|
|
|
Monday, September 30, 2002
U.S. Supreme Court orders due 10 a.m. tomorrow: I am reliably advised that the Supreme Court of the United States will be handing down orders granting cert. in the most deserving of newly-filed cases that have accumulated over the summer recess at 10 a.m. tomorrow, Tuesday, October 1, 2002.
As longtime readers are aware, when it comes to covering the U.S. Supreme Court, "How Appealing" doesn't try to be first with the news. Rather, this blog tries to be funniest and, failing that, most insightful. Those who try to be first with U.S. Supreme Court news often end up looking like so many reporters did on the night of December 12, 2000: "Well, Dan, it's a very long opinion written by Justice Per Curiam, and it seems to say that the counting of votes in Florida can go forward." Posted at 23:57 by Howard Bashman That's Justice Smarty-Pants to you: Blogger Stuart Buck has an essay online at Tech Central Station entitled "Smarty Pants in Robes: Who is the smartest Supreme Court Justice?" Unfortunately, the link to the essay isn't currently working. So much for the "Tech" in TCS, I guess. Can't wait to see what Stuart has to say on this intriguing subject. Update: The link to Stuart's essay is now working. A reader points out via email that a photo of the U.S. Supreme Court building that accompanies Stuart's essay is accompanied by the words "Department of Justice." Posted at 23:40 by Howard Bashman Fifth Circuit grants en banc review to determine proper punishment for embarrassing Kmart: You can access the Fifth Circuit's order issued today granting en banc review at this link. You can access here that court's divided three-judge panel opinion, which the order granting en banc review has vacated. Posted at 23:23 by Howard Bashman How else would you expect turtles to raise $286,082.73? In the case of Loggerhead Turtle and Green Turtle, et al. v. The County Council of Volusia County, Florida, the U.S. Court of Appeals for the Eleventh Circuit today ruled that the district court acted properly in awarding $286,082.73 to the turtles' lawyers (humans, presumably) under the partially discredited catalyst theory. You can access the Eleventh Circuit's ruling at this link. Posted at 23:11 by Howard Bashman Senate Judiciary Committee will hold a hearing tomorrow to consider U.S. Supreme Court's recent federalism rulings: The Senate Judiciary Committee has scheduled a hearing for 10 a.m. eastern time tomorrow to consider the U.S. Supreme Court's recent federalism rulings. The hearing is entitled "Building on 'Narrowing the Nation's Power: The Supreme Court Sides with the States'" and will be chaired by Senator Charles E. Schumer (D-NY). Posted at 23:04 by Howard Bashman Could Pennsylvania be on the verge of eliminating the election of state court judges? That's what some "local legal luminaries" believe, according to this article from The Legal Intelligencer. The local legal luminary who authors this blog remains quite skeptical, however, for the reasons I explained here in the installment of my monthly appellate column that was published in The Legal Intelligencer on September 10, 2001. Posted at 23:00 by Howard Bashman Appellate brief leads Fifth Circuit to chastise lawyers: law.com has this report. Posted at 22:53 by Howard Bashman "Estrada: Just One Vote Away?" That's the title of Jonathan Groner's article in this week's issue of The Legal Times. The article is now available online via law.com. Posted at 22:47 by Howard Bashman Fifth Circuit rejects former Louisiana Gov. Edwin Edwards's attempt to remain out of prison while seeking U.S. Supreme Court review: You can access the order that the U.S. Court of Appeals for the Fifth Circuit issued today at this link. The Associated Press reports here on what the order means. Posted at 20:55 by Howard Bashman Moussaoui trial postponed until May 2003: CNN.com is reporting that the trial of accused twentieth hijacker Zacarias Moussaoui has been moved back from January 2003 to May 2003. You can access a copy of the trial court's order at this link. The order makes clear that jury selection will begin in late May and the trial itself won't actually get underway until late June 2003. The order also grant's "the defendant's Motion to Get a Bigger Cave." Posted at 16:45 by Howard Bashman How not to win an IOLTA challenge: The U.S. Court of Appeals for the Third Circuit, by means of a not precedential opinion issued today, furnishes this example. Given that a circuit split exists over the constitutionality of such IOLTA programs, one might have expected that the second to last paragraph of this opinion would have shown more sensitivity to the plaintiff's claims. Here's a link to more information about an IOLTA challenge that the U.S. Supreme Court has agreed to review on the merits during its October 2002 Term. Posted at 16:13 by Howard Bashman From the "How Appealing" mailbag: "Check out the opening paragraph in Patel v. Searles, No. 00-9552, decided today by the Second Circuit": This appeal deals with the constitutional right of intimate association. Although clearly recognized in a general way by the Supreme Court and in scholarly writings, all of its boundaries have not yet been fixed. We think it unnecessary for our purposes to attempt to fully remedy that lack. Like the wind that blows where it wills and can be heard, yet no one knows "from where it cometh and whither it goeth" John 3:8, this constitutional right is real despite the lack of exact knowledge regarding its derivation and contours.The email had as its subject "best (worst?) opening paragraph in an opinion." Sorry, folks, but "How Appealing" is not launching that contest quite yet. Posted at 14:34 by Howard Bashman Ninth Circuit decides terrorism-related appeal: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today decided an appeal in which the majority opinion begins: Among other issues, we must decide whether a federal district court may grant citizenship to resident aliens whose applications were rejected by the Immigration and Naturalization Service in part because of their past terrorist activities.and concludes: Finally, we stress that, unlike the dissent, we do not pass judgment on the wisdom of the INS's decision to initiate deportation proceedings based upon events that occurred twenty years ago. The applicants arranged for a bomb to be transported on a commercial airliner, and planned to detonate it in Philadelphia, with the potential of murdering between 2000 and 3000 people. On the other hand, the applicants by all accounts have lived exemplary lives and have become pillars of their communities since their release from prison. Whether the actions of their youth justify deportation under our immigration laws is a question for the political branches of government. Judicial sympathy only functions within prescribed parameters of the law.You can access the opinion at this link. Circuit Judge Diarmuid F. O'Scannlain wrote the majority opinion, in which Circuit Judge Andrew J. Kleinfeld joined. Senior Circuit Judge Dorothy W. Nelson dissented. Posted at 13:39 by Howard Bashman Senate Judiciary Committee to vote this week on nomination of Dennis W. Shedd to serve on Fourth Circuit? That's what this anti-Shedd op-ed from today's edition of The Atlanta Journal-Constitution suggests. Update: You can access here an Associated Press article from last Thursday entitled "NAACP, church, women's group oppose Shedd's nomination." Posted at 11:43 by Howard Bashman Tattoo you: Law Professor Jonathan Turley, in an op-ed published in today's Los Angeles Times, weighs in on the case from South Carolina in which Kenneth W. Starr is representing a tattoo artist who argues in a cert. petition now pending before the U.S. Supreme Court that his First Amendment rights are being unlawfully infringed. Posted at 10:41 by Howard Bashman Sunday, September 29, 2002
Would The Washington Post's plan for protecting wetlands pass constitutional muster? This past Friday, The Washington Post ran an editorial calling on Congress to pass strengthened wetlands protection legislation. The editorial explained that such legislation was needed in the aftermath of a U.S. Supreme Court ruling from 2001 that you can access here. An especially astute reader, who practices law in a State Attorney General's office in the Midwest, sent along these thoughts about the Post's editorial on the day of its publication:In the "be careful what you wish for" category: Today's Washington Post editorial, about wetlands, suggests that the Army Corps and EPA are wrong to consider new regulations as a means to avoid the US Supreme Court's decision last year that invalidated the Corps' broad interpretation ("the migratory bird rule") of what constitutes a "navigable water" under the Clean Water Act. The Washington Post claims that the better approach would be for Congress simply to remove the requirement of the Clean Water Act limiting its application to "navigable waters." But considering that Chief Justice Rehnquist's majority opinion in SWANCC struck down the Army Corps' regulatory interpretation of "navigable waters" in part because it felt that the Corps' interpretation of "navigable waters" created "significant constitutional questions" under the Commerce Clause (i.e., undermining traditional local control over local water or land use), I'm not sure that the Washington Post is wise to support Congress's amending the law -- that might make the actual Clean Water Act, not just the regs, unconstitutional.Thanks, astute reader, for drawing attention to this matter. Posted at 23:42 by Howard Bashman On Roe v. Wade and Michael W. McConnell: In an op-ed published last week in The Dallas Morning News, Terry Eastland, publisher of The Weekly Standard, had this to say. Posted at 23:24 by Howard Bashman In clerkship hiring process, Miguel Estrada was tough on conservatives, too: Writing on NRO's The Corner, Jonathan Adler has this report from an anonymous source of his own. While the information Adler puts forth does not fully debunk the charges that two anonymous liberal clerkship rejects have leveled against D.C. Circuit nominee Miguel A. Estrada, it's a start. Update: Ha! The Corner's permalink to this item doesn't currently work. To access Adler's post until that problem is fixed, click here and then scroll down to the first entry (10:48 a.m.) on Sunday, September 29, 2002. Posted at 23:08 by Howard Bashman Horse country: Had a chance this afternoon to watch on tape a bit of Senator Edward M. Kennedy's speech last week to the American Constitution Society -- intended as the left's answer to The Federalist Society -- about the current state of the federal judicial nomination and confirmation process. Regardless of your opinion of Senator Kennedy, you must admit that he started off his speech with a good joke: It's a privilege to be here tonight among friends. It isn't always that way. Not long ago, I was addressing a group, and shortly after I started speaking, a heckler in the audience jumped to his feet and shouted: "Senator Kennedy is a horse's rear end." I'm paraphrasing slightly. Right away, members of the audience rushed to my defense. They threw the heckler out, and told him never to come back. So I said to the chairman of the event, "I had no idea this was Kennedy country." And the chairman said, "It isn't. It's horse country."You can access the full text of Senator Kennedy's remarks at this link. Posted at 20:40 by Howard Bashman "Tough-on-Crime Cases Top Supreme Court Fall Session": David G. Savage has this report in today's edition of The Los Angeles Times. Posted at 09:11 by Howard Bashman Judging the judicial nominees -- editorials from two leading newspapers contrast sharply with one another: Sunday's edition of The New York Times contains an editorial that calls on the Senate to reject the nomination of Michael W. McConnell to serve on the U.S. Court of Appeals for the Tenth Circuit. Sunday's edition of The Washington Post contains an editorial that calls on the Senate to approve the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. Previously, The Washington Post has editorialized in favor of McConnell's nomination, and The New York Times has, on its editorial page, taken a skeptical view of Estrada's nomination. Posted at 00:28 by Howard Bashman Saturday, September 28, 2002
In Sunday's New York Times: Sunday's edition of The New York Times contains an article by Tamar Lewin reporting on the aftermath of the U.S. Supreme Court's ruling last June that allowed more widespread suspicionless drug testing of high school students. You can access my original coverage of that ruling at this link. Tomorrow's Times also contains an article on the increasing prevalence of security cameras in society. The Christian Science Monitor published a similar article about security cameras this past Wednesday.
Posted at 23:06 by Howard Bashman
Tonight on C-SPAN's "America and the Courts": This week's installment of C-SPAN's fine program "America and the Courts," scheduled to air at 7 p.m. eastern time tonight, will feature Attorney General John Ashcroft's remarks from earlier in the week in favor of D.C. Circuit nominee Miguel A. Estrada and a speech entitled "The State of the Judiciary in America," which Senator Edward M. Kennedy delivered this week to the American Constitution Society. You can access a transcript of Senator Kennedy's speech at this link. Posted at 10:40 by Howard Bashman From tomorrow's New York Times Magazine: The Magazine section of tomorrow's New York Times contains a crash course in plea bargains and an interview with novelist Chuck Palahniuk, author of "Fight Club," whose latest novel was just released. Posted at 09:50 by Howard Bashman An update on the Iowa case in which prosecutors subpoenaed clinics' records of every woman who took pregnancy test between August 2001 and May 2002: Columnist Ellen Goodman, writing in The Boston Globe, provides this update. Posted at 01:04 by Howard Bashman Remember the Pledge of Allegiance case? This report from The Associated Press describes one recent development. Posted at 00:55 by Howard Bashman USDOJ files supplemental brief in Foreign Intelligence Surveillance Court of Review: You can access the supplemental brief that the U.S. Department of Justice filed in the Foreign Intelligence Surveillance Court of Review on Wednesday of this week at this link. Saturday's edition of The New York Times contains this article about the supplemental brief and the current status of the matter. Posted at 00:50 by Howard Bashman Friday, September 27, 2002
Readers respond to my recent "Not telling" post: On Monday of this week, in a post you can access here, I wrote:Not telling: Today the U.S. Court of Appeals for the Eleventh Circuit decided a seemingly straightforward securities lawsuit by means of a nine paragraph opinion. Circuit Judge Susan H. Black was a member of the three-judge panel that decided the appeal. At the close of the majority opinion, the decision states: "BLACK, Circuit Judge, concurs in the result." And that's all the decision says about Judge Black's views of the case. Obviously, a judge concurs only in the result of an appeal if he or she disagrees with the majority opinion's reasoning. How and why Judge Black disagreed with the majority opinion's reasoning is unknowable. "This case is important enough for you to know that I don't fully agree but not important enough for you to know why" is what this type of "minute entry" has always indicated to me. Thankfully, these sort of "concurs in the result without opinion" are very rare in the federal appellate court system, but they are used more often in state appellate courts. Am I the only one who reacts negatively when a judge on an appellate court concurs in the result without opinion or dissents without explanation? I welcome your thoughts, whether you agree or disagree with my view, via email. Oh yeah, and feel free to provide reasons for your opinion.The most interesting and, dare I say, clever response came from an attorney who works for a State Attorney General's Office in the Midwest. She wrote: With regard to judges who either dissent or concur with a result without opinion:Very well said. One of my favorite correspondents sends along these thoughtful remarks: I looked at the recent 11th Circuit opinion you mentioned with some interest. I share your negative reaction to judges' not expressing their reasoning for the results they reach. In fact, I would make the stronger claim that giving reasons for decisions is an essential element of the "judicial Power of the United States" (though that's impossible to establish definitively on the basis of Constitutional exegesis). Law is, among other things, a discrete means of channeling political authority, and part of the way that authority is limited and directed to its proper ends is by articulating the ratio decidendi for each result. A legislator can vote yay or nay on the basis of what he had for breakfast, but a judge (qua judge) must explain the rationale behind the decision. Where rationales (even mistaken ones) are wholly absent, I don't think it is the peculiarly "judicial Power" that is being exercised.The final quoteworthy email on this topic came from a lawyer who practices in Mississippi: This sort of opinion has become a plague in the Mississippi Supreme Court. It was uncommon before 1990; it has become a constant on the weekly decision lists since. The weird variations in disagreements without opinions are even worse-- you will see votes that concur in part and dissent in part with no explanation whatsoever.Thanks so much to everyone who took the time to write in on this important topic. Posted at 23:49 by Howard Bashman Awaiting the imminent kick-off of the October 2002 Term: The U.S. Supreme Court kicks-off its October 2002 Term behind the scenes with its first conference to consider pending petitions for writ of certiorari on Monday, September 30, 2002. You can access the Court's official calendar at this link. Last year the Court issued orders granting cert. in a bunch of cases on the day after the initial conference got underway, so it is possible that a list of grants could issue as early as Tuesday, October 1, 2002. Last week law.com's Supreme Court correspondent, Tony Mauro, with a large assist from Tom Goldstein, listed the cases to be conferenced next week in which cert. is most likely to be granted. You can access that article here. Tonight law.com has posted Tony's newest article, which among other things describes some of the most interesting cases that the Court already has agreed to review on the merits in the upcoming Term. Posted at 23:30 by Howard Bashman Your most humble host, quoted on law.com: Reporter Jonathan Ringel has an excellent article in Monday's edition of The Fulton County (Georgia) Daily Report about a very significant prisoner civil rights ruling that the Eleventh Circuit issued earlier this week. As an added bonus, the article contains a quote from me and also mentions this blog. The article is prominently featured this weekend throughout the entire law.com network of Web sites, so be sure to take a look. You can access my earlier coverage of the Eleventh Circuit's ruling, and links to the Fourth Circuit opinions discussed in Ringel's article, by clicking here. Anyone interested in learning more about the current state of U.S. Supreme Court law on the boundary between habeas corpus actions and prisoner civil rights claims can take a look at this pro bono brief (starting at page 19 of the pdf file, which is page 14 of the brief itself) involving that issue which I filed one year ago in the U.S. Court of Appeals for the Third Circuit. (The Third Circuit ruled in favor of my pro bono client, reversing the dismissal of a prisoner civil rights suit by then-Third Circuit nominee (and now recently seated Third Circuit Judge) D. Brooks Smith.) Posted at 23:12 by Howard Bashman It was only a matter of time: Alice W. reports that Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit appears in an article in the October 2002 issue of Cosmopolitan magazine (see page 3). The article, by the way, is entitled "How to Seek Pleasure in Public Places." Posted at 20:16 by Howard Bashman White House Counsel Alberto R. Gonzales "Rips Senate on Judge Picks": The Associated Press has this report on his speech today to law students at SMU. The article states that Gonzales even went so far as to question whether he would accept a judicial nomination (to the U.S. Supreme Court, perhaps?) if one were offered by President Bush. Posted at 20:08 by Howard Bashman Shameless self, and non-self, promotion: Jonathan Adler, writing in NRO's The Corner, has several posts on yesterday's Senate Judiciary Committee hearing. Start here and scroll down for more. Meanwhile, thanks to William Sulik, this other blogger, and Denise Howell for their recent very kind words about "How Appealing." Posted at 16:18 by Howard Bashman Let's go to the videotape: Courtesy of C-SPAN, you can access a video feed of yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada via this link. Posted at 14:47 by Howard Bashman Divided Ninth Circuit panel rejects California cities' challenge to census numbers: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today ruled 2-1 that the U.S. Department of Commerce did not have a statutory duty to adjust census figures statistically for redistricting purposes. You can access the ruling here. Senior Circuit Judge Warren J. Ferguson wrote the majority opinion, in which Circuit Judge Susan P. Graber joined. Circuit Judge Stephen Reinhardt dissented. Update: In a post dated October 2, 2002, Fritz Schranck of the Sneaking Suspicions blog takes a detailed look at the Ninth Circuit's ruling. Posted at 13:51 by Howard Bashman Setting the record straight on Justice Clarence Thomas: While Kaimi Wenger, over on his blog, has provided some interesting commentary on The Nation article that plagued Miguel A. Estrada during yesterday's confirmation hearing, in the final paragraph of his post here Kaimi expressed what I view to be unfair criticism of Justice Clarence Thomas. And I'm not alone. A law professor who clerked for another Justice has copied me on this email that he sent to Kaimi: Greetings -- thanks for the new blog.Stuart Buck expresses similar thoughts in a post here. Posted at 12:00 by Howard Bashman Even more First Amendment vs. "true threat" rulings have issued this week: I mentioned the Eighth Circuit's en banc ruling from Wednesday here. The Supreme Court of Pennsylvania on Wednesday resolved a case presenting some of the same issues, and you can access the majority opinion here and concurring opinions here and here. Yesterday a divided Fourth Circuit panel added this ruling to the mix. What do all of these cases have in common? A not very pleasant set of facts. Posted at 11:49 by Howard Bashman The LA Times profiles a first-year UCLA law student who's both "affirmative and active": You can access the article here. But, in the words of Denise Howell, does this law student have a blog? Posted at 11:42 by Howard Bashman The day after the Estrada hearing: Byron York, writing at National Review Online, offers an insightful summary of yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. York's final three paragraphs should not be missed. Elsewhere, in today's Los Angeles Times David Savage reports that the Estrada hearing was "surprisingly low-key." Hmmm, perhaps he missed the afternoon session? Posted at 11:33 by Howard Bashman Eugene Volokh gets inside the mind of a madman: You can access Eugene's essay published this morning on National Review Online via this link. Posted at 11:31 by Howard Bashman Divided Sixth Circuit panel reinstates Ford's claims against General Motors: This is the type of case an appellate court is bound to get when its jurisdiction includes the Motor City. You can access today's Sixth Circuit ruling at this link. Posted at 11:28 by Howard Bashman In Friday's newspapers: The Washington Post contains an editorial that closely echos my comments from Wednesday on the Justice Department's unfortunate press release about the Vermont federal trial court's ruling that declared the federal death penalty unconstitutional. Elsewhere in the Post, Charles Lane has this report on yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. Astonishingly, the Post has also interviewed the two disgruntled individuals who blame Estrada for their having been rejected for a clerkship with Justice Anthony M. Kennedy, and the article states that "both people said their quotes in the Nation were broadly accurate. But they insisted on remaining anonymous." I talk with Charles Lane from time to time; maybe he'll tell me who the two rejected clerkship candidates are if I promise to keep the secret -- but I doubt it. Tomorrow's edition of The New York Times contains this article on the Estrada hearing. The Times also contains a detailed report about the classified documents that federal government lawyers mistakenly provided to Zacarias Moussaoui. Both the Times and the Post cover yesterday's release of a letter that the U.S. Court of Appeals for the Third Circuit ordered unsealed over the objections of Senator Robert G. Torricelli. You can access the Times article here and the Post article here. Posted at 00:56 by Howard Bashman Thursday, September 26, 2002
Coming soon to a newsstand near you? Well, if you live in or around Atlanta, Georgia, the answer is probably yes. Today a reporter for the Fulton County (Georgia) Daily Report, Atlanta's newspaper for lawyers, sought my comments on this very interesting Eleventh Circuit ruling from Monday, which I first mentioned here. An article on that ruling is due to appear in the Daily Report either tomorrow or Monday, Sept. 30th, so I'm counting on my Atlanta-based readers to keep me posted. Thanks, y'all!
Posted at 22:54 by Howard Bashman
"Embattled Judicial Nominee Faces Grilling": That's the title of a wrap-up from Reuters of today's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. Elsewhere, blogger Kaimi Wenger has some interesting musings about the two anonymous disgruntled individuals who blame Estrada for their not being hired to clerk for Justice Anthony M. Kennedy. Posted at 22:32 by Howard Bashman Hello, Heather! Heather Havrilesky's interview in LA Weekly is too funny, and too true. Posted at 20:58 by Howard Bashman Third Circuit orders immediate release of Torricelli-related memo that press sought to access: As I predicted here early yesterday morning, the U.S. Court of Appeals for the Third Circuit this afternoon ordered the immediate release of a sentencing memo, from the criminal case against David Chang, that Senator Robert G. Torricelli had asked the court to keep out of the hands of the press and public. The Associated Press offers this report on what the memo reveals. You can access the Third Circuit's original ruling in the matter at this link. Posted at 20:49 by Howard Bashman Dahlia Lithwick accuses John Ashcroft of duplicity on gun rights: You can access her latest Slate essay at this link. Hmmm, why didn't I think of that (or did I)? Posted at 20:35 by Howard Bashman Miguel A. Estrada's portion of today's Senate Judiciary Committee hearing has just concluded: Which means that, at 4:54 p.m., five federal district court nominees finally have the pleasure of sitting at the microphones before the committee. Whether Estrada will be able to obtain one Democratic vote on the committee remains in question. Senator Charles E. Schumer (D-NY), who chaired the hearing, engaged in some very contentious questioning of Estrada, who managed to keep his cool even though some Republicans on the committee said that they found Senator Schumer's conduct to be objectionable. Posted at 16:54 by Howard Bashman Yes, no, maybe so: That pithy saying, which my son says he learned last year from his first grade teacher, accurately describes the results that federal appellate courts have reached concerning whether a State's sovereign immunity and the Eleventh Amendment to the U.S. Constitution bar claims against a State arising under Title II of the Americans with Disabilities Act. Today a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit split 2-1 on this issue. The majority concluded that Congress acted unconstitutionally when it subjected States to claims arising under Title II of the ADA. You can access the Fourth Circuit's ruling at this link. Last month, a divided three-judge panel of the U.S. Court of Appeals for the First Circuit reached the opposite result and held that Title II of the ADA may lawfully be applied to States. As I noted last month in describing the First Circuit's ruling, a circuit split has existed on this issue for some time now. Posted at 16:27 by Howard Bashman On National Review Online: Byron York has a column that describes the Democrats' opposition to Miguel A. Estrada as "A Battle About Nothing." And guest commentator Robert Alt has a column which asserts that it is Estrada's main critic who is outside the mainstream. Posted at 15:04 by Howard Bashman Maybe he called her "chicken"? Today Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit issued a very interesting opinion on behalf of a three-judge panel, the second paragraph of which begins: The conspirators operated adjacent bars that offered striptease shows. During intervals between the shows, the striptease dancers would sit with the patrons of the bars, and if the patrons wanted would have sex with them, either in the basement beneath one of the bars or in the motel in which the other bar was located, for a price. Thus the dancers doubled as prostitutes. One of the bars employed a bouncer named Dave Brown who was prone to violence. Once, when a customer called one of the prostitutes a foul name (spelled "fowl" in the transcript), Brown "bashed [the customer's] head into the jukebox and threw him out the door."You can access the entire opinion at this link. Posted at 14:44 by Howard Bashman An email regarding Miguel Estrada: Attorney Jennifer Jaff, who practices law in Connecticut, has sent along the following email: Although I would locate myself somewhere to the left of Democrat on the political spectrum, Miguel promoted my candidacy at the SG's office. That makes me think he's a fair-minded person since my politics are all over my resume. He certainly didn't judge me by my politics, and I think it's horrendous that people want to do that to him.Meanwhile, blogger/law professor Jeff Cooper has concluded that Estrada should not be confirmed. Posted at 14:23 by Howard Bashman A mid-hearing Miguel Estrada update: The afternoon session of the Senate Judiciary Committee's hearing on Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit has just begun. William Sulik, over on his Blithering Idiot blog, sets forth his views on this morning's session. Posted at 14:19 by Howard Bashman Today's Wall Street Journal editorial in support of Miguel A. Estrada: You can access the editorial -- which asks "Will a 'Hispanic Clarence Thomas' face a Senate star chamber?" -- at this link. Meanwhile, as I had expected, the Senate Judiciary Committee's questioning of D.C. Circuit nominee Estrada did not get underway until about 11:10 a.m. this morning. Posted at 11:38 by Howard Bashman This morning's Senate Judiciary Committee hearing to consider D.C. Circuit nominee Miguel A. Estrada: The Senate Judiciary Committee is scheduled to convene at 10 a.m. eastern time today to hold a hearing to consider the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can access a live audio feed of the hearing via this link. White House Counsel Alberto R. Gonzales has an op-ed in today's Washington Post in support of Estrada's nomination. And, The Associated Press offers this preview of today's hearing. Posted at 08:34 by Howard Bashman In Thursday's newspapers: The New York Times contains an op-ed from columnist Bob Herbert on the issue of judicial nominations. Relatedly, the paper publishes a letter to the editor from Senator Orrin G. Hatch responding to yesterday's editorial concerning Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. The Times also reports that Senior District Judge Milton Pollack of the U.S. District Court for the Southern District of New York is still getting the job done on the eve of turning ninety-six years old. Now that's what I call life tenure! In news relating to the war on terror, The Washington Post reports here that "The Justice Department announced last night that it would comply with a federal court order and grant an open detention hearing to a Muslim activist who has been in custody for nine months because of suspected links to terrorism." And, The Christian Science Monitor contains an article entitled "Terror on trial: Citizen detentions in the spotlight -- The indefinite detention of two American citizens raises far-ranging legal rights issues." Posted at 00:25 by Howard Bashman Wednesday, September 25, 2002
Eugene Volokh on NPR's Talk of the Nation: You can access an audio feed of Eugene Volokh's appearance on NPR's Talk of the Nation program yesterday at this link. The program addressed the public's attitudes toward the First Amendment. Eugene does his usual wonderful job of speaking eruditely and quickly, but his persistence in the face of a segment break surprisingly leads NPR to turn off his microphone in the middle of a sentence at 14 minutes and 20 seconds into the program. Hey, that's not very nice (especially on a program about free speech)! Next thing you know, a city in Nebraska will tell him "pffft!" (Oops, that's already happened too.)
Posted at 23:51 by Howard Bashman
What's a trial judge to do? A colleague from down the hall (who humorously pretends to be considering whether to launch a blog by that title) had some interesting remarks today about yesterday's splintered Ninth Circuit en banc ruling concerning whether a homosexual man who was objecting to unwelcome physical contact from male co-workers stated a Title VII claim. The appeal was decided by an eleven-judge en banc panel of the Ninth Circuit. Five judges -- one shy of a majority -- joined in the lead opinion. Three judges, including one who joined the lead opinion, joined in an opinion concurring in the judgment. The remaining four judges dissented from both the lead opinion and the opinion concurring in the judgment. The lead opinion, in which five judges joined, concluded that the plaintiff could pursue a valid Title VII claim under what I will call "theory number one." The opinion concurring in the judgment, in which three judges joined (including one judge who also joined in the lead opinion), concluded that the plaintiff could pursue a valid Title VII claim under a completely different theory, which I will call "theory number two." And, the dissenting four judges rejected theories one and two. Thus, theory number one had the support of five judges on the en banc panel and was opposed by six judges. Theory number two had the support of three judges on the en banc panel and was opposed by a majority of the eleven judges on that panel. All that theory one and theory two have in common is the shared result that the plaintiff should have the opportunity to pursue his claim further in the trial court. Yet how is the trial court to proceed on remand? If the plaintiff on remand successfully proves only theory one or only theory two, does the plaintiff lose, because neither theory alone commanded support from a majority of the Ninth Circuit's eleven-judge en banc panel? And, thus, must the plaintiff prevail on both theories one and two to win in the trial court? If you have any insights, feel free to comment via email. Posted at 23:32 by Howard Bashman Sometimes a correction only makes things worse: The Associated Press has issued a correction tonight of an earlier AP article (which admittedly did contain a whopping inaccuracy) reporting on yesterday's ruling by a Vermont federal trial court striking down the federal death penalty as unconstitutional. (You can access my coverage of that ruling, which remains correct although perhaps a bit indecipherable toward the very end, at this link.) The AP's correction states, in full: MONTPELIER, Vt. -- In a Sept. 24 story about a ruling declaring the federal death penalty law unconstitutional, The Associated Press erroneously reported that U.S. District Judge William Sessions cited two of the law's provisions as the reason for his decision. Sessions did not find unconstitutional the part of the law that gives grand juries a hand in death penalty decisions. He ruled the law was unconstitutional because the sentencing phase denies defendants the right to confront and cross-examine witnesses.This correction, however, itself is inaccurate in two respects. The second to last sentence is misleading when it states that "Sessions did not find unconstitutional the part of the law that gives grand juries a hand in death penalty decisions." You see, the argument against the federal death penalty law is that it does not give grand juries enough of a role in the process, because the law does not require that the grand jury's indictment specify the aggravating circumstances that allow the imposition of the death penalty. Yesterday, Chief Judge Sessions ruled that the federal death penalty statute is not unconstitutional even though it doesn't expressly require a grand jury to specify the requisite aggravating circumstances in the indictment so long as the grand jury issues an indictment that nevertheless does specify those aggravating circumstances. The final sentence of The AP's correction is misleading due to incompleteness. While Chief Judge Sessions did rely on the two reasons specified in that sentence in striking down the law, he also held that the federal death penalty law violates a defendant's due process rights by failing to make the Federal Rules of Evidence applicable to the sentencing phase of the trial. Now we can await The AP's correction of its correction, correct? Posted at 22:35 by Howard Bashman Big tobacco appeals from big liability verdict: The AP has this report from Florida. Posted at 22:28 by Howard Bashman "Bush Slams Dems on Judicial Nominees": The Associated Press has this report online tonight. Elsewhere, in press release-land, The Committee for Justice has this to say in support of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit, while People For the American Way has this to say in opposition. Posted at 22:25 by Howard Bashman The witness list for tomorrow's Senate Judiciary Committee hearing is now available online: You can access it here. If I had to guess, the testimony of D.C. Circuit nominee Miguel A. Estrada won't be getting underway much before 11 a.m. Posted at 16:36 by Howard Bashman Fifth Circuit closed due to inclement weather: The Web site of the U.S. Court of Appeals for the Fifth Circuit reports that the court will be closed today and tomorrow due to Hurricane Isidore. You can access the notice at this link. Posted at 16:24 by Howard Bashman Protected free speech or punishable true threat? En banc Eighth Circuit splits 6-4 over the answer: Today the en banc U.S. Court of Appeals for the Eighth Circuit issued a 6-4 ruling in a very interesting case. The majority opinion begins: We granted en banc review to determine whether a school board ran afoul of a student's free speech rights when it expelled him for an offensive and vulgar letter that the student had prepared at home. The expelled student described in the letter how he would rape, sodomize, and murder a female classmate who had previously broken up with him. After a bench trial, the district court ordered the expelled student reinstated, concluding that the letter was not a "true threat" and that it therefore was protected speech under the First Amendment. A divided panel of our court affirmed the district court's decision. See Doe v. Pulaski County Special Sch. Dist., 263 F.3d 833 (8th Cir. 2001). We vacated the panel decision, ordered en banc rehearing, and now hold that the school board did not violate the student's First Amendment rights when it expelled him.You can access the en banc decision at this link. You can access the earlier, vacated panel decision here. The same question presented here -- free speech versus true threat -- was at issue in a 6-5 Ninth Circuit en banc decision issued in May 2002 that I previously examined in detail here and here. Update: An attorney who practices in Michigan emails to say that today's Eighth Circuit ruling reminds him of a criminal case that reached the U.S. Court of Appeals for the Sixth Circuit approximately five years ago, and he provides this link to more information about that case. Posted at 16:19 by Howard Bashman Even more about the federal judicial confirmation process: This Monday's edition of The Pittsburgh Post-Gazette contained a sensible editorial entitled "More courtly conversation -- Signs of a truce on judicial confirmations." Meanwhile, the world's most popular blogger argues here and here that competence, rather than ideology, should be the Senate's main focus in deciding which judicial nominees to confirm. Posted at 14:38 by Howard Bashman USDOJ press release on yesterday's death penalty ruling misses the mark: The U.S. Department of Justice yesterday issued a press release that denounced the ruling earlier in the day by Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont that the federal death penalty is unconstitutional. The DOJ's press release states, in full: STATEMENT OF BARBARA COMSTOCK, DIRECTOR OF PUBLIC AFFAIRS, REGARDING JUDGE SESSIONS' OPINION ON THE FEDERAL DEATH PENALTY:I have essentially three qualms with the press release. First, it strikes me as odd that a denunciation of Chief Judge Sessions' ruling would at its outset focus on the desire to confirm President Bush's judicial nominees. Yes, Judge Sessions was a Clinton appointee, but his ruling (which I discussed at length here in a post made last night) is not so far outside the mainstream to qualify as a decision that no Bush judicial nominee could ever accept. Second, the statement that "lone members of the judiciary" do not "determine[] the proper punishment for crimes" borders on the ludicrous. True, legislatures set ranges of punishment and decide, in the first instance, when the death penalty is available as punishment for a crime. But, judges -- and especially lone federal district judges -- then decide what sentence to impose, including the precise amount of prison time a convicted defendant must serve from within a range of available alternatives. Thereafter, judges examine and often re-examine whether the sentence is proper and, particularly in a death penalty case, whether the sentence was imposed using lawful procedures for a crime that merits that punishment. Third, the final two sentences of the press release suggest that whoever drafted the release did not spend much time reviewing Chief Judge Sessions' ruling. Unlike U.S. District Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York, who ruled in early July 2002 that the federal death penalty is incurably unconstitutional, Chief Judge Sessions identified a relatively narrow procedural flaw that, once repaired, would eliminate the basis on which he struck down the federal death penalty law. Thus, to argue that the U.S. Supreme Court has repeatedly held that the death penalty does not violate the Constitution, while true, does nothing to rebut the narrow procedural flaw that Chief Judge Sessions identified, especially since Supreme Court has never directly addressed that matter. Accordingly, while I can sympathize with the Justice Department's frustration over the judicial confirmation imbroglio, and while I can understand the department's skepticism of any ruling that invalidates the federal death penalty, yesterday's press release nevertheless strikes me as a bit of an overreaction. (Link to press release via Jurist.) Posted at 13:43 by Howard Bashman A recent former D.C. Circuit clerk weighs in on the Estrada battle: Blogger and recent former D.C. Circuit law clerk Stuart Buck shares his insightful views on efforts to derail the confirmation of D.C. Circuit nominee Miguel A. Estrada. Elsewhere, a brand new blogger reviews with a skeptical yet amusing eye Jack Newfield's recent article in The Nation entitled "The Right's Judicial Juggernaut." And, finally for now, blogger Mark A.R. Kleiman, a professor of policy studies at UCLA, calls on the Senate Judiciary Committee to reject Estrada's nomination, although Kleiman's post (which mentions the Estrada nomination in its final sentence) provides no explanation of why he is opposed to the nomination. Posted at 12:09 by Howard Bashman News and press coverage of D. Brooks Smith's Third Circuit investiture: My most reliable and enterprising source of D. Brooks Smith-related news attended Judge Smith's investiture into the U.S. Court of Appeals for the Third Circuit on Monday of this week and this morning sends along the following email: On Monday (Sept. 23), I attended the investiture of Judge Smith as a United States Circuit Judge, so I can confirm the fact that he has become a United States Circuit Judge. The Pittsburgh Post-Gazette apparently did not run an article reporting on the ceremony, but the front page of yesterday's paper included a photograph of Judge Smith donning his robe. Senator Specter, Lt. Gov./Senator Jubelirer, and former Governor Thornburgh, among others, spoke at the ceremonyThe first several paragraphs of the Tribune-Democrat article are not to be missed: D. Brooks Smith, the only federal judge Johnstown has ever known, officially became the newest jurist on the 3rd Circuit Court of Appeals yesterday, ending a grueling nominating process that attacked his character and credibility.As someone who supported Judge Smith's nomination to the Third Circuit (even while obtaining the reversal of his dismissal of a prisoner civil rights complaint in a pro bono appeal that the Third Circuit asked me to handle), I am very pleased that he has finally joined that appellate court. Posted at 09:46 by Howard Bashman Must be some memo: According to this report from The Associated Press, attorneys for Senator Robert G. Torricelli (D-NJ) have asked the U.S. Court of Appeals for the Third Circuit to bar a federal district court from complying with the Third Circuit's recent ruling ordering release to the press of a sentencing memo in the criminal case against David Chang. There is absolutely no reason to think that Senator Torricelli could obtain reversal of the Third Circuit panel's ruling either from the en banc Third Circuit or the U.S. Supreme Court, which leads me to wonder why the panel didn't originally order the immediate issuance of its mandate, thereby requiring the district court to disclose the sentencing memo immediately. This could prove interesting. Posted at 00:54 by Howard Bashman In Wednesday's newspapers: The New York Times contains what is sure to be a controversial editorial calling for the release of "memorandums [D.C. Circuit nominee Miguel A. Estrada] wrote while working for the solicitor general's office." Here's why the Times's request is misguided. Elsewhere, Linda Greenhouse reports on the other big news to come from yesterday's meeting of the U.S. Judicial Conference (click here to access my earlier report on other developments there). Adam Liptak chronicles yesterday's splintered en banc Ninth Circuit ruling involving homosexual harassment and Title VII (more links here). The Times also contains an article on yesterday's ruling from Vermont striking down the federal death penalty (my coverage is here and here). Finally, The Times reports that legal heavyweights will decide September 11th Fund appeals. The Washington Post contains an article that begins, "The Congressional Hispanic Caucus, composed entirely of House Democrats, plans to announce today that it opposes the nomination of Miguel Estrada to a federal appeals court, deepening an already wide partisan chasm over the nomination." The Post also contains an article reporting that compensation remains elusive for asbestos victims. Last but not least, The Christian Science Monitor explains here that you shouldn't expect to enjoy any privacy in public places. Posted at 00:19 by Howard Bashman Tuesday, September 24, 2002
It appears that D. Brooks Smith has now officially joined the Third Circuit: As noted in a post you can access here, D. Brooks Smith was due to be sworn into service on the U.S. Court of Appeals for the Third Circuit yesterday. Although the Third Circuit's Web site as of this moment doesn't note his arrival, the Web site of the U.S. District Court for the Western District of Pennsylvania does bear the name of a new Chief Judge who has succeeded Judge Smith in that post.
Posted at 23:39 by Howard Bashman
Remember U.S. Supreme Court Justice William Blackmun? Me neither. law.com reprints this article from The National Law Journal noting the twenty-fifth anniversary of Bates v. State Bar of Arizona, a blockbuster case that allowed attorneys to advertise. Unfortunately, the article says that the majority opinion in Bates was written by U.S. Supreme Court Justice "William Blackmun." Seems that his first name was Harry the last time that I checked. Posted at 23:23 by Howard Bashman Two differing judicial views on why the federal death penalty is unconstitutional: Today's ruling by Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont that the federal death penalty is unconstitutional differs in its reasoning -- but not its result -- from the July 1, 2002 ruling of District Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. As I explained here on July 1st in my detailed analysis of Judge Rakoff's ruling, he struck down the federal death penalty law because he concluded that allowing the federal death penalty to be applied will foreseeably result in the executions of numerous innocent people. Chief Judge Sessions' reasoning for declaring the federal death penalty unconstitutional was much narrower and, dare I say, nuanced. Today's opinion notes that the federal death penalty statute: provides that information relevant to the sentence, including any mitigating or aggravating factor, "is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."This broad admissibility of information at the penalty stage, without regard to the normal rules of evidence, confrontation, and cross-examination that govern the guilt aspect of the trial, causes the Federal death penalty law to be unconstitutional, Chief Judge Sessions ruled: The Court concludes that the [Federal Death Penalty Act], which bases a finding of eligibility for imposition of the death penalty on information that is not subject to the Sixth Amendment's guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to factfinding involving offense elements, is unconstitutional.It would thus be quite easy for Congress to fix the flaw identified in today's opinion, or even for a court to extend the normal rules governing admissibility of evidence, confrontation, and cross-examination to the penalty phase (although Chief Judge Sessions concluded that it would be improper for a court to judicially remedy the statute in that manner). The flaws identified in Judge Rakoff's ruling, by contrast, are not so easily fixed. If no death penalty may lawfully be enforced so long as it is even theoretically possible for an innocent person to receive it, then no death penalty ever will be possible. All of this may be causing some of you to ask, "How does this affect me, Al Franken?" (And here's another SNL Weekend Update transcript featuring Al Franken from around the time when Robert H. Bork's nomination to the Supreme Court was pending.) Well, that's difficult to say, but today's ruling contains some good news and some bad news for accused twentieth hijacker Zacarias Moussaoui. The good news, obviously, is that Chief Judge Sessions ruled that the federal death penalty is unconstitutional. The bad news is that Chief Judge Sessions rejected the argument that the prosecution can't remedy the statute's lack of a requirement that aggravating circumstances be charged in the grand jury indictment by having a grand jury issue a superseding indictment that nevertheless charges the aggravating circumstances. (For all of you who don't understand what the heck the previous sentence means, here's one more SNL Weekend Update transcript to enjoy.) Update: law.com has this report, which reaches essentially the same conclusion (although it contains no links to SNL Weekend Update transcripts). Posted at 22:15 by Howard Bashman Thanks! Thanks to all who have already emailed in response to my request for reader input contained in my post from last night entitled "Not Telling." I will be posting here this Friday a bunch of very thoughtful reader responses that I have already received to that post; thus, if you too were hoping to respond, you still have time to do so. Posted at 21:43 by Howard Bashman Eleventh Circuit affirms $9 million judgment against Ford Motor Corporation to family of youth who died in Ford Explorer crash: You can access the ruling, which the U.S. Court of Appeals for the Eleventh Circuit issued today, at this link. Posted at 21:39 by Howard Bashman U.S. Judicial Conference asks Congress to authorize ten new appellate judgeships: The First Circuit would get one temporary judgeship, the Second Circuit would get two permanent judgeships, the Sixth Circuit would get two permanent judgeships (but, of course, the Senate would never allow them to be filled), and the Ninth Circuit would get two permanent and three temporary judgeships. You can access the Judicial Conference's press release issued today at this link. (Link to press release via Jurist.) What is a temporary judgeship? In a circuit that has no temporary judgeships, when a judge in regular active service takes senior status, resigns from the judiciary, or dies, a vacancy on the court is created for the President to fill with the advice and consent of the Senate. If the circuit has a temporary judgeship, a specified number of years (I'm not precisely sure how many, although I think the answer is five, six, or seven) after the judgeship is created, the next event that would otherwise give rise to a judicial vacancy on the court (i.e., a judge in regular active service takes senior status, resigns, or dies) does not create a vacancy to be filled by the President. Posted at 21:08 by Howard Bashman Second district judge within Second Circuit declares federal death penalty unconstitutional: A second federal district judge based within the jurisdiction of the U.S. Court of Appeals for the Second Circuit has declared the federal death penalty unconstitutional. You can access today's ruling from Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont at this link. Chief Judge Sessions joins fellow Clinton appointee Jed S. Rakoff of the U.S. District Court for the Southern District of New York in declaring the federal death penalty unconstitutional. You can access my detailed analysis of Judge Rakoff's ruling at this link. Posted at 16:32 by Howard Bashman Text of the jury nullification constitutional amendment under consideration in South Dakota: In a post here last Saturday night, I pointed to Adam Liptak's article in this past Sunday's New York Times on South Dakota's proposed constitutional amendment that, if approved, would cause jurors in state court criminal trials there to be expressly instructed about the option of jury nullification. Thanks to the never-ending wonders of the Internet, I can now present you with the actual text of the amendment (with the proposed new language underlined and the language to be deleted struck-through): That Article VI, section 7 of the Constitution of the State of South Dakota, be amended to read as follows:An |