally kind words about "How Appealing":
I was going to e-mail you this weekend to say, among other things, how glad I am that I finally found How Appealing. I don't know how I missed it until now, but I have gone back to issue (? blog ?) #1 and have been reading (in a set of printouts) the complete run. It is absolutely splendid, and I can't imagine anyone who's interested in appellate courts not logging on every day.
Those who choose to read "How Appealing" on paper should be aware that the links don't work quite as well as they often do online. Thanks, Professor Hellman, for your very kind words and, far more importantly, for all of the excellent work you have been doing to ensure the continued excellence of our nation's system of appellate justice.
Posted at 23:53 by Howard Bashman



TWO OTHER BLOGS THAT ARE WORTH A VISIT: I have a few other things to discuss with you in the remaining moments of tonight, but first -- two other blogs that are well worth a visit. The first is called "Deadly Mantis," a blog that describes itself as the "[d]aily musings of several recent Harvard grads as they adjust to unemployment and the harsh realities of life without ethernet connections." Just yesterday blogger Noah Snyder wrote there: "I read the Volokh Conspiracy daily and with the possible exception of How Appealing it's my favorite weblog." Thanks for that kind compliment.

Another blog that deserves far more visitors is "Sua Sponte." The blogger in residence there is on the verge of beginning law school in just over one month from now, and her skill as a writer should prove to be a great help when it comes time to fill out the blue composition books at final exam time at the end of each semester. Indeed, if her email address were more readily apparent, I might have written her a note with a few private thoughts that I'm not about to share here. But, since it's not, I'll simply have to wait for her to contact me.
Posted at 23:28 by Howard Bashman



IMPROVING THE TECHNOLOGY OF "HOW APPEALING": In the past week or so several emails have arrived asking what software I use to collect the information on display at this blog. If only it were so easy. The tools that I use are my brain and a live Internet connection, with an assist every now and then from kind folks in the know who send along an email drawing my attention to news or a new decision of note.

But it has just gotten a bit easier for you to enjoy the cornucopia of links that "How Appealing" provides. Today I have installed a box that you can check, found on the left hand column of this page just below the active link to my email address, that if checked will cause the links on this page to open in a new window. Enjoy!
Posted at 17:07 by Howard Bashman



Friday, July 12, 2002
GOING TO GREAT LENGTHS TO SEE THAT JUSTICE IS DONE: The U.S. Court of Appeals for the Eleventh Circuit today affirmed the conviction and sentence of a criminal defendant whom DEA agents apprehended in Ecuador and brought to the Southern District of Florida for trial on charges of conspiring to murder two DEA agents working in the nation of Colombia. Among the defendant's arguments on appeal were that his indictment should be dismissed because the circumstances of his arrest violated both the Vienna Convention on Consular Relations and the International Covenant on Civil and Political Rights.
Posted at 22:47 by Howard Bashman



BLAME THE MESSENGER?: James Bowman, writing for The New Criterion, tries to blame several rulings with which he disagrees on the role of courts in this nation. You can access his essay here.

My views: Whether our society has assigned a proper role to courts when it comes to resolving the most important and most intractable issues of the day is quite an interesting question, one that I could probably write a medium-sized book about. Unfortunately, Bowman's treatment of this issue strikes me as too glib, and too incomplete, to be of much use. Neither the Ninth Circuit in the Pledge of Allegiance case, nor Judge Rakoff in the case presenting the question whether the federal death penalty should be struck down as unconstitutional due to its potential to cause the execution of innocents, had the option of resolving the suit by responding "Sorry, this Court isn't going to decide that issue." How the role of courts got to be what it is today, whether other possible alternatives would be preferable, and, if so, understanding what would be involved to enact an alternate system are complicated questions. Bowman's essay, in my view, doesn't even come close to providing satisfactory answers to any of these questions.
Posted at 22:17 by Howard Bashman



FIFTH CIRCUIT OVERTURNS CONVICTION OF FORMER DALLAS, TEXAS COUNCILMAN ON CHARGES OF CONSPIRACY AND BRIBERY IN EXTRAORDINARY DECISION: A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in a decision that sparked three different opinions -- none of which entirely agreed with the others (causing a "tripartite fractionation" in the words of the lead opinion) -- overturned the conviction of a former Dallas, Texas councilman on charges of conspiracy and bribery. The court voted 2-1 to allow a retrial. In dissent on that issue, Circuit Judge Jerry E. Smith wrote:
I would reverse the conviction and render a judgment of dismissal with prejudice, thereby precluding a retrial of defendant Albert Lipscomb. Accordingly, I respectfully dissent from the contrary result reached by Judge Wiener's opinion and Judge Duhe's partial concurrence, which is to subject this seventy-seven-year-old defendant--who has already served more than half of his approximately three and one-half-year sentence of incarceration waiting for his appeal to be decided--to a new trial under a statute that has no application to him.

Two of the three judges on this panel are of the view that Lipscomb properly raised the issue of whether 18 U.S.C. sec. 666 is unconstitutional as applied to him. Nonetheless, we fail to decide that issue because one of the judges declines to address it, leaving the other two judges evenly split on the question. If we were to address it, we should easily conclude that Congress has no authority to criminalize Lipscomb's conduct, and the government had no authority to subject him to a first trial, let alone a second one.
The Dallas Morning News offers this report on the ruling.
Posted at 22:04 by Howard Bashman



TODAY'S PRISCILLA OWEN NEWS: Today's edition of The Dallas Morning News contains this article about the anticipated battle to confirm Fifth Circuit nominee, and current Supreme Court of Texas Justice, Priscilla R. Owen. Thanks to Ben Domenech for alerting me through his site to this article.
Posted at 21:52 by Howard Bashman



"COMMERCIAL PURPOSE" DOES NOT NECESSARILY MEAN "FOR PROFIT": The Supreme Court of California ruled yesterday, in a child pornography case that involved a most distressing set of facts, that a defendant can receive a lengthier sentence for having produced child pornography for a "commercial purpose" even if he only intended to trade it for other pictures, rather than sell it for money. This decision, drawn to my attention by GrepLaw, seems obviously correct. You can access the court's ruling here.
Posted at 21:32 by Howard Bashman



SHAPE OF THE PENTAGON UNCONSTITUTIONAL?: According to this Reuters report, the hackers who took over USA Today's Web page briefly late last night posted among their fake news stories one stating that the U.S. Supreme Court had declared the shape of the Pentagon building unconstitutional. The obvious tip-off to the falsity of that ruling is that the Supreme Court only delivers decisions of that magnitude between early October and late June.

Update: Sorry, Reuters, but it looks like your report contains a rather significant error. Both this photo of the hacked Web page and this article from MSNBC make clear that the hackers said that the Ninth Circuit, not the U.S. Supreme Court, declared the shape of the Pentagon building unconstitutional. Of course, because the Pentagon is situated within the geographical jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, while the Ninth Circuit covers the western United States, this "joke" still doesn't quite make sense.
Posted at 21:29 by Howard Bashman



THANK YOU BLOGGER for starting to work again. The posts below were made at the times noted but only became visible now.
Posted at 21:22 by Howard Bashman



TODAY'S NINTH CIRCUIT RULING ON CHURCH v. STATE: How many Church against State cases can come before the U.S. Court of Appeals for the Ninth Circuit? Plenty, it seems. In today's installment, the court decided an appeal brought by a member of the Jehovah's Witnesses who claimed that the Washington State Patrol had constructively discharged him from employment because of his religious beliefs. More specifically, the plaintiff claimed that his religious beliefs prevented him from saluting the flag or taking an oath of allegiance to any government. (Sounds vaguely familiar, doesn't it?)

But, in today's decision, a divided Ninth Circuit panel ruled 2-1 that the plaintiff's claims were without merit because he had failed to establish that a reasonable person in his position would have felt compelled to resign when he did, without further pursuing the possibility of accommodations from the State Patrol. Ninth Circuit Judge Richard C. Tallman wrote the majority opinion, in which Senior Fifth Circuit Judge Thomas M. Reavley joined. Senior Ninth Circuit Judge Betty B. Fletcher dissented. (Ironically, Judge Tallman filled the vacancy created on the Ninth Circuit when Judge Fletcher took senior status; and, my recollection is that Judge Fletcher took senior status when some Senators demanded that action before they would agree to confirm her son, Circuit Judge William A. Fletcher, to the Ninth Circuit.)
Posted at 16:23 by Howard Bashman



IN DIVORCE SETTLEMENTS, THE LOSER WINS: So argues Dahlia Lithwick, in her essay posted today on Slate about the Hanover/Giuliani divorce settlement. Didn't know that Ms. Lithwick had a "prior career with a fancy divorce firm."
Posted at 16:09 by Howard Bashman



KANSAS PRISON RECORDS CASE: The Supreme Court of Kansas ruled today (click here for the opinion) that newspapers have the right to access and publish state correctional records that reveal criminal charges pending against parolees.
Posted at 15:26 by Howard Bashman



THE AMERICAN TALIBANS IN THE NEWS: Today the U.S. Court of Appeals for the Fourth Circuit reversed and remanded a federal district court order that required the U.S. military to allow a federal public defender to meet with Yaser Esam Hamdi, known also as the second American Taliban. Hamdi is currently in military custody in the Norfolk (Virginia) Naval Station Brig. You can access the court's ruling here. Although the appellate court holds that the trial court acted too quickly in issuing its order, the appellate court also refuses to embrace in full the federal government's arguments on appeal:
The government urges us not only to reverse and remand the June 11 order, but in the alternative to reach further and dismiss the instant petition in its entirety. In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such." The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant -- that its determinations on this score are the first and final word.

Any dismissal of the petition at this point would be as premature as the district court's June 11 order. In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so. Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate.
FindLaw has now posted the opinion issued yesterday by federal district judge T.S. Ellis, III providing the reasons for denying the dismissal and transfer of venue motions filed on behalf of the so-called first American Taliban, John Phillip Walker Lindh.

Update: You can access Eugene Volokh's thoughts on the Fourth Circuit's ruling in Hamdi at this link.
Posted at 14:25 by Howard Bashman



FOXNEWS: "How Appealing" has just earned its first link on the FOXNews channel Web site courtesy of blogger Joanne Jacobs. I know that FOXNews is channel seventy-something on my home cable t.v. system, so this is pretty cool.
Posted at 12:30 by Howard Bashman



A BIT TOO CONTROVERSIAL: An order that U.S. District Judge Leonie M. Brinkema issued yesterday in the case of USA v. Zacarias Moussaoui explains that no medium to large law firm was willing to represent that defendant in place of the federal public defender's office. (See pages 4 and 5 of the order.) Why am I not surprised?
Posted at 10:27 by Howard Bashman



WHILE THE ONION IS ON TEMPORARY HIATUS: The State of Florida has charged O.J. Simpson's ex-girlfriend in connection with the starvation death of her pet cat. Unlike in a recent Pennsylvania case, no pet visitation issues appear to have been involved. And here's the story of a couple who were married yesterday on 7/11 at 7:11 in a 7-Eleven.
Posted at 10:03 by Howard Bashman



LOOK WHO'S BLUSHING NOW: In response to my kind -- but especially well deserved -- post about her the other day, Slate Senior Editor Dahlia Lithwick wrote back to say that maybe I would recognize her on the street after all, because she'd be the one "blushing furiously" in response to my compliments. Well, sometimes even the author of "How Appealing" gets to share that reaction.

Last night Geitner Simmons -- a writer far too talented to be giving away his commentary -- wrote on his fine blog (see final entry for Thursday, July 11, 2002, because his permalinks aren't working) that my "hard work and vision have made How Appealing a stellar contribution to the blogosphere." Also, Peter Sean Bradley of the very interesting Lex Communis blog just can't seem to stop singing the praises of "How Appealing" -- not that there's anything wrong with that. See his post of July 11, 2002 at 2:41 p.m. (At least the permalinks of us "Blogger Pro" users are working.) Peter Sean's post is also notable because it explains what "MoFo" means to us lawyers.
Posted at 08:18 by Howard Bashman



DEBATING FREE SPEECH FOR JUDGES: Whose views do you find to be more compelling, hers or mine?
Posted at 00:34 by Howard Bashman



NEW JERSEY SUPREME COURT UPHOLDS CONSTITUTIONALITY OF THAT STATE'S SEXUALLY VIOLENT PREDATOR ACT: You can access the Court's two rulings, issued yesterday, here and here.
Posted at 00:30 by Howard Bashman



Thursday, July 11, 2002
MINNESOTA SUPREME COURT REFUSES TO ENFORCE ALABAMA INTERNET DEFAMATION JUDGMENT: Thanks to Oklahoma City University School of Law Assistant Professor Chad Oldfather for directing my attention to an interesting decision handed down today by the Supreme Court of Minnesota. Oldfather probably took special interest in the fact that Minnesota's highest court decided to follow the test the U.S. Court of Appeals for the Third Circuit announced for determining whether personal jurisdiction is proper in a foreign forum in a tort case, because he (like me) is a former law clerk to a Third Circuit judge. Chad only recently made the jump to academia from private practice at a large firm where the first part of his email address had been "coldfather" -- a term that the children of the recently-deceased Splendid Splinter have been heard to invoke in recent days.

[Editor's Note: Ed.: So now you're employing that KausFiles affectation of pretending to have an editor? HJB: Umm, I wasn't trying to do that at all. But, anyway, you rang? Ed.: Yes. Doesn't this posting set an unenviable "How Appealing" record for the lengthiest, most circuitous attempt at humor with the least actual payback in funniness? HJB: Perhaps, but so many of the ingredients that make the humor of "How Appealing" what it is were present, such as making fun of someone's name and referring to important, but not directly relevant, current events. Ed.: Thanks for clearing that up. HJB: No problem.]
Posted at 23:53 by Howard Bashman



THE ENTIRE PLEDGE OF ALLEGIANCE CASE IS A FRAUD: So reports the Associated Press tonight, in an article you can access here. This ought to give the judges of the U.S. Court of Appeals for the Ninth Circuit something to talk about at their judicial conference scheduled for next week.

Update: Thanks to InstaPundit for mentioning this posting. The point I think Glenn may have missed is that while plaintiff Newdow is the biological father of the girl whose rights are at issue, the girl's mother (named Sandra Banning) -- whom Newdow never married -- has full custody of the girl and, like her daughter, doesn't mind that the daughter recites the pledge. I simply don't see how a non-custodial father has the right to object to his daughter's having to say the pledge if neither the daughter nor the mother, who has full custody, has any objection.

If Newdow lacked standing to press the issue that the Ninth Circuit addressed in his appeal, then the Ninth Circuit's decision would need to be set aside. Of course, the Ninth Circuit would be free to hand down the same ruling in the next appeal to present the question if that next appeal involved a parent who had standing. This apparently overlooked issue of standing may explain why, as mentioned in an earlier posting here, Newdow wasn't at all interested in the Ninth Circuit's offer of cost-free court-appointed counsel to represent him in the appeal. The Ninth Circuit's opinion contains no mention of the fact that the girl's mother has full custody of Newdow's daughter or that Newdow never was married to the mother of his daughter.

Jason Hoppin, via law.com, has even more details in his article that you can access here. And now The Los Angeles Times checks in with this report. And here's the profile of Newdow that The New York Times ran on July 1, 2002.

What's quite interesting is that a group of home-schooled bloggers appears to have broken this story way back on July 1, 2002, and the popular press is just catching up to it now. (See here, here, and here for more details.)
Posted at 21:54 by Howard Bashman



ADDITIONAL COUNTER: Not only did my Bravenet hit counter disappear sometime early this afternoon, but so did the Bravenet hit counter of every other blogger who had been using one. Moreover, the entire Bravenet site is currently off-line. Bravenet has been known to go on the blink from time to time in the past, but I've never experienced an outage of this duration. As a result, just a few minutes ago I added a second counter through Site Meter. Here's hoping that Bravenet makes a speedy return, as "How Appealing" has grown to know and love its counter. Site Meter, by contrast, works a bit differently and will take some getting used to. For those of you seeking something more substantial than a discussion of this site's visit counter, do not despair. More traditional blogging will resume shortly.
Posted at 21:42 by Howard Bashman



NOT STANDING BY: As I mentioned here last night, the U.S. Supreme Court's recent ruling in Ring v. Arizona, No. 01-488 (U.S. June 24, 2002), may allow Zacarias Moussaoui to avoid the death penalty even if convicted. FindLaw has now posted online the supplemental brief that Moussaoui's standby counsel filed yesterday arguing the point, and you can access that brief here.
Posted at 13:43 by Howard Bashman



WILENTZ vs. SCALIA: Guest commentator, and George Mason University School of Law Associate Professor, Peter Berkowitz, writing for National Review Online, today makes a very compelling argument for the proposition that Princeton University historian Sean Wilentz is probably not the best person to select to vilify Justice Antonin Scalia.
Posted at 13:34 by Howard Bashman



NOW ONLINE: The original text of my July 2002 Legal Intelligencer column, including case citations, is now available online at my law firm's Web site at this link. This installment of my monthly appellate column addresses how both the U.S. Court of Appeals for the Third Circuit and the Supreme Court of Pennsylvania fared in the U.S. Supreme Court in the 2001 Term.
Posted at 13:26 by Howard Bashman



SCHOLARS AND SCRIBES AT THE HERITAGE FOUNDATION: Thanks to Charles Lane, who covers the U.S. Supreme Court for The Washington Post, for his phone call yesterday pointing me to The Heritage Foundation's Web site. Chuck and an equally impressive group of scholars and scribes spoke on Tuesday at a Heritage event that reviewed the Supreme Court's 2001 Term. Who else participated? Ken Starr, Edwin Meese III, Akhil Amar, Paul Rosenzweig, and Jeffrey Rosen, to name just a few (as they say). You can access an audio/video stream of the event at this link (Real Player required).
Posted at 09:28 by Howard Bashman



FIRST HISPANIC SUPREME COURT JUSTICE: As "How Appealing" first noted yesterday, Florida Governor Jeb Bush has appointed the first Hispanic Justice ever to serve on the Supreme Court of Florida. News accounts that appear in today's Miami Herald (click here) and St. Petersburg Times (click here) both refer to a letter the Justice-to-be wrote to the Miami Herald in 1993 to defend anti-abortion protesters in which he asserted: "Abortions kill children." While such a statement would no doubt be put into the spotlight if legislative approval of the nominee were required, or if Justices were selected through open public elections, in Florida the governor has the unfettered right to place onto the State's Supreme Court any of the candidates whose names appeared on the list approved by that State's judicial nominating commission. Click here or here for a description of Florida's method of choosing its Supreme Court Justices.
Posted at 09:07 by Howard Bashman



IDIOT EYEWITNESSES: Associate Justice William W. Bedsworth of the California Court of Appeal, Fourth District, Division Three, in Santa Ana, California, is quite a funny guy. In the latest installment of his online column (which you can access here), he addresses the problem of the idiot eyewitness, with a discussion of pygmy hippos and a jailbreaking convicted murderer from Tennessee thrown in for good measure. Thanks to law blogger Denise Howell for the link.
Posted at 08:51 by Howard Bashman



LAZARUS ON NEWDOW: Edward Lazarus -- who some of us will never forgive for having written a tell-all book providing his account of what happened behind the scenes during his U.S. Supreme Court clerkship -- today has an interesting column on FindLaw that comes to the U.S. Court of Appeals for the Ninth Circuit's defense in the course of addressing whether the Supreme Court's frequent disagreement with the Ninth Circuit demonstrates substandard performance by that court of appeals.
Posted at 08:42 by Howard Bashman



GOTTA LOVITT: Here's hoping she gets to argue in the U.S. Supreme Court this fall. As an added bonus, this same law.com article really hits the nail on the head concerning why it is important to have top notch appellate lawyers near where the action is, rather than exclusively tucked away in our nation's capital.
Posted at 00:40 by Howard Bashman



2989: Thanks to the ever growing popularity of this blog, and to a very kind link from InstaPundit, yesterday this blog had more page visits than on any other day in the two months and four days of its existence. The counter was spinning like crazy and recorded a total of two thousand nine hundred and eighty-nine page visits in that twenty-four hour period. Wow!
Posted at 00:28 by Howard Bashman



IN THURSDAY'S NEWSPAPERS: An editorial in The Washington Post agrees with me that the U.S. Supreme Court may have recently given Zacarias Moussaoui valid grounds to challenge imposition of the federal death penalty in the prosecution against him. In The New York Times, columnist Bob Herbert manages to take a gratuitous swipe at Justices Scalia and Thomas.
Posted at 00:20 by Howard Bashman



Wednesday, July 10, 2002
VIEWER MAIL: Received the following email today from a very talented young man who not too long ago completed a clerkship for a highly respected federal appellate judge:
After receiving plaudits from Mauro, Lane and others, I'm sure receiving kudos from a mere associate at a large New York law firm pales in comparison. But I thought I'd drop a note to tell you that I read your blog daily (despite the fact that I'm on pace to bill well over 3,000 hours this year), and am impressed by your analysis. Even more impressive is that you knew the title of Gerardo's breakthrough album (Mo' Ritmo)--given that most people still mistakenly believe that his name is "Rico Suave."

P.S. So who do you think Bush (W., not Jeb) will appoint to the Supreme Court (the U.S., not Florida)?
Something about this email makes me want to answer "Fifth Circuit Judge Emilio M. Garza," but in truth I don't have the slightest idea right now.
Posted at 23:56 by Howard Bashman



SOME NEWS FROM THE AP: 1. The U.S. Supreme Court has refused to set aside the Florida Supreme Court's stay of two executions, a stay the Florida court granted to consider the constitutionality of Florida's method of imposing the death penalty in light of a recent U.S. Supreme Court ruling that requires the jury, rather than the judge, to find all facts necessary to the imposition of a death sentence. The Associated Press offers this report.

2. Relying on the same U.S. Supreme Court ruling, Zacarias Moussaoui's stand-by counsel has filed a motion asserting that his client can't receive the death penalty because the federal death penalty law suffers from a related defect. See this AP report. Unlike the crackpot arguments that Moussaoui has been raising on his own, this one may have some substance to it.

3. The U.S. Court of Appeals for the Ninth Circuit heard oral argument today in an appeal that seeks to challenge the detention of approximately 600 Afghan war prisoners being held at Guantanamo Bay Naval Base on Cuba. A California-based federal district court had dismissed the suit on various grounds, including lack of jurisdiction over the detainees. You can access the AP's report on the oral argument at this link. The Ninth Circuit's Web site reveals that the panel assigned to decide the appeal consists of Circuit Judges Noonan, Wardlaw, and Berzon. Although the Ninth Circuit often allows C-SPAN to televise that court's oral arguments, this panel denied a specific request from C-SPAN to televise today's argument.

4. Senate Republicans and Democrats may have reached an agreement that would allow for some of President Bush's judicial nominations that have cleared the Senate Judiciary Committee to come before the full Senate for a vote. The AP has this report. (Update: Over at OpinionJournal, John Fund's Political Diary is all over this story on Thursday, criticizing Senator John McCain for tying up the Senate's confirmation of federal judges.)

5. Finally, a federal district judge in Fresno, California has refused to dismiss the defamation suit that Gary Condit's wife filed against The National Enquirer, the AP reports.
Posted at 23:53 by Howard Bashman



OFF TO PRISON, YOU SHOPAHOLIC: So ruled the U.S. Court of Appeals for the Seventh Circuit today in the case of a woman with compulsive shopping disorder who bilked her employer of more than $240,000 to pay the bills.
Posted at 17:17 by Howard Bashman



BUSH TODAY NOMINATES FIRST HISPANIC TO SUPREME COURT: Jeb Bush, that is, to the Supreme Court of Florida. The Associated Press has this report.
Posted at 12:15 by Howard Bashman



DORF ON RAKOFF: (What, you were expecting golf?) Columbia Law School Professor Michael C. Dorf has a very interesting essay today on FindLaw discussing Federal District Judge Jed Rakoff's recent ruling that declared the federal death penalty unconstitutional. Why do I like Professor Dorf's essay? It strikes me as quite balanced and contains many of the same observations that I have previously made about Judge Rakoff's ruling.
Posted at 12:00 by Howard Bashman



JUST SAY NOLO: FindLaw has posted Judge Leonie M. Brinkema's order dated yesterday denying Zacarias Moussaoui's attempt to plead "no contest" while simultaneously maintaining his innocence.
Posted at 11:45 by Howard Bashman



PRISCILLA OWEN, PART TWO: As Jonathan Groner recently predicted (see my earlier post), a Texas-based coalition of labor, consumer and women's rights groups is now speaking out against the nomination of Texas Supreme Court Justice Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. Those of you willing to undergo the rather intrusive registration process required by The Dallas Morning News can access this report (or you can simply access this AP report courtesy of The New York Times).
Posted at 09:00 by Howard Bashman



ASK QUESTIONS LATER?: The Associated Press is reporting that the State of Florida has petitioned the U.S. Supreme Court to set aside an order of the Supreme Court of Florida staying two executions. The Florida Supreme Court issued its stay to study the impact of a very recent U.S. Supreme Court ruling on how Florida courts determined whether the death penalty would be imposed. The Los Angeles Times is also on the story, reporting on one Florida death row inmate's last meal that wasn't.
Posted at 08:39 by Howard Bashman



IN TODAY'S NEW YORK TIMES: Wednesday's edition of The New York Times contains several interesting items: an op-ed by former U.S. Solicitor General Seth Waxman arguing that free speech and campaign reform don't conflict; some rather noteworthy letters to the editor in response to the recent op-ed entitled "From Justice Scalia, a Chilling Vision of Religion's Authority in America"; a report on Governor James E. McGreevey's first nomination to the Supreme Court of New Jersey; and reporter Adam Litpak's article on "taking the Fifth" before Congress.
Posted at 00:44 by Howard Bashman



DuPONT ON DEATH PENALTY: Former Delaware Governor Pete DuPont has some harsh words for Federal District Judge Jed Rakoff's recent decision declaring the federal death penalty unconstitutional. (See my prior posts on this ruling here, here, and here.)
Posted at 00:23 by Howard Bashman



Tuesday, July 09, 2002
TONY MAURO ON "HOW APPEALING": Tony Mauro, who covers the U.S. Supreme Court for law.com and who formerly covered the Court for USA Today, has for years provided some of the best available coverage of the Court, its inner workings, and its oral arguments and decisions. He also has the distinction of being the only U.S. Supreme Court correspondent deemed worthy of public personal chastisement by Justice Antonin Scalia (see here for a full report).

Today I received the following email from Mr. Mauro:
Subject: More fan mail

You may be tired of the kudos by now, but I too am reading your blog religiously now and find it very insightful, useful and enjoyable. I'd actually like to write about what you do later this summer, so would like to talk to you at some point (unless you discourage that kind of story.) Thanks, and keep up the great work.
Far be it from me to declare myself tired of the kudos -- by some estimations there are at least three or four Supreme Court correspondents from major news outlets who have yet to find a way to check in by email (not that anyone's counting!). And if he thinks that this blog is worthy of mention in one of his fine news reports, who am I to disagree. So, yes, I certainly will talk with you and might even try to persuade you to write out some questions so that I can put into print responses that will be so much easier for you to quote in an article. Thank you, Tony, for your extraordinarily kind email, and it is truly wonderful to have you among this site's many readers.
Posted at 23:52 by Howard Bashman



SCHOOLCHILDREN CAN'T BE FORCED TO SPEAK OF JUDGE EASTERBROOK EITHER: Okay, maybe it's a slight stretch to refer to Seventh Circuit Judge Frank H. Easterbrook as a legal deity, but today he issued another brilliantly reasoned, and superbly written, decision. The case involved a Chicago police officer named Hampton who, of all things, was arrested for cocaine possession after the police in another Illinois town found both the Chicago cop and four packages of cocaine in the front seat of a car. Hampton was then convicted of cocaine possession in state court.

A federal district judge had granted Hampton's petition for a writ of habeas corpus after finding that the search of the car violated the Fourth Amendment. In his opinion today for a unanimous three-judge panel, Judge Easterbrook reversed, explaining that Fourth Amendment violations simply aren't cognizable on habeas review. And, because Hampton had a fair opportunity to present his Fourth Amendment arguments to the state courts of Illinois (which, admittedly, botched the result), he was stuck with his conviction. Much of the decision considered (and then rejected) Hampton's contention that the state appellate courts failed to give his Fourth Amendment arguments fair consideration:
So was there any reason to suppose that in Hampton's case the state's judges had their minds closed and were insensible to arguments based on the facts or the Supreme Court's decisions? Hampton concedes that he had (and used) an unfettered opportunity to develop the facts and present his legal arguments. He concedes that the state trial and appellate judges fairly summarized the facts. The district judge upbraided the state court for not citing Brown v. Texas, 443 U.S. 47 (1979), a decision that in the district judge's view demonstrates the search's unconstitutionality, and it took the omission as a sign that the state judges had not been paying attention to Hampton's argument or were wilfully blind to applicable law. Problem: Hampton had not cited Brown in his own appellate briefs. It is awfully hard to accuse any court of depriving a litigant of full and fair consideration, when its only sin is failing to find, through independent research, an opinion that neither side cited in the briefs! So too with the district judge's conclusion that the state tribunal relied on the wrong section of LaFave's treatise. None of the appellate briefs had cited LaFave's work or the Model Code of Pre-Arraignment Procedure. That the judges did some research beyond the boundaries set by the briefs shows industry rather than the sort of indolence that might deprive the parties of a fair hearing. And if, as the district judge concluded, this independent research was faulty, that's the sort of error that Stone puts off limits as the basis of collateral relief. Debate about which section of a legal treatise is the right point of departure is sport for judges, but it holds out no prospect of deterrence through application of the exclusionary rule. What message would be sent to the Maywood police by a writ of habeas corpus so long after March 1996, when they ordered Hampton to get out of Polk's car? It is hard to see how it could improve compliance with the fourth amendment.

At oral argument Hampton's counsel (not the lawyer who represented him in state court) explained that his predecessor had not cited Brown because it became relevant only in light of a novel approach taken by the state judges. The court's rationale, counsel contended, was the result of independent research that went wrong, and according to counsel the court's very act of striking out on its own deprived Hampton of a full and fair opportunity to litigate. This would make a virtue of mechanical jurisprudence: a court that trudged through the briefs would be safe under Stone's umbrella, but a court that thought the briefs inadequate and tried to think independently would invite federal intervention to correct any error. That can't be right. As we discussed above, it is the sleepwalking judge, not the diligent one, who deprives the litigant of the personal right to careful, individual consideration.

Any time a judge does independent research there is a risk of error, but judges with some initiative probably err at lower rates than judges who naively believe that the briefs cover everything worth considering. Courts frequently decide cases on lines of reasoning that can't be found in the briefs. There is no federal entitlement to have a case decided strictly on the basis of precedent cited to the tribunal. See Elder v. Holloway, 510 U.S. 510 (1994). If there were, Hampton would be among the losers -- for the Supreme Court extended the exclusionary rule to the states in Mapp v. Ohio, 367 U.S. 643 (1961), a case in which that possibility was raised by the Justices themselves, not by Mapp. Can Hampton really mean that by injecting a new legal issue the Justices deprived Ohio of a full and fair opportunity to litigate? The Supreme Court is the end of the line, so maybe Ohio did have a beef -- more so than Hampton, who still had three arrows in his quiver after the appellate court's decision. He filed a petition for rehearing, sought leave to appeal in the Supreme Court of Illinois, and was entitled to file a petition for certiorari in the Supreme Court of the United States. These afforded ample opportunities to point out any errors in the appellate court's independent research.
The Supreme Court's decision in Elder v. Holloway is well worth a look. In dissenting from the Ninth Circuit's refusal to take that case en banc, Circuit Judge Alex Kozinski wrote:
It is not every day that one witnesses the birth of a totally new legal doctrine. And with good reason. Established legal principles, honed over decades -- sometimes centuries -- generally have much experience and wisdom behind them. Monumental change should be made only for compelling reasons and after careful consideration of all foreseeable consequences.

Despite the opinion's modest language, the panel here has taken quite an extraordinary step. Simply stated, the panel has held that in raising a pure question of law a party may rely on appeal only on those authorities which it cited to the district court. A court of appeals, in turn, must ignore its own (and the Supreme Court's) controlling case law if it was not cited to the court below. The panel reaches this result by adding a new term to the argot of jurisprudence: "legal facts." The term is as self-contradictory and nonsensical as the doctrine it supports. Because we can ill afford to maintain this precedent as the law of this circuit, I respectfully dissent from the court's refusal to take this case en banc.
Thanks, Judge Easterbrook, for giving us all something substantial to think about.
Posted at 23:29 by Howard Bashman



WEB LIBEL APPEAL IN GEORGIA: The Supreme Court of Georgia (what a nifty motto the court has) today heard oral argument in an appeal that involves claims of libel involving the Internet.
Posted at 23:06 by Howard Bashman



MORE ON THE MICHIGAN FREE SPEECH-SEXUAL HARASSMENT CASE: Today's edition of The Detroit News carried an op-ed by Wayne State University Law School Professor Kingsley R. Browne about an appeal pending in Michigan's intermediate state appellate court that pits a sexual harassment claim against a freedom of speech defense. (Thanks, Glenn, for the link.) "How Appealing," of course, has been tracking this story for quite some time. You can access the amicus brief that Professor Browne filed in the appeal at this link.
Posted at 22:51 by Howard Bashman



WHERE'S JULIE HILDEN? Why, today she's everywhere, with a lengthy essay on FindLaw and a short Explainer on Slate. A few of my blogging colleagues have uncritically recommended Julie's FindLaw essay (see here and here, for example), but I'm not as ready to jump onto that bandwagon.

In her FindLaw essay, Julie sets out to demonstrate that the 5-4 ruling in Republican Party of Minnesota v. White, No. 01-521 (U.S. June 27, 2002) -- the case in which the free speech rights of candidates for elected judicial office triumphed over a restrictive Minnesota regulation -- shows that the Supreme Court's ruling last year in Bush v. Gore, decided by precisely the same 5-4 split, wasn't an unprincipled exercise of judicial will. Now, first some background. As thorough readers of this blog are aware, I fully agree with the Court's ruling in White. And, allow me to say here for the first time -- without providing any reasoning whatsoever -- that I believe that Bush v. Gore also reached the correct result.

Nevertheless, what I do not see -- and what Julie's FindLaw essay entirely fails to persuade me to believe, despite her valiant efforts to the contrary -- is that the decision in White in any relevant respect provides insights into why the Justices voted as they did in Bush v. Gore. As Tom Goldstein's 2001 Term statistics show (they are available for free download at his law firm's Web site), the Court this year decided some twenty-one cases in whole or in part by a 5-4 vote, and in seven other of those twenty-one cases (for a total of eight, if you count White) the same five Justices that were in the majority in White were again in the majority. True, both White and Bush v. Gore involved elections conducted by a State, but beyond that most obvious of similarities the cases were completely dissimilar on the merits. So, Julie, your FindLaw essay has failed to persuade at least one reader. (Update: Better make that two readers; Law Professor Jeff Cooper isn't persuaded either.) Your Slate piece, however, I liked a lot.
Posted at 22:29 by Howard Bashman



IN CASE YOU MISSED IT: Alexander (Sasha) Volokh finally got around today to acknowledging his service on the Board of Editors of the Harvard Law Review. We would have expected nothing less. Which, of course, gives rise to the following question: Is it too soon to break out the lox and bagels and interview him for a federal appellate clerkship? Well, let's consult the plan. And, attention Third Circuit judges, Sasha's girlfriend attends college near Philadelphia, which gives you a chance to land this star appellate judicial law clerk attraction assuming, that is, he hasn't already been taken. (Update: Sasha writes to say that he hasn't already been taken, and, if the cartel holds up, he won't even be applying for a clerkship until a year from now.)
Posted at 22:10 by Howard Bashman



MO' RITMO: Slate has just posted an essay by Stanford Law School Professor Robert Weisberg on using the federal RICO law against the al Qaeda terror network. The essay's title? "RICO Suave," just in time for Gerardo's big comeback.
Posted at 17:10 by Howard Bashman



N.J. SUPREME COURT DENIES REVIEW IN INS DETAINEE CASE: The Associated Press is reporting that the Supreme Court of New Jersey has declined to review a decision of that State's intermediate appellate court holding that New Jersey's right to know law does not compel the release of the names of INS detainees who have been confined in county jails as a consequence of the federal government's terrorism investigation. You can access my previous posting on this subject, including a link to the intermediate appellate court's ruling, by clicking here.
Posted at 16:38 by Howard Bashman



SOME FIRST AMENDMENT FREE SPEECH/FREE PRESS NEWS: The U.S. Court of Appeals for the Sixth Circuit today set aside as an unlawful prior restraint a federal trial court's injunction that had prohibited a freelance journalist from disclosing information contained in the registration records of private security guards working at the site of an ongoing labor dispute. While the case was pending, the Ohio Department of Commerce agreed that it should not have released the records in question to the journalist. You can access the court's ruling at this link.
Posted at 15:38 by Howard Bashman



HELPING TO EASE THE POST-CLERKSHIP BLUES: Received a very kind email early this morning from a young lawyer whose U.S. Supreme Court clerkship has just wrapped-up:
Thank you for your excellent website. I recently finished a clerkship with [jurist's name deleted] and your site has allowed me to track down virtually everything I want to read about the Court's recent term. It's helped to ease the post-clerkship blues!
Glad to hear that you're making the most of this site.
Posted at 13:37 by Howard Bashman



NEW YORK'S HIGHEST COURT VACATES DEATH SENTENCE: The Court of Appeals of New York, that State's highest court, today set aside the imposition of the death penalty in the first death penalty case to reach that court in nearly twenty years. Of course, it wasn't until 1995 that New York's legislature reinstated the death penalty, which New York had abandoned in 1984. You can access the court's ruling at this link.
Posted at 13:30 by Howard Bashman



OVER AT THE NATIONAL JOURNAL: Last week The National Journal ran two items that discussed recent U.S. Supreme Court decisions. Stuart Taylor Jr. wrote that Congress is failing to hold its own when compared to the executive and judicial branches. And William Schneider wrote about how the Court seems to have its eye on the public opinion polls.
Posted at 11:54 by Howard Bashman



TED KOPPEL INTERVIEWS DAVID LETTERMAN: In the very early hours of this morning, ABC ran the premiere of Nightline UpClose. You can access the transcript of Ted Koppel's very interesting interview of David Letterman at this link.
Posted at 11:48 by Howard Bashman



WRONG TREE: A dog is not a child, the Superior Court of Pennsylvania ruled last Friday, and therefore a divorced husband has no right to a court order forcing his former wife to make the pet available for visitation or shared custody despite an agreement to that effect between the ex-husband and the ex-wife. You can access the court's ruling here.
Posted at 10:38 by Howard Bashman



FACT CHECKING: Over at National Review Online, James A. Cooley writes that he has discovered some factual inaccuracies in the U.S. Supreme Court's ruling that declared executing the mentally retarded to be unconstitutional. If I had to guess, the origin of these inaccuracies may trace back to a brief filed either by a party or an amicus in the case.
Posted at 09:59 by Howard Bashman



SHOUT OUT: A "How Appealing" shout out to Steven Waldman, who served as my editor-in-chief some years ago on The Columbia University Daily Spectator. His essay on the Supreme Court's religious school vouchers decision is now available on Slate.

Given that Slate loves bloggers -- and so many of my friends appear there (hello! Steve, Eugene, and Dahlia) -- I can't help but anticipate my debut on that fine site. I don't even require a ride on the corporate jet.

Perhaps a late September Breakfast Table with Dahlia in which we preview the upcoming 2002 Term's big cases. It could be a riveting, insightful but humorous, battle of the wits, one that I would graciously (some might say inevitably) lose. We could even work into the discussion reference to heavy metal bands such as Anthrax and, given the Court's ever burgeoning death penalty docket, Slayer. Sound interesting, anybody?
Posted at 08:35 by Howard Bashman



IN TODAY'S WASHINGTON POST: Tuesday's edition of The Washington Post contains an editorial that calls on the Justice Department to allow the two United States citizens who have been detained in military brigs on the charge of being enemy combatants to have access to lawyers.
Posted at 00:27 by Howard Bashman



Monday, July 08, 2002
NONPAREIL: Received an email tonight from the U.S. Supreme Court correspondent who has no equal when it comes to covering oral arguments at the Court. Here's a hint -- her name rhymes with Lahlia Dithwick. (What, you were expecting Dalter Wellinger?) Dahlia writes: "Am a big fan of your site." Ms. Lithwick's often irreverent coverage of U.S. Supreme Court oral arguments is chock full of insights that you will find nowhere else in the popular press. And she is simply so with it, and has such a good sense of humor/sarcasm, that you can't help but think of her as a longtime friend even though you'd have no chance of recognizing her if she walked past you on the street. So, Dahlia, thank you so much for your very kind email, and thank you even more for the exceptionally fine coverage of the Court that you have provided to the readers of Slate for quite some time.
Posted at 23:58 by Howard Bashman



JUDGE STEPHEN REINHARDT: The online version of The Weekly Standard reprises that publication's May 5, 1997 profile of Judge Stephen Reinhardt.
Posted at 22:09 by Howard Bashman



HARVEY BIRDMAN, ATTORNEY AT LAW, PART TWO: Here's the show's official site, with clips and character info.
Posted at 22:02 by Howard Bashman



FLORIDA SUPREME COURT DELAYS EXECUTIONS: The Associated Press is reporting that the Supreme Court of Florida has delayed two executions scheduled to occur this week to consider the impact of Ring v. Arizona, No. 01-488 (U.S. June 24, 2002), on capital sentences in Florida.
Posted at 14:52 by Howard Bashman



EXECUTING THE INNOCENT: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued an opinion that is likely to enrage further opponents of the death penalty. Here are the second and third paragraphs of Circuit Judge Kermit E. Bye's opinion:
Debate has intensified in recent years as Congress and the federal courts have limited access to the writ in reaction to increasing numbers of habeas petitions. The limitations include a confounding array of procedural impediments that prevent consideration of the merits of claims, as well as substantive barriers that establish modes of review utterly inhospitable to prisoners. Many barriers and impediments represent sound efforts to curb the groundswell of frivolous and duplicative habeas petitions. But the writ of habeas corpus is not a one-way path designed to defeat prisoners' claims. Rather, our habeas jurisprudence is a balancing act requiring careful attention to each of the important, yet often opposing, principles at stake. Even as we screen meritless petitions, therefore, we must take care not to shut the door to prisoners whose claims cause us to doubt the fairness of their convictions.

The present case suggests we may not yet have achieved the optimal balance. Darryl Burton's habeas petition depicts a troubling scenario. One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom. Burton was convicted on the strength of two eyewitness accounts. Since his trial and imprisonment, new evidence has come to light that shakes the limbs of the prosecution's case. One eyewitness has recanted and admitted perjury. The other eyewitness's veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime. A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton's claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent. Mindful of our obligation to apply the law, but with no small degree of reluctance, we deny Burton a writ.
You can access the Court's entire opinion at this link.

Admittedly, this defendant was only sentenced to serve the next seventy-five years of his life in prison without the possibility of parole, so this isn't technically a death penalty case. However, there is nothing in the panel's opinion to suggest that the result would have been different if the defendant had actually been sentenced to death, instead of being sentenced to remain imprisoned for seventy-five years until his eventual death.
Posted at 14:41 by Howard Bashman



SALON HAS AN ANIMATED CARTOON about the unintended consequences of the Ninth Circuit's Pledge of Allegiance ruling. The cartoon illustrates the major reason why I don't think the en banc Ninth Circuit will allow a circuit split to exist that cries out for U.S. Supreme Court review -- a fear that such review will leave the overall state of the law worse off (in the view of those deciding whether to grant en banc reconsideration) than it is today.
Posted at 13:16 by Howard Bashman



TRIPS FOR JUDGES: Last week "How Appealing" noted a Washington Times article which stated that "[t]wo liberal advocacy groups and the American Bar Association have been accused in court memos of colluding to write ethical rules regulating judicial travel that would have derailed one of President Bush's appeals court nominees." The nominee in question, according to the article, was D. Brooks Smith, who awaits confirmation to the U.S. Court of Appeals for the Third Circuit. In letters to the editor published in yesterday's Washington Times (see midway down the page), both the ABA and Community Rights Counsel denied the charges.
Posted at 12:50 by Howard Bashman



PLEDGING MORE FEDERAL JUDGES: Further proving that the Ninth Circuit's recent Pledge of Allegiance ruling is something of a judicial Rorschach test, another commentator looks at the ruling and sees the need to confirm more federal judicial nominees. "How Appealing" is all for more confirmations, but doesn't quite perceive the link between these two issues. Plus, dissenting Judge Fernandez didn't take senior status until after the Pledge case was argued and submitted.
Posted at 12:40 by Howard Bashman



DON'T SHORTCHANGE JOAN BISKUPIC: Say what you will about USA Today, but it always manages to have an excellent reporter assigned to the U.S. Supreme Court beat. Thus, be sure not to overlook Joan Biskupic's year-in-review article, which you can access here.
Posted at 12:32 by Howard Bashman



DAHLIA LITHWICK ON URINALYSIS: You can access her recent Slate piece at this link. And she knows who wrote Justice Breyer's concurring opinion. No, it wasn't Justice O'Connor, Professor Turley.
Posted at 12:28 by Howard Bashman



JUSTICE BREYER DISCLAIMS STATUS AS "ORACLE": And the Solicitor General's Office had a very good Term. All this and more in today's summary of recent U.S. Supreme Court developments from The Associated Press, which you can access here.
Posted at 12:22 by Howard Bashman



COMING SOON TO A NEWSSTAND NEAR YOU: In the brand new issue of The New Yorker, Hendrik Hertzberg offers this essay on the Pledge of Allegiance case. Monday's edition of The New York Times contains an op-ed that takes note of Justice Antonin Scalia's recent essay in First Things: A Journal of Religion and Public Life. I mentioned that essay in an earlier posting. Finally, in Monday's Washington Post, Charles Lane takes a look at several noteworthy cases on the U.S. Supreme Court's docket for the upcoming Term.
Posted at 00:51 by Howard Bashman



Sunday, July 07, 2002
WUNDERKIND: It's time once again to give major props to youthful (well, he is younger than me) U.S. Supreme Court phenom Thomas C. Goldstein. While I was away this holiday weekend, I received an email from Tom, who was writing to answer a question that I posed to him some two months ago here on this blog. Now, admittedly, I could be critical of the fact that it took Tom two months to answer my question, but I probably bear the large portion of the blame, as posting here is not the most direct way of communicating with Tom. Anyhow, he certainly did know the answer to my question, and there's no indication that he needed two months to figure it out or that he had to call someone at the Supreme Court to learn the information. In short, the term "VIDED" on the U.S. Supreme Court's docket entries simply means that a given filing was docketed in more than one case.

In the interests of full disclosure, Tom and I once worked together on a matter, and he had the wisdom to extract himself from the project before I did. He struck me then as quite smart and incredibly kind. Since then, he has become one of the nation's leading U.S. Supreme Court practitioners. His email led me to his law firm's Web site, which is quite a site to behold (although I think I may have found a typo when Tom's site makes mention of Harvard Law School Professor Laurence H. Tribe -- see if you agree).

Tom Goldstein has done with the U.S. Supreme Court what I believe I can and should be doing with the U.S. Court of Appeals for the Third Circuit and the state appellate courts of Pennsylvania. So, Tom, keep up the excellent work, and thanks for answering my question.
Posted at 23:50 by Howard Bashman



HOW TO GET LINKED ON "HOW APPEALING": The past few weeks have brought an unusually large number of emails from fellow bloggers who propose to "trade links" -- namely, if I agree to link to their blog they will agree to link to mine. Of all the possible strategies for how to get mentioned here or linked on the left hand column of this page, the "let's trade links" approach is the least likely to succeed. If you simply want to get mentioned here, which probably will cause a much greater one-time surge of traffic than getting your site's link added to the list on the left hand column of this page, you can read on and see what has caused me to link to other bloggers in the past. Chances are, if it worked for them it can work for you too.

It's a bit more difficult to get a "permanent" link on the left hand column of this page, because I'm trying to keep the number of those links to a manageable size. My most recent additions to that list led to a roughly equivalent number of deletions. The most effective ways to get added are: have a well-written site; have a voice that makes your site interesting and worth reading; come across as a real person; and use your real name unless you have some very persuasive reason why you cannot. My list of bloggers does not consist only of lawyer blogs or blogs with a public policy angle. Some of the blogs that I find most interesting are those that are simply fun to read, such as a. beam (whose story you must understand to truly appreciate), Tony Pierce (just a few more links to go to reach 100 -- and he's now running the bulls), and gummi. To bring your blog to my attention, feel free to send an email. Or, you can link to me on your blog and hope that I notice referrals from your site on my page visit counter stats.

This site owes much of its popularity to the gracious links of other bloggers, and to readers who enjoyed their visit here enough to return again and again. I would love nothing more than to link to other worthwhile sites. Just give me some reason more compelling than that you will link to me in return.
Posted at 23:34 by Howard Bashman



SLITHERING REPTILE: "How Appealing" today makes its debut on N.Z. Bear's Blogosphere Ecosystem as the highest-ranked new entry.
Posted at 23:17 by Howard Bashman



FREDDY RIEDENSCHNEIDER: If you like good movies, you must see "The Man Who Wasn't There," a 2001 Coen Brothers production that starred Billy Bob Thornton and Frances McDormand. The picture is an excellent work of film noir shot beautifully in black and white. For lawyers, though, one of the best reasons to see the film is the fine work of Tony Shalhoub, who plays criminal defense attorney Freddy Riedenschneider. If you see the film, which is now available on video and DVD, you will agree that Freddy Riedenschneider is one of the most interesting cinematic depictions of an attorney to emerge in quite some time.
Posted at 22:42 by Howard Bashman



CHIEF JUSTICE REHNQUIST, PLUS BORK v. STROSSEN: This week's installment of C-SPAN's fine program "America and the Courts" is truly worth a look. The U.S. Court of Appeals for the Fourth Circuit held its 2002 Judicial Conference in White Sulphur Springs, West Virginia. The conference began just as the U.S. Supreme Court's 2001 Term came to a close. On Saturday, June 29, 2002, Chief Justice Rehnquist spoke to the conference about a handful of significant decisions that, in his view, the press overlooked. The Chief Justice's remarks were followed by a panel discussion about the 2001 Term that included panelists Robert H. Bork, now a senior fellow at the American Enterprise Institute, and Nadine Strossen, president of the American Civil Liberties Union. Seeing Bork and Strossen discuss the Court's recent decisions was quite illuminating. You can access a video feed of the program at this link.
Posted at 22:30 by Howard Bashman



HARVEY BIRDMAN, ATTORNEY AT LAW: Okay, so it's probably no Beavis and Butt-Head, but tonight on the Cartoon Network is the premiere episode of "Harvey Birdman, Attorney at Law." (Sorry Denise, this is a fictional attorney who doesn't have a blog.) For more information, today's New York Times offers this report.
Posted at 22:13 by Howard Bashman



IN THIS WEEKEND'S NEWSPAPERS: The Washington Post, in an editorial that you can access here, praises the Rehnquist Court for its unpredictability and registers its preference for a judiciary with diverse views. An op-ed in the Post warns of the danger of being contemptuous toward judges. Another op-ed in the Post criticizes the Bush administration for claiming the power to decide alone and in secret whether Americans can be imprisoned indefinitely to protect against terrorism.

Over at The New York Times, Linda Greenhouse contrasts Justices Scalia and Breyer. And historian Arthur Schlesinger Jr. looks back to a time when patriotism wasn't religious.

The Los Angeles Times asks religious officials of various faiths about their views on the Pledge of Allegiance brouhaha. You can access their thoughts at this link.
Posted at 08:57 by Howard Bashman



UNGAGGING JUDICIAL CANDIDATES: On Friday, July 5th, the Philadelphia Inquirer ran this op-ed piece that joins me in praising the outcome of the U.S. Supreme Court's ruling that allows candidates for elected judicial office to conduct meaningful campaigns.
Posted at 08:37 by Howard Bashman



NEWS FROM ARKANSAS: By a vote of 5-2, the Supreme Court of Arkansas on Friday, July 5, 2002 affirmed the invalidation of that State's anti-sodomy laws in a suit brought by gay and lesbian citizens. You can access the court's opinion here.
Posted at 08:31 by Howard Bashman



WHAT'S THE FREQUENCY?: Friday, July 5, 2002 was just another day at work for some people. And no 2001 Term U.S. Supreme Court retrospective would be complete without the obligatory anthrax reference. Former U.S. Solicitor General and D.C. Circuit Judge Kenneth W. Starr takes this look back, published Friday, July 5th in The Wall Street Journal. Plus, he has a book about the Court due to be published in October. Dare I beg for an advance copy?
Posted at 08:22 by Howard Bashman



WELCOME TO MONTH NUMBER THREE: "How Appealing" now enters the third month of its existence. Thanks for making this site so popular so soon!
Posted at 08:17 by Howard Bashman



Thursday, July 04, 2002
SEE YOU SOON: Don't expect to see any more blogging here until Sunday, July 7th. I'm heading to Margate, New Jersey -- home of everyone's favorite oversized pachyderm, Lucy the Elephant -- for a couple of days. See you there, or on the boardwalk in neighboring Ocean City, New Jersey -- home of Johnson's Popcorn and Mack and Manco Pizza.
Posted at 15:20 by Howard Bashman



IN TODAY'S NEWSPAPERS: The Chairman of the House Judiciary Committee has indicated that the committee is interested in investigating the alleged procedural machinations behind the Sixth Circuit's en banc ruling in the University of Michigan Law School race-based admission preferences case. Today's New York Times runs this article. The Detroit Free Press broke this story two days ago, and you can read its report here. You can access my prior postings on this controversy here and here (the second of which also mentions a controversial Ninth Circuit en banc case).

George Washington University Law School Professor Jonathan Turley has an op-ed commentary in today's Los Angeles Times about the key role that Justice Sandra Day O'Connor often plays on the U.S. Supreme Court. Just last week Professor Turley misstated Justice O'Connor's role in the Court's drug-testing of school students decision, mistakenly crediting to her a vote and opinion that in fact belonged to Justice Stephen G. Breyer. Astonishingly, the professor's commentary today further perpetuates this error -- see its third paragraph. Would somebody please allow Professor Turley access to the Court's opinion in Board of Ed., Pottawatomie Cty.v. Earls, No. 01-332 (U.S. June 27, 2002)!
Posted at 09:42 by Howard Bashman



Here's hoping that you will have a thoughtful and happy 4th of July. And thanks for making yesterday this site's second largest traffic day ever.
Posted at 09:29 by Howard Bashman



Wednesday, July 03, 2002
FEDERAL APPELLATE CONFIRMATION WARS TO HEAT UP ONCE AGAIN: Jonathan Groner reports that the battle over Texas Supreme Court Justice Priscilla R. Owen's nomination to the U.S. Court of Appeals for the Fifth Circuit may be the most contentious since the Senate Judiciary Committee rejected the nomination of U.S. District Judge Charles Pickering Sr. to join that same appellate court.
Posted at 22:34 by Howard Bashman



THIRD CIRCUIT FARES QUITE WELL BEFORE U.S. SUPREME COURT IN 2001 TERM: My July 2002 appellate column, which will appear in the print edition of The Legal Intelligencer -- Philadelphia's daily newspaper for lawyers -- on Monday, July 8, 2002, is now available online. With this column I may have made the cross-over into "real news"; it appears the column will run on the front page of Monday's issue. And the online version provides just one more example of the refrain "authors don't write their own headlines."
Posted at 22:19 by Howard Bashman



SOMETIMES LAW PROFESSORS CAN SAY THE KINDEST THINGS: Law Professor Jeff Cooper blogs some extraordinarily kind remarks about "How Appealing" -- remarks for which I will forever be in his debt. You must really see it to believe it! And thanks also to Law Professor Eugene Volokh -- a longtime fan of "How Appealing" -- for his kind words today.
Posted at 19:13 by Howard Bashman



AP OFFERS MORE FROM JUDGE GOODWIN: The Associated Press this afternoon issued an article that contains more quotations from the interview an AP reporter conducted with Judge Alfred T. Goodwin on Monday of this week about Judge Goodwin's opinion in the Pledge of Allegiance case.
Posted at 16:24 by Howard Bashman



WOW: Welcome OpinionJournal readers. It's great to be mentioned in today's "Best of the Web"!
Posted at 15:09 by Howard Bashman



NYTIMES DIDN'T LIKE THE 2001 TERM: The New York Times today runs an editorial that criticizes the U.S. Supreme Court in the 2001 Term for "push[ing] the law rightward" time and again.

THIRD CIRCUIT DID LIKE THE 2001 TERM: The U.S. Court of Appeals for the Third Circuit, the federal appellate court in which I practice the most, fared fabulously well in the U.S. Supreme Court in the 2001 Term. The installment of my monthly appellate column to be published on Monday, July 8, 2002 in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will have all the details. When the text of that column hits the Web -- perhaps as early as tonight -- "How Appealing" will have the link.
Posted at 14:57 by Howard Bashman



ONLY ONE LAWYER HERE: Thanks to Overlawyered.com -- which is now entering its fourth year -- for its especially kind mention today of "How Appealing."
Posted at 00:44 by Howard Bashman



IN WEDNESDAY'S WASHINGTON POST: Charles Lane reports on Solicitor General Theodore B. Olson's uncommon clout in the war on terror.
Posted at 00:14 by Howard Bashman



Tuesday, July 02, 2002
WHAT LEGAL RULES WILL GOVERN DEFAMATORY CONTENT POSTED ONLINE?: The Court of Appeals of New York, that state's highest court, today issued this very sensible unanimous ruling that determines when the statute of limitations begins to run for defamatory content posted online. The decision should make most Web publishers quite happy.
Posted at 22:44 by Howard Bashman



WHAT THE NINTH CIRCUIT'S DOCKET REVEALS IN THE PLEDGE OF ALLEGIANCE CASE: The Ninth Circuit's online PACER docket (Pacer is an acronym that stands for "public access [to] court electronic records") reveals several interesting things.

First, it shows that plaintiff/appellant Michael A. Newdow identified himself as a member of the "First Amendment Church of True Science," which, of course, produces the acronym "FACTS." A Google search for that organization revealed this earlier article published on September 30, 1999 in The New Times Broward-Palm Beach about Mr. Newdow's original Pledge of Allegiance court challenge, which he filed in a Florida federal district court.

Second, the Ninth Circuit's docket reveals that the Ninth Circuit originally assigned Mr. Newdow's appeal to an oral screening panel for decision. According to the Ninth Circuit's internal operating procedures, an appeal is assigned to a screening panel for decision only if the case:
meet[s] all of the following criteria:

(1) The result is clear.

(2) The applicable law is established in the Ninth Circuit based on circuit or Supreme Court precedent.

The disposition normally will not require an opinion. After the Clerk assigns a case to the screening calendar, the Clerk's Office forwards the case materials to the staff attorneys. The staff attorneys then place each screening case on either an oral screening calendar or a written screening calendar.
The Ninth Circuit's internal rules further provide:
When a case is first assigned to the screening calendar, the Clerk's Office shall send a letter to all parties advising them that their case is being considered for submission without argument, and if they have any objections they should be submitted within 10 days. If objections are received, the Clerk's Office forwards them to the Staff Attorneys' office. Upon review of the objections, the staff attorneys may return the case to the Calendar Unit for reassignment to an oral argument calendar.
Although the designation "oral screening panel" may make it sound as though a case is going to receive oral argument, in fact what the term means is that a staff attorney employed by the Ninth Circuit will orally present to the assigned judges the proposed disposition of the appeal:
The staff attorneys shall prepare proposed memorandum dispositions for the cases that they place on the oral screening calendars. An authoring judge will be designated for each case presented to the oral screening panel, and the writing assignment will rotate among the three panel members.

The staff attorneys shall orally present the proposed dispositions to the screening panels at periodically scheduled sessions. After the staff attorneys have presented each case, the panel members discuss the proposed disposition and make any necessary revisions. If the three panel members unanimously agree with the disposition, the designated authoring judge shall direct the presenting attorney to certify the proposed disposition for filing pursuant to [a specified local rule].

Disposition of cases presented at the oral screening panels ordinarily will be by memorandum. However, in extraordinary circumstances, the panel may decide that a disposition should be published.
What is remarkable is that the Ninth Circuit originally assigned Mr. Newdow's appeal to the track reserved for easy, uncontroversial cases.

Third, the appellate court's docket reveals that Mr. Newdow objected to having his appeal assigned to an oral screening calendar. Instead, he demanded oral argument. The docket shows that Mr. Newdow's objections came before a three-judge Ninth Circuit panel consisting of Circuit Judges Michael Daly Hawkins, A. Wallace Tashima, and Ronald M. Gould. Given Mr. Newdow's objections, that three-judge panel entered an order assigning the case to the oral argument track. But, the panel's order also directed the Ninth Circuit's Clerk's Office to appoint an attorney to represent Mr. Newdow, who had been proceeding pro se (a Latin term that roughly translated means without a lawyer). The order also required the attorney to file a supplemental brief on Mr. Newdow's behalf. Mr. Newdow, who had attended law school, objected to the appointment of a lawyer, and the three-judge panel revoked the portion of its order that had directed the appointment of counsel. That this three-judge panel would order the appointment of counsel on Mr. Newdow's behalf could indicate the Ninth Circuit's reluctance to allow pro se litigants to deliver oral argument, and/or it could indicate that Mr. Newdow's appellate briefs were not of the quality that the court usually sees.

Fourth, the case was next assigned for oral argument in San Francisco, California on March 14, 2002 before the panel of Alfred T. Goodwin, Stephen Reinhardt, and Ferdinand F. Fernandez. And the rest, as they say, is history. Had the case remained on the non-argument calendar, or had Mr. Newdow not objected to being represented by an attorney appointed by the court, the appeal would in all likelihood have come before a panel composed of a different three judges.

I haven't seen any reporting of these procedural facts in the popular press to date, so you my readers may be among the first to learn of these matters.

In an entirely unrelated development, the Ninth Circuit is now being inundated with immigration appeals.
Posted at 22:07 by Howard Bashman



WAS THE ABA PLOTTING AGAINST D. BROOKS SMITH?: The Washington Times yesterday published an article reporting that the American Bar Association had been accused of attempting to thwart the confirmation of D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. The article states at its outset: "Two liberal advocacy groups and the American Bar Association have been accused in court memos of colluding to write ethical rules regulating judicial travel that would have derailed one of President Bush's appeals court nominees." I addressed the ABA's proposed ethics rule on corporate-sponsored judicial seminars in a recent post that you can access here.
Posted at 21:45 by Howard Bashman



STEP 1, DECLARE THE PLEDGE UNCONSTITUTIONAL; STEP 2, INSULT PRESIDENT BUSH: The Recorder, a legal newspaper in California, yesterday ran this interview with Ninth Circuit Judge Alfred T. Goodwin.
Posted at 13:45 by Howard Bashman



CONGRESS LOOKS AT NON-PRECEDENTIAL FEDERAL APPELLATE OPINIONS: The House Judiciary Committee last Thursday held a hearing on the use, and abuse, of non-precedential federal appellate opinions. (Link courtesy of Bag and Baggage.) While I question Congress's ability to regulate the manner in which the Judiciary decides appeals, I too have repeatedly criticized the use of non-precedential appellate opinions.
Posted at 12:19 by Howard Bashman



NEXT MONTH, THE NINTH CIRCUIT WILL GRAPPLE WITH "sex.com": So says Wired News, whose report you can access here.
Posted at 12:11 by Howard Bashman



WHILE INSTAPUNDIT IS ON VACATION: With InstaPundit currently on vacation, Patio Pundit picks up the slack by summarizing all of the many sites listed on InstaPundit's "Pure Bloggers" blogroll.
Posted at 11:25 by Howard Bashman



GO WEST, PART 2: The New York Times today editorializes that the Manhattan-based federal district judge who yesterday declared the federal death penalty unconstitutional might fit in comfortably on the U.S. Court of Appeals for the Ninth Circuit.
Posted at 08:11 by Howard Bashman



Monday, July 01, 2002
LINDA GREENHOUSE SUMS UP THE TERM: Her excellent summary appears in Tuesday's New York Times, and you can access it here.
Posted at 22:36 by Howard Bashman



LET THE RECRIMINATIONS BEGIN: According to this report from the Associated Press, Judge Stephen Reinhardt disagrees with the decision of Judge Alfred T. Goodwin to stay the Ninth Circuit's 2-1 decision in the Pledge of Allegiance case. Judge Goodwin wrote the decision, in which Judge Reinhardt joined.
Posted at 22:23 by Howard Bashman



THE PLEDGE OF ALLEGIANCE CONTROVERSY -- TAKING A CASE EN BANC IN THE NINTH CIRCUIT: For reasons too numerous to list here, I believe that the U.S. Court of Appeals for the Ninth Circuit is likely to grant rehearing en banc of the three-judge panel's ruling declaring the words "under God" in the Pledge of Allegiance unconstitutional when recited in schools. This post explains how the Ninth Circuit decides whether to take a case en banc and the procedures that govern in the Ninth Circuit once en banc review is granted.

What is rehearing en banc?: Rehearing en banc allows all judges in regular active service on a particular federal appellate court to reexamine the ruling of a three-judge panel. If rehearing en banc is granted, the panel's decision is set aside and either all active judges (in every federal appellate court other than the Ninth Circuit), or a panel of eleven judges (which is what happens in the Ninth Circuit), reexamine the case and reach a decision on its outcome. The decision that the en banc court reaches can be the same as the decision that the three-judge panel originally reached, or the decision can be different.

How the Ninth Circuit determines whether en banc review will be granted: At the request of a party to an appeal, or at the request of a judge serving on the federal appellate court, all federal appellate judges in regular active service on the Ninth Circuit will decide whether an appeal is so especially important that it deserves consideration beyond that given to the appeal by a three-judge federal appellate panel. Rehearing en banc is granted if a majority of the non-recused judges in regular active service votes in favor of rehearing in banc. Only appellate judges in regular active service get to vote on whether rehearing en banc should be granted. Thus, neither Senior Circuit Judge Goodwin, who wrote the majority's decision, nor Senior Circuit Judge Fernandez, who dissented, will vote on whether to order rehearing en banc.

The Ninth Circuit currently has twenty-three judges in regular active service (see this list). If none of the judges is recused, it will take the votes of twelve active judges to grant rehearing en banc. If one judge is recused, leaving twenty-two voting judges, it will still take the votes of twelve active judges to grant rehearing. When rehearing en banc is granted, the panel's decision is vacated. So, if rehearing en banc is granted in this case, the panel's controversial ruling will cease to exist at least until the en banc court issues its decision.

What happens after rehearing en banc is granted: Ninth Circuit Local Rule 35-3 governs what happens after rehearing en banc is granted. It provides:
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside.

The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc.

If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot.

Notwithstanding the provision herein for random drawing of names by lot, if a judge is not drawn on any of three successive en banc courts, that judge's name shall be placed automatically on the next en banc court.

In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.
Although the Rule's text unambiguously states that only Circuit Judges in regular active service may serve on an eleven-judge en banc panel, the advisory committee notes state that Senior Circuit Judges can elect to be in the pool from which the eleven-judge panel is chosen if the Senior Circuit Judges were originally on the three-judge panel assigned to the case: "a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member."

A list of the Ninth Circuit's current en banc cases makes clear that Senior Circuit Judges can serve on eleven-judge en banc panels as envisioned in the Rule's advisory committee notes. (Critics of the Ninth Circuit might remark that it is characteristic that that appellate court applies a clearly worded local rule not in accordance with its plain text but rather in accordance with an apparently-conflicting advisory committee note, but I'd never say anything like that myself.)

Although the local rule provides that any judge who was not included in the preceding three en banc panels will be automatically included in the very next one, the rule is not clear whether this also applies to Senior Circuit Judges, who may not even have been eligible to serve on any of the preceding three en banc panels.

What happens after the en banc panel issues its ruling: The Ninth Circuit's local rule allows the losing party to seek rehearing en banc before the entire Ninth Circuit, although the Ninth Circuit has never granted a full-court rehearing en banc. As Judge O'Scannlain explained in an opinion dissenting from the Ninth Circuit's denial of a full-court rehearing en banc in 1996:
Although our Pasadena Courthouse has a courtroom designed for full court en banc rehearings, there may be those who genuinely tremble at the prospect of up to twenty-eight judges looming from three tiers of benches, intimidating the hapless appellate advocates. Some of my colleagues may believe that full court en banc rehearing should never occur in any case; there may be those who believe that the court elected in 1980 to use the limited (eleven-judge) en banc in lieu of a full court en banc. And there may be those who, knowing that we have never voted to rehear a case before the entire court since the procedure was established in 1980, fear the disruptive effect which such an event could have on the current congressional efforts to split the circuit or, as presently cast, to establish a commission to examine the realignment of the appellate courts in this country.
What comes after rehearing en banc: The losing party may seek review in the Supreme Court of the United States by filing a petition for writ of certiorari within ninety days after the Ninth Circuit enters judgment or denies a timely rehearing petition, whichever occurs later.
Posted at 16:10 by Howard Bashman



FEDERAL DEATH PENALTY DECLARED UNCONSTITUTIONAL: Having now read Judge Rakoff's opinion, I will offer my views. My main recommendation, however, is that you should read the decision for yourself. It is not difficult to understand, and it is exceptionally interesting. You can access Judge Rakoff's opinion here.

The actual effect of today's ruling: As a general matter, the ruling of a single federal district judge is not binding on any other judges. Thus, a different federal district judge serving on the U.S. District Court for the Southern District of New York (the same court on which Judge Rakoff serves) is free to hold that the federal death penalty is not unconstitutional. So, one way to look at this ruling is that it may only apply in the case in which it issued. Except in today's case, the federal death penalty may constitutionally be applied unless other federal judges agree with, and follow, Judge Rakoff's ruling. However, one complicating factor is that the U.S. government -- which is the only party that can ask a federal judge to impose the death penalty -- is a party to Judge Rakoff's ruling. Other defendants in other courts may argue that Judge Rakoff's decision should bind the federal government unless and until the ruling is reversed. The main flaw in this argument is that Judge Rakoff's ruling is not a final judgment, because the prosecution of the defendants who have been spared the death penalty continues. Generally a party is only bound in other related cases by a final judgment, not by an interim ruling. Because no final judgment exists in today's case, it should not bind the government in other death penalty prosecutions.

The potential effect of Judge Rakoff's ruling: Press accounts correctly note that Judge Rakoff does not purport to declare unconstitutional the death penalty as applied by States, as contrasted with the federal government. However, Judge Rakoff's rationale would compel the conclusion that the death penalty, as applied by both the States and the federal government, is unconstitutional.

What reasons does Judge Rakoff offer in support of his ruling: 1. The U.S. Supreme Court has indicated that executing an actually innocent person would violate due process. (Click here to access the U.S. Supreme Court ruling in question.) 2. Thus, Congress did not have the right to conclude that the lives saved by having a federal death penalty outweighed the possibility that innocent people might be executed as a result of having the death penalty. 3. DNA testing has exonerated at least twelve state court death row inmates since 1993. 4. Since 1993, twenty additional other death row inmates have been exonerated due to non-DNA-related evidence. 5. Although none of the thirty-one people sentenced to death under the federal death penalty has been exonerated since 1995, at least one had a colorable claim of actual innocence (and President Clinton commuted his death sentence). 6. Allowing the federal death penalty to be applied will result in the fully foreseeable execution of numerous innocent persons, which violates the defendant's constitutional guarantee to due process. 7. As a result, the federal death penalty is unconstitutional.

The following quotations from Judge Rakoff's opinions are worth setting forth in full:
Where proof of innocence is developed long after both the trial and the direct appeal are concluded, it is entirely appropriate that the defendant make a truly persuasive showing of innocence, as Herrera requires, before his case can be reopened. But given what DNA testing has exposed about the unreliability of the primary techniques developed by our system for the ascertainment of guilt, it is quite something else to arbitrarily eliminate, through execution, any possibility of exoneration after a certain point in time. The result can only be the fully foreseeable execution of numerous innocent persons.

* * * * *

[N]o judge has a monopoly on reason, and the Court fully expects its analysis to be critically scrutinized. Still, to this Court, the unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected (and then often only fortuitously or by application of newly-developed techniques), compels the conclusion that execution under the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.

Accordingly, the Court grants defendantís motion to strike all death penalty aspects from this case, on the ground that the Federal Death Penalty Act is unconstitutional.
It would not be an overstatement to say that this is the most favorable ruling that death penalty opponents have received in quite some time. On the other hand, just because the death penalty could be applied to someone who is not guilty does not necessarily prove that it should not be applied to someone who is clearly guilty beyond any doubt. The debate over today's ruling, and the further appellate proceedings in this case in the U.S. Court of Appeals for the Second Circuit and, perhaps, in the Supreme Court of the United States, should prove to be quite interesting.
Posted at 13:54 by Howard Bashman



BREAKING NEWS: As anticipated, District Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York has today declared the death penalty unconstitutional in federal criminal prosecutions. You can access the ruling here. The federal government has vowed to appeal from the ruling to the U.S. Court of Appeals for the Second Circuit. According to news reports, Judge Rakoff concluded that the federal death penalty has too great a chance of causing the execution of an innocent person and thereby violates the defendant's constitutional right to due process of law. (Check back for more details on this ruling later today.)

Ironically, this ruling came on the very same day that The Washington Post featured a front page article reporting that U.S. Attorney General John Ashcroft has been especially aggressive in seeking the death penalty in federal criminal cases.
Posted at 12:11 by Howard Bashman



THE BUZZ: I'm currently preparing my end-of-Term U.S. Supreme Court retrospective, which The Legal Intelligencer is due to publish on Monday, July 8, 2002. It will summarize how the U.S. Court of Appeals for the Third Circuit and the Pennsylvania state appellate courts fared in the U.S. Supreme Court this Term. To access last year's installment, simply click here. For now, you can access my summaries of the High Court's decisions issued last week either by scrolling down this page or by clicking here and here.

REHEARING EN BANC IN THE NINTH CIRCUIT: With the Pledge of Allegiance case all but certain to be reheard en banc by the U.S. Court of Appeals for the Ninth Circuit, "How Appealing" later today will take a look at how the Ninth Circuit determines whether to take a case en banc and what procedures govern appeals that the Ninth Circuit agrees to rehear en banc.
Posted at 10:11 by Howard Bashman




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